Kenon v. Edwards et al
Filing
54
OPINION AND ORDER. The 46 Motion to Dismiss, filed on behalf of Defendants Edwards and Kovach is GRANTED in part and DENIED in part. The Motion is GRANTED with respect to Defendant Kovach and Plaintiff's Amended Complaint is dismissed as to Defendant Kovach. The Motion is DENIED with repsect to Defendant Edwards for the reasons herein, and Defendant shall file his Answer and Affirmative Defenses within TWENTY-ONE (21) DAYS from the date on this Order. The Clerk shall enter judgment as to Defendant Kovach and correct the caption of the action to reflect that this case remains pending as to only Defendant Edwards. Signed by Judge Charlene E. Honeywell on 11/21/2011. (BGS)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
GABRIEL KENON,
Plaintiff,
vs.
Case No.
CHRISTOPHER EDWARDS,
NURSE KOVACH,
Captain
2:10-cv-672-FtM-36SPC
and
Defendants.
________________________________
OPINION AND ORDER
This matter comes before the Court upon review of the Motion
to Dismiss (Doc. #46, Mot. Dismiss), filed on behalf of Defendants
Edwards and Kovach.
Plaintiff filed a response in opposition to
the Motion (Doc. #47, Response).
Defendants filed a Reply (Doc.
#53, Reply), after being granted leave from the Court. This matter
is ripe for review.
I. Status
Gabriel Kenon, a pro se plaintiff, initiated this action by
filing a Civil Rights Complaint Form (Doc. #1) pursuant to 42
U.S.C. § 1983 while incarcerated in the Florida Department of
Corrections.
See docket.
Upon review of the Complaint, the Court
directed Plaintiff to file an Amended Complaint (Doc. #3) and
Plaintiff complied (Doc. #10).
Plaintiff is proceeding on his
Amended Complaint (Doc. #10, hereinafter “Amended Complaint”),
filed December 14, 2010.
Plaintiff names Captain Costello Edwards and Nurse Kovach,
employees of Charlotte Correctional Institution, as Defendants.1
Complaint at 1.
Defendant
Plaintiff,
According to the Complaint, on September 1, 2010,
Edwards
who
applied
suffers
chemical
from
agents
asthma.
for
no
Plaintiff
reason
claims
on
that
Defendant Edwards then falsified a disciplinary report to justify
the use of chemical agents.
Amended Complaint at 7.
Plaintiff
alleges that Defendant Edwards knew Plaintiff had asthma.
Id.
Plaintiff further alleges that jail officials expunged the relevant
disciplinary report.
Plaintiff states that he suffered an asthma
attack because of the application of chemical agents and was given
“emergency treatment.”
Id. at 7-8.
With respect to Defendant Nurse Kovach, Plaintiff alleges that
Defendant Edwards contacted Defendant Kovach before using chemical
agents to see if Plaintiff had a medical condition that would
prohibit the use of agents.
Id. at 8.
Plaintiff claims that
despite Nurse Kovach knowing his medical condition, she “failed to
make a medical asses[s]ment of [his] condition to Captain Edwards.”
Id.
In other words, Plaintiff attributes liability on Defendant
Kovach for failing to advise Defendant Edwards of the risks
involved of spraying chemical agents on an asthmatic.
1
Id.
Plaintiff also named the Secretary for the Department of
Corrections as a Defendant.
See docket.
The Court sua sponte
dismissed the Secretary pursuant to section 1915A on March 10,
2011. See Doc. #24.
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As relief, Plaintiff seeks a reward of damages “sustained
through general negligence (culpable, wanton, gross, concurrent)
and libel in the total amount of two hundred thousand dollars
($200,000).”
Id. at 9.
Defendants move for dismissal based on Plaintiff’s failure to
exhaust his administrative remedies with respect to the claims
against
Nurse
Kovach.
Mot.
Dismiss
at
4.
Alternatively,
Defendants move to dismiss because negligence, lack of due care,
defamation, and slander are not actionable claims under § 1983.
Id. at 10-12.
For the reasons herein, the Court grants the
Defendants’ Motion in part, and denies the Motion in part.
II.
Exhaustion of Administrative Remedies
The Prison Litigation Reform Act, which amended The Civil
Rights of Institutionalized Persons Act, provides as follows:
(a) Applicability of administrative remedies.
No action shall be brought with respect to
prison conditions under section 1983 of this
title, or any other Federal law, by a prisoner
confined in any jail, prison, or other
correctional
facility
until
such
administrative remedies as are available are
exhausted.
42 U.S.C. § 1997e(a)(emphasis added).
available
federal
administrative
court.
remedies
Woodford
v.
A prisoner must exhaust all
before
Ngo,
548
filing
U.S.
an
81,
action
88
in
(2006);
Higginbottom v. Carter, 223 F.3d 1259, 1261 (11th Cir. 2000).
Although prisoners are not required to plead exhaustion, Jones v.
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Bock, 549 U.S. 199, 216 (2007), "[t]here is no question that
exhaustion is mandatory under the PLRA, and that unexhausted claims
cannot be brought in court."
Id. at 211.
In order to exhaust, the
inmate must comply with “all steps that the agency holds out, and
doing so properly (so that the agency addresses the issues on the
merits).”
Woodford, 548 U.S. at 90.
Whether an inmate has exhausted his available administrative
remedies is a factual issue that is properly made by the court.
Bryant v. Rich, 530 F.3d 1368, 1374 (11th Cir. 2008).
Thus,
“[e]ven though a failure -to-exhaust defense is non-jurisdictional,
it is like a defense for lack of jurisdiction in one important
sense:
Exhaustion
of
administrative
remedies
is
a
matter
in
abatement, and ordinarily does not deal with the merits.”
Id.
(footnote,
The
internal
quotations,
and
citations
omitted).
defense of exhaustion is properly raised in a motion to dismiss as
a “matter of judicial administration.”
Id. at 1375.
Thus, the
court is permitted to look beyond the pleadings to decide disputed
issues of fact in connection with the exhaustion defense.
Id. at
1377 n.16.
The Florida Department of Corrections has a detailed grievance
procedure in place.
Pursuant
to
the
See Fla. Admin. Code 33-103.001 et. seq.
Florida
Administrative
Code
Chapter,
33-103,
Plaintiff is required to exhaust all available administrative
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remedies before pursuing a civil rights action.
Specifically, the
Florida Department of Corrections provides a three-step grievance
procedure.
First, an inmate must normally file either an informal
grievance or formal grievance depending on the nature of his
complaint.
Fla. Admin. Code
33-103.005-.007.
Except in certain
circumstances, when an inmate files a formal grievance, he or she
must attach the informal grievance and the response received to the
informal grievance.
Id. at 33-103.006(2)(h).
If the inmate’s
issue is not resolved by utilizing the formal grievance at the
institutional level, the inmate must file an appeal to the Office
of the Secretary of the Florida Department of Corrections.
Id. at
33-103.007. Additionally, an inmate may bypass the filing of
informal and formal grievances by filing emergency grievances,
grievances of reprisal, and grievances of a sensitive nature
directly with the Office of the Secretary (referred to as “direct
grievances”).
Id. at 33-103.007(6).
Defendants submit that Plaintiff did not file any grievances
or appeals thereof concerning Defendant Kovach, or any nursing
staff, referencing the spraying incident on September 1.
Dismiss at 8.
Mot.
Defendants attach the Declaration of Kim Adams, a
correctional officer who is the Acting Grievance Coordinator at
Florida State Prison, and the Declaration of Rebecca Padgham, the
Management Analyst I for the Florida Department of Corrections,
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Bureau of Inmate Grievance Appeals in Tallahassee, Florida.
See Doc. #46-1 at 1-2, Decl. Kim Adams; Id. at 3-4, Decl. Rebecca
Padgham. Both DOC officials attest that Plaintiff did not file any
grievances concerning this incident against Defendant Kovach.
Id.
See
The DOC officials, however, concede that Plaintiff exhausted
his administrative remedies with respect to his claims against
Defendant Edwards.
Id.
In Response, Plaintiff disputes Defendants’ contentions that
he did not file any grievances regarding Defendant Kovach and
attaches a copy of a grievance dated September 2, 2010, addressed
to the “medical supervisor,” pertaining to Defendant Kovach’s
“disregard” for Plaintiff’s health because she authorized Defendant
Edwards to use chemical agents on him despite his asthma. Response
at 1; Pl’s Exh. A.
The response to the grievance is dated
September 2, 2010, and states that “[h]ealth services staff do not
make decisions in this area.
The use of chemical agents is
determined by security officers.”
Id.
With respect to any
additional grievances involving Defendant Kovach, Plaintiff claims
that his “subsequent grievances and appeals were not returned.”
Id.
In Reply, Defendants acknowledge that Plaintiff filed the one
grievance discussed supra, but maintain that Plaintiff did not
exhaust his claim because he did not file a formal grievance, or an
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appeal thereof.
Declarations
Reply at 1-3.
from
the
Acting
Defendants submit additional
Grievance
Coordinator
and
the
Management Analyst I who point out that Plaintiff’s informal
grievance would not have been located in their files because
Plaintiff did not file a formal grievance.
Second Decl. of Adams;
See Doc. #53-1 at 1-3,
Id. at 5-8, Second Decl. of Padgham.
The
informal grievance would have only been in their files if Plaintiff
had filed a formal grievance, or an appeal, and attached the
informal grievance.
Id.
Upon review, the Court finds that Plaintiff did not properly
exhaust his administrative remedies with respect to his claim
against Defendant Kovach.
The Declarations from the DOC officials
establish that Plaintiff did not pursue his administrative remedies
after filing an informal grievance on September 2, 2010.
In
particular, after receiving the denial of his informal grievance on
September 3, 2010, Plaintiff neither filed a formal grievance, nor
an appeal thereof in contradiction to Florida DOC’s exhaustion
requirements.
See Doc. #46-1, First Declaration Kim Adams; Id.
First Declaration Rebecca Padgham; Doc. #53-1, Second Declaration
Kim Adams; Id., Second Declaration Rebecca Padgham.
Although
Plaintiff claims he filed other grievances and appeals concerning
Defendant Kovach’s failure to advise Defendant Edwards not to use
chemical agents on Plaintiff because of his asthma, Plaintiff fails
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to present any evidence of these purported grievances in response
to Defendants’ Motion. Therefore, the Motion to Dismiss is granted
as to Defendant Kovach.
The Court will now turn to the claims
against Defendant Edwards.
III. Motion to Dismiss Standard
In deciding a Rule 12(b)(6) motion to dismiss, the Court
limits its consideration to well-pleaded factual allegations,
documents central to or referenced in the complaint, and matters
judicially noticed.
La Grasta v. First Union Sec., Inc., 358 F.3d
840, 845 (11th Cir. 2004). Thus, the Court must accept all factual
allegations in Plaintiff’s Complaint as true and take them in the
light most favorable to the plaintiff.
F.3d 1282, 1284 (11th Cir. 2008).
Pielage v. McConnell, 516
Conclusory allegations, however,
are not entitled to a presumption of truth.
Ashcroft v. Iqbal, 556
U.S. ___, 129 S. Ct. 1937, 1951 (2009)(discussing a 12(b)(6)
dismissal); Marsh v. Butler County, Ala., 268 F.3d 1014, 1036 n.16
(11th Cir. 2001).
The Court employs the Twombly-Iqbal plausibility standard when
reviewing a complaint subject to a motion to dismiss.
Scott, 610 F.3d 701, 708, fn. 2 (11th Cir. 2010).
Randall v.
A claim is
plausible where the plaintiff alleges facts that “allow[] the court
to draw the reasonable inference that the defendant is liable for
the misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. ____, 129 S.
-8-
Ct. 1937, 1949 (2009).
plaintiff
allege
The plausibility standard requires that a
sufficient
facts
“to
raise
a
reasonable
expectation that discovery will reveal evidence” that supports the
plaintiff’s claim.
556 (2007);
Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
Marsh, 268 F.3d at 1036 n.16.
Specifically, “[w]hile
a complaint attacked by a Rule 12(b)(6) motion to dismiss does not
need detailed factual allegations . . . a plaintiff’s obligation to
provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires
more than labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do.”
Id. at 555 (citations
omitted). Thus, “the-defendant-unlawfully harmed me accusation” is
insufficient.
Ashcroft, 129 S. Ct. at 1949. “Nor does a complaint
suffice if it tenders naked assertions devoid of further factual
enhancement.”
Id.
A complaint must satisfy the pleading requirements of Fed. R.
Civ. P. 8 by simply giving the defendant fair notice of what the
plaintiff’s claims are and the grounds upon which they rest.
Conley v. Gibson, 355 U.S. 41 (1957).
However, the “[f]actual
allegations must be enough to raise a right to relief above the
speculative level.”
See Twombly, 550 U.S. 544, 127 S. Ct. 1955,
1965, 1968-69 (citations omitted) (abrogating Conley, 355 U.S. 41
in part and stating that Conley did not set forth the minimum
standard
governing
a
complaint’s
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survival
under
a
motion
to
dismiss, rather the case “described the breadth of opportunity to
prove what an adequate complaint claims”).
Additionally, there is
no longer a heightened pleading requirement.
701.
Randall, 610 F.3d at
Because Plaintiff is proceeding pro se, his pleadings are
held to a less stringent standard than pleadings drafted by an
attorney and will be liberally construed. Hughes v. Lott, 350 F.3d
1157, 1160 (11th Cir. 2003) (citing Tannenbaum v. United States,
148 F.3d 1262, 1263 (11th Cir. 1998)).
Title 42 U.S.C. § 1983 imposes liability on anyone who, under
color of state law, deprives a person “of any rights, privileges,
or immunities secured by the Constitution and laws.”
To state a
claim under 42 U.S.C. § 1983, Plaintiff must allege: (1) Defendants
deprived
him
of
a
right
secured
under
the
United
States
Constitution or federal law, and (2) such deprivation occurred
under color of state law.
Arrington v. Cobb County, 139 F.3d 865,
872 (11th Cir. 1998); U.S. Steel, LLC v. Tieco, Inc., 261 F.3d
1275, 1288 (11th Cir. 2001).
and
establish
an
In addition, Plaintiff must allege
affirmative
causal
connection
between
the
defendant’s conduct and the constitutional deprivation. Marsh, 268
F.3d at 1059; Swint v. City of Wadley, 51 F.3d 988 (11th Cir.
1995); Tittle v. Jefferson County Comm’n, 10 F.3d 1535, 1541 n.1
(11th Cir. 1994).
A defendant who occupies a supervisory position
may not be held liable under a theory of respondeat superior in a
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§ 1983 action.
Monell v. Dep’t of Soc. Serv., 436 U.S. 658, 690-
692 (1978); Quinn v. Monroe County, 330 F.3d 1320, 1325 (11th Cir.
2003); Farrow v. West, 320 F.3d 1235 (11th Cir. 2003).
A.
Eighth Amendment
Indeed, the Eighth Amendment, which prohibits “cruel and
unusual punishment,” provides the constitutional framework for
Plaintiff’s claim.
It is the unnecessary and wanton infliction of
pain that constitutes cruel and unusual punishment.
McMillian, 503 U.S. 1, 5 (1992) (citations omitted).
the
Eighth
Amendment
in
the
context
of
prison
Hudson v.
In applying
discipline,
a
distinction is made between “punishment after the fact and immediate
coercive measures necessary to restore order and security.”
White, 813 F.2d 318, 324-25 (11th Cir. 1987).
With regard to the use of chemical agents:
It is generally recognized that “it is a
violation of the Eighth Amendment for prison
officials to use mace, tear gas or other
chemical agents in quantities greater than
necessary or for the sole purpose of infliction
of pain.” Soto v. Dickey, 744 F.2d 1260, 1270
(7th Cir. 1984), cert. denied, 470 U.S. 1085
(1985).
For this reason, we have closely
scrutinized the use of tear gas or mace (a
trade name for tear gas, Soto, 744 F.2d at
1261) in correctional facilities. See e.g.,
Bailey v. Turner, 736 F.2d 963 (4th Cir. 1984);
Greear v. Loving, 538 F.2d 578 (4th Cir. 1976).
This is because, even when properly used, such
weapons
“possess
inherently
dangerous
characteristics capable of causing serious and
perhaps irreparable injury to the victim.”
Slakan v. Porter, 737 F.2d 368, 372 (4th Cir.
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Ort v.
1984), cert. denied, 470 U.S. 1035 (1985).
Accordingly, although it is not per se
unconstitutional for guards to spray mace at
prisoners confined in their cells, it is
necessary to examine the “totality of the
circumstances, including the provocation, the
amount of gas used, and the purposes for which
the gas is used [to] determine[e] the validity
of the use of tear gas in the prison
environment.” Bailey, 736 F.2d at 969. See
also Justice v. Dennis, 834 F.2d 380, 383 (4th
Cir. 1987) (en banc), vacated on other grounds,
490 U.S. 1087 (1989).
However, mace can be constitutionally used in
small quantities to “prevent riots and escapes”
or to control a “recalcitrant inmate.” Landman
v. Peyton, 370 F.2d 135, 138 & n. 2 (4th Cir.
1966), cert. denied, 388 U.S. 920 (1967). See
also Bailey, 736 F.2d at 968-69.
A limited
application of mace may be “much more humane
and
effective
than
a
flesh
to
flesh
confrontation with an inmate.” Soto, 744 F.2d
at 1262. Moreover, prompt washing of the maced
area of the body will usually provide immediate
relief from pain. Id.
Williams v. Benjamin, 77 F.3d 756, 763 (4th Cir. 1996).
is
“the
imposition
of
pain
totally
without
Thus, it
penological
justification” that is proscribed by the Eighth Amendment.
Evans
v. Dugger, 908 F.2d 801, 803 (11th Cir. 1990) (citations omitted).
See also Ort v. White, 813 F.2d 318; Rhodes v. Chapman, 452 U.S.
337, 346 (1981).
Liberally construing the pro se Amended Complaint, the Court
finds, at this stage of the proceedings, that the action contains
sufficient facts to set forth an Eighth Amendment claim.
See
Amended Complaint at 7 (“my eighth amendment (8th) of the U.S.
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Constitution was violated when Costelo Edwards used unlawful and
unjustifiable violence against my person resulting in cruel and
unusual punishment. [sic] In addition to aggravated battery against
my person in the absence of justification”).
Accepting the facts in the Amended Complaint as true, Plaintiff
claims Defendant Edwards applied chemical agents to him, knowing he
has asthma, when Plaintiff was doing absolutely nothing wrong.
As
a result of the application of chemical agents, Plaintiff suffered
a serious asthma attack that required emergency treatment and
burning of his eyes and skin.
Plaintiff further claims that
Defendant Edwards issued him a “false” disciplinary report to
justify the use of chemical agents.
overturned due to technical errors.
This disciplinary report was
Amended Complaint at 5.
Thus,
the Amended Complaint states an Eighth Amendment claim and must be
allowed to develop during the course of discovery.
Plaintiff should note, however, to the extent he references the
terms “negligence” and “libel” in his relief requested section of
the Complaint form, these claims do not amount to a cause of action
under 42 U.S.C. § 1983.
See Daniels v. Williams, 474 U.S. 327, 328
(1986)(stating plaintiff must allege more than negligence to state
a
cause
of
action
under
section
1983);
see
also
Charles
v.
Scarberry, 340 F. App’x 597, 599-600 (11th Cir. 2009)(citations
omitted)(stating “claims of libel and slander do not state a
violation of federal law and are not cognizable in a section 1983
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action).
pendent
Although it is unclear whether Plaintiff intends to raise
state
law
claims,
liberally
construing
the
Amended
Complaint, the Court will construe the Amended Complaint to also
contain pendent State law claims for battery, negligence, and libel.
See Amended Complaint at 7 (“In addition . . . aggravated battery
against my person in the absence of justification.”)(emphasis
added).
ACCORDINGLY, it is hereby
ORDERED:
1. The Motion to Dismiss (Doc. #46), filed on behalf of
Defendants Edwards and Kovach is GRANTED in part and DENIED in
part.
2. The Motion is GRANTED with respect to Defendant Kovach and
Plaintiff’s Amended Complaint is dismissed as to Defendant Kovach.
3.
the
The Motion is DENIED with respect to Defendant Edwards for
reasons
herein,
and
Defendant
shall
file
his
Answer
and
Affirmative Defenses within twenty-one (21) days from the date on
this Order.
4.
The Clerk shall enter judgment as to Defendant Kovach and
correct the caption of the action to reflect that this case remains
pending as to only Defendant Edwards.
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DONE AND ORDERED at Fort Myers, Florida, on this 21st day of
November, 2011.
SA: alj
Copies: All Parties of Record
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