Whitehead v. Sheldon et al

Filing 66

OPINION AND ORDER granting 45 motion to dismiss and all claims against defendant Garrido are dismissed without prejudice for failure to state a claim. The Clerk shall enter judgment in favor of Garrido and terminate this defendant. Signed by Judge John E. Steele on 12/11/2013. (RKR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
BRUCE WHITEHEAD,
Plaintiff,
v.

Case No:

2:12-cv-197-FtM-29DNF

ANGEL GARRIDO, JACQUES LAMOUR,
HUBERT SMART, HOWARD EASTER and
E. WALKER,
Defendants.
/
OPINION AND ORDER
This matter comes before the Court upon review of Defendant
Dr.

Angel

Garrido’s

motion

to

dismiss

Plaintiff's

complaint (Doc. 45, filed September 24, 2013).

amended

Plaintiff Bruce

Whitehead (“Plaintiff”) initiated this action by filing a civil
rights complaint pursuant to 42 U.S.C. § 1983 (Doc. 1).1

1

Due to

Plaintiff is civilly detained at the Florida Civil Commitment
Center (“FCCC”) pursuant to Florida’s Involuntary Civil Commitment
of Sexually Violent Predator’s Act and is proceeding pro se. The
Florida legislature enacted the Sexually Violent Predators Act,
Fla. Stat. §§ 394.910-.913, by which a person determined to be a
sexually violent predator is required to be housed in a secure
facility “for control, care, and treatment until such time as the
person’s mental abnormality or personality disorder has so changed
that it is safe for the person to be at large.” Fla. Stat. §
394.917(2).
The Act was promulgated for the dual purpose “of
providing mental health treatment to sexually violent predators
and protecting the public from these individuals.” Westerheide v.
State, 831 So. 2d 93, 112 (Fla. 2002); Kansas v. Hendricks, 521
U.S. 346 (1997) (holding that the Kansas Sexually Violent Predator
Act did not establish criminal proceedings, and involuntary
confinement pursuant to the Act was not punitive). Civil
commitment under the Act involves several steps.
First, the Act
requires a mental evaluation of any person who has committed a

numerous
ordered

pleading
to

file

deficiencies
an

amended

in

his

complaint

complaint,
(Doc.

Plaintiff

14).

was

Plaintiff's

amended complaint is currently before the Court (Doc. 17).
In
Defendant

his

motion

Garrido

to

dismiss

asserts

Plaintiff’s

that

Plaintiff's

amended
scant

complaint,
allegations

against him do not state an Eighth Amendment violation (Doc. 45 at
5).

Plaintiff filed a response to the motion to dismiss (Doc.

56). The motion is now ripe for review.
For the reasons set forth in this Order, Defendant Garrido’s
motion to dismiss is GRANTED.
I.

Complaint
In his amended complaint, Plaintiff sues defendants Dr. Angel

Garrido, Dr. Jacques Lamour, Hubert Smart, Howard Easter, and Earl
Walker (Doc. 17).

All of Plaintiff's allegations in his amended

sexually violent offense and is scheduled for release from prison
or involuntary confinement.
See Fla. Stat. § 394.913.
The
evaluation is conducted by a multi-disciplinary team of mental
health professionals who must determine whether the individual
meets the definition of a “sexually violent predator.” After the
evaluation, the state attorney may file a petition with the
circuit court alleging that the individual is a sexually violent
predator subject to civil commitment under the Act. Id. If the
judge determines the existence of probable cause that the
individual is a sexually violent predator, then he or she will
order the individual to remain in custody.
Id. at § 394.915.
Thereafter, a jury trial, or a bench trial if neither party
requests a jury trial, will commence. Id. If the jury finds the
individual to be a sexually violent predator by clear and
convincing evidence, then the individual will be committed to the
custody of the Department of Children and Family Services for
“control, care, and treatment until such time as the person’s
mental abnormality or personality disorder has so changed that it
is safe for the person to be at large.” Id. at § 394.917.
2

complaint involve events that occurred on, or around, March 12,
2009.
action

Specifically, Plaintiff asserts that each defendant in this
knew,

“or

should

have

known

by

review

of

Plaintiff's

Clinical File” that he suffers from Post-Traumatic Stress Disorder
and Borderline Personality Disorder (Doc. 17 at ¶ 3).

Plaintiff

alleges that on March 12, 2009, he was on suicide watch status
which

involved

Plaintiff

confinement

asserts

that

in

his

an

8.5

foot

psychiatrist,

by

5.5

foot

Defendant

cell.

Garrido,

ordered that Plaintiff was allowed to leave the cell for bathroom
breaks only, and then only when escorted by three security guards
(Doc. 17 at ¶ 4; Doc. 17-4 at 2, 3).
On March 12, 2009, Plaintiff told Defendant Walker that he
needed

to

restroom

use

by

the

restroom.

Defendant

Walker,

Smart (Doc. 17 at ¶ 5).

Plaintiff
Defendant

was

escorted

Easter,

and

to

the

Defendant

While in the restroom, Plaintiff broke a

towel rack from the wall, smashed a glass mirror, held a portion
of the broken mirror to his throat, and threatened to cut himself
if not taken outside for fresh air and a smoking break (Doc. 17 at
¶

5).

Plaintiff

was

escorted

outside,

and

after

smoking

approximately half a cigarette, he dropped the broken mirror to
the

sidewalk

(Doc.

17

at

¶

5).

Defendant

Smart

approached

Plaintiff who “assertively requested Defendant Smart to respect
him and that he be given his personal space.” (Doc. 17 at 8).
Defendants Smart and Easter then walked towards Plaintiff “in an
3

aggressive and threatening manner.” (Doc. 18 at ¶ 6).

Plaintiff

ran away and was pursued by Defendants Smart and Easter (Doc. 17
at ¶ 6).

Defendants Smart and Easter forcibly subdued Plaintiff

which resulted in a fracture to Plaintiff's right hip (Doc. 17 at ¶
7). No medical personnel were called to assist or to evaluate
Plaintiff at that time (Doc. 17 at ¶ 7).
Subsequent

to

his

altercation

with

Defendants

Smart

and

Easter, Defendant Lamour examined Plaintiff and ordered that he be
taken to a hospital (Doc. 17 at ¶ 9).

He was taken to DeSoto

Memorial Hospital on the same day (March 12, 2009) (Doc. 17 at ¶
11).

At the hospital, Plaintiff's right hip was x-rayed, and he

was told that the only injuries he had received were bruises (Doc.
17 at ¶ 11).

The next morning, Plaintiff was returned to his

suicide watch isolation cell (Doc. 17 at ¶ 12).

On either March

12, 2009 or March 13, 2009, Desoto Memorial Hospital contacted the
FCCC to advise of an “acute fracture of the right Ischium and
likely the Acetabulum of the Plaintiff's right hip.” (Doc. 17 at
13).

Defendant Lamour “did not seek emergency medical care until

the evening of March 14, 2009[.]” (Doc. 17 at 13).

Plaintiff was

admitted to the Tampa General Hospital the next day (Doc. 17 at
13).
Plaintiff seeks compensatory damages of $100,000 from each
defendant and punitive damages “in amounts to be proven at trial.”
(Doc. 1 at 11).
4

Defendant

Garrido

seeks

dismissal

of

this

claim

on

the

grounds that the only allegations against him are that Plaintiff
was assigned to suicide watch by Defendant Garrido and that the
conditions in the cell were poor (Doc. 45 at 7).
II.

Legal Standards
a.

Standard of Review

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).

The Court must accept all factual

allegations in Plaintiff’s amended complaint as true and take them
in

the

light

McConnell,

516

most
F.3d

favorable
1282,

to

1284

the

(11th

plaintiff.
Cir.

2008).

Pielage

v.

Conclusory

allegations, however, are not entitled to a presumption of truth.
Ashcroft v. Iqbal, 556 U.S. 662 (2009) (discussing a Rule 12(b)(6)
dismissal); Marsh v. Butler County, Ala., 268 F.3d 1014, 1036 n.16
(11th Cir. 2001).
The
when

Court

reviewing

employs
a

the

complaint

Twombly-Iqbal
subject

to

plausibility
a

motion

to

standard
dismiss.

Randall v. Scott, 610 F.3d 701, 708, n.2 (11th Cir. 2010).

A

claim is plausible if the plaintiff alleges facts that “allow[]
the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.”
5

Iqbal, 556 U.S. at 678.

The

plausibility standard requires that a plaintiff allege sufficient
facts

“to

reveal

raise

evidence”

a

reasonable

that

expectation

supports

the

that

discovery

plaintiff’s

claim.

will
Bell

Atlantic Corp. v. Twombly, 550 U.S. 544 556 (2007); Marsh, 268
F.3d

at

1036

n.16.

Thus,

“the-defendant-unlawfully

accusation” is insufficient.

Iqbal, 556 U.S. 662, 677.

a

tenders

complaint

further

suffice

factual

omitted).

if

it

enhancement.”

naked
Id.

assertions

(internal

harmed

me

“Nor does
devoid

of

modifications

Further, courts are not "bound to accept as true a

legal conclusion couched as a factual allegation."

Papasan v.

Allain, 478 U.S. 265, 286 (1986).
In making the above determinations under Rule 12(b)(6) or 28
U.S.C. § 1915(g), all factual allegations in the complaint must be
viewed as true. Brown v. Johnson, 387 F.3d 1344, 47 (11th Cir.
2004).

Moreover,

the

Court

must

read

the

plaintiff’s

pro

se

allegations in a liberal fashion. Haines v. Kerner, 404 U.S. 519
(1972).
b.

Deliberate Indifference

Title

42

U.S.C.

§

1983

imposes

liability

on

anyone

who,

acting 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 § 1983, Plaintiff must allege that: (1) the
defendants deprived him of a right secured under the United States
Constitution or federal law; and (2) such deprivation occurred
6

under color of state law.

Arrington v. Cobb County, 139 F.3d 865,

872 (11th Cir. 1998).
The Eighth Amendment’s prohibition against cruel and unusual
punishment

extends

beyond

physically

barbarous

punishment

and

includes inhumane conditions of confinement. See Ort v. White, 813
F.2d 318, 321 (11th Cir. 1987). There are two essential components
to an Eighth Amendment claim brought against an individual: one
objective, the other subjective. Helling v. McKinney, 509 U.S. 25,
35 (1993).

First, the alleged deprivation must be objectively

serious. Farmer v. Brennan, 511 U.S. 825, 834 (1994). The second,
subjective component of the analysis requires that the caretaker
must have had a sufficiently culpable state of mind at the time of
the alleged violation. Id. In conditions of confinement cases like
this one, the required state of mind is “deliberate indifference”
to inmate health or safety. Id.
In

defining

deliberate

indifference

in

this

context,

the

Supreme Court has determined that “a prison official may be held
liable under the Eighth Amendment for denying humane conditions of
confinement only if he knows that inmates face a substantial risk
of

serious

reasonable

harm

and

measures

disregards

to

abate

that

it.”

risk

Farmer,

by

failing

511

U.S.

at

to

take

847.

A

plaintiff must also prove that a defendant's disregard of the risk
is more than mere negligence. Brown v. Johnson, 387 F.3d 1344,
1351 (11th Cir. 2004).
7

III.

Analysis
Plaintiff appears to attribute liability to Defendant Garrido

based upon Garrido’s decision to assign Plaintiff to a suicidewatch isolation cell.

In his reply to the motion to dismiss,

Plaintiff asserts that the cell was a “windowless supply closet
which was make-shift converted into a dry cell devoid of toilet
and sink and running water.” (Doc. 56 at 3).
was

placed

in

the

cell

for

two

weeks

or

He asserts that he
longer

and

that

he

suffered humiliation because the lack of bathroom breaks caused
him to “urinate and [defecate] upon himself and the floor,” and
the conditions worsened his mental state (Doc. 56 at 4).2
A review of the documents attached to Plaintiff's complaint
indicate that Plaintiff was placed on suicide watch because he
threatened self-injury and because he swallowed an unknown object,
which Plaintiff told prison officials was a razor blade (Doc. 1-6
at 6, 16). See Grossman v. NationsBank, N.A., 225 F.3d 1228, 1231
(11th Cir. 2000) (a court may consider “the pleadings and exhibits
attached thereto” when ruling on a motion to dismiss); Gross v.
White, 340 F. App’x 527, 534 (11th Cir. 2009) (“A district court
ruling

on

documents

2

a

motion

that

the

to

dismiss

plaintiff

is

not

himself

required

filed

with

to
his

disregard
original

The exhibits submitted with Plaintiff's complaint indicate that
Defendant Garrido ordered that Plaintiff have bathroom breaks with
security only (Doc. 17-4 at 2, 3, 4, 5, 9, 10). The exhibits also
indicate that Plaintiff was offered bathroom breaks but refused to
go (Doc. 17-4 at 4).
8

complaint.”); Crenshaw v. Lister, 556 F.3d 1283, 1292 (11th Cir.
2009) (when the exhibits contradict the allegations of a pleading,
the exhibits govern).
Plaintiff has not raised a genuine issue of material fact
that Defendant Garrido’s classification of Plaintiff as suicidal,
either initially or through his periodic reviews, constituted an
Eighth Amendment violation. See Hewitt v. Helms, 459 U.S. 460, 466
(1983)

(no

population

liberty
rather

interest
than

in

in

being

the

more

confined

in

restrictive

the

general

atmosphere

of

administrative confinement); Jones v. Diamond, 594 F.2d 997, 1015
(5th Cir. 1979) (no right exists under the due process clause to a
system of prisoner classification).
Likewise, Plaintiff has not stated a claim in his amended
complaint that the conditions in the suicide watch cell rose to
the level of an Eighth Amendment violation.
the

conditions

in

the

small

cell

While Plaintiff found

uncomfortable,

they

do

not

suggest that Plaintiff was subjected to the unnecessary and wanton
infliction of pain, even at a de minimis level, that would support
an Eighth Amendment violation. Plaintiff's placement and treatment
in

the

suicide

observation

cell

does

not

amount

to

cruel

and

unusual punishment, even if such actions were not for a legitimate
purpose.
material

The

Court

fact

unconstitutional

as

finds
to

that

there

Plaintiff's

conditions

of

are

no

Eighth

confinement
9

genuine

Amendment
arising

issues

of

claim

of

from

his

placement in a suicide watch isolation cell, and the claim fails
as a matter of law.
Plaintiff also asserts that Defendant Garrido is liable for a
delay in medical treatment for his fractured hip (Doc. 17 at 10).
The Eleventh Circuit has recognized that “an official acts with
deliberate indifference when he or she knows that an inmate is in
serious need of medical care, but he fails or refuses to obtain
medical treatment for the inmate.” Lancaster v. Monroe County,
Ala., 116 F.3d 1419, 1425 (11th Cir. 1997); Mandel v. Doe, 888
F.2d 783, 788 (11th Cir. 1989) (“knowledge of the need for medical
care

and

intentional

refusal

deliberate indifference”).
the

Court

will

assume

to

provide

that

care

constitute

For the purposes of this Order only,

that

the

one-day

lapse

between

DeSoto

Memorial Hospital’s alert to the FCCC that Plaintiff had suffered
a

fracture

treatment

and

Dr.

actually

Lamour’s

was

a

provision

delay.

of

However,

emergency
Plaintiff

medical
does

not

allege that Defendant Garrido was aware of the tardy fracture
diagnosis from DeSoto Memorial Hospital or that he was in any way
responsible

for

providing

medical

care,

other

than

psychiatric

care, to Plaintiff.

Because Plaintiff has not shown a causal

relationship

Defendant

treatment,

between
his

claims

Garrido

against

and

Defendant

the

Garrido

delay
for

in

his

delayed

treatment are dismissed for failure to state a claim upon which
relief may be granted
10

IV.

Conclusion
Accordingly, it is hereby ORDERED:
1.

GRANTED.

Defendant Angel Garrido’s motion to dismiss (Doc. 45) is
All

claims

against

Defendant

Garrido

are

dismissed

without prejudice for failure to state a claim upon which relief
may be granted; and
2.

The

Clerk

of

Court

is

directed

to

terminate

this

Defendant from this action and to enter judgment in his favor.
DONE and ORDERED in Fort Myers, Florida, this
December, 2013.

SA: OrlP-4 12/11/13
Copies to: All parties of record

11

11th

day of