Romano v. Rambosk

Filing 132

OPINION AND ORDER dismissing without prejudice as moot plaintiff's claims for injunctive and declaratory relief (Counts I - IV); granting in part and denying in part 114 Motion to Dismiss for Failure to State a Claim or in the alternative Mot ion for summary judgment; denying 115 Motion to Dismiss for Failure to State a Claim or alternative Motion for summary judgment; granting 119 motion to dismiss; granting 122 Motion to Dismiss for Failure to State a Claim. Plaintiff has 14 d ays to file a Third Amended Complaint. If plaintiff does not do so, the remaining defendants shall file answers within 21 days of the expiration of the 14 day period. See Opinion and Order for details. Signed by Judge John E. Steele on 1/9/2014. (RKR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
TONY ROMANO,
Plaintiff,
v.

Case No:

2:12-cv-313-Ftm-29UAM

KEVIN J. RAMBOSK, RICHARD P.
GIBBONS, PRISON HEALTH
SERVICES, INC., CORIZON HEALTH,
INC., INDIANA CRUZ, MARYAM
NABAVI, JANNETTE VALENTINE,
MARCIA ECKLOFF, PRISCILLA
UPTON, TRINITY SERVICES GROUP,
INC., TOM BOWMAN, SANDRA
STERNAL, RICHARD DANIELS, DAVID
DELLINGER, ALAN CROOKS, BETH
RICHARDS, KEVIN MCGOWAN,
PATRICIA GIFFORD, LYNNI
O’HAVER, NELSON P. RAY, NINO
ARMINO, VIRGINIA WILSON and
ELIZABETH ALFIERI,
Defendants.
/
OPINION AND ORDER
This matter comes before the Court upon review of the following:
Motion to Dismiss Plaintiff's Second Amended
Complaint or Alternative Motion for Summary
Judgment filed by Defendants Thomas Bowman and
Sandra Sternal (Doc. 114, filed August 8, 2013);
Motion to Dismiss Plaintiff's Second Amended
Complaint or Alternative Motion for Summary
Judgment filed by Defendant Trinity Services
Group (Doc. 115, filed August 1, 2013);
Motion to Dismiss Plaintiff's Second Amended
Complaint by Defendants Corizon Health, Inc.,
Indiana Cruz, Maryam Nabavi, Janette Valentin,
Marcia Eckloff, Priscilla Upton, and Elizaeth
Alfieri (Doc. 119, filed August 8, 2013); and

Motion to Dismiss Counts V, VI, VII, VIII, IX,
X, XI, XII, XIII, XIV, and XV of Plaintiff's
Second Amended Complaint by Defendants Nino
Armino, Alan Crooks, Richard Daniels, David
Dellinger, Richard P. Gibbons, Patricia Gifford,
Kevin McGowan, Lynni O’Haver, Nelson P. Ray,
Beth Richards, Virginia Wilson (Doc. 122, filed
August 8, 2013).
Plaintiff has filed a response to each of the motions to
dismiss, and the motions are ripe for review (Doc. 127; Doc. 128;
Doc. 129, Doc. 130, filed September 9, 2013).
For the reasons set forth in this Order, the motion to dismiss
filed by Defendants Corizon Health, Inc., Indiana Cruz, Maryam
Nabavi,
Elizaeth

Janette
Alfieri

Defendants

Nino

Valentin,
is

Marcia

granted;

Armino,

Alan

the

Eckloff,
motion

Crooks,

Priscilla
to

dismiss

Richard

Upton,
filed

Daniels,

and
by

David

Dellinger, Richard P. Gibbons, Patricia Gifford, Kevin McGowan,
Lynni O’Haver, Nelson P. Ray, Beth Richards, Virginia Wilson is
granted; the motion to dismiss or alternative motion for summary
judgment filed by Defendants Thomas Bowman and Sandra Sternal is
granted in part and denied in part; and the motion to dismiss or
alternative motion for summary judgment filed by Defendant Trinity
Group, Inc. is denied. Plaintiff may file a third amended complaint.
I.

Background

The allegations in Plaintiff's second amended complaint concern
conditions at the Collier County Jail from September 30, 2011 until
July 28, 2012 and from January 3, 2013 until July 19, 2013, the date
on which Plaintiff filed his second amended complaint (Doc. 113 at
2

¶¶ 13, 19).1 Plaintiff asserts that he suffers from intermittent
quadriplegia and permanent paraplegia (Doc. 113 at ¶ 12).

As a

result of his condition, Plaintiff cannot urinate normally and must
use a catheter or stent for elimination.
have

normal

bowel

prescribed diet.
for

short

movements,

Plaintiff

Id. at ¶¶ 12, 24.

ambulation

and

ambulation. Id. at ¶ 15.

an

Id. at ¶ 12.
must

eat

In order to
a

medically

Plaintiff uses long leg braces

electric

wheelchair

for

longer

During the material times, Plaintiff

suffered from carpal tunnel disorder in both wrists which proscribed
the use of a manual wheelchair for ambulation.

Id. at ¶ 16.

The cells in which Plaintiff was housed at the Collier County
Jail lacked the necessary modifications to accommodate Plaintiff's

1

The Court takes judicial notice that Plaintiff was transferred from
the Collier County Jail to state prison on, or about December 6,
2013. See
http://www.dc.state.fl.us/ActiveInmates/detail.asp?Bookmark=1&From=list&SessionID=2215606
51 and http://www2.colliersheriff.org/arrestsearch/Person.aspx?pin=0000739084.

It is not clear from the second amended complaint whether
Plaintiff was a pre-trial detainee while incarcerated at the Collier
County Jail. Whether Plaintiff had been convicted at the time of
the alleged unconstitutional acts by the defendants or whether he
was a pre-trial detainee makes no difference. The Eighth Amendment
applies to convicted inmates, not pretrial detainees. A pretrial
detainee's “constitutional rights arise not from the Eighth
Amendment, but from the Due Process Clause of the Fourteenth
Amendment.” Hale v. Tallapoosa County, 50 F.3d 1579, 1582 n.4 (11th
Cir. 1995). Whether or not the Court treats Plaintiff as a pretrial
detainee or a convicted prisoner makes no difference, however,
because “the standard for providing basic human needs to those
incarcerated or in detention is the same under both the Eighth and
Fourteenth Amendments.” Marsh v. Butler County, 268 F.3d 1014, 1024
n.5 (11th Cir. 2001). This analysis therefore refers only to the
Eighth Amendment. See Purcell v. Toombs County, 400 F.3d 1313, 1318
n.13 (11th Cir. 2005).
3

disabilities (Doc. 113 at ¶ 19).

Specifically, the cells lacked

sufficient room to turn Plaintiff's wheelchair and did not have
transfer mechanisms to allow Plaintiff to safely move between the
bed, toilet, and sink.

Id. at ¶ 19.

Plaintiff's cells also lacked

adequate access to water, soap, and means to clean himself after
urinating through the use of a catheter and after defecating.

Id.

at ¶¶ 1, 299. Because of the lack of accommodation, Plaintiff is
often left with feces and urine on his hands with no way to avoid
contaminating his wheelchair and clothing.

Id. at ¶ 29.

Defendants

refused to provide Plaintiff with an electric wheelchair and required
Plaintiff to use a manual wheelchair to ambulate.

Id. at ¶ 20.

Plaintiff has not been provided with an adequate number of
stents or latex gloves to maintain healthy sterile procedures during
urination and defecation (Doc. 113 at ¶ 29). Defendants refused to
provide Plaintiff with an appropriate brace for short movements and
transfers. Id. at ¶ 29.
Plaintiff filed numerous grievances regarding the lack of ADA
accommodations at the Collier County Jail (Doc. 113 at ¶ 21).

In

response to the grievances, Plaintiff was subjected to discipline in
the form of restraints, administrative confinements, the denial of
medically

necessary

supplies,

the

denial

of

access

facilities, and the denial of an electric wheelchair.
32.

4

to

shower

Id. at ¶¶ 23,

Plaintiff
medically

asserts

required

that

dietary

the
needs

violations (Doc. 113 at ¶ 27).

defendants
and

failed

refused

to

to

meet

his

correct

the

Plaintiff was served meals that did

not comply with his established dietary requirements, and he received
meals

that

directly

prescriptions.
take

meals

conflicted

with

his

medical

orders

and

Id. at ¶ 35. In addition, Plaintiff was forced to

in

the

jail

cafeteria

which

caused

Plaintiff

to

periodically miss breakfast because Plaintiff could not properly
clean himself to be in a presentable state for cafeteria meals.
at ¶ 34.

Id.

In addition, the cafeteria did not allow Plaintiff to take

his meals while in his wheelchair.

Id. at ¶ 34.

Plaintiff asserts that as a result of the “current policies and
operations, as operated by the Collier County Sheriff’s Office,
Plaintiff has no reasonable means of equal access to the jail
facilities, programs, and interaction with other inmates.”2 (Doc.
113 at ¶¶ 42, 44, 51, 58, and 59).
Plaintiff
Eckloff,

asserts

Upton,

and

that
Alfieri

Defendants

Cruz,

(collectively

Nabavi,

“individual

Valentin,
medical

defendants”) violated his constitutional rights under the Eighth and
Fourteenth Amendments against cruel and unusual punishment (Doc. 113
at 22-26). He also raises negligence claims against these defendants

2

Although not entirely clear, the second amended complaint appears
to suggest that the Collier County Sheriff’s Department has violated
the ADA by restricting the use of Plaintiff's electric wheelchair
and that this restriction resulted in cruel and unusual punishment
under 42 U.S.C. § 1983.
5

and against Corizon Health Services, Inc. and alleges that “Corizon
and its employees owed a duty of care to Plaintiff to provide
reasonable care and services to inmates and to Plaintiff while he
was incarcerated and under the supervision, care, custody, and
control of the Collier County Sheriff’s Office.” (Doc. 113 at ¶ 143).
Specifically,

Plaintiff

asserts

that

Corizon

and

its

Employees

failed to provide adequate medical devices to Plaintiff; failed to
provide sterile stents and latex gloves and cleansing produces with
appropriate instructions to accommodate Plaintiff's serious medical
needs;

and

failed

to

provide

adequate

clothing

Plaintiff's known medical needs and disability.

in

light

of

Id. at ¶ 144.

Plaintiff asserts that Defendants Crooks, Dellinger, Daniels,
Wilson,

Armino,

McGowan

Ray,

O’Haver,

(collectively

Gibbons,

“deputy

Gifford,

defendants”)

Richards,
violated

and
his

constitutional rights under the Eighth and Fourteenth Amendments
against cruel and unusual punishment (Doc. 113 at ¶¶ 71, 74, 77, 80,
83, 86, 89, 92, 94, 98, and 101).
As a result of the foregoing, Plaintiff claims that he has
suffered from:

(a) re-injury and exacerbation of bilateral carpel

tunnel syndrome; (2) repeated urinary tract infections, fever, and
pain; (3) kidney infection; (4) e. coli infection; (5) physical and
emotional

pain

and

suffering;

(5)

repeated

bouts

of

severe

constipation; (6) lack of access to points of service throughout the

6

Collier County Jail; (7) bed sores; and (8) missed meals due to lack
of ADA compliance (Doc. 113 at ¶ 37).
Plaintiff

seeks

from

each

individual

medical

defendant

a

declaration that Plaintiff's constitutional rights under the Fourth,
Eighth, and Fourteenth Amendments to the Constitution were violated;
compensatory

damages;

punitive

damages;

litigation expenses (Doc. 113 at 22-26).

and

costs,

fees,

and

As to his negligence

claims, Plaintiff seeks a declaration that Prison Health Services
and

its

employees

breached

the

duty

of

care

to

Plaintiff;

a

declaration that the defendants’ breach of duty was also a violation
of Plaintiff's constitutional rights and rights secured under the
Americans with Disabilities Act; compensatory damages; punitive
damages; and costs, fees, and litigation expenses (Doc. 113 at 31).
Plaintiff seeks from each deputy defendant a declaration that
Plaintiff's constitutional rights under the Fourth, Eighth, and
Fourteenth

Amendments

compensatory

damages;

to

the

punitive

Constitution
damages;

and

were
costs,

violated;
fees,

and

litigation expenses (Doc. 113 at 15-22).
The medical defendants seek dismissal of the claims against
them on the grounds that the second amended complaint violates Rule
Eight of the Federal Rules of Civil Procedure (Doc. 119 at 2).
Specifically,

the

medical

defendants

assert

that

other

than

identifying each medical defendant, “[n]othing else in the Complaint
specifically identifies the conduct asserted to be unlawful or the
7

individual or individuals responsible for that conduct.

Instead,

the Complaint is merely a hodgepodge of alleged wrongdoing without
any focus.” (Doc. 119 at 3).

Accordingly, the medical defendants

seek dismissal of Counts XVI – XXI of Plaintiff's second amended
complaint.

The medical defendants also assert that Plaintiff has

failed to comply with Florida’s Medical Malpractice Act which sets
out a “complex presuit investigation procedure that both the claimant
and defendant must follow before a medical negligence claim may be
brought in court.” (Doc. 119 at 4) (quoting Kukral v. Mekras, 679
So. 2d 278, 280 (Fla. 1996)).

As such, the medical defendants

request that this Court dismiss Counts XVI and XVII of the second
amended complaint which attempt to assert medical negligence claims.
Id.
The deputy defendants seek dismissal of Counts V through XV of
Plaintiff's second amended complaint on the ground that “Plaintiff's
Second

Amended

Complaint

is

devoid

of

any

factual

allegations

describing the alleged conduct or misconduct of each of these
individual

deputies,

that

supposedly

violated

the

Plaintiff's

constitutional rights to be free from cruel and unusual punishment.”
(Doc.

122

at

6-7).

Accordingly,

argue

these

defendants,

the

individual deputies are not “on notice as to what exactly is it that
they did or did not do, that led to the alleged violation of
Plaintiff's constitutional rights.”

8

Id. at 7.

Defendants Thomas Bowman and Sandra Sternal seek dismissal of
Plaintiff's counts against them on the grounds that: (1) any claim
for injunctive relief is misdirected because “they are not prison
administrators

or

medical

providers

and

lack

the

requisite

discretion and authority to prescribe or alter inmate diets and have
no involvement or input with establishing CCJ food service policy
(Doc. 114 at 5); (2) Plaintiff has failed to alleged that he suffered
more than de minimis injury, and as a result, his claims for monetary
damages are barred by 42 U.S.C. § 1997e(e); (3) Plaintiff's claims
are improperly based upon a theory of respondeat superior; (4)
neither Bowman nor Sternal participated in, or acquiesced in any
conduct

that

purportedly

caused

the

alleged

deprivations;

(5)

Plaintiff's substantive allegations regarding his diet do not give
rise to a constitutional violation; and (6) Plaintiff's retaliation
claims

against

Bowman

fail

because

Plaintiff

is

incapable

of

demonstrating that Bowman’s allegedly retaliatory refusal to provide
Plaintiff

with

the

specific

dietary

accommodation

he

demanded

actually deterred Plaintiff from filing grievances (Doc. 114 at 422).

Bowman and Sternal also argue that punitive damages are not

warranted

against

them

because

they

endeavored

to

ensure

that

Plaintiff received the correct diet and they lacked the requisite
authority to modify Plaintiff's diet.

Id. at 24.

Finally, Bowman

and Sternal assert that they are entitled to qualified immunity.
Id. at 24-25.

Plaintiffs Bowman and Sternal have attached to their
9

motion to dismiss affidavits from both Bowman and Sternal, copies of
the medically prescribed diet they provided to Plaintiff and, several
hundred

pages

of

grievances

filed

by

Plaintiff

regarding

the

condition and/or constitution of his food (Doc. 116; Doc. 117; Doc.
118).
II.

Legal Standards
a.

Standard of review for a motion to dismiss

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 second amended complaint as true and take them in the
light most favorable to the plaintiff. Pielage v. McConnell, 516
F.3d 1282, 1284 (11th Cir. 2008).

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 Court employs the Twombly-Iqbal plausibility standard when
reviewing a complaint subject to a motion to dismiss.
Scott, 610 F.3d 701, 708 n.2 (11th Cir. 2010).

Randall v.

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.”

Iqbal, 556 U.S. at 678.
10

The plausibility standard

requires that a plaintiff allege sufficient facts “to raise a
reasonable expectation that discovery will reveal evidence” that
supports the plaintiff’s claim.

Bell Atlantic Corp. v. Twombly, 550

U.S. 544 556 (2007); Marsh, 268 F.3d at 1036 n.16.

Thus, “the-

defendant-unlawfully harmed me accusation” is insufficient.
556 U.S. 662, 677.

Iqbal,

“Nor does a complaint suffice if it tenders naked

assertions devoid of further factual enhancement.”
modifications omitted).

Id. (internal

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).
b.

Standard of review under 28 U.S.C. § 1915A

Because Plaintiff filed this action against a governmental
entity and employees of a governmental entity while incarcerated,
the Court is required to screen his action under 28 U.S.C. §
1915A(b). Section 1915A provides that:
The court shall review . . . a complaint in a
civil action in which a prisoner seeks redress
from a governmental entity or officer or
employee of a governmental entity. . . . On
review, the court shall . . . dismiss the
complaint, or any portion of the complaint, if
the complaint is frivolous, malicious, or fails
to state a claim upon which relief may be
granted; or seeks monetary relief from a
defendant who is immune from such relief.
28 U.S.C. § 1915A(a), (b)(1) & (2). Section 1915A requires that
prisoner complaints be screened in the same manner as under §
1915(e)(2)(B) regardless of whether the filing fee has been paid.
Martin v. Scott, 156 F.3d 578, 579 (5th Cir. 1998)(recognizing that
11

§ 1915A “applies to any suit by a prisoner against certain government
officials or entities regardless of whether that prisoner is or is
not proceeding IFP.”).

In essence, § 1915A is a screening process

to be applied sua sponte and at any time during the proceedings.
The phrase “fails to state a claim upon which relief may be
granted” has the same meaning as the nearly identical phrase in
Federal Rule of Civil Procedure 12(b)(6). Therefore, the standards
that apply to a dismissal under Fed. R. Civ. P. 12(b)(6) apply to a
dismissal under § 1915A(b)(1). See Leal v. Georgia Dep’t of Corr.,
254 F.3d 1276, 1278–79 (11th Cir. 2001)(noting that the language in
§ 1915A(b)(1) mirrors the language in 28 U.S.C. § 1915(e)(2)(B)(ii),
which tracks the language in Rule 12(b)(6)).
c.

The Court will not convert the motions to
dismiss filed by Defendants Bowman, Sternal, and
Trinity Services Group into motions for summary
judgment

The motions to dismiss filed by Defendants Bowman, Sternal, and
Trinity Group, Inc. place before the Court the procedural question
of whether the motions must be converted into Rule 56 motions because
these

defendants

documents.

have

supported

their

motions

with

extraneous

Ordinarily, Rule 12(d) requires that, if matters outside

the pleadings are presented in support of a Rule 12(b)(6) motion,
the motion must be converted to a motion for summary judgment under
Rule 56, unless the Court excludes the extrinsic matter. Fed. R.
Civ. P. 12(d). However, a court may consider documents attached to
a motion to dismiss without converting the motion into one for
12

summary judgment if the attached documents are central to the
plaintiff’s claims and undisputed in terms of authority. See Horsley
v. Feldt, 304 F.3d 1125, 1134 (11th Cir. 2002). Moreover, the
reference of documents by incorporation doctrine also allows a court
to consider documents not attached to the complaint, because “a
document

need

not

be

physically

attached

to

a

pleading

to

be

incorporated by reference into it; if the document's contents are
alleged in a complaint and no party questions those contents, [the
court] may consider such a document if that document is central to
the plaintiff's claims.” Daewoo Motor Am. v. General Motors Corp.,
459

F.3d

1249,

1266

n.11

(11th

Cir.

2006)(internal

quotations

omitted); Halmos v. Bomardier Aerospace Corp., 404 F. App’x 376, 377
(Dec. 7, 2010) (on reviewing a Rule 12(b)(6) motion to dismiss, the
court may consider documents incorporated into the complaint by
reference).
Here, Plaintiff repeatedly references the grievances he filed
with the defendants in connection with his claims (Doc. 113 at ¶¶
21,

27,

31,

157,

162,

172).

Therefore,

these

documents

were

incorporated by reference into Plaintiff's second amended complaint
and may be considered by the Court without converting Bowmans’s,
Sternal’s, and Trinity’s motions to dismiss into Rule 56 motions for
summary judgment.
Bowman

and

However, the affidavits submitted by Defendants

Sternal

are

not

documents

that

were

referenced

in

Plaintiff's complaint. Consequently, the Court will not consider the
13

affidavits submitted by Bowman and Sternal and declines to convert
the motions to dismiss into Rule 56 motions for summary judgment.
After the conclusion of discovery, Defendants Bowman, Sternal, or
Trinity may resubmit the instant motions for consideration as motions
for summary judgment or these defendants may file new motions for
summary judgment.
III. Analysis
a.

In

Counts

The claims raised in Counts I - IV for injunctive
and declaratory relief are dismissed as moot
I

through

IV,

Plaintiff

seeks

injunctive

and

declaratory relief under the ADA and pursuant to § 1983 requiring
Kevin Rambosk to allow Plaintiff to have “equal access, rights and
privilege, unhindered by his disability, to use the jail facilities
and interact with other inmates.” (Doc. 113 at ¶¶ 41, 57). However,
because Plaintiff is no longer incarcerated at the Collier County
Jail, the issues of injunctive and declaratory relief are moot.

See

McKinnon v. Talladega County, Alabama, 745 F.2d 1360, 1362 (11th
Cir. 1984) (“The general rule is that a prisoner's transfer or
release from a jail moots his individual claim for declaratory and
injunctive relief.” (citation omitted)); Cotterall v. Paul, 755 F.2d
777, 780 (11th Cir. 1985) (prisoner's individual claim for injunctive
relief was moot and properly dismissed, where prisoner had been
transferred from county jail in which unconstitutional conditions
allegedly existed); Spears v. Thigpen, 846 F.2d 1327, 1328 (11th
Cir. 1988) (“[A]n inmate's claim for injunctive and declaratory
14

relief

in

a

section

1983

action

fails

to

present

a

case

or

controversy once the inmate has been transferred.”); Wahl v. McIver,
773 F.2d 1169, 1173 (11th Cir. 1985) (“[A]n inmate's claim for
injunctive and declaratory relief in a section 1983 action fails to
present

a

case

transferred.”).

or

controversy

once

the

inmate

has

been

Accordingly, Claims I, II, III and IV are dismissed

as moot, and Plaintiff's claims are limited to retrospective relieve
for “alleged past wrongs.” McKinnon, 745 F.2d at 1363; 28 U.S.C. §
1915A(b)(1).
b.

Counts V – XV are dismissed because Plaintiff
has not adequately stated claims against
individual deputy defendants Alan Crooks, David
Dellinger, Richard Daniels, Virginia Wilson,
Nino Armino, Nelson Ray, Lynni O’Haver, Richard
Gibbons, Patricia Gifford, Beth Richards, or
Kevin McGowan

In Counts V through XV of Plaintiff’s second amended complaint,
he argues that the acts of each deputy defendant violated his
“constitutional rights under the Eight[h] and Fourteenth Amendments
against cruel and unusual punishment.” (Doc. 113 at ¶¶ 71, 74, 77,
80, 83, 86, 89, 92, 95, 98, and 101).

Although Plaintiff generally

asserts that each individual deputy defendant “was a deputy sheriff
and/or correctional officer who engaged in the conduct referred
herein the General Allegation above,” Plaintiff makes no specific
allegations against any of these individual defendants (Doc. 113 at
¶¶ 70, 73, 76, 79, 2, 85, 88, 91, 94, 97, and 100).

15

The General Allegations in Plaintiff's second amended complaint
are numerous and include, inter alia, allegations that the cells in
the Collier County Jail are too small to allow Plaintiff to properly
operate his wheelchair, claims that the diet prescribed by the
medical department was not provided to him by food services; claims
that

he

was

department;

denied
claims

the
that

wheelchair
the

prescribed

grievances

he

by

filed

the

medical

resulted

in

retaliation; and claims that the jail’s policy of requiring that
prisoners eat in the cafeteria resulted in missed breakfast on a
repeated basis due to Plaintiff's inability to properly clean himself
in time for breakfast (Doc. 1 at 4-9). Plaintiff does not explain
how each of the twenty-four defendants in this action is responsible
for each of the alleged wrongs.
In order to make out a prima facie case under § 1983, a plaintiff
must show that a given defendant took some action which caused the
injury in question. See Kentucky v. Graham, 473 U.S. 159, 166 (1985)
(to establish personal liability under § 1983, a plaintiff must show
that “the official, acting under color of state law, caused the
deprivation

of

a

federal

right.”).

Plaintiff's

second

amended

complaint does not allege a single action taken by any named deputy
defendant in Counts V - XV.

In addition, Plaintiff alleges numerous

other instances of wrongdoing for which the deputy defendants could
not reasonably be held liable, yet Plaintiff still alleges that each
individual medical defendant “engaged in the conduct referred to in
16

the General Allegation[.]” (Doc. 113 at ¶¶ 70, 73, 76, 79, 82, 85,
88, 91, 94, 97, and 100).
The individual defendants are not required to “sift through the
facts presented and decide for [themselves] which were material to
the particular cause of action asserted.” Strategic Income Fund,
L.L.C. v. Spear, Leeds & Kellogg Corp., 305 F.3d 1293, 1296 n. 9
(11th Cir. 2002) (internal citations omitted); Beckwith v. Bellsoutn
Telecomms.,

Inc.,

146

F.

App’x

368,

373

(11th

Cir.

2005)

(categorizing complaint as a “shotgun pleading” because “[o]nly a
few of [the plaintiff’s] claims were specific as to any defendant,
and

the

relevant

facts

were

not

segregated

to

each

of

their

respective claims,” making it “virtually impossible to ascertain
which factual allegations correspond with each claim.”).
even

if

the

facts

as

alleged

by

Plaintiff

are

As such,

sufficient

to

demonstrate that he may have suffered injury while incarcerated at
the Collier County Jail, this Court cannot draw a “reasonable
inference” that any particular defendant is liable for any specific
alleged injury. Iqbal, 129 S. Ct. at 1949.
The Eleventh Circuit has stated that, when faced with a shotgun
pleading, a district court should require the parties to file an
amended complaint rather than allow such a case to proceed.

Byrne

v. Nezhat, 261 F.3d 1075, 1129 (11th Cir. 2001). Accordingly, Counts
V through XV against Alan Crooks, David Dellinger, Richard Daniels,
Virginia Wilson, Nino Armino, Nelson Ray, Lynni O’Haver, Richard
17

Gibbons, Patricia Gifford, Beth Richards, and Kevin McGowan are
dismissed without prejudice for failure to comply with Rules Eight
and Ten of the Federal Rules of Civil Procedure and because the
second amended complaint fails state a claim upon which relief may
be granted against these defendants.3
c.

Counts XVI – XXI are dismissed because Plaintiff
has not stated claims against individual medical
defendants Indiana Cruz, Maryam Nabavi, Jannette
Valentin, Marcia Eckloff, Priscilla Upton, or
Elizabeth Alfieri

In Counts XVI through XXI, Plaintiff argues that the acts of
each medical defendant violated his “constitutional rights under the
Eight[h]

and

Fourteenth

Amendments

against

cruel

and

unusual

punishment.” (Doc. 113 at ¶¶ 104, 107, 110, 113, 116, and 119).
Prison officials violate the Eighth Amendment when they act with
deliberate

indifference

to

an

inmate's

serious

Estelle v. Gamble, 429 U.S. 97, 97 (1976).

medical

needs.

To state a claim of

deliberate indifference, a plaintiff must allege: (1) a serious
medical need; (2) deliberate indifference to that need by the
defendants; and (3) causation between the defendants' indifference
and the plaintiff's injury. Youmans v. Gagnon, 626 F.3d 557, 563
(11th Cir. 2010).

3

In Counts XXIX and XXX, Plaintiff alleges separate retaliation
claims against Defendants Kevin McGowan and Alan Crooks (Doc. 113 at
24-25). These claims are not dismissed because they are not at issue
in the instant motion to dismiss, and have been answered in a
separate pleading (Doc. 121).
18

In paragraph nineteen of Plaintiff's second amended complaint,
he asserts that “Defendants Indiana Cruz, Marcia Eckloff, Priscilla
Upton, Maryam Nabavi, Jannette [Valentin], and Elizabeth Alfieri
were at all times material employees of PHS and or Corizon and were
acting under color of law, employed to provide medical and nonmedical services to the inmates housed at the jail.” (Doc. 113).
Plaintiff

then

individually

states

that

each

medical

defendant

“engaged in the conduct referred to in the General Allegation[s.]”
(Doc. 113 at ¶¶ 103, 106, 109, 112, 115, and 118). Plaintiff makes
no other specific allegations against these individual defendants.
As noted above, the General Allegations in Plaintiff's second
amended complaint are numerous and include, inter alia, allegations
regarding the inadequate provision of medical care, the quality of
his medically prescribed diet, and claims regarding the small size
of his jail cell.

The claims are not specific as to any specific

defendant and the relevant facts are not segregated as to each of
their respective claims. Although Plaintiff does appear to generally
aver that he was denied adequate medical care, Plaintiff does not
explain how any individual defendant is personally responsible for
any alleged constitutional violation or how the defendants engaged
in conduct that violated his constitutional rights.
Accordingly, Counts XVI – XXI of Plaintiff's second amended
complaint are dismissed without prejudice because Plaintiff has
failed to satisfy the pleading requirements under the Federal Rules
19

of Civil Procedure.

See Beckwith, 146 F. App’x at 373; discussion

supra Part I(b).
d.

Counts XXIV and XXV are dismissed for
failure to state a claim upon which relief
may be granted

In Counts XXIV and XXV, Plaintiff generally asserts that every
individual defendant caused Plaintiff “to suffer because of his
disability” due to “an official policy, procedure ordinance or
directive of the Collier County Sheriff’s Office to refuse to
accommodate in any manner, detainees with specific needs due to their
disabilities.” (Doc. 113 at ¶ 127, 131).
Plaintiff does not name any specific defendant or explain his
cause of action other than to title theses claims “42 U.S.C. § 1983
– Action Against Official Capacity Defendants” and “ADA-Official
Capacity Claim Against Official Capacity Defendants.” (Doc. 113 AT
28). Generally, a claim against an individual in his or her official
capacity would be a claim against the entity for which the individual
is employed. Jones v. Cannon, 174 F.3d 1271, 1293 n.15 (11th Cir.
1999) (“Official capacity claims are tantamount to a suit against
the governmental entity involved.”).

However, Plaintiff not only

fails to name any specific “official capacity” defendant so as to
provide notice to the entity being sued, Plaintiff’s insistence on
incorporating every general allegation into this complaint makes it
impossible

to

discern

the

allegedly

conduct at issue.
20

unconstitutional

policy

or

Accordingly,

Claims

XXIV

and

XXV

are

dismissed

without

prejudice pursuant to 28 U.S.C. § 1915A(b)(1) for failure to state
a claim upon which relief may be granted.4
e.

Counts XXVI and XXVII against the medical
defendants are dismissed due to Plaintiff's
failure to comply with Florida’s pre-suit notice
requirements

In Counts XXVI and XXVII, Plaintiff asserts that the individual
medical defendants and Corizon Health Services breached their duty
“to provide reasonable care and services” to Plaintiff (Doc. 113 at
¶¶ 137, 143).
Medical

Florida Statute § 766.106 - part of the Comprehensive

Malpractice

Reform

Act

of

1985

-

identifies

medical

negligence or medical malpractice claims as those “arising out of
the

rendering

of,

or

the

failure

to

services.” § 766.106(1)(a), Fla. Stat.
certain

procedural

requirements

prior

render,

medical

care

or

A claimant must comply with
to

initiating

a

lawsuit,

including providing the defendant with a notice of intent to sue and
conducting presuit screening. Id. at §§ 766.106(2) and 766.203(2).
“No suit may be filed for a period of 90 days after notice is mailed
to any prospective defendant.” Id. at § 766.106(3)(a).

These

requirements are conditions precedent to maintaining a suit for
medical malpractice. Univ. of Miami v. Wilson, 948 So. 2d 774, 776

4

To the extent that Plaintiff intended Counts XXIV and XXV to be
construed as official capacity claims for damages against Kevin
Rambosk as Sheriff of Collier County based upon the Sheriff
Department’s
failure
to
accommodate
Plaintiff's
disability,
Plaintiff should so state in an amended complaint.
21

(Fla. 3d DCA 2006).

A complaint alleging medical malpractice is

properly dismissed if these provisions are not satisfied. Goldfarb
v. Urciuoli, 858 So. 2d 397, 398-99 (Fla. 1st DCA 2003).

A plaintiff

is typically afforded leave to amend, however, if the statutory
period for initiating suit has not “run before the plaintiff attempts
to fulfill the presuit notice or screening requirements.”

Southern

Neurological Assocs., P.A. v. Fine, 591 So. 2d 252, 255 (Fla. 4th
DCA 1991). Thus, if Plaintiff's suit is one for malpractice rather
than ordinary negligence and if the medical defendants are “health
care providers” Plaintiff's suit should be dismissed with leave to
file a new complaint after complying with the statutory prerequisites
to bringing suit.
Plaintiff attempts to avoid the presuit screening and notice
requirements of Florida’s statutory scheme by arguing that he is
suing under ordinary negligence and that “[w]ithout relying upon the
professional standard of care, Plaintiff has alleged that Defendants
failed to provide Plaintiff with access to appropriate supplies while
Plaintiff

was

Plaintiff's

incarcerated.”

second

amended

(Doc.

128

complaint,

at

¶

12).

however,

A

review

indicates

of

that

Plaintiff is attempting to predicate liability upon the medical
defendants based upon these defendants’ failure to recognize that he
was “medically required to insert three sterile stents per day to
maintain his health” and that he was not provided with an adequate
supply of stents or sterile latex gloves to maintain “healthy sterile
22

procedures during the urination and [defecation].” (Doc. 113 at 7).
The necessity for a medical stent and the frequency of the stent’s
replacement

is

a

matter

of

professional

judgment.

Therefore,

Plaintiff's claims against these defendants directly relate to the
medical diagnosis, treatment, and care by a healthcare provider in
a correctional setting.

Because the resolution of this case will

require the application of the prevailing professional standard of
care for a healthcare provider, the Court determines that Plaintiff
was

required

to

comply

with

the

presuit

procedural

statutory

requirements. See Nelson v. Prison Health Servs., Inc., 991 F. Supp.
1452, 1466 (M.D. Fla. 1997) (“It is not disputed, however, that PHS
and the Nurses are ‘health care providers’ for purposes of the
statute, and so the question is whether Plaintiff has come forward
with

sufficient

evidence

that

[their]

alleged

actions

.

.

.

represented a breach of the prevailing professional standard of
care.”) (citations and internal quotation marks omitted).
Accordingly, Plaintiff's negligence claims against the medical
defendants

are

dismissed

without

prejudice

to

refile

upon

satisfaction of §§ 766.106 and 766.203 of the Florida Statutes.
f.

The claims against Defendants Thomas Bowman,
Sandra Sternal, and Trinity Group, Inc. are
dismissed in part

In Counts XXII and XXIII, Plaintiff sues Defendants Thomas
Bowman and Sandra Sternal under 42 U.S.C. § 1983 for violation of
his Eighth Amendment right against cruel and unusual punishment (Doc.
23

113 at 26-27). Other than asserting that these defendants are
“nutritional services provider[s] employed by Trinity and provide[]
nutritional service to inmates at the Collier County Jail facility,”
Plaintiff makes no specific allegations against these defendants
under the headings of the counts against them. In Count XXVIII,
Plaintiff asserts that Trinity Services Group, Sandra Sternal, and
Tom

Bowman

were

negligent

by

not

providing

Plaintiff

with

an

appropriate renal diet (Doc. 113 at ¶ 147-49).
Plaintiff does appear to attempt to allege specific facts
against these defendants in paragraph twenty-seven of his “General
Allegations” which states:
Defendants Trinity, Bowman, and Sternal were
well aware of these dietary needs, both through
medical prescriptions and grievances filed by
Plaintiff.
Defendants consistently failed to
meet the medically required dietary needs of
Plaintiff and habitually refused to correct the
violations.
Plaintiff notified all relevant
Defendants of the dietary violation and the
danger of conditions caused by deviations from
those dietary needs on numerous occasions. All
of Plaintiff's requests were ignored.
(Doc. 113 at ¶ 27). Accordingly, the Court will assume that the
allegations against these defendants concern only the provision of
food at the Collier County Jail, and to the extent Plaintiff intended
to hold these defendants accountable for any of the other alleged
constitutional harms he suffered, such claims are dismissed for
failure to state a claim upon which relief may be granted (Doc. 113
at ¶¶ 121, 125).

24

The Eighth Amendment requires that prison officials provide
inmates with basic necessities including “adequate food, clothing,
shelter and medical care. . . .” Farmer v. Brennan, 511 U.S. 825,
832–33 (1994). Prison food need only be “reasonably adequate” to
pass constitutional muster. Hamm v. DeKalb County, 774 F.2d 1567,
1575 (11th Cir. 1985). “A well-balanced meal, containing sufficient
nutritional value to preserve health, is all that is required.” Smith
v. Sullivan, 553 F.2d 373, 380 (5th Cir. 1977). Food that is adequate
but unpleasant is sufficient. Hamm, 774 F.2d at 1567.
To state an Eighth Amendment violation, a prisoner must allege
facts to satisfy an objective and subjective inquiry regarding a
prison

official's

conduct

and

demonstrate

the

constitutional

violation caused his injuries. Chandler v. Crosby, 379 F.3d 1278,
1289, 1291 n.21 (11th Cir. 2004); Marsh v. Butler County, 268 F.3d
1014, 1028 (11th Cir. 2001). Under the “objective” inquiry, a
prisoner must allege a condition that is sufficiently serious so as
to amount to the denial of a basic human need or objectively serious
medical need. Chandler, 379 F.3d at 1289; Taylor v. Adams, 221 F.3d
1254, 1258 (11th Cir. 2000).

The condition must be extreme and pose

an unreasonable risk of serious damage to the prisoner's future
health or safety. Restrictive or even harsh conditions alone do not
rise to the level of an Eighth Amendment violation. Id.
Under the “subjective” inquiry, the prisoner must allege the
official acted with at least deliberate indifference. Farrow v. West,
25

320 F.3d 1235, 1245 (11th Cir. 2003); see Taylor, 221 F.3d at 1258.
Deliberate

indifference

has

three

components:

“(1)

subjective

knowledge of a risk of serious harm; (2) disregard of that risk; (3)
by conduct that is more than mere negligence.” Farrow, 320 F.3d at
1245; see Taylor, 221 F.3d at 1258 (response by officials to medical
needs must be poor enough to constitute an unnecessary and wanton
infliction of pain, not merely accidental inadequacy or negligence).
Defendant Bowman’s responses to the 206 grievances filed by
Plaintiff regarding his dissatisfaction with his meals at the Collier
County Jail belie Plaintiff's current assertion that his requests
that he be provided with different food were “ignored.” (Doc. 113 at
¶ 27).

Moreover, the fact that Defendant Bowman denied Plaintiff's

grievances regarding the temperature and general dissatisfaction
with the food served at the Collier County Jail is insufficient to
impose liability under § 1983.

See Larson v. Meek, 240 F. App'x

777, 780 (10th Cir. 2007) (finding that a defendant's “denial of the
grievances alone is insufficient to establish personal participation
in the alleged constitutional violations”); Baker v. Rexroad, 159 F.
App'x 61, 62 (11th Cir. 2005) (per curiam) (“Because the failure of
[the defendants] to take corrective action upon the filing of [the
plaintiff]'s administrative appeal at the institutional level did
not amount to a violation of due process, the district court properly
determined that [the plaintiff] failed to state a claim under §
1983”); Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999)
26

(finding that prison officials whose only roles involved the denial
of administrative grievances or the failure to act, were not liable
under § 1983 on a theory that the failure to act constituted an
acquiescence

in

the

unconstitutional

conduct).

However,

if

Plaintiff is able to present evidence that Defendants Bowman and
Sternal knew of a significant risk of serious harm to Plaintiff and
ignored that risk by deliberately, rather than negligently, failing
to follow a medically prescribed renal diet, he may be able to prove
that these defendants were deliberately indifferent to his serious
medical needs.
Accordingly, to the limited extent that they are based solely
upon Defendants Bowmnan’s and Sternal’s alleged failure to provide
Plaintiff with an appropriate renal diet, Counts XXII and XXIII are
not dismissed at this time.
law

negligence

Sternal,

and

claims
Thomas

Likewise, Plaintiff's pendant state-

against
Bowman

Trinity

(Count

Services

XXVIII)

Group,

based

Sandra

upon

these

defendants’ failure to provide Plaintiff with a medically prescribed
renal diet will not be dismissed at this time.
Plaintiff

intended

to

raise

additional

To the extent that

claims

against

these

defendants in Counts XXII, XXIII, and XXVII, the claims are dismissed
for failure to state a claim upon which relief may be granted.
g.

Count XXXII against Defendant Thomas Bowman is
not dismissed

In Count XXXII, Plaintiff asserts that Defendant Tom Bowman
retaliated against him for filing grievances (Doc. 113 at 38).
27

Specifically, Plaintiff asserts that “Defendant Tom Bowman, as a
result of Plaintiff's utilization of the grievance process refused
to make reasonable accommodations to provide Plaintiff with his
medically ordered renal diet.” (Doc. 113 at ¶ 172).
An inmate may maintain a cause of action for retaliation under
42 U.S.C. § 1983 by showing that a prison official's actions were
“the result of [the inmate's] having filed a grievance concerning
the conditions of his imprisonment.” Farrow v. West, 320 F.3d 1235,
1248 (11th Cir. 2003). To establish a First Amendment retaliation
claim, a prisoner need not allege the violation of an additional
separate and distinct constitutional right; instead, the core of the
claim is that the prisoner is being retaliated against for exercising
his right to free speech. Id.

To prevail on a retaliation claim,

the inmate must establish that: (1) his speech was constitutionally
protected; (2) the inmate suffered adverse action such that the
official's allegedly retaliatory conduct would likely deter a person
of ordinary firmness from engaging in such speech; and (3) there is
a

causal

relationship

between

the

retaliatory

action

and

the

protected speech. Smith v. Mosley, 532 F.3d 1270, 1276 (11th Cir.
2008).
Because there are genuine issues of material fact as to whether
Defendant Bowman retaliated against Plaintiff, Defendant Bowman not
entitled

to

dismissal

of

Count

proceedings.
28

XXXII

at

this

stage

of

the

IV.

Conclusion

Counts
prejudice.

I

–

XVII

and

XXIV

–

XXVII

are

dismissed

without

Should the facts support such amendment, Plaintiff may

file a third amended complaint addressing Counts V-XVII and Counts
XXIX – XXXII within fourteen days from the date on this Order.
Plaintiff’s third amended complaint should completely re-plead all
counts he wishes to pursue.

Any count not pleaded in the amended

complaint shall be deemed abandoned by the Court.
If Plaintiff chooses not to file a third amended complaint,
this case will proceed on Counts XVIII – XXIII and XXVIII – XXXII of
Plaintiff's second amended complaint.

In that case, the remaining

defendants will file an answer to the remaining counts in Plaintiff's
second amended complaint.
Accordingly, it is hereby ORDERED:
1.

Plaintiff's claims for injunctive and declaratory relief

(Counts I – IV) are dismissed without prejudice as moot. 28 U.S.C.
§ 1915A(b)(1).
2.

The motion to dismiss Counts V, VI, VII, VIII, IX, X, XI,

XII, XIII, XIV, and XV of Plaintiff's second amended complaint filed
by Defendants Nino Armino, Alan Crooks, Richard Daniels, David
Dellinger, Richard P. Gibbons, Patricia Gifford, Kevin McGowan,
Lynni O’Haver, Nelson P. Ray, Beth Richards, and Virginia Wilson
(Doc. 122) is GRANTED.

Counts V – XV are dismissed without prejudice

29

for failure to state a claim upon which relief may be granted. Fed.
R. Civ. P. 12(b)(6).
3.

Counts

XXIV

and

XXV

of

Plaintiff's

second

amended

complaint are dismissed without prejudice for failure to state a
claim upon which relief may be granted. 28 U.S.C. § 1915A(b)(1).
4.

The motion to dismiss filed by Defendants Corizon Health,

Inc., Indiana Cruz, Maryam Nabavi, Janette Valentin, Marcia Eckloff,
Priscilla Upton, and Elizabeth Alfieri (Doc. 119) is GRANTED. Counts
XVI – XXI of Plaintiff's second amended complaint are dismissed
without prejudice for failure to state a claim upon which relief may
be granted. Fed. R. Civ. P. 12(b)(6).

Counts XXVI – XXVII are

dismissed without prejudice for failure to comply with the pre-suit
notice requirements of Florida Statute § 766 and for failure to state
a claim upon which relief may be granted. Fed. R. Civ. P. 12(b)(6).
5.

The motion to dismiss or alternative motion for summary

judgment filed by Defendants Thomas Bowman and Sandra Sternal is
GRANTED IN PART and DENIED IN PART (Doc. 114).

The motion is denied

to the extent that Counts XXII and XXIII are based upon these
defendants alleged failure to provide Plaintiff with an appropriate
renal

diet.

To

the

extent

that

Plaintiff

intended

to

raise

additional claims against Defendants Bowman or Sternal in Counts
XXII and XXIII, the motion to dismiss is granted.
6.

The motion to dismiss or alternative motion for summary

judgment filed by Trinity Services Group (Doc. 115) is DENIED.
30

7.

Plaintiff

has

fourteen

days

to

file

a

third

amended

complaint that comports with the provisions of this Opinion and
Order.

If Plaintiff does not file a third amended complaint, the

remaining defendants shall file an answer to the remaining counts in
Plaintiff's second amended complaint within twenty-one days of the
expiration of the fourteen day period.
DONE and ORDERED in Fort Myers, Florida on this
January, 2014.

SA: OrlP-4 1/9/14
Copies furnished to:
All parties or record

31

9th

day of