McNeeley v. Wilson et al

Filing 178

OPINION AND ORDER re: striking 171 Reply to Response to Motion, granting in part and denying in part 167 MOTION to Dismiss Plaintiff's Second Amended Complaint Counts IV, V, VIII, and X 160 (and Memorandum of Law). Signed by Judge Sheri Polster Chappell on 6/12/2015. (SLU)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
STEPHEN MCNEELEY,
Plaintiff,
v.

Case No: 2:12-cv-488-FtM-38DNF

NORMAN WILSON, SERGIO
BERTUZZI, ANTHONY FENECH,
NICHOLAS RISI, DAVID COX and
MARK GEYER,
Defendants.
/
OPINION AND ORDER1
This matter comes before the Court upon review of defendants’ motion to dismiss
plaintiff’s second amended complaint (Doc. #167, Motion), filed April 15, 2015. Plaintiff
filed a response to the motion (Doc. #170).2 This matter is ripe for review.
I.
Plaintiff Stephen McNeeley, a Florida prisoner, initiated this action by filing a pro
se Complaint pursuant to 42 U.S.C. § 1983 alleging a violation of his rights under the

1

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2

Defendants filed a reply (Doc. #171) without leave of court. See Local Rule
3.01(c) (M.D. Fla. 2009). Thus, the Court strikes defendants’ reply.

Eighth Amendment when correctional officials applied excessive chemical agents, inter
alia, on September 7, 2008 at the Charlotte County Jail. In November 2014, the Court
found exceptional circumstances necessitated the appointment of counsel for plaintiff.
See Doc. #139.
Plaintiff is now proceeding on his Second Amended Complaint (Doc. #160) filed
by appointed counsel.

The Second Amended Complaint includes the following ten

counts: Count I-Eight Amendment claim stemming from use of excessive force against
defendant Bertuzzi; Count II-Eighth Amendment claim stemming from indifference to
serious medical needs against defendant Bertuzzi; Count III-Eighth Amendment claim
stemming from the failure to train or supervise correctional officials against defendants
Bertuzzi and Wilson; Count IV-Eighth Amendment claim stemming from unlawful
conditions of confinement against defendants Wilson and Bertuzzi; Count V-Assault and
battery claim against defendant Bertuzzi; Count VI-Eighth Amendment claim stemming
from application of chemical agents against defendant Fenech; Count VII-Eighth
Amendment claim of indifference to serious medical condition against defendants
Fenech, Cox, Geyer, and Risi; Count VIII-Assault and battery claim against defendant
Fenech; Count IX-Eighth Amendment claim stemming from excessive force by defendant
Risi; Count X- Assault and battery claim against defendant Risi.
II.
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

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true and take them in the light most favorable to 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, 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. Randall v. Scott, 610 F.3d 701, 708, fn. 2 (11th
Cir. 2010). A claim is plausible where the plaintiff alleges facts that Aallow[] the court to
draw the reasonable inference that the defendant is liable for the misconduct alleged.@
Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1949 (2009). The plausibility standard
requires that a plaintiff allege sufficient facts Ato 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. Specifically, A[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, Athe-defendantunlawfully harmed me accusation@ is insufficient. Ashcroft, 129 S. Ct. at 1949. ANor
does a complaint suffice if it tenders naked assertions devoid of further factual
enhancement.@ Id. The A[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, 196869 (citations omitted) (abrogating Conley, 355 U.S. 41 in part). Additionally, there is no
longer a heightened pleading requirement. Randall, 610 F.3d at 701.

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III.
Defendants move to dismiss all of the assault and battery counts (Counts V, VIII,
and X), arguing that they are duplicative of the federal claims for excessive force. See
Motion at 2-4. Defendants further move to dismiss the noise torture portion of Count IV.
Id. at 2, 5.

Defendants submit that noise torture does not rise to the level of a

constitutional violation.

Id. at 5-6.

Plaintiff concedes dismissal of the assault and

battery counts. Response at 1. Plaintiff, however, argues that the noise torture portion
of Count IV should remain at this stage of the proceedings. Id. at 4 (citing Hargrove v.
Henderson, Case No. 95-cv-1601-T-17A, 1996 WL 467516 *21 (M.D. Fla. Aug. 13,
1996)(citing cases)).
At the outset, in light of plaintiff’s concession that the assault and battery counts
should be dismissed, the Court grants defendants’ motion with respect to those counts.
Turning to the cruel and unusual conditions of confinement in Count IV, including the
noise torture allegations, the Supreme Court recognizes that a prisoner may challenge a
condition of confinement, Rhodes v. Chapman, 452 U.S. 337, 347 (1981). A two prong
showing is required: an objective deprivation or injury that is Asufficiently serious@ to
constitute a denial of the Aminimal civilized measure of life=s necessities@ and a subjective
showing that he official had a Asufficiently culpable@ state of mind. Thomas v. Bryant,
614 F.3d 1288, 1303 (11th Cir. 2010)(citations omitted).

ABecause the Eighth

Amendment draws its meaning from the evolving standards of decency that mark the
progress of a maturing society,@ the objective harm inquiry is contextual in that it is
responsive to contemporary standards.

Id. at 1304 (citations omitted).

AExtreme

deprivations@ are required to make out a claim for an unconstitutional condition of

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confinement. Id. at 1304.

Courts have recognized that complaints of excessive noise

in a prison setting can amount to an Eighth Amendment violation. Hargrove, * 21 (citing
cases)(finding violation of Eighth Amendment when the situations involved “incessant
noise throughout the night, measurable beyond acceptable decibel levels, that resulted
in possible hearing loss, inability to sleep, and endless tension and agitation within the
cellblocks such that the noise was tantamount to an infliction of pain.”).
Here, the Second Amended Complaint alleges that a nearby cellmate created a
“great noise disturbance” on several occasions.

Second Amended Complaint at 5.

Plaintiff and other inmates complained about the noise. Id. “During the late night hours
of September 6, 2008 and morning hours of September 7, 2008, [the nearby cellmate]
started his noise disturbances again.” Id. The noise interfered with plaintiff’s ability to
sleep. Id. at 5. Correctional officials were aware of the noise complaints lodged by
plaintiff and other inmates. Id. at 5-6.

Further, the noise torture is only one allegation

of many of the alleged unlawful conditions of confinement at the Charlotte County Jail.
Based on the foregoing, the Court finds sufficient allegations at this stage of the
proceedings to allow the claim to proceed. Defendants’ motion to dismiss the noise
torture portion of Count IV is denied.
ACCORDINGLY, it is hereby
ORDERED:
1. Defendants’ reply (Doc. #171) is stricken for failure to comply with Local Rule
3.01(c) (M.D. Fla. 2009).

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2. Defendants’ motion to dismiss (Doc. #167) is GRANTED in part and DENIED
in part. With respect to the assault and battery counts (Counts V, VIIII, and X), the
motion is GRANTED. Otherwise, the Motion is DENIED.
DONE and ORDERED in Fort Myers, Florida on this 12th day of June, 2015.

FTMP-1
Copies: All Parties of Record

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