Harry v. Wagner et al
Filing
34
OPINION AND ORDER granting 29 Motion to Dismiss for Failure to State a Claim to the extent that the Complaint is dismissed without prejudice. Plaintiff may file an amended complaint within 21 days. If no such amended complaint is filed, the Court will direct judgment in favor of defendants and close the case. Signed by Judge John E. Steele on 8/29/2013. (RKR)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
NAIL A. HARRY,
Plaintiff,
v.
Case No:
2:12-cv-643-Ftm-29UAM
A. WAGNER, J. LICATA, L.
SEVERSON and T. REID,
Defendants.
_____________________________/
OPINION AND ORDER
This matter comes before the Court on the following:
The Motion to Dismiss Plaintiff's Complaint
filed by Defendants Thomas Reid, James
Licata, Angela Wagner, and Lars Severson
(Doc. 29, filed April 12, 2013); and
Plaintiff
Nail
A.
Harry’s
Response
in
Opposition to Defendant’s Motion to Dismiss
(Doc. 30, filed May 2, 2013);
Plaintiff Nail A. Harry (“Plaintiff”), proceeding pro se,
initiated this action as a prisoner at the Lake Correctional
Institution
in
Clermont,
Florida
by
filing
a
civil
rights
complaint pursuant to 42 U.S.C. § 1983 (Doc. 1, filed December
3, 2012).
Thomas
In his Complaint, Plaintiff sues Defendants Warden
Reid,
Property
Room
Sergeant
Angela
Wagner,
Assistant
Warden Lars Severson, and Head of Classification James Licata
(collectively,
“Defendants”)
in
each
defendant’s
official
capacity. Plaintiff also sues Wagner, Severson, and Licata in
their individual capacities (Doc. 1 at 1).
Defendants seek dismissal with prejudice of the Complaint
under Federal Rule of Civil Procedure 12(b)(6) (Doc. 29 at 1).
Specifically, Defendants argue that: (1) Plaintiff's claims are
based upon the denial of his grievances and are insufficient to
state claims under § 1983; (2) Defendants Wagner, Licata, and
Severson are entitled to qualified immunity; and (3) Defendant
Reid is immune from suit in his official capacity (Doc. 29 at 36). For the reasons set forth in this Order, Defendants’ Motion
is GRANTED to the extent that the Complaint will be dismissed
without prejudice.
I.
Complaint1
The facts, as alleged by Plaintiff, are as follows:
In June of 2011, while an inmate at the Dade Correctional
Institution, Plaintiff was prescribed a pair of orthopedic boots
and a heel lift because one of his legs is shorter than the
other (Doc. 1 at ¶ 1).
Plaintiff
was
subsequently
transferred
to
Charlotte
Correctional Institution, and on July 6, 2012, he was told by
Property Officer Caberlero, who is not a defendant in this case,
that Plaintiff's medical boots were not allowed at Charlotte
Correctional Institution. Id. at ¶ 3.
1
All facts are taken from Plaintiff's Complaint and the
attachments to the Complaint. See Fed. R. Civ. P. 10(c) (“A copy
of a written instrument that is an exhibit to a pleading is a
part of the pleading for all purposes.”).
2
On, or about, July 11, 2012, Plaintiff filed an emergency
grievance (#1207-510-041) in which he requested the return of
his boots (Doc. 1 at ¶ 4). The response to the grievance stated:
“Your
medical
record
shows
that
you
were
evaluated
at
the
prosthetics lab and you have an appointment scheduled with the
Chief Health Officer for a follow-up.” (Doc. 1-1 at 2).
On August 16, 2012, Plaintiff filed an informal grievance
stating that he was “experiencing pain in [his] back and legs.”
(Doc.
1
at
orthopedic
¶
5).
boots
Defendant
were
in
Wagner
replied
non-compliance
that
Plaintiff's
with
Charlotte
Correctional Institution’s security policies.
On
August
17,
2012,
Plaintiff
appealed
the
response
to
grievance # 1207-510-041, noting that he had not yet had an
appointment
with
the
Chief
Health
Officer
and
that
he
was
experiencing pain in his hip, knee, and back, and was losing his
balance often (Doc. 1-1 at 14).
On October 4, 2012, Plaintiff
received a response to the appeal. Id. at 15. The response noted
that “[t]he institutional staff advised that you need to be
fitted for boots before they are ordered and the date of the
fitting is pending.” Id.
Plaintiff was encouraged to cooperate
with the health care staff by following the treatment regimen
prescribed
and
was
advised
that
sick
call
was
available
address his concerns should he experience problems. Id.
3
to
On, or about August 21, 2013, Plaintiff filed an Emergency
Grievance (#1208-510-111) in which he explained that Charlotte
Correctional
Institution
did
not
have
the
authority
to
promulgate a rule against his Dr. Comfort brand orthopedic boots
(Doc. 1-1 at 11-12).
Plaintiff argued that he had seen “tens”
of inmates bludgeoned and stabbed or commit self-harm with items
that were permissible. Id.
Plaintiff also noted that he had
been hospitalized three times “due to the use of permissible
paper clips.” Id. at 12. Defendants Severson and Reid responded
to
the
grievance
and
noted
emergency Id. at 13.
that
it
did
not
constitute
an
Plaintiff was also advised to file an
informal grievance with security because [t]hey are responsible
for the area of your complaint.” Id.
On or about August 21, 2012, Plaintiff filed an appeal to
the warden’s office explaining that his medical boots and heel
lift had been issued by an orthopedic specialist and authorized
by a doctor (Doc. 1 at ¶ 6; Doc. 1-1 at 5).
Plaintiff further
explained
that
to
grievance
was
Institution
did
Defendant
Wagner’s
erroneous
not
have
response
because
the
power
his
Charlotte
to
make
its
informal
Correctional
own
rules.
Plaintiff quoted the Department of Corrections Manual, stating
that “security and other operations of the institution will not
dictate
decisions
practices
that
are
and
in
contradict
the
sole
4
or
otherwise
province
of
compromise
a
licensed
clinician.” (Doc. 1 at ¶ 6; Doc. 1-1 at 5).
Defendants Licata
and Severson returned the grievance without action (Doc. 1 at ¶
6; Doc. 1-1 at 7).
On
August
21,
2012,
Plaintiff
lost
his
balance
while
walking up the stairs and the resulting fall required derma-bond
to
close
the
wound
(Doc.
1
at
¶
8).
On
August
31,
2012,
Plaintiff fell into a fence. The resulting wound caused bruising
and required stitches. Id. at ¶ 9.
On August 23, 2012, Plaintiff filed an Inmate Request Form
on which he notified the Warden that he intended to file a
lawsuit alleging gross deliberate indifference to his medical
needs
(Doc.
1-1
at
16).
In
response,
it
was
noted
that
Plaintiff's request had been reviewed, but the issue had been
previously addressed and that Plaintiff should proceed to the
formal grievance level. Id.
On, or about, September 10, 2012, Plaintiff appealed the
denial of emergency grievance #1208-510-111, but the appeal was
determined to be in non-compliance with the inmate grievance
procedure because the grievance at the institutional level had
been in non-compliance with the grievance rules (Doc. 1-1 at
10).
On
September
12,
2012,
Plaintiff's
request
administrative appeal was returned without action. Id.
5
for
an
While incarcerated at Charlotte Correctional Institution,
Plaintiff
noticed
other
inmates
wearing
the
same
type
of
orthopedic boots he requested (Doc. 1 at ¶ 12).
Plaintiff asserts that the defendants violated his Eighth
Amendment
rights
by
showing
deliberate
indifference
to
his
serious medical needs when they refused to provide him with
medically prescribed orthopedic boots (Doc. 1 at 7).
compensatory
damages
of
$500,000
against
each
He seeks
defendant
and
punitive damages of $250,000 against each defendant. Id. at 10.
He also seeks injunctive relief to force the defendants to stop
interfering with his prescribed medical treatment. Id.
II.
Legal Standards
a.
Standard of review for a motion to dismiss
On a motion to dismiss, this Court accepts as true all the
allegations in the complaint and construes them in the light
most
favorable
to
the
plaintiff.
Jackson
v.
Telecomms., 372 F.3d 1250, 1262-63 (11th Cir. 2004).
BellSouth
Further,
this Court favors the plaintiff with all reasonable inferences
from the allegations in the complaint. Stephens v. Dep't of
Health & Human Servs., 901 F.2d 1571, 1573 (11th Cir. 1990) ("On
a motion to dismiss, the facts stated in [the] complaint and all
reasonable inferences therefrom are taken as true.").
the Supreme Court explains that:
6
However,
While 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
entitlement to relief requires more than
labels and conclusions, and a formulaic
recitation of the elements of a cause of
action will not do. Factual allegations must
be enough to raise a right to relief above
the speculative level.
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal
citations omitted).
true
a
legal
Further, courts are not "bound to accept as
conclusion
couched
as
a
factual
Papasan v. Allain, 478 U.S. 265, 286 (1986).
pro se
allegation."
In the case of a
action, the Court should construe the complaint more
liberally than it would pleadings drafted by lawyers. Hughes v.
Rowe, 449 U.S. 5, 9 (1980).2
2
Plaintiff argues that no dismissal can be granted "unless it
appears beyond a doubt that Plaintiff can prove no set of facts
in support of his claims, which would entitle relief." (Doc. 30
at 3). Plaintiff misunderstands the pleading requirements under
Rule 12(b)(6).
The pleading standard required for a complaint
to survive a motion to dismiss has been raised since the Court's
decision in Conley v. Gibson, 355 U.S. 41 (1957), the Supreme
Court case upon which Plaintiff appears to rely. In Ashcroft v.
Iqbal, 556 U.S. 662 (2009), the Supreme Court, referring to its
earlier decision in Bell Atlantic Corp. v. Twombly, illustrated
a two-pronged approach to motions to dismiss.
First, a
reviewing court must determine whether a Plaintiff's allegation
is merely an unsupported legal conclusion that is not entitled
to an assumption of truth.
Next, the court must determine
whether the complaint's factual allegations state a claim for
relief that is plausible on its face. Iqbal, 556 U.S. at 679.
It is this heightened pleading requirement, not the more liberal
Conley standard, which will be considered by this Court.
7
b.
Standard
of
1915(E)(2)(B)
review
under
28
U.S.C.
§
A federal district court is required to review a civil
complaint
filed
in
forma
pauperis
and
to
dismiss
any
such
complaint that is frivolous, malicious, or fails to state a
claim. 28 U.S.C. § 1915. The mandatory language of 28 U.S.C. §
1915 applies to all proceedings in forma pauperis. Specifically,
the section provides:
Notwithstanding any filing fee, or any
portion thereof, that may have been paid,
the court shall dismiss the case at any time
if the court determines that-(A) the allegation of poverty is
untrue; or
(B) the action or appeal(i)
is frivolous or malicious;
(ii)
fails to state a claim on
which relief may be granted;
or
(iii)
seeks monetary relief against
a defendant who is immune
from such relief.
28 U.S.C. § 1915(e)(2).
A
complaint
may
be
dismissed
as
frivolous
under
§
1915(e)(2)(B)(i) where it lacks an arguable basis in law or
fact.
Neitzke, 490 U.S. at 325.
A claim is frivolous as a
matter of law where, inter alia, the defendants are immune from
suit or the claim seeks to enforce a right that clearly does not
8
exist. Id. at 327. In addition, where an affirmative defense,
such as the statute of limitations, would defeat a claim, it may
be dismissed as frivolous. Clark v. Georgia Pardons & Paroles
Bd., 915 F.2d 636, 640 n.2 (11th Cir. 1990).
In making the above determinations, 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).3
III. Analysis
a.
Plaintiff's claims for injunctive relief are moot
Plaintiff asks for “injunctive relief forcing the officials
to
comply
and
stop
interfering
with
prescribed
medical
treatment.” (Doc. 1 at 10). When an inmate seeks injunctive or
3
Plaintiff argues that granting Defendants’ motion to dismiss
would be improper because the Complaint had been pre-screened by
the Court under 28 U.S.C. § 1915, and any legal insufficiencies
should have been addressed by the Court at that time (Doc. 30 at
3). This argument is based upon a misapprehension of the legal
standards of 28 U.S.C. § 1915(e) and Federal Rule of Civil
Procedure 12(b)(6). Dismissals under § 1915(e) are governed by
a legal standard distinct from dismissals pursuant to Rule
12(b)(6). The frivolousness in the § 1915(e) context refers to
a more limited set of claims than those that may be dismissed
under Rule 12(b)(6).
Whenever a plaintiff states an arguable
claim for relief, dismissal under § 1915(e) is improper, even
if, as in the instant case, the legal bases underlying the claim
ultimately prove to be incorrect. Neitzke v. Williams, 490 U.S.
319, 328 (1989). Accordingly, a complaint's survival after a §
1915 screening does not immunize the complaint from a subsequent
dismissal under Rule 12(b)(6) because the ultimate failure of a
complaint's legal theories may not be apparent at the outset.
Id.
9
declaratory relief concerning his place of incarceration, his
claims
for
such
relief
become
moot
when
he
is
no
longer
subjected to those conditions. See Weinstein v. Bradford, 423
U.S. 147 (1975); Spears v. Thigpen, 846 F.2d 1327, 1328 (11th
Cir. 1988) (“an inmate's claim for injunctive and declaratory
relief in a section 1983 action fails to present a case or
controversy
Wahl
the
inmate
McIver,
v.
once
has
been
transferred.”)
773
F.2d
1169,
1173
(11th
Cir.
(quoting
1985));
Cf.
Johnson v. Turpin, 2001 WL 520804, at *1 (11th Cir. Apr. 11,
2001) (prisoner's claim for injunctive relief not moot because
he was still within the state prison system and subject to being
returned to facility where alleged violations took place).
In
the event Plaintiff is returned to the institution about which
he complained, a dismissal without prejudice allows him to refile his claims. See Wahl, 773 F.2d at 1174.
It
does
Charlotte
complaint,
not
appear
Correctional
nor
is
he
that
Plaintiff
Institution
at
currently
Correctional (Doc. 9, 27, 31, 33).
the
was
incarcerated
time
he
incarcerated
at
filed
at
his
Charlotte
Past exposure to illegal
conduct does not in itself show a pending case or controversy
regarding injunctive relief if unaccompanied by any continuing,
present injury or real and immediate threat of repeated injury.
Cotterall v. Paul, 755 F.2d 777, 780 (11th Cir. 1985). Absent in
this case is any showing of a “continuing, present injury or
10
real and immediate threat of repeated injury” to Plaintiff. Id.
(finding that a transfer of the plaintiff back to the county
jail if he was again incarcerated at a minimum security facility
and charged with a disciplinary infraction was too speculative
to satisfy the required injury element).
In
light
of
the
foregoing,
Plaintiff's
claims
for
injunctive relief are dismissed as moot.
b.
Plaintiff's claims against each defendant in his
or her official capacity are barred by Eleventh
Amendment immunity
Plaintiff seeks monetary damages against all defendants in
his or her official capacity (Doc. 1 at 1). Defendants argue
that all claims against Thomas Reid must be dismissed because
“Eleventh
employees
Amendment
or
officers
immunity
bars
sued
his
in
monetary damages.” (Doc. 29 at 7).
suits
brought
official
against
capacities
for
Plaintiff concedes that
Defendant Thomas Reid should be dismissed from the Complaint “in
light of the applicable law that officials are immune to suit in
their official capacities.” (Doc. 30 at 1).
However, Plaintiff
does not concede, nor do Defendants argue in their Motion to
Dismiss,
that
the
other
defendants
are
entitled
to
Eleventh
Amendment immunity.
It is well established that a suit against a defendant
governmental officer in his official capacity is the same as a
suit against the entity that employs the officer. See McMillian
11
v. Monroe County, 520 U.S. 781, 785 n.2 (1997); Kentucky v.
Graham, 473 U.S. 159, 165 (1985). In Zatler v. Wainwright, the
Eleventh Circuit noted:
It is clear that Congress did not intend to
abrogate
a
state's
Eleventh
Amendment
immunity in section 1983 damage suits.
Furthermore,
after
reviewing
specific
provisions of the Florida statutes, we
recently concluded that Florida's limited
waiver
of
sovereign
immunity
was
not
intended to encompass section 1983 suits for
damages.
802 F.2d 397, 400 (11th Cir. 1986) (internal citations omitted).
Accordingly, in Zatler, the court found that the Secretary of
the Florida Department of Corrections was immune from suit in
his official capacity. Id.
In
accordance
Defendant's
monetary
Motion
damages
with
to
from
the
foregoing,
Dismiss
Defendant
insofar
Thomas
the
as
Reid
Court
will
grant
Plaintiff
seeks
in
his
official
capacity. In addition, the claims for monetary damages against
Defendants
official
Wagner,
capacity
Licata,
are
and
Severson
dismissed
as
in
each
frivolous
defendant’s
under
§
1915(e)(2)(B)(i) because these defendants are immune from suit
in their official capacities. See Neitzke, 490 U.S. at 325.
c.
Plaintiff has not stated claims for deliberate
indifference against Defendants Wagner, Licata,
or Severson
Prison officials violate the Eighth Amendment when they act
with
deliberate
indifference
to
12
an
inmate's
serious
medical
needs. Estelle v. Gamble, 429 U.S. 97, 97 (1976).
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).
The seriousness of a medical need is an objective inquiry.
Kelley v. Hicks, 400 F.3d 1282, 1284 (11th Cir. 2005).
A serious medical need is one that has been
diagnosed
by
a
physician
as
mandating
treatment or one that is so obvious that
even a lay person would easily recognize the
necessity for a doctor's attention. In the
alternative, a serious medical need is
determined by whether a delay in treating
the need worsens the condition. In either
case, the medical need must be one that, if
left unattended, poses a substantial risk of
serious harm.
Mann v. Taser Int'l, Inc., 588 F.3d 1291, 1307 (11th Cir. 2009)
(internal citations and quotation marks omitted).
Plaintiff does not elaborate on the objective seriousness
of his medical condition, other than stating that one of his
legs is longer than the other (Doc. 1 at 7).
The Court notes
that a disparity in leg length does not necessarily constitute a
serious medical need. See, e.g., Haverty v. Crosby, No. 1:05-cv133-MO-EMT, 2006 WL 839157, at *5 (N.D. Fla. Mar. 28, 2006) (3/4
of an inch disparity in the length of the plaintiff’s legs did
not rise to the level of a serious medical need); Turner v.
13
Solorzano, No. 3:04-cv-632-J-32MMH, 2006 WL 2523410, at *3 (M.D.
Fla. August 30, 2006)(3/8 inch disparity in leg length was not
objectively serous medical need); Graham v. Aponte, No. 1:08-cv308, 2009 WL 249779, at *4 (E.D. Va. Feb. 2, 2009) (“[T]he
discrepancy in the length of plaintiff's legs which requires a
3/8–inch lift in one shoe is not a sufficiently serious medical
need
or
condition
to
satisfy
Eighth Amendment claim.”).
the
objective
component
of
an
However, for the purpose of this
Order only, the Court will assume that Plaintiff's leg length
discrepancy is a serious medical need.
The next step requires a consideration of the subjective
component: whether the defendant was deliberately indifferent to
that serious medical need.
indifference,
indifference
prisoner's
delaying
the
by
needs;
access
In evaluating claims of deliberate
Eleventh
prison
(2)
to
Circuit
doctors
prison
medical
in
guards
care;
has
their
considered:
response
intentionally
and
(3)
(1)
to
the
denying
interference
or
with
treatment once prescribed. See Brown v. Johnson, 387 F.3d 1344,
1351
(11th
Cir.
2004).
Relevant
factors
include:
“(1)
the
seriousness of the medical need; (2) whether the delay worsened
the
medical
condition;
and
(3)
the
reason
for
the
delay.”
Goebert v. Lee County, 510 F.3d 1312, 1327 (11th Cir. 2007).
14
Plaintiff's Complaint fails to contain any allegations that
Defendants Wagner, Licata, or Severson directly participated in
the alleged constitutional deprivation.
attempts
to
attribute
individually
forms
to
on
them
the
in
liability
basis
which
that
he
Rather, the Complaint
against
Plaintiff
complained
these
defendants
addressed
grievance
that
Property
Officer
Caberlero would not give him his orthopedic boots. The Complaint
contains
no
other
defendants’
facts
or
involvement
allegations
in
the
pertaining
alleged
to
these
constitutional
deprivations.
Filing
a
automatically
grievance
make
the
with
a
supervisory
supervisor
liable
person
for
the
does
not
allegedly
unconstitutional conduct brought to light by the grievance, even
if the grievance is denied. Harverty, 2006 WL at *5 (citing
Wayne v. Jarvis, 197 F.3d 1098, 1106 (11th Cir. 1999)).
To
impute a supervisor with knowledge, the knowledge “must be so
pervasive that the refusal to prevent harm rises to the level of
a custom or policy of depriving inmates of their constitutional
rights.” Tittle v. Jefferson County Comm'n, 10 F.3d 1535, 1542
(11th Cir. 1994).
Moreover, in suits brought pursuant to 42 U.S.C. § 1983,
officials
cannot
be
held
liable
solely
on
the
basis
of
respondeat superior or vicarious liability. Brown v. Crawford,
906 F.2d 667, 671 (11th Cir. 1990); Monell v. Dep’t of Soc.
15
Servs., 436 U.S. 658, 690-92 (1978). Instead, the plaintiff must
allege that the named defendant actually participated in the
alleged
direction
constitutional
over
the
violation,
alleged
or
violation.
exercised
Gilmere
control
v.
City
or
of
Atlanta, 774 F.2d 1495, 1504 (11th Cir. 1985), abrogated on
other grounds, Graham v. Connor, 490 U.S. 386 (1989). Thus,
there must be an affirmative link between the Defendant's action
and the alleged deprivation of a constitutional right. Brown v.
Smith, 813 F.2d 1187 (11th Cir. 1987) (concluding that a 42
U.S.C. § 1983 claim cannot be based upon vicarious liability).
In other words, in a § 1983 suit “each government official, his
or her title notwithstanding, is only liable for his or her own
misconduct.” Iqbal, 556 U.S. at 677.
At most, Plaintiff's Complaint asserts that Defendants had
notice that he had been prescribed orthopedic boots and that
security staff would not allow him to possess those boots while
at
Charlotte
Correctional
Institution.4
Defendants
did
not
ignore Plaintiff's grievances; rather, their responses advised
him to file an informal grievance with Security as it was the
4
In his response to Defendants’ motion to dismiss, Plaintiff
argues that Defendant Wagner had Plaintiff's orthopedic boots
stored at Charlotte Correctional Institution’s property room
and, as property room sergeant, she could have returned them to
Plaintiff at any time (Doc. 30 at 5).
Plaintiff also asserts
that, as Wagner’s superiors, Defendants Licata and Severson
could have ordered Defendant Wagner to return Plaintiff's boots.
Id. Plaintiff does not make these allegations in his Complaint.
16
party responsible for Plaintiff’s complaint.
Defendants also
told Plaintiff to seek medical help for problems experienced
from
the
deprivation
of
his
boots
(Doc.
1-1
at
13).
In
addition, Plaintiff was advised that he was to be fitted for new
boots. Id. at 14.
Plaintiff makes no allegation that Defendants had in place
a custom or policy of denying orthopedic boots or that they
directed
subordinates
to
commit
constitutional
violations
regarding the provision of orthopedic devises. To the contrary,
Plaintiff alleges that he observed other inmates at Charlotte
Correctional Institution wearing orthopedic boots (Doc. 1 at 9).
Thus,
Plaintiff's
factual
allegations
fail
to
state
a
claim
showing that Defendants are liable for the alleged denial of
Plaintiff's orthopedic boots.
against
Defendants
James
The individual capacity claims
Licata,
Angela
Wagner,
and
Lars
Severson are dismissed without prejudice for failure to state a
claim upon which relief may be granted.
IV.
Conclusion
Plaintiff's claims for injunctive relief are dismissed as
moot.
Plaintiff's
claims
for
monetary
damages
against
all
defendants in their official capacities are dismissed as barred
by Eleventh Amendment immunity.
Plaintiff's individual capacity
claims against Defendants James Licata, Angela Wagner, and Lars
Severson are dismissed for failure to state a claim upon which
17
relief
may
be
granted.
Because
all
claims
against
these
defendants are dismissed, the Court will not address Defendants’
argument that James Licata, Angela Wagner, and Lars Severson are
entitled to qualified immunity.
Plaintiff will be allowed to amend his complaint to state a
claim against Defendants James Licata, Angela Wagner, and Lars
Severson
should
defendants
the
were
facts
directly
support
and
a
conclusion
personally
that
involved
these
in
the
deprivation of Plaintiff's constitutional rights.
To amend his complaint, Plaintiff should completely fill
out
a
new
Complaint.
civil
The
rights
complaint
amended
form,
complaint
marking
must
it
include
Amended
all
of
Plaintiff's claims in this action; it should not refer back to
any earlier complaint.
an
amended
complaint
Plaintiff is warned that the filing of
replaces
all
previous
complaints,
and
claims that are not re-alleged are deemed abandoned. See In re
Wireless Telephone Federal Cost Recovery Fees Litigation, 396
F.3d 922, 928 (8th Cir. 2005).
Plaintiff is reminded that, although he filed this action
as a pro se litigant, he is still required to plead a complaint
that complies with the Federal Rules of Civil Procedure. GJR
Investments, Inc. v. County of Escambia, Fla., 132 F.3d 1359,
1369 (11th Cir.1998) (holding that even in the case of pro se
litigants a court does not have license to serve as de facto
18
counsel
for
a
party
or
to
re-write
an
otherwise
deficient
pleading in order to sustain an action), overruled on other
grounds as recognized in Randall v. Scott, 610 F.3d 701, 709
(11th Cir. 2010);
Moon v. Newsome, 863 F.2d 835, 837 (11th Cir.
1989)(finding that a pro se litigant is subject to a court's
rules and to the Federal Rules of Civil Procedure).
Rule 8 of the Federal Rules of Civil Procedure requires
that a complaint contain "a short and plain statement of the
claim showing that the pleader is entitled to relief. . ." Fed.
R. Civ. P. 8(a)(2). The purpose of the rule is to give notice to
the other party and not to formulate issues or fully summarize
the facts involved.
Clausen & Sons, Inc. v. Theo. Hamm Brewing
Co., 395 F.2d 388, 390 (8th Cir. 1968).
District courts, when
confronted with a complaint that does not comply with Rule 8(a),
have been instructed by the Eleventh Circuit to intervene at the
earliest
possible
moment
in
the
proceedings
and
require
the
plaintiff to re-plead his entire case. Pelletier v. Zweifel, 921
F.2d 1465, 1522 (11th Cir. 1991), abrogated on other grounds,
Bridge
v.
Phoenix
Bond
&
Indem.
Co.,
553
U.S.
639(2008)).
Accordingly, to the extent Plaintiff wishes to file an amended
complaint, he should ensure that the complaint complies with
Rule 8(a).
Accordingly, it is now ORDERED:
19
1.
The
Motion
to
Dismiss
filed
by
Defendants
Thomas
Ried, Jamies Licata, Angela Wagner, and Lars Serverson (Doc. 29)
is GRANTED to the extent that Plaintiff's Complaint is dismissed
without prejudice;
2.
Plaintiff may file an amended complaint within TWENTY-
ONE (21) DAYS of this Order and in compliance with the Court’s
directions; and
3.
If Plaintiff does not file an amended complaint within
twenty-one days, the Court will issue a separate order directing
the Clerk of the Court to close this case and to enter judgment
in favor of Defendants.
DONE and ORDERED in Fort Myers, Florida on this
of August, 2013.
SA: OrlP-4 8/27
Copies: All parties of record
20
29th
day
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