Shirley v. Collier, et al.,

Filing 18

ORDER OF DISMISSAL dismissing without prejudice 11 Amended Complaint pursuant to § 1915(e)(2)(b)(ii); denying 5 Motion for leave to proceed in forma pauperis. The Clerk shall terminate any pending motions, enter judgment accordingly, and close the case. Signed by Judge John E. Steele on 6/10/2013. (RKR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
KEVIN ROBERT SHIRLEY,
Plaintiff,
vs.
COLLIER COUNTY SHERIFF'S OFFICE,
TRINITY
SERVICES
GROUP,
INC.,
CORIZON HEALTH MANAGEMENT, COLLIER
COUNTY BOARD OF COMMISSIONERS,
KEVIN J. RAMBOSK, FNU RICHARDS, K.
MCGOWAN, FNU HOFFMAN, FNU HARMON,
FNU O'HAVER, FNU CALDERON, FNU
CRAFT, SERGEANT CRUZ, FNU MINICK,
FNU SCHANK, FNU ARCE, FNU RAY, FNU
ARNOLD, FNU BARBUTO, FNU BEHRENS,
FNU BLACKWOOD,
FNU
BLANK,
FNU
BREMER, FNU BRITOLO, FNU BROOKS,
FNU BROYOLES, FNU BRYSON, FNU BURD,
FNU CARPENTER, FNU CAUDILL, FNU
COMO, FNU COTUGNO, FNU CRAIG, FNU
CRAWFORD, T. DAVIS, FNU DELUCA, FNU
DEMANGE, FNU DEMAREST, FNU DOLL, FNU
DUARTE, FNU FUSSELL, FNU GAINY, FNU
GOGGINS, FNU GOMEZ, FNU GRANT, FNU
GUTH, FNU HALL, FNU HERRERA, FNU
HURLEY, FNU JORDEN, FNU KENNEDY, FNU
KEYSER, FNU LOPEZ, FNU KYLE, FNU
MARSH, FNU MCDUFFIE, FNU MEEK, FNU
MELENDEZ, FNU LUCENTE, FNU MULLEN,
FNU MUNOZ, FNU PFALZGRAFF, FNU
RUMLEY,
FNU
SHAFFER,
FNU
SIDLEDECKER, FNU SOLOMON, FNU TIFT,
FNU TUBB, FNU VARGAS, FNU ZERPHA,
FNU BRYANT, FNU MULCAHEY, UNKNOWN
DUTY SGT. 1-10, TOM BOWMAN, KENNY
LNU, KITTY LNU, MISS G, FRANK LNU,
RARA, MISS S, UNKNOWN #1, UNKNOWN
#2, UNKNOWN #3, MARCIA ECKLOFF, DR.
JANET,
PERCILLA
UPTON,
FNU
VALANTINE, DR. SANDRA, MARIA LNU,
ELAINE LNU, KIM LNU, SANDY LNU, MRS.
CASH, JESUS LNU, VINCE LNU, FNU
RICHARDS, MANIE LNU, FNU TRAPP, FNU
YURETTA, UNKNOWN #1, UNKNOWN #2,

Case No.

2:13-cv-16-FtM-29UAM

UNKNOWN #3, DONNA FIALA, GEORGE
HILLER, TOM HENNIRY, FRED CAYLE AND
TIM NANCE,
Defendants.
________________________________
ORDER OF DISMISSAL
This matter comes before the Court upon periodic review of the
file.

Kevin Robert Shirley, a pre-trial detainee at the Collier

County Jail, initiated this action by filing inmate grievances
(Doc. #1, hereinafter “Inmate Grievances”) on January 9, 2013.

On

January 10, 2013, the Court ordered Plaintiff to file an “amended
complaint” within fourteen days from the date on the Order.

After

being granted several enlargements of time, on March 4, 2013
Plaintiff filed an Amended Complaint (Doc. #11, Amended Complaint)
alleging

violations

of

his

rights

under

the

Americans

with

Disabilities Act, 42 U.S.C. § 1983, 42 U.S.C. § 1985, and 42 U.S.C.
§ 1986.

Amended Complaint at 5.

The Amended Complaint names

approximately 110 defendants in their “personal, professional, and
official” capacities.

Id. at 1, 3-4.

proceed in forma pauperis.1

Plaintiff seeks leave to

Doc. #5.

1

The Court notes that Plaintiff has received two “strikes”
under § 1915(e)(2)(b)(ii) in the United States District Court for
the Southern District of Florida. See Case No. 4:09-cv-10046, Case
No. 4:09-cv-10055. Noticeably, Plaintiff failed to disclose these
two cases under Section III of his Amended Civil Rights Complaint
Form and instead only lists case number 4:09-cv-10045, which he
notes was “settled in favor of the Plaintiff.” Amended Complaint
at 2.
Plaintiff also failed to mention his other civil rights
(continued...)
-2-

I.
The Prison Litigation Reform Act requires that the Court
review all complaints filed by prisoners against a governmental
entity to determine whether the action is “frivolous, malicious, or
fails to state a claim upon which relief can be granted; or seeks
monetary relief from a defendant who is immune from such relief.”
See 28 U.S.C. § 1915A(a), (b)(1), (b)(2).

In essence, § 1915 is a

screening process to be applied sua sponte and at any time during
the proceedings.2

In reviewing a complaint, however, the Court

accepts the allegations in the complaint as true, Boxer v. Harris,
437

F.3d

1107,

established

rule

1110
that

(11th

Cir.

pro se

2006),

complaints

and

applies

are

to

be

the

long

liberally

construed and held to a less stringent standard than pleadings
drafted

by

attorneys.

Erickson

v.

Pardus,

551

U.S.

89,

94

(2007)(citations omitted).
A complaint is frivolous under § 1915 if it lacks arguable
merit either in law or fact.

Napier v. Preslicka, 314 F.3d 528,

532 (11th Cir. 2002), cert. denied, 124 S. Ct. 1038 (2004);

1

(...continued)

actions he filed in the federal courts.
1:1980cv01721, 4:2010cv10020, and 2:10cv598.
2

See

Case

Nos.

Similarly, pursuant to § 1915, “notwithstanding any filing fee
. . . that may have been paid, the court shall dismiss the case at
any time if the court determines that . . . the action . . . (i) is
frivolous or malicious; (ii) fails to state a claim upon which
relief may be granted; or seeks monetary relief against a defendant
who is immune from such relief. § 1915(e)(2)(B)(i)-(iii).
-3-

Mitchell v. Brown & Williamson Tobacco Corp., 294 F.3d 1309, 1315
(11th Cir. 2002); Bilal v. Driver, 251 F.3d 1346, 1349 (11th Cir.
2001), cert. denied, 534 U.S. 1044 (2001).
claims

include

claims

‘describing

Further, “[f]rivolous

fantastic

or

delusional

scenarios, claims with which federal district judges are all too
familiar.’”
490

U.S.

Bilal, 251 U.S. at 1349 (quoting Neitzke v. Williams,

319,

328

(1989)).

A

lawsuit

is

frivolous

if

the

“plaintiff’s realistic chances of ultimate success are slight.”
Clark v. Georgia Pardons and Parole, 915 F.2d 636, 639 (11th Cir.
1990)(citations omitted).
The standards that apply to a dismissal for failure to state
a claim under Fed. R. Civ. P. 12(b)(6) apply to a dismissal under
§ 1915.

Leal v. Ga. Dep’t of Corr., 254 F.3d 1276, 1278-79 (11th

Cir. 2001).

Under Rule 12(b)(6), the court views all allegations

in the Complaint as true and construes them in the light most
favorable to the Plaintiff.
1284 (11th Cir. 2008).

Pielage v. McConnell, 516 F.3d 1282,

The standard governing Federal Rule of

Civil Procedure 12(b)(6) dismissals apply to dismissals under §
1915(e)(2)(B)(ii).

Alba v. Montford, 517 F.3d 1249, 1252 (11th

Cir. 2008); Mitchell v. Carcass, 112 F.3d 1483, 1490 (11th Cir.
1997).

Thus, a complaint is subject to dismissal for failure to

state a claim if the facts as plead do not state a claim for relief
that is plausible on its face.
544, 556 (2007).

Bell Atlantic v. Twombly, 550 U.S.

A claim is plausible where the plaintiff alleges

-4-

facts that “allow[] the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.”
Iqbal,

556

U.S.

____,

129

S.

Ct.

1937,

1949

Ashcroft v.

(2009).

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.

Twombly, 550 U.S.

at 556. Specifically, although a complaint "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.”
Thus,

“the-defendant-unlawfully

insufficient.

Id. at 555 (citations omitted).
harmed

me

Ashcroft, 129 S. Ct. at 1949.

accusation”

is

“Nor does a complaint

suffice if it tenders naked assertions devoid of further factual
enhancement.”
requirement.
case

when

Id.

There

is

no

longer a heightened pleading

Randall, 610 F.3d at 701.
the

allegations

in

the

The Court may dismiss a

complaint

on

their

face

demonstrate that an affirmative defense bars recovery of the claim.
Marsh, 268 F.3d at 1022; Cottone v. Jenne, 326 F.3d 1352, 1357
(11th Cir. 2003); Douglas v. Yates, 535 F.3d 1316, 1321 (11th Cir.
2008).
II.
The gravamen of the Amended Complaint stems from Trinity Food
Services’ failure to provide Plaintiff with meals that accommodated

-5-

Plaintiff’s alleged food allergies.

Amended Complaint at 6, 14.

Plaintiff alleges that he suffers from a “medical condition” that
limits the type of food he can “comfortably consume.”

Id. at 14.

Plaintiff claims that he has lost 38 pounds since his incarceration
at the Collier County Jail.

Id. at 6.

Plaintiff states that he

“has suffered immensely from numerous medical ailment(s) including
but not limited to: cronic [sic] constipation, rapid weight loss,
malnutrition, vomiting, lightheadedness, dizzyness [sic], abdominal
cramps/pain, cronic [sic] back pain, migranes [sic], loss of
energy/focus and unnecessary anxiety.”

Id.

The Amended Complaint

generally alleges that the Collier County Board of Commissioners,
the Collier County Sheriff’s Office, Trinity Food Services, Inc.,
and Corizon Health Management’s failure to implement policies
providing for special needs diets is the cause of Plaintiff’s
problems.

Id.

The inmate grievances Plaintiff initially filed provide more
insight

into

According

to

his

claims.3

Plaintiff’s

See

generally

Inmate

inmate

grievances

and

Grievances.

the

responses

thereto, Corizon Health Services diagnosed Plaintiff with only a

3

Attachments to a complaint constitute “a part of the pleading
for all purposes.”
Fed. R. Civ. P. 10(c).
Furthermore, “when
exhibits contradict the general and conclusory allegations of the
pleading, the exhibits govern.” Griffin Indus., Inc. v. Irvin,
496 F.3d 1189, 1206 (11th Cir. 2007). Therefore, the Court may
properly rely on the exhibits Plaintiff filed and dismissal is
appropriate if the exhibits negate Plaintiff’s claims. Thompson v.
Illinois Dep’t of Prof. Reg., 300 F.3d 750, 754 (7th Cir. 2002);
accord Crenshaw v. Lister, 556 F.3d 1283, 1292 (11th Cir. 2009).
-6-

food allergy to egg, but determined that he was not allergic to
poultry.

Id. at 8, 10.

Plaintiff, however, disagrees with the

diagnosis, seeks a second opinion, and insists that he is also
allergic to poultry and any other related foods, such as, duck,
pheasant, turkey, quail. Amended Complaint at 6, Inmate Grievances
at 2, 8.

It appears however that Plaintiff’s inmate file only

contains a medical order limiting Plaintiff’s consumption of food
items containing egg.
any

cake,

muffins,

Plaintiff also contends that he cannot eat
sweet

bread,

cookies,

or

salad

dressings

provided by the jail because the ingredients include egg or egg-by
products.

Trinity Food Services determined that only the salad

dressing in the items listed by Plaintiff is precluded from his
diet because it is the only item that contains egg.

Id. at 11.

III.
ADA and 42 U.S.C. §§ 1986-1986
Initially, the Court dismisses any claims Plaintiff brings
under Title II of the Americans with Disabilities Act, 42 U.S.C. §
1985, and 42 U.S.C. § 1986.

Title II of the ADA applies to state

and county prisons and provides that “no qualified individual with
a disability shall, by reason of such disability, be excluded from
participation in or be denied the benefits of services, programs,
or activities of a public entity, or be subjected to discrimination
by such entity.

United States v. Georgia, 546 U.S. 151, 153

(2006)(citing 42 U.S.C. § 12132).

-7-

A “‘qualified individual with a

disability’ is defined as ‘an individual with a disability who,
with or without reasonable modifications to rules, policies, or
practices,

the

removal

of

architectural,

communication,

or

transportation barriers, or the provision of auxiliary aides and
services, meets the essential eligibility requirements for the
receipt of services or the participation in programs or activities
provided by a public entity.”

Id. at 154 (citing § 12131(2)).

Plaintiff by virtue of his food allergies is not a qualified
individual for purposes of the ADA.
Section 1985(3) imposes liability if two or more persons
conspire

“for

the

purpose

of

depriving,

either

directly

or

indirectly, any person or class of persons of the equal protections
of the laws, or of equal privileges and immunities under the laws.”
42 U.S.C. § 1985(3).

To prove a claim, plaintiff “must show an

agreement between ‘two or more persons’ to deprive him of his civil
rights.”

Dickerson v. Alacua County Com’n, 200 F.3d 761, 767-78

(11th Cir. 2000), cert. dismissed, 530 U.S. 1285 (2000).

Section

1986 provides redress against a person having knowledge of wrongs
under

§

1985

who

neglects

or

refuses

to

prevent

the

wrong.

Burkhart v. Chertoff, Case No. 2:06-cv-690-FtM-99DNF *2 (M.D. Fla.
Jan. 6, 2009)(citing § 1986).

The Amended Complaint is devoid of

any factual allegations supporting a conspiracy claim.
Court dismisses any claims under §§ 1985 and 1986.

-8-

Thus, the

42 U.S.C. § 1983
Because Plaintiff is a pre-trial detainee, his § 1983 claim is
based upon an alleged violation of his rights under the Fourteenth
Amendment to the Constitution.

The standard for claims based on

the lack of reasonably adequate food or provision of medical care
for a serious medical condition is the same under the Fourteenth or
the Eighth Amendment, but reference will be made to the Eighth
Amendment because most cases have been decided under the Eighth
Amendment.
1985).

Hamm v. DeKalb County, 774 F.2d 1567, 1574 (11th Cir.

There are three distinct Eighth Amendment claims available

to prisoner plaintiffs: conditions of confinement, excessive force,
and deliberate indifference to a prisoner’s serious medical needs.
Thomas v. Bryant, 614 F.3d 1288, 1303 (11th Cir. 2010).
Claims challenging conditions of confinement under the Eighth
Amendment must demonstrate an infliction of pain “without any
penological purpose” or an “unquestioned and serious deprivation of
basic human needs” such as medical care, exercise, food, warmth,
clothing, shelter, or safety. Rhodes v. Chapman, 452 U.S. 337, 347
(1981); see also Hamm v. Dekalb County, 774 F.2d 1567, 1571-72
(11th Cir. 1985).

A two part analysis governs Eighth Amendment

challenges to conditions of confinement.
U.S. 1, 8 (1992).

Hudson v. McMillian, 503

First, a condition must be objectively and

sufficiently serious, or “extreme,” to constitute a denial of the
“minimal civilized measure of life’s necessities.”

-9-

Thomas v.

Bryant, 614 F.3d 1288, 1304 (11th Cir. 2010)(quoting Farmer v.
Brennan, 511 U.S. 825 (1994)(internal citations omitted)). Second,
a plaintiff must come forward with some factual allegations to show
that the defendant official “acted with a sufficiently culpable
state of mind.”
plaintiff

must

difference.”

Id. (citations omitted).
show

Id.

the

a

defendant

acted

In other words, a
with

“deliberate

Significantly, a defendant must: (1) have

subjective knowledge of a risk of harm; (2) disregard that risk;
and (3) engage in conduct that rises above mere negligence.

The

Court employs a “totality of conditions” test to determine if the
conditions of confinement amount to a constitutional deficiency.
Wilson v. Blankenship, 163 F.3d 1284 (11th Cir 1998).
Where, as here, the claim is based upon the deprivation of
food, such a claim can only constitute cruel and unusual punishment
if the prisoner is denied “minimal civilized measure of life’s
necessities.”
well

Wilson v. Seiter, 501 U.S. 294, 303 (1991).

established

that

inmates

must

be

provided

It is

nutritionally

adequate food, “prepared and served under conditions which do not
present an immediate danger to the health or well being of the
inmates who consume it.”

Shrader v. White, 761 F.2d 875 (4th Cir.

1985)(citations omitted). The food in prison, however, need not be
“tasty or aesthetically pleasing,” but merely “adequate to maintain
health.”

Keenan v. Hall, 83 F.3d 1083, 1091 (9th Cir. 1996),

amended by 135 F.3d 1318 (9th Cir. 1998); Hamm v. DeKalb County,

-10-

774 F.2d at 1575 (prisoners must be provided “reasonably adequate
food.”).
In order to state a claim for a violation under the Eighth
Amendment related to medical care, a prisoner plaintiff must show
that public officials acted with deliberate indifference to his or
her serious medical needs.

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

Farrow v. West, 320 F.3d 1235 (11th Cir. 2003).

Thus, a plaintiff

must first show that he had an “objectively serious medical need.”
Id. (citing Taylor v. Adams, 221 F.3d 1254, 1257 (11th Cir. 2000).
Second, a plaintiff must prove that the official acted with an
attitude of “deliberate indifference” toward rendering treatment to
the serious medical need.

Farrow v. West, 320 F.3d 1235 (11th Cir.

2003)(quoting Farmer v. Brennan, 511 U.S. 825 (1994).

“[M]edical

treatment violates the Eight Amendment only when it is ‘so grossly
incompetent, inadequate, or excessive as to shock the conscience or
to be intolerable to fundamental fairness.’” Faison v. Rosado, 129
F. App’x 490, 491 (11th Cir. 2005)(quoting Harris v. Thigpen, 941
F.2d 1495, 1501 (11th Cir. 1991)).

The course of treatment chosen

by a medical official is “a classic example of a matter for medical
judgement.” Estelle, 429 U.S. at 107.

Thus, no constitutional

violation exists where an inmate and prison medical official merely
disagree as to the proper course of medical treatment.

Id. at 106.

The Court finds the Amended Complaint is subject to dismissal
under § 1915.

To establish liability under § 1983, Plaintiff must

-11-

show an affirmative causal connection

between each defendant’s

conduct and the constitutional deprivation.

Tittle v. Jefferson

County Comm’n, 10 F.3d 1535. 1541 (11th Cir. 1994).
Complaint

names

approximately

110

The Amended

defendants.

The

Amended

Complaint is devoid of any factual allegations showing a causal
connection between the 110 individually named defendants and the
alleged constitutional violation.
The Amended Complaint is also flawed to the extent it contains
only conclusory allegations that the Collier County Board of
Commissioners, the Sheriff’s Office, Corizon Health, and Trinity
Food Services have all failed to create a policy to allow Plaintiff
to receive an “adequate special therapeutic diet.”
Amended Complaint at 7-10.

See generally

To the contrary, the record suggests

that there are policies in place for providing inmates with special
diets.

The policy or procedure appears to involve review of the

inmate’s health condition and the issuance of a medical directive
if deemed appropriate.

Although Plaintiff complains of several

food allergies and refers to this as his “medical condition” and/or
his “qualified disability,” the inmate grievances Plaintiff filed
indicate that he has only been diagnosed with a food allergy to
egg.

Inmate Grievance at 10.

verification

of

Plaintiff’s

Because there is no medical

other

alleged

food

allergies,

correctional officials and Trinity Food Services could not have

-12-

“known of and disregarded an excessive risk” to Plaintiff’s health
regarding his alleged allergies.
The Amended Complaint does not allege that Trinity Food
Services continued to serve Plaintiff egg despite the medical
directive. See Inmate Grievance at 9 (Plaintiff acknowledging that
he is receiving the regular diet tray and the egg is being
substituted);

Id. at 10 (Trinity acknowledging that Plaintiff

should not eat salad dressing because it contains egg).

Instead,

it appears Plaintiff disagrees with Trinity’s determination as to
which items contain eggs.

A disagreement over which foods contain

egg does not amount to a § 1983 claim.
It is clear that Plaintiff disagrees with Corizon Health’s
medical determination that he is only allergic to egg.

However,

the Amended Complaint fails to state an Eighth Amendment claim for
deliberate indifference to a serious medical need.

Assuming

arguendo that Plaintiff’s medical need is serious, the Amended
Complaint contains no allegations that any medical personnel acted
with

an

attitude

of

deliberate

treatment for his medical need.

indifference

when

rendering

Consequently, the Court dismisses

this action pursuant to § 1915A(e)(2)(b)(ii).
ACCORDINGLY, it is hereby
ORDERED:

-13-

1.

The Amended Complaint (Doc. #11) is DISMISSED without

prejudice pursuant to § 1915(e)(2)(b)(ii).

Plaintiff’s motion for

leave to proceed in forma pauperis (Doc. #5) is DENIED.
2. The Clerk of Court shall terminate any pending motions,
enter judgment accordingly, and close this case.
DONE AND ORDERED at Fort Myers, Florida, on this
of June, 2013.

SA: alj
Copies: All Parties of Record

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10th

day