Tyler v. Scott et al

Filing 24

ORDER OF DISMISSAL dismissing 20 Second Amended Complaint without prejudice pursuant to § 1915A(2)(b)(ii). The Clerk shall enter judgment accordingly and close the case. Signed by Judge John E. Steele on 7/23/2013. (RKR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
TIMOTHY TYLER,
Plaintiff,
vs.

Case No.

2:13-cv-154-FtM-29UAM

MIKE SCOTT, Sheriff, J. ALFENI, Head
of
Medical
Department,
DOCTOR
ALMANZAR, MIKE HENDESON, and FNU
SUTTON,
Defendants.
___________________________________
ORDER OF DISMISSAL
This matter comes before the Court upon review of the file.
Plaintiff Timothy Tyler, proceeding pro se, initiated this action
by filing a prisoner Civil Rights Complaint pursuant to 42 U.S.C.
§ 1983 on March 1, 2013, while detained at the Lee County Jail.
Plaintiff is proceeding in forma pauperis on his Second Amended
Complaint1 (Doc. #20), filed May 9, 2013.
I.
The Prison Litigation Reform Act requires that the Court
review all complaints filed by prisoners against a governmental

Plaintiff was directed to file an Amended Complaint, see Order
at Doc. #12, to correct several pleading deficiencies. Plaintiff
filed an Amended Complaint pursuant to the Court’s Order (Doc.
#17). Plaintiff then filed a Second Amended Complaint (Doc. #20).
“An amended complaint supercedes the initial complaint and becomes
the operative pleading in the case.” Krinsk v. SunTrust Banks,
Inc., 654 F.3d 1194, 1202 (11th Cir. 2011). Neither the Amended
Complaint (Doc. #17) nor the Second Amended Complaint (Doc. #20)
correct the deficiencies noted in the Court’s Order. Nevertheless,
the Court treats the Second Amended Complaint as the operative
pleading.
1

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, § 1915A is

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

In reviewing a complaint, however, the Court

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

F.3d

1107,

established

1110

rule

(11th

that

Cir.

pro se

2006),

complaints

and
are

applies
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).
Pursuant to § 1915A, the Court “shall” dismiss the complaint,
if, inter alia, it fails to state a claim upon which relief may be
granted.

See also § 1915(e)(2).

The standards that apply to a

dismissal under Fed. R. Civ. P. 12(b)(6) apply to a dismissal under
§1915A.

Leal v. Georgia 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.
F.3d 1282, 1284 (11th Cir. 2008).

Pielage v. McConnell, 516

The standard governing Federal

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

Alba v. Montford, 517 F.3d 1249, 1252

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

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Cir.

1997).

Section

1915(e)(2)(B)(ii)

screening language of § 1915A.2

is

identical

to

the

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.

Bell

Atlantic v. Twombly, 550 U.S. 544, 556 (2007).
Conclusory

allegations,

presumption of truth.

however,

are

not

entitled

to

a

Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009)(discussing a 12(b)(6) dismissal); Marsh v. Butler County,
Ala., 268 F.3d 1014, 1036 n.16 (11th Cir. 2001).

A claim is

plausible where the plaintiff alleges facts that “allow[] the court
to draw the reasonable inference that the defendant is liable for
the

misconduct

alleged.”

Ashcroft,

556

U.S.

at

678.

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, “[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,

“the-defendant-unlawfully harmed me accusation” is insufficient.

Plaintiff is proceeding in forma pauperis in this action.
Docs. #2, #11. Thus, the Complaint is also subject to dismissal
under 28 U.S.C. § 1915(e)(2)(B)(ii).
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Ashcroft, 556 U.S. 678. “Nor does a complaint suffice if it tenders
naked assertions devoid of further factual enhancement.”

Id.

Instead, “[f]actual allegations must be enough to raise a right to
relief above the speculative level.”

Twombly, 550 U.S. at 555.

II.
Plaintiff files this action against defendants from the Lee
County Jail, including Doctor Almanzar, and Food Directors Mike
Henderson and Sutton.

Plaintiff also names the Sheriff of Lee

County as a defendant.

See Second Amended Complaint.

The Second

Amended Complaint does not specify which federal rights Plaintiff
believes

the

defendants

have

violated.

See

generally

id.

Interspersed within the Second Amended Complaint are copies of
inmate grievances, responses thereto, and inmate medical request
forms and responses thereto.

Id. at 11-45.3

Facts is written in a diary-like format.

The Statement of

For example, Plaintiff

alleges, inter alia:
12/2/012 wasting food by disposing constitutes a tax
payers money or federal funding. In return the staff had
no idea what I was talking about with a witness point of
view.
12/2/012 we had an inmate with MRSA officers were exposed
to this without protection of a gown or gloves went
serving food to other inmates.

The pinpoint citations contained herein are to the numbers
that appear on the top of the page by the Court’s Case Management
and Electronic Filing System, not the numbers written by Plaintiff.
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12/8/012 filed Complaint to head of medical about
discrimination that was imposed upon plaintiff and fellow
inmate.
2/19/013 Plaintiff needed something a lot stronger than
regular Tyleno[l].
2/27/013 out of sight, out of mind is very cruel and
unusual punishment for a medical floor.
Id.

at

7,

9.

The

Second

Amended

Complaint

alleges

several

unrelated claims ranging from medical treatment rendered or lack
thereof to general conditions of confinement.

Under the relief

requested section on the complaint form, Plaintiff writes:
Medical here need(s) not to have favoritism among thoses
that suffer pain or fight for there God given civil
rights. A doctor should be around 24 hours a day not
when they feel like seeing you.
They are here for
medical reason’s to fullfill the need’s of that person
under there care not ignore them. Plaintiff request for
pain and suffering of the amount of (2) million poor
diet, treating a pain person as if he or she’s a lab rat,
better care by train personal [sic].
Id. at 46.
III.
Pursuant to § 1915, the Court finds this action is subject to
dismissal for the following reasons.
A.

Federal Rule of Civil Procedure 8

The Court finds that the Second Amended Complaint does not
comply with Fed. R. Civ. P. 8(a)(2).

Pursuant to Fed. R. Civ. P.

8(a)(2), a pleading must include “a short and plain statement of
the claim showing that the pleader is entitled to relief.”

The

purpose of this requirement is to supply the defendant with fair
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notice as to the nature of the claim and the grounds upon which the
claim rests. Twombly, 550 U.S. at 552. Plaintiff’s Second Amended
Complaint does not provide sufficient facts to satisfy the basic
pleading requirements of Rule 8(a)(2).

Specifically, the Second

Amended Complaint does not allege how each defendant violated
Plaintiff’s rights. See generally Complaint. In fact, none of the
defendants’

names

are

even

mentioned

in

the

Second

Amended

Complaint. Instead, the factual allegations are vague, conclusory,
and set forth in the Second Amended Complaint are in diary-like
format.

Thus, the Court finds the Complaint subject to dismissal

pursuant to Fed. R. Civ. P. 8(a)(2).

See also Twombly, 550 U.S. at

555; Iqbal, 556 U.S. at 678.
B.

Failure to State a Claim

The Court cannot conceive of any violation of any federal
right based on the allegations in the Second Amended Complaint and
the exhibits thereto. At most, liberally construed it appears
Plaintiff attempts to set forth an Eighth Amendment4 claim stemming

At the time Plaintiff filed his Complaint, Plaintiff was a
pre-trial detainee at the Lee County Jail.
Thus, Plaintiff’s
rights arise from the Fourteenth Amendment, but the case law
developed with regard to the Eighth Amendment prohibitions against
cruel and unusual punishment is analogous. Cook ex. rel. Estate of
Tessier v. Sheriff of Monroe County, Fla., 402 F.3d 1092, 1115
(11th Cir. 1985); see also Hamm v. DeKalb County, 774 F.2d 1567
(11th Cir. 1985)(noting that "In regard to providing pretrial
detainees with such basic necessities as food, living space, and
medical care, the minimum standard allowed by the due process
clause is the same as that allowed by the Eighth Amendment for
convicted persons.").
4

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from medical treatment he was provided at the Lee County Jail.

The

Second Amended Complaint alleges that Plaintiff was not always
provided Tylenol with codeine for his pain, id. at 7, 9-10; a nurse
forgot to give him insulin on one occasion, id. at 42; and, he was
given old food as a snack for his diabetes, id. at 22-24.
In order to state a claim for a violation under the Eighth
Amendment, a plaintiff-prisoner must allege “acts or omissions
sufficiently harmful to evidence deliberate indifference to serious
medical needs.”

Estelle v. Gamble, 429 U.S. 97, 106 (1976); see

also Hudson v. McMillan, 503 U.S. 1, 9 (1992)(opining that a
prisoner must demonstrate a “serious” medical need “[b]ecause
society does not expect that prisoners will have unqualified access
to health care. . . .”).

This showing requires a plaintiff to

satisfy both an objective and a subjective inquiry.

Farrow v.

West, 320 F.3d 1235, 1243 (11th Cir. 2003) (citing Taylor v. Adams,
221 F.3d 1254, 1257 (11th Cir. 2000)).
First, a plaintiff must show that he had an “objectively
serious medical need.”

Id.

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.”

Id. (citations omitted).

“The medical need must be one that, if left unattended, pos[es] a
substantial risk of serious harm.”

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Id.

Second, a plaintiff must establish that a defendant acted with
“deliberate

indifference”

by

showing

both

a:

(1)

subjective

knowledge of a risk of serious harm (i.e., both awareness of facts
from which the inference could be drawn that a substantial risk of
serious harm exists and the actual drawing of the inference); and
(2) disregard of that risk; and (3) conduct that is more than gross
negligence. Bozeman v. Orum, 422 F.3d 1265, 1272 (11th Cir. 2005).
“Whether a particular defendant has subjective knowledge of the
risk

of

serious

demonstration

in

harm
the

is
usual

a

question
ways,

of

fact

including

‘subject

inference

to
from

circumstantial evidence, and a factfinder may conclude that a
prison official knew of a substantial risk from the very fact that
the risk was obvious.’”

Goebert v. Lee County, 510 F.3d 1312, 1327

(11th Cir. 2007)(quoting Farmer v. Brennan, 511 U.S. 825, 842
(1994)).

“A difference in medical opinion does not constitute

deliberate indifference so long as the treatment is minimally
adequate.” Whitehead v. Burnside, 403 F. App'x 401, 403 (11th Cir.
2010)(citing Harris v. Thigpen, 941 F.2d 1495, 1504-05 (11th Cir.
1991)). A doctor’s decision about the type of medicine that should
be

prescribed

is

generally “a

medical

judgment”

that

is

“an

inappropriate basis for imposing liability under section 1983.”
Adams v. Poag, 61 F.3d 1537, 1547 (11th Cir. 1995); see also
Waldrop v. Evans, 871 F.2d 1030, 1033 (11th Cir. 1989) (stating
that “[m]ere medical malpractice, however, does not constitute

-8-

deliberate indifference.
opinion.”).

Nor does a simple difference in medical

“When the claim turns on the quality of the treatment

provided, there is no constitutional violation as long as the
medical care provided to the inmate is ‘minimally adequate.’”
Blanchard v. White Co. Pet. Ctr. Staff, 262 F. App’x 959, 964 (11th
Cir. 2008)(quoting Harris, 941 F.2d at 1504).

For example, the

Eleventh Circuit previously found “that a doctor's failure to
administer stronger medication . . . pending the arrival of [an]
ambulance

...

[was]

a

medical

judgment

and,

therefore,

an

inappropriate basis for imposing liability under section 1983.”
Id. (citing Adams v. Poag, 61 F.3d 1537, 1547 (11th Cir. 1995)).
Consequently, “[d]eliberate indifference is not established where
an inmate received care but desired different modes of treatment.”
Id.
Under
defendants’

the

facts

medical

alleged,

treatment

wanton infliction of pain.”
“pain

meds”

or

“Tylenol

Plaintiff

constituted

cannot
an

show

that

“unnecessary

and

Plaintiff made multiple requests for

with

codeine”

based

on

his

general5

complaints of pain, id. at 14, 19, 21; for a cold, id. at 28, 3031; and, for unspecified pain in his “upper jaw,” id. at 32.

These

For example, on December 30, 2012, Plaintiff wrote: “I take
pain medication on the street. I’ve been in the infirmary for my
medical needs. With out pain meds the steal in my body is pin into
my bones and I suffer deeply. I need my pain meds or else
everything shuts down inside. Does medical need a lawsuit? I have
a 1983 Federal Complaint Form. Please don’t drop the ball on me.
T-3 codean. [sic].” Second Amended Complaint at 21.
5

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aforementioned
condition.

ailments

do

not

set

forth

a

serious

medical

Slater v. Lemens, 400 F. App’x 109, 112 (7th Cir.

2010)(noting not every ache and pain is sufficient to constitute a
serious medical condition); see also Gutierrez v. Peters, 111 F.3d
1364, 1372 (7th Cir. 1997)(stating that failure to treat a common
cold does not support a deliberate indifference claim)(citation
omitted).
Moreover, the Second Amended Complaint and attached exhibits
do

not

reveal

that

any

defendant

responded

with

deliberate

indifference to Plaintiff’s medical needs.

The exhibits reveal

that

monitor

the

Medical

Department

continued

to

Plaintiff’s

medical complaints, responded to his medical request forms, and
evaluated his medical condition.

The medical department referred

Plaintiff for an MRI, id. at 28; referred him to the doctor, id.
at 27, 29; referred him to a dentist when he complained of jaw
pain, id. at 32; prescribed an anti-depressant medication, id. at
31; and, prescribed Tylenol with codeine when medical officials
deemed

the

treatment

appropriate,

id.

at

38.

Similarly,

Plaintiff’s allegation that a nurse forgot to provide him with
insulin on one occasion and that the snacks for diabetics were old,
also does not demonstrate an excessive risk to his health or
safety, much less that any of the named defendants knew or and
disregarded such a risk.
ACCORDINGLY, it is hereby

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ORDERED:
1.

The Second Amended Complaint (Doc. #20) is DISMISSED

without prejudice pursuant to § 1915A(2)(b)(ii).
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 July, 2013.

SA: alj
Copies: All Parties of Record

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23rd

day