Smith v. State of Florida et al
Filing
6
OPINION AND ORDER dismissing 1 Complaint without prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim upon which relief may be granted and for lack of jurisdiction. The Clerk shall enter judgment accordingly and close the case. Signed by Judge John E. Steele on 3/24/2015. (RKR)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
DEMETRICE P. SMITH,
Plaintiff,
v.
Case No: 2:15-cv-183-FtM-29DNF
STATE OF FLORIDA, NAPLES
JAIL
CENTER,
MARIA
LNU,
Nurse, and COLLIER COUNTY,
FLORIDA,
Defendants.
OPINION AND ORDER
Plaintiff Demetrice P. Smith (“Plaintiff”) initiated this
action pro se by filing a civil rights complaint pursuant to 42
U.S.C. § 1983 (Doc. 1, filed Mar. 20, 2015) and a motion to proceed
in this action in forma pauperis (Doc. 2).
The complaint is
presently before the Court for initial screening pursuant to 28
U.S.C. § 1915. 1
For the reasons set forth in this Order, the complaint is
dismissed without prejudice to Plaintiff reasserting his claims in
state court.
1
Because Plaintiff is proceeding in forma pauperis, the Court
is required to review his complaint to determine whether it is
frivolous, malicious, or fails to state a claim upon which relief
may be granted. See 28 U.S.C. § 1915(e)(2)(B)(i)-(iii).
This
review process was implemented in an effort to reduce meritless
prisoner litigation. Green v. Nottingham, 90 F.3d 415, 417 (10th
Cir. 1996); see H.R. Rep. No. 104-378, 104th Cong. 1st Sess. 166.
I.
Complaint 2
On February 20, 2015, Plaintiff was called to the medical
department at the Naples Jail Center for a routine checkup (Doc.
1 at 5).
that
he
The examining nurse, Defendant Maria, told Plaintiff
needed
a
tuberculosis
vaccination.
Id.
Plaintiff
protested because he had tested positive for tuberculosis in 1980.
Id.
Defendant Maria informed Plaintiff that if he did not get
vaccinated, he would be placed on medical lockdown. Id. at 6.
Plaintiff then agreed to the shot under protest. Id.
As a result of the shot, Plaintiff's arm became infected and
swollen and he had to “be placed on medicine for ten days” (Doc.
1 at 6).
Plaintiff filed a grievance in which he complained that
his arm was sore and swollen as a result of the shot. Id. at 8.
The grievance was denied. Id.
Plaintiff asserts that “Nurse Maria’s conduct in this matter
were [sic] unprofessional, and constitute[s] medical malpractice.”
(Doc.
1
at
6).
Plaintiff
seeks
fifteen
million
dollars
in
compensation for his pain and suffering and an additional fifteen
million dollars in punitive damages. Id. at 7.
2
All facts are taken from Plaintiff's Complaint and the
attachments to the Complaint (Doc. 1). 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.”).
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II.
Legal Standards
Title 28 § 1915(e)(2) reads in pertinent part as follows:
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
malicious;
or
(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 is frivolous under § 1915(e) “where it lacks an
arguable basis either in law or in fact.” Neitzke v. Williams, 490
U.S. 319, 325 (1989).
Dismissals on this ground should only be
ordered when the legal theories are “indisputably meritless,” or
when the claims rely on factual allegations that are clearly
baseless. Id. at 327; Denton v. Hernandez, 504 U.S. 25, 31 (1992).
Dismissals for failure to state a claim are governed by the
same standard as Federal Rule of Civil Procedure 12(b)(6). Mitchell
v. Farcass, 112 F.3d 1483, 1490 (11th Cir. 1997) (“The language of
section 1915(e)(2)(B)(ii) tracks the language of Federal Rule of
Civil Procedure 12(b)(6)[.]”).
A complaint fails to state a claim
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when it does not include “enough factual matter” to “give the
defendant fair notice of what the . . . claim is and the grounds
upon which it rests[.]” Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 555-56 (2007); see also Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (explaining that “[t]hreadbare recitals of the elements of
a cause of action, supported by mere conclusory statements do not
suffice.”) (citing Twombly, 550 U.S. at 555).
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).
“However, the court need not
accept inferences drawn by [Plaintiffs] if such inferences are
unsupported by the facts set out in the complaint.
court
accept
legal
conclusions
cast
in
the
form
Nor must the
of
factual
allegations.” In re Delta/AirTran Baggage Fee Antitrust Litig.,
733 F.Supp.2d 1348, 1358 (N.D. Ga. 2010).
Moreover, the Court
must read the plaintiff’s pro se allegations in a liberal fashion.
Haines v. Kerner, 404 U.S. 519 (1972); Miller v. Stanmore, 6356
F.2d 986, 988 (5th Cir. 1981).
III. Discussion
In order to state a claim for relief under 42 U.S.C. § 1983,
a plaintiff must allege two elements. First, the plaintiff must
allege that an act or omission deprived him of a right, privilege,
or immunity secured by the Constitution of the United States. See
Wideman v. Shallowford Cmty. Hosp., Inc., 826 F.2d 1030, 1032 (11th
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Cir. 1987). Second, the plaintiff must allege that the act or
omission was committed by a person acting under color of state
law. Id.
Plaintiff has failed to state a cognizable claim under 42
U.S.C. § 1983 because he has not alleged the deprivation of a
constitutional right.
Plaintiff's allegation that Nurse Maria was
“unprofessional” for insisting that he receive a tuberculosis
vaccination, despite his claim that he had tested positive for
tuberculosis thirty-five years ago, is simply not a constitutional
violation. See Brown v. Briscoe, 998 F.2d 201 (4th Cir. 1993)
(affirming district court’s dismissal of complaint as frivolous
under
28
U.S.C.
§
1915
because
the
defendant
nurse
was
not
deliberately indifferent to prisoner’s serious medical needs when
she
administered
tuberculosis
vaccine
even
though
prisoner
allegedly broke out in rash and had told the defendant nurse that
he had already received a tuberculosis inoculation).
To
the
extent
that
Plaintiff’s
complaint
of
a
sore
arm
requiring “medicine” for ten days is a claim that Defendant Maria
improperly administered the vaccine, such a claim is, at most, a
claim for medical malpractice. See Williams v. O'Leary, 55 F.3d
320, 324 (7th Cir. 1995) (holding that when a physician provided
some treatment but failed to carefully review medical history and
prescribe appropriate antibiotic it might be considered medical
malpractice, but did not amount to a constitutional violation);
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Brown
v.
Thompson,
868
F.
Supp.
326,
331
(S.D.
Ga.
1994)
(accidents, mistakes, negligence, and medical malpractice are not
constitutional violations, and a difference in medical opinion
also does not amount to a constitutional violation).
Mere
claims
of
negligence
or
inattention
by
a
medical
practitioner do not rise to the level of an Eighth Amendment
violation which is actionable under § 1983.
Estelle v. Gamble,
429 U.S. 97, 106 (1976)(medical malpractice does not become a
constitutional violation merely because the victim is a prisoner);
Mandel v. Doe, 888 F.2d 783, 787–88 (11th Cir. 1989). “It is
obduracy and wantonness, not inadvertence or error in good faith,
that characterize the conduct prohibited by the Cruel and Unusual
Punishments Clause[.]” Whitley v. Albers, 475 U.S. 312, 319 (1986).
In addition, a mere simple difference in medical opinion between
the prison's medical staff and the inmate as to the proper course
of treatment also does not support a claim of cruel and unusual
punishment. Harris v. Thigpen, 941 F.2d 1495, 1505 (11th Cir. 1991)
(“Mere incidents of negligence or malpractice do not rise to the
level of constitutional violations.”).
Because Plaintiff has failed to state a claim for a violation
of his constitutional rights, his complaint must be dismissed.
However, a claim of medical negligence may be asserted in a state
court
under
state
law.
Therefore,
the
dismissal
is
without
prejudice to Plaintiff reasserting his claims in a state forum.
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Finally, a federal court must have “at least one of three
types of subject matter jurisdiction: (1) jurisdiction under a
specific
statutory
pursuant
to
28
grant;
U.S.C.
§
(2)
1331;
federal
or
(3)
question
jurisdiction
diversity
jurisdiction
pursuant to 28 U.S.C. § 1332(a).” Baltin v. Alaron Trading Corp.,
128 F.3d 1466, 1469 (11th Cir. 1997).
Because Plaintiff has not
stated a cognizable federal question claim, nor alleged that the
Court has jurisdiction pursuant to diversity of citizenship or a
specific
statutory
grant,
this
Court
lacks
subject
matter
jurisdiction over the action.
ACCORDINGLY, it is hereby
ORDERED:
1.
Plaintiff's civil rights complaint (Doc. 1) is DISMISSED
without prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) for
failure to state a claim upon which relief may be granted and for
lack of jurisdiction.
2.
The Clerk of Court is directed to terminate any pending
motions, close this case, and enter judgment accordingly.
DONE and ORDERED in Fort Myers, Florida on this
of March, 2015.
SA: OrlP-4
Copies: Demetrice P. Smith
Counsel of Record
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24th
day
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