Young et al v. Scott et al

Filing 11

ORDER OF DISMISSAL dismissing 10 Amended Complaint pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) without prejudice to each named plaintiff filing his own complaint along with a motion to proceed in forma pauperis. The Clerk shall enter judgment accordingly and close the case. Signed by Judge John E. Steele on 8/23/2016. (RKR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
MICHAEL GEORGE YOUNG, JR.,
STEVEN
TOMPKINS,
RODNEY
DICKERSON,
KENNETH
J.
DUBEAU, JAURON C. BRYAN,
JOSE PEREZ, ANTONIO THOMAS,
GARY
MARTIN
DIPIETRO,
CHRISTOPHER FURLAN, BRIAN
PATTERSON,
DAVIAN
GREEN,
MELTZ VAL CELESTIN, NELSON
XAVIER BORGES, and ROBERT
FUSNER,
Plaintiffs,
v.
MIKE SCOTT, Sheriff, FNU
ELLENGOOD,
Chief,
THOMAS
EBERHARDT, Colonel, JAMES
BARACCO, Major, FNU HALL,
Major,
KEVIN
KOLLER,
Captain,
MIA
RODGERS,
Captain,
DUANE
SIMON,
Lieutenant, FNU ANDERSON,
Lieutenant, LARRY G. VAUGHN,
President, JOHN D. GREER,
Vice President, D. KIPP,
Asst.
Food
Services
Director, RAMONDA SUTTON,
Kitchen Staff, Jail, MIKE
HENNESSEY, Kitchen Staff,
Core Building, FNU KIRCH,
MS. , Registered Dietician,
JOHN
MANNING,
County
Commissioner,
CECIL
PENDERGRASS,
County
Commissioner, LARRY KIKER,
County Commissioner, BRIAN
HAMMAN, County Commissioner,
FRANK
MANN,
County
Commissioner,
ROGER
DESJARLAIS,
County
Commissioner, RICHARD WESCH,
County Commissioner, ANDREW

Case No: 2:16-cv-581-FtM-99CM

SMALL,
Former
Health
Services
Administrator,
RONDA MASON, Current Health
Services
Administrator,
LOURDES
CARRERO,
Dr.,
SHIRLETTE THOMAS, P.A., FNU
DA ROSS, Former Sgt. in
charge of the C.E.R.T Team,
FNU HUTCHINSON, Currently in
charge of the C.E.R.T Team,
FNU CALHOUN, Officer, FNU
MILLER,
Officer,
FNU
BOURGESS,
Officer,
FNU
BELLIUS, Officer, and FNU
LOPEZ, Officer,
Defendants.
ORDER OF DISMISSAL
This matter comes before the Court upon a putative class
action complaint filed by thirteen inmates and former inmates of
the Lee County Jail in Fort Myers, Florida (Doc. 1, July 26, 2016).
Plaintiff Young is the proposed representative of the class action.
Plaintiff Young filed a motion to proceed in forma pauperis (Doc.
6, filed August 12, 2016).

An amended complaint is presently

before the Court (Doc. 10).
Because

the

plaintiffs

seek

leave

to

proceed

in

forma

pauperis, the Court must review the 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).
After conducting an initial review, this action is DISMISSED
without prejudice for failure to state a claim on which relief may

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be granted.

Each plaintiff my file a separate complaint and pay

a separate filing fee should he or she wish to proceed.
I.

Complaint 1

Each plaintiff is an inmate or former inmate at the Lee County
Jail in Fort Myers, Florida (Doc. 10 at 33).

The 48-page amended

complaint generally argues that inmates at the Lee County Jail are
subjected to cruel and unusual punishment and other constitutional
violations because:
The meals served at the jail are not wholesome, substantial, or
nutritious;
The inmates’ personal property is often destroyed during facility
shakedowns and transfers;
The inmates’ windows do not provide sunlight or a view of the
outside world;
The inmates are fed an insufficient number of daily fruits and
vegetables and do not receive three cups per day of dairy products;
The inmates are not allowed to receive “new updated books from
vendors”;
The inmates cannot visit with family or friends via electronic
communication;
1

Although written in numbered paragraphs, the lengthy
complaint presents a jumbled narrative which makes it impossible
to discern the nature of the alleged constitutional violations. To
the extent Plaintiff intended to raise additional claims or to
allege facts not considered in this Order, such claims are
dismissed for failing to state a claim upon which relief can be
granted. 28 U.S.C. § 1915(e)(2)(B)(ii).
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The inmates are only allowed to receive post-card correspondence
from family and friends which is not private;
The inmates are not allowed to print legal information; type legal
motions; or call their attorneys’ toll-free numbers to seek legal
advice;
There is very little privacy in the jail, and it is noisy and cold;
The inmates are only provided a black mesh bag, and no locker or
footlocker for personal items;
The canteen is too expensive and inmates are not allowed to order
items from online sources;
The inmates are not allowed to have toothbrushes with handles;
The inmates are not allowed to possess a radio to listen to music
and relieve stress and tension;
Non-violent inmates with violent charges are not allowed to do
trusty work;
Recreation is limited to three hours per week;
Board games have been removed from the jail;
The inmates do not receive education;
Television is only shown for four hours per day;
The visitation booths do not always function properly;
The inmates are given insufficient time to shower, clean their
room, make phone calls, and check their emails; and
Inmates at the Lee County Jail are not treated as well as prisoners
incarcerated by the Florida Department of Corrections.

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(Doc. 10 at 16 - 37).

The plaintiffs seek injunctive relief;

three million dollars in compensatory damages; one million dollars
in punitive damages; ten thousand dollars in nominal damages for
each plaintiff; and declaratory relief (Doc. 10 at 40-41).
II.
A

federal

district

Standard of Review
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 upon which
relief may be granted. 28 U.S.C. § 1915(e).

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

(B)

the action or appeal(i)

untrue; or

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 v. Williams, 490 U.S. 319, 325 (1989).

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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 exist. Id. at 327.

In addition, where an affirmative

defense 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).
The phrase “fails to state a claim upon which relief may be
granted” has the same meaning as the nearly identical phrase in
Federal

Rule

of

Civil

Procedure

12(b)(6).

See

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), and we will apply Rule 12(b)(6) standards
in reviewing dismissals under section 1915(e)(2)(B)(ii).”). That
is,

although

a

complaint

need

not

provide

detailed

factual

allegations, there “must be enough to raise a right to relief above
the speculative level,” and the complaint must contain enough facts
to state a claim that is “plausible on its face.” Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 555–56 (2007).
In making the above determinations, all factual allegations
in the complaint must be viewed as true. Brown v. Johnson, 387
F.3d 1344, 1347 (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).

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III. Analysis
a.

Pleading Deficiencies

Plaintiff has submitted the type of pleading the Federal Rules
of Civil Procedure are designed to prevent. Rule 8 requires a
complaint to “contain a short and plain statement of the claim
showing that the pleader is entitled to relief.” Fed. R. Civ. P.
8(a)(2); Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“[T]he
pleading standard Rule 8 announces does not require ‘detailed
factual allegations,’ but it demands more than an unadorned, thedefendant-unlawfully-harmed-me accusation.” (quoting Twombly, 550
U.S. at 555)).

Rule 10 further provides, “[i]f doing so would

promote clarity, each claim founded on a separate transaction or
occurrence . . . must be stated in a separate count[.]” Fed. R.
Civ. P. 10(b).

Rules 8 and 10 work together and “‘require the

pleader to present his claims discretely and succinctly, so that
his

adversary

can

discern

what

he

is

claiming

and

frame

a

responsive pleading, the court can determine which facts support
which claims and whether the plaintiff has stated any claims upon
which relief can be granted, and, at trial, the court can determine
that evidence which is relevant and that which is not.’” Fikes v.
City of Daphne, 79 F.3d 1079, 1082 (11th Cir. 1996) (citation
omitted).
Here, the amended complaint represents a confusing mixture of
allegations,

relevant

facts,

irrelevant

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facts,

disjointed

narrative, and conclusory accusations (Doc. 10).

In fact, the

plaintiffs do not name a single defendant in the body of the
complaint, much less associate him or her with any specific claim.
It is the type of pleading that renders it impossible for a
defendant to answer and must be dismissed under Rule 8 for that
reason.
b.

Class Certification

A district court has broad discretion in determining whether
to certify a class. See Washington v. Brown & Williamson Tobacco
Corp., 959 F.2d 1566, 1569 (11th Cir. 1992).

Rule 23(a) of the

Federal Rules of Civil Procedure lists the prerequisites to a class
action as:
(1) the class is so numerous that joinder of
all members is impracticable; (2) there are
questions of law or fact common to the class;
(3)
the
claims
or
defenses
of
the
representative parties are typical of the
claims or defenses of the class; and (4) the
representative
parties
will
fairly
and
adequately protect the interests of the class.
Fed. R. Civ. P. 23(a).

The party requesting class certification

bears the burden of proving that each of these prerequisite has
been met. See Gilchrist v. Bolger, 733 F.2d 1551, 1556 (11th Cir.
1984).

In addition, the party must prove the proposed class

properly falls into one of the subsections of Rule 23(b) of the
Federal Rules of Civil Procedure. The plaintiffs propose a class
of individuals who are “[a]ll formally [sic] Lee County Jail held
detainees” (Doc. 10 at 22).

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The plaintiffs fail to establish any of the above conditions
under Rule 23(a) or (b).

Most significantly however, Michael

Young, Jr., a pro se litigant, cannot prosecute a class action in
this Court. See Ferentinos v. Kissimmee Util. Auth., No. 6:13-cv1728, 2014 WL 2993571, at *12 (M.D. Fla. July 2, 2014), aff’d, 604
F. App’x 808 (11th Cir. 2015).

Rule 23 requires the class

representative to demonstrate that he will “fairly and adequately
protect the interests of the class.” Fed. R. Civ. P. 23(a)(4); see
also London v. Wal–Mart Stores, Inc., 340 F.3d 1246, 1253 (11th
Cir. 2003).

A pro se litigant cannot serve as an adequate class

representative. See Ferentinos, 2014 WL 2993571, at *12; Smith v.
Polk Cnty., Fla., No. 8:05-cv-884, 2005 WL 1309910, at *1 (M.D.
Fla. May 31, 2005) (“[i]t would be plain error to allow a pro se
litigant to represent fellow inmates in a class action”) (citation
omitted); Ali v. United States Parole Comm’n, No. 06–0235, 2007 WL
902312, at *4-5 (D.D.C. March 23, 2007) (“The Court agrees with
this substantial precedent that a pro se litigant is not a suitable
class representative”).

Thus, the plaintiffs cannot proceed with

this class action.
c.

Amendment

Although the defects in the amended complaint cannot be cured
by amendment at this stage of litigation, each individual plaintiff
may be able to state his own individual claim[s] by filing a new
complaint in a new case.

Should any plaintiff choose to file a

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new complaint, he is admonished to adhere to the Federal Rules of
Civil Procedure, particularly Rule 8, when amending.

The amended

complaint must not exceed 25 pages in length and each claim must
be separately numbered. The plaintiff must place his full name,
and only his name, as the plaintiff in the style of the case on
the first page of the civil rights complaint form.

Further, he

should write his full name and address in the appropriate sections
of the civil rights complaint form and provide the full name and
current address for each defendant.
The plaintiff must state what rights under the Constitution,
laws, or treaties of the United States have been violated in the
section entitled “Statement of Claim.”

It is improper for the

plaintiff to merely list constitutional rights or federal rights;
he must provide brief support in the statement of facts for the
claimed violations. However, the plaintiff should not include
argument in his amended complaint. Citations of case law and
statutes are not appropriate in the complaint, but rather may be
included at the time of trial or in a motion for summary judgment.
In amending, the plaintiff must name as defendants only those
persons

who

violations.

are
If

responsible
the

for

plaintiff

the

alleged

cannot

state

constitutional
exactly

how

a

particular defendant harmed him, he should delete or drop that
person as a defendant from his complaint.

In addition, where a

plaintiff seeks to impose liability on one who is not an active

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participant in the alleged constitutional deprivation, he must
allege and establish an affirmative causal connection between the
defendant’s conduct and the constitutional deprivation.

Williams

v. Bennett, 689 F.2d 1370, 1380–1381 (11th Cir. 1982).
Plaintiff should be aware that 42 U.S.C. §§ 1997e(a) and (e)
contain conditions that a prisoner must satisfy before pursuing a
federal civil rights complaint.

Specifically, under subsection

(a), Plaintiff must fully exhaust all available administrative
duties before pursuing a civil rights complaint concerning prison
conditions.

Subsection (e) limits a prisoner’s ability to pursue

a federal civil action to recover damages for mental or emotional
injuries suffered while in custody. 2

Plaintiff must comply with

the requirements of these subsections.
Finally, many of the claims raised in the instant complaint
appear to be unrelated to each other.

For example, the plaintiffs’

claims that they do not get the latest reading material from the

2

A plaintiff cannot avoid § 1997e(e)’s limitation on monetary
damages, as is attempted in the instant complaint, by requesting
a significant amount of “nominal damages.” Nominal damages are
generally limited to one dollar. See Carey v. Piphus, 435 U.S.
247, 266–67 (1978) (holding if plaintiffs were entitled to nominal
damages for the mere violation, the damages should not exceed one
dollar); Kyle v. Patterson, 196 F.3d 695, 697 (7th Cir. 1999)
(“[N]ominal damages, of which $1 is the norm, are an appropriate
means of vindicating rights whose deprivation has not caused
actual, provable injury.”); Harrison v. Myers, No. 10–0566–KD–N,
2011 WL 3204372, at *7 (S.D. Ala. July 13, 2011) (prisoner’s
request of $2,500 was not for nominal damages inasmuch as nominal
damages implies a mere token or trifling).
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library is completely unrelated to claims that the temperature of
the jail is uncomfortable.

If claims are not related to the same

basic issue or incident, then each must be raised in a separate
suit to prevent confusion and to ensure that the plaintiffs pay
the required filing fees. See George v. Smith, 507 F.3d 605, 607
(7th Cir. 2007) (“Unrelated claims against different defendants
belong in different suits, not only to prevent the sort of morass
that this 50–claim, 24–defendant suit produced but also to ensure
that [plaintiffs] pay the required filing fees[.]”).
Accordingly, it is hereby ORDERED:
1.

The amended complaint (Doc. 10) is DISMISSED pursuant to

28 U.S.C. § 1915(e)(2)(B)(ii).

The dismissal is without prejudice

to each named plaintiff filing his own complaint along with a
motion to proceed in forma pauperis.
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 August, 2016.

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23rd

day

SA: OrlP-4
Copies: Michael George Young, Jr., Steven Tompkins, Rodney
Dickerson, Kenneth J. Dubeah, Jauron C. Bryon, Jose Perez,
Antonio Thomas, Gary Margin DePietro, Christopher Furlan, Brian
Patterson, Davian Green, Meltz Van Celestin, Nelson Xavier
Borges, and Robert Fusner

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