Pacheco v. Charlotte County Jail et al

Filing 6

OPINION AND ORDER dismissing claims against the Charlotte County Jail with prejudice because this defendant may not be sued under 42 U.S.C. § 1983; dismissing remaining claims without prejudice under 28 U.S.C. § 1915(e)(2)(B)(ii). Plaintiff may file an amended complaint against defendant Grabowski within 21 days. If no amended complaint is filed, the case will be closed by separate order. Signed by Judge John E. Steele on 12/27/2016. (RKR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
ALBENIR PACHECO,
Plaintiff,
v.

Case No: 2:16-cv-863-FtM-99MRM

CHARLOTTE
COUNTY
JAIL,
CORIZON HEALTH CARE, and TIM
GRABOWSKI, PA-C,
Defendants.
OPINION AND ORDER
Plaintiff, an inmate at the Charlotte County Jail in Punta
Gorda, Florida, initiated this action by filing a pro se civil
rights complaint pursuant to 42 U.S.C. § 1983 against Defendants
Charlotte County Jail, Corizon Health Care, and Tim Grabowski (Doc.
1, filed December 6, 2016).

Along with his complaint, Plaintiff

filed a motion to proceed in forma pauperis (Doc. 2).
Because Plaintiff seeks to proceed in forma pauperis, the
Court

must

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).

For the

reasons set forth in this Order, the claims raised in the complaint
are dismissed without prejudice for failure to state a claim upon
which

relief

can

be

granted.

28

U.S.C.

§

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

Should

the

facts

support

a

constitutional

cause

of

action,

Plaintiff may file an amended complaint.
I.

Complaint

Plaintiff alleges the following:

He has been incarcerated

at the Charlotte County Jail since September 3, 2016 (Doc. 1 at
6).

Plaintiff is supposed to receive twenty units of insulin in

the morning and ten units of insulin at night. Id.
two

separate

Plaintiff

to

occasions,

these

experience

an

amounts

insulin

were

However, on

switched,

overdose.

Id.

causing

The

first

overdose resulted in Plaintiff’s hospitalization, and the second
overdose was treated at the jail. Id.
overdoses

happened

because

the

Plaintiff asserts that the

insulin

was

not

administered

according to protocol and because nobody authenticates insulin
dosage at the Charlotte County Jail. Id. at 7.
Plaintiff asserts that he routinely fears for his safety at
the jail (Doc. 1 at 7).

He asks this Court to order the defendants

to “utilize cross coverage on administration of insulin,” and he
also seeks compensatory and punitive damages. Id. at 8.
II.
A

federal

district

Legal Standards
court

is

required

to

review

a

civil

complaint filed in forma pauperis and 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.

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The mandatory language

of 28 U.S.C. § 1915 applies to all proceedings in forma pauperis.
Section 1915 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
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

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).

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 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
Title 42 U.S.C. § 1983 imposes liability on one who, under
color of state law, deprives a person “of any rights, privileges,
or immunities secured by the Constitution and laws[.]” 42 U.S.C.
§ 1983.

To articulate a claim under § 1983, a plaintiff must

allege that: (1) a defendant deprived him of a right secured under
the Constitution or federal law; and (2) such deprivation occurred
under color of state law. Arrington v. Cobb County, 139 F.3d 865,
872 (11th Cir. 1998).

In addition, where a plaintiff seeks to

impose liability on one who is not an active participant in the
alleged constitutional deprivation, that plaintiff 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).
Liberally construing this complaint, Plaintiff appears to
raise negligence and deliberate indifference claims against the
defendants due to their carelessness in administering his insulin.
a.

The Charlotte County Jail is dismissed from this
action with prejudice

In order to bring a viable § 1983 action, the defendant must
be an entity subject to being sued. Dean v. Barber, 951 F.2d 1210,
1214 (11th Cir. 1992).

A correctional facility or jail is not a

proper defendant in a case brought under 42 U.S.C. § 1983.

The

jail is not an actionable legal entity because it does not enjoy

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a

separate

legal

existence

independent

of

the

County

or

the

Sheriff's Office. Mayes v. Elrod, 470 F. Supp. 1188, 1192 (N.D.
Ill. 1979).

The capacity of a governmental corporation to be sued

in federal court is governed by the law of the state in which the
district court is located. Dean, 951 F.2d at 1214.
Florida law does not recognize a jail facility as a legal
entity separate from the Sheriff charged with its operation and
control. See generally Chapter 30, Florida Statues.
Charlotte

County

Jail

must

be

dismissed

with

Thus, the

prejudice

as

a

defendant pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). See Marsden
v. Federal Bureau of Prisons, 856 F. Supp. 832, 836 (S.D.N.Y.
1994); Barber, 951 F.2d at 1214 (noting that sheriff's departments
and police departments are not legal entities subject to suit under
§ 1983); De La Garza v. Kandiyohi County Jail, 18 F. App’x 436,
437 (8th Cir. 2001) (affirming dismissal of county jail for failure
to state a claim because the jail is not an entity that can be
sued for purposes of a § 1983 action) (citing Marsden and Barber).
b.

Plaintiff has not stated a claim for respondeat superior
liability against Defendant Corizon Health Care

Plaintiff makes no specific allegations against Defendant
Corizon Health Care (“Defendant Corizon”) in the body of his
complaint.

He states only that the Charlotte County Jail has a

contract with Defendant Corizon to provide healthcare to the
inmates (Doc. 1 at 6).

To the extent Plaintiff urges that

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Defendant Corizon is liable under § 1983 for the negligence or
deliberate indifference of its employees, he does not state a
claim.

Supervisors, employers, and private contractors cannot be

sued under § 1983 simply on a theory of respondeat superior. See
Kruger v. Jenne, 164 F. Supp. 2d 1330, 1333–34 (S.D. Fla. 2000)
(citing Powell v. Shopco Laurel, Co., 678 F.2d 504 (4th Cir. 1982))
(explaining that [the supervisor] who provided medical care for
state inmates could not be sued under § 1983 on respondeat superior
theory); Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691 & 694
n. 58 (1978).

Instead, a corporation providing prison medical

services is liable under § 1983 only if it is established that the
constitutional

violation

was

the

result

of

the

corporation’s

policy or custom. See Buckner v. Toro, 116 F.3d 450 (11th Cir.
1997).

A single incident alleged in a complaint, especially when

it involved only actors below the policymaking level, generally
will not suffice to raise an inference of the existence of a custom
or policy that resulted in a constitutional violation and will not
state a claim. See Dwares v. City of New York, 985 F.2d 94, 100
(2d

Cir.

1993)

(overruled

on

other

grounds)

(citing

Oklahoma City v. Tuttle, 471 U.S. 808, 823-24 (1985)).

City

of

Plaintiff

does not allege that Defendant Corizon has a policy or custom of
failing to ensure that inmates are provided the correct insulin
dosage. In fact, he appears to assert that the Charlotte County

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Jail’s

failure

to

double-check

the

dosages

in

his

case

was

“contrary to protocol.” (Doc. 1 at 7).
Because they are based solely upon a theory of respondeat
superior, and because Plaintiff does not allege a sufficient causal
connection between Defendant Corizon and the insulin overdoses,
Plaintiff’s claims against Defendant Corizon Health Care are due
to be dismissed for failure to state a claim pursuant to 28 U.S.C.
§ 1915(e)(2)(B)(ii).
c.

Plaintiff’s negligence claim is not properly brought
under 42 U.S.C. § 1983

The gravamen of Plaintiff’s complaint is that Defendant Tim
Grabowski negligently failed to ensure that Plaintiff received the
correct insulin dosage at the correct time, resulting in two
insulin overdoses.

However, § 1983 cannot be used as a tool to

bring a generalized negligence-based tort suit in federal court.
Instead, it remedies errors of constitutional dimension.

In order

to state an Eighth Amendment prison-conditions suit relating to
the overdoses, Plaintiff would have to show that the defendants in
charge

of

his

insulin

were

deliberately

indifferent

to

“an

excessive risk to inmate health or safety[.]” Farmer v. Brennan,
511 U.S. 825, 834, (1994).

A constitutional violation of the type

most analogous to Plaintiff’s claim would require considerably
more than the mere negligence alleged here. See Goebert v. Lee
County, 510 F.3d 1312, 1326 (11th Cir. 2007) (noting that the

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subjective component of the deliberate indifference test requires
more than even gross negligence).

Instead, Plaintiff must show

that the defendant knew of, yet disregarded an excessive risk to
his health or safety. Farmer, 511 U.S. at 837.
Likewise, not every claim by a prisoner that he received
inadequate or faulty medical treatment states a violation of the
Eight Amendment. 1 Estelle v. Gamble, 429 U.S. 97, 105 (1976). “[A]
complaint that a physician has been negligent in diagnosing or
treating a medical condition does not state a valid claim of
medical

mistreatment

under

the

Eighth

Amendment.

Medical

malpractice does not become a constitutional violation merely
because the victim is a prisoner.” Id. at 106. “In order to state
a cognizable claim, a prisoner must allege acts or omissions
sufficiently

harmful

serious medical needs.

to

evidence

deliberate

indifference

to

It is only such indifference that can

1

It is unclear from the pleadings whether Plaintiff was a
prisoner or a pre-trial detainee at the Charlotte County Jail at
the time of the incident about which he complains. If Plaintiff
was a pre-trial detainee, his constitutional claims sound properly
in the Fourteenth Amendment right to due process of law rather
than in the Eighth Amendment. See Lancaster v. Monroe County,
Alabama, 116 F.3d 1419, 1425 n.6 (11th Cir. 1997), abrogated on
other grounds by Lake v. Skelton, 840 F.3d 1334 (11th Cir. 2016).
Nevertheless, allegations of cruel and unusual punishment are
analyzed in identical fashions regardless of whether they arise
under the Due Process Clause or the Cruel and Unusual Punishment
Clause of the United States Constitution. Taylor v. Adams, 221
F.3d 1254, 1257 n.3 (11th Cir. 2000).

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offend ‘evolving standards of decency’ in violation of the Eighth
Amendment.” Id.
Here, Plaintiff has not alleged any facts indicating that
Defendant Grabowski knew that the lack of “authenticated dosages”
at the Charlotte County Jail would result in the switching of
Plaintiff’s morning and evening insulin dosage and the resulting
overdoses, yet callously and deliberately chose to disregard that
risk.

Consequently, Plaintiff’s negligence-based claims against

the defendants for failing to ensure the correct insulin dosage
fails as a matter of law. See Daniels v. Williams, 474 U.S. 327
(1986) (prison official’s negligence in failing to protect inmate
from harm does not give rise to a cause of action under § 1983);
Taylor v. Adams, 221 F.3d 1254, 1259 (11th Cir. 2000) (“[F]ailure
to follow procedures does not, by itself, rise to the level of
deliberate indifference because doing so is at most a form of
negligence.”).
Accordingly,

Plaintiff’s

negligence

under 28 U.S.C. § 1915(e)(2)(B)(ii).

claims

are

dismissed

However, should the facts

support a constitutional deliberate indifference claim, Plaintiff
may file an amended complaint against Defendant Grabowski.
III. Conclusion
Plaintiff’s 42 U.S.C. § 1983 complaint fails to state a claim
on which relief can be granted.

Plaintiff has not stated a claim

for respondeat superior liability.

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In addition, § 1983 cannot be

used to bring a generalized negligence-based tort suit in federal
court.
1.

Accordingly, it is now ORDERED:
Plaintiff’s claims against the Charlotte County Jail are

dismissed with prejudice because this defendant may not be sued
under 42 U.S.C. § 1983. 28 U.S.C. § 1915(e)(2)(B)(i).

Plaintiff’s

remaining claims are dismissed without prejudice under 28 U.S.C.
§ 1915(e)(2)(B)(ii).
2.

Should

the

facts

support

a

constitutional

cause

of

action, Plaintiff may file an amended complaint against Defendant
Grabowski within TWENTY-ONE (21) DAYS from the date on this Order.
If Plaintiff does not file an amended complaint within the allotted
time, a separate order will issue closing this file.
DONE and ORDERED in Fort Myers, Florida on this
of December, 2016.

SA: OrlP-4
Copies: Albenir Pacheco
Counsel of Record

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27th

day