Wromas v. Cruz et al
Filing
82
ORDER denying 45 motion to dismiss. Signed by Judge John E. Steele on 5/22/2018. (RKR)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
KEITH WROMAS, JR.,
Plaintiff,
v.
Case No:
2:17-cv-155-FtM-99MRM
WILLIAM E. CRUZ, FNU MATTOX,
Sergeant, and P. MURPHY,
Warden,
Defendants.
ORDER
This matter comes before the Court on Defendant Shawn Mattox’s
Motion to Dismiss (Doc. #45) filed on October 18, 2017.
Plaintiff
filed his response in opposition Mattox’s motion (Doc. #49) on
November 6, 2017.
For the reasons set forth below the motion to
dismiss is denied.
I.
Plaintiff,
an
inmate
at
the
Century
Correctional
Institution, in Century, Florida, initiated this action by filing
a pro se civil rights complaint pursuant to 42 U.S.C. § 1983
against Defendants W. Cruz, Sergeant Mattox, Sergeant Stuber, and
Officer Lopez (Doc. #1), filed March 20, 2017.
The Court ordered
Plaintiff to amend his complaint on June 13, 2017.
Plaintiff
filed his amended complaint (Doc. #15) on July 26, 2017, against
Defendants W. Cruz and Sergeant Mattox.
Plaintiff filed his
Second Amended Complaint (Doc. #38) against Defendants W. Cruz,
Sergeant
Mattox,
and
Patrick
Murphy,
Warden
of
the
DeSoto
Correctional Institution on October 2, 2107.
Plaintiff
alleges
the
following:
On
December
31,
2015,
between five and six in the evening, Plaintiff was handcuffed near
the south side chow hall at DeSoto Correctional Institution. (Doc.
#38 at 7).
As Defendant Cruz was escorting Plaintiff from the
Southside dining hall, Defendant Cruz began to “pull aggressively”
on Plaintiff’s right arm. Id.
Defendant Cruz, with Defendant
Mattox in tow, escorted Plaintiff around the chow hall door, and
pushed
him
up
against
a
concrete
wall.
Id.
Defendant
Cruz
aggressively and deliberately pushed Plaintiff’s face against the
wall. Id.
Plaintiff told Defendant Cruz “you just assaulted me.”
and Defendant Cruz said, “I’ll show you assault.” Id.
Defendant
Cruz picked Plaintiff up and slammed him onto his left shoulder.
Id.
He then put the entire weight of his knee in Plaintiff’s
back.
Id.
Plaintiff
screamed
out
“I
can’t
breathe.”
Id.
Defendant Cruz remained there for twenty minutes until someone
told him that the captain was coming.
At that time, Defendant
Cruz got up and two unknown officers switched positions with
Defendant Cruz and escorted him to medical. Id.
Defendant Mattox just stood by and watched the attack and did
not attempt to intervene, correct, or even report the attack. Id.
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Defendant
Maddox
did
not
try
to
remove
Defendant
Cruz
from
Plaintiff’s back. Id.
Plaintiff seeks $25,000.00 in damages from each defendant and
$20,000.00 in punitive damages against Defendant Murphy for the
deliberate indifference to the conduct of his employees.
II.
Under Federal Rule of Civil Procedure 8(a)(2), a Complaint
must contain a “short and plain statement of the claim showing
that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2).
This obligation “requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action will not
do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citation
omitted).
To survive dismissal, the factual allegations must be
“plausible” and “must be enough to raise a right to relief above
the speculative level.” Id. See also Edwards v. Prime Inc., 602
F.3d 1276, 1291 (11th Cir. 2010). This requires “more than an
unadorned,
the-defendant-unlawfully-harmed-me
accusation.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citations omitted).
In deciding a Rule 12(b)(6) motion to dismiss, the Court must
accept all factual allegations in a complaint as true and take
them in the light most favorable to plaintiff, Erickson v. Pardus,
551 U.S. 89 (2007), but “[l]egal conclusions without adequate
factual support are entitled to no assumption of truth.” Mamani v.
Berzain, 654 F.3d 1148, 1153 (11th Cir. 2011) (citations omitted).
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“Threadbare
recitals
of
the
elements
of
a
cause
of
supported by mere conclusory statements, do not suffice.”
556 U.S. at 678.
with
a
action,
Iqbal,
“Factual allegations that are merely consistent
defendant's
liability
fall
short
of
being
facially
plausible.” Chaparro v. Carnival Corp., 693 F.3d 1333, 1337 (11th
Cir. 2012) (internal citations omitted).
Thus, the Court engages
in a two-step approach: “When there are well-pleaded factual
allegations,
a
court
should
assume
their
veracity
and
then
determine whether they plausibly give rise to an entitlement to
relief.” Iqbal, 556 U.S. at 679.
III.
Plaintiff
alleges
Officer
Mattox
violated
his
Eighth
Amendment right to be free from cruel and unusual punishment when
he did not prevent Officer Cruz from using excessive force against
him.
An officer who is present at the scene and who fails to take
reasonable steps to protect the victim of another officer’s use of
excessive force can be held personally liable for his nonfeasance.
Hadley v Gutierrez, 526 F.3d 1324, 1330-31 (11th Cir. 2008).
However,
a
constitutional
violation
for
failure
to
intervene
occurs only when a plaintiff establishes that: (1) the defendant
had
the
time
and
the
opportunity
to
intervene;
and
(2)
the
defendant should have reasonably known that the other officers’
conduct was in violation of the plaintiff’s constitutional rights.
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See Priester v. City of Riviera Beach, Fla., 208 F.3d 919 (2000)
(affirming conviction of officer for failure to intervene where
the officer “observed the entire attack and had the time and
ability to intervene,” and “excessive force . . . was such that
every reasonable officer would have known that it was clearly in
violation of the plaintiff’s constitutional rights).
Taking Plaintiff’s factual allegations as true, Defendant
Maddox had sufficient time to intervene in Defendant Cruz’s action.
Plaintiff states that Defendant Cruz shoved him into the wall and
then slammed him onto the floor in an aggressive manner.
Plaintiff
then states that Defendant Cruz sat on him for over twenty minutes
while he complained to Defendant Cruz that he could not breathe.
(Doc. #38 at 7).
While Defendant Mattox may not have anticipated
Officer Cruz’s pushing Plaintiff into a wall and slamming him down
on the floor, there was period of twenty minutes where Defendant
Cruz sat on Plaintiff while Plaintiff complained that he could not
breathe.
Twenty minutes is more than sufficient time Defendant
Mattox to intervene.
Again taking the facts as true, Defendant Mattox could have
reasonably determined that sitting on an individual for twenty
minutes after slamming him down on the floor could rise to the
level
of
a
constitutional
violation
as
excessive
force.
Therefore, Defendant Mattox’s failure to intervene could rise to
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the level of a constitutional violation and the motion to dismiss
is due to be denied.
Accordingly, it is hereby
ORDERED:
Defendant Shawn Mattox’s Motion to Dismiss (Doc. #45) is
DENIED.
DONE and ORDERED at Fort Myers, Florida, this
of May, 2018.
Copies:
Counsel of Record
SA: FTMP-2
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22nd
day
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