Irons v. Carroll et al

Filing 44

ORDER granting 29 motion to dismiss; dismissing Complaint with prejudice as to Secretary Carroll; denying 40 Motion to suspend Carroll's motion to dismiss. Signed by Judge John E. Steele on 2/14/2019. (RKR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
DANEAL JUSMAN IRONS,
Plaintiff,
v.

Case No:

2:17-cv-561-FtM-29UAM

MIKE
CARROLL,
Secretary,
Florida
Department
of
Children
and
Families,
DONALD SAWYER, Florida Civil
Commitment
Center
Administrator,
REBECCA
JACKSON, Dr. Florida Civil
Commitment Center Clinical
Director, MELINDA MASTERS,
Assistant Clinical Director,
CHRIS
CATRON,
Security
Director,
RICK
MCCAULEY,
Clinician,
and
SERENA
WILLIAMS,
Clinical
Team
Leader,
Defendants.

ORDER
This matter comes before the Court on Defendant's Motion to
Dismiss Secretary of the Department of Corrections, Mike Carroll,
Doc. #29), filed on July 23, 2018.

Plaintiff filed a Motion to

Suspend Defendant Carroll’s Motion to Dismiss (Doc. #40) on August
7, 2018.

I. Background
Plaintiff is a civil detainee at the Florida Civil Commitment
Center (FCCC) located in Arcadia, Florida. 1

Plaintiff initiated

this case by filing a civil rights complaint (Doc. #1) pursuant to
42 U.S.C. § 1983.
Plaintiff’s Complaint consists of grievances he made against
the

Defendants

in

the

case.

Plaintiff

makes

no

factual

allegations against Secretary Carroll other than to list him in
the style of the case, and as a defendant on page three.

Otherwise

Plaintiff states the he wrote a letter to DCF but does not state
he addressed the letter to Secretary Carroll.
II.

Standard of Review

In deciding a Rule 12(b)(6) motion to dismiss, the Court
limits

its

consideration

to

well-pleaded

factual

allegations,

documents central to or referenced in the complaint, and matters

1

The Florida legislature enacted the Sexually Violent
Predators Act, Florida Statute §§ 394.910-.913, by which a person
determined to be a sexually violent predator is required to be
housed in a secure facility “for control, care, and treatment until
such time as the person’s mental abnormality or personality
disorder has so changed that it is safe for the person to be at
large.” Fla. Stat. § 394.917(2). The Act was promulgated for the
dual purposes “of providing mental health treatment to sexually
violent
predators
and
protecting
the
public
from
these
individuals.”
Westerheide v. State, 831 So. 2d 93, 112 (Fla.
2002); Kansas v. Hendricks, 521 U.S. 346 (1997) (holding that the
Kansas Sexually Violent Predator Act did not establish criminal
proceedings, and involuntary confinement pursuant to the Act was
not punitive).

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judicially noticed. La Grasta v. First Union Sec., Inc., 358 F.3d
840, 845 (11th Cir. 2004). The Court must accept all factual
allegations in Plaintiff’s Complaint as true and take them in the
light most favorable to the plaintiff. Pielage v. McConnell, 516
F.3d

1282,

1284

(11th

Cir.

2008).

Conclusory

allegations,

however, are not entitled to a presumption of truth. Ashcroft v.
Iqbal, 556 U.S. 662 (2009) (discussing a 12(b)(6) dismissal); Marsh
v. Butler County, Ala., 268 F.3d 1014, 1036 n.16 (11th Cir. 2001).
The Court employs the Twombly-Iqbal plausibility standard
when reviewing a complaint subject to a motion to dismiss. Randall
v. Scott, 610 F.3d 701, 708, fn. 2 (11th Cir. 2010). 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.”

Iqbal,

556

U.S.

at

662.

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. Bell Atlantic Corp.
v. Twombly, 550 U.S. 544, 556 (2007); Marsh, 268 F.3d at 1036 n.16.
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

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omitted).

Thus,

“the-

defendant-unlawfully

harmed

me

accusation”

is

insufficient.

Ashcroft, 129 S. Ct. at 1949. “Nor does a complaint suffice if it
tenders naked assertions devoid of further factual enhancement.”
Id. The “[f]actual allegations must be enough to raise a right to
relief above the speculative level.” See Twombly, 550 U.S. at 544.
And there is no longer a heightened pleading requirement. Randall,
610 F.3d at 701. Because Plaintiff is proceeding pro se, his
pleadings are held to a less stringent standard than pleadings
drafted by an attorney and will be liberally construed. Hughes v.
Lott, 350 F.3d 1157, 1160 (11th Cir. 2003) (citing Tannenbaum v.
United States, 148 F.3d 1262, 1263 (11th Cir. 1998).
III. Discussion
Plaintiff makes no specific allegations against Secretary
Carroll in his Complaint.
(Doc.

#40),

Plaintiff

In his Response to the Motion to Dismiss
concludes

that

Secretary

Carroll

is

responsible for the Constitutional violations against him because
he is responsible for all the employees at DCF and the FCCC.
Plaintiff alleges that nothing was done to protect him at the FCCC
and that Secretary Carroll was ultimately responsible for the
actions of the FCCC staff in his position as Secretary of DCF.

It

appears Plaintiff is attempting to bring claims against Secretary
Carroll based upon his supervisory role over DCF.
“[S]upervisory officials are not liable under § 1983 for the
unconstitutional

acts

of

their

subordinates

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on

the

basis

of

respondeat superior or vicarious liability.” Barr v. Gee, 437 F.
App'x 865, 875 (11th Cir. 2011) (quoting West v. Tillman, 496 F.3d
1321, 1328 (11th Cir. 2007)). To maintain a claim against a
supervisory

defendant,

the

plaintiff

must

allege:

(1)

the

personal involvement of the supervisor in the violation of the
plaintiff's constitutional rights; (2) the existence of either a
custom or policy that resulted in deliberate indifference to the
plaintiff's

constitutional

rights;

(3)

facts

that

support

an

inference that the supervisor directed the unlawful action or
knowingly failed to prevent it; or (4) a history of widespread
abuse

that

put

the

supervisor

on

notice

of

an

alleged

constitutional deprivation that he then failed to correct. See
West, 496 F.3d at 1328–29 (listing factors in context of summary
judgment). A supervisor is not liable under § 1983 for mere
negligence in the training or supervision of his employees. Greason
v. Kemp, 891 F.2d 829, 836–37 (11th Cir. 1990).
Plaintiff’s Complaint is devoid of any set of facts that
demonstrate that Secretary Carroll was personally involved in the
alleged violation of his constitutional rights.

Nor are there any

facts that would suggest the existence of a custom, policy, or
practice that violated Plaintiff’s constitutional rights.

There

are also no allegations that Secretary Carroll directed the other
Defendants to violate Plaintiff’s Constitutional rights.

Finally,

there is no allegation of a history of widespread abuse that put

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Secretary

Carroll

on

notice

of

any

alleged

constitutional

deprivations against the Plaintiff by members of the FCCC staff.
Consequently,

there

is

no

constitutional

violation

against

Secretary Carroll in his supervisory role as Secretary of DCF.
To the extent Plaintiff attempts to bring a procedural due
process claim asserting that his FCCC grievance sent to DCF was
not handled properly by Secretary Carroll, Plaintiff fails to state
a claim. Plaintiff does not state that Secretary Carroll reviewed
or

denied

his

grievance.

Instead,

another

official

reviewed and responded to Plaintiff’s grievance.

at

DCF

The Eleventh

Circuit Court of Appeals has held: “We agree with other circuits
that have decided that a prisoner does not have a constitutionallyprotected liberty interest in an inmate grievance procedure.” Dunn
v. Martin, 178 F. App’x 876, 878 (11th Cir. 2006); Baker v.
Rexroad, 159 F. App’x 61, 62 (11th Cir. 2005); see also Massey v.
Helman, 259 F.3d 641, 647 (7th Cir. 2001) (“[T]he existence of a
prison

grievance

prisoner....

procedure

confers

no

liberty

interest

on

a

A state-created prison grievance procedure is simply

a procedural right and does not confer any substantive right upon
an inmate.”); Adams v. Rice, 40 F.3d 72, 75 (4th Cir. 1994) (“[T]he
Constitution creates no entitlement to grievance procedures or
access to any such procedure voluntarily established by a state.”).
Simply

put,

an

FCCC

official's

failure

to

timely

process

a

grievance form, investigate it, or otherwise respond to a grievance

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is not actionable under § 1983. Therefore, any attempt to say that
Secretary

Carroll

violated

Plaintiff’s

Constitutional

rights

regarding FCCC grievance procedures do not give rise to a standalone claim under § 1983. See Buckley v. Barlow, 997 F.2d 494, 495
(8th Cir. 1993).

Accepting Plaintiff’s allegations as true and

giving him the benefit of all legitimate inferences as required at
the motion to dismiss stage of review, the Court finds Plaintiff’s
Complaint fails to make a claim against Secretary Carroll.
Further the Court concludes that “a more carefully drafted
complaint” could not state a claim.
plaintiff,

“must

be

given

at

least

As a general rule, a pro se
one

chance

to

amend

the

complaint before the district court dismisses the action with
prejudice” where a more carefully drafted complaint might state a
claim. Bank v. Pitt, 928 F.2d 1108, 1112 (11th Cir.1991) (emphasis
added) overruled in part by Wagner v. Daewoo Heavy Indus. Am.
Corp., 314 F.3d 541, 542 (11th Cir. 2002) (en banc).

However,

there are two circumstances in which the district court need not
grant leave to amend under Bank: (1) where the plaintiff has
indicated that he does not wish to amend his complaint; and (2)
where a more carefully drafted complaint could not state a claim
and is, therefore, futile. Johnson v. Boyd, 568 F. App'x 719, 723
(11th Cir. 2014) (citing Bank, 928 F.2d at 1112).

As to the first

exception, filing a written motion that sets forth the substance
of a proposed amendment is the proper method to request leave to

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amend the complaint. Long v. Satz, 181 F.3d 1275, 1279 (11th Cir.
1999).

As to the second exception, where the issue of futility

is close, we err on the side of generosity to the plaintiff.
O'Halloran v. First Union Nat'l Bank of Fla., 350 F.3d 1197, 1206
(11th Cir. 2003).
Although no allegations are made against Secretary Carroll in
his

Complaint,

Carroll

is

Plaintiff’s

liable

for

response

unspecified

suggests

that

Secretary

constitutional

because of his position as Secretary of DCF.

violations

“[S]upervisory

officials are not liable under § 1983 for the unconstitutional
acts of their subordinates on the basis of respondeat superior or
vicarious liability.” Barr, 437 F. App'x at 875.

Plaintiff makes

no allegations that Secretary Carroll was directly involved in
denying his constitutional rights, and his Response indicates
that his

only

claim

against

Secretary

Carroll

is

based

respondeat superior due to his role as director of DCF.

upon

As such,

amending his Complaint against Secretary Carroll would be futile.
Accordingly, it is hereby
ORDERED:
1.

Defendant’s

Motion

to

Dismiss

Secretary

of

the

Department of Corrections Mike Carroll (Doc. #29) is GRANTED.
2.

Plaintiff’s

Complaint

against

DISMISSED with prejudice.

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Secretary

Carroll

is

3.

Plaintiff filed a Motion to Suspend Defendant Carroll’s

Motion to Dismiss (Doc. #40) is DENIED.
DONE and ORDERED at Fort Myers, Florida, this
of February 2019.

Copies:
All Parties of Record
SA: FTMP-2

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14th

day