Phelps v. Rambosk et al

Filing 5

OPINION AND ORDER re: 1 Complaint is DISMISSED without prejudice under 28 U.S.C. § 1915A and § 1915(e)(2)(B)(ii). The Clerk is DIRECTED to enter judgment, terminate any pending motions and deadlines, and close the file. Signed by Judge Sheri Polster Chappell on 10/14/2020. (SLU)

Case 2:20-cv-00585-SPC-NPM Document 5 Filed 10/14/20 Page 1 of 5 PageID 24

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
DANIEL T. PHELPS,
Plaintiff,
v.

Case No.: 2:20-cv-585-FtM-38NPM

KEVIN RAMBOSK, FNU GABLE,
S. MAGULIERRE, ROBERT
STRIKER and DANIEL PINO,
Defendants.
/
OPINION AND ORDER1
Plaintiff Daniel T. Phelps (“Phelps”), an inmate in the Florida Prison System,
is proceeding on his pro se Complaint filed under 42 U.S.C. § 1983. (Doc. 1).
Plaintiff seeks to proceed in forma pauperis on his Complaint. (Doc. 4). Because
the Court finds the Complaint subject to dismissal under 28 U.S.C. §§ 1915A and
1915(e)(2)(B)(ii), the Court will neither grant Plaintiff in forma pauperis status,
nor assess the $350.00 filing fee under 28 U.S.C. § 1915(b)(1).
The Complaint names the following defendants: Sherriff Kevin Rambosk,
Doctor Gable, S. Magulierre, Robert Striker, and Daniel Pano. According to the
Complaint, Plaintiff brings his claim for “damages and injunctive relief under 42
U.S.C. § 1983 for “neglect and medical malpractice.” (Doc. 1 at 2). Although the
Disclaimer: Documents hyperlinked to CM/ECF are subject to PACER fees. By using hyperlinks,
the Court does not endorse, recommend, approve, or guarantee any third parties or the services
or products they provide, nor does it have any agreements with them. The Court is also not
responsible for a hyperlink’s availability and functionality, and a failed hyperlink does not affect
this Order.
1

Case 2:20-cv-00585-SPC-NPM Document 5 Filed 10/14/20 Page 2 of 5 PageID 25

Complaint identifies five defendants, the Complaint sets forth factual allegations
only against Defendant Robert Striker, a Registered Nurse (“Nurse Striker”).
Because the Complaint is devoid of any factual allegations against the remaining
defendants, the Court finds the Complaint subject to dismissal for failure to allege
personal involvement and failure to comply with Fed. R. Civ. P. 8(a)(2).
The Court will therefore address the claim as alleged against Nurse Striker.
These facts, which are assumed to be true at this stage of pleadings, are recounted
as alleged. Nearly one year ago, Nurse Striker arrived at Phelps’ dormitory to
transport him in a wheelchair to the Collier County courthouse. (Id. at 3). The
wheelchair had “broken arms, no brakes and the right wheel was in need of
bearings.” (Id.). Phelps told Defendant Striker that he “was not comfortable riding
in a wheelchair in such a condition.”

(Id.). Officer Rivera, not named in this

lawsuit, instructed Phelps to get into the wheelchair or face confinement. (Id. at
4).

After arriving at the courthouse, Phelps was placed alone in a cell and he

managed to get out of the chair by placing it against the sink/toilet combination
and was able to “ambulate to the courtroom.” (Id.). After court, when Phelps
attempted to sit back into the wheelchair it “slid backward” due to it lacking brakes
causing Phelps to fall onto the concrete floor, causing him severe pain. (Id.).
Because Phelps seeks to proceed in forma pauperis, the Court is to review
the complaint sua sponte 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). The standard that governs dismissals under 12(b)(6) applies to dismissals

2

Case 2:20-cv-00585-SPC-NPM Document 5 Filed 10/14/20 Page 3 of 5 PageID 26

under § 1915 (e)(2)(B)(ii). See Alba v. Montford, 517 F.3d 1249, 1252 (11th Cir.
2008). However, pro se complaints are held to “less stringent standards” than
those drafted and filed by attorneys. Erickson v. Pardus, 551 U.S. 89, 94 (2007)
(citation omitted).
Under Rule 12(b)(6), a complaint may be dismissed if the claim alleged is
not plausible. See Bell Atlantic v. Twombly, 550 U.S. 544, 556 (2007). All pleaded
facts are deemed true for the purposes of Rule 12(b)(6), but a complaint is still
insufficient without adequate facts. See Bell Atlantic v. Twombly, 550 U.S. 544,
556 (2007). The plaintiff must assert enough facts to allow “the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The asserted facts must “raise a
reasonable expectation that discovery will reveal evidence” for the plaintiff’s claim.
Twombly, 550 U.S. at 556. Setting forth “labels . . . conclusions, and a formulaic
recitation of the elements of a cause of action” is not enough to meet the plausibility
standard. Twombly, 550 U.S. at 555. But the Court must read a pro se plaintiff’s
complaint in a liberal fashion. See Hughes v. Lott, 350 F.3d 1157, 1160 (11th Cir.
2003).
To state a claim under 42 U.S.C. § 1983, a plaintiff must allege: (1) that the
defendant(s) deprived him of a right secured under the United States Constitution
or federal law, and (2) the deprivation occurred under color or state law.

See

Arrington v. Cobb County, 139 F.3d 865, 872 (11th Cir. 1998). Plaintiff must
establish an affirmative causal connection between the defendant’s conduct and

3

Case 2:20-cv-00585-SPC-NPM Document 5 Filed 10/14/20 Page 4 of 5 PageID 27

the constitutional deprivation. See Swint v. City of Wadley, 51 F.3d 988, 999 (11th
Cir. 1995). To allege an Eighth Amendment claim, a plaintiff must allege: “(1) a
substantial risk of serious harm; (2) the defendant’s deliberate indifference to that
risk; and (3) causation.” Purcell ex. rel. Estate of Morgan v. Toombs County, Ga.,
400 F. 3d 1313, 1319 (11th Cir. 2005) (internal citation and quotation marks
omitted). Further, to be deliberately indifferent to an inmate’s health or safety, the
official must both be aware of facts from which the inference can be drawn that a
substantial risk of serious harm exists, and the official must draw the inference.
See Purcell ex. rel. Estate of Morgan, 400 F. 3d at 1319-20 (citation omitted).
Here, there are no allegations Defendant Striker was present in the cell when
Plaintiff attempted to get back into the wheelchair or knew Plaintiff would not have
assistance to get out of or into the wheelchair. At most, the Complaint predicates
liability against Defendant Striker for simple negligence not deliberate indifference
under the Eighth Amendment. (Id. at 2). “[S]imple negligence is not actionable
under § 1983, and a plaintiff must allege a conscious or callous indifference to a
prisoner’s rights.” Smith v. Regional Director of Florida Dep’t of Corr., 368 F.
App’x 9, 14 (11th Cir. 2010) (internal citations and quotations omitted). The Court
finds the Complaint fails to plausibly allege an Eighth Amendment violation
against Defendant Striker and will thus dismiss the Complaint without prejudice
under 28 U.S.C. § 1915. Because the dismissal is without prejudice, Plaintiff may
file a new complaint—under a new case number—with the filing fee or a motion to
proceed in forma pauperis.

4

Case 2:20-cv-00585-SPC-NPM Document 5 Filed 10/14/20 Page 5 of 5 PageID 28

Accordingly, it is now
ORDERED:
1. Plaintiff’s Complaint (Doc. 1) is DISMISSED without prejudice
under 28 U.S.C. § 1915A and § 1915(e)(2)(B)(ii).
2. The Clerk is DIRECTED to enter judgment, terminate any pending
motions and deadlines, and close the file.
DONE and ORDERED in Fort Myers, Florida on October 14th, 2020.

Copies: All Parties of Record

5