Jackson v. Fiorucci et al

Filing 4

OPINION AND ORDER dismissing re #1 Complaint as duplicative. Alternatively, the complaint is dismissed in its entirety for failure to state a claim without prejudice to plaintiff raising his medical negligence claims in state court. The Clerk shall enter judgment and close the case. Signed by Judge John E. Steele on 8/1/2022. (RKR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
RONALD JACKSON,
Plaintiff,
v.

Case No. 2:22-cv-428-JES-KCD

MICHAEL FIORUCCI, MARK S. INCH,
AND DESOTO MEMORIAL HOSPITAL,
Defendants.
_____________________________________
OPINION AND ORDER
Plaintiff initiated this action on July 11, 2022 by filing a
pro se 42 U.S.C. § 1983 civil rights complaint along with a motion
to proceed in forma pauperis.

(Docs. 1, 2).

Because Plaintiff

seeks to proceed as a pauper, the complaint is now before the Court
for initial screening. 1
Upon review, the Court dismisses the complaint as a duplicate
to an earlier complaint filed in this Court and for failing to
state a claim on which relief may be granted.

Because Plaintiff

raises claims against defendants who cannot be sued under 42 U.S.C.
§ 1983, he will not be provided leave to amend.

A prisoner who is allowed to proceed in forma pauperis in this
court will have his complaint screened in accordance with the provisions
of 28 U.S.C. § 1915(e)(2)(B). This screening procedure requires the
court to dismiss a prisoner's civil action prior to service of process
if it determines that the complaint is frivolous, malicious, fails to
state a claim upon which relief may be granted, or seeks monetary damages
from a defendant who is immune from such relief.
28 U.S.C. §
1915(e)(2)(B)(i)-(iii).
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I.

Complaint

The events giving rise to Plaintiff’s claim occurred on July
15, 2021 at Desoto Memorial Hospital.

(Doc. 1 at 4).

Plaintiff

asserts that he was taken to the hospital for hernia surgery.
(Id. at

5).

During

the

procedure,

Defendant

Doctor

Michael

Fiorucci cut his bladder, which caused internal pleading, but
Defendant Fiorucci did not inform Plaintiff of the injury before
discharging

him.

(Id.

at

5,

prescribed ibuprofen for pain.
II.

7).

Defendant

Fiorucci

only

(Id. at 7).
Discussion

As an initial matter, the Court notes that this complaint is
merely a photocopy of a complaint already filed and dismissed in
Middle District of Florida Case 2:21-cv-910-SPC-MRM.

The prior

dismissal was for failure to state a claim, and although it was
without

prejudice,

Plaintiff

was

given

leave

to

file

a

new

complaint only if he could state a § 1983 claim against state
officials.
did

not

(Case 2:21-cv-910-SPC-MRM at Doc. 4, p. 3).

change

the

defendants

in

this

action

(or

Plaintiff
alter

the

complaint in any manner), and this case is subject to dismissal
for the same reasons set forth in the earlier order.
A.

Nether Defendant Fiorucci nor the Desoto Memorial
Hospital are subject to suit under 42 U.S.C. § 1983.

Plaintiff does not allege facts suggesting that Dr. Fiorucci
or Desoto Memorial Hospital are state actors.

A person acts “under

color of state law” for purposes of § 1983 when he acts with
2

authority possessed by reason of his employment with the state.
A private doctor’s and private hospital’s treatment of a patient
who happens to be a prisoner, without more, does not create
liability under the Eighth Amendment.

See American Mfrs. Mut.

Ins. Co. v. Sullivan, 526 U.S. 40, 50 (1999) (“[Section] 1983
excludes from its reach merely private conduct, no matter how
discriminatory or wrongful.”); Rodriguez v. Plymouth Ambulance
Serv., 577 F.3d 816, 827 (7th Cir. 2009) (“[P]rivate organizations
and their employees that have only an incidental and transitory
relationship with the state's penal system usually cannot be said
to have accepted, voluntarily, the responsibility of acting for
the state and assuming the state's responsibility for incarcerated
persons.”).
Moreover, Plaintiff does not allege facts suggesting that Dr.
Fiorucci

or

Desoto

constitutional right.

Memorial

Hospital

deprived

him

of

a

Rather, he asserts that his injuries were

caused by “negligence or strict liability.”

(Doc. 1 at 3).

To

the extent Plaintiff attempts to state a claim against these
defendants for negligence or medical malpractice, neither claim is
actionable under § 1983.

See Estelle v. Gamble, 429 U.S. 97, 106

(1976) (“Medical malpractice does not become a constitutional
violation merely because the victim is a prisoner.”); Daniels v.
Williams, 474 U.S. 327, 330 (1986) (allegation of mere negligence
insufficient to state violation of constitutional right); McDowell

3

v. Brown, 392 F.3d 1283, 1294 (11th Cir. 2004) (medical malpractice
claim insufficient to establish liability under § 1983).
Accordingly, any claims that Plaintiff attempts to raise
against Defendants Fiorucci or Desoto Memorial Hospital under §
1983 are due to be dismissed for failure to state a claim on which
relief may be granted.

28 U.S.C. § 1915(e)(2)(B)(ii).

To the

extent Plaintiff alleges a state-law claim for medical malpractice
or negligence, it should be filed in state court.
B.

Plaintiff has not stated a claim against Defendant
Mark S. Inch.

Defendant Inch was the Secretary of the Florida Department of
Corrections at the time of Plaintiff’s surgery.

Plaintiff does

not indicate whether Defendant Inch is sued in his individual or
official capacity.

A suit against a state official in his or her

official capacity is a suit against the official’s office and is
no different from a suit against the state.

Will v. Michigan

Dep’t of State Police, 491 U.S. 58, 71 (1989).
Under

the

Eleventh

Amendment,

states

and

state

agencies

cannot be sued for monetary damages in federal court without
consent.

Pennhurst State School & Hospital v. Halderman, 465 U.S.

89, 100 (1984).

“This jurisdictional bar applies regardless of

the nature of the relief sought” and regardless of whether a
plaintiff’s claims are brought under federal or state law.

Id.

The Florida Department of Corrections (FDOC) is a state agency for
Eleventh Amendment purposes.

See, e.g., Walden v. Fla. Dep’t of
4

Corr., 975 F. Supp. 1330, 1331 (N.D. Fla. 1996) (noting that the
FDOC is “a state agency that is clearly the equivalent of the State
of Florida for Eleventh Amendment purposes”).

Neither Florida nor

the FDOC has consented to suit in federal court or waived Florida’s
Eleventh Amendment immunity with respect to any of Plaintiff’s
claims.
Even if Plaintiff sues Defendant Inch in his individual
capacity, it is unclear on what grounds he attributes liability.
He does not allege that Defendant Inch personally participated in
any unconstitutional conduct, and supervisors cannot be sued under
section 1983 on a theory of direct vicarious liability.

Hartley

v. Parnell, 193 F.3d 1263, 1269 (11th Cir. 1999); see also Monell
v. Dep’t of Soc. Servs., 436 U.S. 658, 691, 694 n.58 (1978)
(holding that local government cannot be held liable under a theory
of

respondeat

superior).

Rather,

supervisory

liability

is

established only when there is a “causal connection” between the
supervisor’s actions and the constitutional violation.
v. Crawford, 906 F.2d 667, 671 (11th Cir. 1990).

See Brown

This can occur

“when a history of widespread abuse puts the responsible supervisor
on notice of the need to correct the alleged deprivation, and he
fails to do so.”
Cir. 2003).

Cottone v. Jenne, 326 F.3d a1352, 1360 (11th

A plaintiff can also establish the necessary causal

connection by showing that a supervisor’s “custom or policy . . .
resulted in deliberate indifference to constitutional rights,”

5

Rivas v. Freeman, 940 F.2d 1491, 1495 (11th Cir. 1991).

Nothing

in Plaintiff’s complaint suggests that Defendant Inch had a custom
or policy that contributed to Plaintiff’s injury or that he was
aware of widespread issues with the medical defendants’ provision
of medical care.
Plaintiff’s claims against Defendant Inch are dismissed for
failure to state a claim on which relief may be granted.

28 U.S.C.

§ 1915(e)(2)(B)(ii).
III. Conclusion
Accordingly, it is now ORDERED:
1.

Ronald

DISMISSED

as

L.

Jackson’s

duplicative.

42

U.S.C.

§

Alternatively,

1983

complaint

is

the

complaint

is

dismissed in its entirety for failure to state a claim on which
relief may be granted. The dismissal is without prejudice to
Plaintiff raising his medical negligence claims in state court.
2.

With no remaining claims or defendants, the Clerk is

directed to terminate all pending motions, close the file and enter
judgment accordingly.
DONE AND ORDERED in Fort Myers, Florida on August 1, 2022.

SA:

FTMP-2

Copies:

Ronald L. Jackson
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