Logan v. Johnson et al

Filing 101

ORDER granting 88 Motion to Dismiss; dismissing Defendants Espino, Hercule, Lagman, Whitehead, and Williams. Signed by Judge Brian J. Davis on 2/17/2015. (LDO)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION

JAMES ALEXANDER LOGAN,
Plaintiff,
vs.

Case No. 3:13-cv-532-J-39MCR

STEPHEN JOHNSON, etc.; et al.,
Defendants.
ORDER
I.

Status

Plaintiff James Alexander Logan, an inmate confined in the
Florida Department of Corrections (FDOC), is proceeding on an
Amended Complaint (Amended Complaint) (Doc. 22) pursuant to 42
U.S.C.

§

1983.

He

filed

a

Memorandum

of

Law

in

Support

(Memorandum) (Doc. 23) with exhibits.1

The Motion to Dismiss by

Defendants'

Whitehead,

Espino,

Hercule,

Lagman,

and

Williams

(Defendants' Motion to Dismiss) (Doc. 88) is pending before the
Court.

Plaintiff

responded.2

See

Plaintiff's

Request

that

1

The Court hereinafter refers to the exhibits as "Ex." In
this opinion, the Court will reference the page numbers assigned by
the electronic filing system.
2

The Court advised Plaintiff of the provisions of Fed. R.
Civ. P. 56, notified him that the granting of a motion to dismiss
may represent a final adjudication of this case which may foreclose
subsequent litigation on the matter, and gave him an opportunity to
respond. (Doc. 53).

Defendants' [Motion to Dismiss] be Granted in Part and Denied in
Part (Response) (Doc. 95).
In his Response, Plaintiff concedes that the Defendants'
Motion to Dismiss should be granted as to his equal protection
claim against the Defendants, his assault and battery claim against
Defendants Whitehead and Williams, and his claim seeking criminal
indictments.

Response at 1.

In light of this concession by

Plaintiff, the Court will grant Defendants' Motion to Dismiss with
respect to these claims.
In their Motion to Dismiss, Defendants assert that Plaintiff
has failed to state a claim upon which relief can be granted with
respect to the claim of failure to protect against Defendants
Whitehead

and

indifference

Williams
against

and

the

Defendants

claim
Espino,

for

medical

Hercule,

deliberate

and

Lagman.

Defendants' Motion to Dismiss at 1. Defendants also claim they are
entitled to qualified immunity. Id. Plaintiff opposes Defendants'
motion with respect to these claims.
II.

Response at 1-3.

The Amended Complaint

In the Amended Complaint, Plaintiff names numerous Defendants.
The Court, however, will address only the claims raised against
Defendants Espino, Hercule, Lagman, Whitehead, and Williams.
Defendants are named in their individual capacities.

The

Amended

Complaint at 1. A summary of the allegations raised in the Amended
Complaint is presented in the Court's Order (Doc. 72) and will not

2

be repeated herein.3

Plaintiff seeks compensatory and punitive

damages and declaratory and injunctive relief.

Amended Complaint

at 21-23.
III.

Motion to Dismiss

"To survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to 'state a claim to
relief that is plausible on its face.'"

Ashcroft v. Iqbal, 556

U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 570 (2007)).

"A claim has facial plausibility when the

plaintiff pleads factual content that allows the court to draw the
reasonable

inference

that

the

defendant

is

liable

for

the

misconduct alleged."

Id. (citing Twombly, 550 U.S. at 556).

"[T]he

court

tenet

that

a

must

accept

as

true

all

of

the

allegations contained in a complaint is inapplicable to legal
conclusions.

Threadbare recitals of the elements of a cause of

action, supported by mere conclusory statements, do not suffice."
Id. (citing Twombly, 550 U.S. at 555).

3

The Court takes judicial notice of Logan v. Smith, et al.,
Case No. 3:07-cv-1156-J-JBT.
In that case, the Court granted
Plaintiff's Judicial Notice (Doc. 159) only to the extent that the
Clerk was directed to send a copy of the order and notice (in which
Plaintiff asserted that he had been denied meals, subjected to
retaliatory acts, and that his life was in danger) to the Inspector
General for whatever action may be deemed appropriate. (Order,
Doc. 160, Case No. 3:07-cv-1156-J-JBT).
3

IV.

Failure to Protect (Whitehead and Williams)

Defendants contend that Plaintiff has failed to adequately
allege a failure to protect claim against Defendants Whitehead and
Williams.

Defendants' Motion to Dismiss at 14-15.

First, the

Court notes that none of the documents referenced by Plaintiff were
addressed to Defendants Whitehead and Williams.

Id. at 15.

Also,

upon further review of the documents submitted by Plaintiff, the
grievances about safety and security issues are not directed to
these Defendants and none of the responses with regard to safety
and security issues are written by these Defendants.

Id.

The

Court will not assume that Defendants Whitehead and Williams were
placed on notice of any potential danger from Defendants S.
Johnson, A. Johnson, or West by Plaintiff's grievances submitted to
other officials of the Florida Department of Corrections.

In sum,

Plaintiff's vague and conclusory allegation that these Defendants
were aware of the danger to Plaintiff's life and safety will not
support a constitutional claim under 42 U.S.C. § 1983.
To the extent Plaintiff is claiming that Defendants Whitehead
and Williams were aware of the danger to Plaintiff's health and
safety because Plaintiff repeatedly raised the issue that officers
were retaliating against him by submitting complaints through the
administrative grievance process and by prosecuting a civil rights
action, Case No. 3:07-cv-1156-J-JBT (Docs. 142, 145, 159-60), he
still fails to state how the Defendants were aware of any danger

4

from Defendants S. Johnson, A. Johnson, and West because the
defendants named in Case No. 3:07-cv-1156-J-JBT do not include the
officers Plaintiff alleges beat and assaulted him on February 26,
2013.

Of

note,

in

Case

No.

3:07-cv-1156-J-JBT,

Plaintiff

repeatedly filed documents asserting that the defendants in that
case and other unnamed officers were retaliating against him for
the prosecution of complaints.

See id. (Orders, Docs. 142 & 145).

The Court directed that its July 30, 2012 Order (Doc. 142) be
provided to the Warden of Florida State Prison (FSP), not the
assistant warden or a colonel, for whatever action may be deemed
appropriate in light of Plaintiff's allegations that unnamed prison
officials had threatened to kill him in retaliation for his filing
and prosecuting his case, and they had threatened to gas him, strip
him naked, and falsify disciplinary reports against him.
To

the

extent

Plaintiff

asks

this

Court

to

infer

that

Defendants Whitehead and Williams were aware that Plaintiff was in
danger because of Plaintiff's numerous grievances and complaints
about acts of retaliation taken against him by prison staff, the
Court has reviewed the exhibits attached to Plaintiff's Memorandum
of Law (Doc. 23), and none of these documents would constitute
actual notice to Defendants Whitehead and Williams prior to the
alleged beating.4

The Court has also reviewed the documents

4

Plaintiff specifically references Exhibit A-6 attached to
his Memorandum (Doc. 23).
This document, a Central Office
Grievance Log from the Inspector General's Office, written by
5

Plaintiff references in Case No. 3:07-cv-1156-J-JBT.

Again, they

concern complaints of retaliation by the named defendants in that
case and other unidentified officers.
Of significance, the Court denied Defendant Warden Palmer's
Motion to Dismiss with respect to Plaintiff's claim of failure to
protect because Plaintiff alleged that Warden Palmer knew his
officers would act unlawfully and failed to stop them from doing
so, and many of Plaintiff's grievances were actually directed to
the

Warden

of

FSP,

see

Order

(Doc.

72

at

18,

21-22),

and

furthermore, the Court directed that its Order (Doc. 142), filed
July 30, 2012 in Case No. 3:07-cv-1156-J-JBT, be forwarded to the
Warden of FSP.

Of import, the Court did not direct that the Order

be sent to Defendants Whitehead and Williams.

As such, the

exhibits show that Plaintiff's grievances concerning his safety and
security were not directed to the assistant warden and colonel, and
the responses are by other corrections officials.

Also, the Court

did not direct that the Order in Case No. 3:07-cv-1156-J-JBT be
sent to them; instead, the Court directed that the Order be sent to
the Warden of FSP.5

Cliff Neel, denies Plaintiff's appeal concerning a complaint
received February 5, 2013, concerning threats by staff at Florida
State Prison. Ex. A-6. The disposition date is February 15, 2013,
and the mailing date is February 20, 2013. Id. The incident date
is blank. Id. The names of the "staff" are not referenced in this
document.
5

The Court notes that the Court directed that some orders in
Case No. 3:07-cv-1156 be sent to the Inspector General. See Orders
6

In

addressing

a

claim

of

failure

to

protect

against

a

supervisor, this Court should inquire as to whether the individual
had the ability to prevent or stop a constitutional violation and
failed to exercise his authority as a supervisor to prevent or stop
the constitutional violation.

Keating v. City of Miami, 598 F.3d

753, 765 (11th Cir.), cert. dismissed, Timoney v. Keating, 131 S.
Ct. 501 (2010) (finding a supervisor may be liable under a theory
of supervisory liability if he has the ability to prevent or
discontinue a known constitutional violation and then fails to
exercise his authority to stop the constitutional violation).
Also, it is important to note that "[e]ven when an officer is not
a participant in the excessive force, he can still be liable if he
fails to take reasonable steps to protect the victim."

Ledlow v.

Givens, 500 F. App'x 910, 914 (11th Cir. 2012) (per curiam)
(citation omitted), cert. denied, 133 S.Ct 2802 (2013).
In order to support his claim of failure to protect, Plaintiff
must

allege

a

causal

connection

between

the

actions

Defendants and the alleged constitutional deprivation.
Parnell, 193 F.3d 1263, 1269 (11th Cir. 1999).

of

the

Hartley v.

The Eleventh

Circuit held that a necessary causal connection can be established
if:

(1)

the

supervisor

knew

about

and

failed

to

correct

a

widespread history of abuse; or (2) the supervisor's custom or
policy

resulted

in

a

constitutional

(Docs. 145 & 160).
7

violation;

or

(3a)

the

supervisor directed the subordinate to act unlawfully; or (3b) the
supervisor knew that the subordinate would act unlawfully and
failed to stop him from acting unlawfully.

Harrison v. Culliver,

746 F.3d 1288, 1298 (11th Cir. 2014); Cottone v. Jenne, 326 F.3d
1352, 1360 (11th Cir. 2003).

However, establishing the necessary

causal connection is not an easy task:

"[t]he standard by which a

supervisor is held liable in [his] individual capacity for the
actions of a subordinate is extremely rigorous."

Id. at 1360-61

(internal quotation marks omitted and citation omitted).
Conclusory, vague, and general allegations of failure to
protect should be dismissed.

See Fullman v. Graddick, 739 F.2d

553, 556-57 (11th Cir. 1984) (recognizing that a civil rights
complaint containing vague and conclusory allegations will be
dismissed as insufficient). Here, Plaintiff failed to allege facts
tending to show that these particular prison officials knew that
subordinates would act unlawfully and failed to prevent their
actions.

There is no indication that Defendants Whitehead and

Williams foresaw the alleged attack of February 26, 2013, or failed
to stop subordinates from acting unlawfully.

Plaintiff's various

grievances supplied to other prison officials about his risk for an
attack, without more, did not put these particular Defendants on
notice, neither did the Order (Doc. 142) in Case no. 3:07-cv-1156J-JBT.

With

respect

to

Defendants

Whitehead

and

Williams,

Plaintiff has failed to plead "enough facts to state a claim to

8

relief that is plausible on its face."

Twombly, 550 U.S. at 570.

Therefore, Defendants' Motion to Dismiss (Doc. 88) is due to be
granted with respect to the claim of failure to protect against
Defendants Whitehead and Williams.
V.

Eighth Amendment (Espino, Lagman, and Hercule)

Plaintiff claims that Defendants Espino, Lagman, and Hercule
were deliberately indifferent to his serious medical needs because
they refused to send him to an outside medical facility for a CTscan and an X-ray of his head and face after the February 26, 2013
incident.

The Eleventh Circuit addressed the requirements to

establish an Eighth Amendment claim with respect to medical care.
The
Eighth
Amendment's
prohibition
against "cruel and unusual punishments"
protects
a
prisoner
from
"deliberate
indifference to serious medical needs."
Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct.
285, 50 L.Ed.2d 251 (1976). To state a claim
of
unconstitutionally
inadequate
medical
treatment, a prisoner must establish "an
objectively
serious
[medical]
need,
an
objectively insufficient response to that
need, subjective awareness of facts signaling
the need, and an actual inference of required
action from those facts."
Taylor v. Adams,
221 F.3d 1254, 1258 (11th Cir. 2000).
Kuhne v. Fla. Dep't of Corr., 745 F.3d 1091, 1094 (11th Cir. 2014).
"A serious medical need is 'one that has been diagnosed by a
physician as mandating treatment or one that is so obvious that
even a lay person would easily recognize the necessity for a
doctor's attention.' In the alternative, a serious medical need is
determined by whether a delay in treating the need worsens the
9

condition."

Mann v. Taser Int'l, Inc., 588 F.3d 1291, 1307 (11th

Cir. 2009) (quoting Hill v. Dekalb Reg'l Youth Det. Ctr., 40 F.3d
1176, 1187 (11th Cir. 1994)).

Apparently, Defendants do not

dispute that Plaintiff had a serious medical need.

Instead, they

assert that, at most, Plaintiff has presented a claim of medical
malpractice.

Defendants' Motion to Dismiss at 17.

Indeed, they

contend that "[i]t is well established law that 'the question of
whether an X-ray or additional diagnostic techniques or forms of
treatment is indicated is a classic example of a matter for medical
judgment[,] does not represent cruel and unusual punishment[,] and
[a]t most it is medical malpractice.'" Id. (citing Estelle, 429
U.S. at 107 and Adams v. Poag, 61 F.3d 1537, 1545 (11th Cir. 1995)
(citation omitted)).
To satisfy the subjective component, a plaintiff must prove
the following:
"(1) subjective knowledge of a risk of serious
harm; (2) disregard of that risk; (3) by
conduct that is more than [gross] negligence."
Bozeman v. Orum, 422 F.3d 1265, 1272 (11th
Cir. 2005) (alteration in original) (internal
quotation marks omitted). Although we have
occasionally stated, in dicta, that a claim of
deliberate indifference requires proof of
"more than mere negligence," McElligott v.
Foley, 182 F.3d 1248, 1255 (11th Cir. 1999),
our earlier holding in Cottrell, 85 F.3d at
1490[6], made clear that, after Farmer v.
Brennan, 511 U.S. 825, 114 S.Ct. 1970, 128
L.Ed.2d 811 (1994), a claim of deliberate

6

Cottrell v. Caldwell, 85 F.3d 1480 (11th Cir. 1996).
10

indifference requires proof of more than gross
negligence.
Townsend v. Jefferson Cnty., 601 F.3d 1152, 1158 (11th Cir. 2010).
This Court has addressed whether a delay in providing medical
care may rise to the level of an Eighth Amendment claim.
"The
meaning
of
'more
than
gross
negligence' is not self-evident but past
decisions have developed the concept. In cases
that turn on the delay in providing medical
care, rather than the type of medical care
provided, we have set out some factors to
guide our analysis. Where the prisoner has
suffered increased physical injury due to the
delay, we have consistently considered: (1)
the seriousness of the medical need; (2)
whether the delay worsened the medical
condition; and (3) the reason for the delay."
Id.
Fischer v. Fed. Bureau of Prisons, No. 5:06-cv-407-Oc-10GRJ, 2008
WL 4371828, at *5 (M.D. Fla. Sept. 23, 2008).
Here, Plaintiff alleges that he should have been sent to an
outside facility to receive CT-scans and X-rays after the incident
at FSP.7

Plaintiff contends that the doctors knew he had a

concussion, but refused to send him to outside medical care despite
Plaintiff's complaints of blackouts, dizziness, severe headaches,
and pain.

Of import, Plaintiff submitted exhibits in support of

his Amended Complaint.8 These exhibits include a detailed response

7

Plaintiff admits that he received an X-ray at Union
Correctional Institution on March 21, 2013. Response at 3.
8

This Court, in ruling on a motion to dismiss, may consider
the documents filed with a complaint.
Halmos v. Bomardier
Aerospace Corp., 404 F. App'x 376, 377 (11th Cir. 2010) (per
11

from Dr. Espino, the Chief Health Officer of FSP, providing a
summary of the medical care Plaintiff received at FSP after the
incident.

In denying Plaintiff's medical grievance on March 22,

2013, Dr. Espino states:
Review of your medical records indicates that
you
were
seen,
assessed,
and
treated
appropriately.
On the said day you allege
abuse you were seen by the nursing staff first
where
your
injuries
were
cleansed
and
thoroughly documented. While the nurses were
taking care of you, it's noted that you were
fully aware, alert and oriented to your
surroundings.
It's further noted that you
were
verbally
appropriate
without
any
disorientation. Your pupils were round, and
reactive to light on assessment.
No
neurological deficits were noted.
You were referred to Dr. Hercule who then
sutured your scalp, left temple, left eye
brow, and right forehead. Doctor Hercule gave
orders
to
house
you
in
medical,
do
neurological checks, give motrin, to have you
evaluated by dental, and for medical staff to
contact on-call physician after hours should
any complications occur.
You were taken to see the dentist Dr.
Girardeau who sutured your lip, and prescribed
antibiotics.
All
the
procedures
were
tolerated well.
While housed up in medical you remained alert
and
oriented
without
any
neurological
deficits, your vital signs remained stable,
and antibiotics were started without any
untoward effects.
On 2/27/2013 you had a follow up with Dr.
Lagman and his observation and documentation

curiam) (citing Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551
U.S. 308, 322 (2007)). The Court will do so in this instance.
12

was upon palpation of your head a[nd] face
there were no bone deformity of the facial
bones and not bony depressions at site of
lacerations and swelling.
Furthermore, you
had normal open and closure of your mouth
without any TMJ clicks. Your neck was noted
to
be
supple,
no
deformity,
and
no
neurological deficits upon his evaluation.
If you have further concerns you have the
option of accessing sick call at your
discretion or self-declare a medical emergency
if you feel you can't wait for sick call. It
will
remain
your
current
institutional
provider who will decide all courses of
treatment including X-rays, CT scans, and
MRI's. Just because you want something does
not mean it's medically justified.
Ex. A-5.
Assuming arguendo an X-ray or CT-scan might have been suitable
and many other tests conducted which may have led to an appropriate
diagnosis

and

treatment

for

Plaintiff's

immediate

pain

and

suffering, but that is clearly "a classic example of a matter for
medical judgment."

Estelle, 429 U.S. at 107.

"A medical decision

not to order an X-ray, or like measures, does not represent cruel
and unusual punishment."

Id.

As such, at most, Plaintiff has

alleged actions that constitute medical malpractice; therefore, he
has failed to state a claim of constitutional dimension under 42
U.S.C. § 1983.
In this instance, many steps were taken to treat Plaintiff,
including cleansing his wounds; suturing his wounds; housing him in
the medical department in order to allow for close observation and
assessment of his condition, including closely monitoring his
13

neurological condition; referring him to a dentist; prescribing
medication,

including

antibiotics

and

pain

medication;

administering medication; and palpating Plaintiff's head and face
for bone deformity and depressions.

Ex. A-5.

This is certainly

not evidence of cursory treatment amounting to no treatment at all.
Campbell v. Sikes, 169 F.3d 1353, 1368 (11th Cir. 1999).

Instead,

the response of the medical staff shows that they not only treated
Plaintiff's immediate injuries but also closely monitored his
symptoms.
Since "[m]atters of medical judgment extend to whether the
defendants should have provided additional forms of treatment[,]"
the Court concludes that Plaintiff fails to present a claim of
deliberate indifference in violation of the Eighth Amendment of the
United States Constitution against these Defendants.

Grimsley v.

Hammack, 256 F. App'x 271, 273 (11th Cir. 2007) (per curiam)
(citations omitted).

The choice of whether to order diagnostic

tests is certainly a matter of medical judgment.

Here, Plaintiff

raises an asserted difference of medical opinion in the manner in
which medical staff treated Plaintiff's condition at FSP. At most,
Plaintiff raises a claim of medical malpractice.

Therefore,

Defendant's Motion to Dismiss is due to be granted.
VI.

Qualified Immunity

The Defendants maintain that they are entitled to qualified
immunity.

They contend:

14

First, as stated supra, Logan had not stated a
claim for a constitutional violation. Second,
Logan did not show that defendants Whitehead
or Williams violated any clearly established
law. He has not specifically alleged how they
[were] consciously or callously indifferent to
potential harm from S. Johnson, A. Johnson, or
West. Third, the law is well established that
a medical decision to order a CT-scan or an Xray does not state a claim for medical
deliberate indifference.
Defendants' Motion to Dismiss at 20.
With

regard

to

qualified

immunity,

the

Eleventh

explained:
To receive qualified immunity, [a] public
official must establish that he was engaged in
a "discretionary function" at the time he
committed
the
allegedly
unlawful
act.
Holloman ex. rel. Holloman v. Harland, 370
F.3d 1252, 1263-64 (11th Cir. 2004) . . . .
If the official demonstrates that he was
engaged in a discretionary function, the
burden shifts to the plaintiff to prove that
the official is not entitled to qualified
immunity.
Cottone v. Jenne, 326 F.3d 1352,
1358 (11th Cir. 2003).
This requires
plaintiff to satisfy the two-part test
prescribed by the Supreme Court in Saucier v.
Katz, 533 U.S. 194, 121 S.Ct. 2151, 150
L.Ed.2d 272 (2001).
Under Saucier, a
plaintiff must first show that the defendant
violated a constitutional right and then
demonstrate that the constitutional right was
clearly established at the time of the alleged
wrongful act. 533 U.S. at 201, 121 S.Ct. at
2156.
If a court, after viewing all the
evidence in the light most favorable to the
plaintiff and drawing all inferences in his
favor, determines that the plaintiff has
satisfied
these
two
requirements,
the
defendant may not obtain qualified immunity.
Holloman, 370 F.3d at 1264.

15

Circuit

Bryant v. Jones, 575 F.3d 1281, 1295 (11th Cir. 2009), cert.
denied, 559 U.S. 940 (2010).
Notably,

the

Defendants

were

engaged

in

discretionary

functions during the events in question. But, this Court has found
that Plaintiff has failed to state a claim that the Defendants
violated his constitutional rights with regard to both his failure
to protect claim and his claim of medical deliberate indifference.
The Court finds Defendants Whitehead, Williams, Espino, Lagman, and
Hercule are entitled to qualified immunity.

Thus, Defendants'

Motion to Dismiss is due to be granted in this regard.

See Motion

to Dismiss at 18-20.
Therefore, it is now
ORDERED:
The Motion to Dismiss by Defendants Espino, Hercule, Lagman,
Whitehead, and Williams (Doc. 88) is GRANTED, and Defendants
Espino, Hercule, Lagman, Whitehead, and Williams are DISMISSED from
this action.
DONE AND ORDERED at Jacksonville, Florida, this 17th day of
February, 2015.

sa 2/12
c:
James Alexander Logan
Counsel of Record
16