Logan v. Johnson et al
Filing
72
ORDER granting in part and denying in part 48 Motion to Dismiss; granting in part and denying in part 49 motion to dismiss; Defendants shall respond to the remaining claims of the Amended Complaint by November 26, 2014. Signed by Judge Brian J. Davis on 10/27/2014. (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
On May 9, 2013 (pursuant to the mailbox rule), Plaintiff James
Alexander Logan, an inmate confined in the Florida Department of
Corrections (FDOC), instituted this action by filing a civil rights
Complaint (Doc. 1) pursuant to 42 U.S.C. § 1983.
Plaintiff is
proceeding on an Amended Complaint (Amended Complaint) (Doc. 22).1
Plaintiff filed a Memorandum of Law in Support (Doc. 23) with
exhibits.2
This cause is before the Court on Defendants' [S.
Johnson, A. Johnson, B. Starling, D. West, and J. Palmer] Motion to
1
Plaintiff is proceeding pro se. 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. See the Court's
Order (Doc. 53). Plaintiff filed a Notice (Doc. 54), stating that
he wished to rely on his previously filed responses (Docs. 50 &
51). The Court granted his request and deemed the responses to be
timely filed. Order (Doc. 61).
2
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.
Dismiss (Defendants' Motion to Dismiss) (Doc. 48) and Defendant J.
Slominski's Motion to Dismiss (Slominski's Motion to Dismiss) (Doc.
49).
Plaintiff responded to both motions.
See
Plaintiff's
Response in Opposition to Deny Defendants' Motion to Dismiss
(Response) (Doc. 50) and Plaintiff's Response in Opposition to
Defendant Slominski's Pro Se Motion to Dismiss (Doc. 51).
In their motions to dismiss, Defendants assert that Plaintiff
has failed to state a claim upon which relief can be granted.
Plaintiff opposes these motions and seeks the appointment of
counsel.
II.
The Amended Complaint
In the Amended Complaint, Plaintiff names numerous Defendants.
The Court, however, will address only the claims raised against
Defendants S. Johnson, A. Johnson, B. Starling, D. West, J. Palmer,
and J. Slominski. The Court notes that all Defendants are named in
their individual capacities.
Amended Complaint at 1.
Although not a model of clarity, Plaintiff apparently raises
the following claims against these particular Defendants: (1) Count
One - all Defendants violated Plaintiff's First, Fifth, Eighth, and
Fourteenth Amendment rights;3 (2) Count Two - an Eighth Amendment
excessive force claim against Defendant S. Johnson; (3) Count Three
- an Eighth Amendment excessive force claim against Defendant A.
3
In Count One, Plaintiff also raises state and federal tort
claims of assault and battery against all Defendants.
2
Johnson; (4) Count Four - an Eighth Amendment excessive force claim
against Defendant Starling; (5) Count Five - a state law tort claim
of assault and battery against Defendants S. Johnson, A. Johnson,
and Starling; (6) Count Six - a conspiracy claim against Defendants
S. Johnson and A. Johnson for conspiring to cover-up the use of
excessive force by falsifying disciplinary reports; (7) Count Seven
- an Eighth Amendment excessive force/failure to intervene claim
against Defendant D. West; (8) Count Eight - a state law tort claim
of assault and battery against Defendant West; (9) Count Nine - a
conspiracy claim against Defendants West and Benjamin Rowe for
conspiring to cover-up the excessive use of force by falsifying
disciplinary reports; (10) Count Ten - an Eighth Amendment failure
to protect claim against Defendant Palmer; (11) Count Eleven - a
state law tort claim of assault and battery against Defendant
Palmer for failure to protect Plaintiff from excessive force; (12)
Count Twelve - an Eighth Amendment deliberate indifference to
serious medical needs claim against Defendant Slominski; (13) Count
Thirteen - a Fourteenth Amendment equal protection claim against
all Defendants; and (14) a federal claim of assault and battery
under
18
U.S.C.
constitutional
§
rights
2424
under
for
the
4
depriving
Eighth
Plaintiff
Amendment
of
his
(deliberate
This section prescribes criminal penalties for deprivations
under color of law, including excessive force, which can be a basis
of conviction under this section. Apparently Plaintiff is seeking
criminal sanctions for a deprivation of his rights under color of
law.
3
indifference to Plaintiff's health and safety), as secured by the
Fifth and Fourteenth Amendments (equal protection of law).
In the Amended Complaint, Plaintiff alleges the following. He
is an inmate confined at Florida State Prison (FSP).
On February
26, 2013, at FSP, Defendant West approached Plaintiff's cell, C1115, and Plaintiff showed him a grievance response from Central
Office
concerning
security
staff.
Amended
Complaint
at
7.
Plaintiff was not kicking his door, making noise or yelling out of
his cell window or under his door.
Id. at 8.
The inmate in cell
C-1120 was kicking his door, reflected by the movement of the lock
on that door.
Id.
kicking his door.
Defendant A. Johnson asked if Plaintiff was
Id.
Plaintiff responded in the negative.
Id.
Defendant West chemically sprayed Plaintiff in retaliation for
Plaintiff's Judicial Notice (Notice, Doc. 159, Case No. 3:07-cv1156-J-JBT).5
Id. at 8, 13.
After being seen by medical staff, Defendant A. Johnson
escorted
Plaintiff
to
electrocardiogram (EKG).
the
medical
Id. at 13.
5
department
for
an
Defendants West and A.
The Court takes judicial notice of Logan v. Smith, et al.,
Case No. 3:07-cv-1156-J-JBT.
The Court granted Plaintiff's
Judicial Notice (Doc. 159) only to the extent that the Clerk was
directed to send a copy of the 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. 3:07cv-1156-J-JBT).
4
Johnson spoke to each other and said "we[']re to make it look good"
because he [Plaintiff] "has a good pen."
Id.
Defendant A. Johnson asked Plaintiff why he wrote a grievance
against Defendant A. Johnson's brother, Defendant S. Johnson, in
2010. Id. Plaintiff responded that Defendant S. Johnson assaulted
him in his cell on B wing.
Id.
Defendant A. Johnson told
Plaintiff that his brother was still mad about that situation. Id.
Defendant Nurse Slominski passed out medication on C wing.
Id.
Defendant A. Johnson put Plaintiff in the shower area.
Id.
Defendant S. Johnson removed Plaintiff from the shower area.
Id.
Defendants A. Johnson, S. Johnson, and Rowe escorted Plaintiff
downstairs.
Id. at 13-14.
Defendants A. Johnson and S. Johnson entered Plaintiff's cell.
Id. at 14. Defendant S. Johnson directed Plaintiff to kneel on his
bunk so that shackles could be removed.
Id.
Plaintiff knelt on
the bunk. Id. Defendant S. Johnson removed the leg shackles, took
the
lock
off
of
the
chain,
and
removed
the
black
box
from
Plaintiff's handcuffs. Id. Defendant S. Johnson ordered Plaintiff
to stand up and face the wall.
Id.
Plaintiff complied.
Id.
Defendant S. Johnson told Plaintiff that he was going to teach
Plaintiff
about
writing
grievances
against
him
because
the
grievances caused S. Johnson's removal from his B wing assignment
in 2010.
Id.
Defendant S. Johnson removed Plaintiff's right
handcuff, and Plaintiff placed his hand on top of his head as
5
ordered by Defendant S. Johnson.
Id.
Defendant S. Johnson
attacked Plaintiff by punching him in the face near the jaw,
knocking Plaintiff to the floor. Id. At this point, Defendants A.
Johnson and S. Johnson handcuffed Plaintiff behind his back and
shackled him.
Id.
They both started beating Plaintiff, kicking
Plaintiff in the face and punching him in the face and head.
Id.
Defendant A. Johnson hit Plaintiff in the face with his walk-talkie
radio.
Id.
the radio.
minutes.
He also struck Plaintiff on the top of his head with
Id.
Id.
The beating lasted approximately five to seven
The Defendants knocked Plaintiff unconscious.
Id.
Plaintiff woke up when he received a blow to his head and heard
inmates knocking on their doors and saying stop beating the inmate
in that cell.
Id.
will call it in.
Defendant A. Johnson said they are coming so I
Id.
When Plaintiff arrived at the FSP emergency room, his face and
head were swollen and busted open.
Id. at 15.
Inspector General
Smith arrived and took pictures of Plaintiff's face, mouth and
head.
Id.
Moments later, Inspector Snow also took pictures of
Plaintiff's face.
Id.
Plaintiff received stitches to the top of
his head where he was hit the radio.
Id.
stitches above his eyes and under his chin.
Plaintiff received
Id.
In the dental
department, Plaintiff received stitches to the inside of his mouth.
Id. Inspector Snow took more picture of Plaintiff's face and head.
Id.
The
doctor
placed
Plaintiff
6
under
twenty-four
hours
observation due to the severe swelling of Plaintiff's head and
face.
Id.
Later on that same day, the Inspector General took more
pictures of Plaintiff's head and face.
Id.
Plaintiff notified Defendant Warden Palmer through grievances
and
a
federal
court
case
(Case
No.
3:07-cv-1156-J-JBT)
Plaintiff feared retaliation and his life was in danger.
16.
that
Id. at
Defendant West conspired with low ranking officers to have
Plaintiff chemically sprayed and beaten off camera after Plaintiff
showed West a grievance response.
Id.
After the spraying, the
nurse informed Defendant West that Plaintiff should be taken to
medical for an examination which should be videotaped on a handheld camera.
Id.
Staff escorted Plaintiff back to his cell and
the videotaping ended.
Id.
At that point, Defendants A. Johnson
and S. Johnson removed Plaintiff from his cell.
Id.
Other
officers assisted Defendants A. Johnson and S. Johnson in beating
Plaintiff on February 26, 2013.
Id. at 17.
Defendant West failed
to intervene during the course of the beating.
Id.
All nurses falsified documents stating that Plaintiff was not
complaining of any discomfort due to the head and face injuries.
Id. at 18.
Plaintiff suffered a concussion, blackouts, headaches,
and dizziness.
Id.
The medical staff at FSP failed to send
Plaintiff for x-rays and a ct scan on February 26, 2013, when he
was under twenty-four hours of doctor's ordered observation.
Plaintiff finally received an x-ray on March 21, 2013.
7
Id.
Id.
Plaintiff
seeks
federal
Complaint at 16, 23.
and
state
indictments.
Amended
Plaintiff alleges there was a conspiracy to
commit assault and battery.
Id. at 17.
See Fla. Stat. § 944.35
(battery upon an inmate by an employee of the FDOC).
He seeks
compensatory and punitive damages and declaratory and injunctive
relief.
Amended Complaint at 20-23.
Finally, Plaintiff seeks the
Id. at 23.
appointment of counsel.
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).
IV.
Defendants
move
to
Equal Protection
dismiss
the
equal
protection
claim.
Defendants' Motion to Dismiss at 8-9; Slominski's Motion to Dismiss
8
at 4-5.
Upon review of the Amended Complaint, Plaintiff has not
adequately alleged an equal protection violation.
The
Equal
prohibits
a
Protection
state
from
Clause
denying
of
the
"to
Fourteenth
any
person
Amendment
within
its
jurisdiction the equal protection of the laws." U.S. Const. amend.
XIV, § 1.
states:
The Due Process Clause of the Fourteenth Amendment
"[N]or shall any State deprive any person of life,
liberty, or property, without due process of law."
amend XIV, § 1.
U.S. Const.
"To plead an equal protection claim, a plaintiff
must allege that 'through state action, similarly situated persons
have been treated disparately.' Thigpen v. Bibb County, Ga.,
Sheriff's Dep't, 223 F.3d 1231, 1237 (11th Cir.2000), abrogated on
other grounds by National R.R. Passenger Corp. v. Morgan, 536 U.S.
101,
122
S.Ct.
2061,
153
L.Ed.2d
106
(2002)."
Thorne
v.
Chairperson Fla. Parole Comm'n, No. 10-15246, 2011 WL 2015249, at
*5
(11th
Cir.
May
24,
2011)
(per
curiam)
(not
selected
for
publication in Federal Reporter).
Specifically, to establish a claim under the Equal Protection
Clause, a prisoner such as Plaintiff, can allege that "'(1) he is
similarly situated with other prisoners who received more favorable
treatment; and (2) his discriminatory treatment was based on some
constitutionally protected interest such as race.' Jones v. Ray,
279
F.3d
944,
946-47
(hereinafter Ray)."
(11th
Cir.2001)
(quotation
omitted)
Smith v. Reg'l Dir. of Fla. Dep't of Corr.,
9
368 F. App'x 9, 12 (11th Cir. 2010) (per curiam).
not
offered
any
support
for
a
claim
of
an
Plaintiff has
equal
protection
violation under the Fourteenth Amendment, either by alleging facts
in support of such a claim, or by submitting evidence of an equal
protection violation.
At best, Plaintiff has offered nothing more
than a vague and conclusory allegation that officials deprived him
of his rights under the Equal Protection Clause of the Fourteenth
Amendment. Accordingly, the motions to dismiss will be granted and
the equal protection claim raised against these Defendants will be
dismissed.
V.
Conspiracy (Johnson, Johnson & West)
Plaintiff claims that Defendants S. Johnson, A. Johnson, and
West entered into a conspiracy to cover up the fact that Plaintiff
was beaten by correctional officers by falsifying disciplinary
reports.
Plaintiff complains that the falsification of documents
constituted a violation of the First, Fifth, and Eighth Amendments.
Amended Complaint at 9-10.
The Eleventh Circuit described a civil rights conspiracy claim
under 42 U.S.C. § 1983 as follows:
A plaintiff may state a § 1983 claim for
conspiracy to violate constitutional rights by
showing a conspiracy existed that resulted in
the
actual
denial
of
some
underlying
constitutional right. GJR Invs., Inc. v.
County of Escambia, 132 F.3d 1359, 1370 (11th
Cir. 1998). "The plaintiff attempting to prove
such a conspiracy must show that the parties
'reached an understanding' to deny the
plaintiff
his
or
her
rights.
The
10
conspiratorial acts must impinge upon the
federal right; the plaintiff must prove an
actionable wrong to support the conspiracy."
Bendiburg v. Dempsey, 909 F.2d 463, 468 (11th
Cir. 1990) (citations omitted). A plaintiff
claiming a § 1983 conspiracy must prove the
defendants "reached an understanding" to
violate the plaintiff's constitutional rights.
Bailey v. Bd. of Cnty. Comm'rs of Alachua
Cnty., 956 F.2d 1112, 1122 (11th Cir. 1992)
("[T]he
linchpin
for
conspiracy
is
agreement."). Factual proof of the existence
of a § 1983 conspiracy may be based on
circumstantial evidence. Burrell v. Bd. of
Trs. of Ga. Military Coll., 970 F.2d 785, 789
(11th Cir. 1992).
Grider v. City of Auburn, Ala., 618 F.3d 1240, 1260 (11th Cir.
2010).
Defendants assert that Plaintiff's conspiracy claim must fail
because of the intracorporate conspiracy doctrine.
Defendants'
Motion to Dismiss at 10-11. These Defendants were employees of the
FDOC at the time of the events in question, and all of the
allegations arise out of their duties as employees of the FDOC.
Initially, in order to establish a § 1853(3) conspiracy claim,
Plaintiff has to show two or more persons entered an agreement to
deprive him of his civil rights.
42 U.S.C. § 1853(3).
Here,
Plaintiff claims that these FDOC's employees conspired to deprive
him of his constitutional rights.
Indeed, the employees of the
FDOC "constitute a single legal entity that cannot conspire with
itself."
Dickerson v. Alachua Cnty. Comm'n., 200 F.3d 761, 768
(11th Cir.), cert. dismissed, 530 U.S. 1285 (2000).
11
Of import, the intracorporate conspiracy doctrine "has been
applied not only to private corporations but also to public,
government entities."
Hollins v. Fulton Cnty., 422 F. App'x 828,
833 (11th Cir.) (per curiam) (quoting Dickerson, 200 F.3d at 767),
cert. denied, 132 S.Ct. 586 (2011). Of note, the doctrine provides
"that employees of a public, governmental entity or a private
corporation, when acting as agents of the entity or corporation,
'are deemed incapable of conspiring among themselves or with the
corporation.'" McLemore v. Cruz, No. 6:10-cv-766-Orl-28KRS, 2011 WL
4101729, at *4 (M.D. Fla. Sept. 14, 2011) (quoting Dickerson, 200
F.3d
at
767)
(a
case
claiming
co-conspirators,
correctional
officers at the Orange County Jail, created a "fight-club" at the
jail staging inmate fights).
See Myers v. Fla., No. 5:12-cv-259-
RS-EMT, 2014 WL 68067, at *10 (N.D. Fla. Jan. 8, 2014) (finding
that when all of the alleged conspirators were employees of the
FDOC and no outsiders were involved in the alleged conspiracy, the
intracorporate conspiracy doctrine is applicable to the action).
In the instant case, Defendants A. Johnson, S. Johnson, and
West are correctional officers, and they were conducting their
duties on the wing, including maintaining order and security on the
wing, restraining Plaintiff, and escorting him to medical and to
his cell. In this instance, Defendants were undoubtedly performing
job-related duties.
In Grider, 618 F.3d at 1261, the Eleventh Circuit noted:
12
We recognize that one might reasonably believe
that violating someone's constitutional rights
is never a job-related function or within the
scope
of
a
[correctional]
officer's
employment. However, the question of whether a
defendant acted within the scope of his
employment is distinct from whether the
defendant
acted
unconstitutionally.
The
scope-of-employment inquiry is whether the
employee [correctional] officer was performing
a function that, but for the alleged
constitutional infirmity, was within the ambit
of the officer's scope of authority (i.e.,
job-related duties) and in furtherance of the
employer's business.
Here, the job-related functions of the correctional employees were
"well within Defendants' scope of employment as FDOC employees."
Claudio v. Crews, No. 5:13-cv-345-MP-EMT, 2014 WL 1758106, at *6
(N.D. Fla. May 1, 2014).
At first blush it appears that the intracorporate conspiracy
doctrine may bar Defendants from being held liable for conspiring
to deprive Plaintiff of his
constitutional rights.
Since all of
the Defendants were FDOC's employees at the time of the incident,
"[t]he 'conspiracy' occurred only within a government entity[.]"
Rehberg v. Paulk, 611 F.3d 828, 854 (11th Cir. 2010), aff'd by 132
S.Ct.
1497
(2012).
However,
in
this
instance,
Plaintiff
specifically alleges criminal conduct. Thus, this case may present
an exception to the intracorporate conspiracy doctrine. Dickerson,
200 F.3d at 770 (noting that there may be an exception to the
doctrine
but
not
reaching
the
circumstances of that case).
13
issue
under
the
particular
Of import, the Eleventh Circuit recognizes that the doctrine
is limited; indeed, "[t]he fiction was never intended to prohibit
the imposition of criminal liability by allowing a corporation or
its agents to hide behind the identity of the other."
United
States v. Hartley, 678 F.2d 961, 970 (11th Cir. 1982) (abrogated on
other grounds), cert. denied, 459 U.S. 1170 (1983).
Moreover, it
has been recognized that it is possible for a corporation to
conspire with its own officers.
Id. at 972.
Plaintiff alleges that the conduct of the Defendants, as
described in his Amended Complaint, "could give rise to criminal
charges" against the FDOC employees.
770.
See Dickerson, 200 F.3d at
More specifically, he claims that Defendants committed a
battery pursuant to Fla. Stat. § 944.35.
This statute provides
that "[a]ny employee of the department [of corrections] who, with
malicious intent, commits a battery upon an inmate . . . commits a
misdemeanor of the first degree[.]" Fla. Stat. § 944.35(3)(a)1. It
also
provides
that
"[a]ny
employee
of
the
department
[of
corrections] who, with malicious intent, commits a battery or
inflicts cruel or inhuman treatment by neglect or otherwise, and in
so
doing
causes
great
bodily
harm,
permanent
disability,
or
permanent disfigurement to an inmate . . . commits a felony of the
third degree[.]" Fla. Stat. § 944.35(3)(a)2. See Amended Complaint
at 17.
Additionally, Plaintiff alleges that Defendants violated a
federal statute, 18 U.S.C. § 242, entitled deprivation of rights
14
under color of law, which provides for criminal sanctions for
deprivation of constitutional rights under color of law.
12.
Id. at
Finally, Plaintiff presents documents in support of his
allegations.
One of these documents, an April 9, 2013 response to
Plaintiff's request for an administrative remedy, reflects that the
Warden or his representative informed Plaintiff that "Inspector
Smith advises that this is an open criminal case[.]" Ex. A-7 at 27.
Plaintiff
plausibility.
has
stated
a
claim
of
conspiracy
with
facial
The Court is not convinced, at this stage of the
proceedings, that the intracorporate conspiracy doctrine bars
Plaintiff's conspiracy claim as alleged in the Amended Complaint.
Therefore, Defendants' Motion to Dismiss is due to be denied.
In the alternative, Defendants assert that the allegations
supporting
conclusory.
Plaintiff's
claim
of
a
conspiracy
are
Defendants' Motion to Dismiss at 9-10.
vague
and
Based on all
of the above and upon consideration of the allegations raised in
the
Amended
Complaint,
the
Court
concludes
that
the
Amended
Complaint states a conspiracy claim that is plausible on its face
and the claim should not be dismissed as vague and conclusory.
VI.
Criminal Prosecution
To the extent that Plaintiff is attempting to institute a
federal or state criminal proceeding against the Defendants through
his Amended Complaint, that request for relief is due to be
dismissed.
See Defendants' Motion to Dismiss at 11.
15
It is well-
settled that whether to prosecute and what criminal charges to file
are decisions that generally rest in the prosecutor's, not the
Court's discretion. See United States v. Batchelder, 442 U.S. 114,
124-25 (1979); Inmates of Attica Corr. Facility v. Rockefeller, 477
F.2d
375,
379-80
3:06CV180/LAC/EMT,
(2d
Cir.
1973);
Stoll
v.
Martin,
No.
2006 WL 2024387, at *3 (N.D. Fla. 2006) (not
reported in F.Supp.2d) (finding no citizen has a right to institute
a criminal prosecution, nor can the court direct that a criminal
prosecution occur).
Absent a statute expressly conferring standing, "a private
citizen has no judicially cognizable interest in the prosecution or
non-prosecution of another."
Otero v. United States Attorney
General, 832 F.2d 141, 141 (11th Cir. 1997) (per curiam) (citation
omitted).
Such matters are discretionary public duties and "may
not be controlled by a writ of mandamus."
omitted).
Id. at 141-42 (citation
See Weaver v. Mateer and Harbert, P.A., 523 F. App'x
565, 568 (11th Cir. 2013) (per curiam) (denying a motion to refer
a party's conduct to the United States Attorney, finding that the
Eleventh Circuit has previously held that a private citizen has no
judicially cognizable interest in such a prosecution).
VII.
Defendant
adequately
Excessive Force (Starling)
Starling
allege
a
asserts
claim
of
that
excessive
Defendants' Motion to Dismiss at 11.
16
Plaintiff
force
has
failed
against
to
him.
Upon review of the Amended
Complaint, Plaintiff has adequately presented an Eighth Amendment
excessive force claim against Defendant Starling. Plaintiff states
that he was subjected to a brutal beating by Defendants A. Johnson,
S. Johnson, and Brian Starling, as well as other officers, "off
view of cameras" on February 26, 2013.
Amended Complaint at 17.
VIII. Assault and Battery (Starling & Palmer)
Defendants contend that Plaintiff has failed to adequately
allege a claim of assault and battery with respect to Defendants
Starling and Palmer.
Defendants' Motion to Dismiss at 11-12.
The
Court agrees that Plaintiff has failed to adequately allege a state
law
claim
of
assault
and
battery
against
Defendant
Palmer.
Defendants' Motion to Dismiss will be granted with respect to the
claim of assault and battery against Defendant Palmer.
Plaintiff alleges that Defendant Starling committed an assault
and battery by participating in the beating inside of Plaintiff's
cell on February 26, 2013.
Amended Complaint at 9, 17.
The Court
concludes that the Amended Complaint states a claim of assault and
battery against Defendant Starling that is plausible on its face.
Thus, Defendants' Motion to Dismiss will be denied in this respect.
IX.
Failure to Protect (Palmer)
Defendants contend that Plaintiff has failed to adequately
allege
a
failure
to
protect
claim
Defendants' Motion to Dismiss at 12-13.
against
Defendant
Palmer.
Defendant Palmer contends
that Plaintiff is seeking to invoke the doctrine of respondeat
17
superior.
Id. at 12-13.
Defendant Palmer states that Plaintiff
does not adequately allege that Defendant Palmer's had knowledge of
a substantial risk of harm presented by Defendants West, A.
Johnson, and S. Johnson.
Id. at 13.
In the Amended Complaint, Plaintiff alleges that Defendant
Palmer was aware of the danger to Plaintiff's health and safety
because Plaintiff had 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).
Amended Complaint at 16.
See
Upon review, however, the defendants
named in Case No. 3:07-cv-1156-J-JBT do not include the officers
Plaintiff alleges beat him on February 26, 2013.
Of note, in Case
No.
filed
3:07-cv-1156-J-JBT,
Plaintiff
repeatedly
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 FSP for whatever action may be deemed appropriate in light of
Plaintiff's
threatened
allegations
to
kill
him
that
in
unnamed
prison
retaliation
for
officials
his
filing
had
and
prosecuting his case, and they had threatened to gas him, strip him
naked, and falsify disciplinary reports against him.
18
Plaintiff asks this Court to infer that Defendant Palmer was
aware that Plaintiff was in danger because of Plaintiff's numerous
grievances and complaints about acts of retaliation taken against
him by prison staff.
Response at 2-3.
The Court has reviewed the
exhibits attached to Plaintiff's Memorandum of Law (Doc. 23), and
they are all dated after February 26, 2013, not prior to the
alleged beating of February 26, 2013.
Thus, they will not be
considered to be documents constituting notice to Defendant Palmer
prior to the alleged beating.
The Court has also reviewed the
documents 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.
In
addressing
a
claim
of
failure
to
protect
against
a
supervisor, and more particularly in this instance, against a
warden of a prison facility, the 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
violation).
Of
his
authority
course,
"[e]ven
19
to
stop
when
an
the
constitutional
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, No. 12-12296, 2012 WL 6176471, at *4 (11th Cir. Dec. 12,
2012) (per curiam) (not selected for publication in the Federal
Reporter) (citation omitted), cert. denied, 133 S.Ct 2802 (2013).
Defendant Palmer may not, however, be held liable under a
theory of respondeat superior.
"Supervisory officials are not liable
under section 1983 on the basis of respondeat
superior or vicarious liability." Belcher v.
City of Foley, Ala., 30 F.3d 1390, 1396
(11th Cir. 1994) (internal quotation marks
and citation omitted). "The standard by which
a supervisor is held liable in her individual
capacity for the actions of a subordinate is
extremely rigorous." Gonzalez,[6] 325 F.3d at
1234 (internal quotation marks and citation
omitted). "Supervisory liability occurs either
when the supervisor personally participates in
the alleged constitutional violation or when
there is a causal connection between actions
of the supervising official and the alleged
constitutional
deprivation."
Brown
v.
Crawford, 906 F.2d 667, 671 (11th Cir. 1990).
Danley v. Allen, 540 F.3d 1298, 1314 (11th Cir. 2008) (abrogated on
other grounds); see Braddy v. Fla. Dep't of Labor & Emp't Sec., 133
F.3d 797, 801 (11th Cir. 1998) (finding supervisory liability
requires something more than stating a claim of liability under a
theory of respondeat superior).
Plaintiff is required to allege a causal connection between
the actions of Defendant Palmer and the alleged constitutional
6
Gonzalez v. Reno, 325 F.3d 1228 (11th Cir. 2003).
20
deprivation.
1999).
Hartley v. Parnell, 193 F.3d 1263, 1269 (11th Cir.
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 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).
But, "[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).
Plaintiff
does
not
allege
Defendant
Palmer
personally
participated in the alleged use of excessive force, nor does
Plaintiff contend that Defendant Palmer directed his officers to
use force against Plaintiff. Although the Amended Complaint is not
a model of clarity, it appears that Plaintiff is not alleging a
widespread custom of abuse at FSP in an attempt to impose liability
upon Defendant Palmer.
Plaintiff does, however, allege that
Defendant Palmer knew his officers would act unlawfully and failed
to stop them from doing so.
At
this
juncture,
the
Court
is
reluctant
to
find
that
Plaintiff has failed to state a claim of failure to protect against
21
Defendant
Warden
Palmer.
Plaintiff
complained
that
unnamed
officers threatened to retaliate against him, and he feared for his
safety from the correctional officers at FSP.
The matters raised
in Defendants' Motion to Dismiss with respect to this claim would
more properly be raised in a Rule 56 motion with supporting
records, affidavits, and other relevant documents.
Plaintiff has
pled "enough facts to state a claim to relief that is plausible on
its face."
Twombly, 550 U.S. at 570.
When Defendants file their motion for summary judgment, they
are directed to state with particularity the supporting evidentiary
basis for granting summary disposition of this case.
The Court
need not scour the record for evidentiary materials on file;
instead, the Court need ensure that the allegedly dispositive
motion
itself
materials.
is
supported
by
the
appropriate
evidentiary
Reese v. Herbert, 527 F.3d 1253, 1269 (11th Cir. 2008)
(citing One Piece of Real Property Located at 5800 SW 74th Ave.,
Miami, Fla., 363 F.3d 1099, 1101-02 (11th Cir. 2004)).
And, in
response, Plaintiff is expected to attach as exhibits the specific
documents which may show that Defendant Palmer was aware of the
threat to Plaintiff's health and safety, including grievances,
affidavits, and other materials.
Plaintiff should not generally
refer to all of his grievances and prior cases to support his
position.
This shotgun approach will not be favorably received at
the summary judgment stage of this proceeding.
22
X.
Eighth Amendment (Slominski)
Defendant Nurse Slominski, proceeding pro se, asserts that
Plaintiff failed to adequately allege an Eighth Amendment claim of
cruel and unusual punishment against her.
Plaintiff alleges that
Defendant Slominski was deliberately indifferent to his serious
medical needs.
Amended Complaint at 12.
He contends that the
nurses knew that he was experiencing blackouts and dizziness during
the twenty-four hour observation period after the beating, and they
failed to respond to his complaints of discomfort and falsified
documents by failing to report his symptoms. Id. at 18. Plaintiff
also alleges that this failure to treat and report his symptoms
resulted in the medical staff's failure to immediately send him for
x-rays and a ct scan.
Id.
Complaint
Eighth
states
a
The Court concludes that the Amended
Amendment
claim
of
deliberate
indifference to a serious medical need against Defendant Slominski
that is plausible on its face.
Thus, Defendant Slominski's Motion
to Dismiss will be denied in this respect.
XI.
Appointment of Counsel
Finally, Defendants contend that Plaintiff is not entitled to
appointment of counsel as he has shown that he is capable of
adequately investigating and presenting his case, there are no
exceptional circumstances to warrant the appointment of counsel,
the facts are simple and the issues of law settled, and Plaintiff
is an experienced litigant.
Defendants' Motion to Dismiss at 13-
23
15.
Because it appears Plaintiff is able to prosecute this case
during this early stage of the litigation, Plaintiff's request for
the appointment of counsel is premature.
However, after the case
progresses, Plaintiff may file a motion for appointment of counsel
for the Court's consideration.
Therefore, it is now
ORDERED:
1.
Defendants' Motion to Dismiss (Doc. 48) and Defendant
Slominski's Motion to Dismiss (Doc. 49) are GRANTED with respect to
the equal protection claim, and the equal protection claim is
dismissed from this action.
In all other respects, Defendant
Slominski's Motion to Dismiss (Doc. 49) is DENIED.
2.
Defendants' Motion to Dismiss (Doc. 48) is DENIED with
respect to the conspiracy claim against Defendants S. Johnson, A.
Johnson, and West; the excessive force claim against Defendant
Starling; the assault and battery claim against Defendant Starling;
and the failure to protect claim against Defendant Palmer.
3.
Defendants' Motion to Dismiss (Doc. 48) is GRANTED with
respect to Plaintiff's attempt to institute a federal or state
criminal proceeding against the Defendants through his Amended
Complaint,
and
that
claim
is
dismissed
from
this
action.
Defendants' Motion to Dismiss (Doc. 48) is also GRANTED with
respect to the assault and battery claim against Defendant Palmer,
and that claim is dismissed from this action.
24
4.
Defendants shall respond to the remaining claims of the
Amended Complaint by November 26, 2014.
DONE AND ORDERED at Jacksonville, Florida, this 27th day of
October, 2014.
sa 10/27
c:
Counsel of Record
25
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