Merritt v. Norris et al

Filing 95

ORDER denying 75 Motion to Dismiss for Failure to State a Claim; denying 77 motion to dismiss; Defendant Diakis, Defendant Crews (in his individual capacity), and Defendant Julie Jones (in her official capacity) shall respond to the Second Amended Complaint by April 3, 2015. Signed by Judge Brian J. Davis on 2/18/2015. (LDO)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
LARRY B. MERRITT,
Plaintiff,
vs.

Case No. 3:13-cv-868-J-39PDB

LT. L. NORRIS, et al.,
Defendants.
ORDER
I.

Status

Plaintiff Larry B. Merritt is proceeding on a Second Amended
Complaint (Second Amended Complaint) (Doc. 71) pursuant to 42
U.S.C. § 1983.

This cause is before the Court on Defendant, Nurse

T. Diakis' Motion to Dismiss Amended Civil Rights Complaint for
Failure to State a Cause of Action (Diakis' Motion to Dismiss)
(Doc. 75) and Defendant Crews' Motion to Dismiss (Crews' Motion to
Dismiss) (Doc. 77).
Dismiss.

Plaintiff responded to Crews' Motion to

See Plaintiff's Motion of Opposition (Response) (Doc.

81); Order (Doc. 43).
II.

The Second Amended Complaint

In the Second Amended Complaint, Plaintiff names T. Diakis
(Nurse), individually; and Michael D. Crews (Secretary, Florida
Department of Corrections (FDOC), individually and officially.
Second Amended Complaint at 30.

The following claims are raised

against

42

these

Defendants:

(1)

U.S.C.

§

1983:

deliberate

indifference to a serious medical need (Defendant Nurse Diakis);
(2) 42 U.S.C. § 1983: deliberate indifference/failure to protect
(Defendant Crews).
In

the

Second Amended Complaint at 15-16.

Second

Amended

Complaint,

following facts, in pertinent part.

Plaintiff

alleges

the

On March 30, 2012, at the

Reception and Medical Center (RMC), corrections officers chemically
sprayed

Plaintiff.

assaulted

and

beat

On

April

5,

Plaintiff.

As

2012,
a

corrections

result

of

the

officers
beating,

Plaintiff suffered broken ribs; abrasions to his head, chest, and
stomach; and had obvious swelling and severe pain.
Staff refused to send Plaintiff to receive medical care.

The

next day, April 6, 2012, a Psychiatrist, Dr. L. Iskander, and a
Senior Psych-Specialist visited Plaintiff and Plaintiff gave them
a detailed description of the beating.

Dr. Iskander referred

Plaintiff to medical due to his pain and the swelling of his face,
head, and left side.
room.

Staff escorted Plaintiff to the emergency

Defendant Nurse Diakis, R.N., took Plaintiff's vital signs

and asked Plaintiff to explain his emergency.
and described his pain and suffering.

Plaintiff explained

Nurse Diakis responded that

it did not look like anything was wrong with him.
During the medical visit, Plaintiff was fully restrained and
unable to point to parts of his body.
talking due to pain.

He limited his movement and

Plaintiff requested to see a physician or

another nurse to get a second opinion on Nurse Diakis' assessment.

2

Nurse Diakis denied his request without conducting a physical
examination of Plaintiff.
Plaintiff

was

Institution (SRCI).

transferred

to

Santa

Rosa

Correctional

At SRCI, Plaintiff complained that he was

suffering pain on his left side.

Nurse Szalai saw Plaintiff and

ordered x-rays of Plaintiff's torso and left side. The x-rays were
taken on April 18, 2012, and returned on April 19, 2012.

They

revealed three broken ribs on Plaintiff's left side.
Plaintiff states that Defendant Crews reviewed Plaintiff
complaints

and

failed

corrections staff.

to

protect

him

from

ongoing

abuse

by

Plaintiff states that Defendant Crews had

knowledge of serious beatings and assaults being administered by
staff under his supervision.

Plaintiff alleges that he will

continue to be targeted by staff and suffer irreparable injury if
he is returned to RMC.
beatings

and

chemical

He fears that he will be subjected to
spraying

if

he

is

not

provided

with

injunctive relief.
Plaintiff seeks nominal damages against both Defendants.
Second Amended complaint at 11.

He also seeks compensatory and

punitive damages against both Defendants.

Id. at 28.

Finally, he

seeks injunctive and declaratory relief against Defendant Crews.
Id. at 28-29.
Attached to the Second Amended Complaint is the Affidavit of
Larry B. Merritt.

Second Amended Complaint at 31-33.

3

Plaintiff

states that when he finally received an x-ray and a diagnosis that
he had suffered fractured ribs on his left side, Nurse Szalai
prescribed pain medication and instructed Plaintiff to not make any
sudden movements.

Id. at 32.

He asserts this happened, "after

repeated requests to Nurse T. Diakis who refused me adequate
medical care and treatment and refused me to be seen by a medical
doctor."

Id.

Plaintiff states that Defendants Crews failed to

investigate or reprimand his officers for their unnecessary uses of
force.

Id.
III.

Failure to State a Claim

"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).

4

A.

Nurse T. Diakis

The Eleventh Circuit discussed the underlying requirements in
presenting a claim of deliberate indifference to a serious medical
need:
Section 1983 provides a remedy for the
deprivation of federal civil rights by a
person acting under color of state law. See 42
U.S.C. § 1983. Prison officials violate the
Eighth Amendment when they act with deliberate
indifference to an inmate's serious medical
needs, giving rise to a cause of action under
§ 1983. Estelle v. Gamble, 429 U.S. 97,
104–05, 97 S.Ct. 285, 291, 50 L.Ed.2d 251
(1976). Claims of deliberate indifference to
the
serious
medical
needs
of
pretrial
detainees are governed by the Fourteenth
Amendment rather than by the Eighth Amendment.
Andujar v. Rodriguez, 486 F.3d 1199, 1203 n.3
(11th Cir. 2007). However, pretrial detainees
are afforded the same protection as prisoners,
and cases analyzing deliberate indifference
claims of pretrial detainees and prisoners can
be used interchangeably. See id. To prevail on
a
claim
of
deliberate
indifference,
a
plaintiff must show: (1) a serious medical
need;
(2)
the
defendant's
deliberate
indifference to that need; and (3) causation
between the defendant's indifference and the
plaintiff's injury. Mann v. Taser Int'l, Inc.,
588 F.3d 1291, 1306–07 (11th Cir. 2009).
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." Farrow v.
West, 320 F.3d 1235, 1243 (11th Cir. 2003)
(quotation
marks
omitted).
Establishing
deliberate indifference to that serious
medical need requires the plaintiff to
demonstrate: (1) subjective knowledge that
serious harm is possible; (2) disregard of
that risk; and (3) conduct that is more than
mere negligence. Brown v. Johnson, 387 F.3d
5

1344, 1351 (11th Cir. 2004). Conduct that is
more than mere negligence may include: (1)
knowledge of a serious medical need and a
failure or refusal to provide care; (2)
delaying treatment; (3) grossly inadequate
care; (4) a decision to take an easier but
less efficacious course of treatment; or (5)
medical care that is so cursory as to amount
to no treatment at all. McElligott v. Foley,
182 F.3d 1248, 1255 (11th Cir. 1999). A simple
difference in medical opinion between the
medical staff and an inmate as to the latter's
diagnosis or course of treatment does not
establish deliberate indifference. Harris v.
Thigpen, 941 F.2d 1495, 1505 (11th Cir. 1991).
"A § 1983 plaintiff may demonstrate causation
either
by
establishing
that
the
named
defendant was personally involved in the acts
that
resulted
in
the
constitutional
deprivation, or by showing that the defendant
instituted a custom or policy that resulted in
deliberate indifference to constitutional
rights." Thomas v. Bryant, 614 F.3d 1288, 1317
n.29 (11th Cir. 2010) (alteration omitted)
(citations omitted) (internal quotation marks
omitted).
Carter v. Broward Cnty. Sheriff's Dep't Med. Dep't, 558 F. App'x
919, 921-22 (11th Cir. 2014) (per curiam).
Plaintiff claims that Nurse Diakis failed to document his
injuries; perform a physical examination; refer him to a doctor;
provide an evaluation, diagnosis, care and treatment; and delayed
the provision of an evaluation, diagnosis, care and treatment
through her actions.

Second Amended Complaint at 15.

Defendant

Nurse Diakis asserts that Plaintiff has failed to adequately allege
a claim of deliberate indifference to a serious medical need.
Instead, Nurse Diakis suggests, Plaintiff has simply presented a
claim of mere negligence.

Diakis' Motion to Dismiss at 4.
6

Upon review of the Second Amended Complaint, Plaintiff has
adequately presented an Eighth Amendment claim, alleging the denial
of medical care for his serious medical needs in the Second Amended
Complaint.

Second Amended Complaint at 23-26.

Plaintiff claims

Nurse Diakis' actions and/or omissions were done with malice and/or
deliberate indifference to Plaintiff's serious medical needs.
at 15, 25.

Id.

As a result of these alleged actions or omissions,

Plaintiff complains that he was subjected to the unnecessary and
wanton infliction of pain.

Id.

After Farmer v. Brennan, 511 U.S. 825, 1979 (1994) (holding
the official must know of and disregard an excessive risk to an
inmate's health or safety, the official must be aware of facts from
which the inference could be drawn that a substantial risk of
serious harm exists, and the official must draw that inference), a
claim of deliberate indifference requires proof of more than gross
negligence. Townsend v. Jefferson Cnty., 601 F.3d 1152, 1158 (11th
Cir. 2010) (citing Cottrell v. Caldwell, 85 F.3d 1480, 1490 (11th
Cir. 1996)).

Plaintiff's allegations amount to more than just a

claim of gross negligence. See McElligott v. Foley, 182 F.3d 1248,
1256 (11th Cir. 1999) (record allows inference that the doctor and
the nurse were aware of a substantial risk of harm to an inmate,
and although the doctor did not diagnose the inmate's condition as
cancer nor did he know that the inmate had cancer, the doctor and
the nurse could be found to be "aware of the [inmate's] tremendous

7

pain and illness[.]").

In McElligott, the Court found that a jury

could find a doctor and a nurse deliberately indifferent to the
inmate's need for further diagnosis of and treatment for severe
pain. Id. at 1256-57. Also of import, failure to further diagnose
and treat severe pain satisfies the requirement of a serious
medical need constitutionally requiring medical attention.
This is

not a case where the alleged actions of Nurse Diakis

show a good faith effort by medical staff to address Plaintiff's
medical needs through multiple examinations, referrals to doctors
or specialists, written prescriptions, diagnostic tests, or other
medical treatment.

Also, the Court is not convinced at this stage

of the proceedings, that the alleged denial/delay of treatment was
the result of mere negligence.

See Bishop v. Pickens Cnty. Jail,

520 F. App'x 899, 901 (11th Cir. 2013) (per curiam) (affirming the
dismissal of a civil rights complaint in a case showing errors made
in diagnosing or treating a staph infection amounted to nothing
more than mere negligence, not sufficient allegations to support a
claim for deliberate indifference).
The Court concludes that Defendant Diakis' Motion to Dismiss
should be denied.

Plaintiff's claim against Defendant Diakis has

facial plausibility and will not be dismissed for failure to state
a claim under the Eighth Amendment. Thus, Defendant Diakis will be
directed to respond to the Second Amended Complaint.

8

The matters raised in Defendant Diakis' Motion to Dismiss
would more properly be raised in a Rule 56 motion with supporting
medical

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 Defendant

Diakis files a motion for summary judgment, she is 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 is
supported by the appropriate evidentiary materials.

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)).
B.

Defendant Michael D. Crews

Defendant Crews states that Plaintiff has failed to adequately
allege a failure to protect claim in his Second Amended Complaint.
Crews' Motion to Dismiss at 4.

Defendant Crews contends that

Plaintiff is seeking to invoke the doctrine of respondeat superior.
Id.

Defendant Crews urges this Court to find that Plaintiff did

not adequately "demonstrate that Defendant Crews, though his own
actions, acting under color of state law deprived Plaintiff of a
right, privilege, or immunity secured by the Constitution or laws
of the United States."

Id.

9

Plaintiff alleges in his Statement of Claim, that Defendant
Crews failed to ensure that there was an internal investigation of
the excessive uses of force and deprivation of medical care
following uses of force.

Plaintiff also claims that Defendant

Crews failed to protect him from known assailants, as Plaintiff had
submitted complaints detailing their malicious and sadistic abusive
actions.

Plaintiff further states that his complaints, which were

reviewed by Defendant Crews, were denied without investigation.
Finally, Plaintiff claims that Defendants Crews failed to prevent
and/or curb ongoing assaults, excessive uses of physical and
chemical force, acts of reprisal and retaliation, and denial of
adequate medical care and treatment.
Upon

review,

in

the

Second

Amended

Complaint,

Plaintiff

alleges that Defendant Crews was aware of the danger to Plaintiff's
health and safety because Plaintiff had repeatedly raised, through
his written complaints, that corrections officers were retaliating
against him by using excessive physical force and he was being
deprived of medical care.
First, it is clear that Defendant Crews may not 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
10

extremely rigorous." Gonzalez,[1] 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).
In

addressing

a

claim

of

failure

to

protect

against

a

supervisor, and more particularly in this instance, against the
Secretary of the FDOC, 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

to

stop

when

an

the

constitutional

officer

is

not

a

participant in the excessive force, he can still be liable if he

1

Gonzalez v. Reno, 325 F.3d 1228 (11th Cir. 2003).
11

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 this civil rights action, Plaintiff is required to allege
a causal connection between the actions of Defendant Crews and the
alleged constitutional deprivation.
1263, 1269 (11th Cir. 1999).

Hartley v. Parnell, 193 F.3d

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

Crews

personally

participated in the alleged use of excessive force, nor does
Plaintiff contend that Defendant Crews directed his officers to use
force against Plaintiff.

Although the Second Amended Complaint is

not a model of clarity, it does not appear that Plaintiff is
alleging a widespread custom of abuse in the FDOC in an attempt to

12

impose

liability

upon

Complaint at 16.

Defendant

Crews.

See

Second

Amended

Indeed, upon review of the Second Amended

Complaint, Plaintiff alleges that Defendant Crews knew his officers
and medical staff at RMC would act unlawfully and failed to stop
them from doing so.
At

this

Plaintiff

See Response at 3.

juncture,

has

failed

the
to

Court
state

is
a

reluctant
claim

to
of

find

that

deliberate

indifference/failure to protect against Defendant Crews. Plaintiff
has pled "enough facts to state a claim to relief that is plausible
on its face."

Twombly, 550 U.S. at 570.

As noted in his Response, Plaintiff clarifies that he is suing
Defendant Crews in his official capacity for injunctive relief, and
is suing Defendants Crews in his individual capacity for monetary
damages.

Response at 2-3.

Thus, Defendant Crews' Motion to

Dismiss the official capacity claims against Defendants Crews is
DENIED.2

See Second Amended Complaint at 30.

Plaintiff is not

seeking monetary damages against Defendant Crews in his official
capacity as Secretary of the FDOC.2

2

Although not explained, Defendants Crews asks that
Plaintiff's official capacity claims against Defendant Moore be
dismissed. Crews' Motion to Dismiss at 4. The Motion to Dismiss,
however, only addresses the allegations raised against Defendants
Crews.
In light of this fact, the Court concludes that the
reference to Defendant Moore on page four of the Motion to Dismiss
was inadvertent and made in error.
2

The Court recognizes that Michael D. Crews is no longer the
Secretary of the FDOC.
The current Secretary is Julie Jones.
Therefore, Julie Jones, the Secretary of the FDOC, is substituted
13

If Defendant Crews files a motion for summary judgment, he is
directed to state with particularity the supporting evidentiary
basis for granting summary disposition of this case.

And, in

response, Plaintiff is expected to attach as exhibits the specific
documents which may show that Defendant Crews was aware of the
threat to Plaintiff's health and safety, including grievances,
institutional appeals, relevant reports of the Inspector General,
affidavits, and other materials.

Plaintiff should not generally

refer to all grievances to support his position.

This shotgun

approach will not be favorably received at the summary judgment
stage of this proceeding.
The Court concludes that Defendant Crews' Motion to Dismiss
should be denied.

Thus, he will be directed to respond to the

Second Amended Complaint.
Therefore, it is now
ORDERED:
1.

Defendant

Diakis'

Motion

to

Dismiss

(Doc.

75)

and

Defendant Crews' Motion to Dismiss (Doc. 77) are DENIED.
2.

Defendant Diakis, Defendant Crews (in his individual

capacity), and Defendant Julie Jones (in her official capacity as
as the proper party Defendant for Michael D. Crews, in his official
capacity, pursuant to Rule 25(d), Federal Rules of Civil Procedure.
Michael D. Crews shall remain as a Defendant in his individual
capacity. The Clerk shall add Defendant Julie Jones, Secretary of
the FDOC, in her official capacity. The Clerk shall change the
docket to reflect that Michael D. Crews is a Defendant in his
individual capacity.
14

Secretary

of

the

FDOC)

shall

respond

to

the

Second

Amended

Complaint by April 3, 2015.
DONE AND ORDERED at Jacksonville, Florida, this 18th day of
February, 2015.

sa 2/17
c:
Larry B. Merritt
Counsel of Record

15