Cohen v. Tucker et al
Filing
122
ORDER granting 111 motion to dismiss; dismissing Defendants Kenneth Tucker and Robert Regar. Signed by Judge Brian J. Davis on 9/29/2017. (LDO)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
ROBERT COHEN,
Plaintiff,
v.
Case No. 3:14-cv-982-J-39MCR
KENNETH TUCKER, etc.; et al.,
Defendants.
ORDER
I. Status
Plaintiff
initiated
this
case
by
filing
a
Civil
Rights
Complaint (Complaint)1 (Doc. 1), dated August 11, 2014, and filed
with the Clerk on August 15, 2014.2
He is proceeding on a Third
Amended Complaint (Third Amended Complaint) (Doc. 72), filed on
March 3, 2016, pursuant to the mailbox rule.3
The Motion to
Dismiss by Defendants Regar and Tucker (Motion) (Doc. 111) is
1
The Court references the pagination assigned by the
electronic filing system.
2
The Complaint contains a statement providing the date
Plaintiff turned the Complaint over to prison authorities for
mailing: August 11, 2014. Complaint at 9.
3
At the time of the filing of the Third Amended Complaint,
Plaintiff was still confined in the Florida Department of
Corrections (FDOC). He has since been released from the custody of
the FDOC.
before the Court. Plaintiff filed two responses, (Response One and
Response Two) (Docs. 117 & 118).
II. Standard of Review
In ruling on a motion to dismiss, the Court must accept the
factual allegations set forth in the complaint as true.
v. Iqbal, 556 U.S. 662, 678 (2009).
Ashcroft
In addition, all reasonable
inferences should be drawn in favor of the plaintiff. See Omar ex.
rel. Cannon v. Lindsey, 334 F.3d 1246, 1247 (11th Cir. 2003) (per
curiam).
Nonetheless, the plaintiff must still meet some minimal
pleading requirements.
1250,
1262-63
(11th
Jackson v. BellSouth Telecomm., 372 F.3d
Cir.
2004)
(citations
omitted).
While
"[s]pecific facts are not necessary[,]" the complaint should "'give
the defendant fair notice of what the . . . claim is and the
grounds upon which it rests.'" Erickson v. Pardus, 551 U.S. 89, 93
(2007) (per curiam) (quoting Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 555 (2007)).
Further, the plaintiff must allege "enough
facts to state a claim that is plausible on its face." Twombly, 550
U.S. at 570.
"A claim has facial plausibility when the pleaded
factual content allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged." Iqbal,
556 U.S. at 678 (citing Twombly, 550 U.S. at 556); see Miljkovic v.
Shafritz & Dinkin, P.A., 791 F.3d 1291, 1297 (11th Cir. 2015)
(citation and footnote omitted).
- 2 -
A "plaintiff's obligation to provide the grounds of his
entitlement to relief requires more than labels and conclusions,
and a formulaic recitation of the elements of a cause of action
will not do[.]"
Twombly, 550 U.S. at 555 (internal quotations
omitted); see also Jackson, 372 F.3d at 1262 (explaining that
"conclusory allegations, unwarranted deductions of facts or legal
conclusions masquerading as facts will not prevent dismissal")
(internal citation and quotations omitted). Indeed, "the tenet that
a court must accept as true all of the allegations contained in a
complaint is inapplicable to legal conclusions[,]" which simply
"are not entitled to [an] assumption of truth."
U.S. at 678, 680.
See Iqbal, 556
Thus, in ruling on a motion to dismiss, the
Court must determine whether the complaint contains "sufficient
factual matter, accepted as true, to 'state a claim to relief that
is plausible on its face[.]'" Id. at 678 (quoting Twombly, 550 U.S.
at 570).
III. Third Amended Complaint
Defendants Robert Regar, a corrections officer, and Kenneth
Tucker, the former Secretary of the FDOC, filed the Motion.
Plaintiff brings this civil rights action pursuant to 42 U.S.C. §
1983 against the Defendants in their individual capacities. Third
Amended Complaint at 1.
In the Third Amended Complaint, Plaintiff
raises two claims: (1) Nurse Parrish was deliberately indifferent
to Plaintiff's eye condition and denied him medical care in
- 3 -
violation of the Eighth Amendment; and (2) Nurse Parrish, Officer
Regar and Officer Joseph conspired to deny Plaintiff medical care
by denying him medical emergencies and inhibiting his ability to
access
medical
care
for
his
eye
condition
because
Defendants' hatred of Plaintiff's convicted offense.4
Plaintiff
seeks
declaratory
relief;
compensatory
of
the
Id. at 5.
damages
of
$300,000.00 from each Defendant, jointly and severally; "room and
board[;]" punitive damages of $500,000.00 against each Defendant,
jointly and severally; and any additional relief the Court deems
just, proper and equitable.
Id. at 7.
In his statement of Facts, Plaintiff alleges that from June 6,
2012, to November 1, 2012, he was confined in H-dorm of Columbia
Correctional Institution (CCI) with red, itchy, puss-filled eyes.
Id. at 5.
Plaintiff notified Defendant Parrish, Defendant Regar,
Officer Joseph, and other officials approximately sixty-two times
about his medical condition.
Id.
On June 17, 2012, Plaintiff
attended sick call and told Defendant Parrish that he had puss in
his eyes.
Id.
to allergies.
Defendant Parrish, R.N., told Plaintiff it was due
Id.
Plaintiff declared a medical emergency to
Defendants Parrish and Regar on June 21, 2012, complaining of
impaired vision.
Id. at 6.
Although Plaintiff told Defendant
Parrish he was a diabetic and feared he was going blind, Parrish
4
The Court dismissed Defendants Donald Davis and Sgt. [Lt.]
Joseph from this action without prejudice on September 9, 2016.
Order (Doc. 87).
- 4 -
denied the request for a medical emergency, told Plaintiff he was
not dying, and walked away with Defendant Regar.
Id.
On June 22, 2012, Plaintiff attended a psychiatric call out
and
saw
a
registered
nurse
conjunctivitis (pink eye).
who
Id.
diagnosed
Plaintiff
with
The nurse, while Parrish was in
the room, told Officer Joseph and Defendant Regar that Plaintiff
was highly contagious and needed to see a doctor, but Joseph and
Regar did not take Plaintiff to a doctor.
Id.
At sick call on
July 16, 2012, Parrish made Plaintiff an appointment with a doctor,
and Plaintiff saw the doctor on July 18, 2012.
Id.
On August 30, 2012, Plaintiff wrote a formal grievance,
Request
for
Administrative
Remedy
or
Appeal,
to
the
Warden
referencing the actions of Officer Joseph and Defendants Parrish
and Regar. Plaintiff's Exhibit 13 (Doc. 72-5). Plaintiff entitled
the
grievance
"Medical[,]"
and
grievance of a medical nature.
described
Id.
the
grievance
as
a
Plaintiff complained that he
has suffered from untreated conjunctivitis since the last week of
May.
Id.
failed.
He stated that his attempts to get sick call slips had
Id.
He said when he did get a sick call slip, Nurse
Parrish told him he was suffering from allergies.
Id.
A nurse did
refer Plaintiff to a doctor and told Officer Joseph and Defendant
Regar that Plaintiff was highly contagious and needed to get to
medical as soon as possible.
Id.
Plaintiff's counselor put in a
referral, but Plaintiff did not see a doctor.
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Id.
Plaintiff
finally saw a doctor on July 18, 2012.
vision problems.
Id.
Id.
Plaintiff complains of
He said he put in two requests for an eye
examination, but as of August 30, 2012, he had not received the
requested eye examination.
Id.
Plaintiff wrote an unspecified complaint, not on a grievance
form, about not being taken to sick call or sick call slips not
being processed by Nurse Parrish or Defendant Regar.
Exhibit 15 (Doc. 72-7).
Plaintiff's
Plaintiff states that Officer Joseph and
Defendant Regar ignore him when Plaintiff claims he has a sick
call.
Id. at 1.
Plaintiff mentions that he saw Nurse Lancer, and
the nurse told him he would see a doctor.
Id.
Plaintiff describes
the grievance as a grievance of a medical nature.
Id. at 2.
IV. Summary of the Arguments
Defendants seek dismissal of the Complaint pursuant to 28
U.S.C. § 1915(e)(2)(B) and Fed. R. Civ. P. 12(b)(6).
Motion at 1.
In doing so, they contend Plaintiff: (1) failed to exhaust his
administrative remedies, and (2) fails to state a federal claim on
which relief may be granted against Defendant Tucker that is
plausible on its face. Id. Defendant Tucker also contends that he
is entitled to qualified immunity in his individual capacity for
monetary damages.
In response to the Motion, Plaintiff asserts that due to
Defendant
procedures,
Tucker's
he
refusal
caused
to
Plaintiff
follow
pain
- 6 -
FDOC's
and
policies
suffering,
and
deprived
Plaintiff of his constitutional right to medical care, and allowed
his subordinates to subject Plaintiff to the unnecessary and wanton
infliction of pain.
Response Two at 21.
Plaintiff reasons that
Defendant Tucker "cannot ignore a problem once he or she is
informed of [it] through a report or appeal."
Plaintiff
contends
that
entitled to immunity.
Defendants
Tucker
and
Id.
Finally,
Regar
are
not
Id.
V. Law and Conclusions
A.
Exhaustion of Administrative Remedies
Defendants assert that Plaintiff failed to properly avail
himself of the grievance process with regard to his claims.
Prison
Litigation
Reform
Act
(PLRA)
requires
The
exhaustion
of
available administrative remedies before a 42 U.S.C. § 1983 action
with respect to prison conditions by a prisoner may be initiated in
this Court.
Title 42 U.S.C. § 1997e(a) provides: "No action shall
be brought with respect to prison conditions under section 1983 of
this title, or any other Federal law, by a prisoner confined in any
jail,
prison
or
other
correctional
facility
until
such
administrative remedies as are available are exhausted."
In this regard, Defendants bear the burden of proving a
failure to exhaust available administrative remedies.
Turner v.
Burnside, 541 F.3d 1077, 1082-83 (11th Cir. 2008), relying on Jones
v. Bock, 549 U.S. 199 (2007).
The Court has guidelines for
reviewing a prisoner civil rights action for exhaustion compliance:
- 7 -
Before
a
prisoner
may
bring
a
prison-conditions suit under § 1983, the
Prison Litigation Reform Act of 1995 requires
that he exhaust all available administrative
remedies. 42 U.S.C. § 1997e(a); see also Booth
v. Churner, 532 U.S. 731, 736, 121 S.Ct. 1819,
1822, 149 L.Ed.2d 958 (2001). The purpose of
the PLRA's exhaustion requirement is to
"afford
corrections
officials
time
and
opportunity to address complaints internally
before allowing the initiation of a federal
case." Woodford v. Ngo, 548 U.S. 81, 93, 126
S.Ct. 2378, 2387, 165 L.Ed.2d 368 (2006)
(quotation omitted). To properly exhaust, a
prisoner
must
"[c]ompl[y]
with
prison
grievance procedures." Jones v. Bock, 549 U.S.
199, 218, 127 S.Ct. 910, 922–23, 166 L.Ed.2d
798 (2007).
Whatley v. Warden, Ware State Prison, 802 F.3d 1205, 1208 (11th
Cir. 2015).
The
Court
recognizes
that
exhaustion
of
available
administrative remedies is "a precondition to an adjudication on
the merits" and is mandatory under the PLRA.
Bryant v. Rich, 530
F.3d 1368, 1374 (11th Cir.), cert. denied, 555 U.S. 1074 (2008);
Jones, 549 U.S. at 211; Woodford v. Ngo, 548 U.S. 81, 85 (2006)
("Exhaustion is no longer left to the discretion of the district
court, but is mandatory.") (citation omitted).
The Supreme Court
has stated that "failure to exhaust is an affirmative defense under
the PLRA[.]"
Jones, 549 U.S. at 216.
Although, "the PLRA
exhaustion requirement is not jurisdictional[,]"
Woodford, 548
U.S. at 101, "exhaustion is mandatory under the PLRA[;]" therefore,
"unexhausted claims cannot be brought."
- 8 -
Pavao v. Sims, 679 F.
App'x 819, 823 (11th Cir. 2017) (per curiam) (citation omitted).
Also, the only recognized limitation is availability:
"The only limit to § 1997e(a)'s mandate is the
one baked into its text: An inmate need
exhaust only such administrative remedies as
are 'available.'" 136 S. Ct. 1850, 1862
(2016). For an administrative remedy to be
available, the "remedy must be 'capable of use
for the accomplishment of [its] purpose.'"
Turner v. Burnside, 541 F.3d 1077, 1084 (11th
Cir. 2008) (quoting Goebert v. Lee Cty., 510
F.3d 1312, 1322–23 (11th Cir. 2007)).
In Ross,[5] the Supreme Court identified
three circumstances in which administrative
remedies would be considered unavailable.
First,
"an
administrative
procedure
is
unavailable when (despite what regulations or
guidance materials may promise) it operates as
a simple dead end—with officers unable or
consistently unwilling to provide any relief
to aggrieved inmates." 136 S. Ct. at 1859.
Second, "an administrative scheme might be so
opaque that it becomes, practically speaking,
incapable of use. In this situation, some
mechanism exists to provide relief, but no
ordinary prisoner can discern or navigate it."
Id. Third, an administrative remedy is
unavailable "when prison administrators thwart
inmates from taking advantage of a grievance
process
through
machination,
misrepresentation, or intimidation." Id. at
1860.
Davis v. Sec'y, Dept. of Corr., No. 3:15-CV-649-J-34JRK, 2017 WL
1885366, at *3–4 (M.D. Fla. May 9, 2017).
In reviewing the question of exhaustion, "[t]he only facts
pertinent to determining whether a prisoner has satisfied the
PLRA's exhaustion requirement are those that existed when he filed
5
Ross v. Blake, 136 S.Ct. 1850 (2016).
- 9 -
his original complaint.
Smith v. Terry, 491 F. App'x 81, 83 (11th
Cir. 2012) (per curiam) (citing Harris v. Garner, 216 F.3d 970, 981
(11th Cir. 2000) (en banc)).
Indeed, "[t]he time the [PLRA] sets
for determining whether exhaustion of administrative remedies has
occurred is when the legal action is brought, because it is then
that the exhaustion bar is to be applied."
Wheeler v. Davis, No.
5:14CV271/WS/CJK, 2017 WL 1029119, at *3 (N.D. Fla. Feb. 6, 2017)
(report and recommendation) (quoting Goebert v. Lee Cty., 510 F.3d
1312, 1324 (11th Cir. 2007)) (emphasis in Wheeler), report and
recommendation adopted by 2017 WL 1027035 (N.D. Fla. Mar. 16,
2017).
Therefore, the relevant question before this Court is whether
Plaintiff properly exhausted available administrative remedies as
of August 11, 2014.
The question of availability of the procedure
goes to whether the administrative procedure was available before
August 11, 2014, prior to the filing of the initial complaint.
Construing the exhaustion requirement otherwise would render the
PLRA "a toothless scheme."
Not
only
is
there
Woodford, 548 U.S. at 95.
an
exhaustion
requirement,
exhaustion requirement requires proper exhaustion."
PLRA
Woodford, 548
U.S at 93.
Because exhaustion requirements are designed
to deal with parties who do not want to
exhaust,
administrative
law
creates
an
incentive for these parties to do what they
would otherwise prefer not to do, namely, to
- 10 -
"the
give the agency a fair and full opportunity to
adjudicate their claims. Administrative law
does this by requiring proper exhaustion of
administrative remedies, which "means using
all steps that the agency holds out, and doing
so properly (so that the agency addresses the
issues on the merits)." Pozo,[6] 286 F.3d, at
1024. . . .
Id. at 90 (emphasis added).
In fact, "[p]roper exhaustion demands
compliance with an agency's deadlines and other critical procedural
rules."
Id.
The Court must now make findings on the disputed issues of
fact to decide whether administrative remedies were available to
Plaintiff at CCI, and if they were, whether he properly exhausted
his administrative remedies.
Since the parties have not requested
an evidentiary hearing on this issue and they have submitted
evidence for the Court's consideration, the Court proceeds to
resolve the material questions of fact based on the documents
before the Court.
Bryant, 530 F.3d 1377 n.16 (recognizing that a
district court may resolve material questions of fact on the
submitted papers when addressing the PLRA's exhaustion of remedies
requirement).
The Florida Department of Corrections (FDOC) provides an
internal
grievance
procedure.
See
Chapter
33-103,
Florida
Administrative Code (F.A.C.). Thus, to determine whether Plaintiff
6
Pozo v. McCaughtry, 286 F.3d 1022 (7th Cir.), cert. denied,
537 U.S. 949 (2002).
- 11 -
exhausted his administrative remedies, this Court must examine the
relevant documents to determine whether the incidents in question
were grieved.
If these incidents were grieved and the documents
complied with the deadlines and other procedural rules as set forth
in the F.A.C., the issues raised therein are exhausted.
The Eleventh Circuit succinctly described this available
administrative
grievance
procedure,
including
the
specialized
process adopted for grievances of a medical nature:
In
Florida,
the
grievance
process
consists of a three-step procedure. An inmate
must first file an "informal grievance ... to
the staff member who is responsible in the
particular area of the problem." Fla. Admin.
Code Ann. § 33–103.005(1). The second step
requires the inmate file a formal grievance
with the warden. Id. § 33–103.006(1)(a). If
the inmate is unsuccessful at this point, he
may submit an appeal to the Secretary of the
DOC. Id. § 33–103.007.
Medical
grievances
require
only
a
two-step procedure: the inmate must file a
formal grievance at the institutional level
with the chief health officer. If the inmate
is unsuccessful, he may file an appeal with
the Secretary. Id. § 33–103.008.
Kozuh v. Nichols, 185 F. App'x 874, 877 (11th Cir. 2006) (per
curiam), cert. denied, 549 U.S. 1222 (2007).
Plaintiff had an available administrative remedy of filing a
formal grievance of a medical nature at the institutional level.
Fla. Admin. Code § 33-103.008(1), Grievances of Medical Nature. If
denied, he could appeal to the Office of the Secretary.
- 12 -
Fla.
Admin. Code § 33-103.007(1).
Upon review, the inmate is required
to attach a copy of his formal grievance and response, except under
specified circumstances, to the appeal. Fla. Admin. Code § 33-103007(5)(a).
Of note, Plaintiff references his August 30, 2012 grievance to
the warden concerning a grievance of a medical nature. Plaintiff's
Exhibit 13 (Doc. 72-5).
Assuming this grievance constituted an
attempt to exhaust administrative remedies with respect to the
conduct
of
Defendant
Regar,
Plaintiff
failed
to
comply
with
critical procedural rules to exhaust his available administrative
remedies by failing to appeal to the Secretary of the FDOC.
Thus,
Plaintiff did not undertake the second step of the two-step
process.7
Plaintiff has not demonstrated that he has exhausted his
administrative remedies with regard to the claims raised in the
7
Plaintiff, in his factual allegations, alleges Defendant
Regar failed to respond appropriately to Plaintiff's declaration of
a medical emergency and to see that Plaintiff was sent to a doctor
on June 22, 2012, when the nurse told Regar that Plaintiff was
highly contagious and needed to see a doctor. Indeed, Plaintiff
blames Regar for his inability to see a doctor until July 18, 2012.
The Chronological Record of Health Care, however, shows that on
June 22, 2012, the nurse referred Plaintiff to the doctor's clinic
for evaluation and follow-up after Plaintiff complained about his
eye condition. Plaintiff's Exhibit 5 (Doc. 113-1). On June 25,
2012, the doctor, not security staff, made the determination that
if Plaintiff's symptoms did not improve, Plaintiff would be
scheduled for an appointment. Id. Thus, Plaintiff was not seen
immediately for his conjunctivitis based on the doctor's assessment
of the relative urgency of Plaintiff's eye condition.
- 13 -
Third
Amended
Complaint.
Indeed,
upon
supporting documents demonstrate otherwise.
review,
Defendants'
The Declaration of
Lawanda Williams Sanders (Doc. 111-1) shows that the Bureau of
Inmate Grievance Appeals only received from Plaintiff the following
grievances from June 6, 2012, to August 11, 2014, regarding medical
issues: 12-6-19712, 12-6-24005, 12-6-25520, 12-6-27257, 12-6-31186,
12-6-31187, 12-6-32138, 12-6-35380, 13-6-15393, and 14-6-17618.
These appeals do not concern an appeal of the August 30, 2012
medical grievance addressed to the Warden.
appeals
concern
the
allegation
that
None of the grievance
Defendant
Regar
denied
Plaintiff medical emergencies or access to sick call or medical
staff.8
(Docs. 111-1 through 111-11).
To the extent Plaintiff is claiming that his Exhibit 15 (Doc.
72-7) constituted an administrative grievance, the Court is not
convinced that is the case.
It is a handwritten document, not
written on the grievance form, and it is not addressed to any
particular individual or office. It is unsigned and undated. Even
if it were broadly construed to be a medical grievance addressed to
the Warden, the second step of the medical grievance process was
not completed as Plaintiff did not appeal to the Secretary.
8
The Court notes that the July 15, 2012 grievance to the
Warden states that when the nurse told Plaintiff he was contagious
and provided a referral to the doctor, Plaintiff heard the nurse
tell Sgt. Jones to get Plaintiff to medical. (Doc. 111-4 at 3).
No mention is made of Defendant Regar in this grievance. Id.
- 14 -
Of significance, if Plaintiff filed a grievance and attempted
to exhaust his administrative remedies, he would have needed to
submit an initial medical grievance with the Warden, and then an
appeal to the Secretary to properly grieve the medical matter in
compliance with the procedural requirements of the administrative
grievance
process.
undertaken
the
Otherwise,
three-step
Plaintiff
grievance
would
process
have
of
an
to
have
informal
grievance, formal grievance, and then an appeal to the Secretary,
which he did not do.
Plaintiff has not shown that he complied with the two-step or
three-step process.
Declaration,
the
In stark contrast, the Defendants provided a
FDOC
log
records
of
grievances,
and
record
evidence that Plaintiff did not properly exhaust his administrative
remedies with regard to his claim concerning being denied access to
medical care.
Based on all reasonable inferences, Plaintiff had access to
the grievance process and used the process. Upon review, the Court
finds that the administrative process was available to Plaintiff.
He has not shown that he properly filed a grievance concerning the
events that occurred at CCI and fully exhausted his administrative
remedies in compliance with the procedural rules.
In light of the above, Plaintiff failed to exhaust his
administrative remedies before filing a lawsuit to seek judicial
redress. Therefore, the Court concludes that Defendants' Motion to
- 15 -
Dismiss should be granted for Plaintiff's failure to exhaust his
administrative remedies.
B.
Failure to State a Claim
Plaintiff names Defendant Tucker in his individual capacity,
and is seeking monetary relief against him. Defendant Tucker moves
for dismissal based on Plaintiff's failure to state a claim against
him.
Motion at 13-18.
against
Defendant
Plaintiff raises absolutely no allegations
Tucker
in
his
Third
Amended
Complaint.
Plaintiff's two identified claims are against other individuals,
but not Defendant Tucker.
In order to state a claim under 42 U.S.C. § 1983, a plaintiff
must allege that (1) the defendant deprived him of a right secured
under the United States Constitution or federal law, and (2) such
deprivation occurred under color of state law.
Salvato v. Miley,
790 F.3d 1286, 1295 (11th Cir. 2015); Bingham v. Thomas, 654 F.3d
1171, 1175 (11th Cir. 2011) (per curiam) (citation omitted);
Richardson v. Johnson, 598 F.3d 734, 737 (11th Cir. 2010) (per
curiam) (citations omitted).
The Eleventh Circuit provides guidance for employing the
rigorous standard for establishing supervisory liability in a civil
rights action:
"Supervisory liability under section 1983 may
be shown by either the supervisor's personal
participation in the acts that comprise the
constitutional violation or the existence of a
causal connection linking the supervisor's
- 16 -
actions with the violation." Lewis v. Smith,
855 F.2d 736, 738 (11th Cir. 1988) (per
curiam). Personal participation occurs when,
for example, the supervisor inflicts the
injury himself. See Hewett v. Jarrard, 786
F.2d 1080, 1087 (11th Cir. 1986). A causal
connection can be established "when facts
support an inference that the supervisor
directed the subordinates to act unlawfully or
knew
that
the
subordinates
would
act
unlawfully and failed to stop them from doing
so." Mercado v. City of Orlando, 407 F.3d
1152, 1158 (11th Cir. 2005) (quotation
omitted). This standard is quite rigorous. Id.
Smith v. LePage, 834 F.3d 1285, 1298 (11th Cir. 2016).
In this case, there is no suggestion that Defendant Tucker
personally
participated
in
the
alleged
violation.
As
previously, he is not mentioned in the statement of facts.
noted
The
question is whether Plaintiff has pled "enough facts to state a
claim to relief that is plausible on its face."
at 570.
Twombly, 550 U.S.
Acknowledging this strict limitation on supervisory
liability, the Court recognizes that Defendant Tucker may not be
held liable under a theory of respondeat superior.
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
pro
Third
superior).
The
Court
liberally
construes
the
se
Amended
Complaint, but even a liberal construction does not save the day.
Plaintiff has failed to state a claim against Defendant Tucker that
- 17 -
is plausible on its face.
As noted by Defendants, Plaintiff
provides no factual allegations that Tucker violated Plaintiff's
constitutional rights, directed any violation, or had any knowledge
of any violation.
See Motion at 16.
Clearly, no liability for
damages can be imposed upon Defendant Tucker in his individual
capacity merely due to his former supervisory position as Secretary
of the FDOC.
In this civil rights action, Plaintiff is required to allege
a causal connection between the actions of Defendant Tucker 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 has not met this rigorous standard.
He does not
allege Defendant Tucker personally participated in the alleged
- 18 -
deprivation or denial of access to medical care, nor does Plaintiff
contend that Defendant Tucker directed his officers to prevent
Plaintiff from obtaining medical care.
Upon a careful review of
the Third Amended Complaint, Plaintiff does not allege a widespread
custom of deprivation of medical care in the FDOC in an attempt to
impose liability upon Defendant Tucker. Instead, Plaintiff asserts
that the actions and omissions of Parrish, Regar and Joseph were
carried
out
against
Plaintiff
because
"of
their
hatred"
of
Plaintiff's offense for which he is in prison.
Third Amended
Complaint
Third
at
6.
Indeed,
upon
review
of
the
Amended
Complaint, Plaintiff does not allege that Defendant Tucker knew his
officers and medical staff at CCI would deprive Plaintiff of access
to medical care and failed to stop them from doing so.
Plaintiff has not pled "enough facts to state a claim to
relief that is plausible on its face."
Twombly, 550 U.S. at 570.
The Court concludes that Defendants' Motion to Dismiss should be
granted with respect to the assertion that Plaintiff fails to state
a claim against Defendant Tucker in his individual capacity.
C.
Qualified Immunity
Defendant Tucker contends that he is entitled to qualified
immunity.
The Eleventh Circuit provides the following guidance in
reviewing a claim of entitlement to qualified immunity:
To receive qualified immunity, [a] public
official must establish that he was engaged in
a "discretionary function" at the time he
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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.
Bryant v. Jones, 575 F.3d 1281, 1295 (11th Cir. 2009), cert.
denied, 559 U.S. 940 (2010). This Court is "free to consider these
elements in either sequence and to decide the case on the basis of
either element that is not demonstrated."
Youmans v. Gagnon, 626
F.3d 557, 562 (11th Cir. 2010) (per curiam).
It
is
undisputed
that
Defendant
Tucker
was
discretionary functions during the events in question.
engaged
in
Defendant
Tucker did not violate Plaintiff's constitutional rights and is
therefore entitled to qualified immunity.
Therefore, it is now
ORDERED:
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Defendants' Motion to Dismiss (Doc. 111) is GRANTED, and
Defendants Kenneth Tucker and Robert Regar are dismissed from this
action.
DONE AND ORDERED at Jacksonville, Florida, this 29th day of
September, 2017.
sa 9/15
c:
Robert Cohen
Counsel of Record
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