Jenkins v. Tucker et al

Filing 52

ORDER granting 42 Motion to Dismiss [adopted by Defendant Landrum in 50] to the extent that Plaintiff seeks monetary damages from Defendants Jones, Tucker, Clemmons, and Landrum in their official capacities; dismissing Defendants Julie L. Jone s, Secretary of the Florida Department of Corrections, and Walker Clemmons, Warden of Suwannee Correctional Institution, from this action; Defendant Tucker (in his individual capacity) and Defendant Landrum (in his individual capacity) shall respond to the Second Amended Complaint by October 2, 2017. Signed by Judge Brian J. Davis on 8/7/2017. (LDO)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
GEORGE MICHAEL JENKINS,
Plaintiff,
v.

Case No. 3:14-cv-1503-J-39MCR

JULIE L. JONES, etc.; et al.,
Defendants.
ORDER
I. Status
This matter is before the Court on Defendants [Warden Walker
Clemmons, Kenneth Tucker and Julie L. Jones] Motion to Dismiss
Plaintiff's Second Amended Complaint (Motion) (Doc. 42). Defendant
Chris Landrum filed a Notice of Adoption of Co-Defendants' Motion
to

Dismiss

Plaintiff

Plaintiff's

filed

a

Second

Response

(Response) (Doc. 44).

to

Amended

Complaint

Defendants'

Motion

(Doc.
to

50).

Dismiss1

Plaintiff is proceeding on a Second Amended

Complaint (Complaint)2 (Doc. 39) and is represented by counsel.
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.

Ashcroft

1

Plaintiff also filed a Request for Oral Argument in
Opposition to Defendants' Motion to Dismiss Plaintiff's Amended
Complaint (Doc. 49); however, the Court declines to hold oral
argument as a decision can appropriately be rendered on the
documents before the Court.
2

The Court references the pagination assigned by the
electronic filing system.

v. Iqbal, 556 U.S. 662, 678 (2009).

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).
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

- 2 -

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. Second Amended Complaint3
As Defendants, Plaintiff names Julie L. Jones, the Secretary
of the Florida Department of Corrections (FDOC), in her official
capacity; Kenneth S. Tucker, a former Secretary of the FDOC, in his
official and individual capacities; Walker Clemmons, Warden of
Suwannee Correctional Institution (SCI), in his official capacity;
and Chris Landrum, a former Warden of SCI, in his official and
individual capacities.4

Complaint at 1.

Plaintiff, in his Second

3

In considering the Motion, the Court must accept all factual
allegations in the Complaint (Doc. 39) as true, consider the
allegations in the light most favorable to the plaintiff, and
accept all reasonable inferences that can be drawn from such
allegations.
Miljkovic v. Shafritz and Dinkin, P.A., 791 F.3d
1291, 1297 (11th Cir. 2015) (quotations and citations omitted). As
such, the recited facts are drawn from the Complaint and may differ
from those that ultimately can be proved.
4

Plaintiff names other Defendants, Michael Humphrey, a former
correctional officer at SCI in his individual and official
- 3 -

Cause of Action Supervisory Liability/Respondeat Superior, raises
the following claim against these particular Defendants:
This is a § 1983 action for compensatory,
declaratory,
and
punitive
damages
for
Supervisory
Liability/Respondeat
Superior
directed against Defendants Jones, Tucker,
Clemmons, and Landrum ("Superior Officers"),
in regards to their failure to train and/or
supervise Defendants Rogers, Corbin, and
Humphrey ("Subordinate Officers"), as well as
their
implementation
of
customs
and/or
policies
of
abuse
towards
incarcerated
inpatients at the Suwannee Correctional
Institution.
Complaint at 9 (paragraph enumeration omitted).
Plaintiff seeks general, compensatory, and punitive damages,
and such other relief as the Court deems appropriate.

Id. at 14.

Notably, Plaintiff does not seek declaratory and injunctive relief
in his Complaint.

Of import, he is no longer confined in the FDOC.

Generally, Plaintiff alleges that on November 11, 2011, he was
confined

as

an

inpatient

isolation area at SCI.

within

the

Id. at 3.

prison

infirmary/medical

Plaintiff had two ongoing

medical issues/disputes at the time of the incident.

He had filed

grievances concerning the removal of his wheelchair from his cell
without his consent.
refused

a

Id. at 4.

management

meal,

On the morning of the incident, he
complaining

that

the

meals

were

capacities, James H. Rogers, a former sergeant at SCI, in his
individual and official capacities, and Leon J. Corbin, III, a
former sergeant at SCI, in his individual and official capacities,
but the Court will not address the claim against them in this
Order. Of note, these particular Defendants have not been served
with the Second Amended Complaint.
- 4 -

worsening his medical condition, and requested a doctor's opinion.
Id.
Nurse

Hancock,

at

7:10

a.m.,

noted

in

Plaintiff's

Chronological Record of Health Care (Record), that Plaintiff had
wrapped his hand and banged on his window for approximately fifty
minutes and had "acted out" the previous two evenings.

Id.

Plaintiff counters that he, for a few minutes, called out for
assistance concerning his medical concerns.

Id.

Nurse Bisque, at

2:10 p.m., made an entry in the Record that another nurse informed
her that Plaintiff was agitated about his tray issues (meals). Id.
Security was notified that Plaintiff had been disruptive.

Id.

At 9:15 a.m., Defendant Humphrey told Plaintiff he was at the
cell to conduct a search.
a wheelchair.

Id.

Plaintiff was taken out of his cell in

Defendants Corbin and Rogers were in the

hallway with Lieutenant Jason Keith. Id. Lieutenant Keith stepped
away.

Id.

Defendant Humphrey began taking Plaintiff's property

out of the cell, and then Plaintiff was informed that his property
was being confiscated.

Id. at 4-5.

Defendant Corbin reported that he removed all of the property
from Plaintiff's cell and placed Plaintiff on 72-hour property
restriction due to Plaintiff's disruptive behavior. Id. at 4. The
Report of Force Used does not mention whether a superior officer
authorized the cell search and property seizure.

- 5 -

Id. at 5.

Defendant Humphrey removed Plaintiff's bed (consisting of a
mattress) from his cell.

Id.

Because there was a small tear on

the side of the mattress, it was confiscated as a safety concern.
Id.

Defendant Humphrey confiscated the wheelchair, stating it

could be used as a weapon.

Id.

Defendants Corbin, Rogers, and

Humphrey told Plaintiff they would be conducting a strip search of
Plaintiff.

Id.

Defendant Corbin and Humphrey assisted Plaintiff

out of the wheelchair and onto the concrete floor.

Id.

They told

Plaintiff he caused too many disturbances and filed too many
grievances, so they did not want him in the clinic.

Id.

A few moments later, Plaintiff refused to re-enter the cell.
Id.

He told the officers he did not want to sleep on the concrete

floor.

Id.

He requested a new bed for his cell, or an explanation

as to when a bed would be provided.

Id. at 5-6.

that a wheelchair be made available to him.

He also requested

Id. at 6.

At this point, Defendant Humphrey told Plaintiff they needed
to conduct a strip search.
clothes.

Id.

Id.

He ordered Plaintiff to remove his

Plaintiff removed some of his clothes, but did not

remove his medical gown/underwear shirt, ignoring orders to do so.
Id. Defendants Humphrey and Corbin conducted a "spontaneous use of
force" in an effort to undress Plaintiff.

Id.

A struggle ensued,

with all three men in the vestibule with Plaintiff's legs inside of
the cell.

Id.

Defendant Rogers joined the struggle, holding

Plaintiff's hands and shoulders.

- 6 -

Id.

Defendant Corbin pressed

Plaintiff's face into the floor.

Id.

Plaintiff's medical gown,

his only article of clothing, rolled up past his stomach.

Id.

Moments later, Defendant Humphrey sexually assaulted Plaintiff with
an object (a broomstick, handle, baton or weapon) for approximately
fifteen seconds.5

Id.

After the Defendants departed, Plaintiff

screamed for five minutes about the assault.

Id.

Approximately

fifteen minutes after the incident, someone made a post-use-offorce video.

Id.

Plaintiff's seized property, including pens and paper, were
confiscated and never returned.

Id. at 7.

Other inmates helped

Plaintiff contact his previous counsel by mailing a letter.

Id.

Plaintiff grieved the matter and demanded a medical examination.
A medical examination was conducted several weeks after the

Id.

incident, but a record of it is not included in Plaintiff's
institutional medical record.

Id.

Nurse Bisque's November 11, 2011 Emergency Room Record states
there was blood and spit on the floor, but she found no need for
treatment once she observed Plaintiff through the cell window. Id.
A review of this Emergency Room Record was not undertaken until
November 14, 2011.

Id.

On February 12, 2014, an agent of the Federal Bureau of
Investigation and an agent of the Florida Department of Law
5

Plaintiff surmises that the object was a sawed-off handle of
an infirmary mop, regularly stored in a nearby utility closet.
Complaint at 6.
- 7 -

Enforcement interviewed Plaintiff on an unrelated matter.
7.

Id. at

Plaintiff told them he had been sexually assaulted on November

11, 2011, and sought their assistance in investigating the matter.
Id.
Plaintiff claims he was subjected to the excessive use of
force when he was sexually assaulted by Defendant Humphrey, who was
aided by Defendants Corbin and Rogers.

Id. at 9.

Plaintiff

believes the purpose of the assault was to deter him from filing
grievances against staff.

Id.

IV. Summary of the Arguments
Defendants seek dismissal of the Complaint pursuant to Fed. R.
Civ. P. 12(b)(6).

Motion at 1.

In doing so, they assert: (1)

Defendants are entitled to Eleventh Amendment immunity to the
extent they are sued in their official capacities for monetary
damages, see Motion at 2-3; and (2) Plaintiff fails to state a
claim against Defendants, id. at 3-8.
In response to Defendants' Motion, Plaintiff states that if
the Court finds Defendants are entitled to Eleventh Amendment
immunity with respect to the claim for monetary damages against
them in their official capacities, Plaintiff would still pursue any
claims raised against Defendants in their individual capacities.
Response at 1.

Additionally, Plaintiff asserts that he has

properly and sufficiently stated a claim of excessive force in
violation of the Eighth Amendment, with supervisory liability

- 8 -

against Defendants Clemmons, Tucker, Jones, and Landrum for failure
to train and/or supervise underlings, as well as for Defendants
Clemmons, Tucker, Jones, and Landrum's implementation of customs
and/or policies of abuse towards incarcerated inpatients at SCI.
Id. at 3.
Plaintiff states that he relies on undisputed documents that
show glaring deficiencies and deviations from standard procedure in
the

cell

search,

removal

of

Plaintiff

from

his

wheelchair,

confiscation of Plaintiff's personal belongings and removal of his
bed from his cell, the forced strip search and sexual assault, the
inadequate post-use-of-force video, the denial of a proper and
timely medical examination, the maintenance of the medical record,
and the circumscribed Institutional Inspector's review, approved by
the Defendants.
Plaintiff

Response at 2-3.
alleges

that

the

Defendants

were

deliberately

indifferent towards the abusive behavior of subordinate officers,
particularly with respect to the abuse of vulnerable prisoners
housed

in

the

infirmary/medical

isolation

area.

Id.

at

3.

Plaintiff contends that Defendants implemented a policy or custom
"where unsupervised and undertrained officers were constantly
allowed to abuse prisoners without fear of meaningful investigation
into their conduct."

Id.

Plaintiff surmises that discovery will

reveal that the Defendants "had notice of widespread abuse in the
form of civil rights lawsuits, formal and informal grievances,

- 9 -

security

and

excessive

use

of

force

reports

and

other

documentation[.]" Id.
V. Law and Conclusions
A.

Eleventh Amendment Immunity

Defendants raise the defense of sovereign immunity to the
extent Plaintiff is seeking monetary damages against them in their
official capacities. Motion at 2-3. In this regard, the Motion is
due to be granted. An official capacity claim for monetary damages
is barred by sovereign immunity.

Pennhurst State Sch. & Hosp. v.

Halderman, 465 U.S. 89, 97-102 (1984).

Thus, insofar as Plaintiff

seeks monetary damages from Defendants Jones, Tucker, Clemmons, and
Landrum in their official capacities, the Eleventh Amendment bars
suit.

Zatler v. Wainwright, 802 F.2d 397, 401 (11th Cir. 1986)

(per curiam).
Since Plaintiff names Defendant Jones and Defendant Clemmons
only in their official capacities, Defendants Jones and Clemmons
are due to be dismissed from this action.

Thus, consideration of

the Motion concerning the Defendants' assertion of failure to state
a claim will be undertaken with respect to Defendant Tucker, a
former Secretary of the FDOC, and Defendant Landrum, a former
Warden of SCI, both named in their individual capacities as well as
their official capacities.

- 10 -

B.

Failure to State a Claim

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
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).

- 11 -

Acknowledging this strict limitation on supervisory liability,
the Court recognizes that the Defendants 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 superior).
In this case, there is no suggestion that the Defendants
personally

participated

in

the

alleged

violation.

Plaintiff

submits, however, that there is a causal connection between the
Defendants'

actions

or

inactions

constitutional deprivation.

and

the

alleged

federal

The question is whether Plaintiff has

pled "enough facts to state a claim to relief that is plausible on
its face."

Twombly, 550 U.S. at 570.

In order to make this

determination, a few factors must be considered.
First, "[a] policy is a decision that is officially adopted by
the [government entity], or created by an official of such rank
that he or she could be said to be acting on behalf of the
[government entity]."

Sewell v. Town of Lake Hamilton, 117 F.3d

488, 489 (11th Cir. 1997) (citation omitted), cert. denied, 522
U.S. 1075 (1998).

Liability arises under § 1983 only where "'a

deliberate choice to follow a course of action is made from among
various alternatives'" by governmental policymakers."

City of

Canton v. Harris, 489 U.S. 378, 389 (1989) (quoting Pembaur v. City
of Cincinnati, 475 U.S. 469, 483-84 (1986)).

- 12 -

Of course, a supervisor/policymaker rarely makes official the
adoption of a policy that permits a particular constitutional
violation.

As a consequence, in order to state a cause of action

for damages under § 1983, a plaintiff must ordinarily demonstrate
that there is a custom or practice of permitting the violation.
See Grech v. Clayton Cty., Ga., 335 F.3d 1326, 1330 (11th Cir.
2003); McDowell v. Brown, 392 F.3d 1283, 1289 (11th Cir. 2004).

A

custom is an act "that has not been formally approved by an
appropriate decisionmaker," but that is "so widespread as to have
the force of law."

Bd. of Cty. Comm'rs of Bryan Cty., Okla. v.

Brown, 520 U.S. 397, 404 (1997) (citation omitted).

The Eleventh

Circuit defines "custom" as "a practice that is so settled and
permanent that it takes on the force of law" or a "persistent and
wide-spread practice."

Sewell, 117 F.3d at 489.

In order to

establish liability, there must be a direct causal link between the
policy or custom and the alleged constitutional deprivation.

Snow

ex rel. Snow v. City of Citronelle, 420 F.3d 1262, 1271 (11th Cir.
2005) (quotation omitted).
The question arises as to whether Plaintiff has sufficiently
alleged a causal connection between the actions of Defendants
Tucker and Landrum and the alleged constitutional deprivation.
Hartley v. Parnell, 193 F.3d 1263, 1269 (11th Cir. 1999).
necessary

causal

connection

can

be

established

if:

(1)

A
the

supervisor knew about and failed to correct a widespread history of

- 13 -

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 that these Defendants personally
participated in the alleged use of excessive force, nor does
Plaintiff contend that the Defendants directed the officers to use
force against Plaintiff.

Instead, Plaintiff alleges a persistent

and widespread custom of abuse at SCI in an attempt to impose
liability upon Defendants Tucker and Landrum.

Plaintiff contends

that Defendants Tucker and Landrum implemented a policy or custom
of allowing the abuse of inmates by undertrained and unsupervised
officers, creating a prison environment where the use of gratuitous
force against prisoners is unrestrained and rampant.
asserts

that

Defendants

Tucker

and

Landrum

were

Plaintiff

deliberately

indifferent to the health and safety of the vulnerable prisoners
housed in the infirmary/medical isolation area.

- 14 -

"A policy may be deliberately indifferent if it is facially
unconstitutional

or

where

the

policy

is

implemented

'with

deliberate indifference as to its known or obvious consequences.'"
Fields v. Corizon Health, Inc., 490 F. App'x 174, 182 (11th Cir.
2012) (per curiam) (quoting McDowell, 392 F.3d at 1291).

Here,

Plaintiff alleges that Defendants knew of the persistent and
widespread practice of abuse at SCI,

particularly with regard to

vulnerable inpatient inmates at SCI, and allowed the abuse of
inmates to go undeterred by failing to appropriately supervise and
properly train the officers.
The Eleventh Circuit has provided guidance for this Court's
review:
We do not recognize vicarious liability,
including respondeat superior, in § 1983
actions. Cottone, 326 F.3d at 1360. In order
to establish that a defendant committed a
constitutional violation in his supervisory
capacity, a plaintiff must show that the
defendant instituted a "custom or policy
[that] result[s] in deliberate indifference to
constitutional rights or ... directed [his]
subordinates to act unlawfully or knew that
the subordinates would act unlawfully and
failed to stop them from doing so." West v.
Tillman,
496
F.3d
1321,
1328-29
(11th
Cir.2007) (per curiam) (first and second
alterations in original) (internal quotation
marks omitted) (quoting Cottone, 326 F.3d at
1360).
As we have explained, "[a] policy is a
decision that is officially adopted by the
municipality, or created by an official of
such rank that he or she could be said to be
acting on behalf of the municipality." Sewell

- 15 -

v. Town of Lake Hamilton, 117 F.3d 488, 489
(11th Cir. 1997). A custom is an unwritten
practice that is applied consistently enough
to have the same effect as a policy with the
force of law. City of St. Louis v. Praprotnik,
485 U.S. 112, 127, 108 S.Ct. 915, 926, 99
L.Ed.2d 107 (1988). Demonstrating a policy or
custom requires "show[ing] a persistent and
wide-spread practice." Depew v. City of St.
Mary's, Ga., 787 F.2d 1496, 1499 (11th Cir.
1986).
Goebert v. Lee Cty., 510 F.3d 1312, 1331–32 (11th Cir. 2007).
In order to show a persistent or wide-spread practice of
abuse, a showing of isolated occurrences is not enough; the
deprivations must be obvious, flagrant, rampant, and of lengthy
duration.

Id. at 1332 (citations omitted).

A warden, "the person

charged with directing the governance, discipline, and policy of
the prison and enforcing its orders, rules, and regulations" bears
the

responsibility

of

taking

appropriate

measures

to

improve

prisoner safety, particularly if his failure to do so would create
a climate that preordained the use of excessive force and abhorrent
acts.

Mathews v. Crosby, 480 F.3d 1265, 1275 (11th Cir. 2007),

cert. denied, 552 U.S. 1095 (2008). Also of import, the Secretary,
the head of the corrections institution, if charged with the
responsibility of disciplining underlings and setting Department
policy, may be liable for failing to take corrective actions in the
face of a pattern of excessive force and unjustified assaults by
officers.

Id. at 1275-76.

Thus, in this case, Defendants Tucker

and Landrum could face liability under § 1983 predicated on either

- 16 -

a failure to take reasonable steps in the face of persistent or a
widespread practice of abuse, or by a showing of the adoption of
customs or policies deliberately indifferent to the health and
safety of vulnerable inmates.

Id. at 1275.

In the Complaint, Plaintiff asserts that superior officers
failed to properly supervise or train the officers, as evidenced by
the conduct of the officers during the cell search, property
seizure, sexual assault, and the poor response to the same during
institutional review.

Complaint at 11.

Plaintiff also submits

that there is a causal link between the failure to train and/or
supervise

the

subordinate

officials

and

the

violation

of

Plaintiff's rights. Id. He explains that officers were allowed to
conduct cell searches and seizures without written authorization,
with

little

to

accountability.

no

supervision,

Id. at 11-12.

and

with

a

complete

lack

of

He contends that the reports

generated by the incident also evince inadequate training and
supervision

as

they

are

circumscribed

and

lack

essential

information for meaningful review and raise suspicion because they
contain glaring inconsistencies.

Id. at 12.

As an example,

Plaintiff points to the delay in the medical examination for the
sexual assault and the absence of the related medical report in his
official medical history as the product of poor training in
documentation and the result of inadequate supervision after the
report of a sexual assault upon an inmate.

- 17 -

Id.

Plaintiff complains that the Defendants were deliberately
indifferent to the risk of harm to Plaintiff because they "did in
fact infer that the constant filing of formal grievances would lead
[to] an eventual unlawful and excessive use of force by the
Subordinate Officers, who operated without proper training and
supervision and disliked Mr. Jenkins because he continued to file
formal grievances against staff."

Id. at 13.

Plaintiff further

alleges that the failure to train the officers and failure to adopt
safety protocols in the medical infirmary led to the improper
conduct of the officers during cell searches and property seizures.
Id.
Although a "general allegation that a pattern of abuse existed
is insufficient to satisfy the standards of Twombly and Iqbal[,]"
Cooper v. City of Starke, Fla., No. 310-cv-280-J-34MCR, 2011 WL
1100142, at *8 (M.D. Fla. March 23, 2011), at this juncture, the
Court is reluctant to find that Plaintiff has failed to state a
claim of deliberate indifference to his health and safety.

There

is more than just a "[t]hreadbare recital[]," Iqbal, 129 S.Ct. at
1949, of a persistent and widespread practice that led to the
alleged excessive use of force. Indeed, Plaintiff alleges that the
supervisors'
violation.

custom

or

policy

resulted

in

a

constitutional

He also contends that there was a failure to train;

"[a] failure to train amounts to deliberate indifference when 'the
need for more or different training is obvious, such as when there

- 18 -

exists

a

history

of

abuse

by

subordinates

that

has

put

the

supervisor on notice of the need for corrective measures, and when
the failure to train is likely to result in the violation of a
constitutional right.'" Cooper, 2011 WL 1100142, at *5 (quoting
Belcher v. City of Foley, Ala., 30 F.3d 1390, 1397–98 (11th Cir.
1994)).
Plaintiff has pled "enough facts to state a claim to relief
that is plausible on its face."

Twombly, 550 U.S. at 570.

If

Defendants Tucker and Landrum file a motion for summary judgment,
they are 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 the Defendants were aware of
the threat to Plaintiff's health and safety, including grievances,
institutional appeals, relevant reports of the Inspector General,
affidavits, use of force reports, 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 Tucker and Landrum's Motion
to Dismiss should be denied with respect to the assertion that
Plaintiff fails to state a claim against them in their individual
capacities.

Thus, they will be directed to respond to the Second

Amended Complaint.

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Therefore, it is now
ORDERED:
1.

Defendants' [Defendant Jones, Defendant Tucker, Defendant

Clemmons, and Defendant Landrum] Motion to Dismiss Plaintiff's
Second Amended Complaint (Doc. 42) (adopted by Defendant Landrum in
Doc. 50) is GRANTED to the extent that Plaintiff seeks monetary
damages from them in their official capacities.
2.

Defendant

Julie

L.

Jones,

Secretary

of

the

Florida

Department of Corrections, and Walker Clemmons, Warden of Suwannee
Correctional Institution, are dismissed from this action.
3.

Defendant

Tucker

(in

his

individual

capacity)

and

Defendant Landrum (in his individual capacity) shall respond to the
Second Amended Complaint by October 2, 2017.
DONE AND ORDERED at Jacksonville, Florida, this 7th day of
August, 2017.

sa 8/7
c:
Counsel of Record

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