Oliver v. Whitehead et al
Filing
63
ORDER granting 24 Hale's motion to dismiss, dismissing Defendant Hale from this action; dismissing Sgt. John Doe from this action, with instructions to the Clerk; granting in part and denying in part 55 Oliveros' Motion to Dismiss f or Failure to State a Claim, denied with respect to the Eighth Amendment excessive force claim against Oliveros; granting 56 Whitehead's Motion to Dismiss for Failure to State a Claim, however, the Eighth Amendment claim that Whitehead told hi s subordinates to beat inmates, use excessive force, and treat them cruelly, remains; granting 59 Musselman's Motion to Dismiss for Failure to State a Claim, dismissing Defendant Musselman from the action; granting in part and denying in part 59 Dr. Espino's Motion to Dismiss, denied with respect to the Eighth Amendment deliberate indifference to serious medical needs claim against Dr. Espino; Defendants Oliveros, Espino, and Whitehead shall answer or otherwise respond to the amended complaint by January 17, 2017.. Signed by Judge Brian J. Davis on 1/3/2017. (LDO)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
WARREN OLIVER,
Plaintiff,
vs.
Case No. 3:14-cv-1506-J-39JRK
OFFICER WHITEHEAD, et al.,
Defendants.
ORDER
I.
Status
Plaintiff is an inmate confined in the Florida penal system.
He is proceeding pro se on an Amended Civil Rights Complaint
(Amended Complaint) (Doc. 11) pursuant to 42 U.S.C. § 1983.
He is
currently confined at Tomoka Correctional Institution (TCI).
He
filed his original Complaint (Doc. 1) on December 8, 2014, pursuant
to the mailbox rule.
There are several motions to dismiss pending: (1) Defendant
Hale's Motion to Dismiss (Hale's Motion) (Doc. 24)1; Defendant
Oliveros'
Motion
to
Dismiss
(Oliveros'
Motion)
(Doc.
55);
Whitehead's Motion to Dismiss (Whitehead's Motion) (Doc. 56); and
Espino and Musselman's Motion to Dismiss (Espino and Musselman's
1
58).
The Court deferred ruling on Hale's Motion.
Order (Doc.
Motion) (Doc. 59).2
See Order (Doc. 12).
Plaintiff responded to
all of the motions. See Plaintiff's Opposition to Hale's Motion to
Dismiss (Response to Hale) (Doc. 29); Plaintiff's Opposition to
Whitehead and Oliveros' Motion to Dismiss (Response to Whitehead
and Oliveros) (Doc. 60); and Plaintiff's Opposition to Espino and
Musselman's Motion to Dismiss (Response to Espino and Musselman)
(Doc. 61).
II.
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).
2
In this opinion, the Court references the document and page
numbers designated by the electronic filing system.
2
III.
Exhaustion of Administrative Remedies
Defendants Hale, Whitehead, Espino and Musselman contend that
Plaintiff failed to exhaust his administrative remedies prior to
filing suit regarding his claim of inadequate heating at Florida
State Prison (FSP), and they seek the dismissal of that claim
pursuant
to
42
U.S.C.
§
1997e(a).
Hale's
Motion
at
4-6;
Whitehead's Motion at 4-6; Espino and Musselman's Motion at 4-5.
More specifically, the Defendants assert that Plaintiff failed to
properly exhaust the inadequate heating issue alleged in this
lawsuit.
See Defendant Hale's Exhibit A, Declaration of Catherine
Heller (Doc. 24-1) and Defendant Hale's Exhibit B, Declaration of
Shirley
A.
Declaration
Johnson
of
(24-2);
Catherine
Defendant
Heller
Whitehead's
(Doc.
56-1)
Exhibit
and
A,
Defendant
Whitehead's Exhibit B, Declaration of Shirley A. Johnson (Doc. 562).
Upon review, the motions to dismiss for failure to exhaust
administrative remedies, a matter in abatement, are due to be
denied.
The
An explanation follows.
exhaustion
of
available
administrative
remedies
is
required before a 42 U.S.C. § 1983 action with respect to prison
conditions by a prisoner may be initiated in this Court. There are
guidelines for reviewing a prisoner civil rights action:
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,
3
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).
In
undertaking
a
review
concerning
the
exhaustion
of
administrative remedies, the Court must employ a two-step process:
After a prisoner has exhausted the
grievance procedures, he may file suit under §
1983. In response to a prisoner suit,
defendants may bring a motion to dismiss and
raise as a defense the prisoner's failure to
exhaust these administrative remedies. See
Turner,[3] 541 F.3d at 1081. In Turner v.
Burnside we established a two-step process for
resolving motions to dismiss prisoner lawsuits
for failure to exhaust. 541 F.3d at 1082.
First, district courts look to the factual
allegations in the motion to dismiss and those
in the prisoner's response and accept the
prisoner's view of the facts as true. The
court should dismiss if the facts as stated by
the prisoner show a failure to exhaust. Id.
Second, if dismissal is not warranted on the
prisoner's view of the facts, the court makes
specific findings to resolve disputes of fact,
and should dismiss if, based on those
findings, defendants have shown a failure to
exhaust. Id. at 1082–83; see also id. at 1082
(explaining that defendants bear the burden of
showing a failure to exhaust).
3
Turner v. Burnside, 541 F.3d 1077 (11th Cir. 2008).
4
Whatley, 802 F.3d at 1209.
A number of factors guide the Court.
Initially, the Court
recognizes that exhaustion of available administrative remedies is
"a precondition to an adjudication on the merits" and is mandatory
under the Prison Litigation Reform Act.
Bryant v. Rich, 530 F.3d
1368, 1374 (11th Cir.), cert. denied, 555 U.S. 1074 (2008); Jones
v. Bock, 549 U.S. 199, 211 (2007); 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 v. Bock, 549 U.S. at 216.
However, "the PLRA exhaustion requirement is not jurisdictional[.]"
Woodford v. Ngo, 548 U.S. at 101.
See Turner v. Burnside, 541 F.3d
1077, 1082 (11th Cir. 2008) (recognizing that the defense "is not
a jurisdictional matter").
Further, a prisoner must completely exhaust his remedies prior
to initiating a suit in federal court.
If he fails to complete the
process, the civil rights complaint must be dismissed.
This is
true even if he thereafter exhausts his administrative remedies
after initiating his action in federal court.
See Oriakhi v.
United States, 165 F. App'x 991, 993 (3d Cir. 2006) (per curiam);
Johnson v. Jones, 340 F.3d 624, 627 (8th Cir. 2003); McKinney v.
Carey, 311 F.3d 1198, 1200-01 (9th Cir. 2002) (per curiam); MedinaClaudio v. Rodiguez-Mateo, 292 F.3d 31, 36 (1st Cir. 2002); Jackson
5
v. Dist. of Columbia, 254 F.3d 262, 269 (D.C. Cir. 2001); Freeman
v. Francis, 196 F.3d 641, 645 (6th Cir. 1999); Perez v. Wisconsin
Dep't of Corr., 182 F.3d 532, 538 (7th Cir. 1999).
Additionally,
not
only
is
there
a
recognized
exhaustion
requirement, "the PLRA exhaustion requirement requires proper
exhaustion."
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
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,[4] 286 F.3d, at
1024. . . .
Id. at 90.
In fact, "[p]roper exhaustion demands compliance with
an agency's deadlines and other critical procedural rules."
Id.
Of import, the Court recognizes that Plaintiff is not required
to plead exhaustion. Thus, the Amended Complaint was not dismissed
on its face.
Plaintiff avers that he exhausted his administrative
remedies and references the grievances attached to his Response to
Hale (Doc. 29-1).
Plaintiff also references the Affidavit of
Adrian Chisholm (Doc. 29-1), a fellow inmate, who states that, for
4
Pozo v. McCaughtry, 286 F.3d 1022 (7th Cir.), cert. denied,
537 U.S. 949 (2002).
6
years, officers have removed grievances from the grievance box at
FSP.
There are disputed issues of fact as to whether Plaintiff
exhausted all available administrative remedies.
Thus, the Court
must now make findings on the disputed issues of fact to decide
whether he properly exhausted his administrative remedies.5
The FDOC provides an internal grievance procedure.
Chapter 33-103, Florida Administrative Code (F.A.C.).
See
Thus, to
determine whether Plaintiff exhausted his administrative remedies,
this Court must examine 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.
Generally, the FDOC provides a three-step grievance procedure.
The
Eleventh
Circuit
succinctly
described
the
administrative
grievance procedure available to the inmates confined in the
Florida
penal
system,
including
the
procedure
for
medical
grievances:
5
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
Prison Litigation Reform Act's exhaustion of remedies requirement).
7
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).
The Defendants contend that Plaintiff filed two grievance
appeals regarding the topic of prison conditions between August 1,
2012, and April 1, 2013. Hale's Motion at 6; Whitehead's Motion at
6.
They state that these grievance appeals did not constitute
exhaustion because they were returned without action.
Id.
See
Defendant Hale's Exhibit B (Ex. 1 & 2); Defendant Whitehead's
Exhibit B (Ex. 1 & 2).6
To challenge the Defendants' position,
Plaintiff, in his Response to Hale, provides additional grievances
that he submitted to the Secretary of the Florida Department of
Corrections (FDOC) pertaining to his conditions of confinement, and
more particularly, address his complaint about inadequate heat on
6
The Court hereinafter refers to these numbered exhibits as
"Ex."
8
the first floor at FSP.
The record shows that on February 14,
2013, Plaintiff submitted two Requests for Administrative Remedy or
Appeal (Doc. 29-1 at 10, 12), labeled emergency grievances, to the
Secretary.
In light of these emergency grievances complaining about
inadequate heat, the Court is not convinced that the Defendants
have
submitted
sufficient
supporting
complete lack of exhaustion.
documents
demonstrating
Plaintiff states that he submitted
grievances, and he has provided the Court with copies of emergency
grievances demonstrating his efforts to exhaust his administrative
remedies.
that
he
Based on all reasonable inferences, Plaintiff has shown
properly
filed
inadequate heat at FSP.
grievances
concerning
the
claim
of
Without more, and based on the record
before the Court, the Court is unable to conclude that Plaintiff
failed to exhaust his administrative remedies in compliance with
the procedural rules.
Therefore, at this juncture, the Court
concludes that Hale's Motion, Whitehead's Motion, and Espino and
Musselman's Motion should be denied with regard to the assertion
that Plaintiff failed to exhaust his administrative remedies with
respect to the inadequate heat claim.
It appears that Plaintiff
attempted to avail himself of the administrative grievances process
and he sufficiently and adequately raised the claim of inadequate
heat at FSP through the administrative grievance process.
9
IV.
Eighth Amendment
Plaintiff, in his Amended Complaint, asserts that "Inspector
Hale did not do an impartial investigation" of an excessive force
allegation, and this constituted deliberate indifference and an
Eighth Amendment violation. Amended Complaint at 7. To prevail in
a
§
1983
action,
Plaintiff
must
demonstrate:
"(1)
that
the
defendant deprived [him] of a right secured under the Constitution
or federal law and (2) that such a deprivation occurred under color
of state law."
Bingham v. Thomas, 654 F.3d 1171, 1175 (11th Cir.
2011) (per curiam) (citing Arrington v. Cobb Cnty., 139 F.3d 865,
872 (11th Cir. 1998)). "The Eighth Amendment of the United States
Constitution forbids 'cruel and unusual punishments.' U.S. Const.
amend. VIII.
The Eighth Amendment is applicable to the states
through the Fourteenth Amendment."
Bingham, 654 F.3d at 1175
(citation omitted).
More
specifically,
the
Eighth
Amendment
"unnecessary and wanton infliction of pain."
503 U.S. 1, 5 (1992).
prohibits
the
Hudson v. McMillian,
An action is considered "unnecessary and
wanton" if it is totally without penological justification. Rhodes
v. Chapman, 452 U.S. 337, 346 (1981).
Defendant Hale counters Plaintiff's claim with the assertion
that Plaintiff has failed to state an Eighth Amendment claim
because there is no allegation that Hale's conduct caused Plaintiff
a substantial risk of serious harm.
10
Hale's Motion at 7.
Upon
review of the Amended Complaint, Plaintiff has not presented any
operative facts showing that any action by Defendant Hale subjected
Plaintiff to the unnecessary and wanton infliction of pain or
caused him a substantial risk of serious pain.
Indeed, Plaintiff
does not attribute any other deprivations to the actions of Hale,
including the deprivation of food, laundry services, and a better
heating system.
See Hale's Motion at 7-8.
Vague and conclusory
allegations will not support an action pursuant to 42 U.S.C. §
1983.
Hendrix v. Tucker, 535 F. App'x 803, 804-805 (11th Cir.
2013) (per curiam) (quoting Gonzalez v. Reno, 325 F.3d 1228, 1235
(11th Cir. 2003)).
Thus, Hale's Motion is due to be granted based
on Plaintiff's failure to state an Eighth Amendment claim against
Defendant Hale.
V.
Supervisory Liability
Plaintiff claims that Hale knew her "subordinates were using
excessive force on inmates after many complaints from inmates and
their
family
members."
Amended
Complaint
at
8.
Liberally
construing the Amended Complaint, as this Court must, Plaintiff
alleges that Hale was aware of the danger to Plaintiff's health and
safety
because
unnamed
inmates
and
their
family
members
had
complained about officers using excessive force.
First, it is clear that Defendant Hale may not be held liable
under a theory of respondeat superior.
"Supervisory officials are not liable
under section 1983 on the basis of respondeat
11
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,[7] 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 an
Inspector, the Court should inquire as to whether the individual
had the ability to prevent or stop a constitutional violation and
failed to exercise her 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, 562 U.S.
978 (2010) (finding a supervisor may be liable under a theory of
supervisory
liability
if
he
has
7
the
ability
to
prevent
or
Gonzalez v. Reno, 325 F.3d 1228 (11th Cir. 2003) (abrogated
on other grounds).
12
discontinue a known constitutional violation and then fails to
exercise his authority to stop the constitutional violation).
Of
course, "[e]ven when an officer is not a participant in the
excessive force, he can still be liable if he fails to take
reasonable steps to protect the victim."
Ledlow v. Givens, 500 F.
App'x 910, 914 (11th Cir. 2012) (per curiam) (citation omitted),
cert. denied, 133 S.Ct 2802 (2013).
In this civil rights action, Plaintiff is required to allege
a causal connection between the actions of Defendant Hale 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
Hale
personally
participated in the alleged use of excessive force, nor does
13
Plaintiff contend that Defendant Hale directed officers to use
force against Plaintiff. Moreover, Plaintiff has not explained the
supervisory role that Hale played, if any.
Plaintiff does not
allege a widespread custom of abuse in an attempt to impose
liability upon Hale.
Furthermore, upon review of the Amended
Complaint, Plaintiff simply alleges that Defendant Hale should have
known that officers would act unlawfully because of complaints
about officers using excessive force at FSP.
Plaintiff has not
alleged facts tending to show that Hale knew that the offending
officers would act unlawfully and failed to prevent their actions.
Conclusory, vague, and general allegations of failure to
protect should be dismissed.
See Fullman v. Graddick, 739 F.2d
553, 556-57 (11th Cir. 1984) (recognizing that a civil rights
complaint containing vague and conclusory allegations will be
dismissed as insufficient).
There is no indication that Hale
foresaw the alleged attack of August 5, 2012, or failed to stop
Officer Oliveros from acting unlawfully.
General complaints about
officers, without more, did not put Hale on notice that Officer
Oliveros
would
sexually
batter
Plaintiff.
With
respect
to
Defendant Hale, Plaintiff has failed to plead "enough facts to
state a claim to relief that is plausible on its face."
Twombly,
550 U.S. at 570.
Therefore, Defendant Hale's Motion is due to be
granted
respect
with
to
the
indifference/failure to protect.
14
claim
of
deliberate
VI.
Retaliation
Plaintiff claims his First Amendment right was infringed when
Defendants Hale and Whitehead hindered him from reporting the abuse
by intimidating him. Amended Complaint at 8-9. At most, Plaintiff
describes this intimidation as being statements made by Hale that
she does not like inmates, inmates need to be treated cruelly, and
she hates inmates.
Id. at 8. Plaintiff asserts that he was
terrified of Hale. Id. With regard to Whitehead, Plaintiff states
that he intimidated him and assigned Oliveros to I-Wing. Id. at 9.
Plaintiff claims that Musselman called him names and said he would
have officers beat Plaintiff for reporting the sexual battery and
retaliation.8
Id.
Construing the Amended Complaint liberally, Plaintiff may be
attempting to raise a retaliation claim.
With respect to a claim
of a First Amendment violation in a prison setting, the rights to
free speech and to petition the government for a redress of
grievances are violated when a prisoner is punished for filing a
grievance
or
imprisonment.
a
lawsuit
concerning
the
conditions
of
his
Moulds v. Bullard, 345 F. App'x 387, 393 (11th Cir.
2009) (per curiam) (citation omitted); Douglas v. Yates, 535 F.3d
1316, 1321 (11th Cir. 2008); see also Bennett v. Hendrix, 423 F.3d
1247, 1250, 1254 (11th Cir. 2005) (adopting the standard that "[a]
8
The Court will address the retaliation claim against
Defendant Oliveros in the section of the opinion addressing the
other claims against him.
15
plaintiff suffers adverse action if the defendant's allegedly
retaliatory
conduct
would
likely
deter
a
person
of
ordinary
firmness from the exercise of First Amendment rights"), cert.
denied, 549 U.S. 809 (2006).
"The core of [a retaliation claim brought pursuant to 42
U.S.C. § 1983] is that the prisoner is being retaliated against for
exercising his right to free speech."
O'Bryant v. Finch, 637 F.3d
1207, 1212 (11th Cir. 2011) (per curiam) (citation omitted), cert.
denied, 133 S. Ct. 445 (2012).
There are three elements to such a
claim:
[T]he inmate must establish that: "(1) his
speech was constitutionally protected; (2) the
inmate suffered adverse action such that the
[official's] allegedly retaliatory conduct
would likely deter a person of ordinary
firmness from engaging in such speech; and (3)
there is a causal relationship between the
retaliatory
action
[the
disciplinary
punishment] and the protected speech [the
grievance]."
Id.
(first
alteration
added,
remainder
in
original)(footnote
omitted) (quoting Smith v. Mosley, 532 F.3d 1270, 1276 (11th Cir.
2008)).
To establish the third prong, a plaintiff is required to do
more than make "general attacks" upon a defendant's motivations and
must articulate "affirmative evidence" of retaliation to prove the
requisite motive. Crawford-El v. Britton, 523 U.S. 574, 600 (1998)
(citations omitted). "In other words, the prisoner must show that,
as a subjective matter, a motivation for the defendant's adverse
16
action was the prisoner's grievance or lawsuit."
Jemison v. Wise,
386 F. App'x 961, 965 (11th Cir. 2010) (per curiam) (citation
omitted)
(finding
the
district
court
erred
by
dismissing
a
complaint alleging retaliation with prejudice, "regardless of
whether the retaliation claim ultimately [would] ha[ve] merit").
The Amended Complaint does not contain sufficient facts to
state a claim of retaliation by Defendants Hale, Whitehead, and
Musselman that is plausible on its face. Although Plaintiff states
that he was intimidated by Hale and Whitehead, terrified of Hale,
and verbally threatened and berated by Musselman, the Defendants'
demeanor and threats did not hinder Plaintiff from complaining
about the alleged assault on various levels.
Not only did he file
grievances, he complained to medical, he told Hale about the
assault, and finally, Plaintiff filed a lawsuit against Hale,
Whitehead, Musselman, and others.
Thus, Plaintiff has not alleged
that the Defendants conduct deterred Plaintiff from engaging in
free speech or that he suffered some adverse action.
Ultimately,
Plaintiff was not deterred in the slightest from engaging in speech
by their conduct.
Therefore, Hale, Whitehead and Musselman's
Motions are due to be granted with respect to a First Amendment
retaliation claim.
To the extent Plaintiff is claiming harassment and verbal
abuse,
such
allegations
constitutional dimension.
do
not
state
a
claim
of
federal
See Hernandez v. Fla. Dep't of Corr.,
17
281 F. App'x. 862, 866 (11th Cir. 2008) (per curiam) (citing
Edwards v. Gilbert, 867 F.2d 1271, 1274 n.1 (11th Cir. 1989))
("Hernandez's allegations of verbal abuse and threats by the prison
officers did not state a claim because the defendants never carried
out these threats[,] and verbal abuse alone is insufficient to
state a constitutional claim."), cert. denied, 555 U.S. 1184
(2009).
"[M]ere threatening language and gestures of a
custodial office do not, even if true, amount
to constitutional violations."
Coyle v.
Hughes, 436 F.Supp. 591, 593 (W.D. Okl[a].
1977). "Were a prisoner . . . entitled to a
jury trial each time that he was threatened
with violence by a prison guard, even though
no injury resulted, the federal courts would
be more burdened than ever with trials of
prisoner suits . . . ." Bolden v. Mandel, 385
F.Supp. 761, 764 (D. Md. 1974). See Johnson
v. Glick, 481 F.2d 1028, 1033 n.7 (2d Cir.
1973) (the use of words, no matter how
violent, does not comprise a section 1983
violation).
McFadden v. Lucas, 713 F.2d 143, 146 (5th Cir.), cert. denied, 464
U.S. 998 (1983).
Thus, to the extent Plaintiff is attempting to raise a claim
of verbal abuse or harassment, Defendants Hale, Whitehead and
Musselman's Motions are due to be granted.9
9
Notably, Plaintiff does not allege that the Defendants
followed through on their threats of harm.
18
VII.
Fourteenth Amendment
Plaintiff makes a summary allegation that his "Fourteenth
Amendment was infringed upon also."
Amended Complaint at 8.
is a rather vague and conclusory allegation.
This
Generally, Plaintiff
claims that Hale did not conduct an impartial investigation.
also complains about disposal of his grievances.
He
See Whitehead's
Motion at 10; Espino and Musselman's Motion at 4-5.
Of import, an
inmate does not have a constitutional right to an investigation.
Vinyard v. Wilson, 311 F.3d 1340, 1356 (11th Cir. 2002); Stringer
v. Doe, 503 F. App'x 888, 891 (11th Cir. 2013) (per curiam).
Significantly, there is no substantive due process right to an
internal investigation of a claim of sexual assault upon an inmate:
The Eleventh Circuit has explained the
difference between substantive and procedural
due process rights. "The substantive component
of the Due Process Clause protects those
rights that are 'fundamental,' that is, rights
that are implicit in the concept of ordered
liberty.'" Vinyard v. Wilson, 311 F.3d 1340,
1356 (11th Cir. 2002) (quoting McKinney v.
Pate, 20 F.3d 1550, 1556 (11th Cir. 1994)).
Substantive due process rights are created by
the Constitution, and "no amount of process
can
justify
[their]
infringement."
Id.
(internal quotation marks omitted) (citing
McKinney, 20 F.3d at 1557). In order to have a
substantive due process claim, [the plaintiff]
must have a substantive right created by the
Constitution. Id. [The plaintiff] has no
substantive
right
of
any
kind
to
an
investigation of his claim of sexual assault
and excessive force by the Department of
Corrections, much less one created by the
Constitution. See id. (arrestee has no
substantive right to an investigation of her
excessive force complaint by the sheriff's
19
office, much less
Constitution).
a
right
created
by
the
Edler v. Schwarz, No. 5:08CV275/SPM/EMT, 2010 WL 3211941, at *12
(N.D. Fla. May 13, 2010), report and recommendation adopted by No.
5:08CV275-SPM/EMT, 2010 WL 3211927 (N.D. Fla. Aug. 11, 2010).
To the extent that Plaintiff is claiming that he was deprived
of participation in the prison grievance procedures because he was
intimidated
by
Defendants
Hale
and
Whitehead,
or
that
his
grievances were ignored or wrongly decided by officials, Plaintiff
fails to state a claim of constitutional dimension.
FDOC's
grievance
procedure
does
not
provide
Clearly, the
him
with
a
constitutionally protected interest. Mathews v. Moss, 506 F. App'x
981, 984 (11th Cir. 2013) (per curiam).
Moreover, failure to
thoroughly or impartially investigate a grievance does not present
an actionable claim under 42 U.S.C. § 1983.
The Eleventh Circuit has held that a prisoner
has no constitutional right to participate in
prison grievance procedures. See Wildberger v.
Bracknell, 869 F.2d 1467, 1467–68 (11th Cir.
1989). Therefore, a prison official's failure
to process, respond to, or investigate such a
grievance is not actionable under 42 U.S.C. §
1983. See Bingham v. Thomas, 654 F.3d 1171,
1178 (11th Cir. 2012) (explaining that the
district court did not abuse "its discretion
in dismissing [the prisoner's] claim that the
prison's
grievance
procedures
were
inadequate").
Cainion v. Danforth, No. 7:12-CV-108 HL, 2012 WL 4567649, at *3
(M.D. Ga. Sept. 7, 2012), report and recommendation adopted by No.
7:12-CV-108 HL, 2012 WL 4568243 (M.D. Ga. Oct. 2, 2012).
20
In conclusion, as the United States Constitution does not
create entitlement to grievance procedures or access to grievance
procedures that have been established by the FDOC, Plaintiff's
allegations regarding his institutional grievances and the adequacy
of the corresponding investigations of those grievances fails to
state a claim of federal constitutional dimension.10
Therefore,
Hale, Whitehead, and Espino and Musselman's Motions are due to be
granted with regard to the Fourteenth Amendment issue.
VIII.
Freedom of Access to Clinic Entrances Act
Apparently, Plaintiff is attempting to raise a claim of
violation of the Freedom of Access to Clinic Entrances Act (Act)
pursuant to Title 18 U.S.C. § 248.
Amended Complaint at 7.
Although not a model of clarity, Plaintiff alleges that he was
sexually battered and that the doctor did not examine him and Hale
failed to conduct an impartial investigation of the matter.
Even
liberally construing his allegations, the Court concludes that
Plaintiff fails to state a claim under the Act.
The Act concerns access to reproductive health services,
defined as termination of a pregnancy and related counseling and
10
Hale and Whitehead point out the internal inconsistency in
Plaintiff's Amended Complaint. While claiming that he and other
inmates were hindered from utilizing the grievance box because the
Defendants were throwing grievances away, Plaintiff states that he
"is attaching all of the grievances from the institutional level
and Central Office level[.]" Amended Complaint at 9. Thus, his
claim of the frequent destruction of grievances by unnamed staff is
belied by his own exhibits.
See Hale's Motion at 12-13;
Whitehead's Motion at 11.
21
referral services.
United States v. Hill, 893 F.Supp. 1034, 1036
(N.D. Fla. Sept. 15, 1994).
The Eleventh Circuit explained the
history of the Act:
Congress passed the Access Act in response to
increasing
incidents
of
violence
and
obstruction at abortion clinics. The stated
purpose of the Act is "to protect and promote
the public safety and health and activities
affecting interstate commerce by establishing
Federal criminal penalties and civil remedies
for certain violent, threatening, obstructive
and destructive conduct that is intended to
injure, intimidate or interfere with persons
seeking to obtain or provide reproductive
health services." Access Act, § 2. The Act
imposes civil and criminal penalties against
anyone who:
(1) by force or threat of force or
by
physical
obstruction,
intentionally injures, intimidates
or interferes with or attempts to
injure, intimidate or interfere with
any person because that person is or
has been, or in order to intimidate
such person or any other person or
any class of persons from, obtaining
or providing reproductive health
services; ... or
(3)
intentionally
damages
or
destroys the property of a facility,
or attempts to do so, because such
facility
provides
reproductive
health services....
Access Act, § 3(a) (codified at 18 U.S.C. §
248(a)).
Cheffer v. Reno, 55 F.3d 1517, 1519 (11th Cir. 1995) (footnotes
omitted) (emphasis added).
22
Upon review, Plaintiff fails to state a claim pursuant to the
Act. Thus, Hale, Whitehead, and Espino and Musselman's Motions are
due to be granted with respect to this claim for relief.
IX.
Physical Injury
Plaintiff fails to state that he suffered any physical injury
based on Hale's conduct.
an
improper
Instead, Plaintiff claims Hale conducted
investigation
and
caused
Plaintiff
trepidation.
Therefore, Hale is not liable for compensatory or punitive damages
pursuant to 42 U.S.C. § 1997e(e).
Hale's Motion at 13-16.
In
addition, Plaintiff fails to attribute loss of weight, a rash due
to poor laundry services and materials, and catching a cold due to
improper heaters at FSP, to conduct undertaken by Hale. Id. at 16.
In this regard, Plaintiff failed to present any operative facts
showing that Hale had any responsibility for these conditions of
Plaintiff's confinement. In sum, any injury due to nature of these
conditions is not attributable to Hale and Hale's Motion is due to
be granted.
X.
Injunctive Relief
Plaintiff is no longer confined at FSP and is no longer
subjected to the conditions of confinement at FSP; therefore, his
claim for injunctive relief is moot.
As such, there is no live
case or controversy between Plaintiff and the Defendants.
KH
Outdoor, L.L.C. v. Clay Cnt'y, Fla., 482 F.3d 1299, 1302 (11th Cir.
2007).
23
XI.
Qualified Immunity/Hale and Musselman
Defendants Hale and Musselman assert that they are entitled to
qualified
immunity
from
monetary
damages
in
their
individual
capacities. Hale's Motion at 20; Musselman's Motion at 8-9. It is
undisputed that these Defendants were engaged in discretionary
functions during the events at issue. To defeat qualified immunity
with respect to Defendants Hale and Musselman, Plaintiff must show
both
that
a
constitutional
violation
occurred
and
constitutional right violated was clearly established.
that
the
Given the
undersigned's conclusions regarding the claims raised against
Defendants Hale and Musselman, qualified immunity should be granted
as to these Defendants because they did not commit constitutional
violations.
XII.
Eleventh Amendment Immunity
Plaintiff clearly states that he is suing the Defendants in
their individual capacities.
Eleventh
Amendment
immunity
Amended Complaint at 1.
is
inapplicable
to
Therefore,
Plaintiff's
allegations against the Defendants.
XIII. Hale
The Court denies Hale's Motion with respect to his assertion
that Plaintiff failed to exhaust his administrative remedies prior
to filing suit regarding his claim of inadequate heating at FSP,
but Hale's Motion is due to be granted for the reasons stated
above, and Hale will be dismissed from this action.
24
XIV.
In
the
Defendant,
Amended
John Doe
Complaint,
described
as
a
Plaintiff
correctional
names
a
officer
John
Doe
sergeant.
"[F]ictitious-party pleading is not permitted in federal court."
Richardson v. Johnson, 598 F.3d 734, 738 (11th Cir. 2010) (per
curiam) (citing New v. Sports & Recreation, Inc., 114 F.3d 1092,
1094 n.1 (11th Cir. 1997)).
defendant.11
To date, Plaintiff has not named this
Plaintiff's description of this unnamed defendant in
his Amended Complaint is not sufficiently specific to be able to
identify the defendant among the many officers employed by the
FDOC. In addition, the FDOC's employee is not adequately described
in the Amended Complaint so that an individual can be identified
for service of process.
See Dean v. Barber, 951 F.2d 1210, 1216
n.6 (11th Cir. 1992). Therefore, the Court will sua sponte dismiss
Defendant Sgt. John Doe.
XV.
Defendant Oliveros
In his statement of facts, Plaintiff presents the following:
On 8-5-12 I was sexually battered by
Officer Olivious[12] in the shower on B-Wing.
Officer Olivious hit me on my ear and put his
finger in my rectum.
Officer Olivious did
this because we (inmates) kept asking him when
are we going to take a shower.
When other
inmates on D/C status had already taken a
shower. I was on SOS status and some other
inmates as well on B-Wing were on the same
11
Two years have passed since the filing of the Complaint.
12
Plaintiff refers to Defendant Oliveros as "Olivious."
25
status. When the nurse came around to do her
rounds we mentioned to her that Officer
Olivious would not give us a shower.
The
nurse left after doing her rounds on B-Wing
for the psyche cells (SOS). She made Officer
Olivious give us a shower.
I went to the
shower first, and Officer Olivious placed me
in the shower while I was in handcuffs.
Officer Olivious said, "Nigger, why did you
snitch on me to the nurse?"
That's when
Officer Olivious had hit me on my ear with his
fist and put his finger in my rectum.
I
couldn't do anything because I was in
handcuffs and naked. Sgt. John Doe, who was
there, had encouraged Officer Olivious to beat
me and sexually batter me while I was in
handcuffs.
Amended Complaint at 8 (enumeration omitted and emphasis added).
Plaintiff alleges that when he went to medical, Dr. Espino told him
he did not need to be examined although he knew Plaintiff had
injuries, and Dr. Espino refused to examine Plaintiff or treat him
for his injuries.
Id.
Plaintiff complains that he can not sleep
due to nightmares, he is having anxiety attacks, and he suffers
from pain in his rectum and ear.
Id. at 9.
The alleged abuse, as described in the Amended Complaint,
states an Eighth Amendment claim plausible on its face.
Plaintiff
contends that use of force was completely without penological
justification, while Plaintiff was naked and handcuffed.
He
asserts that he was injured and the doctor refused to examine or
treat him for his injuries, although the doctor recognized that he
was injured.
Upon review of the Amended Complaint, there is
sufficient facial plausibility as to an Eighth Amendment claim
26
against Defendant Oliveros.
Plaintiff has pled "enough facts to
state a claim to relief that is plausible on its face."
530 U.S. at 570.
Twombly,
Therefore, Defendant Oliveros' Motion is due to
be denied with respect to the Eighth Amendment claim.
Plaintiff also contends that Oliveros threatened him for
reporting the sexual battery and battery.
Amended Complaint at 8.
Plaintiff generally asserts that Oliveros intimidated him.
Id. at
9.
The Amended Complaint does not contain sufficient facts to
state
a
claim
of
retaliation
plausible on its face.
by
Defendant
Oliveros
that
is
Although Plaintiff states that he was
intimidated by Oliveros, his demeanor did not hinder Plaintiff from
complaining about the alleged assault on various levels.
Not only
did Plaintiff file grievances,13 he went to medical, he complained
to the Inspector, and finally, Plaintiff filed a lawsuit against
Oliveros.
Plaintiff has not identified any retaliatory actions taken by
Defendant Oliveros, nor has he presented sufficient facts to
demonstrate that any action was adverse. Plaintiff has not alleged
13
As noted previously, there are internal inconsistencies in
Plaintiff's Amended Complaint. While claiming that he and other
inmates were hindered from utilizing the grievance process because
the Defendants were throwing grievances away, he included "all of
the grievances from the institutional level and Central Office
level[.]" Amended Complaint at 9. The volume of grievances belies
his assertion that he was hindered from using the grievance
procedure.
27
that he was deterred from engaging in free speech or that he
suffered some adverse action.
His vague and conclusory allegation
that Oliveros retaliated against him is insufficient to support a
42 U.S.C. § 1983 action. As such, Oliveros' Motion will be granted
with respect to a First Amendment retaliation claim.
To the extent Plaintiff is attempting to raise a deliberate
indifference to serious medical needs claim against Defendant
Oliveros, this claim is due to be dismissed. Plaintiff's vague and
conclusory statement that all of the Defendants were deliberately
indifferent to his health and safety is hardly sufficient to
present a claim to relief against Defendant Oliveros, or any other
Defendant, that is plausible on its face.
Therefore, Oliveros'
Motion is due to be granted with respect to the claim of deliberate
indifference to health and safety.
Additionally, the claim of
deliberate
and
indifference
to
health
safety
is
due
to
be
dismissed.
Finally, to the extent Plaintiff is claiming harassment and
verbal abuse by Defendant Oliveros, these allegations do not rise
to a constitutional violation.
281 F. App'x. at 866.
Hernandez v. Fla. Dep't of Corr.,
Thus, Oliveros' Motion will be granted with
respect to any claim of verbal abuse or harassment.
XVI.
Eighth Amendment/Laundry, Food & Heat
Plaintiff complains about the conditions of his confinement
while at FSP, including poor laundry service, inadequate portions
28
of food, and heaters not working properly.
He states that as a
result of the deficiencies, he developed a rash from the dirty
laundry; he lost weight from insufficient food; and he caught a
cold "from the excessively low temperatures." Amended Complaint at
9.
In his Motion, Defendant Whitehead asserts that Plaintiff
fails to state a claim for an Eighth Amendment violation regarding
inadequate
heating,
food
portions,
or
laundry
materials.14
Whitehead's Motion at 7-8; see Espino and Musselman's Motion at 45.
Whitehead submits that Plaintiff has not met either the
objective or the subjective components of the two-part analysis
which governs an Eighth Amendment challenge to conditions of
confinement.
Id.
In doing so, Whitehead relies on the guidance
provided by the Eleventh Circuit in Chandler v. Crosby, 379 F.3d
1278, 1288-89 (11th Cir. 2004).
In
Chandler,
the
Eleventh
Circuit
addressed
a
prison
conditions complaint and said:
The Eighth Amendment to the United States
Constitution states: "Excessive bail shall not
14
In the Amended Complaint, Plaintiff, in his statement of
facts, states that Assistant Warden Whitehead told his subordinates
to use excessive force and to beat inmates and treat them cruelly.
Amended Complaint at 8. He further alleges that Whitehead knew
that his subordinates were using excessive force based on the many
complaints from inmates and family members. Id. Plaintiff further
claims that after the sexual battery and battery by Oliveros,
Whitehead assigned Oliveros to I-Wing to keep Plaintiff quiet about
the abuse. Id. at 9. Plaintiff states that Whitehead intimidated
him for reporting the abuse. Id.
29
be required, nor excessive fines imposed, nor
cruel and unusual punishments inflicted." The
"cruel and unusual punishments" standard
applies to the conditions of a prisoner's
confinement. Rhodes v. Chapman, 452 U.S. 337,
345-46, 101 S.Ct. 2392, 2398-99, 69 L.Ed.2d 59
(1981).
While "the primary concern of the
drafters was to proscribe tortures and other
barbarous methods of punishment," the Supreme
Court's "more recent cases [show that] [t]he
[Eighth]
Amendment
embodies
broad
and
idealistic concepts of dignity, civilized
standards, humanity, and decency." Estelle v.
Gamble, 429 U.S. 97, 102, 97 S.Ct. 285, 290,
50 L.Ed.2d 251 (1976) (marks, citations, and
brackets omitted). "No static test can exist
by which courts determine whether conditions
of confinement are cruel and unusual, for the
Eighth Amendment must draw its meaning from
the evolving standards of decency that mark
the progress of a maturing society." Rhodes,
452 U.S. at 346, 101 S.Ct. at 2399 (marks and
citation omitted).
Even so, "the Constitution does not
mandate comfortable prisons." Id. at 349, 101
S.Ct. at 2400.
If prison conditions are
merely "restrictive and even harsh, they are
part of the penalty that criminal offenders
pay for their offenses against society." Id.
at 347, 101 S.Ct. at 2399.
Generally
speaking, prison conditions rise to the level
of an Eighth Amendment violation only when
they "involve the wanton and unnecessary
infliction of pain." Id.
Chandler, 379 F.3d at 1288-89 (footnote omitted).
Plaintiff was an inmate confined at FSP, a high security
institution.
In order to establish an Eighth Amendment conditions
of confinement claim, he must demonstrate that a prison official
was deliberately indifferent to a substantial risk of serious harm
to him.
Bennett v. Chitwood, 519 F. App'x 569, 573 (11th Cir.
30
2013) (per curiam) (citing Farmer v. Brennan, 511 U.S. 825, 832–33
(1994)). To make this showing, he must meet both the objective and
subjective components to the deliberate-indifference test.
(citing Farmer, 511 U.S. at 834).
To satisfy the objective, "substantial
risk of serious harm" component, a plaintiff
"must
show
a
deprivation
that
is,
'objectively, sufficiently serious,' which
means that the defendants' actions resulted in
the denial of the minimal civilized measure of
life's necessities." Cottrell v. Caldwell, 85
F.3d 1480, 1491 (11th Cir. 1996).
"The
challenged condition must be 'extreme'": the
prisoner must show that "society considers the
risk that the prisoner complains of to be so
grave that it violates contemporary standards
of decency to expose anyone unwillingly to
such a risk." Chandler v. Crosby, 379 F.3d
1278, 1289 (11th Cir. 2004). In evaluating an
Eighth Amendment claim, we consider both the
"severity"
and
the
"duration"
of
the
prisoner's exposure to extreme temperatures.
Id. at 1295.
Merely showing that prison
conditions are uncomfortable is not enough.
Id. at 1289.
For the subjective component, the prison
official must (1) have subjective knowledge of
the risk of serious harm, and (2) nevertheless
fail to respond reasonably to the risk.
Farmer, 511 U.S. at 837, 114 S.Ct. at 1979.
Subjective knowledge on the part of the prison
official requires that the official was aware
of the facts "from which the inference could
be drawn that a substantial risk of serious
harm exist[ed]," and that the official
actually drew that inference.
Burnette v.
Taylor, 533 F.3d 1325, 1330 (11th Cir. 2008).
A prison official must have a sufficiently
culpable state of mind to be deliberately
indifferent.
Carter v. Galloway, 352 F.3d
31
Id.
1346, 1349 (11th Cir. 2003). "[T]he evidence
must demonstrate that with knowledge of the
infirm conditions, the official knowingly or
recklessly declined to take actions that would
have improved the conditions."
Thomas v.
Bryant, 614 F.3d 1288, 1312 (11th Cir. 2010)
(alteration and quotation omitted). Mistakes
and even negligence on the part of prison
officials are not enough for a constitutional
violation. Crosby, 379 F.3d at 1289.
Id. at 574.
Although Plaintiff has presented facts showing the conditions
of his confinement were uncomfortable, the conditions he describes
are certainly not extreme.
The heaters may not have worked
properly or provided the amount of heat that Plaintiff desired, but
there was heat, and Plaintiff was confined in Raiford, Florida,
where the average temperature during the coldest months of the year
is not extreme, and Plaintiff was confined indoors, in a cell.
Furthermore, he does not allege that he was exposed to the cold
weather due to broken windows or open doors.15
To qualify as cruel and unusual under the Eighth Amendment,
prison conditions must be extreme, like being housed with broken
windows when the wind chill is forty to fifty degrees below zero or
being exposed to below freezing temperatures for an extended period
of time:
15
Plaintiff does not allege or suggest that he suffered from
frost bite or any other debilitating condition due to being housed
in a cell at FSP.
32
In Chandler v. Crosby, 379 F.3d 1278
(11th Cir. 2004), the Eleventh Circuit
examined a number of cases across the nation
for guidance on when allegations of extreme
cold
qualified
as
"cruel
and
unusual
punishment."
Cases where conditions were
found to be serious deprivations were:
Mitchell v. Maynard, 80 F.3d 1433, 1443 (10th
Cir. 1996) (lack of heat combined with the
lack of clothing and bedding over extended
period of time with other conditions such as
no exercise, no hot water, no toilet paper);
Del Raine v. Williford, 32 F.3d 1024, 1035–36
(7th Cir. 1994) (broken windows offered no
relief from the outdoor wind chills of forty
to fifty degrees below zero); Henderson v.
DeRobertis, 940 F.2d 1055, 1060 (7th Cir.
1991) (inmates exposed to temperatures below
freezing for four days); Corselli v. Coughlin,
842 F.2d 23, 27 (2d Cir. 1988) (inmate exposed
for 3 months to temperatures so cold there was
ice in the toilet bowl); Lewis v. Lane, 816
F.2d 1165, 1171 (7th Cir. 1987) (inmate
exposed repeatedly to cell temperatures
between 52 and 54 degrees).
Wineston v. Pack, No. 4:06cv438-RH/AK, 2009 WL 3126252, at *12
(N.D. Fla. Sept. 24, 2009) (Not Reported in F.Supp.2d).
However, conditions found not to constitute constitutional
violations are: Palmer v. Johnson, 193 F.3d 346, 349 (5th Cir.
1999) (inmates left outdoors overnight in temperatures of 59 degree
temperatures); and Hernandez v. Fla. Dep't of Corr., 281 F. App'x
862 (exposure to winter temperatures such as they are in Northern
Florida for two months not considered harmful to inmate's health).
The condition about which Plaintiff complains is not the sort of
extreme condition that violates contemporary standards of decency.
Furthermore, Plaintiff does not contend that he suffered any
33
injury from his exposure to chilly temperatures on I-Wing, other
than stating he suffered from a cold.
The common cold is a viral
infectious disease and does not constitute an injury from exposure
to cold temperatures or support an Eighth Amendment claim.
With respect to the subjective component, Plaintiff does not
attribute poor working heaters to any specific conduct of Defendant
Whitehead.
The same is true of Plaintiff's complaints about
laundry and food portions as he does not attribute these alleged
deprivations to the conduct of Defendant Whitehead.
Poor laundry
services do "not reflect that he was subject to the type of extreme
conditions that posed an unreasonable risk of serious damage to
health or safety."
3958014,
at
F.Supp.2d.).
*7
Edler v. Gielow, No. 3:08cv530/WS/EMT, 2010 WL
(N.D.
Fla.
Oct.
7,
2010)
(Not
Reported
in
Plaintiff mentions that he developed a rash, but
again this does not constitute an injury in the constitutional
sense.
Finally, Plaintiff generally complains about the food he
received and weight loss, but Plaintiff has failed to provide any
facts supporting a claim of unhealthy weight loss.
He has not
provided the Court with his height and weight or body mass, and he
does not claim that he suffered any medical problems due to extreme
weight loss, like malnourishment.16
16
See http://www.dc.state.fl.us/ActiveInmates/detail. The
Corrections Offender Network Inmate Population Information Detail
shows that Plaintiff is five foot nine inches tall and weighs 189
34
Defendant Whitehead and Espino and Musselman's Motions are due
to be granted with respect to this claim.
Plaintiff has failed to
plead "enough facts to state a claim to relief that is plausible on
its face" with respect to his complaints about inadequate heating,
food portions, and laundry materials.17
The Court notes that there is an additional Eighth Amendment
claim against Defendant Whitehead raised in the Amended Petition.
Plaintiff claim that Whitehead told his subordinates to beat
inmates,
use
excessive
Amended Complaint at 8.
force,
and
to
treat
inmates
cruelly.
Plaintiff also contends that Defendant
Whitehead knew that his subordinates were using excessive force.
Id.
Defendant Whitehead does not address this Eighth Amendment
Claim in his Motion and did not seek its dismissal.
XVII.
Defendant Espino/Deliberate Indifference
Plaintiff raises an Eighth Amendment claim against Defendant
Espino, alleging that the doctor was deliberately indifferent to
Plaintiff's
Plaintiff
serious
alleges
medical
that
needs.
after
he
was
Amended
Complaint
sexually
and
at
7.
physically
battered on August 5, 2012, he went to medical and saw Dr. Espino.
pounds, certainly not underweight for a man of Plaintiff's stature.
17
The Court will not address the question of Plaintiff's
entitlement to compensatory or punitive damages with respect to
this claim due to the finding that Plaintiff has failed to state a
claim for relief that is plausible on its face.
See Defendant
Whitehead's Motion at 12-15; Espino and Musselman's Motion at 4-5.
35
Id. at 8.
Plaintiff claims that Espino laughed at him; told him to
get out of his office; refused to examine him, even though he knew
Plaintiff
had
injuries.
injuries;
and
refused
to
address
Plaintiff's
Id.
To establish deliberate indifference, a
plaintiff
must
show
"(1)
a
subjective
knowledge of a risk of serious harm; (2)
disregard of that risk; and (3) by conduct
that is more than mere negligence." Brown v.
Johnson, 387 F.3d 1344, 1351 (11th Cir. 2004).
Conduct that is more than mere negligence
includes: (1) knowledge of a serious medical
need and a failure or refusal to provide care;
(2)
delaying
treatment
for
non-medical
reasons; (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).
Baez v. Rogers, 522 F. App'x 819, 821 (11th Cir. 2013).
Defendant Espino argues that Plaintiff has failed to show that
the doctor refused to provide treatment despite his knowledge that
Plaintiff had a serious medical need.
More particularly, Espino
contends that Plaintiff has failed to show subjective awareness of
a serious risk of harm to Plaintiff, relying on Farrow v. West, 320
F.3d 1235, 1248 (11th Cir. 2003).
The Court first recognizes that this cause is before the Court
on a motion to dismiss, not a motion for summary judgment.
Thus,
the case is in a completely different posture than that in Farrow,
when the court was addressing the granting of summary judgment
36
motion
with
respect
to
a
claim
of
deliberate
indifference.
However, Espino also relies on Mitchell v. Thompson, 564 F. App'x
452,
458
(11th
Cir.
2014)
(per
curiam)
(finding
dismissal
appropriate because the allegations did not show the medical
professional "had subjective knowledge of a serious risk of harm").
The Court, as it must, will liberally construe the Amended
Complaint.
The
pro
se
Plaintiff
alleges
that
he
had
been
physically and sexually battered by an officer, and that when he
went to see Dr. Espino, the doctor recognized that Plaintiff had
injuries, but the doctor refused to examine or treat Plaintiff.
Instead, Plaintiff alleges, the doctor laughed at Plaintiff, told
him to get out of his office, and refused to do anything to address
Plaintiff's injuries.
Here, sufficient allegations have been
presented to withstand a motion to dismiss for failure to state a
claim.
The Court concludes that the Amended Complaint states a
deliberate indifference claim against Defendant Espino that is
plausible on its face.18
XVIII.
Qualified Immunity/Dr. Espino
18
Although Dr. Espino adopts Defendant Whitehead's argument
that Plaintiff lacks entitlement to compensatory or punitive
damages, that argument only addressed the lack of entitlement to
compensatory or punitive damages with respect to the claim of
inadequate heating, food portions, or laundry materials.
See
Whitehead's Motion at 12-15. Therefore, it is inapplicable to this
claim of failure to treat injuries raised against Dr. Espino.
37
Although it is undisputed that Dr. Espino was engaged in
discretionary functions on August 5, 2012, given the undersigned's
conclusion stated above, qualified immunity should be denied as to
Defendant Dr. Espino with respect to the claim of deliberate
indifference in violation of the Eighth Amendment.
Therefore, it is now
ORDERED:
1.
Defendant Hale's Motion to Dismiss (Doc. 24) is GRANTED.
Defendant Hale is hereby DISMISSED from this action.
2.
Defendant Sgt. John Doe is DISMISSED from this action.
The Clerk shall terminate Defendant Sgt. John Doe on the docket.
3.
Defendant Musselman's Motion to Dismiss (Doc. 59) is
GRANTED. Defendant Musselman is hereby DISMISSED from this action.
4.
Defendant Espino's Motion to Dismiss (Doc. 59) is GRANTED
IN PART AND DENIED IN PART as stated in the opinion.
It is DENIED
with respect to the Eighth Amendment deliberate indifference to
serious medical needs claim against Dr. Espino.
5.
Defendant
Oliveros'
Motion
to
Dismiss
(Doc.
55)
GRANTED IN PART AND DENIED IN PART as stated in the opinion.
is
It is
DENIED with respect to the Eighth Amendment excessive force claim
against Oliveros.
6.
Defendant Whitehead's Motion to Dismiss (Doc. 56) is
GRANTED; however, the Eighth Amendment claim that Whitehead told
his subordinates to beat inmates, use excessive force, and treat
38
them cruelly, with knowledge that his subordinates were heading his
directives, remains.
7.
the
The following claims are dismissed from this action: (1)
Eighth
Amendment
claim
against
Defendant
Hale;
(2)
the
supervisory liability claim against Hale; (3) the First Amendment
retaliation claim; (4) any claim of verbal abuse and harassment;
(5) the Fourteenth Amendment claim; (6) the Freedom of Access to
Clinic Entrances Act claim; (7) the claim for injunctive relief;
(8) the Eighth Amendment conditions of confinement claim with
respect to heat, laundry, and food; and (9) the Eighth Amendment
claim of deliberate indifference to health and safety.
8.
Defendants Oliveros, Espino, and Whitehead shall answer
or otherwise respond to the Amended Complaint by January 17, 2017.
DONE AND ORDERED at Jacksonville, Florida, this 3rd day of
January, 2017.
sa 12/16
c:
Warren Oliver
Counsel of Record
39
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