Kendry v. Craft et al
Filing
56
ORDER granting in part and denying in part 39 motion to dismiss; granting in part and denying in part 40 motion for summary judgment; denying 42 Motion for Sanctions; dismissing Defendant Warden M. Barnes; denying without prejudice 48 Plaintiff's motion for summary judgment; granting summary judgment as to Defendant Kathy Todd as to Plaintiff's Eighth Amendment claim. Signed by Judge Marcia Morales Howard on 8/25/2016. (BL)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
SIMMIE KENDRY,
Plaintiff,
vs.
Case No. 3:15-cv-248-J-34MCR
CO I KRAFT, et al.,
Defendants.
ORDER
I. Status
Plaintiff Simmie Kendry, an inmate of the Florida penal
system, initiated this action on January 6, 2015, pursuant to the
mailbox rule, by filing a pro se “Civil Tort Complaint” (Complaint;
Doc. 2) in the Circuit Court of the Third Judicial Circuit in and
for Columbia County, Florida. On March 4, 2015, the Defendants
removed the case from state court. See Notice of Removal (Doc. 1).
Kendry filed an Amended Civil Rights Complaint Form (Amended
Complaint; Doc. 36) under 42 U.S.C. § 1983 with exhibits (P. Ex.)
on October 15, 2015. In the Amended Complaint, Kendry names the
following individuals as Defendants: (1) Corrections Officer Kraft;
(2) Sergeant Roach; (3) Kathy Todd, Administrative Assistant for
Corizon
Health
Services
(Corizon)
at
Columba
Correctional
Institution (CCI); and (4) Warden M. Barnes. He asserts that the
Defendants violated his federal constitutional rights when: (1)
Kraft and Roach failed to protect him from a September 29, 2014
assault by two inmates after Kendry notified them that his cellmate
had threatened him; (2) Defendants, specifically Roach, failed to
properly secure and protect his personal property; (3) Todd failed
to schedule him for medical or diagnostic examinations or dressing
changes
for
his
injuries;
and
(4)
Warden
Barnes
denied
him
protective custody after the assault and follow-up medical care.
This matter is before the Court on Defendants’ motions:
Defendants Kraft and Barnes’ Motion to Dismiss (Motion to Dismiss;
Doc.
39);
Defendant
Kathy
Todd’s
Motion
to
Dismiss
or,
Alternatively, for Summary Judgment (Todd’s Motion; Doc. 40); and
Defendants Kraft and Barnes’ Motion for Sanctions (Motion for
Sanctions; Doc. 42). The Court advised Plaintiff of the provisions
of Federal Rule of Civil Procedure 56, notified him that the
granting of a motion for summary judgment would represent a final
adjudication of this case which may foreclose subsequent litigation
on the matter, and gave him an opportunity to respond to the
motions. See Summary Judgment Notices (Docs. 10, 19, 41, 50).
Plaintiff filed responses in opposition to Defendants’ motions. See
Traverse to Motion to Dismiss (Traverse; Doc. 46); Plaintiff’s
Summary Judgment in Traverse to Defendants’ Motion to Dismiss
(Motion/Traverse; Doc. 48); and Motion to Deny Defendant’s Motion
to Dismiss or Alternative Summary Judgment (Response; Doc. 49). The
motions are ripe for review.
II. Motion to Dismiss Standard
In ruling on a motion to dismiss, the Court must accept the
factual allegations set forth in the complaint as true. Ashcroft v.
2
Iqbal, 556 U.S. 662, 678 (2009); Swierkiewicz v. Sorema N.A., 534
U.S. 506, 508 n.1 (2002); see also Lotierzo v. Woman’s World Med.
Ctr., Inc., 278 F.3d 1180, 1182 (11th Cir. 2002). 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. Jackson v. BellSouth Telecomm., 372
F.3d 1250, 1262-63 (11th Cir. 2004) (citations omitted). Indeed,
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
3
(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.”
See
Iqbal, 556 U.S. at 678, 680. 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. Summary Judgment Standard
Under Rule 56(a), “[t]he court shall grant summary judgment if
the movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of
law.” The record to be considered on a motion for summary judgment
may
include
“depositions,
documents,
electronically
stored
information, affidavits or declarations, stipulations (including
those
made
for
purposes
of
the
motion
only),
admissions,
interrogatory answers, or other materials[.]” Rule 56(c)(1)(A).1
1
Rule 56 was revised in 2010 “to improve the procedures for
presenting and deciding summary-judgment motions.” Rule 56 advisory
committee’s note 2010 Amendments.
The standard for granting summary judgment
remains unchanged. The language of subdivision
(a) continues to require that there be no
4
“An issue of fact is material if, under the applicable substantive
law, it might affect the outcome of the case[,] and “[a]n issue of
fact is genuine if the record taken as a whole could lead a
rational trier of fact to find for the nonmoving party.” Harrison
v. Culliver, 746 F.3d 1288, 1298 (11th Cir. 2014) (citations and
internal quotation marks omitted).
The party seeking summary judgment bears the initial burden of
demonstrating to the court, by reference to the record, that there
are no genuine issues of material fact that should be decided at
trial. Hickson Corp. v. N. Crossarm Co., 357 F.3d 1256, 1260 (11th
Cir. 2004) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986)). “When a moving party has discharged its burden, the
non-moving party must then go beyond the pleadings, and by its own
affidavits, or by depositions, answers to interrogatories, and
admissions on file, designate specific facts showing that there is
a genuine issue for trial.” Jeffery v. Sarasota White Sox, Inc., 64
F.3d 590, 593-94 (11th Cir. 1995) (per curiam) (citations and
internal quotation marks omitted). “[A] mere scintilla of evidence
in support of the non-moving party’s position is insufficient to
defeat a motion for summary judgment.” Kesinger ex rel. Estate of
genuine dispute as to any material fact and
that the movant be entitled to judgment as a
matter of law. The amendments will not affect
continuing development of the decisional law
construing and applying these phrases.
Id. Thus, case law construing the former Rule 56 standard of review
remains viable and is applicable here.
5
Kesinger v. Herrington, 381 F.3d 1243, 1247 (11th Cir. 2004).
Substantive law determines the materiality of facts, and “[o]nly
disputes over facts that might affect the outcome of the suit under
the governing law will properly preclude the entry of summary
judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). In determining whether summary judgment is appropriate, a
court “must view all evidence and make all reasonable inferences in
favor of the party opposing summary judgment.” Haves v. City of
Miami, 52 F.3d 918, 921 (11th Cir. 1995) (citing Dibrell Bros.
Int’l, S.A. v. Banca Nazionale Del Lavoro, 38 F.3d 1571, 1578 (11th
Cir. 1994) (per curiam)).
IV. Amended Complaint2
Kendry asserts that two Latin King gang members3 named Bledsoe
and Rodriguez “brutally attacked” and stabbed him with a knife on
September 29, 2014, at approximately 9:00 p.m. in G dormitory at
CCI. Amended Complaint at 5. According to Kendry, the incident was
“caught on camera” and is documented in medical records and
2
In considering the Motion to Dismiss, the Court must accept
all factual allegations in the Amended Complaint 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 facts recited here are drawn from the Amended Complaint and may
differ from those that ultimately can be proved. Additionally,
because this matter is before the Court on motions only brought by
Kraft, Barnes and Todd, the Court’s recitation of the facts will
focus on Kendry’s allegations as to them.
3
According to Kendry, inmate Bledsoe was his cellmate, and
inmate Rodriguez was Kendry’s co-defendant. See Amended Complaint
at 5.
6
incident reports. Id. He asserts that, as a result of the alleged
assault, he experiences numbness on the left side of his body and
suffers extensive brain damage that causes headaches, nosebleeds,
deafness, visual impairment, progressive memory loss, equilibrium
issues with stroke-like symptoms, slurring of speech accompanied by
his mouth twisting to the left, and walking difficulties. See id.
Kendry states that four days prior to the alleged attack he
notified Defendant Kraft about a death threat by Bledsoe and
requested a cell change or protective custody. See id. According to
Kendry, Kraft responded, “you need to learn to f--k or fight” and
ordered Kendry to return to his assigned dormitory. Id. Kendry
asserts that, later that afternoon, he informed Defendant Roach
about Bledsoe’s threat and requested protection. See id. Kendry
states that Roach responded, “I will look into this later,” and
directed Kendry to return to his cell. Id.
According to Kendry, during Roach’s escort of Kendry to the
medical department following the attack, Roach told Kendry that he
had secured all of Kendry’s property. See id. Kendry states that he
later learned that his property4 had been left unsecured. See id.
at 6. He asserts that the captain directed the nurse to treat and
document all visible and non-visible wounds; the nurse treated his
visible wounds with “some sort of chemical agent and bandages,” but
4
According to Kendry, his personal property, including a
radio, combination lock, batteries, clothes, jewelry, shoes, food,
and hygiene products, was missing. See Amended Complaint at 6.
7
there was “no treatment” for his non-visible wounds. Id. at 6-7.
Kendry avers that Defendant Todd “failed to schedule” him “for any
doctor examination, x-rays, MRI’s, cat scans, or even dressing
changes for his injuries” and when he inquired she “merely stated
‘put in for sick call.’” Id. at 7; see P. Ex. C, Inmate Request to
Medical, dated October 6, 2014.
With regard to Warden Barnes, Kendry states that after the
attack he told Warden Barnes: the attack was gang-related, he had
been
receiving
death
threats
since
he
had
been
placed
in
administrative confinement, he feared gang members would try to
kill
him
if
the
Department
released
him
from
administrative
confinement, and that he did not have any follow-up medical
treatment. See Amended Complaint at 7. He asserts that Barnes
denied
him
protective
custody
on
October
7,
2014,
at
an
Institutional Classification Team (ICT) hearing, and also denied
him follow-up medical care. See id.
V. Defendant Kathy Todd
Defendant Todd requests that the Court: (1) dismiss Kendry’s
claims against her because he failed to state a claim upon which
relief can be granted or, alternatively, enter summary judgment in
her favor, or (2) dismiss the case in its entirety for Kendry’s
abuse of the judicial process as a sanction “for his blatantly
8
false misrepresentations to this Court.”5 Todd’s Motion at 2. In
support of Todd’s Motion, she refers to and incorporates her
previously-filed
Declaration.
See
Notice
of
Filing
(Doc.
7),
attached Declaration of Kathy Todd (Todd’s Declaration; Doc. 7-1),
dated March 6, 2015. Kendry filed a response in opposition to
Todd’s Motion. See Response (Doc. 49). In the Response, he asserts
that Todd violated his Eighth and Fourteenth Amendment rights when
she failed to schedule him for follow-up medical treatment for
injuries sustained in the September 29, 2014 assault, but instead
advised him to seek medical care through the prison’s sick call
procedures.
Todd relies on her Declaration as evidence that she is
entitled to summary judgment. See Todd's Motion at 4-5. She asserts
that her Declaration is in the record, and requests that her
Declaration be considered in deciding the Motion, and that “the
Motion be treated as one for summary judgment according to the
Federal Rule of Civil Procedure 12(d).” See id. at 4 n.2. Federal
Rule of Civil Procedure 12(d) provides:
If, on a motion under Rule 12(b)(6) or
12(c), matters outside the pleadings are
presented to and not excluded by the court,
the motion must be treated as one for summary
judgment under Rule 56. All parties must be
given a reasonable opportunity to present all
the material that is pertinent to the motion.
5
The Court will address Defendant Todd’s request to dismiss
the case for Kendry’s abuse of the judicial process in Section VII
of this Order.
9
Fed. R. Civ. P. 12(d). As previously noted, the Court advised
Plaintiff of the provisions of Federal Rule of Civil Procedure 56,
notified him that the granting of a motion for summary judgment
would represent a final adjudication of this case which may
foreclose subsequent litigation on the matter, and gave him an
opportunity to respond to the Motion, see Doc. 41; Plaintiff filed
a response to the Motion, see Doc. 49. Accordingly, the Court will
address Todd’s Motion as a request for summary judgment under
Federal Rule of Civil Procedure 56.
In the Complaint, Kendry asserts that Todd, an Administrative
Assistant for Corizon, failed to schedule him for a doctor’s
examination, dressing changes, and diagnostic testing, but instead
recommended that he use the sick call procedures to request medical
care. See Amended Complaint at 7. He attaches the inmate request
that he sent to the medical department on October 6, 2014. See P.
Ex. C, Inmate Request, dated October 6, 2014, and received by the
medical department on October 10, 2014. In the request, Kendry
stated:
On 9-29-14 I was beaten and stabbed by a
gang of inmates called Latin Kings in G2 113.
I was taken to medical where I received
only band aids for my wounds[.] No follow up
treatment by a doctor, Ex-rays [sic], cat
scans or MRI’s or dressing changes have been
given to me[.] Why and who failed to follow up
on the injuries period.
10
Id. Todd responded and wrote on the form “Access sick call” and
returned it to Kendry. Id.
In Todd’s Declaration, she avers in pertinent part:
My name is Kathy Todd. I am employed by
Corizon, LLC as an Administrative Assistant at
the Columbia Correctional Institution in Lake
City, Florida.
The
information
contained
in
this
Declaration is based upon personal knowledge
of the events herein and my knowledge of
Corizon’s policies and procedures.
I understand that Simmie Kendry has named
me as a defendant in the lawsuit listed above
and he contends that I refused to schedule him
for follow up medical treatment after he was
attacked by other inmates on September 29,
2014.
As an Administrative Assistant, my duties
include reviewing Inmate Requests, Informal
Grievances, and Formal Grievances. I read,
sort,
and
distribute
the
requests
and
grievances to the appropriate staff for
answers.
Nurses
schedule
health
care
appointments for inmates after inmates submit
sick call requests. Sick call requests are
submitted on special forms, which are triaged
by members of the nursing staff. I am not a
nurse, and I have no role in triaging sick
call requests or in scheduling health care
appointments with medical providers.
I received an Inmate Request from Mr.
Kendry on October 10, 2014, which is a request
for information. This was not on a sick call
request form, which would have been routed to
the nursing staff and not me. Upon review, I
noted that Mr. Kendry’s Inmate Request sought
follow-up health care with a medical provider.
I pulled his chart and saw that a triage nurse
had assessed him on September 29, 2014. The
nurse had noted edema of the lower lip, no
11
open areas, and a scratch on his left
shoulder. She cleaned the wounds, applied a
band aid, and instructed Mr. Kendry to sign up
for sick call if he had any further problems.
Because there was no indication that Mr.
Kendry's Inmate Request concerned an urgent
health matter, I advised him to follow the
standard procedures, which was to submit a
sick call request form.
Attached
as Exhibit A-1 is a true
and
correct
copy
of
the
Florida
Department of Corrections Procedure 403.006,
“Sick Call Process and Emergencies.” Sick call
is the process by which an inmate requests
access to health care for non-urgent health
needs. [Ex. A-1, p. 2.] During the initial
institutional health services orientation,
inmates are provided information regarding
available hours and access to sick call for
both emergency and non-emergency medical
needs. [Id.] Sick call requests must be
submitted on the proper sick call forms. [Id.,
p. 4.]
Todd’s Declaration at 1-3 (emphasis added). In response to Todd’s
Motion, Kendry states that the “only claim” against Todd is that
she “failed to schedule [him] for follow up medical treatment”
after the alleged assault. Response at 1. He also asserts that Todd
exceeded her job description when she interfered with his request
for medical treatment and read his confidential medical records.
Id. at 5.
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,
12
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).
Moreover,
the
Eleventh
Circuit
“‘requires proof of an affirmative causal connection between the
official’s
acts
or
omissions
and
the
alleged
constitutional
deprivation’ in § 1983 cases.” Rodriguez v. Sec’y, Dep’t of Corr.,
508 F.3d 611, 625 (11th Cir. 2007) (quoting Zatler v. Wainwright,
802 F.2d 397, 401 (11th Cir. 1986)). In the absence of a federal
constitutional deprivation or violation of a federal right, a
plaintiff cannot sustain a cause of action against the defendant.
The Eleventh Circuit has explained the requirements for an
Eighth Amendment violation.
“The Constitution does not mandate
comfortable prisons, but neither does it
permit inhumane ones . . . .” Farmer, 511 U.S.
at 832, 114 S.Ct. at 1976 (internal quotation
and citation omitted).[6] Thus, in its
prohibition
of
“cruel
and
unusual
punishments,” the Eighth Amendment requires
that
prison
officials
provide
humane
conditions of confinement. Id. However, as
noted above, only those conditions which
objectively amount to an “extreme deprivation”
violating contemporary standards of decency
are subject to Eighth Amendment scrutiny.
Hudson, 503 U.S. at 8-9, 112 S.Ct. at 1000.[7]
Furthermore, it is only a prison official’s
subjective deliberate indifference to the
substantial risk of serious harm caused by
6
Farmer v. Brennan, 511 U.S. 825 (1994).
7
Hudson v. McMillian, 503 U.S. 1 (1992).
13
such conditions that gives rise to an Eighth
Amendment violation. Farmer, 511 U.S. at 828,
114 S.Ct. at 1974 (quotation and citation
omitted); Wilson, 501 U.S. at 303, 111 S.Ct.
at 2327.[8]
Thomas v. Bryant, 614 F.3d 1288, 1306-07 (11th Cir. 2010).
“To
show
that
a
prison
official
acted
with
deliberate
indifference to serious medical needs, a plaintiff must satisfy
both an objective and a subjective inquiry.” Brown v. Johnson, 387
F.3d 1344, 1351 (11th Cir. 2004) (quoting Farrow v. West, 320 F.3d
1235, 1243 (11th Cir. 2003)). First, the plaintiff must satisfy the
objective component by showing that he had a serious medical need.
Goebert v. Lee Cty., 510 F.3d 1312, 1326 (11th Cir. 2007).
“A serious medical need is considered
‘one that has been diagnosed by a physician as
mandating treatment or one that is so obvious
that even a lay person would easily recognize
the necessity for a doctor’s attention.’” Id.
(citing Hill v. Dekalb Reg’l Youth Det. Ctr.,
40 F.3d 1176, 1187 (11th Cir. 1994)). In
either case, “the medical need must be one
that,
if
left
unattended,
pos[es]
a
substantial risk of serious harm.” Id.
(citation and internal quotations marks
omitted).
Brown, 387 F.3d at 1351.
Next, the plaintiff must satisfy the subjective component,
which requires the plaintiff to “allege that the prison official,
at
a
minimum,
acted
with
a
state
of
mind
that
constituted
deliberate indifference.” Richardson, 598 F.3d at 737 (setting
8
Wilson v. Seiter, 501 U.S. 294 (1991).
14
forth the three components of deliberate indifference as “(1)
subjective knowledge of a risk of serious harm; (2) disregard of
that risk; (3) by conduct that is more than mere negligence.”)
(citing Farrow, 320 F.3d at 1245).
In
Estelle[9],
the
Supreme
Court
established that “deliberate indifference”
entails more than mere negligence. Estelle,
429 U.S. at 106, 97 S.Ct. 285; Farmer, 511
U.S. at 835, 114 S.Ct. 1970. The Supreme Court
clarified
the
“deliberate
indifference”
standard in Farmer by holding that a prison
official
cannot
be
found
deliberately
indifferent under the Eighth Amendment “unless
the official knows of and disregards an
excessive risk to inmate health or safety; the
official must both be aware of facts from
which the inference could be drawn that a
substantial risk of serious harm exists, and
he must also draw the inference.” Farmer, 511
U.S. at 837, 114 S.Ct. 1970 (emphasis added).
In interpreting Farmer and Estelle, this Court
explained in McElligott[10] that “deliberate
indifference
has
three
components:
(1)
subjective knowledge of a risk of serious
harm; (2) disregard of that risk; (3) by
conduct that is more than mere negligence.”
McElligott, 182 F.3d at 1255; Taylor,[11] 221
F.3d at 1258 (stating that defendant must have
subjective awareness of an “objectively
serious need” and that his response must
constitute
“an
objectively
insufficient
response to that need”).
Farrow, 320 F.3d at 1245-46.
9
Estelle v. Gamble, 429 U.S. 97 (1976).
10
McElligott v. Foley, 182 F.3d 1248 (11th Cir. 1999).
11
Taylor v. Adams, 221 F.3d 1254 (11th Cir. 2000).
15
Here,
the
material
facts
relating
to
Defendant
Todd’s
involvement are undisputed. The parties agree that Todd is not a
medical provider; she is an Administrative Assistant employed by
Corizon. The sole basis for Kendry’s claim against her is that she
directed Kendry to follow the policy of the Florida Department of
Corrections for accessing health care. The parties also agree that
Todd told Kendry to use the sick call procedures, and she wrote
that recommendation on the inmate request form that she returned to
him.
Given these undisputed facts, Kendry has failed to show that
Defendant Todd was deliberately indifferent to any serious medical
needs.
Even assuming Plaintiff’s allegations suggest negligence,
“[a]ccidents, mistakes, negligence, and medical malpractice are not
‘constitutional
violation[s]
merely
because
the
victim
is
a
prisoner.’” Harris v. Coweta Cty., 21 F.3d 388, 393 (11th Cir.
1994)
(citing
Estelle,
429
U.S.
at
106).
Consequently,
any
allegedly negligent conduct of which Kendry complains does not rise
to the level of a federal constitutional violation and provides no
basis for relief in this 42 U.S.C. § 1983 action.
As an Administrative Assistant, Defendant Todd was neither
responsible for scheduling follow-up appointments nor tasked with
deciding an inmate’s follow-up treatment plan. The United States
Supreme Court has stated:
[T]he question whether an X-ray or additional
diagnostic techniques or forms of treatment is
16
indicated is a classic example of a matter for
medical judgment. A medical decision not to
order an X-ray, or like measures, does not
represent cruel and unusual punishment. At
most[,] it is medical malpractice, and as such
the proper forum is the state court . . . .
Estelle, 429 U.S. at 107; Adams v. Poag, 61 F.3d 1537, 1545 (11th
Cir. 1995) (“[T]he question of whether [defendant] should have
employed additional diagnostic techniques or forms of treatment ‘is
a classic example of a matter for medical judgment’ and therefore
not an appropriate basis for grounding liability under the Eighth
Amendment.”); Harris v. Thigpen, 941 F.2d 1495, 1505 (11th Cir.
1991) (“Nor does a simple difference in medical opinion between the
prison’s
medical
staff
and
the
inmate
as
to
the
[inmate’s]
diagnosis or course of treatment support a claim of cruel and
unusual punishment.”).
In Todd’s Declaration, she states: “Because there was no
indication that Mr. Kendry’s Inmate Request concerned an urgent
health matter, I advised him to follow the standard procedures,
which was to submit a sick call request form.” Todd’s Declaration
at 2, ¶ 6. As chronicled in Kendry’s Amended Complaint and Todd’s
Declaration, Todd first reviewed Kendry’s medical chart and then
advised him to follow the established sick call procedures to
request follow-up medical care. The Court finds that there are no
genuine issues of material fact as to Todd’s involvement. Given the
record, Kendry has not shown that Defendant Todd was deliberately
indifferent to Kendry’s serious medical needs. Therefore, Defendant
17
Todd’s Motion for Summary Judgment as to Kendry’s Eighth Amendment
claim against her is due to be granted because there is no genuine
dispute as to any material fact, and she is entitled to the entry
of summary judgment on her behalf.
VI. Defendants Kraft and Barnes
Defendants Kraft and Barnes request that the Court dismiss
Kendry’s: (1) state law claims for negligence or gross negligence
against
Kraft
and
Barnes
in
their
individual
and
official
capacities pursuant to Florida Statutes section 768.28(9)(a); (2)
Eighth Amendment claims against Barnes for deliberate indifference
to Kendry’s needs for protection and medical care; (3) Fourth and
Fourteenth Amendment claims against Kraft and Barnes for missing
property; and (4) claims for monetary damages against Kraft and
Barnes in their official capacities. See Motion to Dismiss (Doc.
39).
Kendry filed a response in opposition to the Motion to
Dismiss. See Traverse (Doc. 46). In the Traverse, Kendry asserts
that the Court should deny Defendants’ Motion to Dismiss. He states
that he provides sufficient factual allegations in the Amended
Complaint
to
state
claims
against
the
Defendants
in
their
individual and official capacities for violations of the Fourth,
Eighth, and Fourteenth Amendments. See id. at 5, 8. He specifically
asserts that he sufficiently states an Eighth Amendment claim
against Defendant Barnes for deliberate indifference, see id. at
18
11,
and
Fourth
and
Fourteenth
Amendment
claims
against
the
Defendants relating to his missing property, see id. at 18.
A. State Law Claims
Defendants Kraft and Barnes request that the Court dismiss
Kendry’s state law claims for negligence or gross negligence
against them in their individual and official capacities pursuant
to Florida Statutes section 768.28. As previously stated, Kendry
initiated this action in state court by filing a pro se Complaint.
A few months later, the Defendants removed the case from state
court. See Notice of Removal (Doc. 1). In the Notice of Removal,
the
Defendants
Corizon12
and
Todd
stated:
“In
the
Complaint,
Plaintiff alleges his federal constitutional rights under the
Fourth, Eighth, and Fourteenth Amendments were violated, and does
not include state-law claims.” Notice of Removal at 1, ¶2. This
Court agrees that Kendry does not include any state law claims in
the operative complaint. See Amended Complaint at 4, Statement of
Claim. Therefore, Defendants’ Motion to Dismiss is due to be denied
as moot as to this issue.
B. Defendant Barnes
Defendant Barnes requests that the Court dismiss Kendry’s
Eighth Amendment claims against him. See Motion to Dismiss at 6-10.
Barnes asserts that supervisory officials are not liable under 42
12
Plaintiff does not name Corizon as a Defendant in the
operative complaint. See Amended Complaint (Doc. 36) at 3; see also
Response at 1, ¶ 1; 5; Todd’s Motion at 1 n.1.
19
U.S.C. § 1983 for the unconstitutional acts of their subordinates
on the basis of respondeat superior. See id. at 10 n.2. Kendry
opposes Barnes’ request for dismissal. See Traverse at 11-14;
Motion/Traverse at 4.
The United States Court of Appeals for the Eleventh Circuit
has stated:
“Supervisory officials are not liable under
section 1983 on the basis of respondeat
superior or vicarious liability.” Belcher v.
City of Foley, Ala., 30 F.3d 1390, 1396 (11th
Cir. 1994) (internal quotation marks and
citation omitted). “The standard by which a
supervisor is held liable in her individual
capacity for the actions of a subordinate is
extremely rigorous.” Gonzalez, 325 F.3d at
1234 (internal quotation marks and citation
omitted).[13] “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).
“The necessary causal connection can be
established ‘when a history of widespread
abuse puts the responsible supervisor on
notice of the need to correct the alleged
deprivation, and he fails to do so.’” Cottone,
326 F.3d at 1360 (citation omitted).[14] “The
deprivations that constitute widespread abuse
sufficient to notify the supervising official
must be obvious, flagrant, rampant and of
continued duration, rather than isolated
occurrences.” Brown, 906 F.2d at 671. A
plaintiff can also establish the necessary
13
Gonzalez v. Reno, 325 F.3d 1228 (11th Cir. 2003).
14
Cottone v. Jenne, 326 F.3d 1352 (11th Cir. 2003).
20
causal connection by showing “facts which
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,” Gonzalez, 325 F.3d at 1235, or that a
supervisor's “custom or policy . . . resulted
in deliberate indifference to constitutional
rights,” Rivas v. Freeman, 940 F.2d 1491, 1495
(11th Cir. 1991).
Danley v. Allen, 540 F.3d 1298, 1314 (11th Cir. 2008). Further, the
Eleventh Circuit stated:
In a § 1983 suit, liability must be based on
something more than respondeat superior.
Brown,[15] 906 F.2d at 671. Supervisory
liability can be found when the supervisor
personally
participates
in
the
alleged
constitutional violation, or when there is a
causal connection between the supervisory
actions and the alleged deprivation. Id. A
causal connection can be established through a
showing of a widespread history of the
violation. Id. at 672.
Reid v. Sec’y, Fla. Dep’t of Corr., 486 F. App’x 848, 852 (11th
Cir. 2012); Charriez v. Sec’y, Fla. Dep’t of Corr., 596 F. App’x
890, 895 (11th Cir. 2015) (per curiam). Here, Kendry asserts that
Warden Barnes personally participated in the alleged violations of
Kendry’s federal constitutional rights.
According to Kendry, the shift captain assigned Kendry to
administrative
confinement
after
the
September
29,
2014
altercation. Kendry states that he later informed Barnes that: the
attack was gang-related, Latin King gang members continued to make
15
Brown v. Crawford, 906 F.2d 667 (11th Cir. 1990).
21
death threats against him, and he feared those gang members would
try to kill him if the Department released him from administrative
confinement. See Amended Complaint at 7. Kendry also asserts that
Barnes denied his request for protection at an ICT hearing on
October 7, 2016 (eight days after Kendry had been involved in the
altercation), and stated, “if they stab you again or write a threat
letter to you let me or any major know about it ....” Id. Kendry
states that when he told Barnes that he “was in severe pain from
the injuries sustained on the night of the attack,” Barnes “simply
smirked” and replied, “you’ll live,” and sent Kendry back to his
cell. Id.
The Eleventh Circuit recently stated:
“It is undisputed that the treatment a
prisoner receives in prison and the conditions
under which he is confined are subject to
scrutiny under the Eighth Amendment.” Helling
v. McKinney, 509 U.S. 25, 31, 113 S.Ct. 2475,
125 L.Ed.2d 22 (1993). Beyond just restraining
prison officials from inflicting “cruel and
unusual punishments” upon inmates, “[t]he
Amendment also imposes duties on these
officials, who must ... ‘take reasonable
measures to guarantee the safety of the
inmates.’” Farmer v. Brennan, 511 U.S. 825,
832, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994)
(quoting Hudson v. Palmer, 468 U.S. 517,
526–27, 104 S.Ct. 3194, 82 L.Ed.2d 393
(1984)). To this end, the Supreme Court has
made clear that “prison officials have a duty
... to protect prisoners from violence at the
hands of other prisoners.” Id. at 833, 114
S.Ct. 1970 (alteration in original) (internal
quotation marks omitted); see also Zatler v.
Wainwright, 802 F.2d 397, 400 (11th Cir. 1986)
(“[I]t is well settled that a prison inmate
22
has a constitutional right to be protected ...
from physical assault by other inmates.”).
Deliberate indifference in the context of
a failure to prevent harm has a subjective and
an objective component, i.e., a plaintiff must
show both “that the defendant actually
(subjectively) kn[ew] that an inmate [faced] a
substantial risk of serious harm” and “that
the defendant disregard[ed] that known risk by
failing to respond to it in an (objectively)
reasonable manner.” Caldwell, 748 F.3d at 1099
(alterations in original) (internal quotation
marks omitted). Not “every injury suffered by
one prisoner at the hands of another ...
translates into constitutional liability for
prison officials responsible for the victim’s
safety.” Farmer, 511 U.S. at 834, 114 S.Ct.
1970. Rather, a prison official violates the
Eighth Amendment in this context only “when a
substantial risk of serious harm, of which the
official is subjectively aware, exists and the
official does not respond reasonably to the
risk.” Caldwell, 748 F.3d at 1099 (emphasis
omitted) (internal quotation marks omitted).
Accordingly, to state an Eighth Amendment
claim premised on a failure to prevent harm, a
plaintiff must allege facts showing that: (1)
a substantial risk of serious harm existed;
(2)
the
defendants
were
deliberately
indifferent to that risk, i.e., they both
subjectively knew of the risk and also
disregarded it by failing to respond in an
objectively reasonable manner; and (3) there
was
a
causal
connection
between
the
defendants' conduct and the Eighth Amendment
violation. See id.
Bowen v. Warden, Baldwin State Prison, No. 15-11109, 2016 WL
3435501, *4 (11th Cir. June 22, 2016).
Kendry has not alleged facts sufficient to state a claim under
the Eighth Amendment in that he has shown neither that Defendant
Barnes was deliberately indifferent to his serious medical needs
23
nor that Barnes was deliberately indifferent to a known risk of
serious harm. As Iqbal instructs, the Court must accept the factual
allegations set forth in the Amended Complaint as true. Iqbal, 556
U.S. at 678. Kendry’s assertions demonstrate that Warden Barnes
timely reviewed Kendry’s request for protection at a classification
hearing and told Kendry that he could alert him or “any major” if
the threats escalated and Kendry felt his life was in danger.
Amended Complaint at 7. Importantly, although Kendry asserts that
other gang members threatened him after the incident, he neither
alleges that he told Barnes after the ICT hearing that he had been
threatened or that he suffered any physical harm as a result of
Barnes’ failure to act.
As with any other claim brought under 42 U.S.C. § 1983, to
succeed, an inmate must demonstrate a causal connection between the
prison official’s conduct and the Eighth Amendment violation.
Kendry appears to base his failure to protect claim solely on the
fact that Barnes denied him protective management status, not that
Barnes possessed subjective knowledge of a serious risk of harm
before the attack and was indifferent to that risk. Kendry has
neither provided any facts showing that Barnes disregarded a known
risk of serious harm by failing to respond to it in a reasonable
manner nor that Barnes’ denial of Kendry’s request for postincident protection caused Kendry to endure any pain or suffering
violative of the Eighth Amendment.
24
Moreover, as to Kendry’s assertion that Barnes denied him
medical care, Kendry’s allegations show that he was taken to the
medical department immediately after the alleged assault where a
captain directed a nurse to treat and document all visible and nonvisible wounds. Kendry knew that he could request additional
medical attention pursuant to the established sick call procedures.
Kendry has provided no facts showing that Barnes was deliberately
indifferent to his serious medical needs. For these reasons, the
Motion to Dismiss as to Plaintiff’s Eighth Amendment claims against
Barnes is due to be granted, and the Court will dismiss Defendant
Barnes from the action.
C. Missing Property
Defendants Kraft and Barnes assert that the Court should
dismiss Plaintiff’s Fourth and Fourteenth Amendment claims against
them because negligent or intentional deprivations of property
resulting from random, unauthorized acts of government officials do
not become constitutional violations when adequate remedies under
state
law
are
available
for
Kendry
to
seek
redress
for
the
deprivation. See Motion to Dismiss at 11 (citations omitted). They
state that the Florida Department of Corrections provides an inmate
grievance
procedure
for
challenging
misplaced
or
mishandled
property, and Florida Statutes section 768.28 provides Kendry with
a tort remedy for the alleged deprivation of property. Kendry
opposes
Defendants’
Motion
to
Dismiss.
25
See
Traverse
at
18;
Motion/Traverse at 5. He asserts that Sergeant Roach entered his
cell to retrieve a pair of pants for Kendry and told him that he
had secured Kendry’s property in his cell, see Amended Complaint at
5, but the property slip issued that same day “reveals that the
property was left unsecured on the wing and all of the Plaintiff’s
property [was] stolen,” Motion/Traverse at 5; see P. Ex. B, Inmate
Impounded Personal Property List, dated September 29, 2014.
To the extent that Kendry asserts that the Defendants deprived
him
of
due
process
for
not
replacing
his
property,
it
is
well-settled that the Due Process Clause is not offended when a
state employee intentionally deprives a prisoner of his property as
long as the State provides him with a meaningful post-deprivation
remedy. See Hudson v. Palmer, 468 U.S. 517, 533 (1984); Parratt v.
Taylor, 451 U.S. 527 (1981); Jackson v. Hill, 569 F. App’x 697, 698
(11th Cir. 2014) (per curiam); Taylor v. McSwain, 335 F. App’x 32,
34 (11th Cir. 2009) (“Regarding deprivation of property, a state
employee’s unauthorized intentional deprivation of an inmate’s
property
does
not
violate
due
process
under
the
Fourteenth
Amendment if a meaningful postdeprivation remedy for the loss is
available.”). Kendry has an available, adequate post-deprivation
remedy under state law. “Under Florida law, [a plaintiff] can sue
the officers for the conversion of his personal property.” Jackson,
569 F. App'x at 698 (citing Case v. Eslinger, 555 F.3d 1317, 1331
(11th Cir. 2009)). Moreover, any assertion that the Defendants were
26
grossly negligent when they failed to ensure that his property was
replaced or returned does not rise to the level of a Fourteenth
Amendment violation. See Maddox v. Stephens, 727 F.3d 1109, 1119
(11th Cir. 2013) (stating mere negligence does not rise to the
level of a substantive due process violation).
To the extent that Kendry complains about the Defendants’
negligent acts and unprofessional conduct in moving and storing his
property, the law is well-settled that the Constitution is not
implicated by the negligent acts of prison officials. Daniels v.
Williams, 474 U.S. 327, 330-31 (1986); Davidson v. Cannon, 474 U.S.
344, 348 (1986) (“As we held in Daniels, the protections of the Due
Process Clause, whether procedural or substantive, are just not
triggered by lack of due care by prison officials.”). Consequently,
the allegedly negligent conduct of which Kendry complains does not
rise to the level of a federal constitutional violation and
provides no basis for relief in this 42 U.S.C. § 1983 action.
Therefore, Defendants’ Motion to Dismiss as to Kendry’s Fourth and
Fourteenth Amendment claims against Kraft and Barnes for Kendry’s
missing property is due to be granted.
D. Eleventh Amendment
Defendants Kraft and Barnes request that the Court dismiss
Kendry’s claims for monetary damages against them in their official
capacities. See Motion to Dismiss at 12. Kendry opposes Defendant’s
request and states that he is entitled to monetary damages against
27
them in their official and individual capacities. See Traverse at
20; Motion/Traverse at 5. In Zatler v. Wainwright, 802 F.2d 397,
400 (11th Cir. 1986) (per curium), the Eleventh Circuit noted:
It is clear that Congress did not intend
to abrogate a state’s eleventh amendment
immunity in section 1983 damage suits. Quern
v. Jordan, 440 U.S. 332, 340-45, 99 S.Ct.
1139,
1144-45,
59
L.Ed.2d
358
(1979).
Furthermore,
after
reviewing
specific
provisions of the Florida statutes, we
recently concluded that Florida’s limited
waiver of sovereign immunity was not intended
to encompass section 1983 suits for damages.
See Gamble, 779 F.2d at 1513-20.
Accordingly, in Zatler, the court found that the Secretary of the
Florida Department of Corrections was immune from suit in his
official capacity.
damages
from
capacities,
Id.
Defendants
the
Thus, insofar as Kendry seeks monetary
Kraft
Eleventh
and
Barnes
Amendment
bars
in
their
suit.
official
Therefore,
Defendants’ Motion to Dismiss with respect to Kendry’s claims for
monetary damages against them in their official capacities is due
to be granted because they are absolutely immune from such damages
in their official capacities.
VII. Abuse of the Judicial Process
Defendants Kraft, Barnes and Todd request that the Court
dismiss this case as malicious for Kendry’s abuse of the judicial
process when he omitted information about his previously-filed
federal cases and denied knowledge of those cases. See Motion for
Sanctions at 1, 3, 7; Todd’s Motion at 9-10. Defendants submit the
28
Declaration of Albert Carl Maier, M.D. (Maier’s Declaration; Doc.
42-1) in support of their request. Dr. Maier avers:
Mr. Kendry has not taken any medications which
would substantially impact his memory. Mr.
Kendry’s
prescription
for
Prozac
could
potentially impact his ability to concentrate,
but the use of that drug would not result in
memory loss.
Dr. Maier’s Declaration at 1, ¶ 3. Kendry opposes the dismissal of
his case and asserts that the alleged abuse of the judicial process
has been cured by his filing of an Amended Complaint. Response at
5; Motion/Traverse at 3.
A brief chronology follows. Kendry initiated this action in
state court by filing a Complaint. In the Complaint, Kendry omitted
his previously-filed federal lawsuits, including those dismissed as
frivolous, malicious or for failure to state a claim. See Complaint
(Doc. 2) at 2. After the Defendants removed the case from state
court, this Court directed Kendry to file a declaration addressing
why
he:
(1)
initially
failed
to
provide
the
pertinent
case
information relating to his prior federal cases; (2) later asserted
that he did not file the five federal cases, but that those cases
may have been filed by family members; and (3) elected to file an
amended complaint to correct the deficiencies and avoid subjecting
himself to possible sanctions. See Order (Doc. 35) at 3-4, ¶ 8
(citation omitted). In accordance with the Court’s directive,
Kendry filed a Sworn Affidavit (Kendry's Affidavit; Doc. 38) on
October 15, 2015. In Kendry's Affidavit, he asserts that he has
29
been taking psychotropic medications and suffers memory loss. See
Kendry's Affidavit at 3. He acknowledges his five previously-filed
federal cases, and states that he failed to reveal the cases and
later
denied
knowledge
of
the
cases
due
to
the
effects
of
“powerfully mind altering medications.” Id. at 7.
Given the record, including the fact that Kendry has filed an
Amended Complaint that lists his previously-filed federal cases,
see
Amended
Complaint
at
2,
and
that
Kendry
has
asserted
“progressive memory loss” from the alleged beating, see Amended
Complaint at 5; Complaint at 5; see also Kendry's Affidavit at 3,
Defendants Kraft, Barnes and Todd’s request to dismiss the case as
malicious due to Kendry’s abuse of the judicial process are due to
be denied. Nevertheless, the Court will admonish Kendry in Section
IX of this Order.
VIII. Plaintiff’s Motion for Summary Judgment
Kendry asserts that summary judgment should be granted in his
favor “for damages for the prolonged pain and suffering in the
complaint.” Motion/Traverse at 5. Defendants Kraft and Barnes
responded
in
opposition
to
Plaintiff’s
Motion/Traverse.
See
Response in Opposition to Plaintiff’s Motion for Summary Judgment
(Doc. 52). They assert that Kendry’s motion for summary judgment
should be denied without prejudice as premature, see id. at 1-2,
because they “have not conducted discovery necessary to present
facts essential to opposing Plaintiff’s allegations,” see id. at 3,
30
and this Court agrees. At this stage of the litigation, Plaintiff
has failed to show that he is entitled to summary judgment as a
matter of law based on undisputed material facts. Therefore,
Plaintiff’s motion for summary judgment is due to be denied without
prejudice to his right to refile a motion for summary judgment
after further development of the record.
IX. Notice to Plaintiff
While the Court will not dismiss Kendry’s case as a sanction
for abuse of the judicial process, Kendry should be mindful of the
following directives in approaching the Court and filing documents
for the Court’s consideration. The Court has the authority to
control and manage matters such as this pending before it. The
Court firmly believes that Plaintiff, like other litigants before
the Court, must conform to acceptable standards. This Court will
not tolerate incomplete, misleading, or false responses and/or
statements
in
any
pleading
or
motion
filed
for
the
Court’s
consideration. If the Court cannot rely on the statements and/or
responses made by the parties, it threatens the quality of justice.
Therefore, it is now
ORDERED:
1.
is
Defendants Kraft and Barnes’ Motion to Dismiss (Doc. 39)
GRANTED
as to Defendants’ request that the Court dismiss
Plaintiff’s:
deliberate
(1)
Eighth
indifference
Amendment
to
Kendry’s
31
claims
needs
against
for
Barnes
for
protection
and
medical care; (2) Fourth and Fourteenth Amendment claims against
Kraft and Barnes for Kendry’s missing property; and (3) claims for
monetary
damages
capacities.
The
against
Motion
Kraft
to
and
Dismiss
Barnes
is
in
DENIED
their
as
official
moot
as
to
Defendants’ request that the Court dismiss Plaintiff’s state law
claims for negligence or gross negligence against Kraft and Barnes
in their individual and official capacities pursuant to Florida
Statutes section 768.28(9)(a).
2.
Defendant Warden M. Barnes is DISMISSED. Judgment to that
effect will be withheld pending adjudication of the action as a
whole. See Fed. R. Civ. P. 54.
3.
Defendant
Kathy
Todd’s
Motion
to
Dismiss
or,
Alternatively, for Summary Judgment (Doc. 40) is GRANTED to the
extent
that
summary
judgment
is
entered
in
her
favor
as
to
Plaintiff’s Eighth Amendment claim. Judgment to that effect will be
withheld pending adjudication of the action as a whole. See Fed. R.
Civ. P. 54.
4.
Defendant Todd’s request to dismiss the case for Kendry’s
abuse of the judicial process (Doc. 40) is DENIED.
5.
Defendants Kraft and Barnes’ Motion for Sanctions (Doc.
42) is DENIED.
32
6.
Plaintiff’s Motion for Summary Judgment (Doc. 48) is
DENIED without prejudice to his right to refile a motion for
summary judgment after the Court sets deadlines for discovery and
the filing of dispositive motions.
DONE AND ORDERED at Jacksonville, Florida, this 25th day of
August, 2016.
sc 8/23
c:
Simmie Kendry, FDOC #102106
Counsel of Record
33
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