Cooper, Jr. v. Florida Department of Corrections, et al.,

Filing 73

ORDER granting 44 the FDOC's Motion to Dismiss and directing the Clerk to terminate the FDOC as a party; granting 57 Corizon's Motion to Dismiss for Failure to State a Claim; granting 60 Defendants Massee, Sailee, Saylor, Doe TA, Bickerstaff, Burnett, Guitherman, Phillips, Stephen, and Powell's Motion to Dismiss; granting 71 Warden Freeman's Motion to Dismiss; dismissing without prejudice Plaintiff's claims against Corizon, Warden Freeman, and Defendants Mass ee, Sailee, Saylor, Doe TA, Bickerstaff, Burnett, Guitherman, Phillips, Stephen, and Powell; granting Plaintiff leave to amend his complaint, which he must do within twenty-one days; dismissing with prejudice Plaintiff's claims against Baker County pursuant to 59 the joint stipulation for dismissal. Signed by Judge Brian J. Davis on 7/27/2020. (KLC)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
KEITH LAVON COOPER, JR.,
Plaintiff,
v.

Case No. 3:19-cv-309-J-39MCR

FLORIDA DEPARTMENT OF
CORRECTIONS, et al.
Defendants.
_______________________________
ORDER
I. Status
Plaintiff, Keith Lavon Cooper, Jr., is proceeding on a third
amended complaint (Doc. 34; TAC), filed by private counsel. All
served Defendants have moved to dismiss the complaint (Docs. 44,
57, 60, 71).1
II. Motion to Dismiss Standard
“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); see also Lotierzo v. Woman’s World Med. Ctr.,
Inc., 278 F.3d 1180, 1182 (11th Cir. 2002). “A claim has facial
plausibility when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant is

Plaintiff and Defendant Baker County filed a joint
stipulation for dismissal with prejudice of Defendant Baker County
(Doc. 59).
1

liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. A
plaintiff

should

allege

enough

facts

“to

raise

a

reasonable

expectation that discovery will reveal evidence” supporting the
plaintiff’s claims. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556
(2007).
Though detailed factual allegations are not required, Federal
Rule of Civil Procedure 8(a) demands “more than an unadorned, thedefendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at
678. As such, a plaintiff may not rely on “[t]hreadbare recitals
of the elements of a cause of action, supported by mere conclusory
statements.” Gill, 2019 WL 5304078, at *2 (quoting Iqbal, 556 U.S.
at 678). Rather, the well-pled allegations must nudge the claim
“across the line from conceivable to plausible.” Twombly, 550 U.S.
at 570. In assessing the sufficiency of a complaint, all reasonable
inferences should be drawn in favor of the plaintiff. See Iqbal,
556 U.S. at 678.
III. Complaint Allegations
Plaintiff’s claims arise out of an incident that occurred on
April 30, 2015, at the Baker Correctional Center (the work camp).
See TAC ¶¶ 40, 59, 72. According to Plaintiff, up to twenty-two
other inmates, who were associated with a prison gang called the
“Cutthroats,” were impermissibly granted access to Plaintiff’s
housing unit and beat him to unconsciousness inside his cell while
corrections officers watched. Id. ¶¶ 51, 71-75. Plaintiff alleges
the gang-member inmates attacked him as retribution for falling
2

behind

on

extortion

payments

demanded

by

the

head

of

the

Cutthroats, the “Terrorizer.”2 Id. ¶¶ 51-55.
Plaintiff alleges he avoided other attempted gang attacks
prior to the one that is the subject of his complaint. One day in
April, a gang-member inmate attempted to strike Plaintiff with a
lock in a sock, but Plaintiff was able to defend himself. Id. ¶¶
56, 57. Later in the week, Plaintiff avoided an attack by three
gang members. Id. ¶ 58. On the day of the attack that is the
subject of the complaint, four gang members surrounded Plaintiff
in the yard, but Plaintiff “was able to fight [them] off.” Id. ¶¶
60, 61, 64. Plaintiff alleges the officer-Defendants “were within
the vicinity, could observe the attack [in the yard], and did
nothing.” Id. ¶ 62. The subject attack occurred shortly after the
incident in the yard, after officers allowed the gang-member
inmates to enter his housing unit even though they were not
residents of that unit and should not have gained access. Id. ¶¶
66-70. The gang-member inmates entered with weapons, “including
locks, a plexiglass knife, and an ice pick.” Id. ¶ 70.
After

the

attack,

Plaintiff

was

air-lifted

to

Shands

Hospital. Id. ¶ 89. He was discharged the following day. Id. ¶ 90.

Plaintiff spells this inmate’s nickname as both “Terrorizer”
and “Terrorizor.” See TAC ¶¶ 51, 52. The Court will use the former,
correct spelling.
2

3

Plaintiff

sustained

“brain

trauma,

including

4mm

of

brain

hemorrhaging and a right partial fracture of his skull.” Id. ¶ 91.
Upon his return to Baker Correctional, Plaintiff was housed in the
medical unit, though he did not see a doctor for three days. Id.
¶¶ 92-94. At that time, the Baker Correctional doctor ordered
Plaintiff’s transfer to Taylor Correctional Institution (TCI). Id.
¶ 94. Plaintiff’s medical records were not transported with him,
and officials at TCI placed Plaintiff in solitary confinement
despite his physical condition and inability to walk. Id. ¶ 9597. Officers at TCI “threatened [Plaintiff] in an attempt to get
him to walk or move,” which caused Plaintiff to urinate on himself.
Id. ¶¶ 98, 99. When Plaintiff requested medical attention, he was
taken to the infirmary. Id. ¶¶ 101, 102.
About three weeks later, Plaintiff had an MRI at Tallahassee
Memorial Hospital, and he was told “to see a neurologist in 2
days.” Id. ¶ 103. Plaintiff was subsequently sent back to TCI where
he remained for weeks without seeing a neurologist. Id. ¶ 104. A
second MRI was completed at the Reception and Medical Center, which
revealed Plaintiff had a pinched nerve or swelling in his brain.
Id. ¶ 105. Plaintiff alleges he developed cysts and bed sores, and
due to the alleged inadequate medical care, his “injuries [from
the attack] were exacerbated, took longer to heal, and became more
complicated.” Id. ¶ 106, 107. Plaintiff attributes the following
injuries to the attack:
4

hand, arm and leg pain, lacerations to his
head, deformity to his eyebrow, multiple stab
wounds to his arm and head, bruising and
injury to his rib cage and upper back,
abrasions to his legs, nasal bone fracture
requiring surgery, paralysis of his legs and
lower extremities requiring physical therapy,
numbness in his lower extremities, headaches,
complications with his eyesight including
blurred vision and a parietal fracture, brain
trauma, and the inability to be mobile without
a wheelchair.
Id. ¶115.
Plaintiff sues the Florida Department of Corrections (FDOC),
ten officers of different rank, the Warden of Baker Correctional,
and the contract medical provider for the FDOC, Corizon Health,
Inc. In Count I, Plaintiff alleges the officer-Defendants and
Warden Freeman were deliberately indifferent to a serious risk of
bodily harm. Id. ¶¶ 124-28. Plaintiff alleges the officers’ and
Warden’s “failure to stop or take action to stop the unlawful
assaults, attacks, injuries, and abuse constituted deliberate
indifference to the known and obvious consequences of violating
Plaintiff’s constitutional rights and causing him great bodily
injury.” Id. ¶ 129.
Plaintiff asserts Defendants (as a group) failed to take
measures to ensure Plaintiff’s safety and failed to intervene
during the attack. Id. ¶131. Additionally, Plaintiff alleges the
following acts or omissions contributed to the attack: failing to
protect inmates generally and Plaintiff in particular from gang

5

violence; failing to check identification before inmates enter
housing units and permitting inmates to enter units in which they
do not reside; failing to check inmates for weapons; failing to
intervene during inmate-on-inmate violence; and failing to “inform
guards

or

take

any

precautionary

action

after

observing

gangmembers [sic] attack an inmate.” Id.
In

Count

II,

Plaintiff

alleges

all

Defendants

were

deliberately indifferent to Plaintiff’s serious medical needs by
(1) delaying needed treatment for up to three days at Baker
Correctional and (2) failing to send Plaintiff’s medical records
to TCI, which resulted in additional delays in receiving treatment.
Id. ¶¶ 140-42, 145, 146.
In Count III, Plaintiff alleges the officer-Defendants and
Warden Freeman were deliberately indifferent to a serious risk of
harm by the acts and omissions referenced in Count I, including
allowing unregistered inmates access to Plaintiff’s housing unit
with weapons knowing the inmates planned to attack Plaintiff.
In Count IV, Plaintiff alleges the FDOC maintained “customs,
practices,
indifference

and/or
to

the

policies,”

and

foreseeable

“acted

effects”

practices, and policies. Id. ¶¶ 168, 170.

6

with
of

deliberate

those

customs,

IV. Analysis
A. The FDOC’s Motion
The FDOC seeks dismissal of the sole Count against it, Count
IV, asserting the FDOC is not a “person” amenable to suit under §
1983 and the Eleventh Amendment bars the claim (Doc. 44; FDOC
Motion). In response (Doc. 46; Pl. FDOC Resp.), Plaintiff contends
the FDOC fails to demonstrate “whether the State of Florida
structured the FDOC meaning for it to be under the immunity Florida
enjoys.” Pl. FDOC Resp. at 4.
Plaintiff’s argument is unconvincing. The state of Florida
and agencies of the state, including the FDOC, are not persons
under § 1983 subject to monetary liability. See Gardner v. Riska,
444 F. App’x 353, 355 (11th Cir. 2011) (quoting Edwards v. Wallace
Cmty. Coll., 49 F.3d 1517, 1524 (11th Cir.1995)). See also Will v.
Michigan Dep’t of State Police, 491 U.S. 58 (1989) (“[N]either a
State nor its officials acting in their official capacities are
‘persons’ under § 1983.”). Accordingly, the FDOC is due to be
dismissed.
B. Corizon’s Motion
Corizon seeks dismissal on the ground that Plaintiff fails to
allege facts demonstrating a causal connection between Plaintiff’s
injuries and any action or inaction by Corizon (Doc. 57; Corizon
Motion).

Specifically,

Corizon

maintains

Plaintiff

does

not

identify a Corizon employee who was deliberately indifferent to
7

Plaintiff’s serious medical needs and does not identify a custom,
policy, or practice of Corizon’s that caused Plaintiff harm.
Corizon Motion at 7, 10. Corizon also asserts Plaintiff’s complaint
is facially deficient as a “shotgun” pleading because Plaintiff
“lumps the Defendants together” and does not specify what acts or
omissions of each Defendant caused Plaintiff’s injuries. Id. at 24.
In response (Doc. 58; Pl. Corizon Resp.), Plaintiff contends
he states a claim for deliberate indifference against Corizon
because he alleges his medical care at Baker Correctional was
delayed for three days, and he was sent to TCI without medical
documentation,

resulting

in

additional

treatment

delays.

Pl.

Corizon Resp. at 3-4, 6-7. Plaintiff further says he alleges
Corizon adopted a policy or custom of “failing to provide medical
care to inmates” and failing to train employees to provide medical
care and handle inmate transfers appropriately. Id. at 7.
Upon review, the Court finds Plaintiff fails to state a
plausible claim for relief against Corizon because, contrary to
Plaintiff’s contention in his response, he does not identify in
his complaint a policy or custom of Corizon’s that resulted in
delayed or inadequate medical treatment. See TAC ¶¶ 139-50. Rather,
it appears Plaintiff names Corizon merely because it is the company
that provides contract medical services for the FDOC. Even if an
individual

Corizon

employee

intentionally
8

delayed

providing

treatment for Plaintiff (which Plaintiff does not allege), a claim
against

Corizon

cannot

proceed

upon

a

theory

of

respondeat

superior. Supervisory officials, including private corporations
like Corizon, cannot be held liable under § 1983 in the absence of
allegations identifying a policy or custom that was the moving
force behind a constitutional violation. See Ross v. Corizon Med.
Servs., 700 F. App’x 914, 917 (11th Cir. 2017) (citing Craig v.
Floyd Cty., 643 F.3d 1306, 1310 (11th Cir. 2011)). See also Cottone
v. Jenne, 326 F.3d 1352, 1360 (11th Cir. 2003) (“It is well
established in this Circuit that supervisory officials are not
liable

under

§

1983

for

the

unconstitutional

acts

of

their

subordinates on the basis of respondeat superior or vicarious
liability.” (internal quotation marks omitted)).
While

systemic

deficiencies

in

a

prison

health

care’s

treatment protocol can suggest deliberate indifference, Plaintiff
does not allege systemic deficiencies. His claim is premised solely
on the adequacy of the care he received after the attack. See,
e.g., Denham v. Corizon Health, Inc., 675 F. App’x 935, 944 (11th
Cir. 2017) (holding the plaintiff failed to demonstrate municipal
liability because her “claim that Corizon had a custom of providing
inadequate medical care” was based solely on her own experiences,
which

constituted

“at

most,

proof

of

a

single

incident

of

unconstitutional activity”) (quoting Craig v. Floyd Cty., Ga., 643
F.3d 1306, 1312 (11th Cir. 2011)).
9

Not

only

deficiencies

in

does

Plaintiff

Corizon’s

fail

treatment

to

identify

protocol,

he

received immediate medical attention. According to

systemic

alleges

he

Plaintiff,

prison officials arranged for him to be air-lifted to the hospital
and, upon his return to Baker Correctional, officials placed him
in the medical unit where, presumably, he was under the care of
medical professionals. That Plaintiff believes he should have seen
a prison doctor immediately after he was released from the hospital
does not, by itself, permit the inference that Corizon had a policy
or custom of delaying medical care for inmates. See id. Cf. Ancata
v. Prison Health Servs., Inc., 769 F.2d 700, 705-06 (11th Cir.
1985) (holding the plaintiff stated a deliberate indifference
claim against the municipality because he alleged the municipality
“established or utilized a policy or custom requiring that inmates
needing medical assistance obtain court orders,” which resulted in
a delay in necessary treatment).
In fact, Plaintiff’s subjective belief that a doctor should
have visited him sooner suggests a disagreement with medical
treatment, not deliberate indifference. See Waldrop v. Evans, 871
F.2d 1030, 1033 (11th Cir. 2007). Hamm v. DeKalb Cty., 774 F.2d
1567, 1575 (11th Cir. 1985) (“Where a prisoner has received . . .
medical attention and the dispute is over the adequacy of the
treatment, federal courts are generally reluctant to second guess
medical judgments and to constitutionalize claims that sound in
10

tort law.” (quoting with alteration Westlake v. Lucas, 537 F.2d
857, 860 n.5 (1st Cir. 1981))). While it certainly appears there
was a breakdown in communication when Plaintiff was sent to TCI
without

records

Plaintiff

alerting

asserts

no

officials

facts

to

his

suggesting

medical

such

condition,

oversight

was

attributable to a Corizon policy or custom. Indeed, he does not
even attribute the oversight to a Corizon employee. Accordingly,
Plaintiff fails to state a plausible claim for relief against
Corizon.
C. The Officers’ Motion
The

officer-Defendants

invoke

qualified

immunity

for

Plaintiff’s failure to state a claim against them (Doc. 60; Officer
Motion).

They

also

argue

Plaintiff

fails

to

assert

specific

allegations against each officer individually but rather asserts
general allegations against them collectively.3 Officer Motion at
8-9.
In response (Doc. 61; Pl. Officer Resp.), Plaintiff argues
the officers are not entitled to qualified immunity because he

The officer-Defendants also argue Plaintiff fails to “go
beyond typical notice pleading and meet a heightened pleading
standard.” Officer Motion at 7. As articulated by the Supreme Court
in Iqbal and Twombly, notice-pleading is the standard. See Iqbal,
556 U.S. at 678-79; Twombly, 550 U.S. at 555. See also Randall v.
Scott, 610 F.3d 701, 709 (11th Cir. 2010) (“Pleadings for § 1983
cases involving defendants who are able to assert qualified
immunity as a defense shall now be held to comply with the
standards described in Iqbal.”).
3

11

alleges the violation of a clearly established constitutional
right under the Eighth Amendment (e.g., deliberate indifference).
Pl. Officer Resp. at 6-7, 8.
Upon review, the Court finds Plaintiff fails to put the
officers on notice of the claims against them and the factual basis
for those claims. In his general allegations, Plaintiff says the
officer-Defendants observed the attack from the security room and
failed to stop it, which suggests he proceeds under a failure-tointervene theory. Accepting these facts as true, Plaintiff states
a claim against the officer-Defendants solely to the extent they
observed

an

attack

and

failed

to

intervene.

But

it

appears

Plaintiff also seeks to advance a failure-to-protect theory of
liability against the officer-Defendants based on events that
preceded the attack or based on general conditions at the prison.
Plaintiff’s allegations as to what each officer knew and what each
officer did, however, are unclear.
For instance, in Counts I and III, in addition to alleging
the officers failed to intervene during the attack, Plaintiff lists
a series of other acts or omissions against the officers as a
group, which he contends demonstrates their “reckless disregard”
for his safety: failing to protect inmates generally from prison
gangs;

failing

to

check

identification

before

inmates

enter

housing units; affirmatively permitting unregistered inmates into
housing units; failing to check inmates for weapons; and failing
12

to ensure inmates did not have access to items that could be used
as weapons.4
Plaintiff attributes these acts or omissions to the officerDefendants

collectively;

he

makes

no

distinction

between

the

officers. But whether a defendant had subjective knowledge of a
risk of serious harm necessarily depends on what that defendant
knew; “[i]mputed or collective knowledge cannot serve as the basis
for a claim of deliberate indifference.” Nam Dang by & through
Vina Dang v. Sheriff, Seminole Cty. Fla., 871 F.3d 1272, 1280 (11th
Cir. 2017). Thus, Plaintiff must allege not only that he faced a
substantial risk of serious harm but also that

the officer-

Defendants, individually, not collectively, “subjectively knew of
the substantial risk of serious harm and . . . knowingly or
recklessly disregarded that risk.” See Goodman v. Kimbrough, 718
F.3d 1325, 1332 (11th Cir. 2013) (quoting Hale v. Tallapoosa Cty.,
50 F.3d 1579, 1583 (11th Cir. 1995)).
Significantly, Plaintiff does not explicitly say the officers
who observed the attack in his cell were the ones who permitted

Moreover, in his response to the officer-Defendants’ motion,
Plaintiff says he “has pled that Defendant Officers had knowledge
of his previous attack the week before,” and Plaintiff cites case
law suggesting he pursues a failure-to-protect theory. Pl. Officer
Resp. at 7, 9 (emphasis added) (citing Bowen v. Warden Baldwin
State Prison, 826 F.3d 1312, 1324-25 (11th Cir. 2016). Nowhere in
Plaintiff’s complaint does he allege the officer-Defendants
observed or otherwise had knowledge of an attempted attack the
week before April 30, 2015.
4

13

the gang-member inmates to enter Plaintiff’s housing unit knowing
those

inmates

intended

to

harm

Plaintiff.

Even

more,

while

Plaintiff certainly implies the officer-Defendants saw the failed
attack in the yard just before the attack inside the cell occurred
(saying the officers were “within the vicinity, [and] could observe
the attack”), he does not affirmatively allege the officers did
see the attack and, if they did, also permitted those same inmates
to then impermissibly enter Plaintiff’s housing unit with weapons
in hand.
To the extent Plaintiff intends to premise his theory of
liability on the notion that gang violence at Baker Correctional
was rampant but ignored (i.e., Plaintiff alleges Defendants failed
to “protect inmates from threats and coercion from prison gangs”),
he references no other instances of gang violence aside from the
few directed at him. He also does not allege the officer-Defendants
knew the Terrorizer had been extorting payments from him or that
gang-member inmates had threatened him when he fell behind on those
payments.
Finally, as to Count II, Plaintiff fails to allege how each
officer-Defendant,

individually,

failed

or

refused

to

obtain

medical treatment for him. Plaintiff’s assertion that the officers
were deliberately indifferent to his serious medical need amounts
to no more than “an unadorned, the-defendant-unlawfully-harmed-me
accusation.” Iqbal, 556 U.S. at 678. Additionally, Plaintiff’s
14

factual allegations belie his suggestion that his medical needs
were ignored. He acknowledges he was immediately air-lifted to the
hospital following the attack and, when he returned to Baker
Correctional, he was housed in the medical unit.
Even assuming Plaintiff should have seen a doctor immediately
when

he

returned

to

Baker

Correctional,

Plaintiff

does

not

attribute the delay to any individual officer-Defendant. He also
does not allege any officer-Defendant was responsible for sending
his medical documentation to TCI but intentionally failed or
refused to do so. And three days after his release from the
hospital, Plaintiff was transferred to TCI. See TAC ¶ 94. The Baker
Correctional officers cannot be held to account for any lapse in
medical care that occurred after his transfer.
In light of the above, the Court finds Plaintiff’s allegations
against the officer-Defendants fail to put them on notice of the
nature of the claims against them.5 If the officer-Defendants are
to be expected to answer the complaint, they must have notice of

The lack of clarity of Plaintiff’s claims and factual
allegations is compounded by the fact that each Count incorporates
all prior paragraphs, including those of the preceding Counts.
Such practice generally is condemned as a “shotgun” approach to
pleading. Weiland v. Palm Beach Cty. Sheriff’s Office, 792 F.3d
1313, 1321 (11th Cir. 2015) (describing the most common type of
shotgun pleading as one in which “each count adopts the allegations
of all preceding counts, causing each successive count to carry
all that came before and the last count to be a combination of the
entire complaint”).
5

15

the claims against them and the factual allegations that form the
basis of those claims.
D. Warden Freeman’s Motion
Warden Freeman contends any claim against him in his official
capacity is barred under the Eleventh Amendment (Doc. 71; Warden
Motion).6 As to claims against him in his individual capacity,
Warden Freeman notes Plaintiff asserts no allegations against him,
and he invokes qualified immunity. Warden Motion at 7, 9-10, 12.
In response (Doc. 72; Pl. Warden Resp.), Plaintiff first notes the
motion is untimely because Warden Freeman filed it more than
twenty-one days after he was served, and Plaintiff says the motion,
therefore,

should

be

stricken.

Pl.

Warden

Resp.

at

2,

6.7

Additionally, Plaintiff asserts Warden Freeman is not entitled to
qualified immunity because Plaintiff alleges Warden Freeman knew
Plaintiff was in danger but failed to protect him. Id. at 7-8.
Contrary to Plaintiff’s contention in his response, he does
not allege Warden Freeman knew he was in danger and failed to

Plaintiff clarifies he sues Warden Freeman solely in his
individual capacity. See Pl. Warden Resp. at 5 n.1. Thus, Warden
Freeman’s motion is moot in this regard.
6

Warden Freeman was served on October 2, 2019 (Doc. 52). He
did not file his motion until May 4, 2020. Even though Warden
Freeman’s motion to dismiss is untimely, Plaintiff’s request that
it be stricken is not properly before the Court. See Fed. R. Civ.
P. 7(b) (requiring requests for relief to be made by motion).
Additionally, the Court notes Plaintiff did not move for default
against Warden Freeman.
7

16

protect him. In fact, Plaintiff attributes absolutely no factual
allegations to Warden Freeman. To the extent Plaintiff names the
Warden solely because of the title he holds, Plaintiff fails to
state a viable claim for relief under § 1983. See Cottone, 326
F.3d at 1360. Supervisor liability arises only “when the supervisor
personally participates in the alleged constitutional violation or
when there is a causal connection between the actions of the
supervising official and the alleged constitutional deprivation.”
Mathews v. Crosby, 480 F.3d 1265, 1270 (11th Cir. 2007) (quoting
Cottone, 326 F.3d at 1360). See also Reid v. Sec’y, Fla. Dep’t of
Corr., 486 F. App’x 848, 852 (11th Cir. 2012) (affirming summary
judgment in favor of a defendant sued “only in his supervisory
capacity” because the plaintiff asserted no allegations that the
defendant participated in the action or that he was causally
responsible for any violations).
Plaintiff

alleges

no

facts

demonstrating

Warden

Freeman

personally participated in the alleged constitutional violations,
nor does he allege facts otherwise demonstrating the requisite
causal

connection.

Plaintiff’s

conclusory

assertions

do

not

suffice. See Tani v. Shelby Cty., Ala., 511 F. App’x 854, 857 (11th
Cir. 2013) (affirming dismissal of a complaint that alleged, as
labels

and

conclusions,

violations

of

various

constitutional

rights with no supporting facts to “explain what actions caused
which violations”).
17

V. Leave to Amend
Because Plaintiff fails to adequately set forth his claims
against Corizon, the officer-Defendants, and Warden Freeman, their
motions are due to be granted. However, in response to all motions,
Plaintiff requests leave to amend his complaint. Pl. Corizon Resp.
at 9; Pl. Officer Resp. at 12; Pl. Warden Resp. at 10. Accordingly,
the Court will permit Plaintiff an opportunity to amend his
complaint as to the claims against Corizon, the officers, and
Warden Freeman. See Wagner v. Daewoo Heavy Indus. Am. Corp., 314
F.3d

541,

542

(11th

Cir.

2002).8

In

amending

his

complaint,

Plaintiff must cure the deficiencies noted in this Order, and he
must satisfy federal pleading standards.
As to the officer-Defendants, Plaintiff must clarify whether
he asserts solely a deliberate indifference claim for the officers’
failure to intervene when they observed the April 30, 2015 attack,
or whether he also asserts the officers knew he was at risk of
being

attacked

by

gang-member

inmates

and

failed

to

take

appropriate steps to protect him. If Plaintiff pursues the latter
theory of liability, he must allege facts demonstrating each
officer had subjective knowledge that Plaintiff faced a risk of
serious harm and, in the face of such knowledge, failed to respond
to the risk in an objectively reasonable manner. As to either

Plaintiff may not amend his claim against the FDOC, however,
because any such amendment would be futile.
8

18

theory, Plaintiff should omit extraneous factual allegations and
avoid asserting mere conclusions devoid of factual support. If
Plaintiff intends to pursue a claim against the officer-Defendants
for deliberate indifference to his serious medical needs, he must
allege facts respecting all material elements of such a claim.
Conclusory assertions will not suffice.
As to Corizon and Warden Freeman, Plaintiff should assess the
facts and law to determine whether he has a plausible basis upon
which to proceed.
Accordingly, it is now
ORDERED:
1.

The FDOC’s motion to dismiss Count IV of Plaintiff’s

Third Amended Complaint (Doc. 44) is GRANTED.
2.

Plaintiff’s claims against the FDOC are dismissed. The

Clerk is directed to terminate the FDOC as a Defendant.
3.

Corizon’s motion to dismiss (Doc. 57) is GRANTED to the

extent Plaintiff fails to state a claim for relief against Corizon.
4.

Defendants Massee, Sailee, Saylor, Doe TA, Bickerstaff,

Burnett, Guitherman, Phillips, Stephen, and Powell’s motion to
dismiss (Doc. 60) is GRANTED to the extent Plaintiff fails to
adequately set forth his claims against these Defendants.
5.

Warden Freeman’s motion to dismiss (Doc. 71) is GRANTED

to the extent Plaintiff fails to state a claim for relief against
the Warden.
19

6.

Plaintiff’s

officers,

and

Warden

claims
Freeman

against
are

Defendants

dismissed

Corizon,

without

the

prejudice

subject to his right to amend his complaint. Plaintiff shall submit
an amended complaint within twenty-one days of the date of this
Order. Plaintiff’s failure to properly set forth his claims against
any Defendant may result in the dismissal of those claims.
7.

Pursuant to the joint stipulation for dismissal (Doc.

59), Plaintiff’s claims against Baker County are dismissed with
prejudice. The Clerk is directed to terminate Baker County as a
Defendant.
DONE AND ORDERED at Jacksonville, Florida, this 27th day of
July 2020.

Jax-6
c:
Counsel of Record

20