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

Filing 87

ORDER denying as moot 74 Plaintiff's Motion to Compel discovery; denying 78 Defendant Corizon's Motion to Dismiss; denying 79 Defendant Freeman's Motion to Dismiss; denying 83 Defendants Bickerstaff, Burnett, Guitherman, Ma ssee, Phillips, Powell, Sailee, Saylor, and Stephen's Motion to Dismiss; granting 86 Plaintiff's Motion for Extension of Time to Complete Discovery; sua sponte extending all deadlines; see Order for details. Signed by Judge Brian J. Davis on 11/10/2020. (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
Plaintiff, Keith Lavon Cooper, Jr., through counsel, filed a fourth
amended complaint on August 17, 2020 (Doc. 75; FAC). As more fully set forth
in the Court’s Order granting Defendants’ motions to dismiss Plaintiff’s third
amended complaint (Doc. 73; Order), Plaintiff’s claims arise out of an incident
that occurred on April 30, 2015, at the work camp at Baker Correctional
Center. See FAC ¶¶ 32, 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 where they beat
Plaintiff to unconsciousness in retribution for falling behind on extortion
payments demanded by the head of the Cutthroats, “the Terrorizer.” Id. ¶¶ 43-

45, 48, 62, 65-67, 72-74. Plaintiff alleges corrections officers and the Warden
could see the attack but did nothing to stop it. Id. ¶¶ 75-78.
Defendants Corizon, Freeman, Bickerstaff, Burnett, Guitherman,
Massee, Phillips, Powell, Sailee, Saylor, and Stephen, in three separate
motions (Docs. 78, 79, 83), move to dismiss the claims against them. Plaintiff
has responded to the motions to dismiss (Docs. 81, 82, 85).
Upon review, the Court finds Plaintiff has adequately resolved the
pleading deficiencies the Court identified in its Order granting Defendants’
motions to dismiss Plaintiff’s third amended complaint. First, the Court
previously found Plaintiff failed to state a claim for relief against Corizon
because Plaintiff did not identify a policy or custom that caused Plaintiff’s
injuries, nor did he allege a systemic deficiency in Corizon’s health care plan
for prisoners. See Order at 8-10. In Count III of his fourth amended complaint,
Plaintiff alleges Corizon acted pursuant to an “adopted official policy or a
longstanding practice or custom,” and he explicitly identifies thirteen allegedly
“unconstitutional customs, practices and/or policies” that contributed to or
caused his injuries. See FAC ¶¶ 130-40, 173-75, 179-85.
Thus, Plaintiff’s fourth amended complaint sufficiently puts Corizon on
notice of the claim against it. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007) (“Federal Rule of Civil Procedure 8(a)(2) requires only ‘a short and plain
statement of the claim showing that the pleader is entitled to relief,’ in order
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to ‘give the defendant fair notice of what the ... claim is and the grounds upon
which it rests.’”). Plaintiff’s fourth amended complaint includes allegations
that, accepted as true, “raise a right to relief above the speculative level.” Id.
Plaintiff does not have to offer evidence or prove his claim in his complaint.
Accordingly, Corizon’s motion is due to be denied.
Second, the Court previously found Plaintiff failed to state a claim
against Defendant Freeman because Plaintiff attributed no factual allegations
to Freeman and appeared to name Freeman solely in a supervisory capacity.
See Order at 16-17. In Counts I and II of his fourth amended complaint,
Plaintiff alleges Defendant Freeman had subjective knowledge that Plaintiff
was in danger (before the gang attack and during it) yet failed to take steps to
ensure Plaintiff’s safety, and because of Defendant Freeman’s failure, Plaintiff
suffered injuries. See FAC ¶¶ 21-31.
Plaintiff alleges the following facts to support his conclusions: Defendant
Freeman knew about gang violence and contraband materials at Baker County
Correctional, id. ¶¶ 29-31; Defendant Freeman knew the Terrorizer had been
extorting payments from inmates, id. ¶ 46; Defendant Freeman knew that
another inmate was previously attacked and paralyzed by an inmate who did
not reside in but gained access to the injured inmate’s dorm, id. ¶ 93;
Defendant Freeman knew or should have known Plaintiff was attacked in the
days before the subject attack, and knew that inmates of other dorms were
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attempting to gain access to Plaintiff’s dorm to target him, id. ¶ 99; and
Defendant Freeman watched the gang-member-inmates attack Plaintiff
through closed circuit television, but did not intervene or hit the panic button
despite having had time to do so given the “length of the attack,” id. ¶¶ 78, 81.
Accepting these allegations as true, Plaintiff asserts a plausible Eighth
Amendment claim against Defendant Freeman. Because Plaintiff states a
plausible claim for relief against Defendant Freeman, Defendant Freeman is
not entitled to qualified immunity at this juncture, and his motion is due to be
denied.
Finally, the Court previously found Plaintiff stated a plausible failureto-intervene claim against the officer-Defendants but directed Plaintiff to
clarify his purported failure-to-protect claim and the factual allegations
supporting his individual claims against the officers. See Order at 12. The
Court noted the following deficiencies, among others: a failure to explicitly
allege that the officers who observed prior attacks against Plaintiff were the
ones who impermissibly granted the gang-member-attackers access to
Plaintiff’s dorm, id. at 13-14; a failure to allege the officers knew gang violence
was rampant, that the Terrorizer had been extorting payments from Plaintiff
and had threatened him for falling behind on those payments, or that Plaintiff
had recently been attacked by gang members, id. at 14; and a failure to allege

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how each officer individually failed or refused to obtain medical treatment for
Plaintiff, id.
In Counts I and II if his fourth amended complaint, Plaintiff has cured
the deficiencies with respect to the failure-to-protect and failure-to-intervene
claims.1 See FAC ¶¶ 29-31, 46, 52, 56-57, 60-64, 66-69, 71, 75-77, 79-80, 93, 9798. While Plaintiff “lumps” all Defendants together in paragraphs 152 and 162,
he incorporates by reference general factual allegations specifying what
conduct by each officer supports his claims. Plaintiff has done enough to put
the officer-Defendants on notice of the claims against them in Counts I and II.2
Accordingly, on that basis, the officer-Defendants are not entitled to qualified
immunity at this juncture, and their motion is due to be denied.3
In his response to the officer-Defendants’ motion to dismiss (Doc. 85;
Officer Resp.), Plaintiff seeks leave to amend his complaint to cure any

It appears Plaintiff does not intend to pursue a claim for deliberate
indifference to serious medical needs against the officer-Defendants. He
asserts such a claim in Count III, but the only Defendant to which that claim
is directed is Corizon. See FAC at 31.
1

To the extent these counts may be somewhat duplicative or redundant,
Defendants can explore and clarify the claims and facts supporting each claim
during discovery.
2

The officer-Defendants’ assertion that a heightened pleading standard
applies when a qualified-immunity defense is raised misstates the law. See
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 . . . comply with the standards described in Iqbal.”).
3

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deficiencies. Plaintiff’s request is moot given the Court finds Defendants’
motion is due to be denied. The Court clarifies, however, that Plaintiff is
permitted to proceed against the officer-Defendants for their failure to protect
him from the April 30, 2015 attack, or for their failure to intervene during that
attack, as stated in Counts I and II. Confusingly, in Count III (a claim for
deliberate indifference to serious medical needs against Corizon), Plaintiff
addresses the officer-Defendants’ alleged conduct in two paragraphs. For
instance, Plaintiff says the officer-Defendants delayed treatment “for up to
three days” and ignored Plaintiff’s inability to walk or stand. See FAC ¶¶ 176,
177. And in his response to the officers’ motion, Plaintiff says he alleges facts
showing the officer-Defendants were deliberately indifferent to his serious
medical needs. See Officer Resp. at 13.
It appears these allegations and argument were mistakenly retained
from prior versions of Plaintiff’s complaint and motion responses. In his fourth
amended complaint, Plaintiff names the officer-Defendants in Counts I and II
only, not in Count III. See FAC at 21-31. Indeed, Plaintiff states in his response
to Corizon’s motion (Doc. 81; Corizon Resp.) that “Corizon is the sole defendant
named in Count III of Plaintiff’s [f]ourth [a]mended [c]omplaint.” See Corizon
Resp. at 5.
Even if Plaintiff intended to assert a claim against the officerDefendants for deliberate indifference to serious medical needs, Plaintiff’s own
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allegations belie any contention that the officer-Defendants ignored his
medical needs. Plaintiff alleges he was “taken to the medical unit and then airlifted to Shands Hospital” the day of the attack, April 30, 2015, after which he
returned to Baker Correctional for three days and then was transferred to
Taylor Correctional, where he exhibited problems walking. See FAC ¶¶ 101,
102, 109-13.
The officer-Defendants, who worked at Baker Correctional, could not
have been responsible for Plaintiff’s housing conditions or medical care at a
different correctional facility. Moreover, to the extent Plaintiff received
constitutionally inadequate care during the three-day period between his
discharge from Shands and his transfer to Taylor Correctional, he does not
attribute factual allegations to the officer-Defendants that would permit the
reasonable inference they were responsible for such a violation. Id. ¶¶ 103-07.
For instance, Plaintiff does not allege the officer-Defendants saw him or
interacted with him during that three-day period. See id.
Accordingly, it is now
ORDERED:
1.

Defendant Corizon’s motion to dismiss (Doc. 78) is DENIED.

2.

Defendant Freeman’s motion to dismiss (Doc. 79) is DENIED.

3.

Defendants Bickerstaff, Burnett, Guitherman, Massee, Phillips,

Powell, Sailee, Saylor, and Stephen’s motion to dismiss (Doc. 83) is DENIED.
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4.

Defendants Corizon, Freeman, Bickerstaff, Burnett, Guitherman,

Massee, Phillips, Powell, Sailee, Saylor, and Stephen must answer Plaintiff’s
fourth amended complaint (Doc. 75) within twenty days of the date of this
Order.
5.

Plaintiff’s motion to compel discovery (Doc. 74) is DENIED as

moot.
6.

Plaintiff’s motion for an extension of the deadlines for expert

disclosure and discovery (Doc. 86) is GRANTED.
7.

In light of the extension of some deadlines, the Court sua sponte

extends all deadlines in this. The Court will enter an amended case
management and scheduling order separately. The Court expects the parties
to adhere to the amended deadlines.
DONE AND ORDERED at Jacksonville, Florida, this 10th day of
November 2020.

Jax-6
c:
Counsel of Record

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