D'Alessandro v. Lane et al
ORDER dismissing without prejudice Plaintiff's claim against Warden Christopher Lane; granting #3 Plaintiff's Motion requesting information for service as stated in the Order; directing the Clerk to terminate Defendant Lane and send Plaintiff forms; directing Plaintiff to serve the Doe Defendants by December 19, 2022, and provide certification of service by December 27, 2022. Signed by Judge Brian J. Davis on 9/19/2022. (KLC)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JOSEPH L. D’ALESSANDRO, III,
Case No. 3:22-cv-806-BJD-MCR
WARDEN CHRISTOPHER LANE,
Plaintiff, Joseph L. D’Alessandro, III, an inmate of the Florida penal
system, initiated this action pro se by filing a Civil Rights Complaint (Doc. 1;
Compl.) under 42 U.S.C. § 1983. In apparent recognition that he is a threestrikes litigant, see 28 U.S.C. § 1915(g), Plaintiff paid the filing fee in full. Even
though Plaintiff is not proceeding as a pauper, the Court has an obligation to
screen his complaint since he is a prisoner seeking “redress from a
governmental entity or officer.” See 28 U.S.C. § 1915A(a)-(b).
Plaintiff names as Defendants the warden of Florida State Prison (FSP),
Christopher Lane, and six John/Jane Does. See Compl. at 2-4. Plaintiff asserts
Defendant Jane Doe ordered a cell extraction team to remove him from a
decontamination cell even though he had already submitted to handcuffs. Id.
at 6. Plaintiff alleges the 5-man cell extraction team “beat [him] bloody” by
slamming his head into a wall and punching his “head and face over 30 times,”
while the Jane Doe Defendant did nothing to intervene. Id. Plaintiff alleges he
sustained injuries to his ears and face, including possible hearing loss in one
ear. Id. As relief, Plaintiff seeks compensatory and punitive damages. Id.
The Prison Litigation Reform Act (PLRA) requires a district court to
“dismiss [a] complaint, or any portion of [a] complaint, if [it] is frivolous,
malicious, or fails to state a claim upon which relief may be granted.” 28 U.S.C.
§ 1915A(b) (internal punctuation and numbering omitted). With respect to
whether a complaint “fails to state a claim on which relief may be granted,” the
language of the PLRA mirrors the language of Rule 12(b)(6), Federal Rules of
Civil Procedure, so courts apply the same standard in both contexts. Mitchell
v. Farcass, 112 F.3d 1483, 1490 (11th Cir. 1997). See also Alba v. Montford, 517
F.3d 1249, 1252 (11th Cir. 2008).
“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) (citing Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). “Labels and conclusions” or “a formulaic
recitation of the elements of a cause of action” that amount to “naked
assertions” will not suffice. Id. (quoting Twombly, 550 U.S. at 555). Moreover,
a complaint must “contain either direct or inferential allegations respecting all
the material elements necessary to sustain a recovery under some viable legal
theory.” Roe v. Aware Woman Ctr. for Choice, Inc., 253 F.3d 678, 683 (11th Cir.
2001) (quoting In re Plywood Antitrust Litig., 655 F.2d 627, 641 (5th Cir. Unit
A Sept. 8, 1981)). In reviewing a complaint, a court must accept the plaintiff’s
allegations as true, liberally construing those by a plaintiff proceeding pro se,
but need not accept as true legal conclusions. Iqbal, 556 U.S. at 678.
To state a claim under 42 U.S.C. § 1983, a plaintiff must allege that “a
person” acting under the color of state law deprived him of a right secured
under the United States Constitution or federal law. 42 U.S.C. § 1983. A claim
under § 1983 may not be premised on a theory of vicarious liability. Cottone v.
Jenne, 326 F.3d 1352, 1360 (11th Cir. 2003), abrogated in part on other grounds
by Randall v. Scott, 610 F.3d 701 (11th Cir. 2010). See also Brown v. Crawford,
906 F.2d 667, 671 (11th Cir. 1990) (“It is axiomatic, in [§] 1983 actions, that
liability must be based on something more than a theory of respondeat
A claim against a supervisor may proceed only “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.” Id. A causal connection can be established when a
supervisor knows a subordinate will act unlawfully or adopts a policy that
results in deliberate indifference to an inmate’s constitutional rights. Id. See
also Cottone, 326 F.3d at 1360. Inadequate training can be considered a
“policy.” City of Canton, Ohio v. Harris, 489 U.S. 378, 388 (1989). But when a
plaintiff relies on a failure-to-train theory against a supervisory official, he
must allege facts showing a need for training was “‘so obvious’ that [the
supervisor’s] failure to train officers . . . [amounts to] deliberate indifference.”
Underwood v. City of Bessemer, 11 F.4th 1317, 1333 (11th Cir. 2021) (quoting
Harris, 489 U.S. at 390). For liability to attach, a supervisor must have notice
of a need to train in a certain area but make a deliberate choice not to act. Gold
v. City of Miami, 151 F.3d 1346, 1350 (11th Cir. 1998). For instance, a “history
of widespread prior abuse … [can] put the [supervisor] on notice of the need for
improved training or supervision.” Id. (first alteration in original)).
Plaintiff does not allege the warden participated in the assault that is
the basis of his complaint. See Compl. at 6. In section II of the complaint form,
which asks prisoners to identify the constitutional rights defendants allegedly
violated, Plaintiff asserts his Eighth Amendment rights were violated by
“[officials] failing to adequately train officers in the proper techniques of the
use of force used upon Plaintiff.” Id. at 3. Despite Plaintiff not explicitly
referencing the warden here, liberally construing the Plaintiff’s complaint, the
Court will construe this sentence as an indication of Plaintiff’s purported
theory of recovery against the warden.
Plaintiff’s conclusory assertion that the warden failed to adequately
train officers is insufficient for him to proceed against the warden. This
allegation amounts to no more than a “formulaic recitation of the elements of
a cause of action.” See Iqbal, 556 U.S. at 678. More than conclusory and vague
allegations are required to state a cause of action under § 1983 because, “[e]ven
under the so-called notice rules of pleading, a complaint must . . . [provide]
sufficient detail . . . so that the defendant, and the Court, can obtain a fair idea
of what the plaintiff is complaining, and can see that there is some legal basis
for recovery.” See L.S.T., Inc., v. Crow, 49 F.3d 679, 684 (11th Cir. 1995) (citing
Fullman v. Graddick, 739 F.2d 553, 556-57 (11th Cir. 1984)).
Plaintiff includes no facts showing “some legal basis for recovery” against
the warden. See id. For instance, he does not allege the warden knew of a need
to train officers in using force but made a deliberate choice not to take any
action, nor does he allege there was a history of widespread abuse sufficient to
put the warden on notice of the need for improved training in use-of-force
situations. See Gold, 151 F.3d at 1350. In fact, he alleges no prior incident in
which an inmate’s rights were violated in a manner similar to his own. See
Compl. at 3, 6.
Because Plaintiff fails to state a plausible claim against the warden, this
Defendant will be dismissed. Plaintiff may proceed on his Eighth Amendment
claims against the “Doe” Defendants, but he must identify and serve them.
Because Plaintiff paid the full filing fee and is not proceeding as a pauper, he
is responsible for service of process. Rule 4(m) of the Federal Rules of Civil
Time Limit for Service. If a defendant is not served
within 90 days after the complaint is filed, the court on motion or on its own after notice to the plaintiff must dismiss the action without prejudice against that
defendant or order that service be made within a
specified time. But if the plaintiff shows good cause
for the failure, the court must extend the time for
service for an appropriate period. …
The Court’s “Guide for Proceeding Without a Lawyer” explains the
service of process requirement:
Service of process is the procedure used to notify a
defendant of the lawsuit. Because it is fair and
important for someone to have an opportunity to
respond to allegations and defend against claims,
service is required by law, is exacting, and must be
done in one of several specific ways. If service is not
done according to the law, the court may dismiss your
complaint. Rule 4 of the Federal Rules of Civil
Procedure states the requirements for service. (Note
that Rule 4 includes special requirements for service
when suing the United States, one of its agencies, or
one of its employees.)
If you are the one suing, you must fill out summons
forms (one for each defendant) and present them to the
clerk’s office, where a clerk will sign them and stamp
them with the court’s seal. From there, you will need
a copy of each official summons (the one with the
clerk’s signature and seal) and a copy of the complaint
and any of its attachments (one copy for each
defendant). … [T]o serve a defendant with a
Personal Service. You can tell someone else to
personally deliver or serve the copies. The server must
be older than 18 and may not be a party in the case.
The server must then complete and sign the back of
the original summons form and return it to you so you
can file it with the court. That is called the return of
service. It is proof to the court that the defendant
knows about the case.
Waiver of Service. A defendant may waive service,
which means the defendant agrees to respond to the
complaint even though you did not personally serve
the defendant with the complaint and summons. . . .
Once you have completed [the waiver-of-service]
forms, you can mail them to each defendant with a
copy of the complaint and any of its attachments. If the
defendant completes the form and either you or the
defendant returns it to the court, you do not have to
complete personal service of process.
Plaintiff’s complaint was docketed on July 26, 2022.1 Therefore, under
Rule 4(m), Defendants are to be served or waive service of process by October
24, 2022. Given 55 days have passed from the time Plaintiff’s complaint was
Plaintiff is a prisoner. Thus, his complaint is deemed filed on the day he mailed it
to the Court. However, neither his complaint nor the mailing envelope has a stamp
indicating the date the complaint was mailed.
docketed, the Court sua sponte will give Plaintiff 90 days from the date of this
Order to effectuate service of process. Thus, he must serve Defendants or
obtain waivers of service by Monday, December 19, 2022.
A process server cannot serve a person identified merely as John or Jane
Doe. Thus, Plaintiff must try to learn the names of the officers involved in the
incident that is the basis of his complaint, or he must describe them with such
particularity that they can be served. See Richardson v. Johnson, 598 F.3d 734,
738 (11th Cir. 2010) (affirming dismissal of a John Doe defendant where the
plaintiff failed to identify or describe the individual “guard” allegedly involved);
Williams v. DeKalb Cnty. Jail, 638 F. App’x 976, 976-77 (11th Cir. 2016) (“A
fictitious name . . . is insufficient to sustain a cause of action.”).
Accordingly, it is
Plaintiff’s claim against Warden Christopher Lane is dismissed
without prejudice for Plaintiff’s failure to state a plausible claim against this
The Court directs the Clerk to terminate Warden Christopher
Lane as a party to this action.
Plaintiff’s request for information about service of process (Doc. 3)
is GRANTED to the extent the Court advises Plaintiff he is responsible for
serving Defendants as explained in this Order and sua sponte extending the
time for him to do so. The Court reminds Plaintiff that “[e]ach document filed
must be in the form of a pleading, motion, response, or notice.” See Notice to
Pro Se Litigant (Doc. 2). A request for relief shall not be made by letter. Future
filings that do not comply with the rules may be stricken or denied.
The Clerk shall send to Plaintiff a notice of a lawsuit and request
to waive service of a summons form (AO 398), a waiver of the service of
summons form (AO 399), and a blank summons.
By Monday, December 19, 2022, Plaintiff must serve the
remaining Defendants. By December 27, 2022, Plaintiff shall provide the
Court with certification of service and documents reflecting proper, completed
service upon or waivers of service for each Defendant. Failure to provide proof
of proper service or waivers for a particular Defendant or failure to show good
cause for the failure to effect service within the time allotted will result in the
dismissal of that Defendant without further notice.
DONE AND ORDERED at Jacksonville, Florida, this 19th day of
Joseph L. D’Alessandro, III
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