Sorensen v. Nocco et al
Filing
24
ORDER granting 21 --motion to dismiss; directing the clerk to ENTER JUDGMENT for Sheriff Nocco and to CLOSE the case. Signed by Judge Steven D. Merryday on 10/26/2015. (BK)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
JOE LEE SORENSEN,
Plaintiff,
v.
CASE NO. 8:14-cv-510-T-23TBM
SHERIFF CHRIS NOCCO, et al.,
Defendants.
/
ORDER
Defendant Sheriff Nocco moves (Doc. 21) to dismiss the complaint and argues
that the complaint fails to state a claim against him. Because he appears pro se, an
earlier order (Doc. 22) cautions Sorensen that the granting of the motion to dismiss
could result in both the dismissal of his claims and a final adjudication. Although he
received a serious injury while in the Pasco County jail, the complaint fails to allege
a basis for Sheriff Nocco’s liability for the allegedly inadequate medical care.
In 2012 Sorensen, a detainee in the Pasco County jail, was attacked by another
detainee and the resulting injury required medical attention. Sorensen contends that
the medical care he received was insufficient. Sorensen commenced this action
against Sheriff Chris Nocco, Deputies Meiris and Harper, Dr. Case, and Nurses
Burke and Cleary. An earlier order (Doc. 11) dismisses the two deputies because the
complaint asserts facts showing that neither Sergeant Meiris nor Deputy Harper
denied or delayed medical care. Service of process was not effected (1) on Dr. Case
and Nurse Burke because each is no longer employed by the medical provider at the
county jail and (2) on Nurse Harper because a person by that name was never
employed by the medical provider. (Docs. 15S17) The only defendant successfully
served is Sheriff Nocco, who moves to dismiss the complaint under Rule 12(b)(6),
Federal Rules of Civil Procedure, which permits dismissing a complaint for failing
“to state a claim upon which relief can be granted . . . .”
Motion to Dismiss:
Although a pro se complaint receives a generous interpretation, see, e.g., Haines
v. Kerner, 404 U.S. 519 (1972) (per curiam), and Kirby v. Siegleman, 195 F.3d 1285,
1289 (11th Cir. 1999), the complaint must meet certain pleading requirements. The
complaint must “give the defendant fair notice of what the . . . claim is and the
grounds upon which it rests” and must provide “more than labels and conclusions
[or] a formulaic recitation of the elements of the cause of action . . . .” Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 555 (2007). In short, the “[f]actual allegations must
be enough to raise a right to relief above the speculative level . . . .” Twombly, 550
U.S. at 555. Ashcroft v. Iqbal, 556 U.S. 662, 677S78 (2009), summarizes the pleading
requirements as follows:
Under Federal Rule of Civil Procedure 8(a)(2), a pleading must
contain a “short and plain statement of the claim showing that
the pleader is entitled to relief.” As the Court held in Twombly,
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550 U.S. 544, 127 S. Ct. 1955, 167 L. Ed. 2d 929, the pleading
standard Rule 8 announces does not require “detailed factual
allegations,” but it demands more than an unadorned,
the-defendant-unlawfully-harmed-me accusation. Id., at 555,
127 S. Ct. 1955 (citing Papasan v. Allain, 478 U.S. 265, 286, 106
S. Ct. 2932, 92 L. Ed. 2d 209 (1986)). A pleading that offers
“labels and conclusions” or “a formulaic recitation of the
elements of a cause of action will not do.” 550 U.S., at 555, 127
S. Ct. 1955. Nor does a complaint suffice if it tenders “naked
assertion[s]” devoid of “further factual enhancement.” Id., at
557, 127 S. Ct. 1955.
Davis v. Coca-Cola Bottling Co. Consol., 516 F.3d 955, 974 n.43 (11th Cir. 2008),
explains that “Twombly [i]s a further articulation of the standard by which to evaluate
the sufficiency of all claims brought pursuant to Rule 8(a).” As a consequence,
Twombly specifically applies to a Section 1983 prisoner action.
Douglas v. Yates, 535 F.3d 1316, 1321 (11th Cir. 2008).
Facts:
Sheriff Nocco accurately summarizes Sorensen’s factual allegations as follows
(Doc. 21 at 2S3) (page references to the complaint omitted):
The facts relevant to Plaintiff’s medical treatment according to
the Complaint are the following. Plaintiff was battered by
another inmate on June 10, 2012, and [he] believed his face had
been broken. Pictures were taken and he was sent to the
medical pod. Plaintiff submitted a medical request indicating
his opinion that his face was broken. The next day, June 11,
2012, medical received Plaintiff’s request and Plaintiff was seen
by Dr. Brenda Case, who referred him for an x-ray. The
radiology report indicated that there was a possible fracture,
and a CT scan was recommended.
Plaintiff was transported to Pasco Regional Medical Center on
June 21, 2012, for a CT, which confirmed that there was a
fracture. The medical department at Land O’ Lakes Jail
requested the CT results the next day, on June 22, 2012.
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Plaintiff went to Oak Hill Hospital on June 27, 2012, where Dr.
Krishna Ganti indicated that the injury was two weeks old and
needed to be fixed “A.S.A.P,” “before fibrous union makes it
impossible to correct it.” Dr. Ganti also commented that, “it
will take some time for the rt. infra orbital nerve function to
return, if it does return.” Two days later, June 29, 2012,
Plaintiff had surgery to correct the break, which involved two
plates and nine screws to the right side of his face. Plaintiff
claims he still experiences numbness and pain in the area.
Pretrial Detainee:
Sorensen alleges that his rights under both the Fourteenth and Eighth
Amendments were violated. Sorensen was a pretrial detainee when the alleged
incident occurred. A pretrial detainee enjoys the protection afforded not by the
Eighth Amendment but by the Due Process Clause of the Fourteenth Amendment,
which ensures that no state shall “deprive any person of life, liberty or property,
without due process of law.” U.S. Const. Amend. XIV. See Bell v. Wolfish, 441 U.S.
520, 535S37 (1979) (explaining that the Due Process Clause of the Fourteenth
Amendment protects a detainee whereas the Eighth Amendment protects a prisoner).
The two constitutional provisions offer the same protection. The Fourteenth
Amendment provides a pretrial detainee no greater constitutional protection than the
Eighth Amendment provides a prisoner. See, e.g., Whitley v. Albers, 475 U.S. 312, 328
(1986) (“[T]he Due Process Clause affords [plaintiff] no greater protection than does
the Cruel and Unusual Punishment Clause.”), and Hasemeier v. Sheppard, 252 Fed.
App’x 282, 284 (11th Cir. 2007) (“Because Hasemeier was a pretrial detainee, we
analyze his claims of excessive force under the Fourteenth Amendment, using the
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same standards as used for Eighth Amendment claims.”). Consequently, Sorensen’s
claim is properly construed as only a Fourteenth Amendment claim.
Respondeat Superior and Policy:
Sheriff Nocco is the only defendant remaining in this action. The complaint
fails to allege a fact showing that Sheriff Nocco was personally involved in the
alleged denial of (or the delay in providing) medical care. The complaint must allege
facts showing the direct involvement of each defendant in the alleged deprivation of
Sorensen’s civil rights. A claim against an employer based on an act by an employee
asserts a claim under the principle of respondeat superior. Although permitted in a civil
tort action, the principle of respondeat superior is inapplicable in a Section 1983 action.
Monell v. N.Y.C. Dep’t of Social Services, 436 U.S. 691, 694 (1978); Grech v. Clayton
County, Ga., 335 F.3d 1326, 1329 (11th Cir. 2003) (en banc). Consequently, the
complaint insufficiently alleges a claim against Sheriff Nocco under respondeat
superior.
After asserting that the “Florida Model Jail Standards” requires a policy for
“emergency services by health care providers,” Sorensen alleges that “the failure of
Chris Nocco as Sheriff and head of the facility to have such [a] policy and trained
deputies amount[s] to gross negligence or deliberate indifference to Plaintiff’s
constitutional right to . . . medical care.” (Doc. 1 at 7) To base a claim on a
departmental policy or an alleged failure to train, Sorensen must identify what
training was inadequate, how that specific training effected the underlying alleged
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civil rights deprivation, and how the defendant was charged with providing that
training. City of Canton, Ohio v. Harris, 489 U.S. 378, 388S91 (1989). These
requirements were explained further in Williams v. City of Homestead, Fla., 206 Fed.
App’x 886, 890 (11th Cir. 2006).1
We have held that a § 1983 failure-to-train claim against a
municipality is valid only in the limited circumstances where a
plaintiff can show that: (1) the municipality inadequately trained or
supervised its officers; (2) the failure to train or supervise is a city
policy; and (3) the city’s policy caused the officer to violate the
plaintiff’s constitutional rights. Gold v. City of Miami, 151 F.3d 1346,
1350 (11th Cir. 1998).
Sorensen cannot meet each of these requirements, especially the need to show that
either a policy or a lack of training caused the alleged violation of his constitutional
right to medical care, specifically, that the lack of medical care was more than either
gross negligence or medical malpractice.
Medical Care:
A state has the constitutional obligation to provide adequate medical care —
not mistake-free medical care — to those in confinement. Adams v. Poag, 61 F.3d
1537 (11th Cir. 1995), Mandel v. Doe, 888 F.2d 783 (11th Cir. 1989). “Accidents,
mistakes, negligence, and medical malpractice are not ‘constitutional violations
merely because the victim is a prisoner.’” Harris v. Coweta County, 21 F.3d 388, 393
(11th Cir. 1994), quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976). “[A] complaint
1
“Unpublished opinions are not considered binding precedent, but they may be cited as
persuasive authority.” 11th Cir. Rule 36-2.
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that a physician has been negligent in diagnosing or treating a medical condition
does not state a valid claim of medical mistreatment under the Eighth Amendment.”
Estelle v. Gamble, 429 U.S. at 106. “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 . . . .” 429 U.S. at 107.
Instead, an inmate is protected from deliberate indifference to a serious
medical need. In analyzing a claim of deliberate indifference to a serious medical
need, a court must focus on two components: “whether evidence of a serious medical
need exists; if so, whether the defendants’ response to that need amounted to
deliberate indifference.” Adams v. Poag, 61 F.3d at 1543. These two components are
explained further in Gilmore v. Hodges, 738 F.3d 266, 274 (2013):
A plaintiff must first show an objectively serious medical need that, if
unattended, posed a substantial risk of serious harm, and that the
official’s response to that need was objectively insufficient. See
Bingham v. Thomas, 654 F.3d 1171, 1175–76 (11th Cir. 2011). Second,
the plaintiff must establish that the official acted with deliberate
indifference, i.e., the official subjectively knew of and disregarded the
risk of serious harm, and acted with more than mere negligence.
See also Clas v. Torres, 549 Fed. App’x 922 (11th Cir. 2013)2 (“[T]o state an . . .
inadequate medical treatment claim under § 1983, the allegations must show (1) an
objectively serious medical need; (2) deliberate indifference to that need by the
defendant; and (3) causation between the indifference and the plaintiff’s injury.”).
2
“Unpublished opinions are not considered binding precedent, but they may be cited as
persuasive authority.” 11th Cir. Rule 36-2.
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Depending on the circumstances, a delay in providing treatment can constitute
deliberate indifference. Harris v. Coweta County, 21 F.3d at 394. Therefore, Sorensen
must allege sufficient facts to establish that Sheriff Nocco knew of a serious medical
condition from which he was suffering and, intentionally or with reckless disregard,
delayed treatment. See generally, Rogers v. Evans, 792 F.2d 1052, 1058 (11th Cir. 1986)
(“Medical treatment that is so grossly incompetent, inadequate, or excessive as to
shock the conscience or to be intolerable to fundamental fairness violates the eighth
amendment.”)
Sorensen’s facts meet the standard for proving neither deliberate indifference
to a serious medical need nor an unreasonable delay in proving medical care for a
serious medical need. Immediately after the incident Sorensen was removed to a
secure medical unit and the following morning he was examined by Dr. Case, who
ordered X-rays of Sorensen’s injury. Contrary to Sorensen’s interpretation, the
doctor who reviewed the X-rays did not offer an opinion on the extent of facial bone
fractures, but stated that he could not “rule out” the possibility of fractures to the
“orbital rim” or the “right maxillary wall.” Ten days after the X-rays were taken
Sorensen received a CT scan. Based on the results from that diagnostic test, five days
later Sorensen was examined by a specialist, who performed the necessary surgery
two days later. Sorensen proves neither deliberate indifference nor unreasonable
delay in medical care. Moreover, Sorensen asserts neither a fact showing that Sheriff
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Nocco was directly involved in the medical care nor a policy of the Pasco County
Sheriff’s Office that controlled the alleged insufficient medical care.
Accordingly, Sheriff Nocco’s motion to dismiss (Doc. 21) is GRANTED. The
clerk must enter a judgment for Sheriff Nocco and close this case.
ORDERED in Tampa, Florida, on October 26, 2015.
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