Velazquez v. Chris Nocco et al

Filing 22

ORDER granting 21 -motion to dismiss; directing the Clerk to ENTER JUDGMENT for the defendants and to CLOSE the case. Signed by Judge Steven D. Merryday on 8/17/2015. (BK)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
JOSHUA VELAZQUEZ,
Plaintiff,
v.

CASE NO. 8:14-cv-2249-T-23MAP

SHERIFF CHRIS NOCCO, et al.,
Defendants.
/
ORDER
Velazquez’s complaint alleges that the defendants violated his civil rights when
they failed to protect him from an attack by another detainee in the Pasco County
jail. The defendants move to dismiss under Rule 12(b)(6), Federal Rules of Civil
Procedure. (Doc. 21) Velazquez has not opposed the motion. Moreover, the last
two orders sent to Velazquez were returned as undeliverable and Velazquez’s last
involvement in this action was when he submitted the service of process forms in
January, 2015. An earlier order (Doc. 9) cautioned Velazquez (1) that the failure to
provide a change of address may result in the dismissal of his action, (2) that he must
oppose a motion to dismiss, and (3) that the failure to oppose would not preclude the
court from deciding the motion. The motion to dismiss is meritorious.
The defendants move to dismiss the complaint, which they argue fails to state
a claim. 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), and on a motion to dismiss under Rule 12(b)(6), Federal Rules of
Civil Procedure, the allegations in the complaint are viewed in the light most
favorable to the plaintiff. Omar ex rel. Cannon v. Lindsey, 334 F.3d 1246, 1247 (11th
Cir. 2003), Hill v. White, 321 F.3d 1334, 1335 (11th Cir. 2003).
Velazquez alleges that on May 25, 2014, he became embroiled in an
altercation with fellow detainee Brown inside their housing unit. When Deputy
Moody, Sergeant Wagner, and Deputy Perez entered the housing unit, they saw
Velazquez “wrestle” Brown “to the ground.” Dep. Moody sprayed Velazquez with
pepper spray and restrained him with handcuffs. The complaint alleges that, after
Velazquez was restrained and while he was laying on the floor, Brown “struck me
multiple times in the nose, face, and head with closed fists. Dep. Moody then
jumped off of me, took control of inmate Brown and stopped him from assaulting
me.” Velazquez faults Sgt. Wagner and Dep. Perez for not restraining Brown and for
not protecting him from Brown’s attack while Velazquez was restrained. Velazquez
alleges that Dep. Alvarez “falsified documents by blatantly lieing [sic] on his report.”
As Hudson v. Palmer, 468 U.S. 517, 526-527 (1984), instructs, prison officials
are charged with the enormous responsibility of providing a prisoner with a safe
environment.
Within this volatile “community,” prison administrators
are to take all necessary steps to ensure the safety of not
only the prison staffs and administrative personnel, but
also visitors. They are under an obligation to take

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reasonable measures to guarantee the safety of the inmates
themselves.
Smith v. Mosley, 532 F.3d 1270, 1277 (11th 2008), cautions federal courts to afford
prison officials due deference.
“Running a prison is an inordinately difficult undertaking that
requires expertise, planning, and the commitment of
resources.” Turner v. Safley, 482 U.S. 78, 84-5, 107 S. Ct. 2254,
2259, 96 L. Ed. 2d 64 (1987). Prison officials are therefore
“accorded latitude in the administration of prison affairs.” Cruz
v. Beto, 405 U.S. 319, 321, 92 S. Ct. 1079, 1081, 31 L. Ed. 2d
263 (1972). This latitude includes “the withdraw or limitation
of many inmate privileges and rights.” Pell v. Procunier, 417 U.S.
817, 822, 94 S. Ct. 2800, 2804, 41 L. Ed. 2d 495 (1974).

Accord Wolff v. McDonnell, 418 U.S. 539, 566 (1974) (recognizing that the
administration of a prison is “at best an extraordinarily difficult undertaking.”).
The facts in the complaint show that Dep. Moody responded appropriately.
Moreover, Velazquez alleges no wrongdoing by Dep. Moody. Instead the complaint
faults Sgt. Wagner and Dep. Perez for not intervening. Velazquez’s claim is
remarkedly similar to the failure-to-intervene claim rejected in Terry v. Bailey, 376
Fed. App’x 894, 895S96 (11th Cir. 2010).*
Terry claims prison officials violated his Eighth Amendment
rights by failing to prevent an altercation between Terry and
fellow inmate, Ethan Dorsey, and by failing to intervene during
the altercation.
We first address Terry’s claim that prison officers Bailey and
Bishop failed to prevent his altercation with his cellmate
Dorsey. Although “prison officials have a duty . . . to protect

*

“Unpublished opinions are not considered binding precedent, but they may be cited as
persuasive authority.” 11th Cir. Rule 36-2.
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prisoners from violence at the hands of other prisoners,” not
every instance of inmate on inmate violence “translates into
constitutional liability for prison officials responsible for the
victim’s safety.” Farmer v. Brennan, 511 U.S. 825, 833S34, 114
S. Ct. 1970, 1976S77, 128 L. Ed. 2d 811 (1994) (quotations
omitted). It is “[a] prison official’s ‘deliberate indifference’ to a
substantial risk of serious harm to an inmate [that] violates the
Eighth Amendment.” Id. at 828, 114 S. Ct. at 1974. In order to
constitute “deliberate indifference,” the prison official (1) must
have subjective knowledge of the risk of serious harm, and (2)
must nevertheless fail to reasonably respond to the risk. Id. at
837S38, 114 S. Ct. at 1979S80. “Merely negligent failure to
protect an inmate from attack does not justify liability under
section 1983. . . . The known risk of injury must be a strong
likelihood, rather than a mere possibility before a guard’s
failure to act can constitute deliberate indifference.” Brown v.
Hughes, 894 F.2d 1533, 1537 (11th Cir. 1990) (citations and
quotations omitted).
Terry fails to allege facts indicating Bailey and Bishop had any
knowledge of an impending risk of serious harm to Terry and
thus fails to sufficiently plead a basis for deliberate indifference.
....
We next address Terry’s claim that certain, unspecified prison
officials failed to intervene in Dorsey’s attack on Terry. Prison
correctional officers may be held directly liable under § 1983 if
they fail or refuse to intervene when a constitutional violation
occurs in their presence. Ensley v. Soper, 142 F.3d 1402, 1407
(11th Cir. 1998). However, in order for liability to attach, the
officers must have been in a position to intervene. See id. (citing
Thompson v. Boggs, 33 F.3d 847 (7th Cir. 1994)). Terry claims
that some prison officers were outside of the cubicle area where
the altercation took place and merely watched he and Dorsey
fight, but Terry does not allege facts indicating that the duration
of the fight or the position of the guards were such that the
guards would have been in a “position to intervene.”

Velazquez fails to allege facts showing that Sgt. Wagner and Dep. Perez were
deliberately indifferent to a known and substantial risk of serious injury. Dep.
Moody controlled the situation by subduing the apparent aggressor (Velazquez) and
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retraining him in handcuffs. With the apparent aggressor (Velazquez) restrained, the
situation did not present Sgt. Wagner and Dep. Perez with a “strong likelihood” that
Velazquez risked subsequent injury. See Brown v. Hughes, 894 F.2d 1533, 1537 (11th
Cir. 1990) (“The known risk of injury must be a strong likelihood, rather than a mere
possibility before a guard’s failure to act can constitute deliberate indifference.”).
Applying Terry to this action, “[Velazquez] fails to allege facts indicating [Sgt. Wagner]
and [Dep. Perez] had any knowledge of an impending risk of serious harm to [Velazquez]
and thus fails to sufficiently plead a basis for deliberate indifference.” 376 Fed. App’x at

896.
Lastly, Velazquez alleges in a conclusory fashion that Dep. Alvarez filed a
falsified report on the incident. Even if Velazquez has a protectible right from the
filing of a false report, Velazquez never identifies how the report is incorrect. The
complaint asserts no fact that Sheriff Nocco was directly involved in the incident.
Accordingly, the motion to dismiss (Doc. 21) is GRANTED. The clerk must
enter a judgment for the defendants and close this case.
ORDERED in Tampa, Florida, on August 17, 2015.

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