Beisel v. Espinosa et al

Filing 26

ORDER: Plaintiff Charles A. Beisel, IV's objection (Doc. # 25 ) is OVERRULED. The Report and Recommendation (Doc. # 23 ) is ACCEPTED and ADOPTED. The Amended Complaint (Doc. # 10 ) is DISMISSED and the renewed Motion for Leave to Proceed in forma pauperis (Doc. # 16 , 17 , 18 ) is DENIED AS MOOT. The Clerk is directed to terminate any pending motions or deadlines, and thereafter CLOSE THE CASE. Signed by Judge Virginia M. Hernandez Covington on 5/15/2017. (DMD)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
CHARLES A. BEISEL, IV,
Plaintiff,
v.

Case No: 8:17-cv-51-T-33TBM

JACK ESPINOSA, JR.,
CITY OF TAMPA, and
HILLSBOROUGH COUNTY,
Defendants.
______________________________/
ORDER
This matter comes before the Court upon consideration of
United States Magistrate Judge Thomas B. McCoun III’s Report
and Recommendation (Doc. # 23), entered on May 1, 2017,
recommending that Plaintiff Charles A. Beisel’s construed
renewed Motion for Leave to Proceed in forma pauperis (Doc.
# 16-18) be denied and the case be dismissed. Beisel filed an
objection on May 10, 2017. (Doc. # 25). For the reasons that
follow,

the

Court

accepts

and

adopts

the

Report

and

Recommendation, denies Beisel’s Motion, and dismisses this
action.
I.

Background
Beisel, proceeding pro se, initiated this action on

January 6, 2017. (Doc. # 1). Beisel filed a construed motion

1

for leave to proceed in forma pauperis (Doc. # 2), which was
referred to Judge McCoun. Judge McCoun subsequently entered
a Report and Recommendation, recommending the motion for
leave to proceed in forma pauperis be denied without prejudice
and the Complaint be dismissed with leave to amend (Doc. #
9). Beisel filed an Amended Complaint on February 13, 2017.
(Doc. # 10).
In light of the Amended Complaint, the Court adopted the
Report and Recommendation in part, and directed Beisel to
file a renewed motion for leave to proceed in forma pauperis
by March 16, 2017. (Doc. # 14). Beisel filed two motions for
leave to proceed in forma pauperis (Doc. ## 16-17) and an
affidavit of indigency (Doc. # 18), which the Court construes
as a composite Motion for Leave to Proceed in forma pauperis.
In his Amended Complaint, Beisel asserts claims against
Defendants Judge Jack Espinosa, Jr., Hillsborough County, and
the City of Tampa for violations of the Fourth, Fifth, Eighth,
and Fourteenth Amendments, pursuant to 42 U.S.C. § 1983; Title
II of the Americans with Disabilities Act; the Civil Rights
Act of 1964; the Rehabilitation Act of 1973; and Florida
Statutes, §§ 456.065, 766.103, and 766.105. (Doc. # 10 at 34). Essentially, Beisel complains Espinosa, a judge in the
Thirteenth Judicial Circuit, in and for Hillsborough County,
2

Florida, violated Beisel’s rights by ordering him not to
follow

his

doctor’s

prescribed

medical

treatment

and

by

revoking his unsupervised visitation with his child during a
state “drug court” proceeding. This drug court proceeding is
part

of

Beisel’s

participation

in

the

Family

Dependency

Treatment Court, the goal of which is “[t]o stop substance
abuse by parent(s) that threatens the safety and permanency
of their dependent children.” (Doc. # 12 at 4-6).
II.

Discussion
After conducting a careful and complete review of the

findings and recommendations, a district judge may accept,
reject

or

modify

Recommendation.

the

28

magistrate

U.S.C.

§

judge’s

636(b)(1);

Report

and

Williams

v.

Wainwright, 681 F.2d 732 (11th Cir. 1982). In the absence of
specific objections, there is no requirement that a district
judge review factual findings de novo, Garvey v. Vaughn, 993
F.2d 776, 779 n.9 (11th Cir. 1993), and the court may accept,
reject or modify, in whole or in part, the findings and
recommendations.

28 U.S.C. § 636(b)(1)(C). The district

judge reviews legal conclusions de novo, even in the absence
of an objection. See Cooper-Houston v. S. Ry. Co., 37 F.3d
603, 604 (11th Cir. 1994); Castro Bobadilla v. Reno, 826 F.

3

Supp. 1428, 1431-32 (S.D. Fla. 1993), aff’d, 28 F.3d 116 (11th
Cir. 1994)(Table).
Here, Beisel objects only to the magistrate’s conclusion
that the Amended Complaint fails to state claims under the
ADA, as well as the Fifth, Eighth, and Fourteenth Amendments.
(Doc. # 25). Beisel’s objections are, in reality, merely an
amalgamation

of

conclusory

arguments

and

expressions

of

disagreement.
Regarding Beisel’s claims

that Defendants failed to

provide him sufficient medical care, the Amended Complaint
does not show how refusing to include narcotic medications as
part of Beisel’s drug treatment program violates Beisel’s
constitutional

rights.

The

Court

notes

Beisel

is

not

a

prisoner and Beisel does not allege he has been convicted of
any crime. Therefore, Beisel cannot state a claim under the
Eighth Amendment, which applies to convicted prisoners. See
Andujar v. Rodriguez, 486 F.3d 1199, 1203 n.3 (11th Cir. 2007)
(“Claims of deliberate indifference to the serious medical
needs of pretrial detainees are governed by the Fourteenth
Amendment’s Due Process Clause rather than by the Eighth
Amendment’s

Cruel

and

Unusual

Punishment

Clause,

governs similar claims by convicted prisoners.”).

4

which

Beisel asserts the Family Dependency Treatment Court,
which makes reunification of parents who have substance abuse
problems

and

their

dependent

children

contingent

upon

compliance with a treatment program, is “a criminal sanction,
punitive probation, and is deemed a ‘criminal’ branch of court
as per the Hillsborough County Clerk of the Circuit Court.”
(Doc. # 25 at 2; Doc. # 12 at 4-6). Even assuming Beisel’s
drug court program is part of an ongoing criminal proceeding,
Beisel does not allege that he is a pre-trial detainee.
Therefore,

Beisel

Fourteenth

Amendment,

medical

treatment

also

for

cannot
which

state

governs

pre-trial

a

claim

the

under

sufficiency

detainees.

See

Carr

the
of
v.

Tatangelo, 156 F. Supp. 2d 1369, 1375 (M.D. Ga. 2001), aff’d,
338 F.3d 1259 (11th Cir. 2003), as amended (Sept. 29, 2003)
(“[T]he right to medical care attaches under the Cruel and
Unusual

Punishment

Clause

of

the

Eighth

Amendment

for

convicted prisoners and under the Due Process Clause of the
Fourteenth

Amendment

for

pre-trial

detainees.

However,

because Carr was neither a convicted prisoner nor a pre-trial
detainee, he has no right to medical care under either of
these theories.” (internal citations omitted)).
Even if Beisel had been confined as part of the drug
court proceedings, the Amended Complaint still fails to state
5

a

claim

under

indifference

to

the

Fourteenth

medical

needs.

Amendment

for

deliberate

“Eleventh

Circuit

law

is

clear: when medical treatment decisions are responsive to an
inmate’s needs and rooted in professional, medical judgment
— even if such decisions are misguided or ineffectual — a
claim

for

deliberate

indifference

cannot

be

sustained.”

Loadholt v. Moore, 844 F. Supp. 2d 1274, 1281 (S.D. Ga. 2012).
Here, Beisel was participating in a treatment program that
did not

allow

nevertheless

a

him to

use

program

narcotic medications, but was

addressing

his

substance

abuse

problem. Although Beisel asserts Espinosa “depriv[ed] [him]
of any medical treatment,” the Amended Complaint alleges
Espinosa

reviewed

the

medical

records

provided

by

two

different physicians who treated Beisel, Dr. Diaz and Dr.
Repaskey, before telling Beisel he would be in contempt of
court for taking narcotics prescribed by Dr. Repaskey. (Doc.
# 10 at 2-3). While Beisel would have preferred a program
integrating

the

threatening

to

use

of

sanction

narcotic
Beisel

if

medications,
Beisel

took

Espinosa’s
narcotics

obtained outside of the program does not qualify as deliberate
indifference to Beisel’s medical needs. Cf. Fredericks v.
Huggins, 711 F.2d 31, 33-34 (4th Cir. 1983)(holding that
requiring

pre-trial

detainees
6

to

stop

methadone

“cold

turkey,”

causing

them

to

suffer

withdrawal,

is

not

an

unconstitutional violation of their civil rights).
Nor has Beisel sufficiently alleged how he has been
discriminated against on the basis of a disability or other
protected

characteristic.

Beisel’s

disability

is

his

substance abuse problem and he alleges he has been “segregated
from other individuals in the 13th Judicial Circuit Court
(‘drug court’), based on disability or perceived membership
in a group or category.” (Doc. # 10 at 3). However, the other
participants from whom Beisel has been “segregated” are also
enrolled in drug court programs because of their dependence
on drugs or alcohol. Cf. Thorne v. Hale, No. 1:08CV601 (JCC),
2009 WL 890136, at *8 (E.D. Va. Mar. 26, 2009)(“The Drug Court
program was set up to help individuals battling addiction. It
is difficult to imagine how Thorne could have been treated
differently based on a disability that afflicted everyone
else in the treatment program. Thorne has failed to state an
ADA claim against any defendant.”). Beisel does not provide
any information regarding how his disability differs from
that of other drug court participants who were allowed to
take narcotic medications. Nor does he state whether he is
otherwise a member of a protected class and is being treated
less favorably on that basis.
7

Beisel has also failed to state a claim for violation of
his

Fifth

Amendment

rights.

Beisel

insists

Espinosa

retaliated against him for invoking his privilege against
self-incrimination when Espinosa asked where Beisel’s wife
was during a drug court proceeding. In the Amended Complaint,
Beisel

states

he

refused

to

answer

Espinosa’s

question

because Espinosa had previously issued a warrant for Beisel’s
wife’s arrest. (Doc. # 10 at 3). But the Fifth Amendment
privilege

against

self-incrimination

only

extends

to

an

individual being asked to incriminate himself; it does not
encompass

common

law

marital

privileges

and

attempts

to

protect a spouse. See In re Grand Jury Proceedings, 664 F.2d
423,

430

(5th

Cir.

1981)(“[W]e

reject

Mrs.

Vannier’s

assertion that the marital privilege is coextensive with the
constitutional

privilege

against

self-incrimination,

and

adopt, instead, its narrow application here.”).
Additionally, Espinosa has judicial immunity for any
claims for damages. “It is firmly settled that judges are
absolutely immune from civil liability ‘for their judicial
acts, even when such acts are in excess of their jurisdiction,
and are alleged to have been done maliciously or corruptly.’”
Wahl v. McIver, 773 F.2d 1169, 1172 (11th Cir. 1985)(citation
omitted); see also Vincent v. Colonna, No. C.A.04-327 GMS,
8

2005 WL 2293914, at *1 (D. Del. Sept. 20, 2005)(dismissing,
based on judicial immunity, § 1983 claims of a plaintiff in
a probation-like drug treatment program who was forbidden
from taking prescribed pain medication following an injury).
Nor does Beisel persuasively object to the magistrate’s
conclusion that Espinosa was not acting in the “clear absence
of all jurisdiction” while presiding over Beisel’s drug court
proceedings. See Sibley v. Lando, 437 F.3d 1067, 1070 (11th
Cir. 2005)(stating judicial immunity does not apply when a
judge acts in the “clear absence of all jurisdiction”). Beisel
insists Espinosa was acting as “a medical professional as a
result

of

the

role

he

assumed

by

the

act

of

reviewing

plaintiff’s medical records, and prescribing treatment, or
the lack thereof” and as “an investigator, or detective, as
a result of his activities requesting the whereabouts of
plaintiff’s wife.” (Doc. # 25 at 3). But Espinosa’s acts all
occurred during hearings over which he presided in Beisel’s
drug court case and which involved Beisel’s treatment plan,
visitation with his child, and the location of his wife who
also

appears

to

be

a

participant

in

Family

Dependency

Treatment Court. Thus, taking the allegations of the Amended
Complaint as true, Espinosa was not acting in the clear
absence of all jurisdiction.
9

The Court is equally unpersuaded by Beisel’s arguments
regarding municipal liability for the City of Tampa and
Hillsborough County. In his objection, Beisel argues:
The City of Tampa and/or Hillsborough County refers
to “drug court” instead of “self help court” or the
simple word “treatment court” thereby establishing
that the City of Tampa and/or Hillsborough County
has referred to “drug court” participants as a
“class” or “suspect class” which should require an
intermediate
scrutiny
test,
and
establishes
jurisdiction.
(Doc. # 25 at 3). But the Amended Complaint does not allege
that the mere existence of a separate drug court program for
those

with

substance

abuse

issues

violates

Beisel’s

constitutional rights and the ADA. Rather, Beisel complains
he is “discriminated against by way of not being treated
similar to similarly situated participants of the Drug Court
program,”

because

some

participants

are

allowed

to

take

narcotics while Beisel was not. (Doc. # 10 at 3).
Additionally, the Amended Complaint does not allege any
actions

by

Hillsborough

County

or

the

City

of

Tampa

independent from Espinosa’s judicial acts. Beisel appears to
have included the City of Tampa and Hillsborough County as
Defendants solely because Beisel’s drug court proceedings
take place in the Thirteenth Judicial Circuit in and for
Hillsborough

County,

Florida.

10

These

allegations

are

insufficient to establish a violation of any statute by the
City

and

County

or

to

establish

a

basis

for

municipal

liability under 42 U.S.C. § 1983.
The Court has conducted a careful and complete review of
the

findings,

reviewed

conclusions,

matters

notwithstanding
Complaint
Defendants

of

law

Beisel’s

“fails

to

violated

and
de

recommendations,
novo.

objection,

The

sufficient

[Beisel’s]

federal

has

Court

that

allege

and

agrees,

the

Amended

facts

to

show

constitutional

or

statutory rights.” (Doc. # 23 at 4). While the Court must
construe pro se pleadings liberally, even a liberal reading
of the Amended Complaint reveals that Beisel has failed to
plausibly state a claim to relief.
Accordingly, it is now
ORDERED, ADJUDGED, and DECREED:
(1)

Plaintiff Charles A. Beisel, IV’s objection (Doc. # 25)
is OVERRULED.

(2)

The Report and Recommendation (Doc. # 23) is ACCEPTED
and ADOPTED.

(3)

The Amended Complaint (Doc. # 10) is DISMISSED and the
renewed Motion for Leave to Proceed in forma pauperis
(Doc. # 16-18) is DENIED AS MOOT.

11

(4)

The Clerk is directed to terminate any pending motions
or deadlines, and thereafter CLOSE THE CASE.
DONE and ORDERED in Chambers in Tampa, Florida, this

15th day of May, 2017.

12