Ellman v. Gualtieri

Filing 15

ORDER dismissing without prejudice 11 Second Amended Complaint and directing Clerk to mail appropriate forms. Plaintiff may file a third amended complaint within twenty-one (21) days or judgment will be entered and the case will be closed without further notice. Signed by Judge William F. Jung on 4/1/2021. (CCB)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
ERIK JASON ELLMAN,
Plaintiff,
v.

Case No. 8:20-cv-1679-WFJ-AEP

SHERRIFF BOB GUALTIERI, et al.,
Defendants.
_______________________________________/
ORDER
THIS CAUSE comes before the Court on Plaintiff Erik Jason Ellman’s
Second Amended Civil Rights Complaint (Doc. 11), filed pursuant to 42 U.S.C.
§ 1983, in which Mr. Ellman alleges violation of his right to proper medical care
under the Eighth Amendment to the United States Constitution.
I.

Legal Background
a. Section 1915A
Pursuant to 28 U.S.C. § 1915A(a), federal courts are obligated to conduct an

initial screening of certain civil suits brought by prisoners to determine whether they
should proceed. Section 1915 grants broad discretion to the district courts in the
management of in forma pauperis cases and in the denial of a motion to proceed in
forma pauperis when the complaint is frivolous. Clark v. Ga. Pardons and Paroles
Bd., 915 F.2d 636, 639 (11th Cir. 1990); Phillips v. Mashburn, 746 F.2d 782, 785

(11th Cir. 1984). Upon review of a plaintiff’s civil rights complaint, a court is
required to dismiss any or all claims based in the following circumstances:
(b) Grounds for Dismissal.—On review, the court shall
identify cognizable claims or dismiss the complaint, or any
portion of the complaint, if the complaint—
(1) is frivolous, malicious, or fails to state a claim
upon which relief may be granted; or
(2) seeks monetary relief from a defendant who is
immune from such relief.
28 U.S.C. § 1915A(b). Additionally, 28 U.S.C. § 1915(e) requires courts to dismiss
actions which are frivolous, malicious, fail to state a claim for relief, or seek
monetary relief against a defendant who is immune from that relief. 28 U.S.C.
§ 1915(e)(2). A complaint is frivolous if it is without arguable merit either in law or
in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989). Dismissals for failure to state
a claim are governed by Rule 12(b)(6), Fed. R. Civ. P. See Mitchell v. Farcass, 112
F.3d 1483, 1490 (11th Cir. 1997) (“The language of section 1915(e)(2)(B)(ii) tracks
the language of Fed. R. Civ. P. 12(b)(6)”).
The Court must read a plaintiff’s pro se allegations in a liberal fashion. Haines
v. Kerner, 404 U.S. 519 (1972).
[A] pro se complaint, “however inartfully pleaded,” must
be held to “less stringent standards than formal pleadings
drafted by lawyers” and can only be dismissed for failure
to state a claim if it appears “beyond doubt that the
plaintiff can prove no set of facts in support of his claim
which would entitle him to relief.”

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Estelle v. Gamble, 429 U.S. 97, 106 (1976) (quoting Haines, 404 U.S. at 520-21).
However, the 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) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
b. Section 1983
Mr. Ellman’s claims arise under 42 U.S.C. § 1983. (Doc. 5 at 4). “[S]ection
1983 provides a method for vindicating federal rights conferred by the Constitution
and federal statutes.” Bannum, Inc. v. City of Fort Lauderdale, 901 F.2d 989, 997
(11th Cir. 1990). To successfully plead a Section 1983 claim, a plaintiff must allege
two elements: “(1) that the act or omission deprived plaintiff of a right, privilege or
immunity secured by the Constitution or laws of the United States, and (2) that the
act or omission was done by a person acting under color of law.” Id. at 996-97. Thus,
a plaintiff must show the defendant acted under the color of law or otherwise showed
some type of state action that led to the violation of the plaintiff’s rights. Id.
II.

Analysis
Mr. Ellman sues the following six defendants: Sherriff Bob Gualtieri, Health

Services Administrator Martinelli, Clinical Supervisor Schiavo, Clinical Supervisor
Brennan, Nursing Director Ives, and Nurse Hillary. Mr. Ellman specified that
Martinelli, Schiavo, Brennan, and Ives are sued in their official capacities. (Doc. 11
at 2-4). However, Mr. Ellman does not specify whether he sues Sheriff Gualtieri or
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Nurse Hillary in their individual or official capacities. Mr. Ellman does not describe
any actions personally undertaken by the Sheriff regarding the alleged constitutional
violations and does not appear to mention Nurse Hillary at all other than to name her
as a defendant. Thus, the Court construes the suit against the Sheriff and Nurse
Hillary to be in their official or supervisory, rather than individual, capacities.
Mr. Ellman sets forth two separate claims of medical deliberate indifference.
First, he claims he “was given a covid[-]19 test at Phoenix House. [The] result was
positive . . . and still . . . nothing further has been done.” (Doc. 11 at 7). Second, he
claims he has atherosclerosis, a heart condition, that has worsened due to “lack of
medication, monitoring, [and] blood pressure checks.” (Doc. 11 at 8).

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worsening has caused side effects such as “dizziness, headaches,” “anxiety of not
having the proper medication,” and the “mental stress of . . . life threatening disease
[due to] lack of COVID 19 testing.” (Doc. 11 at 8). Mr. Ellman claims Defendants
“knew about [his] medical condition and [did] nothing.” (Doc. 11 at 5).
Mr. Ellman requests that “[t]he Federal Court issue a mandamus to compel
Defendants as mentioned of the proper procedure of medication and pre-existing
conditions involving serious health conditions,” and he seeks $500,000 in damages.
(Doc. 11 at 9).
To sufficiently state a claim under either the Eighth Amendment, Mr. Ellman
must show that the relevant prison official’s failure to provide him with medical care
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amounted to cruel and unusual punishment. In order to do so, Mr. Ellman must,
“[f]irst, . . . set forth evidence of an objectively serious medical need. Second, [he]
must prove that the prison official acted with an attitude of ‘deliberate indifference’
to that serious medical need.” Estelle v. Gamble, 429 U.S. 97, 104-05 (1976). “Third,
as with any tort claim, [he] must show that the injury was caused by the defendant’s
wrongful conduct.” Goebert v. Lee Cty., 510 F.3d 1312, 1326 (11th Cir. 2007).
An objectively serious medical need “is one that has been diagnosed by a
physician as mandating treatment or one that is so obvious that even a lay person
would easily recognize the necessity for a doctor’s attention.” Goebert, 510 F.3d at
1326 (quoting Hill v. Dekalb Reg’l Youth Det. Ctr., 40 F.3d 1176, 1187 (11th Cir.
1994)). To demonstrate deliberate indifference, a plaintiff must show:
“(1) subjective knowledge of a risk of serious harm; (2) disregard of that risk; (3) by
conduct that is more than [gross] negligence.” Goebert, 510 F.3d at 1326 (alteration
in original) (internal quotation marks and citation omitted). See also Burnette v.
Taylor, 533 F.3d 1325, 1330 (11th Cir. 2008).
Regarding Mr. Ellman’s claim that “nothing has been done” about his positive
Covid-19 test at Phoenix House, he fails to allege the severity of his symptoms
(if any) that he was experiencing or to allege that any defendant subjectively knew
of his positive test or symptoms. Further, Mr. Ellman does not describe what
“Phoenix House” is or how it, or any of its employees, were acting under color of
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state law. See Hale v. Tallapoosa Cty., 50 F.3d 1579, 1582 (11th Cir. 1995)
(“Section 1983 provides judicial remedies to a claimant who can prove that a person
acting under color of state law committed an act that deprived the claimant of some
right, privilege, or immunity protected by the Constitution or laws of the United
States.”).
Next, as noted, Mr. Ellman sues Sherriff Gualtieri, Health Services
Administrator Martinelli, Clinical Supervisor Schiavo, Clinical Supervisor Brennan,
and Nursing Director Ives in their official (i.e., supervisory) capacities. However,
Defendants cannot be liable for the acts of their employees on a theory of respondeat
superior. Scala v. City of Winter Park, 116 F.3d 1396, 1399 (11th Cir. 1997). To
state a claim against a supervisory defendant, Mr. Ellman must allege:
(1) the supervisor’s personal involvement in the violation of his
constitutional rights, (2) the existence of a custom or policy that
resulted in deliberate indifference to the plaintiff’s constitutional rights,
(3) facts supporting an inference that the supervisor directed the
unlawful action or knowingly failed to prevent it, or (4) a history of
widespread abuse that put the supervisor on notice of an alleged
deprivation that he then failed to correct.
Barr v. Gee, 437 F. App’x 865, 875 (11th Cir. 2011). See also Monnell v. Dep’t of
Social Serv. of the City of New York, 436 U.S. 658 (1978).
To support his claims, Mr. Ellman alleges he filed a grievance with Health
Services Administrator Martinelli on 10/12/20 that Martinelli denied. (Doc. 11 at 3,
7). Mr. Ellman claims Martinelli stated his grievance was “unfounded,” and that he
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“was charged $10.00 and told to drink water.” (Doc. 10 at 12). But, “filing a
grievance with a supervisory person does not alone make the supervisor liable for
the allegedly violative conduct brought to light by the grievance, even if the
grievance is denied.” Owens v. Leavins, No. 5:05CV228/SPM/EMT, 2006 WL
2640275, at *4 (N.D. Fla. Sept. 13, 2006). See also Bingham v. Thomas, 654 F.3d
1171, 1177 (11th Cir. 2011) (explaining that “an inmate has no constitutionallyprotected liberty interest in access to [a prison grievance] procedure.”).
Mr. Ellman alleges the medical staff “denied even knowing [Mr. Ellman] was
on the [his] medications,” and that Mr. Ellman’s “medical records would show the
medication [he] takes and needs on a daily basis.” (Doc. 11-1 at 2). However, Mr.
Ellman describes his medications as diagnosed by physicians at Bayfront Hospital
and Northside Hospital. (Doc. 11-1 at 2). He does not allege when those hospital
visits occurred or that his medical records or discharge instructions were provided
to the jail. Nor has Mr. Ellman alleged any facts demonstrating actions personally
taken by any named Defendant regarding his medications or monitoring,1 or facts
supporting an inference that any Defendant directed or knowingly failed to prevent
the withholding of Plaintiff’s medication.
Moreover, the medical record attached to the Amended Complaint
demonstrates that the physician at the jail (who is not named as a defendant in this

1

Plaintiff describes only unidentified “medical staff.” (See, e.g., Doc.11-1 at 2).
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case) has started Mr. Ellman on some medications and stopped the provision of other
medications. (Doc. 11-1 at 4). Thus, the face of the pleading demonstrates that at
least some monitoring and treatment of his medications and medical conditions is
occurring. Mr. Ellman’s mere disagreement with the mode or amount of treatment
does not establish deliberate indifference. Harris v. Thigpen, 941 F.2d 1495, 1505
(11th Cir. 1991). Instead, “[a]n objectively insufficient response by public officials
to a serious medical need must be poor enough to constitute an unnecessary and
wanton infliction of pain.” Loeber v. Andem, 487 F. App’x 548, 549 (11th Cir. 2012)
(citing Estelle, 429 U.S. 97). “Inadvertent failure to provide adequate medical care,
negligence in diagnosis or treatment, or medical malpractice, without more, fails to
state a cognizable deliberate indifference claim.” Id. (citing Estelle, 429 U.S. 97).
Mr. Ellman’s conclusory allegations do not demonstrate an objectively insufficient
response to his medical needs.
Mr. Ellman also alleges the medical staff at the Pinellas County Jail has
received a “lack of medical training[,] Sheriff Bob Gualtieri poorly trained” the staff,
and “[t]he Pinellas County medical staff has totally ignored CDC guidelines of
testing.” (Doc. 11 at 8). However, he does not explain which CDC guidelines are
being ignored, which staff are ignoring them, or who, if anyone, instructed the staff
to disregard them.

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As for the attempt to allege a claim for failure to train, Mr. Ellman must show
that a failure to train in a relevant respect evidences a deliberate indifference to his
rights. City of Canton v. Harris, 489 U.S. 378, 389 (1989). To demonstrate deliberate
indifference, he “must present some evidence that the municipality knew of a need
to train and/or supervise in a particular area and the municipality made a deliberate
choice not to take any action.” Lewis v. City of West Palm Bch, Fla., 561 F.3d 1288,
1293 (11th Cir. 2009) (quoting Gold v. City of Miami, 151 F.3d 1346, 1350 (11th
Cir. 1998)).
A [defendant] may be put on notice in two ways. First, if
the [defendant] is aware that a pattern of constitutional
violations exists, and nevertheless fails to provide
adequate training, it is considered to be deliberately
indifferent. Alternatively, deliberate indifference may be
proven without evidence of prior incidents, if the
likelihood for constitutional violation is so high that the
need for training would be obvious.
Id. (citations omitted). Mr. Ellman’s conclusory assertion that the Sheriff poorly
trained the staff, without more, does not satisfy this standard.
Finally, Mr. Ellman alleges “[t]he medical staff has engaged in a pattern of
neglect of abuse of inmates in the Pinellas County Jail,” by charging a $10.00 copay
for sick visits and telling inmates “to drink more water” when the visits were for
“serious conditions of near death.” (Doc. 11 at 9). Plaintiff claims these patterns of
neglect are “standard procedure of [the Pinellas County Jail] medical staff." (Doc.
11 at 9). However, these broad and conclusory allegations, unsupported by any
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specific facts, fail to sufficiently allege a pattern or policy that violates Plaintiff’s
constitutional rights. See, e.g., Fullman v. Graddick, 739 F.2d 553, 556-57 (11th Cir.
1984) (“[M]ore than mere conclusory notice pleading is required. In civil rights
actions, it has been held that a complaint will be dismissed as insufficient where the
allegations it contains are vague and conclusory.”).
Accordingly, it is ORDERED that:
1. The Second Amended Complaint (Doc. 11) case is DISMISSED without
prejudice for failure to state a claim, pursuant to Fed. R. Civ. P. 12(b)(6)
and 28 U.S.C. § 1915A(b)(1);
2. Mr. Ellman may file a third amended complaint within TWENTY-ONE
(21) DAYS of this order.
a. To amend his complaint, Plaintiff should completely fill out a new
civil rights complaint. On the new form, Plaintiff must mark it as
“Third Amended Complaint.” The third amended complaint must
include all of Plaintiff’s claims in this action; it may not refer back
to or incorporate any prior pleadings.
b. The third amended complaint supersedes the prior pleadings, and all
claims must be raised in the third amended complaint.
c. The third amended complaint must be received by the Court
(not merely mailed) within twenty-one days of this order. If the
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third amended complaint is not timely filed in compliance with
this order, judgment will be entered and the case will be closed
without further notice.
3. The Clerk is DIRECTED to mail to Plaintiff Ellman, along with this order,
a copy of the standard civil rights complaint form.
DONE and ORDERED in Tampa, Florida on April 1, 2021.

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