Arango v. Broward Sheriff's Office et al

Filing 12

ORDER Adopting in Part 10 Magistrate Judge's Report and Recommendation. Please see Order for details. Signed by Judge Robin S. Rosenbaum on 2/14/2014. (ssk)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 13-62147-CIV-ROSENBAUM/WHITE
MAXIMO RAMOS ARANGO,
Plaintiff,
v.
BROWARD SHERIFF’S OFFICE, et al.,
Defendants.
/
ORDER ADOPTING IN PART MAGISTRATE JUDGE’S REPORT AND
RECOMMENDATION
This matter is before the Court upon pro se Plaintiff’s Complaint [ECF No. 1], filed pursuant
to 42 U.S.C. § 1983, which was previously referred to the Honorable Patrick A. White for a Report
and Recommendation on any dispositive matters. See ECF No. 3. On November 15, 2013, Judge
White issued a Report and Recommendation recommending that this case be dismissed because
Plaintiff has failed to state a claim for relief pursuant to 28 U.S.C. § 1915(e)(2)(b)(ii). See ECF No.
10. The Report and Recommendation advised Plaintiff that “[o]bjections to this Report may be filed
within fourteen days following receipt.” Id. at 8. To date, Plaintiff has filed no objections, nor has
he sought additional time to file objections. The Court has, nonetheless, conducted a de novo review
of Judge White’s Report and Recommendation and the record and is otherwise fully advised in the
premises.
I. Discussion
In his Complaint, Plaintiff asserts that Defendants violated his civil rights by preventing him
from using the computer and filing grievances. Plaintiff avers that Defendants engaged in the

alleged actions in retaliation for “snitching” on them concerning the odor in the showers and the
rusty mirrors. He further contends that he has been deprived of cold water in his cell. After filing
his Complaint, Plaintiff filed a Motion for Leave to Proceed In Forma Pauperis, asserting that he is
financially unable to pay the costs of the proceedings. See ECF No. 4.
Under 28 U.S.C. § 1915, a court may authorize the commencement of an action without
prepayment of fees upon a showing that the litigant is unable to pay. However, the court must
dismiss a case if the court determines that the action (1) is frivolous or malicious, (2) fails to state
a claim on which relief may be granted, or (3) seeks monetary relief against a defendants who is
immune from such relief. § 1915(e)(2)(b). Here, Judge White correctly determined that Plaintiff’s
Complaint fails to state a claim for relief.
Plaintiff’s allegations fail to support liability against the Broward Sheriff’s Office (“BSO”)
because he has made no showing of municipal liability. Under Monell v. Department of Social
Services, 436 U.S. 658 (1978), municipalities may be sued for their own unconstitutional or illegal
policies only; they may not be sued for the acts of their employees. As a result, a claim against a
municipal entity under § 1983 must be predicated upon an injury inflicted by governmental policy
or custom constituting “official policy.” Id. at 694. Plaintiff’s Complaint contains no facts from
which to plausibly infer that the alleged constitutional violations resulted from an official BSO
policy.
The Court also agrees with Judge White that if Plaintiff is attempting to challenge the
conditions of his confinement under the Eighth Amendment, the Complaint is likewise deficient.
“The Supreme Court has set a high bar for the objective component of a claim challenging a
condition of confinement.” Evans v. St. Lucie Cnty. Jail, 448 F. App’x 971, 973 (11th Cir. 2011).
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In this regard, the Supreme Court has noted that the Constitution does not mandate comfortable
prisons, and if prison conditions are “merely restrictive, and even harsh, they are part of the penalty
that criminal offenders pay for their offenses against society.” Chandler v. Crosby, 379 F.3d 1278,
1289 (11th Cir. 2004) (quoting Rhodes v. Chapman, 453 U.S. 337, 346 (1981)) (internal quotation
marks omitted). Thus, to state a claim for unconstitutional condition of confinement, a plaintiff must
demonstrate “extreme deprivations,” such as those depriving the plaintiff of a human need or those
posing an unreasonable risk of serious damage to his future health. Evans, 448 F. App’x at 974.
Here, Plaintiff’s allegations that the showers are dirty and have a strong odor and that he lacks cold
water are simply not sufficient to rise to the level of a constitutional violation.
Nonetheless, Plaintiff does appear to state a claim for retaliation. The First Amendment
forbids prison officials from retaliating against prisoners for exercising the right of free speech. See
Thomas v. Evans, 880 F.2d 1235, 1242 (11th Cir.1989). A prisoner can establish retaliation by
demonstrating that the prison official’s actions were “the result of his having filed a grievance
concerning the conditions of his imprisonment.” Farrow v. West, 320 F.3d 1235, 1248 (11th Cir.
2003) (quoting Wildberger v. Bracknell, 869 F.2d 1467, 1468 (11th Cir. 1989)) (internal quotation
marks omitted). To state a claim, a prisoner need not allege violation of a separate and distinct
constitutional right. Hilton v. Sec’y for Dept. of Corrections, 170 F. App’x 600, 603 (11th Cir. 2005)
(quoting Thomas, 880 F.2d at 1242).
Here, Plaintiff avers that he was denied certain privileges as a result of his complaints
regarding the purported unsanitary state of the bathroom. In particular, Plaintiff complains that
Defendants have not permitted him to use the computer and have denied him access to cold water
in retaliation for “snitching.” ECF No. 1 at 3. Although the Court agrees with Judge White that
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Plaintiff’s alleged injury is de minimus, to state a claim for retaliation, Plaintiff need only allege that
“he was retaliated against for filing a prison grievance.” Hilton, 170 F. App’x at 603-04 (holding
that the district court’s dismissal of the prisoner’s claim under § 1915(e)(2)(B)(ii) based on a finding
that he had suffered only a de minimus injury was erroneous). In this case, Plaintiff contends that
he was punished by Defendants for filing grievances. The liberal construction that the Court must
give this assertion is sufficient to state a retaliation claim under § 1983. See Boxer X v. Harris, 437
F.3d 1107, 1112 (11th Cir. 2006) (citing Wildberger v. Bracknell, 869 F.2d 1467, 1468 (11th Cir.
1989)).
II. Conclusion
For the foregoing reasons, it is ORDERED and ADJUDGED as follows:
1.

Magistrate Judge White’s Report and Recommendation [ECF No. 10] is hereby
ADOPTED IN PART;

2.

Plaintiff’s Motion for Leave to Proceed In Forma Pauperis [ECF No. 4] is
GRANTED as to his retaliation claim;

3.

Plaintiff’s municipal liability and Eighth Amendment claims are DISMISSED;
however, the Court will permit Plaintiff to amend his Complaint, should he wish to
do so, by March 7, 2014.

DONE and ORDERED in Fort Lauderdale, Florida, this 14th day of February 2014.

ROBIN S. ROSENBAUM
UNITED STATES DISTRICT JUDGE

Copies furnished to:

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The Honorable Patrick A. White
Counsel of record
Maximo Ramos Arango
501109806
North Florida Evaluation and Treatment Center
1200 Northeast 55th Boulevard
Gainesville, FL 32641

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