Tuer v. Broward County Jail et al

Filing 49

ORDER granting 40 Motion to Dismiss; granting 40 Motion to Dismiss for Failure to State a Claim; Adopting 45 Report and Recommendations. Certificate of Appealability: No Ruling; granting 26 Motion to Dismiss. Signed by Judge Darrin P. Gayles on 2/17/2015. (hs01)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION
Case No: 13-62732-CIV-GAYLES/WHITE
THOMAS TUER,
Plaintiff,
vs.
SGT. RODOLPH,
Defendants.
_____________________________/
ORDER
THIS CAUSE came before the Court on Defendant Sergeant Rodolph’s Motion to Dismiss
Complaint [ECF No. 26], Defendant’s Motion to Dismiss Amended Complaint [ECF No. 40], and
Magistrate Judge Patrick A. White’s Report of Magistrate Judge (“Report”) [ECF No. 45].
Background
On December 17, 2013, Plaintiff, Thomas Tuer, filed a pro se civil rights complaint pursuant
to 42 U.S.C. § 1983 [ECF No. 1](the “Complaint”). The Clerk referred the case to Magistrate Judge
White under Administrative Order 2003-19 for a report and recommendation on any dispositive
matters. (See [ECF No. 3]). In his Complaint, Plaintiff alleges he was refused a wheelchair and
suffered additional neglect and mistreatment at the hands of three employees of the Broward County
Jail: Sergeant Rodolph, Deputer Kaestner Williams, and Deputy Carlos Font. Plaintiff also, in one
brief sentence, alleges that the staff at Armor Medical acted with deliberate indifference towards
him. Shortly after filing his Complaint, Plaintiff sent a letter to the Court stating that, in conjunction
with his filing of the Complaint, he filed another complaint against Armor Medical. [ECF No. 5].
The Court did not receive Plaintiff’s complaint against Armor Medical with the original filing.

On May 27, 2014, after a preliminary screening pursuant to 28 U.S.C. § 1915, Magistrate
Judge White issued a report recommending that the claim of excessive force against Defendant
Rodolph proceed and that the claims against Defendants Font and Williams be dismissed for failure
to state a claim. On June 27, 2014, the Court adopted Magistrate Judge White’s report and directed
Plaintiff to refile his complaint against Armor Medical.

Plaintiff filed his Amended Complaint

against several individual defendants, Armor Medical, and the Broward County Jail.

In his

Amended Complaint, Plaintiff alleges multiple instances from August 2007 to December 20, 2009,
wherein the Defendants allegedly failed to provide adequate medical care. Plaintiff does not,
however, make any allegations against Defendant Rodolph in the Amended Complaint.
On August 20, 2014, Defendant Rodolph moved to dismiss the Complaint arguing, among
other issues, that Plaintiff failed to exhaust administrative remedies.

On October 28, 2014,

Defendant Rodolph moved to dismiss the Amended Complaint for failure to state any claims against
him.
On January 21, 2015, Magistrate Judge White issued the Report recommending that the
Court grant Defendant Rodolph’s Motion to Dismiss the Complaint because Plaintiff failed to
exhaust administrative remedies. Plaintiff has objected to the report, arguing that he tried to exhaust
administrative remedies but was thwarted by the Defendants.
Analysis
When a magistrate judge’s “disposition” has properly been objected to, district courts must
review the disposition de novo. FED. R. CIV. P. 72(b)(3). In reviewing the disposition de novo, the
undersigned has reviewed the Report, the Petition, the record, and applicable law. In the light of
that review, the undersigned agrees with the analysis and recommendations stated in Judge White’s
Report, and agrees with Judge White’s conclusion that the Complaint should be dismissed.
Although Plaintiff does attach documents to the Amended Complaint that might support a finding

that he attempted to begin grievance procedures relating to his medical care, he makes no
allegations, in the Complaint or the Amended Complaint, that he began grievance procedures
relating to Defendant Rodolph’s alleged use of excessive force. As a result, the Court finds that
Plaintiff failed to properly allege that he exhausted his available administrative remedies before
bringing suit under § 1983 as required by the Prison Litigation Reform Act of 1995 (“PLRA”).
Notably, the Plaintiff fails to make any allegations against Defendant Rodolph in the
Amended Complaint. Accordingly, the Amended Complaint, to the extent it purports to be against
Defendant Rodolph, must be dismissed. Based thereon, it is
ORDERED and ADJUDGED that Judge White’s Report and Recommendation (ECF No.
45) is AFFIRMED and ADOPTED in its entirety. It is further
ORDERED AND ADJUDGED that Sergeant Rodolph’s Motion to Dismiss Complaint
[ECF No. 26] is GRANTED, and that Defendant’s Motion to Dismiss Amended Complaint [ECF
No. 40] is GRANTED. All claims against Defendant Rodolph are DISMISSED. It is further
ORDERED AND ADJUDGED that this matter is REFERRED to Magistrate Judge White
to make a preliminary review under 28 U.S.C. § 1915 of any remaining claims in the Amended
Complaint.
DONE and ORDERED in chambers, at Miami, Florida, this 17th day of February, 2015.

DARRIN P. GAYLES
UNITED STATES DISTRICT JUDGE