Murphy v. Miami Dade Corrections & Rehabilitation TGK Detention Center Correctional Officer et al

Filing 4

ORDER denying without prejudice #3 Plaintiff's Application to Proceed in District Court without Prepaying Fees or Costs. On or before March 18, 2021, Plaintiff shall either pay the $402 filing fee or may renew his motion to proceed in forma pauperis. Plaintiff's Complaint, ECF No. #1 , is DISMISSED without prejudice. Consistent with the purpose of Fed. R. Civ. P. 8, Plaintiff is granted leave to file an amended complaint by March 18, 2021. (Amended Complaint due by 3/18/2021. Filing Fee due by 3/18/2021). Signed by Judge Beth Bloom on 2/16/2021. See attached document for full details. (mc)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 21-cv-20595-BLOOM
JAVAR C. MURPHY,
Plaintiff,
v.
MIAMI DADE CORRECTIONS AND
REHABILITATION CENTER, et al.,
Respondent.
/
ORDER
THIS CAUSE is before the Court on Plaintiff Javar C. Murphy’s Complaint pursuant to
42 U.S.C. § 1983, ECF No. [1] (“Complaint”), and his Application to Proceed in District Court
without Prepaying Fees or Costs, ECF No. [3] (“Application”). For reasons set forth below, the
Application is denied, and the Complaint is dismissed with leave to amend.
I.

APPLICATION TO PROCEED IN FORMA PAUPERIS
Civil complaints filed by prisoners seeking in forma pauperis status under 28 U.S.C.

§ 1915 are subject to the provisions of the Prison Litigation Reform Act (“PLRA”). In order to
promote the speedy, just, and efficient administration of civil rights complaints subject to the
PLRA, the court has established forms to be used by prisoners for filing civil rights actions. The
court-approved form consists of (1) a cover sheet; (2) a complaint; (3) an application to proceed
in forma pauperis; and (4) an authorization form. The authorization form, when completed by the
plaintiff, directs the agency holding the plaintiff in custody to forward to the clerk of court a
certified copy of the plaintiff’s institutional trust fund account and to disburse from the plaintiff’s
account the full statutory filing fee in amounts specified by § 1915(b). Properly completing and

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filing the authorization form satisfies the plaintiff’s obligation under § 1915(a)(2) to submit a
certified copy of the plaintiff’s trust fund account with the complaint.
Plaintiff’s Application is not accompanied by a certified copy of his inmate account
statement for the six-month period immediately preceding the filing of the Complaint. Rather,
Plaintiff attached an account statement only for the ten-day period between November 3-12, 2020.
ECF No. [3] at 2. Additionally, Plaintiff’s Application does not contain an authorization form.
Accordingly, Plaintiff’s Application to Proceed in District Court without Prepaying Fees or Costs
is denied. Plaintiff may re-file his Application using the court-approved form, or he may pay the
filing fee of $402 by the filing deadline.
II.

FACTUAL ALLEGATIONS
Plaintiff alleges that Defendants Correctional Officer B. Bailey at Miami-Dade Corrections

& Rehabilitation T.G.K. Detention Center (“Officer Bailey”) and Nurse M. Thelusma at Jackson
Health and Services Center (“Nurse Thelusma”) (collectively, “Defendants”) violated his
constitutional rights. ECF No. [1]. Plaintiff alleges that Nurse Thelusma violated his right to
privacy by exposing his medical records to Officer Bailey without obtaining Plaintiff’s consent.
Id. at 7. According to the Complaint, Officer Bailey subsequently disclosed Plaintiff’s HIV status
to nonmedical staff members and other patients. Id. Officer Bailey also tormented Plaintiff for his
condition, causing Plaintiff emotional pain and suffering. Id. As a result, Plaintiff sues Defendants
in their official capacities and seeks money damages. Id. at 6.
III.

STANDARD OF REVIEW
The Prison Litigation Reform Act (“PLRA”), as partially codified at 18 U.S.C.

§ 1915(e)(2)(B)(i)-(iii), requires courts to screen prisoner complaints and dismiss as frivolous
claims that are “based on an indisputably meritless legal theory” or “whose factual contentions are

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clearly baseless.” Denton v. Hernandez, 504 U.S. 25, 32-33 (1992); Pullen v. Sec’y, Dep’t of Corr.,
No. 19-11797-C, 2019 WL 5784952, at *1 (11th Cir. Sept. 4, 2019) (“[A]n action is frivolous if it
is without arguable merit either in law or fact.”) (quoting Napier v. Preslicka, 314 F.3d 528, 531
(11th Cir. 2002)). Under § 1915(e)(2)(B)(ii), a complaint may be dismissed if the court determines
that the complaint fails to state a claim on which relief may be granted. Wright v. Miranda, 740 F.
App’x 692, 694 (11th Cir. 2018). The standard for determining whether a complaint states a claim
upon which relief can be granted is the same whether under section 1915(e)(2)(B) or Fed. R. Civ.
P. 12(b)(6). See Pullen, WL 5784952, at *1 (citing Mitchell v. Farcass, 112 F.3d 1483, 1490 (11th
Cir. 1997)).
Pursuant to Fed. R. Civ. P. 8, a complaint must contain “a short and plain statement of the
claim showing that the pleader is entitled to relief.” See Fed. R. Civ. P. 8(a)(2). There is no required
technical form, but “each allegation must be simple, concise, and direct.” Fed. R. Civ. P. 8(d)(1).
The statement must “give the defendant fair notice of what the . . . claim is and the grounds upon
which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quotation marks omitted).
Thus, “a complaint must allege sufficient facts to state a claim that is plausible on its face.” Pullen,
2019 WL 5784952 at *1 (citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). The “factual
allegations must be enough to raise a right to relief above the speculative level.” Bell Atl. Corp.,
550 U.S. at 555 (citations omitted). Plaintiff is obligated to allege “more than mere labels and legal
conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Quality
Auto Painting Ctr. of Roselle, Inc. v. State Farm Indemnity Co., 917 F.3d 1249, 1262 (11th Cir.
2019) (quoting Bell Atl. Corp., 550 U.S. at 555).
A district court is not required to “rewrite an otherwise deficient pleading in order to sustain
an action.” Rodriguez, 794 F. App’x at 603 (quotation marks omitted) (citation omitted) (quoting

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Campbell v. Air Jamaica Ltd., 760 F.3d 1165, 1169 (11th Cir. 2014)). Moreover, a district court
“should not abandon its neutral role and begin creating arguments for a party, even an
unrepresented one.” Sims v. Hastings, 375 F. Supp. 2d 715, 718 (N.D. Ill. 2005) (citing Anderson
v. Hardman, 241 F.3d 544, 545 (7th Cir. 2001)). When read liberally, a pro se pleading “should
be interpreted ‘to raise the strongest arguments that [it] suggest[s].’” Graham v. Henderson, 89
F.3d 75, 79 (2d Cir. 1996) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)).
Notwithstanding the leniency afforded to pro se litigants, it does not permit them to file an
impermissible “shotgun” pleading.
The Eleventh Circuit has identified four categories of shotgun pleadings. See Weiland v.
Palm Beach Cnty. Sheriff’s Office, 792 F.3d 1313, 1321-23 (11th Cir. 2015) (citations omitted).
The most common type of shotgun pleading is one “containing multiple counts where each count
adopts the allegations of all preceding counts, causing each successive count to carry all that came
before and the last count to be a combination of the entire complaint.” Id. at 1321. The next most
common type is a complaint that is “replete with conclusory, vague, and immaterial facts not
obviously connected to any particular cause of action.” Id. at 1322. The third type of shotgun
pleading is one that does not separate into a different count each cause of action or claim for relief.
Id. at 1323. Fourth, and finally, there is the relatively rare shotgun pleading that asserts “multiple
claims against multiple defendants without specifying which of the defendants are responsible for
which acts or omissions, or which of the defendants the claim is brought against.” Id.
“The unifying characteristic of all types of shotgun pleadings is that they fail to one degree
or another, and in one way or another, to give the defendants adequate notice of the claims against
them and the grounds upon which each claim rests.” Id. The Eleventh Circuit has repeatedly
condemned the use of shotgun pleadings for “imped[ing] the administration of the district courts’

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civil docket.” PVC Windoors, Inc. v. Babbitbay Beach Constr., N.V., 598 F.3d 802, 806 n.4 (11th
Cir. 2010). Indeed, shotgun pleadings require the court to sift through rambling and often
incomprehensible allegations in an attempt to separate the meritorious claims from the
unmeritorious, resulting in a “massive waste of judicial and private resources.” Id. (citation
omitted). The Eleventh Circuit, thus, has established that shotgun pleading is an unacceptable form
of establishing a claim for relief. Strategic Income Fund, LLC v. Spear, Leeds & Kellogg Corp.,
305 F.3d 1293, 1296 (11th Cir. 2002).
IV.

DISCUSSION
As pled, there are several deficiencies with Plaintiff’s Complaint. First, the Complaint is

replete with conclusory and vague allegations, and therefore fails to specify in detail the
circumstances surrounding Plaintiff’s claim for relief. Second, because the Complaint identifies
more than one defendant, adherence to Fed. R. Civ. P. 10 should be followed more closely.
Pursuant to Fed. R. Civ. P. 10(b), “[a] party must state its claims or defenses in numbered
paragraphs, each limited as far as practicable to a single set of circumstances.” To promote clarity,
“each claim founded on a separate transaction or occurrence . . . must be stated in a separate count
or defense.” Fed. R. Civ. P. 10(b). Here, Plaintiff’s different claims against Defendants must be
separated by counts. Plaintiff’s failure to do so reveals that the Complaint qualifies as the third
category of a shotgun pleading. See Weiland, 792 F.3d at 1321-23.
Moreover, because Plaintiff is suing Defendants in their official capacities, the
governmental entity that Defendants represent, Miami-Dade County, is the real party in interest.
Hafer v. Melo, 502 U.S. 21, 25 (1991). To impose § 1983 liability on a municipality, Plaintiff must
plead the following: “(1) that his constitutional rights were violated; (2) that the municipality had
a custom or policy that constituted deliberate indifference to that constitutional right; and (3) that

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the policy or custom caused the violation.” McDowell v. Brown, 392 F.3d 1283, 1289 (11th Cir.
2004) (emphasis added) (citing City of Canton v. Harris, 489 U.S. 378, 388 (1989)). Here, Plaintiff
fails to allege that his claimed constitutional deprivation resulted from any policy or custom, and
therefore fails to state a plausible claim for municipal liability under § 1983.
V.

CONCLUSION
The Complaint fails to state a viable § 1983 claim against Defendants. The Court has

identified several deficiencies in the Complaint and in deference to Plaintiff’s pro se status,
Plaintiff may have one opportunity to rectify the Complaint.
In order to proceed, Plaintiff shall file an amended complaint on the appropriate form
providing sufficient, factual allegations to permit the Court to review his complaint. Plaintiff is
reminded that he must state with specificity the facts supporting his claims. Plaintiff is also
cautioned that each claim should be numbered in a separate paragraph and should be set forth using
short and plain statements, with numbered paragraphs stating why the relief requested should be
granted. Furthermore, the amended complaint must be verified—i.e., signed and dated under the
penalty of perjury, pursuant to Local Rule 88.2(a)(4).
Accordingly, it is ORDERED AND ADJUDGED as follows:
1.

Plaintiff’s Application to Proceed in District Court without Prepaying Fees or
Costs, ECF No. [3], is DENIED without prejudice.

2.

On or before March 18, 2021, Plaintiff shall either pay the $402 filing fee or may
renew his motion to proceed in forma pauperis.

3.

If Plaintiff renews his motion to proceed in forma pauperis, the motion must
include a completed certificate signed by an authorized institutional officer
regarding the balance of his inmate account for the six-month period preceding the

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filing of the Complaint in accordance with 28 U.S.C. § 1915.
4.

The failure to pay the filing fee or renew his motion to proceed in forma pauperis
in accordance with the foregoing instructions will result in dismissal of this case.

5.

Plaintiff’s Complaint, ECF No. [1], is DISMISSED without prejudice.

6.

Consistent with the purpose of Fed. R. Civ. P. 8, Plaintiff is granted leave to file an
amended complaint by March 18, 2021. The amended complaint must be signed
under the penalty of perjury, providing a short and plain statement of a claim for
relief, a basis for federal jurisdiction, and a demand for judgment. Plaintiff shall be
provided a form complaint for use. The amended complaint must be labeled
“Amended Complaint” and must show Case No.: 21-CV-20595-BLOOM, so that
it will be filed in this case.

7.

The amended complaint must contain a separate paragraph as to each defendant
explaining what that defendant did and the supporting facts to show why that person
is being sued.

8.

Plaintiff is cautioned that failure to file the amended complaint on time and in
compliance with this Court’s orders may result in dismissal of the case for failure
to prosecute or failure to comply with court orders. See Fed. R. Civ. P. 41(b).

DONE AND ORDERED in Chambers at Miami, Florida, on February 16, 2021.

_______ ________________________
BETH BLOOM
UNITED STATES DISTRICT JUDGE
Copies to:
Counsel of Record
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Javar C. Murphy, Pro Se
190148185
Miami-Dade County-PDC
Pretrial Detention Center
Inmate Mail/Parcels
1321 NW 13th Street
Miami, FL 33125

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