Berger v. Young

JACKIE S. BERGER, Plaintiff, v. OFFICER YOUNG, et al., Defendants.

No. 3:21cv239-MCR-HTC

United States District Court, N.D. Florida, Pensacola Division

July 30, 2021

REPORT AND RECOMMENDATION

HOPE THAI CANNON UNITED STATES MAGISTRATE JUDGE

This matter is before the Court on Plaintiff Jackie Berger's pro se second amended complaint seeking to assert claims under 42 U.S.C. § 1983 for deliberate indifference and excessive force. The matter was referred to the undersigned Magistrate Judge for preliminary screening and report and recommendation pursuant to 28 U.S.C. § 636 and Northern District of Florida Local Rule 72.2(C). Upon consideration, the undersigned respectfully recommends this action be DISMISSED for failure to state a claim upon which relief can be granted.^[1] Namely, despite twice amending his complaint, Plaintiff has failed to cure any of the deficiencies previously identified by the Court.

I. BACKGROUND

Plaintiff an inmate of the Florida Department of Corrections (“FDOC”), currently incarcerated at Walton Correctional Institution (“Walton”), initiated this action by delivering a civil rights complaint to the prison staff at Santa Rosa Correctional Institution (“Santa Rosa CI”), where he was originally housed, and where the events in question occurred. ECF Doc 1. Before the Court screened that initial complaint, Plaintiff filed a first amended complaint, against twenty-five (25) Santa Rosa CI correctional officers and medical personnel alleging claims of deliberate indifference, excessive force, and retaliation. ECF Doc. 8.

The Court screened the first amended complaint and found it to be deficient. ECF Doc. 10. As set forth in the Court's deficiency order, Plaintiff's first amended complaint was an improper shotgun pleading, replete with conclusory allegations, which failed to provide sufficient notice to any of the Defendants of the claims alleged against them. Indeed, the Court struggled to understand or decipher, as to each Defendant, what constitutional violations Plaintiff was alleging and the facts supporting any such constitutional violations. Although the Court was skeptical Plaintiff could more carefully craft his complaint to state a cause of action, the Court nonetheless allowed him an opportunity to do so.

However, despite informing Plaintiff of the deficiencies with his first amended complaint in a 29-page order, and that failure to cure these deficiencies may result in dismissal of this action, Plaintiff's second amended complaint, while slightly more coherent, contains no significant changes.^[2] Thus, Plaintiff's second amended complaint fares no better.

II. THE SECOND AMENDED COMPLAINT

In the second amended complaint, Plaintiff sues nineteen (19) Defendants, all of whom he alleges are correctional officers or medical personnel employees at Santa Rosa CI: (1) Colonel Jackson, (2) Captain Rakers, (3) Captain Turner, (4) Lieutenant Neel, (5) Lieutenant Wheaton^[3], (6) Lieutenant Hughes, (7) Lieutenant McCrain, (8) Lieutenant Goodard, (9) Major White, (10) Assistant Warden Smith, (11) Duty Warden Barlow, (12) Officer Young, (13) Officer Scrubbs, (14) Officer Cheeks, (15) Officer Heaton, (16) Officer Seaman, (17) Dr. Rodriguez, (18) Nurse Mayes, and (19) Nurse Bray. ECF Doc. 12 at 3-4.

The following allegations are taken from Plaintiff's second amended complaint and accepted as true for purposes of this report and recommendation.

At approximately 11:00 a.m. on November 16, 2020, Plaintiff arrived at Santa Rosa CI as a close management prisoner. Id. “Awhile later [Plaintiff's] name was called” by two nurses, who asked if Plaintiff if he had “any passes medications or supplies that need[ed] filling or wounds [that needed] treated.” Id. Before Plaintiff responded, one nurse typed Plaintiff's “identification # into the computer” and noticed “an entry on 8/13/19 . . . for [an] Alvesco/Xopenex prescription.” Id. at 6-7. The nurse then told Plaintiff that he was “good to go but [needed to] sign [the] asthma notification” form. Id. at 7. The nurse also told Plaintiff that “policy demands you be given a window to have all these passes valid for 30 days or until [your] next visit with Dr. Rodriguez [and] you [have a] scheduled visit for x-ray (chest) and emergency/ urgent referral for ultrasound (testicals) coming up in [the] next two weeks.” Id.

When Plaintiff “turned to leave, ” he was stopped by Officer Young, who asked Plaintiff, “what exactly [are] all these passes for. You handicap inmates have become needy by the minute.” Id. In response, Plaintiff “provided [a] copy of [his] health pass issued by FDOC and explained to Officer Young [his] “recent injuries to the groin/private area chest neck and the daily struggle with pain due to neuropathy (feet), degenerative disc disease (back), leg numbness, and severe mesolectal condition.” Id.

At approximately 1:30 p.m., Plaintiff “observed Of[ficer] Young and Lieutenant Neel intentionally destroy [his] authorized compression hose[, ] hernia belt[, ] and therapeutic boots . . . without notifying medica before confiscating then destroying.” Id. An “officer seated at the next table, ” who overheard Lieutenant Neel and Officer Young “angrily stated[, ] ‘yall better call medical first before yall throw away his . . . medical supplies/devices because I aint witness to this bulshit again with yall throwing tossing their stuff (property) out.'” Id.

Later, when Plaintiff was outside of the property building, he “informed several corrections officials of [his] inability to carry [his] personal property due to recent injuries to the groin/testicals chest and neck coupled with ongoing painful conditions for which [he] suffered from for the past two years that prevent [him] [from] performing daily activities [and] manual tasks for which [he] was issued [a] health pass.” Id. at 8. Specifically, Plaintiff told the officers, he had an “authorized health pass for the following: no lifting[, ] pushing[, ] pulling[, ] cane restricted activities[, ] compression hose[, ] [back] brace[, ] [and] therapeutic boots.” Id. Plaintiff does not identify the officers with whom he spoke.

Regardless, Plaintiff alleges, despite his pleas of inability to carry personal property . . . that weighs[s] over 20lbs which exceed[s] [the] authorized limits of [his] health pass, ” his “medical emergency was” denied by Captain Rikers, Officer Young, Lieutenant Neel, Lieutenant Wheaton, Lieutenant McCrain and Officer Cheeks. Id. As a result, Plaintiff “was forced to abandon [his] property against [his] free will.” Id. At some point thereafter, Plaintiff alleges his “prescribed asthma inhalers (alvesco/Xopenex)[, ] hernia belt[, ] therapeutic boots[, ] and prescription glasses were confiscated and destroyed” at the direction of Captain Rikers, Lieutenant Wheaton, Lieutenant McCrain, Lieutenant Neel, and Officer Cheeks. Id. at 9.

At some point later, Officer Young taunted Plaintiff, stating, “back brace have you thought of the pain you've cause your victims when you committed your crimes. You will get no sympathy from either of us so consider this your debt to Suwannee and Warden Lane” (not a named Defendant). Id. Plaintiff responded, stating, “that aint my name but yall gone find out when I file the civil complaint about this cruel and unusual punishment and deliberate indifference for denying my emergency.” Id. Then “unexpectingly, ” Officer Young used a “pressure point tactic man[e]uver, ” which caused Plaintiff to feel a “shocking and numbering pain to [his] entire body.” Id. Plaintiff claims that although Captain Rikers, Lieutenant Neel, Lieutenant McCrain, Lieutenant Wheaton, and Officer Cheeks, “were in the immediate area [and] had the opportunity to intervene, ” they failed to do so. Id.

The remainder of Plaintiff's allegations address various sick calls or purported medical emergencies and Defendants' failure to respond. On November 18, 2020 at approximately 2:30 p.m., Plaintiff “declared [a] medical emergency due to difficulty breathing[, ] chest pains[, ] and shortness of breath.” Id. at 9. However, Plaintiff claims that Officer Heaton and Officer Seaman “denied” this request “or delayed access to medical personnel capable of treating [his] pain.” Id.

On November 19, 2020, at approximately 9:30 p.m., Plaintiff again notified Lieutenant Hughes, Colonel Jackson, Lieutenant McCrain, Lieutenant Neel, Captain Turner, Officer Scrubbs, Officer Cheeks, and Lieutenant Wheaton that he was experiencing “extreme pain (lower back/groin/testicals swelling) which was denied by all.” Id. at 9.

Then on November 20, 2020, at approximately 10:30 a.m., Nurse Bray appeared at Plaintiff's cell and stated that she “was sent by the Warden and Dr. Rodriguez about the numerous sickcalls [Plaintiff] [had] filed” and that Plaintiff was “put on ice until [he] simmer[ed] down with these complaints grievances.” Id. at 11.

Five days later, on November 25, 2020, “at approximately 8:30 a.m., “[Plaintiff] stopped Asst. Warden Smith with [a] medical emergency request due to [his] inability to breathe and lower back pain.” Id. at 9. Despite his request, however, “Asst. Warden Smith, Major White, and Capt. Turner walked [a]way” without notifying medical. Id.

On November 28, 2020, “at approximately 8:30 a.m., ” Plaintiff informed Duty Warden Barlow that “[his] authorized medical supplies/devices i.e. (inhalers[, ] hernia belt[, ] therapeutic boots[, ] prescription glasses etc.) [had] being illegally confiscated and destroyed” as wells as declared a “medical emergency due to severe pain.” Id. at 9. Duty Warden Barlow “took [a] photo of” Plaintiff's “face sheet” and told Plaintiff, “I took [a] picture and will call about emergency.” Id. Plaintiff became aware that Duty Warden Barlow never notified medical,...