Flanning v. Fla. Dep't of Corr.

VERNON FLANNING, SR., Plaintiff, v. STATE OF FLORIDA DEPARTMENT OF CORRECTIONS, et al., Defendants.

Case No. 5:12cv337/MW/CJK

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF FLORIDA PENSACOLA DIVISION

August 11, 2014

REPORT AND RECOMMENDATION

This cause is before the court upon plaintiff's second amended civil rights complaint filed under 42 U.S.C. § 1983. (Doc. 57). Upon initial review of the complaint, the court found that the facts, as presented, failed to support a viable § 1983 claim against several of the named defendants. The court thus provided plaintiff an opportunity to correct the deficiencies and clarify his allegations in an amended complaint. Upon review of plaintiff's second amended complaint, in which plaintiff essentially reiterates the allegations set forth in his initial and amended complaints, the court concludes that this case should be dismissed against defendants Perish, Brock, Padgett, Froster, Jackson, Holland, and the Apalachee Correctional InstitutionMedical Department, because plaintiff has not presented a plausible claim for relief against those defendants.

BACKGROUND AND PROCEDURAL HISTORY

Plaintiff, an inmate with the Florida Department of Corrections ("DOC"), is currently confined at Apalachee Correctional Institution ("Apalachee CI"). Plaintiff names eight defendants in this action: Sergeant H. Baker, Officer Perish, Officer Brock, Sergeant Padgett, Sergeant Froster, Sergeant Jackson, Officer Holland, and Apalachee CI Medical Department. (Doc. 57, pp. 2-3). The following matters are taken, often verbatim, from the pending complaint.

On "Friday 27th, 2012," while confined at Apalachee CI, plaintiff inquired of defendant Baker, "I thought we were not supposed to be housed, with youthful offenders, plus, it is a pink sign over his cell." (Doc. 57, p. 6). Plaintiff claims that the pink sign indicated that the youthful offender would expose his genitals to women. Defendant Baker replied that he would not move plaintiff to another cell and further stated, "yall [sic] have to fight. Then, I can move yall [sic]." (Doc. 57, p. 6). Plaintiff then requested a DC 1-303 form, to which defendant Baker again replied, "fight! Or, I am gonna spray yall [sic]." Defendant Baker continued to tell plaintiff he could only be moved if he fought with his cell mate. Later, plaintiff was taken to the showers by officer Lester. Plaintiff requested to see "the captain" and be placed on "P.M. status" because he was "in fear of [his] life." After being placed back in his cell, Officer Lester asked defendant Baker what to do with plaintiff. Defendant Baker responded that plaintiff should be taken to a holding cell so that he could see the captain. While plaintiff was being transported to the holding cell by officer Lester, defendant Baker objected and "took [plaintiff] by the arm; and, pushed [plaintiff] into" his original cell. (Doc. 57, p. 7). Plaintiff then asked officers Lester and Roberts if they were going to "take care this [sic] problem." Officers Lester and Roberts replied that they would but that it was defendant Baker's "call." About an hour later, defendant Baker came by plaintiff's cell and plaintiff asked if he was going to be moved. Defendant Baker again responded, "I don't see no injuries." Plaintiff asked if defendant Baker was going to make plaintiff fight his cell mate in order to be moved. Defendant Baker then stated, "I am gonna show you a cracker," and "blanked" his eye at the "young offender" in plaintiff's cell. (Doc. 57, p. 7). Plaintiff then "defended himself" and fought with his "cell mate." Defendant Baker watched plaintiff and his cell mate fight. Plaintiff also heard the voice of nurse Smith during the fighting. Eventually, plaintiff and his cell mate stopped fighting, and plaintiff looked over and saw defendant Baker and nurse Smith outside the cell. Plaintiff alleges that he had "head wounds," which nurse Smith "observed." Defendant Baker and nurse Smith then walked away from plaintiff's cell and plaintiff started to yell "I want P.M.!" Nurse Smith then submitted plaintiff's requests for P.M. status. An hour later, defendant Baker returned to plaintiff's cell. Plaintiff again requested to be moved and defendant Baker indicated he could only move them if they fought. Plaintiff and his cell mate again started to fight and in response, defendant Baker pepper sprayed them both. After the fighting stopped, plaintiff and his cell mate were taken to the showers.

Once at the showers, defendant Brock told plaintiff he was a "demon" and he should never "forget that!" (Doc. 57, p. 8). Plaintiff was next taken to medical so hecould receive some fluids in his eyes. Plaintiff requested an x-ray of his head. Plaintiff also notes he has seizures and high blood pressure, and further notes that he has had seizures in the past as a result of toxic chemicals, including pepper spray. Defendant Perish "took watch" of plaintiff and threatened that he was going to "spray [plaintiff's] retarded ass!" (Doc. 57, p. 8). Plaintiff again requested to be put on P.M. status, but defendant Perish denied his request.

Plaintiff then takes issue with the remaining defendants' conduct. Plaintiff claims defendant Padgett made threatening statements towards him and even made plaintiff's quad mates eat last. Defendant Froster "ordered" plaintiff to clean the dorm windows at night but refused to inform the other inmates that plaintiff would be cleaning the windows. Defendant Froster threatened plaintiff with pepper spray. Defendant Jackson also threatened to spray plaintiff with pepper spray and threw plaintiff's breakfast tray on the ground. Plaintiff indicates that he had to clean up the spilled food with his bare hands. Defendant Holland told plaintiff there were no cameras in his dorm area and refused to let plaintiff list his witnesses on the investigation report. Plaintiff also claims he was forced to sign the disciplinary report form because defendant Holland told him he would note that plaintiff refused to sign the report.

As a result of the foregoing conduct, plaintiff claims violations of his Fourth, Eighth, and Fourteenth Amendment rights. Plaintiff contends he currently suffers from mental anguish, arm and back injuries, migraine headaches, and a concussion that was never treated. In relief, he requests medication to treat his medical conditions, including brain scans, MRI's, and CAT scans; $200,000 in compensatory damages; and $200,000 in punitive damages. (Doc. 57, p. 18).

DISCUSSION

Title 28 U.S.C. § 1915 mandates that the district court dismiss a civil rights 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. The court must read plaintiff's pro se allegations in a liberal fashion. Haines v. Kerner, 404 U.S. 519, 520 (1972). Dismissals for failure to state a claim are governed by the same standard as Federal Rule of Civil Procedure 12(b)(6). Mitchell v. Farcass, 112 F.3d 1483, 1485 (11th Cir. 1997). The court accepts all factual allegations in the complaint as true and evaluates all reasonable inferences derived from those facts in the light most favorable to the plaintiff. Hunnings v. Texaco, Inc., 29 F.3d 1480, 1483 (11th Cir. 1994). The complaint may be dismissed if the facts as pleaded do not state a claim to relief that is plausible on its face. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007) (retiring the negatively-glossed "no set of facts" language previously used to describe the motion to dismiss standard and determining that because plaintiffs had "not nudged their claims across the line from conceivable to plausible, their complaint must be dismissed" for failure to state a claim). A complaint is also subject to dismissal for failure to state a claim when its allegations, on their face, show that an affirmative defense bars recovery on the claim. Marsh v. Butler Cnty., Ala., 268 F.3d 1014, 1022 (11th Cir. 2001); see also Jones v. Bock, 549 U.S. 199, 215 (2007) (reiterating that principle).

Claims Against the Apalachee CI Medical Department

First, while plaintiff brings suit against Apalachee CI medical department, a prison's medical unit cannot be sued under § 1983 because it is not a person. SeeMurphy v. Turpin, 159 F. App'x 945, 949 n.4 (11th Cir. 2005). Plaintiff's claims against the Apalachee CI medical department must therefore be dismissed.

Fourth Amendment Claims

Plaintiff claims violations of his Fourth Amendment rights but advances no facts demonstrating that the defendants violated such rights. In support of his claims, plaintiff alleges the Fourth Amendment violations occurred because of "life, property, and safety, excessive powers." (Doc. 57, p. 12). After review of the complaint, the court cannot determine a cognizable Fourth Amendment violation committed by the defendants or facts which would be able to support such a claim. The entirety of plaintiff's complaint appears to advance Eighth Amendment violations, not Fourth Amendment violations. Accordingly, plaintiff's claims concerning violation of his Fourth Amendment rights should be dismissed.

Fourteenth Amendment Claims

Plaintiff also alleges violations of his Fourteenth Amendment rights. In Sandin v. Conner, 515 U.S. 472, 478, 484, 115 S. Ct. 2293, 132 L .Ed. 2d 418 (1995), the Supreme Court recognized only two instances in which a prisoner may claim a constitutionally protected liberty interest which implicates constitutional due process concerns: (1) when actions of prison officials have the effect of altering the inmate's term of imprisonment, and (2) where a prison restraint "imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." Without either the loss of gain-time credits or "atypical" confinement, the Due Process Clause itself affords no protected liberty interest that invokes procedural...