Goins v. Mcneil

RICHARD C. GOINS, Plaintiff,

v.WALTER A. McNEIL, et al., Defendants.

Case No. 3:10cv551/LAC/EMT

UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

Dated: March 17, 2011

ORDER

This cause is before the court on Plaintiff's civil rights complaint filed pursuant to 42 U.S.C. § 1983 (Doc. 1). Leave to proceed in forma pauperis has been granted.

Upon review of the complaint, it is evident that the facts as presented fail to support a viable claim for relief under § 1983 as to one or more of the named Defendants. The court will therefore allow Plaintiff an opportunity to clarify his allegations in an amended complaint. Also, in light of the substantive deficiencies in Plaintiff's claims, Plaintiff's Motion to Supplement the Record (Doc. 16) and Emergency Motion for Preliminary Injunction (Doc. 17) will be denied.

Plaintiff is currently housed incarcerated at Santa Rosa Correctional Institution ("SRCI") (Doc. 1 at 2). He was incarcerated at the Orange County Jail ("Jail") and SRCI at the time of the events giving rise to the complaint (id. at 6-7). Plaintiff names ten Defendants in this action: Walter A. McNeil, Secretary of the Florida Department of Corrections ("FDOC"); Micheal Tidwell, Chief Administrator at the Jail; M. Mitchell, a member of the medical staff at the Jail; R. Tifft, Warden at SRCI; J. Haas, Assistant Warden at SRCI; R. Burch, Classification Supervisor at SRCI; W.D. Rummel, Medical Director/Chief Health Officer at SRCI; I. Nieves, an Advanced Registered Nurse Practitioner ("ARNP") at SRCI; the Chief of Security at SRCI; and L.D. Brock, Property Room Sergeant at SRCI (id. at 1-4).

Plaintiff alleges that on July 20, 2010, while he was being transported from FDOC custody to the Orange County Jail, he broke his left foot (Doc. 1 at 11). Upon his arrival at the Jail, he informed "the security and medical staff of his injury (id.). Approximately 7-10 days later, he received three x-rays (id.). Defendant Mitchell, who Plaintiff states is either a Registered Nurse or an ARNP, reviewed the x-rays and advised Plaintiff that his foot was not broken, but he had a severe bunion under his left foot behind his left big toe (id. at 11-12). Plaintiff states that when Ms. Mitchell showed him the x-rays, he could clearly see that the bone behind his big toe on his left foot was broken (id. at 11). Defendant Mitchell prescribed an ankle brace and a pain reliever (id. at 12). Plaintiff filed a formal grievance with Defendant Tidwell, the Jail Administrator, on August 18, 2010, complaining that he did not receive proper medical treatment for his foot and was charged $30.00 for medical services and prescriptions (see Doc. 1, Ex. A), but he did not receive a response (Doc. 1 at 12).

On August 30, 2010, Plaintiff was transferred to the FDOC's Reception and Medical Center (Doc. 1 at 12). Plaintiff was examined by Dr. Smith (not a named Defendant), who ordered x-rays and issued a medical pass for no prolonged standing or walking, and no heavy lifting (id.).

On September 21, 2010, Plaintiff was transferred to SRCI (Doc. 1 at 13). A senior nurse conducted a "medical orientation" with incoming inmates (id.). Plaintiff advised her that his left foot was broken, and she made a notation in his medical records (id.). The senior nurse informed all of the incoming inmates that their existing medical passes would not be honored, and their medical needs would be re-evaluated by a doctor within ten days (id.).

Seven days later, on September 28, 2010, Plaintiff filed an informal grievance complaining that he had not received appropriate medical treatment for his foot and was suffering stiffness and "hot and cold sensations" in his foot (Doc. 1 at 13, Ex. B-1). On October 4, 2010, Plaintiff was seen by Defendant Nieves, an ARNP (Doc. 1 at 12). Plaintiff informed her that his foot was broken (id.). Nieves issued Plaintiff a medical pass for a bottom bunk and instructed Plaintiff to sign up for sick call if he wished to consult with a doctor (id.). On October 5, 2010, the Health Services Administrator, D.W. Griffiths, denied Plaintiff s informal grievance and advised him to address his medical issue at sick call (at which he would be assessed a $5.00 co-pay) (Doc. 1 at 14, Ex. B-1). Plaintiff appealed the response to the Warden's Office (id.). Defendant Dr. Rummel, the ChiefHealth Officer, and Defendant Haas, the Assistant Warden, denied the grievance on the ground that FDOC policy provided that each inmate who initiates a non-emergency visit to a health care provider would be assessed a co-payment (id.). Plaintiff appealed the denial to Secretary McNeil's office on October 25, 2010, but as of the date of filing the instant complaint (December 28, 2010), he had not received a response (Doc. 1 at 14). Plaintiff states the alleged broken bone has healed improperly, causing him to walk "somewhat irregular at times" and restricting certain forms of exercise (id. at 16). He also states he suffers constant pain and discomfort (id.).

In an unrelated claim, Plaintiff alleges he has suffered acts of retaliation since he filed the informal grievance on September 28, 2010 (Doc. 1 at 13). He states his telephone access to a Ms. Hugger was restricted in December of 2010, even though it had been approved in November (id. at 13, 19). He additionally states his outgoing and incoming mail was censored, tampered with, and destroyed (id.). Also, on December 14 and 15, an officer threatened him for writing grievances against staff (id. at 14). Plaintiff additionally states Defendant Brock confiscated and destroyed his UCC (Uniform Commercial Code) materials valued at over $8,000.00 (id. at 13-14, 19). Plaintiff states the Chief of Security and Defendants Burch and Tifft denied his grievances concerning the destruction of his UCC materials (id. at 19).

Plaintiff claims that Defendants Tidwell, Mitchell, McNeil, Tifft, Haas, Griffiths (Plaintiff apparently intended to name him as a Defendant (see Doc. 16)), Rummel, and Nieves deprived him of adequate medical treatment for his foot, in violation of the Eighth Amendment (id. at 15). He additionally contends the FDOC policy of canceling inmates' medical passes from other institutions and assessing a co-payment for non-emergency sick call visits constitutes deliberate indifference (id.). Plaintiff claims that Defendants Tifft, Haas, Griffith, Brock, and the Chief of Security retaliated against him for filing grievances by restricting his telephone access to Ms. Hugger, interfering with his mail, and destroying his UCC materials without compensating him (id. at 18-19).

As relief, Plaintiff seeks nominal, compensatory, and punitive damages (Doc. 1 at 22). He also seeks injunctive relief (id.).

Initially, Plaintiff has failed to state a basis for liability as to Defendants Tidwell, McNeil, Tifft, Haas, Burch, Rummel, and the Chief of Security. Supervisory officials are not liable undersection 1983 for the unconstitutional acts of their subordinates on the basis of respondeat superior or vicarious liability. See Cottone v. Jenne, 326 F.3d 1352, 1360 (11th Cir. 2003) (internal quotation marks and citations omitted). Supervisory liability may occur, however, either when the supervisor personally participates in the alleged unconstitutional conduct or when there is a causal connection between the actions of a supervising official and the alleged constitutional deprivation. Id. (citation omitted). This connection may be established "when a history of widespread abuse puts the responsible supervisor on notice of the need to correct the alleged deprivation, and he fails to do so, or when a supervisor's custom or policy 'result[s] in deliberate indifference to constitutional rights' or when facts support 'an inference that the supervisor directed the subordinates to act unlawfully or knew that the subordinates would act unlawfully and failed to stop them from doing so.'" Id. (internal quotation marks and citations omitted); Wayne v. Jarvis, 197 F.3d 1098, 1105 (11th Cir. 1999).

Isolated incidents are generally insufficient to establish a supervisor's liability; indeed, the deprivations must be "'obvious, flagrant, rampant and of continued duration....'" Gray ex rel. Alexander v. Bostic, 458 F.3d 1295, 1308 (11th Cir. 2006) (quoting Hartley v. Parnell, 193 F.3d 1263, 1269 (11th Cir. 1999)). Furthermore, filing a grievance with a supervisory person does not alone make the supervisor liable for the allegedly violative conduct brought to light by the grievance, even if the grievance is denied. Wayne, 197 F.3d at 1106; Weaver v. Toombs, 756 F. Supp. 335, 337 (W.D. Mich. 1989), ajf'd, 915 F.2d 1574 (6th Cir. 1990); see also Bellamy v. Bradley, 729 F.2d 416, 421 (6th Cir. 1984). Knowledge imputed to the supervisor "must be so pervasive that the refusal to prevent harm rises to the level of a custom or policy of depriving inmates of their constitutional rights." Tittle v. Jefferson County Com'n, 10 F.3d 1535, 1542 (11th Cir. 1994). The failure to act or implement policy must be in the face of repeated violations or other indicators signifying a strong likelihood that the situation will recur. See Harris v. City of Marion, 79 F.3d 56, 58-59 (7th Cir. 1996). Supervisors are generally entitled to rely on their subordinates to respond appropriately to situations absent clear or widespread evidence to the contrary. "The standard by which a supervisor is held liable in [his] individual capacity for the actions of a subordinate is extremely rigorous." Cottone, 326 F.3d at 1360 (internal quotation marks and citation omitted).

In the instant case, Plaintiff alleges Defendants Tidwell, McNeil, Tifft, Haas, Burch, Rummel, and the Chief of Security denied his grievances. As discussed supra, this fact alone does not provide a basis for liability. Therefore, Plaintiff should drop these Defendants unless additional facts exist and are alleged to support claims against them.

Additionally, Plaintiff has failed to...