Jones v. Inch

JEFFERY JONES, Plaintiff, v. SECRETARY MARK INCH, et al., Defendants.

No. 3:21cv512-RV-HTC

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

June 21, 2021

REPORT AND RECOMMENDATION

HOPE THAI CANNON, UNITED STATES MAGISTRATE JUDGE

On March 23, 2021, Defendants Maiorana, Scott, Overholt Molesky, and Inch removed this case from the Second Judicial Circuit of Leon County pursuant to 28 U.S.C. §§1331, 1343 1367, 1441(a), 1446 and Local Rule 7.2. ECF Doc. 1. The matter is now before the Court on Defendant Inch's Motion to Dismiss (ECF Doc. 1-15), which was filed prior to removal and Defendants' Maiorana, Scott, Overholt and Molesky's Amended Motion to Dismiss (ECF Doc. 6). Plaintiff was given an opportunity to respond and failed to do so. ECF Doc. 7.

Defendants' motions were referred to the undersigned Magistrate Judge for a Report and Recommendation pursuant to 28 U.S.C. § 636 and N.D. Fla. Loc. R. 72.2(C). Upon consideration, the undersigned recommends both motions be GRANTED. As discussed below, Inch is immune from liability, and even if he were not, Plaintiff has failed to exhaust his administrative remedies as to all Defendants.

I. BACKGROUND

Plaintiff Jeffery Jones, an inmate of the Florida Department of Corrections (“FDOC”), currently incarcerated at Okaloosa Correctional Institution (“Okaloosa CI”), proceeding pro se and in forma pauperis, initiated this action in Florida State Court, asserting claims for cruel and unusual punishment in violation of the Eighth Amendment and for battery. Plaintiff sues the following six (6) defendants: (1) Mark Inch, the Secretary of the FDOC; (2) Warden Maiorana, the Warden of Blackwater River Correctional (“Blackwater River CI”); (3) Officer Scott, (4) Officer Overholt and (5) Officer Molesky, corrections officers at Blackwater River Correctional; and (6) Kevin Sidebottom, the Chief Executive Officer of The GEO Group. Id. at 1. Plaintiff sues Inch in his official capacity only, Sidebottom in both his induvial and official capacity, and the remaining Blackwater River officers in their individual capacities. Id.

The crux of Plaintiff's complaint involves an October 26, 2020 incident occurring at Blackwater River CI, in which Plaintiff's then cellmate, Kyle Pierre, began experiencing “a psychological emergency.” ECF Doc. 1-1 at 2. The majority of Plaintiff's factual allegations relate to how Pierre was treated. As Defendants point out, however, Plaintiff does not have standing to bring claims on behalf of Pierre. See Franklin v. Garden State Life Ins., 462 Fed.Appx. 928, 930 (11th Cir. 2012) (per curiam) (“the right to appear pro se . . . is limited to those parties conducting their own cases and does not apply to persons representing the interest of others”) (internal citations quotation marks omitted). Thus, for purposes of this report and recommendation, only those allegations relating directly to conduct involving Plaintiff are relevant. Those allegations, which are assumed true for purposes of this report and recommendation, are as follows:

At approximately 8:30 p.m. on October 26, 2020, inmate Pierre began “experiencing mental disturbances” and went into fright mode, covering the cell window with a blanket. ECF Doc. 1-1 at 2. When inmate Pierre did not remove the blanket, Defendants Scott, Overholt, and Molesky, acting in unison and without warning, “open[ed] the food port (flap), ” “pulled the blanket down, ” and sprayed an entire canister of chemical agents “inside the cell.” Id. at 3. The “chemical agent[s] hit [Plaintiff] in [the] face” and his “unclothed body since [he] only had boxers on awaiting showering.” Id. at 4. Plaintiff asserts these “[D]efendants [should have] remov[ed] [him] from the situation before” administering any management tools. Id.

Afterwards, Plaintiff was removed from the cell in hand restraints, given a decontamination shower, and “relocated [to] cell Y1-103.” Id. Plaintiff asserts the Defendants' “relent[ess]” use of chemical agents caused his respiratory system, eyes, skin, genitalia, and anal area to burn “for a few days” and that he suffers from paranoia, mental emotional distress, anguish, neurosis, resentment, and bitterness. ECF Doc. 4-5.

As to Defendants Inch, Warden Maiorana, and Sidebottom, Plaintiff alleges these Defendants “created a policy, practice, and custom of nonfeasance . . . by not doing anything to discourage mistreatment of mentally ill prisoners by subordinate employees.” Id. at 3.

II. SECRETARY INCH'S MOTION TO DISMISS

Defendant Inch has moved to dismiss Plaintiffs complaint on the grounds that (1) he is entitled to sovereign immunity in his official capacity and, in the alternative, that (2) he cannot be individually liable under a theory of respondent superior. ECF Doc. 1-15. The undersigned agrees.

A. LEGAL STANDARD

When evaluating a motion to dismiss under Rule 12(b)(6), the question is whether the complaint “contain[s] sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'”  Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”  Iqbal, 556 U.S. at 678 (citation omitted). However, “[l]abels and conclusions” or “a formulaic recitation of the elements of a cause of action” that amount to “naked assertions” will not suffice. Id. (quotations and citation omitted). Moreover, a complaint must “contain either direct or inferential allegations respecting all the material elements necessary to sustain a recovery under some viable legal theory.”  Roe v. Aware Woman Ctr. for Choice, Inc., 253 F.3d 678, 683 (11th Cir. 2001) (quotations and citations omitted).

B. DISCUSSION

As stated above, Plaintiff has sued Inch only in his official capacity. A suit against a state employee in his official capacity is deemed to be a suit against the state for Eleventh Amendment purposes. Gamble v. Florida Dept. of Health & Rehab. Services, 779 F.2d 1509, 1512 (11th Cir. 1986). Absent an express waiver by the State or a valid congressional override, however, the Eleventh Amendment bars an action for monetary damages against an official or agency of the State of Florida in federal court. See Will v. Michigan Dept. of State Police, 491 U.S. 58, 71 (1989) (“The Eleventh Amendment bars [suits against a State] unless the State has waived its immunity . . . .”).

The State of Florida has not waived its sovereign immunity from §1983 suits and Congress has not abrogated Florida's sovereign immunity by other means. See Gamble, 779 F.2d at 1513-15 (holding “that Florida has not waived its Eleventh Amendment sovereign immunity”). Defendant Inch, therefore, is immune from liability for Plaintiff's Eighth Amendment claims.^[1] Id. (holding that the Eleventh Amendment “will bar damage awards against state officers sued in their official capacities in suits brought in federal court pursuant to 42 U.S.C.A. § 1983”).

Even if Plaintiff were to amend his complaint to assert claims against Inch in his individual capacity, such a claim would nonetheless fail as a matter of law because they are based on allegations that relate to Plaintiff's cellmate, and not to Plaintiff. Namely, Plaintiff alleges Inch “created a policy, practice, and custom of nonfeasance . . . by not doing anything to discourage mistreatment of mentally ill prisoners by subordinate employees.” ECF Doc. 1-1 at 3. The only allegation in Plaintiff's complaint regarding mentally ill prisoners is in his description of why Pierre called an emergency. There is no allegation that Plaintiff suffers from any mental illness and, thus, no allegation any such policy, practice or custom directly affects Plaintiff. Plaintiff does not have standing to seek relief based on how other inmates are treated. See Hutchison v. United States, No. 3:15-CV-890-J-34MCR, 2016 WL 7173886, at *3 (M.D. Fla. May 12, 2016), report and recommendation adopted, No. 3:15-CV-890-J-34MCR, 2016 WL 7157561 (M.D. Fla. Dec. 8, 2016) (“[Plaintiff] has no right to assert claims on behalf of other inmates.”).

Accordingly, the undersigned recommends that Defendant Inch's motion to dismiss (ECF Doc. 1-15) be granted. Also, although Inch has not specifically moved to dismiss based on failure to exhaust, as discussed below, Plaintiff's failure to exhaust equally applies to his claims against Inch.

III. DEFENDANTS MAIORANA, SCOTT, OVERHOLT, AND MOLESKY'S MOTION TO DISMISS

Defendants Maiorana, Scott, Overholt, and Molesky have moved to dismiss Plaintiff's complaint on the grounds that (1) Plaintiff did not properly exhaust his administrative remedies and, in the alternative, (2) Plaintiff has failed to state a claim on which relief can be granted. Because the undersigned finds that Plaintiff did not properly exhaust his administrative remedies according to the FDOC's grievance procedure, the undersigned need not address whether Plaintiff has failed to state a claim for relief against Defendants.

A. LEGAL STANDARD-FAILURE TO EXHAUST

The defense of failure to exhaust should be treated as a matter in abatement. See Bryant v. Rich, 530 F.3d 1368, 1374 (11th Cir. 2008). “This means that procedurally the defense is treated ‘like a defense for lack of jurisdiction,' although it is not a jurisdictional matter.” Turner v. Burnside, 541 F.3d 1077, 1082 (11th Cir. 2008) (quoting Bryant, 530 F.3d at 1374). Because exhaustion is a matter in abatement, “it should be raised in a motion to dismiss or be treated as such if raised in a motion for summary judgment.” Bryant, 530 F.3d at 1374-75 (citation and internal quotation omitted).

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