Logan v. Clemmons

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

JAMES ALEXANDER LOGAN,

Plaintiff,

v. Case No. 3:17-cv-765-J-39PDB

M.C. CLEMMONS et al.,

Defendants.

________________________________

ORDER

I. Status

Plaintiff, James Alexander Logan, is proceeding on a pro se

civil rights complaint under 42 U.S.C. § 1983 (Doc. 1; Compl.)

against the following individuals at Suwannee Correctional

Institution (SCI): M.C. Clemmons, Warden; F. W. Mock, Assistant

Warden; Melissa L. Comerford, Head of Classification; C. McGee,

Captain; D. Spreadly, Sergeant; C. Edward, Lieutenant; and C.

Morgan, Sergeant. See Compl. at 3, 5-6. Plaintiff alleges

Defendants violated the Eighth Amendment by failing to protect him

from an inmate attack, failing to intervene during the attack, or

“by conspiring to help kill [him].” Id. at 7. Before the Court is

Defendants’ joint motion to dismiss (Doc. 54; Motion). Plaintiff

has responded (Doc. 55; Resp.). Accordingly, the motion is ripe

for this Court’s review.

II. Motion Standard

In ruling on a motion to dismiss, the Court must accept the

factual allegations set forth in the complaint as true. Ashcroft

v. Iqbal, 556 U.S. 662, 678 (2009). Additionally, the complaint

allegations must be construed in the light most favorable to the

plaintiff. Gill as Next Friend of K.C.R. v. Judd, --- F.3d ---,

No. 17-14525, 2019 WL 5304078, at *2 (11th Cir. Oct. 21, 2019).

When a plaintiff proceeds pro se, the court must liberally construe

the allegations. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972);

Bingham v. Thomas, 654 F.3d 1171, 1175 (11th Cir. 2011). However,

“the tenet that a court must accept as true all of the allegations

contained in a complaint is inapplicable to legal conclusions[,]”

which simply “are not entitled to [an] assumption of truth.” Iqbal,

556 U.S. at 678, 680. The plaintiff must allege “enough facts to

state a claim to relief that is plausible on its face.” Bell

Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).

Though detailed factual allegations are not required, Federal

Rule of Civil Procedure 8(a) demands “more than an unadorned, the-

defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at

678. As such, a plaintiff may not rely on “[t]hreadbare recitals

of the elements of a cause of action, supported by mere conclusory

statements.” Gill, 2019 WL 5304078, at *2 (quoting Iqbal, 556 U.S.

at 678). Rather, the well-pled allegations must nudge the claim

“across the line from conceivable to plausible.” Twombly, 550 U.S.

at 570. A plaintiff should allege enough facts “to raise a

reasonable expectation that discovery will reveal evidence”

supporting the plaintiff’s claims. Id. at 556.

III. Complaint Allegations1

Plaintiff claims Defendants failed to protect him when his

cellmate, a murderer and gang member, attacked him. Compl. at 7,

12. Plaintiff alleges that, on December 15, 2016, Defendant

Spreadly approached his cell to speak with his cellmate, inmate

Bank. Id. at 11. While Defendant Spreadly was at the cell, inmate

Bank punched Plaintiff in his face. Id. Defendant Spreadly walked

away “like he saw nothing.” Id. Plaintiff and inmate Bank then

started fighting. Inmate Bank began “telling inmates to call

[Defendant] Spreadly which inmates [were] blood game [sic] members

and that he need [sic] a knife.” Id. Defendant Spreadly returned

to the cell, apparently with gang member inmate Harris. Plaintiff

asked Defendant Spreadly to let him out of the cell, but Spreadly

refused to do so and again walked away, leaving inmate Harris at

the cell. Id.

After Spreadly left, inmate Harris slid a knife under the

cell door to inmate Bank, who used the knife to stab Plaintiff in

1 Plaintiff offers an exhibit in support of his Complaint

(Doc. 1-1). Under Rule 10(c) of the Federal Rules of Civil

Procedure, a complaint exhibit “is part of the pleading for all

purposes.” See also Gill, 2019 WL 5304078, at *2 (recognizing a

district court may consider exhibits to a complaint when ruling on

a motion to dismiss). When the Court references Plaintiff’s

exhibit, it will cite it as “Compl. Ex.”

his chest, knee, and finger. Id. at 11-12. It is unclear whether

Defendant Spreadly saw inmate Harris slide the knife to inmate

Bank, or whether Defendant Spreadly knew inmate Harris had a knife.

However, Plaintiff alleges that, after the attack, inmate Harris,

in front of Defendant Spreadly, admitted to providing the knife to

inmate Bank. Id. at 12. Plaintiff alleges Defendant Spreadly was

deliberately indifferent to his safety by failing to intervene

during the attack. Id. at 9, 13.

No other Defendant was present during or witnessed the attack.

Plaintiff asserts Defendant Comerford, the head of classification,

and Defendant Morgan, the movement sergeant, inadequately screened

him and negligently placed him in a cell with inmate Bank, knowing

he was a murderer and gang member. Id. at 12, 13, 14.

Plaintiff alleges Defendants Clemmons, Mock, Edward, and

McGee were deliberately indifferent to his safety by failing “to

take corrective action to have all dorms through[ly] search[ed]”

for weapons knowing that “inmates [had] been killing each other.”

Id. at 8, 9, 10, 12. Plaintiff asserts he had been housed at SCI

for about two months when this attack occurred, and during that

time, there had been a similar incident in his dorm. According to

Plaintiff, in November 2016, an inmate stabbed and killed his

cellmate. Id. at 13. Plaintiff alleges Defendants Clemmons, Mock,

Edward, and McGee were aware of the November incident. Id. at 8-

10; Compl. Ex. at 1.

Plaintiff further alleges Defendants Spreadly, Edward, and

McGee conspired to conceal the knife inmate Bank used to stab him

by failing to take photos of the knife. Compl. at 10, 12.

IV. Summary of the Arguments

Defendants move the Court to dismiss Plaintiff’s Complaint.

Motion at 1. They assert Plaintiff fails to state a failure-to-

protect claim under the Eighth Amendment, arguing Plaintiff

provides only conclusions with no facts suggesting Defendants

could have foreseen the attack. Id. at 3-4. Defendants contend,

“Plaintiff does not allege that Defendants had prior knowledge

that his cell mate would assault him or that they would assault

each other.” Id. at 5. Defendants further argue Plaintiff fails to

state a conditions-of-confinement claim under the Eighth

Amendment. Id. at 7-8. Defendants maintain Plaintiff’s allegations

regarding his cell assignment with inmate Bank amount to no more

than a suggestion of negligence, not intentional conduct to subject

to him an unreasonable risk of serious harm. Id. at 7. Finally,

Defendants assert Plaintiff fails to state a conspiracy claim

because he alleges no facts showing Defendants “reached an

understanding” to deny him his constitutional rights. Id. at 11.

In the alternative, Defendants argue the intracorporate conspiracy

doctrine bars the claim. Id. at 12.2

2 Defendants do not address Plaintiff’s failure-to-intervene

claim against Defendant Spreadly. Because Defendants seek

In response, Plaintiff argues his failure-to-protect claim is

sufficiently pled because he alleges Defendants were aware of the

incident that occurred in November 2016 at SCI, in which one inmate

(a convicted murderer) stabbed and killed his cellmate. Resp. at

1. Plaintiff says the prior inmate death was a result of

“inadequate[] screening by classification [officer Defendant]

Comerford . . . and [Defendant] Morgan.” Id. at 1-2. Plaintiff

claims Defendants Clemmons and Mock were aware of the previous

murder and failed to take corrective action to ensure the dorms

were being properly searched, in violation of Florida

Administrative Code provisions. Id. at 2.

Plaintiff also notes he alleges all Defendants knew his

cellmate, inmate Bank, was a murderer and gang member. Id. at 2-

3. Plaintiff contends his allegations demonstrate “a history of

widespread abuse at [SCI],” referencing the November 2016 murder,

and suggesting other inmate attacks occurred in the months

following his attack. Id. at 3. With respect to the conspiracy

claim, Plaintiff states the intracorporate conspiracy doctrine

does not apply because Defendants’ actions were criminal in nature.

Id. at 3-4. Plaintiff states Defendants Spreadly, Edward, and

McGee’s concerted efforts to conceal the knife prevented him from

pursuing criminal charges against inmate Bank. Id. at 4-5.

dismissal of Plaintiff’s Complaint as a whole, however, the Court

is obliged to address this claim.

As to Defendant Spreadly’s actions, Plaintiff says the

following, clarifying the allegations in his Complaint:

Defendant Spreadly was present at

Plaintiff[’s] cell front talking to inmate

[B]ank and watch[ed] inmate [B]ank assault[]

Plaintiff th[e]n walk off like he saw nothing

and came back with inmate [H]arris that[’]s

blood gang member and refused to let me out

[of] the cell but left and allowed inmate

[H]arris to slide a knife inside a brown RDP

bag under the cell door to his gang member

brother inmate [B]ank.

Id. at 3-4.

V. Analysis & Conclusions

A. Eighth Amendment

The Eighth Amendment demands prison officials “take

reasonable measures to guarantee the safety of the inmates.” Farmer

v. Brennan, 511 U.S. 825, 832 (1994). However, prison officials

are obligated to ensure “reasonable safety;” they are not

constitutionally liable for every inmate-on-inmate attack. Id. at

834, 844. Instead, it is “[a] prison official’s ‘deliberate

indifference’ to a substantial risk of harm to an inmate [that]

violates the Eighth Amendment.” Id. at 828. To state a deliberate

indifference claim, a plaintiff must allege three elements: “(1)

a substantial risk of serious harm; (2) the defendants’ deliberate

indifference to that risk; and (3) a causal connection between the

defendants’ conduct and the Eighth Amendment violation.” Brooks v.

Warden, 800 F.3d 1295, 1301 (11th Cir. 2015) (quoting Caldwell v.

Warden, FCI Talladega, 748 F.3d 1090, 1099 (11th Cir. 2014)). The

first element requires that a plaintiff allege he was exposed to

“conditions posing a substantial risk of serious harm.” Farmer,

511 U.S. at 834. The second element, commonly referred to as the

“subjective component,” requires a plaintiff to allege the prison

official subjectively was aware of a substantial risk of serious

harm but responded to the risk in an objectively unreasonable

manner. Id. at 828, 835-36.

Whether a prisoner faces a substantial risk of serious harm

is evaluated under an objective standard: “The known risk of injury

must be a ‘strong likelihood, rather than a mere possibility,’

before a guard’s failure to act can constitute deliberate

indifference.” Brooks, 800 F.3d at 1301 (quoting Brown v. Hughes,

894 F. 2d 1533, 1537 (11th Cir. 1990)). A jail or prison

environment necessarily carries some risk of violence. As such,

when a prisoner advances a deliberate indifference claim under a

theory that he was exposed to a generalized risk of harm from

inmate violence, he must do more than allege occasional or isolated

attacks have occurred. Purcell v. Toombs Cty., Ga., 400 F.3d 1313,

1320 (11th Cir. 2005). Rather, he must allege facts demonstrating

that “serious inmate-on-inmate violence was the norm or something

close to it.” Marbury v. Warden, 936 F.3d 1227, 1234 (11th Cir.

2019) (quoting Purcell, 400 F.3d at 1322).

In Marbury, the Eleventh Circuit held the plaintiff failed to

demonstrate, on summary judgment, that he was housed in a prison

“so beset by violence that confinement, by its nature, threatened

him with the substantial risk of serious harm.” Id. at 1235. This

was so even in light of the plaintiff’s verified statements that

he had personally witnessed fifteen inmate stabbings, and prior to

the incident in which he was stabbed, he wrote letters to the

warden asking to be moved to a different dorm, which he described

as an “over-rated gang affiliated block.” Id. at 1231, 1234-35.

The court clarified, Eleventh Circuit precedent requires a

plaintiff who alleges a generalized risk of harm to “point[] to

specific features of a facility or its population rendering it

particularly violent.” Id. at 1235. For example, successful

plaintiffs have alleged or adduced evidence showing “pervasive

staffing and logistical issues rendering prison officials unable

to address near-constant violence, tensions between different

subsets of a prison population, and unique risks posed by

individual prisoners or groups of prisoners due to characteristics

like mental illness.” Id. (internal citations omitted).

A plaintiff’s allegations must demonstrate he is exposed to

“an excessive risk of inmate-on-inmate violence” such that he faces

a “constant threat of violence.” Purcell, 400 F.3d at 1320 (quoting

Woodhous v. Virginia, 487 F.2d 889, 890 (4th Cir. 1973)). See also

Harrison v. Culliver, 746 F.3d 1288, 1300 (11th Cir. 2014). In

Harrison, the court held the plaintiff failed to establish the

prison environment was one where “violence and terror reign[ed]”

because there were only four similar incidents over a three-year

period. 746 F.3d at 1300. The court reasoned, “the evidence of

inmate-on-inmate assault involving weapons does not . . . indicate

that inmates were ‘exposed to something even approaching the

constant threat of violence’” sufficient to trigger Eighth

Amendment liability. Id. at 1299-1300 (quoting Purcell, 400 F.3d

at 1313).

i. Failure-to-Protect Claim Against Defendants Clemmons, Mock,

Comerford, Morgan, Edward, and McGee

Liberally construing Plaintiff’s pro se Complaint, he alleges

Defendants Clemmons, Mock, Comerford, Morgan, Edward, and McGee

knew of a dangerous prison condition (inmate-on-inmate violence),

allowed the condition to persist, and failed to protect him from

that dangerous condition. See Compl. at 8-10, 12. Under the

stringent Eleventh Circuit standard, Plaintiff fails to allege an

Eighth Amendment violation against these Defendants.

Plaintiff’s only factual support for his claim is that

Defendants knew his cellmate was a murderer and gang member and

the month before the attack, a similar inmate-on-inmate attack

occurred, resulting in an inmate’s death. Id. at 8-10, 13. Even

accepting Plaintiff’s allegations as true, Plaintiff fails to

allege facts permitting the reasonable inference he faced a

substantial risk of serious harm. See Brooks, 800 F.3d at 1301.

Plaintiff does not allege a specific feature of the dorm rendered

it a particularly violent place such that he was exposed to the

constant threat of violence. See Marbury, 936 F.3d at 1235;

Harrison, 746 F.3d at 1300. For instance, he does not allege the

dorm was subject to overcrowding and insufficient staffing; he

does not allege there were known problems among different groups

of prisoners; and he does not allege there were “unique risks”

present in his dorm of which prison officials were aware. See

Marbury, 936 F.3d at 1235 (citing cases).

Rather, Plaintiff alleges a generalized, potential threat of

harm, which exists in any prison throughout the country. See

Purcell, 400 F.3d at 1323 (“In the jail setting, a risk of harm to

some degree always exists by the nature of its being a jail.”). A

prison official’s knowledge of a potential for harm, however, does

not expose him to liability under the Eighth Amendment. See also

Brooks, 800 F.3d at 1301 (holding the plaintiff failed to allege

he faced a “strong likelihood of injury” where he asserted he

reported to prison officials the inmate in the next cell threatened

him, and the inmate was later able to carry out his threats when

all cell doors in the dorm randomly opened at the same time).

Even accepting as true Defendants were aware of the stabbing

incident that happened the month before Plaintiff was stabbed, one

prior similar incident does not demonstrate Plaintiff’s dorm was

a place where “violence and terror reign[ed].” See Harrison, 746

F.3d at 1298, 1300.3 Accordingly, Plaintiff fails to allege facts

demonstrating the objective component of a deliberate indifference

claim.

Even if Plaintiff had alleged an objectively substantial risk

of serious harm, he fails to allege facts demonstrating Defendants

were deliberately indifferent to that risk. The subjective prong

of a deliberate indifference claim requires a plaintiff to allege

a prison official “actually (subjectively) knows that an inmate is

facing a substantial risk of serious harm, yet disregards that

known risk by failing to respond to it in an (objectively)

reasonable manner.” Rodriguez v. Sec’y for Dep’t of Corr., 508

F.3d 611, 617 (11th Cir. 2007) (citing Farmer, 511 U.S. at 837,

844).

To satisfy the subjective prong, a plaintiff must do more

than allege a prison official had a “generalized awareness” of a

particular inmate’s propensity for violence. See, e.g., Carter v.

Galloway, 352 F.3d 1346, 1349 (11th Cir. 2003) (holding the

3 Plaintiff vaguely references subsequent incidents as well.

See Compl. at 13. However, instances of inmate violence that

occurred after Plaintiff’s injury are not indicative of whether

Defendants knew Plaintiff was exposed to a substantial risk of

serious harm yet disregarded that risk. See Estate of Owens v. GEO

Grp., Inc., 660 F. App’x 763, 768 (11th Cir. 2016) (“[T]he

essential timeframe under analysis is restricted to the time period

before the injury has occurred.”) (emphasis in original).

plaintiff failed to demonstrate the defendants knew of a

particularized threat even though the defendants knew the

aggressor was a “problem inmate” and had been roaming the cell he

shared with the plaintiff like a “caged animal”); Johnson v. Boyd,

701 F. App’x 841, 845 (11th Cir. 2017) (affirming dismissal of the

plaintiff’s failure-to-protect claim because he simply alleged his

cellmate who attacked him had a “well documented propensity for

violence” of which the defendants were aware, but he did not allege

the defendants “foresaw or knew of a specific risk” the cellmate

posed).

Even when a plaintiff vaguely reports he fears his cellmate

or asks to be moved, he fails to state a claim unless he provides

details to substantiate his fears. See, e.g., Winstead v. Williams,

750 F. App’x 849, 851 (11th Cir. 2018) (affirming dismissal of the

plaintiff’s complaint where he alleged he reported to prison

officials, before the attack, that he had been having unspecified

“problems” and “trouble” with his cellmate); McBride v. Rivers,

170 F. App’x 648, 655 (11th Cir. 2006) (holding the defendant was

not subjectively aware of a serious risk of harm even though the

plaintiff asked not to be placed in a cell with the inmate who

later attacked him because the plaintiff “did not identify a

specific prior incident, from which the defendant could infer that

a substantial risk existed”).

Additionally, a plaintiff must do more than allege a prison

official should have known of an inmate’s propensity for violence

or his likelihood of harming another inmate based on the inmate’s

past conduct. See Owens, 660 F. App’x at 771 (noting constructive

knowledge is not the standard). See also Farmer, 511 U.S. at 838

(“[A]n official’s failure to alleviate a significant risk that he

should have perceived but did not, while no cause for commendation,

cannot . . . be condemned as the infliction of punishment.”).

Similarly, allegations suggesting a prison official was negligent

or violated internal procedures do not suffice. Id. at 828, 838.

See also Goodman v. Kimbrough, 718 F.3d 1325, 1332 (11th Cir. 2013)

(“Merely negligent failure to protect an inmate from attack does

not justify liability under [§] 1983.”) (alteration in original)

(quoting Brown, 894 F.2d at 1537).

Plaintiff alleges Defendants Clemmons, Mock, Edward, and

McGee were deliberately indifferent for failing to “thorough[ly]

search for weapons,” and Defendants Comerford and Morgan were

deliberately indifferent for putting him in a cell with a murderer

and gang member. See Compl. at 8-10, 13-14. Accepting these

allegations as true, Plaintiff alleges no more than Defendants’

“generalized awareness” of a potential for harm. Even if Defendants

knew inmate Bank was a murderer and gang member or had a history

of violence at the prison, Plaintiff alleges no facts permitting

the reasonable inference Defendants had knowledge of a

particularized threat of harm to Plaintiff. See Carter, 352 F.3d

at 1349; Johnson, 701 F. App’x at 845.

Significantly, Plaintiff does not allege inmate Bank

previously harmed or threatened him or any other inmate. Plaintiff

also does not allege Defendants “foresaw or knew of a specific

risk” inmate Bank posed to Plaintiff and, with that knowledge,

ignored the risk. See Johnson, 701 F. App’x at 845. Plaintiff does

not even allege he reported a fear of his cellmate prior to the

attack. Indeed, Plaintiff concedes in a grievance he filed

following the incident that he never requested protection. See

Compl. Ex. at 5, 7. Plaintiff states, “at no time” did he request

protection because he “[did not] need . . . protection.” Id. at 5.

Plaintiff continued, he only needed “for DOC officials to do

[their] duty.” Id. If allegations of reporting vague threats or

generalized fear of one’s cellmate are not enough to satisfy the

subjective knowledge prong, then Plaintiff’s allegations must fail

as well. See Carter, 352 F.3d at 1349; Winstead, 750 F. App’x at

851; McBride, 170 F. App’x at 655.

Accepting as true Defendants Clemmons, Mock, Edward, and

McGee failed to ensure the dorms were thoroughly searched for

weapons, any such failure, to the extent attributable to them,

amounts to a “dereliction of duty,” which equates to mere

negligence, not deliberate indifference. See Goodman, 718 F.3d at

1332–33. In Goodman, the court held the plaintiff failed to present

evidence the defendant prison guards had subjective knowledge he

was in serious danger from his cellmate even though one guard left

her post for extended periods of time, the guards failed to conduct

required head counts and cell checks, and the guards disengaged

emergency call buttons without investigating why the buttons had

been activated. Id. The court noted the failure to follow safety

protocols “is negligence of the purest form.” Id. at 1332. See

also Losey v. Warden, 521 F. App’x 717, 720 (11th Cir. 2013)

(“[F]ailure to follow procedures does not, by itself, rise to the

level of deliberate indifference because doing so is at most a

form of negligence.”) (quoting Taylor v. Adams, 221 F.3d 1254,

1259 (11th Cir. 2000)).

Similarly, assuming Defendants Comerford and Morgan

“inadequately screen[ed]” Plaintiff such that he should not have

been placed in a cell with inmate Bank, their oversight is not

actionable under § 1983 as deliberate indifference. See id.

Plaintiff himself provides evidence that prison officials assigned

him to a cell with inmate Bank after “a complete housing

compatibility review.” See Compl. Ex. at 6. Assuming any error in

the compatibility review is attributable to Defendants Comerford

and Morgan, the error amounts to mere negligence.

To the extent Plaintiff’s claims against Defendants Clemmons,

Mock, Edward, and McGee are premised on their supervisory roles,

not on their direct, personal participation in any wrongdoing,

Plaintiff’s claims similarly fail. Plaintiff alleges Defendants

Clemmons and Mock “fail[ed] to take corrective action to have all

dorm(s) through[ly] search[ed] for knife(s) [sic] and weapon(s) …

knowing the high risk of danger.” Compl. at 8. Plaintiff alleges

Defendant Edward “fail[ed] to take corrective action to have his

dorm F thorough[ly] search[ed],” and Defendant McGee “fail[ed] to

take corrective action to have all [close management] unit(s)

dorm(s) [sic] thorough[ly] search[ed].” Id. at 9, 10 (emphasis

added).

“It is well established . . . that supervisory officials are

not liable under § 1983 for the unconstitutional acts of their

subordinates on the basis of respondeat superior.” Cottone v.

Jenne, 326 F.3d 1352, 1360 (11th Cir. 2003). When a prisoner seeks

to hold a supervisory official responsible for an inmate attack,

the prisoner must demonstrate a causal connection between the

supervisor’s actions or inactions and the alleged constitutional

violation. See Harrison, 746 F.3d at 1298.

A causal 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.”

Id. (quoting Cottone, 326 F.3d at 1360). Only constitutional

violations that are “obvious, flagrant, rampant and of continued

duration” constitute violations of “widespread abuse.” Id.

(quoting Hartley v. Parnell, 193 F.3d 1263, 1269 (11th Cir. 1999)).

Isolated occurrences do not suffice. Id.

While Plaintiff contends Defendants failed to correct a

“history of widespread abuse at [SCI],” see Resp. at 3, he alleges

only one prior, similar inmate-on-inmate attack having had

occurred. See Compl. at 13. One instance of a prior, similar

incident does not constitute abuse that is “obvious, flagrant,

rampant and of continued duration” to satisfy the rigorous standard

for supervisory liability. See Harrison, 746 F.3d at 1298. See

also Keith v. DeKalb Cty., Ga., 749 F.3d 1034, 1051-52 (11th Cir.

2014) (holding one prior, similar instance of inmate violence

resulting in death, while tragic, was an “isolated incident” and

not “evidence of widespread and flagrant abuse sufficient to alert

[the supervisory defendant] to a substantial risk of serious

harm”).

For the above reasons, Plaintiff fails to state a claim

against Defendants Clemmons, Mock, Comerford, Morgan, Edward, and

McGee, and they are due to be dismissed from this action.

ii. Failure-to-Intervene Claim Against Defendant Spreadly

A prison official who observes a constitutional violation has

an obligation to intervene if he is in a position to do so. See

Terry v. Bailey, 376 F. App’x 894, 896 (11th Cir. 2010) (citing

Ensley v. Soper, 142 F.3d 1402, 1407 (11th Cir. 1998)). See also

Johnson v. Boyd, 701 F. App’x 841, 846 (11th Cir. 2017) (“[A]n

officer has a duty to intervene if he observes a constitutional

violation and is in a position to intervene.”).

Plaintiff alleges Defendant Spreadly failed to intervene when

Defendant Spreadly saw inmate Bank punch Plaintiff in the face and

then walked away. See Compl. at 9, 11. Plaintiff also alleges

Defendant Spreadly “came again [to his cell] with inmate Harris

[who is a] blood [gang] member.” Id. at 11. When Plaintiff asked

Defendant Spreadly to open the cell door so he could escape from

inmate Bank, Defendant Spreadly refused and walked away, leaving

inmate Harris at the cell front. Id. Inmate Harris then passed

inmate Bank a knife, which he used to stab Plaintiff. Id.

Accepting Plaintiff’s allegations as true, Plaintiff states

a deliberate indifference claim against Defendant Spreadly. See

Johnson, 701 F. App’x at 846 (holding the plaintiff stated a claim

where he alleged the defendant officers watched an inmate attack

him but failed to intervene); Murphy v. Turpin, 159 F. App’x 945,

948 (11th Cir. 2005) (holding the plaintiff stated a failure-to-

intervene claim when he alleged the defendant prison guard observed

the attack but took no action). Plaintiff alleges Defendant

Spreadly was in a position to intervene, but he failed or refused

to do so. Plaintiff asserts Defendant Spreadly observed the initial

attack and took no action to separate the inmates to prevent

further harm to Plaintiff. Additionally, Plaintiff’s allegations

permit the inference Defendant Spreadly allowed a known gang member

(inmate Harris) to pass a knife to inmate Bank by walking away

from the cell while the gang member remained. As such, Plaintiff’s

failure-to-intervene claim against Defendant Spreadly will

proceed.

B. Conspiracy Claim Against Defendants Spreadly, Edward, and

McGee

“A plaintiff claiming a § 1983 conspiracy must prove the

defendants ‘reached an understanding’ to violate the plaintiff's

constitutional rights.” Grider v. City of Auburn, Ala., 618 F.3d

1240, 1260 (11th Cir. 2010). “[T]he linchpin for conspiracy is

agreement, which presupposes communication.” Bailey v. Bd. of Cty.

Comm’rs of Alachua Cty., Fla., 956 F.2d 1112, 1122 (11th Cir.

1992). As with any claim for the violation of a constitutional

right, a conspiracy claim under § 1983 must be based on more than

vague and conclusory accusations. Allen v. Sec’y, Fla. Dep’t of

Corr., 578 F. App’x 836, 840 (11th Cir. 2014) (citing Twombly, 550

U.S. at 555). “It is not enough to simply aver in the complaint

that a conspiracy existed.” Id. See also Iqbal, 556 U.S. at 679

(“While legal conclusions can provide the framework of a complaint,

they must be supported by factual allegations.”).

Here, Plaintiff does no more than allege the existence of a

conspiracy with no supporting facts. Plaintiff’s claim primarily

rests on allegations that Defendants failed to take photos of the

knife inmate Bank used to stab him. Plaintiff states Defendants

Spreadly, Edward, and McGee’s “action[s] in failing to take photos

of the knife they found was [sic] done with a knowing intent of

conspiring to conceal the physical evidence Plaintiff was stab

[sic] with.” Compl. at 10. Plaintiff further alleges Defendants

Edward and Spreadly claimed they found a knife on quad three in an

RDP bag, but they “fail[ed] to take photos of th[e] knife.” Id. at

12-13. Failing to take photos of the weapon inmate Bank used to

attack Plaintiff does not implicate Plaintiff’s constitutional

rights. Moreover, Plaintiff has no constitutional right to have

inmate Bank criminally prosecuted.

In section V of the civil rights complaint form (“Statement

of Claim”), Plaintiff states in a conclusory manner that

“Defendant(s) . . . conspire[ed] to help kill [him].” Id. at 7.

Plaintiff does not state which Defendants conspired to do so.

Moreover, as Plaintiff describes the incident, only Defendant

Spreadly was present during the attack. Plaintiff alleges no facts

to suggest Defendant Spreadly reached an agreement with any other

Defendant to allow the attack to occur or to conceal evidence of

the attack. For these reasons, Plaintiff’s conspiracy claim is due

to be dismissed.

Accordingly, it is now

ORDERED:

1. Defendants’ Motion to Dismiss (Doc. 54) is GRANTED in

part and DENIED in part. The Motion is GRANTED to the extent

Plaintiff fails to state a failure-to-protect claim against

Defendants Clemmons, Mock, Comerford, Morgan, Edward, and McGee,

and Plaintiff fails to state a conspiracy claim against Defendants

Spreadly, Edward, and McGee. The Motion is DENIED to the extent

Plaintiff states a plausible failure-to-intervene claim against

Defendant Spreadly.

2, The Clerk is directed to terminate Defendants Clemmons,

Mock, Comerford, Morgan, Edward, and McGee as parties to this

action

3. Defendant Spreadly must answer the Complaint within

twenty days of the date of this Order.

DONE AND ORDERED at Jacksonville, Florida, this 6th day of

November, 2019.

BRIAN J. DAVIS

United States District Judge

Jax-6

Cc:

James Alexander Logan, #Y00683

Counsel of Record

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