The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
CARLOS BUSH,
Plaintiff,
v. Case No. 3:19-cv-869-J-32PDB
FLORIDA DEPARTMENT
OF CORRECTIONS, et al.,
Defendants.
________________________________
ORDER OF PARTIAL DISMISSAL WITHOUT PREJUDICE
Plaintiff initiated this action by filing a pro se Civil Rights Complaint (Docs. 1;
2). He is proceeding as a pauper, see Doc. 5, on an Amended Complaint, see Doc. 9. He
sues the following three Defendants in their individual capacities: Correctional Officer
Ms. Hoover, Sergeant R. Morris, and the Florida Department of Corrections.
Plaintiff alleges that Defendants Hoover and Morris violated his Eighth
Amendment rights by failing to protect him from violence at the hands of other
prisoners. He argues that on May 14, 2019, he notified Defendants Hoover and Morris
on three occasions about other inmates threatening him with bodily harm. However,
according to Plaintiff, each time he asked for help, Defendants Hoover and Morris told
Plaintiff he should not be worried, asked Plaintiff to stop asking for help, or told
Plaintiff their shift was ending soon and to tell someone else. Plaintiff asserts that
Defendants Hoover and Morris’ failure to protect him resulted in him being sexually
assaulted and suffering physical and emotional injuries.
He also sues the FDOC in its “individual capacity,” alleging the FDOC “has a
responsibility to hire and train qualified correctional officer[s], these 2 correctional
officers that was hired by [FDOC] have violated policy that they would protect inmates
from danger. This negligence resulted in . . . [Plaintiff] being assaulted and sexual[ly]
violated . . . .” Plaintiff seeks “relief in the sum of $50,000 from each Defendant.”
The Prison Litigation Reform Act requires the Court to dismiss a case at any
time if the Court determines that the action is frivolous, malicious, fails to state a
claim upon which relief can be granted, or seeks monetary relief against a defendant
who is immune from such relief. See 28 U.S.C. § 1915(e)(2)(B). In reviewing a pro se
plaintiff’s pleadings, the Court must liberally construe the plaintiff’s allegations. See
Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Bingham v. Thomas, 654 F.3d 1171,
1175 (11th Cir. 2011).
With respect to whether a complaint “fails to state a claim on which relief may
be granted,” § 1915(e)(2)(B)(ii) mirrors the language of Federal Rule of Civil Procedure
12(b)(6), so courts apply the same standard in both contexts. Mitchell v. Farcass, 112
F.3d 1483, 1490 (11th Cir. 1997); see also Alba v. Montford, 517 F.3d 1249, 1252 (11th
Cir. 2008). “To survive a motion to dismiss, a complaint must contain 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) (citing Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007)). “Labels and conclusions” or “a formulaic recitation of the elements
of a cause of action” that amount to “naked assertions” will not do. Id. (quotations,
alteration, 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).
To state a claim under 42 U.S.C. § 1983, a plaintiff must allege that (1) the
defendant deprived him of a right secured under the United States Constitution or
federal law, and (2) such deprivation occurred under color of state law. See Salvato v.
Miley, 790 F.3d 1286, 1295 (11th Cir. 2015). Moreover, “conclusory allegations,
unwarranted deductions of facts, or legal conclusions masquerading as facts will not
prevent dismissal.” Rehberger v. Henry Cty., Ga., 577 F. App’x 937, 938 (11th Cir.
2014) (per curiam) (quotations and citation omitted). In the absence of a federal
constitutional deprivation or violation of a federal right, a plaintiff cannot sustain a
cause of action against a defendant.
Petitioner sues the FDOC in its “individual capacity.” However, state and
governmental entities that are considered “arms of the state” are not “persons” subject
to liability for purposes of a § l983 action. Will v. Michigan Dep’t of State Police, 491
U.S. 58, 70 (1989). The FDOC is an arm of the executive branch of state government,
see Fla. Stat. § 20.315, and thus, is not a person subject to an individual capacity claim
under § l983.
To the extent, Plaintiff predicates liability on the FDOC as a governmental
entity, the FDOC may be liable under § 1983 for failing to train Defendants Hoover
and Morris if: (1) the FDOC inadequately trains or supervises its employees; (2) this
failure to train or supervise is a policy of the FDOC; and (3) that policy causes the
employees to violate a person’s constitutional rights. See Gold v. City of Miami, 151
F.3d 1346, 1350 (11th Cir. 1998) (citing City of Canton v. Harris, 489 U.S. 378, 385
(1989)). Because a governmental entity will rarely have an express policy of
inadequately training or supervising its employees, a plaintiff may prove such a policy
by showing that the entity’s failure to train or supervise evidenced a deliberate
indifference to the rights of its citizens. Gold, 151 F.3d at 1350. “To establish a
‘deliberate or conscious choice’ or such ‘deliberate indifference,’ a plaintiff must
present some evidence that the municipality knew of a need to train and/or supervise
in a particular area and the municipality made a deliberate choice not to take any
action.” Id. A claim concerning an isolated incident is generally insufficient to sustain
a claim for failure to train; rather, there must be evidence “of a history of widespread
prior abuse” such that the FDOC was “on notice of the need for improved training or
supervision.” Wright v. Sheppard, 919 F.2d 665, 674 (11th Cir. 1990); see also Popham
v. City of Talladega, 908 F.2d 1561, 1564-65 (11th Cir.1990) (finding no liability for
failure to train when no pattern of incidents put the city on notice of a need to train).
Plaintiff fails to adequately allege a failure to train claim against Defendant
FDOC as a governmental entity. Rather than alleging that the FDOC has a policy of
inadequately training its employees to protect inmates from abuse by other inmates,
Plaintiff states that the FDOC has a policy to protect inmates from danger and that
Defendants Hoover and Morris violated that policy. Plaintiff further fails to allege that
the FDOC knew of a need to train and/or supervise its officers regarding this type of
abuse and made a deliberate decision to not train its officers. He does not allege that
there is a history of similar and widespread constitutional violations, which would
have put the FDOC on notice of the need to correct it. Instead, the allegations in the
Amended Complaint allege no more than a related set of facts that occurred on a single
day. As such, the sole claim against the FDOC is due to be dismissed.
Accordingly, it is
ORDERED AND ADJUDGED:
1. The claims against the Florida Department of Corrections are
DISMISSED without prejudice, and the Clerk shall terminate the Florida
Department of Corrections as a Defendant in this case.
2. A separate Order will enter regarding service of process on the remaining
Defendants.
DONE AND ORDERED at Jacksonville, Florida, this 9th day of December,
2019.
LH, () Cry
TIMOTHY J. CORRIGAN
United States District Judge
Jax-7
C: Carlos Bush, #23598-076