Wisemandle v. Neol

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

FORT MYERS DIVISION

GARY LEE WISEMANDLE,

Plaintiff,

v. Case No.: 2:18-cv-370-FtM-38NPM

EMMANUEL NEOL,

Defendant.

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OPINION AND ORDER1

This matter is before the Court upon initial review of the file. Plaintiff Gary Lee

Wisemandle’s seeks to proceed in forma pauperis (Doc. 2) on his pro se civil rights

complaint (Doc. 1). Plaintiff is a convicted and sentenced state prisoner. (Id. at 4).

Because Plaintiff is incarcerated and seeks leave to proceed in forma pauperis, the Court

must review his Complaint to decide if it is frivolous, malicious, or fails to state a claim

upon which relief may be granted. See 28 U.S.C. § 1915A and § 1915(e)(2)(B)(i)-(iii).

BACKGROUND

Plaintiff filed his claim on the court’s preprinted civil rights form. (Doc. 1). The

complaint names Dr. Emmanuel Noel as the sole defendant, who Plaintiff identifies as the

“doctor” at “Glades County Facility.” (Id. at 2). Plaintiff did not complete section II of the

form titled “Basis for Jurisdiction.” (Id. at 3-4). Instead he left this section blank arguably

indicating he did not intend to sue under 42 U.S.C. § 1983. Plaintiff also failed to complete

1 Disclaimer: Documents hyperlinked to CM/ECF are subject to PACER fees. By using hyperlinks, the

Court does not endorse, recommend, approve, or guarantee any third parties or the services or products

they provide, nor does it have any agreements with them. The Court is also not responsible for a hyperlink’s

availability and functionality, and a failed hyperlink does not affect this Order.

section IV of the form titled “Statement of Claim.” (Id. at 4-5). Thus, the complaint is

devoid of any facts. In section V titled “Injuries” Plaintiff states: “Medical malpractice,

false diagnosis by a physician, face swollen, kidney failure, stomach damage, heart, liver

damage, prostrate damage.” (Id. at 5). As relief, Plaintiff states he wishes “to sue the

staff doctor at Glades County Detention Center for malpractice and false diagnosis for

near death” and seeks $2,500,000 in damages. (Id.).

STANDARD OF REVIEW

The standard that governs dismissals under Rule 12(b)(6) applies to dismissals

under § 1915. Alba v. Montford, 517 F. 3d 1249, 1252 (11th Cir. 2008). However, pro se

complaints are held to “less stringent standards” than those drafted and filed by attorneys.

Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citing Estelle v. Gamble, 429 U.S. 97, 106

(1976)). Under Rule 12(b)(6), a complaint may be dismissed if the claim alleged is not

plausible. Bell Atlantic v. Twombly, 550 U.S. 544, 556 (2007). All pleaded facts are

deemed true for Rule 12(b)(6), but a complaint is still insufficient without adequate facts.

Id. The plaintiff must assert enough facts to allow “the court to draw the reasonable

inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556

U.S. 662, 678 (2009). The asserted facts must “raise a reasonable expectation that

discovery will reveal evidence” for the plaintiff’s claim. Twombly, 550 U.S. at 556. Overall,

“labels . . . conclusions, and a formulaic recitation of the elements of a cause of action”

are not enough to meet the plausibility standard. Id. at 555. Ordinarily, a pro se litigant

must be given an opportunity to amend his complaint. Brown v. Johnson, 387 F.3d 1344,

1349 (11th Cir. 2004). However, if an amendment would be futile, the district court may

deny leave to amend. Bryant v. Dupree, 252 F.3d 1161, 1163 (11th Cir. 2001). But the

Court must read a pro se plaintiff’s complaint in a liberal fashion. Hughes v. Lott, 350

F.3d 1157, 1160 (11th Cir. 2003).

DISCUSSION

Liberally construed, the complaint alleges a simple medical malpractice claim

against Defendant. Simple state-law tort medical malpractice claims are not cognizable

in a federal court. A complaint that a physician has been negligent in diagnosing or

treating a medical condition does not state a valid claim of medical mistreatment under

the Eighth Amendment. Estelle v. Gamble, 429 U.S. 97, 106 (1976). Medical malpractice

does not become a constitutional violation merely because the victim is a prisoner. Id.;

Campbell v. Sikes, 169 F.3d 1353, 1363-72 (11th Cir. 1999) (explaining that medical

malpractice cannot support Eight Amendment liability). A “federal court is powerless to

act beyond its statutory grant of subject matter jurisdiction, a court must zealously insure

that jurisdiction exists over a case, and should itself raise the question of subject matter

jurisdiction at any point in the litigation where a doubt about jurisdiction arises.” Smith v.

GTE Corp., 236 F.3d 1292, 1299 (11th Cir. 2001). Thus, because Plaintiff has not stated

a cause of action under federal law, and claims based on Florida state tort law does not

confer jurisdiction on this Court, dismissal is mandatory.

Because Plaintiff is pro se, the Court will allow Plaintiff to file an amended

complaint to cure the jurisdictional deficiency. To invoke the jurisdiction of the Court,

Plaintiff must properly “allege the jurisdictional facts, according to the nature of the

case.” McNutt v. Gen. Motors Acceptance Corp. of Indiana, 298 U.S. 178, 182 (1936).

To impute this Court’s jurisdiction for an Eighth Amendment claim, Plaintiff must allege:

(1) he had a serious medical need – the objective component, (2) a defendant acted

with deliberate indifference to that need – the subjective component, and (3) his injury

was caused by a defendant's wrongful conduct. Goebert v. Lee County, 510 F.3d

1312, 1326 (11th Cir. 2007); see also Thomas v. Bryant, 614 F.3d 1288, 1317 n.29

(11th Cir. 2010).

Accordingly, it is now

ORDERED:

The Complaint (Doc. 1) is DISMISSED without prejudice.

1. If Plaintiff wishes to invoke this Court’s jurisdiction, he must file an

amended complaint on the enclosed form within twenty-one (21) days

of the date on this Order. Plaintiff’s failure to timely file an amended

complaint or explain his inability to comply will result in a dismissal

of this case without further notice.

2. Plaintiff’s Application for Determination of Civil Indigent Status (Doc. 2)

is DENIED without prejudice.

3. If Plaintiff files an amended complaint, he must also file a renewed

motion to proceed in forma pauperis at the same time. Plaintiff need not

attach another Financial Certificate or Prisoner Consent Form, as the

Court will consider, if necessary, Plaintiff’s previously filed documents

(Doc. 7; Doc. 8).

4. The Clerk is DIRECTED to provide Plaintiff with a blank (a) civil rights

form marked “amended complaint” with the assigned case number for

his use, if appropriate; and (b) application to proceed in district court in

forma pauperis.

DONE and ORDERED in Fort Myers, Florida this 17th day of December 2019.

shen WOblotrat ke 7

UNITED STATES DISTRICT JUDGE

SA: FTMP-2

Copies: All Parties of Record