Harmon v. Black

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

FORT MYERS DIVISION

DAVID LEE HARMON,

Plaintiff,

v. Case No: 2:20-cv-155-FtM-29MRM

FNU BLACK, Dr. and FLORIDA

CENTER FOR FOOT & ANKLE

RECONSTRUCTION ORTHOPEDICS,

Defendants.

ORDER OF DISMISSAL WITHOUT PREJUDICE

Plaintiff David Lee Harmon, who is confined in the Charlotte

County Jail, instituted this action by filing a pro se Complaint

for Violation of Civil Rights under 42 U.S.C. § 1983 (Doc. #1).

Plaintiff seeks to proceed in forma pauperis on his Complaint (Doc.

#4). Because the Court finds the Complaint subject to dismissal

under 28 U.S.C. § 1915A and § 1915(e), the Court will not grant

Plaintiff in forma pauperis status nor assess the $350.00 filing

fee under 28 U.S.C. § 1915(b)(1).

Plaintiff’s status as a prisoner1 seeking to proceed in forma

pauperis mandates the Court to conduct a frivolity screening to

determine whether the Complaint “is frivolous, malicious, or fails

1 It is unclear whether Harmon is pretrial detainee or a prisoner.

However, Harmon is considered a prisoner for purposes of review under 28 U.S.C.

§ 1915A, as the term includes “any persons incarcerated or detained in any

facility who is accused of . . . violations of criminal law . . . .” Id. §

1915A(c).

to state a claim upon which relief may be granted; or,

alternatively “seeks monetary relief from a defendant who is immune

from such relief.” 28 U.S.C. § 1915A(a)-(b)(requiring court to

review “before docketing, if feasible” a prisoner complaint and

identify cognizable claims or dismiss the complaint); see also 28

U.S.C. § 1915(e)(2)(B)(ii)(permitting court sua sponte to dismiss

a case for failing to state claim at any time notwithstanding that

any filing fee has been paid). The phrase “fails to state a claim

upon which relief may be granted” has the same meaning as the

nearly identical phrase in Federal Rule of Civil Procedure

12(b)(6). See Leal v. Ga. Dep’t of Corr., 254 F.3d 1276, 1278-79

(11th Cir. 2001)(per curiam). While a complaint need not provide

detailed factual allegations, there “must be enough to raise a

right to relief above the speculative level,” and the complaint

must contain enough facts to state a claim that is “plausible on

its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555–56 (2007).

In making the above determinations, all factual allegations in the

complaint must be liberally construed and accepted as true. Leib

v. Hillsborough Cty. Pub. Transp. Comm’n., 558 F.3d 1301, 1305

(11th Cir. 2009).

To state a § 1983 claim, a plaintiff must allege that (1) the

defendant deprived him of a right secured under the Constitution

or federal law, and (2) the deprivation occurred under color of

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

(citing Arrington v. Cobb County, 139 F.3d 865, 872 (11th Cir.

1998). In addition, a plaintiff must allege and establish an

affirmative causal connection between the defendant’s conduct and

the constitutional deprivation. Marsh v. Butler County, Ala., 268

F.3d 1014, 1059 (11th Cir. 2001).

The Complaint names the following as defendants: Dr. Black,

an orthopedic surgeon, and Florida Center for Foot & Ankle

Reconstruction Orthopedics, the business “that employs Dr. Black”

in Cape Coral, Florida. Doc. #1 at 2, 6. Under the Statement of

Claim section of the Complaint, Harmon alleges “Dr. Black did

knowingly put my life and body in danger because of his malpractice

and caused me pain and suffering.” Id. at 5 (emphasis added).

The Complaint sets forth these brief facts. Harmon was sent

for a consultation with Dr. Black about Harmon’s “broken bones” by

Corizon Health Services and the Charlotte County Jail. Id. at 6.

Harmon was in a wheelchair and during the examination Dr. Black

“stretched and pulled on [Plaintiff’s] broken foot” which caused

Plaintiff “so much pain” he “almost lost consciousness.” Id. Dr.

Black advised the officers escorting Harmon he “wanted [Harmon] up

and walking.” Id. Harmon wore an “‘air’ cast boot” and “fell a

few times from pain and loss of feeling in [his] leg.” Id.

Eventually Harmon saw another surgeon who performed surgery on him

and “was appalled to here [sic] of this” and put [Harmon] back

into [his] wheelchair.” Id. As relief, Harmon seeks unspecified

“monetary relief” and “news” that Dr. Black “can’t hurt anyone

again.” Id. 8-9.

Initially, the Complaint contains no allegations from which

the Court can construe that either Dr. Black or Florida Center for

Foot & Ankle Reconstruction Orthopedics are state actors. To the

contrary, the Complaint states Dr. Black is an orthopedic surgeon

employed at Florida Center for Foot & Ankle Reconstruction

Orthopedic in Cape Coral, Florida. There are no allegations that

either defendant was affiliated with Charlotte County Jail. See

Harvey v. Harvey, 949 F.2d 1127, 1133-34 (11th Cir.

1992)(distinguishing private physicians and holding “private

physicians not under contract with a state institution” are not

state actors). Dr. Black did not examine or treat Harmon at the

jail but examined Harmon at his employer’s place of business. A

private business is not considered “persons acting under color of

state law” for 42 U.S.C. § 1983. See Rayburn v. Hogue, 241 F.3d

1341, 1347 (11th Cir. 2001). “[T]he under-color-of-state-law

element of § 1983 excludes from its reach merely private conduct,

no matter how discriminatory or wrongful.” Blum v. Yaretsky, 457

U.S. 991, 1002 (1982) (internal quotations and citations omitted).

In rare circumstances, a private party may be considered a state

actor for § 1983. Harvey v. Harvey, 949 F.2d 1127, 1130 (11th Cir.

1992); see also Lugar v. Edmondson Oil Co., 457 U.S. 922, 938-39

(1982). Here, the Complaint does not allege any facts from which

the Court can liberally construe that either Dr. Black or his

employer are state actors. See Rayburn, 241 F.3d at 1347.

Alternatively, the Court finds the Complaint fails to

plausibly claim an Eighth Amendment constitutional violation even

under a liberal construction. To articulate a claim under § 1983

for inadequate medical treatment, the Complaint must allege that

the failure to provide adequate treatment amounted to cruel and

unusual punishment in violation of the Eighth Amendment to the

United States Constitution. The Complaint expressly predicates

liability upon Dr. Black for “malpractice” when examining

Plaintiff’s “broken bones” and recommending Plaintiff walk with an

air cast boot. Liberally construed, Plaintiff’s claims sound in

negligence. Negligence in providing medical care, including

medical care that constitutes state law malpractice, does not state

a valid claim for deliberate indifference under the Eighth

Amendment. Estelle v. Gamble, 429 U.S. 97, 105-06 (1976). Nor

does the fact that a subsequent doctor disagreed with Dr. Black’s

medical judgment give rise to an Eight Amendment claim Id. at

107; Harris v. Thigpen, 941 F. 2d 1495, 1505 (11th Cir. 1991).

Harmon claims Dr. Black’s examination of his broken bones caused

him pain, but “[m]edical treatment violates the eighth amendment

only when it is ‘so grossly incompetent, inadequate, or excessive

as to shock the conscience or to be intolerable to fundamental

fairness.’” Id., 941 F.2d at 1505 (quoting Rogers v. Evans, 792

F.2d 1052, 1058 (11th Cir. 19860)). Finally, Florida Center for

Foot & Ankle Reconstruction Orthopedics cannot be liable under

section 1983 on a respondeat superior or vicarious liability basis.

Monell v. Dep’t of Social Serv., 436 U.S.C. 658 (1978).

The Court finds the case must be dismissed under 28 U.S.C. §

1915A and § 1915(e)(2)(B)(ii) because the Complaint fails to allege

a violation of a constitutional right under § 1983 and fails to

allege any fact from which the Court can find either defendant is

a state actor. See Freeze v. Sawyer, No. 18-12671 (11th Cir.

April 3, 2020)(affirming district court’s authority to sua sponte

dismiss pro se plaintiff’s complaint after determining it failed

to state a claim under § 1915(e)(2)(B)(ii)). The Court is mindful

in certain circumstances, a pro se litigant must be given an

opportunity to amend his complaint. See Brown v. Johnson, 387 F.3d

1344, 1349 (11th Cir. 2004) (finding “[b]ecause [plaintiff] filed

his motion to amend before the district court dismissed his

complaint and before any responsive pleadings were filed,

[plaintiff] had the right to amend his complaint under Rule

15(a).”); see also Troville v. Venz, 303 F.3d 1256, 1260 (finding

“no error” in district court’s sua sponte dismissal but because

plaintiff requested leave to amend before dismissal court

plaintiff should have granted leave); Bryant v. Dupree, 252 F.3d

1161, 1163-64 (11th Cir. 2001) (finding district court’s denial of

motion to amend in response to motion to dismiss improper).

Plaintiff does not seek to amend his complaint. Further, because

the Court is dismissing this case without prejudice, Plaintiff may

file a new complaint in a new action if he can plausibly state an

Eighth Amendment claim of deliberate indifference to medical care

and allege an affirmative causal connection between a state actor’s

conduct and the constitutional deprivation.

Accordingly, it is hereby

ORDERED:

1. Plaintiff's Complaint (Doc. #1) is dismissed without

prejudice under § 1915A(b)(1) and § 1915(e)(2)(B) (ii).

2. The Clerk of Court shall terminate any pending motions,

enter judgment, and close this file.

Clerk shall enclose a blank complaint form and

affidavit of indigency form with this Order.

DONE and ORDERED at Fort Myers, Florida, this 22nd day

of April, 2020.

4 LEC

E. STEELE

Sq IOR UNITED STATES DISTRICT JUDGE

SA: FTMP-1

Copies:

Counsel of Record