Cooper, Jr. v. Florida Department of Corrections

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

KEITH LAVON COOPER, JR.,

Plaintiff,

v. Case No. 3:19-cv-309-J-39MCR

FLORIDA DEPARTMENT OF

CORRECTIONS, et al.

Defendants.

_______________________________

ORDER

I. Status

Plaintiff, Keith Lavon Cooper, Jr., is proceeding on a third

amended complaint (Doc. 34; TAC), filed by private counsel. All

served Defendants have moved to dismiss the complaint (Docs. 44,

57, 60, 71).1

II. Motion to Dismiss Standard

“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); see also Lotierzo v. Woman’s World Med. Ctr.,

Inc., 278 F.3d 1180, 1182 (11th Cir. 2002). “A claim has facial

plausibility when the plaintiff pleads factual content that allows

the court to draw the reasonable inference that the defendant is

1 Plaintiff and Defendant Baker County filed a joint

stipulation for dismissal with prejudice of Defendant Baker County

(Doc. 59).

liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. A

plaintiff should allege enough facts “to raise a reasonable

expectation that discovery will reveal evidence” supporting the

plaintiff’s claims. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556

(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. In assessing the sufficiency of a complaint, all reasonable

inferences should be drawn in favor of the plaintiff. See Iqbal,

556 U.S. at 678.

III. Complaint Allegations

Plaintiff’s claims arise out of an incident that occurred on

April 30, 2015, at the Baker Correctional Center (the work camp).

See TAC ¶¶ 40, 59, 72. According to Plaintiff, up to twenty-two

other inmates, who were associated with a prison gang called the

“Cutthroats,” were impermissibly granted access to Plaintiff’s

housing unit and beat him to unconsciousness inside his cell while

corrections officers watched. Id. ¶¶ 51, 71-75. Plaintiff alleges

the gang-member inmates attacked him as retribution for falling

behind on extortion payments demanded by the head of the

Cutthroats, the “Terrorizer.”2 Id. ¶¶ 51-55.

Plaintiff alleges he avoided other attempted gang attacks

prior to the one that is the subject of his complaint. One day in

April, a gang-member inmate attempted to strike Plaintiff with a

lock in a sock, but Plaintiff was able to defend himself. Id. ¶¶

56, 57. Later in the week, Plaintiff avoided an attack by three

gang members. Id. ¶ 58. On the day of the attack that is the

subject of the complaint, four gang members surrounded Plaintiff

in the yard, but Plaintiff “was able to fight [them] off.” Id. ¶¶

60, 61, 64. Plaintiff alleges the officer-Defendants “were within

the vicinity, could observe the attack [in the yard], and did

nothing.” Id. ¶ 62. The subject attack occurred shortly after the

incident in the yard, after officers allowed the gang-member

inmates to enter his housing unit even though they were not

residents of that unit and should not have gained access. Id. ¶¶

66-70. The gang-member inmates entered with weapons, “including

locks, a plexiglass knife, and an ice pick.” Id. ¶ 70.

After the attack, Plaintiff was air-lifted to Shands

Hospital. Id. ¶ 89. He was discharged the following day. Id. ¶ 90.

2 Plaintiff spells this inmate’s nickname as both “Terrorizer”

and “Terrorizor.” See TAC ¶¶ 51, 52. The Court will use the former,

correct spelling.

Plaintiff sustained “brain trauma, including 4mm of brain

hemorrhaging and a right partial fracture of his skull.” Id. ¶ 91.

Upon his return to Baker Correctional, Plaintiff was housed in the

medical unit, though he did not see a doctor for three days. Id.

¶¶ 92-94. At that time, the Baker Correctional doctor ordered

Plaintiff’s transfer to Taylor Correctional Institution (TCI). Id.

¶ 94. Plaintiff’s medical records were not transported with him,

and officials at TCI placed Plaintiff in solitary confinement

despite his physical condition and inability to walk. Id. ¶ 95-

97. Officers at TCI “threatened [Plaintiff] in an attempt to get

him to walk or move,” which caused Plaintiff to urinate on himself.

Id. ¶¶ 98, 99. When Plaintiff requested medical attention, he was

taken to the infirmary. Id. ¶¶ 101, 102.

About three weeks later, Plaintiff had an MRI at Tallahassee

Memorial Hospital, and he was told “to see a neurologist in 2

days.” Id. ¶ 103. Plaintiff was subsequently sent back to TCI where

he remained for weeks without seeing a neurologist. Id. ¶ 104. A

second MRI was completed at the Reception and Medical Center, which

revealed Plaintiff had a pinched nerve or swelling in his brain.

Id. ¶ 105. Plaintiff alleges he developed cysts and bed sores, and

due to the alleged inadequate medical care, his “injuries [from

the attack] were exacerbated, took longer to heal, and became more

complicated.” Id. ¶ 106, 107. Plaintiff attributes the following

injuries to the attack:

hand, arm and leg pain, lacerations to his

head, deformity to his eyebrow, multiple stab

wounds to his arm and head, bruising and

injury to his rib cage and upper back,

abrasions to his legs, nasal bone fracture

requiring surgery, paralysis of his legs and

lower extremities requiring physical therapy,

numbness in his lower extremities, headaches,

complications with his eyesight including

blurred vision and a parietal fracture, brain

trauma, and the inability to be mobile without

a wheelchair.

Id. ¶115.

Plaintiff sues the Florida Department of Corrections (FDOC),

ten officers of different rank, the Warden of Baker Correctional,

and the contract medical provider for the FDOC, Corizon Health,

Inc. In Count I, Plaintiff alleges the officer-Defendants and

Warden Freeman were deliberately indifferent to a serious risk of

bodily harm. Id. ¶¶ 124-28. Plaintiff alleges the officers’ and

Warden’s “failure to stop or take action to stop the unlawful

assaults, attacks, injuries, and abuse constituted deliberate

indifference to the known and obvious consequences of violating

Plaintiff’s constitutional rights and causing him great bodily

injury.” Id. ¶ 129.

Plaintiff asserts Defendants (as a group) failed to take

measures to ensure Plaintiff’s safety and failed to intervene

during the attack. Id. ¶131. Additionally, Plaintiff alleges the

following acts or omissions contributed to the attack: failing to

protect inmates generally and Plaintiff in particular from gang

violence; failing to check identification before inmates enter

housing units and permitting inmates to enter units in which they

do not reside; failing to check inmates for weapons; failing to

intervene during inmate-on-inmate violence; and failing to “inform

guards or take any precautionary action after observing

gangmembers [sic] attack an inmate.” Id.

In Count II, Plaintiff alleges all Defendants were

deliberately indifferent to Plaintiff’s serious medical needs by

(1) delaying needed treatment for up to three days at Baker

Correctional and (2) failing to send Plaintiff’s medical records

to TCI, which resulted in additional delays in receiving treatment.

Id. ¶¶ 140-42, 145, 146.

In Count III, Plaintiff alleges the officer-Defendants and

Warden Freeman were deliberately indifferent to a serious risk of

harm by the acts and omissions referenced in Count I, including

allowing unregistered inmates access to Plaintiff’s housing unit

with weapons knowing the inmates planned to attack Plaintiff.

In Count IV, Plaintiff alleges the FDOC maintained “customs,

practices, and/or policies,” and “acted with deliberate

indifference to the foreseeable effects” of those customs,

practices, and policies. Id. ¶¶ 168, 170.

IV. Analysis

A. The FDOC’s Motion

The FDOC seeks dismissal of the sole Count against it, Count

IV, asserting the FDOC is not a “person” amenable to suit under §

1983 and the Eleventh Amendment bars the claim (Doc. 44; FDOC

Motion). In response (Doc. 46; Pl. FDOC Resp.), Plaintiff contends

the FDOC fails to demonstrate “whether the State of Florida

structured the FDOC meaning for it to be under the immunity Florida

enjoys.” Pl. FDOC Resp. at 4.

Plaintiff’s argument is unconvincing. The state of Florida

and agencies of the state, including the FDOC, are not persons

under § 1983 subject to monetary liability. See Gardner v. Riska,

444 F. App’x 353, 355 (11th Cir. 2011) (quoting Edwards v. Wallace

Cmty. Coll., 49 F.3d 1517, 1524 (11th Cir.1995)). See also Will v.

Michigan Dep’t of State Police, 491 U.S. 58 (1989) (“[N]either a

State nor its officials acting in their official capacities are

‘persons’ under § 1983.”). Accordingly, the FDOC is due to be

dismissed.

B. Corizon’s Motion

Corizon seeks dismissal on the ground that Plaintiff fails to

allege facts demonstrating a causal connection between Plaintiff’s

injuries and any action or inaction by Corizon (Doc. 57; Corizon

Motion). Specifically, Corizon maintains Plaintiff does not

identify a Corizon employee who was deliberately indifferent to

Plaintiff’s serious medical needs and does not identify a custom,

policy, or practice of Corizon’s that caused Plaintiff harm.

Corizon Motion at 7, 10. Corizon also asserts Plaintiff’s complaint

is facially deficient as a “shotgun” pleading because Plaintiff

“lumps the Defendants together” and does not specify what acts or

omissions of each Defendant caused Plaintiff’s injuries. Id. at 2-

4.

In response (Doc. 58; Pl. Corizon Resp.), Plaintiff contends

he states a claim for deliberate indifference against Corizon

because he alleges his medical care at Baker Correctional was

delayed for three days, and he was sent to TCI without medical

documentation, resulting in additional treatment delays. Pl.

Corizon Resp. at 3-4, 6-7. Plaintiff further says he alleges

Corizon adopted a policy or custom of “failing to provide medical

care to inmates” and failing to train employees to provide medical

care and handle inmate transfers appropriately. Id. at 7.

Upon review, the Court finds Plaintiff fails to state a

plausible claim for relief against Corizon because, contrary to

Plaintiff’s contention in his response, he does not identify in

his complaint a policy or custom of Corizon’s that resulted in

delayed or inadequate medical treatment. See TAC ¶¶ 139-50. Rather,

it appears Plaintiff names Corizon merely because it is the company

that provides contract medical services for the FDOC. Even if an

individual Corizon employee intentionally delayed providing

treatment for Plaintiff (which Plaintiff does not allege), a claim

against Corizon cannot proceed upon a theory of respondeat

superior. Supervisory officials, including private corporations

like Corizon, cannot be held liable under § 1983 in the absence of

allegations identifying a policy or custom that was the moving

force behind a constitutional violation. See Ross v. Corizon Med.

Servs., 700 F. App’x 914, 917 (11th Cir. 2017) (citing Craig v.

Floyd Cty., 643 F.3d 1306, 1310 (11th Cir. 2011)). See also Cottone

v. Jenne, 326 F.3d 1352, 1360 (11th Cir. 2003) (“It is well

established in this Circuit that supervisory officials are not

liable under § 1983 for the unconstitutional acts of their

subordinates on the basis of respondeat superior or vicarious

liability.” (internal quotation marks omitted)).

While systemic deficiencies in a prison health care’s

treatment protocol can suggest deliberate indifference, Plaintiff

does not allege systemic deficiencies. His claim is premised solely

on the adequacy of the care he received after the attack. See,

e.g., Denham v. Corizon Health, Inc., 675 F. App’x 935, 944 (11th

Cir. 2017) (holding the plaintiff failed to demonstrate municipal

liability because her “claim that Corizon had a custom of providing

inadequate medical care” was based solely on her own experiences,

which constituted “at most, proof of a single incident of

unconstitutional activity”) (quoting Craig v. Floyd Cty., Ga., 643

F.3d 1306, 1312 (11th Cir. 2011)).

Not only does Plaintiff fail to identify systemic

deficiencies in Corizon’s treatment protocol, he alleges he

received immediate medical attention. According to Plaintiff,

prison officials arranged for him to be air-lifted to the hospital

and, upon his return to Baker Correctional, officials placed him

in the medical unit where, presumably, he was under the care of

medical professionals. That Plaintiff believes he should have seen

a prison doctor immediately after he was released from the hospital

does not, by itself, permit the inference that Corizon had a policy

or custom of delaying medical care for inmates. See id. Cf. Ancata

v. Prison Health Servs., Inc., 769 F.2d 700, 705-06 (11th Cir.

1985) (holding the plaintiff stated a deliberate indifference

claim against the municipality because he alleged the municipality

“established or utilized a policy or custom requiring that inmates

needing medical assistance obtain court orders,” which resulted in

a delay in necessary treatment).

In fact, Plaintiff’s subjective belief that a doctor should

have visited him sooner suggests a disagreement with medical

treatment, not deliberate indifference. See Waldrop v. Evans, 871

F.2d 1030, 1033 (11th Cir. 2007). Hamm v. DeKalb Cty., 774 F.2d

1567, 1575 (11th Cir. 1985) (“Where a prisoner has received . . .

medical attention and the dispute is over the adequacy of the

treatment, federal courts are generally reluctant to second guess

medical judgments and to constitutionalize claims that sound in

tort law.” (quoting with alteration Westlake v. Lucas, 537 F.2d

857, 860 n.5 (1st Cir. 1981))). While it certainly appears there

was a breakdown in communication when Plaintiff was sent to TCI

without records alerting officials to his medical condition,

Plaintiff asserts no facts suggesting such oversight was

attributable to a Corizon policy or custom. Indeed, he does not

even attribute the oversight to a Corizon employee. Accordingly,

Plaintiff fails to state a plausible claim for relief against

Corizon.

C. The Officers’ Motion

The officer-Defendants invoke qualified immunity for

Plaintiff’s failure to state a claim against them (Doc. 60; Officer

Motion). They also argue Plaintiff fails to assert specific

allegations against each officer individually but rather asserts

general allegations against them collectively.3 Officer Motion at

8-9.

In response (Doc. 61; Pl. Officer Resp.), Plaintiff argues

the officers are not entitled to qualified immunity because he

3 The officer-Defendants also argue Plaintiff fails to “go

beyond typical notice pleading and meet a heightened pleading

standard.” Officer Motion at 7. As articulated by the Supreme Court

in Iqbal and Twombly, notice-pleading is the standard. See Iqbal,

556 U.S. at 678-79; Twombly, 550 U.S. at 555. See also Randall v.

Scott, 610 F.3d 701, 709 (11th Cir. 2010) (“Pleadings for § 1983

cases involving defendants who are able to assert qualified

immunity as a defense shall now be held to comply with the

standards described in Iqbal.”).

alleges the violation of a clearly established constitutional

right under the Eighth Amendment (e.g., deliberate indifference).

Pl. Officer Resp. at 6-7, 8.

Upon review, the Court finds Plaintiff fails to put the

officers on notice of the claims against them and the factual basis

for those claims. In his general allegations, Plaintiff says the

officer-Defendants observed the attack from the security room and

failed to stop it, which suggests he proceeds under a failure-to-

intervene theory. Accepting these facts as true, Plaintiff states

a claim against the officer-Defendants solely to the extent they

observed an attack and failed to intervene. But it appears

Plaintiff also seeks to advance a failure-to-protect theory of

liability against the officer-Defendants based on events that

preceded the attack or based on general conditions at the prison.

Plaintiff’s allegations as to what each officer knew and what each

officer did, however, are unclear.

For instance, in Counts I and III, in addition to alleging

the officers failed to intervene during the attack, Plaintiff lists

a series of other acts or omissions against the officers as a

group, which he contends demonstrates their “reckless disregard”

for his safety: failing to protect inmates generally from prison

gangs; failing to check identification before inmates enter

housing units; affirmatively permitting unregistered inmates into

housing units; failing to check inmates for weapons; and failing

to ensure inmates did not have access to items that could be used

as weapons.4

Plaintiff attributes these acts or omissions to the officer-

Defendants collectively; he makes no distinction between the

officers. But whether a defendant had subjective knowledge of a

risk of serious harm necessarily depends on what that defendant

knew; “[i]mputed or collective knowledge cannot serve as the basis

for a claim of deliberate indifference.” Nam Dang by & through

Vina Dang v. Sheriff, Seminole Cty. Fla., 871 F.3d 1272, 1280 (11th

Cir. 2017). Thus, Plaintiff must allege not only that he faced a

substantial risk of serious harm but also that the officer-

Defendants, individually, not collectively, “subjectively knew of

the substantial risk of serious harm and . . . knowingly or

recklessly disregarded that risk.” See Goodman v. Kimbrough, 718

F.3d 1325, 1332 (11th Cir. 2013) (quoting Hale v. Tallapoosa Cty.,

50 F.3d 1579, 1583 (11th Cir. 1995)).

Significantly, Plaintiff does not explicitly say the officers

who observed the attack in his cell were the ones who permitted

4 Moreover, in his response to the officer-Defendants’ motion,

Plaintiff says he “has pled that Defendant Officers had knowledge

of his previous attack the week before,” and Plaintiff cites case

law suggesting he pursues a failure-to-protect theory. Pl. Officer

Resp. at 7, 9 (emphasis added) (citing Bowen v. Warden Baldwin

State Prison, 826 F.3d 1312, 1324-25 (11th Cir. 2016). Nowhere in

Plaintiff’s complaint does he allege the officer-Defendants

observed or otherwise had knowledge of an attempted attack the

week before April 30, 2015.

the gang-member inmates to enter Plaintiff’s housing unit knowing

those inmates intended to harm Plaintiff. Even more, while

Plaintiff certainly implies the officer-Defendants saw the failed

attack in the yard just before the attack inside the cell occurred

(saying the officers were “within the vicinity, [and] could observe

the attack”), he does not affirmatively allege the officers did

see the attack and, if they did, also permitted those same inmates

to then impermissibly enter Plaintiff’s housing unit with weapons

in hand.

To the extent Plaintiff intends to premise his theory of

liability on the notion that gang violence at Baker Correctional

was rampant but ignored (i.e., Plaintiff alleges Defendants failed

to “protect inmates from threats and coercion from prison gangs”),

he references no other instances of gang violence aside from the

few directed at him. He also does not allege the officer-Defendants

knew the Terrorizer had been extorting payments from him or that

gang-member inmates had threatened him when he fell behind on those

payments.

Finally, as to Count II, Plaintiff fails to allege how each

officer-Defendant, individually, failed or refused to obtain

medical treatment for him. Plaintiff’s assertion that the officers

were deliberately indifferent to his serious medical need amounts

to no more than “an unadorned, the-defendant-unlawfully-harmed-me

accusation.” Iqbal, 556 U.S. at 678. Additionally, Plaintiff’s

factual allegations belie his suggestion that his medical needs

were ignored. He acknowledges he was immediately air-lifted to the

hospital following the attack and, when he returned to Baker

Correctional, he was housed in the medical unit.

Even assuming Plaintiff should have seen a doctor immediately

when he returned to Baker Correctional, Plaintiff does not

attribute the delay to any individual officer-Defendant. He also

does not allege any officer-Defendant was responsible for sending

his medical documentation to TCI but intentionally failed or

refused to do so. And three days after his release from the

hospital, Plaintiff was transferred to TCI. See TAC ¶ 94. The Baker

Correctional officers cannot be held to account for any lapse in

medical care that occurred after his transfer.

In light of the above, the Court finds Plaintiff’s allegations

against the officer-Defendants fail to put them on notice of the

nature of the claims against them.5 If the officer-Defendants are

to be expected to answer the complaint, they must have notice of

5 The lack of clarity of Plaintiff’s claims and factual

allegations is compounded by the fact that each Count incorporates

all prior paragraphs, including those of the preceding Counts.

Such practice generally is condemned as a “shotgun” approach to

pleading. Weiland v. Palm Beach Cty. Sheriff’s Office, 792 F.3d

1313, 1321 (11th Cir. 2015) (describing the most common type of

shotgun pleading as one in which “each count adopts the allegations

of all preceding counts, causing each successive count to carry

all that came before and the last count to be a combination of the

entire complaint”).

the claims against them and the factual allegations that form the

basis of those claims.

D. Warden Freeman’s Motion

Warden Freeman contends any claim against him in his official

capacity is barred under the Eleventh Amendment (Doc. 71; Warden

Motion).6 As to claims against him in his individual capacity,

Warden Freeman notes Plaintiff asserts no allegations against him,

and he invokes qualified immunity. Warden Motion at 7, 9-10, 12.

In response (Doc. 72; Pl. Warden Resp.), Plaintiff first notes the

motion is untimely because Warden Freeman filed it more than

twenty-one days after he was served, and Plaintiff says the motion,

therefore, should be stricken. Pl. Warden Resp. at 2, 6.7

Additionally, Plaintiff asserts Warden Freeman is not entitled to

qualified immunity because Plaintiff alleges Warden Freeman knew

Plaintiff was in danger but failed to protect him. Id. at 7-8.

Contrary to Plaintiff’s contention in his response, he does

not allege Warden Freeman knew he was in danger and failed to

6 Plaintiff clarifies he sues Warden Freeman solely in his

individual capacity. See Pl. Warden Resp. at 5 n.1. Thus, Warden

Freeman’s motion is moot in this regard.

7 Warden Freeman was served on October 2, 2019 (Doc. 52). He

did not file his motion until May 4, 2020. Even though Warden

Freeman’s motion to dismiss is untimely, Plaintiff’s request that

it be stricken is not properly before the Court. See Fed. R. Civ.

P. 7(b) (requiring requests for relief to be made by motion).

Additionally, the Court notes Plaintiff did not move for default

against Warden Freeman.

protect him. In fact, Plaintiff attributes absolutely no factual

allegations to Warden Freeman. To the extent Plaintiff names the

Warden solely because of the title he holds, Plaintiff fails to

state a viable claim for relief under § 1983. See Cottone, 326

F.3d at 1360. Supervisor liability arises only “when the supervisor

personally participates in the alleged constitutional violation or

when there is a causal connection between the actions of the

supervising official and the alleged constitutional deprivation.”

Mathews v. Crosby, 480 F.3d 1265, 1270 (11th Cir. 2007) (quoting

Cottone, 326 F.3d at 1360). See also Reid v. Sec’y, Fla. Dep’t of

Corr., 486 F. App’x 848, 852 (11th Cir. 2012) (affirming summary

judgment in favor of a defendant sued “only in his supervisory

capacity” because the plaintiff asserted no allegations that the

defendant participated in the action or that he was causally

responsible for any violations).

Plaintiff alleges no facts demonstrating Warden Freeman

personally participated in the alleged constitutional violations,

nor does he allege facts otherwise demonstrating the requisite

causal connection. Plaintiff’s conclusory assertions do not

suffice. See Tani v. Shelby Cty., Ala., 511 F. App’x 854, 857 (11th

Cir. 2013) (affirming dismissal of a complaint that alleged, as

labels and conclusions, violations of various constitutional

rights with no supporting facts to “explain what actions caused

which violations”).

V. Leave to Amend

Because Plaintiff fails to adequately set forth his claims

against Corizon, the officer-Defendants, and Warden Freeman, their

motions are due to be granted. However, in response to all motions,

Plaintiff requests leave to amend his complaint. Pl. Corizon Resp.

at 9; Pl. Officer Resp. at 12; Pl. Warden Resp. at 10. Accordingly,

the Court will permit Plaintiff an opportunity to amend his

complaint as to the claims against Corizon, the officers, and

Warden Freeman. See Wagner v. Daewoo Heavy Indus. Am. Corp., 314

F.3d 541, 542 (11th Cir. 2002).8 In amending his complaint,

Plaintiff must cure the deficiencies noted in this Order, and he

must satisfy federal pleading standards.

As to the officer-Defendants, Plaintiff must clarify whether

he asserts solely a deliberate indifference claim for the officers’

failure to intervene when they observed the April 30, 2015 attack,

or whether he also asserts the officers knew he was at risk of

being attacked by gang-member inmates and failed to take

appropriate steps to protect him. If Plaintiff pursues the latter

theory of liability, he must allege facts demonstrating each

officer had subjective knowledge that Plaintiff faced a risk of

serious harm and, in the face of such knowledge, failed to respond

to the risk in an objectively reasonable manner. As to either

8 Plaintiff may not amend his claim against the FDOC, however,

because any such amendment would be futile.

theory, Plaintiff should omit extraneous factual allegations and

avoid asserting mere conclusions devoid of factual support. If

Plaintiff intends to pursue a claim against the officer-Defendants

for deliberate indifference to his serious medical needs, he must

allege facts respecting all material elements of such a claim.

Conclusory assertions will not suffice.

As to Corizon and Warden Freeman, Plaintiff should assess the

facts and law to determine whether he has a plausible basis upon

which to proceed.

Accordingly, it is now

ORDERED:

1. The FDOC’s motion to dismiss Count IV of Plaintiff’s

Third Amended Complaint (Doc. 44) is GRANTED.

2. Plaintiff’s claims against the FDOC are dismissed. The

Clerk is directed to terminate the FDOC as a Defendant.

3. Corizon’s motion to dismiss (Doc. 57) is GRANTED to the

extent Plaintiff fails to state a claim for relief against Corizon.

4. Defendants Massee, Sailee, Saylor, Doe TA, Bickerstaff,

Burnett, Guitherman, Phillips, Stephen, and Powell’s motion to

dismiss (Doc. 60) is GRANTED to the extent Plaintiff fails to

adequately set forth his claims against these Defendants.

5. Warden Freeman’s motion to dismiss (Doc. 71) is GRANTED

to the extent Plaintiff fails to state a claim for relief against

the Warden.

6. Plaintiff’s claims against Defendants Corizon, the

officers, and Warden Freeman are dismissed without prejudice

subject to his right to amend his complaint. Plaintiff shall submit

an amended complaint within twenty-one days of the date of this

Order. Plaintiff’s failure to properly set forth his claims against

any Defendant may result in the dismissal of those claims.

7. Pursuant to the joint stipulation for dismissal (Doc.

59), Plaintiff’s claims against Baker County are dismissed with

prejudice. The Clerk is directed to terminate Baker County as a

Defendant.

DONE AND ORDERED at Jacksonville, Florida, this 27th day of

July 2020.

Ban) Baas

BRIAN J. DAVIS

United States District Judge

Jax-6

Cc:

Counsel of Record

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