Liss v. Jacksonville Aviation Authority

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

FULTON P. LISS, an individual

Plaintiff,

v. Case No. 3:19-cv-185-J-32JBT

THE CITY OF JACKSONVILLE, a

municipality and agency of the State

of Florida, MIKE WILLIAMS, in his

official capacity, BRENDA LUNA,

ARPN, in her individual capacity,

JACKSONVILLE CORRECTIONAL

OFFICER(S) ASSIGNED TO

BOOKING AND TO 6W-2A, and

JACKSONVILLE SUPERVISORY

CORRECTIONAL OFFICERS

ASSIGNED TO BOOKING AND TO

6W-2A,

Defendants.

ORDER

In this civil rights excessive force case, the Court must determine whether

the Amended Complaint sufficiently alleges an unlawful policy or custom to

hold the City or Sheriff liable. This case is before the Court on Defendants City

of Jacksonville and Sheriff Mike Williams’s Motion to Dismiss Amended

Complaint with Prejudice. (Doc. 50). Plaintiff Fulton Liss responded in

opposition. (Doc. 53).

I. BACKGROUND

Liss alleges that he was flying from his home in Baltimore to West Palm

Beach, Florida when his aircraft was diverted to Jacksonville. (Doc. 45 ¶¶ 16–

17). Upon landing, Liss was informed by Corporal McCrory that Liss was being

detained for questioning. Id. ¶ 17. Liss had a medical condition “which affected

his ability to walk and balance” and gave him headaches, vertigo, and “chronic

migraines that felt like his head would explode.” Id. ¶ 19. Liss was then arrested

and transported to the Jacksonville Pretrial Detention Facility. Id. ¶¶ 18, 22.

According to Liss, after arriving at the correctional facility, “[t]he

correctional officer(s) assaulted him, dragged him across the floor, and caused

bleeding on his hands and arms.” Id. ¶ 25. Liss further alleges that he was

screened by Jameson Walters and Brenda Luna, ARNP and placed in mental

health classification on 6W-2A. Id. ¶ 28. Additionally, Liss alleges that he was

prescribed pain medication by a physician, he was required to take these

medications every three hours, he told correctional officers that he needed the

medications, and the correctional officers “told him that he would not be getting

[his medications].” Id. ¶¶ 30, 35–37.

The Court dismissed Liss’s prior complaint for myriad reasons. (Doc. 31).

First, it dismissed the claims against all unnamed parties because they were

not sufficiently described. Id. at 2 n.2. Second, the Court dismissed the claims

against the Jacksonville Aviation Authority (“JAA”) based on Eleventh

Amendment sovereign immunity. Id. at 4–6. Next, the Court dismissed all

requests for injunctive relief on the basis that injunctive relief cannot remedy

past harms and Liss failed to demonstrate the likelihood of a future injury—i.e.

he did not have standing for prospective relief. Id. at 7–10. The Court then found

that Liss had improperly included multiple claims into Count I, warranting

dismissal. Id. at 11. The Court also dismissed each of Liss’s § 1983 claims

against the City and Sheriff Williams (who was sued only in his official capacity)

because Liss failed to allege a municipal policy or custom that caused the

alleged constitutional violations. Id. at 12–14. Lastly, the Court dismissed the

§ 1983 malicious prosecution claim against Corporal McCrory and Officer

Spikes, both JAA employees, for failing to state a claim. Id. at 15. Liss’s claims

against JAA and his requests for injunctive relief were dismissed with

prejudice.1 Id. at 16. The other claims against the City, Sheriff Williams,

1 The Court notes it incorrectly dismissed Liss’s requested injunctive

relief with prejudice. Because the dismissal was based on a lack of Article III

standing, the dismissal should have been without prejudice. See Stalley ex rel.

U.S. v. Orlando Reg’l Healthcare Sys., Inc., 524 F.3d 1229, 1232 (11th Cir. 2008)

(“A dismissal for lack of subject matter jurisdiction is not a judgment on the

merits and is entered without prejudice.”). The same is true of Liss’s claim

against JAA that was barred by the Eleventh Amendment. See Nichols v.

Alabama State Bar, 815 F.3d 726, 733 (11th Cir. 2016) (“Given that the State

Bar is an arm of the state entitled to Eleventh Amendment immunity, the

district court properly dismissed [the plaintiff’s] § 1983 action without prejudice

for lack of subject matter jurisdiction.”).

Although the Court will amend the dismissals to now be without

prejudice, the effect is nonetheless the same. The Court intended that Liss be

permitted to file an amended complaint asserting his § 1983 claims for money

Corporal McCrory, and Officer Spikes were dismissed without prejudice, and

Liss was directed to file his amended complaint by August 30, 2019. Id.

Liss filed nothing by that date, and on September 24, 2019, the Court

dismissed the case without prejudice. (Doc. 32). A month later, Liss filed a

Motion to Set Aside Dismissal (Doc. 33), an Amended Motion to Set Aside

Dismissal (Doc. 35), an Unopposed Motion for Nonjoinder of Parties (Doc. 36),

an Ex Parte Motion to Set Aside Dismissal (Doc. 39), a Second Amended Motion

to Set Aside Dismissal (Doc. 40), and a Third Amended Motion to Set Aside

Dismissal (Doc. 41). Ruling on the motions, the Court stated:

While the Court does not find plaintiff’s neglect of the Court-

ordered deadlines to be excusable (especially where he is

represented by two separate lawyers from two separate law firms),

and although counsel’s efforts in this case so far have fallen below

the minimum acceptable standards for practice in this Court, in

light of the non-objection by what will be the only remaining

defendants, the Court will reluctantly grant the motion (Doc. 41).

(Doc. 44 at 1–2). In so doing, the Court stated that “plaintiff shall file an

amended complaint naming only the City of Jacksonville and Sheriff Mike

Williams as defendants, and which is in all respects in accordance with

the Court’s August 7, 2019 Order (Doc. 31).” Id. Further, the Court identified

specific deficiencies in Liss’s proposed amended complaint, including, inter alia:

it impermissibly included multiple legal claims in a single count; it still lacked

damages only and without JAA as a defendant. This is what Liss has done.

a specific description of the unnamed correctional and supervisory correctional

officers; and it still sought injunctive relief. Id. at 2 n.2. Lastly, the Court

warned that this would be Liss’s “one and only opportunity to cure the defects”

and that failure to comply would “result in the dismissal of this case without

further notice.” Id. at 2 n.2, 2–3.

Liss filed a four count Amended Complaint alleging a 42 U.S.C. § 1983

excessive force claim against Sheriff Williams (Count I), a § 1983 inadequate

medical treatment claim against Sheriff Williams (Count II), a § 1983

inadequate medical treatment claim against Luna (Count III), and a Florida

battery claim against the City, unnamed Jacksonville Correctional Officer(s)

Assigned to Booking and to 6W-2A, and unnamed Jacksonville Supervisory

Correctional Officer(s) Assigned to Booking and to 6W-2A (Count IV). (Doc. 45).

The City and Sheriff Williams move to dismiss Counts I, II, and IV, the only

claims against them. (Doc. 50). They argue that Counts I and II still fail to allege

a policy or custom sufficient to hold a municipality liable, and that the battery

claim is barred by the statute of limitations. Id.

II. STANDARD OF REVIEW

When considering a motion to dismiss for failure to state a claim, the

Court must accept all factual allegations as true and construe them in the light

most favorable to plaintiff. Burban v. City of Neptune Beach, 920 F.3d 1274,

1278 (11th Cir. 2019) (citations omitted); Fed. R. Civ. P. 12(b)(6). “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) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570

(2007)). “A claim has facial plausibility when the plaintiff pleads factual content

that allows the court to draw the reasonable inference that the defendant is

liable for the misconduct alleged.” Id. (quotation and citation omitted). But

allegations are not entitled to the assumption of truth when they are

“[t]hreadbare recitals of the elements of a cause of action, supported by mere

conclusory statements.” Id. (citation omitted). Further, “conclusory allegations,

unwarranted factual deductions or legal conclusions masquerading as facts will

not prevent dismissal [of a complaint].” Taylor v. Polhill, 964 F.3d 975, 981 (11th

Cir. 2020) (quoting Davila v. Delta Air Lines, Inc., 326 F.3d 1183, 1185 (11th

Cir. 2003)).

III. DISCUSSION

A. Liss’s Monell Claims

Liss asserts a § 1983 excessive force claim (Count I) and § 1983

inadequate medical treatment claim (Count II) against Sheriff Williams in his

official capacity. Liss’s prior complaint was dismissed, inter alia, for failing to

allege a municipal policy or custom. (Doc. 31 at 12–13). Here, Sheriff Williams

again argues that the claims should be dismissed because they fail to properly

allege a municipal policy or custom and causation. (Doc. 50).

A sheriff sued in his official capacity is effectively an action against the

governmental entity the sheriff represents, in this case the City of Jacksonville.

Barnett v. MacArthur, 956 F.3d 1291, 1296 (11th Cir. 2020). “A municipality

can be sued directly under § 1983 when one of its customs, practices, or policies

causes a constitutional injury.” Id. (citing Monell v. Dep’t of Soc. Servs., 436

U.S. 658, 691 (1978) (holding that a municipality cannot be held vicariously

liable under § 1983)); see also City of Canton v. Harris, 489 U.S. 378, 385 (1989).

“Official municipal policy includes the decisions of a government’s lawmakers,

the acts of its policymaking officials, and practices so persistent and widespread

as to practically have the force of law.” Connick v. Thompson, 563 U.S. 51, 61

(2011).

“A custom is an unwritten practice that is applied consistently enough to

have the same effect as a policy with the force of law.” Goebert v. Lee Cty., 510

F.3d 1312, 1332 (11th Cir. 2007). The alleged incident “must result from a

demonstrated practice.” McDowell v. Brown, 392 F.3d 1283, 1290 (11th Cir.

2004). “Normally, random acts or isolated incidents are insufficient to establish

a custom or policy.” Depew v. City of St. Marys, 787 F.2d 1496, 1499 (11th Cir.

1986). Instead, the alleged custom “requires showing a persistent and wide-

spread practice.” Goebert, 510 F.3d at 1332 (alteration adopted) (quotation and

citation omitted).

1. Liss has not alleged a policy or custom

of excessive force at the pretrial detention facility.

In his Amended Complaint, Liss added allegations of a statistical analysis

of excessive force complaints in Jacksonville compared to a nationwide survey,

and a list of fourteen alleged instances of excessive force by Jacksonville

Sheriff’s Office deputies. (Doc. 45 ¶ 46). Liss also alleges that Williams “had

actual or constructive knowledge of the history of the excessive use of force by

the Jacksonville Sheriff’s Office, and despite having knowledge failed to

discipline these officers . . . .” Id. The incident giving rise to Liss’s claim is that

while at the pretrial detention facility “[t]he correctional officer(s) assaulted

him, dragged him across the floor, and caused bleeding on his hands and arms.”

Id. ¶ 25.

These allegations are still insufficient to state a municipal policy or

custom of excessive force at the pretrial detention facility. First, the statistic

provided by Liss—that only 9 out of 594 “force complaints lodged against the

current patrol officers” were sustained—does not demonstrate a custom of

excessive force at the pretrial detention facility. It is unclear when these 594

complaints occurred. Additionally, that only nine of the force complaints were

sustained—a rate Liss alleges is much lower than the national average—does

not show a custom of excessive force, and perhaps shows the opposite. Likely,

Liss is attempting to argue that the City fails to discipline its officers on a

sufficient number of occasions compared to other locations, but this factual

deduction is unwarranted. See Taylor, 964 F.3d at 981 (“[C]onclusory

allegations, unwarranted factual deductions or legal conclusions masquerading

as facts will not prevent dismissal [of a complaint].” (quoting Davila, 326 F.3d

at 1185)). Ultimately, these statistics are insufficient to show that Williams was

on notice of a “practice[] so persistent and widespread as to practically have the

force of law.” Connick, 563 U.S. at 61; see also White v. Kelly, No. 3:18-cv-1175-

J-20PDB, slip op. at 5–6 (M.D. Fla. Aug. 2, 2020) (dismissing Monell claim

premised on the same statistics alleged here).

Second, Liss attempts to allege a custom by listing fourteen prior

incidents allegedly involving excessive force. (Doc. 45 ¶ 46b). This Court has

previously found that alleging a list of similar, prior incidents of excessive force

is sufficient to allege a custom of excessive force at the motion to dismiss stage.

See Blessing v. Williams, No. 3:19-CV-731-J-32MCR, 2020 WL 1065116, at *5

(M.D. Fla. Mar. 5, 2020) (relying on Mims v. Williams, No. 3:19-cv-260-J-20JRK

(M.D. Fla. Jan. 29, 2020); Wilson v. Williams, No. 3:19-cv-822-J-34PDB, 2019

WL 6324265, at *4 (M.D. Fla. Nov. 26, 2019); Martinez v. Williams, No. 3:17-

cv-1319-J-20MCR (M.D. Fla. Sept. 26, 2019)). However, Blessing, and the cases

it relies upon, are distinguishable. In those cases, the plaintiffs alleged

excessive force by JSO patrol officers during an arrest, and the list of prior

excessive force incidents had “the common link [of] alleged use of excessive force

in arresting individuals who [we]re not resisting.” Wilson, 2019 WL 6324265,

at *4. Here, Liss alleges excessive force against him by correctional officers at

the pretrial detention facility but lists incidents of alleged excessive force by

patrol officers in apprehending suspects.2 Because correctional officers and

patrol officers are distinct categories with different powers and duties, an

alleged custom of excessive force by one group does not equate to a custom of

excessive force by the other. See § 943.10(1), Fla. Stat. (2019) (distinguishing

“law enforcement officer” from “correctional officer”). Simply, that patrol officers

are alleged to have a custom of using excessive force in effecting arrests does

not put Sheriff Williams on notice that correctional officers have a custom of

using excessive force at the pretrial detention facility. See McDowell, 392 F.3d

at 1290 (“[T]he incident must result from a demonstrated practice.”).

Thus, Liss has failed to sufficiently allege a municipal policy, custom, or

practice for Count I and it is due to be dismissed.

2 Excessive force claims in seizing an individual fall under the Fourth

Amendment, whereas excessive force against detained individuals fall under

the Eighth or Fourteenth Amendments. Hicks v. Moore, 422 F.3d 1246, 1254

n.7 (11th Cir. 2005). The exact point where a seizure ends and detention begins

is unsettled in the Eleventh Circuit. Id.; see also Quinette v. Reed, 805 F. App’x

696, 701 (11th Cir. 2020) (stating that demarcation point from seizure to

detention is still unsettled). Here, Liss alleges that his excessive force claim

falls under both the Fourth and Fourteenth Amendments. (Doc. 45 ¶ 46). The

Fourth Amendment standard is easier for a plaintiff to satisfy because it does

not require deliberate indifference. Hicks, 422 F.3d at 1254 n.7. However, the

Court need not determine which standard governs Liss’s claim here; under

either standard Liss fails to sufficiently allege a municipal policy.

2. Liss fails to allege a policy or custom of

improper diagnosis and failure to provide medications.

The City argues that Count II likewise fails to allege a municipal custom

or policy that caused Liss’s alleged constitutional deprivation. (Doc. 50 at 1–13).

Relying on a flurry of facts outside of the Amended Complaint, Liss responds

that Sheriff Williams’s “Keep on Person” drug policy at the detention facility

resulted in Liss being unable to take his required medications, which, according

to Liss, equates to deliberate indifference to a serious medical need. (Doc. 53 at

6–7). Ultimately, Liss appears to be arguing that Sheriff Williams’s policy of not

allowing detainees to keep opioid medications on their person at the jail is

unconstitutional. Id. However, in making this argument Liss fails to direct the

Court to where such facts are alleged in the Amended Complaint.3

Nonetheless, even if the Court considers this information, it is still

unclear whether Liss is alleging that the policy is facially unconstitutional, that

it was constitutional but was customarily not followed, or something else.

Moreover, Liss has failed to demonstrate under any of these theories how

Sheriff Williams would be on notice of the alleged constitutional infirmities of

3 The only allegation referring to a “keep on person” policy refers to

practices that detention facilities should implement: “Ordinarily, only health

care staff should administer prescription drugs, except that health care staff

should be permitted to authorize prisoners to hold and administer their own

asthma inhalers, and to implement other reasonable “keep on person” drug

policies.” (Doc. 45 ¶ 34).

his policy. See Harris, 489 U.S. at 386 (explaining that an unconstitutional

application of an otherwise valid policy, without more, is insufficient to hold a

municipality liable); Cook ex rel. Estate of Tessier v. Sheriff of Monroe Cty., 402

F.3d 1092, 1116 (11th Cir. 2005) (stating there must be a causal link between

the policy and the alleged deprivation of rights).

Additionally, Liss alleges “a sampling of cases involving the

constitutional failure to provide timely adequate medical care in the pretrial

detention facility.” (Doc. 45 ¶ 59). The Amended Complaint lists eight

individuals or cases, with ranging details, purportedly supporting his allegation

that Sheriff Williams should have been on notice of a custom of inadequate

medical treatment at the pretrial detention facility. Id.

This list of prior incidents is also insufficient to state a “practice[] so

persistent and widespread as to practically have the force of law.” Connick, 563

U.S. at 61. First, three of the purported instances contain no details

whatsoever.4 (Doc. 45 ¶¶ 59(2)-(3) (listing case names without any additional

information)). Of the remaining five alleged incidents, only one includes any

4 The Court notes that for two out of the three cases it cannot even look

at the case records to see if they support Liss’s claims. Paragraph 59(3) lists

“Jones v. City of Jacksonville – No. 13-10619 (2013)” but the Court has no way

of knowing what court this case occurred in. Paragraph 59(4) lists “Thomas v.

City of Jacksonville – 12-cv-737-J-32MCR” but that case number does not exist

and does not correspond with the name of the case (Case no. 3:12-cv-737-J-

34JRK is styled “Crowley Puerto Rico Servs., Inc. v. CLP Transp., Inc.”).

type of date, and that allegation only includes the year. Id. ¶ 59(1). Second, none

the alleged prior incidents appear to be similar to Liss’s situation. For example,

one alleged prior incident states: “Melvin Brown – died in his cell after

sustaining a head injury.” Id. ¶ 59(6). It is unclear how this situation is like that

experienced by Liss, or how it would put the Sheriff on notice of a custom of

inadequate medical care. In sum, eight random incidents occurring over at least

sixteen years and seemingly unrelated to Liss’s situation, are insufficient to

“show[] a persistent and wide-spread practice.” Goebert, 510 F.3d at 1332

(alteration adopted) (quotation and citation omitted).

Accordingly, Count II is due to be dismissed.

B. Additional Defendants

In his Third Amended Motion to Set Aside Dismissal, Plaintiff’s counsel

stated that in his amended complaint, “[t]he remaining defendants would be

the COJ, the unknown correctional officers, supervisory officers and medical

staff.” (Doc. 41 at 8 n.10). However, in “reluctantly” allowing Liss to file an

untimely amended complaint, the Court stated: “plaintiff shall file an amended

complaint naming only the City of Jacksonville and Sheriff Mike Williams as

defendants . . . .” (Doc. 44 at 2 (emphasis added)). The Court limited the

Amended Complaint to those defendants because in his proposed amended

complaint, Liss had still failed to sufficiently describe the unnamed defendants.

(Doc. 4 at 2 n.2). Liss did not seek permission before filing his Amended

Complaint to name additional defendants. For this reason alone, the Court can

dismiss the claims against all defendants other than the City and Sheriff

Williams.

However, alternative reasons for dismissing those claims exist as well.

Liss’s original claims against the unnamed defendants were dismissed because

Liss failed to provide a sufficient description. (Doc. 31 at 2 n.2 (citing

Richardson v. Johnson, 598 F.3d 734, 738 (11th Cir. 2010))). Here, Liss added

one defendant by name, Brenda Luna ARNP, and for the unknown correctional

officers merely added the unit in the jail to which they are assigned. (Doc. 45

¶¶ 14–15). Since filing his Amended Complaint in December 2019, Liss has not

served serve Luna. (Doc. 60).

“As a general matter, fictitious-party pleading is not permitted in federal

court.” Richardson, 598 F.3d at 738. However, there is “a limited exception to

this rule when the plaintiff’s description of the defendant is so specific as to be

‘at the very worst, surplusage.’” Id. (quoting Dean v. Barber, 951 F.2d 1210,

1215–16 (11th Cir. 1992)). In Richardson, the plaintiff identified a defendant as

“John Doe (Unknown Legal Name), Guard, Charlotte Correctional Institute

. . . .” Id. This description was insufficient. Id. Here, Liss’s description of

“Jacksonville Correctional Officer(s) Assigned to Booking and to 6W-2A” and

“Jacksonville Supervisory Correctional Officers Assigned to Booking and to 6W-

2A” are still insufficient. Because Liss has still failed to provide a detailed

description of the unknown correctional officers, the claims against them are

due to be dismissed.

Although Liss was not permitted to bring claim against new parties, Liss

sued Nurse Luna. But now, Liss has failed to timely serve her. See Fed. R. Civ.

P. 4(m); Doc. 58; Doc. 60. In April 2020, Liss sought an extension to serve Luna

by May 31, 2020. (Doc. 58). The Court gave more time that requested, extending

the deadline until July 15, 2020. (Doc. 59). As of today, August 14, 2020, Luna

still has not been served.5 Liss has not moved for an additional extension of

time and has not demonstrated good cause for an additional extension. See

Brown v. Davis, 656 F. App’x 920, 921 (11th Cir. 2016) (affirming dismissal for

lack of service where defendant no longer resided at address provided by

plaintiff, plaintiff did not remedy the ineffective service, plaintiff did not seek

an extension of time, and plaintiff had been on notice for three years that the

defendant had not been served).

Moreover, a perusal of the allegations against Luna reveal they are

unlikely to satisfy the deliberate indifference standard. See Dang ex rel. Dang

v. Sheriff, Seminole Cty., 871 F.3d 1272, 1279 (11th Cir. 2017) (“To prevail on

[a] § 1983 claim for inadequate medical treatment, [the plaintiff] must show (1)

a serious medical need; (2) the health care providers’ deliberate indifference to

5 On July 15, 2020, Liss filed a notice saying that he had finally attempted

service on Luna but was told she has been overseas for two years. (Doc. 60).

that need; and (3) causation between the health care providers’ indifference and

[the plaintiff’s] injury.”); see also id. (“To establish deliberate indifference, [the

plaintiff] must prove (1) subjective knowledge of a risk of serious harm; and (2)

disregard of that risk (3) by conduct that is more than mere negligence.”); Fed.

R. Civ. P. 4(m).

For all of these reasons, Liss’s claim against Luna is due to be dismissed.

C. Liss’s Battery Claim

The City argues that Count IV, alleging battery under Florida law, should

be dismissed as untimely because Liss was not permitted to assert new claims

in his amended complaint and that the battery claim does not relate back to the

original complaint.

However, the Court need not analyze whether the claim relates back to

the original complaint under Federal Rule of Civil Procedure 15(c). As no federal

claims remain, the Court declines to retain supplemental jurisdiction of the

state law claim and will remand it back to state court. See Carnegie-Mellon

Univ. v. Cohill, 484 U.S. 343, 350 n.7 (1988) (“[I]n the usual case in which all

federal-law claims are eliminated before trial, the balance of factors . . . point

toward declining to exercise jurisdiction over the remaining state-law claims.”).

Accordingly, it is hereby

ORDERED:

1. Defendants City of Jacksonville and Sheriff Mike Williams’s Motion to

Dismiss (Doc. 50) is GRANTED in part.

a. Count lis DISMISSED with prejudice for failure to state a claim.

b. Count IIis DISMISSED with prejudice for failure to state a claim.

ce. The Court declines to rule on the motion to dismiss Count IV, the state

law battery claim.

2. Count III against Brenda Luna is DISMISSED without prejudice for

the reasons set forth in this Order.

3. The Court’s August 7, 2019 Order (Doc. 31) is amended such that the

dismissal of the claims against JAA and the prayers for injunctive relief

are without prejudice.

4. This case is REMANDED back to the Fourth Judicial Circuit, in and for

Duval County.

5. After effecting remand, the Clerk shall close the file.

DONE AND ORDERED in Jacksonville, Florida this 14th day of

August, 2020.

TIMOTHY J. CORRIGAN

United States District Judge

jjb

Copies to:

Counsel of record

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