Sanders v. Starling

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

CHRISTOPHER SANDERS,

Plaintiff,

v.

Case No. 3:19-cv-430-J-34JBT

BRIAN STARLING, et al.,

Defendants.

ORDER

I. Status

Plaintiff Christopher Sanders, an inmate of the Florida penal system, initiated this

action on April 16, 2019, by filing a pro se Civil Rights Complaint (Complaint; Doc. 1). In

the Complaint,1 Sanders asserts claims pursuant to 42 U.S.C. § 1983 against the

following Defendants: (1) Brian Starling; (2) Sean Fogarty; (3) Lieutenant Woods; (4)

Nurse C. Fox; (5) Nurse Carrie Reed; (6) Bryan Allen; (7) Kelly Brown; (8) Warden Barry

Reddish; (9) Nurse Mae Harrold; (10) Major M. Honour; (11) Mitchell Mason; (12)

Assistant Warden Lane; (13) A. Powell; (14) John Doe 2, a sergeant at Florida State

Prison (FSP); (15) Nurse Sharron Marshall; (16) Lisa Tyre; (17) Tammy A. Gibson; (18)

Inspector General Jeffery Beasley; and (19) Sergeant Jonathan Aikin. Sanders alleges

that Defendants mistreated him from January 2017 through August 2017, at FSP. As

relief, he requests compensatory and punitive damages. Additionally, he asks that the

1 The Court cites to the document and page numbers as assigned by the Court’s

Electronic Case Filing System.

Court direct the Florida Department of Corrections (FDOC) to terminate Defendants’

employment, and order the State of Florida to revoke the licenses of the “Medical

Defendants.” Complaint at 9.

This matter is before the Court on Defendants Honour and Reddish’s Motion to

Dismiss (Motion; Doc. 24) and Defendant Harrold’s Motion to Dismiss (Harrold Motion;

Doc. 27). The Court advised Sanders that granting a motion to dismiss would be an

adjudication of the case that could foreclose subsequent litigation on the matter and gave

him an opportunity to respond. See Order (Doc. 6). Sanders filed responses in opposition

to the Motions. See Response to Defendants’ Reddish and Honour’s Motion to Dismiss

(Response; Doc. 51); Response to Defendant Harrold’s Motion to Dismiss (Response II;

Doc. 72). Thus, Defendants’ Motions are ripe for review.

II. Plaintiff’s Allegations2

Sanders asserts that his Eighth Amendment right to be free from cruel and unusual

punishment was violated when Defendant Starling orchestrated the January 28, 2017 use

of excessive force against Sanders (count one), see Complaint at 7; slammed Sanders’

arm in the cell door, causing permanent shoulder damage (count two), see id.; and

2 The Complaint is the operative pleading. In considering a motion to dismiss, the

Court must accept all factual allegations in the Complaint as true, consider the allegations

in the light most favorable to the plaintiff, and accept all reasonable inferences that can

be drawn from such allegations. Miljkovic v. Shafritz and Dinkin, P.A., 791 F.3d 1291,

1297 (11th Cir. 2015) (quotations and citations omitted). As such, the recited facts are

drawn from the Complaint and may differ from those that ultimately can be proved.

Additionally, because this matter is before the Court on motions to dismiss filed by

Defendants Honour, Reddish, and Harrold, the Court’s recitation of the facts will focus on

Sanders’ allegations as to them.

2

allowed several officers to beat Sanders (count three), see id. at 10. He also states that

Starling, Woods, Fox, and Allen violated his First and Eighth Amendment rights when

they retaliated against him for witnessing and reporting the beating of Dyshonty Gordon,

FDOC #166312 (count five), and placed Sanders in a cold cell with a broken window and

no clothes or bedding (count four), see id. at 10. Next, Sanders asserts that Starling,

Woods, Brown, and Powell violated his Fourth Amendment right when they unlawfully

searched and seized his property (count six). See id. Additionally, he maintains that

Defendants violated his First Amendment right when Woods, Fox, Allen, Brown, Mason,

Powell, Aikin, and Fogarty, on Starling’s behalf, retaliated against him (count eight), see

id., and Tyre and Gibson disposed of Sanders’ grievances to cover-up the use of

excessive force and denial of medical treatment (count nineteen), see id. at 12.

According to Sanders, Defendants violated his Eighth Amendment right over the

course of several months in 2017 when: Starling, Woods, Fox, Allen, Morris, Marshall,

Brown, Mason, Powell, Aikin, Fogarty, Reed, and Harrold conspired to inflict physical and

emotional harm on Sanders (count seven), see id. at 10; Starling, Woods, Fox, Allen,

Fogarty, and Powell unlawfully sprayed him with chemical agents (count nine), see id. at

10-11; Starling, Fogarty, Aikin, and Mason intentionally caused Sanders to suffer with

permanent disfigurement, thus violating Florida Statutes section 784.045(7) (count ten),

see id. at 11; Marshall, Harrold, Fox, Morris, and Reed failed to follow FDOC procedures

and refused to place Sanders on self-harm observation status (SHOS) (counts eleven

and thirteen), see id.; Marshall, Fox, and Morris watched Sanders harm himself and failed

to remove him from his cell for medical treatment (count twelve), see id.; Marshall and

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Harrold jammed a lavage tube down Sanders’ throat until he spat blood (count fourteen),

see id.; Marshall, Harrold, Fox, Morris, and Reed refused to file an incident report to alert

the administration about the abuse (count fifteen), and failed to document and treat

Sanders’ injuries (counts sixteen and seventeen), see id. at 12; Starling, Harrold,

Marshall, Fogarty, Allen, Reed, Brown, Aikin, Mason, Morris, Woods, Tyre, Gibson, and

Powell falsified documents to cover-up the abuse (count eighteen), see id.; Reddish,

Lane, Honour, and Beasley refused to protect Sanders from Starling, Fox, Woods, Allen,

Mason, Harrold, Marshall, Aikin, Fogarty, and Brown’s use of excessive force (count

twenty), see id. at 12-13; Aikin, Brown, Harrold, Marshall, Fogarty, Powell, and Mason

used excessive force (punching, eye poking, choking, beating, and jamming a tube down

his throat) against him (count twenty-one), see id. at 13; Aikin, Fogarty, and Mason used

excessive force (beating him until his eye busted open) against him (count twenty-two),

see id.; and Beasley refused to direct that an investigator interview Sanders about the

alleged abuse (count twenty-three), see id.

As to the underlying facts, Sanders asserts that he saw a cell extraction team use

excessive force against inmate Dyshonty Gordon on January 27, 2017, and reported the

abuse in front of the handheld camera. See id. at 7. According to Sanders, officers placed

him on property restriction on January 28th for misuse of state property, which he denied,

see id. at 8, sprayed him with chemical agents, see id. at 14, and assaulted him, see id.

at 14-15. He also states that the cell extraction team beat him in the medical clinic. See

id. at 15. Sanders maintains that he was not placed on SHOS, but instead assigned to a

C-wing cell with a broken window where he suffered for three days in freezing

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temperatures with no bedding and only boxer shorts. See id. at 15-16. He asserts that he

declared a medical emergency on January 29th, and was informed that his shoulder was

“out of place.” Id. at 16. He asserts that he submitted several emergency grievances about

the staff abuse on February 1st, but the Inspector, Warden, and/or Assistant Warden

never interviewed him. See id. According to Sanders, he submitted a barrage of

grievances about the abuse, some of which were forwarded to the Inspector General.

See id. at 17-18.

Next, Sanders alleges that officers, on Starling’s behalf, set him up for abuse on

April 23, 2017. See id. at 18. He states that officers assaulted him and sprayed him with

chemical agents. See id. He asserts that Defendant Harrold refused to have him placed

on SHOS when she knew that he had swallowed pills. See id. According to Sanders,

when officers placed him in a restraint chair, he “kicked” one of them “in an attempt to

defend” himself as they “clamped the shackles down” on his ankles. Id. at 19. He states

that officers assaulted him and escorted him to B-wing, where they left him in a SHOS

cell for three days with injuries to his ankles, head and wrist. See id.

Sanders also describes staff mistreatment in early May 2017, culminating into him

swallowing pills and the officers’ use of chemical agents on May 8, 2017. See id. at 19-

20. He maintains that Harrold and another nurse “performed a lavage” on him and

jammed the tube down his throat until he spat blood. Id. at 21. According to Sanders,

Harrold refused to have Sanders placed on SHOS even when he told her that he was

suicidal. See id. Sanders states that, instead of filing an incident report and placing him

on SHOS, Harrold told the officers to provide Sanders with a shower and cell escort. See

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id. He states that he tried to hang himself in the shower. See id. He avers that he was

placed in a SHOS cell, and then returned to B wing. See id. According to Sanders, he

submitted three grievances on June 14, 2017, relating to staff abuse. See id.

Sanders maintains that he “declared a mental health emergency and swallowed a

bunch of pills in front of the camera and nurse” on August 3, 2017, due to the ongoing

staff abuse. Id. at 22. He asserts that Harrold unnecessarily performed a lavage when he

“was not refusing to drink the charcoal.” Id. He states that Harrold and another nurse

jammed the tube down his throat until he spat blood. See id. According to Sanders,

Fogarty squeezed his head and poked his eyes during the lavage, and accused Sanders

of kicking Sergeant Scott. See id. He avers that Harrold refused to place him on SHOS.

See id. He maintains that officers escorted him to a shower where they sprayed him

(presumably with chemical agents) and he tried to hang himself. See id. at 23. He asserts

that, after an Emergency Treatment Order (ETO) shot, officers tripped and “jumped” him,

which busted his mouth, lips, and eye. Id. He states that he “kicked out trying to get away

and hit [a nurse] in the leg. Id. He avers that Harrold “put two butterfly stitches on [his]

eye” and cream on his eyelid. Id. According to Sanders, Harrold told him he “deserved

everything [he] got” because he had kicked a nurse. Id. He states that he filed several

grievances about the incident, but no one responded. See id.

III. Motion to Dismiss Standard

In ruling on a motion to dismiss, the Court must accept the factual allegations set

forth in the complaint as true. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009);

Swierkiewicz v. Sorema N.A., 534 U.S. 506, 508 n.1 (2002); see also Lotierzo v. Woman’s

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World Med. Ctr., Inc., 278 F.3d 1180, 1182 (11th Cir. 2002). In addition, all reasonable

inferences should be drawn in favor of the plaintiff. See Randall v. Scott, 610 F.3d 701,

705 (11th Cir. 2010). Nonetheless, the plaintiff must still meet some minimal pleading

requirements. Jackson v. Bellsouth Telecomm., 372 F.3d 1250, 1262-63 (11th Cir. 2004)

(citations omitted). Indeed, while “[s]pecific facts are not necessary[,]” the complaint

should “‘give the defendant fair notice of what the . . . claim is and the grounds upon which

it rests.’” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per curiam) (quoting Bell Atlantic

Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Further, the plaintiff must allege “enough

facts to state a claim that is plausible on its face.” Twombly, 550 U.S. at 570. “A claim has

facial plausibility when the pleaded factual content allows the court to draw the reasonable

inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678

(citing Twombly, 550 U.S. at 556).

A “plaintiff’s obligation to provide the grounds of his entitlement to relief requires

more than labels and conclusions, and a formulaic recitation of the elements of a cause

of action will not do[.]” Twombly, 550 U.S. at 555 (internal quotations omitted); see also

Jackson, 372 F.3d at 1262 (explaining that “conclusory allegations, unwarranted

deductions of facts or legal conclusions masquerading as facts will not prevent dismissal”)

(internal citation and quotations omitted). Indeed, “the tenet that a court must accept as

true all of the allegations contained in a complaint is inapplicable to legal conclusions[,]”

which simply “are not entitled to [an] assumption of truth.” Iqbal, 556 U.S. at 678, 680.

Thus, in ruling on a motion to dismiss, the Court must determine whether the complaint

contains “sufficient factual matter, accepted as true, to ‘state a claim to relief that is

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plausible on its face[.]’” Id. at 678 (quoting Twombly, 550 U.S. at 570). And, while “[p]ro

se pleadings are held to a less stringent standard than pleadings drafted by attorneys and

will, therefore, be liberally construed,” Tannenbaum v. United States, 148 F.3d 1262,

1263 (11th Cir. 1998), “‘this leniency does not give the court a license to serve as de facto

counsel for a party or to rewrite an otherwise deficient pleading in order to sustain an

action.’” Alford v. Consol. Gov’t of Columbus, Ga., 438 F. App’x 837, 839 (11th Cir. 2011)3

(quoting GJR Invs., Inc. v. Cty. of Escambia, Fla., 132 F.3d 1359, 1369 (11th Cir. 1998)

(internal citation omitted), overruled in part on other grounds as recognized in Randall,

610 F.3d at 706).

IV. Summary of the Arguments

Defendants Reddish and Honour request dismissal of Sanders’ Eighth

Amendment claims against them. See Motion at 7-8. In his Response, Sanders maintains

that he filed grievances between February 1, 2017, and August 28, 2017, informing

Reddish and Honour about Defendants Starling, Fox, Allen, Brown, Aikin, Powell,

Fogarty, Marshall, Mason, Woods, Harrold, and Reed’s abuse towards him, and “[a]t no

time was [he] given protection from the abusers by Defendants Reddish and Honour.”

Response at 1. Defendant Harrold maintains that Sanders fails to state plausible Eighth

Amendment claims against her, and that she is entitled to qualified immunity. See Harrold

Motion at 6-18. In response, Sanders asserts that he states plausible Eighth Amendment

3 “Although an unpublished opinion is not binding . . . , it is persuasive authority.”

United States v. Futrell, 209 F.3d 1286, 1289 (11th Cir. 2000) (per curiam); see generally

Fed. R. App. P. 32.1; 11th Cir. R. 36-2 (“Unpublished opinions are not considered binding

precedent, but they may be cited as persuasive authority.”).

8

claims against Harrold, and that she is not entitled to qualified immunity. See Response

II at 1-5.

V. Discussion

A. Eighth Amendment Claims Against

Defendants Warden Reddish and Major Honour

Sanders maintains that Defendants Reddish and Honour refused to protect him

from Starling, Fox, Woods, Allen, Mason, Harrold, Marshall, Aikin, Fogarty, and Brown’s

use of excessive force. See Complaint at 12-13. In the Complaint, Sanders asserts that

he submitted emergency grievances about the January 28, 2017 incident, but was never

interviewed by the Inspector, the Warden and/or the Assistant Warden. Id. at 16, ¶ 36;

20, ¶ 78 (stating he wrote the Warden). He also alleges that he submitted a grievance

(relating to Reddish and Honour not protecting him) on June 14, 2017, but it was “never

processed.” Id. at 21. Defendants maintain that Sanders fails to state plausible Eighth

Amendment claims against Reddish and Honour. See Motion at 7-8. In his Response,

Sanders states that he filed several grievances between February 1, 2017, and August

28, 2017, alerting Reddish and Honour about the ongoing staff abuse. See Response at

1-3.

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. Salvato v. Miley, 790 F.3d

1286, 1295 (11th Cir. 2015); Bingham v. Thomas, 654 F.3d 1171, 1175 (11th Cir. 2011)

(per curiam) (citation omitted); Richardson v. Johnson, 598 F.3d 734, 737 (11th Cir. 2010)

(per curiam) (citations omitted). Moreover, the Eleventh Circuit “requires proof of an

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affirmative causal connection between the official’s acts or omissions and the alleged

constitutional deprivation” in § 1983 cases. Zatler v. Wainwright, 802 F.2d 397, 401 (11th

Cir. 1986) (per curiam) (citation omitted). More than conclusory and vague allegations are

required to state a cause of action under 42 U.S.C. § 1983. See L.S.T., Inc., v. Crow, 49

F.3d 679, 684 (11th Cir. 1995) (per curiam); Fullman v. Graddick, 739 F.2d 553, 556 57

(11th Cir. 1984). As such, “‘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) (citation omitted). In the

absence of well-pled facts suggesting a federal constitutional deprivation or violation of a

federal right, a plaintiff cannot sustain a cause of action against the defendant.

As to supervisory liability, the United States Court of Appeals for the Eleventh

Circuit has stated:

“Supervisory officials are not liable under section 1983

on the basis of respondeat superior or vicarious liability.”

Belcher v. City of Foley, Ala., 30 F.3d 1390, 1396 (11th Cir.

1994) (internal quotation marks and citation omitted). “The

standard by which a supervisor is held liable in her individual

capacity for the actions of a subordinate is extremely

rigorous.” Gonzalez, 325 F.3d at 1234 (internal quotation

marks and citation omitted).[4] “Supervisory liability occurs

either when the supervisor personally participates in the

alleged constitutional violation or when there is a causal

connection between actions of the supervising official and the

alleged constitutional deprivation.” Brown v. Crawford, 906

F.2d 667, 671 (11th Cir. 1990).

“The necessary causal connection can be established

‘when a history of widespread abuse puts the responsible

supervisor on notice of the need to correct the alleged

4 Gonzalez v. Reno, 325 F.3d 1228 (11th Cir. 2003).

10

deprivation, and he fails to do so.’” Cottone, 326 F.3d at 1360

(citation omitted).[ 5 ] “The deprivations that constitute

widespread abuse sufficient to notify the supervising official

must be obvious, flagrant, rampant and of continued duration,

rather than isolated occurrences.” Brown, 906 F.2d at 671. A

plaintiff can also establish the necessary causal connection

by showing “facts which support an inference that the

supervisor directed the subordinates to act unlawfully or knew

that the subordinates would act unlawfully and failed to stop

them from doing so,” Gonzalez, 325 F.3d at 1235, or that a

supervisor’s “custom or policy . . . resulted in deliberate

indifference to constitutional rights,” Rivas v. Freeman, 940

F.2d 1491, 1495 (11th Cir. 1991).

Danley v. Allen, 540 F.3d 1298, 1314 (11th Cir. 2008) (overruled on other grounds as

recognized by Randall v. Scott, 610 F.3d 701, 709 (11th Cir. 2010) (rejecting the

application of a heightened pleading standard for § 1983 cases involving qualified

immunity)); see also Keith v. DeKalb Cty., Ga., 749 F.3d 1034, 1047-48 (11th Cir. 2014).

In sum,

To state a claim against a supervisory defendant, the plaintiff

must allege (1) the supervisor’s personal involvement in the

violation of his constitutional rights,[6] (2) the existence of a

custom or policy that resulted in deliberate indifference to the

plaintiff's constitutional rights,[ 7 ] (3) facts supporting an

inference that the supervisor directed the unlawful action or

knowingly failed to prevent it,[8] or (4) a history of widespread

5 Cottone v. Jenne, 326 F.3d 1352 (11th Cir. 2003).

6 See Goebert v. Lee Cty., 510 F.3d 1312, 1327 (11th Cir. 2007) (“Causation, of

course, can be shown by personal participation in the constitutional violation.”).

7 See Goebert, 510 F.3d at 1332 (“Our decisions establish that supervisory liability

for deliberate indifference based on the implementation of a facially constitutional policy

requires the plaintiff to show that the defendant had actual or constructive notice of a

flagrant, persistent pattern of violations.”).

8 See Douglas v. Yates, 535 F.3d 1316, 1322 (11th Cir. 2008) (“Douglas’s

complaint alleges that his family informed [Assistant Warden] Yates of ongoing

11

abuse that put the supervisor on notice of an alleged

deprivation that he then failed to correct. See id. at 1328-29

(listing factors in context of summary judgment).[ 9 ] A

supervisor cannot be held liable under § 1983 for mere

negligence in the training or supervision of his employees.

Greason v. Kemp, 891 F.2d 829, 836–37 (11th Cir. 1990).

Barr v. Gee, 437 F. App’x 865, 875 (11th Cir. 2011) (per curiam). Here, Sanders has

alleged sufficient facts suggesting that Warden Reddish was personally involved in, or

otherwise causally connected to, the alleged violations of his federal statutory or

constitutional rights. As to Defendant Honour, Sanders has failed to allege any facts

suggesting that Honour was personally involved in, or otherwise causally connected to,

any alleged violations of his federal statutory or constitutional rights. Therefore, the Court

will dismiss Sanders’ Eighth Amendment claim against Defendant Honour. As such,

Defendants Reddish and Honour’s Motion is due to be granted in part and denied in part.

B. Eighth Amendment Claims Against Nurse Harrold

Next, Sanders asserts that Defendant Harrold violated his Eighth Amendment right

when she: conspired with other prison staff members to harm Sanders (count seven), see

Complaint at 10; refused to follow FDOC procedures and to place Sanders on SHOS

(counts eleven and thirteen), see id. at 11; jammed a lavage tube down Sanders’ throat

until he spat blood (counts fourteen and twenty-one), see id. at 11, 13; refused to file an

incident report about the abuse (count fifteen), see id. at 12, failed to document and treat

misconduct by Yates’s subordinates and Yates failed to stop the misconduct. These

allegations allow a reasonable inference that Yates knew that the subordinates would

continue to engage in unconstitutional misconduct but failed to stop them from doing so.”).

9 See West v. Tillman, 496 F.3d 1321 (11th Cir. 2007).

12

his injuries (counts sixteen and seventeen), see id.; and falsified documents to cover-up

the abuse (count eighteen), see id. Defendant Harrold maintains that Sanders fails to

state plausible Eighth Amendment claims against her. See Harrold Motion at 6-16. In

response, Sanders asserts that he states plausible Eighth Amendment deliberate

indifference claims against her. See Response II at 1-4.

Pursuant to the Eighth Amendment to the United States Constitution, “[e]xcessive

bail shall not be required, nor excessive fines imposed, nor cruel and unusual

punishments inflicted.” U.S. Const. amend. VIII. The Eighth Amendment “imposes duties

on [prison] officials, who must provide humane conditions of confinement; prison officials

must ensure that inmates receive adequate food, clothing, shelter, and medical care, and

must ‘take reasonable measures to guarantee the safety of the inmates.’” Farmer v.

Brennan, 511 U.S. 825, 832 (1994) (quoting Hudson v. Palmer, 468 U.S. 517, 526-27

(1984)). “To establish an Eighth Amendment violation, a prisoner must satisfy both an

objective and subjective inquiry regarding a prison official’s conduct.” Oliver v. Fuhrman,

739 F. App'x 968, 969 (11th Cir. 2018) (citing Chandler v. Crosby, 379 F.3d 1278, 1289

(11th Cir. 2004)). The Eleventh Circuit has explained:

Under the objective component, a prisoner must allege

a condition that is sufficiently serious to violate the Eighth

Amendment. Id.[10] The challenged condition must be extreme

and must pose an unreasonable risk of serious damage to the

prisoner’s future health or safety. Id. The Eighth Amendment

guarantees that prisoners are provided with a minimal

civilized level of life’s basic necessities. Id.

Under the subjective component, a prisoner must

allege that the prison official, at a minimum, acted with a state

10 Chandler, 379 F.3d at 1289.

13

of mind that constituted deliberate indifference. Id. This

means the prisoner must show that the prison officials: (1) had

subjective knowledge of a risk of serious harm; (2)

disregarded that risk; and (3) displayed conduct that is more

than mere negligence. Farrow v. West, 320 F.3d 1235, 1245

(11th Cir. 2003).

Oliver, 739 F. App'x at 969-70. “To be cruel and unusual punishment, conduct that does

not purport to be punishment at all must involve more than ordinary lack of due care for

the prisoner’s interests or safety.” Whitley v. Albers, 475 U.S. 312, 319 (1986).

As it relates to medical care, “[t]he Supreme Court has interpreted the Eighth

Amendment to prohibit ‘deliberate indifference to serious medical needs of prisoners.’”

Melton v. Abston, 841 F.3d 1207, 1220 (11th Cir. 2016) (quoting Estelle v. Gamble, 429

U.S. 97, 102 (1976)). The Eleventh Circuit has instructed:

To prevail on a deliberate indifference claim, [a plaintiff] must

show: “(1) a serious medical need; (2) the defendants’

deliberate indifference to that need; and (3) causation

between that indifference and the plaintiff’s injury.” Mann v.

Taser Int’l, Inc., 588 F.3d 1291, 1306-07 (11th Cir. 2009). To

establish deliberate indifference, [a plaintiff] must prove “(1)

subjective knowledge of a risk of serious harm; (2) disregard

of that risk; (3) by conduct that is more than [gross]

negligence.”[11] Townsend v. Jefferson Cnty., 601 F.3d 1152,

1158 (11th Cir. 2010) (alteration in original). The defendants

must have been “aware of facts from which the inference

could be drawn that a substantial risk of serious harm

exist[ed]” and then actually draw that inference. Farrow v.

West, 320 F.3d 1235, 1245 (11th Cir. 2003) (quotation

omitted).

11 See Patel v. Lanier Cty. Ga., No. 19-11253, 2020 WL 4591270, *9 n.10 (11th

Cir. Aug. 11, 2020) (recognizing “a tension” within Eleventh Circuit precedent relating to

the “more than mere negligence” and “more than gross negligence” phrases and stating

that “no matter how serious the negligence, conduct that can’t fairly be characterized as

reckless won’t meet the Supreme Court’s standard”).

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Easley v. Dep’t of Corr., 590 F. App’x 860, 868 (11th Cir. 2014). “For medical treatment

to rise to the level of a constitutional violation, the care must be ‘so grossly incompetent,

inadequate, or excessive as to shock the conscience or to be intolerable to fundamental

fairness.’” Nimmons v. Aviles, 409 F. App’x 295, 297 (11th Cir. 2011) (quoting Harris v.

Thigpen, 941 F.2d 1495, 1505 (11th Cir.1991)); see also Waldrop v. Evans, 871 F.2d

1030, 1033 (11th Cir. 1989) (stating “[g]rossly incompetent or inadequate care can

constitute deliberate indifference …, as can a doctor’s decision to take an easier and less

efficacious course of treatment” or fail to respond to a known medical problem). However,

the law is well-settled that the Constitution is not implicated by the negligent acts of

corrections officials and medical personnel. Daniels v. Williams, 474 U.S. 327, 330-31

(1986); Davidson v. Cannon, 474 U.S. 344, 348 (1986) (“As we held in Daniels, the

protections of the Due Process Clause, whether procedural or substantive, are just not

triggered by lack of due care by prison officials.”). 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.” Bingham v. Thomas, 654 F.3d

1171, 1176 (11th Cir. 2011) (quotation marks and citation omitted). Moreover, the

Eleventh Circuit has stated that “[n]othing in our case law would derive a constitutional

deprivation from a prison physician’s failure to subordinate his own professional judgment

to that of another doctor; to the contrary, it is well established that ‘a simple difference in

medical opinion’ does not constitute deliberate indifference.” Bismark v. Fisher, 213 F.

App’x 892, 897 (11th Cir. 2007) (quoting Waldrop, 871 F.2d at 1033). Similarly, “the

question of whether governmental actors should have employed additional diagnostic

15

techniques or forms of treatment ‘is a classic example of a matter for medical judgment’

and therefore not an appropriate basis for grounding liability under the Eighth

Amendment.” Adams v. Poag, 61 F.3d 1537, 1545 (11th Cir. 1995) (citation omitted).

In the Complaint, Sanders asserts that Harrold mistreated him on April 23, 2017,

May 8, 2017, and August 3, 2017, after his suicide attempts. See Complaint at 18-23.

According to Sanders, officers escorted him on April 23, 2017, to the infirmary to have his

stomach pumped because he had swallowed pills. See id. at 18. He complains that

Harrold was verbally abusive, and said she would not place him on SHOS. See id.

Nevertheless, he states that officers placed him in a SHOS cell for three days. See id. at

19. According to Sanders, he again swallowed pills on May 8th, and Harrold performed a

lavage by jamming the tube down his throat until he spat blood. See id. at 21. He

complains that Harrold was unsympathetic when he told her he was suicidal, and that she

initially intended to return him to his cell instead of SHOS. See id. He avers that he was

placed in a SHOS cell that same day. See id. Sanders states that he declared a mental

health emergency on August 3rd, and swallowed pills in front of the camera and a nurse.

See id. at 22. He avers that Harrold did not need to perform a lavage because he was

willing to drink the charcoal, but she followed the officers’ directive to perform a lavage

and “make it hurt.” Id. He asserts that Officer Fogarty squeezed his head and poked him

in the eyes as Harrold performed the lavage. See id. According to Sanders, Harrold

initially refused his request for SHOS, but he was placed on SHOS that same day after

he tried to hang himself in the shower. See id. at 23.

16

As to any alleged verbal abuse or insulting gestures on the part of Defendant

Harrold, such allegations do not state a claim of federal constitutional dimension. See

Hernandez v. Fla. Dep’t of Corr., 281 F. App’x 862, 866 (11th Cir. 2008) (per curiam). Nor

can Sanders’ assessment of Harrold’s “bedside manner” support “an inference of

deliberate indifference.” Bismark, 213 F. App’x at 897 (“While [plaintiff] objects to

[defendant]’s apparently brusque mannerisms, it is not a violation of the Eighth

Amendment for a prison physician to consult with a prisoner concerning a medical

condition in an aloof or unfriendly way. Much more is required.”) (citing Harris v. Thigpen,

941 F.2d 1495, 1505 (11th Cir.1991)) (footnote omitted).

Sanders’ assertions relating to Harrold’s provision of medical care and failure to

place him on SHOS on April 23rd, May 8th, and August 3rd fail to state plausible Eighth

Amendment deliberate indifference claims against Harrold. The Complaint reflects that

Harrold provided Sanders with immediate medical treatment when he swallowed pills on

April 23, May 8th, and August 3rd, and that Sanders was ultimately placed on SHOS as

a result of his suicidal tendencies. To the extent Sanders is complaining about Harrold’s

lavage procedure and course of treatment, such a complaint would be at most a claim of

negligence or a disagreement with Harrold’s medical treatment choice, neither of which

is sufficient to state a claim of deliberate indifference to a serious medical need. Thus,

taking Sanders’ allegations as true, as this Court must do, he fails to state plausible Eighth

Amendment deliberate indifference claims against Defendant Harrold. As such,

17

Defendant Harrold’s Motion is due to be granted as to Sanders’ deliberate indifference

claims (counts 11, 13, 14, 17, 21) against Defendant Harrold.12

Additionally, Sanders maintains that Harrold violated his Eighth Amendment right

when she conspired with twelve prison staff members to harm him. See Complaint at 10,

¶ 7. “[T]he linchpin for conspiracy is agreement, which presupposes communication.”

Bailey v. Bd. of Cty. Comm’rs of Alachua Cty., Fla., 956 F.2d 1112, 1122 (11th Cir. 1992).

Sanders need not “produce a ‘smoking gun’ to establish the ‘understanding’ or ‘willful

participation’ required to show a conspiracy, but must show some evidence of agreement

between the defendants.” Rowe v. City of Fort Lauderdale, 279 F.3d 1271, 1283-84 (11th

Cir. 2002) (quoting Bendiburg v. Dempsey, 909 F.2d 463, 469 (11th Cir. 1990)) (internal

citation omitted). In the Complaint, Sanders provides no facts suggesting that Harrold

reached an understanding or agreement with the other staff members to use excessive

force against Sanders. As such, Harrold’s Motion is due to granted as to Sanders’

conspiracy claim against her in count 7.

Next, Sanders complains that Defendant Harrold failed to file an incident report to

alert the prison administration about the abuse Sanders had encountered. See Complaint

at 12, 21. He also asserts that Harrold refused to document his injuries and falsified

documents to cover-up the abuse. See id. at 12. Section 1983 provides a cause of action

for the deprivation of any rights, privileges, or immunities secured by the Constitution or

federal law, not for violations of prison regulations. 42 U.S.C. § 1983. Notably, a violation

12 For this same reason, Defendant Harrold’s assertion of her right to qualified

immunity would provide an alternative basis for dismissal.

18

of departmental rules or policies, standing alone, does not infringe upon an inmate’s

constitutional rights. See Sandin v. Conner, 515 U.S. 472, 481-82 (1995) (recognizing

that “prison regulations [are] primarily designed to guide correctional officers in the

administration of a prison” and “such regulations [are] not designed to confer rights on

inmates”); Adickes v. S.H. Kress & Co., 398 U.S. 144, 150 (1970) (emphasizing that a §

1983 plaintiff must prove the defendant deprived him of a right secured by the Constitution

or laws of the United States). As a health care professional, Harrold is responsible for

providing medical care to inmates, such as Sanders, which she did. Taking Sanders’

allegations as true, Harrold focused her efforts on the emergency at hand, which was

treatment of Sanders’ self-inflicted injury on the three occasions Sanders describes.

Sanders provides no facts suggesting that Harrold witnessed abusive events that

warranted the filing of an incident report. Nor did Sanders provide any facts relating to his

claims that Harrold falsified medical records and failed to document his injuries to cover-

up ongoing staff abuse. As such, Harrold’s Motion is due to be granted as to Sanders’

Eighth Amendment claims against her in counts 15, 16, 18.

In consideration of the foregoing, it is now

ORDERED:

1. Defendants Honour and Reddish’s Motion to Dismiss (Doc. 24) is

PARTIALLY GRANTED as to Sanders’ Eighth Amendment claim against Defendant

Honour. Otherwise, the Motion is DENIED.

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2. Defendant Harrold’s Motion to Dismiss (Doc. 27) is GRANTED, and

Sanders’ Eighth Amendment claims against her in counts 7, 11, 13, 14, 15, 16, 17, 18,

and 21 are DISMISSED.

3. The Clerk shall terminate Nurse Mae Harrold and Major M. Honour as

Defendants in the case.

DONE AND ORDERED at Jacksonville, Florida, this 27th day of August, 2020.

United States District Judge

sc 8/20

Cc:

Christopher Sanders, FDOC #R24565

Counsel of Record

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