Dimaio v. Jacksonville Sheriffs Office

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

DOMINIC ALAN DIMAIO,

Plaintiff,

v. Case No. 3:20-cv-984-J-39MCR

JACKSONVILLE SHERIFF’S OFFICE,

et al.,

Defendants.

_______________________________

ORDER

Plaintiff, Dominic Alan Dimaio, an inmate at the Duval County

Jail, initiated this action by filing a pro se Civil Rights

Complaint (Doc. 1; Compl.) and a motion to proceed in forma

pauperis (Docs. 2, 9).1 Plaintiff names as Defendants the

Jacksonville Sheriff’s Office, two John Doe housing officers, and

unknown employees or agents of Armor Healthcare. See Compl. at 2-

3.

In an exhibit filed with his complaint (Doc. 1-1; Ex. A),

Plaintiff explains two corrections officers assaulted him on

February 5, 2020, causing injuries that required medical

treatment. See Ex. A at 2. Plaintiff had x-rays taken and received

temporary pain medication, but he alleges his requests for

continued or different treatment have been ignored or denied. Id.

1 The Court will rule on Plaintiff’s motion to proceed as a

pauper and his other motions (Docs. 5, 7, 8) in a separate order.

at 3. As relief, Plaintiff seeks an injunction to ensure he remains

safe and receives medical treatment; declaratory relief; and

damages. Id. at 7. He also seeks a “writ of habeas corpus to seek

an answer for items shown in all complaints . . . submitted to the

Courts of Florida, that have gone unanswered.” Id.

Plaintiff’s complaint is before the Court for screening

pursuant to 28 U.S.C. § 1915(e)(2)(B), which provides that a

district court may dismiss a complaint that, among other reasons,

fails to state a claim upon which relief may be granted. Plaintiff

is advised that a viable claim under 42 U.S.C. § 1983 requires a

plaintiff to establish two essential elements: the conduct

complained of was committed by a person acting under color of state

law, and this conduct deprived the plaintiff of rights, privileges,

or immunities secured by the Constitution or laws of the United

States.

Upon review of the complaint, the Court opines that Plaintiff

has failed to set forth his claims sufficiently. First, Plaintiff

names Defendants not subject to suit under § 1983, or Defendants

not personally involved in the alleged conduct. In Florida, a

sheriff’s office is not a legal entity subject to suit in a civil

rights action brought under § 1983. Monroe v. Jail, No. 2:15-cv-

729-FtM-99MRM, 2015 WL 7777521, at *2 (M.D. Fla. Dec. 3, 2015)

(citing Chapter 30, Florida Statutes) (“Florida law does not

recognize a jail facility as a legal entity separate and apart

from the Sheriff charged with its operation and control.”). See

also Herrera v. Rambosk, No. 217CV472FTM29MRM, 2019 WL 1254772, at

*4 (M.D. Fla. Mar. 19, 2019) (dismissing the Collier County Jail

under § 1915(e)(2)(B)(ii)).

As to the individual officers, each identified as “John Doe,”

Plaintiff should know the Eleventh Circuit has consistently held

that “fictitious-party pleading is not permitted in federal

court,” unless a plaintiff describes a John Doe defendant with

such particularity that he or she can be identified and served.

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

(affirming dismissal of a John Doe defendant where the plaintiff

failed to identify or describe the individual “guard” allegedly

involved); Williams v. DeKalb Cty. Jail, 638 F. App’x 976, 976-77

(11th Cir. 2016) (“A fictitious name . . . is insufficient to

sustain a cause of action.”).

Even more, Plaintiff does not attribute factual allegations

to the John Doe housing officers. If these Defendants are the

“corrections officers” who allegedly assaulted Plaintiff on

February 5, 2020, Plaintiff identifies them by name (Griffith and

Richard) in his factual summary. See Ex. A at 2, 7. Plaintiff

should identify all Defendants consistently. If the John Doe

Defendants are the ones who allegedly assaulted Plaintiff, but

Plaintiff does not know their full names, he should provide the

information he knows and also describe them by title, appearance,

or shift assignment so they can be identified and served, if

necessary.

As to Armor Healthcare, Plaintiff is advised that supervisory

officials, including healthcare companies, cannot be held liable

under § 1983 on the basis of supervisory liability 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) (internal quotation

marks and citation omitted) (“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.”).

If Plaintiff seeks to hold individual healthcare employees

liable for the alleged denial of medical care, he should name those

individuals as Defendants and explain what conduct by them gives

rise to a constitutional claim. But Plaintiff should know that

allegations of medical negligence or a disagreement with medical

care do not give rise to a constitutional claim.

Second, some of Plaintiff’s claims are unclear or not

cognizable as alleged. Plaintiff identifies the First, Fourth,

Fifth, Eighth, and Fourteenth Amendments as the source of his

claims, but his factual allegations do not support claims under

the First, Fourth, Fifth, or Eighth Amendments. See Compl. at 3.

Plaintiff says his First Amendment right to petition for redress

of grievances was violated, but he does not allege facts showing

a First Amendment violation. For instance, he does not contend

anyone retaliated against him for engaging in protected speech

(writing grievances). Plaintiff seems to base this claim on the

lack of satisfactory response to his grievances. See Ex. A at 5.

Plaintiff maintains the Sheriff’s Office and Armor Healthcare

violated his Fifth Amendment due process rights by “not protecting

him and providing medical services to treat his injuries.” Id. The

Fifth Amendment governs the conduct of federal actors, not state

actors. See Buxton v. City of Plant City, Fla., 871 F.2d 1037,

1041 (11th Cir. 1989). Because Plaintiff sues state actors, the

Fifth Amendment is inapplicable.

As to Plaintiff’s claims for excessive force and the denial

of medical care, neither the Fourth Amendment nor the Eighth

Amendment applies. “[T]he Fourth Amendment prevents the use of

excessive force during arrests, and the Eighth Amendment serves as

the primary source of protection against excessive force after

conviction.” Piazza v. Jefferson Cty., Alabama, 923 F.3d 947, 952

(11th Cir. 2019) (internal citations omitted). See also Patel v.

Lanier Cty. Georgia, 969 F.3d 1173, 1181 (11th Cir. 2020) (“[T]he

Supreme Court clarified that the Eighth Amendment’s malicious-and-

sadistic standard—which applies to incarcerated prisoners—does not

extend to pretrial detainees.”). Pretrial detainees are protected

by the Fourteenth Amendment. Piazza, 923 F.3d at 952.

Finally, Plaintiff alleges he “wishes to treat this complaint

as a . . . petition for writ of habeas corpus due to his illegal

detention,” and because the state court denied his petition for

such relief. See Ex. A at 4-5. Plaintiff may not challenge the

fact or duration of his detention in this civil rights action.

Additionally, to the extent Plaintiff is unsatisfied with state

court rulings or judgments, he should know that this Court does

not act as a super-appellate court for the state courts.

To proceed, Plaintiff must file an amended complaint on the

enclosed civil rights complaint form and in compliance with federal

pleading standards. Federal Rule of Civil Procedure 8(a) requires

a pleading to include a short and plain statement of the claim

showing the pleader is entitled to relief. Rule 10(b) requires all

averments of the claim be made “in numbered paragraphs, each

limited as far as practicable to a single set of circumstances.”

To survive dismissal, a complaint must allege facts, accepted as

true, that state a claim “that is plausible on its face.” Ashcroft

v. Iqbal, 556 U.S. 662, 678 (2009). The standard asks for less

than a probability but “more than a sheer possibility that a

defendant has acted unlawfully.” Id.

If Plaintiff chooses to amend his complaint, he should assess

his case and name as defendants only those individuals allegedly

responsible for violating his federal constitutional rights, and

he must allege how each individual is so responsible. Plaintiff

must also adhere to the following instructions.

1. The amended complaint must be marked, “Amended

Complaint.”

2. The amended complaint must name as defendants only those

who had been acting under color of state law and are

responsible for the alleged constitutional violation.

3. The amended complaint must state the full names of each

defendant (to the extent Plaintiff knows them) in the

style of the case on the first page and in section I.B.

If Plaintiff does not know a defendant’s name, he should

describe that person and his/her title, position, or

rank in as much detail as possible.

4. The list of defendants named on the first page must match

the list of named defendants in section I.B.

5. The amended complaint (or a separate filing) must

include current addresses for each defendant so the

Court can direct service of process.

6. In section IV, “Statement of Claim,” there must be a

clear description of how each defendant was involved in

the alleged violation(s). The allegations should be

stated in numbered paragraphs, each limited to a single

set of circumstances. Plaintiff should separately

explain the facts giving rise to his individual claims

for relief, and he should clearly state how each

defendant is responsible for each alleged violation.2

7. In section V, “Injuries,” there must be a statement

concerning how each defendant’s action or omission

injured Plaintiff.

2 Plaintiff may attach additional pages if necessary, but he

should continue to number the paragraphs for a clear presentation

of his factual allegations supporting each claim.

8. In section VI, “Relief,” there must be a statement of

what Plaintiff seeks through this action.3

Plaintiff must sign and date the amended complaint after the

following statement on the form:

Under Federal Rule of Civil Procedure 11, by

signing below, I certify to the best of my

knowledge, information, and belief that this

complaint: (1) is not being presented for an

improper purpose, such as to harass, cause

unnecessary delay, or needlessly increase the

cost of litigation; (2) is supported by

existing law or by a nonfrivolous argument for

extending, modifying, or reversing existing

law; (3) the factual contentions have

evidentiary support or, if specifically so

identified, will likely have evidentiary

support after a reasonable opportunity for

further investigation or discovery; and (4)

the complaint otherwise complies with the

requirements of Rule 11.

Before signing the amended complaint, Plaintiff must ensure

his assertions are truthful and he has not knowingly made false

material declarations. He must neither exaggerate nor distort the

facts but instead must truthfully state the facts underlying his

claims. Knowingly making a false material declaration in violation

of 18 U.S.C. § 1623 is punishable by a fine, imprisonment, or both.

3 Plaintiff is advised that “[t]he [Prison Litigation Reform

Act (PLRA)] places substantial restrictions on the judicial relief

that prisoners can seek . . . .” Brooks v. Warden, 800 F.3d 1295,

1307 (11th Cir. 2015) (quoting Al-Amin v. Smith, 637 F.3d 1192,

1195 (11th Cir. 2011)).

Accordingly, it is now

ORDERED :

1. The Clerk shall send Plaintiff a Civil Rights Complaint

form.

2. By December 4, 2020, Plaintiff must mail an amended

complaint to the Court for filing. The amended complaint should

comply with the instructions on the form and those provided in

this order.

3. Also by December 4, 2020, Plaintiff must mail to the

Court one copy of the amended complaint (including exhibits)‘4 for

each named defendant.

4. Plaintiff’s failure to comply with this order may result

in the dismissal of this case.

DONE AND ORDERED at Jacksonville, Florida, this 5th day of

November 2020.

UNITED STATES MAGISTRATE JUDGE

Jax-6

Cc:

Dominic Alan Dimaio

4 Plaintiff may include exhibits, such as grievances or

medical records. Plaintiff must individually number each exhibit

in the lower right-hand corner of each exhibit. If his first

exhibit has multiple pages, he should number the pages 1-A, 1-B,

1-C, etc.