Gomez v. Lister

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

MAXIMO GOMEZ,

Plaintiff,

v. Case No. 3:20-cv-253-J-39MCR

CAPT. LISTER, et al.,

Defendants.

ORDER

I. Status

Plaintiff, an inmate of the Florida penal system, filed a Civil Rights Complaint

(Doc. 1; Complaint) against five Defendants: Capt. Steven W. Lister, Capt. Jason

Carter, Sgt. Slater Williams, Sgt. Anthony McCray, and LPN Jalenah Stormant.1

Plaintiff alleges that Defendants McCray and Williams used excessive force on him;

Defendants Carter and Lister failed to protect Plaintiff from that excessive force; and

Defendant Stormant was deliberately indifferent to Plaintiff’s serious medical needs

prior to and following the use of excessive force. See generally Doc. 1.

Before the Court is Defendant Stormant’s Motion to Dismiss (Doc. 25; Motion).2

The Court advised Plaintiff that the granting of a motion to dismiss would be an

1 Throughout his Complaint, Plaintiff identifies Defendant Stormant as “Jalena McElwain.”

See generally Doc. 1. However, in her Motion to Dismiss, she clarifies that her name is now “Jalenah

Stormant.” See Doc. 25 at 1 n.1. The Clerk is directed to correct Jalenah Stormant’s name in the

docket caption.

2 Defendants Carter, McCray, Williams and Lister filed Answers. See Docs. 30, 45.

adjudication of the claim that could foreclose any subsequent litigation of the matter

and provided Plaintiff with an opportunity to respond. See Order (Doc. 11). Plaintiff

filed a response in opposition to the Motion (Doc 27; Response). Accordingly, the

Motion is ripe for the Court’s review.

II. Complaint Allegations

Plaintiff alleges that on October 8, 2017, while housed in a confinement cell at

Hamilton Correctional Institution, he advised Sergeant Chamele James that he was

feeling extremely depressed and had a psychological emergency. Doc. 1 at 13.

Sergeant James then escorted Plaintiff to Defendant Stormant, the facility’s nurse,

for a mental health evaluation. Id. at 14. Plaintiff asserts that “[w]hile he was being

assessed for his psychological emergency by Defendant [Stormant], [P]laintiff

repeatedly told Defendant [Stormant] that he was extremely depressed and felt

suicid[al] [and] that he need[ed] [] help due to the mental pain he felt.” Id. According

to Plaintiff, during his mental health assessment, Defendant Lister told Defendant

Stormant “not to honor Plaintiff’s psychological emergency []or place him in a[n]

observation cell because he want[ed] to spray Plaintiff with chemical agents.” Id.

Plaintiff contends that Defendant Lister then contacted “Warden Anderson for

authorization to use force while Plaintiff [was] still being evaluated for his

psychological emergency.” Id. He states that at Defendant Lister’s request,

Defendant Stormant then “intentionally refuse[d] to give Plaintiff any further []

medical treatment and dishonor[ed] Plaintiff’s psychological emergency as a

management problem . . . .” Id. According to Plaintiff, Defendant Stormant then

began to mock Plaintiff, stating that chemical agents or “some hot sauce” would help

Plaintiff with his psychological emergency. Id. at 14-15.

Plaintiff states that “[u]pon the completion of Defendant [Stormant’s] mental

health assessment, Plaintiff [] l[ie] prone on the floor outside the medical triage

room,” and when he began yelling that he needed help and felt suicidal, Officers

Anthony Stebbins, Jeffery Taylor, Nathan Williams, and Marvin Norman carried

Plaintiff back to his confinement cell. Id. at 15. According to Plaintiff, once back in

his confinement cell, Defendant Lister directed Officer Norman to administer one

application of chemical agents. Id. He alleges that he was then escorted to a

decontamination shower and when he again began yelling that he needed help and

felt suicidal, Defendant Lister ordered Officer Norman to administer a second

application of chemical agents into the shower cell. Id. at 16. Plaintiff explains that

Defendant Lister then ordered a third application of chemical agents; and, because

Plaintiff continued to yell that he was suicidal, Defendant Carter ordered a cell

extraction team to restrain Plaintiff. Id. at 17-18.

According to Plaintiff, he was preparing to submit to hand restraints at

Defendant Carter’s request, but instead Defendant Carter ordered the cell extraction

team, which included Defendants McCray and Williams, to enter Plaintiff’s shower.

Id. at 18. Upon entry, Plaintiff alleges Defendant McCray hit him with a plastic

shield, knocking Plaintiff to the ground, and then began punching him in the facial

area. Id. Plaintiff asserts Defendant Williams also kicked Plaintiff repeatedly in the

face and body. Id. Plaintiff alleges he suffered multiple abrasions to his back, a

swollen left ear, a facial laceration approximately 3 cm x 0.5 cm that required stiches,

head trauma, contusion to left hand, permanent eye damage to left eye for which

Plaintiff now requires eyeglasses to see, headaches, dizziness, and bleeding. Id. at 19-

21.

According to Plaintiff, he was then taken to Defendant Stormant for a post-

use-of-force evaluation. Id. at 21. He alleges that he advised Defendant Stormant that

“he was in a lot of pain and felt dizziness due to his left side of head being swollen”

and explained he could not see out of his left eye. Id. at 22. Plaintiff states that “[a]t

this time Defendant [] Carter [told] Defendant [Stormant] not to provide Plaintiff

with any more medical treatment,” telling her, “[i]f he is not dying I am put[ting] him

back in his cell.” Id. at 22. Plaintiff states Defendant Stormant then “refuse[d] to give

Plaintiff any more medical treatment, despite seeing that Plaintiff [] had suffered and

was suffering from his injuries”; and he was sent back to his cell. Id. According to

Plaintiff, approximately one hour after returning to his cell, Sergeant Coty Wiltgen

found Plaintiff on the floor, unresponsive, and drenched in blood “due to his head

injuries.” Id. Plaintiff was rushed to medical and then sent to an outside hospital for

treatment.

Plaintiff argues that Defendant Stormant was deliberately indifferent to his

serious medical needs by intentionally and maliciously deeming Plaintiff’s initial

psychological emergency as a behavioral problem. Id. at 24. According to Plaintiff, he

has a history of depression, anxiety, and suicidal behavior; and “[a]s a result of

Defendant [Stormant’s] deliberate indiffere[ce] to Plaintiff[’s] [] conditions, Plaintiff

suffered further pain and mental anguish.” Id. at 15, 24. He avers that if Defendant

Stormant had placed Plaintiff under medical observation after her mental health

assessment, he would have never been sprayed with chemical agents nor would he

have suffered the physical injuries incurred during the cell extraction. Doc. 27 at 3.

He further claims Defendant Stormant was deliberately indifferent to

Plaintiff’s serious medical needs following the uses of force because she did not

properly treat his physical injuries. Id. at 23. According to Plaintiff, Defendant

Stormant did not properly treat his wounds or head trauma, thus, when he was

returned to his cell, his facial laceration increased to 3 cm x 2 cm and he lost

consciousness. Id. at 23. Plaintiff also alleges that Doctor Columbani asked

Defendant Stormant why she allowed security to return Plaintiff to his cell with such

physical injuries, and she responded by falsifying medical reports indicating she did

treat him but the treated laceration reopened while he was in his cell. Doc. 27 at 5;

Doc. 1 at 23. Plaintiff sues Defendant Stormant in her individual and official

capacities and requests compensatory damages in the amount of $50,000 against each

Defendant; punitive damages in the amount of $90,000 against each Defendant;

additional compensatory damages in the amount of $38,000 against only Defendants

Williams and McCray; and any additional relief that the Court deems just and proper.

Id. at 6.

III. Defendant Stormant’s Motion and Analysis

Defendant Stromant requests that the Court dismiss the claims against her

because (A) Plaintiff fails to state a claim upon which relief may be granted; (B) she

is entitled to qualified immunity; and (C) she is entitled to Eleventh Amendment

immunity.3 See generally Doc. 25.

A. Failure to State a Claim

With respect to whether a complaint “fails to state a claim on which relief may

be granted,” § 1915(e)(2)(B)(ii) mirrors the language of Federal Rule of Civil

Procedure 12(b)(6), so courts apply the same standard in both contexts. Mitchell v.

Farcass, 112 F.3d 1483, 1490 (11th Cir. 1997); see also Alba v. Montford, 517 F.3d

1249, 1252 (11th Cir. 2008). “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) (citing Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 570 (2007)). “Labels and conclusions” or “a formulaic

recitation of the elements of a cause of action” that amount to “naked assertions” will

not do. Id. (quotations, alteration, and citation omitted). Moreover, a complaint must

“contain either direct or inferential allegations respecting all the material elements

necessary to sustain a recovery under some viable legal theory.” Roe v. Aware Woman

Ctr. for Choice, Inc., 253 F.3d 678, 683 (11th Cir. 2001) (quotations and citations

omitted).

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.

3 Defendant Stormant also makes a singular, passing reference that Plaintiff failed to exhaust

his administrative remedies, see Doc. 25 at 3; however, she does not present any facts or argument to

support that claim.

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). Additionally, the Eleventh

Circuit requires “‘an affirmative causal connection between the official’s acts or

omissions and the alleged constitutional deprivation’ in § 1983 cases.” Rodriguez v.

Sec’y, Dep’t of Corr., 508 F.3d 611, 625 (11th Cir. 2007) (quoting Zatler v. Wainwright,

802 F.2d 397, 401 (11th Cir. 1986)). Moreover, “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) (quotations and citation omitted). In the absence of a federal constitutional

deprivation or violation of a federal right, a plaintiff cannot sustain a cause of action

against a defendant.

Plaintiff is a prisoner; thus, his claim of deliberate indifference to a serious

medical need arises under the Eighth Amendment. See Kuhne v. Fla. Dep’t of Corr.,

745 F.3d 1091, 1094 (11th Cir. 2014) (citing Estelle v. Gamble, 429 U.S. 97 (1976)).

“To show that a prison official acted with deliberate indifference to serious medical

needs, a plaintiff must satisfy both an objective and a subjective inquiry.” Brown v.

Johnson, 387 F.3d 1344, 1351 (11th Cir. 2004) (quoting Farrow v. West, 320 F.3d

1235, 1243 (11th Cir. 2003)). First, the plaintiff must satisfy the objective component

by showing that he had a serious medical need. Goebert v. Lee Cty., 510 F.3d 1312,

1326 (11th Cir. 2007).

“A serious medical need is considered ‘one that has

been diagnosed by a physician as mandating treatment or

one that is so obvious that even a lay person would easily

recognize the necessity for a doctor’s attention.’” Id. (citing

Hill v. Dekalb Reg’l Youth Det. Ctr., 40 F.3d 1176, 1187

(11th Cir. 1994)). In either case, “the medical need must be

one that, if left unattended, pos[es] a substantial risk of

serious harm.” Id. (citation and internal quotations marks

omitted).

Brown, 387 F.3d at 1351. Next, the plaintiff must satisfy the subjective component,

which requires the plaintiff to “allege that the prison official, at a minimum, acted

with a state of mind that constituted deliberate indifference.” Richardson, 598 F.3d

at 737 (describing the three components of deliberate indifference as “(1) subjective

knowledge of a risk of serious harm; (2) disregard of that risk; (3) by conduct that is

more than mere negligence.”) (citing Farrow, 320 F.3d at 1245)).

In Estelle, the Supreme Court established that

“deliberate indifference” entails more than mere

negligence. Estelle, 429 U.S. at 106, Farmer, 511 U.S. at

835. The Supreme Court clarified the “deliberate

indifference” standard in Farmer by holding that a prison

official cannot be found deliberately indifferent under the

Eighth Amendment “unless the official knows of and

disregards an excessive risk to inmate health or safety; the

official must both be aware of facts from which the

inference could be drawn that a substantial risk of serious

harm exists, and he must also draw the inference.” Farmer,

511 U.S. at 837 (emphasis added). In interpreting Farmer

and Estelle, this Court explained in McElligott [v. Foley,

182 F.3d 1248 (11th Cir. 1999),] that “deliberate

indifference has three components: (1) subjective

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

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

McElligott, 182 F.3d at 1255; Taylor [v. Adams, 221 F.3d

1254, 1258 (11th Cir. 2000)] (stating that defendant must

have subjective awareness of an “objectively serious need”

and that his response must constitute “an objectively

insufficient response to that need”).

Farrow, 320 F.3d at 1245-46; see also Patel v. Lanier Cnty. Ga., 969 F.3d 1173, 1188-

89 & n.10 (11th Cir. 2020) (recognizing “a tension within [Eleventh Circuit] precedent

regarding the minimum standard for culpability under the deliberate-indifference

standard,” as some cases have used “more than gross negligence” while others have

used “more than mere negligence”; finding, however, that it may be “a distinction

without a difference” because “no matter how serious the negligence, conduct that

can’t fairly be characterized as reckless won’t meet the Supreme Court’s standard”

(citations omitted)).

i. Deliberate Indifference to Psychological Emergency

Defendant Stormant does not dispute that Plaintiff’s initial declaration that

he was suffering from a psychological emergency constituted an objectively serious

medical need, nor does she dispute that she was aware of Plaintiff’s need for mental

health care. See generally Doc. 25. Instead, Defendant Stormant argues that Plaintiff

fails to allege that she was deliberately indifferent to Plaintiff’s need for mental

health care by conduct that was more than mere negligence. Id. at 4-5. She argues

that Plaintiff acknowledges she completed his mental health assessment after he

declared a psychological emergency and prior to the uses of force. Id. at 5 (citing Doc.

1 at 15). However, according to her, “Plaintiff appears to merely disagree with the

treatment he received” and his desire for a different mode of treatment does not

amount to deliberate indifference. Id. Defendant Stormant further argues that

following her mental health assessment of Plaintiff, FDOC staff instructed her to not

place Plaintiff in an observation cell due to ongoing security considerations, and thus,

any purported injury arising from no observation cell cannot be attributed to her. Id.

at 6.

Taking Plaintiff’s allegations as true, the Court finds Plaintiff fails to state a

claim of deliberate indifference related to Defendant Stormant’s response to

Plaintiff’s need for mental health care. In his Response, Plaintiff alleges Defendant

Stormant evaluated his psychological emergency, but that he “disagree[d] with the

treatment methods used by Defendant,” and challenges her diagnosis that he was

experiencing a “behavioral problem.” Doc. 27 at 2-3. These admissions demonstrate

that Plaintiff did receive some amount of mental health care, and that he is merely

disagreeing with its type and quantity. See Melton v. Abston, 841 F.3d 1207, 1224

(11th Cir. 2016) (“‘[A] simple difference in medical opinion between the prison’s

medical staff and the inmate as to the latter’s diagnosis or course of treatment’ does

not support a claim of deliberate indifference.” (quoting Harris v. Thigpen, 941 F.2d

1495, 1505 (11th Cir. 1991)). Moreover, “[w]here a prisoner has received some 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

which sound in state tort law.” Harris v. Thigpen, 941 F.2d 1495, 1507 (11th Cir.

1991) (quotation and citation omitted)); see Adams v. Poag, 61 F.3d 1537, 1545 (11th

Cir. 1995) (“[T]he question of whether governmental actors should have employed

additional diagnostic 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.” (quoting Estelle, 429 U.S. at 107)); Hamm v.

DeKalb Cnty., 774 F.2d 1567, 1575 (11th Cir. 1985) (“Although [the inmate] may have

desired different modes of treatment, the care the jail provided did not amount to

deliberate indifference.”). Further, to the extent Plaintiff alleges that he would have

never been sprayed with chemical agents nor suffered injuries from the uses of force

had he been placed in an observation cell (see id. at 3), such assertions are speculative

and too attenuated to support this deliberate indifference claim. As such, Defendant

Stormant’s Motion is due to be granted as to this Eighth Amendment claim.

ii. Deliberate Indifference to Physical Injuries After Uses of Force

Defendant Stormant also does not argue that Plaintiff presented a serious

medical need following the use of chemical agents or the use of force by the cell

extraction team. See generally Doc. 25. Rather, she again asserts that she was not

deliberately indifferent to this serious medical need by conduct that was more than

negligence. Id. at 5-6. She claims that she “treated him following the use-of-force,

which included assessing him for both effects of the chemical agents and physical

injuries and cleaning his wounds.” Id. at 5. However, according to Defendant

Stormant, “Plaintiff appears to merely disagree with the treatment he received.” Id.

at 5. Further, Defendant Stormant argues that “even accepting Plaintiff’s allegations

as true, Defendant’s purported deliberate indifference arose from her observance of

security-based instructions from FDOC staff.” Id. at 6. Specifically, she avers that

“[f]ollowing the uses-of-force, Defendant treated Plaintiff for his injuries but FDOC

staff transported him to another cell.” Id.

Plaintiff alleges he was seen by Defendant Stormant for a “post use of force

evaluation,” but at Defendant Carter’s request, Defendant Stormant prematurely

stopped the evaluation and refused medical treatment, and then she allowed Plaintiff

to be sent back to his cell despite his obvious head injuries. Doc. 1 at 22. He asserts

that he was later found lying on the floor of his cell, unresponsive, and drenched in

blood. Id. He was then taken back to medical before being sent to an outside hospital

for emergency treatment. Id. at 22-23. Plaintiff also attaches to his Complaint

Defendant Stormant’s “Post-Use-of-Force Exam” medical record outlining the head

injuries (Doc. 1-2 at 3); however, Plaintiff argues Defendant Stormant fabricated the

medical record after another doctor criticized her decision to send Plaintiff back to

his cell without first treating his head injuries. Doc. 1 at 23. He further alleges that

as a result of Defendant Stormant’s deliberate indifference, he suffered additional

dizziness, headaches, the head laceration grew in size requiring stitches, and the

additional blood from the laceration made it difficult for Plaintiff to see. Id. at 23-24.

At this stage, taking Plaintiff’s allegations as true, as the Court must, Plaintiff

has sufficiently alleged that following the uses of force, Defendant Stormant

disregarded Plaintiff’s need for medical treatment by conduct that is more than

negligence. Plaintiff also sufficiently alleges that he suffered additional physical

injuries as a result of Defendant Stormant’s alleged deliberate indifference. As such,

Defendant Stormant’s Motion is due to be denied as to this Eighth Amendment claim.

B. Qualified Immunity

Defendant Stormant argues that she is entitled to qualified immunity because

she was acting within her discretionary authority and Plaintiff fails to sufficiently

allege a claim against her. Therefore, according to Defendant Stormant, the

individual capacity claims against her should be dismissed with prejudice.

“The defense of qualified immunity completely protects

government officials performing discretionary functions

from suit in their individual capacities unless their

conduct violates ‘clearly established statutory or

constitutional rights of which a reasonable person would

have known.’’ Gonzalez v. Reno, 325 F.3d 1228, 1233 (11th

Cir. 2003) (quoting Hope v. Pelzer, 536 U.S. 730, 739

(2002)) . . . . Once it has been determined that the official

was acting within his discretionary duties, the burden

shifts to the plaintiff to show (1) that the official violated

a constitutional right and (2) that the right was clearly

established at the time of the alleged violation. Caldwell

v. Warden, FCI Talladega, 748 F.3d 1090, 1099 (11th Cir.

2014). Our inquiry “can begin with either prong.” Morris

v. Town of Lexington, 748 F.3d 1316, 1322 (11th Cir.

2014).

Marbury v. Warden, 936 F.3d 1227, 1232-33 (11th Cir. 2019) (internal citations

modified). As previously found, Plaintiff has sufficiently alleged that Defendant

Stormant violated his Eighth Amendment rights by failing to provide adequate

medical treatment following the uses of force. Deliberate indifference to a serious

medical need of a prisoner is a violation of such rights. See Estelle, 429 U.S. at 104

(1976) (“deliberate indifference to serious medical needs of prisoners constitutes the

‘unnecessary and wanton infliction of pain,’ proscribed by the Eighth Amendment.”).

Accordingly, Defendant Stormant is not entitled to qualified immunity for that claim

at the pleading stage.

As to Plaintiff’s claim that Defendant Stormant was deliberately indifferent to

his psychological emergency, this Court has found that Plaintiff has failed to

sufficient state an Eighth Amendment claim. Therefore, Defendant Stormant is

entitled to qualified immunity for that claim, and thus, it will be dismissed with

prejudice.

C. Eleventh Amendment Immunity

Defendant Stormant argues that Plaintiff’s claim for monetary damages

against her in her official capacity should be dismissed, because she is entitled to

Eleventh Amendment immunity. Doc. 25 at 8. The Court agrees that such claims are

barred by the Eleventh Amendment. See, e.g., Hayes v. Sec’y, Fla. Dep’t of Children

& Families, 563 F. App’x 701, 703 (11th Cir. 2014) (“The Eleventh Amendment also

prohibits suits against state officials where the state is the real party in interest, such

that a plaintiff could not sue to have a state officer pay funds directly from the state

treasury for the wrongful acts of the state.”). As such, Defendant’s Motion is due to

be granted to the extent that Plaintiff requests monetary damages from Defendant

Stormant in her official capacity.

Accordingly, it is

ORDERED:

1. Defendant Stormant’s Motion to Dismiss (Doc. 25) is GRANTED in

part and DENIED in part. The Motion is GRANTED to the extent Plaintiff’s

Eighth Amendment claim regarding his psychological emergency is DISMISSED

with prejudice. Further, all claims for monetary damages against Defendant

Stormant in her official capacity only are DISMISSED with prejudice. The Motion

(Doc. 25) is otherwise DENIED.

2. Defendant Stormant shall file an answer to the Complaint by February

10, 2021. After Defendant Stormant files her answer, the Court will set further

deadlines by separate order.

3. The parties are encouraged to discuss the possibility of settlement and

notify the Court if their efforts are successful. In doing so, Plaintiff and Defendants

are encouraged to maintain a realistic approach in making and/or considering any

settlement offers.

DONE AND ORDERED at Jacksonville, Florida, this 12th day of January,

2021.

BRIAN J. DAVIS

United States District Judge

Jax-7

C: Maximo Gomez, #M11644

Counsel of Record

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