Cummings v. Jacksonville Sheriff's Office

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

HORACE B. CUMMINGS,

Plaintiff,

v. Case No. 3:21-cv-443-MMH-MCR

JACKSONVILLE SHERIFF’S

OFFICE, et al.,

Defendants.

_______________________________

ORDER

Plaintiff Horace Cummings, an inmate of the Florida penal system,

initiated this action on April 21, 2021, by filing a pro se Civil Rights Complaint

(Complaint; Doc. 1) under 42 U.S.C. § 1983. Cummings names the Jacksonville

Sheriff’s Office (JSO), Sheriff Mike Williams, and Corizon as Defendants.

Cummings asserts that he contracted Covid-19 while in the Duval County Jail

as a result of Defendants’ failure to take proper precautions to protect he and

other inmates from the spread of the virus. Complaint at 3-5.1 As relief,

Cummings requests compensatory damages, court fees, and costs for paper,

pens, an envelope, and copies. Id. at 5.

1 For purposes of reference, the Court will cite the page number assigned by the

Court’s electronic docketing system.

The Prison Litigation Reform Act requires the Court to dismiss this case

at any time if the Court determines that the action is frivolous, malicious, fails

to state a claim upon which relief can be granted or seeks monetary relief

against a defendant who is immune from such relief. See 28 U.S.C. §

1915(e)(2)(B)(i)-(iii). “A claim is frivolous if it is without arguable merit either

in law or fact.” Bilal v. Driver, 251 F.3d 1346, 1349 (11th Cir. 2001) (citing

Battle v. Central State Hosp., 898 F.2d 126, 129 (11th Cir. 1990)). A complaint

filed in forma pauperis which fails to state a claim under Federal Rule of Civil

Procedure 12(b)(6) is not automatically frivolous. Neitzke v. Williams, 490 U.S.

319, 328 (1989). Section 1915(e)(2)(B)(i) dismissals should only be ordered

when the legal theories are “indisputably meritless,” id. at 327, or when the

claims rely on factual allegations which are “clearly baseless.” Denton v.

Hernandez, 504 U.S. 25, 32 (1992). “Frivolous claims include claims ‘describing

fantastic or delusional scenarios, claims with which federal district judges are

all too familiar.’” Bilal, 251 F.3d at 1349 (quoting Neitzke, 490 U.S. at 328).

Additionally, a claim may be dismissed as frivolous when it appears that a

plaintiff has little or no chance of success. Id.

The Court must read a plaintiff's pro se allegations in a liberal fashion.

Haines v. Kerner, 404 U.S. 519 (1972). To state a claim under 42 U.S.C. § 1983,

a plaintiff must allege that (1) the defendant deprived him or her 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). Moreover, in § 1983 cases, the Eleventh Circuit “requires

proof of an affirmative causal connection between the official's acts or

omissions and the alleged constitutional deprivation.” Zatler v. Wainwright,

802 F.2d 397, 401 (11th Cir. 1986). 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, Cummings cannot sustain a cause of action against the Defendants.

Cummings’s Allegations

In the Complaint, Cummings alleges that from April of 2020 through

March of 2021, Defendants had inadequate safeguards to prevent the spread

of Covid-19. Complaint at 3-5. As a result, Cummings asserts that more than

400 inmates, including himself, contracted Covid-19. Id. at 4. According to

Cummings:

The Jacksonville Sheriff’s Office failed to take the

proper measure[s] to protect me and other inmates

from catching the deadly virus. [Cummings] [w]ent to

medical on or about June 18, 2020. [A] [d]octor bought

[sic] the virus into the facility. [The] [d]octor was

terminated.

Id. at 5. Cummings further alleges that “[m]edical or Corizon failed to read the

EKG of my heart correct[ly] and ignored my grievance about an ear infection

which really was a[n] infect[ion] from contracting the Covid-19.” Id. As a result,

Cummings contends that he now has heart troubles, shortness of breath, and

memory and weight loss. Id.

Claims Against JSO

Whether a party has the capacity to be sued is determined by the law of

the state in which the district court sits. Dean v. Barber, 951 F.2d 1210, 1214-

15 (11th Cir. 1992) (stating that certain subdivisions of local or county

governments, such as sheriff's departments and police departments, generally

are not legal entities subject to suit). “Florida law has not established Sheriff's

offices as separate legal entities with the capacity to be sued.” Faulkner v.

Monroe Cty. Sheriff's Dep't, 523 F. App'x 696, 701 (11th Cir. 2013). Thus, a

district court does not err in dismissing a claim against a Florida Sheriff's

office. Id. Because JSO is not a legal entity amenable to suit, Cummings fails

to state a § 1983 claim upon which relief may be granted against JSO and,

therefore, JSO is due to be dismissed.

Claims Against Sheriff Mike Williams

Cummings sues Williams in his official capacity only. Where an officer

is sued under § 1983 in his official capacity, the suit is actually a proceeding

against the entity the officer represents. See Cook ex rel. Estate of Tessier v.

Sheriff of Monroe Cnty., Fla., 402 F.3d 1092, 1115 (11th Cir. 2005); see also

Hafer v. Melo, 502 U.S. 21, 25 (1991) (“[O]fficial-capacity suits ‘generally

represent only another way of pleading an action against an entity of which an

officer is an agent.’” (quoting Kentucky v. Graham, 473 U.S. 159, 165 (1985)).

Accordingly, Cummings’s claim against Williams in his official capacity as

Sheriff of Duval County is actually a claim against Duval County. As such, the

Court considers Williams official capacity liability in the context of those cases

discussing county and municipal liability under § 1983.

To the extent that Cummings seeks to hold Duval County through

Williams vicariously liable for the actions or omissions of the employees

responsible for Cummings’s injury, Cummings has failed to state a claim upon

which relief can be granted. The United States Supreme Court has soundly

rejected the theory of respondeat superior as a basis for liability in § 1983

actions. See Monell v. Dep’t of Soc. Servs. of City of N.Y., 436 U.S. 658 (1978).

Instead, a county or municipality may be liable in a § 1983 action “only where

the municipality itself causes the constitutional violation at issue.” Cook ex.

rel. Estate of Tessier, 402 F.3d at 1115 (citations omitted). Thus, a plaintiff

must establish that an official policy or custom of the municipality was the

“moving force” behind the alleged constitutional deprivation. See Monell, 436

U.S. at 693-94. “A policy is a decision that is officially adopted by the

municipality, or created by an official of such rank that he or she could be said

to be acting on behalf of the municipality.” Sewell v. Town of Lake Hamilton,

117 F.3d 488, 489 (11th Cir. 1997) (citation omitted). The policy requirement

is designed to “‘distinguish acts of the municipality from acts of employees of

the municipality, and thereby make clear that municipal liability is limited to

action for which the municipality is actually responsible.’” Grech v. Clayton

Cnty., Ga., 335 F.3d 1326, 1329 n.5 (11th Cir. 2003) (en banc) (quotation

omitted). Indeed, municipal liability arises under § 1983 only where “‘a

deliberate choice to follow a course of action is made from among various

alternatives’ by city policymakers.” City of Canton v. Harris, 489 U.S. 378, 389

(1989) (quoting Pembaur v. Cincinnati, 475 U.S. 469, 483-84 (1986)). A

municipality will rarely have an officially-adopted policy that permits a

particular constitutional violation, therefore, in order to state a cause of action

for damages under § 1983, most plaintiffs must demonstrate that the

municipality has a custom or practice of permitting the violation. See Grech,

335 F.3d at 1330; McDowell v. Brown, 392 F.3d 1283, 1289 (11th Cir. 2004).

The Eleventh Circuit has defined “custom” as “a practice that is so settled and

permanent that it takes on the force of law” or a “persistent and wide-spread

practice.” Sewell, 117 F.3d at 489.

In some circumstances, “the failure to provide proper training may fairly

be said to represent a policy for which the city may be held liable if it actually

causes injury.” City of Canton, 489 U.S. at 390. Failure to train can lead to

municipal liability “only where a municipality’s failure to train its employees

in a relevant respect evidences a ‘deliberate indifference’ to the rights of its

inhabitants [such that the failure to train] can be properly thought of as a city

‘policy or custom’ that is actionable under § 1983.” Id. at 388-89 (alteration

added). Thus, in order to assert such a claim, a plaintiff must “present some

evidence that the municipality knew of a need to train and/or supervise in a

particular area and the municipality made a deliberate choice not to take any

action.” Gold v. City of Miami, 151 F.3d 1346, 1350 (11th Cir. 1998). The

Eleventh Circuit has repeatedly held that “without notice of a need to train or

supervise in a particular area, a municipality is not liable as a matter of law

for any failure to train or supervise.” Id. at 1351. Indeed, “the need for such

training must be plainly obvious to [County] decisionmakers,” such as where

there is “evidence of a history of widespread prior abuse.” Wright v. Sheppard,

919 F.2d 665, 674 (11th Cir. 1990) (alteration added); see also Rocker v. City

of Ocala, Fla., 355 F. App’x 312, 314 (11th Cir. 2009) (per curiam).2 Here,

Cummings fails to allege the existence of any particular custom or policy in

Duval County, much less one that caused the actions about which he

complains. Accordingly, Cummings has failed to state a claim upon which relief

can be granted; therefore, Williams is due to be dismissed from this action.

Claims Against Corizon

Corizon contracted with the Duval County Jail to provide medical

services to detainees and inmates within the pre-trial detention facility.

Although Corizon is not a governmental entity, “[w]here a function which is

traditionally the exclusive prerogative of the state … is performed by a private

entity, state action is present” for purposes of § 1983. Ancata v. Prison Health

Servs., Inc., 769 F.2d 700, 703 (11th Cir. 1985) (citations omitted). Indeed,

“when a private entity . . . contracts with a county to

provide medical services to inmates, it performs a

function traditionally within the exclusive prerogative

of the state” and “becomes the functional equivalent of

the municipality” under section 1983. Buckner v. Toro,

116 F.3d 450, 452 (11th Cir. 1997). “[L]iability under §

1983 may not be based on the doctrine of respondeat

2 The Court notes that the Supreme Court, in dictum, has left open the possibility that

“a need to train could be ‘so obvious,’” that a city could be held liable even without a pattern

of prior constitutional violations. See Gold, 151 F.3d at 1352 (citing City of Canton, 489 U.S.

at 390). The Supreme Court offered the example of the need to train officers in the use of

deadly force where the officers are provided firearms. City of Canton, 489 U.S. at 390 n.10.

Because an “obvious need” claim “must be based on a ‘particular glaring omission in a

training regimen’ and not merely on ‘possible imperfections’ in a training program,” the Court

finds that the record here does not contain evidence to sustain a failure to train claim based

on this theory. See West v. Tillman, 496 F.3d 1321, 1331 n.16 (11th Cir. 2007) (quoting Gold,

151 F.3d at 1352).

superior.” Grech v. Clayton Cnty., Ga., 335 F.3d 1326,

1329 (11th Cir. 2003) (en banc).

Craig v. Floyd Cty., Ga., 643 F.3d 1306, 1310 (11th Cir. 2011); see Denham v.

Corizon Health, Inc., Case No. 6:13-cv-1425-Orl-40KRS, 2015 WL 3509294, at

*3 n.1 (M.D. Fla. June 4, 2015) (“[W]hen a government function is performed

by a private entity like Corizon, the private entity is treated as the functional

equivalent of the government for which it works.”) (citation omitted), aff’d

(11th Cir. Jan. 13, 2017).

Where a deliberate indifference medical claim is brought against an

entity, such as Corizon, based upon its functional equivalence to a government

entity, the assertion of a constitutional violation is merely the first hurdle in a

plaintiff’s case. This is so because liability for constitutional deprivations under

§ 1983 cannot be based on the theory of respondeat superior. Craig, 643 F.3d

at 1310 (quoting Grech v. Clayton Cty., Ga., 335 F.3d 1326, 1329 (11th Cir.

2003) (en banc)); see Denno v. Sch. Bd. Of Volusia Cty., 218 F.3d 1267, 1276

(11th Cir. 2000). Instead, a government entity may be liable in a § 1983 action

“only where the [government entity] itself causes the constitutional violation

at issue.” Cook ex. rel. Estate of Tessier, 402 F.3d at 1116 (citations omitted).

Thus, like claims against a county, a plaintiff must establish that an official

policy or custom of the government entity was the “moving force” behind the

alleged constitutional deprivation. See Monell, 436 U.S. at 693-94. Because

Corizon’s liability under § 1983 would be based on its functional equivalence

to the government entity responsible for providing medical care and services

to Duval County Jail detainees and inmates, Cummings must plead that an

official policy or a custom or practice of Corizon was the moving force behind

the alleged federal constitutional violation.

Upon review, Cummings has neither identified an official Corizon policy

of deliberate indifference nor an unofficial Corizon custom or practice that was

“the moving force” behind any alleged constitutional violation. Corizon cannot

be held liable based on any alleged conduct of or decisions by its employees

simply because they were working under contract for Corizon to provide

medical care in the Duval County Jail. Cummings’s factual allegations relating

solely to alleged individual failures in his medical care are simply insufficient

to sustain a claim that there is either a policy to deny medical care to detainees

or a practice or custom of denying adequate medical care, much less that the

practice was so widespread that Corizon had notice of violations and made a

“conscious choice” to disregard them. Gold, 151 F.3d at 1350. Thus,

Cummings’s § 1983 claim against Corizon is due to be dismissed.

In light of the above, it is

ORDERED that:

1. This case is hereby DISMISSED WITHOUT PREJUDICE.

2. The Clerk of Court shall enter judgment dismissing this case

without prejudice, terminating any pending motions, and closing the case.

DONE AND ORDERED at Jacksonville, Florida, this 30th day of April,

2021.

MARCIA MORALES HOWARD

United States District Judge

Jax-8

c: Horace B. Cummings #303027

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