Gallashaw v. Moody

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

DAWN GALLASHAW, Administrator

and Personal Representative of

the Estate of Antonio Gallashaw,

Plaintiff,

v. Case No. 3:20-cv-106-BJD-MCR

FLORIDA DEPARTMENT OF

CORRECTIONS, et al.,

Defendants.

______________________________

ORDER

I. Status & Procedural History

Plaintiff, Dawn Gallashaw, as personal representative of her son Antonio

Gallashaw’s estate, is proceeding on a second amended complaint (Doc. 37; Am.

Compl.) against the Florida Department of Corrections (FDOC); the former

warden of Baker Correctional Institution (BCI), James Lee; and two BCI

corrections officers, Kevin Faltz and William Moody. See Am. Compl. ¶¶ 3-6.

Plaintiff alleges Defendants’ actions or omissions caused her son’s death on

July 28, 2015. Id. ¶¶ 21, 42, 47-48, 59, 65, 73. Before the Court are Defendant

Faltz’s motion to dismiss (Doc. 39; Faltz Motion) and Defendant Lee’s motion

to dismiss (Doc. 42; Lee Motion). Plaintiff has responded to Defendant Faltz’s

motion (Doc. 44; Pl. Faltz Resp.) and to Defendant Lee’s motion (Doc. 45; Pl.

Lee Resp.). Defendants Moody and the FDOC answered the operative pleading

(Docs. 40, 41).

As background, Defendants Faltz and Lee moved to dismiss the claims

against them as stated in the first amended complaint. The Court granted their

motions (in part as to Faltz) but permitted Plaintiff an opportunity to amend

(Doc. 32; MTD Order). In ruling on those motions, the Court found in relevant

part that Plaintiff stated an excessive force claim against Defendant Faltz

(though did not clearly indicate under which count such a claim proceeded) but

did not state a deliberate indifference claim against him for an alleged failure

to provide medical care; Defendant Faltz was not entitled to sovereign

immunity; and Plaintiff failed to state a plausible claim against Defendant Lee.

See MTD Order at 8-9, 11, 13, 19, 20-21.

II. Motion to Dismiss Standard

“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); see also Lotierzo v.

Woman’s World Med. Ctr., Inc., 278 F.3d 1180, 1182 (11th Cir. 2002). “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.” Iqbal, 556 U.S. at 678. A plaintiff should allege enough

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facts “to raise a reasonable expectation that discovery will reveal evidence”

supporting the plaintiff’s claims. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556

(2007).

Though detailed factual allegations are not required, Federal Rule of

Civil Procedure 8(a) demands “more than an unadorned, the-defendant-

unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678. As such, a plaintiff

may not rely on “[t]hreadbare recitals of the elements of a cause of action,

supported by mere conclusory statements.” Gill as Next Friend of K.C.R. v.

Judd, 941 F.3d 504, 511 (11th Cir. 2019) (quoting Iqbal, 556 U.S. at 678).

Rather, the well-pled allegations must nudge the claim “across the line from

conceivable to plausible.” Twombly, 550 U.S. at 570. In assessing the

sufficiency of a complaint, all reasonable inferences should be drawn in favor

of the plaintiff. See Iqbal, 556 U.S. at 678.

III. Defendant Faltz’s Motion

Defendant Faltz seeks dismissal under rules 7, 8, 10, and 12(b)(6) of the

Federal Rules of Civil Procedure, arguing he is entitled to sovereign immunity

on the state-law claim (wrongful death), he is entitled to qualified immunity

on the constitutional claims (excessive force and deliberate indifference), and

Plaintiff has not separated each count making it “unclear what Plaintiff is

alleging.” See Faltz Motion at 1, 4, 6, 8. In opposition, Plaintiff notes the Court

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previously found Defendant Faltz was not entitled to sovereign immunity on

the state-law claim, and she points to factual allegations she contends go

beyond a “threadbare” recital of the elements of a cause of action as to all

claims. See Pl. Faltz Resp. at 5 n.2, 6, 11-12.

For the reasons stated in the Court’s order on Faltz’s first motion to

dismiss, the Court finds Plaintiff asserts facts that, accepted as true, permit

the reasonable inference Defendant Faltz acted with the requisite state of mind

to overcome a sovereign immunity defense, and she states a plausible claim

against Defendant Faltz for excessive force. See MTD Order at 8, 9.1

Additionally, Plaintiff includes new allegations that, accepted as true, permit

the reasonable inference Defendant Faltz was deliberately indifferent to Mr.

Gallashaw’s serious medical needs: Defendant Faltz attacked Mr. Gallashaw

without cause; along with others, dragged an unresponsive Mr. Gallashaw

from his cell; and held Mr. Gallashaw face-down in the hallway for

approximately ten minutes without calling for medical assistance, despite that

Mr. Gallashaw had “either ceased breathing or continued to be unable to

breathe from the beating.” See Am. Compl. ¶¶ 16-19.

1 Plaintiff now clarifies under which count she raises the excessive force

claim—count three. See Am. Compl. ¶¶ 51-59.

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For these reasons and those stated in the Court’s prior order (Doc. 32),

Defendant Faltz is not entitled to sovereign immunity on the state-law claim,

and Plaintiff points to facts showing Defendant Faltz is not entitled to qualified

immunity at this juncture on the constitutional claims. Accordingly, Defendant

Faltz’s motion is due to be denied.

IV. Defendant Lee’s Motion

Defendant Lee argues Plaintiff again fails to state a plausible claim

against him under both state law (wrongful death) and 42 U.S.C. § 1983

(deliberate indifference), because her allegations in the second amended

complaint are essentially the same as those raised in the former pleading. See

Lee Motion at 4, 9, 13. Additionally, Defendant Lee invokes qualified and

sovereign immunities. Id. at 7, 15.

A. Qualified Immunity

An officer sued in his individual capacity “is entitled to qualified

immunity for his discretionary actions unless he violated ‘clearly established

statutory or constitutional rights of which a reasonable person would have

known.’” Black v. Wigington, 811 F.3d 1259, 1266 (11th Cir. 2016) (quoting

Case v. Eslinger, 555 F.3d 1317, 1325 (11th Cir. 2009)). Qualified immunity

allows officers to exercise their official duties without fear of facing personal

liability. Alcocer v. Mills, 906 F.3d 944, 951 (11th Cir. 2018). The doctrine

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protects all but the plainly incompetent or those who knowingly violate an

inmate’s constitutional rights. Id.

Upon asserting a qualified immunity defense, a defendant bears the

initial burden to demonstrate he was acting in his discretionary authority at

the relevant times. Dukes v. Deaton, 852 F.3d 1035, 1041-42 (11th Cir.). As

she did previously (Doc. 28), Plaintiff argues Defendant Lee was “not acting

within his discretionary authority when he violated [Mr. Gallashaw’s]

[c]onstitutional rights.” See Pl. Lee Resp. at 15. For the reasons stated in the

Court’s prior order, this argument is not persuasive. See MTD Order at 14-15.

Accordingly, the burden now shifts to Plaintiff to demonstrate she alleges

Defendant Lee engaged in conduct that, accepted as true, caused the violation

of a clearly established constitutional right. Alcocer, 906 F.3d at 951.

A comparison of the operative and former pleadings shows Plaintiff’s

allegations against Defendant Lee remain mostly unchanged. The deliberate

indifference claim against Defendant Lee (count four), which the Court found

insufficient in the former pleading, includes few new factual allegations:

“Defendant Lee’s job position as Warden of [BCI] required that Defendant Lee

ensure the training of correction officers”; and “Defendant Lee failed to train

officers . . . so as to prevent attacks on inmates such as [Mr. Gallashaw] or

created a custom at [BCI] where such failure to prevent attacks on an inmate

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would be tolerated.” See Am. Compl. ¶ 64. As she did in the former pleading,

Plaintiff incorporates by reference the following allegations:

Prior to this incident involving [Mr. Gallashaw],

Defendants cooperated in a policy to permit, facilitate,

ratify, and condone, correctional officer-on-inmate

assaults and batteries and were deliberately

indifferent to known risks of the life, health and safety

of the inmates.

Prior to this incident involving [Mr. Gallashaw],

Defendants cooperated in a policy to permit, facilitate,

ratify, and condone excessive use of force on inmates

and were deliberately indifferent to known risks of the

life, health and safety of the inmates.

Prior to the July 27, 2015, incident complained

of herein, Defendants cooperated in a policy to permit,

facilitate, ratify, and condone the concealing or

covering up of suspicious circumstances surrounding

inmate deaths.

Id. ¶¶ 33-35. Additionally, Plaintiff continues to rely upon unexplained

statistics of male-inmate homicides at FDOC institutions between 2011 and

2015 to establish a causal connection between Defendant Lee’s conduct and

Mr. Gallashaw’s death. Id. ¶¶ 22, 27-32.2 She also incorporates into count four

2 In its prior order, the Court explained the male inmate homicide numbers

were not factually connected to Defendant Lee’s conduct as warden of BCI: “Accepting

as true that male inmates have been killed at the numerous corrections institutions

in Florida between 2011 and 2015, such facts do not permit the reasonable inference

that Defendant Lee was on notice of a widespread history of abuse or a deficiency in

a training program at BCI. Indeed, Plaintiff does not assert any of the male-inmate

homicides were caused by corrections officers at BCI.” See MTD Order at 17-18.

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one new allegation: that another inmate died at BCI two days after Mr.

Gallashaw died and the inmate’s death was investigated as suspicious. Id. ¶

23.

Plaintiff’s new allegations do not change the Court’s original analysis.

Plaintiff pursues a claim against Defendant Lee primarily because he was the

warden of BCI at the relevant times. Such a theory of liability is not plausible

under § 1983: “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.” Cottone v. Jenne, 326

F.3d 1352, 1360 (11th Cir. 2003) (internal quotation marks and citation

omitted), abrogated in part on other grounds by Randall v. Scott, 610 F.3d 701

(11th Cir. 2010).

Liability under § 1983 requires an affirmative causal connection between

a defendant’s actions and a constitutional violation. See Zatler v. Wainwright,

802 F.2d 397, 401 (11th Cir. 1986). While a supervisor’s failure to train or

supervise may evidence deliberate indifference to a prisoner’s constitutional

rights, a plaintiff must allege the supervisor “knew of a need to train and/or

supervise in a particular area and the [supervisor] made a deliberate choice

not to take any action.” See Gold v. City of Miami, 151 F.3d 1346, 1350 (11th

Cir. 1998). For instance, a supervisor may be considered on notice of a need to

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train or supervise if the supervisor knows of a confirmed history of widespread

abuse. Id. at 1351 (citing cases).

As in her former pleading, Plaintiff’s allegations against Defendant Lee

are conclusory. Aside from using certain buzzwords, such as “policy,” “custom,”

“ratify,” “condone,” and similar terms, Plaintiff offers no facts permitting the

reasonable inference Defendant Lee, in his role as warden of BCI, knew of a

need to train or supervise officers “in a particular area.” See id. at 1350. In

other words, the causal link is missing. Plaintiff’s reference to the number of

inmate deaths at FDOC institutions (84) over a fourteen-year period does not

suffice. Cf. id. (holding that data showing prosecutors dismissed a high

percentage of disorderly conduct arrests did not establish the arresting officers

did something wrong). See also Church v. City of Huntsville, 30 F.3d 1332,

1346 (11th Cir. 1994) (holding a finding of a city-commissioned demographic

study that police officers regularly “rousted” homeless people did not permit

the inference that the city had a custom or policy of unconstitutionally

removing homeless people from the city).

The limited data Plaintiff references requires an inferential leap to

conclude Defendant Lee knew there was a training deficiency or a need for

better supervision in a particular area. For instance, Plaintiff does not allege

any of the prior homicides involved circumstances similar to those involved

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here, which Plaintiff describes as “unauthorized cell inspections or cell checks.”

See Am. Compl. ¶ 26. In fact, Plaintiff does not even allege the 84 homicides

were caused by or involved corrections officers at BCI who entered inmates’

cells without reason or who did not understand the “constitutional limitations

on the use of force against inmates.” Id.

Even if some of the 84 inmate homicides Plaintiff references occurred at

BCI when Defendant Lee was warden, there are no facts that would permit the

reasonable inference those homicides could have been avoided with better

supervision or training of corrections officers as it relates to entering inmates’

cells or using force against inmates. Cf. Dickinson v. Cochran, 833 F. App’x

268, 269-70, 272 (11th Cir. 2020) (holding the plaintiff stated a plausible claim

against the warden where he alleged a 2003 Department of Justice

investigation put the warden on notice of “a problem with inmate-on-inmate

violence,” yet the warden failed to implement the department’s

recommendations to resolve the problems).

In short, Plaintiff offers no facts showing a connection between past

inmate homicides at BCI and Defendant Lee’s conduct as warden of that

institution. Assuming Defendants Faltz and Moody violated Mr. Gallashaw’s

constitutional rights on July 27, 2015, Plaintiff does not allege Defendant Lee

was aware of a single instance of a prior, similar constitutional violation

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having occurred at BCI when he was warden. And Plaintiff does not allege

Defendant Lee authorized or instructed Defendants Moody and Faltz to use

force against Mr. Gallashaw on July 27, 2015. That an inmate died at BCI two

days after Mr. Gallashaw died fails to provide the requisite causal connection.

Plaintiff’s speculative allegations do not satisfy the plausibility standard

under federal pleading rules. See Iqbal, 556 U.S. at 678 (“Where a complaint

pleads facts that are merely consistent with a defendant’s liability, it stops

short of the line between possibility and plausibility of ‘entitlement to relief.’”

(internal quotation marks omitted)). Inmate homicides having occurred at

FDOC institutions under unexplained circumstances only possibly suggests

the deaths were attributable to a lack of supervision or training. “[W]here the

well-pleaded facts do not permit the court to infer more than the mere

possibility of misconduct, the complaint has alleged—but it has not ‘show[n]’—

‘that the pleader is entitled to relief.’” Id. at 679 (quoting with alteration Fed.

R. Civ. P. 8(a)(2)). For these reasons, Plaintiff fails to state a plausible

deliberate indifference claim against Defendant Lee in count four.

Plaintiff also fails to state a plausible claim against Defendant Lee in

count five—deliberate indifference to serious medical needs—to the extent she

relies on the same conclusory allegations as those supporting count four.

Plaintiff does not allege Defendant Lee participated in, authorized, or observed

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the use-of-force against Mr. Gallashaw on July 27, 2015. In an attempt to show

Defendant Lee personally participated in a constitutional violation, Plaintiff

alleges in her second amended complaint as follows: “Following the removal of

[Mr. Gallashaw] from the Cell, upon information and belief, Defendant Lee was

notified of the situation involving [Mr. Gallashaw] and his unresponsiveness

while it was occurring.” See Am. Compl. ¶ 70. Plaintiff further alleges

Defendant Lee did not immediately call emergency services so Mr. Gallashaw

could be treated by medical providers outside of BCI. Id. ¶ 72.

Though Plaintiff directly references Defendant Lee in these averments,

they amount to little more than a restatement of the elements of a deliberate

indifference cause of action. Read in context of all allegations, these assertions

do not suggest more than a possibility of misconduct by Defendant Lee.

Plaintiff does not allege Defendant Lee was present or even nearby when

Defendants Moody and Faltz entered Mr. Gallashaw’s cell, beat him, and

dragged him to the hallway. Additionally, Plaintiff does not offer any facts

permitting the reasonable inference Defendant Lee knew Mr. Gallashaw

required “transportation . . . to an appropriate medical facility” outside of BCI

or directed Defendants Moody and Faltz to harm Mr. Gallashaw and deny him

immediate medical treatment. Id. ¶ 71.

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Even accepting as true someone notified the warden—a non-medical

administrator—that an inmate was unresponsive “while [an incident] was

occurring,” the warden’s failure to appreciate from afar that the inmate

required emergency treatment at an outside facility suggests at most

negligence. Farmer v. Brennan, 511 U.S. 825, 838 (1994) (“[A]n official’s failure

to alleviate a significant risk that he should have perceived but did not, while

no cause for commendation, cannot . . . be condemned as the infliction of

punishment.”). Plaintiff does not allege facts showing Defendant Lee ordered

Defendants Moody and Faltz (or anyone else) not to summon help for an inmate

Defendant Lee knew was in obvious need of such. For these reasons, Plaintiff

fails to demonstrate she states a plausible constitutional claim against

Defendant Lee, and he is entitled to qualified immunity.

B. Sovereign Immunity

Defendant Lee invokes sovereign immunity under Florida Statutes

section 768.28(9)(a). See Lee Motion at 9. Plaintiff counters that the second

amended complaint sufficiently alleges Defendant Lee engaged in “‘bad faith’

in the implementation and operation of the training of correction officers at

[BCI].” See Pl. Lee Resp. at 9. Florida’s sovereign immunity statute grants

immunity to state employees for tort actions unless they “acted in bad faith or

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with malicious purpose or in a manner exhibiting wanton and willful disregard

of human rights, safety, or property.” See Fla. Stat. § 768.28(9)(a).

Courts generally equate the deliberate indifference standard with

“recklessness,” or a “wanton infliction of pain.” See, e.g., Farmer, 511 U.S. at

836 (“It is, indeed, fair to say that acting or failing to act with deliberate

indifference to a substantial risk of serious harm to a prisoner is the equivalent

of recklessly disregarding that risk.”); Estelle v. Gamble, 429 U.S. 97, 104

(1976) (“[D]eliberate indifference to serious medical needs of prisoners

constitutes the ‘unnecessary and wanton infliction of pain.’”); Williams v. City

of Minneola, 619 So. 2d 983, 987 (Fla. Dist. Ct. App. 1993) (holding a finding

of recklessness could also support a finding of “willful and wanton conduct

under section 768.28(9)”). See also Valdes v. Crosby, 390 F. Supp. 2d 1084,

1108 (M.D. Fla. 2005), aff’d, 450 F.3d 1231 (11th Cir. 2006) (noting the

standard to overcome Florida’s sovereign immunity “is at least as high as the

standard needed to prove” an officer or agent of the state was deliberately

indifferent to an inmate’s health or safety under § 1983).

Because the Court finds Plaintiff fails to state a plausible deliberate

indifference claim against Defendant Lee, it follows that she fails to allege

Defendant Lee “acted in bad faith or with malicious purpose or in a manner

exhibiting wanton and willful disregard of human rights, safety, or property.”

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See Fla. Stat. § 768.28(9)(a). As such, Defendant Lee is entitled to sovereign

immunity, and the state-law claim against him is due to be dismissed.

Accordingly, it is now

ORDERED:

1. Defendant Faltz’s motion to dismiss (Doc. 39) is DENIED.

Defendant Faltz shall answer the second amended complaint (Doc. 37) within

twenty days of the date of this Order.

2. Defendant Lee’s motion to dismiss (Doc. 42) is GRANTED, and

Plaintiffs claims against Defendant Lee are dismissed with prejudice.

3. The Clerk shall terminate Defendant Lee as a party to this action.

DONE AND ORDERED at Jacksonville, Florida, this 10th day of June

2021.

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BRIAN/J . DAVIS

United States District Judge

Jax-6

C:

Counsel of Record

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