Branch v. Tampa Police

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

HARRY J. BRANCH,

Plaintiff,

v. Case No: 8:21-cv-1647-WFJ-JSS

ARI D. EHRLICH,

BRIGITTE CURBELO,

O’NEAL JACKSON, and

NAPH-CARE,

Defendants.

___________________________________/

This cause comes before the Court on Plaintiff Harry J. Branch’s Civil Rights

Complaint (Doc. 3) filed under 42 U.S.C. § 1983. Mr. Branch alleges that his First,

Fourth, and Sixth Amendment rights were violated when he was a pretrial detainee at

the Hillsborough County Jail on Falkenburg Road. Because Mr. Branch fails to

adequately plead his claims, he will be required to file an amended complaint if he

desires to proceed in this case.

I. Legal Background

A. Section 1915

Under 28 U.S.C. § 1915A, federal courts must conduct an initial screening of

civil suits brought by prisoners seeking redress from a governmental entity or its

employee to determine whether they should proceed. Upon review, a court is required

to dismiss a complaint, or any portion thereof, in the following circumstances:

(b) Grounds for Dismissal.---On review, the court shall identify

cognizable claims or dismiss the complaint, or any portion of the

complaint, if the complaint---

(1) is frivolous, malicious, or fails to state a claim upon which

relief may be granted; or

(2) seeks monetary relief from a defendant who is immune from

such relief.

See also 28 U.S.C. § 1915(e)(2) (requiring dismissal of a complaint in an in forma pauperis

proceeding under the same circumstances). A complaint is frivolous if it is without

arguable merit either in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989).

Dismissals for failure to state a claim are governed by Rule 12(b)(6), Fed. R. Civ. P.

See Mitchell v. Farcass, 112 F.3d 1483, 1490 (11th Cir. 1997) (“The language of section

1915(e)(2)(B)(ii) tracks the language of Fed. R. Civ. P. 12(b)(6).”). Additionally,

courts must read a plaintiff’s pro se allegations in a liberal fashion. Haines v. Kerner, 404

U.S. 519–520 (1972).

B. Section 1983

“[S]ection 1983 provides a method for vindicating federal rights conferred by

the Constitution and federal statutes.” Bannum, Inc. v. City of Fort Lauderdale, 901 F.2d

989, 997 (11th Cir. 1990). To successfully plead a § 1983 claim, a plaintiff must allege

two elements: “(1) that the act or omission deprived plaintiff of a right, privilege or

immunity secured by the Constitution or laws of the United States, and (2) that the act

or omission was done by a person acting under color of law.” Id. at 996–97. Thus, a

plaintiff must show that the defendant acted under the color of law or otherwise

showed some type of state action that led to the violation of the plaintiff’s rights. Id.

II. Analysis

A. The Complaint

Mr. Branch alleges that on March 15, 2021, he was near the corner of 12th Street

and Adamo Boulevard in Tampa, when he encountered a friend who was unable to

walk home. Doc. 3 at 7. He assisted the friend to a nearby bench. Id. Next, he took

his friend’s property “and added it to [his own,]” and then proceeded to walk home.

Id. He began to have a seizure. Id. Two police officers approached and inquired about

his well-being. Id. at 17. They arrested him and transported him to the Hillsborough

County Jail on Falkenburg Road. Id. at 9.

For three days, Mr. Branch continued to have a seizure and intermittently lost

consciousness. Id. at 10. Finally, on March 18, 2021, he was provided medication.

Id. He was transferred to a confinement block, where he was denied medicine,

breakfast, and the opportunity to participate in salat and Ramadhan. Id. at 10–11.

Mr. Branch filed a grievance with the jail chaplain, requesting permission to

“mak[e] prayer on time.” Id. at 19. As a result, during the last week of May and first

week of June, “one officer allowed [him] to make prayer.” Id.

From April 17 to April 21, 2021, Mr. Branch had two seizures and missed court

appearances. Id. at 16. On June 13, 2021, Mr. Branch was transferred to another

housing unit where he was again denied medication. Id. at 11–13.

Mr. Branch contends that “[his] injury is not physical but is an injustice just the

same.” Id. at 14. He wishes to be compensated for the colds he suffered, “time [lost]

from a private business,” “the animals [he] was taking care of who are scattered

about,” and “the people [he] was able to help who have had no one they could be sure

they could depend on.” Id. at 16.

B. The Defendants

Mr. Branch sues Ari D. Ehrlich and Brigitte Curbelo in their official capacities

as Tampa Police Officers. He sues O’Neal Jackson in his official capacity as a Major

Commander of the jail and in his individual capacity. A claim against a defendant in

his official capacity is a suit against the entity of which the named defendant is an

agent. See Kentucky v. Graham, 473 U.S. 159, 165–66 (1985); Owens v. Fulton Cnty., 877

F.2d 947, 951 n.5 (11th Cir. 1989). To attribute liability to the defendants in their

official capacities, Mr. Branch must allege that “the moving force of the constitutional

violation” was an official policy, custom, or practice adopted by the entity. See Barnett

v. MacArthur, 956 F.3d 1291, 1296 (11th Cir. 2020).

Mr. Branch attributes no factual allegations to any specific defendant. In fact,

after listing the defendants’ names on the complaint form, he does not again refer to

any defendant by name in the complaint. He does not explain how the defendants

violated his constitutional rights. Nor does he allege that an official policy or custom

resulted in a constitutional violation. Consequently, Mr. Branch’s official capacity

claims against Officers Ehrlich and Curbelo and Major Commander Jackson are

dismissed.

Also, Mr. Branch sues Naph-Care, a private entity that (presumably) provides

medical services to prisoners at the jail. After listing Naph-Care as a defendant, Mr.

Branch does not again refer to Naph-Care in the complaint. Mr. Branch alleges no

facts to establish that Naph-Care acted under the color of state law to deprive him of

a right protected by the Constitution or federal law. See e.g., Focus on the Fam. v. Pinellas

Suncoast Transit Auth., 344 F.3d 1263, 1278 (11th Cir. 2003) (“[T]he mere fact that a

private actor contracts with a governmental entity does not mean that every action

taken by the private actor can be attributed to the government.”). To show a defendant

acted under color state law, a plaintiff must allege a sufficient relationship between the

defendant and the state. Farrow v. West, 320 F.3d 1235, 1239 n.3 (11th Cir. 2003). Mr.

Branch fails to allege that Naph-Care contracted with the state (or county) to provide

medical services to prisoners at the jail. Consequently, any claim against Naph-Care

must be dismissed.

C. The Claims

Mr. Branch invokes his rights under the First, Fourth, and Sixth Amendments.1

However, he has not clearly delineated any claim for relief or provided specific facts

in support of any claim. Nevertheless, federal courts have “an obligation to look

behind the label of a [pleading] filed by a pro se inmate and determine whether [it] is,

in effect, cognizable under a different remedial statutory framework.” Gooden v. United

States, 627 F.3d 846, 847 (11th Cir. 2010) (quotations omitted).

1 Mr. Branch also cites Florida Constitution Article 1, Sections 2, 4, 9, 12, and 16a, as a

statutory basis for his § 1983 claim. Doc. 3 at 4. However, a claim arising under state law is

not cognizable under § 1983. Knight v. Jacobson, 300 F.3d 1272, 1276 (11th Cir. 2002)

(“Section 1983 does not create a remedy for every wrong committed under the color of state

law, but only for those that deprive a plaintiff of a federal right.”).

1. Deliberate Indifference to a Serious Medical Need

Mr. Branch’s allegations, although vague, primarily concern the defendants’

failure to provide him adequate medication to treat his seizures. The Court liberally

construes his allegations as an attempt to state a claim for deliberate indifference to a

serious medical need. Because Mr. Branch is a pretrial detainee, such claim would

arise under the due process clause of the Fourteenth Amendment. Mann v. Taser Int’l,

Inc., 588 F.3d 1291, 1306 (11th Cir. 2009).

“A deliberate-indifference claim entails both an objective and a subjective

component.” Keohane v. Fla. Dep’t of Corr. Sec’y, 952 F.3d 1257, 1266 (11th Cir. 2020).

“First, the inmate must establish an objectively serious medical need . . . that, if left

unattended, poses a substantial risk of serious harm.” Id. (quotations and citations

omitted). “Second, the inmate must prove that prison officials acted with deliberate

indifference to that need by showing (1) that they had subjective knowledge of a risk

of serious harm and (2) that they disregarded that risk (3) by conduct that was more

than mere negligence.” Id. (alterations, quotations, and citations omitted). “An

objectively serious medical need is ‘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.’” Jackson v. Papillon, No. 21-11686,

2021 WL 5918424, at *2 (11th Cir. Dec. 15, 2021) (quoting Farrow v. West, 320 F.3d

1235, 1243 (11th Cir. 2003)).

Mr. Branch vaguely alleges that he was denied adequate medication for

seizures, although he supports this allegation with no details. He alleges no facts to

establish a medical diagnosis mandating treatment or the defendants’ subjective

knowledge of a risk of serious harm that they disregarded. In fact, he admits that he

was provided medication on March 18, 2021. Doc. 3 at 10. He fails to allege sufficient

facts to establish the elements of a claim for deliberate indifference to a serious medical

need. Therefore, any such claim must be dismissed.

2. Violation of the Right to Free Exercise of Religion

Mr. Branch vaguely alleges that he was denied the opportunity to participate in

salat and Ramadhan. The Court liberally construes this allegation as an attempt to

state a claim for the violation of his First Amendment right to freely exercise his

religion. A prisoner retains his First Amendment right to freely exercise his religion.

Cruz v. Beto, 405 U.S. 319, 322 (1972); Hakim v. Hicks, 223 F.3d 1244, 1247 (11th Cir.

2000). However, the right is not unrestricted because “federal courts must afford

substantial deference to the judgment of prison authorities.” Lawson v. Singletary, 85

F.3d 502, 509 (11th Cir. 1996). “A prison regulation, even though it infringes the

inmate’s constitutional rights, is an actionable constitutional violation only if the

regulation is unreasonable.” Hakim, 223 F.3d at 1247. Several factors are relevant to

the reasonableness inquiry, including:

(1) whether there is a valid, rational connection between the

regulation and a legitimate government interest put forward to

justify it; (2) whether there are alternative means of exercising

the asserted constitutional right that remain open to the inmates;

(3) whether and the extent to which accommodation of the

asserted right will have an impact on prison staff, inmates, and

the allocation of prison resources generally; and (4) whether the

regulation represents an exaggerated response to prison

concerns.

Id. at 1247–48 (citations omitted). “To plead a valid free exercise claim, a plaintiff

‘must allege that the government has impermissibly burdened one of his sincerely held

religious beliefs.’” Freeman v. Sample, 814 F. App’x 455, 461 (11th Cir. 2020) (quoting

Watts v. Fla. Int’l Univ., 495 F.3d 1289, 1294 (11th Cir. 2007)).

Mr. Branch fails to allege sufficient facts to establish a violation of his First

Amendment right to freely exercise his religion. He alleges no facts to show that he

sincerely holds religious beliefs that would involve participating in salat and

Ramadhan. Also, he fails to identify any prison regulation or policy that unreasonably

prevented him from doing so. In fact, he admits that one officer permitted him to pray

during the last week of May and the first week of June. Doc. 3 at 19. Consequently,

any claim for the violation of his right to freely exercise his religion must be dismissed.

3. Denial of Access to the Courts

Mr. Branch vaguely alleges that he missed court appearances when he was held

in the confinement block. Doc. 3 at 16. The Court liberally construes this allegation

as an attempt to state a claim for denial of access to the courts. “[P]risoners have a

constitutional right of access to the courts.” Barbour v. Haley, 471 F.3d 1222, 1225

(11th Cir. 2006) (citing Bounds v. Smith, 430 U.S. 817, 821 (1977)); see also Chappell v.

Rich, 340 F.3d 1279, 1282 (11th Cir. 2003) (“Access to the courts is clearly a

constitutional right, grounded in the First Amendment, the Article IV Privileges and

Immunities Clause, the Fifth Amendment, and/or the Fourteenth Amendment.”).

“In some instances that right requires States to shoulder affirmative obligations to

assure that indigent prisoners have an adequate opportunity to present their claims

fairly.” Id. This right “requires prison authorities to assist inmates in the preparation

and filing of meaningful legal papers by providing them with adequate law libraries or

adequate assistance from persons trained in the law.” Id. (citations and alterations

omitted). “However, in order to assert a claim arising from the denial of meaningful

access to the courts, an inmate must first establish an actual injury.” Id. “[T]he actual

injury] requirement derives from the constitutional doctrine of standing.” Cunningham

v. Dist. Attorney’s Office for Escambia Cty., 592 F.3d 1237, 1271 (11th Cir. 2010).

“Actual injury may be established by demonstrating the inmate’s efforts to

pursue a nonfrivolous claim were frustrated or impeded by a deficiency in the prison

library or in a legal assistance program or by an official’s action.” Barbour, 471 F.3d

at 1225. “[A] litigant asserting an access claim must also prove that he has a colorable

underlying claim for which he seeks relief.” Id. at 1226. “The allegations about the

underlying cause of action must be specific enough to give fair notice to defendants

and must ‘be described well enough to apply the nonfrivolous test and to show that

the arguable nature of the underlying claim is more than hope.’” Cunningham, 592

F.3d at 1271 (quoting Christopher v. Harbury, 536 U.S. 403, 416 (2002)). An access-to-

courts violation arises in limited types of cases: non-frivolous appeals in a criminal

case, petitions for habeas corpus, and civil rights actions. Al-Amin v. Smith, 511 F.3d

1317, 1332 (11th Cir. 2008).

Mr. Branch fails to state a claim for denial of access to the courts. He fails to

identify any actual injury he suffered as a result of missing court appearances.

Furthermore, he fails to identify any colorable underlying claim for which he seeks

relief that was purportedly frustrated or impeded by the defendants’ conduct. Mr.

Branch asserts no facts to challenge the validity of the underlying criminal proceedings.

Consequently, Mr. Branch’s access-to-the-courts claim must be dismissed.

4. Fourth Amendment

Mr. Branch invokes his Fourth Amendment rights. The Fourth Amendment

prohibits unreasonable searches or seizures. U.S. Const. amend IV. Mr. Branch may

intend to assert a claim for false arrest or false imprisonment. “An arrest made without

probable cause is an unreasonable seizure.” Paez v. Mulvey, 915 F.3d 1276, 1285 (11th

Cir. 2019); see also Marx v. Gumbinner, 905 F.2d 1503, 1505 (11th Cir. 1990) (“A

warrantless arrest without probable cause violates the Constitution and forms the basis

for a section 1983 claim.”).

“Where a police officer lacks probable cause to make an arrest, the arrestee has

a claim under section 1983 for false imprisonment based on a detention pursuant to

that arrest.” Ortega v. Christian, 85 F.3d 1521, 1526 (11th Cir. 1996). “An arrest made

with probable cause, however, constitutes an absolute bar to a section 1983 action for

false arrest.” Id. “Probable cause to arrest exists if the facts and circumstances within

the officers’ knowledge, of which he has reasonably trustworthy information, would

cause a prudent person to believe, under the circumstances shown, that the suspect has

committed or is committing an offense.” Id.

Judicially noticed records from state court show that an information charges

Mr. Branch with possession of a controlled substance, resisting an officer without

violence, and corruption by threat against a public servant. State v. Branch, No. 21-CF-

3087-A (Fla. 13th Jud. Cir.). Mr. Branch asserts no facts to challenge the

constitutionality of his arrest or detention on these charges. He fails to allege that he

was arrested without probable cause. Consequently, any claim arising under the

Fourth Amendment for false arrest or imprisonment must be dismissed.

5. Sixth Amendment

Finally, Mr. Branch invokes his Sixth Amendment rights. The Sixth

Amendment provides:

In all criminal prosecutions, the accused shall enjoy the right to

a speedy and public trial, by an impartial jury of the State and

district wherein the crime shall have been committed, which

district shall have been previously ascertained by law, and to be

informed of the nature and cause of the accusation; to be

confronted with the witnesses against him; to have compulsory

process for obtaining witnesses in his favor, and to have the

Assistance of Counsel for his defense.

U.S. Const. amend VI. To the extent Mr. Branch alleges a violation of his right to a

speedy trial, “[t]he sole remedy for a violation of the speedy trial right [is] dismissal of

the charges.” Betterman v. Montana, 578 U.S. 437, 444, 136 S. Ct. 1609, 1615 (2016).

To the extent Mr. Branch attempts to allege he was denied his right to counsel, there

is no provision in the law for money damages for such a claim. Stark v. Eighth Judicial

Circuit, No. 1:19-cv-258-MW-GRJ, 2020 WL 4607368, at *3, n.5 (N.D. Fla. July 1,

2020).

Mr. Branch alleges no facts to establish a plausible basis for relief under the

Sixth Amendment. Consequently, any claim arising under the Sixth Amendment

must be dismissed.

D. Damages

Title 42 U.S.C. § 1997e(e) provides that “[n]o Federal civil action may be

brought by a prisoner confined in a jail, prison, or other correctional facility, for mental

or emotional injury suffered while in custody without a prior showing of physical

injury or the commission of a sexual act (as defined in section 2246 of Title 18).” “The

physical injury requirement is not a bar to filing suit, only a limitation on recovery.

And § 1997e(e) limits a prisoner only from recovering damages that redress, or

compensate him for, a mental or emotional injury, when no physical injury is shown.”

Hoever v. Marks, 993 F. 3d 1353, 1360 (11th Cir. 2021) (en banc).

Mr. Branch fails to sufficiently plead a claim for compensatory damages

because he does not allege that he suffered any physical injury. In fact, he alleges that

“[his] injury is not physical but is an injustice just the same.” Id. at 14. However, his

failure to allege a physical injury does not preclude him from recovering nominal

damages or injunctive relief. See Hoever, 993 F. 3d at 1360. Nominal damages “are

appropriate if a plaintiff establishes a violation of a fundamental constitutional right,

even if he cannot prove an actual injury sufficient to entitle him to compensatory

damages.” Hughes v. Lott, 350 F.3d 1157, 1162 (11th Cir. 2003).

E. Leave to Amend

Because this is Mr. Branch’s first complaint and the Court is conducting its

required initial screening before any defendant has been served, it will permit Mr.

Branch the opportunity to amend. If Mr. Branch can assert facts to state a claim for a

violation of his constitutional or federal rights, as described above, he may amend his

complaint.

Mr. Branch is cautioned that the factual allegations in his amended complaint

must “state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly,

550 U.S. 544, 570 (2007); see also Fed. R. Civ. P. 8(a)(2). A complaint must give “the

defendant fair notice of what the . . . claim is and the grounds upon which it rests” and

provide “more than labels and conclusions [or] a formulaic recitation of the elements

of a cause of action[.]” Twombly, 550 U.S. at 555. More than conclusory and vague

allegations are required to state a cause of action under § 1983. Fullman v. Graddick,

739 F.2d 553, 556–57 (11th Cir. 1984). In the amended complaint, Mr. Branch must

identify each claim for relief, clearly state relevant facts that support each claim, and

explain how each defendant was involved in the alleged constitutional violations.

III. Conclusion

Accordingly, it is ORDERED that:

1. The Complaint is DISMISSED WITHOUT PREJUDICE.

a. If Mr. Branch wishes to amend his complaint to remedy the noted

deficiencies, he shall file an Amended Complaint within THIRTY

DAYS of the date of this order.

b. To amend his Complaint, Mr. Branch should complete a new civil

rights complaint form, titling it “Amended Complaint.” The

Amended Complaint must include all of Mr. Branch’s claims in this

action and may not refer back to, or incorporate, the original

Complaint. The Amended Complaint shall supersede the original

Complaint. Malowney v. Fed. Collection Deposit Group, 193 F.3d 1342,

1345 n.1 (11th Cir. 1999).

c. The Amended Complaint shall be subject to initial screening under 28

U.S.C. § 1915A.

2. If Mr. Branch fails to file an Amended Complaint within thirty days, or fails

to seek an extension of time to do so, this order dismissing the Complaint

without prejudice will become a final judgment. “[A]n order dismissing a

complaint with leave to amend within a specified time becomes a final

judgment if the time allowed for amendment expires without the plaintiff

[amending his complaint or] seeking an extension. And when the order

becomes a final judgment, the district court loses ‘all its prejudgment powers

to grant any more extensions’ of time to amend the complaint.” Auto.

Alignment & Body Serv., Inc. v. State Farm Mut. Auto. Ins. Co., 953 F.3d 707,

720–21 (11th Cir. 2020) (quoting Hertz Corp. v. Alamo Rent-A-Car, Inc., 16

F.3d 1126 (11th Cir. 1994)).

3. Mr. Branch must advise the Court of any change of address. He must entitle

the paper “Notice to the Court of Change of Address” and must exclude any

motions from the notice. Failure to inform the Court of an address change

may result in the dismissal of this case without further notice.

4. The Clerk is DIRECTED to mail to Mr. Branch a copy of both the standard

prisoner civil rights complaint form and this order.

DONE and ORDERED in Tampa, Florida on January 19th, 2022.

s/William F. Jung

_________________________________

WILLIAM F. JUNG

UNITED STATES DISTRICT JUDGE

Copies furnished to:

Counsel of Record

Unrepresented Party