Duvivier v. Florida State Prison

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

DASHAWN DUVIVIER,

Plaintiff,

v.

Case No. 3:22-cv-396-MMH-MCR

FLORIDA STATE PRISON,

et al.,

Defendants.

ORDER

Plaintiff Dashawn Duvivier, an inmate of the Florida penal system,

initiated this action on April 1, 2022, by filing a pro se Complaint (Doc. 1) that

he failed to sign.1 In the Complaint, Duvivier names Florida State Prison

(FSP), Dr. Collins, the food services Director, and the medical department as

the Defendants. He asserts that the food services department served him beans

and soybean products that damaged his skin despite his grievances and sick

call requests that noted his allergic reactions. He maintains that the medical

department denied him proper medical care for his damaged skin. As relief, he

asks for $50,000 and a transfer to another institution.

1 For all referenced documents, the Court cites to the document and page

numbers as assigned by the Court’s Electronic Case Filing 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.2 See 28 U.S.C. §§

1915(e)(2)(B); 1915A. “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. Cent. 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. As to whether a complaint “fails

2 Duvivier has neither paid the filing fee nor filed an application to proceed as

a pauper. As such, for purposes of the Court’s required screening, the Court will

assume Duvivier intends to proceed as a pauper.

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to state a claim on which relief may be granted,” the language of the Prison

Litigation Reform Act mirrors the language of Rule 12(b)(6), Federal Rules of

Civil Procedure, and therefore courts apply the same standard in both

contexts.3 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 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. 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). Moreover, under Eleventh Circuit precedent, to prevail in

a § 1983 action, a plaintiff must show “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) (citation

omitted); Porter v. White, 483 F.3d 1294, 1306 n.10 (11th Cir. 2007).

3 “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)).

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Under the Federal Rules of Civil Procedure, a complaint need only

contain “a short and plain statement of the claim showing that the pleader is

entitled to relief.” Fed. R. Civ. P. (8)(a)(2). In addition, all reasonable inferences

should be drawn in favor of the plaintiff. See Randall v. Scott, 610 F.3d 701,

705 (11th Cir. 2010). Nonetheless, the plaintiff still must meet some minimal

pleading requirements. Jackson v. BellSouth Telecomm., 372 F.3d 1250, 1262-

63 (11th Cir. 2004) (citations omitted). Indeed, while “[s]pecific facts are not

necessary[,]” the complaint should “‘give the defendant fair notice of what the

... claim is and the grounds upon which it rests.’” Erickson v. Pardus, 551 U.S.

89, 93 (2007) (per curiam) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,

555 (2007)). Further, the plaintiff must allege “enough facts to state a claim to

relief that is plausible on its face.” Twombly, 550 U.S. at 570. “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.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). While not

required to include detailed factual allegations, a complaint must allege “more

than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Id.

A “plaintiff’s obligation to provide the grounds of his entitlement to relief

requires more than labels and conclusions, and a formulaic recitation of the

elements of a cause of action will not do[.]” Twombly, 550 U.S. at 555 (internal

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quotations omitted); see also Jackson, 372 F.3d at 1262 (explaining that

“conclusory allegations, unwarranted deductions of facts or legal conclusions

masquerading as facts will not prevent dismissal”) (internal citation and

quotations omitted). Indeed, “the tenet that a court must accept as true all of

the allegations contained in a complaint is inapplicable to legal conclusions[,]”

which simply “are not entitled to [an] assumption of truth.” Iqbal, 556 U.S. at

678, 680. In the absence of well-pled facts suggesting a federal constitutional

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

action against the defendant.

In assessing the Complaint, the Court must read Plaintiff’s pro se

allegations in a liberal fashion. Haines v. Kerner, 404 U.S. 519, 520-21 (1972);

Bingham, 654 F.3d at 1175. And, while “[p]ro se pleadings are held to a less

stringent standard than pleadings drafted by attorneys and will, therefore, be

liberally construed,” Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th

Cir. 1998), “‘this leniency does not give a court license to serve as de facto

counsel for a party or to rewrite an otherwise deficient pleading in order to

sustain an action.’” Alford v. Consol. Gov’t of Columbus, Ga., 438 F. App’x 837,

839 (11th Cir. 2011) (quoting GJR Invs., Inc. v. Cnty. of Escambia, Fla., 132

F.3d 1359, 1369 (11th Cir. 1998) (internal citation omitted), overruled in part

on other grounds as recognized in Randall, 610 F.3d at 709).

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Plaintiff’s Complaint is due to be dismissed pursuant to this Court’s

screening obligation. Preliminarily, the Court observes that FSP is not a legal

entity amenable to suit. 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). “A

correctional facility or the jail is not a proper defendant in a case brought under

42 U.S.C. § 1983.” Monroe v. Jail, No. 2:15-cv-729-FtM-99MRM, 2015 WL

7777521, at *2 (M.D. Fla. Dec. 3, 2015); accord Mellen v. Florida, No. 3:13-cv-

1233-J-34PDB, 2014 WL 5093885, at *8 (M.D. Fla. Oct. 9, 2014). Because FSP

is not a legal entity amenable to suit, Duvivier fails to state a § 1983 claim

upon which relief may be granted against the correctional institution.

Additionally, the institution’s medical department is not a “person” amenable

to suit under § 1983. See Hix v. Tennessee Dep’t of Corr., 196 F. App’x 350,

355-56 (6th Cir. 2006).

Next, Duvivier alleges that Defendants Collins and the medical

department violated the Eighth Amendment when they denied him proper

medical care for his damaged skin. Pursuant to the Eighth Amendment of the

United States Constitution, “Excessive bail shall not be required, nor excessive

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fines imposed, nor cruel and unusual punishments inflicted.” U.S. Const.

amend. VIII. The Eighth Amendment “imposes duties on [prison] officials, who

must provide humane conditions of confinement; prison officials must ensure

that inmates receive adequate food, clothing, shelter, and medical care, and

must ‘take reasonable measures to guarantee the safety of the inmates.’”

Farmer v. Brennan, 511 U.S. 825, 832 (1994) (quoting Hudson v. Palmer, 468

U.S. 517, 526-27 (1984)). To establish an Eighth Amendment violation, a

prisoner must satisfy both an objective and subjective inquiry regarding a

prison official’s conduct. Swain v. Junior, 961 F.3d 1276, 1285 (11th Cir. 2020)

(citing Farmer, 511 U.S. at 834); Chandler v. Crosby, 379 F.3d 1278, 1289 (11th

Cir. 2004). The Eleventh Circuit has explained:

Under the objective component, a prisoner must allege

a condition that is sufficiently serious to violate the

Eighth Amendment. Id.[4] The challenged condition

must be extreme and must pose an unreasonable risk

of serious damage to the prisoner’s future health or

safety. Id. The Eighth Amendment guarantees that

prisoners are provided with a minimal civilized level

of life’s basic necessities. Id.

Under the subjective component, a prisoner must

allege that the prison official, at a minimum, acted

with a state of mind that constituted deliberate

indifference. Id. This means the prisoner must show

that the prison officials: (1) had subjective knowledge

of a risk of serious harm; (2) disregarded that risk; and

4 Chandler, 379 F.3d at 1289.

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(3) displayed conduct that is more than mere

negligence. Farrow v. West, 320 F.3d 1235, 1245 (11th

Cir. 2003).

Oliver v. Fuhrman, 739 F. App’x 968, 969-70 (11th Cir. 2018). “To be cruel and

unusual punishment, conduct that does not purport to be punishment at all

must involve more than ordinary lack of due care for the prisoner’s interests

or safety.” Whitley v. Albers, 475 U.S. 312, 319 (1986).

As it relates to medical care, “the Supreme Court has held that prison

officials violate the bar on cruel and unusual punishments when they display

‘deliberate indifference to serious medical needs of prisoners.’” Keohane v. Fla.

Dep’t of Corr. Sec’y, 952 F.3d 1257, 1265 (11th Cir. 2020) (quoting Estelle v.

Gamble, 429 U.S. 97, 104 (1976)). The Eleventh Circuit has explained:

To prevail on a deliberate indifference claim, [a

plaintiff] must show: “(1) a serious medical need; (2)

the defendants’ deliberate indifference to that need;

and (3) causation between that indifference and the

plaintiff’s injury.” Mann v. Taser Int’l, Inc., 588 F.3d

1291, 1306-07 (11th Cir. 2009). To establish deliberate

indifference, [a plaintiff] must prove “(1) subjective

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

that risk; (3) by conduct that is more than [gross]

negligence.” Townsend v. Jefferson Cnty., 601 F.3d

1152, 1158 (11th Cir. 2010) (alteration in original).

The defendants must have been “aware of facts from

which the inference could be drawn that a substantial

risk of serious harm exist[ed]” and then actually draw

that inference. Farrow v. West, 320 F.3d 1235, 1245

(11th Cir. 2003) (quotation omitted).

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Easley v. Dep’t of Corr., 590 F. App’x 860, 868 (11th Cir. 2014). “For medical

treatment to rise to the level of a constitutional violation, the care must be ‘so

grossly incompetent, inadequate, or excessive as to shock the conscience or to

be intolerable to fundamental fairness.’” Nimmons v. Aviles, 409 F. App’x 295,

297 (11th Cir. 2011) (quoting Harris v. Thigpen, 941 F.2d 1495, 1505 (11th Cir.

1991)); see also Waldrop v. Evans, 871 F.2d 1030, 1033 (11th Cir. 1989)

(“Grossly incompetent or inadequate care can constitute deliberate

indifference, . . . as can a doctor’s decision to take an easier and less efficacious

course of treatment” or fail to respond to a known medical problem).

However, the law is well settled that the Constitution is not implicated

by the negligent acts of corrections officials and medical personnel. Daniels v.

Williams, 474 U.S. 327, 330-31 (1986); Davidson v. Cannon, 474 U.S. 344, 348

(1986) (“As we held in Daniels, the protections of the Due Process Clause,

whether procedural or substantive, are just not triggered by lack of due care

by prison officials.”). A complaint that a physician has been negligent “in

diagnosing or treating a medical condition does not state a valid claim of

medical mistreatment under the Eighth Amendment.” Bingham, 654 F.3d at

1176 (quotation marks and citation omitted). Moreover, the Eleventh Circuit

has noted that “[n]othing in our case law would derive a constitutional

deprivation from a prison physician’s failure to subordinate his own

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professional judgment to that of another doctor; to the contrary, it is well

established that ‘a simple difference in medical opinion’ does not constitute

deliberate indifference.” Bismark v. Fisher, 213 F. App’x 892, 897 (11th Cir.

2007) (quoting Waldrop, 871 F.2d at 1033). Similarly, “the 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.” Adams v. Poag, 61 F.3d 1537, 1545 (11th Cir. 1995) (citation

omitted). In sum, the Eleventh Circuit has stated:

A prisoner bringing a deliberate-indifference

claim has a steep hill to climb. We have held, for

instance, that the Constitution doesn't require that

the medical care provided to prisoners be “perfect, the

best obtainable, or even very good.” Harris, 941 F.2d

at 1510 (quotation omitted).[ 5] Rather, “[m]edical

treatment violates the [E]ighth [A]mendment only

when it is so grossly incompetent, inadequate, or

excessive as to shock the conscience or to be intolerable

to fundamental fairness.” Id. at 1505 (quotation

omitted). We have also emphasized—as have our

sister circuits—that “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 [fails to] support a claim of cruel and

unusual punishment.” Id.; accord, e.g., Lamb v.

Norwood, 899 F.3d 1159, 1162 (10th Cir. 2018) (“We

have consistently held that prison officials do not act

with deliberate indifference when they provide

5 Harris, 941 F.2d at 1504.

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medical treatment even if it is subpar or different from

what the inmate wants.”); Kosilek v. Spencer, 774 F.3d

63, 82 (1st Cir. 2014) (en banc) (“[The Eighth

Amendment] does not impose upon prison

administrators a duty to provide care that is ideal, or

of the prisoner's choosing.”).

Keohane, 952 F.3d at 1266.

Here, Duvivier has not presented sufficient allegations to support a

claim for an Eighth Amendment violation. His medical claim lacks specific

facts that would allow the Court to draw a reasonable inference that Collins

and the medical department were deliberately indifferent to a serious medical

need. He generally accuses Defendants of failing to provide “the right medical

attention as ‘needed’” and giving him creams that did not heal his damaged

skin. Complaint at 5. However, he does not specify what each Defendant in the

medical department individually did or failed to do that caused his skin to

worsen. Nor does Duvivier state what treatment was withheld from him or

why any such treatment was “needed” or “proper.” Absent such facts, the Court

cannot infer that Defendants’ conduct amounted to anything more than a

disagreement in medical opinion or simple negligence. See Adams, 61 F.3d at

1545.

Moreover, as to Duvivier’s interest in addressing any ongoing violations

at the hands of medical and/or food services personnel, he may seek such relief

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by initiating a grievance pursuant to the prison’s administrative grievance

procedures. Although the grievance process does not permit an award of money

damages, the grievance tribunal has the authority to take responsive action.

As an additional measure to provide Duvivier with potential guidance, he may

contact his classification officer to inquire about any concerns he may have

about access to sick call and/or physicians, including specialists, to evaluate

his medical condition and determine if he needs any remedial skin treatments.

In light of the foregoing, this case will be dismissed, pursuant to 28

U.S.C. § 1915(e)(2)(B), without prejudice to Duvivier’s right to refile his claims

under 42 U.S.C. § 1983 with factual allegations sufficient to support a claim

for relief if he elects to do so. Notably, pro se litigants are subject to the same

law and rules of court that govern other litigants who are represented by

counsel. See Moon v. Newsome, 863 F.2d 835, 837 (11th Cir. 1989). All filings

with the Court must be made in accordance with the Federal Rules of Civil

Procedure and the Local Rules of the United States District Court for the

Middle District of Florida.

Accordingly, it is now

ORDERED AND ADJUDGED:

1. This case is DISMISSED WITHOUT PREJUDICE pursuant to

28 U.S.C. § 1915(e)(2)(B).

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

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

3. The Clerk shall send a civil rights complaint form and an Affidavit

of Indigency form to Plaintiff. If he elects to refile his claims, he may complete

and submit the proper forms. Plaintiff should not place this case number on

the forms. The Clerk will assign a separate case number if Plaintiff elects to

refile his claims. In initiating such a case, Plaintiff should either file a fully

completed Affidavit of Indigency (Gif he desires to proceed as a pauper) or pay

the $402.00 filing fee Gf he does not desire to proceed as a pauper). Finally, he

must sign his name on the forms.

DONE AND ORDERED at Jacksonville, Florida, this 15th day of April,

2022.

United States District Judge

Jax-1 4/14

C:

Dashawn Duvivier, FDOC # J53341

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