Dorey v. Hartmann

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

OCALA DIVISION

EARL LEE DOREY,

Plaintiff,

Case No. 5:22-cv-264-KKM-PRL

HANS HARTMANN, et al.,

Defendants.

ORDER

Plaintiff Earl Lee Dorey sues two Sumter County Sheriff's Office deputies (each in

their individual and official capacities) under 42 U.S.C. § 1983. (Doc. 1.) Dorey alleges

that the officers used excessive force during an arrest in Oxford, Florida. 7d. at 4-5.) For

the reasons explained below, the Complaint (Doc. 1) is dismissed without prejudice, and

Dorey must file an amended complaint if he desires to proceed in this action.'

' Dorey does not list Ms. Katie Leann Bell, his girlfriend, as a plaintiff on the first page of the Complaint

and she did not sign the Complaint. (Doc. 1 at 1, 11.) Her name, however, is provided on the second page

of the Complaint under the parties to the action. (Id. at 2.) Dorey alleges that Ms. Bell was assaulted when

she intervened and attempted to stop the officers from assaulting Dorey. (Id. at 5.) Under injuries, Dorey

states Ms. Bell was tased in the stomach. (Id.) To the extent Dorey attempts to include Ms. Bell as a co-

plaintiff, Dorey may not represent Ms. Bell. “The right to litigate for oneself... does not create a coordinate

right to litigate for others.” Walker v. Brown, No. CV 112-105, 2012 WL 4049438, at *1 (S.D. Ga. Aug.

14, 2012) (citing Oxendine v. Williams, 509 F.2d 1405, 1407 (4th Cir. 1975)), report and recommendation

adopted by 2012 WL 4052038 (S.D. Ga. Sept. 13, 2012). Dorey, a pro se layman, is not permitted to litigate

on behalf of others. Johnson v. Brown, 581 F. App’x 777, 781 (11th Cir. 2014) (quoting Timson v. Sampson,

518 F.3d 870, 873 (11th Cir. 2008) (noting the right to proceed pro se is an individual right that “does not

I. Legal Background

a. Section 1915

Under 28 U.S.C. § 1915A(a), 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) that is frivolous, malicious, fails to state a claim for relief,

or seeks monetary relief against a defendant who is immune from such relief. See 28 U.S.C.

§ 1915A(b); see also 28 U.S.C. § 1915(e)(2).

A complaint is frivolous if it is without arguable merit either in law or in fact. See

Neitzke v. Williams, 490 U.S. 319, 325 (1989). Dismissals for failure to state a claim are

governed by Federal Rule of Civil Procedure 12(b)(6). 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 plaintiffs pro se

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

b. Section 1983

Dorey’s claim arises under 42 U.S.C. § 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) (citations omitted). To

extend to the representation of the interests of others”)). As alleged now, Ms. Bell is not a plaintiff in this

case.

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 (citations omitted). 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 plaintiffs rights. Id.

II. Analysis

Dorey states he is facing battery charges as a result of the incident and the state

criminal case is still pending. (Doc. 1 at 4.) He is currently an inmate of the Florida

Department of Corrections (FDOC) serving time on other charges but is out of

department custody pursuant to court order.’ Id. He proceeds pro se in this action and sues

Hans Hartmann and Hector Otero, deputies for the Sumter County Sheriffs Office.

Dorey claims the Defendants subjected him to cruel and unusual punishment in violation

of the Eighth Amendment of the United States Constitution and deprived him of his right

to due process of law in violation of the Fourteenth Amendment of the United States

Constitution. (Doc. 1 at 3.) Dorey claims the Defendants “acted with brutality in an [sic]

cruel and unusual manner when arresting the Plaintiff under color of state law causing

significant physical injury.” Jd. at 4.

* See Corrections Offender Network, Florida Department of Corrections, available at

http://www.dc.state.fl.us/OffenderSearch/Search.aspx (last visited June 16, 2022).

Dorey alleges that at approximately 11:00 p.m. on September 26, 2019, he was

physically assaulted by the two officers without justification. Ud. at 5.) Defendant

Hartmann hit Dorey in the head with a flashlight, which resulted in a wound that required

seven staples to close. (/d.) Defendant Hartmann also sat with his knee on Dorey’s neck

and punched Dorey in the face seven to ten times. (/d.) Defendant Otero kicked Dorey

while he was on the ground and broke Dorey’s ribs. Id.)

Dorey claims he suffered the following injuries from the use of force: an injury to

his head requiring seven staples, broken ribs, multiple bruises and lacerations, and a torn

rotator cuff to his left arm. (d.) He was treated for his injuries at the Villages Hospital at

approximately midnight on September 26, 2019. (Id.)

Dorey seeks declaratory relief that the Defendants’ actions violated his right to due

process in that it was cruel and unusual police brutality. (/d.) He also seeks nominal and

punitive damages and any other relief deemed just and proper. (/d.)

Dorey’s Complaint is deficient in several ways. His allegation that he was deprived

of due process is conclusory and devoid of factual support. He makes no allegation that the

underlying search and seizure was unreasonable pursuant to the Fourteenth Amendment.

See Ebner v. Cobb Cnty., No. 20-113118, 2021 WL 6118169, at *1 (11th Cir. Dec. 27,

2021) (per curiam) (noting drivers sued the county for violating their rights to be free from

unreasonable searches and seizures under the Fourteenth Amendment claiming the officer

based his probable-cause determinations on unreliable eye examinations).

To the extent Dorey is raising a substantive due process claim based on alleged

police brutality during an arrest, such a claim is redundant of the constitutional claim he

apparently seeks to assert, excessive force during an arrest. When a constitutional

amendment “provides an explicit textual source of constitutional protection,” that

amendment guides the analysis, “not the more generalized notion of ‘substantive due

process[.]” Graham v. Connor, 490 U.S. 386, 395 (1989).

Dorsey relies on the Cruel and Unusual Punishment Clause of the Eighth

Amendment in his Complaint. (Doc. 1 at 3.) At the time of his arrest, he was not confined

in the FDOC.* Thus, he is improperly relying on the Eighth Amendment, “which is

specifically concerned with the unnecessary and wanton infliction of pain in penal

institutions|.]” Whitley v. Albers, 475 U.S. 312, 327 (1986). Liberally construing the

Complaint, Dorey may be attempting to raise a claim under the Fourth Amendment. “The

Fourth Amendment, in relevant part, guarantees, ‘the right of the people to be secure in

their persons... against unreasonable .. . seizure.” Alcocer v. Mills, 906 F.3d 944, 952-53

The Court finds the reasoning of Ebner persuasive. See McNamara v. Gov't Emp. Ins. Co., 30 F.Ath 1055,

1060-61 (11th Cir. 2022) (reiterating that unpublished opinions may be cited as persuasive authority but

are not binding precedent). See Rule 32.1, Fed. R. App. P.

‘See Corrections Offender Network, Florida Department of Corrections, available at

http://www.dc.state.fl.us/OffenderSearch/Search.aspx (last visited June 16, 2022).

(11th Cir. 2018) (alterations in original) (quoting U.S. Const. amend. IV). This provision

encompasses “the plain right to be free from the use of excessive force in the course of an

arrest.” Lee v. Ferraro, 284 F.3d 1188, 1197 (11th Cir. 2002). Thus, “[p]roperly analyzed,

the basis for the § 1983 claim of excessive force comes under the rubric of the Fourth

Amendment[.]” Jones v. Marcum, 197 F.Supp.2d 991, 998 (S.D. Ohio 2002). See Reese v.

Herbert, 527 F.3d 1253, 1261 n.11 (11th Cir. 2008) (concluding that Gutierrez v. City of

San Antonio, 139 F.3d 441, 452 (5th Cir. 1998), provides the correct standard to make the

proper determination, and an excessive force claim should be analyzed in the context of the

Fourth Amendment only).

The Fourth Amendment right against unreasonable searches and seizures includes

the right to be free from excessive force during an arrest. See Johnson v. City of Miami Beach,

18 F.4th 1267, 1272 (11th Cir. 2021). Courts must assess excessive force cases under an

objective reasonableness standard. Hadley v. Gutierrez, 526 F.3d 1324, 1329 (11th Cir.

2008). Under that standard, courts evaluate the officer’s use of force “on a case-by-case

basis from the perspective of a reasonable officer on the scene, rather than with the 20/20

vision of hindsight.” Brown v. City of Huntsville, 608 F.3d 724, 738 (11th Cir. 2010). This

analysis turns on “the facts and circumstances of each particular case,” including a non-

exhaustive list of factors, such as (1) “the severity of the crime at issue”; (2) “whether the

suspect poses an immediate threat to the safety of the officers or others”; and (3) “whether

he is actively resisting arrest or attempting to evade arrest by flight.” Graham v. Connor,

490 U.S. 386, 396 (1989). “Not every push or shove” violates the Fourth Amendment. Id;

see also Charles v. Johnson, 18 F.4th 686, 699 (11th Cir. 2021).

Dorey’s allegations of excessive force fail to state a claim for relief under the above

standard. Not only are his allegations vague and conclusory, they neglect to include the

circumstances of his arrest that are necessary for a court to assess whether the use of force

was required or analyze how much was needed. Mere use of force by officers and a resulting

injury from the arrest fails to state a claim because it does not render Dorey’s allegations

plausible that the force used was gratuitous and unnecessary. See Johnson, 18 F.4th at 1272-

73 (explaining that gratuitous force might involve unnecessary force against a secure suspect

who is not resisting and poses no safety threat to the officer).

Thus, in order to demonstrate a Fourth Amendment violation, Dorey must allege

facts concerning the severity of the underlying crime for which he was being arrested; the

immediate threat (or lack thereof) to the safety of the officers or others, including whether

others like his girlfriend were trying to intervene in the arrest; and whether he was actively

resisting arrest or attempting to evade being arrested by flight.

As alleged, the Complaint does not sufficiently state a claim for relief under the

Fourth Amendment. It makes conclusory legal allegations devoid of factual allegations that

would make his claim plausible. And the Complaint improperly relies on the Fourteenth

and Eighth Amendments to the United States Constitution instead of the Fourth

Amendment. See Ful/man v. Graddick, 739 F.2d 553, 556-57 (11th Cir. 1984) (“In civil

rights actions, it has been held that a complaint will be dismissed as insufficient where the

allegations it contains are vague and conclusory.”). Put simply, Dorey’s statement that

defendants’ use of force was “without justification” absent factual allegations amounts to

“no more than a self-serving, un-supported legal conclusion.” Kier v. Prine, No. 7:14-CV-

0145-HL-TQL, 2014 WL 5821675, at *3 (M.D. Ga. Nov. 10, 2014) (relying on Oxford

Asset Mgmt., Ltd. v. Jaharis, 297 F.3d 1182, 1188 (11th Cir. 2002) (holding dismissal is

not prevented by unwarranted deductions of facts or legal conclusions masquerading as

facts)). Because there is a possibility that Dorey may be able to state a claim for relief, the

Complaint is dismissed without prejudice with leave to amend. To the extent Dorey is

attempting to represent Ms. Bell in this action, Dorey may not do so, and Ms. Bell is not

considered a plaintiff in this case.

III. Conclusion

For the foregoing reasons, the following is ORDERED:

1. Dorey’s Complaint (Doc. 1) is DISMISSED without prejudice to the filing of an

amended complaint by July 5, 2022.

a. To amend his complaint, Dorey should completely fill out a new civil rights

complaint. On the new form, Dorey must mark it as “Amended Complaint.”

The amended complaint must include a// of Dorey’s claims in this action that he

wishes to pursue. It may not refer to or incorporate prior complaints.

b. The amended complaint supersedes all prior complaints, and all claims must be

raised in the amended complaint.

2. Dorey is advised that failure to fully comply with this Order will result in the

dismissal of this action, for failure to state a claim, without further notice. Failure

to file an amended complaint by the deadline will result in this Court losing

jurisdiction to entertain prejudgment motions, including ones for extension of

time.

3. The Clerk is directed to mail to Dorey, along with this Order, a standard prisoner

civil rights complaint form on the address that he identifies in his Supplement and

Notice of Change of Address. (Doc. 5.)

ORDERED in Ocala, Florida on June 21, 2022.

fathnen Kimball Mizell

athryn’ Kimball Mizelle

United States District Judge