Jackson v. Fiorucci

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

FORT MYERS DIVISION

RONALD JACKSON,

Plaintiff,

v. Case No. 2:22-cv-428-JES-KCD

MICHAEL FIORUCCI, MARK S. INCH,

AND DESOTO MEMORIAL HOSPITAL,

Defendants.

_____________________________________

OPINION AND ORDER

Plaintiff initiated this action on July 11, 2022 by filing a

pro se 42 U.S.C. § 1983 civil rights complaint along with a motion

to proceed in forma pauperis. (Docs. 1, 2). Because Plaintiff

seeks to proceed as a pauper, the complaint is now before the Court

for initial screening.1

Upon review, the Court dismisses the complaint as a duplicate

to an earlier complaint filed in this Court and for failing to

state a claim on which relief may be granted. Because Plaintiff

raises claims against defendants who cannot be sued under 42 U.S.C.

§ 1983, he will not be provided leave to amend.

1 A prisoner who is allowed to proceed in forma pauperis in this

court will have his complaint screened in accordance with the provisions

of 28 U.S.C. § 1915(e)(2)(B). This screening procedure requires the

court to dismiss a prisoner's civil action prior to service of process

if it determines that the complaint is frivolous, malicious, fails to

state a claim upon which relief may be granted, or seeks monetary damages

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

I. Complaint

The events giving rise to Plaintiff’s claim occurred on July

15, 2021 at Desoto Memorial Hospital. (Doc. 1 at 4). Plaintiff

asserts that he was taken to the hospital for hernia surgery.

(Id. at 5). During the procedure, Defendant Doctor Michael

Fiorucci cut his bladder, which caused internal pleading, but

Defendant Fiorucci did not inform Plaintiff of the injury before

discharging him. (Id. at 5, 7). Defendant Fiorucci only

prescribed ibuprofen for pain. (Id. at 7).

II. Discussion

As an initial matter, the Court notes that this complaint is

merely a photocopy of a complaint already filed and dismissed in

Middle District of Florida Case 2:21-cv-910-SPC-MRM. The prior

dismissal was for failure to state a claim, and although it was

without prejudice, Plaintiff was given leave to file a new

complaint only if he could state a § 1983 claim against state

officials. (Case 2:21-cv-910-SPC-MRM at Doc. 4, p. 3). Plaintiff

did not change the defendants in this action (or alter the

complaint in any manner), and this case is subject to dismissal

for the same reasons set forth in the earlier order.

A. Nether Defendant Fiorucci nor the Desoto Memorial

Hospital are subject to suit under 42 U.S.C. § 1983.

Plaintiff does not allege facts suggesting that Dr. Fiorucci

or Desoto Memorial Hospital are state actors. A person acts “under

color of state law” for purposes of § 1983 when he acts with

authority possessed by reason of his employment with the state.

A private doctor’s and private hospital’s treatment of a patient

who happens to be a prisoner, without more, does not create

liability under the Eighth Amendment. See American Mfrs. Mut.

Ins. Co. v. Sullivan, 526 U.S. 40, 50 (1999) (“[Section] 1983

excludes from its reach merely private conduct, no matter how

discriminatory or wrongful.”); Rodriguez v. Plymouth Ambulance

Serv., 577 F.3d 816, 827 (7th Cir. 2009) (“[P]rivate organizations

and their employees that have only an incidental and transitory

relationship with the state's penal system usually cannot be said

to have accepted, voluntarily, the responsibility of acting for

the state and assuming the state's responsibility for incarcerated

persons.”).

Moreover, Plaintiff does not allege facts suggesting that Dr.

Fiorucci or Desoto Memorial Hospital deprived him of a

constitutional right. Rather, he asserts that his injuries were

caused by “negligence or strict liability.” (Doc. 1 at 3). To

the extent Plaintiff attempts to state a claim against these

defendants for negligence or medical malpractice, neither claim is

actionable under § 1983. See Estelle v. Gamble, 429 U.S. 97, 106

(1976) (“Medical malpractice does not become a constitutional

violation merely because the victim is a prisoner.”); Daniels v.

Williams, 474 U.S. 327, 330 (1986) (allegation of mere negligence

insufficient to state violation of constitutional right); McDowell

v. Brown, 392 F.3d 1283, 1294 (11th Cir. 2004) (medical malpractice

claim insufficient to establish liability under § 1983).

Accordingly, any claims that Plaintiff attempts to raise

against Defendants Fiorucci or Desoto Memorial Hospital under §

1983 are due to be dismissed for failure to state a claim on which

relief may be granted. 28 U.S.C. § 1915(e)(2)(B)(ii). To the

extent Plaintiff alleges a state-law claim for medical malpractice

or negligence, it should be filed in state court.

B. Plaintiff has not stated a claim against Defendant

Mark S. Inch.

Defendant Inch was the Secretary of the Florida Department of

Corrections at the time of Plaintiff’s surgery. Plaintiff does

not indicate whether Defendant Inch is sued in his individual or

official capacity. A suit against a state official in his or her

official capacity is a suit against the official’s office and is

no different from a suit against the state. Will v. Michigan

Dep’t of State Police, 491 U.S. 58, 71 (1989).

Under the Eleventh Amendment, states and state agencies

cannot be sued for monetary damages in federal court without

consent. Pennhurst State School & Hospital v. Halderman, 465 U.S.

89, 100 (1984). “This jurisdictional bar applies regardless of

the nature of the relief sought” and regardless of whether a

plaintiff’s claims are brought under federal or state law. Id.

The Florida Department of Corrections (FDOC) is a state agency for

Eleventh Amendment purposes. See, e.g., Walden v. Fla. Dep’t of

Corr., 975 F. Supp. 1330, 1331 (N.D. Fla. 1996) (noting that the

FDOC is “a state agency that is clearly the equivalent of the State

of Florida for Eleventh Amendment purposes”). Neither Florida nor

the FDOC has consented to suit in federal court or waived Florida’s

Eleventh Amendment immunity with respect to any of Plaintiff’s

claims.

Even if Plaintiff sues Defendant Inch in his individual

capacity, it is unclear on what grounds he attributes liability.

He does not allege that Defendant Inch personally participated in

any unconstitutional conduct, and supervisors cannot be sued under

section 1983 on a theory of direct vicarious liability. Hartley

v. Parnell, 193 F.3d 1263, 1269 (11th Cir. 1999); see also Monell

v. Dep’t of Soc. Servs., 436 U.S. 658, 691, 694 n.58 (1978)

(holding that local government cannot be held liable under a theory

of respondeat superior). Rather, supervisory liability is

established only when there is a “causal connection” between the

supervisor’s actions and the constitutional violation. See Brown

v. Crawford, 906 F.2d 667, 671 (11th Cir. 1990). This can occur

“when a history of widespread abuse puts the responsible supervisor

on notice of the need to correct the alleged deprivation, and he

fails to do so.” Cottone v. Jenne, 326 F.3d a1352, 1360 (11th

Cir. 2003). A plaintiff can also establish the necessary causal

connection by showing that a supervisor’s “custom or policy . . .

resulted in deliberate indifference to constitutional rights,”

Rivas v. Freeman, 940 F.2d 1491, 1495 (llth Cir. 1991). Nothing

in Plaintiff's complaint suggests that Defendant Inch had a custom

or policy that contributed to Plaintiff’s injury or that he was

aware of widespread issues with the medical defendants’ provision

of medical care.

Plaintiff’s claims against Defendant Inch are dismissed for

failure to state a claim on which relief may be granted. 28 U.S.C.

$ 1915 (2) (B) (11).

III. Conclusion

Accordingly, it is now ORDERED:

1. Ronald L. Jackson’s 42 U.S.C. § 1983 complaint is

DISMISSED as duplicative. Alternatively, the complaint is

dismissed in its entirety for failure to state a claim on which

relief may be granted. The dismissal is without prejudice to

Plaintiff raising his medical negligence claims in state court.

2. With no remaining claims or defendants, the Clerk is

directed to terminate all pending motions, close the file and enter

judgment accordingly.

DONE AND ORDERED in Fort Myers, Florida on August 1, 2022.

9 at of

: le hy Zé. tkisol

adi EF. STEELE

SHNIOR UNITED STATES DISTRICT JUDGE

SA: FTMP-2

Copies: Ronald L. Jackson