Knight v. Ortagus

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

JERRY ALLEN KNIGHT,

Plaintiff,

v. Case No. 3:22-cv-1374-MMH-LLL

BLAKE A. ORTAGUS,

Defendant.

____________________________

ORDER

Plaintiff Jerry Allen Knight, an inmate of the Florida penal system,

initiated this action on December 14, 2022, by filing a pro se Complaint for

Violation of Civil Rights (Complaint; Doc. 1) under 42 U.S.C. § 1983.1 Knight

names Blake A. Ortagus, an officer with the Jacksonville Sheriff’s Office (JSO),

as the Defendant. He alleges that on August 30, 2019, at 10:30 p.m., he was

taken into JSO custody. Complaint at 4. According to Knight, Ortagus

handcuffed him, “struck” him four times in the head with his flashlight,

repeatedly kicked him, and placed his fingers in Knight’s nostrils. Id. at 5. He

states that he suffered lacerations to his head, eyes, and nose, and had a

dislocated shoulder. Id. Additionally, he asserts that he was denied medical

1 For all pleadings and documents filed in this case, the Court cites to the

document and page numbers as assigned by the Court’s Electronic Case Filing

System.

treatment “though an ambulance was at the scene.” Id. As relief, he requests

compensatory and punitive damages.

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. §§ 1915A;

1915(e)(2)(B). “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 Knight has neither filed an application to proceed as a pauper nor paid the

filing fee.

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).

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

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)).

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

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 Knight’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.’” Campbell v. Air Jamaica Ltd., 760 F.3d 1165, 1168-69 (11th

Cir. 2014) (quoting GJR Invs., Inc. v. Cnty. of Escambia, Fla., 132 F.3d 1359,

1369 (11th Cir. 1998) (citations omitted), overruled in part on other grounds as

recognized in Randall, 610 F.3d at 709).

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

screening obligation under 28 U.S.C. § 1915A. The main thrust of the

Complaint is that Ortagus used excessive force against Knight that evening.

Preliminarily, the Court notes that Knight answered “no” to the question

related to whether he had filed other lawsuits in federal court dealing with the

same facts involved in this action. Complaint at 9. The Court takes judicial

notice of Knight’s prior cases filed in this Court: (1) Case No. 3:21-cv-83-MMH-

PDB (dismissed without prejudice for failure to file on the approved civil rights

complaint form); (2) Case No. 3:21-cv-159-BJD-PDB (dismissed without

prejudice for failure to state a claim); and (3) Case No. 3:21-cv-797-MMH-JBT

(dismissed without prejudice for failure to state a claim).

The Court dismissed Knight’s civil rights action (Case No. 3:21-cv-159-

BJD-PDB) against Ortagus, stating that “Plaintiff has failed to allege any facts

suggesting that Defendant’s use of force was objectively unreasonable under

the circumstances, especially in light of the crimes for which Plaintiff was

ultimately convicted.”4 Case No. 3:21-cv-159-BJD-PDB, Order of Dismissal

Without Prejudice (Doc. 5), filed May 20, 2021, at 3-4. The Court also concluded

that Knight failed to allege any facts suggesting that Ortagus was deliberately

indifferent to Knight’s medical needs. Id. at 4. A few months later, the Court

dismissed another civil rights action that Knight initiated against Ortagus,

stating in pertinent part:

4 Knight was convicted in state court of the following offenses: (1) aggravated

fleeing or attempting to elude a law enforcement officer; (2) battery on a law

enforcement officer; and (3) resisting an officer with violence. See State v. Knight, No.

16-2019-CF-009247 (Fla. 4th Cir. Ct.). He is serving a five-year term of incarceration.

Id.

Knight sues Ortagus in his official capacity only.

Complaint at 2. Where an officer is sued under § 1983

in his official capacity, the suit is actually a proceeding

against the entity the officer represents. See Cook ex

rel. Estate of Tessier v. Sheriff of Monroe Cnty., Fla.,

402 F.3d 1092, 1115 (11th Cir. 2005); see also Hafer v.

Melo, 502 U.S. 21, 25 (1991) (“[O]fficial-capacity suits

‘generally represent only another way of pleading an

action against an entity of which an officer is an

agent.’” (quoting Kentucky v. Graham, 473 U.S. 159,

165 (1985)). Accordingly, Knight’s claim against

Ortagus in his official capacity as a Jacksonville

Sheriff’s Officer is actually a claim against the city of

Jacksonville. As such, the Court considers Ortagus’

official capacity liability in the context of those cases

discussing county and municipal liability under §

1983.

To the extent that Knight seeks to hold the city

of Jacksonville through Ortagus vicariously liable for

the actions or omissions of the employees responsible

for Knight’s injury, Knight has failed to state a claim

upon which relief can be granted. The United States

Supreme Court has soundly rejected the theory of

respondeat superior as a basis for liability in § 1983

actions. See Monell v. Dep’t of Soc. Servs. of City of

N.Y., 436 U.S. 658 (1978). Instead, a county or

municipality may be liable in a § 1983 action “only

where the municipality itself causes the constitutional

violation at issue.” Cook ex. rel. Estate of Tessier, 402

F.3d at 1115 (citations omitted). Thus, a plaintiff must

establish that an official policy or custom of the

municipality was the “moving force” behind the

alleged constitutional deprivation. See Monell, 436

U.S. at 693-94. “A policy is a decision that is officially

adopted by the municipality, or created by an official

of such rank that he or she could be said to be acting

on behalf of the municipality.” Sewell v. Town of Lake

Hamilton, 117 F.3d 488, 489 (11th Cir. 1997) (citation

omitted). The policy requirement is designed to

“‘distinguish acts of the municipality from acts of

employees of the municipality, and thereby make clear

that municipal liability is limited to action for which

the municipality is actually responsible.’” Grech v.

Clayton Cnty., Ga., 335 F.3d 1326, 1329 n.5 (11th Cir.

2003) (en banc) (quotation omitted). Indeed, municipal

liability arises under § 1983 only where “‘a deliberate

choice to follow a course of action is made from among

various alternatives’ by city policymakers.” City of

Canton v. Harris, 489 U.S. 378, 389 (1989) (quoting

Pembaur v. Cincinnati, 475 U.S. 469, 483-84 (1986)).

A municipality will rarely have an officially-adopted

policy that permits a particular constitutional

violation, therefore, in order to state a cause of action

for damages under § 1983, most plaintiffs must

demonstrate that the municipality has a custom or

practice of permitting the violation. See Grech, 335

F.3d at 1330; McDowell v. Brown, 392 F.3d 1283, 1289

(11th Cir. 2004). The Eleventh Circuit has defined

“custom” as “a practice that is so settled and

permanent that it takes on the force of law” or a

“persistent and wide-spread practice.” Sewell, 117

F.3d at 489.

In some circumstances, “the failure to provide

proper training may fairly be said to represent a policy

for which the city may be held liable if it actually

causes injury.” City of Canton, 489 U.S. at 390. Failure

to train can lead to municipal liability “only where a

municipality’s failure to train its employees in a

relevant respect evidences a ‘deliberate indifference’ to

the rights of its inhabitants [such that the failure to

train] can be properly thought of as a city ‘policy or

custom’ that is actionable under § 1983.” Id. at 388-89

(alteration added). Thus, in order to assert such a

claim, a plaintiff must “present some evidence that the

municipality knew of a need to train and/or supervise

in a particular area and the municipality made a

deliberate choice not to take any action.” Gold v. City

of Miami, 151 F.3d 1346, 1350 (11th Cir. 1998). The

Eleventh Circuit has repeatedly held that “without

notice of a need to train or supervise in a particular

area, a municipality is not liable as a matter of law for

any failure to train or supervise.” Id. at 1351. Indeed,

“the need for such training must be plainly obvious to

[County] decisionmakers,” such as where there is

“evidence of a history of widespread prior abuse.”

Wright v. Sheppard, 919 F.2d 665, 674 (11th Cir. 1990)

(alteration added); see also Rocker v. City of Ocala,

Fla., 355 F. App’x 312, 314 (11th Cir. 2009) (per

curiam). Here, Knight fails to allege the existence of

any particular custom or policy in Jacksonville, much

less one that caused the actions about which he

complains.

Additionally, Knight’s allegations are

conclusory and vague, which are insufficient to state a

cause of action under 42 U.S.C. § 1983. See L.S.T., Inc.,

49 F.3d at 684. Knight has failed to allege facts

concerning Ortagus’ subjective state of mind and,

therefore, has failed to establish an element of an

excessive force claim. See Sconiers v. Lockhart, 946

F.3d 1256, 1265 (11th Cir. 2020) (noting that the

subjective element of an excessive force claim requires

a plaintiff to allege the force was applied in a malicious

or sadistic manner). Accordingly, Knight has failed to

state a claim upon which relief can be granted;

therefore, Ortagus is due to be dismissed from this

action.

Case No. 3:21-cv-797-MMH-JBT, Order (Doc. 2), filed August 26, 2021, at 4-8

(footnote omitted).

Over one year later, Knight filed the instant action. He provides

strikingly similar allegations to those he presented in his previous civil rights

cases. Again, he names Ortagus as the Defendant, and sues him in his official

capacity. He fails to allege the existence of any particular custom or policy in

Jacksonville, much less one that caused the actions about which he complains.

Additionally, he provides no facts suggesting that Ortagus’ use of force was

objectively unreasonable under the circumstances that evolved on the scene

that night. Insofar as Knight blames Ortagus for the denial of medical

treatment, Knight provides no facts suggesting that Ortagus was deliberately

indifferent to his medical needs.

As the Court concluded in Knight’s prior civil rights actions involving the

same incident, Knight’s assertions fail to state a claim under section 1983

against Defendant Ortagus. Thus, this case will be dismissed, pursuant to 28

U.S.C. § 1915A(b)(1), without prejudice to Knight’s right to refile 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. Additionally, if Knight decides to refile, he must truthfully answer all

of the questions on the complaint form, including those associated with the

filing of previous lawsuits. Finally, if he refiles, he should consider the

applicable four-year statute of limitations.

Accordingly, it is now

ORDERED AND ADJUDGED:

1. This case is DISMISSED WITHOUT PREJUDICE pursuant to

28 U.S.C. § § 1915A(b)(1).

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

without prejudice, terminate any pending motions, and close 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 or pursue other

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 or pursue other claims. In

initiating such a case, Plaintiff should either file a fully completed Affidavit of

Indigency (if he desires to proceed as a pauper) or pay the $402.00 filing fee (if

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 20 day of

December, 2022.

United States District Judge

11

Jax-1 12/16

c:

Jerry Allen Knight #J06893