Sachs v. Rossiter

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

OCALA DIVISION

DANIELLE NICOLE SACHS,

Plaintiff,

v. Case No. 5:22-cv-314-KKM-PRL

RICKY DIXON, et al.,

Defendants.

ORDER

Plaintiff Danielle Nicole Sachs, through counsel, brings claims for cruel and unusual

punishment and deliberate indifference under 42 U.S.C. § 1983 and for negligent

supervision and statutory liability under Florida law. (Doc. 1.) In her four-count complaint,

Sachs names three Defendants: the Secretary of the Florida Department of Corrections

(FDOC), Ricky Dixon, in his official capacity for violating Florida Stat. § 768.28 (Count

IV); the Warden of Lowell Correctional Institution (Lowell CI), Stephen Rossiter, in his

individual capacity for deliberate indifference and negligent supervision (Counts II and

III); and a former corrections officer, Jacob Tourbin, in his individual capacity for cruel

and unusual punishment (Count I).

Tourbin filed an answer, (Doc. 16), but moves to strike portions of the complaint,

(Doc. 15). Secretary Dixon moves to strike the same portions of the complaint and moves

to dismiss Count IV, arguing he is entitled to Eleventh Amendment immunity. (Doc. 9.)

Finally, Warden Rossiter moves to dismiss Counts IT and HI. (Doc. 19.) Sachs partially

opposes Secretary Dixon’s motion, (Doc. 17), but concedes her claim against him may not

proceed in federal court and therefore asks the Court to dismiss Count IV “in foto” without

prejudice, so she may pursue her claim in state court, (id. at 3). Because Sachs may not

proceed in federal court on a claim for damages against Secretary Dixon in his official

capacity,’ the Court dismisses Count IV without prejudice, and denies as moot Secretary

Dixon’s motion to strike.

Sachs opposes Warden Rossiter’s motion to dismiss. (Doc. 20.) Having considered

Rossiter’s motion and the response, the Court grants the motion as to Counts II and III

but permits Sachs to file an amended complaint. As a result, Tourbin’s motion to strike is

denied as moot.

I. FACTUAL BACKGROUND

Sachs is a state inmate housed at Lowell CI, “the largest women’s prison in the

country.” (Doc. 1 § 15.) Her claims arise from an alleged sexual assault by then-Officer

“Under the Eleventh Amendment, state officials sued for damages in their official capacity are immune

from suit in federal court.” Jackson v. Ga. Dep't of Transp., 16 F.3d 1573, 1575 (11th Cir. 1994),

Tourbin that occurred on June 16, 2021. Ud. 441, 5.) Sachs alleges Tourbin “pushed [her]

... up against [a] wall... . [and] violently squeezed her breasts, then put his hands down

the front of [her] pants and rubbed her vaginal area.” (Id. 4 63.) Based on the filing of an

anonymous PREA? grievance, the matter was investigated and, per policy, Sachs was

placed in administrative/solitary confinement. ([d. 44 40-42, 66-67.) Warden Rossiter

“concluded that no wrongdoing had occurred.” (Id. § 68.) In Count I, Sachs brings an

Eighth Amendment cruel and unusual punishment claim against Tourbin. (/d. ¥§ 72-75.)

Sachs brings two claims against Warden Rossiter for his failure to remediate an

alleged “pattern of forced sexual submission imposed by [prison] employees upon her and

other numerous female inmates.” (Jd. 44 4, 6.) In Count I, brought under § 1983, Sachs

alleges Warden Rossiter was deliberately indifferent to the alleged “widespread pattern of

sexual and physical abuse,” (id. 9 76-82), and in Count III, brought under state law, Sachs

alleges Warden Rossiter negligently supervised prison staff, (id. 9/4] 83-89). Sachs alleges

Warden Rossiter’s disregard of his duties, including inadequate staffing, supervision,

training, and policymaking, and his deliberate indifference to Sachs’s safety directly or

proximately caused the sexual assault by Tourbin. (Jd. 9 82, 89.)

? PREA stands for “Prison Rape Elimination Act.”

Sachs dedicates much of her complaint to describing what she characterizes as “a

culture of lawlessness” at Lowell CI. (Id. 15-55.)° In one paragraph in particular, Sachs

alleges multiple prior incidents of staff abuse or misconduct, some of which led to criminal

charges against Lowell CI staff. (Id. § 19.) Sachs also references a report issued by the

Department of Justice (DOJ) Civil Rights Division in 2020 (DOJ Report), which “cit[ed]

repeated instances of sexual and physical abuse [against the inmates] stemming from a

culture of lawlessness and systemic lack of supervision,” in part attributable to staffing

shortages. (Id. § 20.) According to Sachs, the DOJ found that the “FDOC and Lowell

[CI] are violating the Constitution by failing to protect prisoners from serious harm,” and

that “women at Lowell [CI] are not safe from abuse by staff.” (Id. 4 21, 30.)

Sachs alleges Warden Rossiter failed to “undertake[] sufficient efforts to change

[the] culture” of abuse by, for example, not ensuring sufficient staffing, which “results in

inadequate supervision and creates an unacceptably high risk of sexual abuse by creating

the opportunity for staff to engage in misconduct without detection.” (Id. 44 32, 34-36,

38.) She further alleges Warden Rossiter adopted or continued policies that discourage

inmates from reporting instances of sexual abuse, including “always” sending inmates who

> Tourbin moves to strike these allegations because, according to him, they concern “inmates who are not

parties to this case and have absolutely no bearing on the Plaintiffs claim in the current action.” (Doc. 15

report sexual abuse to segregated housing where they are denied access to certain privileges.

(Id. {4 39-43.)

II. ANALYSIS

A. Motion to Dismiss Standard

To survive a motion to dismiss for failure to state a claim, a plaintiff must plead

sufficient facts to state a claim that is “plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662,

678 (2009) (quoting Bel] Atl. Corp. v. Twombly, 550 U.S. 554, 570 (2007)). A claim is

plausible on its face when a plaintiff “pleads factual content that allows the court to draw

the reasonable inference that the defendant is liable for the misconduct alleged.” Id. When

considering the motion, the court accepts all factual allegations of the complaint as true

and construes them in the light most favorable to the plaintiff. Pielage v. McConnell, 516

F.3d 1282, 1284 (11th Cir. 2008). This tenet, of course, is “inapplicable to legal

conclusions.” [gbal, 556 U.S. at 678. “While legal conclusions can provide the framework

of a complaint, they must be supported by factual allegations.” Jd. at 679. Courts should

limit their “consideration to the well-pleaded factual allegations, documents central to or

referenced in the complaint, and matters judicially noticed.” La Grasta v. First Union Sec.,

Inc., 358 F.3d 840, 845 (11th Cir. 2004),

B. Warden Rossiter’s Motion to Dismiss

Warden Rossiter seeks dismissal of both Counts II and III. As to Count II, Warden

Rossiter asserts two grounds for dismissal. First, Warden Rossiter asserts that Sachs does

not allege “she was deprived any federal right by [him]” while he was acting “under the

color of state law.” (Doc. 19 at 3.) Second, Warden Rossiter invokes qualified immunity,

asserting Sachs does not allege the violation of a clearly established constitutional right.

(Id. at 6.) Because the qualified immunity analysis depends on whether Sachs states a

plausible claim for relief, the Court will address both arguments together.

“[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 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).

Qualified immunity protects a government official acting within his discretionary

authority from civil lawsuits unless his conduct violates a statutory or constitutional right

clearly established when the alleged violation occurred. Gilmore v. Hodges, 738 F.3d 266,

272 (11th Cir. 2013). The doctrine protects “all but the plainly incompetent or those who

knowingly violate the law.” Gates v. Khokhar, 884 F.3d 1290, 1296 (11th Cir. 2018) (citing

Ashcroft v. al-Kidd, 563 U.S. 731, 743 (2011)). If an official demonstrates he was engaged

in a discretionary function, the burden shifts to the plaintiff to overcome the official’s

qualified immunity by meeting a two-part test. Mercado v. City of Orlando, 407 F.3d 1152,

1156 (11th Cir. 2005). First, she must show that the official violated a constitutional right.

Id. This first step of the qualified immunity inquiry mirrors the Rule 12(b)(6) analysis,

requiring a court to analyze the specific constitutional right at issue and decide as a matter

of law if the official violated such a right. Jd. at 1156-57. Second, if a violation occurred,

the plaintiff must then show that the right was clearly established at the time of the

incident. Jd. at 1156.

Warden Rossiter contends, “[Sachs’s] allegations . . . clearly state that [he] was

acting within his discretionary authority as an employee of the [FDOC] and warden as

[sic] [Lowell CI],” (Doc. 19 at 6), which Sachs does not dispute, (Doc. 20 at 8-10).*

Consequently, the burden shifts to Sachs to show that Warden Rossiter violated a clearly

established constitutional right. Sachs contends Warden Rossiter knew inmates, including

* Warden Rossiter contends that Sachs does not allege he acted “under the color of state law” but Rossiter

invokes qualified immunity, which applies only to state actors. Regardless, Sachs alleges she sues Rossiter

for actions (or inactions) he took or policy decisions he made as the warden of Lowell CI and while “acting

under color of law.” (Doc. 1 4§ 1, 11.)

herself, were in danger of being sexually assaulted, yet he remained deliberately indifferent

to that risk, implicating Eighth Amendment protections.’ (Id. 44 76-82.)

The Eighth Amendment requires prison officials to “take reasonable measures to

guarantee the safety of the inmates.” Farmer v. Brennan, 511 U.S. 825, 832 (1994). A

prison official violates this prohibition if he is deliberately indifferent to a substantial risk

of serious harm to an inmate who suffers injury. Lane v. Philbin, 835 F.3d 1302, 1307 (11th

Cir. 2016); see Farmer, 511 U.S. at 843. To state an Eighth Amendment claim of deliberate

indifference, a plaintiff must allege facts sufficient to show: (1) a substantial risk of serious

harm; (2) the defendant’s deliberate indifference to that risk; and (3) that the injury was

caused by the defendant’s wrongful conduct. Lane, 835 F.3d at 1307; see Hale v. Tallapoosa

Cnty., 50 F.3d 1579, 1582 (11th Cir. 1995). The second element of the claim “has three

components: (1) subjective knowledge of a risk of serious harm; (2) disregard of that risk;

(3) by conduct that is more than mere negligence.” Lane, 835 F.3d at 1308 (quoting Farrow

v. West, 320 F.3d 1235, 1245 (11th Cir. 2003)).

“It is well established in this Circuit that supervisory officials are not liable under

§ 1983 for the unconstitutional acts of their subordinates on the basis of respondeat

superior or vicarious liability.” Cottone v. Jenne, 326 F.3d 1352, 1360 (11th Cir. 2003),

Sachs references both the Eighth and Fourteenth Amendments in her complaint. (Doc. 1 4/7.) Because

Sachs was a convicted state prisoner at the relevant times, her claims arise under the Eighth Amendment,

not the Fourteenth. See Crocker v. Beatty, 995 F.3d 1232, 1246 (11th Cir. 2021).

abrogated in part on other grounds by Randall v. Scott, 610 F.3d 701 (11th Cir. 2010). Instead,

to hold a supervisor liable a plaintiff must show “that the supervisor either directly

participated in the unconstitutional conduct or that a causal connection exists between the

supervisor’s actions and the alleged constitutional violation.” Keith v. DeKalb Cnty., Ga.,

749 F.3d 1034, 1047-48 (11th Cir. 2014). It bears emphasizing that—unlike state claims

of vicarious liability—the standard for supervisory liability is “extremely rigorous.” Piazza

v. Jefferson Cnty., Ala., 923 F.3d 947, 957 (11th Cir. 2019) (quoting Cottone, 326 F.3d at

1360).

Absent a supervisor’s direct participation in the alleged conduct, a plaintiff may

establish the requisite causal connection for supervisory liability in one of three ways: (1)

“when a history of widespread abuse puts the responsible supervisor on notice of the need

to correct the alleged deprivation”; (2) “when a supervisor’s custom or policy. . . result[s]

in deliberate indifference to constitutional rights”; or (3) when the supervisor directed or

knew subordinates would act unlawfully. Cottone, 326 F.3d at 1360. A claim premised on

a supervisor's knowledge of prior unconstitutional deprivations requires the plaintiff to

show the prior deprivations were “obvious, flagrant, rampant and of continued duration,

rather than isolated occurrences.” Brown v. Crawford, 906 F.2d 667, 671 (11th Cir. 1990).

See also Goebert v. Lee Cnty., 510 F.3d 1312, 1332 (11th Cir. 2007) (“Demonstrating a

policy or custom requires ‘show|ing] a persistent and wide-spread practice.” (quoting

Depew v. City of St. Mary’s, Ga., 787 F.2d 1496, 1499 (11th Cir. 1986))).

Sachs does not allege Warden Rossiter directly participated in a constitutional

violation. Rather, she alleges he knew or should have known of “a widespread pattern of

physical and sexual abuse, harassment, and threats against the inmates at Lowell [CI]” and

allowed that pattern of abuse to continue by failing to adopt or implement policies that

would protect inmates or by “adopt[ing] policies and practices [that] enable[d] sexual abuse

of prisoners by staff.” (Doc. 1 4 18, 19, 34.)

In support of her allegation of a “widespread pattern of . . . abuse,” Sachs references

multiple prior instances of physical and sexual abuse against inmates by corrections officers

between 2014 and 2019, and points to the 2020 DOJ Report, which allegedly found there

was “a culture of lawlessness and systematic lack of supervision [at Lowell CI]” that placed

inmates “at substantial risk” of being physically and sexually abused. (Jd. 4 19-22, 30.) In

support of her allegation regarding policy deficiencies, Sachs references staffing issues and

a policy about handling PREA complaints. She alleges Lowell CI was inadequately staffed

at times in 2016 and 2017 and had high turnover rates between May 2018 and May 2019,

permitting sexual assaults to go undetected and that “sexual abuse victims are routinely

placed into in [sic] involuntary segregated housing where they must forfeit access to regular

10

programming, services, their property, canteen items, phone access, and visitation from

family.” (Id. 44 37, 39, 41.)

Sachs fails to allege when Rossiter became the warden of Lowell Cl. (See generally

id.) Although Sachs alleges that Rossiter was the warden “[a]t all times material” to her

claims, (id. 44 10-12), she acknowledges that some of the referenced incidents supporting

her supervisory liability claim occurred “prior to . . . the time [Warden] Rossiter assumed

responsibility for [the inmates’] safety,” (id. 4 19). Indeed, Sachs alleges that the “culture

of lawlessness” already existed at Lowell CI when Rossiter became the warden, but Rossiter

allowed the abuse to continue “unabated” by failing to implement effective policies or by

making no more than “token efforts to remediate the systemic culture of disfunction.” (Id.

qq 25, 31-32, 55.)

Based on inferences from the complaint’s allegations, Rossiter may have become the

warden after November 2019. (Id. 4§ 31-32, 52, 54.) For instance, Sachs alleges as follows:

“In November 2019, the DOJ asked the former warden, current warden and an OIG

supervisor” about PREA complaints by inmates. (Id. § 54, emphasis added.) In the next

paragraph, Sachs alleges, “After undertaking the role of warden at Lowell [CI,] Rossiter

has continued these adopted policies... .” Id. 4 55, capitalization omitted.) Sachs never

alleges directly when Rossiter served as the warden of Lowell CI, and she never alleges

what the “adopted policies” were that Rossiter permitted to govern Lowell Cl.

11

If Rossiter became the warden after November 2019, Sachs fails to allege facts

showing a causal connection between her constitutional injury and Rossiter’s conduct. Of

the multiple incidents of abuse Sachs references in paragraph 19 of her complaint—some

of which do not involve sexual assault or even physical assault—only one occurred after

November 2019, and it involved the alleged unlawful use of “pepper spray” against an

inmate. (Id. 4 19.)° Even if this one incident had involved sexual assault or was attributable

to a policy implemented or overlooked by Warden Rossiter, it does not establish or permit

the reasonable inference that “widespread abuse” existed or continued “unabated” when

Rossiter was the warden. See Piazza, 923 F.3d at 957; Goedert, 510 F.3d at 1332. Notably,

Sachs does not allege that any incidents of sexual assault occurred at Lowell Cl after

November 2019. (See Doc. 1 § 19.) To the extent that the “repeated instances of sexual

and physical abuse” referenced in the DOJ Report are the same ones Sachs references in

paragraph 19 of her complaint, they do not establish the requisite causal link. The same is

true for the alleged inadequate staffing and the policy of segregating inmates who claimed

to have been the victims of sexual abuse, both of which appear to have predated Warden

Rossiter’s tenure at Lowell CI.

° In another paragraph, Sachs references an inmate who publicly complained about the “abhorrent

conditions” at Lowell CI in 2021, but those complaints related to nutrition and prenatal care, not sexual or

even physical abuse. (Doc. 1 § 33.)

12

As alleged, it appears Rossiter became the warden of Lowell CI after the alleged

“culture of lawlessness” had been allowed to permeate the institution. If true, and assuming

Rossiter knew about the history at Lowell CI as alleged in Sachs’s complaint, Sachs’s

assertion that the “culture of lawlessness” continued unabated after Rossiter became the

warden is conclusory and not supported with factual allegations. In other words, Sachs’s

allegations do not permit the reasonable inference that a culture of lawlessness persisted

after Rossiter became the warden or, if it did, that Rossiter was deliberately indifferent to

it. Warden Rossiter cannot be held liable for a predecessor’s deliberate indifference to

unsafe prison conditions.

Based on the above deficiencies, Count II must be dismissed with leave to amend.

If Sachs repleads this claim and Warden Rossiter moves to dismiss again on qualified

immunity grounds, he must provide briefing that develops the relevant legal analysis. (See,

e.g., Doc. 19 at 6 (referencing the First Amendment—instead of Eighth—and otherwise

failing to meaningfully analyze why the right was not clearly established).)

As to Count III, Sachs alleges that Warden Rossiter breached his duty to protect

inmates at Lowell CI by failing to adequately supervise corrections officers, including

Tourbin, causing the sexual assault of which she complains. (Doc. 1 4§ 83-89.) Her

negligent supervision claim is based on the same factual allegations supporting her § 1983

claim in Count II. (/d. § 83.) Warden Rossiter argues Sachs does not state a plausible claim

13

for negligent supervision against him because she fails to allege he “had any knowledge of

[Officer] Tourbin’s unfitness” or that, with such knowledge, “placed [Sachs] under [his]

supervision.” (Doc. 19 at 4-5.) In response, Sachs contends Rossiter, as the warden, had a

non-delegable duty to protect inmates and “to investigate Tourbin’s [two] previous

incidents of misconduct,” which were “sexually motivated.” (Doc. 20 at 13.)

Under Florida law, an employer may be liable for an injury his employee causes but

only if “the employer becomes aware or should have become aware of problems with [the]

employee that indicated his unfitness, and the employer fails to take further actions such

as investigation, discharge, or reassignment.” Dep't of Env't Prot. v. Hardy, 907 So. 2d 655,

660 (Fla. 5th DCA 2005). To state a claim for negligent supervision, a plaintiff must allege

(1) the employer had “actual or constructive notice of an employee’s unfitness”; and (2) the

employer failed to take appropriate action. Id. See also Doe v. Carnival Corp., 470 F. Supp.

3d 1317, 1321, 1324 (S.D. Fla. 2020) (dismissing the plaintiffs negligent supervision claim

because she did not allege the employer (a cruise line) had knowledge of the offending

employee’s unfitness but rather alleged that a certain group of employees—to which the

plaintiff did not allege the offending employee belonged—were “prone to rape”

passengers).

Sachs does not allege Warden Rossiter had actual or constructive knowledge of

Tourbin’s unfitness. In fact, contrary to what she says in her response (Doc. 20), Sachs does

14

not allege Tourbin engaged in any conduct suggesting he was unfit. (See generally Doc. 1.)

She makes no mention of him having been involved in two “sexually motivated” incidents.

(Id.) Rather, Sachs alleges Warden Rossiter “knew, or should have known, of a pattern of

violations . . . by Lowell [CI] officers and staff.” (See id. 44 83, 85.) Allegations that other

corrections officers committed sexual assaults in the past are insufficient to establish

Tourbin himself engaged in such conduct or was otherwise known to be unfit so as to give

Rossiter actual or constructive notice. See Carnival Corp., 470 F. Supp. 3d at 1324.

Accordingly, Count III is dismissed without prejudice. Because the Court directs Sachs to

amend her complaint, she may attempt to replead this count.

III. Conclusion

For the foregoing reasons, the following is ORDERED:

1. Secretary Dixon’s Motion to Dismiss and to Strike (Doc. 9) is GRANTED in

part to the extent Count IV is dismissed without prejudice. ‘The motion to strike

is DENIED as moot.

2. Defendant Tourbin’s Motion to Strike (Doc. 15) is DENIED as moot.

3. Warden Rossiter’s Motion to Dismiss (Doc. 19) is GRANTED. Counts IT and

III are DISMISSED without prejudice.

4. The Court directs the Clerk to terminate Secretary Dixon as a party to this

action.

15

5. Sachs may file an amended complaint no later than March 31, 2023, amending

only the two claims asserted against Warden Rossiter (deliberate indifference,

Count II, and negligent supervision, Count III). If Sachs fails to do so, the

Complaint will proceed against Tourbin only.

ORDERED in Ocala, Florida on March 14, 2023.

Jatin Mizelle

United States District Judge

16