# Sachs v. Rossiter

> District Court, M.D. Florida · March 14, 2023

URL: https://www.frixlaw.com/law-library/cases/10112404

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** March 14, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10112404. Public record. Not legal advice.