McGhee v. Jacksonville Sheriffs Office

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

JASON CARTHY MCGHEE, JR.,

a/k/a J.C. MAKKUV EL, et al.,

Plaintiff,

v. Case No. 3:23-cv-578-BJD-JBT

JACKSONVILLE SHERIFF’S

OFFICE, et al.,

Defendants.

_______________________________

ORDER

Plaintiff, an inmate of the Duval County Jail, initiated this action pro se

by filing a Civil Rights Complaint under 42 U.S.C. § l983 (Doc. 1), along with

a proposed order to show cause why a preliminary injunction or temporary

restraining order should not be issued (Doc. 2), a motion to proceed in forma

pauperis, a motion for appointment of counsel (Doc. 4), and a document titled,

“Amended Complaint Memorandum of Law” (Doc. 5). Plaintiff sues on his own

behalf and on behalf of “Jason Carthy McGhee Jr. Trust” and “McGhee Family

Investments.” See Doc. 1-1 at 1, 4.

The number of Defendants Plaintiff seeks to sue is unclear. He lists four

in the complaint form (Doc. 1), a different four in the proposed order to show

cause (Doc. 2), and up to thirteen in an attachment (Doc. 1-1). Plaintiff

complains about the following alleged violations by the following Defendants:

unreasonable detention, which he calls a “kidnapp[ing],” by a Duval County

judge (Adrian Soud); breach of fiduciary duty by the public defender appointed

to represent him in state court (Abbatiello); excessive force and destruction of

personal property by an officer with the Jacksonville Sheriff’s Office (JSO)

(Carmona); interference with his religious practice by the JSO chaplain (W.

Thomas); negligence by Duval County and the City of Jacksonville for a slip-

and-fall injury he had when a pipe leaked at the jail; medical malpractice by

the State of Florida for improper diagnosis; and retaliation by a JSO officer

(Zona) See Doc. 1 at 4; Doc. 1-1 at 5-9, 11, 13.1

It appears Plaintiff names other Defendants in their roles as supervisors,

employing agencies, or grievance responders: the City of Jacksonville; Duval

County; the State of Florida;2 Tammy Morris; T.K. Waters; and the JSO. See

Doc. 1-1 at 2-3, 7-8. As relief, in addition to compensatory and punitive

damages, Plaintiff seeks a declaratory judgment and the entry of a preliminary

and permanent injunction ordering JSO “agents and officers to cease their

1 Plaintiff also references an “unknown” officer and a “Lee.” See Doc. 1-1

at 4.

2 It appears Plaintiff names the State of Florida as a Defendant because

criminal charges were brought against him, the State “sued Plaintiff McGhee

Trust,” or because he confuses the Florida Department of Corrections with the

JSO. See Doc. 1-1 at 11-13.

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physical violence and threats toward [him].” See Doc. 1 at 5; Doc. 1-1 at 14-15.

See also Doc. 2.

The Prison Litigation Reform Act (PLRA) requires a district court to

dismiss a complaint if the court determines it is frivolous, malicious, or fails to

state a claim on which relief may be granted. 28 U.S.C. §§ 1915(e)(2)(B),

1915A(b)(1). Since the PLRA’s “failure-to-state-a-claim” language mirrors the

language of Rule 12(b)(6) of the Federal Rules of Civil Procedure, courts apply

the same standard. 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 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)). “Labels and conclusions” or “a formulaic

recitation of the elements of a cause of action” that amount to “naked

assertions” will not suffice. Id. (quoting Twombly, 550 U.S. at 555). Moreover,

a complaint must “contain either direct or inferential allegations respecting all

the material elements necessary to sustain a recovery under some viable legal

theory.” Roe v. Aware Woman Ctr. for Choice, Inc., 253 F.3d 678, 683 (11th Cir.

2001) (quoting In re Plywood Antitrust Litig., 655 F.2d 627, 641 (5th Cir. Unit

A Sept. 8, 1981)). In reviewing a complaint, a court must accept the plaintiff’s

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allegations as true, liberally construing those by a plaintiff proceeding pro se,

but need not accept as true legal conclusions. Iqbal, 556 U.S. at 678.

Procedurally, Plaintiff’s complaint is deficient for at least three reasons.

First, Plaintiff joins multiple, unrelated claims in one complaint and seeks to

represent the interests of others. A plaintiff may not join unrelated claims and

various defendants in one complaint unless the claims arise “out of the same

transaction, occurrence, or series of transactions or occurrences” and if “any

question of law or fact common to all defendants will arise in the action.” Fed.

R. Civ. P. 20(a)(2). “A claim arises out of the same transaction or occurrence if

there is a logical relationship between the claims.” Constr. Aggregates, Ltd. v.

Forest Commodities Corp., 147 F. 3d 1334, 1337 n.6 (11th Cir. 1998) (internal

quotation marks omitted). To the extent Plaintiff’s claims are discernible or

cognizable, the various claims have no logical relationship and may not be

joined in one complaint. Moreover, as a litigant proceeding pro se, Plaintiff may

not represent the interests of entities. See Palazzo v. Gulf Oil Corp., 764 F.2d

1381, 1385 (11th Cir. 1985).

Second, Plaintiff’s allegations are conclusory for the most part. For

instance, he says Judge Soud “acted under color of law by pursuing a criminal

complaint against [him] without a corpus delicti,” see Doc. 1 at 4, and “set a

ransom” to hold him under the “wrong statutes,” see Doc. 1-1 at 9, 12; his

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attorney “breached a fiduciary obligation and conspired with [the] State of

Florida,” id. at 6, 9; Officer Carmona “destroy[ed] legal materials” and used

“excessive force when not required,” apparently by tasing him and “beat[ing]

him with several other unknown officers,” see id. at 6, 11; Tammy Morris

“neglected to prevent the breach and violation of rights . . . after written

notice,” id. at 8; Chaplain Thomas “denied [him a] religious diet and materials

on several occasions,” id. at 10; and Officer Zona “continues to harass and

threaten [him],” id. at 11.

Except for the allegation of excessive force by Officer Carmona,3 Plaintiff

offers no facts explaining the various alleged wrongs of which he complains. As

such, his allegations amount to no “more than an unadorned, the-defendant-

unlawfully-harmed-me accusation,” which does not satisfy the federal pleading

standard. See Iqbal, 556 U.S. at 678. See also Tani v. Shelby Cnty., Ala., 511

F. App’x 854, 857 (11th Cir. 2013) (affirming dismissal of a complaint that

3 Even if Plaintiff plausibly states a claim for excessive force against

Officer Carmona, his allegations are vague at best, and his claim is not

properly joined with the other multiple, unrelated claims he attempts to

pursue in his complaint.

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alleged, as labels and conclusions, violations of various constitutional rights

with no supporting facts to “explain what actions caused which violations”).4

Third, the number of Defendants Plaintiff seeks to sue is unclear, and

Plaintiff mentions some individuals as Defendants but lodges no factual

allegations against them or does not clearly identify them (i.e., “unknown

officer” and “Lee”).

Aside from the procedural deficiencies, Plaintiff’s complaint is subject to

dismissal under the PLRA because he fails to “state a claim to relief that is

plausible on its face.” See Iqbal, 556 U.S. at 678. To state a claim under 42

U.S.C. § 1983, a plaintiff must allege that “a person” acting under the color of

state law deprived him of a right secured under the United States Constitution

or federal law. See 42 U.S.C. § 1983. Plaintiff seeks to proceed against

Defendants who are not “persons” under § 1983, including the JSO, the sheriff

in his official capacity, and an attorney. A sheriff’s office or jail facility is not a

legal entity subject to suit under § 1983. See Faulkner v. Monroe Cnty. Sheriff’s

Dep’t, 523 F. App’x 696, 701 (11th Cir. 2013) (citing Dean v. Barber, 951 F.2d

1210, 1214-15 (11th Cir. 1992)). Similarly, a public defender does not act

“under color of state law within the meaning of § 1983.” Polk Cnty. v. Dodson,

4 Any unpublished decisions cited in this Order are deemed persuasive

authority on the relevant point of law. See McNamara v. Gov’t Emps. Ins. Co.,

30 F.4th 1055, 1061 (11th Cir. 2022).

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454 U.S. 312, 321, 325 (1981). Additionally, Plaintiff names as a Defendant an

individual entitled to immunity: Judge Soud. See Dykes v. Hosemann, 776 F.2d

942, 943 (11th Cir. 1985) (per curiam) (“[A] judge enjoys absolute immunity

where he or she had subject matter jurisdiction over the matter forming the

basis for such liability.”).

With respect to Plaintiff’s allegations regarding a slip-and-fall injury and

misdiagnosis, he alleges conduct that is merely negligent. “[T]he bar to proving

an Eighth Amendment deliberate-indifference claim is appropriately high.”

Wade v. McDade, No. 21-14275, 2023 WL 3574362, at *11, --- F.4th --- (11th

Cir. May 22, 2023). Alleging negligence does not meet that bar. See Swain v.

Junior, 961 F.3d 1276, 1285 (11th Cir. 2020) In other words, “deliberate

indifference is not a constitutionalized version of common-law negligence.” Id.

at 1288 (emphasis in original). Accordingly, the failure of jail officials to fix

leaking pipes before puddles accumulate is not an Eighth Amendment

violation. See Coleman v. Sweetin, 745 F.3d 756, 764 (5th Cir. 2014) (“[F]ederal

courts . . . have frequently rejected constitutional claims arising from slip and

fall accidents.” (collecting cases)). See also Atkins v. Sheriff’s Jail Avoyelles

Par., 278 F. App’x 438, 439 (5th Cir. 2008). Similarly, medical malpractice is

not actionable as deliberate indifference. Estelle v. Gamble, 429 U.S. 97, 105-

06 (1976) (“[A] complaint that a physician has been negligent in diagnosing or

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treating a medical condition does not state a valid claim of medical

mistreatment under the Eighth Amendment.”).

With respect to Plaintiff’s allegation that an officer took or destroyed his

personal property, a negligent or intentional deprivation of personal property

does not constitute a Fourteenth Amendment due process violation “if a

meaningful postdeprivation remedy for the loss is available.” Hudson v.

Palmer, 468 U.S. 517, 533 (1984). In Florida, a person whose property has been

wrongfully taken or retained may pursue a state-law claim for theft or

conversion against the offending party. See Fla. Stat. § 772.11(1). See also Case

v. Eslinger, 555 F.3d 1317, 1331 (11th Cir. 2009) (recognizing Florida’s civil

cause of action for conversion provides an adequate postdeprivation remedy

when law enforcement officers allegedly seize or retain personal property);

Lindsey v. Storey, 936 F.2d 554, 561 (11th Cir. 1991) (affirming entry of

summary judgment on the plaintiff’s due process claims because state law and

forfeiture proceedings “provided alternate postdeprivation avenues for

recovery of [the property]”).

With respect to Plaintiff’s allegation that Chaplain Thomas denied him

his religious diet and materials, it appears his claim is based solely on

Chaplain Thomas’s responses to and denial of grievances. See Doc. 1-1 at 10.

But “filing a grievance with a supervisory person does not automatically make

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the supervisor liable for the allegedly unconstitutional conduct brought to light

by the grievance, even when the grievance is denied.” Jones v. Eckloff, No. 2:12-

cv-375-Ftm-29DNF, 2013 WL 6231181, at *4 (M.D. Fla. Dec. 2, 2013) (citing

Gallagher v. Shelton, 587 F.3d 1063, 1069 (10th Cir. 2009)). On his bare

allegations, Plaintiff does not allege facts “showing a ‘substantial burden’ on a

sincerely held religious belief.” See Robbins v. Robertson, 782 F. App’x 794, 801

(11th Cir. 2019).

With respect to Plaintiff’s allegation that Defendant Zona threatened

him with bodily harm for writing complaints, the allegation is conclusory and

devoid of factual enhancement. See Doc. 1-1 at 11, 13. In other words, Plaintiff

alleges no facts permitting the reasonable inference he “suffered adverse action

such that the [official’s] allegedly retaliatory conduct would likely deter a

person of ordinary firmness from engaging in [protected] speech.” See O’Bryant

v. Finch, 637 F.3d 1207, 1212 (11th Cir. 2011) (first alteration in original).

Finally, to the extent Plaintiff attempts to proceed against other

Defendants in their roles as supervisors or grievance responders, his claims

fail. Absent personal participation in an alleged constitutional violation,

liability under § 1983 must be premised on something more than a theory of

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

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

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2010). A claim against a supervisor arises only “when the supervisor personally

participates in the alleged constitutional violation or when there is a causal

connection between actions of the supervising official and the alleged

constitutional deprivation.” Brown v. Crawford, 906 F.2d 667, 671 (11th Cir.

1990) (“It is axiomatic, in [§] 1983 actions, that liability must be based on

something more than a theory of respondeat superior.”). The requisite causal

connection “can be established 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.” See id.; Cottone, 326 F.3d at 1360. Simply responding to

or denying a grievance is not enough. See Jones, 2013 WL 6231181, at *4.

Similarly, to proceed against a municipality, a plaintiff must allege the

existence of a “custom or policy that constituted deliberate indifference to [a]

constitutional right” and that caused a constitutional violation. Moody v. City

of Delray Bch., 609 F. App’x 966, 967 (11th Cir. 2015) (citing McDowell v.

Brown, 392 F.3d 1283, 1290 (11th Cir. 2004)). See also Monell v. N.Y. City Dep’t

of Soc. Servs., 436 U.S. 658, 691 (1978) (holding that § 1983 applies to

municipalities but liability arises only when a “municipal policy of some nature

cause[s] a constitutional tort”).

Not only does Plaintiff fail to allege a plausible claim against any of the

individual Defendants he names, but he does not allege the existence of a

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“custom or policy that constituted deliberate indifference to [a] constitutional

right” and that caused a constitutional violation. See Moody, 609 F. App’x at

967. Rather, his claims are premised on his own experiences. See Grider v.

Cook, 590 F. App’x 876, 882 (11th Cir. 2014) (holding the plaintiff failed to

plead a plausible claim against municipal defendants because his “allegations

involved only . . . himself and not a widespread practice or custom”).

Because Plaintiff fails to state a plausible claim for relief, his complaint

is due to be dismissed, and his request for injunctive relief denied. See Schiavo

ex rel. Schindler v. Schiavo, 403 F.3d 1223, 1225-26 (11th Cir. 2005) (setting

forth the rigorous requirements for injunctive relief, including demonstrating

a likelihood of success on the merits of the underlying claims). To the extent

Plaintiff wants this Court to interfere in his pending criminal proceedings, the

Court will abstain from doing so. “[T]he Supreme Court established that

‘absent extraordinary circumstances federal courts should not enjoin pending

state criminal prosecutions.’” Hughes v. Att’y Gen. of Fla., 377 F.3d 1258, 1262

(11th Cir. 2004) (citing Younger v. Harris, 401 U.S. 37, 41 (1971)). Any

objections Plaintiff has to his arrest or prosecution should be addressed in the

state court through a proper motion or at trial.

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Accordingly, it is

ORDERED:

1. Plaintiff's request for injunctive relief (Doc. 2) is DENIED.

2. Plaintiff's complaint (Doc. 1) is DISMISSED without prejudice

for his failure to state a plausible claim for relief.

3. The Clerk shall enter judgment dismissing this case without

prejudice, terminate any pending motions, and close the file.

DONE AND ORDERED at Jacksonville, Florida, this 30th day of May

2023.

4 ry

Jill) fon

BRIAN/J . DAVIS

United States District Judge

Jax-6

C: Jason Carthy McGhee

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