Sherman v. Baker

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

KENNETH SHERMAN,

Plaintiff,

v.

Case No. 3:23-cv-653-MMH-LLL

KATRINA BAKER, et al.,

Defendant.

___________________________

ORDER OF PARTIAL DISMISSAL WITHOUT PREJUDICE

Plaintiff Kenneth Sherman, an inmate of the Florida penal system,

initiated this action by filing a pro se Civil Rights Complaint (Doc. 1) under 42

U.S.C. § 1983. He is proceeding in forma pauperis. Doc. 6.

In the Complaint, Sherman names three Defendants – Correctional

Officer Katrina Baker, the Department of Corrections, and Secretary Ricky

Dixon. Doc. 1 at 2-3. Sherman alleges that on November 12, 2022, while housed

at Columbia Correctional Institution, Defendant Baker slapped him in the face

three times and then handcuffed him before continuing to hit him in the face,

elbows, and neck. Id. at 5. Sherman contends Baker’s use of force resulted in

scratches and bruises on his legs and face. Id. According to Sherman, Baker’s

conduct amounted to an excessive use of physical force in violation of his rights

under the Eighth Amendment. Id. at 4. As relief, Sherman requests one million

dollars and asks that the Department of Corrections investigate his allegations

and prohibit Baker from being near Sherman. Id. at 5.

The Prison Litigation Reform Act (PLRA) 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. See 28

U.S.C. §§ 1915(e)(2)(B); 1915A. “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 to state a claim on which relief may be granted,” the language of the

PLRA mirrors the language of Rule 12(b)(6), Federal Rules of Civil Procedure,

and therefore courts apply the same standard in both contexts.1 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); Richardson v.

Johnson, 598 F.3d 734, 737 (11th Cir. 2010) (per curiam). 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

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,

1 “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)).

705 (11th Cir. 2010). Nonetheless, the plaintiff still must meet some minimal

pleading requirements. Jackson v. BellSouth Telecomms., 372 F.3d 1250,

1262-63 (11th Cir. 2004). 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” (original alteration

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.

The Court must read Sherman’s pro se allegations in a liberal fashion.

Haines v. Kerner, 404 U.S. 519 (1972). 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 the court a 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).

Liberally read, Sherman’s Complaint fails to state a plausible § 1983

claim against the Department of Corrections and Dixon. As to the Department

of Corrections, state and governmental entities that are considered “arms of

the state” are not “persons” subject to liability for purposes of a § 1983 action.

Will v. Michigan Dep’t of State Police, 491 U.S. 58, 70 (1989). The Department

of Corrections is an arm of the executive branch of the state government, see

Fla. Stat. § 20.315, and thus is not a person for purposes of § 1983. To the

extent that Sherman predicates liability on the Department of Corrections as

a governmental entity, the Department of Corrections may be liable under §

1983 for failing to train its employees if: (1) the Department of Corrections

inadequately trains or supervises its employees; (2) this failure to train or

supervise is a policy of the Department of Corrections; and (3) that policy

causes the employees to violate a person’s constitutional rights. See Gold v.

City of Miami, 151 F.3d 1346, 1350 (11th Cir. 1998) (citing City of Canton v.

Harris, 489 U.S. 378, 385 (1989)). Because a governmental entity will rarely

have an express policy of inadequately training or supervising its employees,

a plaintiff may prove such a policy by showing that the entity’s failure to train

or supervise evidenced a deliberate indifference to the rights of its citizens.

Gold, 151 F.3d at 1350. “To establish a ‘deliberate or conscious choice’ or such

‘deliberate indifference,’ 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.” Id. A claim

about an isolated incident generally cannot sustain a claim for failure to train;

rather, there must be evidence “of a history of widespread prior abuse” such

that the Department of Corrections was “on notice of the need for improved

training or supervision.” Wright v. Sheppard, 919 F.2d 665, 674 (11th Cir.

1990); see also Popham v. City of Talladega, 908 F.2d 1561, 1564-65 (11th

Cir.1990) (finding no liability for failure to train when no pattern of incidents

put the city on notice of a need to train). Here, Sherman fails to adequately

allege a failure to train claim against the Department of Corrections as a

governmental entity, because his allegations concern an isolated incident with

no assertions supporting the type of persistent abuse that would put the

Department on notice of a need to correct the error.

Likewise, if Sherman is trying to hold Defendant Dixon liable based on

the theory of respondeat superior, supervisory officials cannot be held

vicariously liable under § 1983 for the unconstitutional acts of their

subordinates. 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.

2010). Instead, a supervisor can be liable only when that supervisor “personally

participates in the alleged unconstitutional conduct or when there is a causal

connection” between the supervisor’s actions and the constitutional

deprivation. Id. Because Sherman does not allege that Dixon personally

participated in any unconstitutional conduct, the viability of his supervisory

claim depends on whether he plausibly alleges a causal connection between

Dixon’s actions and the alleged constitutional deprivation.

Sherman may establish the requisite causal connection 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, and he [or she] fails to

do so”; (2) “when a supervisor’s custom or policy . . . result[s] in deliberate

indifference to constitutional rights”; or (3) “when facts support an inference

that the supervisor directed the subordinates to act unlawfully or knew that

the subordinates would act unlawfully and failed to stop them from doing so.”

Id. (internal citations and quotation marks omitted).

Sherman does not allege facts establishing a causal connection. For

instance, he does not allege a history of widespread abuse, nor does he allege

that Dixon knew of a need to train his subordinates and failed to do so. Dixon

also does not allege that his injuries stemmed from a prison custom or policy.

Thus, Sherman has failed to state a claim against Dixon.

Sherman’s Eighth Amendment excessive use of force claim against

Defendant Baker will proceed.

Accordingly, it is

ORDERED AND ADJUDGED:

1. The claims against Defendant Department of Corrections and

Defendant Ricky Dixon are DISMISSED without prejudice. The Clerk

shall terminate them as Defendants in this case.

2. Sherman’s Eighth Amendment excessive use of force claim against

Defendant Katrina Baker will proceed. A separate Order will enter regarding

service of process on the remaining Defendant.

DONE AND ORDERED at Jacksonville, Florida, this 20th day of July,

2023.

United States District Judge

Jax-7

C: Kenneth Sherman, #130883