Tuten v. Nocco

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

TERRY BURDETTE TUTEN,

Plaintiff,

v. Case No: 8:21-cv-2397-WFJ-AAS

CHRIS NOCCO, et al.,

Defendants.

/

ORDER

Plaintiff Terry Burdette Tuten brings this action under 42 U.S.C. § 1983 alleging

that his constitutional right to bodily privacy was violated while he was a pretrial

detainee at the Pasco County Jail when a female visitor to the jail observed an image

of his nude body broadcasted on a video visitation device. He names as defendants

Sheriff Chris Nocco, Home Wav, LLC, (“Home Wav”), and twenty officers of the

Pasco County Sheriff’s Office. Prior orders set forth the legal standards governing Mr.

Tuten’s claims, identified the claims’ deficiencies, and granted Mr. Tuten leave to

amend. (Docs. 9 and 30) Mr. Tuten now proceeds on his Amended Complaint.

(Doc. 37)

Sheriff Nocco moves to dismiss the claim asserted against him in the Amended

Complaint. (Doc. 38) Mr. Tuten opposes the motion to dismiss. (Doc. 44) Because

Mr. Tuten again fails to state a plausible claim against Sheriff Nocco for a violation of

his constitutional right to bodily privacy, the Court dismisses the claim against Sheriff

Nocco with prejudice. Also, the Court sua sponte dismisses with prejudice Mr.

Tuten’s claims against Home Wav and the twenty officers of the Pasco County

Sheriff’s Office.

I. Background

A. Screening of Initial Complaint under 28 U.S.C. § 1915A

A prior screening order under 28 U.S.C. § 1915A set forth the legal standards

governing Mr. Tuten’s claims and identified deficiencies in the initial Complaint.

(Doc. 9) Home Wav was dismissed because Mr. Tuten’s allegation that Home Wav

contracted with the county to provide video visitation services was insufficient to

allege that the private entity acted under color of state law. (Id. at 2–3) The twenty

officers were dismissed because Mr. Tuten neglected to allege a causal connection

between the officers’ conduct and the alleged constitutional violation. (Id. at 3–4)

B. Order Granting Motion to Dismiss Initial Complaint

Sheriff Nocco moved to dismiss the initial Complaint’s remaining claim that he

violated Mr. Tuten’s constitutional right to bodily privacy. (Doc. 22) After explaining

the legal standards governing a motion to dismiss this claim, the Court granted the

motion with leave to amend. (Doc. 30 at 5–12) Mr. Tuten’s claim against Sheriff

Nocco in his official capacity was dismissed because Mr. Tuten failed to allege that an

official policy or custom of the county was the moving force of the alleged

constitutional violation. (Id. at 11) Mr. Tuten’s claim against Sheriff Nocco in his

individual capacity was dismissed because Mr. Tuten failed to allege sufficient facts to

show that Sheriff Nocco personally participated in the alleged constitutional violation

or a causal connection between his actions and the alleged constitutional violation.

(Id. at 8–9)

II. Amended Complaint

Mr. Tuten now proceeds on his Amended Complaint in which he re-alleges that

his constitutional right to bodily privacy was violated. (Doc. 37) He again names as

defendants Sheriff Nocco, Home Wav, and twenty officers of the Pasco County

Sheriff’s Office. (Id. at 2–4) The facts alleged in the Amended Complaint remain

mostly unchanged from those alleged in the initial Complaint.

Mr. Tuten alleges that on November 14, 2020, a female visitor named Carlene

Tommolino was visiting inmate Joey Allen Deese on the Home Wav device at the

Pasco County jail when she saw Mr. Tuten and another inmate, Bruce Rogers, naked

in the background. (Id. at 7) He alleges that “[t]he showers and bathroom are directly

across from where the visitation devices are [located,]” and as a result, there is

“[n]othing blocking the men and women from seeing inmates relieving [themselves]

or [in] different states of undress.” (Id. at 8) He alleges that “[t]his was not a singular

problem,” but rather “an ongoing everyday issue.” (Id. at 7)

According to Mr. Tuten, “twenty dorm officers, including high rank officials,

were made aware of the malfeasance.” (Id.) However, “[n]othing was done to remedy

the issue,” even after he submitted multiple grievances. (Id.) He alleges that “the

curtains provided were not sufficient” because they provided “minimal coverage” and

“were in poor condition all the time.” (Id.) On May 19, 2021, Corporal Castro and

Captain Ceresolei threatened both him and inmate Rogers because their families called

the jail and took screen shots of the visitation devices. (Id.) Mr. Tuten was “written

up for getting changed in the shower area” and “exposing himself” and punished with

15 days of confinement. (Id.)

Mr. Tuten claims that the violation of his privacy caused him humiliation and

embarrassment. (Id. at 6) As a remedy, he seeks to recover nominal fees and

$200,000.00 in punitive damages. (Id.)

III. Analysis

A. Sheriff Nocco

Despite having an opportunity to amend, Mr. Tuten again alleges insufficient

facts in his Amended Complaint to state a plausible claim against Sheriff Nocco.

1. Official Capacity Claim

An official capacity claim is a claim against the entity of which the defendant is

an agent—in this case, Pasco County. See Owens v. Fulton Cnty., 877 F.2d 947, 951 n.5

(11th Cir. 1989) (citations omitted). “A governmental entity is not liable under § 1983,

merely as a matter of respondeat superior, for constitutional injuries inflicted by its

employees.” Brown v. Neumann, 188 F.3d 1290, 1290 (11th Cir. 1999) (citation

omitted). A local government is, however, liable under § 1983 “when execution of a

government’s policy or custom, whether made by its lawmakers or by those whose

edicts or acts may fairly be said to represent official policy, inflicts the injury[.]” Monell

v. Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978).

To attribute liability to Sheriff Nocco in his official capacity under Section 1983,

Mr. Tuten must allege that “the moving force of the constitutional violation” was an

official policy or custom. Vineyard v. County of Murray, Ga., 990 F.2d 1207, 1211 (1993)

(citations omitted). A custom supports municipal liability if it is “a longstanding and

widespread practice.” Brown v. City of Fort Lauderdale, 923 F.2d 1474, 1481 (11th Cir.

1991). “Proof of a single incident of unconstitutional activity is not sufficient to

impose liability against a municipality.” Craig v. Floyd Cnty., Ga., 643 F.3d 1306, 1310

(11th Cir. 2011) (citations omitted). “This requirement of proof prevents the

imposition of liability based upon an isolated incident[.]” Id. (citations omitted).

First, Sheriff Nocco correctly argues that dismissal is warranted because Mr.

Tuten fails to allege a constitutional injury. “[I]t is well established that convicted

prisoners do not forfeit all constitutional protections by reason of their conviction and

confinement in prison.” Fortner v. Thomas, 983 F.2d 1024, 1029 (11th Cir. 1993)

(citations omitted). “[P]risoners retain a constitutional right to bodily privacy.” Id. at

1030. And, “absent a legitimate reason, [prisoners] maintain . . . the right not to have

their genitals exposed to onlookers.” Mitchell v. Stewart, 608 F. App’x 730, 735 (11th

Cir. 2015). However, an involuntary exposure does not automatically constitute a

constitutional violation. See Fortner, 983 F.2d at 1030. The Court considers whether

a legitimate law enforcement purpose exists for the involuntary exposure. See id.

(“When a prison regulation or policy impinges on inmates’ constitutional rights, the

regulation is valid if it is reasonably related to legitimate penological interests.”)

(quotations omitted). Furthermore, “[t]he cases in this Circuit that have found a

violation of a right to bodily privacy have uniformly held that the violation occurred

when the officers caused the pretrial detainee or inmate to be exposed and engaged in

some additionally offensive conduct[,]” such as when “officers solicited them to

masturbate and otherwise exhibit their genitals for the . . . officers’ viewing.” See Davis

v. City of Leesburg, No. 5:12-cv-609, 2014 WL 4926143, at *20 (M.D. Fla. Sept. 30,

2014).

Mr. Tuten alleges that his nude body was observed by one female visitor on a

video visitation device on one occasion. (Doc. 37 at 7) He does not allege “some

additionally offensive conduct” occurred at the time his nude body was observed, such

as that this viewing was intentional, solicited, or compelled. He alleges that “this” was

“an ongoing every day issue,” but he does not support this vague allegation with any

details to show that any visitor viewed his nude body on another occasion. (Id.) He

vaguely alleges that “[n]othing block[s] the men and women from seeing inmates

relieving [themselves] or [in] different states of undress,” but he does not allege that

Sheriff Nocco or any prison staff viewed his nude body. (Id. at 8) His allegation of a

single involuntary exposure to a visitor is insufficient to state a claim for a violation of

his constitutional right to bodily privacy. See Craig, 643 F.3d at 1310.

Next, Sheriff Nocco correctly argues that dismissal is warranted because Mr.

Tuten fails to allege that the alleged constitutional injury was caused by a policy,

custom, or widespread practice of the Pasco County Sheriff’s Office. Mr. Tuten

neglects to identify any policy, custom, or widespread practice of the Pasco County

Sheriff’s Office that caused the alleged constitutional injury. He alleges a single,

isolated incident on November 14, 2020, when a female visitor observed his nude body

on a video visitation device. He neglects to allege that his nude body was observed by

a female visitor on multiple occasions or that other nude inmates were observed by

visitors on prior occasions giving rise to a persistent and widespread practice.

Therefore, he fails to allege an unconstitutional custom or widespread practice. See

Paylan v. Bondi, No. 8:15-cv-1366, 2017 WL 9398657, at *25 (M.D. Fla. Feb. 28, 2017)

(ruling that a claim for violation of bodily privacy against the sheriff was facially

insufficient because the prisoner failed to allege “any prior, similar civil rights

violations”). Accordingly, Mr. Tuten’s claim against Sheriff Nocco in his official

capacity must be dismissed.

Additionally, to the extent Mr. Tuten seeks punitive damages from Sheriff

Nocco in his official capacity, such claim must be dismissed. Government officials

“are immune from punitive damages under 42 U.S.C. § 1983.” City of Newport v. Fact

Concerts, Inc., 453 U.S. 247, 271 (1981).

2. Individual Capacity

Mr. Tuten alleges no facts to show Sheriff Nocco was personally involved in the

November 14, 2020, incident when his nude body was observed by a female visitor.

Rather, it appears that Mr. Tuten sues Sheriff Nocco in his individual capacity for his

conduct in facilitating the installation and use of video visitation services at the Pasco

County Jail.

Sheriff Nocco correctly argues that he is entitled to qualified immunity from the

claim against him in his individual capacity. “Questions of qualified immunity should

be resolved at the earliest possible stage in the litigation. A district court should

therefore grant the defense of qualified immunity on a motion to dismiss if the

complaint fails to allege the violation of a clearly established constitutional right.”

Dalrymple v. Reno, 334 F.3d 991, 994–95 (11th Cir. 2003) (quotations omitted).

To overcome a qualified immunity defense, the plaintiff must show that the

defendant violated a constitutional right, and that the violated right was clearly

established. Paez v. Mulvey, 915 F.3d 1276, 1284 (11th Cir. 2015). “[A] right may be

clearly established for qualified immunity purposes in one of three ways: (1) case law

with indistinguishable facts clearly establishing the constitutional right; (2) a broad

statement of principle within the Constitution, statute, or case law that clearly

establishes a constitutional right; or (3) conduct so egregious that a constitutional right

was clearly violated, even in the total absence of case law.” Pullen v. Osceola Cnty., 861

F. App’x 284, 290 (11th Cir. 2021).

Mr. Tuten fails to allege the violation of a clearly established constitutional

right. It is not clearly established that an inmate’s constitutional right to bodily privacy

is violated when one individual of the opposite sex observes an inmate’s nude body

one time. And, as previously explained, Mr. Tuten fails to allege “some additionally

offensive conduct” occurred at the time his nude body was observed. Sheriff Nocco is

entitled to qualified immunity from the claim for a violation of Mr. Tuten’s

constitutional right to bodily privacy.

Despite having an opportunity to amend after the Court set forth the applicable

legal standards, Mr. Tuten’s claim suffers from the same deficiencies identified by the

Court in its prior order. (Doc. 30 at 5–12) Accordingly, the claim against Sheriff

Nocco must be dismissed with prejudice. See Woldeab v. Dekalb Cty. Bd. of Educ., 885

F.3d 1289, 1291 (11th Cir. 2018) (“Where a more carefully drafted complaint might

state a claim, a plaintiff must be given at least one chance to amend the complaint

before the district court dismisses the action with prejudice.”).

B. Home Wav

In its prior screening order, the Court explained the legal standard it applies to

screen civil suits brought by prisoners seeking redress from a governmental entity

under 28 U.S.C. § 1915(A). (Doc. 9 at 2–3) The Court dismissed Mr. Tuten’s claim

against Home Wav because his mere allegation that Home Wav contracted with the

county to provide video visitation services was insufficient to allege that the private

entity acted under color of state law. (Id. at 2–3)

Mr. Tuten again alleges insufficient facts in his Amended Complaint to state a

plausible claim against Home Wav for a violation of his constitutional right to bodily

privacy. In fact, the factual allegations against Home Wav remain unchanged from

the initial Complaint. Because Mr. Tuten again fails to allege sufficient facts to

establish that Home Wav acted under color of state law, his claim against this

defendant must be dismissed with prejudice. See Focus on the Fam. v. Pinellas Suncoast

Transit Auth., 344 F.3d 1263, 1278 (11th Cir. 2003) (explaining that “the mere fact that

a private actor contracts with a governmental entity does not mean that every action

taken by the private actor can be attributed to the government”); Woldeab, 885 F.3d at

1291.

C. Twenty Officers of the Pasco County Sheriff’s Office

In its prior screening order, the Court dismissed Mr. Tuten’s claims against the

twenty officers of the Pasco County Sheriff’s Office because Mr. Tuten neglected to

allege sufficient facts to show a causal connection between the officers’ conduct and

the alleged constitutional violation. (Doc. 9 at 3–4)

Mr. Tuten again alleges insufficient facts in his Amended Complaint to state a

plausible claim against these defendants. His only allegations aimed at the officers are

that (1) “twenty dorm officers, including high rank officials, were made aware of the

malfeasance,” (2) Corporal Castro and Captain Ceresolei threatened him because his

family called the jail, and (3) and he was punished for exposing himself. (Civ. Doc.

37 at 7) Accepting these vague allegations as true, they do not support an inference

that the officers placed the video devices in an area that allowed visitors to see in the

shower area or have the authority to remedy the issue and did not do so. Furthermore,

the allegations are too vague “to raise a right to relief above the speculative level.” Bell

Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). “Conclusory allegations, unwarranted

factual deductions or legal conclusions masquerading as facts will not prevent

dismissal.” Davila v. Delta Air Lines, Inc., 326 F.3d 1183, 1185 (11th Cir. 2003)).

Because Mr. Tuten again fails to allege sufficient facts to show a causal connection

between the officers’ conduct and the alleged constitutional violation, his claims

against the officers must be dismissed with prejudice. See Woldeab, 885 F.3d at 1291.

IV. Conclusion

Accordingly, it is ORDERED that:

1. Defendant Sheriff Nocco’s Motion to Dismiss the Amended Complaint

(Doc. 38) is GRANTED. Mr. Tuten’s claim against Sheriff Nocco for

violating his constitutional right to bodily privacy is DISMISSED WITH

PREJUDICE.

2. Mr. Tuten’s claims against Home Wav and the twenty officers of the Pasco

County Sheriff's Office for violating his constitutional right to bodily privacy

are DISMISSED WITH PREJUDICE under 28 U.S.C. § 1915(A)(b) and

28 U.S.C. § 1915(e)(2)(B).

3. The Clerk is directed to CLOSE this case.

DONE and ORDERED in Tampa, Florida on August 7, 2023.

EE:

UNITED STATES DISTRICT JUDGE

Copies furnished to:

Counsel of Record

Unrepresented Party

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