The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
KENNETH JAMAL SHERMAN,
Plaintiff,
v.
Case No. 3:23-cv-892-BJD-MCR
N.P. SPITZER, et al.,
Defendants.
_______________________________
ORDER
Plaintiff, Kenneth Jamal Sherman, an inmate of the Florida penal
system, initiated this action by filing a pro se complaint for the violation of civil
rights under 42 U.S.C. § 1983 (Doc. 1) and a motion to proceed in forma
pauperis (IFP) (Doc. 2).1 Finding his complaint deficient, the Court directed
Plaintiff to amend his claims. See Order (Doc. 4). The Court advised Plaintiff
that supervisory officials cannot be held vicariously liable under § 1983 for the
unconstitutional acts of their subordinates. See id. at 3.
Plaintiff has filed an amended complaint (Doc. 6), which is before the
Court for screening under the Prison Litigation Reform Act (PLRA). See 28
U.S.C. §§ 1915(e)(2)(B), 1915A(b)(1) (requiring a district court to dismiss a
1 Plaintiff filed a second application to proceed IFP with his amended complaint
(Doc. 7). The Court will rule on the motion to proceed IFP by separate Order.
complaint, or any portion thereof, if the court determines it is frivolous,
malicious, or fails to state a claim on which relief may be granted). In his
amended complaint, Plaintiff alleges an officer at Columbia Correctional
Institution (CCI), Sergeant N.P. Spitzer, used excessive force against him on
February 24, 2023. See Doc. 6 at 3-5. He names three other Defendants, none
of whom were involved in or present for the use-of-force incident: Warden Polk;
the Assistant Warden of CCI; and Ricky Dixon, the Secretary of the Florida
Department of Corrections. Id. at 2-3. According to Plaintiff, the latter three
Defendants “failed to protect [him] and do a real investigation on [his] . . .
grievances.” Id. at 4.
As Plaintiff was advised, liability under § 1983 may not be based on a
theory of vicarious liability. 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). In other words, a claim under § 1983 must be based on
something more than “the mere fact that [a supervisor] employed [an]
offending official.” City of Oklahoma City v. Tuttle, 471 U.S. 808, 810 (1985). A
claim against a supervisor may proceed 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.
2
1990). A causal connection can be established when a supervisor knows a
subordinate will act unlawfully or adopts a policy that results in deliberate
indifference to an inmate’s constitutional rights. Id.
A supervisor also cannot be held liable under § 1983 simply for having
received and responded to a prisoner’s grievance. Jones v. Eckloff, No. 2:12-cv-
375-Ftm-29DNF, 2013 WL 6231181, at *4 (M.D. Fla. Dec. 2, 2013) (“[F]iling a
grievance with a supervisory person does not automatically make the
supervisor liable for the allegedly unconstitutional conduct brought to light by
the grievance, even when the grievance is denied.” (citing Gallagher v. Shelton,
587 F.3d 1063, 1069 (10th Cir. 2009))).
Upon review of Plaintiff’s amended complaint, it is apparent he seeks to
proceed against Warden Polk, the Assistant Warden of CCI, and Secretary
Dixon on a theory of vicarious liability or in their roles as grievance responders.
See Doc. 6 at 4-5. He does not allege facts demonstrating a causal connection
between their actions or inactions and an alleged constitutional deprivation.
See Cottone, 326 F.3d at 1360. For instance, he does not allege they knew
Defendant Spitzer would act unlawfully or adopted a policy that resulted in
deliberate indifference to his constitutional rights. See Brown, 906 F.2d at 671.
Accordingly, Plaintiff’s claims against these three Defendants will be
3
dismissed for his failure to state a plausible claim against them. The excessive
force claim against Defendant Spitzer will proceed at this juncture.
Accordingly, it is
ORDERED:
1. Plaintiffs claims against Warden Polk, the Assistant Warden of
CCI, and Secretary Dixon are DISMISSED without prejudice. The Clerk
shall terminate Defendants Warden Polk, the Assistant Warden of CCI, and
Secretary Dixon as parties to this action.
2. The Court discharges the Order to Show Cause (Doc. 5).
DONE AND ORDERED at Jacksonville, Florida, this 19th day of
December 20238.
4 ry
Jill) fon
BRIAN/J . DAVIS
United States District Judge
Jax-6
C:
Kenneth Jamal Sherman