Hanner v. Thomson

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

FORT MYERS DIVISION

TIMOTHY HANNER,

Plaintiff,

v. Case No: 2:22-cv-810-JES-KCD

JAMES THOMPSON,1 C. GARROW,

and E. SWAT,

Defendants.

/

OPINION AND ORDER

Plaintiff Timothy Hanner, a prisoner of the Florida

Department of Corrections, initiated this action by filing a pro

se civil rights complaint generally alleging that the deliberate

indifference of two corrections officers and a mental health

provider at Charlotte Correctional Institution led to his suicide

attempt. (Doc. 1). The Court now considers a motion to dismiss

filed by Defendants Garrow and Swat. (Doc. 27). Hanner responded

to the motion (Doc. 29), and it is ripe for review.

After carefully considering the pleadings, the Court grants

the defendants’ motion to dismiss. Hanner may file an amended

complaint if he wishes to proceed in this action.

1

Hanner has identified this defendant as “J. Thomson.” (Doc.

1 at 3). The defendants note that the correct name of this

defendant is Dr. James Thompson. (Doc. 27 at 1).

I. Pleadings

A. Complaint

Hanner asserts the following facts in his complaint:2 On May

5, 2022, Hanner awoke after experiencing a night of severe

psychological distress and nightmares. (Doc. 1 at 5, ¶ 1). At

10:25 a.m., he informed Officer Colls of his psychological

emergency and suicidal thoughts. (Id. ¶ 3). At 11:00, Officer

Colls pulled Hanner from his cell to speak with a mental health

counselor, Defendant Thompson. (Id. ¶ 5). Hanner spoke with

Defendant Thompson for 20 to 30 minutes. (Id. at 5–6, ¶ 5). He

informed Defendant Thompson that he wanted to kill himself. (Id.

¶ 6). Defendant Thompson left the room, spoke to an officer, and

walked out of the wing. (Id. ¶ 7). Officer Colls then placed

Hanner in the shower and took all of his clothing except his

boxers. (Id. ¶ 8).

At about 12:00 p.m., two different officers took Hanner from

the shower, placed him in hand restraints, and put him back in his

cell without first doing a cell search. (Doc. 1 at 6, ¶ 9). At

approximately 1:16 p.m., Defendant Officer Garrow conducted a

security check. (Id. ¶ 11). Hanner attempted to tell Defendant

Garrow that he had a ”psychological emergency causing suicidal

thoughts,” but the officer “just kept walking.” (Id. at 7, ¶ 11).

2

At this stage of litigation, Hanner’s factual allegations

(but not his legal conclusions) are accepted as true.

Defendant Garrow conducted another security check at 2:01 p.m.,

and Hanner asked him to summon help for his mental health issues

and suicidal thoughts. (Id. ¶ 12). Defendant Garrow told him

that “he has other things to tend to besides [Hanner’s] emergency,”

and left the wing. (Id.)

At some unspecified time, Defendant Swat conducted a daily

inspection with a lieutenant. (Doc. 1 at 7, ¶ 13). Hanner stopped

him to declare a psychological emergency due to suicidal thoughts,

but Defendant Swat “did not follow policy or procedures.” (Id.)

At about 2:54 p.m., Officer Colls approached Hanner’s cell,

and Hanner’s cellmate told him that he (Hanner) was trying to cut

himself with a razor. (Doc. 1 at 7, ¶ 15). Officer Colls left

the wing. (Id.) At 3:00 p.m., Hanner’s cellmate began kicking

the door to get help because Hanner was trying to cut the veins in

his arm. (Id. ¶ 15). Security cuffed Hanner and placed him in

the shower until medical and mental health services arrived. (Id.

at 8, ¶ 16). The injury on Hanner’s left arm was cleaned, Hanner

was re-evaluated by mental health, and he was placed on S.H.O.S.

status. (Id. ¶ 17).

Hanner lists two separate claims in his complaint (Count One

and Count Two). He asserts that the defendants were deliberately

indifferent to a risk of serious harm when they: (1) failed to

protect Hanner from his self-inflicted harm; and (2) failed to

contact the mental health department after Hanner alerted them to

his suicidal thoughts. (Doc. 1 at 8–9).3 He also asserts that

Defendant Thompson should have reported Hanner’s suicidal thoughts

to a psychiatrist. (Id. at 9, ¶ 13). Hanner seeks both

compensatory and punitive damages. (Id. at 11).

B. Motion to Dismiss

Defendants Garrow and Swat have filed a motion to dismiss.

(Doc. 27). They argue that Hanner provides only a “threadbare

description of the event” and “does not provide details of the

interactions with Defendants Swat and Garrow.” (Id. at 5). They

assert that Hanner has not stated a claim against either officer,

and that the scant facts alleged are “insufficient to provide proof

of [a] causal connection[.]” (Id. at 5). In sum, they argue:

Here, while difficult to infer the entirety of

the event, the Plaintiff’s Complaint seems to

take issue with the medical treatment or

assessment that he received from Dr. Thompson.

As it relates to Defendants Garrow and Swat,

there are no facts to support that either

Defendant had an independent knowledge of

Plaintiff’s suicidal tendencies or that either

had a reason to disagree with the already

completed medical assessment by a medical

professional, if the Defendants were aware. As

the Complaint is factually threadbare for

Defendants Swat and Garrow, it is difficult to

discern if there was any additional knowledge

of Plaintiff’s mental health history or recent

treatment. On the face of the Complaint,

Plaintiff does not provide factual information

to support the actions of Defendants Swat and

3

The Eleventh Circuit has held that “[a]cting with deliberate

indifference to a serious medical need is a separate claim from

acting with deliberate indifference to a known risk of suicide.”

Jackson v. West, 787 F.3d 1345, 1358 (11th Cir. 2015).

Garrow being deliberately indifferent to

Plaintiff’s previously addressed medical

needs. Accordingly, the Complaint should be

dismissed.

(Doc. 27 at 8). The defendants also argue that—to the extent

Hanner raises official-capacity claims—Defendants Swat and Garrow

are immune from suit. (Id. at 8–9). Finally, they argue that the

officers are entitled to qualified immunity on Hanner’s

individual-capacity claims. (Id. at 9–10).

In his response to the motion to dismiss, Hanner repeats his

factual allegations and generally denies that the defendants are

entitled to dismissal of this action. (Doc. 29).

II. Standards of Review

A. Motion to Dismiss

In evaluating a motion to dismiss, this Court accepts as true

all allegations in the complaint and construes them in the light

most favorable to the plaintiff. Jackson v. BellSouth Telecomms.,

372 F.3d 1250, 1262–63 (11th Cir. 2004). Further, this Court

favors the plaintiff with all reasonable inferences from the

allegations in the complaint. Stephens v. Dep’t of Health & Human

Servs., 901 F.2d 1571, 1573 (11th Cir. 1990) (“On a motion to

dismiss, the facts stated in [the] complaint and all reasonable

inferences therefrom are taken as true.”). However, the Supreme

Court has explained that factual allegations must be more than

speculative:

While a complaint attacked by a Rule 12(b)(6)

motion to dismiss does not need detailed

factual allegations, 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.

Factual allegations must be enough to raise a

right to relief above the speculative level.

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal

citations and quotation marks omitted). Further, courts are not

“bound to accept as true a legal conclusion couched as a factual

allegation.” Papasan v. Allain, 478 U.S. 265, 286 (1986).

In Ashcroft v. Iqbal, 556 U.S. 662 (2009), the Supreme Court,

referring to its earlier decision in Twombly, set forth a two-

pronged approach to evaluate motions to dismiss. First, a

reviewing court determines whether a plaintiff’s allegation is

merely an unsupported legal conclusion that is not entitled to an

assumption of truth. Next, it determines whether the complaint’s

factual allegations state a claim for relief that is plausible on

its face. Iqbal, 556 U.S. at 678–79. Evaluating a complaint

under Rule 12(b)(6) is “a context-specific task that requires the

reviewing court to draw on its judicial experience and common

sense.” Id. at 679.

B. Deliberate Indifference (Known Risk of Suicide)

To state a claim for deliberate indifference to a known risk

of suicide, Hanner must plausibly allege that the defendants had:

“(1) subjective knowledge of a risk of serious harm; [and] (2)

disregard[ed] that risk; (3) by conduct that is more than mere

negligence.” Cook ex rel. Estate of Tessier v. Sheriff of Monroe

Co., Fla., 402 F.3d 1092 (11th Cir. 2005) (internal quotation

omitted). The Cook court explained:

Under this Circuit's precedent, in a prison

suicide case, deliberate indifference

requires that the defendant deliberately

disregard “a strong likelihood rather than a

mere possibility that the self-infliction of

harm will occur.” Id. at 986 (emphasis in

original)(quoting Popham v. City of Talladega,

908 F.2d 1561, 1563 (11th Cir. 1990)). “[T]he

mere opportunity for suicide, without more, is

clearly insufficient to impose liability on

those charged with the care of prisoners.” Id.

(quoting [Tittle v. Jefferson Cty. Comm'n, 10

F.3d 1535, 1540 (11th Cir. 1994))].

Cook, 402 F.3d at 1115 (third alteration in original, emphasis in

original). Importantly, “[a]bsent [a defendant’s] knowledge of a

detainee's suicidal tendencies, . . . [his] failure to prevent

suicide has never been held to constitute deliberate

indifference.” Popham, 908 F.2d at 1564 (ellipsis in original).

To be deliberately indifferent to a “strong likelihood” that the

prisoner may commit suicide, “the official must be subjectively

aware that the combination of the prisoner's suicidal tendencies

and the feasibility of suicide in the context of the prisoner's

surroundings creates a strong likelihood that the prisoner will

commit suicide.” Gish v. Thomas, 516 F.3d 952, 955 (11th Cir.

2008). Thus, the court must assess the claims against each

individual Defendant “separately and on the basis of what that

person knows.” Burnette v. Taylor, 533 F.3d 1325, 1331 (11th Cir.

2008).

C. Deliberate Indifference (Serious Medical Need)

To state an Eighth Amendment claim for deliberate

indifference to a serious medical need, a prisoner must allege

plausible facts showing that: “(1) he had a serious medical need;

(2) the defendants acted with deliberate indifference to that need;

and (3) the defendants' indifference caused his injury.” DiPietro

v. Medical Staff at Fulton Cnty. Jail, 805 F. App'x 793, 795 (11th

Cir. 2020). With respect to the second element, Hanner must allege

that the defendant: (1) had subjective knowledge of a risk of

serious harm; and (2) disregarded that risk; by (3) displaying

conduct that went beyond gross negligence. Pourmoghani-Esfahani

v. Gee, 625 F.3d 1313, 1317 (11th Cir. 2010).

III. Discussion

As an initial matter, Hanner does not state whether he sues

the defendants in their individual or official capacities.

Official-capacity claims are “only another way of pleading an

action against an entity of which an officer is an agent.”

Kentucky v. Graham, 473 U.S. 159, 165–66 (1985) (quoting Monell v.

Dep’t of Soc. Servs., 436 U.S. 658, 690 n.55 (1978)). Thus,

Hanner’s official-capacity claims against the defendants—all of

whom are employed by the Florida Department of Corrections

(“FDOC”)—are essentially claims against the FDOC.

The Eleventh Amendment generally bars suits for damages by an

individual against a state, its agencies, and its employees, unless

Congress has abrogated the state’s sovereign immunity or the state

has consented to suit. Schultz v. Alabama, 42 F.4th 1298, 1314

(11th Cir. 2022). Congress has not abrogated the states’

sovereign immunity in damages actions under section 1983. Will

v. Mich. Dep’t of State Police, 491 U.S. 58, 67–68 (1989). Because

the FDOC is entitled to Eleventh Amendment immunity, Hanner’s

official-capacity claims are dismissed. See Leonard v. Fla. Dep’t

of Corr., 232 F. App’x 892, 894 (11th Cir. 2007) (“The Department

of Corrections is not amenable to suit because it has immunity

under the Eleventh Amendment.” (citing Stevens v. Gay, 864 F.2d

113, 115 (11th Cir. 1989))); 28 U.S.C. § 1915(e)(2)(B)(ii).

Therefore, the Court treats the claims raised in Hanner’s complaint

as individual-capacity claims.

A. Hanner has not stated a plausible claim against

Defendant Swat.

Hanner mentions Defendant Swat only once in the fact section

of his complaint. There, he asserts the following:

Sgt. Swat conduct daily inspection with a

[Lieutenant] which I stop him [and declare]

psychological emergency due to suicidal

thoughts which he also did not follow policy

or procedures. Sgt. Swat action makes him

liable to my physical injuries.

(Doc. 1 at 7, ¶ 13). Although 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), the scant allegations

here do not state a deliberate indifference claim against Defendant

Swat. Hanner provides a chronological timetable of what occurred

between 10:25 a.m., when he told Officer Colls of his suicidal

thoughts, and 3:00 p.m. when he attempted to cut himself. (Doc.

1 at 5–7). However, he does not say when he spoke to Defendant

Swat, what he said to him, or what Defendant Swat actually said or

did in response. And while Hanner states that Defendant Swat “did

not follow policy or procedures,” he does not identify the

procedures Defendant Swat allegedly should have followed or

alleged any of the elements of a deliberate indifference claim.

Despite making the vague allegation that he alerted this defendant

to “suicidal thoughts,” the complaint contains no factual

allegations from which to draw an inference that Defendant Swat

even heard him, much less knew of a “strong likelihood” that Hanner

would attempt suicide in the near future.4

Therefore, Hanner has alleged only the “sheer possibility” of

unlawful activity by Defendant Swat. Iqbal, 556 U.S. at 678. But

4

And as to the medical deliberate indifference count against

Defendants Swat and Garrow, it appears from the complaint that

Hanner did receive mental health counseling from Defendant

Thompson earlier on the same day and was removed from his cell for

a period of time. That Defendant Thompson may have underestimated

the seriousness of Hanner’s medical emergency is a claim for, at

most, medical malpractice against Defendant Thompson. Hanner has

not alleged facts showing that the alleged lack of treatment can

be attributed to Defendants Swat or Garrow.

to survive a motion to dismiss, he must provide more than “labels

and conclusions” or a “formulaic recitation of the elements of a

cause of action.” Twombly, 550 U.S. at 555. Rather, the

allegations in Hanner’s complaint must “contain sufficient factual

matter, accepted as true, to state a claim to relief that is

plausible on its face.” Iqbal, 556 U.S. at 678 (internal quotation

omitted). Here, Hanner’s conclusory allegations are the kind of

“naked assertions devoid of further factual enhancement” that are

insufficient to avoid dismissal under Iqbal. Id. (quotations and

alteration omitted); see also Oxford Asset Mgmt. v. Jaharis, 297

F.3d 1182, 1188 (11th Cir. 2002) (“conclusory allegations,

unwarranted deductions of facts or legal conclusions masquerading

as facts will not prevent dismissal” under Rule 12(b)(6)). The

claims against Defendant Swat are, therefore, dismissed for

failure to state a claim upon which relief may be granted. Fed.

R. Civ. P. 12(b)(6).

B. Hanner has not stated a plausible claim against

Defendant Garrow.

Hanner’s factual allegations against Defendant Garrow are

only slightly more robust than those against Defendant Swat.

Hanner asserts that Defendant Garrow conducted a security check at

around 1:16 p.m., and that he (Hanner) “tried” to stop him to tell

him about a psychological emergency, but the Defendant “just kept

walking, delaying and denying help to a serious need.” (Doc. 1

at 6–7, ¶ 11). He asserts that Officer Garrow conducted another

security check 45 minutes later, and Hanner told him to get help

for his “mental health issues of suicide,” but Defendant Garrow

told him that he had “other things to tend to.” (Id. at 7, ¶ 12).

While Hanner asserts that he told (or tried to tell) Officer

Garrow of his mental health issues, he does not state what he

actually said to Defendant Garrow or explain how the words (if

any) exchanged between the two was sufficient to alert Defendant

Garrow to a “strong likelihood” that Hanner would attempt suicide

in the near future. In other words, Hanner has not stated a

plausible deliberate indifference claim against Defendant Garrow

for his failure to stop his suicide attempt, and the claims against

him are dismissed. Fed. R. Civ. P. 12(b)(6).

C. Hanner has not stated a plausible claim against

Defendant Thompson.5

Hanner asserts that, after he told Officer Colls of his

psychological emergency, he was “pulled” to speak with mental

health counselor, Defendant Thompson. (Doc. 1 at 5–6, ¶¶ 4–5).

He said that he spoke with Defendant Thompson for 20 to 30 minutes

5

Defendant Thompson has not yet been served with process,

and he has not filed a motion to dismiss. However, the Court

briefly considers the allegations against Defendant Thompson to

determine whether Hanner has stated a cognizable claim. Under 28

U.S.C. § 1915A, a court is required to review “a complaint in a

civil action in which a prisoner seeks redress from a governmental

entity or officer or employee of a governmental entity.” 28 U.S.C.

§ 1915A(a). The reviewing court must dismiss any portion of the

complaint that “is frivolous, malicious, or fails to state a claim

upon which relief may be granted[.]” Id. § 1915A(b)(1).

and “express[ed] to him of my suicide thoughts and the cause of

those thoughts and I want help so I do not act upon the thoughts.

I told him I wanna kill myself.” (Id. at 6, ¶ 6). He states that

Defendant Thompson spoke to an officer, and Hanner was then placed

in the shower wearing only boxers. (Id. ¶ 8).

From Hanner’s allegations, it is clear that Defendant

Thompson did not ignore Hanner’s mental health issues. He spoke

with Hanner for 20-30 minutes and then had an officer remove Hanner

from his cell and segregate him in the shower. Hanner does not

allege that Defendant Thompson ordered, or was otherwise

responsible for, his placement back into the cell without first

searching it for harmful objects. Nor does Hanner explain why or

how Defendant Thompson would have known that there was a “strong

likelihood” Hanner would attempt suicide in the near future after

their counseling session. And while the Court could certainly

infer a possibility that Defendant Thompson ignored the strong

likelihood of Hanner’s actions by conduct that was more than merely

negligent, “where the well-pleaded facts do not permit the court

to infer more than the mere possibility of misconduct, the

complaint has alleged—but it has not ‘show[n]’—‘that the pleader

is entitled to relief.’” Iqbal, 556 U.S. at 679 (quoting Fed. R.

Civ. P. 8(a)(2)).

Hanner fares no better on his medical deliberate indifference

claim against this defendant. Notably, not “every claim by a

prisoner that he has not received adequate medical treatment states

a violation of the Eighth Amendment.” Estelle v. Gamble, 429 U.S.

97, 105 (1976). And courts are reluctant to find deliberate

indifference where, as here, medical treatment was actually

provided to a prisoner. See Waldrop v. Evans, 871 F.2d 1030, 1035

(11th Cir. 1989) (“It is . . . true that when a prison inmate has

received medical care, courts hesitate to find an Eighth Amendment

violation.”) Even if Defendant Thompson should have recognized

the seriousness of Hanner’s condition, Hanner has not alleged that

he did so, and on the facts alleged in Hanner’s complaint, this

defendant’s failure to provide additional treatment was, at most

a matter of medical negligence.

IV. Conclusion

The Court finds that the facts alleged in Hanner’s complaint

do not state a plausible claim against any named defendant.

Therefore, the defendants’ motion to dismiss is granted. Fed. R.

Civ. P. 12(b)(6). Defendant Thompson is dismissed from this

action under 28 U.S.C. § 1915A(b)(1).6

Hanner may file an amended complaint within TWENTY-ONE (21)

DAYS that complies with this Order by stating a legally sufficient

6

Because the complaint is dismissed in its entirety for

failure to state a claim on which relief can be granted, the Court

will not address the defendants’ argument that they are entitled

to qualified immunity. If Hanner files an amended complaint, the

defendants can argue entitlement to qualified immunity in another

motion to dismiss or in a motion for summary judgment.

and adequately pleaded basis for liability. If Hanner does not

file an amended complaint within the time allotted, or explain his

inability to do so, this case will be dismissed without further

notice.

Accordingly, it is

ORDERED :

1. The Clerk is DIRECTED to correct the spelling of

Defendant James Thompson’s name in CM/ECF.

2. The motion to dismiss filed by Defendants Swat and Garrow

(Doc. 27) is GRANTED and the claims against these

defendants are dismissed for failure to state a claim on

which relief may be granted. Fed. R. Civ. P. 12(b) (6).

3. The claims against Defendant Thompson are dismissed

under 28 U.S.C. § 1915A(ii).

4, Hanner may file an amended complaint within TWENTY-ONE

(21) DAYS from the date on this Order.

DONE AND ORDERED in Fort Myers, Florida on this 26th day of

January 2024,

□ —_ Afr

: le hy ZC. AK Zo0b

ade E. STEELE

SHNIOR UNITED STATES DISTRICT JUDGE

SA: FTMP-2

Copies: Timothy Hanner, Counsel of Record