Stewart v. Boone

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

ARSENIO DECORD STEWART,

Plaintiff,

v. Case No. 3:22-cv-932-BJD-JBT

LONDON M. BOONE, et al.,

Defendants.

______________________________

ORDER

I. Status

Plaintiff, Arsenio Decord Stewart, an inmate of the Florida Department

of Corrections, is proceeding pro se and in forma pauperis on an Amended

Complaint for the violation of civil rights under 42 U.S.C. § 1983 against six

Defendants based on conduct that occurred at Hamilton Correctional

Institution (HCI) on November 11, 2021 (Doc. 13; Am. Compl.). The events

started when Defendant Officer Boone directed Plaintiff and his cellmate to

exit their cell for a search. See Am. Compl. at 10. Plaintiff claims Defendant

Boone falsified a disciplinary report stating he found a home-made knife in

Plaintiff’s cell, allegedly in retaliation for Plaintiff having filed a Prison Rape

Elimination Act (PREA) complaint against Defendant Boone for sexual

harassment. Id.

Plaintiff concedes he disobeyed Defendant Boone’s command to “cuff up,”

ran from Boone, and then physically battered him before Boone was able to

subdue Plaintiff with a chokehold. Id. Plaintiff alleges he “felt [Boone’s]

hardened penis pressed against [his] butt” when Boone had him in a chokehold,

which caused him to fear for his life and fight back. Id. at 10-11. Other officers

intervened, and Plaintiff was placed in hand and leg restraints and “slammed”

to the ground. Id. at 11. Plaintiff alleges that, while he was fully restrained on

the ground, he was “kicked several times” by officers, including Defendants

Montague and Norton. Id. at 11.

Plaintiff acknowledges he was taken for a post-use-of-force assessment

but asserts Defendant Nurse J. Selph “denied [him] medical

attention/treatment for the visible rib injuries that occurred during the use of

force.” Id. With his complaint, Plaintiff provides copies of grievance records

(Doc. 13-1; Pl. Ex. A). In response to grievances in which Plaintiff complained

he did not receive medical treatment for his obvious rib injuries, prison officials

informed Plaintiff as follows: “during your [post-use-of-force] assessment[,]

acute injury was noted in the rib area”; and the rib injury was merely “noted”

rather than treated “because [Plaintiff] did not declare a Medical Emergency.”

See Pl. Ex. A at 1, 3.

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In addition to naming as Defendants Officers Boone, Montague, and

Norton and Nurse Selph, Plaintiff names supervisory officials: the Warden of

HCI, who allegedly knew of Plaintiff’s PREA complaint against Defendant

Boone but did not keep Boone away from Plaintiff while the investigation was

pending; and “John Doe,” an investigator with the Office of the Inspector

General, who allegedly failed to “properly investigat[e]” Plaintiff’s PREA

complaint against Defendant Boone. See Am. Compl. at 2, 11-12, 16. Plaintiff

has not yet identified the John Doe Defendant for service. See Order (Doc. 12).

Plaintiff names all Defendants in their individual and official capacities.

See Am. Compl. at 3-5. He asserts all Defendants violated his rights under the

Eighth Amendment, causing injuries to his neck, back, and ribs (with difficulty

breathing). Id. at 4, 13. In addition to compensatory damages, Plaintiff

requests that he be released from close management, his gain time be restored,

the officer-Defendants be criminally charged, and the Warden be fired.1 Id. at

14-15.

1 The Prison Litigation Reform Act “places substantial restrictions on the

judicial relief that prisoners can seek . . . .” Brooks v. Warden, 800 F.3d 1295, 1307

(11th Cir. 2015) (quoting Al-Amin v. Smith, 637 F.3d 1192, 1195 (11th Cir. 2011)).

For instance, district courts generally will not interfere with matters of prison

administration, including employee discipline. Additionally, this Court cannot

initiate a criminal investigation into alleged unlawful actions by prison staff.

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Before the Court are the following motions: (1) Defendants Boone,

Montague, Norton, and Warden Polk’s Motion to Dismiss (Doc. 40; Boone

Mot.); (2) Defendant Selph’s Motion to Dismiss (Doc. 42; Selph Mot.); and (3)

Plaintiff’s Motion for Partial Summary Judgment (Doc. 44; Pl. Mot.). Plaintiff

has responded to Defendants’ motions (Docs. 41, 43, 45), but Defendants have

not responded to Plaintiff’s.

Before addressing Defendants’ motions, the Court quickly will address

Plaintiff’s. Plaintiff contends he seeks “partial summary judgment as to the

relief requested, i.e. release from Close Management . . . and reinstatement of

gain time.” See Pl. Mot. at 1. Not only is Plaintiff’s motion premature, but the

relief he seeks is unrelated to the claims he pursues.2 Moreover, his motion is

facially insufficient. See Fed. R. Civ. P. 56(c) (explaining that a party moving

for or opposing summary judgment must support factual assertions by “citing

to particular parts of materials in the record”); M.D. Fla. R. 3.01(a) (providing

2 Plaintiff seeks such relief in his complaint. See Am. Compl. at 14. However,

even if he were to prove his claims (retaliation, excessive force, and deliberate

indifference), he would not be entitled to release from close management or

reinstatement of gain time. See McKune v. Lile, 536 U.S. 24, 39 (2002) (“It is well

settled that the decision where to house inmates is at the core of prison

administrators’ expertise.”); Preiser v. Rodriguez, 411 U.S. 475, 498, 500 (1973)

(holding that a prisoner who “challeng[es] the fact or duration of his physical

confinement itself” or requests speedier release from confinement seeks relief that is

at “the heart of habeas corpus”).

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that a motion must be supported by a memorandum of law). As such, Plaintiff’s

motion is due to be denied.

II. Motion to Dismiss Standard

A defendant may move to dismiss a complaint for a plaintiff’s “failure to

state a claim upon which relief may be granted.” Fed. R. Civ. P. 12(b)(6). In

ruling on such a motion, the court must accept the plaintiff’s allegations as

true, liberally construing those by a plaintiff proceeding pro se, but need not

accept as true legal conclusions. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

Though detailed factual allegations are not required, Rule 8(a) demands “more

than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Id. A

plaintiff should allege enough facts “to raise a reasonable expectation that

discovery will reveal evidence” supporting the plaintiff’s claims. Bell Atl. Corp.

v. Twombly, 550 U.S. 544, 556 (2007).

Generally, a court should not consider extrinsic evidence when ruling on

a motion to dismiss. See Fed. R. Civ. P. 12(d) (“If, on a motion under Rule

12(b)(6) or 12(c), matters outside the pleadings are presented to and not

excluded by the court, the motion must be treated as one for summary

judgment under Rule 56.”). However, a court may consider extrinsic evidence

when ruling on a 12(b)(6) motion if a document incorporated by reference in

the complaint “is (1) central to the plaintiff’s claim and (2) undisputed.” Day v.

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Taylor, 400 F.3d 1272, 1276 (11th Cir. 2005) (citing Horsley v. Feldt, 304 F.3d

1125, 1134 (11th Cir. 2002)). See also Brooks v. Blue Cross & Blue Shield of

Fla., Inc., 116 F.3d 1364, 1369 (11th Cir. 1997) (“[W]here the plaintiff refers to

certain documents in the complaint and those documents are central to the

plaintiff’s claim, then the Court may consider the documents part of the

pleadings for purposes of Rule 12(b)(6) dismissal.”).

Here, Plaintiff incorporates by reference grievance records he contends

are central to his claims (Docs. 13-1, 13-2), the authenticity of which

Defendants do not contest. As such, the Court will consider them to the extent

relevant.

III. Defendants’ Motions

First, Defendants Boone, Montague, Norton, and Warden Polk invoke

qualified immunity, arguing that Plaintiff fails to state a deliberate

indifference claim against them because his allegations are vague, conclusory,

and made against them collectively rather than individually. See Boone Mot.

at 4-5. Additionally, Defendants contend Plaintiff’s complaint is a shotgun

pleading. Id. at 5.

The Court disagrees on both points. In accordance with federal pleading

standards—which are not “heightened” when a defendant is entitled to invoke

qualified immunity, contrary to Defendants’ assertion—Plaintiff’s allegations

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are “short and plain” and stated in “numbered paragraphs.” See Fed. R. Civ. P.

8(a)(1); Fed. R. Civ. P. 10(b). See also Randall v. Scott, 610 F.3d 701, 710 (11th

Cir. 2010) (“After Iqbal[,] it is clear that there is no ‘heightened pleading

standard’ as it relates to cases governed by Rule 8(a)[], including civil rights

complaints.”). Moreover, with the benefit of liberal construction, Plaintiff’s

separate claims against each Defendant are discernible, as are the facts

supporting them: a First Amendment claim against Defendant Boone (for

retaliating against Plaintiff for filing a PREA complaint); an Eighth

Amendment sexual assault claim against Defendant Boone (for grinding his

penis against Plaintiff’s buttocks); an Eighth Amendment excessive force claim

against Defendants Montague and Norton (for kicking Plaintiff when he was

fully restrained and lying on the ground); and an Eighth Amendment failure

to protect claim against Warden Polk (for permitting Defendant Boone to

interact with Plaintiff during the pendency of a PREA investigation).

Defendants do not move to dismiss these claims but rather argue

Plaintiff fails to state a plausible deliberate indifference claim against them.

Plaintiff does not purport to assert a deliberate indifference claim against

Defendants Boone, Montague, Norton, or Warden Polk. Because Plaintiff’s

Amended Complaint is not a shotgun pleading, and Defendants do not move to

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dismiss the claims Plaintiff raises against them, Defendants Boone, Montague,

Norton, and Warden Polk’s Motion to Dismiss is due to be denied.

Next, Defendant Selph argues Plaintiff fails to state a plausible

deliberate indifference claim against him because Plaintiff does not allege he

had a serious medical need or that Defendant Selph was deliberately

indifferent to an alleged serious medical need that resulted in an injury. See

Selph Mot. at 5-6, 8-10. In explanation, Defendant Selph contends Plaintiff’s

“claim is only supported by his self-diagnosis and subjective complaints of

pain,” Plaintiff merely “disagrees with his course of treatment,” Plaintiff’s

suggestion that his permanent disfigurement “could” be the result of

Defendants Selph’s refusal to treat him is conclusory, and any lasting injury

Plaintiff sustained is the result of the force incidents he describes in his

complaint. Id. at 7, 8, 9.3

“A core principle of Eighth Amendment jurisprudence in the area of

medical care is that prison officials with knowledge of the need for care may

not, by failing to provide care . . . or providing grossly inadequate care, cause a

prisoner to needlessly suffer the pain resulting from his or her illness.”

3 Defendant Selph also argues Plaintiff has not complied with the presuit

requirements mandated under Florida Statutes for a medical malpractice action. See

Selph Mot. at 10. Plaintiff does not bring a medical malpractice action under Florida

law, so the Court will not address this argument.

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McElligott v. Foley, 182 F.3d 1248, 1257 (11th Cir. 1999). To state a deliberate

indifference claim, a plaintiff first must allege he had a serious medical need.

Brown v. Johnson, 387 F.3d 1344, 1351 (11th Cir. 2004).

“A serious medical need is considered ‘one that

has been diagnosed by a physician as mandating

treatment or one that is so obvious that even a lay

person would easily recognize the necessity for a

doctor’s attention.’” In either case, “the medical need

must be one that, if left unattended, pos[es] a

substantial risk of serious harm.”

Id. (quoting Farrow v. West, 320 F.3d 1235, 1243 (11th Cir. 2003)) (internal

citations omitted). Next, the plaintiff must “allege that the prison official, at a

minimum, acted with a state of mind that constituted deliberate indifference.”

Richardson v. Johnson, 598 F.3d 734, 737 (11th Cir. 2010). Finally, the

plaintiff must allege facts showing a causal connection between the defendant’s

conduct and his resulting injuries. Mann v. Taser Int’l, Inc., 588 F.3d 1291,

1306-07 (11th Cir. 2009), overruled in part on other grounds by Hope v. Pelzer,

536 U.S. 730, 739 (2002).

The following conduct may constitute deliberate indifference: knowing

an inmate needs medical care but intentionally refusing to provide that care,

Ancata v. Prison Health Servs., Inc., 769 F.2d 700, 704 (11th Cir. 1985);

providing care that is “so cursory as to amount to no treatment at all,” id.; or

unnecessarily delaying treatment for a known serious injury, Brown v. Hughes,

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894 F.2d 1533, 1538 (11th Cir. 1990) (“[A]n unexplained delay of hours in

treating a serious injury states a prima facie case of deliberate indifference.”).

See also Harris v. Coweta Cnty., 21 F.3d 388, 394 (11th Cir. 1994) (“A few hours’

delay in receiving medical care for emergency needs such as broken bones . . .

may constitute deliberate indifference.”).

Plaintiff alleges a plausible deliberate indifference claim against

Defendant Selph: He alleges he had “visible rib injuries” that made it difficult

for him to breathe; Defendant Selph knew his ribs were injured but rendered

no medical treatment; and, because of Defendant Selph’s conduct, he suffered

pain and perhaps other injuries. See Am. Compl. at 11, 13, 15. Defendant

Selph’s assertion that Plaintiff’s “claim is only supported by his self-diagnosis

and subjective complaints of pain” is disingenuous given grievance records

reflect that Plaintiff’s physical assessment showed he had an “acute injury . . .

in the rib area.” See Selph Mot. at 7; Pl. Ex. A at 1.

Also disingenuous is the contention that Plaintiff merely “disagrees with

his course of treatment.” See Selph Mot. at 8. Plaintiff alleges there was no

course of treatment with which he could disagree, which could suggest

deliberate indifference. See McElligott, 182 F.3d at 1256-57 (recognizing that

negligently diagnosing an injury is not deliberate indifference but ignoring a

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prisoner’s need for “further diagnosis of and treatment for . . . severe pain” may

constitute deliberate indifference).

It is unknown at this time whether anything could have been done to

treat Plaintiff’s acute rib injury such that leaving it unattended posed a

substantial risk of serious harm to Plaintiff. However, given the injury was

noticed and documented by a medical provider, and Plaintiff alleges he was

having difficulty breathing, the Court finds he sufficiently alleges he had a

serious medical need of which Defendant Selph was aware. Moreover, the

December 20, 2021 grievance response permits the reasonable inference that

Plaintiff’s injury essentially was ignored simply because he did not himself

declare a medical emergency, even though he was undergoing a post-use-of-

force physical examination at the time. See Pl. Ex. A at 3.

In short, Plaintiff alleges Defendant Selph knew he needed medical care

but intentionally refused to provide that care or rendered care “so cursory as

to amount to no treatment at all.” See Ancata, 769 F.2d at 704. Plaintiff’s

allegations, accepted as true, permit the reasonable inference that Defendant

Selph was deliberately indifferent to his serious medical needs. Accordingly,

Defendant Selph’s Motion to Dismiss is due to be denied.

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IV. Sua Sponte Frivolity Review

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

dismiss a complaint or a portion of a complaint at any time 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 in both

contexts. Mitchell v. Farcass, 112 F.3d 1483, 1490 (11th Cir. 1997). See also

Alba v. Montford, 517 F.3d 1249, 1252 (11th Cir. 2008).

Even if Plaintiff were to identify the John Doe Defendant for service, the

claim is due to be dismissed because Plaintiff fails to state a plausible claim

against this Defendant. 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. 42 U.S.C.

§ 1983. Plaintiff alleges the John Doe Defendant failed to properly investigate

his PREA complaint against Defendant Boone. See Am. Compl. at 12, 16.

Accepting this allegation as true, such conduct is not a constitutional violation.

See Fulmore v. Andre, No. 8:12-cv-1705-T-30EAJ, 2012 WL 4856938, at *3 n.8

(M.D. Fla. Oct. 12, 2012) (“[P]risoners do not have a constitutional right to any

specific kind of investigation by prison officials.”).

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Moreover, a prison official may not be held liable under § 1983 on 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. 2010). See also 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.”). 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.”

Id.

Absent personal participation in a constitutional violation, 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. A plaintiff

relying on the “history of widespread abuse” theory must demonstrate the past

deprivations were “obvious, flagrant, rampant and of continued duration,” such

that the supervising official was on notice of the need to take corrective action.

See Crawford, 906 F.2d at 671. “A single incident of a constitutional violation

is insufficient to prove a policy or custom . . . .” Craig v. Floyd Cnty., Ga., 643

F.3d 1306, 1311 (11th Cir. 2011).

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Plaintiff does not allege the John Doe Defendant personally participated

in the actions that occurred on November 11, 2021, and he does not otherwise

allege facts to establish the requisite causal connection for supervisory liability

under § 1983. To the extent Plaintiff suggests the John Doe Defendant should

have anticipated he would be sexually or physically assaulted because he had

on one prior occasion reported an incident of sexual assault, his allegations do

not demonstrate a “history of widespread abuse” that was “obvious, flagrant,

rampant and of continued duration” such that John Doe was on notice of the

need to take corrective action. See Crawford, 906 F.2d at 671. Accordingly, the

Court finds Plaintiff’s claim against the John Doe Defendant is due to be

dismissed without prejudice under the PLRA.

Accordingly, it is now

ORDERED:

1. Defendants Boone, Montague, Norton, and Warden Polk’s Motion

to Dismiss (Doc. 40) is DENIED.

2. Defendant Selph’s Motion to Dismiss (Doc. 42) is DENIED.

3. Plaintiff’s Motion for Partial Summary Judgment (Doc. 44) is

DENIED.

4. Plaintiff’s claim against the John Doe Defendant is DISMISSED

without prejudice for Plaintiff’s failure to state a plausible claim for relief.

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5. Defendants Boone, Montague, Norton, Warden Polk, and Selph

shall answer the Amended Complaint (Doc. 13) within twenty days of the

date of this Order.

6. The Clerk shall terminate the John Doe Defendant as a party to

this action.

DONE AND ORDERED at Jacksonville, Florida, this 31st day of

January 2024.

J) é / =

fo Atae | bgp

BRIAN. DAVIS

United States District Judge

Jax-6

Arsenio Decord Stewart

Counsel of Record

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