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, 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 two corrections

officers and a mental health provider at Charlotte Correctional

Institution were deliberately indifferent to his mental health

crisis and threats of suicide. (Doc. 1). The Court now considers

the second motion to dismiss filed by Defendants Garrow and Swat.

(Doc. 37). Hanner responded to the motion (Doc. 39), and it is

ripe for review.

After carefully considering the pleadings, the Court grants

the defendants’ motion to dismiss. Because the Court has already

provided Hanner an opportunity to amend—along with a detailed order

explaining the deficiencies of his first complaint—the dismissal

is without further leave to amend.

I. Background and Pleadings

Hanner initiated this action on December 21, 2022, by filing

a pro se 42 U.S.C. § 1983 complaint against Defendants J. Thompson

(mental health counselor), Officer C. Garrow, and Sergeant E. Swat.

(Doc. 1). On January 26, 2024, the Court granted the defendants’

motion to dismiss Hanner’s first complaint for failure to state a

claim on which relief could be granted. (Doc. 32). In a detailed

order, the Court explained the complaint’s deficiencies and

instructed Hanner to file an amended complaint correcting these

deficiencies if he wished to proceed. (Id.) While Hanner did

file an amended complaint (Doc. 35), the factual allegations are

essentially identical to those alleged in the original complaint.

A. Amended Complaint.

The relevant facts in the amended complaint are taken as true

at this stage of litigation, and are as follows: On May 5, 2022,

Hanner awoke after experiencing a night of severe psychological

distress and nightmares. (Doc. 35 at 6, ¶ 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, 6). Hanner spoke with Defendant Thompson

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

Thompson of his suicidal thoughts and told him that he wanted to

kill himself. (Id. ¶ 6). After 20 to 30 minutes, Defendant

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

boxers. (Id. ¶ 9).

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, ¶ 10). At

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

security check. (Id. ¶ 12). Hanner attempted to tell Defendant

Garrow that he had a ”psychological emergency causing suicidal

thoughts,” but the officer “just kept walking.” (Id. at 7, ¶ 12).

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. ¶ 14). Defendant Garrow told him

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

and left the wing. (Id.)

Between 2:00 and 2:30, Defendant Swat conducted a daily

inspection with a lieutenant. (Doc. 1 at 8, ¶ 16). Hanner stopped

him to declare a psychological emergency and showed him a razor.

(Id.) Defendant Swat just walked away. (Id. ¶ 18).

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

and Hanner’s cellmate told him that he (Hanner) had cut himself

with a razor. (Doc. 1 at 8, ¶ 20). 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. ¶ 21). Security cuffed Hanner and placed him in the shower

22). 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. ¶ 23).

Hanner asserts that the defendants were deliberately

indifferent to a known 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. 35 at 9–10). He also asserts that

Defendant Dr. James Thompson was deliberately indifferent when he

did not report Hanner’s suicidal thoughts to a psychiatrist. (Id.

at 10, ¶ 29).1

B. Motion to Dismiss

Defendants Garrow and Swat have filed a motion to dismiss the

amended complaint (Doc. 37). They argue that Hanner once again

makes only a “threadbare description of the event” and provides

insufficient details regarding his interactions with Defendants

Swat and Garrow. (Id. at 5). In short, the defendants allege

1 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). Hanner

received mental health counseling from Defendant Thompson on the

day of the incident and was removed from his cell for a period of

time. Hanner has not alleged facts showing that the alleged lack

of further treatment can be attributed to Defendants Swat or

Garrow. Therefore, the Court construes the amended complaint as

raising a claim for deliberate indifference to a known risk of

suicide against the officers and claims for deliberate

indifference to a serious medical need and a known risk of suicide

that “Plaintiff does not provide enough factual information to

support the actions of Defendants Swat and Garrow being

deliberately indifferent to Plaintiff’s previously addressed

medical needs.” (Id. at 8). The defendants also argue that they

are entitled to qualified immunity. (Id. at 9).

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. 39).

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

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

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

A. Hanner has not stated a plausible deliberate

indifference claim against Defendant Garrow.

As noted, the factual allegations against Defendant Garrow in

Hanner’s amended complaint are virtually identical to those

alleged in the original complaint. In its prior order dismissing

the claims against Defendant Garrow, the Court explained:

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.” 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.”

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).

(Doc. 32 at 11–12 (internal citations to the record omitted)).

Despite the Court’s detailed explanation of why Hanner did not

state a plausible claim against Defendant Garrow, Hanner still

does not elaborate on his factual assertions against Defendant

Garrow or explain how the words (if any) exchanged between the two

were sufficient to alert Defendant Garrow to a “strong likelihood”

that Hanner would attempt suicide in the near future. Instead,

he merely restates (almost verbatim) the same assertions as the

original complaint, adding only that Defendant Garrow is a “trained

officer in suicide prevention [and that] his actions make him

liable to any injuries by not acting on preventing suicide” and

that Defendant Garrow failed to follow policy for not pulling

Hanner from his cell. (Doc. 38 at 7, ¶¶ 13, 15). These statements

are simply conclusions masked as factual assertions, and they do

not correct the identified deficiencies of the original complaint.

Therefore, for the same reasons identified in the Court’s earlier

order, Defendant Garrow is dismissed from this action because

Hanner has not stated a plausible claim against him on which relief

can be granted. Fed. R. Civ. P. 12(b)(6).

B. Hanner has not stated a plausible deliberate

indifference claim against Defendant Thompson.2

Hanner asserts that, after he advised Officer Colls of his

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

health counselor, Defendant Thompson. (Doc. 35 at 6, ¶¶ 5, 6).

Hanner spoke with Defendant Thompson for 20 to 30 minutes. (Id.

at 5–6, ¶ 5). He informed Defendant Thompson of his suicidal

thoughts and told him that he wanted to kill himself. (Id. ¶ 6).

After 20 to 30 minutes, Defendant Thompson left the room. (Id. ¶

8). Officer Colls then placed Hanner in the shower and took all

of his clothing except his boxers. (Id. ¶ 9).

When Hanner raised these same allegations against Defendant

Thompson in his original complaint, the Court explained its

dismissal of this defendant from this action as follows:

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

2 Hanner is not proceeding in forma pauperis, and he is

responsible for ensuring that the defendants receive service of

process. Nevertheless, in an attempt to expedite this case, the

Court directed the United States Marshal Service to attempt service

on Defendant Thompson. (Doc. 30). However, the summons was

returned unexecuted because Defendant Thompson no longer works for

the FDOC. (Doc. 36). Therefore, this defendant remains unserved.

Nevertheless, 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). Therefore, the Court considers the

allegations against Defendant Thompson to determine whether Hanner

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.

(Doc. 32 at 13–14 (citations to the record omitted)). Hanner

still does not provide the Court with a description of his

conversation with Defendant Thompson or otherwise 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 once again, to the extent Hanner

argues that Defendant Thompson should have recognized the

seriousness of his mental condition and provided better treatment,

he has alleged, at most, negligence, which is not cognizable as a

section 1983 claim. Accordingly, the claims against Defendant

Thompson are dismissed for failure to state a claim on which relief

may be granted. 28 U.S.C 1915A(b)(1).

C. Hanner has not stated a plausible claim against

Defendant Swat.

Hanner alleges only the following against Defendant Swat:

Sgt Swat enter the wing between 2:00 to 2:30

to conduct a check with a [Lieutenant].

Sgt. Swat did daily inspection with a

[Lieutenant] which I stop him [and] declared

a psychological emergency [and] showed him a

razor.

While cell front Sgt. Swat was made aware of

a likely to attempt suicide which he

recklessly disregarded by walk off.

Sgt. Swat also is trained in suicidal

prevention [and] his failure to act upon

Plaintiff emergency or follow policy make him

liable to Plaintiff physical injuries.

(Doc. 38 at 7–8). In its Order dismissing Hanner’s first

complaint, the Court explained how the allegations in the first

complaint were insufficient:

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. 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.

Therefore, Hanner has alleged only the “sheer

possibility” of unlawful activity by Defendant

Swat. Iqbal, 556 U.S. at 678. But 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.

(Doc. 32 at 9–11 (footnote and citations to the record omitted)).

Even after the Court’s explanations and admonishment that Hanner

needed to provide more than bare allegations in his amended

complaint, Hanner still does not allege what he said to Defendant

Swat or what Defendant Swat said in response. He does not allege

that Defendant Swat was aware of Hanner’s earlier counseling

session with Defendant Thompson. Nor does he state what policies

or procedures Defendant Swat did not follow. While he says that

he declared a psychological emergency and showed a razor, he does

not describe what he said to Defendant Swat that would have alerted

the defendant to a strong likelihood, rather than a mere

possibility, that he would attempt suicide. In short, Hanner

omits relevant details and asks the Court to deduce the missing

facts that could give rise to a deliberate indifference claim.

However, these conclusory allegations are insufficient to state a

deliberate indifference claim. See 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)). And

while a plaintiff is entitled to all reasonable inferences in a

motion to dismiss, the facts alleged in the amended complaint are,

once again, 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 Associated

(“Conclusory allegations and unwarranted deductions of fact are

not admitted as true[.]”). Accordingly, Hanner’s claims against

Defendant Swat are dismissed for failure to state a claim on which

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

IV. Conclusion

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

amended complaint are insufficient to state a plausible claim

against any named defendant. Therefore, the motion to dismiss

filed by Defendants Garrow and Swat is granted. Fed. R. Civ. P.

12(b)(6). Defendant Thompson is dismissed from this action under

28 U.S.C. § 1915A(b)(1).3

The Court explained the pleading deficiencies of Hanner’s

first complaint in a detailed order. (Doc. 32). Hanner did not

address those deficiencies, and offered an amended complaint that

was substantially identical to the first. Therefore, no further

amendments will be ordered. See Skyles v. McCoy, 730 F. App’x

769, 771 (11th Cir. 2018) (concluding that where district court

gave the plaintiff an opportunity to amend his complaint, but the

plaintiff failed to correct the deficiencies in his amended

complaint, the court was not obligated to permit the plaintiff a

second opportunity to amend).

3 Because the complaint is dismissed in its entirety for

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

does not address the defendants’ argument that they are entitled

Accordingly, it is

ORDERED :

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

(Doc. 37) is GRANTED and the claims against these defendants are

DISMISSED without prejudice for failure to state a claim on which

relief may be granted and without further leave to amend. Fed.

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

2. The claims against Defendant Thomoson are DISMISSED

without prejudice under 28 U.S.C. § 1915A(b) (1) and without further

leave to amend.

3. With no remaining claims or defendants, the Clerk is

directed to terminate any pending motions, enter judgment in favor

of the defendants, and close this case.

DONE AND ORDERED in Fort Myers, Florida on May 23, 2024.

ox EL

: le hy ) Z. A, Gob

ade E. STEELE

SHNIOR UNITED STATES DISTRICT JUDGE

SA: FTMP-2

Copies: Timothy Hanner, Counsel of Record