# Hanner v. Thomson

> District Court, M.D. Florida · May 23, 2024

URL: https://www.frixlaw.com/law-library/cases/10116222

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** May 23, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10116222. Public record. Not legal advice.