Murphy v. Miami Dade Corrections & Rehabilitation TGK Detention Center Correctional Officer

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Case No. 21-cv-20595-BLOOM

JAVAR C. MURPHY,

Plaintiff,

v.

MIAMI DADE CORRECTIONS AND

REHABILITATION CENTER, et al.,

Respondent.

/

ORDER

THIS CAUSE is before the Court on Plaintiff Javar C. Murphy’s Complaint pursuant to

42 U.S.C. § 1983, ECF No. [1] (“Complaint”), and his Application to Proceed in District Court

without Prepaying Fees or Costs, ECF No. [3] (“Application”). For reasons set forth below, the

Application is denied, and the Complaint is dismissed with leave to amend.

I. APPLICATION TO PROCEED IN FORMA PAUPERIS

Civil complaints filed by prisoners seeking in forma pauperis status under 28 U.S.C.

§ 1915 are subject to the provisions of the Prison Litigation Reform Act (“PLRA”). In order to

promote the speedy, just, and efficient administration of civil rights complaints subject to the

PLRA, the court has established forms to be used by prisoners for filing civil rights actions. The

court-approved form consists of (1) a cover sheet; (2) a complaint; (3) an application to proceed

in forma pauperis; and (4) an authorization form. The authorization form, when completed by the

plaintiff, directs the agency holding the plaintiff in custody to forward to the clerk of court a

certified copy of the plaintiff’s institutional trust fund account and to disburse from the plaintiff’s

account the full statutory filing fee in amounts specified by § 1915(b). Properly completing and

filing the authorization form satisfies the plaintiff’s obligation under § 1915(a)(2) to submit a

certified copy of the plaintiff’s trust fund account with the complaint.

Plaintiff’s Application is not accompanied by a certified copy of his inmate account

statement for the six-month period immediately preceding the filing of the Complaint. Rather,

Plaintiff attached an account statement only for the ten-day period between November 3-12, 2020.

ECF No. [3] at 2. Additionally, Plaintiff’s Application does not contain an authorization form.

Accordingly, Plaintiff’s Application to Proceed in District Court without Prepaying Fees or Costs

is denied. Plaintiff may re-file his Application using the court-approved form, or he may pay the

filing fee of $402 by the filing deadline.

II. FACTUAL ALLEGATIONS

Plaintiff alleges that Defendants Correctional Officer B. Bailey at Miami-Dade Corrections

& Rehabilitation T.G.K. Detention Center (“Officer Bailey”) and Nurse M. Thelusma at Jackson

Health and Services Center (“Nurse Thelusma”) (collectively, “Defendants”) violated his

constitutional rights. ECF No. [1]. Plaintiff alleges that Nurse Thelusma violated his right to

privacy by exposing his medical records to Officer Bailey without obtaining Plaintiff’s consent.

Id. at 7. According to the Complaint, Officer Bailey subsequently disclosed Plaintiff’s HIV status

to nonmedical staff members and other patients. Id. Officer Bailey also tormented Plaintiff for his

condition, causing Plaintiff emotional pain and suffering. Id. As a result, Plaintiff sues Defendants

in their official capacities and seeks money damages. Id. at 6.

III. STANDARD OF REVIEW

The Prison Litigation Reform Act (“PLRA”), as partially codified at 18 U.S.C.

§ 1915(e)(2)(B)(i)-(iii), requires courts to screen prisoner complaints and dismiss as frivolous

claims that are “based on an indisputably meritless legal theory” or “whose factual contentions are

clearly baseless.” Denton v. Hernandez, 504 U.S. 25, 32-33 (1992); Pullen v. Sec’y, Dep’t of Corr.,

No. 19-11797-C, 2019 WL 5784952, at *1 (11th Cir. Sept. 4, 2019) (“[A]n action is frivolous if it

is without arguable merit either in law or fact.”) (quoting Napier v. Preslicka, 314 F.3d 528, 531

(11th Cir. 2002)). Under § 1915(e)(2)(B)(ii), a complaint may be dismissed if the court determines

that the complaint fails to state a claim on which relief may be granted. Wright v. Miranda, 740 F.

App’x 692, 694 (11th Cir. 2018). The standard for determining whether a complaint states a claim

upon which relief can be granted is the same whether under section 1915(e)(2)(B) or Fed. R. Civ.

P. 12(b)(6). See Pullen, WL 5784952, at *1 (citing Mitchell v. Farcass, 112 F.3d 1483, 1490 (11th

Cir. 1997)).

Pursuant to Fed. R. Civ. P. 8, a complaint must contain “a short and plain statement of the

claim showing that the pleader is entitled to relief.” See Fed. R. Civ. P. 8(a)(2). There is no required

technical form, but “each allegation must be simple, concise, and direct.” Fed. R. Civ. P. 8(d)(1).

The statement must “give the defendant fair notice of what the . . . claim is and the grounds upon

which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quotation marks omitted).

Thus, “a complaint must allege sufficient facts to state a claim that is plausible on its face.” Pullen,

2019 WL 5784952 at *1 (citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). The “factual

allegations must be enough to raise a right to relief above the speculative level.” Bell Atl. Corp.,

550 U.S. at 555 (citations omitted). Plaintiff is obligated to allege “more than mere labels and legal

conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Quality

Auto Painting Ctr. of Roselle, Inc. v. State Farm Indemnity Co., 917 F.3d 1249, 1262 (11th Cir.

2019) (quoting Bell Atl. Corp., 550 U.S. at 555).

A district court is not required to “rewrite an otherwise deficient pleading in order to sustain

an action.” Rodriguez, 794 F. App’x at 603 (quotation marks omitted) (citation omitted) (quoting

Campbell v. Air Jamaica Ltd., 760 F.3d 1165, 1169 (11th Cir. 2014)). Moreover, a district court

“should not abandon its neutral role and begin creating arguments for a party, even an

unrepresented one.” Sims v. Hastings, 375 F. Supp. 2d 715, 718 (N.D. Ill. 2005) (citing Anderson

v. Hardman, 241 F.3d 544, 545 (7th Cir. 2001)). When read liberally, a pro se pleading “should

be interpreted ‘to raise the strongest arguments that [it] suggest[s].’” Graham v. Henderson, 89

F.3d 75, 79 (2d Cir. 1996) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)).

Notwithstanding the leniency afforded to pro se litigants, it does not permit them to file an

impermissible “shotgun” pleading.

The Eleventh Circuit has identified four categories of shotgun pleadings. See Weiland v.

Palm Beach Cnty. Sheriff’s Office, 792 F.3d 1313, 1321-23 (11th Cir. 2015) (citations omitted).

The most common type of shotgun pleading is one “containing multiple counts where each count

adopts the allegations of all preceding counts, causing each successive count to carry all that came

before and the last count to be a combination of the entire complaint.” Id. at 1321. The next most

common type is a complaint that is “replete with conclusory, vague, and immaterial facts not

obviously connected to any particular cause of action.” Id. at 1322. The third type of shotgun

pleading is one that does not separate into a different count each cause of action or claim for relief.

Id. at 1323. Fourth, and finally, there is the relatively rare shotgun pleading that asserts “multiple

claims against multiple defendants without specifying which of the defendants are responsible for

which acts or omissions, or which of the defendants the claim is brought against.” Id.

“The unifying characteristic of all types of shotgun pleadings is that they fail to one degree

or another, and in one way or another, to give the defendants adequate notice of the claims against

them and the grounds upon which each claim rests.” Id. The Eleventh Circuit has repeatedly

condemned the use of shotgun pleadings for “imped[ing] the administration of the district courts’

civil docket.” PVC Windoors, Inc. v. Babbitbay Beach Constr., N.V., 598 F.3d 802, 806 n.4 (11th

Cir. 2010). Indeed, shotgun pleadings require the court to sift through rambling and often

incomprehensible allegations in an attempt to separate the meritorious claims from the

unmeritorious, resulting in a “massive waste of judicial and private resources.” Id. (citation

omitted). The Eleventh Circuit, thus, has established that shotgun pleading is an unacceptable form

of establishing a claim for relief. Strategic Income Fund, LLC v. Spear, Leeds & Kellogg Corp.,

305 F.3d 1293, 1296 (11th Cir. 2002).

IV. DISCUSSION

As pled, there are several deficiencies with Plaintiff’s Complaint. First, the Complaint is

replete with conclusory and vague allegations, and therefore fails to specify in detail the

circumstances surrounding Plaintiff’s claim for relief. Second, because the Complaint identifies

more than one defendant, adherence to Fed. R. Civ. P. 10 should be followed more closely.

Pursuant to Fed. R. Civ. P. 10(b), “[a] party must state its claims or defenses in numbered

paragraphs, each limited as far as practicable to a single set of circumstances.” To promote clarity,

“each claim founded on a separate transaction or occurrence . . . must be stated in a separate count

or defense.” Fed. R. Civ. P. 10(b). Here, Plaintiff’s different claims against Defendants must be

separated by counts. Plaintiff’s failure to do so reveals that the Complaint qualifies as the third

category of a shotgun pleading. See Weiland, 792 F.3d at 1321-23.

Moreover, because Plaintiff is suing Defendants in their official capacities, the

governmental entity that Defendants represent, Miami-Dade County, is the real party in interest.

Hafer v. Melo, 502 U.S. 21, 25 (1991). To impose § 1983 liability on a municipality, Plaintiff must

plead the following: “(1) that his constitutional rights were violated; (2) that the municipality had

a custom or policy that constituted deliberate indifference to that constitutional right; and (3) that

the policy or custom caused the violation.” McDowell v. Brown, 392 F.3d 1283, 1289 (11th Cir.

2004) (emphasis added) (citing City of Canton v. Harris, 489 U.S. 378, 388 (1989)). Here, Plaintiff

fails to allege that his claimed constitutional deprivation resulted from any policy or custom, and

therefore fails to state a plausible claim for municipal liability under § 1983.

V. CONCLUSION

The Complaint fails to state a viable § 1983 claim against Defendants. The Court has

identified several deficiencies in the Complaint and in deference to Plaintiff’s pro se status,

Plaintiff may have one opportunity to rectify the Complaint.

In order to proceed, Plaintiff shall file an amended complaint on the appropriate form

providing sufficient, factual allegations to permit the Court to review his complaint. Plaintiff is

reminded that he must state with specificity the facts supporting his claims. Plaintiff is also

cautioned that each claim should be numbered in a separate paragraph and should be set forth using

short and plain statements, with numbered paragraphs stating why the relief requested should be

granted. Furthermore, the amended complaint must be verified—i.e., signed and dated under the

penalty of perjury, pursuant to Local Rule 88.2(a)(4).

Accordingly, it is ORDERED AND ADJUDGED as follows:

1. Plaintiff’s Application to Proceed in District Court without Prepaying Fees or

Costs, ECF No. [3], is DENIED without prejudice.

2. On or before March 18, 2021, Plaintiff shall either pay the $402 filing fee or may

renew his motion to proceed in forma pauperis.

3. If Plaintiff renews his motion to proceed in forma pauperis, the motion must

include a completed certificate signed by an authorized institutional officer

regarding the balance of his inmate account for the six-month period preceding the

Case No. 21-cv-20595-BLOOM

filing of the Complaint in accordance with 28 U.S.C. § 1915.

4, The failure to pay the filing fee or renew his motion to proceed in forma pauperis

in accordance with the foregoing instructions will result in dismissal of this case.

5. Plaintiff’s Complaint, ECF No. [1], is DISMISSED without prejudice.

6. Consistent with the purpose of Fed. R. Civ. P. 8, Plaintiff is granted leave to file an

amended complaint by March 18, 2021. The amended complaint must be signed

under the penalty of perjury, providing a short and plain statement of a claim for

relief, a basis for federal jurisdiction, and a demand for judgment. Plaintiff shall be

provided a form complaint for use. The amended complaint must be labeled

“Amended Complaint” and must show Case No.: 21-CV-20595-BLOOM, so that

it will be filed in this case.

7. The amended complaint must contain a separate paragraph as to each defendant

explaining what that defendant did and the supporting facts to show why that person

is being sued.

8. Plaintiff is cautioned that failure to file the amended complaint on time and in

compliance with this Court’s orders may result in dismissal of the case for failure

to prosecute or failure to comply with court orders. See Fed. R. Civ. P. 41(b).

DONE AND ORDERED in Chambers at Miami, Flgrida, on February 16, 2021.

UNITED STATES DISTRICT JUDGE

Copies to:

Counsel of Record

Javar C. Murphy, Pro Se

190148185

Miami-Dade County-PDC

Pretrial Detention Center

Inmate Mail/Parcels

1321 NW 13th Street

Miami, FL 33125