Colon v. Broward County Jail

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Case No. 21-cv-61473-BLOOM

MICHAEL ELLIOT COLON,

Plaintiff,

v.

BROWARD COUNTY JAIL, et al.,

Defendants.

/

ORDER

THIS CAUSE is before the Court upon Plaintiff Michael Elliot Colon’s Complaint Under

the Civil Rights Act, 42 U.S.C. § 1983, ECF No. [1] (“Complaint”), filed against Broward County

Jail and Wellpath (collectively, “Defendants”). Also pending before the Court is Plaintiff’s

Application to Proceed in District Court without Prepaying Fees or Costs, ECF No. [3]

(“Application”). For the reasons set forth below, the Complaint is dismissed without prejudice and

the Application is denied as moot.

I. FACTUAL ALLEGATIONS

Plaintiff has been confined to the Broward County Jail since November 17, 2019. ECF No

[3] at 7. In January of 2020, he contracted MRSA at the Medical Unit of the jail. ECF No. [1] at

2. He alleges that he has undergone two surgeries to repair the damage MRSA caused to his left

eye, but he still suffers from pain and vision loss. Id. Plaintiff alleges that the doctor who performed

his second surgery has filed four requests to perform a third surgery that would repair Plaintiff’s

vision and alleviate his pain. Id. Plaintiff states that in the past month he has filed two grievances

but has not received a response. Id. He has also spoken to “numerous nurses and two (2) doctors”

at the Broward County Jail but “no one seems to want to help [him]!!” Id. (alteration added). As

relief, Plaintiff seeks a third surgery to “repair the vision of [his] left eye to be done ASAP.” Id.

(alteration added).

II. 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 § 1915(e)(2)(B) or Federal Rule of Civil

Procedure 12(b)(6). See Pullen, 2019 WL 5784952, at *1 (citing Mitchell v. Farcass, 112 F.3d

1483, 1490 (11th Cir. 1997)).

Pursuant to Federal Rule of Civil Procedure 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, No. 19-11797-C, 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).

Although the Court must liberally construe pro se pleadings, “pro se litigants are

nonetheless required to conform their pleadings to procedural rules.” Hanna v. Florida, 599 F.

App’x 362, 363 (11th Cir. 2015) (per curiam) (citation omitted). Pro se litigants “cannot simply

point to some perceived or actual wrongdoing and then have the court fill in the facts to support

their claim . . . judges cannot and must not ‘fill in the blanks’ for pro se litigants; they may only

cut some ‘linguistic slack’ in what is actually pled.” Hanninen v. Fedoravitch, No. 08-23172-CIV,

2009 WL 10668707, at *3 (S.D. Fla. Feb. 26, 2009) (citation omitted).

III. DISCUSSION

“While the conditions under which a convicted inmate are held are scrutinized under the

Eighth Amendment’s prohibition on cruel and unusual punishment, the conditions under which a

pretrial detainee are held are reviewed under the Due Process Clause of the Fourteenth

Amendment.” Jacoby v. Baldwin Cnty., 835 F.3d 1338, 1344 (11th Cir. 2016). Because Plaintiff

is a pretrial detainee at the Broward County Jail, the Court analyzes his claims under the Due

Process Clause of the Fourteenth Amendment.

As pled, there are several deficiencies with Plaintiff’s Complaint. Liberally construing

Plaintiff’s Complaint, he appears to raise claims of deliberate indifference to a serious medical

need against the Defendants. Pretrial detainees bring claims of deliberate indifference to medical

needs under the Due Process Clause of the Fourteenth Amendment. Gilmore v. Hodges, 738 F.3d

266, 271 (11th Cir. 2013). “[H]owever, the minimum standard for providing medical care to a

pretrial detainee is identical to the minimum standard required by the Eighth Amendment for a

convicted prisoner, and thus [courts] analyze the claim under the decisional law of both

amendments.” Id. (alteration added); see also Johnson v. City of Bessemer, 741 F. App’x 694, 699

nn.4-5 (11th Cir. 2018) (per curiam) (stating that Eighth Amendment decisional law still applies

to pretrial detainees’ claims of deliberate indifference to medical needs after Kingsley v.

Hendrickson, 135 S. Ct. 2466 (2015)).

“To show that a prison official acted with deliberate indifference to serious medical needs,

a plaintiff must satisfy both an objective and a subjective inquiry.” Brown v. Johnson, 387 F.3d

1344, 1351 (11th Cir. 2004) (citation omitted). “First, the plaintiff must prove an objectively

serious medical need.” Id. (citation omitted). “Second, the plaintiff must prove that the prison

official acted with deliberate indifference to that need.” Id. (citation omitted).

“To establish . . . deliberate indifference to the serious medical need, the prisoner must

prove three facts: (1) subjective knowledge of a risk of serious harm; (2) disregard of that risk; and

(3) by conduct that is more than mere negligence.” Id. (citation omitted). “Conduct that is more

than mere negligence includes: (1) grossly inadequate care; (2) a decision to take an easier but less

efficacious course of treatment; and (3) medical care that is so cursory as to amount to no treatment

at all.” Bingham v. Thomas, 654 F.3d 1171, 1176 (11th Cir. 2011) (per curiam) (citation omitted).

Here, Plaintiff has not adequately pleaded a claim of deliberate indifference to a serious

medical need. Plaintiff alleges that in January 2020 he contracted MRSA in his left eye while in

the Medical Unit at Broward County Jail. ECF No. [1] at 2. To repair the damage caused by MRSA,

Plaintiff states he has already had two surgeries and requires a third surgery to repair his vision

and alleviate his pain. Id. Plaintiff states that he has filed several grievances and spoken to

“numerous nurses and two (2) doctors” but “no one seems to want to help [him]!!] Id. at 3

(alteration added). Plaintiff does not adequately identify any person(s) who allegedly disregarded

his pain. Thus, Plaintiff has not alleged personal involvement of any defendant in the alleged

constitutional deprivations. See Iqbal, 556 U.S. at 677 (under § 1983 “each Government official .

. . is only liable for his or her own misconduct”). Likewise, Plaintiff’s allegation that “no one seems

to want to help” is unclear and, therefore, does not support this claim. In short, Plaintiff has not

pleaded a facially plausible claim of deliberate indifference to serious medical needs.

Plaintiff lists the Broward County Jail as one of the Defendants. However, the

governmental entity, Broward County, is the real party in interest. Hafer v. Melo, 502 U.S. 21, 25

(1991) (citing Monell v. New York City Dep’t of Soc. Servs., 436 U.S. 658, 690 (1978)). If Plaintiff

intends to bring an action against a municipality he must plead and show 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)).

A municipality may only be held liable under § 1983 “[w]hen a constitutional injury is

caused by the execution of a government entity’s policy or custom.” Laster v. City of Tampa Police

Dep’t, 575 F. App’x 869, 872 (11th Cir. 2014) (per curiam) (alteration added).

A policy is a decision that is officially adopted by the municipality, or created by

an official of such rank that he or she could be said to be acting on behalf of the

municipality. A custom is a practice that is so settled and permanent that it takes on

the force of law.

Groover v. Israel, 684 F. App’x 782, 787 (11th Cir. 2017) (quoting Sewell v. Town of Lake

Hamilton, 117 F.3d 488, 489 (11th Cir. 1997)). “In order for a plaintiff to demonstrate a policy or

custom, it is generally necessary to show a persistent and wide-spread practice.” Id. (quoting

McDowell, 392 F.3d at 1290).

Plaintiff has not stated a plausible claim that his constitutional rights were violated, nor has

he alleged the existence of any custom or policy that constitutes deliberate indifference to that

constitutional right. Thus, Plaintiff’s claim against the Broward County Jail is due to be dismissed.

Finally, Plaintiff names Wellpath as a Defendant. In appropriate cases, a corporation acting

under color of state law may be held liable for a custom or policy that causes a constitutional

violation. See Craig v. Floyd Cnty., 643 F.3d 1306, 1310 (11th Cir. 2011) (“‘[W]hen a private

entity . . . contracts with a county to provide medical services to inmates, it performs a function

traditionally within the exclusive prerogative of the state’ and ‘becomes the functional equivalent

of the municipality’ under section 1983.” (first alteration added) (quoting Buckner v. Toro, 116

F.3d 450, 452 (11th Cir. 1997))). However, Plaintiff has not made such allegarions. Furthermore,

because Plaintiff has not stated a cognizable deliberate indifference claim, he cannot state a claim

against Wellpath based on any allegation that any policy caused the alleged due process violation.

See Rooney v. Watson, 101 F.3d 1378, 1381 (11th Cir. 1996) (“[A]n inquiry into governmental

entity’s custom or policy is relevant only when a constitutional deprivation has occurred.”

(alteration added)).

IV. CONCLUSION

Accordingly, it is ORDERED AND ADJUDGED that the Complaint, ECF No. [1], is

DISMISSED WITHOUT PREJUDICE for failure to state a claim. The Clerk of Court is directed

to CLOSE this case, and any pending motions are DENIED AS MOOT.

Case No. 21-cv-61473-BLOOM

DONE AND ORDERED in Chambers at Miami, Florida, on July 26, 2021.

BETH BLOOM

UNITED STATES DISTRICT JUDGE

Copies to:

Counsel of Record

Michael Elliot Colon

1900797

Broward County Main Jail

Inmate Mail/Parcels

Post Office Box 9356

Fort Lauderdale, FL 33310