Pressoir v. Broward County Sheriff's Office

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Case No. 21-cv-62069-BLOOM

YVES-GABRIEL PRESSOIR,

Plaintiff,

v.

BROWARD COUNTY

SHERIFF’S OFFICE, et al.,

Respondent.

/

ORDER ON MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND

DISMISSING COMPLAINT WITH LEAVE TO AMEND

THIS CAUSE is before the Court upon Plaintiff Yves-Gabriel Pressoir’s Complaint

pursuant to 42 U.S.C. § 1983, ECF No. [1], and his Application to Proceed in District Court

without Prepaying Fees or Costs (“Application”), ECF No. [3]. 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 Motion is not accompanied by a certified copy of his inmate account statement

for the six-month period immediately preceding the filing of the Complaint. ECF No. [3].

Plaintiff’s Application is therefore 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, an inmate at the Broward County Main Jail (“Broward Jail”), alleges the

defendants, the Broward County Sheriff’s Office (“BCSO”), an unidentified BCSO Sergeant, BSO

Correctional Officer Parish, and BSO Correctional Officer McGee, violated his constitutional

rights. ECF No. [1]. Plaintiff alleges that on August 23, 2021, he was housed in “6b3 cell #13” at

the Broward Jail. Id. at 3. At dinner time, Plaintiff received an “ice cold” dinner tray from Parish.

Id. at 4. Plaintiff advised Parish about the cold meal and she “shrugged” and “stated there was

nothing that she could do.” Id. Plaintiff requested to speak to the on-shift sergeant but the sergeant

did not appear. Id.

Plaintiff states that “[i]t is a known fact that the only way to get the sergeant . . . is to act

belligerent by either kicking the door or flooding your cell.” Id. Sometime between 7:30 p.m. and

10:30 p.m., Plaintiff began beating on his cell door. Id. at 3; see id. at 5. After an hour, the Sergeant

still did not appear, so Plaintiff covered up his cell window door with a towel and toilet paper. Id.

Finally, the unidentified Sergeant, Parish, and two other correctional officers arrived at Plaintiff’s

cell wearing gloves. Id.

Plaintiff removed the towel and toilet paper “in hopes of finally speaking to the Sergeant.

However, in a “sinister tone,” the Sergeant told Plaintiff to “back up.” Plaintiff complied and

walked to the back of the cell and sat on his bunk with his arms crossed and back against the wall.

Id. at 5. The corrections officers entered the cell and the Sergeant ordered Plaintiff to place his

hands on the wall and turn and face it. Id. The Sergeant proceeded to perform a pat-down on the

Plaintiff while the three other corrections officers searched Plaintiff’s cell. Id. The Sergeant

wrapped his hands around Plaintiff’s shirt and pressed his forearm against the top of Plaintiff’s

shoulder blade. Plaintiff tried to speak but the Sergeant told him to “shut the [expletive] up.” Id.

(alteration added). The Sergeant “‘groped’/‘palmed’ [Plaintiff’s] ‘butt’ in . . . such a way that [he]

was alarmed and felt instantly violated.” Id. (alterations added). Plaintiff states that the incident

was recorded and a review of the video should reveal the identities of all participants. Id. at 1, 5.

Additionally, Plaintiff advises that the following day he called the Prison Rape Elimination

Act (“PREA”) hotline to report the incident and left a detailed synopsis of the incident. Id. at 3, 5.

He also contacted the Broward Inspector General regarding this incident. Id. at 3. Plaintiff states

that the BCSO “staff-personnel seem to be ‘in cahootz’ towards ‘sweeping’ this serious [] situation

‘under the rug’ as they do many illegal and unconstitutional situations in which they tend to

continuously get away with.” Id. at 3 (alterations added).

Separately, Plaintiff complains about an incident that occurred at the Broward Jail on

September 23, 2021, the same day Plaintiff filed the Complaint. Id. at 5. Plaintiff states that

sometime between 10:30 a.m. to 11:30 a.m., correctional officer McGee was “carried out [of] the

dorm 7D1 by her sergeant due to her behavior off threats [and] profanity made towards [the

Plaintiff].” Id. Plaintiff alleges that McGee went so far as to threaten his life. Id. This incident was

also recorded. Id.

As relief, Plaintiff requests that the unknown Sergeant be terminated, arrested, and charged

with sexual assault. Id. at 2. He also seeks compensation of $250,000 for pain and suffering due to

the “assault, threats, torment and ongoing unjust behavior” towards him. Id. Plaintiff requests that

he receives an acquittal, the charges against him be dropped, or he be permitted pre-trial release

from the Broward Jail. Id.

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)).

“A pleading that states a claim for relief must contain . . . a short and plain statement of the

claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Under

§ 1915(e)(2)(B)(ii), the court must dismiss any in forma pauperis action when the prisoner’s

complaint fails to state a claim on which relief may be granted. The same standards govern

dismissal for failure to state a claim under Fed. R. Civ. P. 12(b)(6) and dismissal for failure to state

a claim under § 1915(e)(2)(B)(ii). See Wright v. Miranda, 740 F. App’x 692, 694 (11th Cir. 2018).

Thus, under § 1915(e)(2)(B)(ii), the court must dismiss a complaint that fails “to state a claim to

relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim

has facial plausibility when the plaintiff pleads factual content that allows the court to draw the

reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556

U.S. 662, 678 (2009).

In reviewing the complaint under § 1915(e)(2)(B)(ii), the court takes the allegations as true

and construes them in the most favorable light. See Hughes v. Lott, 350 F.3d 1157, 1159-60 (11th

Cir. 2003); see also Maps v. Miami Dade State Att’y, 693 F. App’x 784, 785 (11th Cir. 2017) (per

curiam). Furthermore, courts hold complaints that pro se prisoners file to “less stringent standards

than formal pleadings drafted by lawyers.” Haines v. Kerner, 404 U.S. 519, 520 (1972) (per

curiam). Yet a district court is not required to “rewrite an otherwise deficient pleading in order to

sustain an action.” Rodriguez v. Scott, 775 F. App’x 599, 602 (11th Cir. 2019) (per curiam)

(citation and internal quotations marks omitted).

Rule 10(b) further requires a party to “state its claims or defenses in numbered paragraphs,

each limited as far as practicable to a single set of circumstances.” Fed. R. Civ. P. 10(b). “A

shotgun pleading is a complaint that violates either Federal Rule of Civil Procedure 8(a)(2) or Rule

10(b), or both.” Barmapov v. Amuial, 986 F.3d 1321, 1324 (11th Cir. 2021). Notwithstanding the

leniency afforded to pro se litigants, it does not permit them to file an impermissible “shotgun”

pleading.1 “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.” Weiland, 792 F.3d at 1323.

IV. DISCUSSION

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

1 The Eleventh Circuit has identified four rough types or categories of shotgun pleadings. See Weiland v.

Palm Beach Cnty. Sheriff’s Off., 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. 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. 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. 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.

A. Shotgun Pleading

First, 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 claims

against multiple defendants would be clearer if different claims were separated by count. Plaintiff’s

failure to do so also reveals that the complaint qualifies as the third category of shotgun pleading—

for not separating into different paragraphs each count or claim for relief. See Weiland, 792 F.3d

at 1321-23.

Next, Plaintiff’s Complaint is replete with conclusory and immaterial facts not obviously

connected to any particular cause of action and is therefore a quintessential shotgun pleading. See

id. Here, the Complaint includes superfluous background information. See ECF No. [1] at 3 (“Cell

#8 [and] #10 advised Ms. Parish that they had covered [the cell window] up because a homosexual

was just out for their hour.” (alterations added)). For these deficiencies alone, the Complaint is due

to be dismissed.

B. Claims Against a Municipality

Plaintiff is suing the BCSO as one of the defendants. 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) (citing City of Canton v. Harris, 489

U.S. 378, 388 (1989)).

Accordingly, a municipality may only be held liable under § 1983 “when 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).

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) (citation omitted)). “In order for a plaintiff to

demonstrate a policy or custom, ‘it is generally necessary to show a persistent and wide-spread

practice.’” Martin v. Wood, 648 F. App’x 911, 914 (11th Cir. 2016) (quoting McDowell, 392 F.3d

at 1290).

Plaintiff has not alleged the existence of a custom or policy; thus, his claims against

Defendant BCSO must be dismissed.

C. Fictitious Party Pleading

“[F]ictitious-party pleading is [generally] not permitted in federal court.” Richardson v.

Johnson, 598 F.3d 734, 738 (11th Cir. 2010) (citation omitted). To do so, Plaintiff must

“adequately describe[] the person to be sued so that the person [can] be identified for service.”

Dean v. Barber, 951 F.2d 1210, 1215 n.6 (11th Cir. 1992) (alterations added). Plaintiff states that

the unknown sergeant “groped and palmed [his] butt.” ECF No. [1] at 5 (alteration added). He

indicates that the sergeant was male and working at Broward County Main Jail on August 23, 2021

at some time between 7:30 p.m. to 10:30 p.m. Plaintiff’s description does not meet the applicable

standard. Setting aside the question of whether there is merit to his legal claims against the

Sergeant, there is not enough information to proceed to service.2 Accordingly, the Court dismisses

Plaintiff’s claims against the unidentified Sergeant without prejudice.

D. Relief Requested not Cognizable in § 1983 Complaint

In addition to monetary relief, Plaintiff seeks an acquittal of the charges he is facing,

dropping of the charges, or pre-trial release from Broward Jail. ECF No. [1] at 2. Release from

custody and relief related to his pending criminal charges are “not cognizable in under § 1983.”

Grider v. Cook, 522 F. App’x 544, 547 (11th Cir. 2013); see Bradley v. Pryor, 305 F.3d 1287,

1289 (11th Cir.2002) (“[H]abeas corpus [rather than § 1983] is the exclusive remedy for a state

prisoner who challenges the fact or duration of his confinement and seeks immediate or speedier

release.” (alterations added; citing Preiser v. Rodriguez, 411 U.S. 475, 487-90 (1973)); see also

Wilkinson v. Dotson, 544 U.S. 74, 79 (2005) (“A § 1983 action will not lie when a state prisoner

challenges ‘the fact or duration of his confinement’ and seeks either ‘immediate release from

prison,’ or the ‘shortening’ of his term of confinement.” (internal citations omitted)). A petition

“for writ of habeas corpus is the sole remedy for prisoners challenging the fact or duration of their

imprisonment.” Gomez v. United States, 899 F.2d 1124, 1125-26 (11th Cir. 1990). Should Plaintiff

wish to challenge his pretrial detention he must do so in a separate action under 28 U.S.C. § 2241.

This is not an exhaustive list of the potential deficiencies in Plaintiff’s Complaint. Because

this Court is not unsympathetic, Plaintiff may have one opportunity to rectify his pleading. Plaintiff

is instructed to follow the directives and applicable rules articulated in this order if he still wishes

to pursue this action.

V. CONCLUSION

Accordingly, it is ORDERED AND ADJUDGED as follows:

2 In the future, should the case proceed to discovery and Plaintiff discovers the identity of the Sergeant,

he may then seek leave to file a proper amended complaint.

1. Plaintiff’s Application, ECF No. [3], is DENIED without prejudice. On or before

November 4, 2021, Plaintiff shall either pay the $402 filing fee or may renew his

motion to proceed in forma pauperis.

2. If Plaintiff renews his motion to proceed in forma pauperis, he must have the

certificate concerning his jail bank account completed by an officer of the

institution and attach a certified copy of his jail account for the six-month period

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

3. Plaintiff’s Complaint, ECF No. [1], is DISMISSED with leave to amend. On or

before November 4, 2021, Plaintiff shall file an amended complaint, 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. Consistent with the goal

of Fed. R. Civ. P. 8, the amended complaint shall not exceed twenty (20) pages in

length.

4. The amended complaint must be labeled “Amended Complaint” and must show

Case No.: 21-cv-62069-BLOOM, so that it will be filed in this case.

5. 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. Plaintiff is reminded that his amended complaint should at the very

least cure the factual deficiencies identified to state a plausible claim for relief. The

amended complaint shall be the sole operative pleading in this case. Plaintiff may

not incorporate by reference any allegations contained in his previous filings or in

any supplemental filings.

6. Plaintiff is warned that failure to timely file the amended complaint, pay the filing

Case No. 21-cv-62069-BLOOM

fee, or file a renewed the motion to proceed in forma pauperis will result in

dismissal of this case. See Fed. R. Civ. P. 41(b).

7. The Clerk is DIRECTED to provide Plaintiff with a copy of the form for a

complaint under 42 U.S.C. § 1983 and the form for in forma pauperis together with

this Order.

DONE AND ORDERED in Chambers at Miami, Florjda, on October 5, 2021.

4 BLOOM

UNITED STATES DISTRICT JUDGE

Copies to:

Counsel of Record

Yves-Gabriel Pressoir, Pro Se

132101088

Broward County Main Jail

Inmate Mail/Parcels

Post Office Box 9356

Fort Lauderdale, FL 33310

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