Joseph v. Wellpath/Medical

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Case No. 22-cv-80191-BLOOM

JOEVON MARQUISE JOSEPH,

Plaintiff,

v.

WELLPATH/MEDICAL, et al.,

Defendants.

/

ORDER

THIS CAUSE is before the Court on Plaintiff Joevon Marquise Joseph’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 to Proceed in District Court without Prepaying Fees or Costs 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 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

$402.00 by the filing deadline.

II. FACTUAL ALLEGATIONS

Plaintiff alleges that on the evening of November 25, 2019, he had pains in his groin area.

ECF No. [1] at 3. He states he complained to an unnamed deputy on shift about the pain. Id. The

deputy told Plaintiff to write a sick call addressed to a nurse scheduled to work later in the day. Id.

By the time the nurse arrived, Plaintiff was in extreme pain. Id. He was then seen by a doctor and

told that due to the loss of blood flow to his groin area he needed surgery. Id. The doctor told him

that there was an 8-hour window to treat Plaintiff’s condition and he should have been transported

to the hospital as soon as the pain started. Plaintiff alleges that because of the failure of “medical”

to treat him, he was subjected to an unnecessary surgery. Id. Plaintiff seeks compensation of

$500,000.00 in damages. Id. at 4.

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 IFP 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.

The Eleventh Circuit has identified four rough types or 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. 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.

“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, the Complaint has several deficiencies and is a quintessential shotgun pleading.

First, Plaintiff’s Complaint is replete with conclusory and vague facts and Plaintiff should specify

in detail the circumstances surrounding the allegations. The Complaint does not clearly identify

the parties to the action nor does it articulate essential facts to the cause of action. In the caption,

Plaintiff lists Wellpat/ Medical and Palm Beach County Sheriff’s Office as defendants, however,

in the “Parties” section of the Complaint only Wellpath/Medical is named. Id. at 1-2. Additionally,

in the “Statement of Claim” section, Plaintiff does not name either defendant nor does he identify

where he was located when the events took place. Id. at 3. Plaintiff implies that he was in legal

custody, but it is not clear from the Complaint what entity had legal custody over him. Id. at 3. For

these deficiencies alone, the Complaint is due to be dismissed.

Second, to the extent Plaintiff intended to sue multiple defendants, 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.

Finally, Plaintiff is suing Defendants in their official capacity but has not alleged the

existence of any custom or policy. As to Palm Beach County Sheriff’s Office, the governmental

entity that the defendant represents, Palm Beach County, is the real party in interest. Hafer v. Melo,

502 U.S. 21, 25 (1991). 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)).

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).

As to Wellpath/Medical, the same standard applies. “When 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.” Buckner v. Toro, 116 F.3d 450, 452 (11th Cir. 1997). The

entity thus “becomes the functional equivalent of the municipality.” Id. Since “[a] municipality

can be liable under § 1983 only where the alleged constitutional harm is the result of a custom or

policy[,]” a plaintiff suing a private entity under the civil-rights statutes must show that “a custom

or policy” caused the alleged constitutional violation. Brennan v. Headley, 807 F. App’x 927, 937-

38 (11th Cir. 2020) (alterations added); see also James v. Bartow Cnty., Ga., 798 F. App’x 581,

586 (11th Cir. 2020) (same).

Here, Plaintiff has not alleged the existence of a custom or policy. Thus, his claims against

Palm Beach County Sheriff’s Office and Wellpath/Medical must be dismissed.

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 complaint.

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

wishes to pursue this action. Consistent with the goal of Fed. R. Civ. P. 8, the amended complaint

and its memorandum shall not exceed twenty pages in length.

V. CONCLUSION

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. On or before March 1, 2022,

Plaintiff shall either pay the $402.00 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 March 1, 2022, 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.

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

Case No.: 22-CV-80191-BLOOM, so that it will be filed in this case.

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

Case No. 22-cv-80191-BLOOM

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

fee, or file a renew 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 alongside

this Order.

DONE AND ORDERED in Chambers at Miami, Florida, on February 8, 2022.

UNITED STATES DISTRICT JUDGE

Copies to:

Counsel of Record

Joevon Marquise Joseph, Pro Se

#0413465

598 West 2 Street

Riviera Beach, FL 33404