McCormick v. Martin

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 23-cv-22526-BLOOM

DANIEL MCCORMICK,

Plaintiff,

v.

INEZ MARTIN, et. al.,

Defendants.

_______________________________________/

ORDER REQUIRING AMENDED COMPLAINT

THIS CAUSE came before the Court on pro se Plaintiff, Daniel McCormick’s Complaint

for Violation of Civil Rights (“Complaint”), ECF No. [1], filed on June 29, 2023.1 Plaintiff, a

convicted a sentenced state prisoner, files suit against four employees and one former inmate at

the Dade Correctional Institution (“Dade C.I.”). Plaintiff alleges that he was assaulted by a

correctional officer and another inmate in two separate incidents and the facility denied him

adequate medical care and sought to cover up the incidents. See generally id.

Plaintiff is ordered to amend his Complaint in accordance with this Order.

I. BACKGROUND

Plaintiff files this suit against two correctional officers, Sergeant Inez Martin (“Defendant

Sgt. Martin”) and Sergeant Bryant2 (Defendant Sgt. Bryant). See id. at 2–3.3 He also lists as

1 “Under the ‘prison mailbox rule,’ a pro se prisoner’s court filing is deemed filed on the date it is delivered

to prison authorities for mailing.” Williams v. McNeil, 557 F.3d 1287, 1290 n.2 (11th Cir. 2009) (citations

omitted).

2 Plaintiff does not provide a first name, shield number, or other identifying information for Defendant

Sgt. Bryant.

3 The Court uses the pagination generated by the electronic CM/ECF database, which appears in the

headers of all court filings.

Defendants the Warden, Mr. Jose Colon (“Defendant Warden Colon”), and Dr. Frank Papillon

(“Defendant Dr. Papillon”), the Chief Medical Officer. See id. Finally, he sues Alfred Lee DC #

M39613 (“Defendant Inmate Lee”), another inmate who has since been released from prison. See

id. at 3.4 All Defendants are sued in their individual and official capacities other than Defendant

Inmate Lee. See id. at 2–3.

Plaintiff’s allegations stem “from two different incidents” that occurred while he was

incarcerated at Dade C.I. ECF No. [1] at 23. First, on May 7, 2020, at approximately 5:00 p.m. he

alleges that Defendant Sgt. Martin snatched his wheelchair out from under him causing him to fall

backwards, resulting in serious injuries. See id. at 4–5. Second, he alleges that in November 2020,

Defendant Sgt. Martin retaliated against him for grievances that Plaintiff filed against her

concerning the first incident. See id. at 9. Specifically, he alleges that he was beaten by another

inmate, Defendant Inmate Lee, at the direction of Defendant Sgt. Martin. See id.

Plaintiff filed grievances concerning the attack, but he alleges that Defendant Sgt. Bryant

“internationally and knowingly submitted falsified reports consisting of inaccurate and untruthful

information[.]” Id. at 12. Specifically, he alleges that Defendant Sgt. Bryant wrote in reports that

two inmates were fighting, but intentionally omitted Defendant Inmate Lee’s name “to help cover

this incident up.” Id. He further alleges that Defendant Sgt. Bryant omitted witness statements that

corroborated Plaintiff’s version of events. See id.

Plaintiff additionally alleges that he was denied medical care following both incidents

despite suffering severe injuries. See id. at 13.

4 Plaintiff is unable to provide an address for Defendant Inmate Lee. See id.

II. LEGAL STANDARD

Plaintiff has been granted permission to proceed in forma pauperis (“IFP”) and is therefore

subject to the screening provisions of 28 U.S.C. § 1915(e)(2). See Farese v. Scherer, 342 F.3d

1223, 1228 (11th Cir. 2003). Under § 1915(e)(2), a case is subject to dismissal if the action is: (1)

“frivolous or malicious,” (2) “fails to state a claim on which relief may be granted,” or (3) “seeks

monetary relief from a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B)(i)-

(iii).

To state a claim for relief under § 1983, Plaintiff must show that he was deprived of a

federal right by a person acting under color of state law. See Griffin v. City of Opa-Locka, 261 F.3d

1295, 1303 (11th Cir. 2001). In order to “avoid dismissal for failure to state a claim, a complaint

must contain factual allegations that, when accepted as true, allow the court to draw the reasonable

inference that the defendant is liable for the alleged misconduct.” Wright v. Miranda, 740 F. App’x

692, 694 (11th Cir. 2018) (citing Waldman v. Conway, 871 F.3d 1283, 1289 (11th Cir. 2017) (per

curiam). Although a pro se pleading is liberally construed, it must still “suggest that there is some

factual support for a claim.” Id. (citations omitted). Thus, the allegations in a complaint require

more than mere labels and legal conclusions. See Quality Auto Painting Ctr. of Roselle, Inc. v.

State Farm Indem. Co., 917 F.3d 1249, 1262 (11th Cir. 2019). However, 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, 603 (11th Cir. 2019) (per curiam) (quoting Campbell v. Air Jamaica Ltd.,

760 F.3d 1165, 1169 (11th Cir. 2014).

In addition, shotgun pleadings are not allowed — even from pro se plaintiffs. There are

four types of shotgun pleadings that violate Federal Rules of Civil Procedure 8(a), 10(b), or both:

The most common type — by a long shot — is a complaint 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. The next most common type . . . is a complaint

that does not commit the mortal sin of re-alleging all preceding counts but is guilty

of the venial sin of being replete with conclusory, vague, and immaterial facts not

obviously connected to any particular cause of action. The third type of shotgun

pleading is one that commits the sin of not separating into a different count each

cause of action or claim for relief. Fourth, and finally, there is the relatively rare

sin of asserting 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.

Weiland v. Palm Beach Cnty. Sheriff’s Off., 792 F.3d 1313, 1321–23 (11th Cir. 2015). The

“unifying characteristic” of shotgun pleadings is they “fail . . . to give the defendants adequate

notice of the claims against them and the grounds upon which each claim rests.” Id. at 1323.

III. PLAINTIFF’S CLAIMS FOR RELIEF

A. Official Capacity Claims

As discussed, Plaintiff seeks to sue all Defendants — aside from Defendant Inmate Lee —

in their individual and official capacities. Regarding the official capacity claims, a suit against a

state officer, employee, or agent in his or her official capacity is in actuality “an action against an

entity of which an officer is an agent.” Kentucky v. Graham, 473 U.S. 159, 165 (1985) (quoting

Monell v. New York City Dept. of Social Servs., 436 U.S 658, 690 n.55 (1978) (“Official-capacity

suits ... ‘generally represent only another way of pleading an action against an entity of which an

officer is an agent.’ ”)); see also Faulkner v. Monroe Cnty Sheriff's Dept., 523 F. App'x 696, 701

(11th Cir. 2013) (“A suit against a person in their official capacity is treated as a suit against the

entity.”). Because those Defendants are employed by the Florida Department of Corrections

(“FDOC”), the official capacity claims are the equivalent of claims against the FDOC.

“To impose § 1983 liability on [the FDOC], a plaintiff must show: (1) that his constitutional

rights were violated; (2) that the [FDOC] had a custom or policy that constituted deliberate

indifference to that constitutional right; and (3) that the policy or custom caused the violation.”

Garcia v. Leavins, 2021 WL 3476623, at *4 (N.D. Fla. June 25, 2021), report and recommendation

adopted, No. 2021 WL 3472797 (N.D. Fla. Aug. 5, 2021) (alterations adopted; citing McDowell

v. Brown, 392 F.3d 1283, 1289 (11th Cir. 2004). A government entity, such as the FDOC, may be

liable in a section 1983 action “only where the [government entity] itself causes the constitutional

violation at issue.” Cook ex. rel. Estate of Tessier v. Sheriff of Monroe Cty., Fla., 402 F.3d 1092,

1116 (11th Cir. 2005). Thus, in an official capacity suit, plaintiff must establish that an official

policy or custom of the government entity was the “moving force” behind the alleged

constitutional deprivation. See Monell v. Dep't of Soc. Servs., 436 U.S. 658, 693–94 (1978);

Graham, 473 U.S. at 166 (“[I]n an official capacity suit the entity's ‘policy or custom’ must have

played a part in the violation of federal law.”).

Plaintiff fails to identify a specific policy or procedure nor does he explain how the policy

or procedure caused the violation. This is insufficient. See Oxford Asset Mgmt., Ltd. v. Jaharis,

297 F.3d 1182, 1188 (11th Cir. 2002) (“[C]onclusory allegations, unwarranted deductions of facts

or legal conclusions masquerading as facts will not prevent dismissal.”). To avoid dismissal,

Plaintiff must demonstrate that the FDOC had a custom or policy and he must further show that

the custom or policy caused his alleged constitutional violations. Plaintiff shall have one

opportunity to amend his official capacity claims.5

B. Individual Capacity Claims: Defendant Warden Colon and Defendant Dr. Papillon

For a supervisor to be liable for the misconduct of his subordinates, he must be causally

connected to the constitutional violation, such as by implementing an unlawful policy or

disregarding multiple prior reports of misconduct. See, e.g., Alston v. Swarbrick, 954 F.3d 1312,

1321 (11th Cir. 2020); Piazza v. Jefferson Cty., Ala., 923 F.3d 947, 957 (11th Cir. 2019); Fulwood

5 Plaintiff is also encouraged to consider withdrawing these claims — and other claims identified

in this Order that lack legal merit — to focus on his stronger, legally-sufficient claims.

v. Fed. Bureau of Prisons, 568 F. App’x 753, 756 (11th Cir. 2014) (per curiam). Plaintiff fails to

allege any causal connection between Defendant Warden Colon and Defendant Dr. Papillon and

the constitutional violations by Defendant Sgt. Martin and Defendant Sgt. Bryant. Their status as

supervisors is not enough. See Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009) (noting that

“supervisory liability” is a misnomer). Plaintiff fails to allege sufficient facts to establish that

Defendant Warden Colon and Defendant Dr. Papillon were personally involved in the alleged

constitutional violations. See id. Plaintiff shall have one opportunity to amend his individual

capacity claims against those Defendants.

C. Excessive Force: Defendant Sgt. Martin

It is unclear whether Plaintiff alleges claims of indeliberate indifference and/or excessive

force against Defendant Sgt. Martin. See ECF No. [1] at 14 (stating that Defendant Sgt. Martin

“exercised deliberate indifference by unlawfully using an excessive force toward Plaintiff leading

to injury[.]”). To avoid dismissal as a shotgun pleading, Plaintiff must specify what claim or claims

are being alleged against each individual Defendant and what facts are provided in support. See

Weiland, 792 F.3d at 1323.

Although Plaintiff does not clearly name excessive force as a basis for relief against

Defendant Sgt. Martin, the Court is required to construe pro se pleadings liberally, and the facts

alleged — that Defendant Sgt. Martin pulled Plaintiff’s wheelchair out from under him resulting

in injuries — give rise to a plausible claim for excessive force in violation of the Eighth

Amendment. See Wilkins v. Gaddy, 559 U.S. 34, 37 (2010) (noting that the “core judicial inquiry”

for excessive force is “whether force was applied in a good-faith effort to maintain or restore

discipline, or maliciously and sadistically to cause harm.” (citations omitted)). Plaintiff has thus

minimally stated a claim of excessive force against Defendant Sgt. Martin. However, because the

Court grants Plaintiff leave to amend his entire Complaint, he may also supplement this claim on

replead. Plaintiff is reminded that he must allege all claims for relief individually so that Defendant

Sgt. Martin is afforded “adequate notice of the claims against [her] and the grounds upon which

each claim rests.” Weiland, 792 F.3d at 1323.

D. Conspiracy: Defendant Sgt. Martin and Defendant Inmate Lee

As discussed, Defendant Inmate Lee is a private party. To sue a private party under § 1983,

a plaintiff must establish that the private party conspired with state actors to violate the plaintiff’s

constitutional rights. See Bendiburg v. Dempsey, 909 F.2d 463, 468 (11th Cir. 1990). “To establish

a prima facie case of section 1983 conspiracy, a plaintiff must show, among other things, that the

defendants reached an understanding to violate [his] rights. Rowe v. City of Fort Lauderdale, 279

F.3d 1271, 1283 (11th Cir. 2002).

Plaintiff alleges that Defendant Sgt. Martin oversaw his dorm and facilitated the attack by

placing Defendant Inmate Lee, a non-ADA inmate, into an ADA bed next to Plaintiff. See ECF

No. [1] at 18. He further alleges that during the attack, Defendant Inmate Lee “stated that this was

due to the Plaintiff’s complaint against Sgt. Martin.” Id. at 9. Plaintiff minimally states a claim of

section 1983 conspiracy between Defendant Sgt. Martin and Defendant Inmate Lee. Because the

Court grants Plaintiff leave to amend his entire Complaint, he may also supplement this claim on

replead. Plaintiff must also clarify whether he is requesting that the Court take supplemental

jurisdiction over the state tort claim of battery against Defendant Inmate Lee. See 28 U.S.C. §

1367(a) (“[T]he district courts shall have supplemental jurisdiction over all other claims that are

so related to claims in the action within such original jurisdiction that they form part of the same

case or controversy[.]”).

E. Retaliation: Defendant Sgt. Bryant

Liberally construed, Plaintiff seeks to allege a claim of retaliation against Defendant Sgt.

Bryant. Plaintiff alleges that Defendant Sgt. Bryant submitted false statements against him in

reports concerning the November 2020 attack. See ECF No. [1] at 17. To prevail on a claim of

retaliation an “inmate must establish: (1) his speech was constitutionally protected; (2) the inmate

suffered adverse action such that the administrator's allegedly retaliatory conduct would likely

deter a person of ordinary firmness from engaging in such speech; and (3) there is a causal

relationship between the retaliatory action and the protected speech.” Smith v. Mosley, 532 F.3d

1270, 1276 (11th Cir. 2008). Here, the Complaint lacks facts showing a causal relationship

between the retaliatory action (the alleged false statements) and the protected speech (the

grievances Plaintiff filed against Defendant Sgt. Martin). Plaintiff shall have one opportunity to

amend this claim.6

F. Retaliation: Defendant Sgt. Martin

Plaintiff fails to clearly identify retaliation as a basis for relief against Defendant Sgt.

Martin. However, the facts alleged — that Defendant Sgt. Martin enlisted an inmate to beat

Plaintiff in retaliation for his filing grievances against her — minimally states a claim of retaliation.

See Mosley, 532 F.3d at 1276. Because the Court grants Plaintiff leave to amend his entire

Complaint, he may also supplement this claim on replead.

6 If Plaintiff persists in this claim, he should provide additional identifying information — for example, a

first name, shield number, or duty station — so that Defendant Sgt. Bryant can be identified for service.

See Fed. R. Civ. P. 10(a) (requiring that a pleading “name all the parties[.]”); Dean v. Barber, 951 F.2d

1210, 1215 n.6 (11th Cir. 1992) (concluding that a plaintiff may only sue a fictitious party where he

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

G. Denial of Medical Care

To prevail on a claim of deliberate indifference to medical needs, a plaintiff must

demonstrate: (1) an objective component by showing he has a serious medical need; (2) a

subjective component, by showing the official acted with deliberate indifference to that need; and

(3) causation between that indifference and the plaintiff’s injury. See Estelle v. Gamble, 429 U.S.

97, 104–05 (1976).

Plaintiff states that “[t]he injuries from these two incidents were never treated and to date

no treatment has been given. The Plaintiff has been transferred twice since being at Dade C.I.”

ECF No. [1] at 13. Plaintiff complains mainly about the denial of medical care at the two new

facilities. See id. However, all the listed Defendants are from Dade C.I. and have no involvement

with Plaintiff’s medical care at the other facilities.

Moreover, as discussed, Defendant Dr. Papillon and Defendant Warden Colon cannot be

held liable based solely on their status as supervisors. Regarding Defendant Sgt. Martin and

Defendant Sgt. Bryant, Plaintiff fails to allege facts to explain how they were personally involved

in denying him medical care. Plaintiff has offered only vague and conclusory allegations that fail

to notify those Defendants of the claims against them. Plaintiff shall have one opportunity to

amend.

IV. CONCLUSION

For the foregoing reasons, it is ORDERED as follows:

1. On or before August 11, 2023, Plaintiff shall file an Amended Complaint that cures the

abovementioned deficiencies. The Amended Complaint must be signed under the penalty of

perjury and must provide a short and plain statement of all claims for relief, a basis for federal

jurisdiction, and a demand for judgment.

Case No. 23-cv-22526-BLOOM

2. Plaintiff shall file the Amended Complaint on this District’s form for section 1983

actions, which he must fill out completely. The Clerk is DIRECTED to provide Plaintiff with this

District’s form for section 1983 actions alongside this Order.

3. The Amended shall be the sole operative pleading considered in this case; only the

claims alleged therein will be addressed by the Court. Therefore, the Amended Complaint must

not refer to the original complaint or incorporate by reference claims raised or arguments made

therein. Similarly, the Amended Complaint must not incorporate by reference arguments or text

from any other documents, including any exhibits.

4. The Amended Complaint must contain a separate paragraph as to each defendant

explaining what the defendant did and the supporting facts to show why that person is being sued.

5. The Amended Complaint must be labeled “Amended Complaint” and the case number

23-cv-22526-Bloom so that it will be filed in this case.

6. Plaintiff must not expand the scope of the case by alleging new unrelated claims, or

adding new unrelated defendants, in the Amended Complaint. See George v. Smith, 507 F.3d 605,

607 (7th Cir. 2007).

7. The Plaintiff is warned that failure to file the Amended Complaint by August 11, 2023

and in compliance with this Order will result in dismissal of this case. See Fed. R. Civ. P. 41(b).

DONE AND ORDERED in Chambers at Miami, Florida, on July 12, 2023.

UNITED STATES DISTRICT JUDGE

10

Copies to:

Daniel McCormick

185105

Blackwater River Correctional Facility

Inmate Mail/Parcels

5914 Jeff Ates Road

Milton, FL 32583

PRO SE