Keith Robert Doherty v. Deputy Mark Borrow

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 23-cv-14395-ALTMAN

KEITH ROBERT DOHERTY,

Plaintiff,

v.

MAJOR HAYZE, et al.,

Defendants.

_______________________________/

ORDER

Our Plaintiff, Keith Robert Doherty, has filed an amended civil rights complaint under 42

U.S.C. § 1983, seeking monetary and injunctive relief for (what he claims were) two excessive-force

incidents at the St. Lucie County Jail. See Amended Complaint [ECF No. 5]. Having screened the

Amended Complaint under the provisions of 28 U.S.C. § 1915A, we’ll allow Doherty’s excessive-force

claims against Deputy Burrows and Sergeant Phillips to PROCEED, but we DISMISS all his other

claims.

THE LAW

The Court “shall review . . . a complaint in a civil action in which a prisoner seeks redress from

a governmental entity or officer or employee of a governmental entity.” 28 U.S.C. § 1915A (emphasis

added). The definition of a “prisoner” includes “any person incarcerated or detained in any facility

who is . . . accused of [or] convicted of . . . violations of criminal law.” Id. §1915A(c). In conducting

its screening of a prisoner’s complaint, the Court must “dismiss the complaint, or any portion of the

complaint,” when it is: (1) “frivolous, malicious, or fails to state a claim upon which relief may be

granted”; or (2) “seeks monetary relief from a defendant who is immune from such relief.” Id. §

1915A(b).

To state a claim upon which relief may be granted, a complaint’s factual allegations “must be

enough to raise a right to relief above the speculative level”—with “enough facts to state a claim to

relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007). Under this

standard, legal conclusions “are not entitled to the assumption of truth” and are insufficient to state a

claim. Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). Moreover, “[w]here a complaint pleads facts that are

merely consistent with a defendant’s liability, it stops short of the line between possibility and

plausibility of entitlement to relief.” Id. at 678 (cleaned up).

ANALYSIS

Doherty has divided his Amended Complaint into two counts, through which he names eight

Defendants: St. Lucie County, Major Petri Hayze, Deputy Burrows, Sergeant Phillips, “Wellpath

Medical Provider,” Dr. John Doe, two Nurse Jane Does, and Adam Sterlace. See Amended Complaint

at 13–14. In Count 1, Doherty alleges that, on August 30, 2023, Deputy Burrows “grabb[ed] him by

the throat,” “slam[med] him against the wall,” and “threaten[ed] to kill” him. Id. ¶¶ 11–12. Doherty

asserts that he “was in handcuffs and ankle shackles” when Deputy Burrows attacked him, and he

says that Burrows was retaliating against him because Burrows’s supervisor “reprimanded” Burrows

for interfering with Doherty’s “legal paperwork.” Id. ¶¶ 11, 13. In Count 2, Doherty claims that Deputy

Burrows, Sergeant Phillips, “and numerous other John Doe deputies” attacked him on November 28,

2023. Id. ¶ 18. Doherty avers that he “was handcuffed behind his back on his knees” and was “showing

no resistance and [was] in complete compliance” when this second attack occurred. Id. ¶ 19. Doherty

also alleges that “Dr. John Doe and 2 nurse Jane Does were present during the entire [second] assault

and did not offer medical assistance,” id. ¶ 23, and that Major Hayze refused to investigate the attack

despite “multiple” requests, id. ¶ 29.

We’ll start with Doherty’s excessive-force claims against Deputy Burrows in Count 1 and

Deputy Burrows and Sergeant Phillips in Count 2. Doherty is a pretrial detainee, see id. at 4, so his

claims fall under the rubric of the Fourteenth Amendment, see Crocker v. Beatty, 995 F.3d 1232, 1247

(11th Cir. 2021) (“[T]he Fourteenth Amendment has been interpreted to protect ‘pretrial detainees’

from excessive force.”). To assert a Fourteenth Amendment excessive-force claim, Doherty “needn’t

prove an officer’s subjective intent to harm but instead need show only that ‘the force purposely or

knowingly used against him was objectively unreasonable.’” Piazza v. Jefferson Cnty., Ala., 923 F.3d 947,

952 (11th Cir. 2019) (quoting Kingsley v. Hendrickson, 576 U.S. 389, 397 (2015)). The Eleventh Circuit

has repeatedly held that, if a detainee is compliant and not resisting, “there is no longer a need for

force,” so “the continuing use of force is impermissible when a detainee is complying, has been forced

to comply, or is clearly unable to comply.” Id. at 953 (quoting Danley v. Allen, 540 F.3d 1298, 1309

(11th Cir. 2008)); see also Skelly v. Okaloosa Cnty. Bd. of Cnty. Comm’rs, 456 F. App’x 845, 848 (11th Cir.

2012) (“Under Skelly’s version of events, there was no need for the use of force, much less for the

amount of force used. Such a gratuitous use of [force] on a handcuffed and compliant pretrial detainee

constitutes a violation of the Fourteenth Amendment’s prohibition on the use of excessive force.”).

Doherty has stated plausible excessive-force claims against these two Defendants. According

to Doherty, Burrows “grabb[ed] him by the throat” and “slam[med] him against the wall” on August

30, 2023 (Count 1). Amended Complaint ¶ 11. Then, on November 28, 2023, Burrows and Phillips

grabbed Doherty’s wrist and lifted him up—which “crushed [Doherty’s] fingers and fractur[ed] his

left hand and wrist”—before slamming him onto the concrete floor (Count 2). Id. ¶¶ 22–23. Doherty

also says that Phillips attempted to cover up the Defendants’ November 28 use of force by

“manipulating the surveillance cameras.” Id. ¶ 22. In both instances, Doherty alleges that he was

handcuffed, compliant, and not resisting in any way. See id. ¶¶ 11, 19. Since it’s objectively unreasonable

to use force against a pretrial detainee who is “complying, has been forced to comply, or is clearly

unable to comply,” Piazza, 923 F.3d at 952, Doherty’s excessive-force claims against Burrows and

Phillips may proceed.

But Doherty cannot maintain his claims against Doctor John Doe and the two sNurse Jane

Doe. Doherty says that an unnamed doctor and two unnamed nurses “were present” on November

28, 2023, but “did not offer medical assistance,” even though it “was clearly visible” that Doherty had

suffered physical injuries. Amended Complaint ¶¶ 23–24. This sounds like a deliberate-indifference-to-

serious-medical-needs claim, since Doherty is saying that these Defendants “intentionally deni[ed] or

delay[ed] access to medical care[.]” Brown v. Johnson, 387 F.3d 1344, 1351 (11th Cir. 2004) (cleaned up).

But “fictitious-party pleading is not permitted in federal court.” Richardson v. Johnson, 598 F.3d 734, 738

(11th Cir. 2010). Although a plaintiff isn’t always required “to use a party’s real name,” he must still

describe the unnamed defendant “with sufficient clarity” so that he or she can be identified by a

process server. Dean v. Barber, 951 F.2d 1210, 1215–16 (11th Cir. 1992); see also Richardson, 598 F.3d at

738 (“We have created a limited exception to [the fictious-party pleading] rule when the plaintiff’s

description of the defendant is so specific as to be at the very worst, surplusage.” (cleaned up)).

Doherty has given us no details about Dr. John Doe or the two Nurse Jane Does—other than

identifying their genders and saying that they “were present” on November 28, 2023. See Amended

Complaint ¶¶ 23–24. Because this barebones description is insufficient to “identify the defendant[s]

among the many [doctors and nurses] employed” at the St. Lucie County Jail, Richardson, 598 F.3d at

738, Doherty cannot sustain his deliberate-indifference claims against these three Defendants. We

therefore DISMISS without prejudice Doherty’s claim against Dr. John Doe and the two Nurse Jane

Does. If Doherty can properly identify these Defendants, he may file an amended complaint against

them. See FED. R. CIV. P. 15(a)(2) (“[A] party may amend its pleading only with the opposing party’s

consent or the court’s leave. The court should freely give leave when justice so requires.”).

We also dismiss Doherty’s claim against Major Hayze—this time with prejudice. We previously

told Doherty that he couldn’t sue Hayze “on the basis of respondeat superior or vicarious liability.”

Order to Amend [ECF No. 4] at 6 (quoting Cottone v. Jenne, 326 F.3d 1352, 1360 (11th Cir. 2003)).

Instead, we explained, Doherty had to show “either that [Hayze] personally participated in the alleged

unconstitutional conduct or that there is a causal connection between [Hayze’s actions] and the alleged

constitutional deprivation.” Ibid. (cleaned up & quoting Christmas v. Harris Cnty., Ga., 51 F.4th 1348,

1355 (11th Cir. 2022)). In his Amended Complaint, Doherty relies on both theories of liability. First,

he says that Major Hayze refused to review the November 28, 2023, incident—despite receiving

“multiple” requests to do so. Amended Complaint ¶ 29. Second, he alleges that Hayze is a “de facto

official policy maker” who fostered a “policy and custom of encouraging, tolerating, permitting, and

ratifying a pattern of illegal and excessive use of force[.]” Id. ¶¶ 41–42. Neither argument is persuasive.

For starters, Hayze’s failure to adequately review and respond to Doherty’s grievances doesn’t

implicate the Constitution—and thus cannot support a proper § 1983 claim. See Bingham v. Thomas,

654 F.3d 1171, 1177 (11th Cir. 2011) (“Moreover, as various circuits have held when ruling on an

inmate’s claim that he was denied use of a prison’s grievance procedure, an inmate has no

constitutionally-protected liberty interest in access to that procedure.”); see also, e.g., Carter v. McCullen,

2023 WL 6120616, at *3 (11th Cir. Sept. 19, 2023) (“As to Carter’s claims that Assistant Warden

McCullen failed to respond (or ensure a response) to the grievances . . . we conclude that Carter failed

to state a claim because he didn’t allege a deprivation of his constitutionally protected liberty

interest.”).

Doherty also hasn’t asserted a viable supervisory-liability claim against Hayze. Doherty

contends that Hayze has a “policy and custom” of tolerating “a pattern of illegal and excessive use of

force[.]” Amended Complaint ¶ 42. In other words, Doherty is saying that Hayze implicitly “ratified”

the unconstitutional conduct of his subordinates by intentionally failing to act against them when they

deployed excessive force against detainees. See Ingram v. Kubik, 30 F.4th 1241, 1256 (11th Cir. 2022)

(“And this Court has clearly established that ‘a custom of allowing the use of excessive force provides

the requisite fault, as a persistent failure to take disciplinary action against officers can give rise to the

inference that a supervisor has ratified conduct.’” (cleaned up & quoting Fundiller v. City of Cooper City,

777 F.2d 1436, 1443 (11th Cir. 1985))). But, to prevail on a “ratification theory,” Doherty must still

show that he was injured because of “a policy that cause[d] [Hayze’s] subordinates to believe that they

[could] permissibly violate another’s constitutional rights.” Ibid. (emphasis added); see also City of St.

Louis v. Praprotnik, 485 U.S. 112, 130 (1988) (plurality opinion) (“It would also be a different matter if

a series of decisions by a subordinate official manifested a ‘custom or usage’ of which the supervisor

must have been aware. . . . [T]he supervisor could realistically be deemed to have adopted a policy that

happened to have been formulated or initiated by a lower-ranking official.”). And “random acts or

isolated incidents are insufficient to establish a custom or policy.” Depew v. City of St. Marys, Ga., 787

F.2d 1496, 1499 (11th Cir. 1986).

Doherty doesn’t allege any such policy or custom here. His only “proof” of such a policy are

his own two assaults over a four-month span. As the Eleventh Circuit has explained, however,

“random acts or isolated incidents are insufficient to establish a custom or policy.” Ibid.; see also Craig

v. Floyd Cnty., Ga., 643 F.3d 1306, 1310 (11th Cir. 2011) (“A pattern of similar constitutional violations

is ordinarily necessary [to impose liability].” (emphasis added & cleaned up)); cf. Whitaker v. Miami-Dade

Cnty., 126 F. Supp. 3d 1313, 1321 (S.D. Fla. 2015) (Lenard, J.) (holding that “four shootings . . . [in] a

nine-month span” was insufficient proof that Miami-Dade County had a policy or custom of allowing

excessive force). Because Doherty has failed (for a second time) to show a “causal connection”

between his injuries and Major Hayze’s conduct, we DISMISS the claim against Hayze with prejudice.

In doing so, we find that any future amendment of this claim would be “futile.” See Burger King Corp.

v. Weaver, 169 F.3d 1310, 1320 (11th Cir. 1999) (“This court has found that denial of leave to amend

is justified by futility when the complaint as amended is still subject to dismissal.”); see also Lebron v.

Johns, 2023 WL 7182230, at *3 (S.D. Fla. Nov. 1, 2023) (Ruiz, J.) (“A pro se plaintiff typically ‘must be

given at least one chance to amend his complaint’ before it is dismissed, but there is no need to give

pro se parties additional opportunities to amend when further amendment would be futile—such as

when ‘after being put on notice of the specific defects in his complaint, Plaintiff filed an amended

complaint afflicted with the same defects.’” (cleaned up) (first quoting Bank v. Pitt, 928 F.2d 1108,

1112 (11th Cir. 1991); and then quoting Jackson v. Bank of Am., N.A., 898 F.3d 1348, 1358 (11th Cir.

2018))). This is now the second time we’ve dismissed Doherty’s claim against Major Hayze. Given

that we told him specifically how to cure the defects in this claim the last time around, we don’t think

Doherty can do much better than he’s done here.

Finally, we dismiss with prejudice Doherty’s remaining claims against the other Defendants (St.

Lucie County, Wellpath, and Adam Sterlace) for two reasons. First, Doherty doesn’t advance a single

allegation against any of these Defendants in his Amended Complaint. See generally Amended

Complaint. Since he’s thus failed to meet his burden of adducing “enough facts to state a claim to

relief that is plausible on its face,” we dismiss his claims against them. Twombly, 550 U.S. at 570; see also

Arnold v. McFall, 839 F. Supp. 2d 1281, 1287 (S.D. Fla. 2011) (Middlebrooks, J.) (dismissing claim

where the plaintiff “fail[ed] to allege any facts to support his allegation”). Second, these three

Defendants are either municipalities or supervisory officials or entities. As we’ve explained, to state a

viable claim against a municipality or supervisory official, Doherty must allege the existence of a

“policy or custom that caused his injury.” Order to Amend at 6 (quoting Gold v. City of Miami, 151 F.3d

1346, 1350 (11th Cir. 1998)). And, as we’ve said, Doherty cannot establish an unconstitutional policy

or custom by relying only on the two attacks Burrows and Phillips perpetrated against him. We

therefore DISMSS with prejudice Doherty’s claims against St. Lucie County, Wellpath, and Sterlace. See

Weaver, 169 F.3d at 1320; Lebron, 2023 WL 7182230, at *3.1

1 This is now the second time we’ve dismissed with prejudice Doherty’s claim against St. Lucie County

for failure to allege an illegal policy or custom. See Order to Amend at 7 (“Since Doherty fails to state

a claim against . . . St. Lucie County—and because any further ‘amendment . . . would be futile,’—we

DISMISS with prejudice Dohbery’s claim[ ] against [St. Lucie County].” (cleaned up & quoting Bryant

v. Dupree, 252 F.3d 1161, 1163 (11th Cir. 2001))).

* * *

Having screened the Complaint under the provisions of § 1915A, we hereby ORDER AND

ADJUDGE as follows:

1. Count 1 of Doherty’s Amended Complaint [ECF No. 5] shall PROCEED against Deputy

Burrows. Count 2 of the Amended Complaint shall PROCEED against Deputy Burrows

and Sergeant Phillips.

2. Doherty’s claims against Dr. John Doe and the two Nurse Jane Does are DISMISSED

without prejudice.

3. Doherty’s remaining claims are DISMISSED with prejudice for failure to state a claim

upon which relief may be granted. See 28 U.S.C. § 1915A(b). The Clerk shall

TERMINATE St. Lucie County, Major Hayze, Wellpath, Dr. John Doe, the two Nurse

Jane Does, and Adam Sterlace from this action.

4. The Plaintiff’s amended motion to proceed in forma pauperis [ECF No. 6] is GRANTED.

The Plaintiff shall owe the United States $350.00, which the Plaintiff must pay to the Clerk

of Court as funds become available. To effectuate those payments, the agency with custody

over the Plaintiff must forward these payments from the Plaintiff’s prisoner account to

the Clerk of Court anytime the account balance exceeds $10.00. That agency shall continue

to make these payments until the Plaintiff has paid the filing fees in full. The Clerk SHALL

send a copy of this Order to the St. Lucie County Jail’s Inmate Trust Fund Department

and this Court’s Financial Department.

5. We will direct the U.S. Marshals Service to serve the appropriate Defendants in a separate

order. See FED. R. CIV. P. 4(c)(3).

6. This case shall remain CLOSED. Any party may move to reopen the case once all

remaining Defendants have been served.

DONE AND ORDERED in the Southern District of Florida on January 23, 2024.

ROY K. ALTMAN

UNITED STATES DISTRICT JUDGE

ce: Keith Robert Doherty, pro se

St. Lucie County Jail

Inmate Trust Fund Department

900 North Rock Road

Fort Pierce, FL 34945

Financial Department,

United States District Court, Southern District of Florida