The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
KENNETH MCCLELLEN
ADKINS,
Plaintiff,
v. Case No.: 2:24-cv-199-SPC-KCD
CHARLOTTE C.I., NOE,
CENTURION MEDICAL and
F.D.O.C. TALLAHASSEE,
Defendants.
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OPINION AND ORDER
Before the Court is Plaintiff Kenneth Adkins’ Second Amended
Complaint (Doc. 18). Adkins is a prisoner of the Florida Department of
Corrections (FDOC) and filed this 42 U.S.C. § 1983 action pro se. On May 13,
2024, the Court dismissed Adkins’ first amended complaint for failure to state
a claim and gave him leave to file a second amended complaint within 21 days.
Because the Court had not received a second amended complaint by June 21,
2024, it entered judgment and closed this case. But later that day, the Clerk
docketed Adkins’ Second Amended Complaint, which he delivered to prison
officials for mailing—and thus constructively filed—on May 21, 2024.1 The
Court will set aside the judgment and reopen the case.
Because Adkins is litigating this action in forma pauperis, the Court
must screen this complaint under 28 U.S.C. § 1915(e)(2), as it did Adkins’ two
prior complaints. Adkins’ Second Amended Complaint names four defendants,
but it only states a plausible claim against Dr. Noe. Adkins alleges Dr. Noe
violated his Eighth Amendment rights by refusing to treat his diagnosed case
of Hepatitis C. The Court finds that claim sufficient to survive preliminary
review, though Noe is still free to challenge it in a motion to dismiss.
Adkins’ remaining claims fail for two reasons. First, the claims against
Charlotte C.I. and the FDOC are based on officials’ denial of grievances. A
prison grievance procedure does not create a protected liberty interest, so
Adkins has no federal constitutional right within that procedure. See Charriez
v. Sec’y, Dep’t of Corr., 596 F. App’x 890, 896 (2015).
Second, Adkins has not stated sufficient facts to hold a governmental
agency—or an entity like Centurion that performs governmental functions
under contract with the state—liable under § 1983. Governmental agencies
cannot be held liable under § 1983 on a respondeat superior theory. Monell v.
Dep’t of Soc. Sec. of City of New York, 436 U.S. 658, 691 (1978). Rather, a
1 The Court notes that the USPS stamped the envelope on May 23, 2024, so prison officials
were not responsible for the mailing delay.
plaintiff must prove the agency itself caused him injury by showing: “(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 (8) that the policy or custom caused the violation.” McDowell v. Brown,
392 F.3d 12838, 1289 (11th Cir. 2004). Adkins does not allege that Charlotte
C.I., the FDOC, or Centurion have a custom or policy that caused a violation
of his constitutional rights. The Court will dismiss the claims against those
defendants.
Accordingly, it is now
ORDERED:
(1) The Court VACATES its June 21, 2024 Endorsed Order (Doc. 15) and
SETS ASIDE the Judgment (Doc. 16). The Clerk is DIRECTED to
reopen this case.
(2) Adkins’ claims against Charlotte C.I., the FDOC, and Centurion
Medical are DISMISSED without prejudice. The Clerk is
DIRECTED to terminate them as parties to this case.
DONE and ORDERED in Fort Myers, Florida on June 25, 2024.
UNITED STATES DISTRICT JUDGE
SA: FTMP-1
Copies: All Parties of Record