Opinion

Thomas v. Flannagan

Court
District Court, M.D. Florida
Filed
Jul 26, 2024
Cited by
0 cases
Authority
More cited than 31.3%

The opinion

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

FORT MYERS DIVISION

REGAN C. THOMAS,

Plaintiff,

v. Case No.: 2:23-cv-661-SPC-NPM

ROBERT A. FLANNAGAN,

AUSTIN C. BROWN, MICHELLE

BURTON, J. DAWSON, A.

BENNETT, L. HILLS and

RANESE FREAL,

Defendants.

/

OPINION AND ORDER

Before the Court are the defendant’s three motions to dismiss (Doc. 29,

Doc. 32, and Doc. 42).

Background

Plaintiff Regan Thomas is a prisoner of the Florida Department of

Corrections (FDOC), and he sues seven FDOC officials under 42 U.S.C. § 1983

for violating his First, Eighth, and Fourteenth Amendment rights. The

defendants move to dismiss some of Thomas’s claims under Federal Rule of

Civil Procedure 12(b)(6).

The Court recounts the factual background as pled in Thomas’s

Amended Complaint, which it must take as true to decide whether the

complaint states a plausible claim. See Chandler v. Sec’y Fla. Dep’t of Transp.,

695 F.3d 1194, 1198-99 (11th Cir. 2012). Thomas’s factual allegations are

disorganized and difficult to follow. Specifically, Thomas frequently jumps

from moment to moment without explaining what happened between them.

The Court has done its best to discern the basis of Thomas’s claims without

making assumptions to fill in the gaps.

On December 28, 2022, Defendant Robert Flannagan overheard that

Thomas accused another officer of sexually harassing him in violation of the

Prison Rape Elimination Act (PREA). Thomas claims Flannagan then

“caress[ed]” and “squeez[ed]” Thomas’s testicles, punched Thomas in the face,

and “choke slam[med]” Thomas, injuring his jaw, back, and testicles. (Doc. 9

at 8).

A second incident occurred on June 14, 2023, when Flannagan and other

officers conducted a search of Thomas and his cell. Thomas claims Flannagan

told him to get naked so Flannagan could see his body. Thomas then had

flashbacks to being molested as a child, and he declared a psychological

emergency. A mental health counselor came to Thomas’s cell to talk with him,

and Thomas refused to consent to a strip search.

Later that day—the timing is not clear—Flannagan returned to

Thomas’s cell with another mental health counselor. The counselor told

Thomas she was aware of the trauma from his childhood, but the correctional

officers wanted Thomas to submit to handcuffs and exit the cell. Thomas did

not comply, and an officer arrived with a camera to record the incident. Brown

threatened to use pepper spray if Thomas did not strip down. Thomas then

consented to a search and removed his clothes. When Flannagan told Thomas

to bend over and cough, Flannagan again had flashbacks to be being molested

as a child. Thomas declared another psychological emergency because “his

mind was playing tricks on him.” (Id. at 11).

Flannagan and other staff searched Thomas’s cell, presumably with

Thomas confined to the shower. Thomas claims Flannagan leaned into the

shower and said, “get down on your knees and suck this dick boy.” (Id.). In

Thomas’s words, he then “blacks out and eyes cloud up and he comes out of the

shower a little fast.” (Id.). Thomas was tackled to the floor and restrained

with shackles. Bennett laid on Thomas’s lower body while Flannagan and

Brown punched and kicked his head and face. Thomas claims Brown gave him

a concussion and Flannagan of nearly choked him to death. Defendant L. Hills

was two feet away and did not intervene.

Thomas estimates the beating lasted between six and eight minutes.

Then, “they”—Thomas does not specify who—lifted him into the air and

slammed his head into the concrete floor, cracking his eyebrow and impairing

his vision in his right eye. Flannagan then jumped on top of Thomas and

choked him. About five minutes later, Thomas was secured in a restraint chair

and taken to a nurse, Defendant Michelle Burton.

Burton noted that she saw blood through the spit shield but did not look

under the spit shield to assess Thomas’s face. Thomas also accuses Defendant

Ranese Freal, another nurse, of falsifying unspecified documents and refusing

to let Thomas see a doctor at some unspecified time. But Thomas

acknowledges he received treatment for a torn rotator cuff from an outside

medical provider.

Thomas reports concussion-induced vomiting, a cracked eyebrow,

blurred vision in his right eye, extreme back pain, daily migraines, torn rotator

cuffs, a cracked collar bone, swollen testicles, blood in his urine, and abdominal

pain.

Legal Standard

When considering a motion to dismiss under Rule 12(b)(6), courts must

accept all factual allegations in the complaint as true and view them in a light

most favorable to the plaintiff. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

The preferential standard of review, however, does not let all pleadings

adorned with facts survive to the next stage of litigation. The Supreme Court

has been clear on this point—a district court should dismiss a claim when a

party does not plead facts that make the claim facially plausible. See Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is facially plausible when

a court can draw a reasonable inference, based on facts pled, that the opposing

party is liable for the alleged misconduct. See Iqbal, 556 U.S. at 678. This

plausibility standard requires “more than a sheer possibility that a defendant

has acted unlawfully.” Id. (citing Twombly, 550 U.S. at 557 (internal quotation

marks omitted)). And a plaintiff must allege more than labels and conclusions

amounting to a formulaic recitation of the elements of a cause of action.

Twombly, 550 U.S. at 555.

Thomas files his Amended Complaint under 42 U.S.C. § 1983. To state

a § 1983 claim, a plaintiff must allege that (1) the defendant deprived him of a

right secured under the Constitution or federal law, and (2) the deprivation

occurred under color of state law. Bingham v. Thomas, 654 F.3d 1171, 1175

(11th Cir. 2011) (citing Arrington v. Cobb Cty., 139 F.3d 865, 872 (11th Cir.

1998)). In addition, a plaintiff must allege and establish an affirmative causal

connection between the defendant’s conduct and the constitutional

deprivation. Marsh v. Butler Cty., Ala., 268 F.3d 1014, 1059 (11th Cir. 2001).

Thomas is representing himself in this action. Courts hold the pleadings

of pro se litigants to a less stringent standard than pleadings drafted by

attorneys. Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998).

But courts do not have a duty to “re-write” a pro se litigant’s complaint to find

a claim. See Washington v. Dep’t of Children & Families, 256 F. App’x 326, 327

(11th Cir. 2007).

Discussion

The Court construes Thomas’s claims as falling under three categories:

excessive force, deliberate indifference, and retaliation. The defendants do not

move for dismissal of the entire action. Flannagan and Brown do not challenge

Thomas’s Eighth Amendment claims against them for good reason—they are

plausible when construing the factual allegations in Thomas’s favor. Nor does

Flannagan challenge Thomas’s First Amendment retaliation claim. The Court

will consider the defendants’ challenges to the other claims with the

understanding that this action will move forward against Flannagan and

Brown.

The Court notes that Thomas and some defendants evoke Florida tort

law. § 1983 cannot be used “to convert state tort claims into federal causes of

action.” T.W. ex. rel. Wilson v. Sch. Bd. of Seminole Cnty., Fla., 610 F.3d 588,

598 (11th Cir. 2010). The Court will analyze Thomas’s claims under federal

constitutional law, not Florida tort law.

A. J. Dawson

Thomas does not state any specific factual allegations against Assistant

Warden Dawson. Rather, he makes the conclusory allegation that Dawson

failed to conduct thorough and complete internal investigations of Thomas’s

PREA claims, which proximately caused the Eighth and Fourteenth

Amendment violations described in the Amended Complaint. Thomas does not

describe the contents of his PREA claims, state how Dawson’s investigation

was inadequate, or draw a causal connection between Dawson’s conduct and

the uses of force.

Thomas does not state a claim against Dawson under either theory he

invokes. There is no Fourteenth Amendment due process claim for failure to

properly investigate a prisoner’s claims of abuse because there is no

constitutionally protected interest at stake—prisoners are not entitled to

internal investigations of their claims of abuse. Vinyard v. Wilson, 311 F.3d

1340, 1356 (11th Cir. 2002).

Nor does Thomas state an Eighth Amendment claim against Dawson.

The Eighth Amendment’s “prohibition of cruel and unusual punishment

requires prison officials to ‘take reasonable measures to guarantee the safety

of the inmates.’” Cox v. Nobles, 15 F.4th 1350, 1358 (11th Cir. 2021) (quoting

Farmer v. Brennan, 511 U.S. 825, 832 (1994)). To succeed on a failure to

protect claim, a plaintiff must show (1) he was incarcerated under conditions

posing a substantial risk of serious harm, (2) the prison official was

deliberately indifferent to the risk, and (3) the constitutional violation caused

his injuries. Id. at 1357-58. Deliberate indifference is akin to subjective

recklessness as used in criminal law. To establish deliberate indifference, a

plaintiff “must show that the defendant was actually, subjectively aware that

his own conduct caused a substantial risk of serious harm to the plaintiff.”

Wade v. McDade, --- F.4th ---, ---, 2024 WL 3354963, at *7 (11th Cir. July 10,

2024). A defendant was not deliberately indifferent if he responded reasonably

to the risk. Id.

Thomas does not plead facts establishing deliberate indifference or

causation. While a PREA claim could give a prison official notice of a risk of

serious harm, Thomas failed to allege what his PREA documents said. Thus,

he “failed to allege that those documents made prison officials subjectively

aware of a risk of serious harm.” Cox, 15 F.4th at 1362. Nor does Thomas

allege any facts from which the Court could infer that Dawson responded

unreasonably to Thomas’s PREA claims. A conclusory allegation that the

investigation was inadequate is not enough. Finally, Thomas does not allege

fact suggesting a causal connection between Dawson’s action or inaction and

an injury.

Thomas fails to state a claim plausible claim against Dawson.

B. L. Hills

Thomas claims Hills was two feet away when Flannagan and Brown

punched, kicked, and choked him, and that Hills failed to intervene. “An officer

who is present at the scene and who fails to take reasonable steps to protect

the victim of another officer’s use of excessive force can be held liable for his

nonfeasance.” Velazquez v. City of Hialeah, 484 F.3d 1340, 1341 (11th Cir.

2007). To establish liability, Thomas will need to show that Hills “was in a

position to intervene but failed to do so.” Id. Given Hills proximity to the

alleged excessive force and the length of time the incident lasted, Thomas has

stated a plausible failure-to-intervene claim against Hills.

Thomas also accuses Hills of violating his due process rights by refusing

to allow him to see Inspector General staff, though he does not provide any

additional details. As explained above, Thomas had no right to an

investigation. Vinyard, supra. So even if Thomas adequately alleged that Hills

impeded an investigation, such allegations would not support a due process

claim. The Court will dismiss Thomas’s due process claim against Hills.

C. A. Bennett

Thomas accuses Bennett of excessive force and deliberate indifference by

laying on Thomas’s lower body while Flannagan and Brown punched and

kicked him.

The core judicial inquiry in an excessive-force claim is “whether force

was applied in a good faith effort to maintain or restore discipline, or

maliciously and sadistically to cause harm.” Sconiers v. Lockhart, 946 F.3d

1256, 1265 (11th Cir. 2020) (quoting Wilkins v. Gaddy, 559 U.S. 34, 37 (2010)).

A prisoner asserting an excessive force claim must establish two elements: “the

official must have both ‘acted with a sufficiently culpable state of mind’ (the

subjective element), and the conduct must have been ‘objectively harmful

enough to establish a constitutional violation.’” Id. (quoting Hudson v.

McMillian, 503 U.S. 1, 8 (1992)). A claim satisfies the subjective element if the

excessive force was “sadistically and maliciously applied for the very purpose

of causing harm.” Id. The objective component “focuses on whether the

official’s actions were harmful enough or sufficiently serious to violate the

constitution.” Id. (cleaned up).

The alleged force applied by Bennett does not cross line into excessive-

force territory. Thomas merely alleges Bennett restrained him by laying on

his lower body. The Supreme Court has said that “not every malevolent touch

by a prison guard gives rise to a federal cause of action…An inmate who

complains of a push or shove that causes no discernible injury almost certainly

fails to state a valid excessive force claim.” Wilkins, 559 U.S. at 37-38 (cleaned

up). Thomas does not allege that Bennett injured him by laying on his lower

body. However, like Hills, Bennett did not intervene when Flannagan and

Brown punched and kicked Thomas while Bennett restrained him. Bennett

thus can be liable for failing to intervene. See Velazquez, supra. Bennett’s

inaction could also support a deliberate-indifference claims under the

framework laid out in Farmer, supra, and Cox, supra.

D. Michelle Burton and Renese Freal

Burton and Freal are nurses, and Thomas sues them both for deliberate

indifference. His claims against them are mostly conclusory. Thomas claims

Burton did not assess him thoroughly enough after the June 14, 2023 use of

force—specifically, he faults Burton for not looking under the spit shield

correctional officers had put on Thomas. He alleges Freal falsified medical

documents, but he does not identify the documents or the false information

Freal recorded. Thomas claims both nurses refused to provide proper medical

treatment, but he does not provide further detail. He also acknowledges that

he received medical care from an outside specialist.

Thomas’s factual allegations against Burton and Freal—taken as true—

do not establish deliberate indifference or causation. As explained above,

defendants can only be liable for deliberate indifference if they acted with a

degree of culpability akin to subjective recklessness under criminal law.

Thomas does not allege facts from which the Court can infer that Burton

actually and subjectively knew her failure to look under the spit shield created

a substantial risk of serious harm. Likewise, Thomas does not plausibly allege

Freal knew unspecified falsities in unidentified medical documents created a

substantial risk of serious harm. The conclusory claim that they failed to

provide adequate care is not enough. The Court cannot infer subjective

recklessness based on such vague factual allegations and conclusory

assertions. What is more, Thomas does not allege facts showing that Burton

or Freal caused any injury. Thomas plausibly alleges he experienced pain, but

he does not plausibly allege that Burton or Freal caused or exacerbated that

pain. The Court will dismiss Thomas’s claims against Burton and Freal

Accordingly, it is now

ORDERED:

1. Defendants Flannagan, Brown, Dawson, and Hills’ Motion to Dismiss

Plaintiffs Amended Complaint (Doc. 29) is GRANTED in part and

DENIED in part. Thomas’s claims against Dawson are dismissed,

as is his due process claim against Hills.

2. Defendant Bennett's Motion to Dismiss Plaintiffs Amended

Complaint (Doc. 32) is DENIED.

3. Defendants Ranese Freal and Michelle Burton’s Motion to Dismiss

(Doc. 42) is GRANTED. Thomas’s claims against Freal and Burton

are DISMISSED.

4, The Clerk is DIRECTED to terminate Dawson, Freal, and Burton as

parties to this case.

5. Flannagan, Brown, Hills, and Bennett must answer the Amended

Complaint on or before August 9, 2024.

DONE and ORDERED in Fort Myers, Florida on July 26, 2024.

UNITED STATES DISTRICT JUDGE

SA: FTMP-1

Copies: All Parties of Record

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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