SANDERS

v.

INCH

I. Status

Plaintiff, an inmate of the Florida Department of Corrections (FDC), is proceeding on a second amended complaint for the violation of civil rights (Doc. 26; Sec. Am. Compl.) against twelve Defendants, including Mental Health Counselors Smith and Dahlman.¹ Plaintiff alleges Defendants Smith and Dahlman, each on a different occasion at Florida State Prison (FSP), ignored him when he said he was having a mental health emergency or was suicidal and made a suicidal gesture in their presence—he swallowed a handful of pills.

Plaintiff alleges that neither Smith nor Dahlman intervened when he allegedly swallowed pills in their presence, nor did they notify medical of the incident, and he only received medical treatment for an overdose after he was taken to the medical unit following each planned use of force. Id. ¶¶ 16, 20, 32,

63, 83-84. He contends such conduct constitutes deliberate indifference in violation of the Eighth Amendment. Id. at 24. Plaintiff further alleges Defendant Dahlman did not report or document each incident of self-harm or his complaints of staff abuse. Id. ¶¶ 33, 89. According to Plaintiff, such failure also constitutes deliberate indifference. Id. at 23-24. Defendants Smith and Dahlman move to dismiss the claims against them under Federal Rule of Civil Procedure 12(b)(6), arguing Plaintiff’s allegations do not plausibly permit the inference that they were deliberately indifferent to his serious medical needs or a risk of harm (Doc. 32; Def. Mot.). Plaintiff opposes the motion (Doc. 51; Pl. Resp.).

Also before the Court is Plaintiff’s emergency motion for a temporary restraining order (TRO) (Doc. 99; Pl. Mot.).

II. Motion to Dismiss

A. Standard of Review

A defendant may move to dismiss a complaint for a plaintiff’s “failure to state a claim upon which relief may be granted.” Fed. R. Civ. P. 12(b)(6). In ruling on such a motion, the court must accept the plaintiff’s allegations as true, liberally construing those by a plaintiff proceeding pro se, but need not accept as true legal conclusions. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Though detailed factual allegations are not required, Rule 8(a) demands “more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Id. A plaintiff should allege enough facts “to raise a reasonable expectation that discovery will reveal evidence” supporting the plaintiff’s claims. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007).

B. Analysis & Conclusions

With respect to Plaintiff’s alleged suicidal gestures (swallowing pills), Defendants argue Plaintiff fails to state a plausible deliberate indifference claim because he does not allege what the pills were that he swallowed or that he suffered “any ill effect.” See Def. Mot. at 5. They suggest Plaintiff merely alleges a disagreement with medical treatment or that “more should have been done” to treat him. Id. at 6-7. With respect to the alleged failure to report incidents and abuse, Defendants argue Plaintiff does not allege they had a duty to “alleviate his situation,” and his allegations do not “fit into a claim for deliberate indifference.” Id. at 7. As to the latter argument, Plaintiff faults Defendant Dahlman (not Smith) for failing or refusing to prepare an incident report documenting his

“claims of staff abuse” on two occasions. See Sec. Am. Compl. ¶¶ 33, 89. A prison official’s mere refusal to report a prisoner’s complaints about a past harm, without more, does not amount to deliberate indifference. See Marbury v. Warden, 936 F. 3d 1227, 1238 (11th Cir. 2019) (explaining that a prison official’s “failure to investigate [an inmate’s] allegations of threats or to follow policy in reporting potential threats up the chain of command” does not constitute deliberate indifference absent allegations or proof of the official’s “subjective awareness of a serious risk of harm”).

Even if Defendant Dahlman had an obligation to report Plaintiff’s complaints of staff abuse, Plaintiff does not allege he was seeking protection from a particularized threat of harm. See Brooks v. Warden, 800 F. 3d 1295, 1301 (11th Cir. 2015) (holding the plaintiff’s allegation that a “mere possibility” of future harm existed was insufficient; he did not “plausibly allege a strong likelihood of serious harm”); Carter v. Galloway, 352 F. 3d 1346, 1349 (11th Cir. 2003) (“Even assuming the existence of a serious risk of harm and legal causation, the prison official must be aware of specific facts from which an inference could be drawn that a substantial risk of serious harm exists—and the prison official must also ‘draw that inference.’”). Plaintiff’s allegations suggest he merely wanted a written record of his complaints. Absent allegations that Plaintiff was seeking protection from a particularized threat of harm, Plaintiff fails to state a plausible deliberate indifference claim against Defendant Dahlman based on a failure to file incident reports. On the other hand, accepting as true that Defendants Smith and Dahlman each ignored an alleged suicide attempt, Plaintiff states a plausible deliberate indifference claim against them. The Eleventh Circuit has long recognized that a prison official’s “deliberate indifference to an inmate’s need for mental health care is actionable on eighth amendment grounds.” Greason v. Kemp, 891 F. 2d 829, 834 (11th Cir. 1990). See also Waldrop v. Evans, 871

F. 2d 1030, 1033 (11th Cir. 1989) (“[A] prison inmate has the right under the Eighth Amendment to be free from deliberate indifference to serious physical or psychiatric needs.”). To be deliberately indifferent to a strong likelihood that the prisoner will harm himself, the official must be subjectively aware that the combination of the prisoner’s self-harm tendencies and the feasibility of self-harm in the context of the prisoner’s surroundings creates a strong likelihood that the prisoner will self- inflict harm. See Gish v. Thomas, 516 F. 3d 952, 954- 55 (11th Cir. 2008).

Watson v. Edelen, 76 F. Supp. 3d 1332, 1369 (N.D. Fla. 2015). In Waldrop, the Eleventh Circuit held there was a genuine issue of material fact whether a physician who knew of the plaintiff’s mental health background “should have taken some action in response to [the plaintiff’s] psychiatric needs after [the plaintiff] slashed his own arm.” 871 F. 2d at 1036 (emphasis in original). The court concluded the physician’s decision not to notify the prison psychiatrist because the physician presumed that the plaintiff cut himself simply “to attract attention” was akin to failing to respond to a known medical condition. Id. (citing Ancata v. Prison Health Servs., Inc., 769 F. 2d 700, 704 (11th Cir. 1985)). See also Jackson v. Lanier, No. 5:19-cv-114- MCR/MJF, 2021 WL 6339036, at *10-11 (N.D. Fla. Nov. 29, 2021), report and recommendation adopted, 2022 WL 94929 (N.D. Fla. Jan. 10, 2022) (finding the plaintiff stated a plausible deliberate indifference claim where he alleged a prison official watched him attempt to hang himself but did nothing to intervene and further alleged the prison official’s conduct caused him physical and emotional injuries). Accepting Plaintiff’s allegations as true, and liberally construing them, the Court finds Plaintiff plausibly alleges a deliberate indifference claim against Defendants Smith and Dahlman. He explicitly alleges, or his allegations permit the reasonable inference, that (1) he had a serious psychiatric need; (2) both Smith and Dahlman knew he had mental health issues—they were mental health counselors called to Plaintiff’s cell to conduct a crisis intervention before a planned use-of-force, and Defendant Dahlman knew Plaintiff previously swallowed pills in a proclaimed suicide attempt; (3) while in the midst of a psychological emergency, Plaintiff took an overt action in Defendants’ presence to harm himself or commit suicide—he swallowed a handful of unidentified pills; and (4) Defendants ignored Plaintiff’s overt suicidal gesture—Defendant Smith left Plaintiff in his cell for “several hours” after he swallowed the pills, and neither Defendant offered Plaintiff mental health intervention or informed medical that he had potentially overdosed on medication and needed medical attention. See Sec. Am. Compl. ¶¶ 14-16, 20, 22, 62-63, 83, 105. Plaintiff further alleges Defendants’ conduct caused him physical and mental pain and suffering. Id. at 24.

In sum, Plaintiff alleges enough facts “to raise a reasonable expectation that discovery will reveal evidence” supporting his claims that Defendants Smith and Dahlman were deliberately indifferent to his proclaimed suicide attempts. See Twombly, 550 U.S. at 556.

III. Plaintiff’s Motion In his emergency motion, mailed on November 3, 2023, and docketed on

November⁶, 2023,2 Plaintiff contends that he was recently transferred to Tomoka Correctional Institution (TCI) for mental health treatment, and since his transfer, he has been harassed and threatened because of this lawsuit. See Pl. Mot. ¶¶ 1-2. He asserts that Warden Bennett, a Defendant in this case,

“sent a hit for [him] because of his lawsuit.” Id. ¶ 3. Apparently in response to the “hit,” a corrections officer (Captain Ard) paid an inmate to attack Plaintiff on October 31, 2023, while Plaintiff was “cuffed to a table,” and Captain Ard has attempted to instigate Plaintiff to harm himself. Id. ¶¶ 4-9. Plaintiff further alleges Captain Ard has been interfering with his mental health treatment. Id. ¶ 12.3 He contends the “head of mental health knows about . . . the psychological effects being chained to a table [has on Plaintiff] and is refusing to have [him] properly evaluated.” Id. ¶ 11. Plaintiff asks the Court to enter a TRO, saying that without one, he “will be and is in imminent danger.”

Injunctive relief, whether in the form of a temporary restraining order or a preliminary injunction,⁴ “is an ‘extraordinary and drastic remedy,’ and [the movant] bears the ‘burden of persuasion.’” Wreal, LLC v. Amazon.com, Inc., 840 F. 3d 1244, 1247 (11th Cir. 2016) (quoting Siegel v. LePore, 234 F. 3d

1163, 1176 (11th Cir. 2000)). To demonstrate entitlement to injunctive relief, a movant must show the following four prerequisites: (1) a substantial likelihood of success on the merits; (2) that irreparable injury will be suffered if the relief is not granted; (3) that the threatened injury outweighs the harm the relief would inflict on the non-movant; and (4) that entry of the relief would serve the public interest.

Schiavo ex rel. Schindler v. Schiavo, 403 F. 3d 1223, 1225-26 (11th Cir. 2005). With respect to the second prerequisite, “the asserted irreparable injury ‘must be neither remote nor speculative, but actual and imminent.’” Siegel, 234 F. 3d at 1176. Moreover, the request for injunctive relief must be related to the claims raised in the operative complaint. See Kaimowitz v. Orlando, Fla., 122

1. Defendants Smith and Dahlman’s motion to dismiss (Doc. 32) is GRANTED in part and DENIED in part. The motion is GRANTED to the extent Plaintiff fails to state a plausible deliberate indifference claim against Defendant Dahlman for an alleged failure to report incidents or Plaintiff’s complaints of abuse. The motion is DENIED to the extent Plaintiff states a plausible deliberate indifference claim against Defendants Smith and Dahlman for their alleged response or lack thereof to Plaintiff’s proclaimed suicide attempts.

2. Within twenty days of the date of this Order, Defendants Smith and Dahlman must answer the complaint (Doc. 26). 3. Plaintiff’s emergency motion for TRO (Doc. 99) is DENIED. 4. The Clerk shall send Plaintiff a blank civil rights complaint form (prisoner filings). If Plaintiff chooses to initiate a new case, he should not put this case number on the form. The Clerk will assign a new case number upon receipt. 5. Plaintiff is reminded that each document he files must include a certificate of service certifying that he sent a copy of the document to the opposing side’s lawyer and a statement of the date sent, the method of delivery,

and the address used. See Notice to Pro Se Litigant (Doc. 9). Future filings that lack a certificate of service may be stricken or denied. DONE AND ORDERED at Jacksonville, Florida, this 8th day of November 2023.

J) / fo Aagee | a OAL.

BRIAN. DAVIS

United States District Judge

Jax-6 C: Christopher Sanders Counsel of Record