TOLLIVER

v.

DIXON

Llorens Cordero; (7) UCI Dr. Ernesto L. Toledo; (8) UCI Dr. R. Rodrigues; (9) UCI Dr. E. Perez-Lugo; (10) UCI Nurse J. Putney; and (11) UCI Dr. R. Lafontant.² AC at 2-4. Tolliver asserts that “for over 14 years” the Defendants violated his rights under the Eighth Amendment when they denied him various medical treatments, including surgeries for his back, hernia, diverticulosis, and osteoarthrosis. Id. at 8, 17.

The Prison Litigation Reform Act (PLRA) requires the Court to dismiss this case at any time if the Court determines that the action is frivolous, malicious, fails to state a claim upon which relief can be granted or seeks monetary relief against a defendant who is immune from such relief.3 See 28

U.S.C. §§ 1915(e)(2)(B); 1915A. “A claim is frivolous if it is without arguable merit either in law or fact.” Bilal v. Driver, 251 F. 3d 1346, 1349 (11th Cir. 2001) (citing Battle v. Cent. State Hosp., 898 F. 2d 126, 129 (11th Cir. 1990)). A complaint filed in forma pauperis which fails to state a claim under Federal

Rule of Civil Procedure 12(b)(6) is not automatically frivolous. Neitzke v. Williams, 490 U.S. 319, 328 (1989). Section 1915(e)(2)(B)(i) dismissals should only be ordered when the legal theories are “indisputably meritless,” id. at 327,

‘describing fantastic or delusional scenarios, claims with which federal district judges are all too familiar.’” Bilal, 251 F. 3d at 1349 (quoting Neitzke, 490 U.S. at 328). Additionally, a claim may be dismissed as frivolous when it appears that a plaintiff has little or no chance of success. Id. As to whether a complaint

“fails to state a claim on which relief may be granted,” the language of the PLRA mirrors the language of Rule 12(b)(6), Federal Rules of Civil Procedure, and therefore courts apply the same standard in both contexts.⁴ Mitchell v. Farcass, 112 F. 3d 1483, 1490 (11th Cir. 1997); see also Alba v. Montford, 517

F. 3d 1249, 1252 (11th Cir. 2008). The Court must read a plaintiff’s pro se allegations in a liberal fashion. Haines v. Kerner, 404 U.S. 519 (1972). And, while “[p]ro se pleadings are held to a less stringent standard than pleadings drafted by attorneys and will,

therefore, be liberally construed,” Tannenbaum v. United States, 148 F. 3d 1262, 1263 (11th Cir. 1998), “‘this leniency does not give the court a license to serve as de facto counsel for a party or to rewrite an otherwise deficient

Escambia, Fla., 132 F. 3d 1359, 1369 (11th Cir. 1998) (internal citation omitted), overruled in part on other grounds as recognized in Randall v. Scott, 610 F. 3d 701, 709 (11th Cir. 2010)); Freeman v. Sec’y, Dept. of Corr., 679 F. App’x 982, 982 (11th Cir. 2017).

To state a claim under 42 U.S.C. § 1983, a plaintiff must allege that (1) the defendant deprived him of a right secured under the United States Constitution or federal law, and (2) such deprivation occurred under color of state law. Salvato v. Miley, 790 F. 3d 1286, 1295 (11th Cir. 2015); Bingham v. Thomas, 654 F. 3d 1171, 1175 (11th Cir. 2011) (per curiam) (citation omitted); Richardson v. Johnson, 598 F. 3d 734, 737 (11th Cir. 2010) (per curiam) (citations omitted). Moreover, under Eleventh Circuit precedent, to prevail in a § 1983 action, a plaintiff must show “an affirmative causal connection between the official’s acts or omissions and the alleged constitutional deprivation.” Zatler v. Wainwright, 802 F. 2d 397, 401 (11th Cir. 1986) (citation omitted); Porter v. White, 483 F. 3d 1294, 1306 n.10 (11th Cir. 2007). More than conclusory and vague allegations are required to state a cause of action under

42 U.S.C. § 1983. See L.S.T., Inc., v. Crow, 49 F. 3d 679, 684 (11th Cir. 1995) (per curiam); Fullman v. Graddick, 739 F. 2d 553, 556-57 (11th Cir. 1984). As such, “‘conclusory allegations, unwarranted deductions of facts, or legal conclusions masquerading as facts will not prevent dismissal.’” Rehberger v. Henry Cty., Ga., 577 F. App’x 937, 938 (11th Cir. 2014) (per curiam) (citation omitted). In the absence of well-pled facts suggesting a federal constitutional deprivation or violation of a federal right, Tolliver cannot sustain a cause of action against the Defendants. A civil rights complaint must include a short and plain statement of the claim showing that the plaintiff is entitled to relief. Fed. R. Civil P. 8(a)(2). While not required to include detailed factual allegations, a complaint must allege “more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Indeed, a complaint is insufficient “if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Id. (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 557 (2007)). A plaintiff must allege sufficient facts “that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id.

In the AC, Tolliver still has not presented allegations sufficient to support a claim for an Eighth Amendment violation against the Defendants.⁵

Tolliver’s factual allegations largely remain the same as in his original Complaint. Although he now provides the Court with a list of numerous, seemingly unrelated ailments for which the Defendants refused to provide surgeries, he does not specify what each Defendant individually did or failed to do to support a plausible deliberate indifference claim. See AC at 8. Rather, he merely inserts a list of the Defendants into the paragraphs of his AC. See id. at 12 (“On 4/23/14, the Plaintiff had an x-ray of the cervical spine. Dr. Timothy Dineen stated that the Plaintiff had degenerative disc disease with cervical spasm & spondylosis. Defendants Dixon, Corizon, Centurion, Rodriques, Lugo, Putney, Lafontant, Quinones, Aviles, Llorens, Toledo, refuse[d] to submit the paper work for the surgery needed to stop the pain of the Plaintiff.”) (emphasis omitted). As such, Tolliver does not plead sufficient facts to allow the Court to draw the reasonable inference that the Defendants had subjective knowledge of a serious medical need and disregarded that risk. See Hoffer v. Sec’y, Fla. Dep’t of Corr., 973 F. 3d 1263, 1270 (11th Cir. 2020).

1. This action is DISMISSED WITHOUT PREJUDICE.

2. The Clerk of Court shall enter judgment dismissing this case without prejudice, terminate any pending motions, and close the case. DONE AND ORDERED at Jacksonville, Florida, this 22nd day of November, 2022.

United States District Judge

Jax-9 11/22 C: James L. Tolliver #J09505