PHELPS

v.

RAMBOSK

STRIKER and DANIEL PINO,

Defendants. /

OPINION AND ORDER1

Plaintiff Daniel T. Phelps (“Phelps”), an inmate in the Florida Prison System, is proceeding on his pro se Complaint filed under 42 U.S.C. § 1983. (Doc. 1). Plaintiff seeks to proceed in forma pauperis on his Complaint. (Doc. 4). Because the Court finds the Complaint subject to dismissal under 28 U.S.C. §§ 1915A and 1915(e)(2)(B)(ii), the Court will neither grant Plaintiff in forma pauperis status, nor assess the $350.00 filing fee under 28 U.S.C. § 1915(b)(1). The Complaint names the following defendants: Sherriff Kevin Rambosk, Doctor Gable, S. Magulierre, Robert Striker, and Daniel Pano. According to the Complaint, Plaintiff brings his claim for “damages and injunctive relief under 42 U.S.C. § 1983 for “neglect and medical malpractice.” (Doc. 1 at 2). Although the

556 (2007). The plaintiff must assert enough facts to allow “the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The asserted facts must “raise a reasonable expectation that discovery will reveal evidence” for the plaintiff’s claim. Twombly, 550 U.S. at 556. Setting forth “labels . . . conclusions, and a formulaic recitation of the elements of a cause of action” is not enough to meet the plausibility standard. Twombly, 550 U.S. at 555. But the Court must read a pro se plaintiff’s complaint in a liberal fashion. See Hughes v. Lott, 350 F. 3d 1157, 1160 (11th Cir. 2003). To state a claim under 42 U.S.C. § 1983, a plaintiff must allege: (1) that the defendant(s) deprived him of a right secured under the United States Constitution or federal law, and (2) the deprivation occurred under color or state law. See Arrington v. Cobb County, 139 F. 3d 865, 872 (11th Cir. 1998). Plaintiff must establish an affirmative causal connection between the defendant’s conduct and the constitutional deprivation. See Swint v. City of Wadley, 51 F. 3d 988, 999 (11th Cir. 1995). To allege an Eighth Amendment claim, a plaintiff must allege: “(1) a substantial risk of serious harm; (2) the defendant’s deliberate indifference to that risk; and (3) causation.” Purcell ex. rel. Estate of Morgan v. Toombs County, Ga., 400 F. 3d 1313, 1319 (11th Cir. 2005) (internal citation and quotation marks omitted). Further, to be deliberately indifferent to an inmate’s health or safety, the official must both be aware of facts from which the inference can be drawn that a substantial risk of serious harm exists, and the official must draw the inference.

See Purcell ex. rel. Estate of Morgan, 400 F. 3d at 1319-20 (citation omitted). Here, there are no allegations Defendant Striker was present in the cell when Plaintiff attempted to get back into the wheelchair or knew Plaintiff would not have assistance to get out of or into the wheelchair. At most, the Complaint predicates liability against Defendant Striker for simple negligence not deliberate indifference under the Eighth Amendment. (Id. at 2). “[S]imple negligence is not actionable under § 1983, and a plaintiff must allege a conscious or callous indifference to a prisoner’s rights.” Smith v. Regional Director of Florida Dep’t of Corr., 368 F. App’x 9, 14 (11th Cir. 2010) (internal citations and quotations omitted). The Court finds the Complaint fails to plausibly allege an Eighth Amendment violation against Defendant Striker and will thus dismiss the Complaint without prejudice under 28 U.S.C. § 1915. Because the dismissal is without prejudice, Plaintiff may file a new complaint—under a new case number—with the filing fee or a motion to proceed in forma pauperis. Accordingly, it is now ORDERED: 1. Plaintiffs Complaint (Doc. 1) is DISMISSED without prejudice under 28 U.S.C. § 1915A and § 1915(e)(2)(B) (ii). 2. The Clerk is DIRECTED to enter judgment, terminate any pending motions and deadlines, and close the file. DONE and ORDERED in Fort Myers, Florida on October 14th, 2020.

UNITED STATES DISTRICT JUDGE

Copies: All Parties of Record