COOPER, JR.

v.

FLORIDA DEPARTMENT OF CORRECTIONS

I. Status

Plaintiff, Keith Lavon Cooper, Jr., is proceeding on a third amended complaint (Doc. 34; TAC), filed by private counsel. All served Defendants have moved to dismiss the complaint (Docs. 44, 57, 60, 71).1

II. Motion to Dismiss Standard

“To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); see also Lotierzo v. Woman’s World Med. Ctr., Inc., 278 F. 3d 1180, 1182 (11th Cir. 2002). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is

III. Complaint Allegations

Plaintiff’s claims arise out of an incident that occurred on

April 30, 2015, at the Baker Correctional Center (the work camp). See TAC ¶¶ 40, 59, 72. According to Plaintiff, up to twenty-two other inmates, who were associated with a prison gang called the “Cutthroats,” were impermissibly granted access to Plaintiff’s housing unit and beat him to unconsciousness inside his cell while corrections officers watched. Id. ¶¶ 51, 71-75. Plaintiff alleges the gang-member inmates attacked him as retribution for falling behind on extortion payments demanded by the head of the Cutthroats, the “Terrorizer.”² Id. ¶¶ 51-55. Plaintiff alleges he avoided other attempted gang attacks prior to the one that is the subject of his complaint. One day in April, a gang-member inmate attempted to strike Plaintiff with a lock in a sock, but Plaintiff was able to defend himself. Id. ¶¶

56, 57. Later in the week, Plaintiff avoided an attack by three gang members. Id. ¶ 58. On the day of the attack that is the subject of the complaint, four gang members surrounded Plaintiff in the yard, but Plaintiff “was able to fight [them] off.” Id. ¶¶ 60, 61, 64. Plaintiff alleges the officer-Defendants “were within the vicinity, could observe the attack [in the yard], and did nothing.” Id. ¶ 62. The subject attack occurred shortly after the incident in the yard, after officers allowed the gang-member inmates to enter his housing unit even though they were not residents of that unit and should not have gained access. Id. ¶¶ 66-70. The gang-member inmates entered with weapons, “including locks, a plexiglass knife, and an ice pick.” Id. ¶ 70. After the attack, Plaintiff was air-lifted to Shands Hospital. Id. ¶ 89. He was discharged the following day. Id. ¶ 90.

¶ 94. Plaintiff’s medical records were not transported with him, and officials at TCI placed Plaintiff in solitary confinement despite his physical condition and inability to walk. Id. ¶ 95- 97. Officers at TCI “threatened [Plaintiff] in an attempt to get him to walk or move,” which caused Plaintiff to urinate on himself. Id. ¶¶ 98, 99. When Plaintiff requested medical attention, he was taken to the infirmary. Id. ¶¶ 101, 102. About three weeks later, Plaintiff had an MRI at Tallahassee Memorial Hospital, and he was told “to see a neurologist in² days.” Id. ¶ 103. Plaintiff was subsequently sent back to TCI where he remained for weeks without seeing a neurologist. Id. ¶ 104. A second MRI was completed at the Reception and Medical Center, which revealed Plaintiff had a pinched nerve or swelling in his brain. Id. ¶ 105. Plaintiff alleges he developed cysts and bed sores, and due to the alleged inadequate medical care, his “injuries [from the attack] were exacerbated, took longer to heal, and became more complicated.” Id. ¶ 106, 107. Plaintiff attributes the following injuries to the attack: hand, arm and leg pain, lacerations to his head, deformity to his eyebrow, multiple stab wounds to his arm and head, bruising and injury to his rib cage and upper back, abrasions to his legs, nasal bone fracture requiring surgery, paralysis of his legs and lower extremities requiring physical therapy, numbness in his lower extremities, headaches, complications with his eyesight including blurred vision and a parietal fracture, brain trauma, and the inability to be mobile without a wheelchair. Id. ¶115. Plaintiff sues the Florida Department of Corrections (FDOC), ten officers of different rank, the Warden of Baker Correctional, and the contract medical provider for the FDOC, Corizon Health, Inc. In Count I, Plaintiff alleges the officer-Defendants and Warden Freeman were deliberately indifferent to a serious risk of bodily harm. Id. ¶¶ 124-28. Plaintiff alleges the officers’ and Warden’s “failure to stop or take action to stop the unlawful assaults, attacks, injuries, and abuse constituted deliberate indifference to the known and obvious consequences of violating Plaintiff’s constitutional rights and causing him great bodily injury.” Id. ¶ 129. Plaintiff asserts Defendants (as a group) failed to take measures to ensure Plaintiff’s safety and failed to intervene during the attack. Id. ¶131. Additionally, Plaintiff alleges the following acts or omissions contributed to the attack: failing to protect inmates generally and Plaintiff in particular from gang violence; failing to check identification before inmates enter housing units and permitting inmates to enter units in which they do not reside; failing to check inmates for weapons; failing to intervene during inmate-on-inmate violence; and failing to “inform guards or take any precautionary action after observing gangmembers [sic] attack an inmate.” Id.

In Count II, Plaintiff alleges all Defendants were deliberately indifferent to Plaintiff’s serious medical needs by (1) delaying needed treatment for up to three days at Baker Correctional and (2) failing to send Plaintiff’s medical records to TCI, which resulted in additional delays in receiving treatment. Id. ¶¶ 140-42, 145, 146. In Count III, Plaintiff alleges the officer-Defendants and Warden Freeman were deliberately indifferent to a serious risk of harm by the acts and omissions referenced in Count I, including allowing unregistered inmates access to Plaintiff’s housing unit with weapons knowing the inmates planned to attack Plaintiff.

In Count IV, Plaintiff alleges the FDOC maintained “customs, practices, and/or policies,” and “acted with deliberate indifference to the foreseeable effects” of those customs, practices, and policies. Id. ¶¶ 168, 170.

IV. Analysis

A. The FDOC’s Motion The FDOC seeks dismissal of the sole Count against it, Count IV, asserting the FDOC is not a “person” amenable to suit under § 1983 and the Eleventh Amendment bars the claim (Doc. 44; FDOC Motion). In response (Doc. 46; Pl. FDOC Resp.), Plaintiff contends the FDOC fails to demonstrate “whether the State of Florida structured the FDOC meaning for it to be under the immunity Florida enjoys.” Pl. FDOC Resp. at 4. Plaintiff’s argument is unconvincing. The state of Florida and agencies of the state, including the FDOC, are not persons under § 1983 subject to monetary liability. See Gardner v. Riska, 444 F. App’x 353, 355 (11th Cir. 2011) (quoting Edwards v. Wallace Cmty. Coll., 49 F. 3d 1517, 1524 (11th Cir.1995)). See also Will v. Michigan Dep’t of State Police, 491 U.S. 58 (1989) (“[N]either a State nor its officials acting in their official capacities are ‘persons’ under § 1983.”). Accordingly, the FDOC is due to be dismissed. B. Corizon’s Motion Corizon seeks dismissal on the ground that Plaintiff fails to allege facts demonstrating a causal connection between Plaintiff’s injuries and any action or inaction by Corizon (Doc. 57; Corizon Motion). Specifically, Corizon maintains Plaintiff does not identify a Corizon employee who was deliberately indifferent to Plaintiff’s serious medical needs and does not identify a custom, policy, or practice of Corizon’s that caused Plaintiff harm. Corizon Motion at 7, 10. Corizon also asserts Plaintiff’s complaint is facially deficient as a “shotgun” pleading because Plaintiff “lumps the Defendants together” and does not specify what acts or omissions of each Defendant caused Plaintiff’s injuries. Id. at 2-

4.

In response (Doc. 58; Pl. Corizon Resp.), Plaintiff contends he states a claim for deliberate indifference against Corizon because he alleges his medical care at Baker Correctional was delayed for three days, and he was sent to TCI without medical documentation, resulting in additional treatment delays. Pl. Corizon Resp. at 3-4, 6-7. Plaintiff further says he alleges Corizon adopted a policy or custom of “failing to provide medical care to inmates” and failing to train employees to provide medical care and handle inmate transfers appropriately. Id. at 7. Upon review, the Court finds Plaintiff fails to state a plausible claim for relief against Corizon because, contrary to Plaintiff’s contention in his response, he does not identify in his complaint a policy or custom of Corizon’s that resulted in delayed or inadequate medical treatment. See TAC ¶¶ 139-50. Rather, it appears Plaintiff names Corizon merely because it is the company that provides contract medical services for the FDOC. Even if an individual Corizon employee intentionally delayed providing treatment for Plaintiff (which Plaintiff does not allege), a claim against Corizon cannot proceed upon a theory of respondeat superior. Supervisory officials, including private corporations like Corizon, cannot be held liable under § 1983 in the absence of allegations identifying a policy or custom that was the moving force behind a constitutional violation. See Ross v. Corizon Med.

Servs., 700 F. App’x 914, 917 (11th Cir. 2017) (citing Craig v. Floyd Cty., 643 F. 3d 1306, 1310 (11th Cir. 2011)). See also Cottone v. Jenne, 326 F. 3d 1352, 1360 (11th Cir. 2003) (“It is well established in this Circuit that supervisory officials are not liable under § 1983 for the unconstitutional acts of their subordinates on the basis of respondeat superior or vicarious liability.” (internal quotation marks omitted)). While systemic deficiencies in a prison health care’s treatment protocol can suggest deliberate indifference, Plaintiff does not allege systemic deficiencies. His claim is premised solely on the adequacy of the care he received after the attack. See,

e.g., Denham v. Corizon Health, Inc., 675 F. App’x 935, 944 (11th Cir. 2017) (holding the plaintiff failed to demonstrate municipal liability because her “claim that Corizon had a custom of providing inadequate medical care” was based solely on her own experiences, which constituted “at most, proof of a single incident of unconstitutional activity”) (quoting Craig v. Floyd Cty., Ga., 643 F. 3d 1306, 1312 (11th Cir. 2011)). Not only does Plaintiff fail to identify systemic deficiencies in Corizon’s treatment protocol, he alleges he received immediate medical attention. According to Plaintiff, prison officials arranged for him to be air-lifted to the hospital and, upon his return to Baker Correctional, officials placed him in the medical unit where, presumably, he was under the care of medical professionals. That Plaintiff believes he should have seen a prison doctor immediately after he was released from the hospital does not, by itself, permit the inference that Corizon had a policy or custom of delaying medical care for inmates. See id. Cf. Ancata v. Prison Health Servs., Inc., 769 F. 2d 700, 705-06 (11th Cir. 1985) (holding the plaintiff stated a deliberate indifference claim against the municipality because he alleged the municipality “established or utilized a policy or custom requiring that inmates needing medical assistance obtain court orders,” which resulted in a delay in necessary treatment). In fact, Plaintiff’s subjective belief that a doctor should have visited him sooner suggests a disagreement with medical treatment, not deliberate indifference. See Waldrop v. Evans, 871 F. 2d 1030, 1033 (11th Cir. 2007). Hamm v. DeKalb Cty., 774 F. 2d 1567, 1575 (11th Cir. 1985) (“Where a prisoner has received . . . medical attention and the dispute is over the adequacy of the treatment, federal courts are generally reluctant to second guess medical judgments and to constitutionalize claims that sound in tort law.” (quoting with alteration Westlake v. Lucas, 537 F. 2d 857, 860 n.5 (1st Cir. 1981))). While it certainly appears there was a breakdown in communication when Plaintiff was sent to TCI without records alerting officials to his medical condition, Plaintiff asserts no facts suggesting such oversight was attributable to a Corizon policy or custom. Indeed, he does not even attribute the oversight to a Corizon employee. Accordingly, Plaintiff fails to state a plausible claim for relief against Corizon. C. The Officers’ Motion The officer-Defendants invoke qualified immunity for Plaintiff’s failure to state a claim against them (Doc. 60; Officer Motion). They also argue Plaintiff fails to assert specific allegations against each officer individually but rather asserts general allegations against them collectively.³ Officer Motion at 8-9. In response (Doc. 61; Pl. Officer Resp.), Plaintiff argues the officers are not entitled to qualified immunity because he

Warden Freeman notes Plaintiff asserts no allegations against him, and he invokes qualified immunity. Warden Motion at 7, 9-10, 12. In response (Doc. 72; Pl. Warden Resp.), Plaintiff first notes the motion is untimely because Warden Freeman filed it more than twenty-one days after he was served, and Plaintiff says the motion, therefore, should be stricken. Pl. Warden Resp. at 2, 6.7 Additionally, Plaintiff asserts Warden Freeman is not entitled to qualified immunity because Plaintiff alleges Warden Freeman knew Plaintiff was in danger but failed to protect him. Id. at 7-8. Contrary to Plaintiff’s contention in his response, he does not allege Warden Freeman knew he was in danger and failed to

nor does he allege facts otherwise demonstrating the requisite causal connection. Plaintiff’s conclusory assertions do not suffice. See Tani v. Shelby Cty., Ala., 511 F. App’x 854, 857 (11th Cir. 2013) (affirming dismissal of a complaint that alleged, as labels and conclusions, violations of various constitutional rights with no supporting facts to “explain what actions caused which violations”).

V. Leave to Amend

Because Plaintiff fails to adequately set forth his claims against Corizon, the officer-Defendants, and Warden Freeman, their motions are due to be granted. However, in response to all motions, Plaintiff requests leave to amend his complaint. Pl. Corizon Resp. at 9; Pl. Officer Resp. at 12; Pl. Warden Resp. at 10. Accordingly,

the Court will permit Plaintiff an opportunity to amend his complaint as to the claims against Corizon, the officers, and Warden Freeman. See Wagner v. Daewoo Heavy Indus. Am. Corp., 314 F. 3d 541, 542 (11th Cir. 2002).8 In amending his complaint, Plaintiff must cure the deficiencies noted in this Order, and he must satisfy federal pleading standards. As to the officer-Defendants, Plaintiff must clarify whether he asserts solely a deliberate indifference claim for the officers’ failure to intervene when they observed the April 30, 2015 attack, or whether he also asserts the officers knew he was at risk of being attacked by gang-member inmates and failed to take appropriate steps to protect him. If Plaintiff pursues the latter theory of liability, he must allege facts demonstrating each officer had subjective knowledge that Plaintiff faced a risk of serious harm and, in the face of such knowledge, failed to respond to the risk in an objectively reasonable manner. As to either

As to Corizon and Warden Freeman, Plaintiff should assess the facts and law to determine whether he has a plausible basis upon which to proceed. Accordingly, it is now ORDERED: 1. The FDOC’s motion to dismiss Count IV of Plaintiff’s Third Amended Complaint (Doc. 44) is GRANTED. 2. Plaintiff’s claims against the FDOC are dismissed. The Clerk is directed to terminate the FDOC as a Defendant. 3. Corizon’s motion to dismiss (Doc. 57) is GRANTED to the extent Plaintiff fails to state a claim for relief against Corizon.

4. Defendants Massee, Sailee, Saylor, Doe TA, Bickerstaff,

Burnett, Guitherman, Phillips, Stephen, and Powell’s motion to dismiss (Doc. 60) is GRANTED to the extent Plaintiff fails to adequately set forth his claims against these Defendants. 5. Warden Freeman’s motion to dismiss (Doc. 71) is GRANTED to the extent Plaintiff fails to state a claim for relief against the Warden. 6. Plaintiff’s claims against Defendants Corizon, the officers, and Warden Freeman are dismissed without prejudice subject to his right to amend his complaint. Plaintiff shall submit an amended complaint within twenty-one days of the date of this Order. Plaintiff’s failure to properly set forth his claims against any Defendant may result in the dismissal of those claims. 7. Pursuant to the joint stipulation for dismissal (Doc. 59), Plaintiff’s claims against Baker County are dismissed with prejudice. The Clerk is directed to terminate Baker County as a Defendant. DONE AND ORDERED at Jacksonville, Florida, this 27th day of July 2020. Ban) Baas

BRIAN J. DAVIS

United States District Judge

Jax-6 Cc: Counsel of Record