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Edgar A. Torres v. David Gee

December 27, 2011

EDGAR A. TORRES, PLAINTIFF,
v.
DAVID GEE, ET AL., DEFENDANTS.



ORDER

Plaintiff, a prisoner proceeding pro se, has filed a civil rights complaint against Defendants pursuant to 42 U.S.C. § 1983 (Dkt. 1), and a motion to proceed in this action in forma pauperis (Dkt. 2). The complaint names David Gee, Sheriff for Hillsborough County, Florida, and the National Commission on Correctional Health Care ("NCCHC") as defendants. Because Plaintiff seeks redress from governmental entities, officers, or employees, the Court has undertaken a screening of his complaint in accord with 28 U.S.C. § 1915A. After doing so, the Court concludes that Plaintiff's complaint is due to be dismissed prior to service of process on Defendants.

1. Defendant Gee

A. Medical Claims

The complaint alleges that a nurse in the Hillsborough County jail violated Plaintiff's civil rights by failing to properly record his medical condition. Specifically, the complaint alleges that, when Plaintiff was being processed into the Hillsborough County jail, an intake nurse failed to note on his file that he suffers epilepsy, an omission that allowed his assignment to an upper bunk. The complaint alleges that Plaintiff suffered an epileptic attack, during which he fell from the upper bunk and sustained a back injury. The complaint further alleges that Plaintiff has been denied health care, such as MRIs of his neck and back, from providers outside the jail.

Plaintiff has previously sued Defendant Gee under § 1983 seeking relief based on the same nucleus of operative facts.*fn1 The district judge assigned that case dismissed Plaintiff's complaint for failure to state a claim upon which relief may be granted.*fn2 The Eleventh Circuit Court of Appeals subsequently dismissed the appeal for lack of jurisdiction.*fn3

Res judicata bars relitigation of matters decided in a prior case. Jang v. United Technologies, Corp., 206 F.3d 1147, 1149 (11th Cir. 2000). Res judicata will bar a later action if: (1) the prior decision was rendered by a court of competent jurisdiction; (2) there was a final judgment on the merits; (3) the parties were identical in both suits; and (4) the prior and present causes of action are the same. Id.

This Court decided Plaintiff's previous case and had jurisdiction over that action under 42 U.S.C. § 1983. Plaintiff's medical care claims in the instant complaint are substantially the same as in case number 8:09-cv-2527-T-26MAP. Defendant Gee was a named defendant in case number 8:09-cv-2527-T-26MAP. The prior case was dismissed for failure to state a claim. See Harmon v. Webster, 263 Fed. Appx. 844, 845-46 (11th Cir. 2008) (per curiam) (prior dismissal of a complaint for failure to state a claim satisfies the elements of res judicata and bars further lawsuits based on the same operative facts). Therefore, the dismissal of the prior action constitutes a final judgment on the merits for purposes of res judicata.

Moreover, Plaintiff fails to state a claim that he can pursue in a civil rights action because the medical claims allege, at best, medical negligence. Plaintiff's claims are insufficient because negligence is not actionable under Section 1983. Daniels v. Williams, 474 U.S. 327, 330-31 (1986) (plaintiff must state more than negligence to state a claim under Section 1983); Davidson v. Cannon, 474 U.S. 344, 347-48 (1986) (alleged negligent failure of prison official to protect one inmate from another inmate does not state a claim under Section 1983); Estelle v. Gamble, 429 U.S. 97, 104 (1976) (a mere accident or negligence involving the defendant is insufficient).

Finally, "[f]or liability purposes, a suit against a public official in his official capacity is considered a suit against the local government entity he represents," see Owens v. Fulton County, 877 F.2d 947, 951 n.5 (11th Cir. 1989), here the Hillsborough County Sheriff's Office. See Kentucky v. Graham, 473 U.S. 159, 165-66 (1985); Jones v. Cannon, 174 F.3d 1271, 1293 n. 15 (11th Cir. 1999). "A governmental entity is not liable under [§] 1983, merely as a matter of respondeat superior, for constitutional injuries inflicted by its employees." See Brown v. Neumann, 188 F.3d 1289, 1290 (11th Cir. 1999) (citation omitted). A local government is, however, liable under § 1983 "when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury." Monell v. Dep't of Soc. Servs., 436 U.S. 658, 694 (1978) (holding that liability of municipalities and other governmental entities under § 1983 is limited to instances of official policy or custom).

To attribute liability to Defendant Gee in his official capacity under § 1983, Plaintiff must demonstrate that Defendant Gee had an official policy or custom that was "the moving force of the constitutional violation." Vineyard v. County of Murray, Ga., 990 F.2d 1207, 1211 (11th Cir. 1993) (quoting Polk County v. Dodson, 454 U.S. 312, 326 (1981)). Here, the complaint fails to identify with specificity any policies, customs, or procedures instituted by Defendant Gee that led to his injuries. The allegations in the complaint do not show more than the medical personnel's isolated wrongdoings, and fail to establish Defendant Gee's inadequate policy, custom, or supervision of the medical defendants. Therefore, the complaint fails to state a claim against Defendant Gee in his official capacity.

To the extent that the allegations of the complaint may be read as an attempt to assert a claim against Defendant Gee predicated upon his supervisory position as the Sheriff of Hillsborough County, "[i]t is [] well established in this [c]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." Miller v. King, 384 F.3d 1248, 1261 (11th Cir. 2004) (quoting Cottone v. Jenne, 326 F.3d 1352, 1360 (11th Cir. 2003)), vacated on other grounds, 449 F.3d 1149 (11th Cir. 2006). Under § 1983, supervisory liability occurs only when the supervisor personally participates in the alleged misconduct or when there is a causal connection between the supervising official's actions and the alleged constitutional deprivation. Cottone, supra at 1360. The complaint is entirely void of any facts that might be read to support an inference that a causal connection exists between Defendant Gee's conduct and Plaintiff's alleged injuries. Therefore, the medical claims against Defendant Gee in his individual capacity are subject to dismissal.

Accordingly, Plaintiff's medical claims in the complaint are due to be dismissed.

B. Access to Courts Claim

The complaint also alleges that "they" have "continuously [tried] to sabotage my efforts in continuing with my law suit, by continuing to also deny me pro-se status as a civil pro-se litigant." (Dkt. 1 at 14). It appears, therefore, that the ...


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