United States District Court, M.D. Florida, Tampa Division
CHARLES A. BEISEL, IV, Plaintiff,
JACK ESPINOSA, JR., CITY OF TAMPA, and HILLSBOROUGH COUNTY, Defendants.
VIRGINIA M. HERNANDEZ COVINGTON UNITED STATES DISTRICT JUDGE.
matter comes before the Court upon consideration of United
States Magistrate Judge Thomas B. McCoun III's Report and
Recommendation (Doc. # 23), entered on May 1, 2017,
recommending that Plaintiff Charles A. Beisel's construed
renewed Motion for Leave to Proceed in forma
pauperis (Doc. # 16-18) be denied and the case be
dismissed. Beisel filed an objection on May 10, 2017. (Doc. #
25). For the reasons that follow, the Court accepts and
adopts the Report and Recommendation, denies Beisel's
Motion, and dismisses this action.
proceeding pro se, initiated this action on January 6, 2017.
(Doc. # 1). Beisel filed a construed motion for leave to
proceed in forma pauperis (Doc. # 2), which was
referred to Judge McCoun. Judge McCoun subsequently entered a
Report and Recommendation, recommending the motion for leave
to proceed in forma pauperis be denied without
prejudice and the Complaint be dismissed with leave to amend
(Doc. # 9). Beisel filed an Amended Complaint on February 13,
2017. (Doc. # 10).
light of the Amended Complaint, the Court adopted the Report
and Recommendation in part, and directed Beisel to file a
renewed motion for leave to proceed in forma
pauperis by March 16, 2017. (Doc. # 14). Beisel filed
two motions for leave to proceed in forma pauperis
(Doc. ## 16-17) and an affidavit of indigency (Doc. # 18),
which the Court construes as a composite Motion for Leave to
Proceed in forma pauperis.
Amended Complaint, Beisel asserts claims against Defendants
Judge Jack Espinosa, Jr., Hillsborough County, and the City
of Tampa for violations of the Fourth, Fifth, Eighth, and
Fourteenth Amendments, pursuant to 42 U.S.C. § 1983;
Title II of the Americans with Disabilities Act; the Civil
Rights Act of 1964; the Rehabilitation Act of 1973; and
Florida Statutes, §§ 456.065, 766.103, and 766.105.
(Doc. # 10 at 3-4). Essentially, Beisel complains Espinosa, a
judge in the Thirteenth Judicial Circuit, in and for
Hillsborough County, Florida, violated Beisel's rights by
ordering him not to follow his doctor's prescribed
medical treatment and by revoking his unsupervised visitation
with his child during a state “drug court”
proceeding. This drug court proceeding is part of
Beisel's participation in the Family Dependency Treatment
Court, the goal of which is “[t]o stop substance abuse
by parent(s) that threatens the safety and permanency of
their dependent children.” (Doc. # 12 at 4-6).
conducting a careful and complete review of the findings and
recommendations, a district judge may accept, reject or
modify the magistrate judge's Report and Recommendation.
28 U.S.C. § 636(b)(1); Williams v. Wainwright,
681 F.2d 732 (11th Cir. 1982). In the absence of specific
objections, there is no requirement that a district judge
review factual findings de novo, Garvey v.
Vaughn, 993 F.2d 776, 779 n.9 (11th Cir. 1993), and the
court may accept, reject or modify, in whole or in part, the
findings and recommendations. 28 U.S.C. § 636(b)(1)(C).
The district judge reviews legal conclusions de
novo, even in the absence of an objection. See
Cooper-Houston v. S. Ry. Co., 37 F.3d 603, 604 (11th
Cir. 1994); Castro Bobadilla v. Reno, 826 F.Supp.
1428, 1431-32 (S.D. Fla. 1993), aff'd, 28 F.3d
116 (11th Cir. 1994)(Table).
Beisel objects only to the magistrate's conclusion that
the Amended Complaint fails to state claims under the ADA, as
well as the Fifth, Eighth, and Fourteenth Amendments. (Doc. #
25). Beisel's objections are, in reality, merely an
amalgamation of conclusory arguments and expressions of
Beisel's claims that Defendants failed to provide him
sufficient medical care, the Amended Complaint does not show
how refusing to include narcotic medications as part of
Beisel's drug treatment program violates Beisel's
constitutional rights. The Court notes Beisel is not a
prisoner and Beisel does not allege he has been convicted of
any crime. Therefore, Beisel cannot state a claim under the
Eighth Amendment, which applies to convicted prisoners.
See Andujar v. Rodriguez, 486 F.3d 1199, 1203 n.3
(11th Cir. 2007) (“Claims of deliberate indifference to
the serious medical needs of pretrial detainees are governed
by the Fourteenth Amendment's Due Process Clause rather
than by the Eighth Amendment's Cruel and Unusual
Punishment Clause, which governs similar claims by convicted
asserts the Family Dependency Treatment Court, which makes
reunification of parents who have substance abuse problems
and their dependent children contingent upon compliance with
a treatment program, is “a criminal sanction, punitive
probation, and is deemed a ‘criminal' branch of
court as per the Hillsborough County Clerk of the Circuit
Court.” (Doc. # 25 at 2; Doc. # 12 at 4-6). Even
assuming Beisel's drug court program is part of an
ongoing criminal proceeding, Beisel does not allege that he
is a pre-trial detainee. Therefore, Beisel also cannot state
a claim under the Fourteenth Amendment, which governs the
sufficiency of medical treatment for pre-trial detainees.
See Carr v. Tatangelo, 156 F.Supp.2d 1369, 1375
(M.D. Ga. 2001), aff'd, 338 F.3d 1259 (11th Cir.
2003), as amended (Sept. 29, 2003) (“[T]he right to
medical care attaches under the Cruel and Unusual Punishment
Clause of the Eighth Amendment for convicted prisoners and
under the Due Process Clause of the Fourteenth Amendment for
pre-trial detainees. However, because Carr was neither a
convicted prisoner nor a pre-trial detainee, he has no right
to medical care under either of these theories.”
(internal citations omitted)).
Beisel had been confined as part of the drug court
proceedings, the Amended Complaint still fails to state a
claim under the Fourteenth Amendment for deliberate
indifference to medical needs. “Eleventh Circuit law is
clear: when medical treatment decisions are responsive to an
inmate's needs and rooted in professional, medical
judgment - even if such decisions are misguided or
ineffectual - a claim for deliberate indifference cannot be
sustained.” Loadholt v. Moore, 844 F.Supp.2d
1274, 1281 (S.D. Ga. 2012). Here, Beisel was participating in
a treatment program that did not allow him to use narcotic
medications, but was nevertheless a program addressing his
substance abuse problem. Although Beisel asserts Espinosa
“depriv[ed] [him] of any medical treatment, ” the
Amended Complaint alleges Espinosa reviewed the medical
records provided by two different physicians who treated
Beisel, Dr. Diaz and Dr. Repaskey, before telling Beisel he
would be in contempt of court for taking narcotics prescribed
by Dr. Repaskey. (Doc. # 10 at 2-3). While Beisel would have
preferred a program integrating the use of narcotic
medications, Espinosa's threatening to sanction Beisel if
Beisel took narcotics obtained outside of the program does
not qualify as deliberate indifference to Beisel's
medical needs. Cf. Fredericks v. Huggins, 711 F.2d
31, 33-34 (4th Cir. 1983) (holding that requiring pre-trial
detainees to stop methadone “cold turkey, ”
causing them to suffer withdrawal, is not an unconstitutional
violation of their civil rights).
Beisel sufficiently alleged how he has been discriminated
against on the basis of a disability or other protected
characteristic. Beisel's disability is his substance
abuse problem and he alleges he has been “segregated
from other individuals in the 13th Judicial Circuit Court
(‘drug court'), based on disability or perceived
membership in a group or category.” (Doc. # 10 at 3).
However, the other participants from whom Beisel has been
“segregated” are also enrolled in drug court
programs because of their dependence on drugs or alcohol.
Cf. Thorne v. Hale, No. 1:08CV601 (JCC), 2009 WL
890136, at *8 (E.D. Va. Mar. 26, 2009) (“The Drug Court
program was set up to help individuals battling addiction. It
is difficult to imagine how Thorne could have been treated
differently based on a disability that afflicted everyone
else in the treatment program. Thorne has failed to state an
ADA claim against any defendant.”). Beisel does not
provide any information regarding how his disability differs
from that of other drug court participants who were allowed
to take narcotic medications. Nor does he state whether he is
otherwise a member of a protected class and is being treated
less favorably on that basis.
has also failed to state a claim for violation of his Fifth
Amendment rights. Beisel insists Espinosa retaliated against
him for invoking his privilege against self-incrimination
when Espinosa asked where Beisel's wife was during a drug
court proceeding. In the Amended Complaint, Beisel states he
refused to answer Espinosa's question because Espinosa
had previously issued a warrant for Beisel's wife's
arrest. (Doc. # 10 at 3). But the Fifth Amendment privilege
against self-incrimination only extends to an individual
being asked to incriminate himself; it does not
encompass common law marital privileges and attempts to
protect a spouse. See In re Grand Jury Proceedings,
664 F.2d 423, 430 (5th Cir. 1981)(“[W]e ...