United States District Court, M.D. Florida, Jacksonville Division
J. DAVIS United States District Judge.
matter is before the Court on the Motion to Dismiss of
Defendant, Darius Fisher (Motion) (Doc. 18). Plaintiff filed
a Response (Response) (Doc. 22). He is proceeding on an
Amended Complaint (Complaint) (Doc. 7).
Standard of Review
ruling on a motion to dismiss, the Court must accept the
factual allegations set forth in the complaint as true.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). In
addition, all reasonable inferences should be drawn in favor
of the plaintiff. See Omar ex. rel. Cannon v.
Lindsey, 334 F.3d 1246, 1247 (11th Cir. 2003) (per
curiam). Nonetheless, the plaintiff must still meet some
minimal pleading requirements. Jackson v. BellSouth
Telecomm., 372 F.3d 1250, 1262-63 (11th Cir. 2004)
(citations omitted). While "[s]pecific facts are not
necessary[, ]" the complaint should "'give the
defendant fair notice of what the . . . claim is and the
grounds upon which it rests.'" Erickson v.
Pardus, 551 U.S. 89, 93 (2007) (per curiam) (quoting
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555
(2007)). Further, the plaintiff must allege "enough
facts to state a claim that is plausible on its face."
Twombly, 550 U.S. at 570. "A claim has facial
plausibility when the pleaded factual content allows the
court to draw the reasonable inference that the defendant is
liable for the misconduct alleged." Iqbal, 556
U.S. at 678 (citing Twombly, 550 U.S. at 556);
see Miljkovic v. Shafritz & Dinkin,
P.A., 791 F.3d 1291, 1297 (11th Cir. 2015) (citation and
"plaintiff's obligation to provide the grounds of
his entitlement to relief requires more than labels and
conclusions, and a formulaic recitation of the elements of a
cause of action will not do[.]" Twombly, 550
U.S. at 555 (internal quotations omitted); see also
Jackson, 372 F.3d at 1262 (explaining that
"conclusory allegations, unwarranted deductions of facts
or legal conclusions masquerading as facts will not prevent
dismissal") (internal citation and quotations omitted).
Indeed, "the tenet that a court must accept as true all
of the allegations contained in a complaint is inapplicable
to legal conclusions[, ]" which simply "are not
entitled to [an] assumption of truth." See
Iqbal, 556 U.S. at 678, 680. Thus, in ruling on a motion
to dismiss, the Court must determine whether the complaint
contains "sufficient factual matter, accepted as true,
to 'state a claim to relief that is plausible on its
face[.]'" Id. at 678 (quoting
Twombly, 550 U.S. at 570).
in his Statement of Claim, raises the following claims
against Defendant Fisher: (1) unnecessary use of force with
chemical agents; (2) sexual harassment; and (3) assault and
battery. Complaint at 5. As relief, he seeks monetary
compensation, court-ordered mental health treatment, a
transfer from Hamilton Correctional Institution (HCI), and
removal of Defendant Fisher from his duties as an employee of
the Florida Department of Corrections (FDOC). Id. at
Statement of Facts, Plaintiff alleges that on July 1, 2016,
he was imprisoned at HCI and was being escorted by Defendant
Fisher to confinement. Id. at 5. Plaintiff was in
hand restraints. Id. Defendant Fisher made a
sexually suggestive remark, licked Plaintiff's ear and
smacked him on the buttocks. Id. In response,
Plaintiff yelled rape and sexual harassment. Id.
Defendant Fisher slammed Plaintiff to the ground head first;
kneed Plaintiff in the back; punched him four times in the
head, face and neck area; and then chemically sprayed
Plaintiff. Id. at 6. Thereafter, Defendant Fisher
pulled down Plaintiff's pants and chemically sprayed him
in his "private parts." Id. Plaintiff
maintains that he has scars on his neck and a rash from the
Fisher wrote Plaintiff a disciplinary report for battery on a
correctional officer. Id. Staff rejected the
disciplinary report due to false statements. Id.
Plaintiff asserts there was no penological justification for
the use of chemical agents on a restrained inmate, the use of
physical force, or the sexual harassment. Id.
Plaintiff states he has injuries on his body and he has
suffered mentally. Id.
Summary of the Arguments
Fisher seeks dismissal of the Complaint pursuant to
Fed.R.Civ.P. 12(b)(6). Motion at 1. In doing so, he contends:
(1) he is entitled to Eleventh Amendment immunity to the
extent he is sued in his official capacity for monetary
damages, see Motion at 4-5; (2) Plaintiff fails to
state a claim for which relief can be granted because he
seeks some relief that the Court cannot grant, id.
at 5-6; and (3) the claim concerning the state torts of
assault and battery is barred by statutory and Eleventh
Amendment immunity, id. at 6-8.
response to Defendant's Motion, Plaintiff states he is
still suffering from mental disturbance as a result of the
incident alleged in the Complaint. Response at 1. As relief,
Plaintiff seeks the removal of Defendant Fisher from his job
to prevent additional assaults and sexual abuse of inmates;
mental health treatment; and $300, 000.00. Id.