United States District Court, N.D. Florida, Tallahassee Division
REPORT AND RECOMMENDATION
CHARLES A. STAMPELOS UNITED STATES MAGISTRATE JUDGE.
proceeding pro se, initiated this case in November 2016 by
filing a notice of intent to sue. ECF No. 1. Plaintiff filed
a complaint in December 2016, ECF No. 4, and was granted
leave to proceed in forma pauperis. ECF Nos. 5, 6, and 10.
Service was directed, ECF No. 12, and Defendant Jones, the
Secretary of the Florida Department of Corrections, filed a
motion to dismiss. ECF No. 16. Plaintiff was advised of his
obligation to file a response in opposition to the motion,
ECF No. 17, and his response was timely filed. ECF No. 18.
of the Complaint, ECF No. 4
is a prisoner who is housed at Liberty Correctional
Institution. ECF No. 4 at 1. Plaintiff was diagnosed with
Chronic Obstructive Sleep Apnea Disease in 2001, prior to his
incarceration. Id. at 3. His treatment for that
condition includes “the use of a ‘CPAP'
breathing-assistance machine . . . .” Id. at
4. Plaintiff has used his own personal CPAP machine since he
began his incarceration and Department of Corrections'
medical staff provide Plaintiff with regular supplies.
Id. The machine requires an electrical outlet for
power and Plaintiff alleged that he “has always been
assigned a bunk adjacent to an electrical outlet for [that]
specific purpose.” Id. at 4-5. However,
Plaintiff alleged that he “cannot nap or sleep at all
without his CPAP machine without exposure to the serious
medical risks involved.” Id. at 5. Plaintiff
alleged that on several occasions, dormitory staff
“have turned off the power” to his machine
“both during normal sleeping hours and during
naps.” Id. at 6. He woke up choking and
asserted claims under the Rehabilitation Act and the Equal
Protection Clause. ECF No. 4 at 1-2. Plaintiff claimed he
“is being discriminated against by not being allowed to
use his approved medical device at all times while sleeping,
even for a nap while all other inmates in the dorm are
permitted to do so.” Id. at 6. Plaintiff
alleged that officers at Liberty C.I. have created and
imposed “local institutional rules” which are
unlawful. Id. at 6-7, 9-11. He alleged that
staff operate under a local, institutional manual which
“should immediately be rescinded by Order of this
Court.” Id. at 9. Plaintiff further alleged
that his equal protection rights were violated “when he
has repeatedly been prohibited from (1) being placed adjacent
to a working electrical power outlet when inmates
with similar medical needs and CPAP machines have not had the
power to their machines turned off; and (2) when any an all
other inmates have been permitted to rest/nap during the day
. . . while the Plaintiff has been repeatedly prohibited from
doing so due to the absence of electrical power to his CPAP
breathing machine; and” (3) the denial of “the
use of his required medical equipment under the guise of
illegal ‘local institutional rules' and
‘security concerns' that are not in place or
applied to inmates with similar medical conditions and
equipment at other institutions within the Florida Department
of Corrections.” Id. at 11-12.
seeks injunctive relief, requiring the Department to: (1)
cease the use of local institutional procedural manuals, (2)
ensure that inmates who need electrical power have it
adjacent to their bunks at all times (including use of backup
emergency generator), (3) ensure inmate records of special
disabilities and related needs are available to appropriate
staff, and (4) ensure inmates with special disabilities have
equal opportunities to participate in inmate programs and
privileges in the same manner as non-disabled inmates.
Id. at 12-13.
issue on whether a complaint should be dismissed pursuant to
Fed.R.Civ.P. 12(b)(6) for failing to state a claim upon which
relief can be granted is whether the plaintiff has alleged
enough plausible facts to support the claim stated. Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955,
167 L.Ed.2d 929 (2007) (retiring the standard from Conley
v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80
(1957). “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, 129 S.Ct. 1937,
1949, 173 L.Ed.2d 868 (2009) (quoting Twombly, 550
U.S. at 570, 127 S.Ct. 1955). “A claim has facial
plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.”
Iqbal, 556 U.S. at 677 (citing Twombly, 550
U.S. at 556); see also Speaker v. U.S. Dep't of
Health, 623 F.3d 1371, 1380 (11th Cir. 2010). “The
plausibility standard” is not the same as a
“probability requirement, ” and “asks for
more than a sheer possibility that a defendant has acted
unlawfully.” Iqbal, 556 U.S. at 677 (quoting
Twombly, 550 U.S. at 556). A complaint that
“pleads facts that are ‘merely consistent
with' a defendant's liability, ” falls
“short of the line between possibility and
plausibility.” Iqbal, 129556 U.S. at 677
(quoting Twombly, 550 U.S. at 557).
pleading standard is not heightened, but flexible, in line
with Rule 8's command to simply give fair notice to the
defendant of the plaintiff's claim and the grounds upon
which it rests. Swierkiewicz v. Sorema, 534 U.S.
506, 122 S.Ct. 992, 998, 152 L.Ed.2d 1 (2002) (“Rule
8(a)'s simplified pleading standard applies to all civil
actions, with limited exceptions.”). Pro se complaints
are held to less stringent standards than those drafted by an
attorney. Wright v. Newsome, 795 F.2d 964, 967 (11th
Cir. 1986) (citing Haines v. Kerner, 404 U.S. 519,
520-521, 92 S.Ct. 594, 596, 30 L.Ed.2d 652 (1972)).
Nevertheless, a complaint must provide sufficient notice of
the claim and the grounds upon which it rests so that a
“largely groundless claim” does not proceed
through discovery and “take up the time of a number of
other people . . . .” Dura Pharmaceuticals, Inc. v.
Broudo, 544 U.S. 336, 125 S.Ct. 1627, 161 L.Ed.2d 577
(2005) (quoted in Twombly, 550 U.S. at 558). The
requirements of Rule 8 do “not unlock the doors of
discovery for a plaintiff armed with nothing more than
conclusions.” Iqbal, 556 U.S. at 678-79, 129
S.Ct. at 1949. A complaint does not need detailed factual
allegations to survive a motion to dismiss, but Rule 8
“demands more than an unadorned,
the-defendant-unlawfully- harmed-me accusation.” 556
U.S. at 678, 129 S.Ct. at 1949. “A pleading that offers
‘labels and conclusions' or ‘a formulaic
recitation of the elements of a cause of action will not
do.'” Id. (quoting Twombly, 550
U.S. at 555). Thus, “conclusory allegations,
unwarranted factual deductions or legal conclusions
masquerading as facts will not prevent dismissal.”
Davila v. Delta Air Lines, Inc., 326 F.3d 1183, 1185
(11th Cir. 2003).
to Dismiss, ECF No. 16
Official Capacity Claims
Jones asserts Eleventh Amendment immunity as a defense and
contends that Plaintiff's “claim against Defendant
for damages in her Official Capacity should be
dismissed.” ECF No. 16 at 6-7. Absent limited
exceptions, the State of Florida and its agencies are immune
from suit in this Court by force of the Eleventh Amendment.
Carr v. City of Florence, Ala., 916 F.2d 1521, 1524
(11th Cir. 1990); see also Kentucky v. Graham, 473
U.S. 159, 169, 105 S.Ct. 3099, 3107, 87 L.Ed.2d 114 (1985)
(reiterating that “absent waiver by the State or valid
congressional override, the Eleventh Amendment bars a damages
action against a State in federal court.”). That
“bar remains in effect when State officials are sued
for damages in their official capacity.”
Kentucky, 473 U.S. at 169, 105 S.Ct. at 3107;
see also Odebrecht Const., Inc. v. Secretary, Fla.
Dep't of Transp., 715 F.3d 1268, 1289 (11th Cir.
suit under § 1983 against a state official sued in her
official capacity is barred unless it meets one of three
exceptions. The first two exceptions are through a waiver of
sovereign immunity. See Atascadero State Hosp. v.
Scanlon, 473 U.S. 234, 238, 105 S.Ct. 3142, 87 L.Ed.2d
171 (1985); Gamble v. Florida Dep't of Health and
Rehab. Servs., 779 F.2d 1509 (11th Cir. 1986). Waiver
may be either by the State or Congress may override a
state's immunity pursuant to its power under § 5 of
the Fourteenth Amendment. Florida Prepaid Postsecondary
Educ. Expense Bd. v. College Sav. Bank, 527 U.S. 627,
119 S.Ct. 2199, 2205-06, 144 L.Ed.2d 575 (1999); Seminole
Tribe of Fla. v. Florida, 517 U.S. 44, 55, 116 S.Ct.
1114, 1124, 134 L.Ed.2d 252 (1996) (concluding “that
the type of relief sought is irrelevant to whether Congress
has power to abrogate States' immunity.”). In
enacting § 1983, Congress did not abrogate a state's
immunity, Quern v. Jordan, 440 U.S. 332, 99 S.Ct.
1139, 59 L.Ed.2d 358 (1979); Edelman v. Jordan, 415
U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974), nor did
Florida waive its Eleventh Amendment sovereign immunity and
consented to suit in federal court under § 1983.
Gamble, 779 F.2d at 1520; see ECF No. 16 at
third exception is through Ex Parte Young, 209 U.S.
123, 28 S.Ct. 441, 52 L.Ed. 714 (1908). See Idaho v.
Coeur d'Alene Tribe of Idaho, 521 U.S. 261, 269, 117
S.Ct. 2028, 138 L.Ed.2d 438 (1997) (reaffirming that
prospective relief may be sought against a state official in
federal court); Sandoval v. Hagan, 197 F.3d 484, 492
(11th Cir. 1999) (citing Summit Med. Assoc. v.
Pryor, 180 F.3d 1326, 1336-38 (11th Cir. 1999). Here,
Plaintiff seeks prospective injunctive relief only; he did
not request monetary damages. ECF No. 4 at 12-13; ECF No. 18
at 1-2. The Eleventh Amendment does not bar these claims. The
motion to dismiss should be denied as to this argument.
Additionally, in light of this conclusion, there is no need