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Barner v. Sasser

United States District Court, N.D. Florida, Panama City Division

March 19, 2018

RICHARD LEO BARNER, III, Plaintiff,
v.
DAVID SASSER, et al., Defendants.

          REPORT AND RECOMMENDATION

          GARY R. JONES UNITED STATES MAGISTRATE JUDGE

         Pending before the Court are ECF No. 59, Defendants', David Sasser's, Kimberly Smith's, Lorraine Cabrillas' and Olga Santiago's, Motion to Dismiss Plaintiff's Third Amended Complaint in Part. Plaintiff has filed a response to the motions to dismiss. (ECF No. 65.)[1] The motion is, therefore, ripe for review. For the following reasons, it is recommended that the motion to dismiss be granted.

         I. INTRODUCTION

         Plaintiff, Richard Leo Barner, III (“Mr. Barner”), a prisoner currently in the custody of the Florida Department of Corrections at Okaloosa Correctional Institution, initiated this case in November 2016, by filing a pro se complaint under 42 U.S.C. § 1983. (ECF No. 1.) Mr. Barner subsequently filed two amended complaints, and the case is now proceeding on Plaintiff's Third Amended Complaint. (ECF No. 57.)

         In Plaintiff's Third Amended Complaint, he names as Defendants Tommy Ford, Sheriff of Bay County, in his official capacity, as well as David Sasser, Olga Santiago, Kimberly Smith, Lorraine Cabrilla, and Mary Jager, in their individual and official capacities. Plaintiff claims that while he was incarcerated at the Bay County Jail, Defendants violated his Fourth, Eighth, and Fourteenth Amendment rights through their deliberate indifference and cruel and unusual punishment. As relief, Mr. Barner seeks a change in the Bay County Jail's policy, compensatory and punitive damages, costs of the suit, and any additional relief the Court deems just, proper, and equitable. (ECF No. 57.)

         II. STANDARD OF REVIEW

         Pursuant to 28 U.S.C. § 1915A, the court “shall review . . . a complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity, ” and shall “dismiss the complaint . . . if the complaint . . . fails to state a claim upon which relief may be granted. To state a claim for relief under 42 U.S.C. § 1983, a plaintiff must allege that an act or omission committed by a person acting under color of state law deprived him of a right, privilege, or immunity secured by the Constitution or laws of the United States. Hale v. Tallapoosa County, 50 F.3d 1579, 1582 (11th Cir.1995).

         As the Supreme Court held in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007), “[f]actual allegations must be enough to raise a right to relief above the speculative level, ” and the complaint “must contain something more . . . than . . . a statement of facts that merely creates a suspicion [of] a legally cognizable right of action.” Further, in Ashcroft v. Iqbal, 556 U.S. 662, 1951-53 (2009), the Supreme Court stated that Twombly “expounded the pleading standard for all civil actions, ” and conclusory allegations that “amount to nothing more than a formulaic recitation of the elements of a constitutional . . . claim” are “not entitled to be assumed true, ” and, to escape dismissal, complaint must allege facts sufficient to move claims “across the line from conceivable to plausible.”

         While a pro se litigant's allegations are entitled to the benefit of liberal construction, Haines v. Kerner, 404 U.S. 519, 520 (1972), a court does not have “license . . . to rewrite an otherwise deficient pleading [by a pro se litigant] in order to sustain an action.” GJR Invs. v. Cnty of Escambia, Fla., 132 F.3d 1359, 1369 (11th Cir. 1998) (overruled on other grounds by Iqbal).

         III. DISCUSSION

         Defendants Sasser, Smith, Cabrillas, and Santiago (“Defendants”)[2] argue that Mr. Barner's claims against them in their official capacities and claims for injunctive relief should be dismissed from his Third Amended Complaint for failure to state a claim upon which relief can be granted.

         (ECF No. 59.)

         A. Mr. Barner's claims against Defendants in their official capacity are due to be dismissed now that he has named the Bay County Sheriff in his official capacity as a Defendant.

         Defendants first argue that Mr. Barner's claims against them in their official capacity are due to be dismissed as redundant. They argue that these claims are now redundant because Mr. Barner has named Tommy Ford, the Sheriff of Bay County, in ...


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