United States District Court, N.D. Florida, Panama City Division
REPORT AND RECOMMENDATION
R. JONES UNITED STATES MAGISTRATE JUDGE
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.
The motion is, therefore, ripe for review. For the following
reasons, it is recommended that the motion to dismiss be
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.)
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.)
STANDARD OF REVIEW
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
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.”
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).
Sasser, Smith, Cabrillas, and Santiago
(“Defendants”) 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
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
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