United States District Court, M.D. Florida, Jacksonville Division
GREGORY J. GREER, a.k.a. Gregory J. Green, Plaintiff,
BILL LEEPER, Sheriff, et al., Defendants.
C. RICHARDSON, UNITED STATES MAGISTRATE JUDGE.
a pretrial detainee at the Nassau County Detention Center,
initiated this action by filing a pro se Civil Rights
Complaint (Doc. 1) and a Motion for Leave to Proceed as a
pauper (Doc. 4). In his Complaint, brought under 42 U.S.C.
§ 1983, Plaintiff names as Defendants (1) Sheriff Bill
Leeper, (2) the Nassau County Sheriff's Office, and (3)
Deputy Daniel Joseph Johns. He seeks an injunction and
damages for an incident that occurred on January 11, 2018, in
which Defendant Johns allegedly used excessive force against
him. See Complaint at 5; Doc. 1-1 at 2-3.
review of the Complaint, the Court opines that Plaintiff has
failed to set forth his claims adequately. Thus, if Plaintiff
desires to proceed with his claims, he must file an amended
complaint. In doing so, Plaintiff should consider the
following. To state a viable claim under 42 U.S.C. §
1983, a plaintiff must allege that the conduct complained of
was committed by a person acting under color of state law,
and the conduct deprived the plaintiff of rights, privileges,
or immunities secured by the Constitution or laws of the
United States. In amending, Plaintiff must name as defendants
only those who had been acting under color of state law and
are responsible for the alleged constitutional violation(s).
If Plaintiff names defendants who hold supervisory positions
or who are not directly involved in the day-to-day operations
of the penal facility, such as the Sheriff, Plaintiff should
be aware that supervisory liability (respondeat superior) has
been rejected as a theory of recovery under § 1983. See
Keith v. DeKalb Cty., Ga., 749 F.3d 1034, 1047 (11th
Cir. 2014) (citing Cottone v. Jenne, 326 F.3d 1352,
1360 (11th Cir. 2003)).
the Nassau County Detention Center is not a legal entity
amenable to suit under § 1983. Whether a party has the
capacity to be sued is determined by the law of the state in
which the district court sits. Dean v. Barber, 951
F.2d 1210, 1214-15 (11th Cir. 1992) (stating that certain
subdivisions of local or county governments, such as
sheriff's departments and police departments, generally
are not legal entities subject to suit). “A
correctional facility or the jail is not a proper defendant
in a case brought under 42 U.S.C. § 1983.”
Monroe v. Jail, No. 2:15-cv-729-FtM-99MRM, 2015 WL
7777521, at *2 (M.D. Fla. Dec. 3, 2015) (citing Chapter 30,
Florida Statutes); accord Mellen v. Florida, No.
3:13-cv-1233-J-34PDB, 2014 WL 5093885, at *8 (M.D. Fla. Oct.
“Basis for Jurisdiction” in section II, Plaintiff
must state the specific constitutional right or federal law
that each defendant allegedly violated. Plaintiff cites the
5th Amendment as the basis for jurisdiction and the source of
Defendants' alleged constitutional violation. See
Complaint at 3. Plaintiff is advised that a claim for
excessive use of force against a pretrial detainee is
properly analyzed under the due process clause of the 14th
Amendment. To the extent Plaintiff alleges a violation of the
5th Amendment, his claim is not properly before the Court.
See Kingsley v. Hendrickson, 135 S.Ct. 2466, 2477
(Scalia, J., dissenting) (“The Fifth Amendment applies
only to federal actors.”); Weiland v. Palm Bch.
Cty. Sheriff's Office, 792 F.3d 1313, 1328 (11th
Cir. 2015) (“The Fifth Amendment . . . protects a
citizen's rights against infringement by the federal
government, not by state government.”).
section IV, “Statement of Claim, ” Plaintiff must
concisely, yet clearly, set forth the relevant facts
regarding the incidents allegedly resulting in a
constitutional violation.Plaintiff's factual allegations
should be set forth in the Civil Rights Complaint Form or
attached pages and not simply filed as a supplement or
exhibit. Plaintiff should separately number each
allegation when describing the relevant facts and the
Defendants' actions or inactions. Although Plaintiff is
proceeding pro se, he must follow the Federal Rules of Civil
Procedure. Rule 8(a) requires a pleading to include a short
and plain statement of the claim showing that the pleader is
entitled to relief. Rule 10(b) requires all averments of the
claim be made “in numbered paragraphs, each limited as
far as practicable to a single set of circumstances.”
Plaintiff must sign and date the amended complaint after the
following statement on the form:
Under Federal Rule of Civil Procedure 11, by signing below, I
certify to the best of my knowledge, information, and belief
that this complaint: (1) is not being presented for an
improper purpose, such as to harass, cause unnecessary delay,
or needlessly increase the cost of litigation; (2) is
supported by existing law or by a nonfrivolous argument for
extending, modifying, or reversing existing law; (3) the
factual contentions have evidentiary support or, if
specifically so identified, will likely have evidentiary
support after a reasonable opportunity for further
investigation or discovery; and (4) the complaint otherwise
complies with the requirements of Rule 11.
should carefully review the instructions in this Order and on
the Civil Rights Complaint Form to determine whether he can
present allegations sufficient to state a cause of action
under the relevant law. If Plaintiff does not have a good-faith
belief that he can state an actionable claim, he may
voluntarily dismiss the action at any time.
1. The Clerk is directed to send Plaintiff a
Civil Rights Complaint Form.
2. If Plaintiff elects to file an amended complaint, he must
do so no later than May 24, 2018. He should
do so on the enclosed civil rights complaint form consistent
with the directions given in this Order and the instructions
on the form. Plaintiff is advised that the amended complaint
will serve as the operative complaint in this action unless
the Court otherwise orders. Thus, Plaintiff's amended
complaint must contain all claims and allegations that he
wishes to raise, and it must not refer back to the original
Complaint. This case number (3:18-cv-193-J-32MCR) should be
affixed to the civil rights complaint form, and the words
“Amended Complaint” should be written on the top
of the form. When submitting an amended complaint, Plaintiff
should submit a service copy of the complaint for each named
3. Plaintiff's failure to timely file an amended
complaint as described in this Order or failure to submit one
copy of the amended complaint for each named defendant will
result in ...