United States District Court, M.D. Florida, Jacksonville Division
J. DAVIS UNITED STATES DISTRICT JUDGE
matter is before the Court on Defendants, Corrections Officer
Shane Biancaniello and Captain/Corrections Officer
Swain's Motion to Dismiss (Motion) (Doc. 4). Plaintiff,
through counsel, filed a Response to Defendants' Motion
to Dismiss (Response) (Doc. 6). He is proceeding on a civil
rights Complaint (Complaint)(Doc. 2).
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).
raises four counts in the Complaint: (1) a civil rights
violation under 42 U.S.C. § 1983 as to Corrections
Officer Shane Biancaniello; (2) a civil rights violation
under 42 U.S.C. § 1983 as to Captain/Corrections Officer
Swain; (3) a civil conspiracy to commit a civil rights
violation under 42 U.S.C. § 1983 as to Defendants,
Corrections Officer Shane Biancaniello and
Captain/Corrections Officer Swain; and (4) a conspiracy as an
independent tort as to Defendants, Corrections Officer Shane
Biancaniello and Captain/Corrections Officer Swain. As
relief, Plaintiff seeks monetary compensation.
Statement of Facts, Plaintiff alleges that in November, 2013,
he was imprisoned at Columbia Correctional Institution, when
he was caught passing notes from another inmate. Complaint at
2. Plaintiff received a summons to Defendant Swain's
office. Id. Upon inquiry, Plaintiff refused to
identify the inmate passing notes. Id. Defendant
Swain told Plaintiff, based on his refusal to cooperate,
Defendant Swain would not tell anyone what a guard was going
to do to Plaintiff. Id. At that point, Defendant
Biancaniello, who was also present in the office, struck
Plaintiff in the ear and beat him about the top and left side
of his head. Id. Plaintiff bled from his left ear.
Id. Upon his return to general population, Plaintiff
suffered from significant ear pain. Id. He sustained
total hearing loss in his left ear due to this incident and
the lack of timely medical treatment. Id.
Summary of the Arguments
state they seek the dismissal of the Complaint in its
entirety for failure to state a claim upon which relief can
be granted pursuant to Fed.R.Civ.P. 12(b)(6). Motion at 1.
The focus of the argument, however, concerns Count IV, a
conspiracy claim as an independent tort. Id. at 2.
Indeed, they are moving "for an Order dismissing the
Plaintiff's complaint in its entirety for failing to
state a claim upon which relief can be granted because the
Plaintiff failed to allege compliance with Florida Statute
§ 768.28 in his complaint." Motion at 4 (emphasis
passing, Defendants mention, not every instance of contact
constitutes wanton conduct, and reference Hudson v.
McMillian, 503 U.S. 1, 9-10 (1992), for the proposition
that not every malevolent touch by a prison guard gives rise
to a federal cause of action. Motion at 3. They rely on the
transcript of Plaintiff's recorded statement,
Defendants' Exhibit A, to support this contention. Motion
response to Defendants' Motion, Plaintiff asserts he
adequately alleged the Defendants' actions of striking
Plaintiff in the ear and head in retaliation for refusing to
inform on a fellow inmate were committed in bad faith or with
malicious purpose or in a manner exhibiting wanton and
willful disregard of human rights, safety, or property.
See Complaint at ¶¶ 15, 17, 26, 28, 42.
Finally, Plaintiff contends he has properly stated a valid
cause of action and Defendants should not go beyond the four
corners of the Complaint in a motion to dismiss. Response at