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McLellan v. Biancaniello

United States District Court, M.D. Florida, Jacksonville Division

May 1, 2018

STEVE MCLELLAN, Plaintiff,
v.
CORRECTIONS OFFICER SHANE BIANCANIELLO, et al., Defendants.

          ORDER

          BRIAM J. DAVIS UNITED STATES DISTRICT JUDGE

         I. Status

         This 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)[1](Doc. 2).

         II. Standard of Review

         In 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 footnote omitted).

         A "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).

         III. Complaint[2]

         Plaintiff 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.

         In his 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.

         IV. Summary of the Arguments

         Defendants 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 added).

         In 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 at 3.

         In 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 4.

         V. Law ...


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