United States District Court, M.D. Florida, Tampa Division
D. MERRYDAY UNITED STATES DISTRICT JUDGE.
complaint alleges that the defendants violated his civil
rights when they allowed another detainee to attack him.
Nelson filed “Prisoner Consent and Financial
Certificate” forms (Docs. 9 and 13), in which he seeks
leave to proceed in forma pauperis. The Prisoner
Litigation Reform Act requires dismissal of an in forma
pauperis prisoner's case “if the allegation of
poverty is untrue” or if the case “is frivolous
or malicious, fails to state a claim on which relief may be
granted, or seeks monetary relief against a defendant who is
immune from such relief.” 28 U.S.C. § 1915(e).
Although the complaint is entitled to a generous
interpretation, Haines v. Kerner, 404 U.S. 519
(1972) (per curiam), Nelson must amend the
initial complaint used the required form, but he failed to
use the form with his amended complaint. (Docs. 1 and 10)
Nelson filed additional papers entitled
“statement” or “supplement, ” in
which he attempts to amend his pleading. This action must
proceed under a single pleading, which Nelson must entitle
“Second Amended Complaint.” The clerk will send
to Nelson the required form, which Nelson must use to submit
his amended pleading. Nelson is cautioned to print clearly,
to leave a one-inch margin around all sides of each page, and
to not write on the back side of a page.
is a pre-trial detainee in the Pinellas County jail. Nelson
alleges that on March 3, 2017, he was returned to his cell
but the door was left unlocked. Nelson exited his cell and he
was allegedly attacked by another detainee while he was
talking to a friend. Nelson is confined in “high
risk” housing in which apparently only one detainee is
allowed out of his cell at a time. Nelson alleges that the
detention officers' failure to confirm that he was inside
his cell before they released another detainee caused the
attack. Nelson claims that the officers bribed the other
detainee to attack him. Nelson names the Pinellas County jail
and three detention officers as the defendants.
cannot pursue a claim against the Pinellas County jail, which
is a facility operated by the Pinellas County Sheriff. As
Faulkner v. Monroe Cnty. Sheriff's
Dep't, 523 Fed.Appx. 696, 700S01 (11th Cir.
2013),  explains, a “sheriff's
department” is not a legal entity subject to suit:
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). Florida law has not established Sheriff's offices
as separate legal entities with the capacity to be sued.
Thus, the district court did not err by dismissing
Faulkner's claim against MCSO because MCSO is not a legal
entity with the capacity to be sued under Florida law.
See Fla. City Police Dep't v. Corcoran, 661
So.2d 409, 410 (Fla. Dist. Ct. App. 1995) (noting that the
municipality, not the police department, had the power to sue
and be sued under Florida law).
is advised that, although the factual allegations in a
pro se complaint (including all reasonable and
direct inferences) are accepted as true, Erickson v.
Pardus, 551 U.S. 89, 94 (2007), the factual allegations
and reasonable inferences must “state a claim to relief
that is plausible on its face.” Bell Atlantic Corp.
v. Twombly, 550 U.S. 544, 570 (2007). Nevertheless, the
complaint must meet certain pleading requirements,
specifically, the complaint must “give the defendant
fair notice of what the . . . claim is and the grounds upon
which it rests” and must provide “more than
labels and conclusions [or] a formulaic recitation of the
elements of the cause of action . . . .”
Twombly, 550 U.S. at 555. Nelson may pursue a claim
against the individual detention officers, but he must
specifically identify which officer allegedly committed each
wrongful act. The complaint must both contain
“well-pleaded facts” and assert specific facts of
wrongdoing because “[w]here the well-pleaded facts do
not permit the court to infer more than the mere possibility
of misconduct, the complaint has alleged -- but it has not
<shown' -- <that the pleader is entitled to
relief.' Fed. Rule Civ. Proc. 8(a)(2).”
Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).
cannot pursue a claim under Section 1983 based on negligence.
Daniels v. Williams, 474 U.S. 327, 330S31 (1986)
(holding that plaintiff must allege more than negligence to
state a claim under Section 1983); Davidson v.
Cannon, 474 U.S. 344, 347-48 (1986) (holding that
alleged negligent failure of prison official to protect one
inmate from another inmate states no claim under Section
1983); Estelle v. Gamble, 429 U.S. 97, 104 (1976)
(holding that neither an accident nor a defendant's
negligence is sufficient to state a claim). Also, Nelson
cannot pursue a claim against a supervisor based on
respondeat superior. Monell v. N.Y.C. Dep't
of Social Services, 436 U.S. 691, 694 (1978). See
also Goebert v. Lee County, 510 F.3d 1312, 1331 (11th
Cir. 2007) (“We do not recognize vicarious liability,
including respondeat superior, in § 1983
actions.”). The complaint must assert facts showing the
direct involvement of each defendant in the alleged
deprivation of Nelson's civil rights.
submits a paper entitled “Notice of Inquiry / Motion
for Discovery.” (Doc. 16) Nelson must not send a
discovery request to the district court. Nelson may pursue
discovery from a defendant only after that individual is
properly served. The district court will authorize service of
process after Nelson properly amends this action.
request for relief includes (1) requiring the detention
officers to reimburse him for “all medical and pysch
charge fees, ” (2) recovering each officer's
pension, and (3) firing of the officers. These remedies are
not available in a civil rights action. Nelson may recover
his requested punitive and compensatory damages for his
mental and physical injuries, however, Nelson cannot recover
monetary damages if the physical injury was merely de
minimus and he cannot recover monetary damages for
mental or psychological injury without a sufficiently serious
actual physical injury. “No Federal civil action may be
brought by a prisoner confined in a jail, prison, or other
correctional facility, for mental or emotional injury
suffered while in custody without a prior showing of physical
injury . . . .” 42 U.S.C. § 1997e(e) Nelson fails
to adequately explain what physical injury he sustained.
Lastly, Sheriff Gualtieri's response (Doc. 8) to
Nelson's motion for a preliminary injunction (Doc. 5)
shows that injunctive relief is not warranted.
must amend his action using the required form, which he must
entitle “Second Amended Complaint.” Nelson must
limit the pleading to only the March 3, 2017, incident
alleged in the original complaint, and he must correct the
deficiencies noted above.
the motions for a preliminary injunction and for discovery
(Docs. 5 and 16) are DENIED. The civil
rights complaints (Docs. 1 and 10), as supplemented (Docs. 11
and 17), are DISMISSED WITHOUT PREJUDICE to
the filing of a second amended complaint. The clerk must send
to Nelson a civil rights complaint form. Nelson's failure
to return the completed form within THIRTY (30)
DAYS will result in the dismissal of this action.
“Pinellas County jail” is DISMISSED WITH