United States District Court, M.D. Florida, Fort Myers Division
E. STEELE, SENIOR UNITED STATES DISTRICT JUDGE
matter comes before the Court on Defendant Shawn Mattox's
Motion to Dismiss (Doc. #45) filed on October 18, 2017.
Plaintiff filed his response in opposition Mattox's
motion (Doc. #49) on November 6, 2017. For the reasons set
forth below the motion to dismiss is denied.
an inmate at the Century Correctional Institution, in
Century, Florida, initiated this action by filing a pro
se civil rights complaint pursuant to 42 U.S.C. §
1983 against Defendants W. Cruz, Sergeant Mattox, Sergeant
Stuber, and Officer Lopez (Doc. #1), filed March 20, 2017.
The Court ordered Plaintiff to amend his complaint on June
13, 2017. Plaintiff filed his amended complaint (Doc. #15) on
July 26, 2017, against Defendants W. Cruz and Sergeant
Mattox. Plaintiff filed his Second Amended Complaint (Doc.
#38) against Defendants W. Cruz, Sergeant Mattox, and Patrick
Murphy, Warden of the DeSoto Correctional Institution on
October 2, 2107.
alleges the following: On December 31, 2015, between five and
six in the evening, Plaintiff was handcuffed near the south
side chow hall at DeSoto Correctional Institution. (Doc. #38
at 7). As Defendant Cruz was escorting Plaintiff from the
Southside dining hall, Defendant Cruz began to “pull
aggressively” on Plaintiff's right arm.
Id. Defendant Cruz, with Defendant Mattox in tow,
escorted Plaintiff around the chow hall door, and pushed him
up against a concrete wall. Id. Defendant Cruz
aggressively and deliberately pushed Plaintiff's face
against the wall. Id. Plaintiff told Defendant Cruz
“you just assaulted me.” and Defendant Cruz said,
“I'll show you assault.” Id.
Defendant Cruz picked Plaintiff up and slammed him onto his
left shoulder. Id. He then put the entire weight of
his knee in Plaintiff's back. Id. Plaintiff
screamed out “I can't breathe.” Id.
Defendant Cruz remained there for twenty minutes until
someone told him that the captain was coming. At that time,
Defendant Cruz got up and two unknown officers switched
positions with Defendant Cruz and escorted him to medical.
Mattox just stood by and watched the attack and did not
attempt to intervene, correct, or even report the attack.
Id. Defendant Maddox did not try to remove Defendant
Cruz from Plaintiff's back. Id.
seeks $25, 000.00 in damages from each defendant and $20,
000.00 in punitive damages against Defendant Murphy for the
deliberate indifference to the conduct of his employees.
Federal Rule of Civil Procedure 8(a)(2), a Complaint must
contain a “short and plain statement of the claim
showing that the pleader is entitled to relief.”
Fed.R.Civ.P. 8(a)(2). This obligation “requires more
than labels and conclusions, and a formulaic recitation of
the elements of a cause of action will not do.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(citation omitted). To survive dismissal, the factual
allegations must be “plausible” and “must
be enough to raise a right to relief above the speculative
level.” Id. See also Edwards v. Prime Inc.,
602 F.3d 1276, 1291 (11th Cir. 2010). This requires
“more than an unadorned,
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
deciding a Rule 12(b)(6) motion to dismiss, the Court must
accept all factual allegations in a complaint as true and
take them in the light most favorable to plaintiff,
Erickson v. Pardus, 551 U.S. 89 (2007), but
“[l]egal conclusions without adequate factual support
are entitled to no assumption of truth.” Mamani v.
Berzain, 654 F.3d 1148, 1153 (11th Cir. 2011) (citations
omitted). “Threadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do
not suffice.” Iqbal, 556 U.S. at 678.
“Factual allegations that are merely consistent with a
defendant's liability fall short of being facially
plausible.” Chaparro v. Carnival Corp., 693
F.3d 1333, 1337 (11th Cir. 2012) (internal citations
omitted). Thus, the Court engages in a two-step approach:
“When there are well-pleaded factual allegations, a
court should assume their veracity and then determine whether
they plausibly give rise to an entitlement to relief.”
Iqbal, 556 U.S. at 679.
alleges Officer Mattox violated his Eighth Amendment right to
be free from cruel and unusual punishment when he did not
prevent Officer Cruz from using excessive force against him.
officer who is present at the scene and who fails to take
reasonable steps to protect the victim of another
officer's use of excessive force can be held personally
liable for his nonfeasance. Hadley v Gutierrez, 526
F.3d 1324, 1330-31 (11th Cir. 2008). However, a
constitutional violation for failure to intervene occurs only
when a plaintiff establishes that: (1) the defendant had the
time and the opportunity to intervene; and (2) the defendant
should have reasonably known that the other officers'
conduct was in violation of the plaintiff's
constitutional rights. See Priester v. City of Riviera
Beach, Fla., 208 F.3d 919 (2000) (affirming conviction
of officer for failure to intervene where the officer
“observed the entire attack and had the time and
ability to intervene, ” and “excessive force . .
. was such that every reasonable officer would have known
that it was clearly in violation of the plaintiff's
Plaintiff's factual allegations as true, Defendant Maddox
had sufficient time to intervene in Defendant Cruz's
action. Plaintiff states that Defendant Cruz shoved him into
the wall and then slammed him onto the floor in an aggressive
manner. Plaintiff then states that Defendant Cruz sat on him
for over twenty minutes while he complained to Defendant Cruz
that he could not breathe. (Doc. #38 at 7). While Defendant
Mattox may not have anticipated Officer Cruz's pushing
Plaintiff into a wall and slamming him down on the floor,
there was period of twenty minutes where ...