United States District Court, M.D. Florida, Fort Myers Division
E. STEELE, SENIOR UNITED STATES DISTRICT JUDGE
matter comes before the Court on Defendant's Patrick
Murphy's Dispositive Motion to Dismiss with Prejudice
(Doc. #53) filed on December 12, 2017. Plaintiff filed his
response in opposition (Doc. #55) on December 18, 2017. For
the reasons set forth below the motion to dismiss is due to
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. (Doc. #10). 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) on October 2, 2017, against Defendants W. Cruz,
Sergeant Mattox, and Patrick Murphy, Warden of the DeSoto
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
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
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.
filed a grievance with Defendant Murphy explaining the use of
excessive force. Id. at 8. Defendant Murphy ignored
the grievance. Id. Plaintiff seeks payment of all
future medical bills for mental and psychological damages,
$25, 000.00 in damages from each defendant, and $20, 000.00
in punitive damages against Defendant Murphy.
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 that as warden of the DeSoto Correctional
Institution, Defendant Murphy is responsible for every
employee who works under his administration. Plaintiff also
claims Defendant Murphy failed to investigate his grievance
regarding camera evidence of the incident.
officials are not liable under § 1983 for the
unconstitutional acts of their subordinates on the basis of
respondeat superior or vicarious liability.” Barr
v. Gee, 437 Fed.Appx. 865, 875 (11th Cir. 2011) (quoting
West v. Tillman, 496 F.3d 1321, 1328 (11th Cir.
2007)). To maintain a claim against a supervisory defendant,
the plaintiff must allege (1) the personal involvement of the
supervisor in the violation of the plaintiff's
constitutional rights, (2) the existence of either a custom
or policy that resulted in deliberate indifference to the
plaintiff's constitutional rights, (3) facts that support
an inference that the supervisor directed the unlawful action
or knowingly failed to prevent it, or (4) a history of
widespread abuse that put the supervisor on notice of an
alleged constitutional deprivation that he then failed to
correct. See West, 496 F.3d at 1328-29 (listing
factors in context of summary judgment). A supervisor is not
liable under § 1983 for mere negligence in the training
or supervision of his employees. Greason v. Kemp,
891 F.2d 829, 836-37 (11th Cir. 1990).
Amended Complaint is devoid of any set of facts that
demonstrate that Defendant Murphy was personally involved in
the alleged violation of Plaintiff's constitutional
rights. Nor are there any facts that would suggest the
existence of a custom, policy, or practice that resulted in
the violation of Plaintiff's constitutional rights. There
are also no allegations that Defendant Murphy personally
directed the alleged acts by Cruz or Mattox. Finally, there
is no allegation of a history of widespread abuse that put
Defendant Murphy on notice of any alleged ...