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Marine v. Kelly

United States District Court, N.D. Florida, Pensacola Division

May 17, 2019

DEMETRIC C. MARINE, Inmate No. 1700346561, Plaintiff,
v.
NURSE KELLY, et al., Defendants.

          REPORT AND RECOMMENDATION

          ELIZABETH M. TIMOTHY CHIEF UNITED STATES MAGISTRATE JUDGE

         Plaintiff, an inmate proceeding pro se and in forma pauperis, commenced this action by filing a civil rights complaint under 42 U.S.C. § 1983 (see ECF Nos. 1, 5). Presently before the court is Plaintiff's amended complaint (ECF No. 8) and, upon review, the court finds that Plaintiff's factual allegations fail to state a plausible claim for relief against the named Defendants. Therefore, the undersigned recommends that this case be dismissed for failure to state a claim upon which relief may be granted pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).[1]

         Plaintiff names fives Defendants, each of whom was employed at the Escambia County Jail (“Jail”) at the time of the events giving rise to this action: Nurse Kelly, Nurse Practitioner Allison, Nurse Practitioner Marty, Facility Inspector Whitmore, and Custodian Crums (ECF No. 8 at 1-3).[2]

         Plaintiff essentially complains of two things: exposure to “black mold” while housed at the jail and inadequate medical treatment for the symptoms he endured as a result of the mold exposure (ECF No. 8). As to Defendant Whitmore, Plaintiff states that he filed a grievance on September 24, 2018, and thereby placed Whitmore on notice of the black mold exposure, as well as Plaintiff's symptoms, which included “harsh coughing, coughing up blood/irregular breathing” (ECF. No. 8 at 7). Plaintiff alleges that Defendant Whitmore had “constructive knowledge” of the “violation” and failed to act (ECF No. 8 at 7).

         As to Defendant Crums, Plaintiff faults him for “fail[ing] to clean the shower with the proper chemicals” and never attempting to clean the black mold in Plaintiff's assigned cell or in the dayroom (ECF No. 8 at 8).

         Plaintiff states that he submitted multiple sick call forms to Defendants Allison and Marty in which described his exposure to the mold and his symptoms, but he states he was not assessed (ECF No. 8 at 8). He also states he was given “mult-cold syptom [sic] pills” by a “PM nurse” but again complains that the pills were provided “without [his having] been assessed by [] medical staff” (ECF No. 8 at 8). Plaintiff states his symptoms persisted after he took the cold medication and, despite submitting additional sick call forms, he was not given medical attention for “multiple days” (ECF No. 8 at 9).

         Plaintiff notes he was seen by Defendant Kelly for sick call and, that during this visit, he reported his “irregular breathing breathing [sic], coughing up blood/harsh coughing” (ECF No. 8 at 9). Plaintiff claims, however, that Defendant Kelly knowingly and deliberately “inflicted pain” (in an unspecified manner) and denied Plaintiff medical treatment (ECF No. 8 at 9).

         Plaintiff contends that each Defendant caused his medical symptoms described above, as well as “pain and suffering” (ECF No. 8 at 7-9).

         In his Statement of Claims, Plaintiff asserts that Defendants violated his right to Due Process under the Fourteenth Amendment by exposing him to dangerous conditions and by providing inadequate medical care; he also alleges “mental anguish (pain/suffering)” (ECF No. 8 at 10). As relief, Plaintiff requests a “reasonable amount” of punitive damages from Defendants in their individual capacities, punitive and “compensary [sic]” damages from Defendants in their official capacities, and costs (ECF No. 8 at 10).

         To survive dismissal at the screening phase, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed. 2D 868 (2009) (internal quotation marks and citation omitted). The plausibility standard is met only where the facts alleged enable “the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. The complaint's allegations must establish “more than a sheer possibility that a defendant has acted unlawfully.” Id.

         Mere “labels and conclusions or a formulaic recitation of the elements of a cause of action will not do, ” and a plaintiff cannot rely on “naked assertions devoid of further factual enhancement.” Id. (internal quotation marks and alteration omitted); see also Franklin v. Curry, 738 F.3d 1246, 1251 (11th Cir. 2013). Stated succinctly:

Pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth. While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations. 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. Finally, in civil rights cases, “[m]ore than mere conclusory notice pleading is required . . . . A complaint will be dismissed as insufficient where the allegations it contains are vague and conclusory.” Gonzalez v. Reno, 325 F.3d 1228, 1235 (11th Cir. 2003) (quotation marks and alteration omitted).

         While the conditions under which a convicted inmate are held are scrutinized under the Eighth Amendment's prohibition on cruel and unusual punishment, claims regarding confinement conditions and medical care for pretrial detainees are reviewed under the Due Process Clause of the Fourteenth Amendment. See Bell v. Wolfish, 441 U.S. 520, 535 n.16 (1979) (using the Fifth Amendment Due Process Clause); see also Lancaster v. Monroe County, Ala., 116 F.3d 1419, 1425 n.6 (11th Cir. 1997); Nam Dang by and through Vina Dang v. Sheriff, Seminole County Florida, 871 F.3d 1272 (11th Cir. 2017). Nevertheless, the standards are the same. Belcher v. City of Foley, Ala., 30 F.3d 1390, 1396 (11th Cir. 1994) (“[I]n regard to providing pretrial detainees with such basic necessities as food, living space, and medical ...


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