United States District Court, N.D. Florida, Tallahassee Division
GARY L. LUCAS, Plaintiff,
MARK S. INCH, Defendant.
REPORT AND RECOMMENDATION
CHARLES A. STAMPELOS, UNITED STATES MAGISTRATE JUDGE
a former prisoner who brought this case pro se, filed an
amended § 1983 civil rights complaint against the
Secretary of the Florida Department of Corrections. ECF No.
7. The complaint is brought against the Defendant in her
official capacity only. Id. at 1. Service was
directed, ECF No. 8, and Defendant filed a motion to dismiss.
ECF No. 15. Plaintiff has filed his opposition to that
motion, ECF No. 19, and the motion is ready for a ruling.
issue on whether a complaint should be dismissed pursuant to
Fed.R.Civ.P. 12(b)(6) for failing to state a claim upon which
relief can be granted is whether the plaintiff has alleged
enough plausible facts to support the claim stated. Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955,
167 L.Ed.2d 929 (2007) (retiring the standard from Conley
v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80
(1957). “To survive a motion to dismiss, 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, 129 S.Ct. 1937,
1949, 173 L.Ed.2d 868 (2009) (quoting Twombly, 550
U.S. at 570, 127 S.Ct. 1955). “A claim has facial
plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.”
Iqbal, 556 U.S. at 677 (citing Twombly, 550
U.S. at 556); see also Speaker v. U.S. Dep't of
Health, 623 F.3d 1371, 1380 (11th Cir. 2010). “The
plausibility standard” is not the same as a
“probability requirement, ” and “asks for
more than a sheer possibility that a defendant has acted
unlawfully.” Iqbal, 556 U.S. at 677 (quoting
Twombly, 550 U.S. at 556). A complaint that
“pleads facts that are ‘merely consistent
with' a defendant's liability, ” falls
“short of the line between possibility and
plausibility.” Iqbal, 129556 U.S. at 677
(quoting Twombly, 550 U.S. at 557).
pleading standard is not heightened, but flexible, in line
with Rule 8's command to simply give fair notice to the
defendant of the plaintiff's claim and the grounds upon
which it rests. Swierkiewicz v. Sorema, 534 U.S.
506, 122 S.Ct. 992, 998, 152 L.Ed.2d 1 (2002) (“Rule
8(a)'s simplified pleading standard applies to all civil
actions, with limited exceptions.”). Pro se complaints
are held to less stringent standards than those drafted by an
attorney. Wright v. Newsome, 795 F.2d 964, 967 (11th
Cir. 1986) (citing Haines v. Kerner, 404 U.S. 519,
520-521, 92 S.Ct. 594, 596, 30 L.Ed.2d 652 (1972)).
Nevertheless, a complaint must provide sufficient notice of
the claim and the grounds upon which it rests so that a
“largely groundless claim” does not proceed
through discovery and “take up the time of a number of
other people . . . .” Dura Pharmaceuticals, Inc. v.
Broudo, 544 U.S. 336, 125 S.Ct. 1627, 161 L.Ed.2d 577
(2005) (quoted in Twombly, 550 U.S. at 558). A
complaint does not need detailed factual allegations to
survive a motion to dismiss, but Rule 8 “demands more
than an unadorned, the-defendant-unlawfully- harmed-me
accusation.” Iqbal, 556 U.S. at 678, 129 S.Ct.
at 1949. “A pleading that offers ‘labels and
conclusions' or ‘a formulaic recitation of the
elements of a cause of action will not do.'”
Id. (quoting Twombly, 550 U.S. at 555).
Thus, “conclusory allegations, unwarranted factual
deductions or legal conclusions masquerading as facts will
not prevent dismissal.” Davila v. Delta Air Lines,
Inc., 326 F.3d 1183, 1185 (11th Cir. 2003).
alleged that the Secretary of the Department of Corrections
implemented a policy which required that medical treatments
for prisoners be approved first by the Department's
medical administrator. ECF No. 7 at 3. Plaintiff asserts that
he was under the care of several physicians who requested
medical treatment for Plaintiff numerous times. Id.
The requests were denied by the medical administrator.
Id. Plaintiff asserts that he had been diagnosed
with the Hepatitis C Virus (“HCV”) and has
suffered damage to his liver and other internal organs
because he was not provided treatment. Id. Plaintiff
contends that he was denied medical care for HCV in violation
of his Eighth Amendment rights and he seeks compensatory and
punitive damages from the Defendant. Id. at 4.
Inch asserts Eleventh Amendment immunity as a defense to
Plaintiff's request for monetary damages. ECF No. 15 at
4. Absent limited exceptions, the State of Florida and its
agencies are immune from suit in this Court by force of the
Eleventh Amendment. Carr v. City of Florence, Ala.,
916 F.2d 1521, 1524 (11th Cir. 1990); see also
Kentucky, 473 U.S. at 169, 105 S.Ct. at 3107
(reiterating that “absent waiver by the State or valid
congressional override, the Eleventh Amendment bars a damages
action against a State in federal court.”). That
“bar remains in effect when State officials are sued
for damages in their official capacity.”
Kentucky, 473 U.S. at 169, 105 S.Ct. at 3107;
see also Odebrecht Const., Inc. v. Secretary, Fla.
Dep't of Transp., 715 F.3d 1268, 1289 (11th Cir.
first two exceptions to Eleventh Amendment immunity are
through waivers of sovereign immunity. See Atascadero
State Hosp. v. Scanlon, 473 U.S. 234, 238, 105 S.Ct.
3142, 87 L.Ed.2d 171 (1985); Gamble v. Florida Dep't
of Health and Rehab. Servs., 779 F.2d 1509 (11th Cir.
1986). Waiver may be either by the State or Congress may
override a state's immunity pursuant to its power under
§ 5 of the Fourteenth Amendment. Florida Prepaid
Postsecondary Educ. Expense Bd. v. College Sav. Bank,
527 U.S. 627, 119 S.Ct. 2199, 2205-06, 144 L.Ed.2d 575
(1999); Seminole Tribe of Fla. v. Florida, 517 U.S.
44, 55, 116 S.Ct. 1114, 1124, 134 L.Ed.2d 252 (1996).
“But absent waiver or valid abrogation, federal courts
may not entertain a private person's suit against a
State.” Virginia Office for Prot. & Advocacy v.
Stewart, 563 U.S. 247, 254, 131 S.Ct. 1632, 1638, 179
L.Ed.2d 675 (2011). Congress did not abrogate a state's
immunity when enacting § 1983, Quern v. Jordan,
440 U.S. 332, 99 S.Ct. 1139, 59 L.Ed.2d 358 (1979);
Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39
L.Ed.2d 662 (1974), nor has Florida waived its immunity and
consented to suit in federal court under § 1983.
Gamble, 779 F.2d at 1520.
exception is through Ex parte Young, 209 U.S. 123,
28 S.Ct. 441, 52 L.Ed. 714 (1908). Idaho v. Coeur
d'Alene Tribe of Idaho, 521 U.S. 261, 269, 117 S.Ct.
2028, 138 L.Ed.2d 438 (1997) (reaffirming that prospective
relief may be sought against a state official in federal
court). Sandoval v. Hagan, 197 F.3d 484, 492 (11th
Cir. 1999) (citing Summit Med. Assoc. v.
Pryor, 180 F.3d 1326, 1336-38 (11th Cir. 1999). The
Ex parte Young exception holds that a state official
who enforces state law which conflicts with the superior
authority of the federal Constitution is “stripped of
his official or representative character and is subjected in
his person to the consequences of his individual
conduct.” Stewart, 563 U.S. at 254, 131 S.Ct.
whether this exception applies requires answering a
“straightforward inquiry into whether [the] complaint
alleges an ongoing violation of federal law and seeks relief
properly characterized as prospective.” 563 U.S. at
255, 131 S.Ct. at 1639 (citations omitted). Here, Plaintiff
has not made a request for prospective injunctive relief, not
could he. Plaintiff is no longer incarcerated and would not
benefit from any relief requested, had he done so.
Plaintiff's complaint is based on factual allegations
which occurred prior to his release from custody in April
2018, see ECF No. 7 at 3, and there are no
allegations of ongoing issues. Accordingly, Defendant's
motion to dismiss this case pursuant to Eleventh Amendment
immunity should be granted and this case dismissed.
Averhart v. Warden, 590 Fed.Appx. 873, 875 (11th
Cir. 2014) (citing Hale v. Tallapoosa Cnty., 50 F.3d
1579, 1582-83 (11th Cir. 1995) and noting that “[a]
prison official's failure to prevent inmate-on-inmate
violence may constitute deliberate indifference, if the
prison official knew there was a substantial risk of serious
harm and then knowingly or recklessly disregarded that
light of this conclusion, it is unnecessary to address
Defendant's argument that Plaintiff's complaint is a
shotgun pleading, see ECF No. 15 at 4-5, that
Plaintiff did not make a “specific claim of physical
injury” and is “not entitled to compensatory or
punitive damages” pursuant to 42 U.S.C. §
1997e(e), id. at 6, or that the complaint does not
sufficiently state an Eighth Amendment claim. Id. at
7. Although unnecessary, several of those arguments should be
eliminated. First, Plaintiff filed this case as a former
prisoner and, thus, § 1997e(e) is not applicable.
Harris v. Garner, 216 F.3d 970, 979-80 (11th Cir.
2000) (finding that “[b]ecause section 1997e(e) applies
only to claims filed while an inmate is confined, it does not
prevent a former prisoner from filing after release a
monetary damages claim for mental and emotional injury
suffered while confined, without a prior showing of physical
injury”). Second, although Defendant explains the four
types of “shotgun pleadings, ” see ECF
No. 15 at 4-5, Defendant does not assert why this
Plaintiff's complaint is a “shotgun
Plaintiff's pro se complaint is not a model for asserting
an Eighth Amendment claim. See ECF No. 7. However,
it is clear enough to understand that Plaintiff has alleged
that Defendant implemented a policy which denied him medical
treatment for HCV, notwithstanding that such treatment was
recommended “numerous times” by Plaintiff's
doctors. Plaintiff's response to the motion to dismiss
also clarifies that budgetary constraints resulted in a
denial of treatment. ECF No. 19 at 3. Therefore, this is not
a case in which a prisoner simply disagrees with a
doctor's recommendation for treatment. Treatment was
ordered by his doctors, but denied by an administrator due to
“department policy.” Id. at 3. In the
wake of Hoffer v. Jones, it is impossible to ignore
that inmates in the Florida Department of Corrections have
been “dying from HCV because they were not being
treated” and they were not being treated “because
of a lack of funding.” Hoffer v. Jones, 290
F.Supp.3d 1292, 1298 (N.D. Fla. 2017) (concluding
“there is no ...