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Bruno v. United States

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

May 30, 2019

HECTOR BRUNO, Plaintiff,
v.
UNITED STATES OF AMERICA, et al., Defendants.

          REPORT AND RECOMMENDATION

          HOPE THAI CANNON UNITED STATES MAGISTRATE JUDGE

         This matter is before the Court on Defendant Lieutenant R. Boston's Motion to Dismiss (ECF Doc. 45) and Plaintiff's response in opposition (ECF Doc. 49). The matter has been referred to the undersigned Magistrate Judge for a Report and Recommendation pursuant to 28 U.S.C. § 636 and N.D. Fla. Loc. R. 72.2(C). After reviewing the parties' submissions and the relevant law, the undersigned recommends that Boston's Motion to Dismiss be GRANTED and Plaintiff's claims against Boston be DISMISSED WITH PREJUDICE.

         I. Background

         Plaintiff is a former inmate of the Bureau of Prisons (“BOP”). His complaint names two Defendants: United States of America (“USA”) and Boston, a correctional officer previously employed at the Federal Prison Camp in Pensacola, Florida (“FPC Pensacola”).[1] Plaintiff alleges Defendants were negligent under Florida law, [2] and that they are liable for violations of the First, Fourth and Eighth Amendments. Plaintiff's claims arise out of a single report of illness that occurred in 2017 while he was incarcerated at FPC Pensacola and the Defendants' response thereto. As relief, Plaintiff seeks monetary damages.

         Plaintiff's verified complaint sets forth the factual allegations that follow, the truth of which are accepted for purposes of this Report and Recommendation. On September 11, 2017, Plaintiff told officials at FPC Pensacola he was ill and needed medical treatment. Plaintiff claims he “was experiencing respiratory distress, high fever, nausea and vomiting, and physical weakness.” The officials told Plaintiff “the [l]ieutenant on duty would come to check on him in his living quarters[, ]” but the lieutenant did not do so. Plaintiff does not contend that the lieutenant on duty was Defendant Boston.

         Plaintiff says his symptoms worsened the following morning. He reported to sick call at 6:00 a.m., but “a notice was posted advising inmates that ‘Sick Call' for that day was scheduled for 8:00 a.m. for all non-emergency matters.” “Although the notice indicated that an ‘emergency' Sick Call was available to inmates, there was no officer or staff member present to receive a request for emergency Sick Call or to address Plaintiff's emergent health concerns.”

         Plaintiff returned to his living quarters to rest until the 8:00 a.m. sick call. At approximately 6:40 a.m., an inmate woke Plaintiff and advised him “that his name was being called to the ‘bus barn' to report for work.” Plaintiff went to the bus barn; he told Defendant Boston “he was ill and unable to report to work, and . . . he needed immediate medical attention and . . . was waiting for Health Services to open at 8:00 a.m.” Plaintiff claims that “[d]espite Plaintiff's obvious weakened physical condition, Lt. Boston ignored Plaintiff's health concerns and attempted to force Plaintiff to board the inmate work bus and be transported to his work site.” Boston “insisted that Plaintiff go to work for the day, and after the full work day, go to the next available Sick Call[.]”

         Plaintiff did not end up going to work. Instead, Boston asked another officer to escort Plaintiff to Boston's office. Then, he was “ordered to change clothing and placed in a cell for over a half-hour, during which time no medical treatment was provided[.]” Plaintiff was subsequently handcuffed and transported to the Santa Rosa County Jail, which took one and a half hours. After arriving at the jail, Plaintiff requested and received medical treatment. There, he was diagnosed and treated for “right perihilar mid and lower lobe pneumonia.”

         Boston filed an incident report charging Plaintiff with refusing to work and refusing to obey an order. Plaintiff contested the incident report and submitted grievances regarding Boston and FPC Pensacola. After leaving the Santa Rosa County Jail, Plaintiff was transferred to five (5) different prisons within six (6) months; Plaintiff claims the transfers were retaliation for complaining about his treatment at FPC Pensacola. Subsequently, the September 12, 2017, incident report “was dismissed and expunged from [Plaintiff's] prison record.”

         II. Legal Standard

         In considering a motion to dismiss for failure to state a claim, the Court reads Plaintiff's pro se allegations in a liberal fashion, Haines v. Kerner, 404 U.S. 519, 520-21 (1972), and accepts “[a]ll well-pleaded facts in plaintiff's complaint and all reasonable inferences drawn from those facts . . . as true.” McGinley v. Houston, 361 F.3d 1328, 1330 (11th Cir. 2004) (citation omitted). As the Supreme Court reiterated in Ashcroft v. Iqbal, although Rule 8 of the Federal Rules of Civil Procedure does not require detailed factual allegations, it does demand “more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” 556 U.S. 662, 678 (2009). A complaint must state a plausible claim for relief, and “[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.” Id.

         III. Discussion

         A. Florida Law

         To the extent Plaintiff seeks to bring state-law claims against Defendant Boston individually, those claims are barred by the Westfall Act. “When a federal employee is sued for a wrongful or negligent act, the Federal Employees Liability Reform and Tort Compensation Act of 1988 (commonly known as the Westfall Act) empowers the Attorney General to certify that the employee ‘was acting within the scope of [her] office or employment at the time of the incident out of which the claim arose.'” Gutierrez de Martinez v. Lamagno, 515 U.S. 417, 419-20 (1995) (quoting 28 U.S.C. § 2679(d)(1)). “Upon certification, the employee is dismissed from the action and the United States is substituted as defendant. The case then falls under the governance of the [FTCA.]” Id. at 420.

         The Attorney General, acting through the U.S. Attorney for the Northern District of Florida, has certified that Boston was acting within the scope of her employment with the BOP with respect to Plaintiff's allegations. ECF Doc. 45-1. Plaintiff does not contest the certification in his response to Boston's Motion to Dismiss. Plaintiff, therefore, cannot bring state-law claims against Boston; Plaintiff's claims under Florida law can proceed only against Defendant USA. See Springer v. Bryant, 897 F.2d 1085, 1086 (11th Cir. 1990) (“The purpose of the ...


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