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Austin v. Barnes

United States District Court, M.D. Florida, Jacksonville Division

July 18, 2019

DR. DANA BARNES, et al., Defendants.



         I. Status

         Plaintiff Anthony Lavon Austin, an inmate of the Florida penal system, initiated this action on April 12, 2018, by filing a pro se Civil Rights Complaint (Doc. 1). He filed an Amended Complaint (AC; Doc. 5) with exhibits (Docs. 5-1 through 5-16) on May 25, 2018. In the AC, Austin asserts claims pursuant to 42 U.S.C. § 1983 against the following Defendants: (1) Dr. Dana Barnes, M.D.; (2) Detective E. Valerio, Jacksonville Sheriff's Office (JSO); (3) JSO Detective G. Thompkins; (4) JSO Detective J.E. Bisque; (5) JSO Detective Z.M. Anderson; (6) Dr. Kuhn, M.D.; and (7) JSO Officer Kerns.[1] He alleges that the Defendants violated his federal constitutional rights when Thompkins used excessive force against him during an April 11, 2014 arrest, and Barnes, Valerio, and Anderson denied him timely and proper medical care. As relief, he seeks compensatory, punitive, and nominal damages.

         This matter is before the Court on Defendants Valerio and Anderson's Motion to Dismiss (Motion; Doc. 21), Thompkins' Motion to Dismiss (Thompkins Motion; Doc. 34), and Barnes' Motion to Dismiss (Barnes Motion; Doc. 35). The Court advised Austin that granting a motion to dismiss would be an adjudication of the case that could foreclose subsequent litigation on the matter, and gave him an opportunity to respond. See Order (Doc. 9). Austin filed responses in opposition to the Motions, see Responses (Docs. 36, 42, 43), and the Motions are ripe for review.

         II. Plaintiff's Allegations[2]

         As to the underlying facts of his claims, Austin asserts that a JSO narcotics takedown team arrested him on Friday, April 11, 2014, after Defendant Thompkins, posing as a drug user, tried to buy marijuana from him. See AC at 5. He states that he told Thompkins that he did not sell drugs, was on worker's compensation, and ultimately would need a job. See id. According to Austin, he heard screeching car tires and accelerated engines, and saw masked officers pointing guns at him. See id. He avers that he "attempted to run to the officers," as he screamed "my arm[, ] my arm" before they could hurt him. Id. He maintains that "Thompkins placed his foot out in front of [Austin] to trip [him], and [Austin] "fell hard to the ground" on his "already injured shoulder." Id. Austin avers that Officer Bisque put his knee in the middle of Austin's lower back, yanked Austin's arms "real hard" behind his back, placed zip ties on his wrists, and picked him up off the ground. Id. According to Austin, Defendant Anderson interviewed him, and Defendant Valerio transported him to the Duval County Jail (Jail) instead of an emergency room. See id. at 6. He states that he explained to an intake nurse that he had undergone shoulder surgery on his acromioclavicular (AC) joint on March 18, 2014, and was still on worker's compensation as a result of a January 2, 2014 accident at his job site. See id. at 6-7. He asserts that the nurse gave him two Tylenol, and advised that the doctor would determine if he needed to go to the hospital. See id. at 6.

         Austin further asserts that, the following week, he saw Defendant Barnes, who permitted him to have an "ultra-sling II" (brace) that Dr. Murphy at Heekin Orthopedics had prescribed for him after the March 18th surgery. Id. He avers that he saw Dr. Toole, an orthopedic doctor, on May 2, 2014, at Shands of Jacksonville (Shands). See id. at 7. According to Austin, Dr. Toole reviewed his January 2, March 18, and March 30, 2014 x-rays, and explained that Austin needed surgery for his new injury, a broken collar bone. See id. Austin states that Dr. Toole "placed an order" on August 10th for him to undergo clavicle surgery, but JSO denied it. See id. According to Austin, Barnes gave him Tramadol in August 2014, however, he had an allergic reaction, so she recommended Naproxen, to which he had another allergic reaction. See id. at 8. He avers that Barnes gave him Tylenol at a follow-up appointment, and explained that they do not provide narcotics due to the potential of dependency. See id. Austin states that another Shands orthopedic doctor took an x-ray in September 2014, and advised him that Dr. Toole had erred to the extent that Austin had a re-injury to his AC joint, not a clavicle separation. See id. He maintains that the Shands doctor recommended exercises, told him that they do not perform re-injury surgeries, and advised Austin to stop wearing the brace to avoid shoulder stiffness. See id.

         Austin asserts that he reported to the Jail's medical clinic on October 8th, at which time Barnes informed him that a Shands doctor advised that Austin should not wear the brace. See id. at 8-9. He avers that Barnes asked him to remove the brace and surrender it to her for placement with Austin's other property. See id. at 9. Austin maintains that he told Barnes that he would not surrender the brace to her until Dr. Murphy recommended that he no longer wear it. See id. Austin states that, as he departed the room, Barnes "yelled to [two officers who were sitting by her door] to take the brace." Id. He avers that one officer "tackled" him to the ground, and the other officer twisted his arm and fingers. Id. He states that both officers kicked him in his testicles, and kneed him in the lower back, as they tried to retrieve the brace from him. See id. Austin asserts that other officers handcuffed him and "dragged" him onto the elevator where the officer who initially tackled him punched his stomach and rammed his head into the elevator wall. Id. According to Austin, the officer continued to assault him as they exited the elevator, and later claimed that Austin had spat on him. See id. He asserts that a sergeant placed a spit guard on his face, and officers put him in a restraint chair with his hands handcuffed behind him. See id.

         Next, Austin maintains that the Jail's nurse neither addressed his complaints of back, head, and neck pain nor treated his injuries. See id. at 10. He states that officers took him to mental health confinement without any medical attention. See id. He declares that he went to Shands on October 10th for follow-up orthopedic care. See id. He avers that officers transported him to the custody of the Florida Department of Corrections (FDOC) on December 3, 2014. See id. Austin blames Barnes for "neglecting" to send [his] medical records" to support Austin's asserted need for a bottom bunk pass, walker, wheelchair, and/or cane that the FDOC ultimately denied him. See id. According to Austin, "[e]verybody that got off the bus at Butler [(Reception and Medical Center in Lake Butler, Florida)] had their medical records except [him]." Id.

         III. Motion to Dismiss Standard

         In ruling on a motion to dismiss, the Court must accept the factual allegations set forth in the complaint as true. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Swierkiewicz v. Sorema N.A., 534 U.S. 506, 508 n.1 (2002); see also Lotierzo v. Woman's World Med. Ctr., Inc., 278 F.3d 1180, 1182 (11th Cir. 2002). In addition, all reasonable inferences should be drawn in favor of the plaintiff. See Randall v. Scott, 610 F.3d 701, 705 (11th Cir. 2010). Nonetheless, the plaintiff must still meet some minimal pleading requirements. Jackson v. Bellsouth Telecomm., 372 F.3d 1250, 1262-63 (11th Cir. 2004) (citations omitted). Indeed, while "[s]pecific facts are not necessary[, ]" the complaint should "'give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'" Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per curiam) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Further, the plaintiff must allege "enough facts to state a claim that is plausible on its face." Twombly, 550 U.S. at 570. "A claim has facial plausibility when the pleaded factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556).

         A "plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do[.]" Twombly, 550 U.S. at 555 (internal quotations omitted); see also Jackson, 372 F.3d at 1262 (explaining that "conclusory allegations, unwarranted deductions of facts or legal conclusions masquerading as facts will not prevent dismissal") (internal citation and quotations omitted). Indeed, "the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions[, ]" which simply "are not entitled to [an] assumption of truth." See Iqbal, 556 U.S. at 678, 680. Thus, in ruling on a motion to dismiss, the Court must determine whether the complaint contains "sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face[.]'" Id. at 678 (quoting Twombly, 550 U.S. at 570). And, while "[p]ro se pleadings are held to a less stringent standard than pleadings drafted by attorneys and will, therefore, be liberally construed," Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998), "'this leniency does not give the court a license to serve as de facto counsel for a party or to rewrite an otherwise deficient pleading in order to sustain an action.'" Alford v. Consol. Gov't of Columbus, Ga., 438 Fed.Appx. 837, 839 (11th Cir. 2011)[3] (quoting GJR Invs., Inc. v. Cty. of Escambia, Fla., 132 F.3d 1359, 1369 (11th Cir. 1998) (internal citation omitted), overruled in part on other grounds as recognized in Randall, 610 F.3d at 706).

         IV. Summary of the Arguments

         In the Motions, Defendants maintain that Austin fails to assert facts to state plausible claims against them for violation of the Fourteenth Amendment, see Motion at 4-6; Barnes Motion at 2-5, and Fourth Amendment, see Thompkins Motion at 2-5. Additionally, Defendants assert that they are entitled to qualified immunity. See Motion at 6-8; Barnes Motion at 5-6; Thompkins Motion at 5. In response to the Motions, Austin maintains that he has sufficiently stated federal constitutional claims against the Defendants, and that they are not entitled to qualified immunity. See Docs. 36, 42, 43.

         V. Discussion

         A. Fourth Amendment Excessive Use of Force

         In the AC, Austin asserts that Defendant Thompkins used excessive force during the course of his April 11, 2014 arrest when Thompkins tripped him, causing Austin to fall on the ground and re- injure his shoulder. See AC at 5-6. Defendant Thompkins maintains that Austin fails "to state any facts showing that [he] used unreasonable force under the circumstances." See Thompkins Motion at 3. In response, Austin argues that Thompkins' reliance on Graham v. Connor, 490 U.S. 386, 395 (1989), and McCullough v. Antolini, 559 F.3d 1201, 1206 (11th Cir. 2009), is "misplaced" to the extent that the caselaw does not "justify" Thompkins' conduct. Response (Doc. 42) at 2. Austin states that sale of cocaine is not a crime of violence, and the State never charged him with resisting arrest. See id. at 3. He also asserts that none of the officers stated that he was aggressive or violent. See id. He concludes, in pertinent part:

Although [D]efendant Thompkins['] counsel is correct that Defendant Thompkins didn't have to accept at face value the Plaintiff's scar and his statement ("my shoulder," my shoulder")[4] which could be considered as a warning of a medical condition, this does not excuse[] Defendant Thompkins['] actions of tripping the Plaintiff with his leg so the Plaintiff fell to the ground injuring his shoulder[.] [I]t does not excuse Detective Thompkins['] failure to alert the arresting officers of the Plaintiff's medical condition or disability in order to prevent the [un]reasonable and unwarranted infliction of pain, and lastly, it does not excuse[] Defendant Thompkins['] failure to ensure that the Plaintiff received the appropriate medical treatment when advised by the Plaintiff about the injury and aggravation of his needs at the time of arrest where [it] is evident that all the officers involved acted with wanton and reckless disregard of the Plaintiff's condition and violated his constitutional protection against arrest and detention without probable cause.

Id. at 4.

         To state a claim under 42 U.S.C. § 1983, a plaintiff must allege that (1) the defendant deprived him of a right secured under the United States Constitution or federal law, and (2) such deprivation occurred under color of state law. Salvato v. Miley, 790 F.3d 1286, 1295 (11th Cir. 2015); Bingham v. Thomas, 654 F.3d 1171, 1175 (11th Cir. 2011) (per curiam) (citation omitted); Richardson v. Johnson, 598 F.3d 734, 737 (11th Cir. 2010) (per curiam) (citations omitted). Additionally, the Eleventh Circuit requires "'an affirmative causal connection between the official's acts or omissions and the alleged constitutional deprivation' in § 1983 cases." Rodriguez v. Sec'y, Dep't of Corr., 508 F.3d 611, 625 (11th Cir. 2007) (quoting Zatler v. Wainwright, 802 F.2d 397, 401 (11th Cir. 1986)). In the absence of a federal constitutional deprivation or violation of a federal right, a plaintiff cannot sustain a cause of action against the defendant.

         To assert a valid Fourth Amendment claim for excessive force by a law enforcement officer in the course of effectuating an arrest, a plaintiff must allege that the officer's conduct was objectively unreasonable. See Graham, 490 U.S. at 395-97. In determining the reasonableness of the force applied, the Court examines "the fact pattern from the perspective of a reasonable officer on the scene with knowledge of the attendant circumstances and facts, and balanc[es] the risk of bodily harm to the suspect against the gravity of the threat the officer sought to eliminate." McCullough, 559 F.3d at 1206 (citing Scott v. Harris, 550 U.S. 372, 383 (2007)). The Supreme Court has instructed:

Determining whether the force used to effect a particular seizure is "reasonable" under the Fourth Amendment requires a careful balancing of "'the nature and quality of the intrusion on the individual's Fourth Amendment interests'" against the countervailing governmental interests at stake. Id., [5] at 8, 105 S.Ct., at 1699, quoting United States v. Place, 462 U.S. 696, 703, 103 S.Ct. 2637, 2642, 77 L.Ed.2d 110 (1983).
. . . .
[The] proper application requires careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight. See Tennessee v. Garner, 471 U.S., at 8-9, 105 S.Ct., at 1699-1700 (the question is "whether the totality of the circumstances justifie[s] a particular sort of ... seizure").
The "reasonableness" of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight. See Terry v. Ohio, [6] supra, 392 U.S., at 20-22, 88 S.Ct., at 1879-1881.
. . . .
With respect to a claim of excessive force, the same standard of reasonableness at the moment applies: "Not every push or shove, even if it may later seem unnecessary in the peace of a judge's chambers," . . . violates the Fourth Amendment. The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments - in circumstances that are tense, uncertain, and rapidly evolving - about the amount of force that is necessary in a particular situation.
[T]he "reasonableness" inquiry in an excessive force case is an objective one: the question is whether the officers' actions are "objectively reasonable" in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation. See Scott v. United States, 436 U.S. 128, 137-139, 98 S.Ct. 1717, 1723-1724, 56 L.Ed.2d 168 (1978); see also Terry v. Ohio, supra, 392 U.S., at 21, 88 S.Ct., at 1879 (in analyzing the reasonableness of a particular search or seizure, "it is imperative that the facts be judged against an objective standard"). An officer's evil intentions will not make a Fourth Amendment violation out of an objectively reasonable use of force; nor will an officer's good intentions make an objectively unreasonable use of force constitutional. See Scott v. United States, supra, 436 U.S., at 138, 98 S.Ct., at 1723, citing United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973).

Graham, 490 U.S. at 396-97 (emphasis added).

         Very recently, the Eleventh Circuit Court of Appeals addressed an arrestee's 42 U.S.C. § 1983 claim alleging that JSO officers violated his Fourth Amendment rights when they employed excessive force in effectuating his arrest. See Hinson v. Bias, No. 16-14112, 2019 WL 2482092 (11th Cir. June 14, 2019). In doing so, the court described the objective reasonableness standard, and applied "the six Fourth ...

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