United States District Court, M.D. Florida, Jacksonville Division
MORALES HOWARD, UNITED STATES DISTRICT JUDGE
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. 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.
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
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.
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.
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.
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.
Motion to Dismiss Standard
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).
"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) (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).
Summary of the Arguments
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.
Fourth Amendment Excessive Use of Force
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
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") 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
Id. at 4.
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.
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
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.,  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,  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
Graham, 490 U.S. at 396-97 (emphasis added).
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