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Larrabee v. C. Masarone

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

September 11, 2019

JONATHAN WAYNE LARRABEE, Plaintiff,
v.
C. MASARONE, FNU ROCHELLE, FNU MILLER, R.C. CHEATHAM, JOHN/JANE DOE, JOHN/JANE DOE, Defendants.

          ORDER

          PAUL G. BYRON, UNITED STATES DITRICT JUDGE

         Plaintiff, an inmate at the Coleman Federal Correctional Complex, alleges in his pro se complaint[1] that Defendants violated his constitutional rights when an officer slammed him to the floor and another officer failed to intervene; he also alleges wrongdoing by supervisors, retaliation, and property loss. (Doc. 1.) The Defendants have moved to dismiss Plaintiff's case pursuant to Rule 12(b)(1) and (b)(6) of the Federal Rules of Civil Procedure, alleging that he has failed to exhaust his administrative remedies under the Prison Litigation Reform Act (PLRA) as to all Defendants except Defendant Rochelle, and that he has failed to state a claim against Rochelle. (Doc. 24.) Defendant Masarone is deceased and is not a party to action. (Id. at Doc. 24, Exh. C, Declaration by Elizabeth Villarreal). Ms. Villarreal, Human Resources Manager at FCC Coleman, attests that Officer Masarone died on April 23, 2018. (Id.) (Doc. 24.) Plaintiff did not file the present suit until May 2018. (Doc. 1.)

         The motion to dismiss was filed June 17, 2019. (Doc. 24.) Plaintiff did not file a response, and on July 26, 2019, the Court directed Plaintiff to show cause within 14 days why his case should not be dismissed for failure to file a response to the motion to dismiss. (Doc. 25.) To date, Plaintiff has not responded to the Order to Show Cause or otherwise filed any papers with the Court.

         For the reasons discussed below, Plaintiff's complaint is due to be dismissed.

         A. Plaintiff's Complaint

         Plaintiff alleges that on April 4, 2017, while incarcerated at FCC Coleman - USP II, he went to the computer room and Defendant Officer Masarone came up behind him and told him to turn the computer off. They began cursing at each other, and despite following Masarone's instructions to put his arms at his sides, Masarone slammed Plaintiff to the floor. (Doc. 1, ¶ 1.) Officer Rochelle was present but “failed to intervene to prevent the misuse of force.” (Id. at ¶ 2.)

         Plaintiff woke up the next day with pain in his ribs and the side of his chest. He went to sick call but medical staff (John/Jane Doe defendants) failed to provide medical treatment for possible broken ribs. (Id. ¶ 6.)

         Plaintiff subsequently received various disciplinary reports and alleges that on June 30, 2017, Defendant Assistant Warden Miller personally shook down his cell and threw away paperwork. (Id. ¶ 18.) Plaintiff claims that Defendants Miller and Warden R.C. Cheatham failed to discipline Defendants Masarone and Rochelle (Id. ¶¶ 25, 26.)

         For relief, Plaintiff seeks monetary damages. (Id. at p. 12.)

         B. Standard of Review

         In passing on a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure, the Court is mindful that “[d]ismissal of a claim on the basis of bare bones pleadings is a precarious disposition with a high mortality rate.” Int'l Erectors, Inc. v. Wilhoit Steel Erectors Rental Serv., 400 F.2d 465, 471 (5th Cir. 1968). Thus, for the purposes of a motion to dismiss, the Court must view the allegations of the complaint in the light most favorable to the plaintiff, consider all of the allegations of the complaint as true, and accept all reasonable inferences that might be drawn from such allegations. Jackson v. Okaloosa County, Fla., 21 F.3d 1531, 1534 (11th Cir. 1994); Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). Furthermore, the Court must limit its consideration to the complaint and written instruments attached as exhibits. Fed.R.Civ.P. 10(c); GSW, Inc. v. Long County, Ga., 999 F.2d 1508, 1510 (11th Cir. 1993).

         Once a claim has been stated adequately, it may be supported by showing any set of facts with the allegations of the complaint. Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). However, “while notice pleading may not require that the pleader allege a ‘specific fact' to cover each element of a claim, it is still necessary that a complaint contain either direct or inferential allegations respecting all the material elements necessary to sustain a recovery under some viable legal theory.” Roe v. Aware Woman Center for Choice, 253 F.3d 678, 683 (11th Cir. 2001).

         C. Exhaustion ...


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