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Smith v. Tony

United States District Court, S.D. Florida

September 16, 2019

KENNETH M. SMITH, Plaintiff,
v.
SHERIFF GREGORY TONY, et al., Defendants.

          Christopher Lomax Christina Mastrucci Bibiana Pesant Nicole Chipi Attorneys for Plaintiff Jones Day

          Alan David Danz Attorney for Defendants Foust, Clayton, Anda, Greene, Powell and Maynes Danz Law, PLLC

          Kenneth J. Miller Attorney for Sheriff Gregory Tony Haliczer Pettis & Schwamm

          REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE ON MOTION TO DISMISS [ECF 85]

          REID UNITED STATES MAGISTRATE JUDGE.

         I. Introduction

         This case is before the Court on Defendant's Motion' to Dismiss. [ECF 85]. This case has been referred to the undersigned for the issuance of all preliminary orders and any recommendations to the district court regarding dispositive motions. See 28 U.S.C. § 636(b)(1)(B), (C); Fed.R.Civ.P. 72(b), and S.D. Fla. Admin. Order 2019-2.

         The case is presently before the court on Sheriff Tony's motion to dismiss. [ECF 85]. The Court has reviewed the motion, Plaintiff's response [ECF 88], and Sheriff Tony's reply [ECF90]. For the reasons set forth, the motion to dismiss should be granted and Sheriff Tony should be dismissed as a Defendant.

         II. Procedural History

         The Plaintiff filed a pro se civil rights complaint pursuant to 42 U.S.C. § 1983. [ECF 1]. On initial screening the complaint was permitted to proceed on Plaintiff's Eighth Amendment excessive force claim against defendants Lieutenant R. Foust, Sergeant A. Clayton, Deputy C. Anda, Deputy J. Greene, Deputy G. Powell and Deputy R. Maynes. [ECF 6, 17]. The claim against Sheriff Scott Israel was dismissed. [Id.].

         Plaintiff, still acting pro se, filed an amended complaint. [ECF 42]. Because the motion was devoid of factual allegations the Undersigned entered an order striking the complaint and continuing the initial complaint as the operative complaint. [ECF 54]. The Undersigned then denied as moot the Defendants' motion to dismiss the amended complaint. [ECF 58, 59].

         Plaintiff has now obtained counsel and filed an amended complaint. [ECF 77]. The amended complaint was served upon Sheriff Gregory Tony. [ECF 82]. Sheriff Tony has filed a motion to dismiss the amended complaint. [ECF 85]. The remaining Defendants have not joined in Sheriff Tony's motion to dismiss.

         III. The Amended Complaint

         A. Facts Alleged

         In July 2018, Plaintiff was a pretrial detainee in the Broward County Main Jail. [ECF 77, p. 1]. According to Plaintiff, on July 26, 2018, Deputies Anda and Greene insinuated that they had spit in Plaintiff's meal. [Id., p. 1]. Plaintiff tried to explain this to Sergeant Clayton, the deputies' supervisor, but Clayton ignored his concerns. [Id., pp. 1-2]. Shortly thereafter, Lieutenant Foust was called to Plaintiff's cell and told Clayton to take Plaintiff to a blind spot and “adjust his attitude.” [Id., p. 2]. That evening Clayton, Anda, and Greene, along with Deputy Maynes and Deputy Powell, took Plaintiff to a cell notoriously known as a “blind spot” or “beat down” cell. [Id.]. Plaintiff was placed in handcuffs and shackles. [Id.]. After removing the shackles, Anda pulled Plaintiff's feet out from under him, causing Plaintiff to fall face first to the ground. [Id., p. 6-7]. Anda, Greene, Maynes and Powell proceeded to kick and stomp Plaintiff. [Id., p. 7]. Anda struck Plaintiff with a pair of shackles while one of the other Defendants sprayed Plaintiff with ...


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