United States District Court, S.D. Florida
KENNETH M. SMITH, Plaintiff,
SHERIFF GREGORY TONY, et al., Defendants.
Christopher Lomax Christina Mastrucci Bibiana Pesant Nicole
Chipi Attorneys for Plaintiff Jones Day
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]
UNITED STATES MAGISTRATE JUDGE.
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.
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.
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.].
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].
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.
The Amended Complaint
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 ...