United States District Court, N.D. Florida, Tallahassee Division
OSHANE N. MALCOLM, Plaintiff,
L. CARTER, et al., Defendants.
REPORT AND RECOMMENDATION
CHARLES A. STAMPELOS UNITED STATES MAGISTRATE JUDGE
was previously directed, ECF No. 25, on the four persons
named as Defendants in the pro se Plaintiff's fourth
amended complaint, ECF No. 20. Defendants Hewitt, Langston,
and Chisolm filed a motion to dismiss, ECF No. 30, and
Plaintiff was required to file a response to that motion.
Plaintiff has filed a response, ECF No. 34, and the motion is
ready for review.
issue on whether a complaint should be dismissed pursuant to
Fed.R.Civ.P. 12(b)(6) for failing to state a claim upon which
relief can be granted is whether the plaintiff has alleged
enough plausible facts to support the claim stated. Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955,
167 L.Ed.2d 929 (2007) (retiring the standard from Conley
v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80
(1957)). “To survive a motion to dismiss, a complaint
must contain sufficient factual matter, accepted as true, to
“state a claim to relief that is plausible on its
face.” Ashcroft v. Iqbal, 129 S.Ct. 1937,
1949, 173 L.Ed.2d 868 (2009) (quoting Twombly, 550
U.S. at 570, 127 S.Ct. 1955). “A claim has facial
plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.”
Iqbal, 556 U.S. at 677 (citing Twombly, 550
U.S. at 556); see also Speaker v. U.S. Dep't of
Health, 623 F.3d 1371, 1380 (11th Cir. 2010). “The
plausibility standard” is not the same as a
“probability requirement, ” and “asks for
more than a sheer possibility that a defendant has acted
unlawfully.” Iqbal, 556 U.S. at 677 (quoting
Twombly, 550 U.S. at 556). A complaint that
“pleads facts that are ‘merely consistent
with' a defendant's liability, ” falls
“short of the line between possibility and
plausibility.” Iqbal, 129556 U.S. at 677
(quoting Twombly, 550 U.S. at 557).
pleading standard is not heightened, but flexible, in line
with Rule 8's command to simply give fair notice to the
defendant of the plaintiff's claim and the grounds upon
which it rests. Swierkiewicz v. Sorema, 534 U.S.
506, 122 S.Ct. 992, 998, 152 L.Ed.2d 1 (2002) (“Rule
8(a)'s simplified pleading standard applies to all civil
actions, with limited exceptions.”). Pro se complaints
are held to less stringent standards than those drafted by an
attorney. Wright v. Newsome, 795 F.2d 964, 967 (11th
Cir. 1986) (citing Haines v. Kerner, 404 U.S. 519,
520-521, 92 S.Ct. 594, 596, 30 L.Ed.2d 652 (1972)).
Nevertheless, a complaint must provide sufficient notice of
the claim and the grounds upon which it rests so that a
“largely groundless claim” does not proceed
through discovery and “take v. Broudo, 544
U.S. 336, 125 S.Ct. 1627, 161 L.Ed.2d 577 (2005) (quoted in
Twombly, 550 U.S. at 558). The requirements of Rule
8 do “not unlock the doors of discovery for a plaintiff
armed with nothing more than conclusions.”
Iqbal, 556 U.S. at 678-79, 129 S.Ct. at 1949. A
complaint does not need detailed factual allegations to
survive a motion to dismiss, but Rule 8 “demands more
than an unadorned, the-defendant-unlawfully-harmed-me
accusation.” 556 U.S. at 678, 129 S.Ct. at 1949.
“A pleading that offers ‘labels and
conclusions' or ‘a formulaic recitation of the
elements of a cause of action will not do.'”
Id. (quoting Twombly, 550 U.S. at 555).
Thus, “conclusory allegations, unwarranted factual
deductions or legal conclusions masquerading as facts will
not prevent dismissal.” Davila v. Delta Air Lines,
Inc., 326 F.3d 1183, 1185 (11th Cir. 2003).
additional principle bears highlighting: a motion to dismiss
does not test the truth of a complaint's factual
allegations. As noted above, factual allegations, though not
legal conclusions, must be “accepted as true, ”
Ashcroft, 556 U.S. at 678, 129 S.Ct. at 1949, even
when they are “doubtful in fact.”
Twombly, 550 U.S. at 555, 127 S.Ct. at 1965.
“Instead, it remains true, after Twombly and
Iqbal as before, that ‘federal courts and out
unmeritorious claims sooner rather than later.'”
Leatherman v. Tarrant Cty. Narcotics Intelligence &
Coordination Unit, 507 U.S. 163, 168-69 (1993) (quoted
in Yawn v. Sec'y of Dep't of Corr., No.
5:13cv228-RH/EMT, 2017 WL 2691423, at *1 (N.D. Fla. June 21,
to Dismiss, ECF No. 30
Hewitt, Chisolm, and Langston assert that they are entitled
to Eleventh Amendment immunity to the extent they have been
sued in their official capacities. ECF No. 30 at 3.
Additionally, Defendants Chisolm and Langston argue that they
should be dismissed because, as members of a Disciplinary
Team, they did not have the authority to put Plaintiff in
protective management. Id. at 4-5.
Complaint, ECF No. 20
general, Plaintiff alleged that after he was attacked by
members of a gang, he requested protective management from
Defendant Carter because he did not feel safe. ECF No. 20 at
4. After Defendant Carter told Plaintiff she would look into
the matter, Plaintiff alleges she did nothing. Id.
was held in administrative confinement in May 2016, and was
threatened by a member of the gang who was housed in the cell
next to 2016, and told hearing officers (Defendants) Chisolm and
Langston of the threats, requesting not to be placed back in
general population. Id. Plaintiff alleges the
Defendants told him they would investigate the matter, but
failed to do so. Id. Plaintiff complains that they
“did not act on the Plaintiff's saftey [sic]
concerns, this is something they were authorized to
do.” Id. Plaintiff alleged that Defendants
Chisholm and Langston “should have called the O.I.C.
(Officer in Charge) and explained that the Plaintiff stated
he was in fear for his life, and to place Plaintiff in
Administrative Confinement pending a protective management
review . . . .” Id. at 6. He complains that
the Defendants did not follow protocol and a protective
management review was never initiated. Id. Plaintiff
also alleged that Defendants Chisholm and Langston
“also had independent authority to initiate a
protective management review themselves.” Id.
at 6-7. However, Defendants ignored Plaintiff's requests
for protection and recommended that after his disciplinary
sentenced was served, “Plaintiff was to be released
back into general population.” Id.
Plaintiff was released to general population, he was
assaulted in two separate incidents in early July 2016.
Id. at 7. Plaintiff alleged that he complained to
Defendant Hewitt who “just stood there” as
Plaintiff was hit by a gang member. Id. Defendant
Hewitt told Plaintiff “to ‘man up.'”
prison official violates the Eighth Amendment when a
substantial risk of serious harm, of which the official is
subjectively aware, exists and the official does not respond
reasonably to the risk.” Caldwell v. Warden, FCI
Talladega, 748 F.3d 1090, 1099 (11th Cir. 2014) (quoted
in Brooks v. Warden, 800 F.3d 1295, 1300 (11th Cir.
2015)). “To prevail on such a claim brought under
§ 1983, the plaintiff must show: (1) a substantial risk
of serious harm; (2) the defendants' deliberate
indifference to that risk; and (3) a causal connection
between the defendants' conduct and the Eighth Amendment
violation.” Brooks, 800 F.3d at 1300.
specifically alleged that Defendants were informed of his
fear for his safety from a specific and identifiable group of
inmates, but did nothing to protect him. Plaintiff alleged
that Defendants “disregarded the substantial risk to
the Plaintiff's health and safety . . . . ECF No. 20 at
8. The Court concludes that Plaintiff sufficiently alleged
that Defendants were deliberately indifferent to his right ...