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Malcolm v. Carter

United States District Court, N.D. Florida, Tallahassee Division

September 25, 2019

OSHANE N. MALCOLM, Plaintiff,
v.
L. CARTER, et al., Defendants.

          REPORT AND RECOMMENDATION

          CHARLES A. STAMPELOS UNITED STATES MAGISTRATE JUDGE

         Service was previously directed, ECF No. 25, on the four persons named as Defendants[1] 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.

         Standard of Review

         The 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).[2] “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).

         The 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).

         One 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, 2017)).

         Motion to Dismiss, ECF No. 30

         Defendants 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.

         Plaintiff's Complaint, ECF No. 20

         In 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.

         Plaintiff 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[3] 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.

         After 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.'” Id. Analysis

         “A 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.

         Plaintiff 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 ...


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