United States District Court, M.D. Florida, Fort Myers Division
OPINION AND ORDER 
SHERIPOLSTER CHAPPELL UNITED STATES DISTRICT JUDGE
matter is before the Court upon initial review of the file.
Plaintiff Gary Lee Wisemandle's seeks to proceed in
forma pauperis (Doc. 2) on his pro se civil
rights complaint (Doc. 1). Plaintiff is a convicted and
sentenced state prisoner. (Id. at 4). Because
Plaintiff is incarcerated and seeks leave to proceed in
forma pauperis, the Court must review his Complaint to
decide if it is frivolous, malicious, or fails to state a
claim upon which relief may be granted. See 28
U.S.C. § 1915A and § 1915(e)(2)(B)(i)-(iii).
filed his claim on the court's preprinted civil rights
form. (Doc. 1). The complaint names Dr. Emmanuel Noel as the
sole defendant, who Plaintiff identifies as the
“doctor” at “Glades County Facility.”
(Id. at 2). Plaintiff did not complete section II of
the form titled “Basis for Jurisdiction.”
(Id. at 3-4). Instead he left this section blank
arguably indicating he did not intend to sue under 42 U.S.C.
§ 1983. Plaintiff also failed to complete section IV of
the form titled “Statement of Claim.”
(Id. at 4-5). Thus, the complaint is devoid of any
facts. In section V titled “Injuries” Plaintiff
states: “Medical malpractice, false diagnosis by a
physician, face swollen, kidney failure, stomach damage,
heart, liver damage, prostrate damage.” (Id.
at 5). As relief, Plaintiff states he wishes “to sue
the staff doctor at Glades County Detention Center for
malpractice and false diagnosis for near death” and
seeks $2, 500, 000 in damages. (Id.).
standard that governs dismissals under Rule 12(b)(6) applies
to dismissals under § 1915. Alba v. Montford,
517 F.3d 1249, 1252 (11th Cir. 2008). However, pro
se complaints are held to “less stringent
standards” than those drafted and filed by attorneys.
Erickson v. Pardus, 551 U.S. 89, 94 (2007)
(citing Estelle v. Gamble, 429 U.S. 97, 106 (1976)).
Under Rule 12(b)(6), a complaint may be dismissed if the
claim alleged is not plausible. Bell Atlantic v.
Twombly, 550 U.S. 544, 556 (2007). All pleaded facts are
deemed true for Rule 12(b)(6), but a complaint is still
insufficient without adequate facts. Id. The
plaintiff must assert enough facts to allow “the court
to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). The asserted facts must
“raise a reasonable expectation that discovery will
reveal evidence” for the plaintiff's claim.
Twombly, 550 U.S. at 556. Overall, “labels . .
. conclusions, and a formulaic recitation of the elements of
a cause of action” are not enough to meet the
plausibility standard. Id. at 555. Ordinarily, a
pro se litigant must be given an opportunity to
amend his complaint. Brown v. Johnson, 387 F.3d
1344, 1349 (11th Cir. 2004). However, if an amendment would
be futile, the district court may deny leave to amend.
Bryant v. Dupree, 252 F.3d 1161, 1163 (11th Cir.
2001). But the Court must read a pro se
plaintiff's complaint in a liberal fashion. Hughes v.
Lott, 350 F.3d 1157, 1160 (11th Cir. 2003).
construed, the complaint alleges a simple medical malpractice
claim against Defendant. Simple state-law tort medical
malpractice claims are not cognizable in a federal court. A
complaint that a physician has been negligent in diagnosing
or treating a medical condition does not state a valid claim
of medical mistreatment under the Eighth Amendment.
Estelle v. Gamble, 429 U.S. 97, 106 (1976). Medical
malpractice does not become a constitutional violation merely
because the victim is a prisoner. Id.; Campbell
v. Sikes, 169 F.3d 1353, 1363-72 (11th Cir. 1999)
(explaining that medical malpractice cannot support Eight
Amendment liability). A “federal court is powerless to
act beyond its statutory grant of subject matter
jurisdiction, a court must zealously insure that jurisdiction
exists over a case, and should itself raise the question of
subject matter jurisdiction at any point in the litigation
where a doubt about jurisdiction arises.” Smith v.
GTE Corp., 236 F.3d 1292, 1299 (11th Cir. 2001). Thus,
because Plaintiff has not stated a cause of action under
federal law, and claims based on Florida state tort law does
not confer jurisdiction on this Court, dismissal is
Plaintiff is pro se, the Court will allow Plaintiff
to file an amended complaint to cure the jurisdictional
deficiency. To invoke the jurisdiction of the Court,
Plaintiff must properly “allege the jurisdictional
facts, according to the nature of the case.” McNutt
v. Gen. Motors Acceptance Corp. of Indiana, 298 U.S.
178, 182 (1936). To impute this Court's jurisdiction for
an Eighth Amendment claim, Plaintiff must allege: (1) he had
a serious medical need - the objective component, (2) a
defendant acted with deliberate indifference to that need -
the subjective component, and (3) his injury was caused by a
defendant's wrongful conduct. Goebert v. Lee
County, 510 F.3d 1312, 1326 (11th Cir. 2007); see
also Thomas v. Bryant, 614 F.3d 1288, 1317 n.29 (11th
it is now
Complaint (Doc. 1) is DISMISSED without
Plaintiff wishes to invoke this Court's jurisdiction, he
must file an amended complaint on the enclosed form within
twenty-one (21) days of the date on this Order.
Plaintiff's failure to timely file an amended
complaint or explain his inability to comply will result in a
dismissal of this case without further notice.
Plaintiff's Application for Determination of Civil
Indigent Status (Doc. 2) ...