Teartt v. Pasco County Jail

Full title: KEITH L. TEARTT, Plaintiff, v. PASCO COUNTY JAIL, et al., Defendants

Court: United States District Court, M.D. Florida, Tampa Division

Date published: Mar 17, 2010

Case No. 8:10-CV-565-T-30TGW (M.D. Fla. Mar. 17, 2010)

Opinion

Case No. 8:10-CV-565-T-30TGW.

March 17, 2010

ORDER

JAMES MOODY JR., District Judge

Before the Court is the pro se prisoner Plaintiff's civil rights complaint filed against the Pasco County Jail; Bob White, Sheriff of Pasco County; and Lisa A. Okah, Plaintiff's former attorney, pursuant to 42 U.S.C. § 1983 alleging medical malpractice and deliberate indifference to his serious medical needs while an inmate at the jail, and legal malpractice by his former attorney. The Court has examined his complaint in accord with 28 U.S.C. § 1915A. After doing so, the Court concludes that the complaint attempts to assert claims that are barred by the statute of limitations and which fail to state a claim upon which relief may be granted as to the Defendants named.

Statute of Limitations

Pasco County Jail

Burton v. City of Belle Glade,178 F.3d 11751188^{th 1} See, e.g., Marsden v. Federal B.O.P., 856 F. Supp. 832836 Cf. Dean v. Barber, 951 F.2d 12101214De La Garza v. Kandiyohi County Jail,18 Fed.Appx 436437Marsden Barber). see Owens v. Fulton County,877 F.2d 947951² See Kentucky v. Graham, 473 U.S. 159 165-66 Jones v. Cannon,174 F.3d 12711293See Brown v. Neumann, 188 F.3d 12891290Monell v. Department of Social Services,436 U.S. 658694

1 "The expiration of the statute of limitations is an affirmative defense the existence of which warrants a dismissal as frivolous." Clark v. Ga. Pardons and Paroles Bd., 915 F.2d 636, 641 n. 2 (11th Cir. 1990). "When the defense is apparent from the face of the complaint or the court's records, courts need not wait and see if the defense will be asserted in a defensive pleading." Id.

2 Because Plaintiff is proceeding pro se and it is not clear from the record whether he is suing Defendant White in his individual capacity only, the Court will consider the claim as being asserted against Defendant White in both his official and individual capacities. See Hobbs v. Roberts, 999 F.2d 1526, 1528 (11th Cir. 1993) (finding that "[w]here the complaint is unclear on `whether officials are sued personally, in their official capacity, or both,' courts must look to `the course of the proceedings' which will `typically indicate the nature of the liability sought to be imposed'" (emphasis in original) (citations omitted)).

To attribute liability to Defendant White in his official capacity under § 1983, Plaintiff must demonstrate that Defendant White had an official policy or custom that was "the moving force of the constitutional violation." Vineyard v. County of Murray, Ga., 990 F.2d 1207, 1211 (1993) (quoting Polk County v. Dodson, 454 U.S. 312, 326 (1981)). Here, Plaintiff complaint fails to identify with specificity any policies, customs, or procedures instituted by Defendant White that led to his injuries. Therefore, the complaint fails to state a claim against Defendant White in his official capacity.

To the extent that the allegations of the complaint may be read as an attempt to assert a claim against Defendant White predicated upon his supervisory position as the Sheriff of Pasco County, "[i]t is [] well established in this [c]ircuit that supervisory officials are not liable under § 1983 for the unconstitutional acts of their subordinates on the basis of respondeat superior or vicarious liability." Miller v. King, 384 F.3d 1248, 1261 (11th Cir. 2004) (quoting Cottone v. Jenne, 326 F.3d 1352, 1360 (11th Cir. 2003)), vacated on other grounds, 449 F.3d 1149 (11th Cir. 2006). Under § 1983, supervisory liability occurs only when the supervisor personally participates in the alleged misconduct or when there is a causal connection between the supervising official's actions and the alleged constitutional deprivation. Cottone, supra at 1360. The complaint is entirely void of any facts that might be read to support an inference that a causal connection exists between Defendant White's conduct and Plaintiff's alleged injuries. Therefore, the claims against Defendant White in his individual capacity are subject to dismissal.

Lisa M. Okah

Plaintiff sues Lisa Okah, his former attorney, for legal malpractice. In any § 1983 action, the initial inquiry must focus on whether the two essential elements to a § 1983 action are present:

(1) whether the person engaged in the conduct complained of was acting under color of state law; and (2) whether the alleged conduct deprived a person of rights, privileges or immunities guaranteed under the Constitution or laws of the United States.

Duke v. Massey, 87 F.3d 1226, 1231 (11th Cir. 1996) (citations omitted); see also Hale v. Tallapoosa County, 50 F.3d 1579, 1582 (11th Cir. 1995). "To satisfy section 1983's `under color of [state law]' requirement, a plaintiff must demonstrate that `the conduct allegedly causing the deprivation of a federal right [is] fairly attributable to the State.'" Gene Thompson Lumber Co. v. Davis Parmer Lumber Co., 984 F.2d 401, 403 (11th Cir. 1993) (quoting Lugar v. Edmondson Oil Co., 457 U.S. 922, 937 (1982)). The law is clear that "the under-color-of-state-law element of § 1983 excludes from its reach merely private conduct, no matter how discriminatory or wrongful." Focus on the Family v. Pinellas Suncoast Transit Authority, 344 F.3d 1263, 1277 (11th Cir. 2003) (citation omitted). Plaintiff does not allege or demonstrate that Lisa Okah is a "state actor" or that the alleged deprivation took place under color of state law as required by § 1983.³

3 Plaintiff's complaint vaguely alludes to the possibility that Lisa Okah conspired with the Pasco County Jail to deprive him of his rights (Dkt. 1 at pgs. 22-23). If a private citizen conspires with a state actor, then the private citizen acts under color of state law and is subject to § 1983 liability. Rowe v. City of Fort Lauderdale, 279 F.3d 1271, 1285 (11th Cir. 2002) (citation omitted). However, the plaintiff attempting to prove such a conspiracy must show that the parties "reached an understanding" to deny the plaintiff his or her rights. N.A.A.C.P. v. Hunt, 891 F.2d 1555, 1563 (11th Cir. 1990) (citation omitted). In conspiracy actions, more than mere conclusory notice pleading is required. It is insufficient to simply allege that a conspiracy existed. Fullman v. Graddick, 739 F.2d 553, 557 (11th Cir. 1984). The allegations of Plaintiff's complaint regarding a conspiracy are wholly conclusory and speculative, and insufficient as a matter of law.

A pro se plaintiff's allegations must be read in a liberal fashion. See Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998) (holding that "[p]ro se pleadings are held to a less stringent standard than pleadings drafted by attorneys"). The Court cannot, however, proceed with a cause of action under § 1983 where the named defendant is not a state actor.

While a plaintiff is not required to prove his claim in his complaint, he must allege sufficient facts in the complaint which, when viewed in the light most favorable to the plaintiff, support the conclusion that he may be able to establish that he is entitled to the relief he seeks under § 1983. Plaintiff has failed to carry that burden, and the Court concludes that no relief could be granted against these defendants under any set of facts that could be proved consistent with the allegation made by Plaintiff in his complaint. See Hishon v. King Spalding, 467 U.S. 69, 73 (1984).

ACCORDINGLY, the Court ORDERS that:

1. Plaintiff's civil rights complaint (Dkt. 1) is DISMISSED with prejudice because it is brought after the expiration of the applicable statute of limitations.

2. Plaintiff's motion for leave to proceed in forma pauperis (Dkt. 2) is DENIED as moot.

3. The Clerk is directed to terminate any pending motions and close the case.

DONE and ORDERED in Tampa, Florida.