UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA JACKSONVILLE DIVISION
LEE M. JOHNSON,
Plaintiff,
v. Case No. 3:22-cv-702-BJD-PDB
SGT. GARNER and CAPTAIN TOMLIN,
Defendants. ______________________________
ORDER
I. Status
Plaintiff, Lee M. Johnson, an inmate of the Florida penal system, is proceeding pro se and in forma pauperis on a civil rights complaint (Doc. 1) against two officers at Columbia Correctional Institution Annex (Sergeant Garner and Captain Tomlin) for allegedly permitting another inmate to sexually assault him or preventing him from reporting what happened. Plaintiff alleges that, on April 28, 2022, Defendant Garner announced to over fifty inmates that Plaintiff was a “snitch” and a “child molester” and told one inmate in particular (Inmate Workman) to “take care of this snitching child molester for me.” See Doc. 1 at 6. Three days later, Inmate Workman put a knife to Plaintiff’s throat and forced him to “perform oral sex on him.” Id. at 7. Inmate Workman told Plaintiff he was punishing him at Defendant Garner’s instruction for being a “snitching . . . child molester.” Id. Inmate Workman allegedly told Plaintiff, “Garner gave me the green light to keep you in line.”
Id. The next day, Plaintiff sought protection and medical assistance. Id. at 8. To that end, he told Defendant Tomlin what happened. Defendant Tomlin moved Plaintiff to a confinement cell but would not allow him to report the
sexual assault or seek medical attention for twenty-four hours. Id. Plaintiff claims he begged every officer who walked by for assistance, but they denied him, saying “[Defendant] Tomlin already told you, your [sic] not snitching, go lay down or your [sic] getting gassed.” Id. According to Plaintiff, Defendant
Tomlin personally visited his cell on May 3, 2022, to threaten him from “snitching on [Defendant] Garner.” Id. at 9. Plaintiff contends Defendant Garner violated his Eighth Amendment rights (cruel and unusual punishment), and Defendant Tomlin violated his First Amendment rights
(retaliation). Id. at 3. Defendants jointly move to dismiss the complaint (Doc. 27).1 Plaintiff opposes the motion (Doc. 29).
1 Defense counsel names solely Defendant Tomlin in the opening paragraph of the motion, but he addresses both Defendants in the body of the motion and the conclusion. See Doc. 27 at 1, 7-8, 13. 2 II. Motion to Dismiss Standard A defendant may move to dismiss a complaint for a plaintiff’s “failure to
state a claim upon which relief may be granted.” Fed. R. Civ. P. 12(b)(6). In ruling on such a motion, the court must accept the plaintiff’s allegations as true, liberally construing those by a plaintiff proceeding pro se, but need not accept as true legal conclusions. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Though detailed factual allegations are not required, Rule 8(a) demands “more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Id. A plaintiff should allege enough facts “to raise a reasonable expectation that discovery will reveal evidence” supporting the plaintiff’s claims. Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 556 (2007). III. Analysis Defendants move to dismiss the complaint on the following grounds: Plaintiff fails to state a plausible claim under the First or Eighth Amendments,
and the Eleventh Amendment bars any claim against them in their official capacities for damages. See Doc. 27 at 7-8, 12. In his response, Plaintiff argues he states a plausible claim under the Eighth Amendment against Defendant Garner because he alleges Garner directed Inmate Workman to harm him for
being both a snitch and a child molester, and Inmate Workman did so. See Doc. 29 at 2-3, 7. Plaintiff does not address his retaliation claim against Defendant
3 Tomlin, nor does he maintain he pursues a retaliation claim against Defendant Garner. See generally id.
First, it appears Plaintiff abandons his claim against Defendant Tomlin, or otherwise does not oppose Defendants’ motion with respect to Defendant Tomlin. See id. Indeed, in a motion Plaintiff filed recently asking about the status of Defendants’ motion (Doc. 40), Plaintiff mentioned only his claim
against Defendant Garner, summarizing his case as follows: “Plaintiff filed this case against [Defendant] Garner on June 24[,] 2022 for claims of deliberate indifference to Plaintiff’s safety, and Plaintiff being sexually assaulted by another inmate due to [Defendant] Garner’s statements.” See Doc. 40 at 1.
Given Plaintiff appears to pursue only a claim against Defendant Garner and otherwise finding Plaintiff fails to state a plausible retaliation claim against Defendant Tomlin, the Court finds Defendants’ motion is due to be granted in part to the extent that the retaliation claim against Defendant
Tomlin will be dismissed. See O’Bryant v. Finch, 637 F.3d 1207, 1212 (11th Cir. 2011) (stating the elements of a retaliation claim). Notably, Plaintiff does not allege in his complaint or argue in his response to Defendants’ motion that Defendant Tomlin took adverse action against him for having filed grievances
or complaints or violated his rights under the Eighth Amendment (e.g., by unnecessarily withholding medical care for a serious medical need). See
4 generally Doc. 1; Doc. 29. Rather, the basis of his sole retaliation claim against Defendant Tomlin is that Tomlin would not permit him to report Defendant
Garner’s actions. See Doc. 1 at 3, 8. Second, Plaintiff does not assert a retaliation claim against Defendant Garner, and he indicates in his complaint that he names Defendant Garner solely in his individual capacity. See Doc. 1 at 2, 3; see also generally Doc. 29.
As such, to the extent Defendants seek dismissal of a retaliation claim against Defendant Garner and invoke Eleventh Amendment immunity, Defendants’ motion is due to be denied in part as moot. Finally, accepting as true that Defendant Garner directed Inmate
Workman to “take care of [Plaintiff]” for being a snitch and child molester, and Inmate Workman—at Defendant Garner’s instruction—forced Plaintiff to engage in a sex act at knife point, Plaintiff states a plausible Eighth Amendment claim against Defendant Garner. Prison guards have a duty under
the Eighth Amendment to “take reasonable measures to guarantee the safety of the inmates,” which includes protecting them from known risks of harm. Farmer v. Brennan, 511 U.S. 825, 832 (1994). See also Caldwell v. Warden, FCI Talladega, 748 F.3d 1090, 1102 (11th Cir. 2014) (“[A] prison guard violates a
prisoner’s Eighth Amendment right when that guard actually (objectively and subjectively) knows that one prisoner poses a substantial risk of serious harm
5 to another, yet fails to take any action to investigate, mitigate, or monitor that substantial risk of serious harm.”).
Plaintiff’s allegations permit the reasonable inference that Defendant Garner objectively and subjectively knew Inmate Workman would harm Plaintiff and failed to “take any action to . . . mitigate[] or monitor that substantial risk of serious harm.” See Caldwell, 748 F.3d at 1102. Whether
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UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA JACKSONVILLE DIVISION
LEE M. JOHNSON,
Plaintiff,
v. Case No. 3:22-cv-702-BJD-PDB
SGT. GARNER and CAPTAIN TOMLIN,
Defendants. ______________________________
ORDER
I. Status
Plaintiff, Lee M. Johnson, an inmate of the Florida penal system, is proceeding pro se and in forma pauperis on a civil rights complaint (Doc. 1) against two officers at Columbia Correctional Institution Annex (Sergeant Garner and Captain Tomlin) for allegedly permitting another inmate to sexually assault him or preventing him from reporting what happened. Plaintiff alleges that, on April 28, 2022, Defendant Garner announced to over fifty inmates that Plaintiff was a “snitch” and a “child molester” and told one inmate in particular (Inmate Workman) to “take care of this snitching child molester for me.” See Doc. 1 at 6. Three days later, Inmate Workman put a knife to Plaintiff’s throat and forced him to “perform oral sex on him.” Id. at 7. Inmate Workman told Plaintiff he was punishing him at Defendant Garner’s instruction for being a “snitching . . . child molester.” Id. Inmate Workman allegedly told Plaintiff, “Garner gave me the green light to keep you in line.”
Id. The next day, Plaintiff sought protection and medical assistance. Id. at 8. To that end, he told Defendant Tomlin what happened. Defendant Tomlin moved Plaintiff to a confinement cell but would not allow him to report the
sexual assault or seek medical attention for twenty-four hours. Id. Plaintiff claims he begged every officer who walked by for assistance, but they denied him, saying “[Defendant] Tomlin already told you, your [sic] not snitching, go lay down or your [sic] getting gassed.” Id. According to Plaintiff, Defendant
Tomlin personally visited his cell on May 3, 2022, to threaten him from “snitching on [Defendant] Garner.” Id. at 9. Plaintiff contends Defendant Garner violated his Eighth Amendment rights (cruel and unusual punishment), and Defendant Tomlin violated his First Amendment rights
(retaliation). Id. at 3. Defendants jointly move to dismiss the complaint (Doc. 27).1 Plaintiff opposes the motion (Doc. 29).
1 Defense counsel names solely Defendant Tomlin in the opening paragraph of the motion, but he addresses both Defendants in the body of the motion and the conclusion. See Doc. 27 at 1, 7-8, 13. 2 II. Motion to Dismiss Standard A defendant may move to dismiss a complaint for a plaintiff’s “failure to
state a claim upon which relief may be granted.” Fed. R. Civ. P. 12(b)(6). In ruling on such a motion, the court must accept the plaintiff’s allegations as true, liberally construing those by a plaintiff proceeding pro se, but need not accept as true legal conclusions. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Though detailed factual allegations are not required, Rule 8(a) demands “more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Id. A plaintiff should allege enough facts “to raise a reasonable expectation that discovery will reveal evidence” supporting the plaintiff’s claims. Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 556 (2007). III. Analysis Defendants move to dismiss the complaint on the following grounds: Plaintiff fails to state a plausible claim under the First or Eighth Amendments,
and the Eleventh Amendment bars any claim against them in their official capacities for damages. See Doc. 27 at 7-8, 12. In his response, Plaintiff argues he states a plausible claim under the Eighth Amendment against Defendant Garner because he alleges Garner directed Inmate Workman to harm him for
being both a snitch and a child molester, and Inmate Workman did so. See Doc. 29 at 2-3, 7. Plaintiff does not address his retaliation claim against Defendant
3 Tomlin, nor does he maintain he pursues a retaliation claim against Defendant Garner. See generally id.
First, it appears Plaintiff abandons his claim against Defendant Tomlin, or otherwise does not oppose Defendants’ motion with respect to Defendant Tomlin. See id. Indeed, in a motion Plaintiff filed recently asking about the status of Defendants’ motion (Doc. 40), Plaintiff mentioned only his claim
against Defendant Garner, summarizing his case as follows: “Plaintiff filed this case against [Defendant] Garner on June 24[,] 2022 for claims of deliberate indifference to Plaintiff’s safety, and Plaintiff being sexually assaulted by another inmate due to [Defendant] Garner’s statements.” See Doc. 40 at 1.
Given Plaintiff appears to pursue only a claim against Defendant Garner and otherwise finding Plaintiff fails to state a plausible retaliation claim against Defendant Tomlin, the Court finds Defendants’ motion is due to be granted in part to the extent that the retaliation claim against Defendant
Tomlin will be dismissed. See O’Bryant v. Finch, 637 F.3d 1207, 1212 (11th Cir. 2011) (stating the elements of a retaliation claim). Notably, Plaintiff does not allege in his complaint or argue in his response to Defendants’ motion that Defendant Tomlin took adverse action against him for having filed grievances
or complaints or violated his rights under the Eighth Amendment (e.g., by unnecessarily withholding medical care for a serious medical need). See
4 generally Doc. 1; Doc. 29. Rather, the basis of his sole retaliation claim against Defendant Tomlin is that Tomlin would not permit him to report Defendant
Garner’s actions. See Doc. 1 at 3, 8. Second, Plaintiff does not assert a retaliation claim against Defendant Garner, and he indicates in his complaint that he names Defendant Garner solely in his individual capacity. See Doc. 1 at 2, 3; see also generally Doc. 29.
As such, to the extent Defendants seek dismissal of a retaliation claim against Defendant Garner and invoke Eleventh Amendment immunity, Defendants’ motion is due to be denied in part as moot. Finally, accepting as true that Defendant Garner directed Inmate
Workman to “take care of [Plaintiff]” for being a snitch and child molester, and Inmate Workman—at Defendant Garner’s instruction—forced Plaintiff to engage in a sex act at knife point, Plaintiff states a plausible Eighth Amendment claim against Defendant Garner. Prison guards have a duty under
the Eighth Amendment to “take reasonable measures to guarantee the safety of the inmates,” which includes protecting them from known risks of harm. Farmer v. Brennan, 511 U.S. 825, 832 (1994). See also Caldwell v. Warden, FCI Talladega, 748 F.3d 1090, 1102 (11th Cir. 2014) (“[A] prison guard violates a
prisoner’s Eighth Amendment right when that guard actually (objectively and subjectively) knows that one prisoner poses a substantial risk of serious harm
5 to another, yet fails to take any action to investigate, mitigate, or monitor that substantial risk of serious harm.”).
Plaintiff’s allegations permit the reasonable inference that Defendant Garner objectively and subjectively knew Inmate Workman would harm Plaintiff and failed to “take any action to . . . mitigate[] or monitor that substantial risk of serious harm.” See Caldwell, 748 F.3d at 1102. Whether
Inmate Workman sexually assaulted Plaintiff at Defendant Garner’s instruction and had the opportunity to commit the assault because of Defendant Garner’s failure to mitigate or monitor the known risk of harm are issues to be addressed on a more complete record at summary judgment or
trial. Defendants’ suggestion that Plaintiff merely alleges Defendant Garner “verbal[ly] taunt[ed]” Plaintiff is disingenuous and inaccurate. See Doc. 27 at 7. Accordingly, it is now
ORDERED: 1. Defendants’ Motion to Dismiss (Doc. 27) is GRANTED in part and DENIED in part as stated herein. 2. Plaintiff’s Motion to Request Status of Defendants’ Motion to
Dismiss (Doc. 40) is GRANTED to the extent the Court rules on Defendants’ Motion in this Order.
6 3. The retaliation claim against Defendant Tomlin is dismissed, and the Clerk shall terminate Defendant Tomlin as a party to this action. 4. Defendant Garner must answer the complaint (Doc. 1) within twenty days of the date of this Order. DONE AND ORDERED at Jacksonville, Florida, this 18th day of January 2024.
J) i fd fAma ( | bt CGT ia, BRIAN/I, DAVIS United States District Judge
Jax-6 C: Lee M. Johnson Counsel of Record