ELLARD v. DIXON ( 2023 )

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF FLORIDA PANAMA CITY DIVISION HOWARD ELLARD, JR. Plaintiff, vs. Case No. 5:22-cv-241/TKW/MJF SCOTT MIDDLEBROOKS, et al., Defendants. _________________________________/ O R D E R This case is before the Court based on the magistrate judge=s Report and Recommendation (Doc. 26) and Plaintiff’s objections (Doc. 30). The Court reviewed the issues raised in the objections de novo as required by 28 U.S.C. §636(b)(1) and Fed. R. Civ. P. 72(b)(3). Based on that review, the Court agrees with the magistrate judge’s determination that Plaintiff failed to state a plausible deliberate indifference claim against Defendants Rosiles, Middlebrooks, and “unknown doctor.” The Court did not overlook Plaintiff’s argument that he stated a claim against those defendants for stopping his medications and/or not providing him proper medical supplies because they “must have known” or should have found out about what medications and supplies he needed, but that is not enough because a deliberate indifference claim Page 2 of 2 requires actual subjective knowledge. See, e.g., Burnette v. Taylor, 533 F.3d 1325, 1331 (11th Cir. 2008) (“No liability arises under the Constitution for ‘an official's failure to alleviate a significant risk that he should have perceived but did not ....””’) (quoting Farmer v. Brennan, 511 U.S. 825, 837 (1994)). Accordingly, it is ORDERED that: 1. The magistrate judge’s Report and Recommendation is adopted and incorporated by reference in this Order. 2. Plaintiff’s claims against Defendants Rosiles, Middlebrooks, and “unnamed physician” are DISMISSED with prejudice for failure to state a claim upon which relief can be granted. 3. This case is referred back to the magistrate judge for further proceedings on the claims against the other defendants. DONE and ORDERED this 21st day of July, 2023. □□ Wood T.KENT WETHERELL,I UNITED STATES DISTRICT JUDGE Case No.: 5:22cv241-TKW/MJF