Allgood v. Florida Department of Corrections ( 2020 )

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA Case No. 20-cv-23038-KMM JERRY DEAN ALLGOOD, II, Plaintiff, v. FLA. DEP’T OF CORR., et al., Defendants. _________________________________/ ORDER ON REPORT AND RECOMMENDATIONS THIS CAUSE came before the Court upon pro se Plaintiff Jerry Dean Allgood, II’s (“Plaintiff”) Complaint pursuant to 42 U.S.C. § 1983. (“Compl.”) (ECF No. 1). The Court referred the matter to the Honorable Lisette M. Reid, United States Magistrate Judge, who issued a Report and Recommendations recommending that (1) Plaintiff’s unlawful use of force claim proceed against Sgt. Cure, Ofc. Bentley, and Ofc. Joseph (“Correctional Officer Defendants”) in their individual capacity; (2) Plaintiff’s failure to intervene claim proceed against John Doe; (3) Plaintiff’s Complaint be dismissed against Correctional Officer Defendants in their official capacity; and (4) Plaintiff’s Complaint be dismissed against the Florida Department of Corrections (“FDOC”). (“R&R”) (ECF No. 7). Plaintiff did not file objections and the time to do so has passed. The matter is now ripe for review. As set forth below, the Court ADOPTS the R&R.1 1 The Court adopts the R&R with the following alterations: on page three, line three, the citation should read, in relevant part, “556 U.S. 662, 678”; on page three, line twenty-three, the citation should read, in relevant part, “578 F. App’x 948, 952”; and on page four, line two, the citation should read “Stallworth, 578 F. App’x at 953 (citing Wilkins, 559 U.S. at 39).” The Court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3). Plaintiff alleges that he was the victim of a “vicious attack” by Correctional Officer Defendants in a shower stall at the Dade Correctional Institution in November 2017. Compl. at 3. Plaintiff alleges that he was punched and kicked while handcuffed and that Ofc. Bentley kicked him hard enough to fracture two of Plaintiff’s left ribs. Id. Plaintiff alleges that John Doe, a Latin, bald nurse, was present during the incident but did nothing to stop it. Id. at 6. Plaintiff sues Correctional Officer Defendants in their individual and official capacity, John Doe, and the FDOC. See generally Compl. As set forth in the R&R, Magistrate Judge Reid finds that Plaintiff’s claims should proceed as to Correctional Officer Defendants in their individual capacity, and as to John Doe, but that the Complaint should be dismissed as to Correctional Officer Defendants in their official capacity, and as to the FDOC. R&R. at 6. Specifically, Magistrate Judge Reid recommends that the claim against Correctional Officer Defendants in their individual capacity proceed because “Plaintiff has alleged a minimal claim arising from the unlawful use of force by [Correctional Officer Defendants] after Plaintiff was taken to medical for treatment . . . .” Id. at 4. Magistrate Judge Reid recommends that the claim against John Doe proceed because “Plaintiff has sufficiently alleged a minimal claim against John Doe Defendant arising from his failure to intervene as the [Correctional Officer] Defendants used unlawful force to kick and punch Plaintiff resulting in two fractured left ribs.” Id. at 5. Magistrate Judge Reid recommends that the Complaint be dismissed against Correctional Officer Defendants in their official capacity because Plaintiff “is effectively suing the state, which has not consented to suit, therefore, the claims are barred by sovereign immunity.” Id. Finally, Magistrate Judge Reid recommends that the Complaint be dismissed against the FDOC because “FDOC is not a proper party . . . as the State is entitled to Eleventh Amendment immunity.” Jd. at 6. This Court agrees. Accordingly, UPON CONSIDERATION of the Complaint, the R&R, the pertinent portions of the record, and being otherwise fully advised in the premises, it is ORDERED and ADJUDGED that the R&R (ECF No. 7) is hereby ADOPTED. It is further ORDERED that Plaintiff's claim against Sgt. Cure, Ofc. Bentley, and Ofc. Joseph in their official capacity, and Plaintiff’s claim against the FDOC, are hereby DISMISSED WITHOUT PREJUDICE. The Clerk of Court shall TERMINATE the FDOC as a party to this case. DONE AND ORDERED in Chambers, at Miami, Florida this day of December, 2020. KV Men K. MICHAEL MOORE CHIEF UNITED STATES DISTRICT JUDGE c: All counsel of record