WEST
v.
INCH

S.D. Fla. | 2021-02-26
No. 19-14467-CIV
District Court, S.D. Florida (2021)

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Holding

The court held that the plaintiff failed to state a claim for deliberate indifference to a serious risk of harm under the Eighth Amendment, and therefore the amended complaint was dismissed.

Facts & Procedural History

Plaintiff, proceeding pro se and in forma pauperis, filed an amended complaint alleging deliberate indifference to a risk of serious harm in violation…

The full statement of facts, procedural history, and disposition for this case are member content.

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Topics
Report And Recommendation Eighth Amendment Violation Deliberate Indifference In Forma Pauperis

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Opinion of the Court

THIS CAUSE comes before the Court upon the Report of Magistrate Judge Reid’s Report and Recommendations (“Report”).

Plaintiff Algernon Maurice West filed a pro se Amended Complaint [ECF No. 10] pursuant to 42 U.S.C. § 1983, alleging deliberate indifference to a risk of serious harm in violation of his rights under the Eighth Amendment. Plaintiff was permitted to proceed in forma pauperis [ECF No. 12]. Under 28 U.S.C. § 1915(e), courts are permitted to dismiss a suit filed in forma pauperis “at any time if the court determines that . . . (B) the action or appeal (i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2) (alteration added).

On January 6, 2021, Magistrate Judge Lisette M. Reid1 issued a Report of Magistrate Judge [ECF No. 28], recommending that the Amended Complaint be dismissed pursuant to the screening

Accordingly, it is ORDERED AND ADJUDGED as follows: 1. Judge Reid’s Report and Recommendation, [ECF No. 28], is ADOPTED. 2. Plaintiff's Amended Complaint, [ECF No. 10], is DISMSSED. 3. The Clerk of Court is directed to CLOSE this case. Any pending motions are DENIED as moot. DONE AND ORDERED in Chambers at Miami, Florida, this 25th day of February 2021. Ly CANNON

UNITED STATES DISTRICT JUDGE cc: Algernon Maurice West #H14565 Santa Rosa Correctional Institution Inmate Mail/Parcels 5850 East Milton Road Milton, FL 32583

PRO SE

Footnotes
1 The Clerk referred the case to Judge Reid for a report and recommendation on dispositive matters pursuant to Administrative Order 2019-2 [ECF No. 2]. provisions of § 1915(e) for failure to state a claim [ECF No. 28 at 13]. Plaintiff filed timely objections to the Report [ECF No. 29]. A district court may accept, reject, or modify a magistrate judge’s report and recommendation. 28 U.S.C. § 636(b)(1). Those portions of the report and recommendation to which objection is made are accorded de novo review, if those objections “pinpoint the specific findings that the party disagrees with.” United States v. Schultz, 565 F. 3d 1353, 1360 (11th Cir. 2009); see also Fed. R. Civ. P. 72(b)(3). Any portions of the report and recommendation to which no specific objection is made are reviewed only for clear error. Liberty Am. Ins. Grp., Inc. v. WestPoint Underwriters, LLC, 199 F. Supp. 2d 1271, 1276 (M.D. Fla. 2001); accord Macort v. Prem, Inc., 208 F. App’x 781, 784 (11th Cir. 2006). The Report summarized the facts alleged in Plaintiff’s Amended Complaint. See [ECF No. 28, pp. 2-5]. Liberally construed, Plaintiff raised one claim for deliberate indifference to a risk of serious harm in violation of the Eighth Amendment against Defendants in their individual and official capacity. See id.; [ECF No. 10]. Plaintiff failed to show that Defendants in their individual capacity were deliberately indifferent to substantial risk of serious harm. Plaintiff did not suffer an actual injury when he was “almost stabbed.” See [ECF No. 29, p. 2]. Moreover, Plaintiff’s allegations were vague and conclusory and failed to provide support that Defendants were subjectively aware that Plaintiff faced a serious risk of harm. Plaintiff failed to allege the existence of any unofficial policy or custom that caused a constitutional violation frustrating Plaintiff’s official capacity claims against Defendants. The Court conducted a de novo review of the Report and agrees with Judge Reid’s reasoned analysis that Plaintiff failed to state a claim for which relief can be granted. CASE No. 19-14467-CIV-CANNON/Reid

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