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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

MICHAEL BROWN,

Plaintiff,

vs. Case No.: 3:09cv396/RV/MD

CO THORTON, et al., 

Defendants.

_____________________________________________________________________

REPORT AND RECOMMENDATION

Plaintiff has paid the initial partial filing fee (docs. 7, 11), and this cause is

before the court upon his pro se civil rights complaint filed pursuant to 42 U.S.C. §

1983 (doc. 1). Upon review of the complaint, the court concludes that plaintiff has

not presented an actionable claim and that dismissal of this case is warranted.

BACKGROUND AND PROCEDURAL HISTORY

Plaintiff is an inmate of the Florida penal system currently confined at Santa

Rosa Correctional Institution (“Santa Rosa CI”). Named as defendants in this action

are four prison officials at Santa Rosa CI: Correctional Officer Thorton, Nurse

Torino, Nurse Donahue and Warden Ellis. (Doc. 1, pp. 2-3 in ECF). Plaintiff alleges

that on May 2, 2009, he was wiping up water that had accumulated on his cell floor

due to a clogged sink that had overflowed. He lost his balance and hit his leg on a

steel bunk, causing a laceration. Plaintiff waited twenty minutes for medical staff to

arrive and, when they didn’t, was taken by wheelchair to the medical department

which was 100 yards away. From there, he was immediately transferred to an

outside clinic where he received thirteen stitches. (Id., p. 6 in ECF). Claiming that
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the accident and lack of immediate medical attention amounted to cruel and unusual

punishment in violation of the Eighth Amendment, plaintiff seeks compensatory and

punitive damages in an unspecified amount. (Id., p. 8 in ECF). 

DISCUSSION

Since plaintiff is proceeding in forma pauperis, the court maydismiss the case

if satisfied that the action is “(i) 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)(B). The court must read

plaintiff’s pro se allegations in a liberal fashion. Haines v. Kerner, 404 U.S. 519, 92

S.Ct. 594, 30 L.Ed.2d 652 (1972). A complaint is frivolous under section 1915(e)

“where it lacks an arguable basis either in law or in fact.” Neitzke v. Williams, 490

U.S. 319, 325, 109 S.Ct. 1827, 1833, 104 L.Ed.2d 338 (1989). Dismissals on this

ground should only be ordered when the legal theories are “indisputably meritless,”

Id. at 327, 109 S.Ct. at 1833, or when the claims rely on factual allegations that are

“clearly baseless.” Denton v. Hernandez, 504 U.S. 25, 31, 112 S.Ct. 1728, 1733, 118

L.Ed.2d 340 (1992). Dismissals for failure to state a claim are governed by the same

standard as Federal Rule of Civil Procedure 12(b)(6). Mitchell v. Farcass, 112 F.3d

1483, 1485 (11 Cir. 1997). In determining whether the complaint states a claim upon th

which relief may be granted, the court accepts all the factual allegations in the

complaint as true and evaluates all inferences derived from those facts in the light

most favorable to the plaintiff. Hunnings v. Texaco, Inc., 29 F.3d 1480, 1483 (11 Cir. th

1994). The complaint may be dismissed if the facts as pleaded do not state a claim

to relief that is plausible on its face. See Bell Atl. Corp. v. Twombly, 550 U.S. 544,

127 S.Ct. 1955, 1968-69, 1974, 167 L.Ed.2d 929 (2007) (retiring the negatively-glossed

“no set of facts” language previously used to describe the motion to dismiss

standard and determining that because plaintiffs had “not nudged their claims

across the line from conceivable to plausible, their complaint must be dismissed”

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for failure to state a claim). A complaint is also subject to dismissal under Rule

12(b)(6) when its allegations--on their face--show that an affirmative defense bars

recovery on the claim. Marsh v. Butler County, Ala., 268 F.3d 1014, 1022 (11 Cir. th

2001). 

In order to state a claim under section 1983, a plaintiff must establish two

essential elements:

1. the conduct complained of was committed by a person acting under

color of state law; and

2. this conduct deprived the plaintiff of rights, privileges, or immunities

secured by the Constitution or laws of the United States.

Parratt v. Taylor, 451 U.S. 527, 535, 101 S.Ct. 1908, 1912, 68 L.Ed.2d 420, 428 (1981),

overruled on other grounds, Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 88

L.Ed.2d 662 (1986); Griffin v. City of Opa-Locka, 261 F.3d 1295, 1303 (11 Cir. 2001). th

Here, although plaintiff names Warden Ellis as a defendant in this action,

Warden Ellis is mentioned nowhere in the body of plaintiff’s complaint. To the

extent plaintiff seeks to hold this defendant liable because he supervised one or

more of the named defendants, he is advised that respondeat superior, without

more, does not provide a basis for recovery under section 1983. Polk County v.

Dodson, 454 U.S. 312, 102 S.Ct. 445, 70 L.Ed.2d 509 (1981); Cottone v. Jenne, 326

F.3d 1352 (11 Cir. 2003); Harris v. Ostrout, 65 F.3d 912, 917 (11 Cir. 1995). “The th th

mere right to control, without any control or direction having been exercised and

without any failure to supervise, is not sufficient to support 42 U.S.C. § 1983

liability.” Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694 n. 58, 98 S.Ct. 2018, 2037

(1979). “Supervisory liability occurs either when the supervisor personally

participates in the alleged constitutional violation or when there is a causal

connection between the actions of the supervising official and the alleged

constitutional deprivation.” Brown v. Crawford, 906 F.2d 667, 671 (11 Cir. 1990) th

(citations omitted). The court in Brown set forth the limited circumstances upon

which a causal connection between the actions of a supervising official and the

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alleged constitutional deprivation can be shown sufficient to render him liable on a

§ 1983 claim. The causal connection can be established

when a historyof widespread abuse puts the responsible supervisor on

notice of the need to correct the alleged deprivation, and he fails to do

so. The deprivations that constitute widespread abuse sufficient to

notify the supervising official must be obvious, flagrant, rampant and

of continued duration, rather than isolated occurrences. 

Id. (citations omitted). In the instant case, plaintiff’s complaint fails to identify any

action taken by Warden Ellis that resulted in the deprivation of plaintiff’s

constitutional rights. Thus, his claims against this defendant should be dismissed.

As for the remaining defendants, plaintiff seeks to hold defendant Thorton

liable for the accident on the theory that his conduct violated the Eighth Amendment.

To support this claim, plaintiff alleges that earlier in the day he informed Thorton of

the water on the floor, and that his medical records documented that he has poor

circulation in his feet. 

As the Eleventh Circuit explained in Chandler v. Crosby, 379 F.3d 1278, 1289

(11 Cir. 2004), the Supreme Court has developed a two-part analysis governing th

Eighth Amendment challenges to prison conditions:

First, under the “objective component,” a prisoner must prove that the

condition he complains of is sufficiently serious to violate the Eighth

Amendment. Hudson v. McMillian, 503 U.S. 1, 8, 112 S.Ct. 995, 999, 117

L.Ed.2d 156 (1992). The challenged condition must be “extreme.” Id.

at 9, 112 S.Ct. at 1000. While an inmate “need not await a tragic event”

before seeking relief, Helling v. McKinney, 509 U.S. 25, 33, 113 S.Ct.

2475, 2481, 125 L.Ed.2d 22 (1993), he must at the very least show that

a condition ofhis confinement “pose[s] an unreasonable risk of serious

damage to his future health” or safety, id. at 35, 113 S.Ct. at 2481.

Moreover, “the Eighth Amendment requires more than a scientific and

statistical inquiry into the seriousness of the potential harm and the

likelihood that such injury to health will actuallybe caused by exposure

to [the challenged condition of confinement]. It also requires a court

to assess whether society considers the risk that the prisoner

complains of to be so grave that it violates contemporary standards of

decency to expose anyone unwillingly to such a risk. In other words,

the prisoner must show that the risk of which he complains is not one

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that today's society chooses to tolerate.” Id. at 36, 113 S.Ct. at 2482. 

The Eighth Amendment thus guarantees that prisoners will not be

“deprive [d] ... of the minimal civilized measure of life's necessities.” 

Rhodes, 452 U.S. at 347, 101 S.Ct. at 2399.

Chandler, 379 F.3d at 1289-90. 

The second part of the two-part analysis is the “subjective component:”

[T]he prisoner must show that the defendant prison officials “acted

with a sufficiently culpable state of mind” with regard to the condition

at issue. Hudson, 503 U.S. at 8, 112 S.Ct. at 999 (marks and citation

omitted). The proper standard is that of deliberate indifference. Wilson

v. Seiter, 501 U.S. 294, 303, 111 S.Ct. 2321, 2327, 115 L.Ed.2d 271 (1991). 

Negligence does not suffice to satisfy this standard, id. at 305, 111 S.Ct.

at 2328, but a prisoner need not show that the prison official acted with

“the very purpose of causing harm or with knowledge that harm

[would] result,” Farmer v. Brennan, 511 U.S. 825, 835, 114 S.Ct. 1970,

1978, 128 L.Ed.2d 811 (1994). In defining the deliberate indifference

standard, the Farmer Court stated: “ [A] prison official cannot be found

liable under the Eighth Amendment for denying an inmate humane

conditions of confinement unless the official knows of and disregards

an excessive risk to inmate health or safety; the official must both be

aware of facts from which the inference could be drawn that a

substantial risk of serious harm exists, and he must also draw the

inference.” Id. at 837, 114 S.Ct. at 1979. Furthermore, the official may

escape liability for known risks “if [he] responded reasonably to the

risk, even if the harm ultimately was not averted.” Id. at 844, 114 S.Ct.

at 1982-83.

Chandler, 379 F.3d at 1289-90.

Individuals do not have a constitutional right (1) to be free from a government

employee’s negligence, even if it causes an injury or (2) to have the government

protect them from such an injury. See Daniels v. Williams, supra. To amount to a

violation of the Constitution, the official’s actions must be deliberate or reckless in

the criminal sense. See Whitley v. Albers, 475 U.S. 312, 106 S.Ct. 1078, 89 L.Ed.2d

251 (1986).

Courts have regularly held that slip and fall accidents do not give rise to

federal causes of action. See, e.g., Reynolds v. Powell, 370 F.3d 1028, 1031 (10 Cir. th

2004) (slippery condition arising from standing water in prison shower was not a

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condition posing a substantial risk of serious harm as required under the Eighth

Amendment, even where inmate was on crutches and had warned prison employees

that he was at heightened risk of falling); Marsh v. Jones, 53 F.3d 707, 711-12 (5 Cir. th

1995) (inmate’s claim for monetary damages resulting from defendants’ failure to

warn that a leaking or sweating air conditioning unit made the floor wet was “a

garden-variety negligence claim that was not actionable under § 1983”); Snipes v.

DeTella, 95 F.3d 586, 592 (7 Cir. 1996) (“an inch or two” of accumulated water in the th

shower was not “an excessive risk to inmate health or safety”); LeMaire v. Maass,

12 F.3d 1444, 1457 (9 Cir. 1993) (“slippery prison floors . . . do not state even an th

arguable claim for cruel and unusual punishment.”); see also Bacon v. Carroll, 232

Fed. Appx. 158, 160 (3 Cir. Apr.30, 2007) (prisoner’s assertion that prison officials rd

failed to warn him of wet floor stated claim of mere negligence and not constitutional

violation); Bell v. Ward, 88 Fed. Appx. 125, 127 (7 Cir. Feb. 6, 2004) (accumulation th

of water on the floor due to prison officials’ oversight shows, at most, that jail

officials were negligent); Beasley v. Anderson, 67 Fed. Appx. 242 (5 Cir. 2003) th

(prisoner’s claim that he slipped and fell on slippery shower floor sounded in

negligence and was insufficient to allege a constitutional violation); Lefall v.

Johnson, 48 Fed. Appx. 104 (5 Cir. 2002) (prisoner’s claim that he suffered a back th

injury after slipping and falling on a wet floor caused by persistent plumbing leaks

of which defendants were aware was, at most, a claim of negligence which is not

actionable under § 1983); Davis v. Corrections Corp. of America, No.

5:07cv279/RS/EMT, 2008 WL 539057 (N.D. Fla. Feb. 22, 2008) (holding that plaintiff’s

allegations that he slipped and fell due to water on the floor from a leaking toilet

resulting in injury to his leg failed to state an Eighth Amendment violation).

In the instant case, plaintiff’s allegation that defendant Thorton knew there

was water on the floor does not establish conduct that was more than mere

negligence. Further, although plaintiff states that his medical file documented poor

circulation in his feet, he fails to suggest that defendant Thorton was aware of that

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condition. As plaintiff’s complaint fails to state an Eighth Amendment claim that is

plausible on its face, his claim against defendant Thorton should be dismissed.

As to plaintiff’s medical claims against Nurses Torino and Donahue, these

claims too require dismissal. Plaintiff sues Nurses Torino and Donahue on Eighth

Amendment grounds, claiming that their “negligence” in failing to respond caused

him to suffer twenty minutes longer and to lose more blood than necessary. 

Not every claim by a prisoner that he has not received adequate medical

treatment states an Eighth Amendment violation. McElligott v. Foley, 182 F.3d 1248,

1254 (11 Cir. 1999) (quoting Estelle v. Gamble, 429 U.S. 97, 104-05, 97 S.Ct. 285, 291,

th

50 L.Ed.2d 251 (1976)). Deliberate indifference is not established “unless the official

knows of and disregards an excessive risk to inmate health or safety; the official

must both be aware of facts from which the inference could be drawn that a

substantial risk of serious harm exists, and he must also draw the inference.” 

Farmer v. Brennan, 511 U.S. at 837, 114 S.Ct. at 1979 (1994). Plaintiff must show

(1) subjective knowledge of a risk of serious harm; (2) disregard of that risk; and (3)

conduct that is more than mere negligence. McElligott, 182 F.3d at 1255. Proof that

defendant should have but did not perceive a risk is insufficient. Campbell v. Sikes,

169 F.3d 1353, 1364 (11 Cir. 1999). Deliberate indifference must be more than a

th

medical judgment call or an accidental or inadvertent failure to provide adequate

medical care. Murrell v. Bennett, 615 F.2d 306, 310, n. 4 (5 Cir. 1980). Not all th

complaints concerning medical treatment are actionable:

A complaint that a physician has been negligent in

diagnosing or treating a medical condition does not state

a valid claim of medical mistreatment under the Eighth

Amendment. Medical malpractice does not become a

constitutional violation merely because the victim is a

prisoner.

Estelle, 429 U.S. at 106, 97 S.Ct. at 292 (footnote omitted); see also, Campbell, 169

F.3d at 1363. 

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An official acts with deliberate indifference when he intentionally delays

providing an inmate with access to medical treatment, knowing that the inmate has

a life-threatening condition or an urgent medical condition that would be

exacerbated by delay. See Hill v. DeKalb Reg’l Youth Detention Ctr., 40 F.3d 1176,

1187-88 (11 Cir. 1994), overruled in part on other grounds by Hope v. Pelzer, 536 th

U.S. 730, 739, 122 S.Ct. 2508, 2515, 153 L.Ed.2d 666 (2002)); Harris v. Coweta County,

21 F.3d 388, 394 (11 Cir. 1994) (sheriff was not entitled to qualified immunity where th

he intentionallydelayed treatment that sheriff knew had been prescribed for inmate’s

serious medical need); Thomas v. Town of Davie, 847 F.2d 771, 773 (11 Cir. 1988)

th

(failure to provide prompt attention to serious medical needs by delaying medical

treatment for nonmedical reasons constitutes deliberate indifference). “[D]elay in

medical treatment must be interpreted in the context of the seriousness of the

medical need, deciding whether the delay worsened the medical condition and

considering the reason for delay.” Hill at 1189. “Where the delay results in an

inmate’s suffering ‘a life-long handicap or permanent loss, the medical need is

considered serious.’” Id. at 1188.

In the instant case, even assuming Nurses Torino and Donahue were

responsible for responding to the accident (a fact which plaintiff does not explicitly

allege), his allegations fail to suggest that these defendants knew, at the time they

delayed their response, that plaintiff had a serious injury. Farrow v. West, 320 F.3d

1235, 1248 (11 Cir. 2003) (holding that absent evidence that nurse herself

th

subjectively was aware of a serious risk of harm to the prisoner, prisoner’s

allegation that nurse displayed deliberate indifference towards his serious medical

need failed to state a claim for violation of his Eighth Amendment rights). Nor do his

allegations suggest that theyintentionallydelayed their response, or that the twentyminute delay worsened the injury. His vague contention that he “suffered more than

necessary” and “lost of blood unecessary [sic],” (doc. 1, p. 7 in ECF) is insufficient.

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Accordingly, it is respectfully RECOMMENDED:

That this cause be DISMISSED WITH PREJUDICE under 28 U.S.C. §

1915(e)(2)(B)(ii), and the clerk be directed to close the file.

At Pensacola, Florida, this 1 day of March, 2010. st

MILES DAVIS

UNITED STATES MAGISTRATE JUDGE

NOTICE TO THE PARTIES

Any objections to these proposed findings and recommendations must be filed

within fourteen days after being served a copy thereof. Any different deadline that

may appear on the electronic docket is for the court’s internal use only, and does not

control. A copy of objections shall be served upon all other parties. Failure to

object may limit the scope of appellate review of factual findings. See 28 U.S.C. §

636; United States v. Roberts, 858 F.2d 698, 701 (11 Cir. 1988). th

Case No: 3:09cv396/RV/MD