Young v. Scott

• Decision Date: 24 August 2017
• Docket Number: Case No: 2:16-cv-44-FtM-38MRM
• Parties: MICHAEL GEORGE YOUNG, JR., Plaintiff, v. MIKE SCOTT, THOMAS EBERHART, JAMES BARACCO, KEVIN KOLLER and MIA RODGERS, Defendants.
• Court: U.S. District Court — Middle District of Florida

MICHAEL GEORGE YOUNG, JR., Plaintiff, v. MIKE SCOTT, THOMAS EBERHART, JAMES BARACCO, KEVIN KOLLER and MIA RODGERS, Defendants.

Case No: 2:16-cv-44-FtM-38MRM

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA FORT MYERS DIVISION

August 24, 2017

OPINION AND ORDER¹

I.

Plaintiff Michael George Young, Jr., initiated this 42 U.S.C. § 1983 action proceeding pro se as a pre-trial detainee at the Lee County Jail. Plaintiff is proceeding on his Amended Complaint (Doc. #56) filed October 26, 2016, against the following defendants from the Lee County Sheriff's Office: Sheriff Mike Scott, Colonel Thomas Eberhard, Major James Baracco, Captain Kevin Koller, and Captain Mia Rodgers in their official and individual capacities. Doc. #56 at 3-4.

Under the "Statement of Claim" portion on the Amended Complaint, Plaintiff summarizes his claims against Defendants as follows:

In violating Mr. Young's First Amendment rights, Sheriff Mike Scott's policies, rules, and procedures of visitation violate Mr. Young's liberty interest to intimate association with his daughter. They violated Florida State law and Florida Model Jail standards of allowing all persons held within [its] state prisons and county jail systems visitation with their spouses, children, relatives, and friends. This also a violation of due process of law and equal protection rights of the 5th and 14th Amendments.

In violating Mr. Young's [Eighth] Amendment right, Sheriff Mike Scott and his officers in charge of the corrections and the care and well-being of Mr. Young and denying him visitation without regard to his mental and emotional stat[u]s. This is further compounded by the fact, as show in in Exhibit "I" that the current system has capabilities of being upgraded with software and hardware at a [minimal] cost. The "Deliberate Indifference" being shown to Mr. Young constitutes cruel and unusual punishment. Mr. Young is also subjected needlessly to the mental and emotional stresses of long term separation from family and friends without hope of ever seeing his daughter again, unless she can scrape up enough money to come all the way to Fort Myers, Florida.

In violation of Mr. Young's [Fifth] and [Fourteenth] Amendment rights, Sheriff Mike Scott and the other defendants in charge of Mr. Young's care and well-being violated his Substantive Due Process rights in not allowing some form of hearing or other mediation method to find a solution for the denial of visitation with his daughter. He has suffered cruel and unusual punishment from the long term denial to see Ms. Young and is suffering from mental and emotional anguish, tensions, and stresses unjustly placed upon him. He suffers from daily depressive episodes and mental hardships needlessly due to this denial. His Equal Protection rights are violated in the denial of allowing him the same rights, privileges, and immunities that others enjoy during their detainments. His liberty interest is violated in the denial of his intimate association with Ms. Young.

Doc. #56 at 5-7. As relief Plaintiff seeks declaratory relief, injunctive relief, and monetary damages. Id. at 14.

Defendants' move for summary judgment in an Amended Motion for Summary Judgment (Doc. #58) filed on November 2, 2016. Defendants refer to the following exhibits in support of their motion: Affidavit of Colonel Thomas Eberhardt (Doc. 58-1, Aff. Eberhardt), Affidavit of Deputy First Class Bryon Haycook (Doc. #58-2, Aff. Haycook), and a copy of the final criminal judgment entered against Plaintiff in the Twentieth Judicial Circuit Court (Doc. #58-3).²

Defendants argue that none of Plaintiff's allegations rise to the level of a Constitutional violation. Doc. #58 at 7. Regarding the visitation claim, Defendants recognize that pre-trial detainees have a Constitutional right to reasonable visitation. Id. at 8 (citing Jones v. Diamond, 594 F.2d 997, 1013 (5th Cir 1979)). However, Defendants argue that visitation may be limited when necessary to preserve institutional security. Id. Defendants argue that the Lee County Sheriff's policy prohibiting Skype-style visitation was implemented to preserve institutional security. Id. at 9.

In support of the security argument, Defendants opine that if inmates were permitted Skype visitation they could "pass messages, plan escapes, or conduct gang related, or other criminal activity" because the correctional officials would lose the ability to control and supervise the visitors visiting each inmate. Id. at 4 (Exh. A ¶ 8). Defendants further state that Skype visitation would have a negative effect on security "as the secure network could be compromised due to open connections outside the firewalls." Id. at 4 (citing Exh. A ¶ 9). Defendants submit that the current video visitationsystem is not compatible with Skype and the cost associated with adding even one Skype portal would be $25,580.00. Id. at 5, 10; see also Aff. Haycook, Doc. #58-2 at 2. Defendants explain that the current visitation procedures allow standard video visitation and allow the Lee County Sheriff's Office to control the number of visitors, the identity of the visitors, the items a visitor can bring with them to visitation, and the behavior of the visitors. Id.

Defendants Eberhardt, Baracco, and Koller further argue that the Amended Complaint does not allege they were personally involved in the alleged Constitutional deprivations. Id. In fact, Defendants point out that their names are not even mentioned in the Amended Complaint. Id. Because there is no affirmative causal connection between the Defendants and the alleged Constitutional deprivations, they move for summary judgment. Id.

Despite Plaintiff being allotted additional time to respond to the Defendants' amended motion in response to Plaintiff's Amended Complaint, Plaintiff did not file an amended response and the time to do so has long expired. See Doc. #61. Considering Plaintiff is proceeding pro se, the Court will consider Plaintiff's previous response (Doc. #39) opposing Defendants' initial motion for summary judgment because both motions are substantially the same. Attached to Plaintiff's response is a document entitled "Psychiatric opinions on visitation" (Doc. #39-1).

In response to Defendants' allegations that the Complaint contains no allegations of personal involvement, Plaintiff argues that all Defendants established the jail's policies and procedures board. Doc. #39 at 13. Plaintiff recognizes that Defendant Baracco's name is not mentioned in the Complaint, but states he identified Baracco as a defendantdue to his position in the chain-of-command and his long career with the Lee County Corrections Bureau. Id. Plaintiff contends Defendants violated his First Amendment rights because of the jail's policy prohibiting Skype visitation is arbitrary and capricious. Id. at 3.

In support of Plaintiff's Due Process and Equal Protection claims, he argues that Florida law, specifically Florida's Model Jail Standards, have created a liberty interest to two-hours a week of visitation. Id. at 4. Plaintiff further contends that the current video system is compatible with a software program called Viszo, which is used by the Public Defender's Office to communicate with their clients at the jail. Id. at 6.

In support of Plaintiff's Eighth, or Fourteenth Amendment, claim of cruel and unusual punishment, he contends he faced cruel and unusual punishment by having a long-term denial of visitation with his family and friends who could not travel to Fort Myers to participate in the video visitation at the Ortiz facility. Id. at 10. This matter is ripe for review.

II.

"Summary judgment is appropriate only if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Moton v. Cowart, 631 F.3d 1337, 1341 (11th Cir. 2011)(internal quotations and citations omitted). See also, Fed. R. Civ. P. 56(c)(2). "The moving party may meet its burden to show that there are no genuine issues of material fact by demonstrating that there is a lack of evidence to support the essential elements that the non-moving party must prove at trial." Moton, 631 F.3d at 1341 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). The standard for creating a genuine dispute of fact requires the courtto "make all reasonable inferences in favor of the party opposing summary judgment," Chapman v. AI Transp., 229 F.3d 1012, 1023 (11th Cir. 2000)(en banc)(emphasis added), not to make all possible inferences in the non-moving party's favor. To avoid the entry of summary judgment, a party faced with a properly supported summary judgment motion "bears the burden of persuasion" and must come forward with extrinsic evidence, i.e., affidavits, depositions, answers to interrogatories, and/or admissions, and "set forth specific facts showing that there is a genuine issue for trial." Beard v. Banks, 548 U.S. 521, 529 (2006)(citations omitted); Celotex, 477 U.S. at 322; Hilburn v. Murata Elecs. N. Am., Inc., 181 F.3d 1220, 1225 (11th Cir. 1999). If there is a conflict in the evidence, the non-moving party's evidence is to be believed and "all justifiable inferences" must be drawn in favor of the non-moving party. Beard, 548 U.S. at 529 (citations omitted); Shotz v. City of Plantation, Fl., 344 F.3d 1161, 1164 (11th Cir. 2003). "A court need not permit a case to go to a jury, however, when the inferences that are drawn from the evidence, and upon which the non-movant relies, are 'implausible.'" Cuesta v. School Bd. of Miami-Dade County, 285 F.3d 962, 970 (11th Cir. 2002) (citations omitted). Nor are conclusory allegations based on subjective beliefs sufficient to create a genuine issue of material fact. Leigh v. Warner Bros., Inc., 212 F.3d 1210, 1217 (11th Cir. 2000). "When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for...