Rone v. Rich et al

1
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
ROBERT EARL RONE, 	)
Plaintiff, 	)
)
v. 	) CIVIL ACTION NO. 1:22-00509-TFM-N
)
ASHLEY M. RICH, et al., 	)
Defendants. 	)
REPORT AND RECOMMENDATIONS
This action is before the Court1 on the three motions to strike, or in the
alternative, dismiss, Count III of Plaintiff Robert Rone’s Second Amended Complaint
(“SAC”) filed by Defendants Kiesha Pettway, Felecia Crawford and Sophia Barnes,
respectively. (Docs. 39, 48, 54). These three Defendants – along with one “Jane Doe”
and fictitious defendants2 – are named only in Count III of Plaintiff’s SAC, which
proceeds under 42 U.S.C. § 1983 and asserts a Fourteenth Amendment claim of
deliberate indifference to a serious medical need against each Defendant in their
respective individual capacities. (Doc. 31). The operative motions assert Count III is
an improper “shotgun pleading” in violation of Rules 8 and 10 of the Federal Rules of
Civil Procedure. (Docs. 39, 48, 54). The motions have been fully briefed and are ripe
for disposition. (See Docs. 44, 49, 51, 53, 55-57).
1 The assigned District Judge has referred this action to the undersigned Magistrate Judge for
consideration and disposition or recommendation on all pretrial matters as may be appropriate under
28 U.S.C. § 636(b)(1) and in accordance with S.D. Ala. GenLR 72. (Docs. 12, 32).
2 Plaintiff describes this group of fictitious defendants as “As Yet Unknown Medical Personnel and
Jailers at Mobile County Metro Jail,” who “were responsible for delaying or denying medical treatment
for Rone while he was a pretrial detainee on May 7, 2021 at Mobile County Metro Jail.” (Doc. 31,
PageID.289, 304).
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Upon consideration, the undersigned finds Count III to be a shotgun pleading.
Accordingly, it is RECOMMENDED that Defendants’ motions (Docs. 39, 48, 54) be
GRANTED to the extent they seek dismissal of Count III on said basis, such that
Count III be DISMISSED without prejudice. However, under binding Eleventh
Circuit precedent, [i]n dismissing a shotgun complaint for noncompliance with Rule
8(a), a district court must give the plaintiff ‘one chance to remedy such deficiencies.’”
Jackson v. Bank of Am., N.A., 898 F.3d 1348, 1358 (11th Cir. 2018) (citation omitted).
Thus, the undersigned further RECOMMENDS Plaintiff be GRANTED leave to
refile a SAC, addressing the deficiencies noted herein, within a time to be prescribed
by the Court.
I. 	Legal Standard
Under Fed. R. Civ. P. 8(a)(2), a claim for relief must contain “a short and plain
statement of the claim showing that the pleader is entitled to relief.” Further, under
Rule 10(b), “[a] party must state its claims… in numbered paragraphs, each limited
as far as practicable to s single set of circumstances.” Fed. R. Civ. P. 10(b). “If doing
so would promote clarity,” Rule 10(b) further requires “each claim founded on a
separate transaction or occurrence… be stated in a separate count.” Id. The Eleventh
Circuit has explained:
The self-evident purpose of these rules is to require the pleader to
present his claims discretely and succinctly, so that his adversary can
discern what his claim and frame a responsive pleading… These rules
were also written for the benefit of the court, which must be able to
determine which facts support which claims, whether the plaintiff has
stated any claims upon which relief can be granted, and whether
evidence introduced at trial is relevant.
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Barmapov v. Amuial, 986 F.3d 1321, 1324 (11th Cir. 2021) (cleaned up) (citations
omitted). Pleadings that violate either Rules 8 or 10 are termed “shotgun pleadings”
– which are “flatly forbidden by the spirit, if not the letter of these rules.” Id. (citing
T.D.S. Inc. v. Shelby Mut. Ins. Co., 760 F.2d 1520, 1544 n.14 (11th Cir. 1985) (Tjoflat,
J. dissenting)). Discussing such pleadings in Weiland v. Palm Beach County Sheriff’s
Office, the Eleventh Circuit stated:
Though 	the 	groupings 	cannot 	be 	too 	finely 	drawn, 	we 	have
identified four rough types or categories of shotgun pleadings. The most
common type – by a long shot – is a complaint containing multiple counts
where each count adopts the allegations of all preceding counts, causing
each successive count to carry all that came before and the last count to
be a combination of the entire complaint. The next most common type,
at least as far as our published opinions on the subject reflect, is a
complaint 	that 	does 	not 	commit 	the 	mortal 	sin 	of 	re-alleging 	all
preceding counts but is guilty of the venial sin of being replete with
conclusory, vague, and immaterial facts not obviously connected to any
particular cause of action. The third type of shotgun pleading is one that
commits the sin of not separating into a different count each cause of
action or claim for relief. Fourth, and finally, there is the relatively rare
sin of asserting multiple claims against multiple defendants without
specifying which of the defendants are responsible for which acts or
omissions, or which of the defendants the claim is brought against. The
unifying characteristic of all types of shotgun pleadings is that they fail
to one degree or another, and in one way or another, to give the
defendants adequate notice of the claims against them and the grounds
upon which each claim rests.
792 F.3d 1313, 1321-23 (11th Cir. 2015) (footnotes omitted).
II. 	Plaintiff’s Count III
Plaintiff’s Fourteenth Amendment deliberate indifference claim is asserted
against “Kiesha Pettway, Felecia Crawford, Sophia Barnes, Jane Doe (actual name
unknown) and As Yet Unknown Medical Personnel and Jailers at Mobile County
Metro Jail.” (Doc. 31, PageID.304). Reproduced below, this count alleges:
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111. The Plaintiff realleges all the allegations contained in the foregoing
paragraphs and incorporates the same herein by reference.
112. During the time Rone was a pretrial detainee at the Mobile County
Metro Jail, the employees there owed to Robert Rone those rights under the
Fourteenth Amendment to the U.S. Constitution accorded to all U.S. citizens
detained upon a governmental entity’s authority as pretrial detainees, including the
right to receive prompt and adequate medical attention to his serious medical need.
113. Kiesha Pettway, charge nurse; Felecia Crawford, NP; Sophia Barnes,
nurse or detention officer; and/or Jane Doe, as well as other as yet unknown medical
personnel and jail personnel refused to give Rone medicine or even water to relieve
the esophageal spasms he was having while detained. One of these defendants was
a nurse who came to the docket room and spoke with Rone about his condition.
Another was a jailer who told Rone she was not his maid after he begged her for
water to help relieve his spasms.
114. As a result of the Defendants’ conduct alleged in this claim, Robert
Rone suffered the physical injuries and damages described in Paragraph 86 above.
(Doc. 31, PageID.304). Paragraph 86, referenced above, in turn provides:
After his arrest, while being transported to the jail, Rone began having esophageal
spasms that continued at the jail for several hours before he was transported to a
hospital and given medication that stopped the spasms. Since his arrest and
incarceration, the spasms have continued and Rone must take medication in order
to control the spasms. Rone suffered fear, humiliation, and a severe feeling of
helplessness during his arrest and incarceration. Within days of his release from
jail, Rone developed shingles on his head, neck, and chest as a result of the stress
caused by his arrest and incarceration. This was extremely painful, and the blisters
lasted over a month. Rone continues to suffer nerve damage as a result of this
shingles 	outbreak. 	Rone 	suffered 	damage 	to 	his 	personal 	and 	professional
reputation. Rone incurred legal and medical expenses and will incur future medical
expenses due to the acts of the Defendants. Rone suffered extreme mental anguish
and emotional distress due to the acts of the Defendants and still suffers mental
anguish at the time of filing this Complaint.
(Doc. 31, PageID.300). Also relevant is Plaintiff’s explanation of these Defendants in
the “Parties” section of his SAC, wherein he identifies Pettway as a “charge nurse,”
Crawford as a “nurse practitioner” and Barnes as a “nurse or detention officer,” and
asserts each “worke[ed] at [MCMJ] on May 7, 2021 [and] participated in delaying or
denying medical treatment for Robert Rone while knowing he had a serious medical
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need, causing Rone’s injuries as described in Paragraph 86 and is liable for said
injuries.” (Doc. 31, PageID.288-89).
Each Defendant moves to strike or dismiss the allegations in Count III on
shotgun pleading grounds, asserting it “does not give specific allegations regarding
the conduct” of each Defendant, such that they are “unable to determine the claims
against [them] based on the pleadings contained in Count III.” (Doc. 39, PageID.383-
84; Doc. 48, PageID.442-43; Doc. 54, PageID.463-64). Plaintiff’s opposition response
to each motion concedes that “under current legal precedent, Plaintiff’s [SAC] meets
the legal definition of a shotgun pleading because Plaintiff incorporated previous
paragraphs into Count III of the complaint.” (Docs. 44, 53, 55). However, Plaintiff’s
concession that his SAC constitutes the first type of shotgun complaint does not
address the more pressing concern with Count III, which is that is the fourth type of
shotgun complaint. See Weiland, 792 F.3d at 1321-23.
Here, Count III is clear insofar as it asserts a single cause of action for
deliberate 	indifference 	under 	the 	Fourteenth 	Amendment 	against 	Pettway,
Crawford, Barnes, Doe and the fictitious defendants, but the SAC lacks sufficient
detail to determine which Defendant is responsible for which act(s) that allegedly
resulted in said deliberate indifference. For example, Plaintiff’ asserts “one of these
defendants was a nurse who came to the docket room and spoke with Rone about his
condition,” and “[a]nother was a jailer who told Rone she was not his maid after he
begged her for water.” (Doc. 31, PageID.304). However, Plaintiff has not identified
which named Defendant is the “nurse” and which is the “jailer.” As such, the
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Defendants unable to form a responsive pleading because they lack “adequate notice
of the claims against them and the grounds upon which each claim rests.” Weiland,
792 F.3d at 1323.
III. 	Conclusion
Upon consideration, and for the reasons stated herein, the undersigned
RECOMMENDS Defendants’ motions (Docs. 39, 48, 54) be GRANTED to the extent
they seek dismissal of Count III as a shotgun pleading, but that said dismissal be
without prejudice, and Plaintiff be GRANTED leave to resolve the above-noted
deficiencies within a time to be prescribed by the Court.
NOTICE OF RIGHT TO FILE OBJECTIONS
A copy of this report and recommendation shall be served on all parties in the manner
provided by law. Any party who objects to this recommendation or anything in it
must, within 14 days of the date of service of this document, file specific written
objections with the Clerk of this Court. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b);
S.D. Ala. GenLR 72(c). The parties should note that under Eleventh Circuit Rule 3-
1, “[a] party failing to object to a magistrate judge's findings or recommendations
contained in a report and recommendation in accordance with the provisions of 28
U.S.C. § 636(b)(1) waives the right to challenge on appeal the district court's order
based on unobjected-to factual and legal conclusions if the party was informed of the
time period for objecting and the consequences on appeal for failing to object. In the
absence of a proper objection, however, the court may review on appeal for plain error
if necessary in the interests of justice.” In order to be specific, an objection must
identify the specific finding or recommendation to which objection is made, state the
basis for the objection, and specify the place in the Magistrate Judge’s report and
recommendation where the disputed determination is found. An objection that merely
incorporates by reference or refers to the briefing before the Magistrate Judge is not
specific.
DONE this the 9th day of August 2023.
/s/ Katherine P. Nelson
KATHERINE P. NELSON
UNITED STATES MAGISTRATE JUDGE
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