              Case: 18-13757     Date Filed: 03/04/2020   Page: 1 of 10



                                                              [DO NOT PUBLISH]

                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                           ________________________

                                 No. 18-13757
                             Non-Argument Calendar
                           ________________________

                       D.C. Docket No. 1:18-cv-01036-MHC



ROBERT RALPH DIPIETRO,

                                                                Plaintiff-Appellant,

                                      versus

MEDICAL STAFF AT FULTON COUNTY JAIL,
Nurses, Doctors, Medical Supervisors,
CORIZON HEALTH SERVICES,
Contractor; Employees,
GEORGE HERRON,
Director of Medical Services, Fulton County Jail,
THEODORE JACKSON,
Sheriff, Fulton County; in their individual capacities,
FULTON COUNTY, et al.,

                                                             Defendants-Appellees.

                           ________________________

                    Appeal from the United States District Court
                       for the Northern District of Georgia
                          ________________________

                                  (March 4, 2020)
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Before WILLIAM PRYOR, JILL PRYOR, and GRANT, Circuit Judges.

PER CURIAM:

      Robert Ralph DiPietro, a Georgia prisoner proceeding pro se, appeals the

district court’s dismissal without prejudice of his civil rights complaint against

Fulton County, Georgia; George Herron, Director of Medical Services at Fulton

County Jail; Theodore Jackson, Fulton County Sheriff; Corizon Health Services, a

contractor that provided medical services to inmates at Fulton County Jail; and

“medical staff i.e. nurses, Doctors, medical supervisors, [and] employees of

Corizon Health Services, at Fulton County Jail.” We affirm.

                                          I.

      DiPietro filed his complaint pursuant to 42 U.S.C. § 1983, alleging that

unspecified medical personnel at Fulton County Jail violated his constitutional

rights during his detention there in March 2016 by failing to provide treatment for

his Xanax withdrawal and his anxiety and depression. He also alleged that, when

he told “them” that he was suicidal, he was placed in an observation cell for 15

hours without a bed or blanket, which he alleged was torture. He requested

$100,000 in compensatory damages and $50,000 in punitive damages.

      A magistrate judge screened DiPietro’s complaint under 28 U.S.C. § 1915A

and issued a report recommending that the district court dismiss DiPietro’s

complaint for failure to state a claim upon which relief could be granted. The


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magistrate judge observed that the named defendants (Fulton County, Medical

Director Herron, Sheriff Jackson, and Corizon) could not be held vicariously liable

under § 1983 for the actions of their employees or subordinates, and DiPietro had

failed to plausibly allege that they had a policy or custom that caused the alleged

mistreatment. The magistrate judge also pointed out that DiPietro had failed

identify any specific individuals who had acted with deliberate indifference to his

serious medical needs.

      On June 4, 2018, DiPietro responded to the magistrate judge’s report by

requesting an additional 90 days to identify the proper personnel and seeking leave

to amend his complaint to allege that the named defendants had a policy or custom

that resulted in deliberate indifference to his serious medical needs. In his motion

to amend, DiPietro alleged that the careless attitude and complaints of

understaffing by nurses, counselors, and jail staff showed that there was a “deeply

entrenched policy or custom” of inadequate medical care at the jail, and that the

Sheriff and others were aware of the substandard treatment and encouraged it. He

further alleged that when he complained to nurses at the jail, they told him that the

doctors and the doctors’ supervisors were aware of his complaints and falsely

promised him that he would see a doctor soon.

      The district court granted DiPietro’s motions in part, giving him until

August 8, 2018 to file an amended complaint. The court warned DiPietro that the


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failure to file an amended complaint within the specified time would result in the

adoption of the magistrate judge’s report and the dismissal of the case.

      DiPietro did not file an amended complaint; instead, he filed motions for the

appointment of counsel and for additional time to obtain his medical records from

the jail and identify treating personnel. On August 14, 2018, the district court

denied DiPietro’s motions, adopted the magistrate judge’s report and

recommendation, and dismissed DiPietro’s complaint without prejudice. This

appeal followed.

                                          II.

      Section 1915A of the Prison Litigation Reform Act requires judicial

screening of any civil complaint filed by a prisoner who seeks redress from a

governmental entity or officer or employee of a governmental entity. 28 U.S.C.

§ 1915A(a). Upon review, the court is to identify cognizable claims, if any, or

dismiss the complaint or portions thereof that are frivolous, malicious, fail to state

a claim upon which relief may be granted, or seek monetary relief from a defendant

who is immune from such relief. Id. § 1915A(b). We review a district court’s

dismissal of a complaint under § 1915A for failure to state a claim de novo,

applying the same standards as for dismissals under 28 U.S.C. § 1915(e)(2)(B)(ii)

and Federal Rule of Civil Procedure 12(b)(6). See Leal v. Georgia Dep’t of Corr.,

254 F.3d 1276, 1279 (11th Cir. 2001). We view the complaint in the light most


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favorable to the plaintiff and accept all of the plaintiff’s well-pleaded facts as true.

See Dimanche v. Brown, 783 F.3d 1204, 1214 (11th Cir. 2015). “Pro se pleadings

are liberally construed.” Id.

      To avoid dismissal of his complaint for failure to state a claim, a plaintiff

must allege facts stating “a claim to relief that is plausible on its face.” Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009) (citation omitted). A plausible claim is one that

allows a court to draw reasonable inferences that the defendant is liable for the

claim. Id.

      To state a claim for deliberate indifference to a serious medical need in

violation of the Eighth or Fourteenth Amendment, a prisoner must allege facts

making it plausible that (1) he had a serious medical need; (2) the defendants acted

with deliberate indifference to that need; and (3) the defendants’ indifference

caused his injury. Melton v. Abston, 841 F.3d 1207, 1220 (11th Cir. 2016).

“Because vicarious liability is inapplicable to Bivens and § 1983 suits, a plaintiff

must plead that each Government-official defendant, through the official’s own

individual actions, has violated the Constitution.” Iqbal, 556 U.S. at 676. And

because fictitious-party pleading generally is not permitted in federal court, the

plaintiff must specifically identify the parties he is suing, if not by name then by

providing a description of each individual that is sufficiently clear and detailed to




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permit service of process. See Richardson v. Johnson, 598 F.3d 734, 738 (11th

Cir. 2010); Dean v. Barber, 951 F.2d 1210, 1215–16 (11th Cir. 1992).

                                          A.

      DiPietro’s complaint did not allege any specific action by any of the named

defendants. Although he did not say so in his complaint, it appears that the named

defendants were sued on the basis of their presumed supervisory authority over the

unnamed medical personnel at Fulton County Jail who DiPietro alleges violated his

constitutional rights. DiPietro cannot rely on such vicarious liability to state a

claim under § 1983.

      To hold an employer or supervisor liable for a constitutional violation, “a

plaintiff must show that the supervisor either directly participated in the

unconstitutional conduct or that a causal connection exists between the

supervisor’s actions and the alleged constitutional violation.” Keith v. DeKalb

Cty., 749 F.3d 1034, 1047–48 (11th Cir. 2014). This connection may be

established by showing that a defendant’s custom or policy caused the

constitutional violation, or when facts support an inference that the defendant

directed his subordinates to act unlawfully or knew that the subordinates would act

unlawfully and failed to stop them from doing so. Id. at 1048.

      Similarly, to state a claim under § 1983 against a local governing body for

the unconstitutional actions of its employees or agents, a plaintiff must allege facts


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showing that the municipality had an official policy or custom that constituted

deliberate indifference to his constitutional rights, and that the policy or custom

caused the constitutional violation alleged in his complaint. See Monell v. Dep’t of

Soc. Servs. of City of New York, 436 U.S. 658, 694 (1978); McDowell v. Brown,

392 F.3d 1283, 1289 (11th Cir. 2004). These standards also apply when a private

entity like Corizon contracts with a county to provide prison medical services,

because the entity is performing “a function traditionally within the exclusive

prerogative of the state and becomes the functional equivalent of the municipality

under section 1983.” Craig v. Floyd Cty., 643 F.3d 1306, 1310 (11th Cir. 2011)

(citation and quotation marks omitted).

      DiPietro’s complaint did not state a claim under § 1983 against any of the

named defendants. He did not allege any deliberate action or omission by any of

them; nor did he allege that the violation of his constitutional rights was caused by

any official policy or custom of the named defendants. Even if we were to

construe his motion to amend as a proposed amended complaint, his speculative

allegations in the motion that the Sheriff and unnamed doctors and supervisors

must have known and approved of the alleged substandard medical treatment do

not state a plausible claim for relief against the named defendants. As we have

said before, “conclusory allegations, unwarranted deductions of facts or legal




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conclusions masquerading as facts will not prevent dismissal.” Oxford Asset

Mgmt., Ltd. v. Jaharis, 297 F.3d 1182, 1188 (11th Cir. 2002).

                                          B.

      Turning to the unnamed “medical staff” defendants, DiPietro does not

contest the district court’s finding that his complaint failed to adequately identify

the medical staff who allegedly refused to treat him. See Richardson, 598 F.3d at

738 (description of defendant as a guard at the correctional facility where he was

housed was insufficient to identify the defendant from among the many guards at

the facility). Instead, DiPietro argues that the district court should have granted his

motion for an extension of the deadline to amend his complaint so that he could

obtain his medical records and get the names of the treating personnel. DiPietro

points out that although the district court dismissed his complaint without prejudice

and he has since discovered the names of the medical-staff defendants, a new

§ 1983 action naming those defendants would be barred by the applicable statute of

limitations. See Lovett v. Ray, 327 F.3d 1181, 1182 (11th Cir. 2003) (Georgia’s

two-year statute of limitations applies to § 1983 claims brought in federal court in

Georgia).

      We review for abuse of discretion a district court’s denial of a motion for

extension of time. See Young v. City of Palm Bay, 358 F.3d 859, 863 (11th Cir.

2004). Under this standard, the “district court has a range of options; and so long


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as the district court does not commit a clear error in judgment, we will affirm the

district court’s decision.” Id.

      The district court did not abuse its discretion in denying DiPietro’s motion

for an additional 90 days to identify the medical providers who allegedly violated

his constitutional rights. DiPietro had ample opportunity to obtain his medical

records and identify the proper defendants during the nearly two-and-a-half years

between the events he described and the district court’s August 2018 deadline to

amend his complaint—including more than 60 days after the magistrate judge

pointed out the deficiencies in his complaint. Even if DiPietro was not able to

identify the relevant medical providers by name, he could have filed an amended

complaint within the time provided describing the unnamed defendants in

sufficient detail to permit service of process. See Richardson, 598 F.3d at 738.

The district court was not required to give DiPietro unlimited time to investigate

his claims.

      We also note that, by the time the district court dismissed DiPietro’s

complaint, both the statute of limitations and the time provided for service of

process on the defendants had expired. Accordingly, even if the district court had

given DiPietro more time to identify the medical staff defendants and amend his

complaint, his claims against the newly identified defendants would have been

barred by the statute of limitations unless he could show, among other things, that


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they had received notice of his lawsuit and knew that they were the intended

defendants within the time allowed under Rule 4(m) for service of the summons

and complaint. See Fed. R. Civ. P. 15(c)(1)(C)(i)–(ii). Given that DiPietro was no

longer housed at Fulton County Jail and was unable to describe the defendants with

any specificity even after being directed to do so, it seems unlikely that he

provided the requisite notice. Cf. Cockrell v. Sparks, 510 F.3d 1307, 1310 (11th

Cir. 2007) (“Leave to amend a complaint is futile when the complaint as amended

would still be properly dismissed or be immediately subject to summary judgment

for the defendant.”).

                                         III.

      For the foregoing reasons, the district court did not abuse its discretion in

denying DiPietro’s motion for additional time to amend his complaint and did not

err in dismissing the complaint without prejudice for failure to state a claim. We

therefore affirm.

      AFFIRMED.




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