REPORT AND RECOMMENDATION

STEPHEN HYLES, Magistrate Judge.

Pending before the Court is Defendant's motion to dismiss (ECF No. 15) Plaintiff's claims against it. For the reasons explained below, it is recommended that Defendant's motion be granted.

BACKGROUND

I. Factual Background

Plaintiff's claims arise from Defendant New Horizon's alleged failure to treat his mental health needs. Plaintiff alleges that he had an appointment at New Horizons on June 4, 2016, to see his psychiatrist. Compl. 1, ECF No. 1. Plaintiff waited for several hours without being seen before a receptionist informed him that his psychiatrist "was out due to having a death in the family." Id. Plaintiff told the receptionist that he was out of medication and requested to see another practitioner. Id. The receptionist told Plaintiff that he could not be seen that day and told Plaintiff to come back that Friday. Id. On Friday, Plaintiff again traveled to New Horizons and waited for several more hours without seeing a psychiatrist. Id. at 1-2. He once again informed the receptionist that he was out of medication. Id. The receptionist told Plaintiff that no practitioners had openings that day and that it would be "best" for Plaintiff to come back the following week. Compl. 2.

That Friday evening, Plaintiff alleges he "started getting sick." Id. Plaintiff states he suffered from severe anxiety attacks, and "extreme insomnia and paranoia." Id. Plaintiff again attempted to be seen at New Horizons the following Monday, but was unsuccessful. Id. After Plaintiff had been waiting for nearly three hours, a receptionist informed Plaintiff that his psychiatrist "had taken an immediate vacation and someone would call [Plaintiff] when they contacted him." Id. Plaintiff again told the receptionist that he wasn't feeling well but was told he "just needed to hang in there until they could fit [him] into someone else['s] schedule." Id.

That evening, Plaintiff states his "anxiety and paranoia was worse" and that he "thought [he] was going to die from [his] anxiety attacks." Compl. 2. Plaintiff alleges he "began hallucinating that if [he] didn't get medication soon, [he] was going to die." Id. Plaintiff "waited days to hear from New Horizons as they had promised" but never received an appointment. 2nd Suppl. Compl. 2, ECF No. 8. Plaintiff ultimately decided that "the only way to cure [himself] was with . . . street drugs." Compl. 2-3. Because he "had no money to get any drug, [he] took a chance by committing a crime to get some quick cash to self-medicate[.]" Id. at 3. Plaintiff was caught and jailed, and he alleges that "since being in jail New Horizon has refuse[d him] mental health court." Id.

II. Procedural Background

Plaintiff's initial complaint was docketed on January 30, 2018 (ECF No. 1). He submitted his first supplemental complaint on February 22, 2018 (ECF No. 5). On March 26, 2018, the Court granted Plaintiff leave to proceed in forma pauperis but also directed him to further supplement his complaint—which Plaintiff did on April 17, 2018 (ECF No. 8). Order 1, ECF No. 7. Following preliminary review of Plaintiff's supplemented complaint, his mental health treatment claims against Defendant were allowed to proceed for further factual development. Order 1, Aug. 15, 2018, ECF No. 9. Defendant moved to dismiss his claims against it on October 5, 2018, arguing Plaintiff failed to state a claim upon which relief may be granted. Mot. to Dismiss 1, ECF No. 15.

DISCUSSION

Defendant contends that Plaintiff's claims should be dismissed because Plaintiff "can prove no set of facts [to] support [] his claim that Defendant violated Plaintiff's Eighth Amendment rights." Br. in Supp. of Mot. to Dismiss 5, ECF No. 15-1. Specifically, Defendant argues that because Plaintiff was not detained under a conviction or otherwise in Defendant's custody, his claims must be dismissed. Id. at 5-9. Plaintiff responds by arguing that, because he registered for, and was given an appointment at, Defendant's facility while on probation in December 2015, he was in Defendant's custody during the alleged June 2016 incident which is the basis for his complaint. 2nd Resp. to Def.'s Mot. to Dismiss 2-4, ECF No. 21. The Court finds that Plaintiff was not in Defendant's custody during the events complained of, and thus recommends that his claim against it be dismissed.

A complaint fails to state a claim if it does not include "sufficient factual matter, accepted as true, to `state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The factual allegations in a complaint "must be enough to raise a right to relief above the speculative level" and cannot "merely create[] a suspicion [of] a legally cognizable right of action." Twombly, 550 U.S. at 555 (first alteration in original).

The Eighth Amendment's "Cruel and Unusual Punishments Clause circumscribes the criminal process in three ways." Ingraham v. Wright, 430 U.S. 651, 667 (1977). First, it "limits the kinds of punishment that can be imposed on those convicted of crimes." Id. Next, it prohibits "punishment grossly disproportionate to the severity of the crime." Id. And, finally, it "imposes substantive limits on what can be made criminal and punished as such." Id. The Eighth Amendment, generally, does not apply to punishments imposed outside the criminal process, such as deportation. Ingraham v. Wright, 430 U.S. at 667-68. Persons held as pre-trial detainees are protected from cruel and unusual punishment by the Fourteenth Amendment's incorporation of the Eighth. Goebert v. Lee Cty., 510 F.3d 1312, 1326 (11th Cir. 2007) ("Technically, the Fourteenth Amendment Due Process Clause, not the Eighth Amendment prohibition on cruel and unusual punishment, governs pretrial detainees . . . [h]owever, the standards under the Fourteenth Amendment are identical to those under the Eigth.").

However, those protections do not extend beyond those in a custodial relationship with the state. DeShaney v. Winnebago Cty. Dep't of Soc. Servs., 489 U.S. 189, 200 (1989) ("[I]t is the State's affirmative act of restraining the individual's freedom [] through incarceration, institutionalization, or other similar restraint of personal liberty which is the deprivation of liberty triggering the protections of the Due Process Clause[.]"). The Eleventh Circuit has "been explicit in stating that [a claim of] deliberate indifference is insufficient to constitute a due-process violation in a non-custodial setting[.]" Nix v. Franklin Cty. Sch. Dist., 311 F.3d 1373, 1377 (11th Cir. 2002).

Here, Plaintiff has made it clear that at the time of the alleged violation, he was not in Defendant's custody nor was he being punished by Defendant in connection to a criminal conviction, or held as a pretrial detainee. In response to the Defendant's motion, he notes that he was "on probation in 2015" and was not again arrested until "days" after the incident alleged in this suit. 2nd Resp. to Mot. to Dismiss 2, ECF No. 21; Resp. to Mot. to Dismiss 3, ECF No. 19. In his first supplemental complaint, Plaintiff notes that he was last confined at Macon State Prison in 2010. 1st Suppl. Compl. 4, ECF No. 5. Although Plaintiff implies that visiting Defendant for medical care was a requirement of his probation, the relationship between Plaintiff and Defendant did not arise from incarceration or involuntary confinement such that Plaintiff was deprived of his individual liberty and unable to care for himself. See White v. Lemacks, 183 F.3d 1253, 1257 (11th Cir. 1999). Accordingly, Defendant's motion to dismiss his claims against it should be granted.

CONCLUSION

For the reasons explained above, it is recommended that Defendant's motion to dismiss (ECF No. 15) be granted. Pursuant to 28 U.S.C. § 636(b)(1), the parties may serve and file written objections to this Recommendation within fourteen (14) days after being served with a copy hereof. The district judge shall make a de novo determination of those portions of the Recommendation to which objection is made. All other portions of the Recommendation may be reviewed for clear error.

The parties are hereby notified that, pursuant to 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."

SO RECOMMENDED.