Peacock v. Tucker et al

Filing 47

OPINION AND ORDER denying in part and granting in part 32 Motion to dismiss case; 41 Motion to dismiss. The motions are denied to the extent they seek dismissal for abuse of judicial process; granted as to Tucker; granted as to Tate; and denied as to Cabreo-Muniz and Strodahl. The Clerk shall enter judgment dismissing the Complaint without prejudice as to Tucker and Tate. See Opinion and Order for details. Signed by Judge John E. Steele on 5/22/2013. (RKR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
JAMES C. PEACOCK,
Plaintiff,
vs.

Case No.

2:12-cv-63-FtM-29DNF

KENNETH S. TUCKER, J. TATE, NICOLAS
O. CABREO-MUNIZ, and D. STRODAHL,
R.N.,
Defendants.
___________________________________
OPINION AND ORDER
This matter comes before the Court upon Defendant Tucker’s
Motion to Dismiss (Doc. #32, Tucker Motion) filed December 10,
2012, and Defendants Cabrero-Muniz, Strohahl and Tate’s Motion to
Dismiss

(Doc.

#41,

Cabrero

Motion)

filed

February

1,

2013.

Plaintiff filed a response in opposition to the Motions (Doc. #42,
Response).

This matter is ripe for review.
I.

Plaintiff, who is incarcerated within the Florida Department
of Corrections, initiated this action by delivering a pro se civil
rights complaint form pursuant to 42 U.S.C. § 1983 (Doc. #1,
Complaint) to correctional officials for mailing on February 1,
2012.1

The Complaint alleges Eighth Amendment claims against

1

Although received and filed by the Court on February 6, 2012,
pursuant to the “mailbox rule” the Court deems the Complaint filed
when delivered to correctional officials for mailing. See Garvey
v. Vaughn, 993 F.2d 776, 783 (11th Cir. 1993)(extending the holding
of Houston v. Lack, 487 U.S. 266 (1988) to pro se prisoners filing
(continued...)

Defendants Cabreo-Muniz, Tucker and Tate and pendent state law
claims for negligence against Defendant Strodahl in connection with
the medical care rendered to Plaintiff at DeSoto Correctional
Institution. Complaint at 6-7. More specifically, Plaintiff avers
that Defendants were deliberately indifferent and negligent in not
providing

him with

fractured finger.

adequate
Id.

and

proper

medical care

for

his

Defendants seek dismissal of Plaintiff’s

Complaint on the basis that: (1) Plaintiff “deceptively stated that
he had no prior litigation relating to imprisonment or to the
conditions thereof” and abused the judicial process; and (2) the
Complaint fails to state an Eighth Amendment claim upon which
relief can be granted.
8.

Tucker Motion at 3, 7; Cabreo Motion at 4,

This matter is ripe for review.
II.
A. Abuse of Judicial Process
Defendants seek dismissal of the Complaint on the basis that

Plaintiff abused the judicial process by failing to identify the
following actions in his Complaint, which he had filed prior to
filing the instant Complaint: James Peacock v. Ragans, Case No.
0:91-cv-07080-NCR, Southern District of Florida, filed on December
16,

1991;

and

James

Peacock

v.

Broward

County,

Case

No.

0:91-cv-07081-JWK, Southern District of Florida, filed on December

1

(...continued)

section 1983 complaints). As noted infra, Plaintiff signed his
Complaint on January 25, 2012.
-2-

10, 1991.

Additionally, Defendants point out that Peacock v.

Broward County was dismissed prior to service, another of the
disclosure

requirements

of

the

Civil

Rights

Complaint

form.

Plaintiff denies that he previously filed either case. Reply at 3.
“A

finding

that

the

plaintiff

engaged

in

bad

faith

litigiousness or manipulative tactics warrants dismissal.” Attwood
v.

Singletary,

omitted).

105

F.3d

610,

613

(11th

Cir.

1997)(citations

Additionally, the Court may impose sanctions, including

dismissal of an action, “if a party knowingly files a pleading that
contains false contentions.” Redmond v. Lake County Sheriff’s
Office, 414 F. App’x 221, 225 (11th Cir. 2011)(citing Fed. R. Civ.
P. 11(c)); see also Rivera v. Allin, 144 F.3d 719, 731 (11th Cir.
1998)(abrogated on other grounds by Jones v. Bock, 549 U.S. 199
(2007))(affirming dismissal of action where litigant lied under
penalty of perjury about the existence of other lawsuit as abuse of
judicial process, finding that “[a]lthough the district court may
not have uttered the words ‘frivolous’ or ‘malicious,’ dismissal
for abuse of judicial process [was] precisely the type of strike
that Congress envisioned when drafting section 1915(g).”).
also

Hood

v.

Tomkins,

197

F.

App’x

818,

819

(11th

See
Cir.

2006)(affirming dismissal without prejudice by district court as
Rule 11 sanction for plaintiff’s failure to disclose litigation
history).

-3-

Here, Plaintiff disputes that he filed either action or made
any misrepresentations in his Complaint.

Initially, the Court

notes that Defendants do not submit any documentation that the
“James

Peacock”

Plaintiff.

who

filed

the

two

previous

actions

is

the

The Court takes judicial notice that, according to the

Florida Department of Corrections’ Inmate Population Information
Detail, Plaintiff was not incarcerated in the State of Florida in
1991,

the

year

both

of

these

actions

were

filed.

See

Http://www.dc.state.fl.us/activeinmates/detail(indicating the dates
of Plaintiff’s incarceration as 02/15/94-08/02/94; 10/19/95-11/1/96; 05/01/97-05/15/98; and, 08/15/02-present). Further, although
Plaintiff was apparently arrested on December 18, 1991, his arrest
was in Hillsborough County, which is within the venue of the Middle
District, not the Southern District.
The

Court

does

not

find

his

See id.

that

prior

Plaintiff

litigation

made

any

history

in

false

statements

concerning

his

Complaint.

Consequently, the Court denies Defendant Tucker and

Cabreo’s Motions to the extent they seek dismissal of the Complaint
due to Plaintiff’s abuse of the judicial process.
B. Failure to State a Claim
Defendants contend that the Complaint fails to state an Eighth
Amendment Claim for deliberate indifference to his serious medical

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condition.

Defendants seek dismissal of the Complaint pursuant to

28 U.S.C. § 1915(e)(2)(B)(1) and (ii).2
(1) Stricken Documents
At the outset, both Defendants Tucker and Cabrero’s Motions
refer the Court to the exhibits previously filed by Plaintiff and
stricken by the Court.

See Tucker Motion at Cabrero Motion at 1.

In support, Defendants refer the Court to various caselaw.
generally id.

See

Without belaboring the point, the Court finds that

the caselaw proffered by Defendants is not relevant to the issue
before the Court: whether the Court may consider documents not
attached to the complaint at the motion to dismiss stage.3
In deciding a Rule 12(b)(6) motion to dismiss, the Court must
accept all factual allegations in a complaint as true and take them
in the light most favorable to plaintiff.
536 U.S. 403, 406 (2002).

Christopher v. Harbury,

The Court must limit its consideration

2

Defendants seek dismissal under § 1915(e) which applies the
same standard as Federal Rule 12(b)(6). In considering a motion to
dismiss, the Court assumes that all of the allegations in the
complaint are true and construes all of the facts in favor of the
plaintiff. Randall v. Scott, 610 F.3d 701, 705 (11th Cir. 2010).
In order to survive a motion to dismiss a complaint “must contain
sufficient factual matter, accepted as true, to ‘state a claim for
relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S.
662, 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)).
A claim is “facially
plausible” when it is supported with facts that “allow[ ] the court
to draw the reasonable inference that the defendant is liable for
the misconduct alleged.” Id.
3

The documents in the cases cited to by Defendants were
considered by the courts at the summary judgment stage of the
proceedings.
-5-

to well-pleaded factual allegations, documents attached to the
complaint or referenced in the complaint, and matters judicially
noticed.

La Grasta v. First Union Sec., Inc., 358 F.3d 840, 845

(11th Cir. 2004); see also Fed. R. Civ. P. 10(c); Solis–Ramirez v.
U.S. Dep’t of Justice, 758 F.2d 1426, 1430 (11th Cir. 1985);
Shibata v. Lim, 133 F. Supp. 2d 1311, 1315 (M.D. Fla. 2000).

A

court also may consider documents attached to a motion to dismiss
without converting the motion into one for summary judgment if the
attached

documents

are

central

to

undisputed in terms of authenticity.

the

plaintiff's

claim

and

See Horsley v. Feldt, 304

F.3d 1125, 1134 (11th Cir. 2002).
The Court has reviewed the documents previously stricken and
finds the documents are referred to in the Complaint and are
otherwise central to Plaintiff’s claims.
the comment by the Court in

Further, the Court finds

Malin v. IVAX Corp., relevant in the

instant action:
[Because] the reasoning behind converting a Rule 12(b)(6)
motion to dismiss into a motion for summary judgment is
to require that the nonmovant receive notice of the
movant's submissions in order to address their relevance,
. . . . where those submissions are publicly filed, and
indeed where the plaintiff has relied on them in framing
the complaint, the necessity of notice is largely
dissipated.
Malin, 17 F. Supp. 2d 1345, 1351 (S.D. Fla. 1998).

Here, the

subject exhibits were originally submitted by Plaintiff in support
of the factual allegations in his Complaint.

The exhibits include

copies of the grievances Plaintiff submitted in connection with his
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claim and the Department of Corrections’ responses thereto, as well
as his inmate medical records.

The Court notes that, prior to the

Supreme Court’s ruling in Jones v. Bock, 549 U.S. 199, 216 (2007),
plaintiff-prisoners were required to affirmatively plead exhaustion
and the complaint form used in this Court required prisoners to
attach documents to their complaints to demonstrate that they had
exhausted their administrative remedies.

Further, neither party

objects to the authenticity of these documents.

Consequently, the

Court will consider these previously filed exhibits and deem the
exhibits incorporated by reference in Defendants’ Motions.
(2)

General Legal Principles

Plaintiff files this action pursuant to 42 U.S.C. § 1983.
Title 42 U.S.C. § 1983 imposes liability on anyone who, under color
of state law, deprives a person “of any rights, privileges, or
immunities secured by the Constitution and laws.” To state a claim
under 42 U.S.C. § 1983, Plaintiff must allege: (1) that the
defendant deprived him of a right secured under the United States
Constitution or federal law, and (2) such deprivation occurred
under color of state law. Arrington v. Cobb County, 139 F.3d 865,
872 (11th Cir. 1998); U.S. Steel, LLC v. Tieco, Inc., 261 F.3d
1275, 1288 (11th Cir. 2001).
and

establish

an

In addition, Plaintiff must allege

affirmative

causal

connection

between

the

defendant’s conduct and the constitutional deprivation. Marsh, 268
F.3d at 1059; Swint v. City of Wadley, 51 F.3d 988 (11th Cir.

-7-

1995); Tittle v. Jefferson County Comm’n, 10 F.3d 1535, 1541 n.1
(11th Cir. 1994).
In the prison context, “[t]he Eighth Amendment can give rise
to claims challenging specific conditions of confinement, the
excessive use of force, and the deliberate indifference to a
prisoner’s serious medical needs.” Thomas v. Bryant, 614 F.3d 1288,
1303 (11th Cir. 2010)(citations omitted).

In order to state a

claim for a violation under the Eighth Amendment, a plaintiff must
allege

“acts

or

omissions

sufficiently

harmful

to

evidence

deliberate indifference to serious medical needs.” Estelle v.
Gamble, 429 U.S. 97, 106 (1976). This showing requires a plaintiff
to satisfy both an objective and a subjective inquiry. Farrow v.
West, 320 F.3d 1235, 1243 (11th Cir. 2003)(citing Taylor v. Adams,
221 F.3d 1254, 1257 (11th Cir. 2000)).
A plaintiff must first show that he had an “objectively
serious medical need.”

Id.

A serious medical need is “one that

has been diagnosed by a physician as mandating treatment or one
that is so obvious that even a lay person would easily recognize
the necessity for a doctor’s attention.”

Id. (citations omitted).

“The medical need must be one that, if left unattended, pos[es] a
substantial risk of serious harm.”

Id.

Second, a plaintiff must

establish that a defendant acted with “deliberate indifference” by
showing both a: (1) subjective knowledge of a risk of serious harm
(i.e., both awareness of facts from which the inference could be

-8-

drawn that a substantial risk of serious harm exists and the actual
drawing of the inference); and (2) disregard of that risk; and (3)
conduct that is more than gross negligence.
F.3d 1265, 1272 (11th Cir. 2005).

Bozeman v. Orum, 422

The “deliberate indifference”

standard may be met in instances where a prisoner is subjected to
repeated examples of delayed, denied, or grossly incompetent or
inadequate medical care; prison personnel fail to respond to a
known medical problem; or prison doctors take the easier and less
efficacious route in treating an inmate. See, e.g., Waldrop v.
Evans, 871 F.2d 1030, 1033 (11th Cir. 1989).
“Whether a particular defendant has subjective knowledge of
the risk of serious harm is a question of fact ‘subject to
demonstration

in

the

usual

ways,

including

inference

from

circumstantial evidence, and a factfinder may conclude that a
prison official knew of a substantial risk from the very fact that
the risk was obvious.’”

Goebert v. Lee County, 510 F.3d 1312, 1327

(11th Cir. 2007)(quoting Farmer v. Brennan, 511 U.S. 825, 842
(1994)). However, “imputed or collective knowledge cannot serve as
the basis for a claim of deliberate indifference.

Each individual

Defendant must be judged separately and on the basis of what that
person knows.”

Burnette v. Taylor, 533 F.3d 1325, 1331 (11th Cir.

2008)(citations omitted).

“A difference in medical opinion does

not constitute deliberate indifference so long as the treatment is
minimally adequate.”

Whitehead v. Burnside, 403 F. App'x 401, 403

-9-

(11th Cir. 2010)(citing Harris v. Thigpen, 941 F.2d 1495, 1504-05
(11th Cir. 1991)).

A doctor's decision about the type of medicine

that should be prescribed is generally “a medical judgment” that is
“an inappropriate basis for imposing liability under section 1983.”
Adams v. Poag, 61 F.3d 1537, 1547 (11th Cir. 1995); see also
Waldrop v. Evans, 871 F.2d 1030, 1033 (11th Cir. 1989)(stating that
“[m]ere

medical

malpractice,

deliberate indifference.
opinion.”).

however,

does

not

constitute

Nor does a simple difference in medical

However, a claim that an inmate received medical care

that was “so cursory as to amount to no treatment at all” does
state an Eighth Amendment claim. McElligott v. Foley, 182 F.3d
1248, 1255 (11th Cir. 1999)(internal quotations omitted). Further,
“[a] complete denial of readily available treatment for a serious
medical condition constitutes deliberate indifference.” Bingham v.
Thomas, 654 F.3d 1171, 1176 (11th Cir. 2011)(citations omitted).
When a prison official eventually provides medical care, the
prison official’s act of delaying the medical care for a serious
medical need may constitute an act of deliberate indifference. See
McElligott v. Foley, 182 F.3d 1248, 1255 (11th Cir. 1999); Harris
v. Coweta County, 21 F.3d 388, 393-394 (11th Cir. 1994); Brown v.
Hughes, 894 F.2d 1533, 1537-39 (11th Cir. 1990).

In determining

whether the length of the delay violates the constitution, relevant
factors for the Court to consider include the nature of the medical
need and the reason for the delay.

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McElligott, 182 F.3d at 1255.

The Court should consider whether the delay in providing treatment
worsened the plaintiff’s medical condition, and as such “[a]n
inmate who complains that delay in medical treatment [rises] to a
constitutional violation must place verifying medical evidence in
the record to establish the detrimental effect of the delay.” Hill
v. Dekalb Regional Youth Detention Center, 40 F.3d 1176, 1187 (11th
Cir. 1994), abrogated on other grounds, Hope v. Pelzar, 536 U.S.
730 (2002).
(3) Complaint Allegations
According to the Complaint, on November 17, 2011, Plaintiff
was injured after falling on a wet floor and sought medical
attention.

Complaint at 3.

That same day, Plaintiff was seen by

Defendant D. Strodahl, R.N. and “was given a splint and a no use of
right hand pass” effective November 17, 2011 through November 22,
2011.

Id.

Plaintiff returned to medical when the pass expired,

and Defendant Strodahl issues a new pass to Plaintiff effective
November 22, 2011 through November 29, 2011.

Id.

On November 29,

2011, Plaintiff returned to the medical department and was referred
by Defendant Strodahl to Mrs. Blakenship, an “Advanced Nurse
Practioner.”

Id. at 4.

That same day, Plaintiff saw Mrs.

Blakenship, who stated “that he should have been scheduled to see
her from the beginning.”

Id.

“At this point [an] infection had

set in” and Mrs. Blakenship prescribed Plaintiff a 10 day supply of

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“Doxycycline Hyclate and Sulfameth.”
scheduled Plaintiff for an x-ray.

Id.

Mrs. Blakenship also

Id.

On December 2, 2011, Plaintiff had x-rays taken and was sent
to the “Hand Center of Florida in Charlotte County” where he was
told

his

index

finger

was

broken

and

would

require

surgery

“immediately,” which would need to be scheduled by the Chief
Medical Officer at his institution.

Id.

Plaintiff was also

provided with a “proper splint” by medical staff there and was told
he had been given an “incorrect splint for [his] injury.”
5.
had

Id. at

On December 9, 2011, Plaintiff advised Defendant Tate that he
not

been

scheduled

for

surgery

and

had

not

been

issued

“effective pain medication for his pain in his right hand.”

Id.

Defendant Tate, after consulting with Defendant Cabreo-Muniz, told
Plaintiff he was “receiving appropriate medical care for his
problem

and

appropriate

medical

restrictions have been granted.”

passes
Id.

and

work

assignment

On December 27, 2011,

Plaintiff “brought this matter to the attention of Defendant
Tucker.”

Id.

Plaintiff claims that, as of the date that he signed

his Complaint (January 25, 2012), he still had not been provided
with the recommended surgery.

Id.

Defendants point out that, as

evidenced by the exhibits previously filed by Plaintiff, Plaintiff
underwent surgery for his hand on January 26, 2012.

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Tucker Motion

at 2, ¶5 and Cabreo Motion at 2, ¶5 (citing to Doc. #20-2, p.5).4
Plaintiff does not dispute Defendants’ allegation in his Response.
See generally Response.
As relief, Plaintiff seeks a declaratory judgment declaring
Defendants’ acts were unconstitutional; various forms of injunctive
relief, including an order directing Defendants to arrange surgery
for Plaintiff; and monetary damages.

Id. at 7-9.

4

On September 26, 2012, Plaintiff submitted “Exhibits in
Support of V. Statement of Facts.” Doc. #20, Exhibits A-E. The
Court struck the exhibits as improperly filed and directed
Plaintiff to file an amended complaint if he wished to attach the
exhibits to his Complaint.
See September 28, 2012 Order (Doc.
#22). In particular, Plaintiff requested that the documents be
considered a part of his earlier filed Complaint and the Court
advised Plaintiff that he would be required to submit an Amended
Complaint as it was not the Court’s responsibility to compile
pleadings on behalf of a party.
Plaintiff did not submit an
Amended Complaint. Nonetheless, for the reasons set forth infra,
the Court will consider the exhibits in ruling on the Motions sub
judice.
In support of their factual allegation that Plaintiff was
provided with surgery, Defendants refer the Court to Doc. #20-2 at
5. The referenced document does not indicate that Plaintiff had
surgery.
Instead, the referenced document is an excerpt from
Plaintiff’s “Chronological Record of Health Care” which contains an
entry dated December 18, 2011. According to the entry, an x-ray
taken on December 2, 2011 revealed a non-displaced comminuted
fracture of Plaintiff’s third finger on his right hand. The entry
further notes that Plaintiff was complaining of pain. Further, the
entry reflects that the orthopedic surgeon recommended surgery
“ASAP.” Defendant Cabreo-Muniz’ response to Plaintiff’s January
20, 2012 inmate request states “You had surgery today.” Doc. #20-3
at 5. The response is stamped as received on January 23, 2012, but
Defendant Cabreo-Muniz signed the response with a date of “January
26, 2012.” Consequently, it appears that the date of Plaintiff’s
surgery was January 26, 2012.
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III.
Here,
alleged

a

construing
serious

fractured finger.

Peacock’s

medical

Complaint

condition

in

liberally,
connection

Peacock
with

his

See Benson v. Gordon County, Ga., 479 F. App’x

315, 318 (11th Cir. 2012)(finding compression fracture resulting in
back pain constituted objective serious medical condition); Davis
v. Ayers, Case No. 2012 WL 7149470, * 5 (M.D. Ga. 2012)(finding
fractured jaw qualifies as serious medical need).

Plaintiff was

examined by Defendant Strodahl on two occasions, who examined and
splinted Plaintiff’s finger, gave him no-work passes, and, after
two weeks, referred him to Ms. Blakenship.

On December 2, 2011,

Ms. Blakenship ordered an x-ray on Plaintiff’s finger and referred
him to an outside hand specialist, who determined that Plaintiff’s
finger

required

“immediate”

surgery.

Plaintiff’s

surgery

apparently took place on January 26, 2012.
A.

Defendants Strodahl and Cabreo-Muniz

Defendant
Institution.

Strodahl

is

a

Complaint at 3.

individual capacity.

nurse

at

DeSoto

Correctional

Defendant Strodahl is sued in her

Id. at 2.

Defendant Cabreo’s Motion seeks

dismissal of Plaintiff’s Eighth Amendment claim against Defendant
Strodahl.

Cabreo Motion at 10.

The Court liberally construes the

Complaint as alleging only a pendent state law claim for negligence

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against Defendant Strodahl.

Id. at 7.5

Defendant Cabreo’s Motion

does not address Plaintiff’s pendent state law negligence claim.
Consequently, the Court will not evaluate whether the Complaint
adequately states a claim for negligence under Florida law against
Defendant Strodahl.
Nonetheless, to the extent that the Complaint alleges an
Eighth Amendment claim against Defendant Strodahl, Plaintiff’s
Eighth Amendment claim fails.

Here the Complaint alleges that

Defendant Strodahl examined and splinted Plaintiff’s finger, and,
after two-weeks, referred Plaintiff to Defendant Blakenship. While
the medical care rendered by Defendant Strodahl may constitute
negligence, neither negligence nor gross negligence constitutes
deliberate indifference.

Thomas v. Bryant, 614 F.3d 1288, 1312

(11th Cir. 2010). Consequently, only Plaintiff’s pendent State law
claims for negligence may proceed against Defendant Strodahl.
Defendant Cabreo-Muniz is the Chief Health Officer at DeSoto
Correctional Institution.

Id. at 2.

Plaintiff sues Defendant

Cabreo-Muniz in his individual capacity.

Id.

According to the

Complaint, Plaintiff had an x-ray on December 2, 2010, which
revealed a fracture to his figure, and he was seen by an outside
specialist

who

recommended

that

5

Plaintiff’s

finger

required

Plaintiff’s Complaint contains two counts: Count I, entitled
“Denial of Adequate Medical Care and Deliberate Indifference to a
Serious Medical Condition” against Defendants Tucker, Tate and
Cabreo-Muniz, Complaint at 6, and Count II, entitled, “Negligence”
against Defendant Strodahl. Id. at 7.
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“immediate” surgery.

Defendant Cabreo-Muniz as the Chief Health

Officer was responsible for scheduling Plaintiff’s surgery.

The

Consultant’s Report, dated December 2, 2011 (Doc. #20-3 at 3),
contains the following notation:
Surgery- closed pinning vs ORIF Right middle finger prox.
phalanx fracture, should be arranged asap. Weds. 12/7
(CRMC) or Thurs. 12/8 (MASC) Preferred or Fri. 12/9(MASC)
or Mon. 12/12-Latest.
Id. (underline in original).

Throughout December and January,

Plaintiff made repeated requests to have the surgery performed on
his finger, advised he was in pain, and requested pain medication.
In response, Defendant Cabreo-Muniz told Plaintiff that he was
receiving “appropriate care” for his medical condition. On January
26, 2012, Plaintiff underwent surgery for his finger.
The Court finds that the Complaint sufficiently states a claim
for

deliberate

indifference

to

Plaintiff’s

medical

condition

stemming from the alleged delay in scheduling Plaintiff’s surgery
and alleged failure to provide Plaintiff with pain medication
during

this

time

period

against

Defendant

Cabreo-Muniz.

In

particular, the Complaint alleges that on December 2, 2011, a
specialist determined that Plaintiff’s finger required “immediate
surgery.”

Surgery was not performed until January 26, 2012,

approximately 55 days later.

The parties will be permitted to

develop the factual basis as to the reason for the delay and
whether the delay caused Plaintiff unnecessary pain or resulted in
further injury to Plaintiff.
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Based upon the foregoing, the Court denies Defendant Cabreo’s
Motion as to Defendant Cabreo-Muniz and as to Defendant Strodahl.
Defendants Cabreo-Muniz and Defendant Strodahl are required to file
an answer to Plaintiff’s Complaint within twenty-one (21) days.
B.

Defendants Tucker and Tate

Defendant Tucker is the Secretary of the Florida Department of
Corrections and Defendant Tate is the Warden at DeSoto Correctional
Institution.

Complaint at 2.

their individual capacities.

Plaintiff sues both Defendants in
Id.

The Court finds that the Complaint fails to state a claim of
deliberate indifference to medical care against Defendants Tucker
or Tate.

To the extent that Plaintiff predicates liability upon

either Defendant due to their supervisory position, “liability
under § 1983 may not be based on the doctrine of respondeat
superior.”

Grech v. Clayton Cnty., Ga., 335 F.3d 1326, 1329 (11th

Cir. 2003)(en banc).

Rather, Plaintiff must allege facts that the

official “personally participate[d]” in the act or there was
“causal

connection

between

the

actions

of

[the]

official and the alleged constitutional deprivation.”
Jenne, 326 F.3d 1352, 1360 (11th Cir. 2003).

supervising
Cottone v.

The Complaint does

not allege that either Defendant Tucker or Defendant Tate were
involved in rendering medical care to Plaintiff or were responsible
for approving the surgery required by Plaintiff.

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At most, Defendants Tucker and Tate’s involvement stem from
Plaintiff pursuing and exhausting his administrative remedies and
their failure to take some form of corrective action.

However,

involvement in the disciplinary action, alone, is insufficient to
to attribute liability for a constitutional violation to Defendants
Tucker and Tate.

See Baker v. Rexroad, 159 F. App’x 61, 62 (11th

Cir. 2005); Larsen v. Meek, 240 F. App’x 777, 780 (10th Cir. 2007);
Brazill v. Cowart, Case No. 2:10-cv-458-FtM-29DNF, 2011 WL 900721
*3 (M.D. Fla. March 14, 2013).

Consequently, the Court will

dismiss Plaintiff’s Complaint against Defendants Tucker and Tate.
ACCORDINGLY, it is hereby
ORDERED:
1.

Defendant Tucker’s Motion to Dismiss (Doc. #32) and

Defendants Cabrero-Muniz, Strodahl and Tate’s Motion to Dismiss
(Doc. #41) are DENIED to the extent they seek dismissal on the
basis that Plaintiff abuse the judicial process.
2.

Defendant

Tucker’s

Motion

to

Dismiss

(Doc.

#32)

is

GRANTED and Plaintiff’s Complaint is dismissed without prejudice as
to Defendant Tucker.
3.

Defendants Cabreo-Muniz, Strodahl and Tate’s Motion to

Dismiss (Doc. #41) is GRANTED as to Defendant Tate and Plaintiff’s
Complaint is dismissed without prejudice as to Defendant Tucker.
The Motion is otherwise DENIED as to Defendants Cabreo-Muniz and
Strodahl.
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4.

Defendants Cabreo-Muniz and Strodahl shall file an answer

to Plaintiff’s Complaint within twenty-one (21) days of the date of
this Order.
5.

The Clerk of Court shall enter judgment accordingly as to

Defendants Tucker and Tate.
DONE AND ORDERED at Fort Myers, Florida, on this
of May, 2013.

SA: hmk
Copies: All Parties of Record

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22nd

day