Harry v. Wagner et al
Filing
47
OPINION AND ORDER granting 41 Motion to Dismiss for Failure to State a Claim filed by Licata, Wagner, Severson. All claims against these defendants in their individual capacity are dismissed; dismissing claims pursuant to 28U.S.C. § 1915(e)(2)(B)(i) to the extent official capacity claims re-raised. The Clerk shall enter judgment, terminate any pending motions, and close the case. Signed by Judge John E. Steele on 5/19/2014. (RKR)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
NAIL A. HARRY,
Plaintiff,
v.
Case No:
2:12-cv-643-Ftm-29UAM
A. WAGNER, J. LICATA, L.
SEVERSON and T. REID,
Defendants.
_____________________________/
OPINION AND ORDER
This matter comes before the Court on the following:
The Motion to Dismiss Plaintiff's Amended
Complaint filed by Defendants James Licata,
Angela Wagner, and Lars Severson (Doc. 41,
filed December 19, 2013); and
Plaintiff
Nail
A.
Harry’s
Response
in
Opposition to Defendant’s Motion to Dismiss
(Doc. 43, filed January 24, 2014);
Plaintiff Nail A. Harry (“Plaintiff”), proceeding pro se,
initiated this action as a prisoner at the Lake Correctional
Institution in Clermont, Florida by filing a civil rights complaint
pursuant to 42 U.S.C. § 1983 (Doc. 1, filed December 3, 2012).
Upon the defendants’ motion, Plaintiff's original complaint was
dismissed for failure to state a claim upon which relief could be
granted (Doc. 34).
Plaintiff was granted leave to amend, and his
amended complaint is presently before the Court (Doc. 38).
In his amended complaint, Plaintiff sues Defendants Property
Room Sergeant Angela Wagner, Assistant Warden Lars Severson, and
Head of Classification James Licata (collectively, “Defendants”)
based upon these defendants’ alleged interference with his medical
treatment and their obstruction of the grievance process.
Defendants seek dismissal of the amended complaint under
Federal
Rule
of
Civil
Procedure
12(b)(6)
(Doc.
41
at
1).
Specifically, Defendants argue that: (1) Plaintiff's claims are
based upon the denial of his grievances and are insufficient to
state claims under § 1983; (2) Plaintiff has not alleged that he
suffered from a sufficiently serious medical need; (3) Defendants
are entitled to qualified immunity; and (4) Defendants are immune
from suit for Plaintiff's emotional injuries absent a showing of
physical injury (Doc. 41 at 3-8).
For the reasons set forth in
this Opinion and Order, Defendants’ Motion is GRANTED.
I.
Complaint1
The facts, as alleged by Plaintiff, are as follows:
In June of 2011, while an inmate at the Dade Correctional
Institution,
Plaintiff
was
prescribed
1
a
pair
of
Dr.
Comfort
All facts are taken from Plaintiff's amended complaint and the
attachments to the original complaint. See Fed. R. Civ. P. 10(c)
(“A copy of a written instrument that is an exhibit to a pleading
is a part of the pleading for all purposes.”); Brooks v. Blue Cross
& Blue Shield of Fla., Inc., 116 F.3d 1364, 1369 (11th Cir. 1997)
(“[W]here the plaintiff refers to certain documents in the
complaint and those documents are central to the plaintiff’s claim,
then the Court may consider the documents part of the pleadings
for purposes of Rule 12(b)(6) dismissal[.]”).
If there is a
conflict between the complaint and the supporting documents, the
information contained in the supporting documents controls. Day v.
Taylor, 400 F.3d 1272, 1276 (11th Cir. 2005).
2
orthopedic boots and a heel lift because one of his legs is shorter
than the other (Doc. 38 at ¶ 1).
In
May
of
2012,
Plaintiff
was
transferred
to
Charlotte
Correctional Institution for “crisis stabilization care for mental
health issues.” (Doc. 38 at ¶ 2).
On July 6, 2012, Plaintiff
requested the return of his Dr. Comfort boots, which had been put
into a paper bag and placed into the property room by Defendant
Property Room Sergeant Wagner. Id. at 6.
Plaintiff was informed
by Property Officer Caberlero, who is not a defendant in this
action,
that
Plaintiff's
medical
boots
were
not
Charlotte Correctional Institution. Id. at ¶ 4.
allowed
at
Specifically,
Caberlero told Plaintiff that she had been advised by Colonel
Snider, who is not a defendant in this action, that inmates at
Charlotte Correctional Institution were not allowed to possess Dr.
Comfort brand orthopedic boots (Doc. 1-1 at 11).
Defendant Wagner
was present when Plaintiff requested the return of his boots and
directed Caberlero to withhold Plaintiff's boots even though she
saw that Plaintiff had a medical pass (Doc. 28 at ¶ 4).
On or about July 11, 2012, Plaintiff filed an emergency
grievance (#1207-510-041) in which he requested the return of his
boots (Doc. 38 at ¶ 4).
“Your
medical
record
The response to the grievance stated:
shows
that
you
were
evaluated
at
the
prosthetics lab and you have an appointment scheduled with the
Chief Health Officer for a follow-up.” (Doc. 1-1 at 2).
3
As of the
date Plaintiff filed his complaint, the follow-up exam had not
happened (Doc. 38 at ¶ 4).2
On
August
17,
2012,
Plaintiff
appealed
the
response
to
grievance # 1207-510-041, noting that he had not yet had an
appointment
with
the
Chief
Health
Officer
and
that
he
was
experiencing pain in his hip, knee, and back, and was losing his
balance often (Doc. 1-1 at 14).
On October 4, 2012, Plaintiff
received a response to the appeal. Id. at 15.
The response noted
that “[t]he institutional staff advised that you need to be fitted
for boots before they are ordered and the date of the fitting is
pending.” Id.
Plaintiff was encouraged to cooperate with the
health care staff by following the treatment regimen prescribed
and was advised that sick call was available to address his
concerns should he experience problems. Id.
On or about August 16, 2012, Plaintiff filed an informal
grievance stating that he was “experiencing pain in [his] back and
legs.” (Doc. 38 at ¶ 5).
Defendant Wagner replied to Plaintiff's
2
Plaintiff's original complaint was signed on November 28, 2012
(Doc. 1). At the time he filed the complaint, Plaintiff was no
longer incarcerated at Charlotte Correctional Institution, and the
Court has been informed by Population Management at the Florida
Department of Corrections that Plaintiff was transferred from
Charlotte Correctional Institution on October 3, 2012. The Court
takes judicial notice of the date of Plaintiff's transfer under
Rule 201 of the Federal Rules of Evidence. Fed. R. Evid.
201(b)(1)(2) (a court may judicially notice a fact if it “can be
accurately and readily determined from sources whose accuracy
cannot reasonable be questioned[.]”).
4
grievance and told him that his orthopedic boots were in noncompliance
with
policies. Id.
Charlotte
Correctional
Institution’s
security
On or about August 21, 2012, Plaintiff filed an
appeal to the warden’s office in which he objected to the response
that had informed Plaintiff that his particular Dr. Comfort boots
were a security concern (Doc. 1-1 at 5).
Plaintiff argued that
his medical boots and heel lift had been issued by an orthopedic
specialist and authorized by a doctor. Id.
Plaintiff further
explained
to
that
Defendant
Wagner’s
response
his
informal
grievance was erroneous because Charlotte Correctional Institution
did not have the power to make its own rules.
Plaintiff quoted
the Department of Corrections Manual, stating that “security and
other operations of the institution will not dictate practices and
contradict or otherwise compromise decisions that are in the sole
province of a licensed clinician.” Id.
Defendants Licata and
Severson returned the grievance without action because it was not
in compliance with the rules for filing grievances. Id. at 7.
In mid-August, Plaintiff approached Defendant Severson and
asked why his requests for his Dr. Comfort boots were being met
with resistance (Doc. 38 at ¶ 7).
Defendant Severson stated that
“somebody doesn’t want you to have them.” Id.
On or about August 21, 2012, Plaintiff filed an Emergency
Grievance (#1208-510-111) in which he explained that Charlotte
Correctional Institution did not have the authority to promulgate
5
a rule against his Dr. Comfort brand orthopedic boots (Doc. 1-1 at
11-12).
Plaintiff recognized that his boots were being withheld
due to Colonel Snider’s security concerns, but disagreed that the
concerns were warranted. Id. at 11.
Plaintiff argued that he had
seen “tens” of inmates bludgeoned and stabbed or commit self-harm
with items that were permissible. Id.
Plaintiff also noted that
he had been hospitalized three times “due to the use of permissible
paper clips.” Id. at 12.
Defendant Severson and Assistant Warden
Thomas Reid responded to Plaintiff's grievance and noted that it
did not constitute an emergency. Id. at 13.
Plaintiff was advised
to file an informal grievance with security because “[t]hey are
responsible for the area of your complaint.” Id.
On August 21, 2012, Plaintiff lost his balance while walking
up the stairs and the resulting fall required derma-bond to close
the wound (Doc. 38 at ¶ 8).
On August 31, 2012, Plaintiff fell
into a fence. The resulting wound caused bruising and required
stitches. Id. at ¶ 9.
Plaintiff asserts that he suffered constant
pain while incarcerated at Charlotte Correctional Institution due
to the deprivation of his Dr. Comfort boots.
Id. at ¶ 10.
On August 23, 2012, Plaintiff filed an Inmate Request Form on
which he notified the Warden that he intended to file a lawsuit
alleging gross deliberate indifference to his medical needs (Doc.
1-1 at 16).
In response, it was noted that Plaintiff's request
6
had been reviewed, but the issue had been previously addressed and
that Plaintiff should proceed to the formal grievance level. Id.
On or about September 10, 2013, Plaintiff appealed the denial
of
emergency
grievance
#1208-510-111,
but
the
appeal
was
determined to be in non-compliance with the inmate grievance
procedure because the grievance at the institutional level had
been in non-compliance with the grievance rules (Doc. 1-1 at 10).
On September 12, 2012, Plaintiff's request for an administrative
appeal was returned without action. Id.
While incarcerated at Charlotte Correctional Institution,
Plaintiff noticed three other inmates wearing the same brand of
orthopedic boots that the defendants would not allow him to possess
(Doc. 38 at ¶ 11).
Plaintiff asserts that the defendants violated his Eighth
Amendment rights by showing deliberate indifference to his serious
medical needs when they refused to immediately provide him with
the medically prescribed Dr. Comfort orthopedic boots (Doc. 38 at
5).
He
seeks
compensatory
damages
of
$50,000
against
each
defendant and punitive damages of $25,000 against each defendant.
Id. at 8, 10.
II.
Legal Standards
On a motion to dismiss, this Court accepts as true all the
allegations in the complaint and construes them in the light most
favorable to the plaintiff. Jackson v. BellSouth Telecomms., 372
7
F.3d 1250, 1262-63 (11th Cir. 2004).
Further, this Court favors
the plaintiff with all reasonable inferences from the allegations
in the complaint. Stephens v. Dep't of Health & Human Servs., 901
F.2d 1571, 1573 (11th Cir. 1990) ("On a motion to dismiss, the
facts stated in [the] complaint and all reasonable inferences
therefrom are taken as true.").
However, the Supreme Court
explains that:
While a complaint attacked by a Rule 12(b)(6)
motion to dismiss does not need detailed
factual allegations, a plaintiff's obligation
to provide the grounds of his entitlement to
relief
requires
more
than
labels
and
conclusions, and a formulaic recitation of the
elements of a cause of action will not do.
Factual allegations must be enough to raise a
right to relief above the speculative level.
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal
citations and quotation marks omitted).
Further, courts are not
"bound to accept as true a legal conclusion couched as a factual
allegation." Papasan v. Allain, 478 U.S. 265, 286 (1986).
In the
case of a pro se action, the Court should construe the complaint
more liberally than it would pleadings drafted by lawyers. Hughes
v. Rowe, 449 U.S. 5, 9 (1980).
In Ashcroft v. Iqbal, 556 U.S. 662 (2009), the Supreme Court,
referring to its earlier decision in Bell Atlantic Corp. v.
Twombly, illustrated a two-pronged approach to motions to dismiss.
First, a reviewing court must determine whether a Plaintiff's
allegation is merely an unsupported legal conclusion that is not
8
entitled to an assumption of truth. Next, the court must determine
whether the complaint's factual allegations state a claim for
relief that is plausible on its face. Iqbal, 556 U.S. at 679.
III.
Analysis
To state a claim under § 1983, a plaintiff must allege that:
(1) a violation of a specific constitutional right or federal
statutory provision; (2) was committed by a person acting under
color of state law.
Doe v. Sch. Bd. of Broward County, Fla., 604
F.3d 1248, 1265 (11th Cir. 2010).
Construing Plaintiff's claims
in a liberal fashion, the Court determines that he seeks damages
from Defendants Wagner, Licata, and Severson because his Eighth
Amendment
rights
were
violated
by
the
defendants’
deliberate
indifference to his serious medical needs when they refused to
allow him to have the Dr. Comfort brand orthopedic boots that had
been given to him at Dade County Correctional Institution.
Prison officials violate the Eighth Amendment when they act
with deliberate indifference to a plaintiff’s health or safety.
Estelle v. Gamble, 429 U.S. 97, 97 (1976).
To state a claim of
deliberate indifference, a plaintiff must allege: (1) a serious
medical need; (2) deliberate indifference to that need by the
defendants; and (3) causation between the defendants' indifference
and the plaintiff's injury. Youmans v. Gagnon, 626 F.3d 557, 563
(11th Cir. 2010).
9
a.
Plaintiff has alleged sufficient facts to
support a conclusion that he suffers from a
serious medical need
Defendants assert that Plaintiff has not alleged sufficient
facts to demonstrate an objectively serious medical need (Doc. 41
at 5).
The seriousness of a medical need is an objective inquiry.
Kelley v. Hicks, 400 F.3d 1282, 1284 (11th Cir. 2005).
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. In the
alternative, a serious medical need is
determined by whether a delay in treating the
need worsens the condition. In either case,
the medical need must be one that, if left
unattended, poses a substantial risk of
serious harm.
Mann v. Taser Int'l, Inc., 588 F.3d 1291, 1307 (11th Cir. 2009)
(internal citations and quotation marks omitted).
Plaintiff does not elaborate on the nature of his serious
medical need other than to assert that one of his legs is shorter
than the other.
Plaintiff argues that because a specialist
determined that he was in need of a heel lift and orthopedic boots,
his condition automatically qualifies as a serious medical need
(Doc. 43 at 3).
Plaintiff provides no support for his assertion
that a leg length discrepancy is automatically a serious medical
need when such has been diagnosed by a specialist and does not
explain how the delay in treatment posed a “substantial risk of
serious harm.” Mann, 588 F.3d at 1307.
10
Generally, other district courts addressing a leg length
discrepancy
have
concluded
that
such
a
condition
does
not
constitute an objectively serious medical need. See, e.g., Haverty
v. Crosby, No. 1:05-cv-133-MO-EMT, 2006 WL 839157, at *5 (N.D.
Fla. Mar. 28, 2006) (3/4 of an inch disparity in the length of the
plaintiff’s legs did not rise to the level of a serious medical
need);
Turner
v.
Solorzano,
No.
3:04-cv-632-J-32MMH,
2006
WL
2523410, at *3 (M.D. Fla. Aug. 30, 2006)(3/8 inch disparity in leg
length was not objectively serous medical need); Graham v. Aponte,
No. 1:08-cv-308, 2009 WL 249779, at *4 (E.D. Va. Feb. 2, 2009)
(“[T]he
discrepancy
in
the
length
of
plaintiff's
legs
which
requires a 3/8–inch lift in one shoe is not a sufficiently serious
medical need or condition to satisfy the objective component of an
Eighth
Amendment
claim.”);
Shakur
v.
Furey,
No.
3:08–cv–1187
(VLB), 2010 WL 1416836, at *4 (D. Conn. Apr. 8, 2010) (plaintiff
failed to show through case law or medical opinion that a 3/8–inch
leg length difference constituted a serious medical need); Dean v.
Lantz, No. 3:08cv0749, 2009 WL 2151173, at *4 (D. Conn. July 17,
2009) (leg length discrepancy not a serious medical condition).
However, with the exception of Haverty, each of these cases
was decided at the summary judgment stage, and the district court
was presented with medical evidence regarding the plaintiff’s
condition.
While a leg length disparity is clearly not always a
serious medical need, the Court notes that Petitioner was treated
11
for the discrepancy and was prescribed shoes for the condition. At
this stage of the litigation, Plaintiff need only allege factual
allegations that allow the Court to draw a reasonable inference
that he suffered from a serious medical need. See Iqbal, 556 U.S.
at 679.
Based on this, the Court concludes that Plaintiff has
alleged sufficient plausible facts to infer that he suffers from
an objectively serious medical need. See, e.g., Bismark v. Lang,
Case No. 2:02-cv-556-FtM-29SPC, 2006 WL 1119189, at *15 (M.D. Fla.
April 26, 2006) (recognizing that while the plaintiff’s foot
conditions of hammer toes and high arches were not the type of
ailments that always constituted a serious medical condition, the
plaintiff had sufficiently proven a serious medical condition in
his particular situation).
b.
Plaintiff has not alleged facts showing that
any defendant was deliberately indifferent to
his health or safety
Even though this Court concludes for the purpose of this
Opinion and Order that Plaintiff has alleged sufficient facts to
show that his leg length discrepancy is an objectively serious
medical need, the next step requires a consideration of the
subjective component: whether the defendants were deliberately
indifferent to that serious medical need.
cautioned
that
not
every
allegation
The Supreme Court has
of
inadequate
medical
treatment states a constitutional violation. Estelle v. Gamble,
429 U.S. 97, 105, 106 (1976). “[I]n the medical context, an
12
inadvertent failure to provide adequate medical care cannot be
said to constitute ‘an unnecessary and wanton infliction of pain’
or to be ‘repugnant to the conscience of mankind.’” Id. at 106–
07.
Only acts or omissions sufficiently harmful to evidence
deliberate indifference to a serious medical need can offend
“evolving
standards
Amendment. Id.
of
decency”
in
violation
of
the
Eighth
In order to prove that a defendant acted with
deliberate indifference, a plaintiff must show: “(1) subjective
knowledge of a risk of serious harm; (2) disregard of that risk;
and (3) by conduct that is more than mere negligence.” Brown v.
Johnson, 387 F.3d 1344, 1351 (11th Cir. 2004).
Petitioner argues that, because of the numerous grievances he
filed, all the defendants were aware that Plaintiff faced a risk
of serious harm if he did not get his Dr. Comfort boots back.
However, contrary to Plaintiff's assertions, his medical concerns
were not ignored.
Plaintiff was advised as early as July 17, 2012
that he had been evaluated at the prosthetics lab and that he had
an appointment scheduled with the Chief Medical Officer for a
follow-up (Doc. 1-1 at 3).
In an October 4, 2014 response to
Plaintiff's request for an administrative remedy, he was informed
that it was the duty of the Chief Health Officer “to determine the
appropriate treatment regimen for the condition” he experienced,
“including passes, specialty consults, and special shoes.” (Doc.
1-1 at 15).
Plaintiff was told that he needed to be fitted for
13
boots and that the date of the fitting was pending. Id.
Plaintiff
was advised to cooperate with health care staff and that sick call
was available if he experienced any problems. Id.
Although
Plaintiff now asserts that no follow-up appointment occurred, it
appears that the cause of the missed appointment was Plaintiff's
transfer
to
indifference
another
to
facility,
Plaintiff's
not
the
medical
Defendants’
concerns.
deliberate
Plaintiff
was
transferred from Charlotte Correctional Institution on October 3,
2012, prior to the October 4, 2012 response and, presumably, prior
to the scheduled fitting.
A prisoner is not entitled to the treatment of his choice.
That Plaintiff would have preferred the Dr. Comfort boots he
received at Dade Correctional Institution over being fitted for
another
type
of
orthopedic
shoe
or
heel
lift,
is
merely
a
disagreement with the medical care he received while incarcerated
at Charlotte.
Where, as here, a § 1983 plaintiff received medical
treatment and care but alleges that he should have received
different treatment or care, the conduct does not constitute
deliberate indifference. See Hamm v. Dekalb County, 774 F.2d 1567,
1575 (11th Cir. 1985) (“Although Hamm may have desired different
modes of treatment, the care the jail provided did not amount to
deliberate indifference.”); Jackson v. Fair, 846 F.2d 811, 817
(1st Cir. 1988) (“Although the Constitution does require that
prisoners be provided with a certain minimum level of medical
14
treatment, it does not guarantee to a prisoner the treatment of
his choice.”).
To the extent Plaintiff argues that the defendants exhibited
deliberate indifference because they did not immediately return
his Dr. Comfort boots upon request or provide a replacement pair,
the allegations in his amended complaint still do not entitle him
to relief.
Where the prisoner has suffered increased physical
injury due to the delay in treatment, a court must consider three
factors
to
determine
whether
the
plaintiff
has
sufficiently
alleged a claim of deliberate indifference: (1) the seriousness of
the medical need; (2) whether the delay worsened the medical
condition; and (3) the reason for the delay. Goebert v. Lee County,
510 F.3d 1312, 1326 (11th Cir. 2007).
First,
there
is
no
indication
that
Plaintiff
sustained
serious injury as a result of the delay in the return of his boots.
However, even liberally construing Plaintiff's allegation that he
suffered serious injury as a result of clumsiness and falls caused
by having to function in the absence of his Dr. Comfort boots,
Plaintiff cannot show that his underlying condition (the leg length
discrepancy) was worsened by the delay.
Next,
Plaintiff's
amended
complaint
and
the
grievances
referenced therein indicate that the defendants’ security concerns
prompted the confiscation of Plaintiff's boots.
Plaintiff asserts
that Defendant Wagner answered an informal grievance in which she
15
explained to Plaintiff that his Dr. Comfort boots were not in
compliance with security at Charlotte Correctional Institution
(Doc. 38 at 6). Plaintiff attempts to attribute liability to
Defendant Wagner by stating that she instructed Property Officer
Caberlero not to give Plaintiff his Dr. Comfort boots even though
she was aware that he had a medical need for the boots (Doc. 38 at
6).
However, it is evident from Plaintiff's grievances that due
to security concerns, Colonel Snider, not Defendant Wagner, was
responsible for the security policy that prohibited Plaintiff from
possessing his Dr. Comfort boots (Doc. 1-1 at 11-12).
Plaintiff
argues that, notwithstanding Colonel Snider’s directive, nobody at
the Charlotte County Jail had the authority to withhold his boots,
and that other prisoners were allowed to possess Dr. Comfort brand
boots (Doc. 39 at ¶ 11).
Plaintiff further argues that the
defendants’ security concerns violated his “clearly established
Eighth Amendment right to be free from interference with medical
treatment once prescribed.” (Doc. 38 at 6).
Despite
Plaintiff's
assertions
to
the
contrary,
prison
officials may restrict a prisoner's constitutionally and legally
protected freedoms for legitimate penological reasons such as
safety and security. Procunier v. Martinez, 416 U.S. 396, 407–11
(1974);
Turner
evaluation
of
v.
Safley,
penological
482
U.S.
objectives
78,
is
89–90
(1987).
“committed
to
The
the
considered judgment of prison administrators, ‘who are actually
16
charged
with
and
trained
in
the
running
of
the
particular
institution under examination.’” O'Lone v. Estate of Shabazz, 482
U.S. 342, 349 (1987) (emphasis added).
Colonel Snider’s concern that Plaintiff’s Dr. Comfort boots
could cause a security issue at Charlotte Correctional Institution
was based on legitimate penological interests. See, e.g., Simuel
v. Lee, No. 5:03-CT-350-F(3), 2006 WL 4847431, at *6 (E.D.N.C.
Dec. 15, 2006)(penological objective achieved by confiscating
plaintiff’s work boots is legitimate); Walker v. Fischer, No. 9:08cv-1078,
2011
WL
4369116
(N.D.N.Y.
July
25,
2011)(prison’s
security staff had legitimate penological interests for refusing
Plaintiff's request to keep his medical boots in his cell). Courts
generally defer to prison officials in matters regarding practices
that are needed to preserve internal discipline and institutional
security.
Further, the Court recognizes that prison officials
“should be accorded wide-ranging deference in the adoption and
execution of policies and practices that in their judgment are
needed to preserve internal order and discipline and to maintain
institutional security.” Bell v. Wolfish, 441 U.S. 520, 547–48
(1979).
That other prisoners were allowed to possess Dr. Comfort
boots at Charlotte Correctional Institution does not invalidate
any defendant’s security concerns regarding Plaintiff's possession
of similar boots, particularly in light of Plaintiff's admission
that he had been hospitalized three times because of his misuse of
17
paper clips (Doc. 1-1 at 12); see Shaw v. Murphy, 532 U.S. 223,
229 (2001) (explaining that courts are particularly ill equipped’
to deal with problems of prisons and, therefore, generally defer
to the judgments of prison officials in upholding regulations
against constitutional challenges).
The defendants’ security concerns are no less valid merely
because
they
may
have
interfered
with
Plaintiff’s
medical
treatment as long as his medical needs were not ignored. See, e.g.,
Rix v. McClure, Case No. 10-cv-1224, 2012wl1183435 (D. Kan. 2012)
(Defendants’ concern that Plaintiff could use his cane as a weapon
was a legitimate security concern); Rodriguez v. Kincheloe, 763 F.
Supp. 463, 470 (E.D. Wash. 1991) (confiscation of Ace bandage from
prisoner with prior history of suicide attempt was legitimately
related to prison security concerns); Wood v. Idaho Dept. of Corr.,
391
F.
Supp.
2d
852
(D.
Idaho
2005)(security
a
legitimate
penological reason to deny an inmate the sunglasses of his choice).
As discussed, Plaintiff's medical needs were not ignored; he was
scheduled to be fitted for different orthopedic shoes to address
his leg length discrepancy.
In addition, Plaintiff was instructed
to contact sick call if he had further health concerns regarding
his condition (Doc. 1-1 at 15).
Even if, as Plaintiff asserts, the defendants were mistaken
in their assertions that Dr. Comfort boots were not allowed at
Charlotte Correctional Institution or that Plaintiff's possession
18
of such would have caused a security concern, such a mistake
demonstrates mere negligence which is not cognizable in a § 1983
complaint. Estelle, 429 U.S. at 106 (recognizing that deliberate
indifference entails more than mere negligence).
c.
Plaintiff has not alleged facts to show a
causal connection between any defendant and
his constitutional harm
The final requirement for a deliberate indifference claim is
that a defendant have a causal connection to the constitutional
harm. Cottone v. Jenne, 326 F.3d 1352, 1360 (11th Cir. 2003).
Causation, of course, can be shown by personal participation in
the constitutional violation. Zatler v. Wainwright, 802 F.2d 397,
401 (11th Cir. 1986).
Plaintiff
attempts
to
attribute
liability
to
Defendants
Licata and Severson on the basis that he addressed grievance forms
to these defendants in which he complained that Property Officer
Caberlero would not give him his orthopedic boots.
Plaintiff's
claims against Defendants Licata and Severson are predicated upon
their handling of his grievances.
Specifically, Plaintiff asserts
that these defendants engaged in “obstructionist tactics” because
they returned his grievances without action, even though the
grievances were in “compliance with the grievance procedure.”
(Doc. 38 at 7).
The amended complaint contains no other facts or
allegations pertaining to these defendants’ involvement in the
alleged constitutional deprivations other than allegations that
19
Defendant Severson knew of his leg length discrepancy because he
had been instrumental in getting Plaintiff his Dr. Comfort boots
at
Dade
Correctional
insufficient
to
show
Institution
a
causal
(Doc.
38
at
relationship
6).
This
between
is
these
defendants’ actions and the alleged constitutional deprivation.
Likewise, Plaintiff cannot show how Defendant Wagner caused a
violation of his constitutional rights merely by adhering to
Charlotte Correctional Institution’s security policies.
In addition, Plaintiff's assertion that his prison grievances
were not handled properly by prison officials, even if true, fails
to state a stand-alone § 1983 claim.
The Eleventh Circuit Court
of Appeals has held: “We agree with other circuits that have
decided that a prisoner does not have a constitutionally-protected
liberty interest in an inmate grievance procedure.” Dunn v. Martin,
178 F. App’x 876, 878 (11th Cir. 2006); Baker v. Rexroad, 159 F.
App’x 61, 62 (11th Cir.2005); see also Massey v. Helman, 259 F.3d
641, 647 (7th Cir. 2001) (“[T]he existence of a prison grievance
procedure confers no liberty interest on a prisoner. . . . A statecreated prison grievance procedure is simply a procedural right
and does not confer any substantive right upon an inmate.”); Adams
v. Rice, 40 F.3d 72, 75 (4th Cir. 1994) (“[T]he Constitution
creates no entitlement to grievance procedures or access to any
such procedure voluntarily established by a state.”).
Therefore,
a prison official's failure to timely process a grievance form,
20
investigate
it,
or
otherwise
respond
to
a
grievance
is
not
actionable under § 1983.
In this case, Plaintiff merely alleges that Defendants Licata
and Severson deprived him of his rights because they denied his
grievance based on what Plaintiff apparently believe to be a
fabricated
reason.3
Specifically,
Plaintiff
asserts
that
Defendants Severson and Licata improperly intercepted his medical
grievance in order to return it without action (Doc. 38 at 7).
However, alleged misdeeds regarding grievance procedures do not
give rise to stand-alone claims under § 1983. Buckley v. Barlow,
997 F.2d 494, 495 (8th Cir.1993).
3
Plaintiff attached to his original complaint a response from
these defendants in which they explained:
Your request for administrative appeal has
been received in non-compliance. This office
has previously addressed this issue in appeal
log #1207-510-041. We will not redress this
issue or your allegations, in accordance with
Chapter
33-103.014(1)(n),
there
is
no
provision in the grievance process to appeal
a decision already rendered by this office.
Your request for administrative appeal is
RETURNED WITHOUT ACTION.
(Doc. 1-1 at 7). Plaintiff appears to now argue that his appeal
was compliant with Florida Code and should have been addressed.
In addition to not being cognizable under § 1983, Plaintiff's claim
that these defendants obstructed his access to the appeal of his
grievances is refuted by the Department of Corrections’ response
to Plaintiff's grievance in which he was informed that he had a
pending appointment to be fitted for new boots. Id. at 15.
21
IV.
Conclusion
Construing
Plaintiff's
all
favor,
allegations
he
has
in
failed
the
to
amended
state
a
complaint
claim
that
in
any
defendant acted with deliberate indifference by refusing to allow
him to possess the orthopedic boots that had been prescribed for
him at another correctional facility.
these
defendants
are
dismissed,
the
Because all claims against
Court
will
not
address
Defendants’ argument that they are also entitled to qualified
immunity.
Accordingly, it is now ORDERED:
1.
The
Motion
to
Dismiss
filed
by
Wagner, and Severson (Doc. 41) is GRANTED.
Defendants
Licata,
All claims against
these defendants in their individual capacity are dismissed for
failure to state a claim upon which relief may be granted;
2.
monetary
capacities
In this Court’s prior order of dismissal, all claims for
damages
against
the
were
dismissed
as
defendants
frivolous
in
their
under
28
official
U.S.C.
§
1915(e)(2)(B)(i) because these defendants are immune from suit for
monetary damages in their official capacities (Doc. 34 at 12).
To
the extent Plaintiff intended to re-raise official capacity claims
in the instant complaint, the claims are dismissed pursuant to 28
U.S.C. § 1915(e)(2)(B)(i); and
22
3.
With no remaining claims or defendants, the Clerk of
Court is directed to terminate any pending motions, close this
case, and enter judgment accordingly.
DONE and ORDERED in Fort Myers, Florida, this
May, 2014.
SA: OrlP-4
Copies: Nail A. Harry
Counsel of Record
23
19th
day of
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