Robinson v. Crews et al

Filing 8

ORDER OF DISMISSAL dismissing 1 Complaint for failure to state a claim pursuant to § 1915(e)(2)(b)(ii); denying 2 Motion for leave to proceed in forma pauperis/affidavit of indigency. The Clerk shall enter judgment accordingly and close the case. Signed by Judge John E. Steele on 1/7/2014. (RKR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
ANTOINE ROBINSON
Plaintiff,
v.

Case No: 2:13-cv-854-FtM-29DNF

MICHAEL CREWS, Secretary of
The Florida Department of
Corrections, R. HEMPHILL,
Doctor, and L. SEVERSON,
Medical Department,
Defendants.

ORDER OF DISMISSAL
This matter comes before the Court upon review of the file.
Plaintiff Antoine Robinson, a Florida prisoner, initiated this
action

by

filing

a

Civil

Rights

Complaint

Form

(Doc.

#1,

Complaint) pursuant to 42 United States Code, Section 1983, and
attached

inmate

grievances

as

exhibits

(Doc.

#1-1)

Plaintiff seeks leave to proceed in forma pauperis.
#2, #7.

thereto.
See Doc.

Based on the reasons that follow, the Court denies

Plaintiff’s motion for leave to proceed as a pauper because this
action is subject to dismissal pursuant to § 1915.
I.
The Prison Litigation Reform Act requires that the Court
review all complaints filed by prisoners against a governmental
entity to determine whether the action is “frivolous, malicious,

or fails to state a claim upon which relief can be granted; or
seeks monetary relief from a defendant who is immune from such
relief.”

See 28 U.S.C. § 1915A(a), (b)(1), (b)(2).

In essence,

§ 1915A is a screening process to be applied sua sponte and at
any time during the proceedings.

In reviewing a complaint,

however, the Court accepts the allegations in the complaint as
true, Boxer v. Harris, 437 F.3d 1107, 1110 (11th Cir. 2006), and
applies the long established rule that pro se complaints are to
be liberally construed and held to a less stringent standard
than pleadings drafted by attorneys.

Erickson v. Pardus, 551

U.S. 89, 94 (2007)(citations omitted).
Pursuant

to

§

1915A,

the

Court

“shall”

dismiss

the

complaint, if, inter alia, it fails to state a claim upon which
relief may be granted.

See also § 1915(e)(2).

The standards

that apply to a dismissal under Fed. R. Civ. P. 12(b)(6) apply
to a dismissal under § 1915A.

Leal v. Georgia Dep’t of Corr.,

254 F.3d 1276, 1278-79 (11th Cir. 2001).

Under Rule 12(b)(6),

the court views all allegations in the Complaint as true and
construes them in the light most favorable to the Plaintiff.
Pielage v. McConnell, 516 F.3d 1282, 1284 (11th Cir. 2008).
standard

governing

Federal

Rule

of

Civil

The

Procedure

12(b)(6)

dismissals apply to dismissals under § 1915(e)(2)(ii).

Alba v.

Montford, 517 F.3d 1249, 1252 (11th Cir. 2008); Mitchell v.
Carcass,

112

F.3d

1483,

1490

(11th

- 2 -

Cir.

1997).

Section

1915(e)(2)(B)(ii) is identical to the screening language of §
1915A.2

Thus, a complaint is subject to dismissal for failure to

state a claim if the facts as plead do not state a claim for
relief that is plausible on its face.

Bell Atlantic v. Twombly,

550 U.S. 544, 556 (2007).
Conclusory

allegations,

presumption of truth.

however,

are

not

entitled

to

a

Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009)(discussing a 12(b)(6) dismissal); Marsh v. Butler County,
Ala., 268 F.3d 1014, 1036 n.16 (11th Cir. 2001).

A claim is

plausible where the plaintiff alleges facts that “allow[] the
court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.”
The

plausibility

sufficient

facts

standard
“to

requires

raise

a

Ashcroft, 556 U.S. at 678.
that

a

reasonable

plaintiff

allege

expectation

that

discovery will reveal evidence” that supports the plaintiff’s
claim.

Twombly, 550 U.S. at 556.

Specifically, “[w]hile a

complaint attacked by a Rule 12(b)(6) motion to dismiss does not
need detailed factual allegations . . . a plaintiff’s obligation
to

provide

requires

the

more

‘grounds’

than

labels

of
and

his

‘entitle[ment]

conclusions,

and

to
a

relief’

formulaic

recitation of the elements of a cause of action will not do.”

2Plaintiff

seeks leave to proceed in forma pauperis in this
action. Thus, the Complaint is also subject to dismissal under
28 U.S.C. § 1915(e)(2)(B)(ii).
- 3 -

Id. at 555 (citations omitted).

Thus, “the-defendant-unlawfully

harmed me accusation” is insufficient.

Ashcroft, 556 U.S. 678.

“Nor does a complaint suffice if it tenders naked assertions
devoid

of

further

factual

enhancement.”

Id.

Instead,

“[f]actual allegations must be enough to raise a right to relief
above the speculative level.”

Twombly, 550 U.S. at 555.
II.

Plaintiff names the following Defendants: Micheal Crews,
who

he

identifies

as

the

Secretary

of

the

Department

Corrections; Doctor R. Hemphill; and L. Severson.
1.

of

Complaint at

According to the Complaint, Plaintiff had boils and was

prescribed

“bactrine.”

Id.

at

5.

On

September

4,

2013,

Plaintiff states that he declared a medical emergency due to the
allergic

reaction

he

was

having

to

the

medication.

Id.

Plaintiff states that he experienced “painful burns around [his]
mouth” from the bactrine.

Id.

The Complaint is devoid of any

other factual allegations concerning the treatment for his boils
or

treatment

for

his

allergic

reaction

to

bactrine.

See

generally id.; see also Doc. #1-1.
Plaintiff states that as a result of his allergic reaction
he

filed

a

formal

inmate

grievance

seeking

compensation with the Warden’s Office.
issue

with

the

response

to

his

formal

response, correctional officials wrote:
- 4 -

Id.

some

kind

of

Plaintiff takes

grievance.

Id.

In

You
grieved
you
should
be,
[sic]
“Compensated” for an allergic reaction to
medication. Your medical record indicates
you may have had symptoms of an allergy to a
medication.
This is not something that is
related to the quality of your care.
Allergy
is
a
hypersensitivity
of
your
autoimmune system. That is not something we
would be responsible for.
Based
on
the
foregoing,
Grievance is DENIED. . . . . .
Doc. #1-2 at 1.

your

Formal

The response to Plaintiff’s formal grievance

was signed by “Dr. R. Hemphill and L. Severson.”

Id.

As

relief, Plaintiff seeks compensatory damages totaling $50,000
and punitive damages totaling $200,000.

Complaint at 6.

III.
In any § 1983 action, the initial inquiry must focus on
whether

the

two

essential

elements

to

a

§

1983

action

are

present:
(1) whether the person engaged in the
conduct complained of
was
acting
under
the color of state law; and (2) whether the
alleged conduct deprived a person of rights,
privileges or immunities, guaranteed under
the Constitution or the laws of the United
States.
Parrat v. Taylor, 451 U.S. 527, 535 (1981), overruled on other
grounds,

Daniel

v.

Williams,

474

U.S.

327

(1986);

Burch

v.

Apalachee Cmty. Mental Health Servs., Inc., 840 F.2d 797, 800
(11th

Cir.

(1990).

1988),

aff’d,

Zimmerman

v.

Burch,

494

U.S.

113

In addition, a plaintiff must allege and establish an

affirmative casual connection between the defendant’s conduct
- 5 -

and the constitutional deprivation.

Marsh v. Butler County, 286

F.3d at 1059; Swint v. City of Wadley, 51 F.3d at 988 (11th Cir.
1995); Tittle v. Jefferson County Comm’n, 10 F.3d 1535, 1541
(11th Cir. 1994).
Here, Plaintiff names State actors as defendants, but the
Complaint is devoid of a causal connection between two of the
named defendants and the incident giving rise to the Complaint.
Specifically,

the

Complaint

contains

no

causal

connection

between the Secretary of the Florida Department of Corrections
and L. Severson.

To the extent Plaintiff wishes to attribute

liability to L. Severson based on his response to Plaintiff’s
formal inmate grievance, the Complaint fails to state a claim.
Thomas

v.

Poveda,

518

F.

2013)(unpublished)(affirming
dismissal

of

individuals

App’x

614,

district

who

denied

618

court’s
inmate

(11th
sua

Cir.
sponte

grievance

because

prison grievance procedure does not provide an inmate with a
constitutionally protected interest).
The Court liberally construes the Complaint as attempting
to

allege

serious

acted

Eighth

medical

Hemphill.
Eighth

an

condition

deliberate

claim

indifference

against

Defendant

to

a

Doctor

In order to state a claim for a violation under the

Amendment,
with

Amendment

Plaintiff

deliberate

must

show

indifference

that

to

public

Plaintiff’s

officials
serious

medical needs. Estelle v. Gamble, 429 U.S. 97 (1976); Farrow v.
- 6 -

West, 320 F.3d 1235 (11th Cir. 2003).

Thus, a plaintiff must

first show that he had an “objectively serious medical need.”
Id. (citing Taylor v. Adams, 221 F.3d 1254, 1257 (11th Cir.
2000). Second, a plaintiff must prove that the official acted
with an attitude of “deliberate indifference” toward rendering
treatment to the serious medical need. Farrow v. West, 320 F.3d
1235 (11th Cir. 2003) (quoting Farmer v. Brennan, 511 U.S. 825
(1994).

Deliberate

indifference

is

a

state

of

mind

more

egregious and culpable than mere negligence. Estelle, 429 U.S.
at 104-106.

In fact, even gross negligence does not satisfy the

“sufficiently culpable state of mind” standard. Miller v. King,
384 F.3d 1248, 1261 (11th Cir. 2004).
violates

the

Eight

Amendment

only

Thus, “medical treatment
when

it

is

‘so

grossly

incompetent, inadequate, or excessive as to shock the conscience
or

to

be

intolerable

to

fundamental

fairness.’”

Faison

v.

Rosado, 129 F. App’x 490, 491 (11th Cir. 2005) (quoting Harris
v. Thigpen, 941 F.2d 1495, 1501 (11th Cir. 1991)).
The course of treatment chosen by a medical official is “a
classic example of a matter for medical judgment.” Estelle, 429
U.S. at 107.

Thus, no constitutional violation exists where an

inmate and prison medical official merely disagree as to the
proper

course

of

medical

treatment.

Id.

at

106.

Classic

examples of matters for medical judgment include whether an xray or other form of treatment are indicated. Id. at 107.
- 7 -

An 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
delay.

Hill v. Dekalb Reg’l Youth Det. Ctr., 40 F.3d 1176 (11th

Cir. 1994).

Further, the tolerable length of delay in providing

medical attention depends on the nature of the medical need and
the reason for the delay. Id.; Harris v. Coweta County, 21 F.3d
388, 393-394 (11th Cir. 1994).
Here, Plaintiff wishes to attribute liability on Defendant
Hemphill based on the allergic reaction Plaintiff experienced to
a medication used to treat his boils.

The Court finds the

Complaint does not allege sufficient facts showing deliberate
indifference
above,

to

Plaintiff

subjective

a

serious
must

component,

medical

demonstrate

that

his

condition.
both

medical

an

As

set

forth

objective

condition

and

(allergy

to

medication) was sufficiently serious and that a named prison
official was aware of the facts suggesting a substantial risk of
harm

from

the

course

of

action

taken

(prescribing

that

medication for Plaintiff’s boils).
Without deciding whether the allergic reaction Plaintiff
experienced constitutes a serious medical condition, the Court
finds Plaintiff fails to meet the second component based on the
facts alleged in the Complaint and attachments thereto.

There

are no facts suggesting that Defendant Hemphill was aware that
- 8 -

Plaintiff would experience an allergic reaction to the medicine
and nonetheless prescribed it.

Instead, it appears this is the

first time Plaintiff experienced an allergic reaction to the
prescription

and

no

one

including

experience an allergic reaction.

Plaintiff

knew

he

would

Thus, the instant case is

similar to James v. Federal Bureau of Prisons, 79 F. App’x 417,
418

(10th

pursued
stemming

Cir.

an

2003)(unpublished).

Eighth

from

Amendment

medical

staff’s

In

James,

deliberate

the

plaintiff

indifference

unintentional

claim

injunction

of

a

tetanus vaccine, which everyone knew the plaintiff was allergic
to, instead of a routine TB test.
knew

the

TB

test

mistakenly

Id. at 418.

contained

Because no one

tetanus,

the

district

court found the Complaint failed to state an Eighth Amendment
claim.
decision.

The

appellate

court

affirmed

the

district

court’s

The Court found the case distinguishable from other

cases where correctional or medical officials knew the inmate
was

allergic

to

something

and

nevertheless

prescribed the medicine to the inmate’s detriment.

intentionally
See id. at

419 (noting the fact that medical staff did not know the vaccine
contained tetanus “distinguishes this case from Thomas v. Pate,
493 F.2d 151, 158 (7th Cir. 1974), where the Seventh Circuit
found deliberate indifference where a nurse gave an inmate a
shot of penicillin, despite the medical staff being told of the
inmate’s allergy to penicillin and the inmate’s medical record
- 9 -

so indicating.

Thomas was cited as an example of deliberate

indifference in Estelle, 429 U.S. at 104 n.10, but it involved
the knowing use of a drug the inmate was allergic to and a
subsequent failure to treat when a physician was informed of the
problem.”).

Nor does the Complaint contain any facts concerning

the medical treatment rendered after Plaintiff experienced his
allergic reaction.

Consequently, the Court finds the Complaint

fails to state a claim and dismisses this action pursuant to §
1915, without prejudice.
ACCORDINGLY, it is hereby
ORDERED:
1.

The Complaint (Doc. #1) is DISMISSED for failure to

state a claim pursuant to § 1915(e)(2)(b)(ii).
2.

Plaintiff’s motion for leave to proceed as a pauper

(Doc. #2) is DENIED.
3.

The Clerk of Court shall terminate any pending motions,

enter judgment accordingly, and close this case.
DONE and ORDERED in Fort Myers, Florida on this
of January, 2014.

SA: alr
Copies: All Parties of Record
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7th

day