Robinson v. Crews et al
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
Case No: 2:13-cv-854-FtM-29DNF
MICHAEL CREWS, Secretary of
The Florida Department of
Corrections, R. HEMPHILL,
Doctor, and L. SEVERSON,
ORDER OF DISMISSAL
This matter comes before the Court upon review of the file.
Plaintiff Antoine Robinson, a Florida prisoner, initiated this
Complaint) pursuant to 42 United States Code, Section 1983, and
Plaintiff seeks leave to proceed in forma pauperis.
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.
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
See 28 U.S.C. § 1915A(a), (b)(1), (b)(2).
§ 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).
complaint, if, inter alia, it fails to state a claim upon which
relief may be granted.
See also § 1915(e)(2).
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).
dismissals apply to dismissals under § 1915(e)(2)(ii).
Montford, 517 F.3d 1249, 1252 (11th Cir. 2008); Mitchell v.
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1915(e)(2)(B)(ii) is identical to the screening language of §
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).
presumption of truth.
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.”
Ashcroft, 556 U.S. at 678.
discovery will reveal evidence” that supports the plaintiff’s
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
recitation of the elements of a cause of action will not do.”
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).
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Id. at 555 (citations omitted).
harmed me accusation” is insufficient.
Ashcroft, 556 U.S. 678.
“Nor does a complaint suffice if it tenders naked assertions
“[f]actual allegations must be enough to raise a right to relief
above the speculative level.”
Twombly, 550 U.S. at 555.
Plaintiff names the following Defendants: Micheal Crews,
Corrections; Doctor R. Hemphill; and L. Severson.
According to the Complaint, Plaintiff had boils and was
Plaintiff states that he declared a medical emergency due to the
Plaintiff states that he experienced “painful burns around [his]
mouth” from the bactrine.
The Complaint is devoid of any
other factual allegations concerning the treatment for his boils
generally id.; see also Doc. #1-1.
Plaintiff states that as a result of his allergic reaction
compensation with the Warden’s Office.
response, correctional officials wrote:
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“Compensated” for an allergic reaction to
medication. Your medical record indicates
you may have had symptoms of an allergy to a
This is not something that is
related to the quality of your care.
autoimmune system. That is not something we
would be responsible for.
Grievance is DENIED. . . . . .
Doc. #1-2 at 1.
The response to Plaintiff’s formal grievance
was signed by “Dr. R. Hemphill and L. Severson.”
relief, Plaintiff seeks compensatory damages totaling $50,000
and punitive damages totaling $200,000.
Complaint at 6.
In any § 1983 action, the initial inquiry must focus on
(1) whether the person engaged in the
conduct complained of
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
Parrat v. Taylor, 451 U.S. 527, 535 (1981), overruled on other
Apalachee Cmty. Mental Health Servs., Inc., 840 F.2d 797, 800
In addition, a plaintiff must allege and establish an
affirmative casual connection between the defendant’s conduct
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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.
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.
prison grievance procedure does not provide an inmate with a
constitutionally protected interest).
The Court liberally construes the Complaint as attempting
In order to state a claim for a violation under the
medical needs. Estelle v. Gamble, 429 U.S. 97 (1976); Farrow v.
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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
egregious and culpable than mere negligence. Estelle, 429 U.S.
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).
Thus, “medical treatment
incompetent, inadequate, or excessive as to shock the conscience
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
examples of matters for medical judgment include whether an xray or other form of treatment are indicated. Id. at 107.
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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
Hill v. Dekalb Reg’l Youth Det. Ctr., 40 F.3d 1176 (11th
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
medication) was sufficiently serious and that a named prison
official was aware of the facts suggesting a substantial risk of
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.
are no facts suggesting that Defendant Hemphill was aware that
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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
experience an allergic reaction.
Thus, the instant case is
similar to James v. Federal Bureau of Prisons, 79 F. App’x 417,
tetanus vaccine, which everyone knew the plaintiff was allergic
to, instead of a routine TB test.
Id. at 418.
Because no one
court found the Complaint failed to state an Eighth Amendment
The Court found the case distinguishable from other
cases where correctional or medical officials knew the inmate
prescribed the medicine to the inmate’s detriment.
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
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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
Nor does the Complaint contain any facts concerning
the medical treatment rendered after Plaintiff experienced his
Consequently, the Court finds the Complaint
fails to state a claim and dismisses this action pursuant to §
1915, without prejudice.
ACCORDINGLY, it is hereby
The Complaint (Doc. #1) is DISMISSED for failure to
state a claim pursuant to § 1915(e)(2)(b)(ii).
Plaintiff’s motion for leave to proceed as a pauper
(Doc. #2) is DENIED.
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.
Copies: All Parties of Record
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