Mendez v. Hemphill et al

Filing 48

OPINION AND ORDER denying 34 Motion to Dismiss; denying as moot 44 Motion for Leave to File Reply. Defendants shall file an answer within 21 days of this Opinion and Order. Signed by Judge John E. Steele on 6/16/2017. (RKR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
TRAVIS CHRISTOPHER MENDEZ,
Plaintiff,
v.

Case No: 2:15-cv-510-FtM-29MRM

ROBERT HEMPHILL,
WEXFORD
HEALTH
INC.,

Dr. and
SOURCES,

Defendants.
OPINION AND ORDER
This matter comes before the Court upon review of the motion
to dismiss filed on behalf of Defendants Wexford Health Sources,
Inc.

and

Doctor

Robert

Hemphill

Defendants”) (Doc. #34, Motion).
opposition (Doc. #43, Response).
I.
Plaintiff

Travis

(collectively

“Medical

Plaintiff filed a response in
This case is ripe for review.

Facts

Christopher

Mendez,

a

Florida

prisoner,

initiated this 42 U.S.C. § 1983 action by filing a Civil Rights
Complaint Form (Doc. #1).

Plaintiff is proceeding in this action

on his Third Amended Complaint (Doc. #19, Third Amended Complaint)
against

Doctor

Correctional

Robert

Institution

Hemphill,
in

his

a

physician
official

at

and

Charlotte
individual

capacities, and Wexford Health Sources, the contracted medical
care provider at Charlotte Correctional.

Plaintiff alleges that

Doctor Hemphill and Wexford Health Sources violated his Eighth
Amendment rights by failing to follow the specialists’ recommended
courses of treatment for Plaintiff’s cystic acne and instead
provided cursory treatment amounting to no treatment at all.
Third Amended Complaint at 14.
Specifically, Plaintiff states that since his initial receipt
in the Florida Department of Corrections in 2010, he was diagnosed
with severe adult cystic acne.

Id. at 7.

Plaintiff describes

this condition as “large cysts or boils, w[h]ich vary in size and
are sometimes an inch around (or long), rising up a quarter of an
inch or more and at least a quarter inch deep.”

Id. at 8.

The

acne covers Plaintiff’s chest, back, shoulders, neck, and head.
Id.

Plaintiff states that the “acne cysts rise up and fester for

weeks until they burst and drain a large amount of puss, blood,
and little white acne nodules.”

Id. at 8.

Plaintiff alleges that he saw dermatologists in May 2011 and
May 2013, both of whom recommended Accutane treatment for his
cystic acne.
May

2013

Id. at 7.

dermatologist

Additionally, Plaintiff states that the
recommended

treatment called Isotretinion.

an

Id. at 8.

antibiotic

course

of

Since 2014, however,

when Defendant Hemphill began overseeing Plaintiff’s medical care
at Charlotte Correctional, Plaintiff alleges that Hemphill refused
to provide him with the dermatologists’ recommended treatment.
Id.

Plaintiff claims Hemphill told Plaintiff that: he “doesn’t

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care if Plaintiff is in pain”; that “[the cystic acne] wasn’t going
kill the Plaintiff”; “he doesn’t have to follow specialist orders”;
and “he did not have to make Plaintiff ‘look pretty.’”

Id.

Plaintiff alleges the cystic acne causes him serious pain
when eating, showering, shaving, sleeping, exercising, and even
when turning his head.

Id. at 9.

Plaintiff states that the acne

causes Keloid scaring on his skin and baldness on his scalp.
at 10.

Id.

Plaintiff further claims that the untreated cystic acne

caused him to get a lymph node mass from “acne toxin,” which
required

surgical

Plaintiff

seeks

declaratory

monetary damages.
Defendants
dismiss.

intervention.

Id.

at

12-13.

relief,

injunctive

Wexford

Health

As

relief,

relief,

and

Id. at 16.

Hemphill

and

Sources

move

to

Defendants argue that Plaintiff’s claim “is in essence

that he disagrees with the treatment methods used by Dr. Hemphill.”
Motion at 5.

Defendants further argue that “based upon the

multiple physicians seen, and each of their different suggestions
for treatment, the proper mediation [sic] for Plaintiff [sic]
treatment is not a black and white issue that should be decided by
a court.”

Id. (citing Bass v. Sullivan, 550 F.2d 229, 231-232

(5th Cir. 1977); accord Westlake v. Lucus, 537 F.2d 857, 860 n.5
(1st Cir. 1981) (“where a prisoner has received . . . medical
attention and the dispute is over adequacy of treatment, federal

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courts are generally reluctant to second guess medical judgments
and to constitutionalize claims that sound in tort law.”)).
II.

Standard of Review

In deciding a Rule 12(b)(6) motion to dismiss, the Court
limits

its

consideration

to

well-pleaded

factual

allegations,

documents central to or referenced in the complaint, and matters
judicially noticed.

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

840, 845 (11th Cir. 2004).

The Court must accept all factual

allegations in Plaintiff=s Complaint as true and take them in the
light most favorable to the plaintiff.
F.3d

1282,

1284

(11th

Cir.

2008).

Pielage v. McConnell, 516
Conclusory

allegations,

however, are not entitled to a presumption of truth.

Ashcroft v.

Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1951 (2009) (discussing a
12(b)(6) dismissal); Marsh v. Butler County, Ala., 268 F.3d 1014,
1036 n.16 (11th Cir. 2001).
The Court employs the Twombly-Iqbal plausibility standard
when reviewing a complaint subject to a motion to dismiss.
v. Scott, 610 F.3d 701, 708, fn. 2 (11th Cir. 2010).

Randall

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.”
Ct. 1937, 1949 (2009).
plaintiff

allege

Ashcroft v. Iqbal, 556 U.S. 662, 129 S.
The plausibility standard requires that a

sufficient

facts

“to

raise

a

reasonable

expectation that discovery will reveal evidence” that supports the

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plaintiff=s claim.

Bell Atlantic Corp. v. Twombly, 550 U.S. 544,

556 (2007); Marsh, 268 F.3d at 1036 n.16.

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 the >grounds= of his >entitle[ment] to relief= requires
more than labels and conclusions, and a formulaic recitation of
the elements of a cause of action will not do.”
(citations omitted).

Id. at 555

Thus, “the-defendant-unlawfully harmed me

accusation” is insufficient.

Ashcroft, 129 S. Ct. at 1949.

“Nor

does a complaint suffice if it tenders naked assertions devoid of
further factual enhancement.”

Id.

The “[f]actual allegations

must be enough to raise a right to relief above the speculative
level.”

See Twombly, 550 U.S. 544, 127 S. Ct. 1955, 1965, 1968-

69 (citations omitted) (abrogating Conley, 355 U.S. 41 in part).
Additionally,
requirement.

there

is

no

longer

a

Randall, 610 F.3d at 701.

heightened

pleading

Because Plaintiff is

proceeding pro se, his pleadings are held to a less stringent
standard

than

pleadings

liberally construed.

drafted

by

an

attorney

and

will

be

Hughes v. Lott, 350 F.3d 1157, 1160 (11th

Cir. 2003) (citing Tannenbaum v. United States, 148 F.3d 1262,
1263 (11th Cir. 1998)).
III.

Applicable Law and Analysis

Title 42 U.S.C. § 1983 imposes liability on anyone who, under
color of state law, deprives a person “of any rights, privileges,

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or immunities secured by the Constitution and laws.”

To state a

claim under 42 U.S.C. § 1983, a plaintiff must allege that (1)
defendants 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, a plaintiff must allege

affirmative

causal

connection

between

defendant=s conduct and the constitutional deprivation.

the

Marsh v.

Butler County, Ala., 268 F.3d 1014, 1059 (11th Cir. 2001); Swint
v. City of Wadley, Ala., 51 F.3d 988, 999 (11th Cir. 1995); Tittle
v. Jefferson County Comm’n, 10 F.3d 1535, 1541 n.1 (11th Cir.
1994).
Plaintiff=s claims concerning his medical treatment invoke the
protections of the Eighth Amendment.

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 plaintiffprisoner must allege “acts or omissions sufficiently harmful to
evidence

deliberate

indifference

to

serious

medical

needs.”

Estelle v. Gamble, 429 U.S. 97, 106 (1976); see also Hudson v.
McMillan, 503 U.S. 1, 9 (1992) (opining that a prisoner must
demonstrate a “serious” medical need “[b]ecause society does not
expect that prisoners will have unqualified access to health care.
. . .”).

This showing requires a plaintiff to satisfy both an

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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)).
First, a plaintiff must 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 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.

Bozeman v. Orum, 422 F.3d 1265, 1272 (11th Cir. 2005).

“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)).

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

A doctor=s decision about the type of medicine that should

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, however, does not constitute
deliberate indifference.
opinion”).

Nor does a simple difference in medical

“When the claim turns on the quality of the treatment

provided, there is no constitutional violation as long as the
medical care provided to the inmate is ‘minimally adequate.’”
Blanchard v. White Co. Pet. Ctr. Staff, 262 F. App=x 959, 964 (11th
Cir. 2008) (quoting Harris, 941 F.2d at 1504).

For example, the

Eleventh Circuit previously found “that a doctor's failure to
administer stronger medication . . . pending the arrival of [an]
ambulance

...

[was]

a

medical

judgment

and,

therefore,

an

inappropriate basis for imposing liability under section 1983.”
Id. (citing Adams v. Poag, 61 F.3d 1537, 1547 (11th Cir. 1995)).
Consequently, “[d]eliberate indifference is not established where
an inmate received care but desired different modes of treatment.”
Id.

However, deliberate indifference to serious medical needs is

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shown when prison officials have prevented an inmate from receiving
recommended treatment.

Ancata v. Prison Health Services, 769 F.2d

700, 704 (11th Cir. 1985).
Accepting Plaintiff’s allegations as true and giving the
Plaintiff the benefit of all legitimate inferences as required at
the motion to dismiss stage of review, the Court finds the Third
Amended

Complaint

plausibly

indifference claim.

states

a

medical

deliberate

With regard to whether Plaintiff’s cystic

acne constitutes a serious medical condition, Plaintiff alleges
that two different dermatologists recognized his medical condition
required medication and/or antibiotics, including Accutane and an
antibiotic.
Further, the Third Amended Complaint alleges that Hemphill
refused to follow the dermatologists’ recommendations and did not
provide Plaintiff with either the Accutane or the antibiotic.
Instead, Plaintiff states that Hemphill provided Plaintiff with
face washes and creams.

Plaintiff alleges Hemphill’s course of

treatment amounted to no treatment at all and that Hemphill told
Plaintiff, among other things, that he didn’t care if Plaintiff
was in pain and it was not his job to make Plaintiff look pretty.
Plaintiff alleges that eventually Hemphill’s failure to properly
treat his cystic acne resulted in a mass on his lymph node that
required

surgical

intervention.

Thus,

at

this

stage

of

the

proceedings the Court finds sufficient allegations in the Third

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Amended Complaint to allow the claim to proceed.

Defendants’

motion to dismiss is denied.
ACCORDINGLY, it is hereby
ORDERED:
1.

Defendants’

motion

for

leave

to

file

a

reply

to

Plaintiff’s response (Doc. #44) is DENIED as moot.
2.

Defendants’ motion to dismiss (Doc. #34) is DENIED.

3.

Defendants shall file an answer within twenty-one (21)

days from the date on this Opinion and Order.
DONE and ORDERED in Fort Myers, Florida on this
of June, 2017.

SA: ftmp-1
Copies: All Parties of Record

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16th

day