McClain v. Secretary, DOC et al

Filing 66

OPINION AND ORDER denying as moot re: 65 MOTION to Compel Plantiff to Respond to Discovery. The Court by separate order will enter a discovery schedule. Granting 59 MOTION to dismiss for failure to state a claim terminating MOTION to Strike, denying in its entirety 60 MOTION to dismiss for failure to state a claim MOTION to Strike and Defendant Kubik shall fine an Answer to Plaintiff's Amended Complaint within twenty (20) days of the date of this Order. Plaint iff's Amended Complaint is DISMISSED against Defendant Robert Michael Danzig D.D.S. pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), or in the alternative pursuant to Fed. R. Civ. P. 25(a)(1). Signed by Judge Sheri Polster Chappell on 3/8/2019. (SLU)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
CODY MCCLAIN,
Plaintiff,
v.

Case No: 2:15-cv-594-FtM-38UAM

ROBERT MICHAEL DANZIG, FNU
KUBIK and WEXFORD HEALTH
SOURCES, INC.,
Defendants.
/
OPINION AND ORDER1
Before the Court are motions to dismiss by Defendant Wexford Health Sources,
Inc. (Doc. 59, “Wexford”) and Defendant Dr. Kubik (Doc. 60, “Kubik) filed July 13, 2018.
Plaintiff filed a consolidated response in opposition to the motions (Doc. 61). For the
following reasons, the Court grants Defendant Wexford’s motion, denies Defendant
Kubik’s motion, and sua sponte dismisses Dr. Danzig.
Background
Plaintiff Cody McClain, an inmate incarcerated in the Florida Department of
Corrections, is proceeding on his amended2 civil rights complaint filed under 42 U.S.C. §

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not affect the opinion of the Court.
2 The Court granted Plaintiff leave to file an amended complaint. Doc. 40.

1983 (Doc. 41, “Amended Complaint”). On June 28, 2018, the Court granted Defendants
Jones and Lawrence’s Motion to Dismiss Plaintiff’s Amended Complaint. Doc. 57. In
addition to the above dismissed defendants, the Court construes the Amended Complaint
to name Dr. Kubik, Wexford Health Sources, Inc., and Robert Michael Danzig, D.D.S. as
defendants. Doc. 41 at 1, 3-6. Liberally construed, the Amended Complaint alleges
Eighth Amendment violations stemming from the initial delay and eventual improper
dental treatment McClain received while he was confined in DeSoto Correctional
Institution. See generally Doc. 41 at 4-15. As relief, McClain seeks declaratory relief,
compensatory damages, punitive damages, and costs. Id. at 16.
The following facts are set forth in the Amended Complaint and are accepted as
true for purposes of this Motion. On or about October 17, 2014, McClain submitted a sick
call request to obtain dental services for what he believed was an abscessed molar. Id.
at 6. McClain submitted a second sick call request on December 10, 2014, stating that
his “gums were bleeding and infected” and he “was in pain.” Id. at 7. On December 19,
2014, Dr. Kubik “performed a cursory examination” of Plaintiff’s mouth and dismissed him
“without treatment.”

Id.

From December 20, 2014 to February 2, 2015, McClain

continued to complain of “pain, infection, and bleeding” to unidentified “dental and security
personnel.” Id. at 8. On February 20, 2015, Dr. Kubik “performed a second cursory
examination, and despite the obvious swelling, draining puss, and [McClain’s] complaint
of pain” did not render any treatment. Id. McClain made “several more requests for
treatment” and was in “severe pain” and “endured the disgusting taste of infection” until
April 22, 2015, when he was examined by Dr. Danzig who prescribed McClain antibiotics

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and a pain reliever. Id. at 9. After two follow-up appointments, on June 11, 2015, Dr.
Danzig extracted McClain’s tooth, which McClain asserts was the “wrong tooth.” Id.
That same day, McClain submitted an informal grievance checking the box
“Warden” claiming that Dr. Danzig removed the wrong tooth. Doc. 41-1 at 4. On June
16, 2015, Dr. Danzig responded to the informal grievance stating that he did not pull the
wrong tooth as confirmed by the x-rays, but that McClain has “advanced periodontal
disease” and “probably another tooth in the area still needs attention.” Id. On June 26,
2015, McClain submitted a Request for Administrative Remedy or Appeal checking the
box “Assistant Warden” requesting that he be provided with the number of the tooth pulled
and the number of the tooth on the x-ray. Id. at 5. Defendant Lawrence denied McClain’s
request for administrative remedy or appeal stating, in part, “tooth 14 was correctly
extracted due to periodontal disease. The radiograph clearly confirms the appropriate
treatment was administered.” Id.at 6. On August 14, 2015, McClain submitted a Request
for Administrative Remedy or Appeal checking the box “Secretary, Florida Department of
Corrections” requesting an extension of time to appeal. Id.at 7. On August 21, 2015,
McClain’s request for an extension of time to file an administrative appeal was denied by
“C. Neel.” Id.at 8.
Standard of Review and Applicable Law
In deciding a motion to dismiss, the Court must accept all factual allegations in a
complaint as true and take them in the light most favorable to the plaintiff. Bell Atlantic v.
Twombly, 550 U.S. 544, 556 (2007). In general, a complaint must give the defendants
fair notice of what the plaintiff’s claim is and the grounds upon which it rests to satisfy the
pleading requirements of Fed. R. Civ. P. 8. Id. at 555. In addition, the plaintiff’s claim

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must be plausible on its face to overcome a Rule 12(b)(6) motion to dismiss. Id. at 556.
In particular, the court must be able to draw a reasonable inference from the complaint
that the defendant is liable for the misconduct alleged. Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009).

While the facts need not be detailed, they must “raise a reasonable

expectation that discovery will reveal evidence” in favor of the plaintiff’s claim. Twombly,
550 U.S. at 556. Overall, labels, conclusions, and a formulaic recitation of the elements
of a cause of action are not enough to meet the plausibility standard. Id. at 555. Dismissal
is warranted under Fed. R. Civ. P. 12(b)(6) if the alleged claim is not supported by enough
factual allegations to raise a reasonable expectation of relief. Id.
To state a claim for violating 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). To prove medical indifference, the
plaintiff must demonstrate:
(1) he had a serious medical need (the objective component); (2) the prison
official acted with deliberate indifference to that serious medical need (the
subjective component); and (3) the official's wrongful conduct caused the
injury. To satisfy the subjective component, the plaintiff must prove the
prison official subjectively knew of a risk of serious harm, the official
disregarded that risk, and the official's conduct was more than gross
negligence.
Fischer v. Fed. Bureau of Prisons, 349 F. App'x 372, 374 (11th Cir. 2009) (citing Goebert
v. Lee County, 510 F.3d 1312, 1326-27 (11th Cir.2007)). Mere inadvertence, negligence,
medical malpractice, or a simple difference in medical opinion do not rise to the level of
deliberate indifference. See Estelle, 429 U.S. at 106; Waldrop v. Evans, 871 F.2d 1030,
1033 (11th Cir. 1989). In a delay-of-treatment case, the relevant factors include: “(1) the

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seriousness of the medical need; (2) whether the delay worsened the medical condition;
and (3) the reason for the delay.” Goebert, 510 F.3d at 1327.
A supervisory official cannot be held liable under a theory of respondeat superior
or vicarious liability in a § 1983 action. See Iqbal 556 U.S. at 676; Brown v. Crawford,
906 F. 2d 667, 671 (11th Cir. 1990). Instead, supervisory liability under § 1983 occurs
when the supervisor either (1) personally participates in the alleged unconstitutional
conduct; or (2) when there is a causal connection between the actions of a supervising
official and the alleged constitutional violation. Cottone v. Jenne, 326 F.3d 1352, 1360
(11th Cir. 2003). A causal connection is shown when (1) “a history of widespread abuse
puts the responsible supervisor on notice of the need to correct the alleged deprivation,
and he or she fails to do so,” or (2) “a supervisor's custom or policy results in deliberate
indifference to constitutional rights,” or (3) “facts support an inference that the supervisor
directed the subordinates to act unlawfully or knew that subordinates would act unlawfully
and failed to stop them from doing so.” Valdes v. Crosby, 450 F.3d 1231, 1237 (11th Cir.
2006) (internal quotations and citations omitted).
Analysis
Defendant Wexford
Defendant Wexford seeks dismissal of the Amended Complaint because as a
corporate entity it cannot be held vicariously liable for the acts of its employees; and,
instead liability can only attach if an official custom or practice caused the alleged
deprivation of constitutional rights. Doc. 59 at 7. Wexford argues that the Amended
Complaint is devoid of any such allegations. Id. at 13. Alternatively, Wexford seeks to

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strike Plaintiff’s claims for punitive damages on the basis that the Amended Complaint is
insufficient to show conduct motivated by an evil intent. Ibid.
Wexford, although a private entity, may be held liable under § 1983 because it was
tasked with providing dental and medical care to inmates within the Florida Department
of Corrections, which is a “function traditionally within the exclusive prerogative of the
state.” Buckner v. Toro, 116 F.3d 450, 452 (11th Cir. 1997). Nonetheless, because it is
a corporate entity, the Monell3 policy or custom requirement applies. Ibid. Thus, Plaintiff
must allege facts that Wexford “had a ‘policy or custom’ of deliberate indifference that led
to the violation of his constitutional right.” Craig, v. Floyd Cty., 643 F.3d 1306, 1310 (11th
Cir. 2011).

“Because a [corporation] rarely will have an officially-adopted policy of

permitting a particular constitutional violation, most plaintiffs. . . must show that the
[corporation] has a custom or practice of permitting it and that the [corporation's] custom
or practice is ‘the moving force [behind] the constitutional violation.’ ” Grech v. Clayton
Cty., Ga., 335 F.3d 1326, 1330 (11th Cir. 2003) (citations omitted, and alterations added).
Thus, for Wexford to be liable, Plaintiff must identify a policy or practice which was “the
moving force” behind injury or harm to Plaintiff. See Fields v. Corizon Health, Inc., 490
F. App'x. 174, 183-85 (11th Cir. 2012). And, there must be “a direct causal link between
the policy or custom and the alleged constitutional deprivation.” Canton, Ohio v. Harris,
489 U.S. 378, 385 (1989).
Here, the Amended Complaint is completely devoid of any claim that the delay in
providing dental care or the alleged improper dental treatment eventually rendered to
Plaintiff was due to any custom, policy or practice instituted by Wexford. Instead, the

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Monell v. Dep’t of Social Servs. Of New York, 436 U.S. 658, 690-91 (1978).

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Amended Complaint identifies Wexford as the corporation contracted by the Florida
Department of Corrections to provide dental treatment and the employer of Dr. Kubik and
Dr. Danzig. Doc. 41 at 5. Liberally construed, the Amended Complaint appears to
attribute liability to Wexford solely because it employed Dr. Kubik and Dr. Danzig. A
corporation cannot be held vicariously liable under § 1983 for any inaction or action taken
by its employees.

McDowell v. Brown, 392 F.3d 1283, 1289 (11th Cir. 2004).

Consequently, the Court will grant Defendant Wexford’s motion to dismiss.
Defendant Kubik
Defendant Kubik seeks dismissal of the Amended Complaint on the basis that
Plaintiff has failed to plead that Kubik’s actions were intended to punish Plaintiff or
otherwise recklessly in intentionally harm him.” Doc. 60 at 6. In support, Defendant Kubik
cites to cases where an inmate disagreed with the medial treatment rendered by the
defendant. Id. at 5. Alternatively, Kubik seeks to strike Plaintiff’s claims for punitive
damages on the basis that the Amended Complaint is insufficient to show conduct
motivated by an evil intent. Id. at 7.
In order to raise an Eighth Amendment, claim for deliberate indifference, 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). More specifically,
plaintiffs must allege: (1) “an objectively serious medical need that, if left unattended,
poses a substantial risk of serious harm”, and (2) “an objectively insufficient response”
that was “poor enough to constitute an unnecessary and wanton infliction of pain, and not
merely accidental inadequacy, negligence in diagnosis or treatment, or even medical
malpractice actionable under state law.” Dennis v. Warden, Ware State Prison, 648 Fed.

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Appx. 918, 920 (citations omitted). For Eighth Amendment purposes, the “medical need
of the prisoner need not be life threatening.” Washington v. Dugger, 860 F.2d 1018, 1021
(11th Cir.1989). In addition, each individual defendant must: (3) “be aware of facts from
which the inference could be drawn that a substantial risk of serious harm exists,” and (4)
“must also draw the inference.” Harper v. Lawrence Cnty., Ala., 592 F.3d 1227, 1234
(11th Cir. 2010) (citations omitted). “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.” Id. (alterations and citations
omitted).
The Court finds that the Amended Complaint adequately states a claim for
deliberate indifference under the Eighth Amendment against Defendant Kubik. Here,
Plaintiff submitted his first sick call request in October 2014 to obtain dental services for
what Plaintiff believed was an abscessed molar. Doc. 41 at 6. After not receiving a callout, he submitted a second sick call request on December 10, 2014, stating that his “gums
were bleeding and infected” and he “was in pain.” Id. at 7. Finally, on December 19,
2014, two months after he first requested dental care, Dr. Kubik examined Plaintiff and
only “performed a cursory examination” of Plaintiff’s mouth and dismissed him “without
treatment.” Id. McClain continued to complain of “pain, infection, and bleeding” from
December 20, 2014 to February 2, 2015, until he was seen again on February 20, 2015
by Dr. Kubik, who again “performed a second cursory examination, and despite the
obvious swelling, draining puss, and [McClain’s] complaint of pain” did not render any
treatment. Id. McClain eventually received dental treatment on April 22, 2015, when he
was examined by Dr. Danzig who prescribed antibiotics and a pain reliever. Id. at 9.

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The courts have universally agreed that a dental problem of whatever nature that
results in substantial pain qualifies as a serious medical need. Farrow v.West, 320 F.3d
1235, 1243–45 (11th Cir. 2003) (significant pain and weight loss resulting from lack of
dentures constituted a serious medical need); Young v. Kazmerski 266 F. App'x 191, 193
(3rd Cir. 2008) (unnecessary pain arising from the denial and delay of adequate dental
care is, objectively, a serious medical need); McCarthy v. Place, 2008 WL 5069039 at *4
(6th Cir. Dec.2, 2008) (unpublished) (significant pain and discomfort resulting from the
failure to treat cavity and toothache constituted serious medical need); Hartsfield v.
Coburn, 371 F.3d 454, 456 (8th Cir. 2004) (extreme pain resulting from loose and infected
teeth constituted a serious medical need); Stack v. McCotter, 79 F. App'x 383, 388–89
(10th Cir.2003) (persistent pain from failure to treat inmate's periodontitis was itself
sufficient to establish that his dental need was objectively serious despite fact that he
eventually received satisfactory treatment and could show no permanent injury resulting
from the delay in treatment). Inmates have a right to timely treatment for serious medical
conditions. See Gobert v. Lee County, 510 F.3d 1312, 1331 (11th Cir. 2007). Under
section 1983 “knowledge of the need for medical care and intentional refusal to provide
that care has consistently been held to surpass negligence and constitute deliberate
indifference.” Carswell v. Bay Cty., 854 F.2d 454, 457 (11th Cir. 1988) (quoting Ancata
v. Prison Health Servs., Inc., 769 F.2d 700, 704 (11th Cir. 1985). Here, despite Plaintiff
exhibiting the need for dental treatment, Defendant Kubik elected to take no action.
Inaction in the face of a need for medical treatment constitutes deliberate indifference.
Gobert, 510 F.3d at 1331. Further, given the undeveloped record, the Court declines to
rule on what motivated Defendant Kubik’s conduct to determine whether Plaintiff is

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entitled to punitive damages should he prevail on his claim because such an inquiry is
fact intensive.

Consequently, the Court will permit Plaintiff the opportunity through

discovery to develop the facts necessary to support his request for punitive damages.
Defendant Danzig
As of the date of this Order, despite repeated attempts, service has not been
effectuated upon Dr. Danzig. On May 29, 2018, Defendant Wexford filed a Notice of
Filing of Death of Defendant Danzig (Doc. 53, Notice). It is unclear whether the Notice
was served upon the Estate of Dr. Danzig to trigger the 90-day time-period within which
Plaintiff was required to move for a substitution of defendant. See Fed. R. Civ. P. 25(a)(1),
(3). To trigger the 90-day period mandated by Rule 25,4 the party serving the notice of
death must identify and serve the notice of death on the decedent’s representative.
Williams v. Scott, Case No. 07-22617-CIV, 2011 WL 541343, at *3 (S.D. Fla. Feb. 8,
2011) (citations omitted).
Nonetheless, the Court finds that the Amended Complaint fails to state a claim
against Dr. Danzig.

According to the Amended Complaint, Dr. Danzig prescribed

antibiotics and pain medication the first time he examined Plaintiff on April 22, 2015, and
then scheduled Plaintiff for two follow-up appointments before Dr. Danzig extracted
Plaintiff’s abscessed tooth. Doc. 41 at 8-9. Plaintiff contends that Dr. Danzig extracted
the wrong abscessed tooth. Id. at 9-10. However the exhibits attached to Plaintiff’s
Amended Complaint indicate that the x-rays confirmed that Dr. Danzig pulled the correct
tooth and Plaintiff was suffering from “advanced periodontal disease” and likely “another

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Rule 25 provides that if a motion for substitution is not made within 90 days after service
of a statement noting the death of a party, the action by or against the decedent must be
dismissed. Fed. R. Civ. P. 25(a)(1).

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tooth in the area still needs attention.” Doc. 41-1 at 4. At most, the Amended Complaint
alleges a simple difference of medical opinion between Plaintiff and Dr. Danzig, which
fails to support a claim of deliberate indifference. Harris v. Thigpen, 941 F.2d 1495, 1504
(11th Cir. 1991) (“[A] simple difference in medical opinion between the prison’s medical
staff and the inmate as to the latter’s diagnosis or course of treatment [does not] support
a claim of cruel and unusual punishment.”). Further, even assuming that Dr. Danzig
pulled the wrong tooth (not conceded by the Court) which may constitute medical
malpractice, medical malpractice does not give rise to a § 1983 cause of action. Estelle,
429 U.S. at 106 (“Medical malpractice does not become a constitutional violation merely
because the victim is a prisoner.”). See also Waldrop v Evans, 871 F.2d 1030, 1033 (11th
Cir. 1989). Consequently, the Court dismisses Plaintiff’s Amended Complaint against
Defendant Dr. Danzig.
Accordingly, it is now
ORDERED:
1. Defendant Wexford Health Sources, Inc. Motion to Dismiss Amended
Complaint is GRANTED (Doc. 59).
2. Defendant Kubik’s Motion to Dismiss (Doc. 60) is DENIED in its entirety and
Defendant Kubik shall file an Answer to Plaintiff’s Amended Complaint within
twenty (20) days of the date of this Order.
3. Plaintiff’s Amended Complaint is DISMISSED against Defendant Robert
Michael Danzig D.D.S. pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), or in the
alternative pursuant to Fed. R. Civ. P. 25(a)(1).

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4. Defendant Wexford’s Motion to Compel Discovery Responses (Doc. 65) is
DENIED as moot.
5. The Court by separate order will enter a discovery schedule.
DONE and ORDERED in Fort Myers, Florida this 8th day of March 2019.

SA: FTMP-1
Copies: All Parties of Record

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