Loveland v. Scott et al
Filing
42
ORDER granting 22 motion to dismiss and all claims against Mike Scott are dismissed; granting 29 motion to dismiss; granting 37 motion to dismiss and all claims against Small, Lourdes, Carrerro, Mason, and Thomas are dismissed. Plaintiff may file an amended complaint against Thomas within 14 days. See Order for details. Signed by Judge John E. Steele on 5/20/2016. (RKR)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
ROBERT E. LOVELAND,
Plaintiff,
v.
Case No: 2:15-cv-621-FtM-99CM
MIKE SCOTT, ANDREW SMALL,
LOURDES
CARRERO,
RHONDA
MASON, and SHIRLETTE THOMAS,
Defendants.
ORDER
This matter comes before the Court upon the following:
Defendant Mike Scott’s Motion to Dismiss
Plaintiff's Complaint (Doc. 22, filed February
8, 2016);
Plaintiff's Response to Defendant Mike Scott’s
Motion to Dismiss (Doc. 24, filed February 18,
2016);
Defendants Small, Carrero, Mason, and Thomas’
Motion to Dismiss Plaintiff's Complaint (Doc.
29, filed February 22, 2016);
Defendants Small, Carrero, Mason, and Thomas’
Supplemental Motion to Dismiss Plaintiff's
Complaint
for
Failure
to
Exhaust
Administrative Remedies (Doc. 37, filed March
15, 2016); and
Plaintiff's Reply in Opposition to Defendants
Small, Carrero, Mason, and Thomas’ Motions to
Dismiss (Doc. 39, filed March 25, 2016).
For the reasons set forth in this Order, the motions to
dismiss filed by Defendants Scott, Small, Carrero, Mason, and
Thomas are granted.
Plaintiff may file an amended complaint
against Defendant Thomas.
I.
Pleadings 1
A.
Complaint
During the nights between August 19, 2015, and September 2,
2015, Plaintiff began having hypoglycemic episodes related to his
diabetes (Doc. 1 at 6).
As a result, he requested a 5-unit
decrease in his evening insulin dose. Id.
On September 2, 2015, physician’s assistant Defendant Thomas
cut Plaintiff's morning and evening insulin doses in half, from 30
and 20 units, to 15 and 10 units (Doc. 1 at 6).
For approximately
one week following the decrease, Plaintiff’s blood sugar was
“excessively high” 24 hours a day. Id.
Defendant
Thomas
increased
Plaintiff's
On September 9, 2015,
morning
insulin
units, but his evening insulin was left at 10 units. Id.
September
9,
2015
until
the
date
of
Plaintiff's
to
25
From
complaint
(September 30, 2015), Plaintiff's “blood sugar has run high from
dinner to breakfast.” Id. at 7.
Plaintiff
has
filed
“multiple
complaints
and
grievances”
regarding Defendant Thomas’ adjustments to his insulin dosage, but
1
The facts are those set forth in Plaintiff's complaint (Doc.
1).
For the purpose of this Order, all factual assertions are
considered to be true. However, this Court is not bound to accept
a legal conclusion as true, even if couched as a factual
allegation. Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).
- 2 -
none of the named defendants has done anything to remedy the
situation. Id.
Plaintiff asserts that he suffers headaches, muscle cramps,
dehydration, blurred vision, drowsiness, irritability, and short
term memory loss due to his lack of sufficient insulin (Doc. 1 at
7).
He also asserts that he does not eat some of his food in an
attempt to control his blood sugar, resulting in frequent hunger.
Id.
Plaintiff asserts that the jail’s failure to provide him with
adequate insulin is cruel and unusual punishment. 2 Plaintiff seeks:
an
order
from
the
Court
that
Defendants
properly
treat
his
diabetes; the imposition of fines and reprimands; damages for pain
and suffering in the amount of one million dollars per defendant;
and Plaintiff's legal fees and costs of litigation. Id. at 8.
B.
Motions to Dismiss
On February 8, 2016, Defendant Scott filed a motion to dismiss
(Doc.
22).
Defendant
Scott
argues
that
Plaintiff’s
complaint
merely describes a disagreement with the medical care he received,
2
It is unclear from the pleadings whether Plaintiff is a
prisoner or a pre-trial detainee at the Lee County Jail.
If
Plaintiff is a pre-trial detainee, his cruel and unusual punishment
claim sounds properly in the Fourteenth Amendment right to due
process of law rather than in the Eighth Amendment. See Lancaster
v. Monroe Cty., Alabama, 116 F.3d 1419, 1425 n.6 (11th Cir. 1997).
Nevertheless, allegations of cruel and unusual punishment are
analyzed in identical fashions regardless of whether they arise
under the Due Process Clause or the Cruel and Unusual Punishment
Clause of the United States Constitution. Taylor v. Adams, 221
F.3d 1254, 1257 n.3 (11th Cir. 2000).
- 3 -
and that his claims of negligence are insufficient to state a claim
of deliberate indifference (Doc. 22 at 7, 10).
On February 22, 2016, Defendants Small, Lourdes, Carrero,
Mason, and Thomas (“Armor Defendants”) filed a motion to dismiss
Plaintiff's complaint (Doc. 29).
The Armor Defendants argue that
“it is clear that Plaintiff's allegations are directed at alleged
medical negligence – not deliberate indifference.” (Doc. 29 at 6).
The Armor Defendants also argue that Plaintiff has not exhausted
his administrative remedies (Doc. 29 at 9).
Because the Armor
Defendants did not develop their exhaustion claim in the motion to
dismiss, the Court directed them to file a supplemental motion to
dismiss addressing the exhaustion claim (Doc. 32 at 3).
The Armor
Defendants complied (Doc. 37), and Plaintiff filed a response in
opposition to both of the Armor Defendants’ motions to dismiss
(Doc. 39). 3
3
In response to the motion to dismiss for lack of exhaustion,
Plaintiff does not claim to have completed the three-level
grievance
procedure
required
to
completely
exhaust
his
administrative remedies.
Instead, he argues that Armor
Healthcare’s grievance policy was not explained to him because
Armor was not the healthcare provider when he was initially
admitted to the jail (Doc. 39). He also attached a copy of an
alleged grievance appeal from the three grievances he filed
regarding his insulin dosage during the times at issue in the
complaint (Doc. 39-3).
Given that the grievances contained
sufficient facts to apprise the jail of Plaintiff's medical
concerns and given Armor’s alleged failure to apprise Plaintiff of
the grievance procedure, the Court will address Plaintiff's Eighth
Amendment claims.
- 4 -
II.
Standard of Review
A.
Motions to Dismiss
On a motion to dismiss, this Court accepts as true all
allegations in the complaint and construes them in the light most
favorable to the plaintiff. Jackson v. BellSouth Telecomms., 372
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:
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 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.
- 5 -
First, a reviewing court must determine whether a Plaintiff's
allegation is merely an unsupported legal conclusion that is not
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.
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).
B.
Deliberate Indifference under 42 U.S.C. § 1983
Title 42 U.S.C. § 1983 imposes liability on anyone who, under
color of state law, deprives a person “of any rights, privileges,
or immunities secured by the Constitution and laws[.]” To state a
claim under 42 U.S.C. § 1983, Plaintiff must allege: (1) the
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).
In
the
instant
complaint,
Plaintiff
alleges
that
the
defendants were deliberately indifference to his diabetes (Doc.
1).
The Eighth Amendment forbids “cruel and unusual punishments.”
U.S. Const. amend. VIII. The Supreme Court has interpreted the
Eighth Amendment to include “deliberate indifference to serious
medical needs of prisoners[.]” Estelle v. Gamble, 429 U.S. 97, 104
- 6 -
(1976). “To prevail on a deliberate indifference to serious medical
need claim, Plaintiffs must show: (1) a serious medical need; (2)
the defendants' deliberate indifference to that need; and (3)
causation between that indifference and the plaintiff's injury.”
Mann v. Taser Int'l, Inc., 588 F.3d 1291, 1306–07 (11th Cir.
2009). 4
A
plaintiff
can
demonstrate
deliberate
indifference
by
establishing the defendant (1) had a subjective knowledge of a
risk of serious harm, (2) disregarded that risk, and (3) engaged
in conduct that is more than mere negligence. Brown v. Johnson,
387 F.3d 1344, 1351 (11th Cir. 2004).
III. Analysis
A.
Plaintiff's claims against Defendant Scott are dismissed
for failure to state a claim upon which relief can be
granted
The only mention of Defendant Scott in the complaint, is
Plaintiff's assertion that “Mike Scott is the sheriff of Lee
County,
Florida,
and
is
in
charge
[of]
custody, and control.” (Doc. 1 at 5).
that
Defendant
Scott
was
personally
4
Mr.
Loveland’s
care,
Plaintiff does not assert
involved
in
Plaintiff's
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, and, in either case, must be one that if left
unattended poses a substantial risk of serious harm. Kelley v.
Hicks, 400 F.3d 1282, 1284 n. 3 (11th Cir. 2005). The Court will
assume, without deciding, that Plaintiff's diabetes is a serious
medical need.
- 7 -
medical care or that he established a policy that resulted in the
administration of deficient insulin dosage for the prisoners at
the Lee County Jail.
Rather, in response to Defendant Scott’s
motion to dismiss, Plaintiff explains that he has named Defendant
Scott in the complaint because “[t]he actions of the Defendant in
contracting with Armor Correctional to provide medical care and
his
reliance
upon
Armor
Correctional
and
its
healthcare
professionals to provide such healthcare for inmates incarcerated
at Lee County Jail, leave him burdened with the liability resulting
from
the
deliberate
indifference
to
the
Plaintiff's
serious
medical needs.” (Doc. 24 at 4).
To
the
extent
Plaintiff
urges
that
Defendant
Scott
is
responsible for the negligence or deliberate indifference of his
subordinates, he does not state a claim.
It is well established
in the Eleventh Circuit that “supervisory officials are not liable
under § 1983 for the unconstitutional acts of their subordinates
on the basis of respondeat superior or vicarious liability.”
Hartley v. Parnell, 193 F.3d 1263, 1269 (11th Cir. 1999) (internal
quotation marks and citation omitted); Monell v. Dep’t of Soc.
Servs.,
436
U.S.
658,
691
&
694
n.
58
(1978).
Likewise,
supervisors, employers, and private contractors cannot be sued
under § 1983 simply on a theory of respondeat superior. See Kruger
v. Jenne, 164 F. Supp. 2d 1330, 1333–34 (S.D. Fla. 2000) (citing
Powell v. Shopco Laurel, Co., 678 F.2d 504 (4th Cir. 1982))
- 8 -
(explaining that [supervisor] who provided medical care for state
inmates could not be sued under § 1983 on respondeat superior
theory). Instead, supervisory liability under § 1983 occurs when
the
supervisor
personally
participates
in
the
alleged
unconstitutional conduct or 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).
Because they are based solely upon a theory of respondeat
superior, and because Plaintiff does not allege a sufficient causal
connection between Defendant Scott and the alleged conduct that
led to the changes in his insulin, Plaintiff's claims against
Defendant Scott are due to be dismissed pursuant to Rule 12(b)(6)
of the Federal Rules of Civil Procedure.
B.
Plaintiff's claims of deliberate indifference against
the Armor Defendants are dismissed for failure to state
a claim upon which relief may be granted
1.
Defendants Andrew Small and Lourdes Carrero
It is unclear why Plaintiff believes Defendants Small and
Carrero were deliberately indifferent to his diabetes.
Plaintiff
asserts that Andrew Hall is the Health Services Administrator for
Armor Correctional and that Defendant Carrero is the medical
director hired by Armor to treat his diabetes (Doc. at 5-6).
Plaintiff does not allege that either of these defendants was
personally involved in the treatment of his diabetes or developed
- 9 -
a custom or policy to deprive diabetic prisoners of insulin.
Rather, he attributes liability to these defendants based solely
upon Defendant Thomas’ actions in adjusting his insulin dosage.
However, as noted, even if Thomas’ actions were constitutionally
infirm, supervisory officials are not liable under § 1983 for the
unconstitutional
acts
of
their
subordinates
on
the
basis
of
respondeat superior or vicarious liability. See discussion infra
Part
IV(A).
Therefore,
to
the
extent
Plaintiff
urges
that
Defendants Small and Carrero are responsible for the negligence or
deliberate indifference of Defendant Thomas, he does not state a
claim.
See discussion supra Defendant Scott.
Plaintiff's claims
against Defendants Small and Carrero are due to be dismissed
pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.
2.
Defendant Rhonda Mason
It is unclear why Plaintiff believes Defendant Mason was
deliberately indifferent to his medical needs.
Plaintiff's only
assertion against Defendant Mason is that she is the director of
nursing at the Lee County Jail and that she has “responded to some
of Plaintiff's grievances and is in charge of the nurses who visit
and treat Mr. Loveland on a daily basis.” (Doc. 1 at 6).
As noted, supervisory officials are not liable under § 1983
for the unconstitutional acts of their subordinates on the basis
of respondeat superior or vicarious liability. See discussion
supra Defendant Scott.
Moreover, a review of the grievances to
- 10 -
which
Defendant
Mason
responded
does
not
evince
deliberate
indifference on the part of this defendant. 5
Plaintiff wrote two
grievances
he
on
September
2,
2015
in
which
complained
that
Defendant Thomas halved his insulin dosage in response to his selfreported hypoglycemic episodes (Doc. 37-4 at 6-7).
On September
3, 2015, Plaintiff again complained that Defendant Thomas refused
to change his insulin dosage. Id. at 8.
Defendant Mason responded
to the three grievances on September 9, 2015 with the following
letter:
I am in receipt of your grievances requesting
a change in your medication.
I would first
like to assure you that you are being cared
for by a professional healthcare provider and
she is in charge of your health at this time.
As a health care professional she will order
the medications needed to help you control
your blood sugars. If you are having problems
with your medications you need to put in a
sick call request form and bring those
problems to the attention of the health care
provider.
5
The Armor Defendants attached Plaintiff's grievances to
their second motion to dismiss (Doc. 37-4). Although generally
nothing beyond the face of the complaint and the attached documents
are considered when analyzing a motion to dismiss, the court will
“make an exception where the plaintiff refers to a document in his
complaint, it is central to his claim, the contents are not
disputed, and the defendant attaches it to his motion to dismiss.”
Bryant v. Citigroup, Inc., 512 F. App’x 994 (11th Cir. 2013)
(citing Fin. Sec. Assurance, Inc. v. Stephens, Inc., 500 F.3d 1276,
1284 (11th Cir. 2007)).
Because the allegations against
Defendants Small, Carrera, and Mason concern their responses to
his grievances, the grievances are central to Plaintiff's claims.
However, for the purposes of this Order, the Court will not
consider any grievances or responses filed after October 5, 2015,
the date of Plaintiff's complaint.
- 11 -
Furthermore, after reviewing [your] chart I
found that your AM insulin is ordered at 25
units beginning today.
(Doc.
37-4
at
9).
Defendant
Mason’s
conduct
in
reviewing
Plaintiff's grievances and her message to Plaintiff that he needed
to address his concerns with his healthcare provider does not show
that Defendant Mason displayed conduct that went beyond gross
negligence.
To the extent Plaintiff predicates liability on
Defendant Mason solely for denying his grievances, Plaintiff fails
to state a § 1983 claim. See Haverty v. Crosby, No. 1:05-cv-00133,
2006 WL 839157, at *5 (N.D. Fla. Mar. 28, 2006) (reasoning that a
supervisor
is
not
liable
for
conduct
brought
to
his
or
her
attention by a grievance form, unless the knowledge imputed to the
supervisor and the refusal to prevent the harm rises to the level
of a custom, policy, or practice) (citing Wayne v. Jarvis, 197
F.3d 1098, 1106 (11th Cir. 1999)(overruled in part on grounds not
applicable here)).
Plaintiff's claims against Defendant Mason are
due to be dismissed pursuant to Rule 12(b)(6) of the Federal Rules
of Civil Procedure.
3.
Defendant Shirlette Thomas
Plaintiff asserts that on September 2, 2015, Defendant Thomas
adjusted his insulin dosage at his request, but instead of cutting
his evening dosage by 5-units (as requested), Defendant Thomas
decreased both his morning and evening dosages from the original
dosage of 30 and 20 units to 15 and 10 units. Id.
- 12 -
After a week,
Defendant Thomas raised his morning dosage to 25 units, but his
evening dosage remained at 10 units. Id.
Plaintiff asserts that
his blood sugar runs high all night due to the 10 unit decrease in
the evening insulin. Id. at 7.
He claims that the high blood
sugar causes numerous physical symptoms and that he has complained
“to the nurses,” regarding the cut in insulin. Id.
He claims that
he is forced to forego some of his food and commissary snacks in
order to control his blood sugar. Id.
It is clear from the face of the complaint that Defendant
Thomas responded to Plaintiff's initial complaints regarding his
insulin, albeit not in the manner he desired. Plaintiff's mere
disagreement with Defendant Thomas’ medical judgment regarding the
proper amount of insulin necessary to treat his diabetes cannot
sustain a claim of deliberate indifference -- even if Defendant
Thomas’ judgment amounted to medical malpractice. Estelle, 429
U.S. at 107 (“Medical malpractice does not become a constitutional
violation merely because the victim is a prisoner.”); Wilson v.
Smith, 567 F. App’x 676, 678 (11th Cir. 2014) (“'[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 deliberate indifference.”) (quoting
Harris
v.
Thigpen,
941
F.2d
1495,
1505
(11th
Cir.
1991)).
Plaintiff has not sufficiently alleged that Defendant Thomas had
a subjective knowledge of a risk of serious harm if she did not
- 13 -
meet
Plaintiff's
demands
regarding
insulin
dosage
and
then
disregarded that risk by conduct that is more than mere negligence.
Brown, 387 F.3d at 1351.
Therefore, Plaintiff's claims against
Defendant Thomas are due to be dismissed pursuant to Rule 12(b)(6)
of the Federal Rules of Civil Procedure. See, e.g., Aaron v.
Finkbinder, 793 F. Supp. 734, 738 (E.D. Mich. 1992) (noting that
an eight unit disagreement in the proper insulin dosage could not
support a claim of deliberate indifference and stating that “[t]he
fact that [the defendant] provided plaintiff with any insulin shows
a lack of indifference.”); McCargo v. James, No. 13-0529, 2013 WL
5674353,
at
*3
(D.N.J.
Oct.
16,
2013)
(“In
this
case
[the
defendant's] action in giving plaintiff the incorrect dosage of
insulin is more akin to malpractice/negligence claim rather than
deliberate indifference.”); Smith v. Rector, No. 13-cv-837-GPM,
2013 WL 5436371, at *3 (S.D. Ill. 2013) (“While Plaintiff believes
his prescribed dosage of insulin is too high, this allegation, if
proven true, points to possible negligence or malpractice at worst.
It does not suggest deliberate indifference on the part of [the
defendants] in their treatment of Plaintiff's diabetes.”).
However, since “a more carefully drafted complaint” might
state a claim against Defendant Thomas, Plaintiff will be given
one opportunity to amend his claims against Defendant Thomas before
the complaint will be dismissed with prejudice.
Bank v. Pitt, 928
F.2d 1108, 1112 (11th Cir. 1991) (overturned with respect to
- 14 -
counseled plaintiffs by Wagner v. Daewoo Heavy Indus. Am. Corp.,
314 F.3d 541, 542 (11th Cir. 2002)).
IV.
Conclusion
Accordingly, it is now ORDERED:
1.
The motion to dismiss filed by Defendant Mike Scott (Doc.
22) is GRANTED.
All claims against Defendant Scott are dismissed
pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.
2.
The
motions
to
Mason,
dismiss
and
filed
Thomas
by
(Doc.
Defendants
Nos.
29,
Small,
Lourdes,
Carrerro,
37)
are
GRANTED.
All claims against Defendants Small, Lourdes, Carrerro,
Mason, and Thomas are dismissed pursuant to Rule 12(b)(6) of the
Federal Rules of Civil Procedure.
3.
Should the facts support such a complaint, Plaintiff may
file an amended complaint against Defendant Thomas within FOURTEEN
(14) DAYS from the date on this Order.
against
filing
an
amended
complaint,
Should Plaintiff decide
the
Court
will
issue
a
separate order directing the Clerk of Court to close this case and
to enter judgment in favor of the defendants.
DONE and ORDERED in Fort Myers, Florida on this
of May, 2016.
SA: OrlP-4
Copies: Robert E. Loveland
Counsel of Record
- 15 -
20th
day
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