Loveland v. Scott et al

Filing 49

ORDER denying 46 motion to dismiss and defendant Thomas shall file an answer on or before August 12, 2016. Signed by Judge John E. Steele on 7/21/2016. (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

SHIRLETTE THOMAS,
Defendant.
ORDER
This matter comes before the Court upon the following:
Defendant Shirlette Thomas’ Motion to Dismiss
Plaintiff's Amended Complaint (Doc. 46, filed
June 27, 2016); and
Plaintiff's Response to Defendant Thomas’
Motion to Dismiss (Doc. 48, filed July 15,
2016).
For the reasons set forth in this Order, the motion to dismiss
filed by Defendant Thomas is denied.

Defendant Thomas shall file

an answer to Plaintiff's amended complaint by August 12, 2016.
I.
Plaintiff,

a

prisoner

Pleadings
currently

incarcerated

at

the

Lee

County Jail, initiated this action by filing a pro se complaint
against numerous employees of the jail on October 7, 2015 (Doc.
1). The original complaint was dismissed by the Court on May 20,
2016 for failure to state a claim upon which relief could be
granted (Doc. 42).

Plaintiff was directed to file an amended

complaint if he wished to proceed. Id.

On June 13, 2016, Plaintiff

filed an amended complaint, raising claims against only Defendant
Shirlette Thomas (Doc. 45). Plaintiff's amended complaint is the
operative complaint before the Court.
A.

Amended Complaint 1

During the nights between August 19, 2015, and September 2,
2015, Plaintiff began having hypoglycemic episodes related to his
diabetes (Doc. 45 at 5-6).

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. 45 at 7).

For approximately one week following the

decrease, Plaintiff’s blood sugar was “excessively high” 24 hours
a day. Id.
by

her

On September 9, 2015, Defendant Thomas was directed

supervisor

to

increase

Plaintiff's

insulin

dose.

Id.

Plaintiff's morning insulin was increased to 25 units, but his
evening insulin was left at 10 units. Id.

This left Plaintiff

with high blood sugar throughout the evening Id. On October 1,
2015, Defendant Thomas raised Petitioner's insulin dosage back to
the 20 units that initially caused the hypoglycemic episodes. Id.
at

8.

Two

weeks

later,

Defendant

1

Thomas

was

removed

from

The facts are those set forth in Plaintiff's amended complaint
(Doc. 45). 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 -

Plaintiff's insulin orders and his blood sugar was controlled. Id.
As a result of the incorrect insulin dosage, Plaintiff developed
a case of neuropathy that was untreated by Defendant Thomas for
seven weeks.
Plaintiff suffered headaches, muscle cramps, dehydration,
blurred

vision,

weight

loss,

neuropathy,

and

an

increased

hemoglobin AIC because of his incorrect insulin dosage (Doc. 45 at
6).

He did not eat some of his food in an attempt to control his

blood sugar, resulting in frequent hunger and weight loss. Id. at
8.
Plaintiff asserts that Defendant Thomas’ failure to provide
him with adequate insulin was deliberately indifferent (Doc. 45 at
6). 2

He seeks an order from the Court reprimanding Defendant

Thomas and monetary damages for pain and suffering in the amount
of one million dollars. Plaintiff's also seeks legal fees and the
costs of litigation. Id.

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 County, Ala., 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 -

B.

Defendant Thomas’ Motion to Dismiss

On June 27, 2016, Defendant Thomas filed a motion to dismiss
Plaintiff's amended complaint for failure to state a claim upon
which relief could be granted (Doc. 46).

Defendant Thomas argues

that, as in his original complaint, Plaintiff merely disagrees
with the treatment ordered by Defendant Thomas and has, at most,
stated

a

claim

of

medical

malpractice

—

not

deliberate

indifference. Id. at 5-6.
II.
A.

Governing Legal Standards

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

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.

- 4 -

Court

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.
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

- 5 -

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.

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 (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). 3
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

3

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). For the purpose
of this Order only, the Court will assume, without deciding, that
Plaintiff's diabetes is a serious medical need.

- 6 -

in conduct that is more than mere negligence. Brown v. Johnson,
387 F.3d 1344, 1351 (11th Cir. 2004).
III. Analysis
It is clear from the face of the complaint that Defendant
Thomas responded to Plaintiff's initial requests for an insulin
adjustment, albeit not in the manner he desired.

As was explained

to Plaintiff in the order granting Defendant Thomas’ first motion
to dismiss, 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)).
However,

Plaintiff

asserts

that

Defendant

Thomas

was

constantly apprised of Plaintiff's medical issues with the initial
insulin adjustment, but only responded to his medical requests
after her supervisors directed her to do so.

At this stage of the

proceedings, taking all facts as true and construing all inferences

- 7 -

in favor of Plaintiff, Plaintiff has stated a plausible claim of
deliberate indifference.

Although Defendant Thomas asserts that

there is no indication that she purposefully ignored or failed to
respond to Plaintiff's pain or medical needs (Doc. 46 at 6), this
defense can be reasserted in a motion for summary judgment after
discovery is conducted.
IV.

Conclusion

Accordingly, it is now ORDERED:
1.

The

motion

to

dismiss

filed

by

Defendant

Shirlette

Thomas (Doc. 46) is DENIED.
2.

Defendant Thomas shall file an answer to the amended

complaint on or before August 12, 2016.
DONE and ORDERED in Fort Myers, Florida on this
of July, 2016.

SA: OrlP-4
Copies: Robert E. Loveland
Counsel of Record

- 8 -

21st

day