West v. Secretary, DOC et al
Filing
237
OPINION AND ORDER granting in part and denying in part 214 Wexford Defendants' Omnibus Motion to Dismiss Fourth Amended Complaint; granting 215 Defendant Secretary Mark Inch's Motion to Dismiss Fourth Amended Complaint; granting i n part and denying in part 216 Department Defendants' Omnibus Motion to Dismiss Fourth Amended Complaint; granting 217 Defendant Robert Gilbreath's Motion to Dismiss Fourth Amended Complaint. The Clerk is DIRECTED to terminate all Defendants except Wexford Health Sources, Inc., Sabrina Schultz, and Diann Spratt. Wexford and Spratt must answer the Fourth Amended Complaint on or before February 11, 2021. Signed by Judge Sheri Polster Chappell on 1/28/2021. (LYB)
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UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
JAMES DARYL WEST,
Plaintiff,
v.
Case No: 2:16-cv-694-FtM-38NPM
RONALD HEMPHILL,
CARMELLO BERRIOS, KAREN
BLANKENSHIP, HOWARD
WETTERER, BONNIE
LAROSA, ROBERT
GILBREATH, SABRINA
SCHULTZ, DIANN SPRATT,
JULIE JONES, WEXFORD
HEALTH SOURCES, INC.,
KATHY CONNER, KARA
WILLIAMS and JAMES
LICATA,
Defendants.
/
OPINION AND ORDER1
Before the Court are the Wexford Defendants’ Omnibus Motion to
Dismiss Fourth Amended Complaint (Doc. 214), Defendant Secretary Mark
Inch’s Motion to Dismiss Fourth Amended Complaint (Doc. 215), the
Department Defendants’ Omnibus Motion to Dismiss Fourth Amended
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Complaint (Doc. 216), Defendant Robert Gilbreath’s Motion to Dismiss Fourth
Amended Complaint (Doc. 217), and Plaintiff James Daryl West’s responses in
opposition (Doc. 218, Doc. 219, Doc. 220, Doc. 221).
Background
This is a civil rights case filed by James Daryl West, a prisoner of the
Florida Department of Corrections (FDOC). The Court recounts the factual
background as pled in West’s Fourth Amended Complaint, which it must take
as true to decide whether the complaint states plausible claims. See Chandler
v. Sec’y Fla. Dep’t of Transp., 695 F.3d 1194, 1198-90 (11th Cir. 2012). West
was involved in a bus accident in 1999. Since then, he has experienced pain in
his back, knee, and right foot. Specifically, West suffered from the following
conditions:
chronic strained lumbosacral ligament, lower back pain, chronic
and intervertebral disc disorder, thoracolumbar, and lumbosacral
lumbar disc disorder/hernia, lumbar spondylosis, right-sided
sciatica and left sided muscle spasms, injury to the muscle, fascia,
and tendon of his lower back, premature degenerative
osteoarthritis, and localized secondary osteoarthritis of the right
knee.
(Doc. 213 at 5-6).
West was incarcerated at Charlotte Correctional from October 3, 2014,
to September 9, 2015. Wexford Health Sources, Inc. provided healthcare to
inmates at Charlotte Correctional under contract with FDOC and employed
the doctors and nurses who treated West during his incarceration there. While
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at Charlotte Correctional, Classification Supervisor James Licata assigned
West to work in food service.
West’s supervisors—including Foodservice
Director Robert Gilbreath and managers Sabrina Schultz and Diann Spratt—
sometimes instructed West to sit on an upside-down garbage can and chop
vegetables, which West claims exacerbated his injuries and caused him pain.
They declined to provide West a chair despite multiple requests.
Dr. Carmello Berrios, Chief Health Officer at Charlotte Correctional,
saw West for treatment of his pain on June 11, 2015. Berrios ordered x-rays
of West’s knee and diagnosed him with osteoarthritis, degenerative joint
disease, and chronic pain in his knee. Berrios issued West ibuprofen, analgesic
balm, and a cane, and he gave West “passes for restricted activity, light duty,
limited standing, [and] no bending, pushing, or lifting over 15 pounds.” (Doc.
213 at 25). On June 13, 2015, West was given “a bed rest lay-in pass, a
restricted activity pass, a no work pass, and a no recreation pass” until June
16, 2015. (Doc. 213 at 8). Despite the end date, the pass was to stay in effect
until West was x-rayed. On June 17, 2015, FDOC required West to return to
work even though no x-ray had been performed.
X-rays were taken of West’s knee on June 24, 2015. Berrios marked the
x-ray results as “abnormal.” (Doc. 213 at 26). On June 25, 2015, Karen
Blankenship, an advanced registered nurse practitioner at Charlotte
Correctional, saw West to discuss the x-rays and determine a treatment plan.
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West requested further testing and evaluation, but Blankenship did not order
any. Nor did Blankenship give West a pass to excuse him from his food service
assignment.
On June 27, 2015, West complained to food service manager Sabrina
Schultz of knee pain. When Schultz told West he still needed to work his
scheduled shift, West declared a medical emergency.
He was then seen by
Bonnie LaRosa, registered nurse at Charlotte Correctional. West rated his
knee pain at 10/10 and requested further diagnostic testing, orthopedic
appliances, and pain medication.
LaRosa offered ibuprofen and analgesic
balm.
After leaving sick call, West went back to work his food service
assignment. Schultz instructed him to lift a 75-pound bag of vegetables. West
was injured when he attempted to comply.2 The Fourth Amended Complaint
alleges two accounts of the injury. At paragraph 34, West claims that when he
“attempted to lift the bag, he slipped and was then struck by the bag.” While
at paragraph 315, West claims that when he “reached to pick up the bag, it
toppled down and crashed down on [him], causing [him] to fall.” West could
not get up, and two inmates lifted him into a wheelchair. Schultz did not write
an incident report.
Defendants question whether this incident occurred. For the purposes of deciding the
motions to dismiss, the Court presumes that it did.
2
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On June 29, 2015, West sought treatment for injuries resulting from his
June 27 fall, but Blankenship and LaRosa denied care. Blankenship accused
West of lying about the incident, and LaRosa told him that nothing had
changed.
On August 13, 2015, LaRosa and Dr. Howard Wetterer, Chief Health
Officer at Charlotte Correctional,3 saw West for pain and numbness in his back,
swelling and pain in his right knee and foot, and difficulty walking. Wetterer
examined West’s right leg and found it to be smaller and weaker than the left.
West requested more testing and medication, but Wetterer declined. LaRosa
examined West’s leg and found that his bandage was too tight.
On October 14, 2015, Dr. Ronald Hemphill, Chief Health Officer at
Charlotte Correctional, saw West for his ongoing pain. He examined West,
gave him painkillers, and ordered x-rays of his knee and foot.
Hemphill
received the x-rays on October 29, 2015. They indicated West suffered from
narrowing and osteophytosis of the medial compartment and patellofemoral
joint and degenerative joint disease. Hemphill saw West again on November
21, 2015, for West’s back, knee, and foot pain. West requested further testing
and a consult with a specialist, but Hemphill declined.
West attributes the same “Chief Health Officer” title to Berrios, Wetterer, and Ronald
Hemphill without explanation.
3
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West filed a pro se complaint on September 8, 2016. (Doc. 1). After an
appearance by counsel on West’s behalf and a couple amendments, the Court
dismissed the Second Amended Complaint (Doc. 168) because it was a shotgun
pleading. (Doc. 194). West filed his Third Amended Complaint (Doc. 195), then
moved to amend so he could correct one claim and remove another. The Fourth
Amended Complaint followed. It alleges 16 claims of deliberate indifference to
his medical needs and conditions of confinement. Defendants move to dismiss
the claims for failure to state a claim, failure to exhaust administrative
remedy, and qualified immunity.
Legal Standard
When considering a motion to dismiss under Rule 12(b)(6), courts must
accept all factual allegations in the complaint as true and view them in a light
most favorable to the plaintiff. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
The preferential standard of review, however, does not let all pleadings
adorned with facts survive to the next stage of litigation. The Supreme Court
has been clear on this point – a district court should dismiss a claim when a
party does not plead facts that make the claim facially plausible. See Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is facially plausible when
a court can draw a reasonable inference, based on facts pled, that the opposing
party is liable for the alleged misconduct. See Iqbal, 556 U.S. at 678. This
plausibility standard requires “more than a sheer possibility that a defendant
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has acted unlawfully.” Id. (citing Twombly, 550 U.S. at 557 (internal quotation
marks omitted)). And a plaintiff must allege more than labels and conclusions
amounting to a formulaic recitation of the elements of a cause of action.
Twombly, 550 U.S. at 555.
West files his Fourth Amended Complaint under 42 U.S.C. § 1983. To
state a § 1983 claim, a plaintiff must allege that (1) the defendant deprived
him of a right secured under the Constitution or federal law, and (2) the
deprivation occurred under color of state law. Bingham v. Thomas, 654 F.3d
1171, 1175 (11th Cir. 2011) (citing Arrington v. Cobb Cty., 139 F.3d 865, 872
(11th Cir. 1998)). In addition, a plaintiff must allege and establish an
affirmative causal connection between the defendant’s conduct and the
constitutional deprivation. Marsh v. Butler Cty., Ala., 268 F.3d 1014, 1059
(11th Cir. 2001).
Discussion
A. Exhaustion of Administrative Remedies
Under the Prison Litigation Reform Act, before a prisoner may bring a §
1983 claim, he must exhaust available administrative remedies. 42 U.S.C. §
1997e. The purpose of administrative exhaustion “is to put the administrative
authority on notice of all issues in contention and to allow the authority an
opportunity to investigate those issues.” Chandler v. Crosby, 379 F.3d 1278,
1287 (11th Cir. 2004) (cleaned up). The PLRA requires “proper exhaustion,”
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which “demands compliance with an agency’s deadlines and other critical
procedural rules because no adjudicative system can function effectively
without imposing some orderly structure on the course of its proceedings.”
Woodford v. Ngo, 548 U.S. 81, 90-91 (2006).
The Eleventh Circuit has established a two-step process for deciding a
motion to dismiss for failure to exhaust administrative remedies:
First, the court looks to the factual allegations in the defendant’s
motion to dismiss and those in the plaintiff’s response, and if they
conflict, takes the plaintiff’s version of the facts as true. If, in that
light, the defendant is entitled to have the complaint dismissed for
failure to exhaust administrative remedies, it must be
dismissed…If the complaint is not subject to dismissal at the first
step, where plaintiff’s allegations are assumed to be true, the court
then proceeds to make specific findings in order to resolve the
disputed factual issues related to exhaustion. The defendants bear
the burden of proving that the plaintiff has failed to exhaust his
available administrative remedies. Once the court makes findings
on the disputed issues of fact, it then decides whether under those
findings the prisoner has exhausted his available administrative
remedies.
Turner v. Burnside, 541 F.3d 1077, 1082-83 (11th Cir. 2008).
The Florida legislature delegated to FDOC the establishment of
administrative remedies for aggrieved inmates. Chandler, 379 F.3d at 1287.
FDOC created a three-step grievance process. To exhaust it, a prisoner must
(1) file an informal grievance to the responsible staff member, (2) file a formal
grievance with the warden’s office; and (3) appeal the formal grievance to the
Secretary of the FDOC. Id. at 1288.
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West attached to his Fourth Amended Complaint a printout of his appeal
records during his incarceration. (Doc. 213-1). The records log dozens of
grievance appeals beginning in 2010.
West also attached 5 informal
grievances, 13 formal grievances, 15 secretary-level appeals, and FDOC’s
responses.
(Doc. 213-1).
Defendants challenge the grievances for not
addressing the subject matter of this case and not identifying all Defendants.
They also point out that some grievances and appeals were returned without
action due to procedural defects.
After carefully reviewing the grievances, the Court finds that West
exhausted his administrative remedies as to his medical care, being required
to sit on an upside-down garbage can, and being ordered to carry a 75-pound
bag of vegetables.
While the grievances sometimes stray from the issues
complained of here, they provided FDOC fair notice that West considered his
medical treatment and working conditions unconstitutional. That remains
true even if the Court disregards the grievances and appeals that were
returned without action due to procedural defects. For example, Grievance No.
15-6-32735 complained of constant knee pain and requested additional medical
treatment. Grievance Nos. 15-6-30011, 15-6-30017 and 15-6-29606 complained
that West’s working conditions caused him pain and violated his medical
passes. And Grievance No. 15-6-29582 centers on West’s July 27 injury while
working in food service. West appealed all five of these grievances to the
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secretary level. Finally, West need not have identified all Defendants in his
grievances.
PLRA does not impose a “name all defendants” requirement.
Jonse v. Bock, 549 U.S. 199, 217 (2007).
Given
the
purpose
of
administrative
exhaustion—"to
put
the
administrative authority on notice of all issues in contention and to allow the
authority an opportunity to investigate those issues”—the Court finds that
West satisfied the PLRA’s pre-suit conditions. Chandler, 379 F.3d at 1287.
There is one exception. In his claims against Gilbreath and Schultz, West
vaguely alleges he was required to return to work after being given a bed-rest
pass. West does not identify who made him return to work, so it is unclear
whether his claims against Gilbreath and Schultz are based on that allegation.
Regardless, he did not mention this claim in his grievances. So to the extent
West claims liability based on his return to work in violation of a bed-rest pass,
that claim was not exhausted.
B. Pleading Sufficiency
West accuses Defendants of violating his rights under the Eighth
Amendment to be free from cruel and unusual punishment. Specifically, he
alleges deliberate indifference to his serious medical needs and conditions of
confinement.
Only officials who personally participate in constitutional violations may
be liable under § 1983. Coleman v. Bowden, 797 F. App’x 422, 427 (11th Cir.
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2019). Three Defendants did not personally participate in any of West’s alleged
constitutional violations and can thus be dismissed at the outset. Julie Jones—
whom West sued in her individual capacity—is the former Secretary of the
FDOC.4 West does not allege any facts suggesting that Jones had knowledge
of his medical treatment or working conditions, or that she directed his
treatment in any way.
Kathy Conner and Kara Williams were FDOC
employees whose sole participation in the alleged facts was reviewing and
responding to West’s grievances and appeals. Denying grievances, without
more, does not support liability under § 1983. Id.; see also Lee v. Mich. Parole
Bd., 104 F. App’x 490, 493 (6th Cir. 2004) (“Section 1983 liability may not be
imposed simply because a defendant denied an administrative grievance or
failed to act based upon information contained in a grievance.”). Thus, the
claims against Jones, Conner, and Williams—Counts 1, 2, and 9-12—are
dismissed.
1.
Deliberate Indifference to Serious Medical Need
“To prevail on a claim of deliberate indifference to serious medical need
in violation of the [Eighth] Amendment, a plaintiff must show: ‘(1) a serious
medical need; (2) the defendant['s] deliberate indifference to that need; and (3)
causation between that indifference and the plaintiff's injury.” Youmans v.
Current secretary Mark Inch was not substituted for Jones under Federal Rule of Civil
Procedure 25(d) because Rule 25(d) only applies to a party sued in his or her official capacity.
4
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Gagnon, 626 F.3d 557, 563 (11th Cir.2010) (quoting Mann v. Taser Int'l, Inc.,
588 F.3d 1291, 1306–07 (11th Cir. 2009)).
In the Eleventh Circuit, “[a] serious medical need is ‘one that has been
diagnosed by a physician as mandating treatment or one that is so obvious that
a lay person would easily recognize the necessity for a doctor’s attention.’”
Shaw v. Allen, 701 F. App’x 891, 893 (11th Cir. 2017) (quoting Farrow v. West,
320 F.3d 1235, 1243 (11th Cir. 2003)). West alleges his medical conditions—
listed above—constitute a serious medical need because they were painful.
(Doc. 212 at 6, ¶ 30; Doc. 220 at 3). “Severe pain that is not promptly or
adequately treated can…constitute a serious medical need depending on the
circumstances.”
Melton v. Abston, 841 F.3d 1207, 1222 (11th Cir. 2016).
Interpreting West’s allegations in a light most favorable to him, the Court finds
he plausibly alleged a serious medical need.
Next, West must plausibly allege that each Defendant was deliberately
indifferent to his serious medical need.
Deliberate indifference has three
components: “(1) subjective knowledge of a risk of serious harm; (2) disregard
of that risk; (3) by conduct that is more than mere negligence.” Bingham v.
Thomas, 654 F.3d 1171, 1176 (11th Cir. 2011) (internal quotation marks
omitted). “Conduct that is more than mere negligence includes: (1) grossly
inadequate care; (2) a decision to take an easier but less efficacious course of
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treatment; and (3) medical care that is so cursory as to amount to no treatment
at all.” Id.
Mere medical malpractice or “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.”
Melton, 841 F.3d at 1224. Nor does the exercise of medical judgment by a care
provider. Hernandez v. Sec’y Fla. Dep’t of Corr., 611 F. App’x 582, 584 (11th
Cir. 2015).
“When a prisoner has received medical attention, courts are
reluctant to second-guess medical judgments even if there is a dispute over the
adequacy of treatment.” Brennan v. Headley, 807 F. App’x 927, 935 (11th Cir.
2020). “Rather, medical treatment violates the Eighth Amendment only when
it is so grossly incompetent, inadequate, or excessive as to shock the conscience
or to be intolerable to fundamental fairness.” Id. (cleaned up).
In evaluating claims of deliberate indifference, courts must judge each
defendant separately and based on what that person knew. Melton, 841 F.3d
at 1224.
a. Dr. Carmello Berrios (Count 4)
Berrios has not appeared in this case and thus has not moved to dismiss
Count 4. But since West is proceeding in forma pauperis, the Court will review
whether Count 4 states a claim on which relief can be granted. See 28 U.S.C.
§ 1915(e)(2) (“the court shall dismiss the case at any time if the court
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determines that…(B) the action…(ii) fails to state a claim on which relief may
be granted”).
On June 11, 2015, Berrios examined West and diagnosed him with
osteoarthritis, degenerative joint disease, and chronic knee pain. Berrios gave
West ibuprofen, analgesic balm, and a cane, ordered x-rays of his knee, and
gave him passes to limit his activity. When West told Berrios that Gilbreath
was not honoring the restricted activity passes, Berrios said, “I have written
all the passes authorized by the FDOC.” (Doc. 213 at 25). On June 24, 2015,
Berrios told West that further treatment was “out of the question.” (Doc. 213
at 26).
Berrios did not deny West medical treatment. And contrary to West’s
conclusory allegation, Berrios’s medical care was not so cursory as to amount
to no care at all. Rather, West’s allegations demonstrate that Berrios exercised
his medical judgment and instituted a treatment plan. West wanted more
extensive treatment, but a difference in medical opinion does not give rise to a
claim for deliberate indifference. “[A]s Estelle teaches, the question of whether
government actors should have employed additional diagnostic techniques or
forms of treatment ‘is a classic example of a matter for medical judgment’ and
therefore not an appropriate basis for grounding liability under the Eighth
Amendment.” Adams v. Poag, 61 F.3d 1537, 1545 (11th Cir. 1995) (quoting
Estelle v. Gamble, 429 U.S. 97, 107 (1976)). The Court is guided by Estelle here
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and in deciding the remaining medical deliberate indifference claims. Count 4
is dismissed.
b. Karen Blankenship (Count 5)
West’s claim against Blankenship stems from two days in June 2015. On
June 25, Blankenship saw West to discuss his recent x-ray and determine a
treatment plan.
During the visit, West requested further testing and
evaluation, but Blankenship did not order any. That shows a difference in
medical opinion, not deliberate indifference.
On June 29, 2015, Blankenship declined to examine or treat West when
he sought care for his June 27 fall because she thought West was lying about
the accident. West explained in a grievance attached to the Fourth Amended
Complaint that Blankenship “really believed that [he] was lying about being
hurt in foodservice because there was no documentation in [his] medical
jacket.”
(Doc. 213-1 at 32).
Thus, Blankenship did not have subjective
knowledge of a serious medical need on June 29. While Blankenship’s disbelief
might support a claim of negligence or medical malpractice, it is not deliberate
indifference. Count 5 is dismissed.
c. Dr. Howard Wetterer (Count 6)
Wetterer examined West’s knee on August 13, 2015. West wanted more
diagnostic testing and medication, but Wetterer declined.
West filed a
grievance requesting an MRI. In response, Wetterer affirmed his assessment,
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noting that previous x-rays showed mild arthritis. (Doc. 213-1 at 40). These
allegations demonstrate that Wetterer exercised his medical judgment and
formed an opinion that was different than West’s. That does not amount to
deliberate indifference. Count 6 is dismissed.
d. Bonnie LaRosa (Count 7)
LaRosa saw West twice in 2015. On June 27, 2015, West rated his knee
pain at a 10/10. LaRosa offered ibuprofen and an analgesic balm but rejected
West’s request for further diagnostic testing, orthopedic appliances, and pain
medication.
Then on August 13, 2015, West saw LaRosa with difficulty
walking and a swollen knee. LaRosa examined West and determined the
bandage was too tight. LaRosa’s exercise of medical judgment, even if West
disagreed with it, did not demonstrate deliberate indifference. Count 7 is
dismissed.
e. Dr. Ronald Hemphill (Count 8)
Hemphill saw West twice in 2015.
On October 14, 2015, Hemphill
examined West, ordered x-rays of his knee and foot (but not his back), and gave
West painkillers. Hemphill saw West again on November 21, 2015. West’s
only allegation from that visit is that Hemphill denied West’s request to see a
specialist and receive more examination and testing. Hemphill’s refusal to
offer West’s preferred course of treatment was not deliberate indifference.
Count 8 is dismissed.
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f. Wexford Health Sources, Inc. (Count 3)
Wexford is a private company that provided healthcare to inmates at
Charlotte Correctional under contract with FDOC.
As such, Wexford “is
treated as a municipality for purposes of § 1983 claims.” Brennan v. Headley,
807 F. App’x 927, 937 (11th Cir. 2020). Wexford can only be liable if “the
alleged constitutional harm is the result of a custom or policy.” Id. “A policy
is a decision that is officially adopted by the municipality, or created by an
official of such rank that he or she could be said to be acting on behalf of the
municipality, and a custom is a practice that is so settled and permanent that
it takes on the force of law.” Id. (cleaned up).
West alleges he did not receive his desired medical treatment from
Berrios, Blankenship, LaRosa, and Wetterer because Wexford and FDOC
would not authorize it. He claims that Berrios and Blankenship told him
Wexford and FDOC restricted non-emergency care. Wexford argues West has
not met his burden of proof that an offending policy or custom exists. But that
argument is premature. At this stage, West merely needs to allege facts that
make the existence of such a policy or custom plausible. West has done so.
Having found that West adequately alleged a policy or custom, the Court
must decide whether the policy or custom plausibly caused a constitutional
deprivation. West oversteps a bit by alleging that “WEXFORD’s blanket denial
of WEST’s medically necessary evaluation” left his injuries “untreated.” (Doc.
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213 at 23).
That does not comport with West’s more specific allegations.
Wexford employees evaluated West multiple times and provided West ongoing
treatment. However, West has plausibly alleged that a policy of restricting
non-emergency medical treatment tied the hands of Wexford employees,
prevented West from receiving more intensive treatment, and left him in
severe pain. The Court finds West’s allegations sufficient to state a claim
against Wexford for deliberate indifference.
The Court’s ruling on this point is not inconsistent with dismissal of the
claims against the individual Wexford employees. Monell liability can exist
even if no employee is individually liable. Barnett v. MacArthur 956 F.3d 1291,
1301 (11th Cir. 2020). “Situations may arise where the combined actions of
multiple officials or employees may give rise to a constitutional violation,
supporting municipal liability, but were no one individual’s actions are
sufficient to establish personal liability for the violation.” Id. (quoting Fairley
v. Luman, 281 F.3d 913, 917 (9th Cir. 2002)). The Court dismisses West’s
claims against the individual employees because West did not plausibly allege
that they had the requisite state of mind. That pleading failure does not
undermine West’s claim against Wexford.
2.
Deliberate Indifference to Conditions of Confinement
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The requirements of an Eighth Amendment claim based on deliberate
indifference to conditions of confinement are similar to those for medical
indifference. A plaintiff must satisfy objective and subjective criteria:
Under the objective component, the plaintiff must demonstrate “a
substantial risk of serious harm.” [Farmer v. Brennan, 511 U.S.
825, 834 (1994)]…Under the subjective component, the plaintiff
must prove “the defendants’ deliberate indifference” to that risk of
harm by making three sub-showings: “(1) subjective knowledge of
a risk of serious harm; (2) disregard of that risk; (3) by conduct that
is more than mere negligence.” [Lane v. Philbin, 835 F.3d 1302,
1307 (11th Cir. 2016)].
Swain v. Junior, 961 F.3d 1276, 1285 (11th Cir. 2020).
West’s conditions-of-confinement claims are based on allegations that
prison officials ignored his medical passes.
Berrios diagnosed West with
osteoarthritis, degenerative joint disease, and chronic knee pain and
implemented a treatment plan that included limitations on certain physical
activities. The Court finds it plausible that an official’s disregard of West’s
prescribed limitations could create a substantial risk of serious harm. See
Shaw, supra (“A serious medical need is ‘one that has been diagnosed by a
physician as mandating treatment or one that is so obvious that a lay person
would easily recognize the necessity for a doctor’s attention.’”).
a. James Licata (Count 13)
West sued Licata for assigning him to work in food service and denying
two grievances. West does not allege that Licata knew of West’s medical
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conditions and limitations when he assigned West to food service. On June 30,
2015, West filed a grievance requesting a different work assignment. Licata
denied the grievance because West was already scheduled to see the
Institutional Classification Team about a job change. On July 15, 2015, West
filed a grievance against Spratt for making him sit on an upside-down garbage
can and chop vegetables. Licata denied the grievance because it accused Spratt
of retaliating against him but did not identify any action that could be
considered retaliation.
(Doc. 213-1 at 55).
These allegations do suggest
deliberate indifference. Count 13 is dismissed.
b. Robert Gilbreath (Count 14)
West sues Gilbreath for ignoring West’s medical passes and requiring
West to sit on an upside-down garbage can and chop vegetables. West claims
Gilbreath told him, “If you don’t have a bed rest, lay-in pass, you will work or
go to confinement for refusing to work” and “I don’t care about your passes or
cane.” (Doc. 213 at 52). But West does not allege that Gilbreath actually made
him work while a bed rest pass was in effect. And even if he did, West did not
exhaust his administrative remedies for such a claim. What is more, sitting
on an upside-down garbage can did not violate the limitations enumerated in
West’s medical passes: “Light duty, restricted activity, no standing over 15
minutes, no bending, pulling, or pushing, no lifting over 15 pounds, and the
use of a cane.” (Doc. 213 at 53). Because West does not allege that Gilbreath
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made him do anything in violation of his medical passes, Count 14 fails to state
a claim.
c. Sabrina Schultz (Count 15)
Like Berrios, Schultz has not appeared in this case and thus has not
moved to dismiss Count 15. But the Court will review whether Count 15 states
a claim on which relief can be granted. See 28 U.S.C. § 1915(e)(2), supra.
West’s claim against Schultz stems from June 27, 2015, when Schultz
told him to sit on a garbage can and chop vegetables, then told him to carry a
75-pound bag of vegetables.
West reminded Schultz that he was cane-
dependent and was not supposed to lift more than 15 pounds, but to no avail.
Schultz threatened West with confinement if he refused.
When West
attempted to lift the bag, he fell and exacerbated his preexisting injuries. The
Court finds these allegations sufficient to state a claim for deliberate
indifference.
d. Diann Spratt (Count 16)
West alleges that Spratt regularly required him to sit on a garbage can
instead of a chair and carry 75-pound bags of vegetables, and that Spratt
threatened to place West in confinement if he refused. West also alleges that
Spratt knew he was cane-dependent and limited to lifting no more than 15
pounds.
Ordering West to exceed his prescribed limitations created a
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substantial risk of serious harm.
West has stated a claim for deliberate
indifference against Spratt.
C. Qualified Immunity
The FDOC Defendants raise the defense of qualified immunity, which
protects government officials from civil liability. Howard v. Memnon, 572 F.
App’x 692, 696 (11th Cir. 2014). “To claim qualified immunity, a defendant
must first show he was performing a discretionary function.” Id. “The burden
then shifts to the plaintiff to show that: (1) the defendant violated a
constitutional right; and (2) the right was clearly established at the time of the
violation.” Id. A right is “clearly established” if a reasonable person would
have known about it.
The allegations in the Fourth Amended Complaint establish that Schultz
and Spratt were acting within their discretionary authority when they directed
West’s work in his food service assignment at Charlotte Correctional. The
burden thus shifts to West to show violation of a clearly established
constitutional right. The Court found above that Schultz and Spratt violated
the Eighth Amendment by ordering him to carry 75-pound bags of vegetables
against doctor’s orders. The Court also finds that ordering West to greatly
exceed the lifting limitations prescribed by Dr. Berrios was so obviously wrong
that any reasonable official would have known it violated the Constitution.
Thus, Schultz and Spratt are not shielded by qualified immunity—at least not
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at this stage of the case. After further development of the facts, this issue can
be addressed at the summary judgment stage.
Accordingly, it is now
ORDERED:
1. The Wexford Defendants’ Omnibus Motion to Dismiss Fourth
Amended Complaint (Doc. 214) is GRANTED in part and DENIED
in part.
2. Defendant Secretary Mark Inch’s Motion to Dismiss Fourth Amended
Complaint (Doc. 215) is GRANTED.
3. The Department Defendants’ Omnibus Motion to Dismiss Fourth
Amended Complaint (Doc. 216) GRANTED in part and DENIED
in part.
4. Defendant Robert Gilbreath’s Motion to Dismiss Fourth Amended
Complaint (Doc. 217) is GRANTED.
5. Counts 1, 2, and 4-14 are DISMISSED.
6. The Clerk is DIRECTED to terminate all Defendants except Wexford
Health Sources, Inc., Sabrina Schultz, and Diann Spratt.
7. Wexford and Spratt must answer the Fourth Amended Complaint on
or before February 11, 2021. The Court will address service of
process on Schultz in a separate order.
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DONE and ORDERED in Fort Myers, Florida on January 28, 2021.
Copies: All Parties of Record
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