Sim, Jr. v. Marceus et al

Filing 43

ORDER granting 38 motion to dismiss. This action is DISMISSED. The Clerk of the Court is directed to terminate any pending motions, enter judgment dismissing this case, and close this file. Signed by Judge Marcia Morales Howard on 5/12/2017. (HMJ)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION

STANLEY L. SIM, JR.,
Plaintiff,
v.

Case No. 3:14-cv-392-J-34PDB

P. MARCEUS, et al.,
Defendants.
______________________
ORDER

I. Status
Plaintiff Stanley L. Sim, Jr., an inmate of the Florida penal system, initiated this
action on April 7, 2014, by filing a Civil Rights Complaint Form (Doc. 1) pursuant to 42
U.S.C. § 1983. He filed an Amended Complaint (Doc. 6) on June 3, 2014, and a Second
Amended Complaint (SAC; Doc. 16) on November 24, 2015. In the SAC, Sim names the
following individuals as Defendants: (1) Dr. P. Marceus; (2) Dr. J. Kleinhans; 1 (3) Mrs.
Liockkis, a nurse; and (4) Kirk Laneve, 2 a physician's assistant. On February 23, 2017,
Dr. Marceus, Dr. Kleinhans, and Mrs. Liockkis were dismissed from this action. See (Doc.
39).
This matter is before the Court on Defendant Kirk Laneve, PA-C’s Motion to

1

The proper spelling of Defendant’s surname is Kleinhans. See Return of Service (Doc. 18), filed June
23, 2016.
2

The proper spelling of Defendant’s surname is Laneve. See Form USM-285, Process Receipt and
Return (Doc. 35), filed January 5, 2017.

Dismiss Plaintiff's Second Amended Complaint (Laneve’s Motion; Doc. 38). The Court
advised Sim that granting a motion to dismiss would be an adjudication of the case that
could foreclose subsequent litigation on the matter, see Order (Docs. 17), and when
Plaintiff initially failed to respond to Laneve’s Motion, gave him an additional opportunity
to respond.

See Order (Doc. 40).

On April 17, 2017, Plaintiff filed a response in

opposition to Laneve’s Motion. See Motion Showing Cause Why Assistant Kirk Laneve
Should not be Dismissed From the Action (Response; Doc. 41).
II. Motion to Dismiss Standard
In ruling on a motion to dismiss, the Court must accept the factual allegations set
forth in the complaint as true. Ashcroft v.Iqbal, 556 U.S. 662, 678 (2009); Swierkiewicz
v. Sorema N.A., 534 U.S. 506, 508 n.1 (2002); see also Lotierzo v. Woman's World Med.
Ctr., Inc., 278 F.3d 1180, 1182 (11th Cir. 2002). In addition, all reasonable inferences
should be drawn in favor of the plaintiff. See Omar ex. rel. Cannon v. Lindsey, 334 F.3d
1246, 1247 (11th Cir. 2003) (per curiam). Nonetheless, the plaintiff must still meet some
minimal pleading requirements. Jackson v. BellSouth Telecomm., 372 F.3d 1250, 126263 (11th Cir. 2004) (citations omitted). Indeed, while "[s]pecific facts are not necessary[,]"
the complaint should "'give the defendant fair notice of what the . . . claim is and the
grounds upon which it rests.'" Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per curiam)
(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Further, the plaintiff
must allege "enough facts to state a claim that is plausible on its face." Twombly, 550
U.S. at 570. "A claim has facial plausibility when the pleaded factual content allows the
court to draw the reasonable inference that the defendant is liable for the misconduct
alleged." Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556); see Miljkovic v.Shafritz
and Dinkin, P.A., 791 F.3d 1291, 1297 (11th Cir. 2015) (citation and footnote omitted). A
2

"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[.]" Twombly, 550 U.S. at 555 (internal quotations omitted); see also Jackson, 372
F.3d at 1262 (explaining that "conclusory allegations, unwarranted deductions of facts or
legal conclusions masquerading as facts will not prevent dismissal") (internal citation and
quotations omitted). Indeed, "the tenet that a court must accept as true all of the
allegations contained in a complaint is inapplicable to legal conclusions[,]" which simply
"are not entitled to [an] assumption of truth." Iqbal, 556 U.S. at 678, 680. Thus, in ruling
on a motion to dismiss, the Court must determine whether the complaint contains
"sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on
its face[.]'" Id. at 678 (quoting Twombly, 550 U.S. at 570).
The Eleventh Circuit has stated:
To survive a motion to dismiss, [plaintiff]'s complaint must
have set out facts sufficient to "raise a right to relief above
the speculative level." Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555 (2007). This means he must have alleged
"factual content that allow[ed] the court to draw the
reasonable inference that the defendant[s] [were] liable
for the misconduct." Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). The allegations must be plausible, but plausibility
is not probability. See id.
Lane v. Philbin, 835 F.3d 1302, 1305 (11th Cir. 2016).
III. Second Amended Complaint 3
Sim asserts that Defendants violated his Eighth Amendment right to be free from
cruel and unusual punishment when they denied him proper medical care for his right

3 The SAC is the operative pleading. In considering a motion to dismiss, the Court must accept all factual
allegations in the SAC as true, consider the allegations in the light most favorable to the plaintiff, and accept
all reasonable inferences that can be drawn from such allegations. Miljkovic v. Shafritz and Dinkin, P.A.,
791 F.3d at 1297 (quotations and citations omitted). As such, the recited facts are drawn from the SAC and
may differ from those that ultimately can be proved.
3

shoulder. According to Sim, Sergeant Jensen, a housing officer, escorted him to the
medical clinic at Columbia Correctional Institution Annex (CCIA) on May 5, 2013, at
approximately 2:40 a.m., due to his complaints of a right shoulder injury. See SAC at 5.
At the clinic, Mrs. Liockkis refused to order security personnel to transport Sim to an
outside hospital, but instead took Sim's temperature, checked his pulse, and directed that
he return to his cell and report to the clinic to see a doctor at 8:00 a.m. See id. at 5-6. Sim
returned to the medical clinic that same morning at 8:30 a.m., and Dr. Marceus examined
Sim's shoulder, ordered x-rays, and directed security personnel to return Sim to his cell.
See id. at 6. On July 3, 2013, the Florida Department of Corrections (FDOC) transported
Sim to the Reception and Medical Center (RMC) to see Dr. Kleinhans, who advised that
he would perform surgery on Sim's shoulder. See id. Dr. Kleinhans performed surgery
on July 8th at the RMC, and the FDOC returned Sim to CCIA where he complained to the
medical staff about post-surgical pain. See id.
On October 14, 2013, the FDOC returned Sim to RMC where Laneve examined
him and ordered x-rays, which showed dislodged screws in Sim's shoulder, prompting
Laneve to order another surgical procedure. See id. The FDOC transported Sim to
Jacksonville's Memorial Hospital for surgery on December 2, 2013. See id. Sim later
discovered that Dr. Kleinhans removed the plate from his shoulder, but “the problem [with
the shoulder] was not corrected.” See id. at 6-7. When the FDOC returned Sim to RMC,
he was given no post-operative orders for pain medication or physical therapy. See id. at
7. Sim asserts Laneve acted with deliberate indifference “due to his continual delay of
surgery once he saw alone (sic) with the plaintiff on [October 14, 2013] the return of the
x-ray’s he order to be taken showed that the screws in the plaintiff (right) shoulder had

4

become dislodged an[d] was causing great pain to him.” Id. at 7-8.
IV. Law and Conclusions
Laneve seeks dismissal of Sim's Eighth Amendment claim against him because
Sim "fails to allege sufficient factual allegations supporting a cognizable claim against
[him] . . . ." Laneve’s Motion at 3. He asserts that the facts set forth in the SAC, as they
relate to him, "merely amount to disagreements" with his clinical decisions, and therefore
are insufficient to state an Eighth Amendment claim. Id. at 1-2. In his Response, Sim
requests that the Court deny Laneve’s Motion. He asserts that Laneve failed to follow “the
proper protocol of a surgeon assistant to his surgeon” in that he failed to inform Dr.
Kleinhans as to the type of surgery he was to perform to “correct the problem by redoing
the screws.” Response at 3-4. Sim also contends that Laneve failed to order pain
medication or “any kind of therapy” for Sim’s shoulder after the second surgery on
December 2, 2013.
To state a claim under 42 U.S.C. § 1983, a plaintiff must allege that (1) the
defendant deprived him of a right secured under the United States Constitution or federal
law, and (2) such deprivation occurred under color of state law. Salvato v. Miley, 790
F.3d 1286, 1295 (11th Cir. 2015); Bingham v. Thomas, 654 F.3d 1171, 1175 (11th Cir.
2011) (per curiam). Moreover, the Eleventh Circuit "'requires proof of an affirmative
causal connection between the official's acts or omissions and the alleged constitutional
deprivation' in § 1983 cases." Rodriguez v. Sec'y, Dep't of Corr., 508 F.3d 611, 625 (11th
Cir. 2007) (quoting Zatler v. Wainwright, 802 F.2d 397, 401 (11th Cir. 1986)). In the
absence of a federal constitutional deprivation or violation of a federal right, a plaintiff
cannot sustain a cause of action against the defendants.
The Eleventh Circuit has explained the requirements for an Eighth Amendment
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violation.
"The Constitution does not mandate comfortable prisons, but
neither does it permit inhumane ones . . . ." Farmer, 511 U.S.
at 832, 114 S.Ct. at 1976 (internal quotation and citation
omitted).[ 4] Thus, in its prohibition of "cruel and unusual
punishments," the Eighth Amendment requires that prison
officials provide humane conditions of confinement. Id.
However, as noted above, only those conditions which
objectively amount to an "extreme deprivation" violating
contemporary standards of decency are subject to Eighth
Amendment scrutiny. Hudson, 503 U.S. at 8-9, 112 S.Ct. at
1000.[ 5] Furthermore, it is only a prison official's subjective
deliberate indifference to the substantial risk of serious harm
caused by such conditions that gives rise to an Eighth
Amendment violation. Farmer, 511 U.S. at 828, 114 S.Ct. at
1974 (quotation and citation omitted); Wilson, 501 U.S. at 303,
111 S.Ct. at 2327.[ 6]
Thomas v. Bryant, 614 F.3d 1288, 1306-07 (11th Cir. 2010). "To show that a prison
official acted with deliberate indifference to serious medical needs, a plaintiff must satisfy
both an objective and a subjective inquiry." Brown v. Johnson, 387 F.3d 1344, 1351 (11th
Cir. 2004) (quoting Farrow v. West, 320 F.3d 1235, 1243 (11th Cir. 2003)). First, the
plaintiff must satisfy the objective component by showing that he had a serious medical
need. Goebert v. Lee Cty., 510 F.3d 1312, 1326 (11th Cir. 2007).
“A serious medical need is considered '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. (citing Hill v. Dekalb
Reg'l Youth Det. Ctr., 40 F.3d 1176, 1187 (11th Cir. 1994)). In
either case, "the medical need must be one that, if left
unattended, pos[es] a substantial risk of serious harm." Id.
(citation and internal quotations marks omitted).
Brown, 387 F.3d at 1351.

4

Farmer v. Brennan, 511 U.S. 825 (1994).

5

Hudson v. McMillian, 503 U.S. 1 (1992).

6

Wilson v. Seiter, 501 U.S. 294 (1991).
6

Next, the plaintiff must satisfy the subjective component, which requires the plaintiff
to "allege that the prison official, at a minimum, acted with a state of mind that constituted
deliberate indifference." Richardson, 598 F.3d at 737 (describing the three components
of deliberate indifference as "(1) subjective knowledge of a risk of serious harm; (2)
disregard of that risk; (3) by conduct that is more than mere negligence.") (citing Farrow,
320 F.3d at 1245); Lane, 835 F.3d at 1308 (setting forth the three components) (citing
Farrow, 320 F.3d at 1245).
In Estelle[ 7], the Supreme Court established that "deliberate
indifference" entails more than mere negligence. Estelle, 429
U.S. at 106, 97 S.Ct. 285; Farmer, 511U.S. at 835, 114 S.Ct.
1970. The Supreme Court clarified the "deliberate
indifference" standard in Farmer by holding that a prison
official cannot be found deliberately indifferent under the
Eighth Amendment "unless the official knows of and
disregards an excessive risk to inmate health or safety; the
official must both be aware of facts from which the inference
could be drawn that a substantial risk of serious harm exists,
and he must also draw the inference." Farmer, 511 U.S. at
837, 114 S.Ct. 1970 (emphasis added). In interpreting Farmer
and Estelle, this Court explained in McElligott[ 8] that
"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." McElligott,
182 F.3d at 1255; Taylor,[ 9] 221 F.3d at 1258 (stating that
defendant must have subjective awareness of an "objectively
serious need" and that his response must constitute "an
objectively insufficient response to that need").
Farrow, 320 F.3d at 1245-46.
According to Sim, Laneve examined him after his first surgery and ordered an xray of his shoulder. Laneve reviewed the x-ray and determined that another surgery was

7

Estelle v. Gamble, 429 U.S. 97 (1976).

8

McElligott v. Foley, 182 F.3d 1248 (11th Cir. 1999).

9

Taylor v. Adams, 221 F.3d 1254 (11th Cir. 2000).
7

necessary. Sim does not allege that Laneve told him that the surgery would consist of
replacing the dislodged screws.

Approximately two months later, Dr. Kleinhans

performed the second surgery at Jacksonville’s Memorial Hospital where he removed a
plate from Sim’s shoulder. Sim does not state whether anything else was done to the
shoulder. Jacksonville’s Memorial Hospital discharged Sim without any pain medications
or “any kind of therapy” for his shoulder.
On these facts, Sim asserts that Laneve was deliberately indifferent because
Laneve delayed his receipt of the second surgery. However, Sim does not allege any
facts to support his conclusion that Laneve was responsible for any delay of his second
surgery. Nor does he allege any facts suggesting that had Laneve acted differently, the
surgery could have occurred sooner.

As such, Sim’s assertion is conclusory and

speculative and not due to be credited. Even assuming Laneve did delay Sim’s second
surgery, Sim fails to allege that the delay exacerbated his medical condition or that the
delay was unjustified. See Taylor v. Adams, 221 F.3d 1254, 1259–60 (11th Cir. 2000)
(recognizing that a delay of treatment for a serious condition can rise to the level of
deliberate indifference “where it is apparent that delay would detrimentally exacerbate the
medical problem, the delay does seriously exacerbate the medical problem, and the delay
is medically unjustified”); Hill v. Dekalb Reg’l Youth Det. Ctr., 40 F.3d 1176, 1187, 1187–
89 (11th Cir. 1994) overruled in part on other grounds by Hope v. Pelzer, 536 U.S. 730
(2002).
Next, Sim asserts that Laneve was deliberately indifferent because Laneve failed
to inform Dr. Kleinhans about the proper surgery to perform, and to order pain medications
and therapy for his shoulder. Notably, he asserts no facts supporting even an inference

8

that it was incumbent on Laneve, a physician’s assistant, to advise Dr. Kleinhans, a
surgeon, as to the precise procedure to perform. Upon review, the Court determines that
these complaints are nothing more than Sim’s own opinion that his medical treatment
should have been different. However, “a simple difference in medical opinion” does not
rise to the level deliberate indifference. Waldrop v. Evans, 871 F.2d 1030, 1033 (11th
Cir. 1989). Indeed, the United States Supreme Court has stated:
[T]he question whether an X-ray or additional diagnostic
techniques or forms of treatment is indicated is a classic
example of a matter for medical judgment. A medical decision
not to order an X-ray, or like measures, does not represent
cruel and unusual punishment. At most[,] it is medical
malpractice, and as such the proper forum is the state court .
...
Estelle, 429 U.S. at 107; Adams v. Poag, 61 F.3d 1537, 1545 (11th Cir. 1995) ("[T]he
question of whether [defendant] 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."); Harris v.
Thigpen, 941 F.2d 1495, 1505 (11th Cir. 1991) ("Nor does a simple difference in medical
opinion between the prison's medical staff and the inmate as to the [inmate's] diagnosis
or course of treatment support a claim of cruel and unusual punishment."). Moreover, the
Eleventh Circuit recently reaffirmed that “medical treatment violates the Constitution only
when it is ‘so grossly incompetent, inadequate, or excessive as to shock the conscience
or to be intolerable to fundamental fairness.’” Dang by & through Dang v. Sheriff,
Seminole Cty. Florida, No. 15-14842, 2017 WL 1856069, at *4 (11th Cir. May 9, 2017)
(quoting Rogers v. Evans, 792 F.2d 1052, 1058 (11th Cir. 1986)).

9

Sim has not alleged facts sufficient to state a claim under the Eighth Amendment
as to Laneve in that he has not shown that Laneve was deliberately indifferent to his
serious medical needs. Therefore, the Court will grant Laneve’s Motion as to Sim’s Eighth
Amendment claim against him, and dismiss the complaint. Accordingly, it is now
ORDERED AND ADJUDGED:
1. Laneve’s Motion to Dismiss Plaintiff’s Second Amended Complaint (Doc. 38)
is GRANTED, and Kirk Laneve is DISMISSED as a defendant in this action.
2. Because there are no remaining defendants in this action, this action is
DISMISSED.
3. The Clerk of the Court is directed to terminate any pending motions, enter
judgment dismissing this case, and close this file.
DONE AND ORDERED at Jacksonville, Florida, this 12th day of May, 2017.

sflc
c:

Stanley L. Sim, Jr.
Counsel of Record

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