Davis v. Secretary, Department of Corrections et al
Filing
64
ORDER granting 42 motion to dismiss; granting 49 motion to dismiss; granting 55 motion to dismiss; granting 59 motion to dismiss, with directions to the Clerk. Signed by Judge Marcia Morales Howard on 5/9/2017. (BL)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
JOHN BOYNTON DAVIS,
Plaintiff,
v.
Case No. 3:15-cv-649-J-34JRK
SECRETARY, DEPARTMENT OF
CORRECTIONS, et al.,
Defendants.
ORDER
I. Status
Plaintiff John Boynton Davis, a former inmate of the Florida
penal system, initiated this action on May 26, 2015, by filing a
Civil Rights Complaint (Doc. 1) pursuant to 42 U.S.C. § 1983. He
filed an Amended Complaint (Doc. 11) on August 12, 2015, a Second
Amended Complaint (Doc. 14) on January 4, 2016, and a Third Amended
Complaint (TAC; Doc. 22) with exhibits (P. Ex.) on April 28, 2016.
In the TAC, Davis names the following Defendants: (1) Corizon
Health Care Corporation (Corizon); (2) Dr. Chuong Le, M.D., a
primary care physician; (3) Dr. Vernon Montoya, M.D., a physician
specializing in hematology and oncology; (4) Dr. Marceus, M.D., a
primary care physician;1 (5) Dr. Nicholas Cabrero-Muniz, M.D., a
primary care physician; and (6) Julie Jones, Secretary of the
Florida Department of Corrections (FDOC). Davis asserts that the
1
The Court dismissed Defendant Marceus on May 4, 2017. See
Order (Doc. 63).
Defendants violated his Eighth Amendment right to be free from
cruel and unusual punishment when they neither treated him for
Hepatitis C, hernias, and Idiopathic Thrombocytopenia (IT)2 nor
referred
him
for
treatment.
Cabrero-Muniz,
and
capacities.
relief,
As
Jones
He
in
Davis
sues
seeks
Le,
Montoya,
individual
and
official
compensatory
their
Defendants
and
punitive
damages and declaratory relief. He also requests that the Court
direct the FDOC to treat him for Hepatitis C, IT and hernias.
This matter is before the Court on the following motions to
dismiss: Defendant Dr. Vernon Montoya's Motion to Dismiss Official
Capacity Claim (Montoya Motion; Doc. 42); Defendant Julie L.
Jones's Motion to Dismiss (Jones Motion; Doc. 49); Defendants
Corizon, LLC and Dr. Le's Motion to Dismiss (Corizon Motion; Le
Motion; Doc. 55); and Defendant Nicholas Cabrero-Muniz's Motion to
Dismiss Plaintiff's Third Amended Complaint (Cabrero-Muniz Motion;
Doc. 59). The Court advised Davis that granting a motion to dismiss
would
be
an
adjudication
of
the
case
that
could
foreclose
subsequent litigation on the matter, and gave him an opportunity to
respond. See Orders (Docs. 29, 61). Plaintiff filed a response in
opposition to the motions to dismiss. See Plaintiff's Motion to
2
Idiopathic Thrombocytopenia is a disorder that can lead to
easy or excessive bruising and bleeding. The bleeding results from
unusually low levels of platelets — the cells that help blood clot.
See http://www.mayoclinic.org.
- 2 -
Deny Dismissal (Response; Doc. 62). The motions to dismiss are ripe
for judicial review.
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, 1262-63 (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 & Dinkin, P.A., 791 F.3d 1291, 1297 (11th Cir. 2015)
- 3 -
(citation and footnote omitted). 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[.]" 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.
- 4 -
Lane v. Philbin, 835 F.3d 1302, 1305 (11th Cir. 2016).
III. Third Amended Complaint3
Davis asserts that Defendants Corizon, Le, Montoya, CabreroMuniz, and Jones violated his Eighth Amendment right when they
neither treated him for Hepatitis C, IT, and hernias nor referred
him for treatment. According to Davis, doctors diagnosed him with
Hepatitis C and hernias when he entered the FDOC in November 2011,
see TAC at 5; Corizon and its doctors diagnosed Davis with "these
chronic conditions," and refused to treat him and/or refer him for
treatment, id. at 5-6; the FDOC and its health contractors knew
Davis had Hepatitis C, hernias, and IT, see id. at 6; "[t]here is
a cure for Hepatitis C as well as treatment for Thrombocytopenia
and outpatient surgery is available for the hernias," id.; Dr.
Cabrero-Muniz examined Davis in May 2015 at Hamilton Correctional
Institution Annex (HCIA), see id. at 7; Dr. Cabrero-Muniz advised
Davis that Hepatitis C "would eventually prove fatal" for him and
refused to refer Davis for treatment, id.; Dr. Montoya examined
3
The TAC is the operative pleading. In considering a motion
to dismiss, the Court must accept all factual allegations in the
TAC 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 1291, 1297 (11th Cir. 2015) (quotations and
citations omitted). As such, the recited facts are drawn from the
TAC and may differ from those that ultimately can be proved.
Additionally, because this matter is before the Court on motions to
dismiss filed by Corizon, Le, Montoya, Cabrero-Muniz, and Jones,
the Court's recitation of the facts will focus on Davis's
allegations as to them.
- 5 -
Davis at Lake Butler Regional Medical Center in June 2015, see id.;
Dr. Montoya advised Davis that he had IT caused by Hepatitis C and
a genetic disorder, see id.; Dr. Montoya would not refer Davis for
treatment until Davis's platelet count dropped to 30, which Davis
considered to be "a potentially life threatening level," see id.;
Dr. Le examined Davis in November 2015, see id.; Dr. Le told Davis
that he was on a waiting list, see id.; Dr. Le neither advised
Davis as to how he could get a copy of the waiting list nor
referred Davis for Hepatitis C treatment or hernia surgery nor
provided a hernia belt, see id.; and Corizon refused to provide
treatment for Davis's medical needs because it did not want "to
absorb the cost," id.
IV. Defendants' Motions to Dismiss
Defendant Montoya seeks dismissal of Davis's Eighth Amendment
claim against him because Davis fails to provide sufficient facts
that would entitle him to relief against Montoya. See Montoya
Motion at 1, 3-4. He asserts that Davis's official capacity claims
against
him
are
Davis's
claims
"duplicative,
relating
to
redundant,
Corizon
and
and
unnecessary"
of
at
2.
Jones.
Id.
Additionally, Defendant Jones seeks dismissal of Davis's Eighth
Amendment claim against her. She asserts that: (1) Davis's claims
for injunctive relief should be dismissed as moot since the FDOC
released Davis from custody, see Jones Motion at 3-4; (2) she is
entitled to Eleventh Amendment immunity to the extent she is sued
- 6 -
in her official capacity for monetary damages, see id. at 4-5; and
(3) Davis fails to provide any facts as to how she personally
participated
in
events
giving
rise
to
an
Eighth
Amendment
violation, see id. at 5-7.
Defendant Corizon seeks dismissal of Davis's Eighth Amendment
claim against it. Corizon asserts that: (1) Davis neither provided
any facts relating to Corizon nor identified an unconstitutional
Corizon policy, see Corizon Motion at 8; (2) Davis failed to assert
how a Corizon policy violated his Eighth Amendment right, see id.
at 9; (3) to the extent Davis seeks to base Corizon's liability on
its employees, that claim is barred, see id.; and (4) Davis "simply
did not have a need for treatment," id. at 8. Additionally,
Defendant Le seeks dismissal of Davis's Eighth Amendment claim
against him because: (1) Davis failed to exhaust his administrative
remedies before filing the lawsuit, and is therefore barred from
pursuing this action against him, see Le Motion at 12-13; (2) Davis
does not assert a serious medical need and "simply did not have a
medical need for medications while he was incarcerated," id. at 11;
(3) Davis's assertion that the Defendants neither treated him nor
referred him for treatment, despite evidence to the contrary, is
"nothing more than a difference of medical opinion between him and
his medical providers," id.; and (4) Davis fails to assert that the
Defendants'
condition,
decisions
see
id.
relating
Similarly,
to
his
treatment
Defendant
- 7 -
worsened
Cabrero-Muniz
his
seeks
dismissal of Davis's Eighth Amendment claim against him because
Davis: (1) failed to exhaust his administrative remedies before
filing the lawsuit, see Cabrero-Muniz Motion at 3-4; and (2) fails
to state an Eighth Amendment claim against him, see id. at 2-3.
Davis opposes the motions to dismiss and requests that the Court
permit his case to proceed to trial. See Response at 1. He asserts
that "the documented proof" of an Eighth Amendment violation exists
in his medical records. Id.
V. Law and Conclusions
A. Exhaustion of Administrative Remedies
The Prison Litigation Reform Act of 1995 (PLRA) requires an
inmate who challenges prison conditions to "properly exhaust" all
available administrative remedies before filing an action under 42
U.S.C. § 1983. See 42 U.S.C. § 1997(e) ("No action shall be brought
with respect to prison conditions under section 1983 of this title,
or any other Federal law, by a prisoner confined in any jail,
prison, or other correctional facility until such administrative
remedies as are available are exhausted."). Proper exhaustion is
mandatory and "demands compliance with an agency's deadlines and
other critical procedural rules" governing the administrative
process. Woodford v. Ngo, 548 U.S. 81, 90-91 (2006); see also
Dimanche v. Brown, 783 F.3d 1204, 1210 (11th Cir. 2015) ("The PLRA
requires 'proper exhaustion' that complies with the 'critical
procedural rules' governing the grievance process."); Jones v.
- 8 -
Bock, 549 U.S. 199, 918-19 (2007) ("There is no question that
exhaustion is mandatory under the PLRA and that unexhausted claims
cannot be brought in court."). Notably, the Supreme Court in Ross
v. Blake, 136 S. Ct. 1850 (2016), instructed that "[c]ourts may not
engraft an unwritten 'special circumstances' exception onto the
PLRA's exhaustion requirement. The only limit to § 1997e(a)'s
mandate is the one baked into its text: An inmate need exhaust only
such administrative remedies as are 'available.'" 136 S. Ct. 1850,
1862 (2016). For an administrative remedy to be available, the
"remedy must be 'capable of use for the accomplishment of [its]
purpose.'" Turner v. Burnside, 541 F.3d 1077, 1084 (11th Cir. 2008)
(quoting Goebert v. Lee Cty., 510 F.3d 1312, 1322-23 (11th Cir.
2007)).
In Ross, the Supreme Court identified three circumstances in
which administrative remedies would be considered unavailable.
First, "an administrative procedure is unavailable when (despite
what regulations or guidance materials may promise) it operates as
a simple dead end - with officers unable or consistently unwilling
to provide any relief to aggrieved inmates." 136 S. Ct. at 1859.
Second, "an administrative scheme might be so opaque that it
becomes, practically speaking, incapable of use. In this situation,
some mechanism exists to provide relief, but no ordinary prisoner
can discern or navigate it." Id. Third, an administrative remedy is
unavailable "when prison administrators thwart inmates from taking
- 9 -
advantage
of
a
grievance
process
through
machination,
misrepresentation, or intimidation." Id. at 1860.
Generally, inmates incarcerated by the FDOC must follow a
three-step
grievance
process
to
properly
exhaust
their
administrative remedies. See Fla. Admin. Code r. 33-103.001 through
33-103.018. First, an inmate must file an informal grievance with
a designated prison staff member within twenty days of "when the
incident or action being grieved occurred." Fla. Admin. Code r.
33-103.011(1)(a). The staff member is required to respond to the
grievance in writing within ten days of the receipt of the informal
grievance. Fla. Admin. Code r. 33-103.011(3)(a). Second, if the
issue is not resolved by the informal grievance, the inmate must
file a formal grievance with the correctional institution's warden
no later than fifteen calendar days from "[t]he date on which the
informal
grievance
was
responded
to."
Fla.
Admin.
Code
r.
33-103.011(1)(b)1. The warden, assistant warden, or deputy warden
then has up to twenty days from receipt of the formal grievance "to
take action and respond." Fla. Admin. Code r. 33-103.011(3)(b).
Third, if the issue is still not resolved, the inmate must then
file an appeal to the Office of the Secretary for the FDOC within
fifteen "calendar days from the date the response to the formal
grievance
is
returned
to
the
inmate."
Fla.
Admin.
Code
r.
33-103.011 (1)(c). A representative for the Office of the Secretary
of the FDOC must respond to the grievance appeal within thirty days
- 10 -
of its receipt. Fla. Admin. Code r. 33-103.011(3)(c). Unless the
inmate has agreed to an extension of time for a response to his
grievance, "expiration of a time limit at any step in the process
shall entitle the [inmate] to proceed to the next step of the
grievance process." Fla. Admin. Code r. 33-103.011 (4). Notably,
medical grievances require only a two-step procedure: the inmate
must file a formal grievance at the institutional level with the
chief health officer. If the inmate is unsuccessful, he may file an
appeal with the Secretary. Fla. Admin. Code r. 33–103.008.
The failure to properly exhaust administrative remedies will
bar an inmate from pursing a claim in federal court. See Woodford,
548 U.S. at 92. That said, failure to exhaust under the PLRA is an
affirmative defense a defendant must plead and prove in a motion to
dismiss. See Jones, 549 U.S. at 216 ("We conclude that failure to
exhaust is an affirmative defense under the PLRA, and that inmates
are not required to specially plead or demonstrate exhaustion in
their complaints."); Bryant v. Rich, 530 F.3d 1368, 1374-75 (11th
Cir. 2008) (finding exhaustion of administrative remedies is a
matter in abatement and an exhaustion defense should therefore, be
raised
in
a
motion
to
dismiss).
The
Eleventh
Circuit
has
established a two-step process for deciding motions to dismiss for
failure to exhaust administrative remedies. See Turner, 541 F.3d at
1082.
- 11 -
First, district courts look to the factual
allegations in the motion to dismiss and those
in the prisoner's response and accept the
prisoner's view of the facts as true. The
court should dismiss if the facts as stated by
the prisoner show a failure to exhaust.
Second, if dismissal is not warranted on the
prisoner's view of the facts, the court makes
specific findings to resolve disputes of fact,
and should dismiss if, based on those
findings, defendants have shown a failure to
exhaust.
Whatley v. Warden, Ware State Prison, 802 F.3d 1205, 1209 (11th
Cir. 2015) (internal citations omitted).
Applying this legal framework, the Court turns to the parties'
contentions regarding exhaustion in this case. Davis's Response as
well as his TAC including exhibits reflect the following facts on
the
issue
of
exhaustion.
In
the
TAC,
Davis
asserts
that
he
"attached a full list of grievances filed by [him] attempting to
obtain treatment." TAC at 5; see Plaintiff's Exhibit List, Doc. 222 at 1-2. While housed at Hardee, Okeechobee, Martin and South Bay
Correctional Institutions in 2013 and 2014, Davis submitted twelve
medical grievances that addressed his Hepatitis C, liver and blood
draw issues. See P. Exs. 1B; 2B; 3B; 4B; 5B; 6B; 7B; 8B; 9B; 9D;
10B; and 11C. In 2015, Davis submitted six medical grievances while
housed at Columbia Correctional Institution Annex; those grievances
addressed his Hepatitis C and blood draw issues relating to Corizon
and Dr. Marceus. See P. Exs. 12B; 13B; 14B; 16B; 17B; and 19B.4
4
It appears that Davis's exhibits 12B and 15B are the same
grievance, and exhibits 13B and 19D are the same grievance.
- 12 -
According to Davis, Cabrero-Muniz examined him in May 2015 at
HCIA, advised him that his Hepatitis C condition would ultimately
be fatal, and refused to refer Davis for treatment, TAC at 7; Le
examined Davis in November 2015, and advised him that he was on a
waiting list, see id.; and Le neither advised Davis as to how he
could obtain a copy of the waiting list nor referred Davis for
Hepatitis C treatment or hernia surgery nor provided a hernia belt,
see id. In their motions to dismiss, Defendants Cabrero-Muniz and
Le assert that Davis failed to exhaust his administrative remedies
as to medical issues relating to them. See Cabrero-Muniz Motion at
3-4; Le Motion at 12-13. Defendants assert that in none of Davis's
grievances does he raise medical issues relating to them or HCIA,
and, in fact, Davis's most recent grievance (P. Ex. 17B), dated
April 2, 2015, addressed his Hepatitis C and blood draw issues
relating to Dr. Marceus. See Cabrero-Muniz Motion at 4; Le Motion
at 13. Although Davis opposes the motions to dismiss, he does not
address Defendants' assertions relating to his failure to exhaust
his administrative remedies as to them. See Response. In his TAC,
Davis does assert that he submitted numerous grievances concerning
his medical issues. However, those grievances addressed medical
issues relating to medical personnel involved in Davis's medical
treatment before Defendants Cabrero-Muniz and Le became involved in
May 2015 and November 2015, respectively. Notably, Davis presents
no facts to support even an inference that the grievance process
- 13 -
was unavailable to him during the relevant time period, from May
2015 through the latter part of 2015.
In light of the facts above, at the first step of the Turner
analysis, the Court concludes that Davis failed to exhaust his
administrative remedies as to Defendants Cabrero-Muniz and Le. As
such, Defendants Cabrero-Muniz and Le's Motions are due to be
granted, and Davis's claims against them will be dismissed.5
B. Eleventh Amendment Immunity
To the extent Defendants Montoya and Jones assert that they
are entitled to Eleventh Amendment immunity, this Court agrees.
The Eleventh Amendment provides that
"[t]he Judicial power of the United States
shall not be construed to extend to any suit
in law or equity, commenced or prosecuted
against one of the United States by Citizens
of another State, or by Citizens or Subjects
of any Foreign State." U.S. Const. amend. XI.
It is well established that, in the absence of
consent, "a suit in which the State or one of
its agencies or departments is named as the
defendant is proscribed by the Eleventh
Amendment." Papasan v. Allain, 478 U.S. 265,
276, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986)
(quotation omitted). The Eleventh Amendment
also prohibits suits against state officials
where the state is the real party in interest,
such that a plaintiff could not sue to have a
state officer pay funds directly from the
state treasury for the wrongful acts of the
state. Summit Med. Assocs., P.C. v. Pryor, 180
F.3d 1326, 1336 (11th Cir. 1999). . . .
5
Notably, the prison's administrative remedies are no longer
available to Davis because he is no longer incarcerated. See Notice
of Address Change (Doc. 50), filed January 19, 2017.
- 14 -
Hayes v. Sec'y, Fla. Dep't of Children & Families, 563 F. App'x
701, 703 (11th Cir. 2014) (per curiam).
In Zatler v. Wainwright, 802 F.2d 397, 400 (11th Cir. 1986)
(per curium), the Eleventh Circuit noted:
It is clear that Congress did not intend
to abrogate a state's eleventh amendment
immunity in section 1983 damage suits. Quern
v. Jordan, 440 U.S. 332, 340-45, 99 S.Ct.
1139,
1144-45,
59
L.Ed.2d
358
(1979).
Furthermore,
after
reviewing
specific
provisions of the Florida statutes, we
recently concluded that Florida's limited
waiver of sovereign immunity was not intended
to encompass section 1983 suits for damages.
See Gamble,[6] 779 F.2d at 1513-20.
Accordingly, in Zatler, the court found that the FDOC Secretary was
immune from suit in his official capacity. Id. Insofar as Davis may
be seeking monetary damages from Defendants in their official
capacities, the Eleventh Amendment bars suit. Therefore, Defendants
Montoya and Jones's Motions are due to be granted as to Davis's
claims for monetary damages from them in their official capacities.
C. Injunctive Relief
Defendant Jones asserts that Davis's claims for injunctive
relief should be dismissed as moot since the FDOC released Davis
from custody. See Jones Motion at 3-4. This Court agrees. Davis's
claims for injunctive relief, see TAC at 8, should be dismissed as
moot. According to the offender network, the FDOC took custody of
6
Gamble v. Fla. Dep't of Health & Rehab. Serv., 779 F.2d 1509
(11th Cir. 1986).
- 15 -
Davis on December 7, 2011, and released him on January 7, 2017. See
http://www.dc.state.fl.us/offenderSearch;
Notice
of
Change
of
Address (Doc. 50), filed January 19, 2017. The general rule in this
Circuit is that a transfer or a release of a prisoner from prison
will moot that prisoner's claims for injunctive and declaratory
relief. Zatler, 802 F.2d at 399. The rationale underlying this rule
is that injunctive relief is "a prospective remedy, intended to
prevent future injuries," Adler v. Duval Cty. Sch. Bd., 112 F.3d
1475, 1477 (11th Cir. 1997), and, as a result, once the prisoner
has been released or transferred, the court lacks the ability to
grant injunctive relief and correct the conditions of which the
prisoner complained. See Wahl v. McIver, 773 F.2d 1169, 1173 (11th
Cir. 1985) (per curiam) (stating that a prisoner's past exposure to
sub-par conditions in a prison "does not constitute a present case
or controversy involving injunctive relief if unaccompanied by any
continuing, present adverse effects"). Thus, Davis's claims for
injunctive relief relating to any sub-par conditions while in FDOC
custody fail to present a case or controversy since the FDOC
released him in January 2017. Therefore, Defendant Jones's request
to dismiss Davis's claims for injunctive relief as moot is due to
be granted.
- 16 -
D. Defendant Julie Jones
Defendant Jones asserts that there are no factual allegations
describing how she personally participated in events giving rise to
an Eighth Amendment violation, and this Court agrees. Davis neither
provides any factual assertions relating to FDOC Secretary Jones
nor allegations as to how she may have violated Davis's federal
constitutional rights. To the extent Davis asserts a supervisory
claim against Jones, the United States Court of Appeals for the
Eleventh Circuit has stated:
"Supervisory officials are not liable under
section 1983 on the basis of respondeat
superior or vicarious liability." Belcher v.
City of Foley, Ala., 30 F.3d 1390, 1396 (11th
Cir. 1994) (internal quotation marks and
citation omitted). "The standard by which a
supervisor is held liable in her individual
capacity for the actions of a subordinate is
extremely rigorous." Gonzalez, 325 F.3d at
1234 (internal quotation marks and citation
omitted).[7] "Supervisory liability occurs
either
when
the
supervisor
personally
participates in the alleged constitutional
violation or when there is a causal connection
between actions of the supervising official
and the alleged constitutional deprivation."
Brown v. Crawford, 906 F.2d 667, 671 (11th
Cir. 1990).
"The necessary causal connection can be
established 'when a history of widespread
abuse puts the responsible supervisor on
notice of the need to correct the alleged
deprivation, and he fails to do so.'" Cottone,
326 F.3d at 1360 (citation omitted).[8] "The
7
Gonzalez v. Reno, 325 F.3d 1228 (11th Cir. 2003).
8
Cottone v. Jenne, 326 F.3d 1352 (11th Cir. 2003).
- 17 -
deprivations that constitute widespread abuse
sufficient to notify the supervising official
must be obvious, flagrant, rampant and of
continued duration, rather than isolated
occurrences." Brown, 906 F.2d at 671. A
plaintiff can also establish the necessary
causal connection by showing "facts which
support an inference that the supervisor
directed the subordinates to act unlawfully or
knew
that
the
subordinates
would
act
unlawfully and failed to stop them from doing
so," Gonzalez, 325 F.3d at 1235, or that a
supervisor's "custom or policy . . . resulted
in deliberate indifference to constitutional
rights," Rivas v. Freeman, 940 F.2d 1491, 1495
(11th Cir. 1991).
Danley v. Allen, 540 F.3d 1298, 1314 (11th Cir. 2008); see Keith v.
DeKalb Cty., Ga., 749 F.3d 1034, 1047-48 (11th Cir. 2014). In sum,
To state a claim against a supervisory
defendant, the plaintiff must allege (1) the
supervisor's personal involvement in the
violation of his constitutional rights,[9] (2)
the existence of a custom or policy that
resulted in deliberate indifference to the
plaintiff's constitutional rights,[10] (3)
facts supporting an inference that the
supervisor directed the unlawful action or
knowingly failed to prevent it,[11] or (4) a
9
See Goebert v. Lee Cty., 510 F.3d 1312, 1327 (11th Cir.
2007) ("Causation, of course, can be shown by personal
participation in the constitutional violation.") (citation
omitted).
10
See Goebert, 510 F.3d at 1332 ("Our decisions establish that
supervisory liability for deliberate indifference based on the
implementation of a facially constitutional policy requires the
plaintiff to show that the defendant had actual or constructive
notice of a flagrant, persistent pattern of violations.").
11
See Douglas v. Yates, 535 F.3d 1316, 1322 (11th Cir. 2008)
("Douglas's complaint alleges that his family informed Yates [(an
Assistant Warden)] of ongoing misconduct by Yates's subordinates
and Yates failed to stop the misconduct. These allegations allow a
- 18 -
history of widespread abuse that put the
supervisor on notice of an alleged deprivation
that he then failed to correct. See id. at
1328–29 (listing factors in context of summary
judgment).[12] A supervisor cannot be held
liable under § 1983 for mere negligence in the
training or supervision of his employees.
Greason v. Kemp, 891 F.2d 829, 836–37 (11th
Cir. 1990).
Barr v. Gee, 437 F. App'x 865, 875 (11th Cir. 2011) (per curiam).
Thus, any supervisory claim against Jones fails because Davis has
failed to allege any facts suggesting that she was personally
involved in, or otherwise causally connected to, the alleged
violations of his federal statutory or constitutional rights.
Therefore, Defendant Jones's Motion is due to be granted, and the
Court will dismiss Davis's claims against her.
E. Defendant Dr. Vernon Montoya, M.D.
Defendant Montoya seeks dismissal of Davis's Eighth Amendment
claim
against
him.
He
asserts
that
Davis
fails
to
provide
sufficient facts that would entitle him to relief against Montoya.
See Montoya Motion at 3-4. Davis opposes the Motion. See Response.
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,
reasonable inference that Yates knew that the subordinates would
continue to engage in unconstitutional misconduct but failed to
stop them from doing so.").
12
West v. Tillman, 496 F.3d 1321 (11th Cir. 2007).
- 19 -
1295 (11th Cir. 2015); Bingham v. Thomas, 654 F.3d 1171, 1175 (11th
Cir. 2011) (per curiam) (citation omitted); Richardson v. Johnson,
598
F.3d
734,
737
(11th
Cir.
2010)
(per
curiam)
(citations
omitted). 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, 802 F.2d at 401). 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 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).[13] 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.[14]
Furthermore, it is only a prison official's
subjective deliberate indifference to the
substantial risk of serious harm caused by
13
Farmer v. Brennan, 511 U.S. 825 (1994).
14
Hudson v. McMillian, 503 U.S. 1 (1992).
- 20 -
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.[15]
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, 510 F.3d at 1326.
"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.
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 (setting
15
Wilson v. Seiter, 501 U.S. 294 (1991).
- 21 -
forth 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).
In
Estelle[16],
the
Supreme
Court
established that "deliberate indifference"
entails more than mere negligence. Estelle,
429 U.S. at 106, 97 S.Ct. 285; Farmer, 511
U.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[17] 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,[18] 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. Davis has not alleged facts sufficient
to state a claim under the Eighth Amendment in that he has not
16
Estelle v. Gamble, 429 U.S. 97 (1976).
17
McElligott v. Foley, 182 F.3d 1248 (11th Cir. 1999).
18
Taylor v. Adams, 221 F.3d 1254 (11th Cir. 2000).
- 22 -
shown that Montoya was deliberately indifferent to his serious
medical needs.
As to any complaints about the Defendant's negligent acts and
unprofessional conduct in providing allegedly substandard medical
care,
the
law
is
well
settled
that
the
Constitution
is
not
implicated by the negligent acts of corrections officials and
medical personnel. Daniels v. Williams, 474 U.S. 327, 330-31
(1986); Davidson v. Cannon, 474 U.S. 344, 348 (1986) ("As we held
in Daniels, the protections of the Due Process Clause, whether
procedural or substantive, are just not triggered by lack of due
care by prison officials."). A complaint that a physician has been
negligent "in diagnosing or treating a medical condition does not
state a valid claim of medical mistreatment under the Eighth
Amendment." Bingham, 654 F.3d at 1176 (quotation marks and citation
omitted).
While
malpractice,
Plaintiff's
"[a]ccidents,
allegations
mistakes,
may
suggest
negligence,
and
medical
medical
malpractice are not 'constitutional violation[s] merely because the
victim is a prisoner.'" Harris v. Coweta Cty., 21 F.3d 388, 393
(11th Cir. 1994) (citing Estelle, 429 U.S. at 106). Consequently,
the allegedly negligent conduct of which Davis complains does not
rise to the level of a federal constitutional violation and
provides no basis for relief in this 42 U.S.C. § 1983 action.
According to Davis, Montoya examined him at Lake Butler
Regional Medical Center in June 2015, and advised Davis that he
would not refer Davis for additional medical treatment until
- 23 -
Davis's platelet count dropped to thirty. See TAC at 7. 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."). "Nor does a simple difference in medical opinion as
to [plaintiff's] diagnosis or course of treatment support a claim
of cruel and unusual punishment." Harris v. Thigpen, 941 F.2d 1495,
1505
(11th
Cir.
1991)
(citation
omitted).
Notably,
Davis
acknowledges that FDOC medical personnel drew his blood every three
to six months for over five years as part of the treatment plan and
monitoring process. See Response at 1. Additionally, the FDOC
advised Davis that "[l]evels have to be within a certain range to
receive the new medication" for Hepatitis C. See P. Ex. 13A.
Davis's interaction with Defendant Montoya in June 2015 does not
rise to the level of a federal constitutional violation and amounts
to a difference in medical opinion between Montoya and Davis.
- 24 -
Therefore, Montoya's Motion is due to be granted, and the Court
will dismiss Davis's claims against him.
F. Defendant Corizon Health
It
appears
that
Davis
is
suing
Corizon
for
alleged
mismanagement of his medical care. Corizon contracted with the FDOC
to provide medical services to inmates within the state of Florida.
Although Corizon is not a governmental entity, "[w]here a function
which is traditionally the exclusive prerogative of the state ...
is performed by a private entity, state action is present" for
purposes of § 1983. Ancata v. Prison Health Servs., Inc., 769 F.2d
700, 703 (11th Cir. 1985) (citations omitted). Indeed,
"when a private entity . . . contracts with a
county to provide medical services to inmates,
it performs a function traditionally within
the exclusive prerogative of the state" and
"becomes the functional equivalent of the
municipality" under section 1983. Buckner v.
Toro, 116 F.3d 450, 452 (11th Cir. 1997).
"[L]iability under § 1983 may not be based on
the doctrine of respondeat superior." Grech v.
Clayton Cnty., Ga., 335 F.3d 1326, 1329 (11th
Cir. 2003) (en banc).
Craig v. Floyd Cty., Ga., 643 F.3d 1306, 1310 (11th Cir. 2011); see
Denham v. Corizon Health, Inc., No. 15-12974, 2017 WL 129020, at *4
(11th Cir. Jan. 13, 2017) (stating that when a government function
is performed by a private entity like Corizon, the private entity
is treated as the functional equivalent of the government for which
it works) (citation omitted).
- 25 -
Where a deliberate indifference medical claim is brought
against an entity, such as Corizon, based upon its functional
equivalence
to
constitutional
a
government
violation
is
entity,
merely
the
the
assertion
first
hurdle
of
a
in
a
plaintiff's case. This is so because liability for constitutional
deprivations
under
§
1983
cannot
be
based
on
the
theory
of
respondeat superior. Craig, 643 F.3d at 1310 (quoting Grech v.
Clayton Cty., Ga., 335 F.3d 1326, 1329 (11th Cir. 2003) (en banc));
see Denno v. Sch. Bd. of Volusia Cty., 218 F.3d 1267, 1276 (11th
Cir. 2000). Instead, a government entity may be liable in a § 1983
action "only where the [government entity] itself causes the
constitutional violation at issue." Cook ex. rel. Estate of Tessier
v. Sheriff of Monroe Cty., Fla., 402 F.3d 1092, 1116 (11th Cir.
2005) (citations omitted). Thus, a plaintiff must establish that an
official policy or custom of the government entity was the "moving
force" behind the alleged constitutional deprivation. See Monell v.
Dep't of Soc. Servs., 436 U.S. 658, 693-94 (1978).
In Monell, the Supreme Court held that local governments can
be
held
liable
for
constitutional
torts
caused
by
official
policies. However, such liability is limited to "acts which the
[government entity] has officially sanctioned or ordered." Pembaur
v.
City
of
Cincinnati,
475
U.S.
469,
480
(1986).
Under
the
directives of Monell, a plaintiff also must allege that the
constitutional
deprivation
was
the
- 26 -
result
of
"an
official
government policy, the actions of an official fairly deemed to
represent government policy, or a custom or practice so pervasive
and well-settled that it assumes the force of law." Denno, 218 F.3d
at 1276 (citations omitted); see Hoefling v. City of Miami, 811
F.3d 1271, 1279 (11th Cir. 2016) (stating Monell "is meant to limit
§ 1983 liability to 'acts which the municipality has officially
sanctioned or ordered'"; adding that "[t]here are, however, several
different ways of establishing municipal liability under § 1983").
"A policy is a decision that is officially adopted by the
[government entity], or created by an official of such rank that he
or she could be said to be acting on behalf of the [government
entity]." Sewell v. Town of Lake Hamilton, 117 F.3d 488, 489 (11th
Cir. 1997) (citation omitted). The policy requirement is designed
to "'distinguish acts of the [government entity] from acts of
employees of the [government entity], and thereby make clear that
[governmental]
liability
is
limited
to
action
for
which
the
[government entity] is actually responsible.'" Grech, 335 F.3d at
1329 n.5 (quotation and citation omitted). Indeed, governmental
liability arises under § 1983 only where "'a deliberate choice to
follow a course of action is made from among various alternatives'"
by governmental policymakers. City of Canton v. Harris, 489 U.S.
378, 389 (1989) (quoting Pembaur, 475 U.S. at 483-84). A government
entity rarely will have an officially-adopted policy that permits
a particular constitutional violation, therefore, in order to state
- 27 -
a cause of action for damages under § 1983, most plaintiffs must
demonstrate that the government entity has a custom or practice of
permitting the violation. See Grech, 335 F.3d at 1330; McDowell v.
Brown, 392 F.3d 1283, 1289 (11th Cir. 2004). A custom is an act
"that
has
not
been
formally
approved
by
an
appropriate
decisionmaker," but that is "so widespread as to have the force of
law." Bd. of Cty. Comm'rs of Bryan Cty., Okla. v. Brown, 520 U.S.
397, 404 (1997) (citation omitted). The Eleventh Circuit has
defined "custom" as "a practice that is so settled and permanent
that it takes on the force of law" or a "persistent and wide-spread
practice."
Sewell,
117
F.3d
at
489.
Last,
"[t]o
hold
the
[government entity] liable, there must be 'a direct causal link
between [its] policy or custom and the alleged constitutional
deprivation.'" Snow ex rel. Snow v. City of Citronelle, 420 F.3d
1262, 1271 (11th Cir. 2005) (quotation omitted). Because Corizon's
liability under § 1983 would be based on its functional equivalence
to the government entity responsible for providing medical care and
services to FDOC inmates, Davis must plead that an official policy
or a custom or practice of Corizon was the moving force behind the
alleged federal constitutional violation.
Upon review, Davis has neither identified an official Corizon
policy of deliberate indifference nor an unofficial Corizon custom
or
practice
that
was
"the
moving
force"
behind
any
alleged
constitutional violation. Corizon cannot be held liable based on
- 28 -
any alleged conduct of or decisions made by its employees simply
because they were working under contract for Corizon to provide
medical care to inmates incarcerated in the FDOC. Davis's factual
allegations relating solely to alleged individual failures in his
medical care are simply insufficient to sustain a claim that there
is either a policy to deny medical care to inmates or a practice or
custom of denying adequate medical care, much less that the
practice was so widespread that Corizon had notice of violations
and made a "conscious choice" to disregard them. Gold v. City of
Miami, 151 F.3d 1346, 1350 (11th Cir. 1998). Therefore, Corizon's
Motion is due to be granted, and the Court will dismiss Davis's
claims against Corizon.
Therefore, it is now
ORDERED:
1.
Defendant Dr. Vernon Montoya's Motion to Dismiss Official
Capacity Claim (Doc. 42) is GRANTED, and Davis's claims against him
are DISMISSED.
2.
Defendant Julie L. Jones's Motion to Dismiss (Doc. 49) is
GRANTED, and Davis's claims against her are DISMISSED.
3.
(Doc.
Defendants Corizon, LLC and Dr. Le's Motion to Dismiss
55)
is
GRANTED,
and
Davis's
DISMISSED.
- 29 -
claims
against
them
are
4.
Defendant Nicholas Cabrero-Muniz's Motion to Dismiss
Plaintiff's Third Amended Complaint (Doc. 59) is GRANTED, and
Davis's claims against him are DISMISSED.
5.
The Clerk shall enter judgment dismissing this case and
terminating any pending motions.
6.
The Clerk shall close the case.
DONE AND ORDERED at Jacksonville, Florida, this 9th day of
May, 2017.
sc 5/8
c:
John Boynton Davis
Counsel of Record
- 30 -
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?