Pray v. Ogunsamus et al
ORDER granting 36 Motion to Dismiss for Failure to State a Claim; denying 49 Motion to Dismiss; dismissing Defendant Ogunsanwo and directing the Clerk to terminate him as a Defendant. Signed by Judge Marcia Morales Howard on 3/6/2018. (BL)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
CHADRICK VASHON PRAY,
Case No. 3:16-cv-180-J-34JBT
OLUGBENGA ADELEKE OGUNSANWO,
Plaintiff Chadrick Vashon Pray, an inmate of the Florida penal
system, initiated this action on February 24, 2016, by filing a
Civil Rights Complaint (Doc. 1) pursuant to 42 U.S.C. § 1983. He
filed an Amended Complaint (Doc. 11) on May 16, 2016, a Second
Amended Complaint (Doc. 20) on September 29, 2016, and a Third
Amended Complaint (TAC; Doc. 30) on March 27, 2017. In the TAC,
Ogunsanwo, an Assistant Secretary of Health Services for the
Florida Department of Corrections (FDOC); (2) Nurse Pollard, a
licensed practical nurse at Florida State Prison (FSP); (3) Nurse
D. Varghese, an advanced registered nurse practitioner at FSP; and
(4) John Does 1 through 5. He asserts that Defendants Pollard and
Varghese denied him pain medication (Lortab) that Dr. Contarini,
M.D., prescribed for him after the removal of a lipoma on August 2,
2016. As relief, he requests compensatory and punitive damages.
This matter is before the Court on Defendants Nurse Pollard
and Nurse Varghese's Motion to Dismiss Plaintiff's Third Amended
Complaint (Motion; Doc. 49) and Defendant Ogunsanwo's Motion to
Dismiss (Ogunsanwo's Motion; Doc. 36). The Court advised Pray 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. 34, 44, 50, 51,
53, 54). Plaintiff filed his response in opposition to the motions.
See Plaintiff's Response to Order to Show Cause (Response; Doc.
55). Defendants' motions are ripe for 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 Atl. 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) (citation and
footnote omitted). A "plaintiff's obligation to provide the grounds
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
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.
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
probability. See id.
Lane v. Philbin, 835 F.3d 1302, 1305 (11th Cir. 2016).
III. Third Amended Complaint1
Pray asserts that, on August 2, 2016, Dr. Contarini removed a
lipoma from his neck and prescribed Lortab for post-surgical pain.
See TAC at 10-11, ¶¶ 57, 58. He states that Defendants Pollard and
Varghese interfered with Dr. Contarini's prescribed treatment. See
id. at 11, ¶ 59. He alleges:
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 Ogunsanwo, Pollard, and Varghese, the Court's
recitation of the facts will focus on Pray's allegations as to
On August 2, 2016 Defendant Pollard and
Defendant Var[g]hese intentionally denied and
interfered with prescribed treatment of pain
medication, i.e. "Lortab," b[y] discontinuing
the medication and never providing it to [him]
as prescribed by Dr. Contarini, M.D.
Id. As to Defendant Ogunsanwo, Pray does not mention him in the
TAC. He neither alleges any facts involving Ogunsanwo nor asserts
any claims against him.
IV. Summary of the Arguments
In the Motion, Defendants Pollard and Varghese assert that
Pray's Eighth Amendment claims against them should be dismissed
because: (1) Pray failed to exhaust his administrative remedies, as
required by the Prison Litigation Reform Act (PLRA), before filing
the 42 U.S.C. § 1983 lawsuit, see Motion at 7-10, and (2) a lipoma
is not a serious medical need, and Pollard and Varghese could not
have denied him Lortab following the August 2nd surgery because
they did not work at the prison where he was incarcerated at that
time, see id. at 7. In response to Defendants' Motion, Pray
Response at 4. Additionally, he opposes Defendants' assertion that
they did not work at the prison where he was incarcerated, id. at
3, and states it is his "understanding" that no one can "veto" a
physician's prescribed treatment, id.
As such, Pray requests that
the Court deny the Motion. See id. at 4.
In Ogunsanwo's Motion, Defendant Ogunsanwo asserts that: (1)
the Court should dismiss him because Pray neither asserts any
claims against him, alleges any facts involving him, nor seeks
relief against him, see Ogunsanwo's Motion at 1-2; (2) he is
entitled to qualified immunity and a dismissal with prejudice, see
id. at 2-3; and (3) Pray fails to state a claim on which relief may
be granted, see id. at 3 (citing 28 U.S.C. § 1915(e)(2)(B)(ii)). In
response, Pray states that he names Ogunsanwo as a defendant "due
to his administrative position in the chain of command" because he
needs Ogunsanwo to help identify John Does 1 through 5. Response at
2. He explains:
Though [Ogunsanwo] didn't cause actual injury
to the Plaintiff, to dismiss Defendant
Ogunsanwo at this pre-discovery stage would
thwart my efforts to discovery and develop my
claims which will necessitate a trial by jury
. . . .
Id. at 2-3. As such, Pray states that Ogunsanwo "should not be
dismissed until after [a] full and fair discovery process," and
requests that the Court deny Ogunsanwo's Motion. Id. at 3, 4.
V. Exhaustion of Administrative Remedies
Exhaustion of available administrative remedies is required
before a 42 U.S.C. § 1983 action with respect to prison conditions
may be initiated in this Court by a prisoner. See 42 U.S.C. §
1997e(a). Nevertheless, a prisoner such as Pray is not required to
plead exhaustion. See Jones v. Bock, 549 U.S. 199, 216 (2007).
Instead, the United States Supreme Court has recognized "failure to
exhaust is an affirmative defense under the PLRA[.]" Id. Notably,
exhaustion of available administrative remedies is "a precondition
to an adjudication on the merits" and is mandatory under the PLRA.
Bryant v. Rich, 530 F.3d 1368, 1374 (11th Cir. 2008); Jones, 549
U.S. at 211; Woodford v. Ngo, 548 U.S. 81, 85 (2006) ("Exhaustion
is no longer left to the discretion of the district court, but is
mandatory.") (citation omitted). Not only is there an exhaustion
requirement, "the PLRA exhaustion requirement requires proper
exhaustion." Woodford, 548 U.S at 93.
designed to deal with parties who do not want
to exhaust, administrative law creates an
incentive for these parties to do what they
would otherwise prefer not to do, namely, to
give the agency a fair and full opportunity to
adjudicate their claims. Administrative law
does this by requiring proper exhaustion of
administrative remedies, which "means using
all steps that the agency holds out, and doing
so properly (so that the agency addresses the
issues on the merits)." Pozo, 286 F.3d, at
1024. . . .
Id. at 90. And, "[p]roper exhaustion demands compliance with an
agency's deadlines and other critical procedural rules . . . ." Id.
As such, the United States Supreme Court has emphasized:
Courts 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."
Ross v. Blake, 136 S.Ct. 1850, 1862 (2016).
Pozo v. McCaughtry, 286 F.3d 1022 (7th Cir. 2002).
The determination of whether an inmate exhausted his available
administrative remedies prior to filing a cause of action in
federal court is a matter of abatement and should be raised in a
motion to dismiss. Bryant, 530 F.3d at 1374. The Eleventh Circuit
has explained the two-step process that the Court must employ when
examining the issue of exhaustion of administrative remedies.
After a prisoner has exhausted the
grievance procedures, he may file suit under §
1983. In response to a prisoner suit,
defendants may bring a motion to dismiss and
raise as a defense the prisoner's failure to
exhaust these administrative remedies. See
Turner, 541 F.3d at 1081. In Turner v.
Burnside we established a two-step process for
resolving motions to dismiss prisoner lawsuits
for failure to exhaust. 541 F.3d at 1082.
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. Id.
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. Id. at 1082–83; see also id. at 1082
(explaining that defendants bear the burden of
showing a failure to exhaust).
Whatley v. Warden, Ware State Prison, 802 F.3d 1205, 1209 (11th
Cir. 2015); see Pavao v. Sims, 679 F. App'x 819, 823-24 (11th Cir.
2017) (per curiam).
Turner v. Burnside, 541 F.3d 1077 (11th Cir. 2008).
In the Complaint, Pray asserts that Defendants Pollard and
Varghese interfered with Dr. Contarini's prescribed treatment on
August 2, 2016. Defendants Pollard and Varghese maintain that the
Court should dismiss the claims against them because Pray failed to
exhaust his administrative remedies, as required by the PLRA,
before filing the 42 U.S.C. § 1983 lawsuit. They state:
According to the Complaint, Pray never
filed a grievance regarding Pollard or
Varghese, or any events relative to August
2016. Instead, his long list of grievances
ends with one filed January 11, 2016 and
denied February 15, 2016 [ECF #30, ¶¶ 51-52].
By his own allegations, signed under penalty
of perjury, he grieved nothing that occurred
in August 2016. The process was obviously
available, as he filed other grievances
regarding the incident. According to settled
law, this claim should go no further.
Motion at 10. In response to Defendants' Motion, Pray states he
filed "all necessary" grievances to exhaust his administrative
remedies. Response at 4. Neither the Defendants nor Pray provides
any exhibits in support of their positions.
As to the initial step in the two-part process for deciding
motions to dismiss for failure to exhaust under the PLRA, the
Eleventh Circuit has instructed:
District courts first should compare the
factual allegations in the motion to dismiss
and those in the prisoner's response and,
where there is a conflict, 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." Id.
assertion (that he filed the required grievances) as true, a
dismissal is not warranted. As to the second step in the two-part
procedure, the Defendants bear the burden of proving that Pray
failed to exhaust his available administrative remedies as to
Pray's Eighth Amendment claims against them. See Turner, 541 F.3d
at 1082 (citation omitted). As they have provided no evidence, they
have not met their burden. As such, Defendants' Motion as to
exhaustion is due to be denied.
VI. Eighth Amendment Deliberate Indifference
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) (citation omitted);
Richardson v. Johnson, 598 F.3d 734, 737 (11th Cir. 2010) (per
"'requires proof of an affirmative causal connection between the
deprivation' in § 1983 cases." Rodriguez v. Sec'y, Dep't of Corr.,
Whatley, 802 F.3d at 1209.
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 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). Thus, in its
punishments," the Eighth Amendment requires
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.
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.
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
Farmer v. Brennan, 511 U.S. 825 (1994).
Hudson v. McMillian, 503 U.S. 1 (1992).
Wilson v. Seiter, 501 U.S. 294 (1991).
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
substantial risk of serious harm." Id.
(citation and internal quotations marks
Brown, 387 F.3d at 1351.
Next, the plaintiff must satisfy the subjective component,
which requires the plaintiff to "allege that the prison official,
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).
established that "deliberate indifference"
Estelle v. Gamble, 429 U.S. 97 (1976).
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
standard in Farmer by holding that a prison
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 that "deliberate
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, 221
F.3d at 1258 (stating that defendant must have
subjective awareness of an "objectively
serious need" and that his response must
response to that need").
Farrow, 320 F.3d at 1245-46. Notably, the Supreme Court has stated
that a plaintiff may demonstrate the deliberate indifference of
prison officials by showing that they intentionally interfered with
prescribed treatment or intentionally denied access to medical
care. See Estelle, 429 U.S. at 104-05.
Defendants Pollard and Varghese seek dismissal of Pray's
Eighth Amendment claims against them, arguing that Pray fails to
provide sufficient facts that would entitle him to relief. Viewing
McElligott v. Foley, 182 F.3d 1248 (11th Cir. 1999).
Taylor v. Adams, 221 F.3d 1254 (11th Cir. 2000).
the facts in the light most favorable to Pray, as the Court must,
the Court is not so convinced. Pray has alleged facts sufficient to
state a plausible claim under the Eighth Amendment. In reaching
this conclusion, the Court observes that Pray asserts that Pollard
and Varghese refused to follow a physician's prescribed pain
treatment following the surgical removal of the lipoma, which had
grown to over five centimeters, increased in pain, and caused
limited neck movement. See Qamar v. C.I.A., 489 F. App'x 393, 396
(11th Cir. 2012) (per curiam) (citing Washington v. Dugger, 860
F.2d 1018, 1021 (11th Cir. 1988)). The Court declines to find that
these allegations if proven would fail to state a plausible claim
for a violation of the Eighth Amendment. As such, Defendants'
Motion is due to be denied as to Pray's Eighth Amendment claims
In Ogunsanwo's Motion, Defendant Ogunsanwo maintains that the
Court should dismiss him because Pray neither asserts any claims
against him, alleges any facts involving him, nor seeks any relief
against him. See Ogunsanwo's Motion at 1-2. In response, Pray
acknowledges that Ogunsanwo did not injure him. See Response at 2.
According to Pray, he names Ogunsanwo as a defendant because he
believes that Ogunsanwo can help him identify John Does 1 through
5. See id. at 2-3.
Federal Rule of Civil Procedure 8(a)(2) requires that a
complaint contain "a short and plain statement of the claim showing
that the pleader is entitled to relief." To avoid dismissal for
failure to state a claim on which relief can be granted, a
complaint must include "factual content that allows the court to
draw the reasonable inference that the defendant is liable for the
misconduct alleged." Iqbal, 556 U.S. at 678. Moreover, "[w]hile
legal conclusions can provide the framework of a complaint, they
must be supported by factual allegations." Id. at 679.
Pray is proceeding pro se in this action. The Eleventh Circuit
A pro se pleading is held to a less stringent
standard than a pleading drafted by an
attorney; a pro se pleading is liberally
construed. Hughes v. Lott, 350 F.3d 1157, 1160
(11th Cir. 2003). Even so, a pro se pleading
must suggest (even if inartfully) that there
is at least some factual support for a claim;
it is not enough just to invoke a legal theory
devoid of any factual basis.
Jones v. Fla. Parole Comm'n, 787 F.3d 1105, 1107 (11th Cir. 2015).
Pray's TAC unquestionably fails to state a claim to relief that is
plausible on its face as to Ogunsanwo. Pray supplies no facts, much
less sufficient facts to state any claim against this Defendant. As
such, Ogunsanwo's Motion is due to be granted as to Pray's Eighth
Amendment claim against him.11
Defendant Ogunsanwo also asserts that he is entitled to
qualified immunity. See Ogunsanwo's Motion at 2-3. Because the
Court finds that Pray fails to state any claim against Ogunsanwo,
it need not address Ogunsanwo's assertion that he is entitled to
Therefore, it is now
Defendants Pollard and Varghese's Motion to Dismiss
Plaintiff's Third Amended Complaint (Doc. 49) is DENIED.
Defendant Ogunsanwo's Motion to Dismiss (Doc. 36) is
Defendant Ogunsanwo is DISMISSED from the action. The
Clerk shall terminate him as a Defendant.
DONE AND ORDERED at Jacksonville, Florida, this 6th day of
Chadrick Vashon Pray, FDOC #777541
Counsel of Record
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