Muhammad v. Jones et al

Filing 259

ORDER granting 219 Defendants' Motion for Summary Judgment; directions to the Clerk. Signed by Judge Marcia Morales Howard on 9/8/2021. (JLD)

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UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
AKEEM MUHAMMAD,
Plaintiff,
v.

Case No. 3:16-cv-1436-MMH-PDB

JULIE JONES, et al.,
Defendants.
_____________________________
ORDER
I.

Status1

Plaintiff Akeem Muhammad, an inmate of the Florida penal system, is
proceeding on a pro se Second Amended Civil Rights Complaint (Doc. 67; SAC)
against Mark Inch, Secretary of the Florida Department of Corrections (FDOC)
in his official capacity;2 Julie Jones, former Secretary of the FDOC in her
individual capacity; Thomas Reimers, Director of Health Services for the
FDOC in his individual and official capacities; and Olugbenga Ogunsanwo,
former Director of Medical and Mental Health Services for the FDOC in his
individual capacity. Muhammad claims that Defendants have been

For all documents filed in this case, the Court cites to the page numbers as assigned by the
Court’s Electronic Case Filing System.
1

At Defendants’ request, the Court substituted Inch, in his official capacity, for Jones, in her
official capacity, as the Secretary of the FDOC. See Order (Doc. 116).
2

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deliberately indifferent to his serious psychiatric needs with respect to his
paraphilic disorder.
Before the Court is Defendants’ Motion for Summary Judgment (Doc.
219; Motion). As an exhibit, Defendants filed under seal the Expert Witness
Report of Rajiv Loungani, MD, MPH (Doc. 219-1; Loungani Report3). The Court
previously advised Muhammad of the provisions of Federal Rule of Civil
Procedure (Rule(s)) 56 and provided him with an opportunity to file a response.
See Order (Doc. 11); Summary Judgment Notice (Doc. 220). Muhammad filed
a Response (Doc. 254; Response) with several exhibits, some of which he filed
under seal (Docs. 254-1 to 254-23, S-258). The Motion is ripe for review.
II.

Muhammad’s Allegations

In the SAC, Muhammad alleges that Ogunsanwo and Reimers adopted
and enforced “a statewide blanket ban on hormone therapy for psychiatric
disorders”; Jones/Inch approved and refused to abolish the “blanket ban”; and
Reimers and Jones/Inch intentionally refused to allow a qualified psychologist
or psychiatrist to evaluate, diagnose, and treat Muhammad for paraphilic

Muhammad also filed a copy of the Loungani Report. See Doc. S-258 at 102-11. Muhammad
included an addendum completed by Dr. Loungani that corrects a scrivener’s error with
respect to the date of the evaluation. See id. at 111. Dr. Loungani evaluated Muhammad on
February 28, 2020, not February 28, 2019. See id.
3

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disorder.4 SAC at 3. He argues that only specially trained psychologists and
psychiatrists can diagnose patients with paraphilic disorder; and that this “ban
effectively deters prison health staff statewide from hiring psychologists and
psychiatrists who are specially qualified” and “[b]ecause of the ban, since at
least 2013, there have been minimal prison psychologists and/or psychiatrists
statewide who are specially qualified to evaluate patients . . . and none of them
have been employed at [Union Correctional Institution (UCI)].” Id. at 7, 9.
Muhammad also alleges that “[h]ormone therapy in the form of antiandrogen
agents is generally the only psychiatrically recognized, accepted, necessary,
and effective treatment for paraphilic disorder.” Id. at 7. According to
Muhammad, however, due to the “ban,” prison staff will not diagnose an
inmate with paraphilic disorder “because they will be unable to provide the
inmate with the antiandrogen therapy that is clinically determined to be
psychiatrically necessary for the inmate’s paraphilic disorder.” Id. at 9.
Muhammad alleges that from 2014 to at least November 14, 2016, he
“repeatedly reported his untreated paraphilic disorder to UCI medical and

The evaluation and treatment of Muhammad’s condition has been evolving since he filed
this case. Muhammad acknowledges that “[i]n 2018 and 2019, Defendants allowed [him] to
be diagnosed with paraphilic disorder, but continue to deny [him] the standard of medical
care for paraphilic disorders.” Doc. 208-1 at 1; see Doc. S-258 at 54-55 (treatment note dated
August 8, 2017, assessing Muhammad with paraphilia), 73 (record dated January 11, 2019,
noting “new diagnosis added” of “unspec[ified] Paraphilia”), 74-86 (2019 evaluation).
4

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mental health staff,” and “repeatedly requested those staff to evaluate him for
paraphilic disorder, to diagnose him with paraphilic disorder, and to provide
him with psychiatrically recognized, accepted and necessary treatment or
antiandrogen therapy for his untreated paraphilic disorder.” Id. at 10.
Muhammad contends that UCI medical and mental health staff “clinically
determined that [Muhammad] had and continued to have a serious psychiatric
need to be evaluated,” diagnosed, and treated for paraphilic disorder, but “the
ban prevented or effectively prevented UCI medical and mental health staff
from” doing so. Id. As relief, Muhammad seeks “a permanent injunction
against [Inch] as deemed fit by the Court”; “a declaratory judgment against
Reimers as deemed fit by the Court”; monetary damages against Jones,
Ogunsanwo, and Reimers in their individual capacities; and any other relief to
which he is entitled. Id. at 13 (some capitalization omitted).
III.

Summary Judgment Standard

Under Rule 56, “[t]he court shall grant summary judgment if the movant
shows that there is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The record to
be considered on a motion for summary judgment may include “depositions,
documents, electronically stored information, affidavits or declarations,
stipulations (including those made for purposes of the motion only),
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admissions, interrogatory answers, or other materials.” Fed. R. Civ. P.
56(c)(1)(A).5 An issue is genuine when the evidence is such that a reasonable
jury could return a verdict in favor of the non-moving party. Mize v. Jefferson
City Bd. of Educ., 93 F.3d 739, 742 (11th Cir. 1996) (quoting Hairston v.
Gainesville Sun Publ’g Co., 9 F.3d 913, 919 (11th Cir. 1993)). “[A] mere scintilla
of evidence in support of the non-moving party’s position is insufficient to
defeat a motion for summary judgment.” Kesinger ex rel. Estate of Kesinger v.
Herrington, 381 F.3d 1243, 1247 (11th Cir. 2004) (citing Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 252 (1986)).
The party seeking summary judgment bears the initial burden of
demonstrating to the court, by reference to the record, that there are no
genuine issues of material fact to be determined at trial. See Clark v. Coats &
Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991). “When a moving party has
discharged its burden, the non-moving party must then go beyond the

Rule 56 was revised in 2010 “to improve the procedures for presenting and deciding
summary-judgment motions.” Rule 56 advisory committee’s note 2010 Amends.
5

The standard for granting summary judgment remains
unchanged. The language of subdivision (a) continues to require
that there be no genuine dispute as to any material fact and that
the movant be entitled to judgment as a matter of law. The
amendments will not affect continuing development of the
decisional law construing and applying these phrases.
Id. “[A]lthough the interpretations in the advisory committee[’s] notes are not binding, they
are highly persuasive.” Campbell v. Shinseki, 546 F. App’x 874, 879 n.3 (11th Cir. 2013).
Thus, case law construing the former Rule 56 standard of review remains viable.
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pleadings, and by its own affidavits, or by depositions, answers to
interrogatories, and admissions on file, designate specific facts showing that
there is a genuine issue for trial.” Jeffery v. Sarasota White Sox, Inc., 64 F.3d
590, 593-94 (11th Cir. 1995) (internal citations and quotation marks omitted).
Substantive law determines the materiality of facts, and “[o]nly disputes over
facts that might affect the outcome of the suit under the governing law will
properly preclude the entry of summary judgment.” Anderson, 477 U.S. at 248.
In determining whether summary judgment is appropriate, a court “must view
all evidence and make all reasonable inferences in favor of the party opposing
summary judgment.” Haves v. City of Miami, 52 F.3d 918, 921 (11th Cir. 1995)
(citing Dibrell Bros. Int’l, S.A. v. Banca Nazionale Del Lavoro, 38 F.3d 1571,
1578 (11th Cir. 1994)). “Summary judgment is improper, however, if the
evidence is such that a reasonable jury could return a verdict for the
nonmoving party.” Guevara v. NCL (Bahamas) Ltd., 920 F.3d 710, 720 (11th
Cir. 2019) (quotation marks and citation omitted).
IV.

Parties’ Positions

Defendants argue that even assuming Muhammad can satisfy the
objective prong of a deliberate indifference claim, “he is unable to satisfy the
subjective prong” because he cannot show that Defendants’ actions amounted
to deliberate indifference. Motion at 9. Defendants rely on Dr. Loungani’s
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Report, arguing that there is “nothing in Dr. Loungani’s [R]eport to suggest
that the Defendants’ conduct amounted to medical treatment that is grossly
incompetent, inadequate, or excessive as to shock the conscience.” Id. at 11.
Defendants further assert that Muhammad has not shown a physical injury,
and thus he is not entitled to compensatory or punitive damages. See id. at 1215.
In his Response, Muhammad contends that Defendants have
misconstrued Dr. Loungani’s Report. See Response at 12. He recognizes that
Dr. Loungani opined that the FDOC followed the standard of care for the initial
treatment protocol of his paraphilia; however, Muhammad emphasizes that
Dr. Loungani further found that the initial protocol failed and he recommended
that Defendants consider proceeding to the next step and provide further
treatment. See id. at 12-13. Muhammad also argues that “Defendants’ blanket
ban . . . prohibits, precludes and prevents medical and psychiatric providers
from providing medically necessary antiandrogen treatment for [his]
paraphilic disorder,” and that “Defendants intentionally denied clinical
requests for authorization to treat [Muhammad’s] paraphilic disorder with
medically necessary antiandrogen treatment.” Id. at 14, 17. Finally, as to his
requested monetary relief, he cites to a recent Eleventh Circuit opinion that
was decided after Defendants filed the Motion and contends that he may
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recover punitive damages without showing a physical injury. Id. at 18.
Regardless, he asserts that he has shown a physical injury. Id. Accordingly,
Muhammad requests the Court deny Defendants’ Motion. Id. at 18-19.
V.

Analysis6

“To set out a claim for deliberate indifference to medical need, [the
plaintiff] must make three showings: (1) he had a serious medical need; (2) the
[defendant] w[as] deliberately indifferent to that need; and (3) the
[defendant’s] deliberate indifference and [the plaintiff’s] injury were causally
related. Hinson v. Bias, 927 F.3d 1103, 1121 (11th Cir. 2019); see Nam Dang
by & through Vina Dang v. Sheriff, Seminole Cnty. Fla., 871 F.3d 1272, 1279
(11th Cir. 2017) (“To prevail on [a] § 1983 claim for inadequate medical
treatment, [the plaintiff] must show (1) a serious medical need; (2) the health
care providers’ deliberate indifference to that need; and (3) causation between
the health care providers’ indifference and [the plaintiff’s] injury.”).7
A serious medical need is one that has been diagnosed
by a physician as mandating treatment or one that is
so obvious that even a lay person would easily
recognize the necessity for a doctor’s attention. In the
alternative, a serious medical need is determined by

For purposes of summary judgment, the Court views the evidence and all reasonable
inferences therefrom in the light most favorable to the non-moving party. Thus, the facts
described in the Court’s analysis may differ from those that ultimately can be proved.
6

The Eleventh Circuit “has acknowledged that the deliberate indifference standard also
applies to inmates’ psychiatric or mental health needs.” Harris v. Thigpen, 941 F.2d 1495,
1505 (11th Cir. 1991) (citation omitted).
7

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whether a delay in treating the need worsens the
condition. In either case, the medical need must be
one that, if left unattended, poses a substantial risk
of serious harm.
Mann v. Taser Int’l, Inc., 588 F.3d 1291, 1307 (11th Cir. 2009) (quotations and
citation omitted); see Patel v. Lanier Cnty. Ga., 969 F.3d 1173, 1188 (11th Cir.
2020).
A claim of deliberate indifference to a serious medical need requires
“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.”
Farrow v. West, 320 F.3d 1235, 1245 (11th Cir. 2003) (citations omitted); see
Patel, 969 F.3d at 1188-89 & n.10 (recognizing “a tension within [Eleventh
Circuit] precedent regarding the minimum standard for culpability under the
deliberate-indifference standard,” as some cases have used “more than gross
negligence” while others have used “more than mere negligence”; finding,
however, that it may be “a distinction without a difference” because “no matter
how serious the negligence, conduct that can’t fairly be characterized as
reckless won’t meet the Supreme Court’s standard” (citations omitted)).
“Subjective knowledge of the risk requires that the defendant 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.’” Dang, 871 F.3d at 1280

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(quoting Caldwell v. Warden, FCI Talladega, 748 F.3d 1090, 1099-1100 (11th
Cir. 2014)).
An official disregards a serious risk by more than
mere negligence “when he [or she] knows that an
inmate is in serious need of medical care, but he [or
she] fails or refuses to obtain medical treatment for
the inmate.” Lancaster v. Monroe Cnty., Ala., 116
F.3d 1419, 1425 (11th Cir. 1997), overruled on other
grounds by LeFrere v. Quezada, 588 F.3d 1317, 1318
(11th Cir. 2009). Even when medical care is
ultimately provided, a prison official may nonetheless
act with deliberate indifference by delaying the
treatment of serious medical needs. See Harris v.
Coweta Cnty., 21 F.3d 388, 393-94 (11th Cir. 1994)
(citing Brown v. Hughes, 894 F.2d 1533, 1537-39
(11th Cir. 1990)).[8] Further, “medical care which is
so cursory as to amount to no treatment at all may
amount to deliberate indifference.” Mandel v. Doe,
888 F.2d 783, 789 (11th Cir. 1989) (citations omitted).
However,
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.” Rogers v.
Evans, 792 F.2d 1052, 1058 (11th Cir. 1986) (citation
omitted).

“Even where medical care is ultimately provided, a prison official may nonetheless act with
deliberate indifference by delaying the treatment of serious medical needs, even for a period
of hours, though the reason for the delay and the nature of the medical need is relevant in
determining what type of delay is constitutionally intolerable.” McElligott v. Foley, 182 F.3d
1248, 1255 (11th Cir. 1999) (citation omitted). However, “[i]t is also true that when a prison
inmate has received medical care, courts hesitate to find an Eighth Amendment violation.”
Waldrop v. Evans, 871 F.2d 1030, 1035 (11th Cir. 1989) (citing Hamm v. DeKalb Cnty., 774
F.2d 1567, 1575 (11th Cir. 1985)); see Boone v. Gaxiola, 665 F. App’x 772, 774 (11th Cir.
2016).
8

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Dang, 871 F.3d at 1280 (some internal citations modified). “‘[I]mputed or
collective knowledge cannot serve as the basis for a claim of deliberate
indifference. Each individual defendant must be judged separately and on the
basis of what that person kn[ew].’” Id. (quoting Burnette v. Taylor, 533 F.3d
1325, 1331 (11th Cir. 2008)).
Defendants rely on Dr. Loungani’s Report which includes the following
assessment and recommendations:
Inmate appears to in fact have paraphilic
disorders – both coercive and pedophilic disorders.
-Standard of Care appears to have been
followed for initial medication treatment algorithm
steps: Selective serotonin reuptake inhibitors (SSRIs)
and
neuroleptics/antipsychotic
medications
attempted.
-Consider raising Zoloft (sertraline) dose to as
high as 300mg if tolerated, cross-titrate back to Prozac
(fluoxetine, which has evidence in the literature for
treating paraphilic coercive disorder), or to an
alternative
antidepressant
such
as
Luvox
(fluvoxamine),
Anafranil
(clomipramine),
or
Norpramin (desipramine), or neuroleptic such as
Abilify (aripiprazole) or Rexult (brexpiprazole), for
Obsessive-Compulsive Disorder and Paraphilic
disorders.
-ReVia (naltrexone), Remeron (mirtazapine),
antipsychotics (e.g. fluphenazine), mood stabilizers
(e.g. Lithium carbonate, carbamazepine, topiramate)
also have been used sporadically in various studies,
with low level of efficacy shown.
-Consider proceeding to next step(s) in
treatment algorithm of paraphilias: add anti-androgen
to SSRI, such as Medroxyprogesterone acetate
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(MPA),[9] Cyproterone acetate (CPA), GnRH
analogues
(e.g.
Triptorelin,
Leuprorelin,
Gosrelin), all of which have been found to reduce sex
drive, deviant sexual behavior and fantasies in males
as early as within weeks; Depo-Prover[a], given lack of
effectiveness with antidepressants and neuroleptics
attempted thus far, plus moderate risk of sexual
violence toward female staff/guards.
-Psychotherapy
–
supportive,
cognitivebehavioral,
insight-oriented/psychodynamic,
mindfulness-based, empathy training, sexual impulse
control training, relapse prevention, biofeedback,
motivational interviewing.
Continue Psychoeducation to help inmate
understand links between his cognitions, feelings,
physiological responses, and actions; distraction
techniques and other coping skills when overwhelmed.
-Assign male treatment providers (prescribers
and therapist) if possible, and limit exposure to female
staff and guards. This is both for inmate’s benefit, as
well as for the staff’s safety.
-Monitor Suicidal Ideation/Intent/Plan and
Sexual risk of acting out with female staff and guards.
-Tests: Psychiatric labs to rule out psychiatric
symptoms due to general medical conditions. MRI
Brain with and without contrast to evaluate for
neurological lesions, given history of at least three
head injuries with loss of consciousness.
-Bilateral orchidectomy (surgical castration) is a
last resort for serial sex offenders, after all
alternative[s] and less invasive treatment utilized, if
legal in the state of Florida under such conditions.
Loungani Report at 9-10 (emphasis in original).

9

“Medroxyprogesterone Acetate is the generic name of Depo-Provera.” Doc. 254-14 at 6.
12

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Defendants assume for purposes of their Motion that Muhammad has a
serious medical need, thus satisfying the objective component of a deliberate
indifference claim. See Motion at 9. As to the subjective component,
Defendants rely on Dr. Loungani’s Report and assert that they “did nothing
wrong.” Id. at 11. According to Defendants, while Muhammad avers in his SAC
“that hormone therapy or anti-androgen therapy is the only psychiatrically
recognized treatment for paraphilic disorders,” Dr. Loungani opined that there
are various other treatment options. Id. at 10 (emphasis in original).
Defendants assert that although Dr. Loungani “listed supplemental treatment
options, including anti-androgen therapy,” Muhammad “is not entitled to the
best, most expensive treatment available.” Id. at 11. They conclude that
Muhammad “is merely upset that the Defendants are not provid[ing] the
treatment he wants.” Id.
Muhammad argues that “Defendants’ blanket ban that prohibits,
precludes and prevents medical and psychiatric providers from providing
medically necessary antiandrogen treatment for [Muhammad’s] paraphilic
disorder” results in deliberate indifference to his serious psychiatric needs.
Response at 14; see also SAC at 3. He relies, in part, on the Eleventh Circuit’s

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decision in Keohane v. Fla. Dep’t of Corr., 952 F.3d 1257 (11th Cir. 2020).10 In
Keohane, a transgender female inmate sued the Secretary of the FDOC
asserting, in relevant part, that the FDOC’s refusal to accommodate her socialtransitioning requests violated her Eighth Amendment rights. Like here, the
dispute centered on the subjective component. Id. at 1273-74. The Eleventh
Circuit found no Eighth Amendment violation for two main reasons: (1) “the
testifying medical professionals were—and remain—divided over whether
social transitioning is medically necessary to [the plaintiff’s] gender-dysphoria
treatment” and (2) the FDOC “denied [the plaintiff’s] social-transitioningrelated requests, at least in part, on the ground that they presented serious
security concerns.” Id. at 1274-75. Relevant to this Court’s consideration of
Muhammad’s claim, the Eleventh Circuit reasoned:
At worst, then, this is a situation where medical
professionals disagree as to the proper course of
treatment for [the plaintiff’s] gender dysphoria, and
it’s well established that “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 [cannot] support a claim of cruel and
unusual punishment.” Harris v. Thigpen, 941 F.2d
1495, 1505 (11th Cir. 1991); Waldrop v. Evans, 871
F.2d 1030, 1033 (11th Cir. 1989); accord, e.g., Lamb v.
Norwood, 899 F.3d 1159, 1163 (10th Cir. 2018)
(holding that “disagreement alone” does not constitute

The appeal came before the Eleventh Circuit after a bench trial in the United States
District Court for the Northern District of Florida. See Keohane v. Jones, 328 F. Supp. 3d
1288 (N.D. Fla. 2018), vacated sub nom. Keohane, 952 F.3d at 1257.
10

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deliberate indifference); Kosilek v. Spencer, 774 F.3d
63, 90 (1st Cir. 2014) (“The law is clear that where two
alternative courses of medical treatment exist, and
both alleviate negative effects within the boundaries
of modern medicine, it is not the place of our court to
second guess medical judgments or to require that the
[F]DOC adopt the more compassionate of two
adequate options.” (quotation omitted)). Put simply,
when the medical community can’t agree on the
appropriate course of care, there is simply no legal
basis for concluding that the treatment provided is “so
grossly incompetent, inadequate, or excessive as to
shock the conscience or to be intolerable to
fundamental fairness.” Harris, 941 F.2d at 1505
(quotation omitted). Here, therefore, implementing
the course of treatment recommended by [the
plaintiff’s] FD[O]C medical team, and seconded by a
number of other medical professionals, isn’t “so
unconscionable as to fall below society’s minimum
standards of decency”—and thus violative of the
Eighth Amendment—merely because it conflicts with
the opinion of [the plaintiff’s] retained expert. Kosilek,
774 F.3d at 96.
Keohane, 952 F.3d at 1274-75 (internal citations modified and footnotes
omitted).
Here, in his Report, Dr. Loungani explicitly found that the FDOC
followed the standard of care for the “initial medication treatment algorithm
steps,” and he recommended considering the addition of an anti-androgen
medication as one treatment option. However, Dr. Loungani did not find that
anti-androgen therapy is the only treatment option. Indeed, Dr. Loungani also
recommended certain medications, psychotherapy, psychoeducation, limiting
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contact with females, monitoring Muhammad’s suicidal ideation, and
conducting certain tests. It follows that Dr. Loungani did not find that DepoProvera or other anti-androgen therapy is medically necessary to treat
Muhammad’s paraphilia. Thus, even assuming Defendants were responsible
for a blanket ban on treating paraphilias with anti-androgen therapy, such
therapy, at least according to Dr. Loungani, is not medically necessary to treat
Muhammad’s condition. And Muhammad presents no evidence that antiandrogen therapy was the sole proper treatment for his paraphilia. Therefore,
there exists no basis to hold Defendants liable under the Eighth Amendment.
This is further confirmed by the evidence Muhammad submitted, which
shows that there is no consensus among medical professionals that antiandrogen therapy is medically necessary for the treatment of Muhammad’s
paraphilia. A summary of that evidence follows.
On July 2, 2018, Defendant Reimers responded to Muhammad’s second
set of interrogatories and advised that “[i]ndividual and/or group therapy is
generally the accepted practice of treatment” for paraphilic disorders. Doc. 25415 at 2-3.11 Defendant Reimers clarified that “the general course of treatment
differs from patient to patient, and there is no single ‘cure’ that fits all
individuals. Treatment must be tailored to the specific concerns of individual

11

See Doc. 254-3 (Reimers’ curriculum vitae).
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patients.” Id. at 3. He further advised that “Depo-Provera is not . . . indicated
by the Food and Drug Administration as being used to treat paraphilic
disorders. Additionally, [p]araphilic disorders is a category label not a specific
diagnosis, therefore no treatment is specified for a category.” Id.; see also id. at
4 (“Depo-Provera is not an indicated course of treatment to treat paraphilic
disorders according to the FDA, and as a result, is not generally proscribed [sic]
to treat such issues.”). Finally, Defendant Reimers declared that “[t]here is no
blanket ban on Depo-Provera as it is part of FDOC’s formulary.” Id. at 4.12
Also on July 2, 2018, Defendant Reimers responded to Muhammad’s first
set of interrogatories that asked for a detailed explanation of Defendants
Ogunsanwo, Reimers, and the FDOC’s policy or practice relating to the use of
hormone treatment for psychiatric disorders such as paraphilic disorders and
gender identity disorder. See Doc. 254-16 at 2. Defendant Reimers objected to
the relevance of any information related to gender identity disorder, but
otherwise responded:
Health Services Bulletin [(HSB)] 15.05.03 describes
the policies of the [FDOC] regarding treatment of
paraphilic disorders. The Policy is summarized as the
evaluation and referral process and general outline of
treatment. However, the course of treatment is

One year prior, in June 2017, the FDOC had four medications on its formulary that the
Generic Product Identifier system classified as anti-androgen: Bicalutamide, Enzalutamide,
Flutamide, and Nilutamide. Doc. 254-20 at 3. The FDOC apparently added Depo-Provera
sometime thereafter.
12

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ultimately to be determined by the treating doctor,
and this policy acts a[s] guidelines in determining that
course.
Id. at 3; see Doc. 254-17 (HSB 15.05.03).
Additionally, on several occasions in February and March 2019, A.
McCaw, M.A., a psychology intern, under the supervision of T. Culbreath,
Psy.D., a licensed psychologist, evaluated Muhammad at Zephyrhills
Correctional Institution. See Doc. S-258 at 74-86. McCaw and Dr. Culbreath
diagnosed Muhammad with unspecified paraphilic disorder, among other
diagnoses. Id. at 83. The two made various treatment recommendations, such
as housing Muhammad within the inpatient Transitional Care Unit, assigning
male therapists if possible, obtaining a psychiatric consultation to consider
restarting an SSRI in conjunction with medical staff to address any medical
side effects, engaging in psychoeducation, and utilizing cognitive behavior
interventions. See id. at 83, 85. They did not include any recommendation for
anti-androgen therapy.
Perhaps the best piece of evidence for Muhammad is an April 30, 2019
order written by M. Thomas, APRN, prescribing medroxyprogesterone (DepoProvera) for Muhammad. Id. at 88-89.13 On May 3, 2019, John P. Lay, Jr., M.D.,

See also Doc. 254-10 at 3-4 (interrogatory responses by Dr. Nicole Knox, Psy.D., on behalf
of Defendant Inch, dated April 23, 2019, stating: “Any consideration of prescribed medication
would be contingent upon the results of the psychiatric evaluation. [Muhammad] has been
13

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approved the Drug Exception Request for medroxyprogesterone, id. at 90;
however, a note written by APRN Thomas on May 14, 2019, reflects that the
“order for Depo” was discontinued and that “this is a medication used for a
DSM-5 diagnosis,” id. at 92.14
On June 5, 2019, on behalf of Defendant Inch, Johnathan Greenfield,
M.D., Associate Statewide Psychiatric Director for the FDOC/Centurion,
averred that:
There are no current psychiatrically recognized,
accepted, and appropriate pharmacologic treatments
of paraphilic disorders. The current psychiatrically
recognized and accepted treatment of paraphilic
disorders focuses on an overall comprehensive
treatment involving psychotherapy and behavioral
therapy and may involve pharmacologic interventions
which attempt to address and ameliorate the
symptoms associated with any risk of sexual violence
due to paraphilic behaviors and impairment in
functionality.

approved for possible prescription of [D]epo-[P]rovera, and treatment would follow
thereafter.”)
Muhammad blames Defendant Inch for the discontinuation of the Depo-Provera treatment,
arguing that “Inch is not a medical professional and is not trained in the management of
medical care.” Response at 18 (“[O]n 5-14-19, Inch ordered medical professionals to
discontinue [Muhammad’s] treatment with Depo-Provera; (treatment that Inch approved on
4-23-19).”). Muhammad, however, has not presented any evidence that Defendant Inch, who
is sued in his official capacity only, was responsible for the decision to cancel the treatment
order. In Muhammad’s Affidavit, he avers that Dr. H. Johnson and Dr. S. Boyce told him
“that medical and mental health staff at [Zephyrhills Correctional Institution] didn’t have
anything to do with Central Office – FD[O]C cancelling the approval to use Depo-Provera to
treat [his] paraphilia.” Doc. S-258 at 16. Muhammad continued, “In Oct[ober] 2019, Dr.
Thomas told me that Dr. Amaccuci [(the Regional Medical Director)] ordered her to
discontinue [the] Depo-Provera on 5-14-19, and that she didn’t like or agree with that order.”
Id.
14

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Doc. 254-14 at 4.
On January 29, 2020, Psychiatric Nurse Practitioner A. Napoli
evaluated Muhammad and noted that he reported “some improvement in
symptoms however [he] continues to have issues with inappropriate and
violent sexual ideations.” Doc. S-258 at 93. Napoli planned to “consider options
for treatment of paraphilia.” Id. at 94. On March 4, 2020, Muhammad reported
to Napoli that the “current dose of Zoloft [was] not helping with [his]
paraphilia” and he requested an increased dose. Id. at 95. Napoli noted
Muhammad’s “great concern about [his] inability to control [his] paraphilia
symptoms,” and Napoli planned to “consult with Dr[s]. Greenfield [and]
Pages.” Id. at 96. On May 12, 2020, Napoli noted: Muhammad “states that
sexual/homicidal urges have been especially bothersome today which has him
distressed. These thoughts are directed at all women present on the quad
including this provider.” Id. at 97. She further indicated that Muhammad “does
not participate in group therapy due to paraphilic urges. [Muhammad]
currently undertaking legal remedy as medications requested for paraphilia
have been denied.” Id. at 98.

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On March 2, 2021, Psychiatrist C. Lim evaluated Muhammad. Id. at 99100.15 Dr. Lim noted that Muhammad reported he was “[b]etter [with] Prozac,”
and he requested the same dose. Id. at 99. Dr. Lim wrote: “Lot of time spent on
[Muhammad’s] demand for [D]epo[] Provera. This has been discussed several
[times with] D[rs.] Greenfield [and] Taylor [and] Request Denied as
discussed.”16 Id. at 100.
In April 2021, Muhammad submitted an inmate request asking why Dr.
Greenfield denied psychiatry’s repeated requests for approval to treat him with
Depo-Provera. Id. at 101. The Director of Psychological Services at Suwannee
Correctional Institution responded: “On 08/03/2020 you received a response
from Dr. Greenfield[:] ‘All DERs [(Drug Exception Requests)] are determined
in full compliance with the Florida DOC policies and procedures, using as
guidelines the most currently approved edition of the Physician Desk
Reference.’” Id. at 101.
Muhammad also filed as exhibits several publications. See Docs. 254-8,
254-9, 254-11, 254-12, 254-13. Notably, one of the publications authored in

15

Some of Dr. Lim’s notes are illegible. See Doc. S-258 at 99-100.

In Muhammad’s Affidavit, he interprets this note as follows: “Depo-Provera . . . has been
discussed several [times with] Dr. Greenfield [and] Dr. Taylor. [Our] Request [for DepoProvera] denied. . . .” Doc. S-258 at 16-17.
16

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2010 proposed an algorithm of pharmacological treatment for paraphilias. See
Doc. 254-8. The algorithm consisted of the following six levels:
LEVEL 1
 Aim: control of paraphiliac sexual
fantasies, compulsions and
behaviours without impact on
conventional sexual activity and on
sexual desire

 Psychotherapy (preferentially
cognitive behavioural therapy if
available (Level C), no level of
evidence for other forms of
psychotherapy)

LEVEL 2
 Aim: control of paraphiliac sexual
fantasies, compulsions and
behaviours with minor impact on
conventional sexual activity and on
sexual desire
 May be used in all mild cases
(“hands off” paraphilias with low
risk of sexual violence, i.e.
exhibitionism without any risk of
rape or paedophilia)
 No satisfactory results at level 1

 SSRIs: increase the dosage at the
same level as prescribed in OCD
(e.g., fluoxetine 40-60 mg/day or
paroxetine 40 mg/day (Level C)

LEVEL 3
 Aim: control of paraphiliac sexual
fantasies, compulsions and
behaviours with a moderate
reduction of conventional sexual
activity and sexual desire
 ‘Hands on’ paraphilias with
fondling but without penetration
 Paraphiliac sexual fantasies
without sexual sadism
 No satisfactory results at level 2
after 4-6 weeks of SSRIs at high
dosages

 Add a low dose antiandrogen (e.g.,
cyproterone acetate 50-100 mg/day)
to SSRIs (Level D)

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LEVEL 4
 Aim: control of paraphiliac sexual
fantasies, compulsions and
behaviours with a substantial
reduction of sexual activity and
desire
 Moderate and high risk of sexual
violence (severe paraphilias with
more intrusive fondling with
limited number of victims)
 No sexual sadism fantasies and/or
behaviour (if present: go to level 5)
 Compliant patient, if not: use i.m.
form or go to level 5
 No satisfactory results at level 3

 First choice: full dosage of
cyproterone acetate (CPA): oral,
200-300 mg/day or i.m. 200-400 mg
once weekly or every 2 weeks; or
use medroxyprogesterone acetate:
50-300 mg/day if CPA is not
available (Level C)
 If co-morbidity with anxiety,
depressive or obsessive compulsive
symptoms, SSRI’s might be
associated with cyproterone acetate

LEVEL 5
 Aim: control of paraphiliac sexual
fantasies, compulsions and
behaviours with an almost
complete suppression of sexual
desire and activity
 High risk of sexual violence and
severe paraphilias
 Sexual sadism fantasies and/or
behaviour or physical violence
 No compliance or no satisfactory
results at level 4

 Long acting GnRH agonists, i.e.
triptorelin or leuprolide acetate 3
mg/month or 11,25 mg i.m. every 3
months (Level C)
 Testosterone levels measurements
may be easily used to control the
GnRH agonist treatment
observance if necessary
 Cyproterone acetate may be
associated with GnRH agonist
treatment (one week before and
during the first month of GNRHa)
to prevent a flare up effect and to
control the relapse risk of deviant
sexual behaviour associated with
the flare up effect

LEVEL 6
 Aim: control of paraphiliac sexual
fantasies, compulsions and
behaviours with a complete

 Use antiandrogen treatment, i.e.
cyproterone acetate (50-200 mg/day
per os or 200-400 mg once weekly
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suppression of sexual desire and
activity
 Most severe paraphilias
(catastrophic cases)
 No satisfactory results at level 5

or every 2 weeks i.m.) or,
medroxyprogesterone acetate (300500 mg/week i.m. if CPA not
available) in addition to GnRH
agonists (Level D)
 SSRIs may also be added (No level
of evidence)

Doc. 254-8 at 44; see also Doc. 254-9 at 5 (article published in 2016 recognizing
those six levels of treatment were developed prior to the publication of the
DSM-5 but finding they “remain useful because the algorithm is based on the
severity of impairment and risk of harm”).
Even viewing the evidence and making all reasonable inferences in favor
of Muhammad, at most, the evidence shows a difference of opinion between
medical professionals and Muhammad, which cannot support an Eighth
Amendment deliberate indifference claim. See, e.g., Keohane, 952 F.3d at
1274-75; Harris, 941 F.2d at 1505 (“Nor does 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 support a claim of cruel and unusual
punishment.”). Indeed, while some medical professionals and Muhammad
apparently believe Muhammad should be treated with Depo-Provera, other
medical professionals have not recommended such treatment. Compare Doc.
S-258 at 88-89 (April 30, 2019 order for Depo-Provera), with id. at 74-86 (report
authored by McCaw and Culbreath); see also Loungani Report at 9-10
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(recommending various treatment options, one of which includes antiandrogen therapy). Notably, Muhammad avers that Drs. Napoli, Cunningham,
Lim, and Cannon told Muhammad that his “paraphilia needs to be treated with
Depo-Provera” but Dr. Greenfield has denied their requests “because FD[O]C
prohibits the use of antiandrogens to treat paraphilia.” Doc. S-258 at 16 (citing
id. at 93-100). However, the medical records Muhammad cites do not support
that proposition. Napoli’s treatment notes do not show that she requested
Muhammad be treated with Depo-Provera, see id. at 93-98, and Dr. Lim’s note
indicates that Muhammad was “demand[ing]” treatment with Depo-Provera,
id. at 100.
The record reveals there is no consensus that Muhammad’s condition
requires anti-androgen therapy.17 There also is no consensus on the course of
treatment for Muhammad’s condition. Nevertheless, this is not a case where
no treatment is being given or the treatment is so cursory as to amount to no
treatment at all. The records reflect that the FDOC has been evaluating and
treating Muhammad’s condition over the course of several years, and it

On April 19, 2021, the Court denied Muhammad’s request for an order appointing an expert
witness psychiatrist who specializes in paraphilic disorders (such as Dr. Fred Berlin) or
alternatively, an order appointing counsel to assist Muhammad in obtaining an expert
opinion from Dr. Berlin. See Order (Doc. 239); see also Order (Doc. 248) (denying motion for
reconsideration). Even assuming Muhammad obtained an expert report opining that his
condition required anti-androgen therapy, the Court’s ruling on Defendants’ Motion would
not change. There would remain a difference of opinion among medical professionals about
whether Muhammad required such treatment.
17

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continues to do so. See Doc. S-258 at 93-100 (psychiatric follow-up notes dated
January 2020 through March 2021); see also id. at 70 (grievance response from
G. Espino, M.D. dated July 11, 2018: “We have discussed this extensively. We
have offered you group therapy, individual [t]herapy, and Psychotropic
medication to address your treatment needs. The anti-androgens you have
been requesting have been denied by our state Psychiatrist and state Mental
Health Director.” (emphasis added)). In sum, Muhammad is receiving care for
his paraphilia, and “[t]he long and short of it is that diagnosing, monitoring,
and managing conditions—even where a complete cure may be available—will
often meet the ‘minimally adequate medical care’ standard that the Eighth
Amendment imposes.” Hoffer v. Sec’y, Fla. Dep’t of Corr., 973 F.3d 1263, 1273
(11th Cir. 2020) (quoting Harris, 941 F.2d at 1504).
Moreover, Muhammad’s contention that HSB 15.05.03 “prohibits,
prevents and precludes medical and psychiatric providers from treating
paraphilic disorders with medically necessary antiandrogen treatment,”
Response at 5-6, reads language into the HSB that is not present. The HSB
provides guidelines, but it does not preclude a treating doctor from prescribing
an appropriate course of treatment based on an individual inmate’s needs. See
Doc. 254-16 at 2 (Reimers averring that “the course of treatment is ultimately
to be determined by the treating doctor, and [HSB 15.05.03] acts a[s] guidelines
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in determining that course”). Additionally, the alleged “blanket ban” is
distinguishable from the policy challenged in Keohane to which Muhammad
cites. See Response at 14. In Keohane, the plaintiff alleged that the challenged
policy “amounted to a per se rejection of any treatment that an inmate hadn’t
received prior to her incarceration, without regard to (or any exception for)
medical necessity.” Keohane, 952 F.3d at 1266. While the Eleventh Circuit did
not reach the merits of the issue (it instead found the issue to be moot), the
Court stated: “Were we free to reach the merits, we would almost certainly
agree [with the plaintiff]. . . . It seems to us that responding to an inmate’s
acknowledged medical need with what amounts to a shoulder-shrugging
refusal even to consider whether a particular course of treatment is
appropriate is the very definition of ‘deliberate indifference’—anti-medicine, if
you will.” Id. at 1266-67. Here, however, the evidence shows that the FDOC
evaluated and monitored Muhammad’s condition, considered his requests for
anti-androgen therapy, and provided him with various treatments. At one
point, FDOC medical personnel ordered Depo-Provera for Muhammad, but
that order was subsequently canceled. The reasoning for that cancelation is
unclear. One reason given was because Depo-Provera is used for DSM-5
diagnoses. However, this rationale appears contrary to Defendant Inch’s April
23, 2019 amended response to Muhammad’s second set of interrogatories, in
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which Dr. Knox, on behalf of Defendant Inch, stated that “[p]araphilia is a
psychologically and psychiatrically recognized Mental disorder defined within
the DSM-V and ICD-10 codes.” Doc. 254-14 at 2. Another reason may have been
that Depo-Provera is not FDA approved as a treatment for paraphilia. See Doc.
254-15 at 3, 4. Or, other FDOC medical professionals may have determined
that anti-androgen treatment was not medically necessary for Muhammad’s
paraphilia. Regardless, the bottom line is that there is no consensus on the
appropriate course of treatment for Muhammad’s paraphilia, the FDOC has at
least considered whether Depo-Provera is appropriate for him, and the FDOC
is monitoring and treating Muhammad’s condition. While the adequacy of
Muhammad’s care may be the “subject of genuine, good-faith disagreement
between healthcare professionals,” there is no evidence to suggest that
Defendants “acted in so reckless and conscience-shocking a manner as to have
violated the Constitution.” Hoffer, 973 F.3d at 1273.
Considering the record, the Court finds that Defendants are entitled to
entry of summary judgment in their favor. Accordingly, it is
ORDERED:
1.

Defendants’ Motion for Summary Judgment (Doc. 219) is

GRANTED.

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2.

The Clerk shall enter judgment in favor of Defendants and

against Plaintiff, terminate any pending motions, and close the file.
DONE AND ORDERED at Jacksonville, Florida, this 8th day of
September, 2021.

JAX-3 9/8
c:
Akeem Muhammad, #706732
Counsel of Record

29