Abbott v. Corizon, LLC et al

Filing 32

ORDER denying without prejudice 22 Corizon's Motion to Dismiss subject to its right to reassert an exhaustion defense; directing Corizon to answer the complaint or reassert an exhaustion defense within twenty days. Signed by Judge Brian J. Davis on 9/10/2020. (KLC)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
ROBERT ABBOTT,
Plaintiff,
v.

Case No. 3:19-cv-642-J-39MCR

CORIZON, LLC,
Defendant.
________________________________
ORDER
I. Status
Plaintiff, Robert Abbott, an inmate of the Florida Department
of Corrections (FDOC), is proceeding on an amended complaint for
violation of civil rights (Doc. 8; Compl.) against Corizon, LLC,
for the alleged deliberate indifference to his serious medical
needs. Corizon seeks dismissal of the action (Doc. 22; Motion) for
Plaintiff’s failure to state a claim and failure to exhaust his
administrative remedies. See Motion at 1, 11. Plaintiff responded
to the motion (Doc. 26; Resp.), and Corizon, with the Court’s
permission, filed a reply (Doc. 29; Reply).
II. Motion to Dismiss Standard
“To survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to ‘state a claim to
relief that is plausible on its face.’” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009); see also Lotierzo v. Woman’s World Med. Ctr.,
Inc., 278 F.3d 1180, 1182 (11th Cir. 2002). “A claim has facial

plausibility when the plaintiff pleads 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. A
plaintiff

should

allege

enough

facts

“to

raise

a

reasonable

expectation that discovery will reveal evidence” supporting the
plaintiff’s claims. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556
(2007).
Though detailed factual allegations are not required, Federal
Rule of Civil Procedure 8(a) demands “more than an unadorned, thedefendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at
678. As such, a plaintiff may not rely on “[t]hreadbare recitals
of the elements of a cause of action, supported by mere conclusory
statements.” Gill, 2019 WL 5304078, at *2 (quoting Iqbal, 556 U.S.
at 678). Rather, the well-pled allegations must nudge the claim
“across the line from conceivable to plausible.” Twombly, 550 U.S.
at 570. In assessing the sufficiency of a complaint, all reasonable
inferences should be drawn in favor of the plaintiff. See Iqbal,
556 U.S. at 678.
III. Complaint Allegations
Plaintiff alleges he broke his wrist when he fell on September
22, 2015, at Union Correctional Institution (UCI). See Compl. at
4-5. The UCI doctor, Perez, wanted to transport Plaintiff to the
emergency room, but the Regional Medical Director of Corizon issued
an “alternate treatment plan,” which consisted of “an ace bandage
and sling” and referral to an orthopedic surgeon. Id. at 5.
2

Plaintiff alleges Dr. Perez told him Corizon does not consider
broken

bones

an

emergency

and

will

not,

therefore,

approve

emergency transport. Id.
Plaintiff alleges an orthopedic surgeon recommended surgery,
which Corizon unnecessarily delayed for six months. Id. at 9, 11.
Plaintiff alleges his wrist is now deformed, causing chronic aching
and decreased function of his hand. Id. at 7. He says his injury
was further exacerbated by his advanced age.1 Id. at 9. Plaintiff
asserts Corizon’s “state-wide cost-containment policies” caused
the delay in providing the treatment he needed, and the medication
he received was “inadequate” to address his pain while he awaited
surgery. Id. at 6.2 Plaintiff seeks compensatory and punitive
damages. Id. at 8, 11.
IV. Analysis & Conclusions
A. Exhaustion
First,

Corizon

asserts

Plaintiff

did

not

exhaust

his

administrative remedies. See Motion at 14; Reply at 1. Plaintiff
contests this assertion. See Resp. at 17-18.

Plaintiff’s date of birth is January 1, 1944. See FDOC
website,
Offender
Search,
available
at
http://www.dc.state.fl.us/OffenderSearch/Search.aspx
(last
visited September 9, 2020).
1

Plaintiff also alleges his knee and hip fractures went
untreated, see Compl. at 7-8, though it is unclear whether those
injuries are related to the fall that is the subject of this
complaint.
2

3

The PLRA provides, “[n]o action shall be brought with respect
to prison conditions . . . until such administrative remedies as
are available are exhausted.” 42 U.S.C. § 1997e(a). Exhaustion of
available

administrative

remedies

is

“a

precondition

to

an

adjudication on the merits.” Bryant v. Rich, 530 F.3d 1368, 1374
(11th Cir. 2008). See also Jones v. Bock, 549 U.S. 199, 211 (2007).
While “the PLRA exhaustion requirement is not jurisdictional[,]”
Woodford v. Ngo, 548 U.S. 81, 101 (2006), “exhaustion is mandatory
. . . and unexhausted claims cannot be brought,” Pavao v. Sims,
679 F. App’x 819, 823 (11th Cir. 2017) (per curiam) (citing Jones,
549 U.S. at 211). Nevertheless, prisoners are not required to
“specially plead or demonstrate exhaustion in their complaints.”
See Jones, 549 U.S. at 216.
Not only is there a recognized exhaustion requirement, “the
PLRA . . . requires proper exhaustion” as set forth in applicable
administrative rules and policies. Woodford, 548 U.S. at 93. As
such, “[p]roper exhaustion demands compliance with an agency’s
deadlines and other critical procedural rules[.]” Id. Generally,
to properly exhaust administrative remedies, a Florida prisoner
must complete a three-step process, as fully set forth in the
Florida Administrative Code (FAC), by first filing an informal
grievance to the institution, then a formal grievance to the
institution, and then an appeal to the Office of the Secretary of
the FDOC. See Fla. Admin. Code r. 33-103.005 through 33-103.007.

4

See also Dimanche v. Brown, 783 F.3d 1204, 1211 (11th Cir. 2015).
However, an inmate may bypass the informal-grievance-step and
proceed directly to the formal-grievance-step when grieving a
medical issue. See Fla. Admin. Code r. 33-103.005(1).
When confronted with an exhaustion defense, courts in the
Eleventh Circuit employ a two-step process:
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)

Burnside,

(internal

541

F.3d

citations

1077,

omitted)

1082-83

(11th

(citing

Cir.

Turner

2008)).

v.

Because

failure-to-exhaust is an affirmative defense, the defendant bears
the burden. Turner, 541 F.3d at 1082.
In its motion, Corizon asserts, “According to the record,
[Plaintiff] never filed a grievance regarding his care during the
time

Corizon

could

meaningfully

address

his

complaints.”

See

Motion at 14. Corizon provides no records to substantiate its
assertion, however. Rather, in its reply, Corizon argues the
records Plaintiff provides with his response “make clear that [he]
did not exhaust the grievance procedure.” See Reply at 1.
5

Plaintiff contends in his response to Corizon’s motion that
he filed three grievances—one at each step of the process: an
informal grievance to Dr. Perez; a formal grievance to the Warden’s
office; and an appeal to the Secretary’s office. See Resp. at 17.
Under the first step of the Turner analysis, the Court must
accept as true that Plaintiff filed a grievance at each step of
the process, as he asserts. See Turner, 541 F.3d at 1082-83. If
Plaintiff timely and properly filed an informal grievance, a formal
grievance, and an appeal to the Secretary’s office, complaining
about the lack of treatment he received for injuries he sustained
when he fell, then he exhausted his administrative remedies. In
other

words,

Plaintiff’s

allegations

do

not

demonstrate

his

failure to exhaust. See id. Thus, Corizon is not entitled to
dismissal at the first step.
At the second step of the Turner analysis, the Court “make[s]
factual findings on the disputed issues of fact.” Id. See also
Bryant, 530 F.3d at 1376 (holding district courts must act as
factfinders

when

ruling

on

matters

in

abatement,

such

as

exhaustion). Plaintiff and Corizon dispute only whether Plaintiff
submitted grievances related to the September 22, 2015 incident.
Corizon asserts, “[Plaintiff] filed no grievances during the time
Corizon provided medical services, but only filed grievances in
2011 and 2019.” See Motion at 2. On the other hand, Plaintiff
maintains he did.
6

The Court need not make a credibility determination because
Plaintiff offers copies of the grievances he submitted (Docs. 261, 26-2; Pl. Ex. A, B). On September 29, 2015, Plaintiff submitted
an informal grievance to the Warden’s office. See Pl. Ex. A at 2.
Plaintiff

complained

the

pain

medication

he

received

was

inadequate, and he asked the Warden to direct staff to “give [him]
proper treatment.”3 Id. The request was denied on October 7, 2015.
Id. On October 16, 2015, Plaintiff submitted an appeal to the
Office of the Secretary,

asking that he be provided

“proper

treatment and adequate pain medication.” See Pl. Ex. B at 2.
Plaintiff contends the Secretary’s office did not respond. See
Resp. at 18.
By submitting an informal grievance to the Warden’s office,4
Plaintiff properly initiated the grievance process. Plaintiff does
not demonstrate he then filed a formal grievance to the Warden’s

Plaintiff does not explicitly mention an orthopedist or
surgery, but it is clear he is seeking treatment for the injuries
he sustained when he fell on September 22, 2015, at UCI. Thus, he
put the institution on notice of the nature of his complaint.
3

Plaintiff alleges in his complaint and his response that he
submitted a formal grievance to the Warden’s office. See Compl. at
13-14; Resp. at 17. Plaintiff’s use of the term “formal” is a
mistake. In his complaint, Plaintiff acknowledges he completed
form DC6-236 to initiate the grievance process, and the exhibit he
provides verifies he submitted a grievance on form DC6-236. Form
DC6-236 is one an inmate must use to submit an informal grievance,
not a formal grievance. See Ex. A at 2. See also Fla. Admin. Code
r. 33-103.005(2) (“When submitting an informal grievance, the
inmate shall use Form DC6-236, Inmate Request.”).
4

7

office

before

he

submitted

an

appeal

to

the

Office

of

the

Secretary. However, he does not have the burden to show he properly
exhausted his claims—Corizon does. Corizon provides no evidence,
such as grievance logs or a declaration from a UCI representative,
showing

Plaintiff

administrative

failed

remedies.

to

properly

And

its

and

timely

contention

that

exhaust

his

Plaintiff’s

evidence “make[s] clear” that Plaintiff failed to exhaust his
administrative remedies is inaccurate. See Reply at 1.
While Plaintiff does not provide evidence showing he filed a
formal grievance to the Warden’s office, he does provide a copy of
the appeal he allegedly submitted to the Office of the Secretary.
See Pl. Ex. B at 2. Even if he impermissibly bypassed the formalgrievance step, Plaintiff alleges the Office of the Secretary did
not respond to his appeal. See Compl. at 14; Resp. at 18. If that
is true, any procedural deficiencies the Secretary’s office could
have

raised

may

have

been

waived

because

the

FAC

provides,

“expiration of a time limit at any step in the process shall
entitle

the

complainant

to

proceed

to

the

next

step

of

the

grievance process.” See Fla. Admin. Code r. 33-103.011(4). After
filing an appeal with the Secretary’s office, an inmate’s only
recourse for further review is “to proceed with judicial remedies.”
Id.
Upon review, the Court finds Corizon does not carry its burden
to

demonstrate

Plaintiff

failed
8

to

properly

exhaust

his

administrative remedies. The Court will deny Corizon’s motion
without prejudice subject to its right to reassert this defense
later, with appropriate documentation.
B. Deliberate Indifference
Second,

Corizon

contends

Plaintiff

fails

to

state

a

deliberate indifference claim. See Motion at 1. Corizon does not
explicitly say why Plaintiff fails to state a claim, nor does
Corizon

directly

reference

Corizon

includes

no

Plaintiff’s

analysis

in

allegations.

support

of

its

In

fact,

conclusory

assertion; rather, Corizon sets forth pages of law (some of which
is inapplicable here)5 and then implicitly suggests Plaintiff fails
to meet the minimal pleading standard:
[Plaintiff] has two methods to plead Corizon’s
unconstitutional policy: (1) an officially
promulgated unconstitutional policy, or (2) a
widespread unconstitutional and unofficial
custom or practice created by a policymaker
for Corizon. [Plaintiff] must also allege the
policy was created with knowledge that his
injuries were a highly probable consequence of
the policy’s creation.
Id. at 11.
Plaintiff does precisely what Corizon maintains he must: he
alleges Corizon’s “state-wide cost-containment policies” caused

Corizon primarily relies upon summary-judgment case law.
See Motion at 7-9 (discussing McDowell v. Brown, 392 F.3d 1283
(11th Cir. 2004)). At this juncture, Plaintiff does not have to
prove Corizon’s policy or custom was the moving force behind his
injury; he merely must allege a policy or custom caused the injury
of which he complains. This, he does.
5

9

the delay in providing the treatment he needed. See Compl. at 6.
Plaintiff elaborates, “The inordinate delay and inadequate pain
medication was [driven] by non-medical reasons. The drive for
profitability placed the bottom line ahead of [his] health and
wellbeing.”

Id.

He

also

alleges

Corizon

refused

to

approve

emergency transport for him and unnecessarily delayed his surgery
for six months, allegedly because of cost. Id. at 5, 9.
Accepting

Plaintiff’s

allegations

as

true,

he

states

a

plausible Eighth Amendment claim against Corizon. See Ancata v.
Prison Health Servs., Inc., 769 F.2d 700, 705-06 (11th Cir. 1985)
(holding the plaintiff stated a deliberate indifference claim
against

the

municipality

because

he

alleged

the

municipality

“established or utilized a policy or custom requiring that inmates
needing medical assistance obtain court orders,” which resulted in
a delay in necessary treatment).
District courts regularly find prisoners state plausible
deliberate indifference claims when they allege medical providers
base treatment decisions solely on cost-saving concerns. See,
e.g., Carmichael v. Jones, No. 4:16CV238-RH/CAS, 2017 WL 2637410,
at *9 (N.D. Fla. Apr. 12, 2017), report and recommendation adopted,
No. 4:16CV238-RH/CAS, 2017 WL 2636492 (N.D. Fla. June 17, 2017)
(finding the plaintiff stated a deliberate indifference claim
against Corizon where he alleged in part that treatment decisions
were driven by cost); Horn v. Jones, No. 14-20341-CIV, 2015 WL
10

3607012, at *6 (S.D. Fla. May 8, 2015), report and recommendation
adopted sub nom. Horn v. Crews, No. 14-CIV-20341, 2015 WL 3607252
(S.D. Fla. June 8, 2015) (same); Jenkins v. Manatee Cty. Sheriff,
No. 8:13-CV-2796-T-30, 2014 WL 105133, at *5 (M.D. Fla. Jan. 10,
2014) (same).
Plaintiff identifies a policy he alleges resulted in an
unnecessary delay in medical treatment. Thus, he states a plausible
claim for relief against Corizon.
Accordingly, it is now
ORDERED:
1.

Corizon’s Motion to Dismiss (Doc. 22) is DENIED without

prejudice subject to its right to reassert an exhaustion defense.
2.

Within twenty days of the date of this Order, Corizon

must either answer Plaintiff’s Amended Complaint (Doc. 8) or
demonstrate with documentation that Plaintiff did not exhaust his
administrative remedies.
DONE AND ORDERED at Jacksonville, Florida, this 10th day of
September 2020.

Jax-6
c:
Robert Abbott
Counsel of Record
11