Young v. The United States of America et al
Filing
52
OPINION AND ORDER granting in part and denying in part 43 motion to dismiss. Plaintiff's FTCA medical negligence claims are dismissed for failure to exhaust, and plaintiff's FTCA claim for punitive damages is dismissed. Defendants shall file an answer within 21 days of this Opinion and Order. Signed by Senior Judge John E. Steele on 6/8/2015. (RKR)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
OCALA DIVISION
JAMES R. YOUNG,
Plaintiff,
v.
Case No: 5:13-cv-609-Oc-29PRL
THE
UNITED
STATES
OF
AMERICA, MS. STORY, Medical
Specialist, R. CARVER, M.D.,
and J. CACHO, MLP,
Defendants.
OPINION AND ORDER
This matter comes before the Court on the following:
The Motion to Dismiss filed by Defendants
United States of America, Michelle Story,
Robert Carver, and Jamie Cacho (collectively,
“Defendants”)(Doc. 43, filed October 24,
2014); and
Plaintiff's Response to the Motion to Dismiss
(Doc. 51, filed November 20, 2014).
For the reasons set forth in this Order, Defendants’ motion
to dismiss is granted in part and denied in part.
Defendants
shall have twenty days in which to file an answer to Plaintiff's
second amended complaint.
I.
Background and Procedural History
Plaintiff, a federal prisoner at the Coleman Medium Federal
Correctional
Institution
in
Coleman,
Florida,
initiated
this
action by filing a complaint against the United States of America,
the United States Department of Justice, the Federal Bureau of
Prisons, Medical Specialist Michelle Story, Psychologist Smith,
Doctor Robert Carver, MLP Jamie Cacho, Lieutenant Ramos, and
Officer Trimble (Doc. 1, filed December 11, 2013).
Plaintiff
raised claims pursuant to Bivens v. Six Unknown Fed. Narcotics
Agents, 403 U.S. 388 (1971) and the Federal Tort Claims Act
(“FTCA”), 28 U.S.C. § 2675, et seq.
On December 19, 2013, this Court conducted a detailed initial
screening of the complaint pursuant to 28 U.S.C. § 1915A (Doc. 6).
The Court concluded that Plaintiff had not stated a viable Bivens
claim against any of the named defendants. Id. at 7-13.
However,
Plaintiff was given leave to file an amended complaint raising
Bivens claims against medical defendants Story, Cacho, and Carver
due to their alleged failure to treat Plaintiff's head trauma and
to provide adequate pain medication. Id. at 17.
The Court also
concluded that an issue of fact remained as to whether personnel
at the prison had violated a mandatory BOP regulation, guideline,
or policy when they placed Plaintiff and another inmate in the
same cell. Id. at 16.
Accordingly, Plaintiff's FTCA claims were
allowed to proceed. Id.
Plaintiff filed an amended and a second amended complaint
(Doc. 10; Doc. 19).
On October 24, 2014, Defendants filed a motion
to dismiss the second amended complaint (Doc. 43).
Defendants
assert
dismissed
because
that
Plaintiff's
Defendants
Story,
- 2 -
Bivens
Carver,
In the motion,
claims
and
should
Cacho
be
have
qualified immunity, and because the claims are based solely upon
conclusory statements (Doc. 43 at 5-10).
Defendants urge that all
of Plaintiff’s FTCA claims are barred due to his failure to pursue
his administrative remedies and because he does not allege facts
sufficient to support the claims. Id. at 11-14.
In response, Plaintiff urges that he has exhausted all of his
FTCA claims and that the defendants “have only presented a bare
bones position in their filed motion to dismiss in this case.”
(Doc. 51 at 5).
II.
Complaint
In his second amended complaint, Plaintiff alleges that on
August 16, 2012, he was accidentally kicked by fellow inmate Wade
Walters (“Walters”), resulting in a painful lump on Plaintiff's
forehead (Doc. 19 at 9).
The physical contact with Walters was
not the result of an altercation; rather Walters was sleeping, and
Plaintiff was kicked when he checked on Walters because it sounded
as if he was choking. Id.
Earlier in the evening, Walters had
needed to be restrained by prison staff. Id.
Plaintiff
asserts
that
Walters
was
prone
to
“violent,
incoherent fits during his sleep” and, five days before Plaintiff
was
kicked,
the
psychology
department
had
increased
Walters’
medication dosage to aid with the fits (Doc. 19 at 9). Plaintiff
spoke with prison staff members Trimble and Ramos prior to the
incident, but all of his requests to have Walters moved to a
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separate cell were denied. Id.
Plaintiff told Staff Psychologist
Smith that Walters needed to be moved and she told Plaintiff that
Walters’ medication dosage was being increased to assist with his
“personal fits and hearing voices,” but that he would not be moved,
and she refused to make a request on Plaintiff’s behalf. Id.
On October 16, 2012, two months after he was kicked, Plaintiff
was examined by Defendant Medical Specialist Story (Doc. 19 at 9).
Plaintiff told Defendant Story that the lump on his head was sore
to the touch and that it caused him headaches.
Id. at 10.
Plaintiff requested that he see a specialist and have a CT scan
done to check for internal damage.
Id.
Even though Defendant
Story told Plaintiff that he would be seen again, he was not seen
by the medical department until he was released from SHU and
submitted a sick call request. Id.
Defendant Story did not
prescribe pain medication to Plaintiff. Id.
On September 19, 2012, Plaintiff was examined by Defendant
Cacho who authorized that Plaintiff receive pain medication but
did not suggest that anything further be done to actually treat
his contusion or to see if Plaintiff had suffered an internal brain
injury (Doc. 19 at 10). 1
The pain medication was ultimately
discontinued after a year. Id.
1
Plaintiff claims that he was examined by Defendant Cacho on
September 9, 2012 (Doc. 19 at 10). This would have been prior to
Defendant Story’s October 16, 2012 examination.
Plaintiff does
not explain why Defendant Story should have prescribed him
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Following Plaintiff’s release from SHU, he was examined by
Defendant Carver on several occasions and was told that he would
be seen by a specialist (Doc. 19 at 11). Plaintiff did see a
specialist to address other injuries he received when he slipped
and fell in the shower, but the therapist did not address or treat
Plaintiff's head lump. Id.
Defendant Carver also prescribed pain
medication for Plaintiff which was ultimately discontinued.
Because of the kick by Walters and the denial of treatment
for the resulting lump, Plaintiff alleges that he has “constant,
severe headaches with the contusion still on his forehead.” (Doc.
19 at 12).
Plaintiff seeks compensatory and punitive damages. Id.
at 13.
III. Legal Standards
A.
Standard of Review for Motions to Dismiss
On a motion to dismiss, this Court accepts as true all the
allegations in the complaint and construes them in the light most
favorable to the plaintiff. Jackson v. BellSouth Telecomms., 372
F.3d 1250, 1262-63 (11th Cir. 2004).
Further, this Court favors
the plaintiff with all reasonable inferences from the allegations
in the complaint. Stephens v. Dep't of Health & Human Servs., 901
F.2d 1571, 1573 (11th Cir. 1990) ("On a motion to dismiss, the
facts stated in [the] complaint and all reasonable inferences
additional pain medication given that Defendant Cacho had already
done so.
- 5 -
therefrom
are
taken
as
true.").
However,
the
Supreme
Court
explains that:
While a complaint attacked by a Rule 12(b)(6)
motion to dismiss does not need detailed
factual allegations, 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.
Factual allegations must be enough to raise a
right to relief above the speculative level.
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal
citations and quotation marks omitted).
Further, courts are not
"bound to accept as true a legal conclusion couched as a factual
allegation." Papasan v. Allain, 478 U.S. 265, 286 (1986).
In Ashcroft v. Iqbal, 556 U.S. 662 (2009), the Supreme Court,
referring
to
its
earlier
decision
in
Bell
Atlantic
Corp.
v.
Twombly, illustrated a two-pronged approach to motions to dismiss.
First, a reviewing court must determine whether a Plaintiff's
allegation is merely an unsupported legal conclusion that is not
entitled to an assumption of truth.
Next, the court must determine
whether the complaint's factual allegations state a claim for
relief that is plausible on its face. Iqbal, 556 U.S. at 679.
In the case of a pro se action, the Court should construe the
complaint
more
liberally
than
it
would
pleadings
lawyers. Hughes v. Rowe, 449 U.S. 5, 9 (1980).
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drafted
by
B.
Negligence Claims under the Federal Tort Claims Act
“It is well settled that sovereign immunity bars suit against
the United States except to the extent that it consents to be
sued.” Means v. United States, 176 F.3d 1376, 1378 (11th Cir.
1999). The FTCA provides a “limited waiver” of this sovereign
immunity, “making the United States liable for ‘injury or loss of
property, or personal injury or death caused by the negligent or
wrongful act or omission of any employee of the Government while
acting
within
the
scope
of
his
office
of
employment.’”
JBP
Acquisitions, L.P. v. United States ex rel. FDIC, 224 F.3d 1260,
1263 (11th Cir. 2000) (quoting 28 U.S.C. § 1346(b)(1)). FTCA
liability attaches “under circumstances where the United States,
if a private person, would be liable to the claimant in accordance
with the law of the place where the act or omission occurred.” 28
U.S.C. § 1346(b)(1).
The United States is the only permissible defendant in an
FTCA action. See 28 U.S.C. § 2679(b)(1) (the FTCA remedy against
the United States “is exclusive of any other civil action or
proceeding for money damages by reason of the same subject matter
against the employee whose act or omission gave rise to the
claim”); United States v. Smith, 499 U.S. 160, 166–67 & n. 9 (1991)
(noting that § 2679(b)(2) provides two exceptions to the exclusive
remedy provision, allowing injured plaintiffs to obtain “remedy
for torts committed by government employees in the scope of their
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employment”
under
Bivens
or
“under
a
federal
statute
that
authorizes recovery against a government employee”). Therefore, a
plaintiff may proceed against the United States, as the sole
permissible
defendant
under
the
FTCA,
and
against
a
federal
employee, under Bivens, and he may do so in the same civil action.
See Denson v. United States, 574 F.3d 1318, 1336 (11th Cir. 2009)
(noting that, “[a]s co-extensive causes of action, Bivens and FTCA
claims necessarily arise from the same wrongful acts or omissions
of a government official[,]” and analyzing viability of both sets
of claims) (quoting Carlson v. Green, 446 U.S. 14, 20 (1980), for
proposition that “plaintiffs, ‘[i]n the absence of a contrary
expression from Congress, . . . shall have an action under FTCA
against the United States as well as a Bivens action against the
individual
officials
alleged
to
have
infringed
their
constitutional rights'”)).
C.
Civil Rights Violations
To state a claim for relief under Bivens v. Six Unknown Fed.
Narcotics Agents, a plaintiff must allege that a federal agent, by
act or omission under color of federal authority, deprived him of
a right, privilege, or immunity secured by the Constitution of the
United States. See Powell v. Lennon, 914 F.2d 1459, 1463 (11th
Cir. 1990). If a plaintiff fails to satisfy these requirements or
to provide factual allegations supporting a viable cause of action,
the claim is subject to dismissal. See Chappell v. Rich, 340 F.3d
- 8 -
1279,
1283–84
dismissal
of
(11th
§
Cir.
1983
2003)
complaint
(affirming
because
district
court's
plaintiffs'
factual
allegations were insufficient to support alleged constitutional
violation); see also Bolin v. Story, 225 F.3d 1234, 1242 (11th
Cir. 2000)
(noting
that
“as
a
general
matter
federal
courts
incorporate § 1983 law into Bivens actions”).
IV.
Analysis
A.
The Court will not construe Defendants’
dismiss as a motion for summary judgment
motion
to
Defendants have attached to their motion to dismiss exhibits
supporting their assertion that Plaintiff did not properly exhaust
his FTCA medical claims (Doc. 43-1).
Ordinarily, in a pro se
civil rights action such as this, if the defendants file a Rule
12(b)(6) motion to dismiss with supporting exhibits containing
matters outside the pleadings, and the exhibits are not excluded
from consideration, the motion to dismiss is converted into a
motion for summary judgment. See Fed. R. Civ. P. 56 and 12(d).
Plaintiff urges that because Defendants have filed documents in
support of their motion to dismiss, it must now be construed as a
motion for summary judgment (Doc. 51 at 1).
Therefore, Plaintiff
has attached numerous documents of his own to his response. Id. at
9-31.
The Eleventh Circuit recognizes that a defense of failure to
properly exhaust available administrative remedies under the PLRA
should be treated as a matter in abatement, Bryant v. Rich, 530
- 9 -
F.3d 1368, 1374 (11th Cir. 2008), meaning that procedurally the
defense is treated “like a defense for lack of jurisdiction,”
although it is not a jurisdictional matter. Id. at 1374. 2
“[I]t
is proper for a judge to consider facts outside of the pleadings
and to resolve factual disputes so long as the factual disputes do
not decide the merits and the parties have sufficient opportunity
to develop a record.” Id. at 1376 (footnotes omitted).
Here, the facts relating to whether Plaintiff exhausted his
administrative remedies do not bear on the merits of his other
claims.
Also, Plaintiff has had sufficient opportunity to develop
(and did develop) a record on this issue.
Accordingly, this Court
will consider the pleadings submitted by both sides relating to
the issue of exhaustion.
However, because the Court declines to
convert the instant motion to dismiss into a motion for summary
judgment, it will not consider any attached documents that do not
relate to the issue of exhaustion.
B.
Plaintiff's FTCA claims based upon medical negligence
are dismissed as unexhausted
Title 42 U.S.C. § 1997e(a) provides that
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
2
Unlike the exhaustion requirement of the PLRA, exhaustion
under the FTCA is a jurisdictional requirement. See Chapman v.
U.S. Postal Serv., 442 F. App’x 480, 485 (11th Cir. 2011) (“[T]he
failure to adequately allege exhaustion in the complaint is grounds
for dismissal for lack of subject matter jurisdiction.”).
- 10 -
correctional
facility
until
such
administrative remedies as are available are
exhausted.
Id.
Administrative exhaustion under the FTCA requires an inmate
to submit written notification of the incident to the federal
agency responsible for the activities giving rise to the claim.
Specifically, 28 U.S.C. § 2675(a) provides that a claimant may not
bring an FTCA action against the United States “unless the claimant
shall have first presented the claim to the appropriate Federal
agency[.]” 28 U.S.C. § 2675(a).
To sufficiently meet § 2675(a)'s
requirement of giving notice to the appropriate federal agency, a
claimant must: (1) give the appropriate agency written notice of
his or her claim sufficient to enable the agency to investigate;
and (2) place a value on his or her claim. Burchfield v. United
States, 168 F.3d 1252, 1255 (11th Cir. 1999).
If the plaintiff
has not satisfied those requirements, the district court lacks
jurisdiction over the FTCA claim. Id. at 1254–55.
Here, the United States concedes that Plaintiff has filed
numerous administrative tort claims, but argues that “he has failed
to file any claims relating to the medical care he received in
connection with his forehead injury at issue here.” (Doc. 43 at
12).
Defendants state that the only administrative tort claim
relevant to this lawsuit is Number TRT-SER-2012-06264 (“Number
6264”) in which Plaintiff claims that he was kicked in the forehead
by his cellmate due to staff negligence. Id.
- 11 -
In that claim,
Plaintiff
does
not
implicate
received (Doc. 43-1 at 22).
the
quality
of
medical
care
he
On January 28, 2013, Number 6264 was
denied on the basis that there was no “evidence to indicate that
[Plaintiff had] sustained a compensable injury or loss caused by
the negligent or wrongful act or omission of any Bureau of Prisons
employee acting within the scope of his or her employment.” (Doc.
43-1 at 23).
Plaintiff asserts that Number 6264 exhausted his medical
claims because on April 5, 2013, he sought rehearing of its
rejection (Doc. 51).
In his request for rehearing, Plaintiff
argued that he had sought, and received, medical care showing that
he had a “1/2 inch round contusion to the left forehead”. Id.
He
noted in his request that he had an appointment to consult with
Defendant Carver. Id.
Upon review of the request for rehearing,
it is clear that Plaintiff did not implicate the quality of the
medical care he received from any defendant – rather, he argued
that
the
small
bruise
on
his
forehead
should
qualify
as
a
compensable injury and sought reconsideration of the denial of
Number 6264. Id.
Taking Plaintiff's version of the facts as true, he failed to
utilize the BOP’s grievance procedure to notify them of his FTCA
tort
claims
Accordingly,
relating
to
Plaintiff's
the
FTCA
denial
of
medical
- 12 -
proper
medical
negligence
care.
claims
are
dismissed
without
prejudice
for
failure
to
exhaust
his
administrative remedies. 28 U.S.C. § 2675(a); 42 U.S.C. § 1997e(a).
C.
Plaintiff has exhausted his other FTCA negligence claim
Plaintiff seeks compensatory and punitive damages based upon
the government’s negligence in placing him in a cell with Walters
(Doc. 19).
On September 12, 2012, Plaintiff filed administrative
tort claim Number 6264 alleging that he was kicked in the head by
his cellmate due to staff negligence (Doc. 43-1 at 20).
The claim
was denied on January 28, 2013. Id. at 23. Accordingly, this
negligence claim was properly exhausted and will not be dismissed.
See discussion, Doc. 6 at 13-16.
However, Plaintiff may not receive punitive damages on an
FTCA claim.
28 U.S.C. § 2674 (In an FTCA action, “The United
States . . . shall not be liable for interest prior to judgment or
for punitive damages.”).
Accordingly, Plaintiff's request for
punitive damages based on his FTCA claim is dismissed.
D.
Plaintiff has stated Bivens claims against Defendants
Story, Carver, and Cacho
Prison officials violate the Eighth Amendment when they act
with deliberate indifference to a plaintiff’s health or safety.
Estelle v. Gamble, 429 U.S. 97, 97 (1976).
To state a claim of
deliberate indifference, a plaintiff must allege: (1) a serious
medical need; (2) deliberate indifference to that need by the
defendants; and (3) causation between the defendants' indifference
- 13 -
and the plaintiff's injury. Youmans v. Gagnon, 626 F.3d 557, 563
(11th Cir. 2010).
1.
Plaintiff has alleged sufficient facts to support
a conclusion that he suffers from a serious medical
need
The seriousness of a medical need is an objective inquiry.
Kelley v. Hicks, 400 F.3d 1282, 1284 (11th Cir. 2005).
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 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)
(internal citations and quotation marks omitted).
Plaintiff does not elaborate on the nature of his serious
medical need other than to assert that he initially suffered from
a 1/2 inch bruise and now has a painful lump on his forehead that
will not go away.
Generally, other courts addressing bruises and
lacerations
concluded
have
that
they
do
not
constitute
an
objectively serious medical need. See Brock v. Sparkman, 101 F.
App’x 430, 431 (5th Cir. 2004) (prisoner who had bumps and bruises
from hitting his head on the top bunk did not show cognizable
injury); Trejo v. Gomez, No. C-92-4484 EFL, 1996 WL 506910 (N.D.
Cal. Aug. 16, 1996) (bruises and contusions not a serious medical
- 14 -
need); Benitez v. Locastro, No. 9:04–CV–423, 2010 WL 419999, at *7
(N.D.N.Y. Jan. 29, 2010) (bruises and a laceration not serious
medical conditions); Willacy v. County of Brevard, No. 04–cv–1666–
Orl–18DAB, 2007 WL 1017657, at *9 (M.D. Fla. Mar. 30, 2007) (inmate
who alleged that he suffered numerous lacerations, contusions,
bruising and burning sensation in his eyes after being attacked by
another inmate, failed to assert a serious medical need).
However, each of these cases was decided at the summary
judgment stage, and the district court was presented with medical
evidence regarding the plaintiff’s condition.
While a small
contusion or lump is clearly not always a serious medical need,
Plaintiff
was
treated
for
the
condition
and
was
initially
prescribed pain medication. At this stage of the litigation,
Plaintiff need only allege factual allegations that allow the Court
to draw a reasonable inference that he suffered from a serious
medical need. See Iqbal, 556 U.S. at 679.
Based on this, the
Court concludes that Plaintiff has alleged sufficient plausible
facts to infer that he suffers from an objectively serious medical
need. See, e.g., Bismark v. Lang, Case No. 2:02-cv-556-FtM-29SPC,
2006 WL 1119189, at *15 (M.D. Fla. Apr. 26, 2006) (recognizing
that while the plaintiff’s foot conditions of hammer toes and high
arches were not the type of ailments that always constituted a
serious medical condition, the plaintiff had sufficiently alleged
a
serious
medical
condition
in
- 15 -
his
particular
situation).
Moreover, Plaintiff asserts that his pain medication has been
discontinued without explanation. Pain due to the withholding of
medication can also constitute a serious medical need. See West v.
Millen, 79 F. App’x 190, 193 (7th Cir. 2003); discussion infra
Part IV(D)(2).
2.
Plaintiff has alleged sufficient facts to state a
claim for deliberate indifference
The next step requires a consideration of the subjective
component: whether the defendants were deliberately indifferent to
Plaintiff's serious medical need.
The Supreme Court has cautioned
that not every allegation of inadequate medical treatment states
a constitutional violation. Estelle v. Gamble, 429 U.S. 97, 105,
106 (1976). “[I]n the medical context, an inadvertent failure to
provide adequate medical care cannot be said to constitute ‘an
unnecessary and wanton infliction of pain’ or to be ‘repugnant to
the conscience of mankind.’” Id. at 106–07.
Only acts or omissions
sufficiently harmful to evidence deliberate indifference to a
serious medical need can offend “evolving standards of decency” in
violation of the Eighth Amendment. Id.
In order to prove that a
defendant acted with deliberate indifference, a plaintiff must
show: “(1) subjective knowledge of a risk of serious harm; (2)
disregard of that risk; and (3) by conduct that is more than mere
negligence.” Brown v. Johnson, 387 F.3d 1344, 1351 (11th Cir.
2004).
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A prisoner is not entitled to the treatment of his choice.
That Plaintiff would have preferred a “CT scan” or an x-ray over
the physical exams he actually received from the medical staff at
Coleman certainly does not state a deliberate indifference claim.
See Hamm v. DeKalb County, 774 F.2d 1567, 1575 (11th Cir. 1985)
(“Although Hamm may have desired different modes of treatment, the
care
the
jail
provided
did
not
amount
to
deliberate
indifference.”); Jackson v. Fair, 846 F.2d 811, 817 (1st Cir. 1988)
(“Although
the
Constitution
does
require
that
prisoners
be
provided with a certain minimum level of medical treatment, it
does not guarantee to a prisoner the treatment of his choice.”).
Moreover,
Plaintiff
has
not
alleged
that
he
actually
has
an
internal brain injury or that the lump on his forehead was caused
by or made worse by Defendants’ failure to provide him with a CT
scan or an x-ray.
However, Plaintiff asserts that he still suffers pain from
his
forehead
lump
and
that
his
pain
medication
discontinued by Defendants without explanation.
withholding
of
pain
medication
can
rise
to
has
been
The deliberate
the
level
of
a
deliberate indifference claim. See, e.g., Murphy v. Walker, 51
F.3d 714, 719 (7th Cir. 1995) (prisoner suffering severe pain after
head injury who was told by guard to “stop being a baby” and learn
to live with the pain was entitled to go forward with a deliberate
indifference claim against that guard); McElligott v. Foley, 182
- 17 -
F.3d 1248, 1257 (11th Cir. 1999)(“ A core principle of Eighth
Amendment jurisprudence in the area of medical care is that prison
officials with knowledge of the need for care may not, by failing
to provide care, delaying care, or providing grossly inadequate
care, cause a prisoner to needlessly suffer the pain resulting
from his or her illness.”).
Because clearly established law provides that a defendant’s
failure to treat a prisoner’s pain violates the constitution,
Defendants are not entitled to qualified immunity on Plaintiff's
deliberate indifference claim at this stage of the proceedings.
V.
Conclusion
It is hereby ORDERED and ADJUDGED:
1.
Defendants’ motion to dismiss Plaintiff's Second Amended
Complaint (Doc. 43) is GRANTED IN PART and DENIED IN PART.
2.
Plaintiff's FTCA medical negligence claims are DISMISSED
because Plaintiff did not exhaust his administrative remedies.
3.
Plaintiff's
FTCA
claim
for
punitive
damages
is
DISMISSED.
4.
Defendants shall file an answer within TWENTY-ONE (21)
DAYS from the date on this Order.
DONE and ORDERED in Fort Myers, Florida on this
8th
of June, 2015.
__________
JOHN E. STEELE
SENIOR UNITED STATES DISTRICT JUDGE
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day
SA: OrlP-4
Copies: James R. Young
Counsel of Record
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