Ferreira v. United States of America et al

Filing 27

ORDER granting 18 motion to dismiss; granting 19 Motion to Dismiss for Failure to State a Claim. The Clerk is directed to enter judgment for the Defendants and close this case. Signed by Judge Virginia M. Hernandez Covington on 1/23/2019. (CLF)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
OCALA DIVISION
AMAURYS DE JESUS FERREIRA,
Plaintiff,
v.

Case No. 5:18-cv-62-Oc-33PRL

UNITED STATES OF AMERICA,
DR. HECTOR LOPEZ, DR. IVAN NEGRON,
and EDGAR MORALES,
Defendants.
________________________________
ORDER
Plaintiff, an inmate at the Coleman Federal Correctional Complex, alleges in his pro se
complaint that Defendants failed to provide him with adequate medical care for injuries to his
right arm, in violation of the Eighth Amendment and the Federal Tort Claims Act (FTCA) (Doc.
1); see Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 388
(1971) (authorizing suits against individual federal officials); 28 U.S.C. §§ 1356(b) and 2671-80
(FTCA). The Defendants have moved to dismiss the complaint pursuant to Federal Rule of
Civil Procedure 12(b)(6) (Docs. 18, 19).

Plaintiff has responded to the motions to dismiss

(Doc. 22). Accepting as true the allegations in the Complaint and viewing them in the light
most favorable to Plaintiff, Defendant’s motions to dismiss should be and are hereby granted.
PLAINTIFF’S ALLEGATIONS
Plaintiff claims that prison officials were deliberately indifferent to his serious medical
needs in connection with the care he has received for a torn tricep, torn rotator cuff, and injured
elbow on his right arm. (Doc. 1.) The history of his medical care as described by Plaintiff, is
as follows:

July 15, 2015: Plaintiff arrived at FCC Coleman – Low and informed medical staff of
severe pain in his right arm due to a torn rotator cuff and a tear in his tricep. He was instructed
to go to sick call at a later time.
July 19, 2015: Plaintiff visited sick call and was given pain medication and a sling.
October 10, 2015: Plaintiff was transported to an outside facility for an MRI of his right
arm, which showed a torn tendon at the elbow and a ruptured tricep of 2.2 centimeters.
December 8, 2015:

Plaintiff obtained a letter dated November 10, 2015, from

Defendant Lopez, FCC Coleman Clinical Director, stating that Plaintiff was “approved for
procedure/consult and will be scheduled accordingly.” Id. at p. 11.
January 7, 2016: Plaintiff was transported to an outside facility and examined by Dr.
Carl Ollivierre, who recommended immediate surgery. He referred Plaintiff to an orthopedic
surgeon.
February 24, 2016: Plaintiff was examined by orthopedic surgeon Dr. Brian Banard,
who concluded that Plaintiff’s ruptured tricep was approximately 19 months old. Dr. Banard
recommended surgery the following week, which would need to be followed with immobilization
and then physical therapy. Dr. Banard opined that because of the length of time the muscle
had been torn, recovery could not be guaranteed. Upon returning to FCC Coleman, Plaintiff
saw the medical duty official become visibly upset about the scheduled surgery. Id. at p. 12.
June 17, 2016: Plaintiff received a letter from Defendant Dr. Hector Lopez, dated April
14, 2016, stating that the surgery had been disapproved by the Regional Office and that
conservative treatment would be continued. Plaintiff continued to received pain medication,
and Defendants Dr. Negron and MLP Morales would administer cortisone shots to Plaintiff’s
shoulder upon request.

On one occasion, Plaintiff’s elbow was swollen three times its normal

size, and he was given antibiotics for an elbow infection. Id. at p. 13.
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May 11, 2017: Plaintiff underwent another MRI of his right arm, indicating that the
rupture of his tricep had expanded from 2.2 centimeters to 3.8 centimeters.
September 22, 2017: Plaintiff was examined again by Dr. Carl Ollivierre.
November 22, 2017: Plaintiff reported to sick call complaining of extreme pain and
was transported to University of Florida Health, where he was evaluated by an orthopedic
surgeon. The surgeon told Plaintiff he would need another MRI “for below the elbow” prior to
surgery.
Plaintiff claims that Dr. Lopez, Dr. Negron, and MLP Morales were negligent and
deliberately indifferent to his serious medical needs. He seeks unspecified monetary damages
and a jury trial. (Doc. 1).
MOTION TO DISMISS STANDARD
The validity of a motion to dismiss is determined by examining the four corners of the
Complaint. Rickman v. Precisionaire, Inc., 902 F. Supp. 232, 233 (M.D. Fla. 1995). In
determining whether to grant a motion to dismiss, the Court considers the allegations in the
Complaint as true and construes the complaint in the light most favorable to the plaintiff.
Pielage v. McConnell, 516 F.3d 1282, 1284 (11th Cir. 2008).
A complaint is subject to dismissal for failure to state a claim if the facts pled do not
state a claim that is plausible on its face. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007).
To be considered plausible on its face, a complaint must contain facts that “allow the court to
draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009). The plausibility standard requires that a plaintiff allege
sufficient facts “to raise a reasonable expectation that discovery will reveal evidence” that
supports the plaintiff’s claim. Twombly, 550 U.S. at 556. In fact, a plaintiff must allege enough

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facts that are plausible on their face to be “nudged across the line” from conceivable to
plausible. Id. at 570.
Specifically, a plaintiff’s obligation to provide the grounds of his entitlement to relief
requires more than labels and conclusions. Additionally, a formulaic recitation of the elements
of a cause of action will not do. Id. at 555 (citations omitted). “Nor does a complaint suffice if it
tenders naked assertions devoid of further factual enhancement.” Iqbal, 556 U.S. at 678
(internal quotations and citations omitted).
Finally, the Court may dismiss a case when the allegations in the complaint on their face
demonstrate that an affirmative defense bars recovery of the claim. Cottone v. Jenne, 326 F.3d
1352, 1357 (11th Cir. 2003); see also Douglas v. Yates, 535 F.3d 1316, 1321 (11th Cir. 2008).
DISCUSSION
Eighth Amendment Deliberate Indifference
Plaintiff claims that Defendants Dr. Lopez, Dr. Negron, and MLP Morales were
deliberately indifferent to his serious medical needs, in violation of the Eighth Amendment.
Plaintiff alleges in his Complaint that he did receive medical care—shots, MRIs, outside
consultations, pain medication, and a sling—but that the conservative treatment and failure to
ensure his arm was timely surgically repaired amounted to a constitutional violation.
In Estelle v. Gamble, 429 U.S. 97 (1976), the Supreme Court held that deliberate
indifference to the serious medical needs of prisoners violates the Eighth Amendment
prohibition against cruel and unusual punishment. “To prevail on a deliberate indifference to
serious medical need claim, Plaintiffs must show: (1) a serious medical need; (2) the
defendants' deliberate indifference to that need; and (3) causation between that indifference
and the plaintiff's injury.” Mann v. Taser Int’l, Inc., 588 F.3d 1291, 1306–07 (11th Cir. 2009)
(citing Goebert v. Lee Cnty., 510 F.3d 1312, 1326 (11th Cir. 2007)).
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“To establish the second element, deliberate indifference to the serious medical need,
the prisoner must prove three facts: (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) (citing McElligott v. Foley, 182 F.3d 1248, 1255
(11th Cir. 1999)); see also Farmer v. Brennan, 511 U.S. 825, 837 (1994) (explaining that “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.”).
Generally, an inmate who receives a medical diagnosis and care, but desires a different
diagnosis or treatment, cannot show deliberate indifference. Hamm v. DeKalb Cnty., 774 F. 2d
1567, 1575 (11th Cir. 1985); Harris v. Thigpen, 941 F. 2d 1495, 1505 (11th Cir.1991) (“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.”; see also Adams v. Poag, 61 F.3d 1537, 1545 (11th Cir. 1995) (“[A]s Estelle
teaches, the question of whether governmental actors should have employed additional
diagnostic techniques or forms of treatment ‘is a classic example of a matter for medical
judgment’ and therefore not an appropriate basis for grounding liability under the Eighth
Amendment.”) (quoting Estelle, 429 U.S. at 107)).
Here, taking Plaintiff’s allegations as true and construing the Complaint in the light most
favorable to Plaintiff, he has failed to state a claim for a constitutional violation. Although
Plaintiff alleges that Defendants Lopez, Negron, and Morales were deliberately indifferent to his
serious medical needs, they did provide an involved course of treatment—cortisone injections,
pain medication, and a sling—along with multiple diagnostic studies and consultations with
outside physicians.

Even attributing a negligent delay in treatment to the individual

defendants, “[m]edical malpractice does not become a constitutional violation merely because
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the victim is a prisoner.”

Estelle, 429 U.S. at 106.

Plaintiff’s Bivens claims against the

individual defendants must be dismissed with prejudice because he has failed to state a claim
as a matter of law.
Federal Tort Claims Act
In his Complaint, Plaintiff cites both the Constitution and the Federal Tort Claims Act
(FTCA) as the bases for his claims; he alleges that defendants were both deliberately
indifferent and negligent. (Doc. 1, pp. 8, 15). In its motion to dismiss (Doc. 18), the United
States asserts that the FTCA claim should be dismissed because Plaintiff did not comply with
state law pre-suit requirements; he failed to submit a verified written medical expert opinion
supporting his claim. (Doc. 10); Fla. Stat. § 766.203(2). In his response to the motion to
dismiss, Plaintiff withdraws his tort claims. (Doc. 22, p. 6). Plaintiff states that his “complaint
sounds in Defendants’ violations of Plaintiff’s constitutional rights” and therefore the medical
malpractice statutes are “inapplicable.” Id.
“Eleventh Circuit law is not settled on” the issue of “whether Florida’s medical
malpractice presuit procedural requirements apply to medical malpractice claims under the
FTCA.” Bello v. United States, ___ Fed. Appx. ___, 2018 WL 6431535, at n. 1 (11th Cir. Dec.
6, 2018) (unpublished); see also Danhi v. Charlotte Cnty. Sheriff’s Dep’t, 2006 WL 2226323
(M.D. Fla. Aug. 3, 2006) (dismissing FTCA medical malpractice claim for failure to comply with
Florida’s presuit notice requirements); Novak v. United States, 2016 WL 3447365 (M.D. Fla.
June 23, 2016) (applying presuit notice requirements to FTCA claim); cf. Bridges v. United
States, 2017 WL 3730567 (M.D. Fla. May 17, 2017) (declining to apply Florida presuit notice
requirements to FTCA claim) and Braddock v. Orlando Reg’l Health Care Sys., 881 F. Supp.
580, 583-84 (M.D. Fla. 1995) (“where states have created specialized hurdles for filing

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particular causes of action, as Florida has with regard to medical malpractice suits, the Eleventh
Circuit has consistently favored the federal rules.”).
Here, because Plaintiff has withdrawn his FTCA claims, the Court need not decide
whether the presuit requirements are applicable.
Conclusion
Plaintiff’s Complaint fails to state a claim for deliberate indifference to his serious
medical needs. The motions to dismiss (Docs. 18, 19) by the individual Defendants—Lopez,
Negron, and Morales—are granted, and the Bivens claims are dismissed with prejudice.
Plaintiff has withdrawn his negligence claim.

The United States’ motion to dismiss

(Doc. 18) is granted, and Plaintiff’s FTCA claim is dismissed without prejudice.
Accordingly, the Court orders:
That Defendants’ motions to dismiss (Docs. 18, 19) are granted. The Clerk is directed
to enter judgment for the Defendants and close this case.
ORDERED at Ocala, Florida, on January 23, 2019.

Counsel of Record
Amaurys De Jesus Ferreira

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