Davis v. Lockett et al
Filing
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ORDER granting in part and denying in part 20 Motion to Dismiss. See Order for details. Signed by Judge Paul G. Byron on 2/24/2020. (CLF)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
OCALA DIVISION
KENNETH LOUIS DAVIS, JR.,
Plaintiff,
v.
Case No. 5:18-cv-226-Oc-40PRL
CHARLES LOCKETT, DR. GARY VENUTO,
FNU MEZYK, FNU HENDERSON, and
JOHN/JANE DOES,
Defendants.
________________________________
ORDER
Plaintiff, an inmate at the Coleman Federal Correctional Complex, alleges in his
pro se complaint 1 that Defendants violated his constitutional rights in their care for his
seizure disorder, resulting in a Dilantin overdose that has had lasting effects. (Doc. 1.)
The Defendants have moved to dismiss Plaintiff’s case pursuant to Rule 12(b)(6) of the
Federal Rules of Civil Procedure, alleging that he has failed to exhaust his administrative
remedies under the Prison Litigation Reform Act (PLRA), has failed to state a claim, and
that Defendants Mezyk and Henderson are entitled to absolute immunity as officers of
the U.S. Public Health Service. (Doc. 20.) Defendant has filed a response in opposition.
(Doc. 25.)
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The complaint is filed pursuant to Bivens v. Six Unknown Named Agents of the Fed.
Bureau of Narcotics, 403 U.S. 388 (1971) (authorizing suits against individual federal officials). However,
as discussed later in this Order, Plaintiff also appeared to assert a Federal Tort Claims Act (FTCA) in his
Complaint, but the form only contemplated constitutional actions.
For the reasons discussed below, Defendants’ Motion to Dismiss is due to be
granted in part and denied part, with Plaintiff given leave to amend to file a complaint
pursuant to the FTCA.
A. Plaintiff’s Complaint
The allegations of Plaintiff’s Complaint, 2 taken as true for the purposes of the Motion
to Dismiss, are as follows: On February 19, 2016, while at FCC Coleman, Plaintiff had his
blood drawn by medical staff. (Doc. 1, p. 7.) On February 20, he reported back to the
medical department and his Dilantin level was 64.2, which is three times the therapeutic
level and life-threatening. Id. at 7, 9. On February 22, Plaintiff passed out at the dining
hall and was transported to a local hospital. Id. at 9. Tests showed serious Dilantin
toxicity. Id. Plaintiff was treated and released back to FCC Coleman. Id.
Plaintiff describes a number of injuries, although it is unclear which is attributable
to head trauma he received at Tucson U.S.P. or the subsequent Dilantin overdose at FCC
Coleman. Id. at 10. These injuries include: weight loss; insomnia; tremors; trouble
concentrating; memory problems; vision impairment; hair loss; headaches; brain damage;
and inability to maintain a conversation. Id. Plaintiff complains that he is still not
receiving adequate treatment for his condition. Id. at 11. For relief, Plaintiff seeks transfer
to Petersburg F.C.I.; treatment with a neurologist and psychologist; monetary damages;
and lost wages. Id. at 11-12.
Plaintiff’s complaint contains several claims arising at Tucson U.S.P. Those claims were dismissed
without prejudice on November 27, 2018, as misjoined. Accordingly, the factual summary only describes
the claims arising at FCC Coleman.
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B. Standard of Review
In passing on a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil
Procedure, the Court is mindful that “[d]ismissal of a claim on the basis of bare bones
pleadings is a precarious disposition with a high mortality rate.” Int’l Erectors, Inc. v.
Wilhoit Steel Erectors Rental Serv., 400 F.2d 465, 471 (5th Cir. 1968). Thus, for the purposes
of a motion to dismiss, the Court must view the allegations of the complaint in the light
most favorable to the plaintiff, consider all of the allegations of the complaint as true, and
accept all reasonable inferences that might be drawn from such allegations. Jackson v.
Okaloosa County, Fla., 21 F.3d 1531, 1534 (11th Cir. 1994); Scheuer v. Rhodes, 416 U.S. 232,
236 (1974). Furthermore, the Court must limit its consideration to the complaint and
written instruments attached as exhibits. Fed. R. Civ. P. 10(c); GSW, Inc. v. Long County,
Ga., 999 F.2d 1508, 1510 (11th Cir. 1993).
Once a claim has been stated adequately, it may be supported by showing any set
of facts with the allegations of the complaint. Bell Atlantic Corp. v. Twombly, 550 U.S. 544
(2007). However, “while notice pleading may not require that the pleader allege a
‘specific fact’ to cover each element of a claim, it is still necessary that a complaint contain
either direct or inferential allegations respecting all the material elements necessary to
sustain a recovery under some viable legal theory.” Roe v. Aware Woman Center for Choice,
253 F.3d 678, 683 (11th Cir. 2001).
C. Exhaustion Requirement of the PLRA
The PLRA, at 42 U.S.C. § 1997e, reads:
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(a) Applicability of Administrative Remedies. 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
correctional facility until such administrative remedies as are available
are exhausted.
Plaintiff is required to exhaust his administrative remedies before filing suit,
regardless of the relief offered through administrative procedures. Alexander v. Hawk, 159
F.3d 1321, 1325 (11th Cir. 1998).
The Bureau of Prisons has a three-level administrative remedy process if informal
resolution procedures fail to achieve the inmate’s desired results. See 28 C.F.R. § 542.10,
et seq. The administrative remedy process is begun by filing a Request for Administrative
Remedy at the institution where the inmate is incarcerated. If the inmate's complaint is
denied, he may file a Regional Appeal with the Regional Office for the geographic region
in which the inmate is confined. If the Regional Office denies relief, the inmate can
appeal to the Office of General Counsel. Proper exhaustion requires the completion of
all three steps of review. Irwin v. Hawk, 40 F.3d 347, 349, n. 2 (11th Cir. 1994) ( “An inmate
has not fully exhausted his administrative remedies until he has appealed through all
three levels.”); Jones v. Bock, 549 U.S. 199, 211 (2002) (unexhausted claims are not
permitted).
D. Discussion
1. Exhaustion
Defendants contend that Plaintiff did not properly exhaust his claim because
“[t]here is no record he followed the instructions and filed at the institutional level.”
(Doc. 20, p. 6.) In support of their claim, Defendants have provided neither a declaration
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of a records custodian nor any actual copies of the administrative remedies filed by
Plaintiff.
They have instead provided two computer-generated summaries of the
remedies filed by Plaintiff. Id. at Exhs. 1-2.
However, in his response in opposition, Plaintiff has provided several documents
demonstrating that he did file a grievance at the institutional level and that his remedies
were potentially mishandled by the BOP. (Doc. 25.) First, Plaintiff has attached an
Informal Resolution Form that appears to be signed by BOP officials and given to his
counselor on March 7, 2017. Id. at 9. The form also notes that a BP-9 was issued to Plaintiff
on March 18, 2017 and returned to the counselor on March 20, 2017. Id. Plaintiff also
includes letters dated May 11 and May 25, 2017, from Correctional Counselor M. Ureña
to the Regional Office. Both letters stated that Plaintiff’s BP-9 was submitted in March
2017, with a reply still pending. Citing BOP policy, Counselor Ureña explained that due
to the delay in response the Regional Office could proceed with the administrative
remedy process. Id.; See also BOP Program Statement 1330.17 (if an inmate does not
receive a response within 20 calendar days, “the inmate may consider the absence of a
response to be a denial at that level.”)
Based on the record before the Court, 3 Defendants are not entitled to the
affirmative defense of failure to exhaust administrative remedies, and in that respect their
Motion to Dismiss is denied.
“Jurisdictional challenges . . . can be decided without reference to the merits of the underlying claim and
lie within the exclusive province of the trial court. Consequently, when a defendant challenges subject
matter jurisdiction the district court is free to independently weigh facts” and look beyond the four corners
of the complaint. Morrison v. Amway Corp., 323 F.3d 920, 924-35 (11th Cir. 2003) (nothing that in resolving
a factual attack on subject matter jurisdiction, the district court may consider extrinsic evidence, such as
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2. Deliberative Indifference to Medical Needs
Defendants argue that Plaintiff has failed to state constitutional claim. 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, [a plaintiff] 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 Intern., Inc., 588 F.3d 1291, 1306–07 (11th Cir. 2009). To
establish the second element, deliberate indifference to the serious medical need, the
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); see also Farmer v. Brennan, 511 U.S. 825, 837 (1994)
(explaining that the plaintiff must show that the defendant was “both [ ] aware of facts
from which the inference could be drawn that a substantial risk of serious harm exist[ed],
and he must also [have] draw[n] the inference”).
Here, taking Plaintiff’s allegations as true, he has alleged that he had a serious
medical need (Dilantin toxicity); that the Defendants knew of this by virtue of his
February 19, 2019, blood tests; that Defendants ignored the toxic levels; and as a result,
Plaintiff passed out two days later and required emergency hospitalization. Based on
these facts, Plaintiff has stated a claim for deliberate indifference to his medical needs.
testimony and affidavits). Accordingly, the Court may consider the evidence presented by the parties in
deciding whether subject matter jurisdiction exists in this case.
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3. Supervisory Liability
To the extent Plaintiff alleges that Warden Lockett is liable for his alleged lack of
medical care he is a supervisor, his claim fails. “It is well established in this circuit that
supervisory officials are not liable under Bivens for the unconstitutional acts of their
subordinates on the basis of respondeat superior or vicarious liability.” Gonzalez v. Reno,
325 F.3d 1228, 1234 (11th Cir.2003) (quotation and alteration omitted); Corbett v. Transp.
Sec. Admin., 568 F. App'x 690, 697 (11th Cir.2014). The standard for which a supervisor is
held liable is “extremely rigorous”—supervisors can be held liable when “‘the supervisor
personally participates in the alleged constitutional violation or when there is a causal
connection between actions of the supervising official and the alleged constitutional
violation.’“ Gonzalez, 325 F.3d at 1234 (quoting Braddy v. Fla. Dep't of Labor & Employment
Sec., 133 F.3d 797, 802 (11th Cir.1998)); Corbett, 568 F. App'x at 697.
Plaintiff has failed to allege facts that would state a claim against Warden Lockett
for supervisory liability. He has alleged neither personal participation in the alleged
violation nor a causal connection.
4. Absolute Immunity
Defendants Mezyk and Henderson argue that Plaintiff’s Bivens claim against them
individually are due to be dismissed because they are immune by virtue of their position
as Public Health Service (PHS) officers. See 42 U.S.C. § 233(a); Hui v. Castaneda, 559 U.S.
799, 802 (2010) (holding that “based on the plain language of § 233(a), we conclude that
PHS officers and employees are not personally subject to Bivens actions for harms arising
out of such conduct.”).
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In support of their claims of absolute immunity, Defendants Mezyk and
Henderson have attached sworn declarations stating that they are officers in the United
States Public Health Service. (Doc. 20, Exhs. 4, 5.) However, “[c]onsideration of matters
beyond the complaint is improper in the context of a motion to dismiss . . .” Milburn v.
United States, 734 F. 2d 762, 765 (11th Cir. 1984). Accordingly, dismissal under Rule
12(b)(6) as to Defendants’ assertions of absolute immunity is not appropriate, as it
requires to look beyond the Complaint and to the sworn declaration attached to the
motion to dismiss.
5. Federal Tort Claims Act (FTCA)
Although Plaintiff does not specifically reference the Federal Tort Claims Act in
his Complaint and he did not name the United States as a defendant, the Court notes that
under the “Basis for Jurisdiction” section, he is only given the option of constitutional
claims. (Doc. 1, p. 5.) Under “Statement of Claim,” Plaintiff wrote “Medical Neglect
Negligence.” Id. at 6. Furthermore, in his response to the Motion to Dismiss, Plaintiff
attaches a copy of his Administrative Tort Claim, indicating that does intend to pursue a
tort claim against the United States. Id. at Exh. I. Accordingly, Plaintiff will be given the
opportunity to amend his Complaint.
E. Conclusion
Upon due consideration, it is ORDERED:
1.
Defendants’ Motion to Dismiss (Doc. 20) is GRANTED IN PART and DENIED
IN PART. Plaintiff’s claims against Warden Lockett are DISMISSED. The
Clerk is directed to terminate him as a Defendant. In all other respects, the
motion is DENIED.
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2.
The Clerk is directed to send Plaintiff a blank complaint form for federal
prisoners.
3. Plaintiff shall submit his Amended Complaint within TWENTY-ONE (21)
DAYS of the date of this Order. Plaintiff is advised that the United States is the
proper defendant in an FTCA action. The Amended Complaint will supersede
the original Complaint – Plaintiff shall not reference the original Complaint
and shall include all claims and defendants in the Amended Complaint.
Plaintiff shall not include any claims related to Tucson U.S.P. or Warden
Lockett, as they have already been dismissed. Failure to comply may result in
the dismissal of this case without further notice.
4. Within FOURTEEN (14) DAYS of the filing of the Amended Complaint,
Defendants Venuto, Mezyk, and Henderson shall file an Answer; the United
States shall file a responsive pleading within that same time period.
DONE AND ORDERED in Orlando, Florida, on February 24, 2020.
Copies furnished to:
Counsel of Record
Unrepresented Parties
SA: OCAP-2
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