Palmer v. Corizon Medical Co. et al
Filing
27
ORDER granting in part and denying in part 20 --motion to dismiss; dismissing Wyatt; directing Gomez to answer by 11/24/2014; directing the parties to complete discovery by 1/26/2015; summary judgment motions due forty-five days after the close of discovery. Signed by Judge Steven D. Merryday on 10/30/2014. (BK)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
JAMES PALMER,
Plaintiff,
v.
CASE NO. 8:14-cv-385-T-23TBM
CORIZON MEDICAL COMPANY,
et al.,
Defendants.
/
ORDER
Palmer’s civil rights complaint alleges that the defendants violated his civil
rights by denying him adequate medical care while he was confined in the Polk
County jail. Upon his arrival at the Polk County jail from a Florida Department of
Corrections’ institution, Palmer advised the medical personnel that he required a
specific medication for his chronic ear infection. Palmer alleges (1) that the
defendants refused to prescribe the specific medication and instead administered
ineffective medication and (2) that the lack of effective medication caused him to
endure the pain of his chronic ear infection for several months before he was
examined by a medical specialist. The defendants move to dismiss under Rule 12,
Federal Rules of Civil Procedure, and argue (1) that Palmer failed to exhaust his
administrative remedies before commencing this action and (2) that Palmer’s
complaint fails to state a claim of deliberate indifference to a serious medical need.
Exhaustion
A prisoner must exhaust the available administrative remedies before filing a
Section 1983 action. “No action shall be brought with respect to prison conditions
. . . by a prisoner confined in any jail, prison, or other correctional facility until such
administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). A
prisoner must “properly exhaust” the administrative remedies. “Proper exhaustion
demands compliance with an agency’s deadlines and other critical procedural rules
because no adjudicative system can function effectively without imposing some
orderly structure on the course of its proceedings.” Woodford v. Ngo, 548 U.S. 81,
90-91 (2006). The failure to “properly exhaust” the administrative remedies will bar
a prisoner from pursuing a claim in federal court. “[S]aying that a party may not sue
in federal court until the party first pursues all available avenues of administrative review
necessarily means that, if the party never pursues all available avenues of
administrative review, the person will never be able to sue in federal court.” Ngo, 548
U.S. at 100 (italics original). See Leal v. Georgia Dep’t of Corr., 254 F.2d 1276, 1279
(11th Cir. 2001) (“This means that ‘until such administrative remedies as are
available are exhausted,’ a prisoner is precluded from filing suit in federal court.”)
(citation omitted); Johnson v. Meadows, 418 F.3d 1152, 1159 (11th Cir. 2005) (“[W]e
hold that the PLRA’s exhaustion requirement does contain a procedural default
component: Prisoners must timely meet the deadlines or the good cause standard of
Georgia’s administrative grievance procedures before filing a federal claim.
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Therefore, [the] grievance, which [was] filed out-of-time and without good cause, is
not sufficient to exhaust [the] administrative remedies for purposes of the PLRA
exhaustion requirement.”), cert. denied, 548 U.S. 925 (2006).
In the motion to dismiss, the defendants argue that Palmer failed to fully
exhaust his administrative remedies before beginning this action. The defendants
have the burden of proving that Palmer did not fully exhaust his administrative
remedies. See Jones v. Bock, 549 U.S. 199, 216 (2007) (holding that lack of exhaustion
is an affirmative defense); Dixon v. United States, 548 U.S. 1, 8 (2006) (recognizing
that the burdens of both production and persuasion are on the same party). Although
exhibits show that Palmer filed at least one grievance about the denial of medical
care, the defendants contend that Palmer failed to pursue the appeal process for the
grievance. Apparently, the Polk County jail has separate appeal processes for
medical issues and detention issues. Attached to the motion to dismiss is a copy of
the appeal process for the medical provider at the Polk County jail. Palmer responds
(Doc. 26 at 3) that neither he nor his fellow detainees knew an appeal process existed
for medical issues. Further, Palmer provides a copy of the Polk County Sheriff’s
Office Inmate Handbook, which, as he correctly represents, reveals an appeal process
for neither medical nor detention issues. (Doc. 26, Exhibit A) The defendants do not
disclose how an inmate would know about the existence of an appeal within the
medical provider’s system. Palmer’s situation is remarkably similar to the pretrial
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detainee in Goebert v. Lee County, 510 F. 3d 1312, 1322-23 (11th Cir. 2007), which
likewise involved the lack of disclosure of an appeal process regarding medical care.
Goebert did not know that she should, or could, appeal Captain
Weaver’s denial of her complaint. There is some uncertainty
about whether she ever received the Inmate Handbook, but
even assuming that she did, there is nothing in it about any
procedure for appealing the denial of a complaint or any
request. The parties agree on that. The parties also agree that
the appeal procedure is laid out in the jail’s General Operating
Procedures, but that no inmate was ever permitted to see those
procedures, at least not until Goebert filed this lawsuit and her
attorney ferreted out a copy of them through discovery. What
the parties disagree about is how the PLRA’s availability
requirement applies in this circumstance.
....
It is difficult to define “such remedies as are available” to an
inmate in a way that includes remedies or requirements for
remedies that an inmate does not know about, and cannot
discover through reasonable effort by the time they are needed.
Nevertheless, some of the defendants try. They argue that any
remedy that is in place is “available” to the inmate even if the
inmate does not know, and cannot find out, about it. That
argument could have been inspired by the Queen of Hearts’
Croquet game, since there is nothing on this side of the rabbit
hole to support it. Having kept Goebert in the dark about the
path she was required to follow, the defendants should not
benefit from her inability to find her way.
....
The reason there is no precedent to support the defendants’
argument is that it makes no sense. That which is unknown and
unknowable is unavailable; it is not “capable of use for the
accomplishment of a purpose.” Booth [v. Churner], 532 U.S.
[731] 738 [(2001)]. If we allowed jails and prisons to play hideand-seek with administrative remedies, they could keep all
remedies under wraps until after a lawsuit is filed and then
uncover them and proclaim that the remedies were available all
along. The Queen would be proud.
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The defendants fail to meet their burden of proving that Palmer failed to
exhaust a remedy, specifically an appeal, that was “available.” As a consequence,
the motion to dismiss based on Palmer’s alleged failure to exhaust the “available”
administrative remedies lacks merit.
Motion to dismiss
The defendants move (Doc. 20) to dismiss the complaint, which they argue
fails to state a claim. A pro se complaint receives a generous interpretation. See, e.g.,
Haines v. Kerner, 404 U.S. 519 (1972) (per curiam), and Kirby v. Siegleman, 195 F.3d
1285, 1289 (11th Cir. 1999). On a motion to dismiss under Rule 12(b)(6), Federal
Rules of Civil Procedure, the allegations in the complaint are viewed in the light
most favorable to the plaintiff. Omar ex rel. Cannon v. Lindsey, 334 F.3d 1246, 1247
(11th Cir. 2003), Hill v. White, 321 F.3d 1334, 1335 (11th Cir. 2003). The factual
allegations and all reasonable inferences (1) are accepted as true, Erickson v. Pardus,
551 U.S. 89, 94 (2007), and (2) must “state a claim to relief that is plausible on its
face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). “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.” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009). Instead of contesting Palmer’s factual allegations,
the defendants argue that the asserted facts fail to state a claim upon which relief can
be granted.
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Defendant Corizon Medical Company
Palmer names Corizon Medical Company (“Corizon”) as a defendant but he
fails to a allege fact showing Corizon’s personal involvement in the denial of his
medical care. The complaint must allege facts showing the involvement of each
defendant in the alleged deprivation of Palmer’s civil rights. The only alleged
involvement by Corizon is as the employer of both Dr. Gomez and Nurse Wyatt. A
claim against an employer based on an act by an employee asserts a claim under the
principle of respondeat superior. Although permitted in a civil tort action, the principle
of respondent superior is inapplicable for a Section 1983 claim. Monell v. N.Y.C. Dep’t of
Social Services, 436 U.S. 691, 694 (1978); Grech v. Clayton County, Ga., 335 F.3d 1326,
1329 (11th Cir. 2003) (en banc). Consequently, the complaint alleges no claim against
Corizon Medical Company.
Defendant Dr. Gomez and Nurse Wyatt, P.A.
According to the factual allegations in the complaint (Doc. 1 at 8 - 11), in
October, 2013, Palmer was transferred from the Florida Department of Corrections
to the Polk County jail for a post-conviction proceeding. Because of his history of
chronic ear infections Palmer submitted a “sick call request” upon his arrival at the
county jail. The next day Palmer was examined by Physician’s Assistant Nurse
Wyatt (“P.A. Wyatt”). Palmer explained his relevant medical history and the
specific treatment that prison medical personnel had found was effective, specifically
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“Ocedic Acid” ear drops three to four times each day and mastoid cleaning
performed by an “ENT doctor” every three months. P.A. Wyatt “prescribed some
antibotics, steroid and pain reliever” that Palmer advised “was not going to work
because the doctors at Madison C.I. have already tried this and it did not work.”
Palmer suggested that P.A. Wyatt contact the medical department at the prison to
verify the specific treatment that was effective. Palmer alleges that P.A. Wyatt
ignored the suggestion and scheduled Palmer “for a follow-up to see if the infections
[had] cleared up” by using the medications that P.A. Wyatt prescribed. Because the
initial prescription proved ineffective, at the second visit P.A. Wyatt changed the
prescription to “sinus medication and mucus relief, contrary to Plaintiff’s warnings
that the doctors at Madison C.I. already tried these similar treatments, but it would
not work. After two more follow-ups Mr. Wyatt finally had Plaintiff sign waivers so
that Mr. Wyatt could obtain Plaintiff’s medical records from Madison C.I., and
referred Plaintiff, after a month and a half, to see an ENT.” Palmer further alleges
that “[a]fter two months of submitting inmate sick-call request forms Plaintiff was
finally referred again to see Mr. Wyatt[, who] was astonished after Plaintiff informed
him that he had not yet seen the ENT. Mr. Wyatt immediately called [Dr.] Gomez
to inquire why Plaintiff had not seen the ENT after having ear infections for over two
months, and [Dr.] Gomez says that she was ‘holding Plaintiff’s referral to the ENT
until she receive[d] and reviewed Plaintiff’s medical records from Madison C.I.’”
Several subsequent inquiries by both Palmer and his family members received the
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same answer that Dr. Gomez was awaiting the medical records before authorizing a
visit by a specialist.
Palmer commenced this action in February, 2014, and after three months he
moved (Doc. 8) for a temporary restraining order to require an examination by a
specialist. Palmer withdrew (Doc. 15) his motion after a specialist examined him less
than a week after his motion for expedited relief.
A state has the constitutional obligation to provide adequate medical care to
those in confinement. Adams v. Poag, 61 F.3d 1537 (11th Cir. 1995); Mandel v. Doe,
888 F.2d 783 (11th Cir. 1989). The standard for a prisoner claim of medical
mistreatment is well-established. A prisoner must allege and show that an official
acted with deliberate indifference to a serious medical need. A difference of opinion
over medical judgment, in either diagnosis or treatment, supports no constitutional
claim. Waldrop v. Evans, 871 F.2d 1030, 1033 (11th Cir. 1989); Ramos v. Lamm, 639
F.2d 559, 575 (10th Cir.1980), cert. denied, 450 U.S. 1041 (1981); Tedesco v. Johnson,
119 F. Supp.2d 1320, 1327 (M.D. Fla. 2000).
Depending on the circumstances, including the length of the delay, deferred
treatment can constitute deliberate indifference. Harris v. Coweta County, 21 F.3d 388,
394 (11th Cir. 1994). Therefore, Palmer must allege sufficient facts to establish that
the defendants knew of a serious medical condition from which he was suffering and
delayed treatment either intentionally or with reckless disregard. See generally, Rogers
v. Evans, 792 F.2d 1052, 1058 (11th Cir. 1986) (“Medical treatment that is so grossly
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incompetent, inadequate, or excessive as to shock the conscience or to be intolerable
to fundamental fairness violates the eighth amendment.”). Further, “[t]he tolerable
length of delay in providing medical attention depends on the nature of the medical
need and the reason for the delay.” Harris v. Coweta County, 21 F.3d at 393-94.
Consequently, the law evaluates medical treatment by considering whether the
medical need is serious, whether the delay worsens the medical condition, and
whether the delay was reasonable in the circumstance. Hill v. DeKalb Regional Youth
Detention Center, 40 F.3d 1176, 1188-40 (11th Cir. 1994).
The Eleventh Circuit describes a serious medical need as “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.” Farrow v.
West, 320 F.3d 1235, 1243 (11th Cir. 2003) (quoting Hill v. Dekalb Reg’l Youth Det. Ctr.,
40 F.3d 1176, 1187 (11th Cir. 1994) (internal quotation marks and citation omitted).
In either instance, the medical need must be “one that, if left unattended, poses a
substantial risk of serious harm.” Farrow v. West, 320 F.3d at 1243. See Farmer v.
Brennan, 511 U.S. 825, 834, (1994).
Farrow lists examples of both “serious” and “non-serious” medical needs.
Compare Adams v. Poag, 61 F.3d 1537, 1539-41, 1543 (11th Cir. 1995) (finding that
asthma, with continual breathing problems and with intermittent wheezing,
coughing, and hyperventilating, can constitute a serious medical need), Brown v.
Hughes, 894 F.2d 1533, 1538 (11th Cir. 1990) (holding that ?a deliberate delay on the
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order of hours in providing care for a serious and painful broken foot is sufficient to
state a constitutional claim.”), Mandel v. Doe, 888 F.2d 783, 788 (11th Cir. 1989)
(holding that evidence showing that the plaintiff’s leg collapsed under him, was
deteriorating and painful, and precluded him from walking, supported jury’s
conclusion that plaintiff had serious medical need), and Aldridge v. Montgomery, 753
F.2d 970, 972-73 (11th Cir. 1985) (finding that a long cut over the detainee’s eye,
which both required six stitches and had bled for two and a half hours while in
detention, was a serious medical need), with Shabazz v. Barnauskas, 790 F.2d 1536,
1538 (11th Cir. 1986) (holding that requiring an inmate – who has “pseudofolliculitis
barbae” or “shaving bumps” – to shave, in contravention of a physician’s order,
“does not rise to the level of the cruel and unusual punishment forbidden by the
Eighth Amendment”) and Dickson v. Colman, 569 F.2d 1310, 1311 (5th Cir. 1978)
(rejecting an inmate’s claim of a serious medical need based on his high blood
pressure and pain from an old shoulder injury, which a doctor determined the inmate
had a full range of motion). See also Brown v. Johnson, 387 F.3d 1344 (11th Cir. 2004)
(holding that a prisoner’s HIV and hepatitis are serious medical needs).
Palmer alleges that he endured the pain of a chronic ear infection without
effective medication and without an examination by a specialist for approximately
seven months. Because P.A. Wyatt promptly and repeatedly treated Palmer’s
condition by prescribing several medications, Palmer fails to state a claim against
P.A. Wyatt even though the complaint is afforded a generous interpretation and the
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facts are viewed in the light most favorable to Palmer. However, because a court is
limited to the facts in the complaint when considering a motion under Rule 12(b)(6),
the complaint states against Dr. Gomez a claim sufficient to survive a motion to
dismiss. As a consequence, whether a specialist should examine Palmer and whether
the delay in any necessary examination by a specialist is reasonable are fact issues
that depend upon evidence beyond the complaint and that must await resolution on
summary judgment or at trial.
Accordingly, the motion to dismiss (Doc. 20) is DENIED to the extent that it
seeks a dismissal based on a failure to exhaust administrative remedies. The motion
is GRANTED regarding Physician’s Assistant Nurse Wyatt, who is dismissed from
this action. The motion is DENIED regarding Dr. Gomez. On or before
MONDAY, NOVEMBER 24, 2014, Dr. Gomez must answer the complaint. Each
party has until MONDAY, JANUARY 26, 2015, to complete discovery and
FORTY-FIVE (45) DAYS after the close of discovery to move for summary
judgment.
ORDERED in Tampa, Florida, on October 30, 2014.
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