SHERMAN v. BURLESON et al

Filing 23

ORDER. The chief magistrate judge's Report and Recommendation (ECF No. 20 ) is adopted in part and rejected in part as follows: REJECTED as to Defendant Pulley and ADOPTED and incorporated by reference in this Order in al l other respects. Plaintiff's Eighth Amendment claims against Defendant Assistant Warden Ralph and Defendant Rice are DISMISSED with prejudice, pursuant to 28 U.S.C. section 1915(e)(2)(B), for failure to state a claim upon which relief may be granted; Plaintiff's demands for declaratory and injunctive relief are DISMISSED as moot; This case is remanded to the assigned magistrate judge for further proceedings on Plaintiff's Eighth Amendment claims against the remaining Defendants (Defendants Pulley, Burleson, Holland, Castro, Bottoms, Pybus, Scott, Hernandez- Perez, and Centurion of Florida, LLC). Signed by JUDGE M CASEY RODGERS on 05/10/2022. (alb)

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF FLORIDA
PENSACOLA DIVISION
STEVEN DOUGLAS SHERMAN,
Plaintiff,
v.

Case No. 3:21cv537/MCR/EMT

A. BURLESON, et al.,
Defendants.
_____________________/
ORDER
The Chief Magistrate Judge issued a Report and Recommendation on January
4, 2022, recommending dismissal with prejudice of the claims against Defendant
Pulley, Defendant Rice and Defendant Assistant Warden A. Ralph. ECF No. 20.
The court furnished Plaintiff a copy of the Report and Recommendation and afforded
him an opportunity to file objections pursuant to Title 28, United States Code,
Section 636(b)(1). The Court has reviewed Report and Recommendation and the
timely filed objections de novo, ECF No. 22, and finds that the Report and
Recommendation is due to be adopted in part and rejected in part.
Plaintiff objects to the recommended dismissal with prejudice of Defendants
Pulley and Assistant Warden Ralph, arguing his allegations are sufficient to warrant
discovery.

The facts as stated by the magistrate judge in the Report and

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Recommendation are incorporated by reference and will be re-stated here only as
necessary to address the objections.
Plaintiff contends that after officers deliberately broke his finger on October
12, 2020, he twice gave a sick call request form related to his finger to Pulley, while
he was accompanying LPN Castro on medication rounds on October 13 and October
22, 2020. He alleges he received no response to his first two requests. Plaintiff
submitted a third sick call request to Pulley and Castro on November 3, and he was
seen by a nurse on November 11, 2020, who refused to take x-rays or refer him to
medical staff.1 Assistant Warden Ralph denied Plaintiff’s related grievances and
appeals on grounds that Plaintiff’s records did not include any sick call requests and
that appropriate medical care is the responsibility of the health care staff. See ECF
No. 19 at 21 & 24. An x-ray taken on February 11, 2021, confirmed an acute fracture
involving the fourth finger of Plaintiff’s right hand.
Plaintiff argues he stated a claim by alleging he delivered the sick call forms
to Pulley and that Pulley purposely discarded them, turning a blind eye to his serious
medical needs. Although the Report and Recommendation acknowledged the
allegation that Pulley discarded the sick call forms, the magistrate judge did not

1

The record reflects that an inmate who has presented a sick call form three times with the
same complaint will be referred to a clinician. ECF No. 19 at 21.
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otherwise address the allegation but concluded that it was reasonable for Pulley to
rely on LPN Castro to process the sick call forms or to otherwise fully address
Plaintiff’s medical needs. Consequently, the magistrate judge determined, the claim
against Pulley is not plausible.
On de novo review, the Court disagrees insofar as the Report and
Recommendation does not accept as true Plaintiff’s allegation that Pulley
deliberately discarded his sick call forms. In the Fourth Amended Complaint,
Plaintiff alleged that “LPN Castro and Pulley threw away my sick calls for medical
treatment on 10-13-20 and 10-22-21 for my fractured hand and toe. Making the sick
call process unavailable.” ECF No. 19 at 9 ¶15. He also alleged, “[a] declaration
from [a] cell-mate will confirm that 2 sick calls were submitted on 10-13-20 and 1022-20.” Id. At this stage, the Court must accept as true the allegation that Pulley
purposefully discarded the forms in deliberate disregard of Plaintiff’s serious
medical need. Viewed in this light, the claim is sufficiently plausible and dismissal
with prejudice is not warranted. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009);
see also Michel v. NYP Holdings, Inc., 816 F.3d 686, 694 (11th Cir. 2016) (“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.”).
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Plaintiff also challenges the dismissal of Assistant Warden Ralph, asserting
the Assistant Warden failed to take any measures in response to his grievances to
ensure inmates’ medical needs were met or to investigate whether an officer was
disregarding sick call requests. The Court agrees with the magistrate judge’s
reasoning and overrules the objection. The Assistant Warden’s role was limited to
addressing Plaintiff’s grievance appeals. There is no allegation that the Assistant
Warden discarded Plaintiff’s sick call forms or had subjective knowledge of a risk
of serious harm needing further investigation. The Assistant Warden approved the
grievance responses of the medical director, stating Plaintiff’s records included no
sick call requests and that Plaintiff was seen by a nurse on November 11, 2020. As
the magistrate judge concluded, the Assistant Warden was entitled to rely on the
judgment of the medical personnel. Thus, there is no plausible claim that the
Assistant Warden turned a blind eye to Plaintiff’s serious medical needs.
Accordingly, it is now ORDERED as follows:
1.

The chief magistrate judge’s Report and Recommendation (ECF No.

20) is adopted in part and rejected in part as follows: REJECTED as to Defendant
Pulley and ADOPTED and incorporated by reference in this Order in all other
respects.

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2.

Plaintiff’s Eighth Amendment claims against Defendant Assistant

Warden Ralph and Defendant Rice are DISMISSED with prejudice, pursuant to
28 U.S.C. section 1915(e)(2)(B), for failure to state a claim upon which relief may
be granted;
3.

Plaintiff’s demands for declaratory and injunctive relief are

DISMISSED as moot;
4.

This case is remanded to the assigned magistrate judge for further

proceedings on Plaintiff’s Eighth Amendment claims against the remaining
Defendants (Defendants Pulley, Burleson, Holland, Castro, Bottoms, Pybus, Scott,
Hernandez-Perez, and Centurion of Florida, LLC).
DONE AND ORDERED this 10th day of May 2022.

M. Casey Rodgers

M. CASEY RODGERS
UNITED STATES DISTRICT JUDGE

Case No. 3:21cv537/MCR/EMT