ULLAND v. HESS et al

Filing 42

ORDER DISMISSING THE AMENDED COMPLAINT IN PART re adopting in part 36 Report and Recommendation.The claims against the Sheriff and Secretary are dismissed. The case is remanded to the magistrate judge for service of process and further proceedings on the claims against Dr. Lippman. Signed by JUDGE ROBERT L HINKLE on 6/21/2017. (jcw)

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IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
PANAMA CITY DIVISION

GARRY ALAN ULLAND,
Plaintiff,
v.

CASE NO. 5:14cv162-RH/CJK

FRANK MCKEITHEN et al.,
Defendants.
___________________________________/
ORDER DISMISSING THE AMENDED COMPLAINT IN PART
In an amended complaint signed under penalty of perjury, the plaintiff Garry
Alan Ulland alleges that while detained in the Bay County Jail awaiting trial on
state charges, he suffered medical conditions eventually including a severe
staphylococcus infection. He alleges he was seen by the defendant Dr. Lippman,
who was deliberately indifferent to his condition, refusing to provide any treatment
at all for a significant period. Mr. Ulland alleges that as a result, he suffered
substantial, permanent liver damage. Mr. Ulland asserts a claim for damages under
42 U.S.C. § 1983. He names as defendants not only Dr. Lippman but also, in their
individual and official capacities, both the Sheriff responsible for operating the jail

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and the Secretary of the Florida Department of Corrections. Mr. Ulland was
incarcerated in the Department of Corrections after he was convicted on the state
charges.
The amended complaint has not been served on the defendants but has
instead been screened by the magistrate judge under 28 U.S.C. § 1915A. The
magistrate judge’s report and recommendation concludes the amended complaint
should be dismissed for failure to state a claim on which relief can be granted. Mr.
Ulland has filed objections. I have reviewed de novo the issues raised by the
objections.
A doctor who is assigned to treat a prisoner violates the Eighth Amendment
when the doctor is deliberately indifferent to a serious medical need. See, e.g.,
Estelle v. Gamble, 429 U.S. 97 (1976) (holding that a correctional official violates
the Eighth Amendment when the official is deliberately indifferent to a prisoner’s
serious medical need). The same standard applies under the Fourteenth
Amendment to a detainee. An employing entity—including, for example, a sheriff
who operates a county jail—can be held liable if the deliberate indifference stems
from the entity’s custom or policy. See, e.g., Monell v. Dep’t of Soc. Servs., 436
U.S. 658, 694 (1978) (holding that an employing entity is liable under 42 U.S.C.
§ 1983 for an official’s constitutional violation only if the violation was based on

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the entity’s policy or custom or if the official is one whose edicts or acts may fairly
be said to represent official policy).
The report and recommendation concludes that Dr. Lippman was at most
negligent—in effect, that Mr. Ulland’s allegation that Dr. Lippman was
deliberately indifferent is incorrect. That is probably right. But a complaint cannot
properly be dismissed just because a court concludes that the plaintiff’s allegations
are probably incorrect.
Instead, to avoid dismissal for failure to state a claim, a plaintiff need only
plead “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). For this purpose, a complaint’s factual allegations, though not its legal
conclusions, must be accepted as true. Id.; see also Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555 (2007). A complaint must include “allegations plausibly suggesting
(not merely consistent with)” the plaintiff’s entitlement to relief. Id. at 557. The
complaint must set out facts—not mere labels or conclusions—that “render
plaintiffs’ entitlement to relief plausible.” Id. at 569 n.14.
Pretrial screening, like a motion to dismiss, is not the vehicle by which the
truth of a plaintiff’s factual allegations should be judged. Instead, it remains true,
after Twombly and Iqbal as before, that “federal courts and litigants must rely on
summary judgment and control of discovery to weed out unmeritorious claims

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sooner rather than later.” Leatherman v. Tarrant Cty. Narcotics Intelligence &
Coordination Unit, 507 U.S. 163, 168-69 (1993).
One cannot know, based only on the allegations of the complaint, whether
Mr. Ulland had a serious medical need and, if so, whether Dr. Lippman (1)
provided proper care or (2) was merely negligent or (3) was deliberately indifferent
to a serious medical need. The allegation of deliberate indifference is not
implausible. Prison doctors deal with a high volume of patients in difficult
circumstances. Many imprisoned or detained patients demand treatment that is
unwarranted. The doctors often provide good care. But sometimes prison doctors
are not only negligent but deliberately indifferent to serious medical needs. Mr.
Ulland’s allegation that that happened here cannot be rejected based solely on the
pleadings. And the allegation that that happened plausibly suggests, it is not merely
consistent with, Mr. Ulland’s entitlement to relief against Dr. Lippman. Twombly,
550 U.S. at 557.
The report and recommendation correctly concludes that the amended
complaint does not state a claim against the Sheriff or the Secretary in either their
individual or official capacities.
For these reasons,
IT IS ORDERED:

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The report and recommendation is accepted in part. The claims against the
Sheriff and Secretary are dismissed. The case is remanded to the magistrate judge
for service of process and further proceedings on the claims against Dr. Lippman.
SO ORDERED on June 21, 2017.
s/Robert L. Hinkle
United States District Judge

Case No. 5:14cv162-RH/CJK