Kirtsey v. Centurion of Florida LLC et al

Filing 27

ORDER DENYING DR. PAPILLON'S MOTION TO DISMISS & DENYING PLAINTIFF'S MOTION FOR A PRELIMINARY INJUNCTION. Defendant Dr. Franck K. Papillon's Motion to Dismiss [ECF No. 25 ] is DENIED. Plaintiffs Motion for Preliminary Injunction [ECF No. 12 ] is also DENIED. Signed by Judge Darrin P. Gayles on 8/1/2022. See attached document for full details. (daa)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO.: 1:21-cv-23008-GAYLES
JASPER R. KIRTSEY,
Plaintiff,
v.
DR. FRANCK K. PAPILLON,
Defendant.
__________________________________/
ORDER DENYING DR. PAPILLON’S MOTION TO DISMISS &
DENYING PLAINTIFF’S MOTION FOR A PRELIMINARY INJUNCTION
THIS CAUSE is before the Court upon Plaintiff’s Motion for Preliminary Injunction [ECF
No. 12] and Defendant Dr. Franck Papillon’s Motion to Dismiss Plaintiff’s Amended Complaint.
[ECF No. 25]. Plaintiff requests that the Court issue a preliminary injunction to command prison
officials to perform a knee replacement surgery. [ECF No. 12 at 2]. In contrast, Defendant argues
that Plaintiff’s Amended Complaint fails to state an Eighth Amendment deliberate indifference to
medical needs claim because: (1) Plaintiff failed to demonstrate that he has a “serious medical
need,” (2) Dr. Papillon’s failure to perform knee surgery was not the product of deliberate
indifference, and (3) Plaintiff failed to demonstrate a causal relationship between Dr. Papillon’s
actions and Plaintiff’s injuries.
Having reviewed the Amended Complaint [ECF No. 11], the Motion for Preliminary
Injunction [ECF No. 12], the Motion to Dismiss [ECF No. 25], the respective responses [ECF Nos.
24, 26], and the relevant record, the Court concludes that both the Motion for Preliminary
Injunction and Motion to Dismiss must be DENIED.

I.

BACKGROUND
The Court begins by recounting the essential factual allegations in Plaintiff’s Amended

Complaint. [ECF No. 11]. Plaintiff, a prisoner in the custody of the Florida Department of
Corrections, was transferred to Dade Correctional Institution (“Dade C.I.”) on August 12, 2020.
Id. at 1. On February 10, 2021, Plaintiff was transported to the Reception and Medical Center
(“RMC”) so that “Dr. Rayn” could take an x-ray of Plaintiff’s right knee. Id. While the Amended
Complaint does not describe what the x-rays revealed, Dr. Rayn ultimately recommended that
Plaintiff receive a right knee replacement and that the surgery could be performed within four to
six weeks. Id. Plaintiff agreed and gave Dr. Rayn written permission to perform the surgery. Id. at
3.
Plaintiff was transferred back to Dade C.I. on February 12, 2021. Id. Upon his arrival,
Plaintiff informed Dr. Papillon, the head physician at Dade C.I., that he would have to be
transferred back to RMC to have the knee replacement surgery in approximately three weeks. Id.
Many months later, on May 20, 2021, Dr. Papillon met with Plaintiff to explain that the surgery
would not commence because Plaintiff had not “completed all the paperwork to have me
transfer[red] for surgery at RMC.” Id. When Plaintiff showed Dr. Papillon his swollen right knee
and asked for pain medication, Dr. Papillon purportedly refused to provide the medication and told
Plaintiff that “I should stop filing grievance[s] [against] him, or I might not [ever] have the
surgery.” Id. Plaintiff alleges that, as a result of this delay in providing the surgery, he is “now a
cripple confined to a wheelchair” and that other medical personnel employed by the Florida
Department of Corrections are now refusing to conduct the surgery do to its cost. Id. at 4.

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II.

LEGAL STANDARD
To survive a motion to dismiss brought pursuant to Federal Rule of Civil Procedure

12(b)(6), a claim “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief
that is plausible on its face,’” meaning that it must contain “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) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
While a court must accept well-pleaded factual allegations as true, “conclusory allegations . . . are
not entitled to an assumption of truth—legal conclusions must be supported by factual allegations.”
Randall v. Scott, 610 F.3d 701, 709–10 (11th Cir. 2010). “[T]he pleadings are construed broadly,”
Levine v. World Fin. Network Nat’l Bank, 437 F.3d 1118, 1120 (11th Cir. 2006), and the
allegations in the complaint are viewed in the light most favorable to the plaintiff. Bishop v. Ross
Earle & Bonan, P.A., 817 F.3d 1268, 1270 (11th Cir. 2016). The dispositive question is not
whether the claimant “will ultimately prevail . . . but whether his complaint [is] sufficient to cross
the federal court’s threshold.” Skinner v. Switzer, 562 U.S. 521, 530 (2011) (internal quotation and
citation omitted).
To state a claim for relief under § 1983, a plaintiff must show that he was deprived of a
federal right by a person acting under color of state law. See Griffin v. City of Opa Locka, 261 F.3d
1295, 1303 (11th Cir. 2001). Pro se complaints are held to “less stringent standards than formal
pleadings drafted by lawyers and can only be dismissed for failure to state a claim if it appears
‘beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle
him to relief.’” Estelle v. Gamble, 429 U.S. 97, 106 (1979) (quoting Haines v. Kerner, 404 U.S.
519, 520–21 (1972)). Nevertheless, the Court does not have “license to serve as de facto counsel

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for a party, or to rewrite an otherwise deficient pleading in order to sustain an action.” GJR Invs.,
Inc. v. Cnty. of Escambia, Fla., 132 F.3d 1359, 1369 (11th Cir. 1998) (citations omitted).
“A preliminary injunction is an extraordinary remedy never awarded as of right.” Winter
v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 24 (2008). To obtain one, the moving party must
establish four separate requirements—namely, that: “(1) it has a substantial likelihood of success
on the merits; (2) irreparable injury will be suffered unless the injunction issues; (3) the threatened
injury to the movant outweighs whatever damage the proposed injunction may cause the opposing
party; and (4) if issued, the injunction would not be adverse to the public interest.” Jones v.
Governor of Fla., 950 F.3d 795, 806 (11th Cir. 2020) (quotation omitted). The Court may consider
additional evidence provided by the parties to determine whether a preliminary injunction is
appropriate. See Levi Strauss & Co. v. Sunrise Int’l Trading, Inc., 51 F.3d 982, 985 (11th Cir.
1995); see also Alabama v. United States Dep’t of Commerce, 546 F. Supp. 3d 1057, 1063 (M.D.
Ala. 2021) (“[When ruling on a preliminary injunction,] [t]he court may also consider
supplemental evidence, even hearsay evidence, submitted by the parties.”).
The scope of court authority to enter an injunction in the corrections context is
circumscribed by the Prison Litigation Reform Act (“PLRA”). See Nelson v. Campbell, 541 U.S.
637, 650 (2004). Under the PLRA, “preliminary injunctive relief must be narrowly drawn, extend
no further than necessary to correct the harm the court finds requires preliminary relief, and be the
least intrusive means necessary to correct that harm.” 18 U.S.C. § 3626(a)(2); see also Ga. Advoc.
Off. v. Jackson, 4 F.4th 1200, 1206–07 (11th Cir. 2021) (holding that the PLRA prevents a
preliminary injunction from issuing unless it meets the statute’s “need-narrowness-intrusiveness
requirements”). In addition, “[t]he court shall give substantial weight to any adverse impact on

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public safety or the operation of a criminal justice system caused by the relief.” 18 U.S.C. §
3626(a)(1)(A).
III.

DISCUSSION
A. The Motion to Dismiss Should be Denied
“[D]eliberate indifference to [the] serious medical needs of prisoners” constitutes an Eighth

Amendment violation that is redressable under § 1983. Estelle, 429 U.S. at 104. To prove
deliberate indifference, 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 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)). Plaintiff argues that the Amended Complaint has
failed to establish all three of these essential elements. [ECF No. 25 at 5–6].
Prior to the instant motion to dismiss, the Court screened Plaintiff’s Amended Complaint
in accordance with the provisions of 28 U.S.C. §§ 1915(e) and 1915A. While the Court dismissed
all of the other claims against all the other defendants, it allowed the deliberate indifference claim
against Dr. Papillon to proceed. The Court reasoned that:
These allegations are sufficient to state a claim for deliberate indifference to serious
medical needs against Dr. Papillon. “[A] defendant who delays necessary treatment
for non-medical reasons may exhibit deliberate indifference.” Farrow v. West, 320
F.3d 1235, 1246 (11th Cir. 2003). “Delay in access to medical attention can violate
the Eighth Amendment . . . when it is tantamount to unnecessary and wanton
infliction of pain.” Hill v. Dekalb Reg’l Youth Det. Ctr., 40 F.3d 1176, 1187 (11th
Cir. 1994) (quotation and citation omitted). Here, Plaintiff has alleged that Dr.
Papillon has deliberately delayed his knee replacement surgery for non-medical
reasons, telling Plaintiff to “stop filing grievances” or he “might never have the
surgery.” [ECF No. 11 at 3]. Plaintiff further alleges that Dr. Papillon refused to
prescribe pain medication and that he is now confined to a wheelchair as a result of
the delay in surgery. Id. Thus, Plaintiff has sufficiently alleged that Dr. Papillon
delayed treatment for non-medical reasons, and that this delay, along with his
refusal to provide pain medication, “was tantamount to unnecessary and wanton
infliction of pain.” Hill, 40 F.3d at 1187.

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[ECF No. 15 at 2–3]. Having already screened the Amended Complaint, the Court already
reviewed the sufficiency of Plaintiff’s claim against Dr. Papillon under the same Rule 12(b)(6)
standard that applies to all motions to dismiss. See Mitchell v. Farcass, 112 F.3d 1483, 1489–90
(11th Cir. 1997). Dr. Papillon himself admits that his motion to dismiss is essentially a motion to
reconsider the Court’s previous decision to allow the deliberate indifference claim to proceed.
[ECF No. 25 at 2–3]. Upon review, the Court stands by its original reasoning and will deny the
motion to dismiss.
First, the Court does not agree with Dr. Papillon’s argument that Plaintiff failed to
demonstrate that his knee replacement constituted a “serious medical need.” [ECF No. 25 at 6].
Dr. Papillon himself cites Taylor v. Adams, 221 F.3d 1254, 1258 (11th Cir. 2000) for the
proposition that a serious medical need arises when “if left unattended, [it] poses a substantial risk
of serious harm.” Id. Plaintiff has alleged that the delay in approving knee replacement surgery
has rendered him wheelchair-bound, [ECF No. 11 at 4], and the Court finds that this allegation is
enough to show that the delay in providing the surgery caused Plaintiff’s physical condition to
deteriorate to the point that he can longer walk on his own, see Taylor, 221 F.3d at 1258. The Court
acknowledges Dr. Papillon’s argument that Plaintiff’s allegations are that the knee replacement
surgery was “recommended” rather than mandatory, [ECF No. 25 at 6], but Plaintiff has also
alleged that the surgery was necessary by showing that the delay has rendered him non-ambulatory.
See Andrews v. Boyd, No. 15-cv-00045, 2016 WL 7223301, at *10 (N.D. Ala. Nov. 14, 2016)
(finding that an ailment which causes “the patient severe pain and loss of mobility [is] a serious
medical need that even a lay person would recognize the need for treatment”), report and
recommendation adopted, 2016 WL 7210388 (N.D. Ala. Dec. 13, 2016). The Court finds that these
allegations are sufficient under the Rule 12(b)(6) standard. See Bishop, 817 F.3d at 1270.

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Second, the Amended Complaint alleges that Dr. Papillon was, in fact, deliberately
indifferent to Plaintiff’s need for knee replacement surgery. To meet this burden, Plaintiff is
required to show that Dr. Papillon had “subjective knowledge of a risk of serious harm,” that Dr.
Papillon disregarded that risk, and that Dr. Papillon’s conduct was “more than mere negligence.”
McElligott v. Foley, 182 F.3d 1248, 1255 (11th Cir. 1999). Dr. Papillon concedes that he had
knowledge of Plaintiff’s request to have knee surgery, and the Court finds that Plaintiff has alleged
that Dr. Papillon disregarded that knowledge through conduct that was greater than negligence.
[ECF No. 25 at 9]. To begin, Plaintiff has demonstrated that Dr. Papillon may have denied him
medical care for a non-medical reason. See Farrow, 320 F.3d at 1246. By construing the Amended
Complaint liberally, as the Court must at this stage of the proceedings, Plaintiff appears to contend
that he had already completed the necessary “paperwork” to undergo knee replacement surgery in
February 2021, and that the additional “paperwork” mentioned by Dr. Papillon was a pretext to
delay the surgery further. [ECF No. 11 at 3–4]. Dr. Papillon then purportedly threatened Plaintiff
by implying that he would never receive the surgery if Plaintiff kept filing grievances, indicating
that there was also a personal animus directing Dr. Papillon’s actions. Id. at 3. As the Court
previously found, these allegations, if true, demonstrate a deliberate indifference to Plaintiff’s
medical condition by causing Plaintiff to endure an “unnecessary and wanton infliction of pain”
for a non-medical rationale. Hill v. Dekalb Reg’l Youth Det. Ctr., 40 F.3d 1176, 1187 (11th Cir.
1994).
Next, Plaintiff has also shown enough for the Court to infer that Dr. Papillon was more
than negligent. “Conduct that is more than mere negligence includes: (1) grossly inadequate care;
(2) a decision to take an easier but less efficacious course of treatment; and (3) medical care that
is so cursory as to amount to no treatment at all.” Bingham v. Thomas, 654 F.3d 1171, 1176 (11th

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Cir. 2011). By refusing to approve Plaintiff’s knee replacement surgery, or even give Plaintiff pain
medication to alleviate the effects of his swollen knee, Plaintiff has alleged that Dr. Papillon’s care
was “grossly inadequate.” See Lancaster v. Monroe Cnty., Ala., 116 F.3d 1419, 1425 (11th Cir.
1997) (“[A]n official acts with deliberate indifference when he knows that an inmate is in serious
need of medical care, but he fails or refuses to obtain medical treatment for the inmate.”).
Finally, the Court finds that the Amended Complaint has raised just enough factual
allegations to support a causal link between Dr. Papillon and Plaintiff’s current injury. It is true
that Plaintiff admits that other officials at other correctional facilities have contributed to delaying
his surgery—not just Dr. Papillon. [ECF No. 11 at 4]. Still, the Amended Complaint alleges that
the loss of Plaintiff’s mobility can be attributed to Dr. Papillon’s individual decision to delay
Plaintiff’s surgery, and not to any other person employed by the Florida Department of
Corrections. See id. at 3–4 (arguing that Dr. Papillon’s deliberate decision to “prolong performing
surgery” has “cause[d] substantial risk of harm[,] Plaintiff is now a cripple confined to a
wheelchair”). This is, indeed, a close call, but Rule 12(b)(6) requires the Court to “accept all wellpleaded allegations as true and draw all reasonable inferences in the plaintiff’s favor.” Smith v.
United States, 873 F.3d 1348, 1351 (11th Cir. 2017). 1 Accordingly, the Court finds that the
Amended Complaint has pled sufficient facts to show that Plaintiff has “a serious medical need,”
that Dr. Papillon exhibited “deliberate indifference to that need,” and that there is “causation
1

Nevertheless, the Court notes that Dr. Papillon raises valid concerns about the ultimate viability
of Plaintiff’s claims. Specifically, Dr. Papillon strenuously asserts that this whole dispute merely
boils down to “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.” [ECF No. 25 at 10] (quoting Harris v.
Thigpen, 941 F.2d 1495, 1505 (11th Cir. 1991). This argument is ill-suited for the motion to
dismiss stage since the Court must assume that Plaintiff’s allegations are true and must draw every
reasonable inference in his favor. Of course, nothing in this order precludes Dr. Papillon from
raising similar arguments at the summary judgment stage, where he will be able to rebut Plaintiff’s
allegations with his own evidence.
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between that indifference and the plaintiff’s injury.” Mann, 588 F.3d at 1306–07. Therefore, Dr.
Papillon’s Motion to Dismiss must be DENIED.
B. The Motion for Preliminary Injunction is Also Denied
The Court also finds that Plaintiff’s Motion for Preliminary Injunction must also be denied.
Plaintiff requests an injunction to command the Defendants in this case to “send the Petitioner [to]
RMC to have surgery on his right knee.” [ECF No. 12 at 2]. Although the Amended Complaint
(and the Motion for Preliminary Injunction) named several defendants, Dr. Papillon is the only
remaining defendant in this action. [ECF No. 15 at 4–5] (dismissing all claims against Defendants
Centurion of Florida, LLC and Secretary of the Florida Department of Corrections, Mark S. Inch).
Therefore, the scope of this Court’s injunction would be limited to Dr. Papillon.
The Court cannot ascertain a way that it could issue an injunction that would both: (1) only
apply to Dr. Papillon and (2) give Plaintiff what he wants—surgery on his right knee. The PLRA
prevents the Court from issuing an injunction unless the relief requested “is narrowly drawn,
extends no further than necessary to correct the violation of the Federal right, and is the least
intrusive means necessary to correct the violation of the Federal right.” 18 U.S.C. § 3626(a)(1)(A).
Dr. Papillon has provided evidence that a legion of other correctional personnel, not just him,
would be involved in the transportation and treatment of Plaintiff. [ECF No. 24 at 2–6]. Naturally,
an injunction requiring Dr. Papillon to effectuate Plaintiff’s knee replacement surgery would
essentially be meaningless unless the Court expanded it to include other, unidentified persons that
are outside the scope of this action—making it impossible to “narrowly draw” the relief. See
Melendez v. Dixon, No. 20-cv-01023, 2022 WL 281270, at *4 (M.D. Fla. Jan. 31, 2022) (declining
to issue a preliminary injunction which would have transferred the plaintiff to another facility for
inpatient treatment), aff’d sub nom. Melendez v. Sec’y, Fla. Dep’t of Corr., No. 22-10306, 2022

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WL 1124753 (11th Cir. Apr. 15, 2022). The injunction could also become moot if Plaintiff was
ever moved from Dade C.I., which has already happened multiple times, since Dr. Papillon has no
authority over Plaintiff’s medical needs unless he is incarcerated at Dade C.I. [ECF No. 24-2 at 1–
2]. Because it is effectively impossible for any preliminary injunction to meet the “neednarrowness-intrusiveness” requirements of the PLRA, the Court must deny Plaintiff’s request for
a preliminary injunction. See Cason v. Seckinger, 231 F.3d 777, 784–85 (11th Cir. 2000).
IV.

CONCLUSION
Accordingly, it is ORDERED AND ADJUDGED as follows:
1. Defendant Dr. Franck K. Papillon’s Motion to Dismiss [ECF No. 25] is DENIED.
2. Plaintiff’s Motion for Preliminary Injunction [ECF No. 12] is also DENIED.
DONE AND ORDERED in Chambers at Miami, Florida, this 1st day of August, 2022.

________________________________
DARRIN P. GAYLES
UNITED STATES DISTRICT JUDGE
cc:

Jasper R. Kirtsey, pro se
049114
Dade Correctional Institution
Inmate Mail/Parcels
19000 SW 377th Street
Florida City, FL 33034
Counsel of record

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