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Davis v. Secretary, Department of Corrections

United States District Court, M.D. Florida, Jacksonville Division

May 9, 2017

JOHN BOYNTON DAVIS, Plaintiff,
v.
SECRETARY, DEPARTMENT OF CORRECTIONS, et al., Defendants.

          ORDER

          MARCIA MORALES HOWARD United States District Judge

         I. Status

         Plaintiff John Boynton Davis, a former inmate of the Florida penal system, initiated this action on May 26, 2015, by filing a Civil Rights Complaint (Doc. 1) pursuant to 42 U.S.C. § 1983. He filed an Amended Complaint (Doc. 11) on August 12, 2015, a Second Amended Complaint (Doc. 14) on January 4, 2016, and a Third Amended Complaint (TAC; Doc. 22) with exhibits (P. Ex.) on April 28, 2016. In the TAC, Davis names the following Defendants: (1) Corizon Health Care Corporation (Corizon); (2) Dr. Chuong Le, M.D., a primary care physician; (3) Dr. Vernon Montoya, M.D., a physician specializing in hematology and oncology; (4) Dr. Marceus, M.D., a primary care physician;[1] (5) Dr. Nicholas Cabrero-Muniz, M.D., a primary care physician; and (6) Julie Jones, Secretary of the Florida Department of Corrections (FDOC). Davis asserts that the Defendants violated his Eighth Amendment right to be free from cruel and unusual punishment when they neither treated him for Hepatitis C, hernias, and Idiopathic Thrombocytopenia (IT)[2] nor referred him for treatment. He sues Defendants Le, Montoya, Cabrero-Muniz, and Jones in their individual and official capacities. As relief, Davis seeks compensatory and punitive damages and declaratory relief. He also requests that the Court direct the FDOC to treat him for Hepatitis C, IT and hernias.

         This matter is before the Court on the following motions to dismiss: Defendant Dr. Vernon Montoya's Motion to Dismiss Official Capacity Claim (Montoya Motion; Doc. 42); Defendant Julie L. Jones's Motion to Dismiss (Jones Motion; Doc. 49); Defendants Corizon, LLC and Dr. Le's Motion to Dismiss (Corizon Motion; Le Motion; Doc. 55); and Defendant Nicholas Cabrero-Muniz's Motion to Dismiss Plaintiff's Third Amended Complaint (Cabrero-Muniz Motion; Doc. 59). The Court advised Davis that granting a motion to dismiss would be an adjudication of the case that could foreclose subsequent litigation on the matter, and gave him an opportunity to respond. See Orders (Docs. 29, 61). Plaintiff filed a response in opposition to the motions to dismiss. See Plaintiff's Motion to Deny Dismissal (Response; Doc. 62). The motions to dismiss are ripe for judicial review.

         II. Motion to Dismiss Standard

         In ruling on a motion to dismiss, the Court must accept the factual allegations set forth in the complaint as true. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Swierkiewicz v. Sorema N.A., 534 U.S. 506, 508 n.1 (2002); see also Lotierzo v. Woman's World Med. Ctr., Inc., 278 F.3d 1180, 1182 (11th Cir. 2002). In addition, all reasonable inferences should be drawn in favor of the plaintiff. See Omar ex. rel. Cannon v. Lindsey, 334 F.3d 1246, 1247 (11th Cir. 2003) (per curiam). Nonetheless, the plaintiff must still meet some minimal pleading requirements. Jackson v. BellSouth Telecomm., 372 F.3d 1250, 1262-63 (11th Cir. 2004) (citations omitted). Indeed, while "[s]pecific facts are not necessary[, ]" the complaint should "'give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'" Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per curiam) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Further, the plaintiff must allege "enough facts to state a claim that is plausible on its face." Twombly, 550 U.S. at 570. "A claim has facial plausibility when the pleaded factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556); see Miljkovic v. Shafritz & Dinkin, P.A., 791 F.3d 1291, 1297 (11th Cir. 2015) (citation and footnote omitted). A "plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do[.]" Twombly, 550 U.S. At 555 (internal quotations omitted); see also Jackson, 372 F.3d at 1262 (explaining that "conclusory allegations, unwarranted deductions of facts or legal conclusions masquerading as facts will not prevent dismissal") (internal citation and quotations omitted). Indeed, "the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions[, ]" which simply "are not entitled to [an] assumption of truth." Iqbal, 556 U.S. at 678, 680. Thus, in ruling on a motion to dismiss, the Court must determine whether the complaint contains "sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face[.]'" Id. at 678 (quoting Twombly, 550 U.S. at 570).

         The Eleventh Circuit has stated:

To survive a motion to dismiss, [plaintiff]'s complaint must have set out facts sufficient to "raise a right to relief above the speculative level." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). This means he must have alleged "factual content that allow[ed] the court to draw the reasonable inference that the defendant[s] [were] liable for the misconduct." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The allegations must be plausible, but plausibility is not probability. See id.

Lane v. Philbin, 835 F.3d 1302, 1305 (11th Cir. 2016).

         III. Third Amended Complaint[3]

         Davis asserts that Defendants Corizon, Le, Montoya, Cabrero-Muniz, and Jones violated his Eighth Amendment right when they neither treated him for Hepatitis C, IT, and hernias nor referred him for treatment. According to Davis, doctors diagnosed him with Hepatitis C and hernias when he entered the FDOC in November 2011, see TAC at 5; Corizon and its doctors diagnosed Davis with "these chronic conditions, " and refused to treat him and/or refer him for treatment, id. at 5-6; the FDOC and its health contractors knew Davis had Hepatitis C, hernias, and IT, see id. at 6; "[t]here is a cure for Hepatitis C as well as treatment for Thrombocytopenia and outpatient surgery is available for the hernias, " id.; Dr. Cabrero-Muniz examined Davis in May 2015 at Hamilton Correctional Institution Annex (HCIA), see id. at 7; Dr. Cabrero-Muniz advised Davis that Hepatitis C "would eventually prove fatal" for him and refused to refer Davis for treatment, id.; Dr. Montoya examined Davis at Lake Butler Regional Medical Center in June 2015, see id.; Dr. Montoya advised Davis that he had IT caused by Hepatitis C and a genetic disorder, see id.; Dr. Montoya would not refer Davis for treatment until Davis's platelet count dropped to 30, which Davis considered to be "a potentially life threatening level, " see id.; Dr. Le examined Davis in November 2015, see id.; Dr. Le told Davis that he was on a waiting list, see id.; Dr. Le neither advised Davis as to how he could get a copy of the waiting list nor referred Davis for Hepatitis C treatment or hernia surgery nor provided a hernia belt, see id.; and Corizon refused to provide treatment for Davis's medical needs because it did not want "to absorb the cost, " id.

         IV. Defendants' Motions to Dismiss

         Defendant Montoya seeks dismissal of Davis's Eighth Amendment claim against him because Davis fails to provide sufficient facts that would entitle him to relief against Montoya. See Montoya Motion at 1, 3-4. He asserts that Davis's official capacity claims against him are "duplicative, redundant, and unnecessary" of Davis's claims relating to Corizon and Jones. Id. at 2. Additionally, Defendant Jones seeks dismissal of Davis's Eighth Amendment claim against her. She asserts that: (1) Davis's claims for injunctive relief should be dismissed as moot since the FDOC released Davis from custody, see Jones Motion at 3-4; (2) she is entitled to Eleventh Amendment immunity to the extent she is sued in her official capacity for monetary damages, see id. at 4-5; and (3) Davis fails to provide any facts as to how she personally participated in events giving rise to an Eighth Amendment violation, see id. at 5-7.

         Defendant Corizon seeks dismissal of Davis's Eighth Amendment claim against it. Corizon asserts that: (1) Davis neither provided any facts relating to Corizon nor identified an unconstitutional Corizon policy, see Corizon Motion at 8; (2) Davis failed to assert how a Corizon policy violated his Eighth Amendment right, see Id. at 9; (3) to the extent Davis seeks to base Corizon's liability on its employees, that claim is barred, see id.; and (4) Davis "simply did not have a need for treatment, " id. at 8. Additionally, Defendant Le seeks dismissal of Davis's Eighth Amendment claim against him because: (1) Davis failed to exhaust his administrative remedies before filing the lawsuit, and is therefore barred from pursuing this action against him, see Le Motion at 12-13; (2) Davis does not assert a serious medical need and "simply did not have a medical need for medications while he was incarcerated, " id. at 11; (3) Davis's assertion that the Defendants neither treated him nor referred him for treatment, despite evidence to the contrary, is "nothing more than a difference of medical opinion between him and his medical providers, " id.; and (4) Davis fails to assert that the Defendants' decisions relating to his treatment worsened his condition, see id. Similarly, Defendant Cabrero-Muniz seeks dismissal of Davis's Eighth Amendment claim against him because Davis: (1) failed to exhaust his administrative remedies before filing the lawsuit, see Cabrero-Muniz Motion at 3-4; and (2) fails to state an Eighth Amendment claim against him, see id. at 2-3. Davis opposes the motions to dismiss and requests that the Court permit his case to proceed to trial. See Response at 1. He asserts that "the documented proof" of an Eighth Amendment violation exists in his medical records. Id.

         V. Law and Conclusions

         A. Exhaustion of Administrative Remedies

         The Prison Litigation Reform Act of 1995 (PLRA) requires an inmate who challenges prison conditions to "properly exhaust" all available administrative remedies before filing an action under 42 U.S.C. § 1983. See 42 U.S.C. § 1997(e) ("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."). Proper exhaustion is mandatory and "demands compliance with an agency's deadlines and other critical procedural rules" governing the administrative process. Woodford v. Ngo, 548 U.S. 81, 90-91 (2006); see also Dimanche v. Brown, 783 F.3d 1204, 1210 (11th Cir. 2015) ("The PLRA requires 'proper exhaustion' that complies with the 'critical procedural rules' governing the grievance process."); Jones v. Bock, 549 U.S. 199, 918-19 (2007) ("There is no question that exhaustion is mandatory under the PLRA and that unexhausted claims cannot be brought in court."). Notably, the Supreme Court in Ross v. Blake, 136 S.Ct. 1850 (2016), instructed that "[c]ourts may not engraft an unwritten 'special circumstances' exception onto the PLRA's exhaustion requirement. The only limit to § 1997e(a)'s mandate is the one baked into its text: An inmate need exhaust only such administrative remedies as are 'available.'" 136 S.Ct. 1850, 1862 (2016). For an administrative remedy to be available, the "remedy must be 'capable of use for the accomplishment of [its] purpose.'" Turner v. Burnside, 541 F.3d 1077, 1084 (11th Cir. 2008) (quoting Goebert v. Lee Cty., 510 F.3d 1312, 1322-23 (11th Cir. 2007)).

         In Ross, the Supreme Court identified three circumstances in which administrative remedies would be considered unavailable. First, "an administrative procedure is unavailable when (despite what regulations or guidance materials may promise) it operates as a simple dead end - with officers unable or consistently unwilling to provide any relief to aggrieved inmates." 136 S.Ct. at 1859. Second, "an administrative scheme might be so opaque that it becomes, practically speaking, incapable of use. In this situation, some mechanism exists to provide relief, but no ordinary prisoner can discern or navigate it." Id. Third, an administrative remedy is unavailable "when prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation." Id. at 1860.

         Generally, inmates incarcerated by the FDOC must follow a three-step grievance process to properly exhaust their administrative remedies. See Fla. Admin. Code r. 33-103.001 through 33-103.018. First, an inmate must file an informal grievance with a designated prison staff member within twenty days of "when the incident or action being grieved occurred." Fla. Admin. Code r. 33-103.011(1)(a). The staff member is required to respond to the grievance in writing within ten days of the receipt of the informal grievance. Fla. Admin. Code r. 33-103.011(3)(a). Second, if the issue is not resolved by the informal grievance, the inmate must file a formal grievance with the correctional institution's warden no later than fifteen calendar days from "[t]he date on which the informal grievance was responded to." Fla. Admin. Code r. 33-103.011(1)(b)1. The warden, assistant warden, or deputy warden then has up to twenty days from receipt of the formal grievance "to take action and respond." Fla. Admin. Code r. 33-103.011(3)(b). Third, if the issue is still not resolved, the inmate must then file an appeal to the Office of the Secretary for the FDOC within fifteen "calendar days from the date the response to the formal grievance is returned to the inmate." Fla. Admin. Code r. 33-103.011 (1)(c). A representative for the Office of the Secretary of the FDOC must respond to the grievance appeal within thirty days of its receipt. Fla. Admin. Code r. 33-103.011(3)(c). Unless the inmate has agreed to an extension of time for a response to his grievance, "expiration of a time limit at any step in the process shall entitle the [inmate] to proceed to the next step of the grievance process." Fla. Admin. Code r. 33-103.011 (4). Notably, medical grievances require only a two-step procedure: the inmate must file a formal grievance at the institutional level with the chief health officer. If the inmate is unsuccessful, he may file an appeal with the Secretary. Fla. Admin. Code r. 33-103.008.

         The failure to properly exhaust administrative remedies will bar an inmate from pursing a claim in federal court. See Woodford, 548 U.S. at 92. That said, failure to exhaust under the PLRA is an affirmative defense a defendant must plead and prove in a motion to dismiss. See Jones, 549 U.S. at 216 ("We conclude that failure to exhaust is an affirmative defense under the PLRA, and that inmates are not required to specially plead or demonstrate exhaustion in their complaints."); Bryant v. Rich, 530 F.3d 1368, 1374-75 (11th Cir. 2008) (finding exhaustion of administrative remedies is a matter in abatement and an exhaustion defense should therefore, be raised in a motion to dismiss). The Eleventh Circuit has established a two-step process for deciding motions to dismiss for failure to exhaust administrative remedies. See Turner, 541 F.3d at 1082.

First, district courts look to the factual allegations in the motion to dismiss and those in the prisoner's response and accept the prisoner's view of the facts as true. The court should dismiss if the facts as stated by the prisoner show a failure to exhaust. Second, if dismissal is not warranted on the prisoner's view of the facts, the court makes specific findings to resolve disputes of fact, and should dismiss if, based on those findings, defendants have shown a failure to exhaust.

Whatley v. Warden, Ware State Prison, 802 F.3d 1205, 1209 (11th Cir. 2015) (internal citations omitted).

         Applying this legal framework, the Court turns to the parties' contentions regarding exhaustion in this case. Davis's Response as well as his TAC including exhibits reflect the following facts on the issue of exhaustion. In the TAC, Davis asserts that he "attached a full list of grievances filed by [him] attempting to obtain treatment." TAC at 5; see Plaintiff's Exhibit List, Doc. 22-2 at 1-2. While housed at Hardee, Okeechobee, Martin and South Bay Correctional Institutions in 2013 and 2014, Davis submitted twelve medical grievances that addressed his Hepatitis C, liver and blood draw issues. See P. Exs. 1B; 2B; 3B; 4B; 5B; 6B; 7B; 8B; 9B; 9D; 10B; and 11C. In 2015, Davis submitted six medical grievances while housed at Columbia Correctional Institution Annex; those grievances addressed his Hepatitis C and blood draw issues relating to Corizon and Dr. Marceus. See P. Exs. 12B; 13B; 14B; 16B; 17B; and 19B.[4]

         According to Davis, Cabrero-Muniz examined him in May 2015 at HCIA, advised him that his Hepatitis C condition would ultimately be fatal, and refused to refer Davis for treatment, TAC at 7; Le examined Davis in November 2015, and advised him that he was on a waiting list, see id.; and Le neither advised Davis as to how he could obtain a copy of the waiting list nor referred Davis for Hepatitis C treatment or hernia surgery nor provided a hernia belt, see id. In their motions to dismiss, Defendants Cabrero-Muniz and Le assert that Davis failed to exhaust his administrative remedies as to medical issues relating to them. See Cabrero-Muniz Motion at 3-4; Le Motion at 12-13. Defendants assert that in none of Davis's grievances does he raise medical issues relating to them or HCIA, and, in fact, Davis's most recent grievance (P. Ex. 17B), dated April 2, 2015, addressed his Hepatitis C and blood draw issues relating to Dr. Marceus. See Cabrero-Muniz Motion at 4; Le Motion at 13. Although Davis opposes the motions to dismiss, he does not address Defendants' assertions relating to his failure to exhaust his administrative remedies as to them. See Response. In his TAC, Davis does assert that he submitted numerous grievances concerning his medical issues. However, those grievances addressed medical issues relating to medical personnel involved in Davis's medical treatment before Defendants Cabrero-Muniz and Le became involved in May 2015 and November 2015, respectively. Notably, Davis presents no facts to support even an inference that the grievance process was unavailable to him during the relevant time period, from May 2015 through the latter part of 2015.

         In light of the facts above, at the first step of the Turner analysis, the Court concludes that Davis failed to exhaust his administrative remedies as to Defendants Cabrero-Muniz and Le. As such, Defendants Cabrero-Muniz and Le's Motions are due to be granted, and Davis's claims against them will be dismissed.[5]

         B. Eleventh Amendment Immunity

         To the extent Defendants Montoya and Jones assert that they are entitled to Eleventh Amendment immunity, this Court agrees.

The Eleventh Amendment provides that "[t]he Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State." U.S. Const. amend. XI. It is well established that, in the absence of consent, "a suit in which the State or one of its agencies or departments is named as the defendant is proscribed by the Eleventh Amendment." Papasan v. Allain, 478 U.S. 265, 276, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986) (quotation omitted). The Eleventh Amendment also prohibits suits against state officials where the state is the real party in interest, such that a plaintiff could not sue to have a ...

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