United States District Court, M.D. Florida, Jacksonville Division
STANLEY L. SIM, JR., Plaintiff,
P. MARCEUS, et al., Defendants.
MORALES HOWARD UNITED STATES DISTRICT JUDGE.
Stanley L. Sim, Jr., an inmate of the Florida penal system,
initiated this action on April 7, 2014, by filing a Civil
Rights Complaint Form (Doc. 1) pursuant to 42 U.S.C. §
1983. He filed an Amended Complaint (Doc. 6) on June 3, 2014,
and a Second Amended Complaint (SAC; Doc. 16) on November 24,
2015. In the SAC, Sim names the following individuals as
Defendants: (1) Dr. P. Marceus; (2) Dr. J.
Kleinhans; (3) Mrs. Liockkis, a nurse; and (4) Kirk
Laneve,  a physician's assistant. On February
23, 2017, Dr. Marceus, Dr. Kleinhans, and Mrs. Liockkis were
dismissed from this action. See (Doc. 39).
matter is before the Court on Defendant Kirk Laneve,
PA-C's Motion to Dismiss Plaintiff's Second Amended
Complaint (Laneve's Motion; Doc. 38). The Court advised
Sim that granting a motion to dismiss would be an
adjudication of the case that could foreclose subsequent
litigation on the matter, see Order (Docs. 17), and
when Plaintiff initially failed to respond to Laneve's
Motion, gave him an additional opportunity to respond.
See Order (Doc. 40). On April 17, 2017, Plaintiff
filed a response in opposition to Laneve's Motion.
See Motion Showing Cause Why Assistant Kirk Laneve
Should not be Dismissed From the Action (Response; Doc. 41).
Motion to Dismiss Standard
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 and 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).
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.
Second Amended Complaint
asserts that Defendants violated his Eighth Amendment right
to be free from cruel and unusual punishment when they denied
him proper medical care for his right shoulder. According to
Sim, Sergeant Jensen, a housing officer, escorted him to the
medical clinic at Columbia Correctional Institution Annex
(CCIA) on May 5, 2013, at approximately 2:40 a.m., due to his
complaints of a right shoulder injury. See SAC at 5.
At the clinic, Mrs. Liockkis refused to order security
personnel to transport Sim to an outside hospital, but
instead took Sim's temperature, checked his pulse, and
directed that he return to his cell and report to the clinic
to see a doctor at 8:00 a.m. See id. at 5-6. Sim
returned to the medical clinic that same morning at 8:30
a.m., and Dr. Marceus examined Sim's shoulder, ordered
x-rays, and directed security personnel to return Sim to his
cell. See id. at 6. On July 3, 2013, the Florida
Department of Corrections (FDOC) transported Sim to the
Reception and Medical Center (RMC) to see Dr. Kleinhans, who
advised that he would perform surgery on Sim's shoulder.
See id. Dr. Kleinhans performed surgery on July 8th
at the RMC, and the FDOC returned Sim to CCIA where he
complained to the medical staff about post-surgical pain.
October 14, 2013, the FDOC returned Sim to RMC where Laneve
examined him and ordered x-rays, which showed dislodged
screws in Sim's shoulder, prompting Laneve to order
another surgical procedure. See id. The FDOC
transported Sim to Jacksonville's Memorial Hospital for
surgery on December 2, 2013. See id. Sim later
discovered that Dr. Kleinhans removed the plate from his
shoulder, but “the problem [with the shoulder] was not
corrected.” See id. at 6-7. When the FDOC
returned Sim to RMC, he was given no post-operative orders
for pain medication or physical therapy. See id. at
7. Sim asserts Laneve acted with deliberate indifference
“due to his continual delay of surgery once he saw
alone (sic) with the plaintiff on [October 14, 2013] the
return of the x-ray's he order to be taken showed that
the screws in the plaintiff (right) shoulder had become
dislodged an[d] was causing great pain to him.”
Id. at 7-8.
Law and Conclusions
seeks dismissal of Sim's Eighth Amendment claim against
him because Sim "fails to allege sufficient factual
allegations supporting a cognizable claim against [him] . . .
." Laneve's Motion at 3. He asserts that the facts
set forth in the SAC, as they relate to him, "merely
amount to disagreements" with his clinical decisions,
and therefore are insufficient to state an Eighth Amendment
claim. Id. at 1-2. In his Response, Sim requests
that the Court deny Laneve's Motion. He asserts that
Laneve failed to follow “the proper protocol of a
surgeon assistant to his surgeon” in that he failed to
inform Dr. Kleinhans as to the type of surgery he was to
perform to “correct the problem by redoing the