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Sim v. Marceus

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

May 12, 2017

STANLEY L. SIM, JR., Plaintiff,
P. MARCEUS, et al., Defendants.



         I. Status

         Plaintiff 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;[1] (3) Mrs. Liockkis, a nurse; and (4) Kirk Laneve, [2] a physician's assistant. On February 23, 2017, Dr. Marceus, Dr. Kleinhans, and Mrs. Liockkis were dismissed from this action. See (Doc. 39).

         This 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).

         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 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).

         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. Second Amended Complaint[3]

         Sim 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. See id.

         On 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.

         IV. Law and Conclusions

         Laneve 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 screws.” ...

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