United States District Court, N.D. Florida, Pensacola Division
REPORT AND RECOMMENDATION
ELIZABETH M. TIMOTHY CHIEF UNITED STATES MAGISTRATE JUDGE
cause is before the court upon Defendant Luis A.
Lopez-Rivera's Motion to Dismiss Plaintiff's Amended
Complaint and incorporated memorandum of law (ECF No. 15).
Plaintiff has filed a Response in opposition (ECF No. 17).
for failure to state a claim are governed by Federal Rule of
Civil Procedure 12(b)(6). Mitchell v. Farcass, 112
F.3d 1483, 1490 (11th Cir. 1997). The allegations of the
complaint are taken as true and are construed in the light
most favorable to Plaintiff. Davis v. Monroe County Bd.
of Educ., 120 F.3d 1390, 1393 (11th Cir. 1997). To
survive the motion to dismiss, “a complaint must
contain sufficient factual matter, accepted as true, to state
a claim to relief that is plausible on its face.”
Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct.
1937, 1949 (2009) (quotation and citation omitted). A claim
is plausible on its face where “the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Id. (citation omitted). Plausibility
means “more than a sheer possibility that a defendant
has acted unlawfully.” Id. “Where a
complaint pleads facts that are merely consistent with a
defendant's liability, it stops short of the line between
possibility and plausibility of entitlement to relief.”
Id. (quotation and citation omitted).
determination of whether a complaint states a plausible claim
for relief is “a context-specific task that requires
the reviewing court to draw on its judicial experience and
common sense.” Iqbal, 556 U.S. at 679
(citation omitted). The pleader is not entitled to relief
“where the well-pleaded facts do not permit the court
to infer more than the mere possibility of misconduct.”
Id. (citing Fed.R.Civ.P. 8(a)(2)). The court is
“not bound to accept as true a legal conclusion couched
as a factual allegation.” Id. at 678
(quotation and citation omitted). And “bare
assertions” that “amount to nothing more than a
formulaic recitation of the elements” of a claim
“are conclusory and not entitled to be assumed
true.” Id. at 681 (quotation and citation
omitted). Stated succinctly:
. . . a court considering a motion to dismiss can choose to
begin by identifying pleadings that, because they are no more
than conclusions, are not entitled to the assumption of
truth. While legal conclusions can provide the framework of a
complaint, they must be supported by factual allegations.
When there are well-pleaded factual allegations, a court
should assume their veracity and then determine whether they
plausibly give rise to an entitlement to relief.
Id. at 679. Finally, consistent with the foregoing
precepts, in civil rights cases more than “mere
conclusory notice pleading” is required, and a
complaint is subject to dismissal “as insufficient
where the allegations it contains are vague and
conclusory.” Gonzalez v. Reno, 325 F.3d 1228,
1235 (11th Cir. 2003) (quotation and citation omitted).
moves for dismissal of Plaintiff's lone civil rights
claim raised under the Eighth Amendment based upon deliberate
indifference to his serious medical needs. Plaintiff was at
all times relevant an inmate of the Florida Department of
Corrections (“DOC”) housed at Okaloosa
Correctional Institution (“OCI”). Defendant (or
“Dr. Lopez”) was a physician at OCI during the
time period in question.
alleges that on September 27, 2012, he suffered an injury to
his orbital socket and eye, for which he alleges
constitutionally inadequate medical treatment. Plaintiff
alleges that on the day of the injury, Defendant referred
Plaintiff to an eye specialist, Dr. John Tugwell, for a
consultation (ECF No. 14 at ¶3). Dr. Tugwell saw
Plaintiff on the following day and diagnosed him with a
macular tear and hemorrhage (id. at ¶4). Dr.
Tugwell also recommended to Dr. Lopez that Plaintiff see a
retinal specialist for prompt treatment with follow-up needed
within the next month (id. at ¶5). On that same
day, Defendant requested an emergency appointment with Retina
Specialty Institute in Pensacola, but when no appointment was
accomplished-for reasons not clear-on October 1st, 2012,
Defendant changed the referral from the Retina Specialty
Institute to Dr. Samuel Poppell at Emerald Coast Eye
Institute (id. at ¶¶6-8). Again for
reasons not clear, this referral was not actually made until
October 12, 2012, and the appointment date then available was
November 15, 2012 (id. at ¶9). The referral was
for an evaluation but not treatment (id. at
Poppell saw Plaintiff and reported to Defendant that
Plaintiff had a choroidal rupture and vitreous hemorrhage,
for which he recommended that a surgical procedure would be
able to restore his vision at least to the point that
Plaintiff would be able to get a driver's license
(id. at ¶¶11-12). However, because Dr.
Poppell was not contracted with the DOC, he would not be able
to perform the surgery (id. at ¶11). Dr. Poppel
described Plaintiff's condition as serious and in need of
prompt surgical treatment (id. at ¶¶12,
14). According to Plaintiff, “Choroidal rupture and
vitreous hemorrhage, if not promptly treated, can cause a
loss of vision” (id. at ¶13). However, no
treatment was immediately provided, and a ophthalmology
consultation that was evidently arranged or requested was
still pending as of February 7, 2013, and on March 7, 2013,
records showed that no surgical appointment had yet been set
(id. at ¶15-17). Plaintiff thus alleges that
from January to March of 2013 Defendant “took no action
to secure treatment” for his serious medical need
(id. at ¶18).
April 19, 2013, Plaintiff was seen by Dr. James Staman of the
Bradford County Eye Center in Starke, Florida, and upon
evaluation, Plaintiff was informed that his vision could not
be surgically corrected because of the formation of scar
tissue in the affected area (id. at ¶19-20). As
a result, Plaintiff alleges he is now “permanently
legally blind” in his left eye (id. at
¶21, misnumbered as ¶5).
Plaintiff alleges that Defendant was aware of Plaintiff's
condition and the need for timely treatment but did not
arrange for timely treatment, resulting in the adverse
consequences to Plaintiff's eyesight.
in providing medical treatment can constitute deliberate
indifference in violation of an inmate's constitutional
rights. Estelle v. Gamble, 429 U.S. 97, 104-05, 97
S.Ct. 285, 50 L.Ed.2d 251 (1976). An inmate who complains of
a delay in medical treatment must be able to prove the
detrimental effect of the delay. Townsend v. Jefferson
Cnty., 582 F.3d 1252, 1259 (11th Cir. 2009).
“Cases stating a constitutional claim for immediate or
emergency medical attention have concerned medical needs that
are obvious even to a layperson because they involve
life-threatening conditions or situations where it is
apparent that delay would detrimentally exacerbate the
medical problem.” See Youmans v. Gagnon, 626
F.3d 557, 561 (11th Cir. 2010); see also Farmer v.
Brennan, 511 U.S. 825, 834, 114 S.Ct. 1970, 128 L.Ed.2d
811 (1994) (serious medical need is one that, if left
unattended, “pos[es] a substantial risk of serious
harm.”). In delay of treatment cases, relevant factors
include: “(1) the seriousness of the medical need; (2)
whether the delay worsened the medical condition; and (3) the
reason for the delay.” Goebert v. Lee Cty.,
510 F.3d 1312, 1327 (11th Cir. 2007). In addition, an
objectively serious deprivation requires showing the response
made by the defendant to that need was so deficient as to
constitute “an unnecessary and wanton infliction of
pain.” Estelle, 429 U.S. at 105-06 (internal
quotation marks omitted); see also Adams v. Poag, 61
F.3d 1537, 1543-44 (11th Cir. 1995).
complete denial of readily available treatment for a serious
medical condition constitutes deliberate indifference.
Harris v. Coweta County, 21 F.3d 388, 393 (11th Cir.
1994). However, where the inmate has received medical
treatment, and the dispute is over the adequacy of that
treatment, courts should be reluctant to question the
accuracy or appropriateness of the medical judgments that
were made. Harris, 941 F.2d at 1507 (quoting
Waldrop v. Evans, 871 F.2d 1030, 1035 (11th Cir.
1989)). “Deliberate indifference has three components:
(1) subjective knowledge of a risk of serious harm; (2)
disregard of that risk; (3) by conduct that is more than mere
negligence.” Farrow v. West, 320 F.3d 1235,
1245-46 (11th Cir. 2003) (citing McElligott v.
Foley, 182 F.3d 1248, 1255 (11th Cir. 1999) and
Taylor v. Adams, 221 F.3d 1254, 1258 (11th Cir.
2000) (stating that defendant must have subjective awareness
of an “objectively serious need” and that his
response must constitute “an objectively insufficient
response to that need”)).
court finds that Plaintiff in this action states a valid
claim that his medical need was a known, serious one that
required timely medical intervention, and that such
intervention was not timely provided, resulting in serious
consequences to his vision. Citing Farmer,
supra, Defendant contends that it must be shown that
he was actually aware of the specific harm that would befall
Plaintiff in order to establish deliberate indifference. To
the extent that Defendant ...