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Daniels v. Vilchez

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

June 12, 2019

THERON DANIELS, Plaintiff,
v.
DENNIS A. VILCHEZ, M.D., et al., Defendants.

          ORDER

          MARCIA MORALESHOWARD UNITED STATES DISTRICT JUDGE

         I. Status

         Plaintiff Theron Daniels, an inmate of the Florida penal system, initiated this action on November 3, 2017, by filing a pro se Civil Rights Complaint (Complaint; Doc. 1). In the Complaint, Daniels names the following Defendants: (1) Dennis A. Vilchez, M.D.; (2) Alexis Figueroa, M.D.; (3) B. Celian, M.D.;[1] (4) Luis Vazquez, M.D.; and (5) Centurion of Florida, LLC. He asserts that the Defendants violated his Eighth Amendment right when they were deliberately indifferent to his serious medical needs. As relief, he seeks monetary damages.

         This matter is before the Court on Defendants Centurion's Amended Motion to Dismiss (Centurion Motion; Doc. 53), Vilchez's Amended Motion to Dismiss (Vilchez Motion; Doc. 54), Vazquez's Amended Motion to Dismiss (Vazquez Motion; Doc. 55), and Figueroa's Amended Motion to Dismiss (Figueroa Motion; Doc. 56). The Court advised Daniels 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 Order (Doc. 5). Plaintiff filed a response in opposition to the Motions, see Response (Doc. 61), and Defendants' Motions are ripe for review.

         II. Plaintiff's Allegations[2]

         As to the underlying facts of his claims, Daniels asserts that he was involved in a physical altercation at Suwannee Correctional Institution (SCI) in Live Oak, Florida, on July 19, 2016. See Complaint at 4. According to Daniels, the x-rays showed a broken knuckle on his left hand. See id. He states that SCI medical staff gave him two Lortab pain pills at the initial evaluation, and placed a splint on his hand. See id. He maintains that Defendant Vazquez prescribed Lortab, however, the SCI medical staff never filled the prescription. See id. He states that he was not provided any pain medication until a nurse gave him some non-aspirin on August 2, 2016. See id.

         According to Daniels, Dr. Ong performed surgery on his left pinky finger at the Reception and Medical Center (RMC) in Lake Butler, Florida, on August 11, 2016, and provided post-surgical instructions. See id. Daniels summarizes Dr. Ong's follow-up-care instruction as follows: (1) removal of stitches in two weeks; (2) removal of pins after eight weeks; and (3) provision of prescribed pain medication (Lortab and Excedrin), and other medications (Keflex 500 mg, Benadryl, and Oyster Shell calcium). See id. He asserts that the Florida Department of Corrections (FDOC) transferred him back to SCI after the surgery. See id.

         Daniels states that, upon his return to SCI, Defendant Figueroa advised him that he would prescribe Ibuprofen. See id. He maintains that he explained to Figueroa that he was allergic to non-steroidal anti-inflammatory drugs (NSAID), and Figueroa told him to shut his mouth or he would have him locked up. See Id. According to Daniels, he did not receive any pain medication from August 11th until August 25th. See id. Daniels avers that when he complained about the lack of pain medication on August 25th, the SCI medical staff advised him to take the Ibuprofen that Figueroa ordered. See id. at 5.

         Daniels avers that he declared a medical emergency on August 29th because his hand was "swollen and discolored." Id. He states that Vazquez cleaned his hand and prescribed Lortab for four days. See id. He asserts that he declared another medical emergency on September 9th because he was still in a "great deal of pain and his hand was swollen." Id. Daniels declares that he showed the medical staff "blood, pus, and yellow looking fluid coming from his hand." Id. According to Daniels, the medical staff changed the dressing, and gave him several packets of non-aspirin for pain, and advised him that "nothing was wrong with his hand." Id. He avers that blood, pus and yellow fluid was still seeping from his wound on September 13th, when the medical staff changed the dressing. See id.

         Daniels states that SCI security staff refused to permit him to go to his September 19th doctor visit, so he declared a medical emergency. See id. According to Daniels, Dr. Celian confirmed that his hand was infected, and treated him with antibiotics, an ice pack, three packages of Tylenol, and an arm sling. See id. He avers that he declared a medical emergency on October 3rd because "flesh had grown around the stitches." Id. He avers that he was told to request a sick-call visit. See id. Daniels maintains that he continued to visit sick call, at which he complained about the "constant pain" caused by the stitches. Id. He declares that the medical staff neither provided pain medication nor removed the stitches, but instead told him there was nothing they could do for him. See id.

         According to Daniels, he showed Defendant Vilchez his hand and informed Vilchez about Dr. Ong's post-surgical instructions. See id. at 5. Daniels proclaims that Vilchez told him that there was nothing he could do because the surgeon needed to remove the stitches. See id. According to Daniels, Centurion was either aware, or should have been aware, of its employees' actions, and failed to take any action to prevent or remedy Daniels' suffering. See id. at 6. He maintains that Centurion established a custom where the employees performed only routine health care and withheld costly treatments. See id. Daniels avers that the stitches were removed in "a second surgery to dig the stitches out of [his] hand as [his] flesh had grown around and over the stitches." Id. at 5. He states that he complained about the pain to Vilchez, who said, "you silly inmate, your hand is infected[;] that's why you have pain in your hand." Id. at 6. He avers that his left hand will not "close," and he has lost the use of his left hand due to Defendants' deliberate indifference to his medical needs. Id.

         III. 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. See 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 Randall v. Scott, 610 F.3d 701, 705 (11th Cir. 2010). 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).

         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." See 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). And, while "[p]ro se pleadings are held to a less stringent standard than pleadings drafted by attorneys and will, therefore, be liberally construed," Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998), "'this leniency does not give the court a license to serve as de facto counsel for a party or to rewrite an otherwise deficient pleading in order to sustain an action.'" Alford v. Consol. Gov't of Columbus, Ga., 438 Fed.Appx. 837, 839 (11th Cir. 2011)[3] (quoting GJR Invs., Inc. v. Cty. of Escambia, Fla., 132 F.3d 1359, 1369 (11th Cir. 1998) (internal citation omitted), overruled in part on other grounds as recognized in Randall, 610 F.3d at 706).

         IV. Summary of the Arguments

          In the Motions, [4] Defendants request dismissal of Daniels' claims against them because Daniels failed to exhaust his administrative remedies, as required by the Prison Litigation Reform Act (PLRA), before filing the instant 42 U.S.C. § 1983 lawsuit. See Centurion Motion at 3-5; Vilchez, Vazquez, and Figueroa Motions at 4-6. Next, they argue that Daniels failed to state plausible Eighth Amendment claims against them, see Centurion Motion at 5-6; Vilchez Motion at 6-8; Vazquez and Figueroa Motions at 6-7, and that they are entitled to qualified immunity, see Vilchez Motion at 8-9; Vazquez and Figueroa Motions at 7-8. They also assert that the Eleventh Amendment bars Daniels' claims for monetary damages against them in their official capacities. See Vilchez Motion at 9; Vazquez and Figueroa Motions at 8-9. Finally, they maintain that Daniels is not entitled to compensatory and punitive damages under 42 U.S.C. § 1997e(e) because he has not alleged any physical injury resulting from Defendants' acts and/or omissions. See Vilchez, Vazquez and Figueroa Motions at 9-10. In response to the Motions, Daniels asserts that he exhausted his administrative remedies, states a plausible claim of Eighth Amendment deliberate indifference, and asserts an actual physical injury to his left hand that is "permanent and life-changing" since he is left-handed. Response at 6. He maintains that the Defendants are not entitled to qualified immunity, and "concedes" that the Eleventh Amendment bars his official-capacity claims against Defendants Vilchez, Figueroa, and Vazquez. Id. at 6 (citing Doc. 44).[5]

         V. Exhaustion of Administrative Remedies

         1. Exhaustion under the PLRA

         Exhaustion of available administrative remedies is required before a § 1983 action with respect to prison conditions may be initiated by a prisoner. See 42 U.S.C. § 1997e(a). Nevertheless, a prisoner such as Daniels is not required to plead exhaustion. See Jones v. Bock, 549 U.S. 199, 216 (2007). Instead, the United States Supreme Court has recognized "failure to exhaust is an affirmative defense under the PLRA[.]" Id. Notably, exhaustion of available administrative remedies is "a precondition to an adjudication on the merits" and is mandatory under the PLRA. Bryant v. Rich, 530 F.3d 1368, 1374 (11th Cir. 2008); Jones, 549 U.S. at 211; Woodford v. Ngo, 548 U.S. 81, 85 (2006) ("Exhaustion is no longer left to the discretion of the district court, but is mandatory.") (citation omitted). Not only is there an exhaustion requirement, "the PLRA exhaustion requirement requires proper exhaustion." Woodford, 548 U.S. at 93.

Because exhaustion requirements are designed to deal with parties who do not want to exhaust, administrative law creates an incentive for these parties to do what they would otherwise prefer not to do, namely, to give the agency a fair and full opportunity to adjudicate their claims. Administrative law does this by requiring proper exhaustion of administrative remedies, which "means using all steps that the agency holds out, and doing so properly (so that the agency addresses the issues on the merits)." Pozo, [6] 286 F.3d, at 1024. . . .

Woodford, 548 U.S. at 90. And, "[p]roper exhaustion demands compliance with an agency's deadlines and other critical procedural rules . . . ." Id. As such, the United States Supreme Court has emphasized:

Courts 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."

Ross v. Blake, 136 S.Ct. 1850, 1862 (2016).

         The determination of whether an inmate exhausted his available administrative remedies prior to filing a cause of action in federal court is a matter of abatement and should be raised in a motion to dismiss, or be treated as such if raised in a summary judgment motion. Bryant, 530 F.3d at 1374-75 (citation omitted). The Eleventh Circuit has explained the two-step process that the Court must employ when examining the issue of exhaustion of administrative remedies.

After a prisoner has exhausted the grievance procedures, he may file suit under § 1983. In response to a prisoner suit, defendants may bring a motion to dismiss and raise as a defense the prisoner's failure to exhaust these administrative remedies. See Turner, 541 F.3d at 1081.[7] In Turner v. Burnside we established a two-step process for resolving motions to dismiss prisoner lawsuits for failure to exhaust. 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. Id. 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. Id. at 1082-83; see also id. at 1082 (explaining that defendants bear the burden of showing a failure to exhaust).

Whatley v. Warden, Ware State Prison, 802 F.3d 1205, 1209 (11th Cir. 2015); see Pavao v. Sims, 679 Fed.Appx. 819, 823-24 (11th Cir. 2017) (per curiam).

         2. Exhaustion under Florida's Prison Grievance Procedure

          The FDOC provides an internal grievance procedure for its inmates. See FLA. ADMIN. CODE r. 33-103.001 through 33-103.018. Generally, to properly exhaust administrative remedies, a prisoner must complete a three-step sequential process. First, an inmate must submit an informal grievance to a designated staff member at the institutional level. See FLA. ADMIN. CODE r. 33-103.005. If the issue is not resolved, the inmate must submit a formal grievance at the institutional level. See FLA. ADMIN. CODE r. 33-103.006. If the matter is not resolved at the institutional level, the inmate must file an appeal to the Office of the FDOC Secretary. See FLA. ADMIN. CODE r. 33-103.007.

         However, under specified circumstances, an inmate can bypass the informal-grievance stage and start with a formal grievance at the institutional level. See FLA. ADMIN. CODE r. 33-103.005(1); 33-103.006(3). Or, an inmate can completely bypass the institutional level and proceed directly to the Office of the FDOC Secretary by filing a "direct grievance." See FLA. ADMIN. CODE r. 33-103.007(3). Emergency grievances and grievances of reprisal[8] are types of "direct grievances" that may be filed with the Office of the Secretary. See FLA. ADMIN. CODE r. 33-103.007(3)(a). In a direct grievance to the Secretary, the inmate "must clearly state the reason for not initially bringing the complaint to the attention of institutional staff and by-passing the informal and formal grievance steps of the institution or facility . . . ." FLA. ADMIN. CODE r. 33-103.007(3)(a)2. If the Secretary determines that the grievance does not qualify as one of the types of direct grievances described in the rule, the grievance must be returned to the inmate, stating the reasons for its return and advising the inmate to resubmit the grievance at the appropriate level. See FLA. ADMIN. CODE r. 33-103.007(3)(d). If the grievance is returned to the institution or facility for further investigation or a response, the inmate may, after receiving the response, re-file with the Secretary if he is not satisfied with the response. See FLA. ADMIN. CODE r. 33-103.007(8).

         According to Rule 33-103.014, an informal grievance, formal grievance, direct grievance, or grievance appeal "may be returned to the inmate without further processing if, following a review of the grievance, one or more ... conditions are found to exist." FLA. ADMIN. CODE r. 33-103.014(1). The rule provides an enumerated list as "the only reasons for returning a grievance without a response on the merits." See FLA. ADMIN. CODE r. 33-103.014(1)(a)-(y). Some of the reasons for returning a grievance are as follows: the grievance "addresses more than one issue or complaint" or "is so broad, general or vague in nature that it cannot be clearly investigated, evaluated, and responded to" or "is not written legibly and cannot be clearly understood" or is a supplement to a previously-submitted grievance that has been accepted for review; and the inmate "did not provide a valid reason for by-passing the previous levels of review as required or the reason provided is not acceptable," or "used more than two (2) additional narrative pages." See FLA. ADMIN. CODE r. 33-103.014(1)(a), (b), (c), (f), (q), (t).

         3. Daniels' Exhaustion Efforts

         Defendants maintain that Daniels failed to exhaust his administrative remedies as to the claims against them before filing this § 1983 lawsuit. See Centurion Motion at 3-5; Vilchez, Vazquez, Figueroa Motions at 4-6. In support of their position, they submitted Composite Exhibit A. See Docs. 53-1 at 1-15; 54-1 at 1-15; 55-1 at 1-15; 56-1 at 1-15. They assert that Daniels submitted five informal grievances relating to his hand injury, see id. at 7, 9, 10, 12, 13, and did not appeal the FDOC's denials, see Centurion Motion at 4-5; Vilchez, Vazquez, and Figueroa Motions at 5. They maintain that the Court should dismiss Daniels' claims against them "[f]or this reason alone." Id. at 5. Next, they argue that the grievances do not address "the two subjects of the lawsuit" (the failure to remove stitches and the failure to dispense pain medication), but instead concern hand surgery and therapy. Centurion, Vazquez, Figueroa Motions at 5; Vilchez Motion at 6. They also maintain that Daniels failed to name Vilchez, Vazquez, and Figueroa in the grievances when he knew their identities. See Vilchez Motion at 6; Vazquez, Figueroa Motions at 5-6. In response, Daniels asserts that he exhausted his administrative remedies as to his claims against the Defendants. In support of his position, he submitted "all related grievances." Response at 3, Doc. 61-1 at 1-24. In comparing Daniels' exhibits to Defendants' Composite Exhibit A, the Court finds that Defendants failed to provide the Court with all relevant grievances and responses related to the claims against them. Apparently, Defendants limited their records search to informal grievances and failed to account for Daniels' submission of formal medical grievances. In doing so, they provided an inaccurate history of Daniels' exhaustion efforts.[9] Nevertheless, it appears that Daniels furnished the Court with the relevant exhibits.

         As to the initial step in the two-part process for deciding motions to dismiss for failure to exhaust under the PLRA, the Eleventh Circuit has instructed:

District courts first should compare the factual allegations in the motion to dismiss and those in the prisoner's response and, where there is a conflict, 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." Id.[10]

Pavao, 679 Fed.Appx. at 823-24. Daniels asserts that he exhausted his administrative remedies as to his claims against the Defendants. Here, accepting Daniels' view of the facts as true, a dismissal of the claims against Defendants Centurion, Vilchez, Vazquez, and Figueroa for lack of exhaustion is not warranted. Thus, the Court proceeds to the second step in the two-part process where the Court considers the Defendants' arguments regarding exhaustion and makes findings of fact.

         First, Defendants argue that Daniels only submitted five informal grievances relating to his hand surgery and therapy, and did not appeal the FDOC's denials. See Centurion Motion at 4-5; Vilchez, Vazquez, and Figueroa Motions at 5. In response, Daniels submitted his grievances, the responses, and any appeals, see Doc. 61-1, which are relevant to the Court's analysis. In particular, Daniels submitted a Request for Administrative Remedy or Appeal (Log #16-6-36774, dated August 29, 2016) to the FDOC Secretary. See Doc. 61-1 at 1. In this "emergency grievance" sent directly to the FDOC Secretary, [11] Daniels stated that the sutures from his August 11, 2016 hand surgery were irritating and painful, and asked that a Centurion physician or Vazquez remove them in accordance with Ong's instructions. See id. On or about September 9, 2016, C. Greene returned the grievance without action, stating that the grievance was "not accepted" as an emergency grievance. Id. At 2.

         On August 29, 2016, Daniels submitted a "medical grievance"[12] (Log #1608-230-323) to the Assistant Warden, stating in pertinent part:

On July 19, 2016, I was involved in a physical altercation that resulted in a broken knuckle to the left hand. Immediately thereafter, x-rays were taken which indicated the above mentioned injury. The injury promulgated caused Dr. Vazquez[13] to prescribe Loratabs [sic] 5 mg/500 mg for 3 days every 4 to 6 hours to alleviate the pain. The prescribed medication were [sic] not delivered or issued to me as ordered. At the time Dr. Vazquez ordered the medication, no temporary painkillers were provided. I suffered a total of 15 days of serious ongoing pain due to Vazquez' inadequate treatment and his deliberate indifference to treat a substantial medical condition.
On August 2, 2016, I had to initiate a medical sick-call requesting a non-aspirin pain pill that does not contain the ingredient NSAIDs. Reason being is because my body has a serious allergic reaction that causes the skin to rash up, if taken. The non-aspirin was given to me but to no avail. The non-aspirin was . . . temporary until the surgery scheduled for August 11, 2016.
On August 11, 2016, I was transported to the Reception and Medical Center ("RMC") where Dr. Ong performed the surgery. After the completion of the surgery, the M.D. wrote several orders which were follow up care, follow up appointments, and pain medications such as Loratabs [sic], Excedrin, along with antibody [sic] Keflex 500 mg . . . Ben[a]dryl[]; Oyster Shell calcium 500 mg . . . that were prescribed by M.D. Ong F.M.D., the surgeon.
. . . .
Since my return to Suwannee Correctional Institution from (R.M.C.), I have not received any prescription medication as ordered by Dr. Vazquez or Dr. Ong. The orders were never filled. The region doctor [has] rewritten the order and prescription which was 600 mg Ibuprofen when it is properly documented in my institutional medical file[] "NO NSAIDs." I am prescribed medication I am medically prevented to take. I am still undergoing serious existing ongoing pain. No. medication[s] are being given at this time.
. . . .
The nature of the relief requested is to compel the medical provider to prescribe the necessary medications needed. Also I am requesting compensation for the unnecessary infliction of pain and inadequate medical care in the ...

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