United States District Court, M.D. Florida, Jacksonville Division
MORALESHOWARD UNITED STATES DISTRICT JUDGE
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.; (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
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.
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.
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.
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.
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.
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.
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.
Motion to Dismiss Standard
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).
"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) (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).
Summary of the Arguments
Motions,  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.
Exhaustion of Administrative Remedies
Exhaustion under the PLRA
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,  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
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).
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. 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).
Exhaustion under Florida's Prison Grievance
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
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 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).
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).
Daniels' Exhaustion Efforts
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. Nevertheless, it appears that Daniels
furnished the Court with the relevant exhibits.
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.
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.
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,
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.
August 29, 2016, Daniels submitted a "medical
grievance" (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 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 ...