United States District Court, M.D. Florida, Jacksonville Division
J. DAVIS UNITED STATES DISTRICT JUDGE
an inmate of the Florida Department of Corrections (FDOC), is
proceeding pro se on a Complaint (Complaint) (Doc. 1)
pursuant to 42 U.S.C. § 1983. Defendant, Dr.
Colombani's Motion to Dismiss Complaint With
Prejudice (Doc. 9) and Defendant, Dr. Figueroa's
Motion to Dismiss Complaint With Prejudice (Doc. 13)
are pending before the Court. Plaintiff filed a Declaration in
Opposition to Defendant's [Colombani] Motion to Dismiss
Complaint With Prejudice (Doc. 16) and a Declaration in
Opposition to Defendant Figueroa's Motion to Dismiss
Complaint (Doc. 22). See Order (Doc. 5). For its
review, the Court accepts the facts in the Complaint as true
and views them in the light most favorable to the
Motion to Dismiss
survive a 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 (2009) (quoting
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007)). "A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged." Id. (citing
Twombly, 550 U.S. at 556). "[T]he tenet that a
court must accept as true all of the allegations contained in
a complaint is inapplicable to legal conclusions. Threadbare
recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice."
Id. (citing Twombly, 550 U.S. at 555).
In deciding a motion to dismiss, the Court must accept all
factual allegations in a complaint as true and take them in
the light most favorable to plaintiff. Christopher v.
Harbury, 536 U.S. 403, 406, 122 S.Ct. 2179, 153 L.Ed.2d
413 (2002). A complaint should not be dismissed unless it
appears beyond doubt that plaintiff can prove no set of facts
that would entitle him to relief. Conley v. Gibson,
355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)
(footnote omitted); Marsh v. Butler County, Ala.,
268 F.3d 1014, 1022 (11th Cir. 2001) (en banc). To satisfy
the pleading requirements of Fed.R.Civ.P. 8, a complaint
simply must give the defendant fair notice of what the
plaintiff's claim is and the grounds upon which it rests.
Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512, 122
S.Ct. 992, 152 L.Ed.2d 1 (2002). The Court need not accept
unsupported conclusions of law or of mixed law and fact in a
complaint. Marsh, 268 F.3d at 1036 n. 16.
Hatten v. Davis, No. 203CV114FTM29DNF, 2005 WL
3186183, at *1 (M.D. Fla. Nov. 29, 2005).
a district court, in undertaking its review, "is limited
to the pleadings and any attachments thereto in ruling on the
motion to dismiss." Id. at *2. Thus, in its
review of a motion to dismiss, a court excludes from
consideration documents not previously submitted with the
complaint unless the documents are referred to in the
complaint, are central to the case, and are undisputed (the
authenticity of the document is not challenged).
v. JP Morgan Chase Bank, N.A., No.
1:15-CV-04477-MHC-JFK, 2016 WL 9450467, at *5 (N.D.Ga. June
28, 2016), report and recommendation adopted
by 2016 WL 9453333 (N.D.Ga. Aug. 1, 2016),
aff'd, 696 Fed.Appx. 987 (11th Cir. 2017). The
court may, however, take judicial notice of public filings,
public records, and court filings. Id.
analyzing these motions to dismiss, the Court will consider
the Complaint and the documents attached to the Complaint.
The Court will not convert the motions to dismiss into a
motions for summary judgment and will exclude consideration
of any documents not meeting the above standards.
See Rule 12(d), Fed.R.Civ.P. The Court's inquiry
at this stage is focused upon whether the Complaint gives
Defendants fair notice of the claim and the grounds upon
which it rests. Erickson v. Pardus, 551 U.S. 89, 93
(2007) (per curiam). As to whether Plaintiff has failed to
state a claim upon which relief can be granted, this
assertion "merely tests the sufficiency of the
complaint; it does not decide the merits of the case."
Harvin, 2016 WL 9450467, at *5 (quotation and
on the above, the Court will consider the pending motions as
12(b)(6) motions for failure to state a claim and will limit
its analysis and ruling accordingly.
claims Defendants Dr. Colombani and Dr. Figueroa subjected
him to cruel and unusual punishment in violation of the
Eighth Amendment by denying and delaying the provision of
medical care. Complaint at 5. Plaintiff seeks injunctive
relief against Defendant Figueroa and compensatory and
punitive damages from Defendants Figueroa and Colombani.
Id. at 7-8.
alleges the following facts. On February 16, 2017, an outside
medical specialist at the brace clinic saw Plaintiff and
determined Plaintiff needed replacement arch supports and
orthopedic boots. Id. at 5. Dr. Colombani was aware
of Plaintiff's left foot deformity and knew Plaintiff
needed to be returned to the clinic to be fitted for
custom-made arch supports and boots. Id. On August
1, 2017, Dr. Colombani made a consultation request for a
referral to an outside specialist. Id. However, the
request was not submitted and an appointment was not
Figueroa saw Plaintiff on September 8, 2017 for a medical
appointment. Id. at 6. Plaintiff told Dr. Figueroa
of the need to be returned to an outside specialist to be
evaluated for custom arch supports and boots as Plaintiff had
been wearing severely worn and torn boots for eighteen
months. Id. Dr. Figueroa told Plaintiff he would
address the matter at a later date. Id. After
waiting nearly three months, Plaintiff wrote an inmate
grievance on December 12, 2017. Id. Plaintiff
received a grievance response stating that his medical chart
would be placed in Dr. Figueroa's box for review and a
possible new consultation for the brace clinic. Id.
April of 2018, during a chronic clinic appointment, Plaintiff
asked Dr. Figueroa about returning to an outside specialist.
Id. Dr. Figueroa said it would be easier and less
expensive if he were to order boots himself and issue regular
insoles. Id. Dr. Figueroa issued Plaintiff a pass
for insoles. Id. Plaintiff mentioned the pain and
discomfort he was experiencing, the Dr. Figueroa said money
was not available right now. Id. Dr. Figueroa did
not refer Plaintiff to an outside specialist. Id.
of 2018, during a sick-call visit, Plaintiff was advised
regular boots had been ordered. Id. at 7. Plaintiff
experienced pain and discomfort "because money was an
to the Complaint are a number of documents that are relevant
for this Court's review. The record demonstrates that on
December 12, 2017, while confined at Suwannee Correctional
Institution (SCI), Plaintiff wrote a Request for
Administrative Remedy or Appeal (Doc. 1-1 at 1) to the
Warden. Plaintiff complained he had been denied medical
treatment since February 26, 2017, after being seen in the
brace clinic by Mr. Lang. Id. Plaintiff stated he
was to be returned to the clinic to be refitted for orthotics
and to obtain replacement of orthopedic boots. Id.
Plaintiff complained he had not received the consultation for
approximately ten months. Id.
response, on December 27, 2017, F. Cruz, M.D., approved the
grievance and stated:
You were seen in Chronic Clinic by MD in Oct. and discussed
your brace needs. It does appears [sic] a Consult was written
in July by your previous facility that has not been
completed. Your chart has been placed in the MD's box for
further review of this matter and possible new consult for
brace. You will be notified when this has been completed.
(Doc. 1-1 at 2).
January 22, 2018, Plaintiff wrote a Request for
Administrative Remedy or Appeal to the Warden, reiterating
that he had been sent to the brace clinic at RMC on February
16, 2017, and was due to be returned to the clinic for
fittings. (Doc. 1-1 at 3). Plaintiff stated he had been
transferred to Hamilton Correctional Institution (HCI) on
March 14, 2017, but a consultation for the brace clinic was
not completed at that institution. Id. Plaintiff
said upon his arrival at SCI, he told Dr. Figueroa of
Plaintiff's need to return to the brace clinic because
his boots were worn out and he needed custom-made orthotics
for his left-foot deformity. Id. A consultation was
not completed. Id. Plaintiff provided a copy of the
December 27, 2017 approved grievance. Id. Plaintiff
noted, Dr. Figueroa wrote in Plaintiff's medical file
that Dr. Campbell of the Regional Office was contacted and
denied Plaintiff's return to the brace clinic.
Id. Plaintiff said he has received treatment at the
brace clinic and has been given orthopedic boots since 2006,
long before Centurion took over medical services for the
FDOC, and he should not be told to wear Crocs. Id.
response, on January 26, 2018, F. Cruz, M.D., denied the
grievance noting the previous grievance was approved only on
the basis that the doctor would review Plaintiff's chart
for possible referral to the brace clinic. (Doc. 1-1 at 5).
Dr. Cruz stated: "The chart was placed to the MD and he
reviewed the information and further discussed the matter
with the Regional Medical Directory [sic], Dr. Campbell,
which is an appropriate measure." Id.
Additionally, it was noted that Plaintiff was not recommended
to wear Crocs, and "it's noted that DOC provide low
heel shoes." Id.
February 1, 2018, Plaintiff filed a grievance appeal to the
Secretary of the FDOC, noting that a consult to the brace
clinic was allegedly filled out in July of 2017, but not
submitted. (Doc. 1-1 at 6). Additionally, he said that he was
not sent to the clinic from SCI. Id. Finally,
Plaintiff stated that his primary health care provider had a
phone conversation with a physician from the Regional Office,
and a determination was made that Plaintiff should wear FDOC
low-heeled shoes. Id. Plaintiff asserted that he
should have been sent to the brace clinic based on his
February 16, 2017 appointment at the clinic. Id. at
7. Plaintiff sought to be returned to the brace clinic to be
fitted with custom made arch supports and to receive
replacement orthopedic boots. Id. On June 14, 2018,
staff denied the appeal, noting Plaintiff was seen by the
provider on May 29, 2017 to address these concerns. (Doc. 1-1
wrote another grievance appeal to the Secretary asking that
his medical grievance be returned to the institution and be
properly investigated. (Doc. 1-1 at 9). Staff ...