United States District Court, N.D. Florida, Pensacola Division
JOSE M. RODRIGUEZ, Plaintiff,
BRENDALIZ ASENCIO, et al., Defendants.
REPORT AND RECOMMENDATION
THAI CANNON, UNITED STATES MAGISTRATE JUDGE.
Jose Rodriguez, proceeding pro se and in forma
pauperis, has filed this suit alleging the Defendants
violated the Eighth Amendment, the Americans with
Disabilities Act (“ADA”), and the Rehabilitation
Act of 1973. The Defendants have filed motions to dismiss
(ECF Docs. 45, 47, 60), and Plaintiff responded in opposition
(ECF Docs. 57, 65). The motions have been referred to the
undersigned Magistrate Judge for a Report and Recommendation
pursuant to 28 U.S.C. § 636 and N.D. Fla. Loc. R.
72.2(C). Considering the parties' submissions and the
relevant law, the undersigned recommends that Defendants
Chandler, Rice and Simmons's motion to dismiss (ECF Docs.
45) be GRANTED IN PART and DENIED IN PART; Defendant
Inch's motion to dismiss (ECF Doc. 47) be GRANTED; and
Defendant Asencio's motion to dismiss (ECF Doc. 60) be
GRANTED IN PART and DENIED IN PART.
is an inmate of the Florida Department of Corrections
(“FDOC”) currently confined at the Mayo
Correctional Institution Annex. Plaintiff's third amended
complaint names five (5) Defendants: (1) Mark S. Inch, the
Secretary of the FDOC; (2) Dr. Brendaliz Asencio; (3) Nurse
S. Chandler; (4) Nurse Simmons; and (5) Nurse K Rice. ECF
Doc. 26 at 1-3. The complaint sets forth the factual
allegations that follow, the truth of which are accepted for
purposes of determining Defendants' motions to dismiss.
February 2015, Plaintiff entered FDOC custody with a cane for
walking. Id. at 6. Documents attached to
Plaintiff's complaint from the Social Security
Administration indicate he “has clinical diagnoses of
Status Post Fracture of the Left Lower Extremity, Limb Pain,
Lumbar Intervertebral Disc Displacement and Lumbosacral
Radiculitis.” Id. at 36. At the South Florida
Reception Center, he received a medical pass allowing him to
possess and use a cane; the pass was subsequently renewed at
Northwest Florida Reception Center. Id. at 6. Upon
arriving at Walton Correctional Institution (“Walton
CI”) on May 11, 2015, however, a correctional officer
told Plaintiff “he could forget about his walking cane
because it was not allowed at [Walton CI].”
Id. Plaintiff explained he needed the cane “to
ambulate and balance, ” but Nurse Simmons took the cane
to Officer Hicks. Id. Nurse Rice stated, “your
being disabled was not the same as in society.”
Id. Hicks then placed the cane in Plaintiff's
property, and Nurse Simmons refused to give Plaintiff a
replacement cane. Id. Plaintiff alleges the loss of
his cane caused severe pain in his back and legs, as well as
swelling in his legs. Id. at 7, 13.
asked Dr. Asencio to return the cane, but Asencio informed
Plaintiff “the cane would not be returned because it
was a weapon.” Id. To avoid lifting his fifty
(50) to sixty (60) pound locker every day, Plaintiff asked
Asencio for a no lifting pass. Id. Although no
lifting passes were issued to a variety of inmates at Walton
CI, Asencio refused Plaintiff's request, stating
“she could not do so for security reasons.”
Id. Instead, Asencio prescribed Plaintiff ibuprofen
and sent him back to his dorm. Id. at 7, 10.
days later, Plaintiff returned to sick call because of pain
and swelling in his legs. Id. at 10. He complained
to Dr. Asencio about his treatment and again requested his
cane. Id. Plaintiff claims Asencio “retaliated
against [his] complaints by changing [his] medication to
[Naproxen] and giving [him an] ace bandage for his knee
instead of a knee-brace.” Id. Asencio
“then insulted Plaintiff” by telling him he
needed to lose weight; Plaintiff agreed but stated
“exercising was impossible without his walking aid . .
. .” Id. Plaintiff also said he was having
trouble showering because the showers lacked chairs or
handrails. Id. Plaintiff tried to show Asencio his
pre-incarceration medical records “documenting his
disabilities, ” but Asencio refused to view them.
Id. When Plaintiff asked for a walker, Asencio
stated, “I told you we don't prescribe
walkers.” Id. Other inmates at Walton CI,
however, used walkers. Id. Dr. Asencio attempted to
prescribe tramadol (which Plaintiff refused) and referred
Plaintiff to the Reception and Medical Center
(“RMC”) for an MRI and therapy. Id. At
the RMC, a physician examined Plaintiff and provided him with
a cane, therapy and medication, which relieved a
“majority of his pain.” Id. Plaintiff,
however, did not undergo an MRI. Id.
returned to Walton CI on August 15, 2016, with a medical pass
for a cane that lasted through June 22, 2017. Id. at
11. Nurse Chandler reviewed the pass and sent Plaintiff
“to his housing area.” Id. Later,
however, Chandler called Plaintiff back to the medical
department and told him he was to be placed in the infirmary
for twenty-three (23) hours for observation. Id.
After about four (4) hours, Chandler, at the direction of Dr.
Asencio, confiscated Plaintiff's cane. Id.
Plaintiff told Chandler the “evaluations done at RMC
determined he needed a walking cane, ” but Chandler
stated, “you have been evaluated here, and [the] RMC
evaluation don't mean nothing.” Id.
Plaintiff, however, maintains “no new tests or
evaluations had been done at [Walton CI].” Id.
Dr. Asencio later denied Plaintiff's request for a
transfer “to a certified ADA dormitory” which
would have minimized Plaintiff's walking. Id.
February 15, 2017, Plaintiff was provided a
“non-operable” walker; it “was without
wheels or [a] seat for resting that all the other walkers
provided to inmates at [Walton CI] had.” Id.
Plaintiff alleges he received this type of walker due to
retaliation by Asencio, Simmons, Rice and Chandler.
8, 2017, Plaintiff was transferred to the RMC and then
referred to Jacksonville's Memorial Hospital.
Id. at 12. Plaintiff had a CAT scan, but medical
personnel at the hospital advised him the CAT scan was
unreadable. Id. While Plaintiff was at the RMC,
staff gave him a cane and prescribed gabapentin for nerve
Plaintiff returned to Walton CI on August 15, 2017, Dr.
Asencio took Plaintiff's cane and ended his prescription
for gabapentin, stating “they don't prescribe that
at [Walton CI].” Id. Two (2) weeks later,
Asencio stated she “was told by Dr. Lay . . . [her]
boss not to send [Plaintiff] back to the specialist [doctor]
even though [he] was scheduled to return within a few
on the foregoing, Plaintiff alleges the Defendants violated
the Eighth Amendment, the ADA and the Rehabilitation Act.
Id. at 13-21. As relief, he seeks an injunction and
$850, 000 in damages. Id. at 21-22.
considering a motion to dismiss for failure to state a claim,
the Court reads Plaintiff's pro se allegations
in a liberal fashion, Haines v. Kerner, 404 U.S.
519, 520-21 (1972), and accepts “[a]ll well-pleaded
facts in plaintiff's complaint and all reasonable
inferences drawn from those facts . . . as true.”
McGinley v. Houston, 361 F.3d 1328, 1330
(11th Cir. 2004) (citation omitted). “There
are a few exceptions to this rule, such as where the facts
alleged are internally inconsistent or where they run counter
to facts of which the court can take judicial notice.”
Ellen S. v. Fla. Bd. of Bar Exam'rs, 859 F.Supp.
1489, 1492 (S.D. Fla. 1994) (citation omitted). Further, mere
“labels and conclusions” are not accepted as
true. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007) (citing Papasan v. Allain, 478 U.S. 265, 286
(1986)) (noting courts “are not bound to accept as true
a legal conclusion couched as a factual allegation”);
Ashcroft v. Iqbal, 556 U.S. 662, 680-81 (2009)
(explaining that conclusory allegations are not entitled to a
presumption of truth); Associated Builders, Inc. v. Ala.
Power Co., 505 F.2d 97, 100 (5th Cir. 1974)
(“unwarranted deductions of fact are not admitted as
Supreme Court reiterated in Iqbal, although Rule 8
of the Federal Rules of Civil Procedure does not require
detailed factual allegations, it does demand “more than
an unadorned, the-defendant-unlawfully-harmed-me
accusation.” 556 U.S. at 678. A complaint must state a
plausible claim for relief, and “[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. The mere possibility the defendant acted
unlawfully is insufficient to survive dismissal for failure
to state a claim. Id. The complaint must include
“[f]actual allegations . . . [sufficient] to raise a
right to relief above the speculative level, ”
Twombly, 550 U.S. at 555, or, “nudge the
claim across the line from conceivable to plausible . . .
.” Id. at 570.
argue Plaintiff failed to exhaust his administrative remedies
before bringing suit. The Prison Litigation Reform Act
(“PLRA”) provides that “[n]o action shall
be brought with respect to prison conditions under section
1983 of this title, or any other Federal law, by a prisoner
confined in any jail, prison, or other correctional facility
until such administrative remedies as are available are
exhausted.” 42 U.S.C. § 1997e(a). Exhaustion of
all available administrative remedies is a mandatory
precondition to suit. See Booth v. Churner, 532 U.S.
731, 739 (2001). The exhaustion requirement “applies to
all inmate suits about prison life, whether they involve
general circumstances or particular episodes, and whether
they allege excessive force or some other wrong.”
Porter v. Nussle, 534 U.S. 516, 532 (2002).
Exhaustion is required whether the plaintiff seeks
declaratory and injunctive relief, monetary damages, or both.
See Booth, 532 U.S. at 734, 741. The requirement is
not subject to waiver by a court, or futility or inadequacy
exceptions. See Id. at 741 n.6. Moreover, the PLRA
requires “proper exhaustion” so that the agency
has an opportunity to address the issues on the merits.
Woodford v. Ngo, 548 U.S. 81, 93-94 (2006); see
also Id. at 95 (“The benefits of exhaustion can be
realized only if the prison grievance system is given a fair
opportunity to consider the grievance. The prison grievance
system will not have such an opportunity unless the grievant
complies with the system's critical procedural
rules.”). A court must dismiss an action if satisfied
the inmate failed to properly exhaust his available
administrative remedies before filing suit. See
Higginbottom v. Carter, 223 F.3d 1259, 1261
(11th Cir. 2000).
grievance procedures promulgated by the FDOC generally
require an inmate to: (1) file an informal grievance with a
designated prison staff member, (2) file a formal grievance
with the warden's office, and then (3) submit an appeal
to the Office of the Secretary. See Fla. Admin. Code
r. 33-103.005 to 33-103.007; see also Parzyck v. Prison
Health Servs., Inc., 627 F.3d 1215, 1218
(11th Cir. 2010). For complaints regarding the ADA
or medical treatment, an inmate may bypass the informal
grievance step. See Fla. Admin. Code r.
defense of failure to exhaust should be treated as a matter
in abatement. See Bryant v. Rich, 530 F.3d 1368,
1374 (11th Cir. 2008). “This means that
procedurally the defense is treated ‘like a defense for
lack of jurisdiction,' although it is not a
jurisdictional matter.” Turner v. Burnside,
541 F.3d 1077, 1082 (11th Cir. 2008) (quoting
Bryant, 530 F.3d at 1374). Because exhaustion is a
matter in abatement, “it should be raised in a motion
to dismiss, or be treated as such if raised in a motion for
summary judgment.” Bryant, 530 F.3d at 1374-75
(citation and internal quotation omitted).
a motion to dismiss for failure to exhaust administrative
remedies involves two steps. See Turner, 541 F.3d at
1082. “First, the court looks to the factual
allegations in the defendant's motion to dismiss and
those in the plaintiff's response, and if they conflict,
takes the plaintiff's version of the facts as true. If,
in that light, the defendant is entitled to have the
complaint dismissed ...