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Rodriguez v. Asencio

United States District Court, N.D. Florida, Pensacola Division

July 29, 2019

JOSE M. RODRIGUEZ, Plaintiff,
v.
BRENDALIZ ASENCIO, et al., Defendants.

          REPORT AND RECOMMENDATION

          HOPE THAI CANNON, UNITED STATES MAGISTRATE JUDGE.

         Plaintiff 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.

         I. Background

         Plaintiff 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.

         In 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.

         Plaintiff 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.

         A few 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.

         Plaintiff 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.

         On 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. Id.

         On May 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 pain. Id.

         When 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 months.” Id.

         Based 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.

         II. Legal Standard

         In 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 true”).

         As the 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.

         III. Discussion

         A. Exhaustion

         Defendants 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).

         The 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. 33-103.005(1).

         The 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).

         Deciding 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 ...


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