United States District Court, M.D. Florida, Tampa Division
WILLIAM F. JUNG UNITED STATES DISTRICT JUDGE
matter comes to the Court on a motion to dismiss
Plaintiff's Complaint from Defendants Naphcare
Corporation, Inc., Jasmine Battle, R.N., Michelle Conger,
R.N., and Connie Young. Dkt. 28. Plaintiff Brown was ordered
by the Court, on May 20, 2019, to respond to Defendants'
motion by June 14, 2019. Dkt. 34. The Order was not returned
as undeliverable. Plaintiff Brown did not respond to
Defendants' motion; as such, it is deemed unopposed.
Alvarez v. Specialized Loan Servicing LLC, No.
8:15-CV- 1388-T-27AEP, 2015 WL 4609573, at *1 (M.D. Fla. July
30, 2015) (citing Local Rule 3.01(b)). The Court GRANTS the
purposes of ruling on a 12(b)(6) motion to dismiss, the Court
accepts as true the allegations of Plaintiff's Complaint
and applies the liberal pleading standard for pro se
litigants. Erickson v. Pardus, 551 U.S. 89, 94
(2007). Plaintiff is an inmate at the Hillsborough County
Jail. Dkt. 1 at 5. Defendant Naphcare Corporation, Inc.
(“Naphcare”) is the medical provider for
Hillsborough County Jail. Id. at 2. Defendants Jasmine
Battle, R.N., and Michelle Conger, R.N., are medical
providers for Naphcare. Id. at 2-3; Dkt. 28 at 3-4.
Defendant Connie Young is the Chief Financial and Operating
Officer for Naphcare. Dkt. 1 at 5; Dkt. 28 at 1.
was incarcerated in Hillsborough County Jail on October 7,
2018. Dkt. 1 at 6. Plaintiff alleges that he is a diabetic
and has neuropathy which causes him a “great deal of
pain in the bottom of [his] feet and hands.” Dkt. 1 at
6. And every day without medication he is in
“tremendous pain and suffering.” Dkt. 1 at 6. On
October 17, 2018, Plaintiff submitted a “Sick Call
Request” stating “I have Neuropathy on my hands
& feet. I take Lyrica for it.” Dkt. 1 at 18.
Plaintiff submitted a total of five “Sick Call
Request” forms complaining of pain from neuropathy
between October and December of 2018. Dkt. 1 at 18-21, 37.
Plaintiff submitted four “Sick Call Request”
forms with requests for his medical records and medical staff
records in November and December. Id. at 14-17, 35.
In December, Plaintiff submitted two “Sick Call
Request” forms complaining of hip and knee pain that do
not mention neuropathy. Id. at 34, 36. Plaintiff
submitted seven “Health Care Complaint” forms
between October and December 2018, in which he stated he had
neuropathy and that he had been prescribed 800mgs twice daily
of Gabapentin. Id. at 23-29. On five of the
“Health Care Complaints” the health care staff
provided a written response that stated the records were
requested from the Federal Bureau of Prisons. Id. at
25-29. It is undisputed that during this time Naphcare
service providers prescribed and Plaintiff took Naproxen
500mgs twice daily for his neuropathy. Id. at 30;
Dkt. 28 at 5. It is also undisputed the Plaintiff complained
to Naphcare staff that the Naproxen was not helping with the
pain and that he had been previously given Gabapentin 1600mg
or Lyrica 600mg. Dkt. 1 at 13; Dkt. 32-1 at 12.
sues Defendants under 42 U.S.C. § 1983 for violating his
Eighth Amendment right to be free of cruel and unusual
punishment. He seeks damages of $7, 000 for his pain and
suffering, medical fees, attorney fees, and seeks an order
that he be placed on Gabapentin 800mgs twice daily or Lyrica
600mgs twice daily. Dkt. 1 at 6, 31. In response, Defendants
raise a motion to dismiss, or alternatively, a motion for
summary judgment. Dkt. 28.
28 U.S.C. § 1915, “[n]otwithstanding any filing
fee, or any portion thereof, that may have been paid, the
court shall dismiss the case at any time if the court
determines that [the action] . . . fails to state a claim on
which relief may be granted . . . .” §
1915(e)(2)(B)(ii). Similarly, to survive a Rule 12(b)(6)
motion to dismiss, a plaintiff must plead sufficient facts to
state a claim that is “plausible on its face.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
considering a Rule 12(b)(6) motion, the court accepts all
factual allegations in the Complaint as true and construes
them in the light most favorable to the plaintiff.
Pielage v. McConnell, 516 F.3d 1282, 1284 (11th Cir.
2008) (citation omitted). Courts should limit their
“consideration to the well-pleaded factual allegations,
documents central to or referenced in the complaint, and
matters judicially noticed.” La Grasta v. First
Union Sec., Inc., 358 F.3d 840, 845 (11th Cir. 2004)
(citations omitted). Courts may also consider documents
attached to a motion to dismiss if they are (1) central to
the plaintiff's claim; and (2) undisputed or, in other
words, the “authenticity of the document is not
challenged.” Horsley v. Feldt, 304 F.3d 1125,
1134 (11th Cir. 2002) (citations omitted).
cannot establish a claim under 42 U.S.C. § 1983.
“Medical treatment violates the Eighth Amendment only
when it is ‘so grossly incompetent, inadequate, or
excessive as to shock the conscience or to be intolerable to
fundamental fairness.'” Harris v. Thigpen,
941 F.2d 1495, 1505 (11th Cir. 1991) (citation omitted).
prevail, Plaintiff must demonstrate: (1) “an
objectively serious medical need that, if left unattended,
poses a substantial risk of serious harm; and (2) that the
response made by public officials to that need was poor
enough to constitute an unnecessary and wanton infliction of
pain, and not merely accidental inadequacy, negligence in
diagnosis or treatment, or even medical malpractice
actionable under state law.” Harris v. Leder,
519 Fed.Appx. 590, 595-96 (11th Cir. 2013) (internal
quotation marks and citations omitted). “To establish
deliberate indifference, a plaintiff must demonstrate (1)
subjective knowledge of a risk of serious harm; (2) disregard
of that risk; (3) by conduct that is more than mere
negligence.” Monteleone v. Corizon, 686
Fed.Appx. 655, 658 (11th Cir. 2017) (internal quotation marks
and citations omitted).
Defendants did not argue that neuropathy was not a
“serious medical need” in their motion, the Court
will evaluate the motion to dismiss as if the first prong is
met. The Court finds, viewing the allegations of the
Complaint in a light most favorable to the claimant,
Defendants' denial of Plaintiff's preferred
medication did not constitute deliberate indifference to a
serious medical need.
“[d]isagreement over a matter of medical judgment does
not constitute cruel and unusual punishment.”
Leder, 519 Fed.Appx. at 596. “[T]he question
of whether governmental actors should have employed
additional diagnostic techniques or forms of treatment is a
classic example of a matter for medical judgment and
therefore not an appropriate basis for grounding liability
under the Eighth Amendment.” Adams v. Poag, 61
F.3d 1537, 1545 (11th Cir. 1995) (internal quotation marks
and citations omitted); see also Leonard v. Dep't of
Corr. Fla., 232 Fed.Appx. 892, 895 (11th Cir. 2007)
(finding no violation where plaintiff was denied therapeutic
shoes to treat his arthritis and alleged this caused further
injury); Sult v. Prison ...