United States District Court, N.D. Florida, Tallahassee Division
REPORT AND RECOMMENDATION
CHARLES A. STAMPELOS, UNITED STATES MAGISTRATE JUDGE.
proceeding pro se, filed a third amended civil rights
complaint [hereinafter “complaint”], ECF No. 36,
against four named Defendants. ECF No. 39. Defendant Ong filed a
motion to dismiss Plaintiff's complaint on June 24, 2019.
ECF No. 47. Plaintiff has filed a memorandum in opposition to
the motion. ECF No. 53. The other named Defendants filed an
answer, ECF No. 52, and discovery has recently been
permitted. This Report and Recommendation is entered to only
rule on Defendant Ong's motion to dismiss.
of the Complaint, ECF No. 36
sustained a broken hand on January 5, 2017, in a fight with
another inmate. ECF No. 36 at 3. It took until January 20,
2017, for Plaintiff's injury to be diagnosed and
Plaintiff was not transported to the Reception and Medical
Center until February 15, 2017. Id. at 5-6. There,
Plaintiff was examined by Defendant Ong, and
“urgent” surgery was scheduled for the next day.
Id. at 6. Plaintiff alleged that later that day, the
“transporting officer” told Plaintiff that
“his surgery was postponed for the following
week.” Id. Plaintiff was not given an
explanation, but contends that Defendant Ong, as the
attending physician, “would have known that the surgery
was postponed.” Id. Plaintiff also contends
that only the physician who is scheduled to perform a surgery
“has the authority to postpone that surgery.”
Id. Thus, Plaintiff alleges that Defendant Ong
“recklessly postponed a surgery that he himself
considered urgent, without making any arrangements for
plaintiff to get his surgery elsewhere.” Id.
Plaintiff asserts that this constitutions deliberate
unclear when Plaintiff had the surgery, but it is alleged
that on June 28, 2017, Plaintiff met with Defendant Ong at
RMC to have his cast removed. Id. at 11. Plaintiff
asserts that Defendant Ong directed physical therapy twice a
week for eight weeks, but Plaintiff alleges that after only
four sessions, he was not approved for more physical therapy.
Id. Plaintiff also states that Defendant Ong
“had an opportunity to recommend a corrective surgery,
he outright refused to meet with plaintiff after the last
physical therapy session.” Id. at 12.
Plaintiff contends that a year after surgery, his hand was
“still swollen with limited motion of the
fingers.” Id. Plaintiff alleges that Defendant
Ong “failed to re-attach the tendon, and place a splint
on the tip of the little finger of plaintiff's right
hand.” Id. at 12. He contends that he now has
“a permanent ‘Right Dip Mallet Deformity”
because Defendant Ong cut the tendon during the surgery.
Id. at 13. Plaintiff asserts that “he lost the
use of his right hand due to the lengthy 84 day delay in
receiving the botched surgery . . . .” Id. at
to Dismiss, ECF No. 47
Ong argues that dismissal is appropriate because the
complaint “is grounded in medical negligence” and
Plaintiff did not comply with state law requirements to
pursue such a claim. ECF No. 47 at 3. Additionally, Defendant
contends that Plaintiff's complaint “should be
dismissed because, other than inserting the words
‘reckless' or ‘deliberate indifference'
several times in describing Dr. Ong's conduct . . ., the
facts as alleged are entirely insufficient to establish a
valid cause of action under 42 U.S.C. § 1983.”
Id. Defendant also asserts entitlement to qualified
immunity and argues that Plaintiff's claim for injunctive
relief must be dismissed since Plaintiff also “seeks to
recover compensatory and other damages from Dr. Ong, which
would, if valid, constitute an adequate remedy at law.”
Id. at 4.
issue on whether a complaint should be dismissed pursuant to
Fed.R.Civ.P. 12(b)(6) for failing to state a claim upon which
relief can be granted is whether the plaintiff has alleged
enough plausible facts to support the claim stated. Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955,
167 L.Ed.2d 929 (2007) (retiring the standard from Conley
v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80
(1957)). “To 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, 129 S.Ct. 1937,
1949, 173 L.Ed.2d 868 (2009) (quoting Twombly, 550
U.S. at 570, 127 S.Ct. 1955). “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.”
Iqbal, 556 U.S. at 677 (citing Twombly, 550
U.S. at 556); see also Speaker v. U.S. Dep't of
Health, 623 F.3d 1371, 1380 (11th Cir. 2010). “The
plausibility standard” is not the same as a
“probability requirement, ” and “asks for
more than a sheer possibility that a defendant has acted
unlawfully.” Iqbal, 556 U.S. at 677 (quoting
Twombly, 550 U.S. at 556). A complaint that
“pleads facts that are ‘merely consistent
with' a defendant's liability, ” falls
“short of the line between possibility and
plausibility.” Iqbal, 129556 U.S. at 677
(quoting Twombly, 550 U.S. at 557).
pleading standard is not heightened, but flexible, in line
with Rule 8's command to simply give fair notice to the
defendant of the plaintiff's claim and the grounds upon
which it rests. Swierkiewicz v. Sorema, 534 U.S.
506, 122 S.Ct. 992, 998, 152 L.Ed.2d 1 (2002) (“Rule
8(a)'s simplified pleading standard applies to all civil
actions, with limited exceptions.”). Pro se complaints
are held to less stringent standards than those drafted by an
attorney. Wright v. Newsome, 795 F.2d 964, 967 (11th
Cir. 1986) (citing Haines v. Kerner, 404 U.S. 519,
520-521, 92 S.Ct. 594, 596, 30 L.Ed.2d 652 (1972)).
Nevertheless, a complaint must provide sufficient notice of
the claim and the grounds upon which it rests. Dura
Pharmaceuticals, Inc. v. Broudo, 544 U.S. 336, 125 S.Ct.
1627, 161 L.Ed.2d 577 (2005) (quoted in Twombly, 550
U.S. at 558). Thus, “conclusory allegations,
unwarranted factual deductions or legal conclusions
masquerading as facts will not prevent dismissal.”
Davila v. Delta Air Lines, Inc., 326 F.3d 1183, 1185
(11th Cir. 2003).
degree Defendant Ong asserts that Plaintiff's claim for
medical negligence must be dismissed, ECF No. 47 at 6, that
request should be denied because Plaintiff did not assert
such a state law claim. Plaintiff's complaint presents
only constitutional claims against the Defendants.
Specifically, Plaintiff alleged only that Defendant Ong was
deliberately indifferent to Plaintiff's medical needs in
violation of the Eighth Amendment. ECF No. 36 at 17. In
response to Defendant's motion, Plaintiff has again
clarified that “this is a clear case of deliberate
indifference from the face of the complaint, and is not one
of negligence as the defendant contends.” ECF No. 53 at
argues that Plaintiff's complaint fails to state a cause
of action under 42 U.S.C. § 1983. ECF No. 47 at 9-12.
Plaintiff says that it does. ECF No. 53 at 5.
Eighth Amendment governs the conditions under which convicted
prisoners are confined and the treatment they receive while
in prison. Farmer v. Brennan, 511 U.S. 825, 832, 114
S.Ct. 1970, 128 L.Ed.2d 811 (1994). The Eighth Amendment
guarantees that prisoners will not be “deprive[d] ...
of the minimal civilized measure of life's
necessities.” Rhodes v. Chapman, 452 U.S. 337,
347, 101 S.Ct. 2392, 2399, 69 L.Ed.2d 59 (1981) (quoted in
Chandler v. Crosby, 379 F.3d 1278, 1289 (11th Cir.
2004)). “[B]asic human necessities include food,
clothing, shelter, sanitation, medical care, and personal