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Hurst v. Centurion of Florida

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

September 27, 2019

CENTURION OF FLORIDA, et al., Defendants.



         Plaintiff, proceeding pro se, filed a third amended civil rights complaint [hereinafter “complaint”], ECF No. 36, against four named Defendants.[1] 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.

         Allegations of the Complaint, ECF No. 36[2]

         Plaintiff 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[3] 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 indifference. Id.

         It is 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, [4] but 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 16.

         Motion to Dismiss, ECF No. 47

         Defendant 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.

         Standard of Review

         The 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).[5] “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).

         The 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).


         To the 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 3.

         Defendant 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.

         The 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 ...

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