Sims v. Figueroa

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

WILLIAM SIMS,

Plaintiff,

v. Case No. 3:18-cv-892-J-34JBT

ALEXIS FIGUEROA,

Defendant.

ORDER

I. Status

Plaintiff William Sims, an inmate of the Florida penal system,

initiated this action on July 20, 2018, by filing a pro se Civil

Rights Complaint (Complaint; Doc. 1) with exhibits (Doc. 1-1 at 1-

8). In the Complaint, Sims names Dr. Alexis Figueroa, M.D., as the

Defendant. He asserts that Defendant Figueroa was deliberately

indifferent to his serious medical needs. As relief, Sims seeks

compensatory and punitive damages as well as injunctive relief.

This matter is before the Court on Defendant Figueroa's Motion to

Dismiss (Motion; Doc. 8). The Court advised Sims that granting a

motion to dismiss would be an adjudication of the case that could

foreclose subsequent litigation on the matter, and gave him an

opportunity to respond. See Order (Doc. 5). Plaintiff filed a

response in opposition to the Motion, see Declaration in Opposition

to Defendant's Motion to Dismiss (Response; Doc. 14), and the

Motion is ripe for review.

II. Plaintiff's Allegations1

As to the underlying facts of his claims, Sims asserts that he

had a colonoscopy on August 16, 2017, with follow-up instructions

to return in eight weeks. See Complaint at 4. He states that he

experienced "gross rectal bleeding" within a few days, and was

given "a dose of magnesia." Id. He avers that the Florida

Department of Corrections (FDOC) transferred him to Suwannee

Correctional Institution Annex (SCIA) on August 30, 2017. See id.

According to Sims, he informed Defendant Figueroa ("the primary

health care provider" at SCIA) about his "ongoing rectal bleeding"

on September 8th, and Figueroa advised that he would refer Sims to

a gastroenterologist for a consultation. See id. Sims maintains

that he had an "outside appointment" concerning his prostate cancer

with Dr. Montoya (an oncologist) on October 12th, at which time he

informed Montoya about his rectal bleeding. Id. According to Sims,

Montoya performed a rectal examination, determined he had rectal

bleeding, and ordered a gastroenterology consultation. See id. at

4-5. He states that Defendant Figueroa advised Sims that he would

1 In considering a motion to dismiss, the Court must accept

all factual allegations in the Complaint as true, consider the

allegations in the light most favorable to the plaintiff, and

accept all reasonable inferences that can be drawn from such

allegations. Miljkovic v. Shafritz and Dinkin, P.A., 791 F.3d 1291,

1297 (11th Cir. 2015) (quotations and citations omitted). As such,

the recited facts are drawn from the Complaint and may differ from

those that ultimately can be proved.

2

not refer him to a gastroenterologist because he had "his own

treatment plan" for Sims. Id. at 5.

Sims avers that he accessed sick call at the institution on

October 31, November 3, 18, and 21, and December 5 before he

received "any form of medical treatment." Id. He asserts that

Defendant Figueroa saw him in mid-December 2017, and prescribed a

stool softener, fiber laxative, and hydrocortisone. See id.

According to Sims, there was no follow-up appointment, but instead

Figueroa just renewed the medications. See id. He avers that Dr.

Montoya saw him on January 18, 2018, and again ordered that he see

a gastroenterologist. See id. Sims declares that he continued to

complain about rectal bleeding and pain, "but did not receive any

meaningful treatment." Id. He states that Montoya was "furious"

when he saw him on July 5th because Sims had not seen a

gastroenterologist. Id. at 6. Sims proclaims that Montoya informed

him that Centurion "was trying to save money," instead of providing

adequate medical care. Id.

III. Motion to Dismiss Standard

In ruling on a motion to dismiss, the Court must accept the

factual allegations set forth in the complaint as true. See

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Swierkiewicz v. Sorema

N.A., 534 U.S. 506, 508 n.1 (2002); see also Lotierzo v. Woman's

World Med. Ctr., Inc., 278 F.3d 1180, 1182 (11th Cir. 2002). In

addition, all reasonable inferences should be drawn in favor of the

3

plaintiff. See Randall v. Scott, 610 F.3d 701, 705 (11th Cir.

2010). Nonetheless, the plaintiff must still meet some minimal

pleading requirements. Jackson v. Bellsouth Telecomm., 372 F.3d

1250, 1262-63 (11th Cir. 2004) (citations omitted). Indeed, while

"[s]pecific facts are not necessary[,]" the complaint should "'give

the defendant fair notice of what the . . . claim is and the

grounds upon which it rests.'" Erickson v. Pardus, 551 U.S. 89, 93

(2007) (per curiam) (quoting Bell Atlantic Corp. v. Twombly, 550

U.S. 544, 555 (2007)). Further, the plaintiff must allege "enough

facts to state a claim that is plausible on its face." Twombly, 550

U.S. at 570. "A claim has facial plausibility when the pleaded

factual content allows the court to draw the reasonable inference

that the defendant is liable for the misconduct alleged." Iqbal,

556 U.S. at 678 (citing Twombly, 550 U.S. at 556).

A "plaintiff's obligation to provide the grounds of his

entitlement to relief requires more than labels and conclusions,

and a formulaic recitation of the elements of a cause of action

will not do[.]" Twombly, 550 U.S. at 555 (internal quotations

omitted); see also Jackson, 372 F.3d at 1262 (explaining that

"conclusory allegations, unwarranted deductions of facts or legal

conclusions masquerading as facts will not prevent dismissal")

(internal citation and quotations omitted). Indeed, "the tenet that

a court must accept as true all of the allegations contained in a

complaint is inapplicable to legal conclusions[,]" which simply

4

"are not entitled to [an] assumption of truth." See Iqbal, 556 U.S.

at 678, 680. Thus, in ruling on a motion to dismiss, the Court must

determine whether the complaint contains "sufficient factual

matter, accepted as true, to 'state a claim to relief that is

plausible on its face[.]'" Id. at 678 (quoting Twombly, 550 U.S. at

570). And, while "[p]ro se pleadings are held to a less stringent

standard than pleadings drafted by attorneys and will, therefore,

be liberally construed," Tannenbaum v. United States, 148 F.3d

1262, 1263 (11th Cir. 1998), "'this leniency does not give the

court a license to serve as de facto counsel for a party or to

rewrite an otherwise deficient pleading in order to sustain an

action.'" Alford v. Consol. Gov't of Columbus, Ga., 438 F. App'x

837, 839 (11th Cir. 2011)2 (quoting GJR Invs., Inc. v. Cty. of

Escambia, Fla., 132 F.3d 1359, 1369 (11th Cir. 1998) (internal

citation omitted), overruled in part on other grounds as recognized

in Randall, 610 F.3d at 706).

2 "Although an unpublished opinion is not binding . . . , it

is persuasive authority." United States v. Futrell, 209 F.3d 1286,

1289 (11th Cir. 2000) (per curiam); see generally Fed. R. App. P.

32.1; 11th Cir. R. 36-2 ("Unpublished opinions are not considered

binding precedent, but they may be cited as persuasive

authority.").

5

IV. Summary of the Arguments

In the Motion, Defendant Figueroa requests dismissal of Sims'

claims against him because Sims failed to exhaust his

administrative remedies, as required by the Prison Litigation

Reform Act (PLRA), before filing the instant 42 U.S.C. § 1983

lawsuit. See Motion at 4-7. Next, Figueroa argues that Sims failed

to state a plausible Eighth Amendment claim against him, see id. at

7-9, and he is entitled to qualified immunity, see id. at 9-10. He

also asserts that the Eleventh Amendment bars Sims' claim for

monetary damages against him in his official capacity. See id. at

10. Finally, he maintains that Sims is not entitled to compensatory

and punitive damages under 42 U.S.C. § 1997e(e) because he has not

alleged any physical injury resulting from Defendant's acts and/or

omissions. See id. at 10-11. In response to the Motion, Sims re-

asserts the facts underlying his claims, and states that he

exhausted his administrative remedies before filing the Complaint

in this Court. See Response.

V. Exhaustion of Administrative Remedies

1. Exhaustion

The PLRA requires an inmate wishing to challenge prison

conditions to first exhaust all available administrative remedies

before filing an action under 42 U.S.C. § 1983. See 42 U.S.C. §

1997e(a). Nevertheless, a prisoner such as Sims is not required to

plead exhaustion. See Jones v. Bock, 549 U.S. 199, 216 (2007).

6

Instead, the United States Supreme Court has recognized "failure to

exhaust is an affirmative defense under the PLRA[.]" Id. Notably,

exhaustion of available administrative remedies is "a precondition

to an adjudication on the merits" and is mandatory under the PLRA.

Bryant v. Rich, 530 F.3d 1368, 1374 (11th Cir. 2008). Not only is

there an exhaustion requirement, "the PLRA exhaustion requirement

requires proper exhaustion." Woodford v. Ngo, 548 U.S. 81, 93

(2006).

Because exhaustion requirements are designed

to deal with parties who do not want to

exhaust, administrative law creates an

incentive for these parties to do what they

would otherwise prefer not to do, namely, to

give the agency a fair and full opportunity to

adjudicate their claims. Administrative law

does this by requiring proper exhaustion of

administrative remedies, which "means using

all steps that the agency holds out, and doing

so properly (so that the agency addresses the

issues on the merits)." Pozo,[3] 286 F.3d, at

1024. . . .

Woodford, 548 U.S. at 90. And, "[p]roper exhaustion demands

compliance with an agency's deadlines and other critical procedural

rules . . . ." Id. As such, the United States Supreme Court has

emphasized:

Courts may not engraft an unwritten "special

circumstances" exception onto the PLRA's

exhaustion requirement. The only limit to §

1997e(a)'s mandate is the one baked into its

text: An inmate need exhaust only such

administrative remedies as are "available."

3 Pozo v. McCaughtry, 286 F.3d 1022 (7th Cir. 2002).

7

Ross v. Blake, 136 S.Ct. 1850, 1862 (2016).

The determination of whether an inmate exhausted his available

administrative remedies prior to filing a cause of action in

federal court is a matter of abatement and should be raised in a

motion to dismiss, or be treated as such if raised in a summary

judgment motion. Bryant, 530 F.3d at 1374-75 (citation omitted).

The Eleventh Circuit has explained the two-step process that the

Court must employ when examining the issue of exhaustion of

administrative remedies.

After a prisoner has exhausted the grievance

procedures, he may file suit under § 1983. In

response to a prisoner suit, defendants may

bring a motion to dismiss and raise as a

defense the prisoner's failure to exhaust

these administrative remedies. See Turner, 541

F.3d at 1081.[4] In Turner v. Burnside we

established a two-step process for resolving

motions to dismiss prisoner lawsuits for

failure to exhaust. 541 F.3d at 1082. First,

district courts look to the factual

allegations in the motion to dismiss and those

in the prisoner's response and accept the

prisoner's view of the facts as true. The

court should dismiss if the facts as stated by

the prisoner show a failure to exhaust. Id.

Second, if dismissal is not warranted on the

prisoner's view of the facts, the court makes

specific findings to resolve disputes of fact,

and should dismiss if, based on those

findings, defendants have shown a failure to

exhaust. Id. at 1082–83; see also id. at 1082

(explaining that defendants bear the burden of

showing a failure to exhaust).

4 Turner v. Burnside, 541 F.3d 1077, 1084 (11th Cir. 2008).

8

Whatley v. Warden, Ware State Prison, 802 F.3d 1205, 1209 (11th

Cir. 2015); see Pavao v. Sims, 679 F. App'x 819, 823-24 (11th Cir.

2017) (per curiam).

2. Florida's Prison Grievance Procedure

The FDOC provides an internal grievance procedure for its

inmates. See FLA. ADMIN. CODE r. 33-103.001 through 33-103.018.

Generally, to properly exhaust administrative remedies, a prisoner

must complete a three-step sequential process. First, an inmate

must submit an informal grievance to a designated staff member at

the institutional level. See FLA. ADMIN. CODE r. 33-103.005. If the

issue is not resolved, the inmate must submit a formal grievance at

the institutional level. See FLA. ADMIN. CODE r. 33-103.006. If the

matter is not resolved at the institutional level, the inmate must

file an appeal to the Office of the FDOC Secretary. See FLA. ADMIN.

CODE r. 33-103.007. However, under specified circumstances, an

inmate can bypass the informal-grievance stage and start with a

formal grievance at the institutional level. See FLA. ADMIN. CODE

r. 33-103.005(1); 33-103.006(3). Or, an inmate can completely

bypass the institutional level and proceed directly to the Office

of the FDOC Secretary by filing a "direct grievance." See FLA.

ADMIN. CODE r. 33-103.007(3). Emergency grievances and grievances

of reprisal are types of "direct grievances" that may be filed with

the Office of the Secretary. See FLA. ADMIN. CODE r.

33-103.007(3)(a).

9

Florida Administrative Code Rule 33-103.011 provides time

frames for submission of grievances. Generally, the following time

limits are applicable. Informal grievances must be received within

twenty days from the date on which the incident or action that is

the subject of the grievance occurred. See FLA. ADMIN. CODE r. 33-

103.011(1)(a). Formal grievances must be received no later than

fifteen days from the date of the response to the informal

grievance. See FLA. ADMIN. CODE r. 33-103.011(1)(b). Similarly,

grievance appeals to the Office of the Secretary must be received

within fifteen days from the date the response to the formal

grievance is returned to the inmate. See FLA. ADMIN. CODE r.

33-103.011(1)(c). Rule 33-103.011(2) provides:

An extension of the above-stated time

periods shall be granted when it is clearly

demonstrated by the inmate to the satisfaction

of the reviewing authority as defined in

paragraphs 33-103.002(15)((b) and (c), F.A.C.,

or the Secretary that it was not feasible to

file the grievance within the relevant time

periods and that the inmate made a good faith

effort to file in a timely manner. The

granting of such an extension shall apply to

the filing of an original grievance or when

re-filing a grievance after correcting one or

more deficiencies cited in rule 33-103.014,

F.A.C.

FLA. ADMIN. CODE r. 33-103.011(2). Additionally, Rule 33-103.011(4)

states:

The time limit for responding to

grievances and appeals may be extended for a

reasonable period agreeable to both parties if

the extension is agreed to in writing by the

inmate. Unless the grievant has agreed in

10

writing to an extension, expiration of a time

limit at any step in the process shall entitle

the complainant to proceed to the next step of

the grievance process. If this occurs, the

complainant must clearly indicate this fact

when filing at the next step. If the inmate

does not agree to an extension of time at the

central office level of review, he shall be

entitled to proceed with judicial remedies as

he would have exhausted his administrative

remedies. The Bureau of Policy Management and

Inmate Appeals will nevertheless ensure that

the grievance is investigated and responded to

even though an extension has not been agreed

to by the inmate.

FLA. ADMIN. CODE r. 33-103.011(4).

According to Rule 33-103.014, an informal grievance, formal

grievance, direct grievance, or grievance appeal "may be returned

to the inmate without further processing if, following a review of

the grievance, one or more . . . conditions are found to exist."

FLA. ADMIN. CODE r. 33-103.014(1). The rule provides an enumerated

list as "the only reasons for returning a grievance without a

response on the merits." See FLA. ADMIN. CODE r. 33-103.014(1)(a)-

(y). Some of the reasons for returning a grievance are as follows:

untimeliness; the grievance "addresses more than one issue or

complaint" or "is so broad, general or vague in nature that it

cannot be clearly investigated, evaluated, and responded to" or "is

not written legibly and cannot be clearly understood" or is a

supplement to a previously-submitted grievance that has been

accepted for review; and the inmate "did not provide a valid reason

for by-passing the previous levels of review as required or the

11

reason provided is not acceptable," or "used more than two (2)

additional narrative pages." See FLA. ADMIN. CODE r.

33-103.014(1)(a), (b), (c), (d), (f), (h), (q), (t), (u).

3. Sims' Exhaustion Efforts

Sims submitted a Request for Administrative Remedy or Appeal

(Log #1712-231-057), dated December 12, 2017, to the Warden. See

id. at 3-4. In the grievance, Sims stated that he had rectal

bleeding and needed a gastroenterology appointment. See id. Dr.

Cruz, M.D. denied the formal grievance on December 27, 2017,

stating in pertinent part:

[Y]our request for administrative remedy or

appeal has been received, reviewed and

evaluated[.]

[F]urther investigation into your grievance

reveals the following:

You are being followed in Chronic Clinic for

you[r] medical condition. You have been seen

in sick calls and were referred to the MD and

seen on 12/14/17 to address these concerns.

You have a pending consult to Oncology to

further address the bleeding related to your

history of prostate cancer. You have signed

the consult and an appointment is pending

soon. If you have any further questions or

concerns you may address them with medical by

access[ing] sick call. Watch for call out.

For [the] reason above[,] this . . . grievance

has been denied.

Id. at 5. The FDOC mailed a copy of the response to Sims on

December 28th. See id. Sims did not appeal the FDOC's denial.

12

Next, Sims submitted a Request for Administrative Remedy or

Appeal (Log #1802-231-103), dated February 23, 2018, to the Warden.

See id. at 1. In the grievance, Sims maintained that Figueroa

failed to follow Dr. Montoya's order that Sims consult with a

gastroenterologist. See id. Dr. Cruz denied the grievance on March

12, 2018, stating in pertinent part:

Your request for Administrative Remedy or

Appeal has been received, reviewed &

evaluated.

Investigation into your grievance reveals the

following:

There is no indication that you have been

denied access to medical or denied medical

care. You may not agree with the treatment

regimen and you have the right to refuse

treatment at any time, but that does not mean

that you are not being provided adequate care.

It is the responsibility of your health care

staff to determine the appropriate treatment

regimen for the condition you are

experiencing, including specialty consults,

medication prescriptions, diagnostic testing,

lab work, or passes. Noted in your chart on

1/20/18 is not from an appointment with you[.]

[I]t is a record review by the MD with notes

of his review of your visit with oncology.

Noting he had previously discussed your rectal

bleeding with you and that you would be

followed up [o]n [s]ite. Recommendations from

outside visits are just that, Recommendations,

not orders. The staff MD reviews the notes and

determines the plan of treatment and care. You

are followed in Chronic Clinic on a regular

basis with appointments pending. If you have

medical concerns, questions or issues you may

access sick call to have them addressed. Watch

for call outs.

Based on the foregoing[,] your grievance has

been denied.

13

Id. at 2 (capitalization deleted). The FDOC mailed a copy of the

response to Sims the next day (March 13, 2018). See id. Sims did

not receive his copy of the FDOC response until ten days later

(March 23, 2018). See id. Sims appealed the FDOC's denial to the

Secretary. See id. at 6, Request for Administrative Remedy or

Appeal (Log #18-6-13953), dated March 25, 2018. On the

administrative appeal form, Sims explained that his appeal was

timely filed based on the dormitory sergeant's handwritten notation

on Sims' copy of the FDOC response stating that Sims received the

FDOC response on March 23, 2018. See id. The FDOC Inmate Grievance

Appeals received Sims' appeal on March 30, 2018, see id., and

returned the appeal without action on May 15, 2018, stating that

appeals must be received in the FDOC Secretary's Office within

fifteen days (March 27) of the date of the institutional response

(March 12). Id. at 8.

As to the initial step in the two-part process for deciding

motions to dismiss for failure to exhaust under the PLRA, the

Eleventh Circuit has instructed:

District courts first should compare the

factual allegations in the motion to dismiss

and those in the prisoner's response and,

where there is a conflict, accept the

prisoner's view of the facts as true. "The

court should dismiss if the facts as stated by

the prisoner show a failure to exhaust." Id.[5]

5 Whatley, 802 F.3d at 1209.

14

Pavao, 679 F. App'x at 823-24. Defendant Figueroa maintains that

Sims failed to properly exhaust his administrative remedies as to

the deliberate indifference claim against him before filing this §

1983 lawsuit. See Motion 4-7. He states that Sims failed to timely

appeal the FDOC's March 12th denial of his formal grievance. See

id. at 6-7. In support of his position, Figueroa refers to Sims'

exhibits attached to the Complaint. See Doc. 1-1 at 2, 6. Sims

asserts that he exhausted his administrative remedies, see Response

at 5, and also refers to his exhibits, see Docs. 1-1 at 1-8; 14-3

at 1-6, to support his position. He proclaims that he timely filed

his appeal to the FDOC Secretary because the FDOC received it on

March 30, which is well within fifteen days of when he received the

FDOC's denial of his formal grievance (March 23). See Doc. 1-1 at

6. Accepting Sims' view of the facts as true, a dismissal of the

claims against Defendant Figueroa for lack of exhaustion is not

warranted. Thus, the Court proceeds to the second step in the two-

part process where the Court considers Defendant Figueroa's

arguments regarding exhaustion and makes findings of fact.

To exhaust his administrative remedies, Sims "was required to

appeal the denial of his formal grievance within fifteen days of

the date he received notice that the formal grievance was denied."

Jackson v. Griffin, 762 F. App'x 744, 745 (11th Cir. 2019) (per

curiam) (citing FLA. ADMIN. CODE r. 33-103.011(1)(c) (providing

that such appeals "must be received within 15 calendar days from

15

the date the response to the formal grievance is returned to the

inmate")). Thus, the Court focuses on Sims' appeal of the FDOC's

March 12, 2018 denial of his formal grievance. Receiving his copy

of the FDOC's denial on March 23, 2018, Sims presumably knew that

the remaining time to submit a timely appeal was impending.

Accordingly, within a few days, Sims handwrote the date of March

25, 2018, next to his signature on the appeal form. See Doc. 1-1 at

6. The bottom portion of the form showing a receipt of the appeal

by a prison official as to when Sims submitted the appeal and when

it was received for forwarding to the Central Office was never

completed. See id. Nevertheless, a date stamp at the top of the

form reflects that the FDOC received Sims' appeal on March 30,

2018. Notably, in returning the appeal without action, the FDOC

failed to account for the fact that Sims had not received his copy

of the FDOC's March 12th denial of his formal grievance until March

23, 2018. In light of the evidence available to the Court, the

Court finds that Sims timely submitted his appeal of the FDOC's

denial of his formal grievance, and therefore, he has properly

exhausted his administrative remedies. Thus, Defendant's Motion is

due to be denied.

VI. Eighth Amendment Deliberate Indifference Claim

Sims asserts that Defendant Figueroa violated his Eighth

Amendment right when he was deliberately indifferent to his medical

needs. Sims provides a detailed chronology of the events upon which

16

he bases his deliberate indifference medical claim against

Defendant Figueroa. See Complaint at 4-6; Response at 1-6. The

central theme of his narratives is that Defendant Figueroa failed

to timely and properly treat his rectal bleeding from August 2017

through July 2018. The Eleventh Circuit has explained the

requirements for a claim of constitutionally inadequate care:

"The Constitution does not mandate

comfortable prisons, but neither does it

permit inhumane ones . . . ." Farmer, 511 U.S.

at 832, 114 S.Ct. at 1976 (internal quotation

and citation omitted).[6] Thus, in its

prohibition of "cruel and unusual

punishments," the Eighth Amendment requires

that prison officials provide humane

conditions of confinement. Id. However, as

noted above, only those conditions which

objectively amount to an "extreme deprivation"

violating contemporary standards of decency

are subject to Eighth Amendment scrutiny.

Hudson, 503 U.S. at 8-9, 112 S.Ct. at 1000.[7]

Furthermore, it is only a prison official's

subjective deliberate indifference to the

substantial risk of serious harm caused by

such conditions that gives rise to an Eighth

Amendment violation. Farmer, 511 U.S. at 828,

114 S.Ct. at 1974 (quotation and citation

omitted); Wilson, 501 U.S. at 303, 111 S.Ct.

at 2327.[8]

Thomas v. Bryant, 614 F.3d 1288, 1306-07 (11th Cir. 2010). "To show

that a prison official acted with deliberate indifference to

serious medical needs, a plaintiff must satisfy both an objective

and a subjective inquiry." Brown v. Johnson, 387 F.3d 1344, 1351

6 Farmer v. Brennan, 511 U.S. 825 (1994).

7 Hudson v. McMillian, 503 U.S. 1 (1992).

8 Wilson v. Seiter, 501 U.S. 294 (1991).

17

(11th Cir. 2004) (quoting Farrow v. West, 320 F.3d 1235, 1243 (11th

Cir. 2003)). First, the plaintiff must satisfy the objective

component by showing that he had a serious medical need. Goebert v.

Lee Cty., 510 F.3d 1312, 1326 (11th Cir. 2007).

"A serious medical need is considered

'one that has been diagnosed by a physician as

mandating treatment or one that is so obvious

that even a lay person would easily recognize

the necessity for a doctor's attention.'" Id.

(citing Hill v. Dekalb Reg'l Youth Det. Ctr.,

40 F.3d 1176, 1187 (11th Cir. 1994)). In

either case, "the medical need must be one

that, if left unattended, pos[es] a

substantial risk of serious harm." Id.

(citation and internal quotations marks

omitted).

Brown, 387 F.3d at 1351. Next, the plaintiff must satisfy the

subjective component, which requires the plaintiff to "allege that

the prison official, at a minimum, acted with a state of mind that

constituted deliberate indifference." Richardson v. Johnson, 598

F.3d 734, 737 (11th Cir. 2010) (per curiam) (describing the three

components of deliberate indifference as "(1) subjective knowledge

of a risk of serious harm; (2) disregard of that risk; (3) by

conduct that is more than mere negligence.") (citing Farrow, 320

F.3d at 1245); Lane v. Philbin, 835 F.3d 1302, 1308 (11th Cir.

2016) (setting forth the three components) (citing Farrow, 320 F.3d

at 1245).

In Estelle[9], the Supreme Court

established that "deliberate indifference"

9 Estelle v. Gamble, 429 U.S. 97 (1976).

18

entails more than mere negligence. Estelle,

429 U.S. at 106, 97 S.Ct. 285; Farmer, 511

U.S. at 835, 114 S.Ct. 1970. The Supreme Court

clarified the "deliberate indifference"

standard in Farmer by holding that a prison

official cannot be found deliberately

indifferent under the Eighth Amendment "unless

the official knows of and disregards an

excessive risk to inmate health or safety; the

official must both be aware of facts from

which the inference could be drawn that a

substantial risk of serious harm exists, and

he must also draw the inference." Farmer, 511

U.S. at 837, 114 S.Ct. 1970 (emphasis added).

In interpreting Farmer and Estelle, this Court

explained in McElligott[10] that "deliberate

indifference has three components: (1)

subjective knowledge of a risk of serious

harm; (2) disregard of that risk; (3) by

conduct that is more than mere negligence."

McElligott, 182 F.3d at 1255; Taylor,[11] 221

F.3d at 1258 (stating that defendant must have

subjective awareness of an "objectively

serious need" and that his response must

constitute "an objectively insufficient

response to that need").

Farrow, 320 F.3d at 1245-46. Notably, the Supreme Court has stated

that a plaintiff may demonstrate the deliberate indifference of

prison officials by showing that they intentionally interfered with

prescribed treatment or intentionally denied access to medical

care. See Estelle, 429 U.S. at 104-05. Reading Sims' Complaint

liberally, as this Court must do, he provides sufficient facts to

state a cognizable Eighth Amendment deliberate indifference claim

against Defendant Figueroa, particularly given his allegations

10 McElligott v. Foley, 182 F.3d 1248 (11th Cir. 1999).

11 Taylor v. Adams, 221 F.3d 1254 (11th Cir. 2000).

19

regarding Dr. Montoya's statements. Thus, Defendant Figueroa's

Motion is due to be denied as to Sims' Eighth Amendment claim

against him.

VII. Qualified Immunity

Defendant Figueroa alternatively asserts that he is entitled

to qualified immunity. As to qualified immunity, the Eleventh

Circuit has stated:

To invoke qualified immunity, a public

official must first demonstrate that he was

acting within the scope of his or her

discretionary authority. Maddox v. Stephens,

727 F.3d 1109, 1120 (11th Cir. 2013). As we

have explained the term "discretionary

authority," it "include[s] all actions of a

governmental official that (1) were undertaken

pursuant to the performance of his duties, and

(2) were within the scope of his authority."

Jordan v. Doe, 38 F.3d 1559, 1566 (11th Cir.

1994) (internal quotation marks omitted).

Here, it is clear that Defendant Officers

satisfied this requirement, as they engaged in

all of the challenged actions while on duty as

police officers conducting investigative and

seizure functions.

Because Defendant Officers have

established that they were acting within the

scope of their discretionary authority, the

burden shifts to [the plaintiff] to

demonstrate that qualified immunity is

inappropriate. See id. To do that, [the

plaintiff] must show that, when viewed in the

light most favorable to him, the facts

demonstrate that Defendant Officers violated

[Plaintiff's] constitutional right and that

that right was "clearly established ... in

light of the specific context of the case, not

as a broad general proposition[,]" at the time

of Defendant officers' actions. Saucier v.

Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150

L.Ed.2d 272 (2001), overruled in part on other

20

grounds by Pearson, 555 U.S. 223, 129 S.Ct.

808. We may decide these issues in either

order, but, to survive a qualified-immunity

defense, [the plaintiff] must satisfy both

showings. Maddox, 727 F.3d at 1120–21

(citation omitted).

Jones v. Fransen, 857 F.3d 843, 850-51 (11th Cir. 2017).

The Eleventh Circuit also has set forth the proper analysis to

be used by a district court when considering a motion to dismiss

based on qualified immunity.

When presented with the officers' motions to

dismiss, both our precedent and precedent from

the Supreme Court instruct the district court

to analyze whether, taking [Plaintiff]'s

allegations as true, the . . . complaint

asserted a violation of a clearly established

constitutional right. See Chesser v. Sparks,

248 F.3d 1117, 1121 (11th Cir. 2001) ("[T]he

[qualified immunity] defense may be raised and

considered on a motion to dismiss; the motion

will be granted if the 'complaint fails to

allege the violation of a clearly established

constitutional right.'") (quoting Williams,

102 F.3d at 1182)[12]; Santamorena v. Ga.

Military College, 147 F.3d 1337, 1342 (11th

Cir. 1998) (affirming grant of motion to

dismiss on qualified immunity grounds because

the "complaint fail[ed] to allege the

violation of a clearly established

constitutional right"). See also Siegert v.

Gilley, 500 U.S. 226, 232, 111 S.Ct. 1789, 114

L.Ed.2d 277 (1991) ("A necessary concomitant

to the determination of whether the

constitutional right asserted by a plaintiff

is 'clearly established' at the time the

defendant acted is the determination of

whether the plaintiff has asserted a violation

of a constitutional right at all. Decision of

this purely legal question permits courts

12 Williams v. Ala. State Univ., 102 F.3d 1179, 1182 (11th Cir.

1997).

21

expeditiously to weed out suits which fail the

test without requiring a defendant who rightly

claims qualified immunity to engage in

expensive and time consuming preparation to

defend the suit on its merits."). . . .

Joseph v. Gee, 708 F. App'x 642, 643-44 (11th Cir. 2018) (per

curiam).

In the Motion, Defendant Figueroa asserts that he is entitled

to qualified immunity because he did not violate Sims' Eighth

Amendment right. However, this assertion is unavailing. The Court

has determined that Sims has stated a plausible Eighth Amendment

claim against Defendant Figueroa, and therefore, Defendant Figueroa

is not entitled to qualified immunity at this stage of the

litigation. Accordingly, the Motion is due to be denied to the

extent it is based on qualified immunity.

VIII. Eleventh Amendment

To the extent Defendant asserts that he is entitled to

Eleventh Amendment immunity, see Motion at 10, the Court agrees.

The Eleventh Amendment provides that

"[t]he Judicial power of the United States

shall not be construed to extend to any suit

in law or equity, commenced or prosecuted

against one of the United States by Citizens

of another State, or by Citizens or Subjects

of any Foreign State." U.S. Const. amend. XI.

It is well established that, in the absence of

consent, "a suit in which the State or one of

its agencies or departments is named as the

defendant is proscribed by the Eleventh

Amendment." Papasan v. Allain, 478 U.S. 265,

276, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986)

(quotation omitted). The Eleventh Amendment

also prohibits suits against state officials

where the state is the real party in interest,

22

such that a plaintiff could not sue to have a

state officer pay funds directly from the

state treasury for the wrongful acts of the

state. Summit Med. Assocs., P.C. v. Pryor, 180

F.3d 1326, 1336 (11th Cir. 1999). . . .

Hayes v. Sec'y, Fla. Dep't of Children & Families, 563 F. App'x

701, 703 (11th Cir. 2014) (per curiam).

In Zatler v. Wainwright, 802 F.2d 397, 400 (11th Cir. 1986)

(per curium), the Eleventh Circuit noted:

It is clear that Congress did not intend

to abrogate a state's eleventh amendment

immunity in section 1983 damage suits. Quern

v. Jordan, 440 U.S. 332, 340-45, 99 S.Ct.

1139, 1144-45, 59 L.Ed.2d 358 (1979).

Furthermore, after reviewing specific

provisions of the Florida statutes, we

recently concluded that Florida's limited

waiver of sovereign immunity was not intended

to encompass section 1983 suits for damages.

See Gamble,[13] 779 F.2d at 1513-20.

Accordingly, in Zatler, the court found that the FDOC Secretary was

immune from suit in his official capacity. Id. Insofar as Sims may

be seeking monetary damages from Defendant in his official

capacity, the Eleventh Amendment bars suit. Therefore, Defendant's

Motion is due to be granted as to Sims' claim for monetary damages

from him in his official capacity.

IX. Physical Injury Requirement

42 U.S.C. § 1997e(e)

Next, the Court turns to Defendant's assertion that Sims is

not entitled to compensatory and punitive damages under 42 U.S.C.

13 Gamble v. Fla. Dep't of Health & Rehab. Serv., 779 F.2d 1509

(11th Cir. 1986).

23

§ 1997e(e) because he has not alleged any physical injuries that

are more than de minimis resulting from Defendant's acts and/or

omissions. In Brooks v. Warden, 800 F.3d 1295 (11th Cir. 2015), the

Eleventh Circuit addressed the availability of compensatory and

punitive damages as well as nominal damages in suits brought by

prisoners under § 1983. The Eleventh Circuit stated:

The PLRA places substantial restrictions on

the judicial relief that prisoners can seek,

with the goal of "reduc[ing] the number of

frivolous cases filed by imprisoned

plaintiffs, who have little to lose and

excessive amounts of free time with which to

pursue their complaints." Al–Amin v. Smith,

637 F.3d 1192, 1195 (11th Cir. 2011) (quoting

Napier v. Preslicka, 314 F.3d 528, 531 (11th

Cir. 2002)). The section of the Act at issue

here, 42 U.S.C. § 1997e(e), reads this way:

No Federal civil action may be

brought by a prisoner confined in a

jail, prison, or other correctional

facility, for mental or emotional

injury suffered while in custody

without a prior showing of physical

injury or the commission of a sexual

act....

This Court has held that § 1997e(e) applies to

all federal civil actions, including

constitutional claims brought under § 1983.

See Harris v. Garner (Harris II), 216 F.3d

970, 984–85 (11th Cir. 2000) (en banc)....

In this case, [Plaintiff] did not allege

any physical injury . . . . Nevertheless, he

sought "compensatory . . . punitive, and

nominal damages" from [Defendant]. Under the

statute and our caselaw, an incarcerated

plaintiff cannot recover either compensatory

or punitive damages for constitutional

violations unless he can demonstrate a (more

than de minimis) physical injury. See Al–Amin,

24

637 F.3d at 1198 (punitive); Harris v. Garner

(Harris I), 190 F.3d 1279, 1286 (11th Cir.

1999) (compensatory), reh'g en banc granted

and opinion vacated, 197 F.3d 1059 (11th Cir.

1999), opinion reinstated in relevant part,

216 F.3d 970. However, we have never had the

opportunity in a published opinion to settle

the availability of nominal damages under the

PLRA. We do today, and we hold that nothing in

§ 1997e(e) prevents a prisoner from recovering

nominal damages for a constitutional violation

without a showing of physical injury.

Brooks, 800 F.3d at 1307-08 (emphasis added). Thus, to satisfy §

1997e(e), a prisoner must assert physical injury that is more than

de minimis. However, the injury does not need to be significant.

See Thompson v. Sec'y, Fla. Dep't of Corr., 551 F. App'x 555, 557

(11th Cir. 2014) (citation omitted); Dixon v. Toole, 225 F. App'x

797, 799 (11th Cir. 2007).

Taking Sims' allegations as to his injuries as true, he

asserts physical injuries that are greater than de minimis. Sims

complains about rectal bleeding over an extended period of time due

to Defendant's alleged failure either to refer him to an outside

specialist or timely and properly treat him at the institutional

level. See Complaint at 4-6. Sims' assertions, including his pain

and discomfort that ultimately resulted in multiple sick call

visits about the ongoing rectal bleeding, cross § 1997e(e)'s de

minimis threshold. See Thompson, 551 F. App'x at 557 n.3

(describing an approach of asking whether the injury would require

a free world person to visit a doctor or emergency room) (citing

Luong v. Hatt, 979 F. Supp. 481, 486 (N.D. Tex. 1997)). Thus,

25

Defendant's Motion is due to be denied to the extent that the Court

finds Sims' request for monetary damages is not precluded under §

1997e(e) because he alleges that he suffered physical injuries that

are plausibly greater than de minimis.

Therefore, it is now

ORDERED:

1. Defendant Figueroa's Motion to Dismiss (Doc. 8) is

PARTIALLY GRANTED as to Sims' claim for monetary damages from him

in his official capacity. Otherwise, the Motion is DENIED.

2. Defendant Figueroa, no later than September 27, 2019,

must answer or otherwise respond to the Complaint.

3. The parties shall conduct discovery so the due date of

any discovery requested is no later than January 7, 2020. Any

motions relating to discovery shall be filed by January 21, 2020.

4. All motions to dismiss and/or for summary judgment shall

be filed by February 25, 2020.14 This deadline is also applicable

to the filing of any motions or the raising of any affirmative

defenses based on qualified immunity.

5. Responses to any motions to dismiss and/or for summary

judgment shall be filed by March 25, 2020.

14 Any DVDs submitted as exhibits to a summary judgment motion

should not contain a sticker-type label. Such labels inhibit the

Court's ability to view the video footage. The case number and

other relevant information should be written with a black marker on

the DVD itself. Additionally, the Court requires the complete

transcript of any deposition submitted as an exhibit.

26

6. The parties are encouraged to discuss the possibility of

settlement and notify the Court if their efforts are successful. In

doing so, Plaintiff and Defendants are encouraged to maintain a

realistic approach in making and/or considering any settlement

offers. If the parties are unable to settle the case privately, and

want a Magistrate Judge to conduct a settlement conference, they

should notify the Court.

7. As to the taking of Plaintiff's deposition, if necessary,

the Court grants permission to Defendant's counsel. Defendant's

counsel must contact the Warden of Plaintiff's institution to

arrange an appropriate time and place for the deposition.

8. The Court expects strict compliance with the Court's

deadlines.

DONE AND ORDERED at Jacksonville, Florida, this 26th day of

August, 2019.

United States District Judge

sc 8/27

William Sims, FDOC #381271

Counsel of Record

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