Parson v. Vanallen

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

DAVION PARSON,

Plaintiff,

v.

Case No. 3:18-cv-913-J-34MCR

D. VANALLEN, et al.,

Defendants.

ORDER

I. Status

Plaintiff Davion Parson, an inmate of the Florida penal system, initiated this action

on July 26, 2018, by filing a pro se Civil Rights Complaint (Complaint; Doc. 1) with exhibits

(Docs. 1-1 through 1-3). In the Complaint, Parson asserts claims pursuant to 42 U.S.C. '

1983 against Defendants D. Vanallen, C. Lavoie, S. Thompson, R. Robert, S. Douglass,

E. Duncan, T. Hewitt, B. Warner, C. Williams, T. Beard, and G. Espino.1 He also filed a

Declaration (Doc. 5) in support of the Complaint. He alleges that Defendants Vanallen,

Lavoie, Thompson, Robert, Douglass, Duncan, Hewitt, Warner, and Williams violated his

Eighth Amendment right when they used excessive force against him on November 21,

2017, at Florida State Prison. Additionally, he asserts that Defendant Espino failed to

1 Parson also named C. Collins as a Defendant, but the Court dismissed the claims

against C. Collins on May 7, 2019. See Order (Doc. 36).

correct the misconduct and documented false information in the medical record, and

Defendant Beard stapled his facial wounds closed without cleaning and numbing the

area. As relief, he requests monetary, injunctive, and declaratory relief.

This matter is before the Court on Defendants Espino and Beard’s Motion to

Dismiss (Motion; Doc. 53). They submitted exhibits in support of the Motion. See Doc.

53-1.2 The Court advised Parson 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. 11). Parson filed a response in opposition

to the Motion. See Response to Defendants Espino and Beard’s Motion to Dismiss

(Response; Doc. 54). Thus, Defendants’ Motion is ripe for review.

II. Plaintiff’s Allegations3

Parson asserts that Defendant Vanallen escorted him to the doctor’s office on

November 21, 2017, to consult with Defendant Espino about pain in his lower back, head,

neck and left cheekbone. See Complaint at 5. He states that as he was explaining his

injuries to Espino, Vanallen screamed “what are you doing Mr. Parson pulling out a knife

on the doctor.” Id. According to Parson, Defendant Vanallen, later accompanied by

2 The Court cites to the document and page numbers as assigned by the Court’s

Electronic Case Filing System.

3 The Complaint is the operative pleading. 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.

Additionally, because this matter is before the Court on a motion to dismiss filed by Espino

and Beard, the Court’s recitation of the facts will focus on Parson’s allegations as to these

Defendants.

2

Defendants Thompson, Robert, Duncan, Williams, Warner, Douglass, Lavoie, and Hewitt,

then used excessive force against him while he was in hand, waist, and leg restraints.

See id. at 5. He avers that Dr. Espino instructed Nurse Beard to staple Parson’s facial

wounds closed to stop the bleeding. See id. at 7. According to Parson, Beard complied

with Espino’s instructions, however, she failed to clean the wounds and numb the area

before doing so. See id. at 7-8. Parson states that he “received” fourteen staples (five on

his right eyebrow and nine under his chin). Id. at 8. He maintains that he complained

about the ongoing pain in multiple sick call requests, but never saw a doctor. See id. at

9. Parson complains that he “was only given ibuprofen for the pain.” Id. Although Dr.

Espino documented in the medical record that FDOC personnel used force because

Parson reached for something on his left side, the FDOC never issued a disciplinary

report against Parson for the alleged possession of a weapon. See id. Parson believes

that Espino made the false notation because he “was told to cover up all tracks.” 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 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

3

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 “are not entitled to [an] assumption of truth.” 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

4

action.’” Alford v. Consol. Gov’t of Columbus, Ga., 438 F. App’x 837, 839 (11th Cir. 2011)4

(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).

IV. Summary of the Arguments

In the Motion, Defendants Espino and Beard request dismissal of Parson’s claims

against them because Parson 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, Defendants argue that Parson fails to state plausible

Eighth Amendment claims against them, see id. at 7-8, and they are entitled to qualified

immunity, see id. at 8-9. They also assert that the Eleventh Amendment bars Parson’s

claims for monetary damages against them in their official capacities. See id. at 9-10.

Finally, they maintain that Parson 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

Defendants’ acts and/or omissions. See id. at 10-11. In his Response, Parson maintains

that he states plausible Eighth Amendment claims against Defendants Espino and Beard.

See Response at 1-3.

4 “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

V. Exhaustion of Administrative Remedies

A. PLRA 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 Parson is not required

to plead exhaustion. See Jones v. Bock, 549 U.S. 199, 216 (2007). 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,[5] 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

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

6

limit to § 1997e(a)’s mandate is the one baked into its text: An

inmate need exhaust only such administrative remedies as

are “available.”

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.[6] 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).

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).

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

7

B. Florida’s Prison Grievance Procedure

State law “determines what steps are required to exhaust.” Dimanche v. Brown,

783 F.3d 1204, 1207 (11th Cir. 2015); see also Jones, 549 U.S. at 218 (stating that “it is

the prison’s requirements, and not the PLRA, that define the boundaries of proper

exhaustion”). The Florida Department of Corrections (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).

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

8

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). 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 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).

C. Parson’s Exhaustion Efforts

Defendants Espino and Beard maintain that Parson failed to properly exhaust his

administrative remedies as to the deliberate indifference claims against them before filing

the instant § 1983 lawsuit. See Motion 4-7. First, they assert that Parson failed to exhaust

9

when he bypassed the informal and formal grievance steps at the institutional level and

proceeded directly to the Office of the FDOC Secretary when he was required to file a

formal grievance of a medical nature at the institutional level. Next, they state that Parson

addressed more than one issue in each of the grievance appeals that he submitted to the

FDOC Secretary. See id. at 5-6. In support of their position, they submitted the relevant

grievance appeals. See Doc. 53-1. In response, Parson asserts that he exhausted his

administrative remedies, see Complaint at 9-10, and attached to the Complaint four

grievance appeals and their corresponding responses, see Doc. 1-3.

The documents attached to Parson’s Complaint reflect that Parson submitted a

Request for Administrative Remedy or Appeal (Grievance Log Number 17-6-49536),

dated December 4, 2017, to the Office of the FDOC Secretary. See Doc. 1-3 at 2-4. In

the grievance, he complained about the November 21st physical altercation with

corrections officers, Nurse Beard’s medical treatment, Dr. Espino’s notation in the medical

record, and Nurse Fox’s denial of medical care. See id. C. Neel denied the grievance on

December 19, 2017, stating:

Your appeal has been reviewed and evaluated. The subject

of your grievance was previously referred to the Office of

the Inspector General. It is the responsibility of that office to

determine the amount and type of inquiry that will be

conducted. This inquiry/review may or may not include a

personal interview with you. Upon completion of this review,

information will be provided to appropriate administrators for

final determination and handling.

Your issue regarding inadequate medical treatment is a

separate issue and should be grieved as such, also, being

initiated at the formal level.

As this process was initiated prior to the receipt of your

appeal, your request for action by this office is denied.

10

Id. at 1 (emphasis added).

Next, Parson submitted a Request for Administrative Remedy or Appeal

(Grievance Log Number 18-6-04661), dated January 9, 2018, to the FDOC Secretary.

See Doc. 1-3 at 6-10. In the grievance, Parson complained about retaliation for his

participation in the grievance procedure, the November 21st altercation with corrections

officers, and Espino and Beard’s involvement in the alleged misconduct. See id. A. Johns

denied the grievance on February 1, 2018 and provided a response similar to Neel’s

December 19th response. See id. at 5. The response, however, did not instruct Parson

to separately grieve medical issues. See id.

Parson submitted another Request for Administrative Remedy or Appeal

(Grievance Log Number 18-6-12510), dated March 18, 2018, to the FDOC Secretary.

See Doc. 1-3 at 12-16. In this grievance, Parson again complained about retaliation, the

November 21st altercation involving corrections officers, and Espino and Beard’s

involvement in the wrongdoing. See id. Neel returned the grievance without action on

March 23, 2018, stating, in pertinent part:

Your request for administrative appeal has been received in

non-compliance. This office has previously addressed this

issue in appeal log number 17-6-49536. We will not redress

this issue or your allegations, as there is no provision in the

grievance procedure to appeal a decision already rendered by

this office.

Id. at 11.

Next, Parson submitted a Request for Administrative Remedy or Appeal

(Grievance Log Number 18-6-18538), dated April 23, 2018, to the FDOC Secretary. See

11

Doc. 1-3 at 18-21. In the grievance, Parson complained about the denial of medical care

for post-use-of-force injuries. See id. Neel returned the grievance without action, stating:

Your request for Administrative Remedy or Appeal has not

been filed in compliance with Chapter 33-103.006, Inmate

Grievance Procedure. You did not provide this office with a

copy of the formal grievance filed at the institutional level as

required by rule or the reason for by-passing that level of the

grievance procedure is not acceptable.

Upon receipt of this response, if you are within the allowable

time frames for processing a grievance, you may resubmit

your grievance at your current location in compliance with

Chapter 33-103, Inmate Grievance Procedure.

Id. at 17, dated May 4, 2018.

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:

Deciding a motion to dismiss for failure to exhaust proceeds

in two steps: first, looking to the defendant’s motion and the

plaintiff’s response, the court assesses whether dismissal is

proper even under the plaintiff’s version of the facts; and

second, if dismissal is inappropriate under the plaintiff’s

version of the facts, the court makes “specific findings in order

to resolve the disputed factual issues related to exhaustion.”

Turner v. Burnside, 541 F.3d 1077, 1082 (11th Cir. 2008). The

burden is on the defendant to show a failure to exhaust. Id.

Arias v. Perez, 758 F. App’x 878, 880 (11th Cir. 2019) (per curiam). Accepting Parson’s

view of the facts as true, a dismissal of the claims against Defendants Espino and Beard

for lack of exhaustion is not warranted at the first step. Thus, the Court proceeds to the

second step in the two-part process where the Court considers Defendants’ arguments

regarding exhaustion and makes findings of fact.

A prisoner must exhaust administrative remedies as to each claim that he seeks

to present in court. See Jones, 549 U.S. at 219. Here, the Court first finds that Parson’s

12

deliberate indifference claim against Defendant Beard is one of a medical nature and is

separate and distinct from his excessive-use-of-force claims against Defendants

Vanallen, Thompson, Robert, Duncan, Williams, Warner, Douglass, Lavoie, and Hewitt.

Therefore, Parson was required to file a separate formal grievance of a medical nature at

the institutional level to address his assertion that Nurse Beard neither cleaned Parson’s

facial wounds nor numbed the area before she stapled the wounds closed. The FDOC

instructed Parson that his inadequate-medical-treatment issue “is a separate issue” that

must be grieved “as such” at the “formal level.” Doc. 1-3 at 1. Parson did not heed the

warning. He never initiated a formal grievance about Beard’s alleged medical

mistreatment, see Doc. 1-3 at 1-21, and therefore, he failed to exhaust his deliberate

indifference claim against Defendant Beard. As such, Defendants’ Motion is due to be

granted with respect to the exhaustion issue as to Parson’s Eighth Amendment deliberate

indifference claim against Defendant Beard.

Turning to Parson’s deliberate indifference claim against Espino, the Court finds

that this claim is closely related to and intertwined with the excessive-use-of-force claims

against Defendants Vanallen, Thompson, Robert, Duncan, Williams, Warner, Douglass,

Lavoie, and Hewitt. Parson asserts that Espino lied and tried to cover up Defendants’

wrongdoing when he made a false notation in the medical record. The FDOC notified

Parson that the subject of his grievance had been referred to the Office of the Inspector

General. See Doc. 1-3 at 1. Logically, this would have included Parson’s assertions

against Espino for his involvement in the wrongdoing. Thus, the Court finds that Parson

sufficiently exhausted the administrative grievance procedure as to his claim against

Espino. As such, to the extent Espino sought dismissal of Parson’s Eighth Amendment

13

deliberate indifference claim against him for failure to exhaust, the Motion is due to be

denied.

VI. Eighth Amendment Deliberate Indifference Claims

In his Complaint, Parson asserts that Defendant Espino violated his Eighth

Amendment right when he made a false notation in the medical record stating that officers

used force against Parson when he “reached for something on his left side.” Complaint

at 9. He also states that Espino instructed Nurse Beard to staple Parson’s facial wounds

closed to stop the bleeding. See id. at 7. Defendant Espino maintains that Parson fails to

state a plausible Eighth Amendment claim against him because he treated Parson for his

medical complaints and later instructed Nurse Beard to treat Parson’s post-use-of-force

facial injuries. See Motion at 7-8.

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).[7] 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.[8] 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

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

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

14

1974 (quotation and citation omitted); Wilson, 501 U.S. at 303,

111 S.Ct. at 2327.[9]

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 (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).

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

15

[T]he Supreme Court established that “deliberate

indifference” entails more than mere negligence. Estelle,[10]

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 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, [11]

182 F.3d at 1255; Taylor,[12] 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.

Parson asserts that Dr. Espino inquired about his “medical problems” during the

medical examination until Officer Vanallen screamed “what are you doing Mr. Parson

pulling out a knife on the doctor.” Complaint at 5. According to Parson, Dr. Espino ceased

medical treatment when Vanallen voiced his concern about a knife, and then after the

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

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

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

16

officers’ use of force against Parson, he instructed Nurse Beard to staple Parson’s facial

wounds closed to stop the bleeding. Id. at 7. Dr. Espino’s notation in the medical record

represents his observation of what he perceived during the medical examination. See

Doc. 1-1 at 2 (noting that the inmate “appeared to go for something” hidden on his left

side, and when confronted by the officers, a use of force ensued to subdue the inmate).

In the Complaint, Parson avers that he never received a disciplinary report for “the said

weapon” in the doctor’s office that day. Complaint at 9. These allegations fail to identify

any serious medical need to which Espino was deliberately indifferent.13 Thus, taking

Parson’s allegations as true, as this Court must do, he fails to state a plausible Eighth

Amendment deliberate indifference claim against Defendant Espino. As such,

Defendants’ Motion is due to be granted as to Parson’s Eighth Amendment deliberate

indifference claim against Defendant Espino.14

Therefore, it is now

ORDERED:

1. Defendants Espino and Beard’s Motion to Dismiss (Doc. 53) is PARTIALLY

GRANTED only to the extent that (1) Parson’s Eighth Amendment claim against

Defendant Beard is dismissed without prejudice for failure to exhaust his administrative

remedies, and (2) Parson’s claim against Defendant Espino is dismissed with prejudice

13 To the extent Parson is complaining about the use of staples rather than sutures

or some other procedure, such a complaint would be at most a claim of negligence or a

disagreement with Espino’s medical treatment choice, neither of which would be sufficient

to state a claim of deliberate indifference to a serious medical condition.

14 For this same reason, Defendant Espino’s assertion of his right to qualified

immunity would provide an alternative basis for dismissal.

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for failure to state a plausible Eighth Amendment claim against him. Otherwise, the Motion

is DENIED.

2. The Clerk shall terminate Dr. G. Espino, M.D. and Nurse Beard as

Defendants in the case.

3. The Court will set deadlines for discovery and the filing of dispositive

motions by separate order.

4. The parties are encouraged to discuss settlement, and notify the Court of

their efforts by December 12, 2019. If the parties settle the case privately among

themselves, they must notify the Court immediately.

DONE AND ORDERED at Jacksonville, Florida, this 13th day of November, 2019.

United States District Judge

sc 11/12

Davion Parson, FDOC # C09283

Counsel of Record

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