# Parson v. Vanallen

> District Court, M.D. Florida · November 14, 2019

URL: https://www.frixlaw.com/law-library/cases/10104093

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** November 14, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10104093

## How later opinions describe it (automated extraction)

- explaining that “conclusory allegations, unwarranted deductions of facts or legal conclusions masquerading as facts will not prevent dismissal”
- stating that “it is the prison’s requirements, and not the PLRA, that define the boundaries of proper exhaustion”

## Opinion text

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.
17
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

18

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10104093. Public record. Not legal advice.