Davis v. Lockett

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

OCALA DIVISION

KENNETH LOUIS DAVIS, JR.,

Plaintiff,

v. Case No. 5:18-cv-226-Oc-40PRL

CHARLES LOCKETT, DR. GARY VENUTO,

FNU MEZYK, FNU HENDERSON, and

JOHN/JANE DOES,

Defendants.

________________________________

ORDER

Plaintiff, an inmate at the Coleman Federal Correctional Complex, alleges in his

pro se complaint1 that Defendants violated his constitutional rights in their care for his

seizure disorder, resulting in a Dilantin overdose that has had lasting effects. (Doc. 1.)

The Defendants have moved to dismiss Plaintiff’s case pursuant to Rule 12(b)(6) of the

Federal Rules of Civil Procedure, alleging that he has failed to exhaust his administrative

remedies under the Prison Litigation Reform Act (PLRA), has failed to state a claim, and

that Defendants Mezyk and Henderson are entitled to absolute immunity as officers of

the U.S. Public Health Service. (Doc. 20.) Defendant has filed a response in opposition.

(Doc. 25.)

1 The complaint is filed pursuant to Bivens v. Six Unknown Named Agents of the Fed.

Bureau of Narcotics, 403 U.S. 388 (1971) (authorizing suits against individual federal officials). However,

as discussed later in this Order, Plaintiff also appeared to assert a Federal Tort Claims Act (FTCA) in his

Complaint, but the form only contemplated constitutional actions.

For the reasons discussed below, Defendants’ Motion to Dismiss is due to be

granted in part and denied part, with Plaintiff given leave to amend to file a complaint

pursuant to the FTCA.

A. Plaintiff’s Complaint

The allegations of Plaintiff’s Complaint,2 taken as true for the purposes of the Motion

to Dismiss, are as follows: On February 19, 2016, while at FCC Coleman, Plaintiff had his

blood drawn by medical staff. (Doc. 1, p. 7.) On February 20, he reported back to the

medical department and his Dilantin level was 64.2, which is three times the therapeutic

level and life-threatening. Id. at 7, 9. On February 22, Plaintiff passed out at the dining

hall and was transported to a local hospital. Id. at 9. Tests showed serious Dilantin

toxicity. Id. Plaintiff was treated and released back to FCC Coleman. Id.

Plaintiff describes a number of injuries, although it is unclear which is attributable

to head trauma he received at Tucson U.S.P. or the subsequent Dilantin overdose at FCC

Coleman. Id. at 10. These injuries include: weight loss; insomnia; tremors; trouble

concentrating; memory problems; vision impairment; hair loss; headaches; brain damage;

and inability to maintain a conversation. Id. Plaintiff complains that he is still not

receiving adequate treatment for his condition. Id. at 11. For relief, Plaintiff seeks transfer

to Petersburg F.C.I.; treatment with a neurologist and psychologist; monetary damages;

and lost wages. Id. at 11-12.

2 Plaintiff’s complaint contains several claims arising at Tucson U.S.P. Those claims were dismissed

without prejudice on November 27, 2018, as misjoined. Accordingly, the factual summary only describes

the claims arising at FCC Coleman.

B. Standard of Review

In passing on a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil

Procedure, the Court is mindful that “[d]ismissal of a claim on the basis of bare bones

pleadings is a precarious disposition with a high mortality rate.” Int’l Erectors, Inc. v.

Wilhoit Steel Erectors Rental Serv., 400 F.2d 465, 471 (5th Cir. 1968). Thus, for the purposes

of a motion to dismiss, the Court must view the allegations of the complaint in the light

most favorable to the plaintiff, consider all of the allegations of the complaint as true, and

accept all reasonable inferences that might be drawn from such allegations. Jackson v.

Okaloosa County, Fla., 21 F.3d 1531, 1534 (11th Cir. 1994); Scheuer v. Rhodes, 416 U.S. 232,

236 (1974). Furthermore, the Court must limit its consideration to the complaint and

written instruments attached as exhibits. Fed. R. Civ. P. 10(c); GSW, Inc. v. Long County,

Ga., 999 F.2d 1508, 1510 (11th Cir. 1993).

Once a claim has been stated adequately, it may be supported by showing any set

of facts with the allegations of the complaint. Bell Atlantic Corp. v. Twombly, 550 U.S. 544

(2007). However, “while notice pleading may not require that the pleader allege a

‘specific fact’ to cover each element of a claim, it is still necessary that a complaint contain

either direct or inferential allegations respecting all the material elements necessary to

sustain a recovery under some viable legal theory.” Roe v. Aware Woman Center for Choice,

253 F.3d 678, 683 (11th Cir. 2001).

C. Exhaustion Requirement of the PLRA

The PLRA, at 42 U.S.C. § 1997e, reads:

(a) Applicability of Administrative Remedies. No action shall be brought

with respect to prison conditions under section 1983 of this title, or any

other Federal law, by a prisoner confined in any jail, prison, or other

correctional facility until such administrative remedies as are available

are exhausted.

Plaintiff is required to exhaust his administrative remedies before filing suit,

regardless of the relief offered through administrative procedures. Alexander v. Hawk, 159

F.3d 1321, 1325 (11th Cir. 1998).

The Bureau of Prisons has a three-level administrative remedy process if informal

resolution procedures fail to achieve the inmate’s desired results. See 28 C.F.R. § 542.10,

et seq. The administrative remedy process is begun by filing a Request for Administrative

Remedy at the institution where the inmate is incarcerated. If the inmate's complaint is

denied, he may file a Regional Appeal with the Regional Office for the geographic region

in which the inmate is confined. If the Regional Office denies relief, the inmate can

appeal to the Office of General Counsel. Proper exhaustion requires the completion of

all three steps of review. Irwin v. Hawk, 40 F.3d 347, 349, n. 2 (11th Cir. 1994) ( “An inmate

has not fully exhausted his administrative remedies until he has appealed through all

three levels.”); Jones v. Bock, 549 U.S. 199, 211 (2002) (unexhausted claims are not

permitted).

D. Discussion

1. Exhaustion

Defendants contend that Plaintiff did not properly exhaust his claim because

“[t]here is no record he followed the instructions and filed at the institutional level.”

(Doc. 20, p. 6.) In support of their claim, Defendants have provided neither a declaration

of a records custodian nor any actual copies of the administrative remedies filed by

Plaintiff. They have instead provided two computer-generated summaries of the

remedies filed by Plaintiff. Id. at Exhs. 1-2.

However, in his response in opposition, Plaintiff has provided several documents

demonstrating that he did file a grievance at the institutional level and that his remedies

were potentially mishandled by the BOP. (Doc. 25.) First, Plaintiff has attached an

Informal Resolution Form that appears to be signed by BOP officials and given to his

counselor on March 7, 2017. Id. at 9. The form also notes that a BP-9 was issued to Plaintiff

on March 18, 2017 and returned to the counselor on March 20, 2017. Id. Plaintiff also

includes letters dated May 11 and May 25, 2017, from Correctional Counselor M. Ureña

to the Regional Office. Both letters stated that Plaintiff’s BP-9 was submitted in March

2017, with a reply still pending. Citing BOP policy, Counselor Ureña explained that due

to the delay in response the Regional Office could proceed with the administrative

remedy process. Id.; See also BOP Program Statement 1330.17 (if an inmate does not

receive a response within 20 calendar days, “the inmate may consider the absence of a

response to be a denial at that level.”)

Based on the record before the Court,3 Defendants are not entitled to the

affirmative defense of failure to exhaust administrative remedies, and in that respect their

Motion to Dismiss is denied.

3 “Jurisdictional challenges . . . can be decided without reference to the merits of the underlying claim and

lie within the exclusive province of the trial court. Consequently, when a defendant challenges subject

matter jurisdiction the district court is free to independently weigh facts” and look beyond the four corners

of the complaint. Morrison v. Amway Corp., 323 F.3d 920, 924-35 (11th Cir. 2003) (nothing that in resolving

a factual attack on subject matter jurisdiction, the district court may consider extrinsic evidence, such as

2. Deliberative Indifference to Medical Needs

Defendants argue that Plaintiff has failed to state constitutional claim. In Estelle v.

Gamble, 429 U.S. 97 (1976), the Supreme Court held that deliberate indifference to the

serious medical needs of prisoners violates the Eighth Amendment prohibition against

cruel and unusual punishment. “To prevail on a deliberate indifference to serious

medical need claim, [a plaintiff] must show: (1) a serious medical need; (2) the defendants'

deliberate indifference to that need; and (3) causation between that indifference and the

plaintiff's injury.” Mann v. Taser Intern., Inc., 588 F.3d 1291, 1306–07 (11th Cir. 2009). To

establish the second element, deliberate indifference to the serious medical need, the

plaintiff must show: “(1) subjective knowledge of a risk of serious harm; (2) disregard of

that risk; and (3) by conduct that is more than mere negligence.” Brown v. Johnson, 387

F.3d 1344, 1351 (11th Cir.2004); see also Farmer v. Brennan, 511 U.S. 825, 837 (1994)

(explaining that the plaintiff must show that the defendant was “both [ ] aware of facts

from which the inference could be drawn that a substantial risk of serious harm exist[ed],

and he must also [have] draw[n] the inference”).

Here, taking Plaintiff’s allegations as true, he has alleged that he had a serious

medical need (Dilantin toxicity); that the Defendants knew of this by virtue of his

February 19, 2019, blood tests; that Defendants ignored the toxic levels; and as a result,

Plaintiff passed out two days later and required emergency hospitalization. Based on

these facts, Plaintiff has stated a claim for deliberate indifference to his medical needs.

testimony and affidavits). Accordingly, the Court may consider the evidence presented by the parties in

deciding whether subject matter jurisdiction exists in this case.

3. Supervisory Liability

To the extent Plaintiff alleges that Warden Lockett is liable for his alleged lack of

medical care he is a supervisor, his claim fails. “It is well established in this circuit that

supervisory officials are not liable under Bivens for the unconstitutional acts of their

subordinates on the basis of respondeat superior or vicarious liability.” Gonzalez v. Reno,

325 F.3d 1228, 1234 (11th Cir.2003) (quotation and alteration omitted); Corbett v. Transp.

Sec. Admin., 568 F. App'x 690, 697 (11th Cir.2014). The standard for which a supervisor is

held liable is “extremely rigorous”—supervisors can be held liable when “‘the supervisor

personally participates in the alleged constitutional violation or when there is a causal

connection between actions of the supervising official and the alleged constitutional

violation.’“ Gonzalez, 325 F.3d at 1234 (quoting Braddy v. Fla. Dep't of Labor & Employment

Sec., 133 F.3d 797, 802 (11th Cir.1998)); Corbett, 568 F. App'x at 697.

Plaintiff has failed to allege facts that would state a claim against Warden Lockett

for supervisory liability. He has alleged neither personal participation in the alleged

violation nor a causal connection.

4. Absolute Immunity

Defendants Mezyk and Henderson argue that Plaintiff’s Bivens claim against them

individually are due to be dismissed because they are immune by virtue of their position

as Public Health Service (PHS) officers. See 42 U.S.C. § 233(a); Hui v. Castaneda, 559 U.S.

799, 802 (2010) (holding that “based on the plain language of § 233(a), we conclude that

PHS officers and employees are not personally subject to Bivens actions for harms arising

out of such conduct.”).

In support of their claims of absolute immunity, Defendants Mezyk and

Henderson have attached sworn declarations stating that they are officers in the United

States Public Health Service. (Doc. 20, Exhs. 4, 5.) However, “[c]onsideration of matters

beyond the complaint is improper in the context of a motion to dismiss . . .” Milburn v.

United States, 734 F. 2d 762, 765 (11th Cir. 1984). Accordingly, dismissal under Rule

12(b)(6) as to Defendants’ assertions of absolute immunity is not appropriate, as it

requires to look beyond the Complaint and to the sworn declaration attached to the

motion to dismiss.

5. Federal Tort Claims Act (FTCA)

Although Plaintiff does not specifically reference the Federal Tort Claims Act in

his Complaint and he did not name the United States as a defendant, the Court notes that

under the “Basis for Jurisdiction” section, he is only given the option of constitutional

claims. (Doc. 1, p. 5.) Under “Statement of Claim,” Plaintiff wrote “Medical Neglect

Negligence.” Id. at 6. Furthermore, in his response to the Motion to Dismiss, Plaintiff

attaches a copy of his Administrative Tort Claim, indicating that does intend to pursue a

tort claim against the United States. Id. at Exh. I. Accordingly, Plaintiff will be given the

opportunity to amend his Complaint.

E. Conclusion

Upon due consideration, it is ORDERED:

1. Defendants’ Motion to Dismiss (Doc. 20) is GRANTED IN PART and DENIED

IN PART. Plaintiff’s claims against Warden Lockett are DISMISSED. The

Clerk is directed to terminate him as a Defendant. In all other respects, the

motion is DENIED.

2. The Clerk is directed to send Plaintiff a blank complaint form for federal

prisoners.

3. Plaintiff shall submit his Amended Complaint within TWENTY-ONE (21)

DAYS of the date of this Order. Plaintiff is advised that the United States is the

proper defendant in an FTCA action. The Amended Complaint will supersede

the original Complaint - Plaintiff shall not reference the original Complaint

and shall include all claims and defendants in the Amended Complaint.

Plaintiff shall not include any claims related to Tucson U.S.P. or Warden

Lockett, as they have already been dismissed. Failure to comply may result in

the dismissal of this case without further notice.

4, Within FOURTEEN (14) DAYS of the filing of the Amended Complaint,

Defendants Venuto, Mezyk, and Henderson shall file an Answer; the United

States shall file a responsive pleading within that same time period.

DONE AND ORDERED in Orlando, Florida, on February 24, 2020.

<— /

PAUL G.

UNITED STATESDISTRICT JUDGE

Copies furnished to:

Counsel of Record

Unrepresented Parties

SA: OCAP-2