Pullen v. Brown

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

ALLEN PULLEN,

Plaintiff,

v. Case No. 3:18-cv-1274-J-39MCR

T.A. BROWN, et al.,

Defendants.

_______________________________

ORDER

I. Status

Plaintiff, Allen Pullen, a former inmate of the Florida

Department of Corrections (FDOC),1 is proceeding on a pro se civil

rights complaint under 42 U.S.C. § 1983 (Doc. 1; Compl.) against

ten defendants including Centurion Healthcare and Dr. Espino.

Before the Court are Centurion’s motion to dismiss (Doc. 60;

Centurion Motion) and Dr. Espino’s motion to dismiss (Doc. 63;

Espino Motion).2 Plaintiff has responded to both motions (Doc. 69;

Pl. Resp.). Accordingly, the motions are ripe for this Court’s

review.

1 Plaintiff was released on February 19, 2020. See FDOC

website, “Offender Information Search,” available at

http://www.dc.state.fl.us/OffenderSearch/Search.aspx (last

visited February 26, 2020).

2 The other served Defendants filed Answers (Docs. 52, 57).

II. Motion Standard

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

factual allegations set forth in the complaint as true. Ashcroft

v. Iqbal, 556 U.S. 662, 678 (2009). Additionally, the complaint

allegations must be construed in the light most favorable to the

plaintiff. Gill as Next Friend of K.C.R. v. Judd, 941 F.3d 504,

511 (11th Cir. 2019). When a plaintiff proceeds pro se, the court

must liberally construe the allegations. See Haines v. Kerner, 404

U.S. 519, 520-21 (1972); Bingham v. Thomas, 654 F.3d 1171, 1175

(11th Cir. 2011). However, “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.

Though detailed factual allegations are not required, Federal

Rule of Civil Procedure 8(a) demands “more than an unadorned, the-

defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at

678. As such, a plaintiff may not rely on “[t]hreadbare recitals

of the elements of a cause of action, supported by mere conclusory

statements.” Gill, 941 F.3d at 511 (quoting Iqbal, 556 U.S. at

678). Rather, the well-pled allegations must nudge the claim

“across the line from conceivable to plausible.” Bell Atlantic

Corp. v. Twombly, 550 U.S. 544, 570 (2007). A plaintiff must allege

“enough facts to state a claim to relief that is plausible on its

face.” Id.

III. Complaint Allegations

Plaintiff’s primary claim relates to an alleged assault by

corrections officers in September 2018, at Florida State Prison.

Plaintiff alleges twelve officers came to his cell to take him for

a mental health evaluation. Compl. at 9. Plaintiff says, after he

voluntarily submitted to handcuffs, including a black box,

“multiple officers ambushed [him] from behind, beat him

extensively, and sexually battered [him] . . . until [he] was

unconscious.” Id. Plaintiff asserts that before he was taken for

a medical examination, officers required him to shower to destroy

evidence of the alleged sexual assault. Id. at 9-10. Plaintiff

spent five days in the prison infirmary. Id. at 10. However,

Plaintiff contends, he did not receive a post sexual assault

evaluation or treatment. Id.

In part V of his complaint (“Statement of Claim”), Plaintiff

asserts “Defendants Espino and Centura [sic] Healthcare deprived

the Plaintiff Pullen mental care, post sexual assault, and

treatment by ignoring the Plaintiff’s sick call, request, and basic

medical needs while housed in the prison infirmary.” Id. at 7.

Plaintiff also contends Dr. Espino (and corrections officers)

threatened him with physical violence in retaliation for

exercising his First Amendment right to use the prison grievance

system. Id.

As relief, Plaintiff seeks compensatory and punitive damages,

litigation costs, and injunctive relief. Id. at 12.3

IV. Defendants’ Motions & Plaintiff’s Response

Defendant Centurion seeks dismissal for the following

reasons: (1) Plaintiff is a three-strikes litigant under the Prison

Litigation Reform Act (PLRA), 28 U.S.C. § 1915; (2) Plaintiff

failed to exhaust his administrative remedies; (3) Plaintiff fails

to state a claim; and (4) any request for monetary damages is

barred by the Eleventh Amendment. See Centurion Motion at 1.

Dr. Espino, who is represented by the same attorney as

Centurion, asserts the same defenses but also invokes qualified

immunity. See Espino Motion at 1.

Plaintiff counters as follows: (1) the three-strikes

provision does not bar his claim because the dismissals upon which

Defendants’ attorney relies were entered after he filed his

complaint in this case; (2) he properly exhausted his claims; (3)

he states a claim under the Eighth Amendment because his requests

for medical treatment were ignored or denied. See Pl. Resp. at 2-

4.

V. Analysis & Conclusions

A claim for deliberate indifference to a serious illness or

injury is cognizable under § 1983. See Estelle v. Gamble, 429 U.S.

3 Plaintiff also seeks reimbursement for lost or stolen

property. See Compl. at 12. He asserts he lost 90% of his property

following the sexual assault. Id. at 11. It is unclear whether he

attributes this allegation to any of the named Defendants.

97, 104 (1976). To state a claim for deliberate indifference, a

plaintiff must allege the following:

(1) subjective knowledge of a risk of serious

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

conduct that is more than mere negligence.

Subjective knowledge of the risk requires that

the defendant 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.”

Nam Dang by & through Vina Dang v. Sheriff, Seminole Cty. Fla.,

871 F.3d 1272, 1280 (11th Cir. 2017) (internal citations omitted).

“Where a prisoner has received . . . medical attention and

the dispute is over the adequacy of the treatment, federal courts

are generally reluctant to second guess medical judgments and to

constitutionalize claims that sound in tort law.” Hamm v. DeKalb

Cty., 774 F.2d 1567, 1575 (11th Cir. 1985) (quoting Westlake v.

Lucas, 537 F.2d 857, 860 n.5 (1st Cir. 1981)) (alteration in

original). As such, allegations of medical negligence are not

cognizable under § 1983. Estelle, 429 U.S. at 106. Instead, to

allege an Eighth Amendment violation, a prisoner must assert facts

showing the care he received was “‘so grossly incompetent,

inadequate, or excessive as to shock the conscience or to be

intolerable to fundamental fairness.’” Harris v. Thigpen, 941 F.2d

1495, 1505 (11th Cir. 1991). Alleging a “simple difference in

medical opinion” does not state a deliberate indifference claim.

Waldrop v. Evans, 871 F.2d 1030, 1033 (11th Cir. 2007).

Construing Plaintiff’s allegations liberally, as this Court

must do, the Court finds Plaintiff fails to state an Eighth

Amendment deliberate indifference claim. Assuming Plaintiff had a

serious medical need at the relevant time, Plaintiff received

medical care after the alleged assault. In fact, Plaintiff alleges

he spent five days in the prison infirmary. Compl. at 10. To the

extent Plaintiff believes he should have received more care than

what was provided in the infirmary, he alleges a mere difference

in medical opinion or suggests medical providers were negligent,

neither of which rises to the level of a constitutional violation.

See Hamm, 774 F.2d at 1575; Waldrop, 871 F.2d at 1033.4

Plaintiff’s bald assertion that Centurion and Dr. Espino

“deprived [him] mental care . . . and treatment” is a mere

conclusion unsupported by factual allegations. As such, it amounts

to no “more than an unadorned, the-defendant-unlawfully-harmed-me

accusation,” which does not satisfy the federal pleading standard.

Iqbal, 556 U.S. at 678. See also Tani v. Shelby Cty., Ala., 511 F.

App’x 854, 857 (11th Cir. 2013) (affirming dismissal of a complaint

that alleged, as labels and conclusions, violations of various

constitutional rights with no supporting facts to “explain what

actions caused which violations”).

4 In a declaration Plaintiff provides as an exhibit to his

complaint (Doc. 1-7), he even characterizes his claim as one of

“mental health negligence.”

The only factual allegation against the healthcare defendants

is directed to Dr. Espino and relates to Plaintiff’s grievance

efforts. Plaintiff simply alleges Dr. Espino ignored Plaintiff’s

request for mental health treatment and denied his grievance.

Compl. at 7.5 Accepting these allegations as true, Plaintiff does

not state a cognizable claim under § 1983. Failing to respond to

or denying a grievance or complaint does not, in and of itself,

make an individual liable for an alleged constitutional violation.

See Jones v. Eckloff, No. 2:12-cv-375-Ftm-29DNF, 2013 WL 6231181,

at *4 (M.D. Fla. Dec. 2, 2013) (unpublished) (“[F]iling a grievance

with a supervisory person does not automatically make the

supervisor liable for the allegedly unconstitutional conduct

brought to light by the grievance, even when the grievance is

denied.”) (citing Gallagher v. Shelton, 587 F.3d 1063, 1069 (10th

Cir. 2009) (“[D]enial of a grievance, by itself without any

connection to the violation of constitutional rights alleged by

plaintiff, does not establish personal participation under §

1983.”)).

In sum, Plaintiff asserts no facts permitting a reasonable

inference that Dr. Espino “acted with a state of mind that

constituted deliberate indifference,” Richardson v. Johnson, 598

5 In the grievance response, which Plaintiff provides with

his complaint (Doc. 1-3; Pl. Ex. B), Dr. Espino stated, “[y]ou

were not ignored. The request was forwarded to security with an

Incident Report and Disciplinary Report written for spoken

threats.” See Pl. Ex. B at 2.

F.3d 734, 737 (11th Cir. 2010), or that the treatment Plaintiff

received was “so grossly incompetent, inadequate, or excessive as

to shock the conscience,” Harris, 941 F.2d 1495. Even if Dr. Espino

had treated Plaintiff in the infirmary, Plaintiff does not allege

Dr. Espino knew Plaintiff had been sexually assaulted, and with

such knowledge, deliberately denied Plaintiff necessary medical

treatment. Indeed, Plaintiff alleges officers required him to

shower before they took him to the medical unit “to ensure there

[was] no evidence” of a sexual assault. Compl. at 10.

To the extent Plaintiff sues Dr. Espino in his role as “acting

medical supervisor,” see Pl. Resp. at 1, and sues Centurion because

it is a medical company under contract with the FDOC to provide

medical care for inmates, he fails to state a claim under § 1983.

Supervisory officials, including private corporations like

Centurion, cannot be held liable under § 1983 on the basis of

supervisory liability in the absence of allegations identifying a

policy or custom that was the moving force behind a constitutional

violation. See Ross v. Corizon Med. Servs., 700 F. App’x 914, 917

(11th Cir. 2017) (citing Craig v. Floyd Cty., 643 F.3d 1306, 1310

(11th Cir. 2011)). See also Cottone v. Jenne, 326 F.3d 1352, 1360

(11th Cir. 2003) (internal quotation marks and citation omitted)

(“It is well established in this Circuit that supervisory officials

are not liable under § 1983 for the unconstitutional acts of their

subordinates on the basis of respondeat superior or vicarious

liability.”). Plaintiff fails to identify an official policy or

custom Dr. Espino or Centurion adopted that resulted in a

constitutional violation.6

Because Plaintiff fails to state a claim for relief against

Defendants Centurion and Dr. Espino under the Eighth Amendment,

Plaintiff’s claims against these Defendants are subject to

dismissal.7 Generally, a pro se plaintiff should be provided an

opportunity to amend his complaint “[w]here it appears a more

carefully drafted complaint might state a claim upon which relief

can be granted.” Bank v. Pitt, 928 F.2d 1108, 1112 (11th Cir.

1991), overruled in part by Wagner v. Daewoo Heavy Indus. Am.

Corp., 314 F.3d 541, 542 (11th Cir. 2002) (en banc). However, if

an amendment would be futile, the court may dismiss the case with

prejudice. Cockrell v. Sparks, 510 F.3d 1307, 1310 (11th Cir. 2007)

6 In his response, Plaintiff states, “placing mentally ill

inmates in pun[i]tive segregation constitutes cruel and unusual

punishment.” See Pl. Resp. at 4, 5. Plaintiff alleges no facts in

his complaint directed to Defendants Centurion or Dr. Espino

suggesting he was punished because of his mental illness. See

Compl. at 9-11.

7 Plaintiff also alleges Dr. Espino retaliated against him

for exercising his right to seek redress through the prison

grievance system. See Compl. at 7. Dr. Espino does not address

this allegation in his motion. However, under the PLRA, the Court

may sua sponte assess whether a complaint fails to state a claim

for relief. See 28 U.S.C. § 1915(e)(2)(B). The Court concludes

Plaintiff’s assertion that Dr. Espino retaliated against him is

merely a conclusion not supported by factual allegations. Twombly,

550 U.S. at 570. Accordingly, Plaintiff fails to state a First

Amendment claim against Dr. Espino.

(“Leave to amend a complaint is futile when the complaint as

amended would still be properly dismissed or be immediately subject

to summary judgment for the defendant.”).

Relying on documents Plaintiff filed in support of his

complaint (Docs. 1-1 through 1-7), Defendants contend Plaintiff

did not exhaust his administrative remedies before he filed this

action. See Centurion Motion at 9; Espino Motion at 9. If Plaintiff

failed to exhaust his administrative remedies, then permitting him

to amend his claims against Centurion and Dr. Espino would be

futile.

Under the PLRA, “[n]o action shall be brought with respect to

prison conditions . . . until such administrative remedies as are

available are exhausted.” 42 U.S.C. § 1997e(a). Exhaustion of

available administrative remedies is “a precondition to an

adjudication on the merits.” Bryant v. Rich, 530 F.3d 1368, 1374

(11th Cir. 2008). See also Jones v. Bock, 549 U.S. 199, 211 (2007).

When confronted with an exhaustion defense, courts employ a two-

step process:

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.

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.

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

Cir. 2015) (internal citations omitted).

The FDOC provides an internal grievance procedure as set forth

in the Florida Administrative Code. 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

process (informal grievance, formal grievance, and appeal). See

Dimanche v. Brown, 783 F.3d 1204, 1211 (11th Cir. 2015). However,

an inmate may bypass the informal-grievance-step and proceed

directly to the formal-grievance-step when grieving a medical

issue. See Fla. Admin. Code r. 33-103.005(1).

Under the Florida Administrative Code, unless an inmate

agrees to an extension, an appeal sent to the Secretary’s office

“[s]hall be responded to within 30 calendar days from the date of

the receipt of the grievance.” See Fla. Admin. Code r. 33-

103.011(3)(c). Absent an agreed-upon extension, if an inmate does

not receive a response within 30 days, the rule provides, “he shall

be entitled to proceed with judicial remedies as he would have

exhausted his administrative remedies.” Id. 33-103.011(4).

Plaintiff filed a formal grievance for medical care on

September 25, 2018, bypassing the informal-grievance step. Pl. Ex.

B at 3. In his grievance, Plaintiff said he requested mental health

treatment two days before because he was having homicidal thoughts,

but Dr. Espino “completely ignored [him].” Id. Dr. Espino responded

on October 10, 2018, denying Plaintiff’s grievance. Id. at 2. Dr.

Espino told Plaintiff his request was not ignored but was

“forwarded to security.” Id.

Plaintiff appealed to the Secretary of the FDOC (Doc. 1-1).

Plaintiff does not provide a copy of the appeal. However, in both

an appendix to his exhibits (Doc. 1-1) and in a declaration (Doc.

1-7), Plaintiff says he filed the appeal with the Secretary’s

office on October 12, 2018. He mailed his complaint for filing

fourteen days later, on October 26, 2018. Taking as true Plaintiff

filed an appeal on October 12, 2018, he did not exhaust his

administrative remedies because he did not receive a response to

his appeal or wait the 30-day response time before filing his

complaint.

In his response, Plaintiff defends his exhaustion efforts,

saying “[n]o where does any rule state a response must be received

to exhaust.” Pl. Resp. at 3. Contrary to Plaintiff’s understanding,

the Florida Administrative Code requires that an inmate receive a

response (or wait the response time) at each step of the grievance

process before proceeding to the next step, including pursuing

judicial remedies:

[E]xpiration 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 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.

See Fla. Admin. Code Ann. r. 33-103.011(4). Moreover, the Supreme

Court has held that “the PLRA . . . requires proper exhaustion.”

Woodford v. Ngo, 548 U.S. 81, 93 (2006). “Proper exhaustion”

requires a prisoner to grieve his issues in compliance with the

agency’s procedural rules so the agency has a “full and fair

opportunity” to address a prisoner’s issues on the merits. Id. at

90.

Filing a complaint before waiting for a response to a

grievance appeal deprives the agency of a “full and fair

opportunity” to address a prisoner’s issues on the merits. Id. at

90. See also Smith v. Terry, 491 F. App’x 81, 83 (11th Cir. 2012)

(recognizing an inmate fails to properly exhaust his

administrative remedies when he initiates his lawsuit before

receiving a response or waiting for the response time to expire).

Because Plaintiff admittedly filed his complaint before either

receiving a response to his formal grievance or before the 30-day

response time expired, he did not properly exhaust his

administrative remedies as to any potential medical claims. See

Whatley, 802 F.3d at 1209.

Accordingly, it is now

ORDERED:

1. Defendant Centurion of Florida, LLC’s Motion to Dismiss

(Doc. 60) is GRANTED.

2, Defendant Dr. Espino’s Motion to Dismiss (Doc. 63) is

GRANTED.

3. Plaintiff’s claims against Defendants Centurion and Dr.

Espino are dismissed with prejudice. The Clerk is directed to

terminate these Defendants from this action.

4, Recognizing the other served Defendants have answered

Plaintiff’s Complaint (Docs. 52, 57), the parties may engage in

discovery. The Court will set deadlines by separate Order.

DONE AND ORDERED at Jacksonville, Florida, this 3rd day of

March, 2020.

BRIAN J. DAVIS

United States District Judge

Jax-6

Cc: Allen Pullen

Counsel of Record

14