Zink v. Colobani

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

KENNETH ZINK,

Plaintiff,

v. Case No. 3:18-cv-575-J-39PDB

DR. LESLIE COLOMBANI and

DR. LARRY HENDERSON,

Defendants.

_______________________________

ORDER

I. Status

Plaintiff, Kenneth Zink, an inmate of the Florida Department

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

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

medical providers at Hamilton Correctional Institution (HCI): Dr.

Leslie Colombani and Dr. Larry Henderson. Before the Court are

Defendants’ motions to dismiss (Doc. 21; Colombani Motion) (Doc.

22; Henderson Motion) (together, “Motions”). Plaintiff responded

to both motions (Doc. 18; Pl. Initial Resp.) (Doc. 24; Pl. Resp.).1

Accordingly, the motions are ripe for this Court’s review.

1 The motions before the Court are the second motions to

dismiss Defendants filed. The Court denied Defendants’ original

motions without prejudice to refiling so they could obtain

grievance records in support of an exhaustion defense. See Order

(Doc. 20). In responding to the motions before the Court, Plaintiff

addressed only the exhaustion issue, which Defendants did not raise

in their original motions. See Pl. Resp. at 1. In his response to

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.” Id. 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,

Defendants’ original motions, Plaintiff responded to Defendants’

other arguments. See Pl. Initial Resp. at 1.

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 alleges Defendants were deliberately indifferent to

his serious medical needs.2 See Compl. at 9. Plaintiff describes

himself as a “sixty[-]one[-]year[-]old disabled veteran” who

entered the FDOC’s custody with serious medical issues, including

chronic pain in his right hip. Id. at 5, 7. Plaintiff alleges he

has been “in constant pain” following hip surgery because the “the

screws holding the ball of the bone are scraping the socket.” Id.

at 7. He has trouble sleeping and uses a walker. At the time he

filed his complaint, Plaintiff had been attempting to “receive

proper medical care” for over a year. Id.

Plaintiff initially treated with Dr. Colombani, who Plaintiff

alleges agreed to send him to Lake Butler to see an orthopedist

for pain management or a hip replacement. Id. According to

Plaintiff, Dr. Colombani did not send him for the treatment Dr.

Colombani recognized Plaintiff needed. Id. Plaintiff also asserts

Dr. Colombani prescribes medication that does not relieve his pain

2 Plaintiff asserts his claims arise under the Fifth and

Fourteenth Amendments. See Compl. at 6. However, liberally

construing his allegations, it is apparent he intends to assert a

claim under the Eighth Amendment for deliberate indifference to

his serious medical needs. Accordingly, the Court construes

Plaintiff’s pro se complaint as an attempt to state a claim under

the Eighth Amendment.

and aggravates his serious, painful stomach condition; fails to

approve a double mat to help Plaintiff sleep; and denies requests

for multi-vitamins for bone health. Id. at 8. Plaintiff alleges he

has “discussed these issues [with Dr. Colombani] many times,” and

Dr. Colombani says “he does not like [Plaintiff’s] attitude.” Id.

Plaintiff treated with Dr. Henderson for the first time on

March 8, 2018. Id. at 8. Plaintiff alleges Dr. Henderson

acknowledges the chronic pain he experiences “but refuses to

prescribe proper pain medication and tells [Plaintiff] it will be

better tomorrow.” Id.

Plaintiff seeks injunctive relief (an order directing

Defendants to cease their deliberate indifference to Plaintiff’s

serious medical needs), compensatory damages, litigation costs,

and any other relief the Court deems appropriate. Id. at 10.

IV. Defendants’ Motions & Plaintiff’s Response

Defendants argue they are entitled to relief because (1)

Plaintiff failed to exhaust his administrative remedies, (2)

Plaintiff fails to state a claim for deliberate indifference under

the Eighth Amendment, (3) they are entitled to qualified immunity,

(4) any request for monetary damages is barred by the Eleventh

Amendment, and (5) Plaintiff’s request for compensatory damages is

barred because he alleges no physical injury. See Motions at 1. In

support of their motions, Defendants provide duplicate copies of

grievance records (Docs. 21-1, 22-1; Def. Ex. A).

In response to the exhaustion defense, Plaintiff attaches

grievance records (Doc. 24-2; Pl. Ex. B), which he says show he

properly exhausted his administrative remedies before filing his

complaint. See Pl. Resp. at 1. In his initial response, Plaintiff

argues he states a deliberate-indifference claim under the Eighth

Amendment. See Pl. Initial Resp. at 3-4.

V. Analysis & Conclusions

A. Eleventh Amendment Immunity

Defendants raise the defense of sovereign immunity to the

extent Plaintiff is seeking monetary damages from them in their

official capacities. See Motions at 1, 8. Plaintiff concedes he

sues Defendants solely in their individual capacities. See Pl.

Initial Resp. at 7. As such, Defendants’ motions in this regard

are due to be denied as moot.

B. Exhaustion of Administrative Remedies

The Prison Litigation Reform Act (PLRA) provides, “[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. . . .

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 Supreme Court has

held “the PLRA . . . requires proper exhaustion,” which means a

prisoner must 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. Woodford v. Ngo, 548

U.S. 81, 90, 93 (2006).

In Florida, to properly exhaust administrative remedies, a

prisoner must complete a three-step process (informal grievance,

formal grievance, and appeal), as set forth in the Florida

Administrative Code. See Fla. Admin. Code r. 33-103.001 through

33-103.018. See also Dimanche v. Brown, 783 F.3d 1204, 1211 (11th

Cir. 2015). If, at any level of the process, an inmate does not

receive a timely institutional response, the inmate may proceed to

the next step:

[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.

Fla. Admin. Code r. 33-103.011(4). 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.” Fla. Admin. Code r. 33-103.011(3)(c).

Under the first step of the exhaustion analysis, the Court

must accept as true Plaintiff’s contention that he properly

exhausted his claims. See Whatley, 802 F.3d at 1209; Pl. Resp. at

1. Accordingly, the Court proceeds to the second step of the

analysis. Upon review, the Court finds the grievance records show

Plaintiff properly and fully exhausted his administrative

remedies, giving the FDOC a “full and fair opportunity” to address

his issues on the merits before filing this lawsuit. See Woodford,

548 U.S. at 90.

On August 4, 2017, Plaintiff submitted an informal grievance

to the medical department complaining the medication doctors

prescribed for his pain was negatively affecting his hernia

condition. See Pl. Ex. B at 2-3; Def. Ex. A at 5.3 Plaintiff said

3 Defendants omit the second page of this grievance document.

They also incorrectly represent to the Court that Plaintiff did

not address the medical issue that is the subject of this lawsuit.

See Motions at 4; Def. Ex. A. In his grievance, Plaintiff does

alert prison officials to the medical issue that is the basis of

this lawsuit. He says he cannot take “standard medication” because

it irritates another medical condition. See Pl. Ex. B at 2-3.

he suffers from debilitating pain, and the medication doctors

prescribed irritates his stomach. Pl. Ex. B at 3. An official at

HCI denied Plaintiff’s informal request on August 17, 2017. Id. at

2. Within four days, Plaintiff appealed the decision by filing a

formal grievance to the Warden of HCI. Id. at 4. Prison officials

denied Plaintiff’s formal grievance, telling Plaintiff to access

sick call or declare an inmate emergency. Id. at 7.

Plaintiff then appealed to the office of the Secretary of the

FDOC.4 The Secretary’s office did not respond to Plaintiff’s

grievance appeal until nine months later, on June 14, 2018. Id. at

10. Given the Secretary’s office did not timely respond to

Plaintiff’s appeal, he was permitted to “proceed with judicial

remedies” after the response time of thirty days expired. See Fla.

Admin. Code r. 33-103.011(4). Plaintiff filed his complaint in

April 2018, well after the thirty-day response time.

The records show Plaintiff followed the three-step grievance

process. Accordingly, under the second step of the exhaustion

analysis, Defendants fail to show Plaintiff did not exhaust his

administrative remedies.

4 The prison official who processed Plaintiff’s appeal did

not log the date Plaintiff submitted it. Plaintiff dated the appeal

September 8, 2017. See Pl. Ex. B at 8. For some reason, Plaintiff’s

appeal was not received by the Secretary’s office until September

19, 2017. Id.

C. Deliberate Indifference & Qualified Immunity

A claim for deliberate indifference to a serious illness or

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

97, 104 (1976). To state a claim, a plaintiff first must allege he

had a serious medical need. Brown v. Johnson, 387 F.3d 1344, 1351

(11th Cir. 2004). Next, the plaintiff must “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).

A plaintiff states a claim for deliberate indifference to a

serious medical need when he alleges “prison officials have

prevented [him] from receiving recommended treatment or when [he]

is denied access to medical personnel capable of evaluating the

need for treatment.” Ancata v. Prison Health Servs., Inc., 769

F.2d 700, 704 (11th Cir. 1985). “The knowledge of the need for

medical care and intentional refusal to provide that care has

consistently been held to surpass negligence and constitute

deliberate indifference.” Id. See also McElligott v. Foley, 182

F.3d 1248, 1255 (11th Cir. 1999) (“We have repeatedly found that

‘an official acts with deliberate indifference when he or she knows

that an inmate is in serious need of medical care, but he fails or

refuses to obtain medical treatment for the inmate.’”).

The Eleventh Circuit has recognized that, even when a prisoner

receives some medical treatment, a plaintiff states a claim for

deliberate indifference if he alleges the care he received was “so

cursory as to amount to no treatment at all,” was grossly

inadequate, or was guided by a “decision to take an easier but

less efficacious course of treatment.” McElligott, 182 F.3d at

1255. See also Nam Dang, 871 F.3d at 1280. However, 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).

Applying the above Eighth Amendment legal principles and

construing Plaintiff’s pro se complaint liberally, the Court finds

Plaintiff alleges a claim for deliberate indifference. As to the

objective component, Defendants do not dispute Plaintiff alleges

a serious medical need. See Motions at 6. They argue, however,

Plaintiff fails to allege they had “subjective knowledge of a

substantial risk of serious harm” and disregarded that risk by

conduct that was more than negligent. Id. Defendants assert

Plaintiff’s allegations demonstrate he received medical care, and

he only desires different modes of treatment. Id. at 7.

While Plaintiff’s pro se complaint is not a model of clarity,

Plaintiff alleges enough to nudge the claim “across the line from

conceivable to plausible.” Twombly, 550 U.S. at 570. Plaintiff

alleges Defendants knew the medication they prescribed for his

chronic pain was ineffective and irritated another medical issue

and, despite such knowledge, intentionally refused to provide

medically necessary care, including effective pain medication and

referral to an orthopedist. See Compl. at 7-8. Thus, Plaintiff

alleges more than a mere disagreement with medical treatment.

Liberally construing his allegations, Plaintiff alleges the care

provided was grossly inadequate or was “so cursory as to amount to

no treatment at all.” See Ancata, 769 F.2d at 704. Such

allegations, if true, constitute an Eighth Amendment violation.

Id. (“Intentional failure to provide [treatment] acknowledged to

be necessary is the deliberate indifference proscribed by the

Constitution.”).

Because Plaintiff states a claim for deliberate indifference,

Defendants are not entitled to qualified immunity. See Hill v.

Dekalb Reg’l Youth Det. Ctr., 40 F.3d 1176, 1186 (11th Cir. 1994),

overruled in part on other grounds by Hope v. Pelzer, 536 U.S. 730

(2002) (“A finding of deliberate indifference necessarily

precludes a finding of qualified immunity.”).

D. Physical Injury

The PLRA requires a plaintiff seeking damages to demonstrate

the alleged constitutional violation caused a physical injury. See

42 U.S.C. § 1997e(e) (“No Federal civil action may be brought by

a prisoner confined in a jail, prison, or other correctional

facility, for mental or emotional injury suffered while in custody

without a prior showing of physical injury.”). A physical injury

is one that is not simply de minimis, though it “need not be

significant.” See Thompson v. Sec’y, Fla. Dep’t of Corr., 551 F.

App’x 555, 557 (11th Cir. 2014); Dixon v. Toole, 225 F. App’x 797,

799 (11th Cir. 2007) (citing Harris v. Garner, 190 F.3d 1279, 1286

(11th Cir. 1999)).

The Eleventh Circuit has cited with approval the following

test to determine whether a prisoner sustained the requisite

physical injury: whether the injury would require a free world

person to visit an emergency room or doctor. Thompson, 551 F. App’x

at 557 n.3 (citing Luong v. Hatt, 979 F. Supp. 481, 486 (N.D. Tex.

1997)). Under this test, bruising, scrapes, and temporary soreness

are de minimis injuries. Dixon, 225 F. App’x at 799 (holding that

bruising or welts caused by application of physical restraints

were de minimis); Mann v. McNeil, 360 F. App’x 31, 32 (11th Cir.

2010) (holding vague back injuries and scrapes amounted to de

minimis injuries).

Here, Plaintiff alleges Defendants’ failure to properly

address his medical needs causes severe pain that is not merely

temporary, and his allegations permit the inference that in the

free world, the pain he suffers would require him to seek medical

treatment. See Compl. at 8. The Court is unwilling to find that

requiring a prisoner to endure constant pain is a de minimis injury

as a matter of law. Whether Plaintiff sustained more than a de

minimis injury as a result of Defendants’ alleged conduct would

more properly be raised in a Rule 56 motion with supporting medical

records, affidavits, and other relevant documents.

Accordingly, it is

ORDERED :

1. Defendant Colombani’s Motion to Dismiss (Doc. 21) is

DENIED.

2. Defendant Henderson’s Motion to Dismiss (Doc. 22) is

DENIED.

3, Defendants must answer Plaintiff’s Complaint (Doc. 1)

within twenty days of the date of this Order.

DONE AND ORDERED at Jacksonville, Florida, this 17th day of

March, 2020.

4 4 De

af J. DAVIS

United States District Judge

Jax-6

Cc:

Kenneth Zink

Counsel of Record

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