# Zink v. Colobani

> District Court, M.D. Florida · March 17, 2020

URL: https://www.frixlaw.com/law-library/cases/10104719

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** March 17, 2020
- **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/10104719

## How later opinions describe it (automated extraction)

- holding that bruising or welts caused by application of physical restraints were de minimis
- holding vague back injuries and scrapes amounted to de minimis injuries

## Opinion text

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

13

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10104719. Public record. Not legal advice.