Calvin v. Jones

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

KEITH L. CALVIN,

Plaintiff,

v.

Case No. 3:19-cv-916-J-34MCR

JULIE L. JONES AND

CORIZON HEALTH PROVIDER,

Defendants.

ORDER

I. Status

Plaintiff Keith L. Calvin, an inmate of the Florida penal system, initiated this action

on August 8, 2019, by filing a pro se Civil Rights Complaint (Complaint; Doc. 1) and

exhibits (P. Ex., Docs. 1-1 and 1-2).1 In the Complaint, Calvin asserts claims pursuant to

42 U.S.C. § 1983 against Defendants Julie L. Jones and Corizon Health Provider

(Corizon).2 He alleges that Defendant Jones failed to protect him from a mentally-

impaired inmate who burned Calvin’s right ankle and foot with hot water on August 8,

2015. See Complaint at 5-6. Additionally, he states that Corizon denied him proper

medical care for the burn. See id. at 6. As relief, Calvin requests compensatory damages.

1 The Court cites to the document and page numbers as assigned by the Court’s

Electronic Case Filing System.

2 Calvin also named Woodrow Myers as a Defendant, but the Court dismissed

Calvin’s claims against Woodrow Myers on June 5, 2020. See Order (Doc. 32).

This matter is before the Court on Defendant Corizon’s Motion to Dismiss (Motion;

Doc. 21) and Defendant Jones’ Motion to Dismiss (Jones Motion; Doc. 24) with exhibits

(Doc. 24-1 at 1-8). The Court advised Calvin 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. 8). Calvin filed responses in

opposition to the Motions. See Sworn Notarized Affidavit (Response; Doc. 27) with

exhibits (Docs. 27-1 through 27-4); Response to Defendant’s Motion to Dismiss

(Response II; Doc. 30). Thus, Defendants’ Motions are ripe for review.

II. Plaintiff’s Allegations3

As to the underlying facts, Calvin asserts that Defendant Jones breached the state

court’s “Corrected Uniform Commitment to Custody,” P. Ex. A, Doc. 1-1, when she

“neglected” her responsibility to house him in a safe prison environment. Complaint at 5.

According to Calvin, the incident in which he was injured could have been prevented

“[w]ith better care[,] custody[,] and control,” and therefore, he holds her responsible for

“allowing” him to “g[e]t burned[.]” Id. at 6. He alleges that Corizon and its employees failed

to properly treat his “3rd degree boiling hot water burn.” Id. He states that Corizon

employees informed him that he needed a skin graft by a specialist. See id. According to

Calvin, Corizon instead refused “future treatment” on December 8, 2015, “leaving [his]

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.

2

skin pink and brown” with “a lifetime of nerve damage” and an “ugly burn scar.” Id. at 6-

7.

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

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

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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

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

Defendant Jones requests dismissal of Calvin’s claim against her because Calvin

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 Jones Motion at 4-9.

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.”).

4

Both Defendants argue that Calvin fails to state plausible Eighth Amendment claims

against them. See Motion at 8-16; Jones Motion at 9-13. In his Responses, Calvin

maintains that he exhausted his claim against Defendant Jones, see Response at 1-2,

and states plausible Eighth Amendment claims against Jones and Corizon, see id. at 3-

4; Response II at 3-5.

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 asserting any claim under 42 U.S.C.

§ 1983. See 42 U.S.C. § 1997e(a). Nevertheless, a prisoner such as Calvin 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

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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

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 pursuing 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

5 Pozo v. McCaughtry, 286 F.3d 1022 (7th Cir. 2002).

6 Turner v. Burnside, 541 F.3d 1077, 1084 (11th Cir. 2008).

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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).

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 certain 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

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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 apply. Informal grievances must be

received within twenty days from the date on which the incident or action that is 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: 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

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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 he did not provide the required

attachments. See FLA. ADMIN. CODE r. 33-103.014(1).

C. Calvin’s Exhaustion Efforts

Defendant Jones maintains that Calvin failed to properly exhaust his administrative

remedies as to the failure-to-protect claim against her before filing the instant § 1983

lawsuit. See Jones Motion at 4-9. In support of her position, she submitted the relevant

grievances and responses. See Doc. 24-1 at 1-8. In his Response, Calvin asserts that he

“made a strong attempt” to exhaust, Response at 1, and attached exhibits, see Docs. 27-

1, 27-3.

The documents attached to Calvin’s Response and Jones’ Motion reflect that

Calvin submitted an informal grievance to Ms. Andrews, the Warden at Union Correctional

Institution (UCI), on August 22, 2015, stating in pertinent part:

Dear Warden Andrews: On the 17th date of August 2015, I

submitted an informal grievance unto you concerning my burn

I received on Aug[.] 8th, 2015. I[’]m requesting that you or your

investigator review the A-Dorm Cam[e]ra[]s between the

hours of 6-7 pm, mainly at the [entrance] of A-Dorm, directly

[e]ntering into the officer[’]s station. I want to know how did I

g[e]t s[cald]ed by this other inmate. My back was turned away

from the other inmate. I must know how the incident occurred

on August 8th, 2015 because I[’]m suffering to[o] much pain,

suffering and emotional tra[u]ma from that hot wat[]er being

poured o[]n me. The inmate had been warned a lots [sic] of

times before about carrying around that boiling hot wate[r] in

his hands. Your prompt attention in this matter is kindly

appreciated.

9

Docs. 24-1 at 1; 27-1 at 1.7 Lieutenant J. Boyett approved the grievance on September

3, 2015, stating: “This incident was thoroughly investigated. The other inmate did not

appear to have done this intentionally.” Id. On May 1, 2019, Calvin submitted a formal

grievance to UCI Warden Anderson, stating in pertinent part:

Warden Anderson, [o]n the 20th day of March 2019, I[’]ve

submitted an inmate request unto the present inmate medical

provider “Centurion” seeking important information from within

my medical files p[er]taining to my injury in August, 2015. See

my copy attached hereto.[8] As of this date, Centurion medical

staff has refused to respond or provide me with the following

important information: #(1). On which specific date in August

2015 was I first brought in for emergency medical treatment

for my 3rd degree boiling hot water burns on my right leg,

ankle and foot? #(2). On which specific date did RN O’Connell

or Connelly pre[s]cribe to Dr. Perez within my medical files

that I should immediately receive an emergency skin graph

[sic] upon my burn areas? #(3). On which specific date did

Corizon medical provider refuse[] and discontinue[] me further

future medical treatment for my burns? #(4). Do[] my medical

files reflect as to why Corizon medical providers ha[ve]

refus[]ed to provide me with medical treatment for my nerve

damage occurred due to the boiling hot water burn upon my

right leg down to my foot? Please provide me copies of this

information from within my files.

Id. at 2, Request for Administrative Remedy or Appeal, Log No. 1905-213-038. On May

29, 2019, Chief Health Officer E. Toledo, M.D. and Assistant Warden T. Knox responded,

stating in pertinent part:

Your request for Administrative Remedy or Appeal has been

received, reviewed and evaluated.

7 According to Calvin, he submitted two informal grievances at the institutional

level “in order to receive a[] respon[s]e,” and Lieutenant Boyett responded to the second

grievance. Response at 1.

8 See Doc. 24-1 at 3, Inmate Request to Centurion, dated March 20, 2019.

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There is no record of this request being received by medical

staff. An appointment has been scheduled for you to review

your medical records, regarding your requested information.

Watch the Call-Out.

You are being treated in accordance with FDC policy and

procedure.

Based on the above information, your grievance is denied.

Id. at 4. Next, Calvin submitted a Request for Administrative Remedy or Appeal to the

Office of the FDOC Secretary on June 10, 2019. See id. at 5. In the grievance, he

appealed the denial of his formal grievance relating to his request for medical information

and also complained about the denial of medical care for his August 2015 burn. See id.

On July 1, 2019, Michelle Schouest, IISC, returned the grievance without action, stating

in pertinent part:

Your administrative appeal has been received in non-

compliance with Chapter 33-103.

Your appeal presents issues that were not previously

addressed at the institutional level. This is an appellate review

process; it is not appropriate to raise new issues, allegations,

charges, and facts that the previous decision maker

(institution) ha[s] not had an opportunity to investigate and

provide a response.

Also, please be advised that you are outside the timeframe to

grieve an issue that happened in 2015.

Therefore, your appeal is being returned without action.

Id. at 6.

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:

11

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 Calvin’s

view of the facts as true, a dismissal of the claim against Defendant 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 Defendant’s 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. Thus, to fully exhaust, Calvin was

required to complete the three-step process with respect to his failure-to-protect claim

against Defendant Jones before filing the instant § 1983 lawsuit. None of his grievances

addressed his assertion that Jones failed to protect him from the mentally-impaired

inmate who burned him with hot water on August 8, 2015. As such, Defendant Jones’

Motion is due to be granted with respect to the exhaustion issue as to Calvin’s claim

against her.

VI. Eighth Amendment Deliberate Indifference

Pursuant to the Eighth Amendment to the United States Constitution, “[e]xcessive

bail shall not be required, nor excessive fines imposed, nor cruel and unusual

punishments inflicted.” U.S. Const. amend. VIII. The Eighth Amendment “imposes duties

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on [prison] officials, who must provide humane conditions of confinement; prison officials

must ensure that inmates receive adequate food, clothing, shelter, and medical care, and

must ‘take reasonable measures to guarantee the safety of the inmates.’” Farmer v.

Brennan, 511 U.S. 825, 832 (1994) (quoting Hudson v. Palmer, 468 U.S. 517, 526-27

(1984)). “To establish an Eighth Amendment violation, a prisoner must satisfy both an

objective and subjective inquiry regarding a prison official’s conduct.” Oliver v. Fuhrman,

739 F. App'x 968, 969 (11th Cir. 2018) (citing Chandler v. Crosby, 379 F.3d 1278, 1289

(11th Cir. 2004)). The Eleventh Circuit has explained:

Under the objective component, a prisoner must allege

a condition that is sufficiently serious to violate the Eighth

Amendment. Id.[9] The challenged condition must be extreme

and must pose an unreasonable risk of serious damage to the

prisoner’s future health or safety. Id. The Eighth Amendment

guarantees that prisoners are provided with a minimal

civilized level of life’s basic necessities. Id.

Under the subjective component, a prisoner must

allege that the prison official, at a minimum, acted with a state

of mind that constituted deliberate indifference. Id. This

means the prisoner must show that the prison officials: (1) had

subjective knowledge of a risk of serious harm; (2)

disregarded that risk; and (3) displayed conduct that is more

than mere negligence. Farrow v. West, 320 F.3d 1235, 1245

(11th Cir. 2003).

Id. at 969-70. “To be cruel and unusual punishment, conduct that does not purport to be

punishment at all must involve more than ordinary lack of due care for the prisoner’s

interests or safety.” Whitley v. Albers, 475 U.S. 312, 319 (1986).

9 Chandler, 379 F.3d at 1289.

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As it relates to medical care, “[t]he Supreme Court has interpreted the Eighth

Amendment to prohibit ‘deliberate indifference to serious medical needs of prisoners.’”

Melton v. Abston, 841 F.3d 1207, 1220 (11th Cir. 2016) (quoting Estelle v. Gamble, 429

U.S. 97, 102 (1976)). The Eleventh Circuit has instructed:

To prevail on a deliberate indifference 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 Int’l, Inc., 588 F.3d 1291, 1306-07 (11th Cir. 2009). To

establish deliberate indifference, [a plaintiff] must prove “(1)

subjective knowledge of a risk of serious harm; (2) disregard

of that risk; (3) by conduct that is more than [gross]

negligence.” Townsend v. Jefferson Cnty., 601 F.3d 1152,

1158 (11th Cir. 2010) (alteration in original). The defendants

must have been “aware of facts from which the inference

could be drawn that a substantial risk of serious harm

exist[ed]” and then actually draw that inference. Farrow v.

West, 320 F.3d 1235, 1245 (11th Cir. 2003) (quotation

omitted).

Easley v. Dep’t of Corr., 590 F. App’x 860, 868 (11th Cir. 2014). “For medical treatment

to rise to the level of a constitutional violation, the care must be ‘so grossly incompetent,

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

fairness.’” Nimmons v. Aviles, 409 F. App’x 295, 297 (11th Cir. 2011) (quoting Harris v.

Thigpen, 941 F.2d 1495, 1505 (11th Cir.1991)); see also Waldrop v. Evans, 871 F.2d

1030, 1033 (11th Cir. 1989) (stating “[g]rossly incompetent or inadequate care can

constitute deliberate indifference …, as can a doctor’s decision to take an easier and less

efficacious course of treatment” or fail to respond to a known medical problem). However,

the law is well-settled that the Constitution is not implicated by the negligent acts of

corrections officials and medical personnel. Daniels v. Williams, 474 U.S. 327, 330-31

14

(1986); Davidson v. Cannon, 474 U.S. 344, 348 (1986) (“As we held in Daniels, the

protections of the Due Process Clause, whether procedural or substantive, are just not

triggered by lack of due care by prison officials.”). A complaint that a physician has been

negligent “in diagnosing or treating a medical condition does not state a valid claim of

medical mistreatment under the Eighth Amendment.” Bingham v. Thomas, 654 F.3d

1171, 1176 (11th Cir. 2011) (quotation marks and citation omitted). Moreover, the

Eleventh Circuit has stated that “[n]othing in our case law would derive a constitutional

deprivation from a prison physician’s failure to subordinate his own professional judgment

to that of another doctor; to the contrary, it is well established that ‘a simple difference in

medical opinion’ does not constitute deliberate indifference.” Bismark v. Fisher, 213 F.

App’x 892, 897 (11th Cir. 2007) (quoting Waldrop, 871 F.2d at 1033). Similarly, “the

question of whether governmental actors should have employed additional diagnostic

techniques or forms of treatment ‘is a classic example of a matter for medical judgment’

and therefore not an appropriate basis for grounding liability under the Eighth

Amendment.” Adams v. Poag, 61 F.3d 1537, 1545 (11th Cir. 1995) (citation omitted).

Although Corizon is not a governmental entity, “[w]here a function which is

traditionally the exclusive prerogative of the state … is performed by a private entity, state

action is present” for purposes of § 1983. Ancata v. Prison Health Servs., Inc., 769 F.2d

700, 703 (11th Cir. 1985) (citations omitted). Indeed,

“when a private entity . . . contracts with a county to provide

medical services to inmates, it performs a function traditionally

within the exclusive prerogative of the state” and “becomes

the functional equivalent of the municipality” under section

1983. Buckner v. Toro, 116 F.3d 450, 452 (11th Cir. 1997).

“[L]iability under § 1983 may not be based on the doctrine of

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respondeat superior.” Grech v. Clayton Cnty., Ga., 335 F.3d

1326, 1329 (11th Cir. 2003) (en banc).

Craig v. Floyd Cty., Ga., 643 F.3d 1306, 1310 (11th Cir. 2011); see Brennan v. Headley,

807 F. App’x 927, 937 (11th Cir. 2020) (“Corizon, as a private entity that contracts with

the state to provide medical services to inmates, is treated as a municipality for purposes

of § 1983 claims.”).

Where a deliberate indifference medical claim is brought against an entity, such as

Corizon, based upon its functional equivalence to a government entity, the assertion of a

constitutional violation is merely the first hurdle in a plaintiff’s case. This is so because

liability for constitutional deprivations under § 1983 cannot be based on the theory of

respondeat superior. Craig, 643 F.3d at 1310 (quoting Grech v. Clayton Cty., Ga., 335

F.3d 1326, 1329 (11th Cir. 2003) (en banc)); see Denno v. Sch. Bd. of Volusia Cty., 218

F.3d 1267, 1276 (11th Cir. 2000). Instead, a government entity may be liable in a § 1983

action “only where the [government entity] itself causes the constitutional violation at

issue.” Cook ex. rel. Estate of Tessier v. Sheriff of Monroe Cty., Fla., 402 F.3d 1092, 1116

(11th Cir. 2005) (citations omitted). Thus, a plaintiff must establish that an official policy

or custom of the government entity was the “moving force” behind the alleged

constitutional deprivation. See Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 693-94

(1978).

In Monell, the Supreme Court held that local governments can be held liable for

constitutional torts caused by official policies. However, such liability is limited to “acts

which the [government entity] has officially sanctioned or ordered.” Pembaur v. City of

Cincinnati, 475 U.S. 469, 480 (1986). Under the directives of Monell, a plaintiff also must

16

allege that the constitutional deprivation was the result of “an official government policy,

the actions of an official fairly deemed to represent government policy, or a custom or

practice so pervasive and well-settled that it assumes the force of law.” Denno, 218 F.3d

at 1276 (citations omitted); see Hoefling v. City of Miami, 811 F.3d 1271, 1279 (11th Cir.

2016) (stating Monell “is meant to limit § 1983 liability to ‘acts which the municipality has

officially sanctioned or ordered’”; adding that “[t]here are, however, several different ways

of establishing municipal liability under § 1983”).

“A policy is a decision that is officially adopted by the [government entity] or created

by an official of such rank that he or she could be said to be acting on behalf of the

[government entity].” Sewell v. Town of Lake Hamilton, 117 F.3d 488, 489 (11th Cir. 1997)

(citation omitted). The policy requirement is designed to “‘distinguish acts of the

[government entity] from acts of employees of the [government entity], and thereby make

clear that [governmental] liability is limited to action for which the [government entity] is

actually responsible.’” Grech, 335 F.3d at 1329 n.5 (quotation and citation omitted).

Indeed, governmental liability arises under § 1983 only where “‘a deliberate choice to

follow a course of action is made from among various alternatives’” by governmental

policymakers. City of Canton v. Harris, 489 U.S. 378, 389 (1989) (quoting Pembaur, 475

U.S. at 483-84). A government entity rarely will have an officially-adopted policy that

permits a particular constitutional violation, therefore, in order to state a cause of action

for damages under § 1983, most plaintiffs must demonstrate that the government entity

has a custom or practice of permitting the violation. See Grech, 335 F.3d at 1330;

McDowell v. Brown, 392 F.3d 1283, 1289 (11th Cir. 2004). A custom is an act “that has

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not been formally approved by an appropriate decisionmaker,” but that is “so widespread

as to have the force of law.” Bd. of Cty. Comm’rs of Bryan Cty., Okla. v. Brown, 520 U.S.

397, 404 (1997) (citation omitted). The Eleventh Circuit has defined “custom” as “a

practice that is so settled and permanent that it takes on the force of law” or a “persistent

and wide-spread practice.” Sewell, 117 F.3d at 489. Last, “[t]o hold the [government

entity] liable, there must be ‘a direct causal link between [its] policy or custom and the

alleged constitutional deprivation.’” Snow ex rel. Snow v. City of Citronelle, 420 F.3d 1262,

1271 (11th Cir. 2005) (quotation omitted). Because Corizon’s liability under § 1983 would

be based on its functional equivalence to the government entity responsible for providing

medical care and services to FDOC inmates, Calvin must plead that an official policy or

a custom or practice of Corizon was the moving force behind the alleged federal

constitutional violation.

Upon review, Calvin has neither identified an official Corizon policy of deliberate

indifference nor an unofficial Corizon custom or practice that was “the moving force”

behind any alleged constitutional violation. In his Response, Calvin maintains that an “in-

depth review” of local federal court computer websites will show widespread complaints

by FDOC inmates against Corizon. Response II at 4. He maintains that he “was never

seen by an outside burn nor nerve specialist as he was promised by Dr. Perez.” Id. at 3;

see Complaint at 6. Additionally, he states that Nurse Cordilla denied him “future medical

treatment in December 2015,” Response II at 5, knowing that Corizon’s contract with the

State would end in early 2016, see Complaint at 6. According to Calvin, Corizon should

have “investigated or fired Dr. Perez and Cordilla….” Id.

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Corizon cannot be held liable based on any alleged conduct of or decisions by its

employees simply because they were working under contract for Corizon to provide

medical care to inmates. Calvin’s factual allegations relating solely to alleged individual

failures in his medical care are simply insufficient to sustain a claim that there is either a

policy to deny medical care to inmates or a practice or custom of denying adequate

medical care, much less that the practice was so widespread that Corizon had notice of

violations and made a “conscious choice” to disregard them. Gold v. City of Miami, 151

F.3d 1346, 1350 (11th Cir. 1998). In consideration of the above analysis, the Court finds

that Calvin has failed to establish a claim that Corizon violated his Eighth Amendment

right. As such, Corizon’s Motion is due to be granted.

In consideration of the foregoing, it is now

ORDERED:

1. Defendant Corizon’s Motion to Dismiss (Doc. 21) is GRANTED, and

Calvin’s claim against Corizon is DISMISSED.

2. Defendant Jones’ Motion to Dismiss (Doc. 24) is GRANTED with respect to

the exhaustion issue, and Calvin’s claim against her is DISMISSED WITHOUT

PREJUDICE.10

10 The applicable four-year statute of limitations has likely run as to Calvin’s claim

against Jones. See McNair v. Allen, 515 F.3d 1168, 1173 (11th Cir. 2008). Nevertheless,

the Court dismisses Calvin’s claim against her without prejudice in the event that Calvin

could show otherwise.

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3. The Clerk shall enter judgment accordingly, terminate any pending motions,

and close the case.

DONE AND ORDERED at Jacksonville, Florida, this 31st day of July, 2020.

enh Mal Ee

United States District Judge

sc 7/31

C:

Keith L. Calvin, FDOC #626305

Counsel of Record

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