Lofton v. Espino

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

ROGER MARION LOFTON,

Plaintiff,

v. Case No. 3:20-cv-1081-J-34PDB

DOCTOR G. ESPINO,

et al.,

Defendants.

_______________________________

ORDER

Plaintiff Roger Lofton, an inmate of the Florida penal system, initiated this action

on September 21, 2020, by filing a pro se Civil Rights Complaint (Complaint; Doc. 1)

under 42 U.S.C. § 1983. Lofton names Doctor G. Espino, Centurion, and Don Singletary

as Defendants. Lofton asserts that Defendants failed to provide him reasonable and

adequate medical care. Complaint at 3.1 As relief, Lofton seeks monetary damage and

transfer to a medical treatment facility. Id. at 5.

The Prison Litigation Reform Act requires the Court to dismiss this case at any

time if the Court determines that the action is frivolous, malicious, fails to state a claim

upon which relief can be granted or seeks monetary relief against a defendant who is

immune from such relief. See 28 U.S.C. § 1915(e)(2)(B)(i)-(iii). "A claim is frivolous if it is

without arguable merit either in law or fact." Bilal v. Driver, 251 F.3d 1346, 1349 (11th Cir.

2001) (citing Battle v. Central State Hosp., 898 F.2d 126, 129 (11th Cir. 1990)). A

1 For purposes of reference, the Court will cite the page number assigned by the

Court’s electronic docketing system.

complaint filed in forma pauperis which fails to state a claim under Federal Rule of Civil

Procedure 12(b)(6) is not automatically frivolous. Neitzke v. Williams, 490 U.S. 319, 328

(1989). Section 1915(e)(2)(B)(i) dismissals should only be ordered when the legal

theories are "indisputably meritless," id. at 327, or when the claims rely on factual

allegations which are "clearly baseless." Denton v. Hernandez, 504 U.S. 25, 32 (1992).

"Frivolous claims include claims 'describing fantastic or delusional scenarios, claims with

which federal district judges are all too familiar.'" Bilal, 251 F.3d at 1349 (quoting Neitzke,

490 U.S. at 328). Additionally, a claim may be dismissed as frivolous when it appears

that a plaintiff has little or no chance of success. Id.

The Court must read a plaintiff's pro se allegations in a liberal fashion. Haines v.

Kerner, 404 U.S. 519 (1972).To state a claim under 42 U.S.C. § 1983, a plaintiff must

allege that (1) the defendant deprived him or her of a right secured under the United

States Constitution or federal law, and (2) such deprivation occurred under color of state

law. Salvato v. Miley, 790 F.3d 1286, 1295 (11th Cir. 2015); Bingham v. Thomas, 654

F.3d 1171, 1175 (11th Cir. 2011) (per curiam) (citation omitted); Richardson v. Johnson,

598 F.3d 734, 737 (11th Cir. 2010) (per curiam) (citations omitted). Moreover, in § 1983

suits, the Eleventh Circuit "requires proof of an affirmative causal connection between the

official's acts or omissions and the alleged constitutional deprivation.” Zatler v.

Wainwright, 802 F.2d 397, 401 (11th Cir. 1986). More than conclusory and vague

allegations are required to state a cause of action under 42 U.S.C. § 1983. See L.S.T.,

Inc., v. Crow, 49 F.3d 679, 684 (11th Cir. 1995) (per curiam); Fullman v. Graddick, 739

F.2d 553, 556-57 (11th Cir. 1984). As such, "'conclusory allegations, unwarranted

deductions of facts, or legal conclusions masquerading as facts will not prevent

dismissal.'" Rehberger v. Henry Cty., Ga., 577 F. App'x 937, 938 (11th Cir. 2014) (per

curiam) (citation omitted). In the absence of well-pled facts suggesting a federal

constitutional deprivation or violation of a federal right, Lofton cannot sustain a cause of

action against the Defendants.

In the Complaint, Lofton alleges that in February of 2019, he “broke out with

psoriasis all over [his] body,” and “the medical neglect was ongoing from there.”

Complaint at 5. According to Lofton:

When I came to a point of psoriasis all over my body I put in

several sickcalls and even seen the doctor several times.

When I seen ointment and shampoo they was giving me ain’t

doing nothing I started complaining because I’m bleeding

24/7, itching 24/7 and in pain 24/7 and that is still going on to

this day and the only thing that has changed is the fact both

me and the doctor know how to get rid of it but he is not giving

it to me out of spite and a grudge of me writing grievances on

him.

Id. Lofton maintains that Espino purposely ignored his medical issues and Singletary

refused to report the seriousness of his condition and complied with Espino’s “orders to

allow [him] to suffer.” Id. at 4. As a result, Lofton claims that he now has permanent

scarring and “thousands of dollars[‘] worth of tattoos ruined from the scars.” Id. at 5.

Claims Against Centurion

It appears that Lofton is suing Centurion for alleged mismanagement of his medical

care. Lofton has failed to allege any claims or facts as to Centurion specifically; therefore,

this claim is due to be dismissed as conclusory. See Crow, 49 F.3d at 684. Moreover,

Centurion contracted with the Florida Department of Corrections to provide medical

services to inmates within the state of Florida. Although Centurion 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

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 Denham v. Corizon

Health, Inc., Case No. 6:13-cv-1425-Orl-40KRS, 2015 WL 3509294, at *3 n.1 (M.D. Fla.

June 4, 2015) (“[W]hen a government function is performed by a private entity like

Corizon, the private entity is treated as the functional equivalent of the government for

which it works.”) (citation omitted), aff’d (11th Cir. Jan. 13, 2017).

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

Centurion, 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

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

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 Centurion’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, Lofton must plead that an official

policy or a custom or practice of Centurion was the moving force behind the alleged

federal constitutional violation.

Upon review, Lofton has neither identified an official Centurion policy of deliberate

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

behind any alleged constitutional violation. Centurion cannot be held liable based on any

alleged conduct of or decisions by its employees simply because they were working under

contract for Centurion to provide medical care to inmates. Lofton’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 Centurion 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). Thus,

Lofton’s § 1983 claim against Centurion is due to be dismissed.

Claims Against Espino

Pursuant to the Eighth Amendment of the United States Constitution, “Excessive

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

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. 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).

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 explained that

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) (“Grossly 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 (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 noted 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).

Lofton asserts that he saw “the doctor several times” and received treatment for

his psoriasis. Complaint at 5. Accordingly, this is not a case where Lofton was altogether

denied treatment; instead, Lofton takes issue with the adequacy of his treatment.

However, the Eleventh Circuit has long “recognized that ‘[w]here a prisoner has received

some 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 which sound in state tort law.’” Hoffer v. Sec'y, Fla. Dep't of Corr., No. 19-11921,

2020 WL 5105013, at *5 (11th Cir. Aug. 31, 2020) (quoting Harris v. Thigpen, 941 F.2d

1495, 1507 (11th Cir. 1991)). Lofton’s allegations demonstrate, at most, Espino acted

negligently, but negligent medical care is insufficient to state a claim for relief under §

1983. See Bingham, 654 F.3d at 1176. As such, Lofton has failed to state a claim upon

which relief can be granted and his claim against Espino is due to be dismissed.

Claims Against Singletary

A civil rights complaint must include a short and plain statement of the claim

showing that the plaintiff is entitled to relief. Fed. R. Civil P. 8(a)(2). While not required to

include detailed factual allegations, a complaint must allege “more than an unadorned,

the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009). Indeed, a complaint is insufficient “if it tenders ‘naked assertion[s]’ devoid of

‘further factual enhancement.’” Id. (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544,

557 (2007)). A plaintiff must allege sufficient facts “that allows the court to draw the

reasonable inference that the defendant is liable for the misconduct alleged.” Id. Here,

Lofton has not alleged sufficient facts against Singletary to establish his entitlement to

relief. His claims are conclusory in nature and devoid of specific facts that would allow the

Court to draw reasonable inferences that Singletary violated Lofton’s constitutional rights.

Moreover, as explained above, Lofton’s claim concerning the adequacy of his medical

treatment does not rise to the level of an Eighth Amendment violation. Therefore, Lofton’s

claim against Singletary is due to be dismissed. See Iqbal, 556 U.S. at 678.

In light of the above, it is

ORDERED AND ADJUDGED that:

1. This case is hereby DISMISSED WITHOUT PREJUDICE.

2. The Clerk of Court shall enter judgment dismissing this case without

prejudice, terminating any pending motions, and closing the case.

DONE AND ORDERED at Jacksonville, Florida, this 5th day of October, 2020.

United States District Judge

Jax-8

c: Roger Lofton #P19006

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