O'Connor v. Backman

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

NYKA O’CONNOR,

Plaintiff,

v. Case No. 3:18-cv-1423-J-39PDB

JULIE JONES et al.,

Defendants.

______________________________

ORDER

I. Status & Procedural History

Plaintiff, Nyka O’Connor, an inmate of the Florida Department of

Corrections (FDOC) is proceeding pro se on an amended civil rights complaint

against twelve Defendants, based on incidents that occurred at Florida State

Prison (FSP) (Doc. 89; Am. Compl.).1

Plaintiff initiated this action on April 12, 2017, in the United States

District Court for the Southern District of Florida (Doc. 1). The Southern

District dismissed the case with prejudice under 28 U.S.C. § 1915(g) because

Plaintiff is a three-strikes litigant. See Orders (Docs. 11, 15). Plaintiff appealed

(Doc. 21). The Eleventh Circuit reversed and remanded, holding Plaintiff

1 Plaintiff is no longer housed at FSP.

alleged facts showing he was in “imminent danger” as to his gastrointestinal

problems (Doc. 32; Eleventh Circuit Order).2 On remand, the Southern District

substantively screened Plaintiff’s complaint and found Plaintiff failed to state

a claim against some defendants. See Order (Doc. 42). Recognizing the only

remaining claims related to conduct that occurred at FSP, the Southern

District transferred the case here and ordered Plaintiff to file an amended

complaint. See Order (Doc. 42).

When Plaintiff finally submitted an amended complaint in this Court,

(Doc. 57), the Court struck it for Plaintiff’s failure to comply with a Court order

(Doc. 48) and federal pleading standards. Specifically, the Court noted

Plaintiff’s first amended complaint contained 657 paragraphs and seventy-

seven pages of allegations, with over 400 pages of exhibits. See Order (Doc. 58).

Since that time, the Court has directed Plaintiff numerous times to submit a

complaint in compliance with federal pleading standards. See Orders (Docs.

58, 63, 67, 71, 79). Additionally, the Court instructed Plaintiff he may proceed

only on claims related to inadequate medical care or diet for his

2 The Eleventh Circuit noted Plaintiff complained of inadequate medical

care for at least nine different ailments. However, the Court held, “[Plaintiff’s]

claims regarding his gastrointestinal problems, and the prison personnel’s

handling of those problems, satisfy the imminent danger standard.” See

Eleventh Circuit Order at 9.

gastrointestinal issues and should pursue unrelated claims in a separate

action. See Orders (Docs. 71, 79).

The Court denied Plaintiff’s motion for injunctive relief on March 26,

2019. See Order (Doc. 58). Plaintiff appealed that ruling. See Notice of

Interlocutory Appeal (Doc. 60). His appeal remains pending. See O’Connor v.

Julie Jones, et al., Case No. 20-11456.3

All served Defendants now move to dismiss Plaintiff’s amended

complaint (Docs. 132, 134, 141, 146, 158).4 Plaintiff has responded to the

motions (Docs. 142, 161, 162, 163).

II. Motion to Dismiss Standard

“To survive a motion to dismiss, a complaint must contain sufficient

factual matter, accepted as true, to ‘state a claim to relief that is plausible on

its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); see also Lotierzo v.

Woman’s World Med. Ctr., Inc., 278 F.3d 1180, 1182 (11th Cir. 2002). “A claim

has facial plausibility when the plaintiff pleads factual content that allows the

court to draw the reasonable inference that the defendant is liable for the

misconduct alleged.” Iqbal, 556 U.S. at 678. A plaintiff should allege enough

facts “to raise a reasonable expectation that discovery will reveal evidence”

3 Plaintiff’s reply brief was due January 4, 2021.

4 Service was returned unexecuted on Defendant S. Johnson, who no

longer works for FSP. See Return of Service (Doc. 116).

supporting the plaintiff’s claims. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556

(2007).

Though detailed factual allegations are not required, Federal Rule of

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

unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678. As such, a plaintiff

may not rely on “[t]hreadbare recitals of the elements of a cause of action,

supported by mere conclusory statements.” Gill as Next Friend of K.C.R. v.

Judd, 941 F.3d 504, 511 (11th Cir. 2019) (quoting Iqbal, 556 U.S. at 678).

Rather, the well-pled allegations must nudge the claim “across the line from

conceivable to plausible.” Twombly, 550 U.S. at 570. In assessing the

sufficiency of a complaint, all reasonable inferences should be drawn in favor

of the plaintiff. See Iqbal, 556 U.S. at 678.

III. Amended Complaint

While Plaintiff’s allegations are much condensed from those in his initial

and first amended complaints, they remain somewhat confusing and vague.

Accordingly, the Court will summarize Plaintiff’s claims here but will address

his factual allegations when analyzing the individual motions under review.

Plaintiff purports to state the following claims: (1) deliberate indifference

to serious medical needs in violation of the Eighth Amendment and Florida

Constitution against the current and former Secretaries of the FDOC, Mark

Inch, Julie Jones, and Michael Crews; former Wardens of FSP, John Palmer

and Barry Reddish; and Defendants Espino, Le, Johnson, Singletary, and

McCoy; (2) discrimination and a failure to accommodate disabilities under the

Americans with Disabilities Act (ADA) and the Rehabilitation Act (RA) against

current and former Secretaries Inch, Jones, and Crews, and former Wardens

Palmer and Reddish; (3) denial of the free exercise of religion in violation of the

First Amendment, the Florida Constitution, and the Religious Land Use and

Institutionalized Persons Act (RLUIPA) against current and former

Secretaries Inch, Jones, and Crews; former Wardens Palmer and Reddish; and

Defendants Espino, Le, Graham, and Cohens; and (4) deliberate indifference

to “basic life need for adequate” sanitary meals in violation of the Eighth

Amendment and the Florida Constitution against current and former

Secretaries Inch, Jones, and Crews; former Wardens Palmer and Reddish; and

Defendants Graham and Cohens. See Am. Compl. at 3-4.5 Plaintiff sues all

Defendants in their individual and official capacities. Id. at 11.

5 As to all claims, Plaintiff also vaguely asserts that Defendants’ conduct

constitutes a breach of contract under federal common laws and Florida

contract laws. See Am. Compl. at 3-4. Plaintiff’s conclusory allegations that

Defendants’ conduct amounts to a breach of contract fails to state a claim for

relief. To the extent Plaintiff is referring to the FDOC’s general duty to provide

constitutionally adequate housing and medical care for inmates, any alleged

violations of those duties give rise to claims under the Eighth Amendment.

IV. Analysis & Conclusions

A. Defendant Le’s Motion

In his motion to dismiss (Doc. 132; Le Motion), Defendant Le seeks

dismissal on only one ground: that Plaintiff “should not be allowed to proceed”

in forma pauperis (IFP) because he is a three-strikes litigant. See Le Motion at

2, 4. This argument has been foreclosed by the Eleventh Circuit. See Eleventh

Circuit Order at 8 (holding Plaintiff’s claims regarding his gastrointestinal

issues satisfy the “imminent danger” exception to the three-strikes rule).

Accordingly, Defendant Le’s motion is due to be denied, and Plaintiff’s Eighth

Amendment deliberate indifference claim against Defendant Le will proceed.6

B. Defendants Espino and Singletary’s Motion

In their joint motion (Doc. 141; Espino Motion), Defendants Dr. Espino

and Nurse Singletary argue, among other things, that Plaintiff fails to state a

claim against them, and they are entitled to qualified immunity. See Espino

Motion at 7-8, 9. As to the latter argument, according to the FDOC’s notice

regarding service of process (Doc. 101), Dr. Espino and Nurse Singletary were

not FSP employees at the relevant times but were “employees of the contracted

6 Plaintiff alleges Defendant Dr. Le denied Plaintiff’s multiple requests

for a therapeutic diet to address his low weight. See Am. Compl. at 18. Plaintiff

also alleges Dr. Le falsified documents to deny him necessary treatment. Id.

Finally, Plaintiff alleges he “needed gastro meds,” an ultrasound, and other

treatment, but he did not receive it. Id.

medical provider.” Accordingly, they may not invoke qualified immunity. See,

e.g., Richardson v. McKnight, 521 U.S. 399, 412 (1997) (holding private prison

guards “do not enjoy qualified immunity from suit in a § 1983 case”). See also

Hinson v. Edmond, 205 F.3d 1264, 1265 (11th Cir. 2000) (“[A] privately

employed prison physician[] is ineligible to advance the defense of qualified

immunity.”). The Court will now address whether Plaintiff states a deliberate

indifference claim against Dr. Espino or Nurse Singletary in their individual

capacities.7

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

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

reluctant to second guess medical judgments and to constitutionalize claims

that sound in tort law.” Hamm v. DeKalb Cty., 774 F.2d 1567, 1575 (11th Cir.

7 In his response to Dr. Espino and Nurse Singletary’s motion (Doc. 162;

Espino Resp.), Plaintiff contends he does not pursue claims against them in

their official capacities. See Espino Resp. at 7.

1985) (quoting with alteration Westlake v. Lucas, 537 F.2d 857, 860 n.5 (1st

Cir. 1981)). As such, allegations of medical negligence are not cognizable under

§ 1983. Estelle, 429 U.S. at 106.

When a prisoner has received medical treatment, to allege an Eighth

Amendment violation, he must assert facts showing the care he received was

“‘so grossly incompetent, inadequate, or excessive as to shock the conscience or

to be intolerable to fundamental fairness.’” Harris v. Thigpen, 941 F.2d 1495,

1505 (11th Cir. 1991). Alleging a “simple difference in medical opinion” does

not state a deliberate indifference claim. Waldrop v. Evans, 871 F.2d 1030,

1033 (11th Cir. 2007).

i. Dr. Espino

Plaintiff alleges Dr. Espino was deliberately indifferent to his medical

needs at a call-out on October 1, 2013, because Dr. Espino simply asked

“[Plaintiff] what [his] 2010 surgery was for, briefly listened to [Plaintiff’s]

stomach with his stethoscope, then yelled at [Plaintiff] to get out of his office.”

See Am. Compl. at 13. Plaintiff also alleges Dr. Espino prescribed “nothing,”

and disregarded his other medical issues because Plaintiff improperly grieved

more than one medical problem in his September 29, 2013 sick-call request.

Id. at 12, 13.

These allegations do not suggest deliberate indifference. Accepting

Plaintiff’s allegations as true and assuming Plaintiff’s gastrointestinal

problems constitute a serious medical need, Plaintiff alleges at most

dissatisfaction with Dr. Espino’s medical evaluation and decision not to

prescribe medications, which “sound[s] in tort law.” See Hamm, 447 F.2d at

1575. Plaintiff does not allege that Dr. Espino ignored an obvious immediate

need for treatment. In fact, Plaintiff alleges that Dr. Espino physically

assessed him on October 1, 2013, for complaints of gastro pain. See Am. Compl.

at 12, 13.

Accepting as true that Dr. Espino refused to evaluate and treat the other

medical issues of which Plaintiff complained on October 1, 2013, Plaintiff

himself says that Dr. Espino did so under a FDOC policy, which suggests Dr.

Espino’s conduct was motivated by objective factors, not a subjective disregard

for Plaintiff’s health. The chapter of the Florida Administrative Code that

addresses prison grievances, including those of a medical nature, provides a

list of reasons a grievance will be returned to an inmate “without a response

on the merits”: one of those reasons is “address[ing] more than one issue or

complaint.” See Fla. Admin. Code r. 33-103.014(1)(a). An inmate whose

grievance is returned without action for addressing more than one complaint

may “correct the stated deficiency” by refiling the grievance in compliance with

applicable rules. See Fla. Admin. Code r. 33-103.014(2). Plaintiff does not

allege he corrected the deficiency by later submitting a proper sick-call request.

See Am. Compl. at 13.

In short, Plaintiff alleges no facts permitting the reasonable inference

that Dr. Espino’s care was “‘so grossly incompetent, inadequate, or excessive

as to shock the conscience or to be intolerable to fundamental fairness.’” Harris,

941 F.2d at 1505. Finally, accepting as true that Dr. Espino was rude or hostile

toward Plaintiff, such conduct does not offend Eighth Amendment principles.

See McFadden v. Lucas, 713 F.2d 143, 146 (5th Cir. 1983). Indeed, a claim that

a prison official was mean to a prisoner is frivolous.

For these reasons, Plaintiff fails to state a plausible claim against Dr.

Espino, and Dr. Espino is due to be dismissed from this action.

ii. Nurse Singletary

Plaintiff alleges he “attempted to provide Nurse Singletary a sick-call”

request on December 25, 2013, but Nurse Singletary refused to accept it

because Plaintiff attempted to grieve more than one issue. See Am. Compl. at

17. With his response Dr. Espino and Nurse Singletary’s motion, Plaintiff

provides grievance records as an exhibit (Doc. 162-1; Pl. Ex. 1). On December

25, 2013, Plaintiff submitted three grievances: an “inmate request” to the

mental health department, a grievance to the Warden, and a sick-call request

to the mental health department. See Pl. Ex. 1 at 1, 2, 4. In his grievance to

the Warden and sick-call request to the mental health department, Plaintiff

complained about the cold weather, lack of hot water and heat, inadequate

bedding, and problems closing his window. Id. at 1, 2. He also requested

another pillow so he could keep his head raised above his stomach to prevent

acid reflux. Id. In the inmate request, also submitted to the mental health

department, Plaintiff complained that Nurse Singletary would not accept his

sick-call request at his cell front. Id. at 4. A senior mental health clinician

responded to Plaintiff’s inmate request as follows:

I answered this via your formal grievance. You have

refused 4 groups, 2 psychiatric call-outs, and 1 call-out

with me during the month of December. We cannot

treat your [mental health] issues unless you attend

call-outs. You are scheduled to see Dr. Rumbaua very

soon and I’d urge you to attend. Your non-[mental

health] issues (blankets, temp) should be addressed

with security.

Id.

Even if Nurse Singletary refused to accept Plaintiff’s sick-call request

because Plaintiff grieved more than one issue or complaint in violation of

FDOC policy, her state of mind cannot be characterized as one of deliberate

indifference. Additionally, accepting that Nurse Singletary was obligated by

prison rule to collect Plaintiff’s facially deficient sick-call request at his cell

front, the violation of a prison rule does not translate into a constitutional

violation. See, e.g., Knight v. Jacobson, 300 F.3d 1272, 1276 (11th Cir. 2002).

Finally, given Plaintiff submitted three grievances on the day he alleges Nurse

Singletary would not accept his sick-call request by hand and given Plaintiff

ultimately received a substantive response to his sick-call request, he fails to

allege facts showing a causal connection between Nurse Singletary’s conduct

and any alleged harm he suffered because of her conduct.8

In sum, Plaintiff fails to allege facts permitting the inference that Nurse

Singletary was deliberately indifferent to his serious medical needs. Because

Plaintiff fails to state a plausible deliberate indifference claim against both Dr.

Espino and Nurse Singletary, their motion is due to be granted to that extent.

C. Remaining Motions

The remaining Defendants have submitted nearly identical motions.

Defendants Inch, Jones, Crews, Palmer, and Reddish (Supervisory

Defendants) jointly move to dismiss the claims against them (Doc. 134; FDOC

Motion). Defendants Graham and McCoy jointly move to dismiss the claims

against them (Doc. 146; Graham Motion). Finally, Defendant Cohens moves

for dismissal as well (Doc. 158; Cohens Motion).

In all motions, Defendants invoke Eleventh Amendment and qualified

immunities and argue Plaintiff fails to state a claim under the ADA, RA,

RLUIPA, the Eighth Amendment, and for breach of contract.9 They further

8 Nurse Singletary also argues Plaintiff’s claims against her are barred

by the statute of limitations because Plaintiff did not raise claims against her

in his initial complaint. See Espino Motion at 5-6. In response, Plaintiff says

he made allegations against Nurse Singletary in his initial complaint. See

Espino Resp. at 1, 2. Because the Court finds Plaintiff fails to state a claim

against Nurse Singletary, the Court declines to rule on the timeliness issue.

9 The Court addressed the breach of contract claims earlier in this Order.

assert Plaintiff’s IFP status should be revoked or, in the alternative, his

unrelated claims should be dismissed for improper joinder. Finally, they move

to dismiss Plaintiff’s claims for injunctive and declaratory relief because he is

no longer housed at FSP.

In his responses (Docs. 161, 162; FDOC & Graham Resp., Cohens

Resp.),10 Plaintiff clarifies that he advances a RLUIPA claim against solely the

FDOC Secretaries and FSP Wardens in their official capacities. See FDOC &

Graham Resp. at 4; Cohens Resp. at 2. He does not pursue such a claim against

Defendants Graham, McCoy, or Cohens. Additionally, Plaintiff maintains he

does not sue Defendants in their official capacities for damages, mooting the

Eleventh Amendment immunity argument. See FDOC & Graham Resp. at 12;

Cohens Resp. at 6.

i. Three Strikes Bar

Defendants’ suggestion that the Court should revoke Plaintiff’s IFP

status is meritless. The Eleventh Circuit found Plaintiff’s allegations in his

original complaint were sufficient to invoke the imminent danger exception

10 Plaintiff jointly responds to the Supervisory Defendants’ motion and

Defendant Graham and McCoy’s motion. Plaintiff contends Defendants’

separate motions were not timely filed and, thus, should be denied. See FDOC

& Graham Resp. at 3; Cohens Resp. at 2. Plaintiff’s objection on the basis of

timeliness has no merit. The Court issued separate orders accepting

Defendants’ motions as timely filed. See Orders (Docs. 135, 148, 160).

under 28 U.S.C. § 1915(g). See O’Connor v. Backman, 743 F. App’x 373, 376

(11th Cir. 2018). The “imminent danger” inquiry is made when a plaintiff

initiates an action. See Medberry v. Butler, 185 F.3d 1189, 1193 (11th Cir.

1999) (holding the statute’s use of present tense refers to the time when the

plaintiff files the complaint). When Plaintiff initiated the action, he was at

FSP, and the Eleventh Circuit held he alleged facts showing he was imminent

danger at that time. Plaintiff’s later transfer does not impact that analysis. See

Smith v. Dewberry, 741 F. App’x 683, 687 (11th Cir. 2018) (noting the plaintiff’s

later transfer did not affect the imminent danger analysis, which was made at

the time the complaint was filed). Thus, the Court may not now revoke

Plaintiff’s IFP status.

ii. Improper Joinder

Plaintiff still has failed to comply with the Court’s Orders and the

Federal Rules of Civil Procedure insofar as he raises multiple, unrelated claims

in his amended complaint. Plaintiff alleges FSP staff members did not

adequately assess or treat numerous medical conditions as far back as 2013

and as recent as 2017. See Am. Compl. at 12, 19. For instance, Plaintiff alleges

different Defendants, at different times, failed to adequately treat the

following medical conditions: uncontrolled weight loss and low weight, for

which Plaintiff requested a 4000-calorie diet; severe gastrointestinal issues, for

which Plaintiff requested a “non-standard therapeutic diet”; ankle pain, for

which Plaintiff requested medical shoes; blurry vision and other eye issues, for

which Plaintiff requested eye glasses and referral to an optician; shoulder

injuries and nerve damage, for which Plaintiff requested a no-lifting pass,

looser restraints, and an MRI; stress and anxiety, for which Plaintiff requested

medications; eczema and other skin issues, for which Plaintiff requested

moisturizer; migraines and headaches, for which Plaintiff requested an MRI;

and missing teeth, for which Plaintiff requested implants. Id. at 12-19.

Not only has Plaintiff failed to comply with the Court’s directives to set

forth only related claims, but the Federal Rules of Civil Procedure prohibit the

improper joinder of defendants in one action if the claims do not arise out of

“the same transaction, occurrence, or series of transactions or occurrences.”

Fed. R. Civ. P. 20 (2)(A). See also Smith v. Owens, 625 F. App’x 924, 928 (11th

Cir. 2015) (affirming dismissal of the plaintiff’s claims against corrections

officers because those claims arose out of different events that occurred on

different dates); George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) (“Unrelated

claims against different defendants belong in different suits, not only to

prevent the sort of morass that [the] 50–claim, 24–defendant suit produced but

also to ensure that prisoners pay the required filing fees.”).

It appears Plaintiff attempts to demonstrate his multiple claims of

inadequate medical care are related by repeating the mantra that the

Supervisory Defendants were the driving force behind the multiple, alleged

abuses because they maintained “widespread [and] persistent polic[ies],

practice[s] [and] custom[s].” See Am. Compl. at 12-19. Such conclusory, rote

allegations fail to demonstrate the various claims Plaintiff seeks to pursue

against different individuals arise out of the same transaction or occurrence or

series of transactions or occurrences.

Because Plaintiff alleges multiple, unrelated claims, the claims not

related to those for which Plaintiff was granted IFP status under the imminent

danger exception will be dismissed. In particular, the following claims are

subject to dismissal: deliberate indifference to serious medical needs for all

medical conditions except the gastrointestinal issues; free exercise of religion

under RLUIPA, the First Amendment, and the Florida Constitution; and

discrimination under the ADA and RA based on disabilities other than an

alleged gastro-related disability.

As to the free-exercise-of-religion claims under RLUIPA, the First

Amendment, and the Florida Constitution, those are wholly unrelated to

Plaintiff’s gastrointestinal issues and requested medical care or dietary

restrictions for those issues. Plaintiff seemingly attempts to show a connection

between his medical issues and the religion claims by alleging he requested a

special diet between 2013 and 2017 to satisfy both his “health and religious

belief system.” Id. at 21. Whether Plaintiff’s religious beliefs would entitle him

to a special diet is a different legal inquiry from whether his gastrointestinal

issues also would warrant a special diet. In other words, even if a doctor were

to prescribe the same diet for Plaintiff’s gastrointestinal issues that a chaplain

would approve as a religious accommodation, Plaintiff’s deliberate indifference

claims against medical providers and supervisors are distinct from the religion

claims against the FDOC or individual FSP employees.

As to the discrimination or accommodation claims under the ADA and

RA, to the extent they are based on medical conditions other than the

gastrointestinal issues, they too are unrelated and should be pursued in a

different action to the extent cognizable.

With the unrelated claims subject to dismissal, that leaves the following

claims for the Court’s review: discrimination or a failure to accommodate

gastro-related disabilities against the Supervisory Defendants; deliberate

indifference to serious medical needs against the Supervisory Defendants and

Defendant McCoy; and deliberate indifference to health and safety against the

Supervisory Defendants and Defendants Graham and Cohens. Id. at 3-4.

iii. ADA & RA Claims Against Supervisory Defendants

Title II of the ADA, which applies to state prisons, provides as follows:

“[N]o qualified individual with a disability shall, by reason of such disability,

be excluded from participation in or be denied the benefits of the services,

programs, or activities of a public entity, or be subjected to discrimination by

any such entity.” 42 U.S.C. § 12132. See also Pennsylvania Dep’t of Corr. v.

Yeskey, 524 U.S. 206, 213 (1998) (holding Title II of the ADA “unambiguously

extends to state prison inmates”). Similarly, section 504 of the RA provides,

“No otherwise qualified individual with a disability . . . shall, solely by reason

of her or his disability, be excluded from the participation in, be denied the

benefits of, or be subjected to discrimination under any program or activity

receiving Federal financial assistance.” 29 U.S.C. § 794(a).

“With the exception of its federal funding requirement, the RA uses the

same standards as the ADA, and therefore, cases interpreting either are

applicable and interchangeable.” Badillo v. Thorpe, 158 F. App’x 208, 214 (11th

Cir. 2005) (citing Cash v. Smith, 231 F.3d 1301, 1305 & n.2 (11th Cir. 2000));

J.S., III by & through J.S. Jr. v. Houston Cty. Bd. of Educ., 877 F.3d 979, 985

(11th Cir. 2017) (“Discrimination claims under the ADA and the [RA] are

governed by the same standards, and the two claims are generally discussed

together.”). To state a claim of discrimination under the ADA and RA, a

plaintiff must allege “(1) that he is a qualified individual with a disability; and

(2) that he was either excluded from participation in or denied the benefits of

a public entity’s services, programs, or activities, or was otherwise

discriminated against by the public entity; and (3) that the exclusion, denial of

benefit, or discrimination was by reason of the plaintiff’s disability.” Owens v.

Sec’y, Fla. Dep’t of Corr., 602 F. App’x 475, 477 (11th Cir. 2015) (quoting Bircoll

v. Miami-Dade Cty., 480 F.3d 1072, 1083 (11th Cir. 2007)).11

Assuming Plaintiff is a qualified individual with a disability, Plaintiff

wholly fails to identify any program or service to which he was denied access

because of his gastrointestinal issues. See Am. Compl. at 19-20. Rather,

Plaintiff premises his ADA and RA claims on a perceived lack of or denial of

appropriate medical intervention for those issues. Id. at 20. The ADA and RA

were not intended to subsume medical malpractice claims, meaning

allegations that a defendant failed to provide medical care to a disabled inmate

does not give rise to claims under the ADA or RA. See Jones v. Rutherford, 546

F. App’x 808, 811-12 (11th Cir. 2013); Finn v. Haddock, 459 F. App’x 833, 837-

38 (11th Cir. 2012) (stating that “failure to provide adequate medical

treatment . . . does not violate the ADA or [RA]” (citations omitted)).

In his joint response to the Supervisory Defendants’ and Defendants

Graham and McCoy’s motions, Plaintiff cites a decision from the United States

District Court for the Southern District of California for the proposition that a

prison’s failure to accommodate an inmate’s medically necessary dietary needs

11 Only public entities may be liable under the ADA and RA.

Acknowledging a much, Plaintiff clarifies that his ADA and RA claims are

against the Supervisory Defendants solely in their official capacities. See

FDOC & Graham Resp. at 4.

gives rise to a plausible claim under the ADA. See FDOC & Graham Resp. at

5 (citing Scott v. Garcia, 370 F. Supp. 2d 1056, 1075 (S.D. Cal. 2005)). In Scott,

the court held the plaintiff demonstrated a genuine issue of material fact as to

whether the defendant failed to accommodate his dietary needs to address his

“stomach and digestive problems.” See 370 F. Supp. 2d at 1058, 1075.

Not only is the Scott decision not binding on this Court, but the facts are

materially distinguishable. In Scott, a prison doctor diagnosed multiple gastro-

related conditions, ordered the plaintiff to avoid fatty and spicy foods, and

recommended that the plaintiff be transferred to a prison with a hospital. Id.

at 1059. Despite additional orders from the doctor recommending that the

plaintiff be transferred “immediately,” the plaintiff was not transferred for five

months. Id. at 1060-61. Moreover, the evidence showed that, contrary to

doctor’s orders, prison officials did not accommodate the plaintiff’s eating

schedule or meal restrictions “to prevent illness following his surgery,” and the

ordering physician refused to intervene to ensure his orders were followed “on

the yard.” Id. at 1075.

Unlike the plaintiff in Scott, Plaintiff here does not allege prison officials

ignored doctors’ orders that he be provided special meals at designated times.

On the contrary, Plaintiff complains FSP doctors would not authorize or

prescribe a special diet for his “gastro issues of inability to digest certain

carbohydrates.” See Am. Compl. at 12, 13. In other words, unlike in Scott, there

could not have been a failure to accommodate special instructions because no

doctor ordered that Plaintiff’s meal schedules or dietary needs be different from

those of other inmates. Accordingly, Plaintiff’s allegations more squarely sound

in a claim for a denial of adequate medical care under the Eighth Amendment

rather than for a failure to accommodate. Thus, Plaintiff’s ADA and RA claims

against the Supervisory Defendants are due to be dismissed.

iv. Deliberate Indifference Claims: Qualified Immunity

Defendants invoke qualified immunity as to the § 1983 claims against

them in their individual capacities. An official sued in his individual capacity

“is entitled to qualified immunity for his discretionary actions unless he

violated ‘clearly established statutory or constitutional rights of which a

reasonable person would have known.’” Black v. Wigington, 811 F.3d 1259,

1266 (11th Cir. 2016) (quoting Case v. Eslinger, 555 F.3d 1317, 1325 (11th Cir.

2009)). Qualified immunity allows government employees to exercise their

official duties without fear of facing personal liability. Alcocer v. Mills, 906 F.3d

944, 951 (11th Cir. 2018). The doctrine protects all but the plainly incompetent

or those who knowingly violate an inmate’s constitutional rights. Id. In other

words, “[q]ualified immunity shields an officer from suit when [he] makes a

decision that, even if constitutionally deficient, reasonably misapprehends the

law governing the circumstances [he] confronted.” Taylor v. Riojas, 141 S. Ct.

52, 53 (2020) (quoting Brosseau v. Haugen, 543 U.S. 194, 198 (2004)).

Upon invoking qualified immunity, a defendant bears the initial burden

to demonstrate he was acting within his discretionary authority at the relevant

times. Id. Defendants carry their burden. Plaintiff sues the Supervisory

Defendants and Defendants Graham, McCoy, and Cohens for acts or omissions

that occurred while they were acting in their roles as FDOC officials or FSP

employees. As such, the burden shifts to Plaintiff, who must point to facts that,

accepted as true, demonstrate Defendants violated a constitutional right that

was “clearly established” at the time of the alleged violation. Id. “Because §

1983 ‘requires proof of an affirmative causal connection between the official’s

acts or omissions and the alleged constitutional deprivation,’ each defendant is

entitled to an independent qualified-immunity analysis as it relates to his or

her actions and omissions.” Alcocer, 906 F.3d at 951 (quoting Zatler v.

Wainwright, 802 F.2d 397, 401 (11th Cir. 1986) (per curiam)).

a. Supervisory Defendants

Plaintiff makes the same rote allegations against the Supervisory

Defendants, without addressing each Defendant individually. Plaintiff alleges

the FDOC Secretaries and FSP Wardens “had a subjective knowledge of

serious harm, but disregarded said risk by their conduct[] that [was] more than

gross negligence.” See Am. Compl. at 13, 14, 15, 18. Plaintiff provides no facts

explaining how the Supervisory Defendants had subjective knowledge that he

had a serious medical condition that was not being adequately addressed or

otherwise was at risk of harm. Plaintiff’s conclusory allegations are insufficient

to demonstrate the Supervisory Defendants personally participated in alleged

unconstitutional conduct.

Additionally, to the extent Plaintiff suggests the Supervisory Defendants

had the requisite knowledge because he submitted grievances, his claims fail.

See Jones v. Eckloff, No. 2:12-CV-375-FTM-29DN, 2013 WL 6231181, at *4

(M.D. Fla. Dec. 2, 2013) (“[F]iling a grievance with a supervisory person does

not automatically make the supervisor liable for the allegedly unconstitutional

conduct brought to light by the grievance, even when the grievance is denied.”

(citing Gallagher v. Shelton, 587 F.3d 1063, 1069 (10th Cir. 2009))).

Absent allegations showing the Supervisory Defendants personally

participated in alleged constitutional violations, Plaintiff’s claims against

them are based on a theory of respondeat superior. However, “[i]t is well

established in this Circuit that supervisory officials are not liable under § 1983

for the unconstitutional acts of their subordinates on the basis of respondeat

superior or vicarious liability.” Cottone v. Jenne, 326 F.3d 1352, 1360 (11th

Cir. 2003) (internal quotation marks and citation omitted). “The standard by

which a supervisor is held liable . . . for the actions of a subordinate is

extremely rigorous.” Id. Absent personal participation, supervisor liability

arises only “when there is a causal connection between the actions of the

supervising official and the alleged constitutional deprivation.” Mathews v.

Crosby, 480 F.3d 1265, 1270 (11th Cir. 2007) (internal quotation marks and

citation omitted).

The necessary causal connection can be established

“when a history of widespread abuse puts the

responsible supervisor on notice of the need to correct

the alleged deprivation, and he fails to do so.”

Alternatively, the causal connection may be

established when a supervisor’s “custom or policy ...

result[s] in deliberate indifference to constitutional

rights” or when facts support “an inference that the

supervisor directed the subordinates to act unlawfully

or knew that the subordinates would act unlawfully

and failed to stop them from doing so.”

Cottone, 326 F.3d at 1360 (internal citations omitted).

When a plaintiff premises a claim for supervisory liability on a policy or

custom, the plaintiff must do more than mention those terms in a conclusory

manner. See Rankin v. Bd. of Regents of the Univ. Sys. of Ga., 732 F. App’x

779, 783 (11th Cir. 2018). Instead, a plaintiff must allege facts “show[ing] a

persistent and wide-spread practice.” Goebert v. Lee Cty., 510 F.3d 1312, 1332

(11th Cir. 2007) (quoting Depew v. City of St. Mary’s, Ga., 787 F.2d 1496, 1499

(11th Cir. 1986)). “A single incident of a constitutional violation is insufficient

to prove a policy or custom even when the incident involves several employees.”

Craig v. Floyd Cty., Ga., 643 F.3d 1306, 1311 (11th Cir. 2011). See also Rankin,

732 F. App’x at 783 (reasoning that the “claim [against the supervisor] fail[ed]

because most of the allegations supporting it [were] conclusory, and to the

extent some [were] based on facts, they [were] limited to [the plaintiff’s] own

experience”).

Plaintiff attempts to demonstrate a causal connection between alleged

constitutional violations and the Supervisory Defendants’ conduct by asserting

these Defendants adopted policies or customs to permit the underlying

violations of which he complains. As relevant to his gastrointestinal issues and

concomitant dietary and medical needs, Plaintiff alleges the Supervisory

Defendants “[had] a known widespread [and] persistent policy, practice [and]

custom” (1) of permitting or condoning the FSP intake nurses to “falsify new

arrival inmates’ weight” so the inmates will not qualify for a 4000-calorie diet;12

(2) of permitting or condoning nurses to “conduct inadequate cellfront [sic]

assessments” and denying adequate medical care for close-management

inmates “as punishment”; (3) of limiting inmates to one issue when submitting

requests for medical care or appointments; (4) of denying non-standard

therapeutic diets to close-management inmates who are “eligible for same”; (5)

of serving meals “in dirty filthy plastic trays, cups, utensils, [and] containers”;

12 It is unclear whether Plaintiff’s alleged weight loss and request for a

4000-calorie diet is related to his gastrointestinal issues.

and (6) of serving Plaintiff cold meals, which are difficult for him to digest and,

as a result, agitate his gastro issues. See Am. Compl. at 12-14, 17-19, 21.13

The only reference Plaintiff makes to an official, adopted policy is the one

that limits inmates to one issue or complaint per grievance or sick-call request.

The source of this policy is the Florida Administrative Code, which provides

that an inmate’s grievance may be returned to him without action when “[t]he

grievance addresses more than one issue or complaint.” See Fla. Admin. Code

r. 33-103.014(1)(a). An inmate whose grievance is returned under this

provision may “correct the stated deficiency” by refiling the grievance in

compliance with applicable rules. See Fla. Admin. Code r. 33-103.014(2). Aside

from a conclusory assertion, Plaintiff provides no facts permitting the inference

that this policy results in deliberate indifference to the constitutional rights of

inmates. Importantly, the policy does not bar inmates from receiving medical

care—it merely requires that they request medical care in a particular way.

Plaintiff is clearly aware of the rule and has chosen, at times, not to follow it.

His unilateral decision to flout the rules does not mean those rules result in

13 Plaintiff references multiple other alleged policies or customs, but

those are not related to medical care or dietary needs for his gastro issues or

are based on underlying incidents that fail to state a deliberate indifference

claim against the subordinate staff members allegedly involved. For example,

Plaintiff complains about tight restraints, small holding cells, being forced to

carry heavy items, being threatened or intimidated by staff, being denied tooth

implants, and being denied religious items. See Am. Compl. at 15, 17, 19.

deliberate indifference to his needs or the needs of other inmates. Plaintiff does

not allege any properly submitted grievances or sick-call requests were

flagrantly ignored with a conscious disregard of his health or safety, and that

any such instances were the result of an official policy or custom.

As to the other alleged customs or policies, Plaintiff’s sparse supporting

factual allegations do not permit the inference that the negative encounters he

had with medical providers or food service employees were representative of a

persistent and widespread problem at FSP. Plaintiff alleges that, on

September 26, 2013, the intake nurse “falsified his weight” so that he would

not qualify to receive a 4000-calorie diet; on September 30, 2019,14 “a sick-call

nurse did an inadequate assessment . . . for [close-management] inmates . . .

then walked away, denying adequate care, [and] providing nothing”; on

December 28, 2016, an intake nurse denied Plaintiff’s request for a non-

standard therapeutic diet to address his low weight and gastro issues; he was

served food on unsanitary trays with unsanitary utensils; and he was served

cold food. See Am. Compl. at 12, 17-18, 21.

Accepting as true that nurses falsified Plaintiff’s weight, denied his

request for a non-standard therapeutic diet, or conducted medical assessments

that Plaintiff subjectively perceived to be inadequate, and that Plaintiff

14 Plaintiff likely meant to write “2013” as the year, not 2019.

received cold meals on dirty trays, Plaintiff’s personal experiences and

observations are not enough to allege the existence of a policy or custom. See

Craig, 643 F.3d at 1311; Rankin, 732 F. App’x at 783. Plaintiff references no

other instances of the alleged policies or customs resulting in constitutional

violations. For instance, Plaintiff does not allege that the offending conduct

routinely happened or that supervising officials ordered, condoned, or were

knowledgeable about such conduct.

Plaintiff’s conclusory assertions amount to no more than a “formulaic

recitation” of the elements necessary to assert a claim on the basis of

supervisory liability. See Iqbal, 556 U.S. at 681. Such allegations are

insufficient to meet the rigorous standard to hold the Supervisory Defendants

liable for the alleged conduct of their subordinates. See Hendrix v. Tucker, 535

F. App’x 803, 805 (11th Cir. 2013) (affirming dismissal of the plaintiff’s claims

against supervisors because his allegations of a “long standing policy, practice,

and custom” of discriminating against inmates with respect to gain time were

“vague and conclusory”); Harvey v. City of Stuart, 296 F. App’x 824, 826 (11th

Cir. 2008) (per curiam) (affirming dismissal of a § 1983 action against a

municipality because the plaintiff “failed to identify any policy or custom that

caused a constitutional violation, and his vague and conclusory allegations

were insufficient to support the complaint”). See also O’Donnell v. Bd. of

Trustees, No. 5:15-CV-389-CAR, 2016 WL 3633348, at *8 (M.D. Ga. June 29,

2016) (finding the plaintiff’s allegation that supervisory defendants had a

“policy and custom on the use of physical punishment” was conclusory because

it was based only on the single incident the plaintiff described in her

complaint).

For the above reasons, the Supervisory Defendants’ motion is due to be

granted to the extent Plaintiff fails to state a plausible claim for relief against

them on a theory of respondeat superior. Given Plaintiff fails to state a claim

against the Supervisory Defendants and because he is no longer housed at

FSP, his requests for declaratory and injunctive relief are moot and subject to

dismissal. See Spears v. Thigpen, 846 F.2d 1327, 1328 (11th Cir. 1988) (holding

the plaintiff’s requests for injunctive and declaratory relief relating to

conditions of his confinement at the institution where he was housed when he

filed his complaint were moot because he had since been transferred to a

different institution). See also Owens v. Centurion Med., 778 F. App’x 754, 759

(11th Cir. 2019) (holding the “effects of the alleged deprivations at [one prison]

ha[d] been completely and irrevocably eradicated” once the plaintiff was

transferred to a different prison).

b. Defendants Graham, McCoy & Cohens

Plaintiff alleges Defendant McCoy was deliberately indifferent to his

serious medical needs, and Defendants Graham and Cohens were deliberately

indifferent to his need for adequate meals and sanitary utensils. See Am.

Compl. at 3, 4.

1. Defendant McCoy

Plaintiff explains he was scheduled to see an eye doctor at the Reception

and Medical Center (RMC) on December 13, 2013, and Defendant McCoy, an

officer, was assigned to escort him to the medical unit. Id. at 16. Plaintiff

refused to attend the appointment at RMC, however, because Defendant

McCoy tightened his restraints too much, “placing unnecessary pain [and]

pressure on [his] shoulders [and] gastro area.” Id. Though he voluntarily

refused to attend his RMC appointment, Plaintiff declined to sign a written

refusal form. Id.

Plaintiff alleges Defendant McCoy would not return him to his cell but

rather “forced [Plaintiff] to go to medical,” where McCoy, Nurse Johnson, and

“company” threatened and intimated him into signing a medical refusal form.

Id. Plaintiff contends Nurse Johnson used profane language and approached

him with “clenched fists,” demanding that Plaintiff sign the refusal form. And

Defendant McCoy “cracked [his] knuckles to intimidate [Plaintiff].” Id.

Plaintiff contends Defendant McCoy was “deliberately indifferent by denying

[Plaintiff] adequate restraints, forcing [Plaintiff] to go to medical to sign the

refusal despite [Plaintiff’s] protest, [and] intimidating [Plaintiff] by cracking

his knuckles.” Id.

Even if this claim liberally can be construed as related to Plaintiff’s

gastrointestinal issues, Plaintiff’s allegations simply do not permit the

reasonable inference that Defendant McCoy acted with a state of mind of

deliberate indifference. As Plaintiff himself acknowledges, Defendant McCoy

was an officer, not a medical provider. Plaintiff alleges Defendant McCoy was

prepared to take Plaintiff to his medical appointment, but Plaintiff voluntarily

refused because he thought the restraints were too tight. Plaintiff does not

allege Defendant McCoy knew but consciously disregarded that Plaintiff

suffered from various medical conditions that made tight restraints painful or

uncomfortable. Nor does Plaintiff allege he had a valid medical pass that he

presented to Defendant McCoy and that McCoy refused to honor. See id.

Additionally, assuming Defendant McCoy intimidated or threatened

Plaintiff, such conduct does not violate the Eighth Amendment. See McFadden,

713 F.2d at 146 (“[A]s a rule, mere threatening language and gestures . . . do

not, even if true, amount to constitutional violations.” (internal quotation

marks omitted)). Importantly, Plaintiff does not allege Defendant McCoy

physically assaulted him. Defendant McCoy’s actions and non-verbal

communications, which Plaintiff perceived to be threatening, do not violate

Eighth Amendment standards. Accordingly, the claims against Defendant

McCoy are due to be dismissed.

2. Defendants Graham & Cohens

Plaintiff alleges Defendants Graham and Cohens denied his requests for

meals “compliant with his . . . health needs,” from 2013 to 2017, served him

meals on unsanitary trays with unsanitary utensils, which caused him to

suffer “gastro viruses,” and served him cold food that was “difficult to digest …

[and] agitate[d] [his] existing gastro issues.” See Am. Compl. at 20, 21.15

Plaintiff does not allege Defendants Graham or Cohens could have approved a

special diet for him, nor does he allege they knew he had gastrointestinal issues

that made cold foods difficult for him to digest. In fact, he clarifies in his

responses that Defendants Graham and Cohens worked in food service—they

were not medical providers or nutritionists. See FDOC & Graham Resp. at 2;

Cohens Resp. at 3. Additionally, Plaintiff does not allege a doctor had approved

a special diet for him, which Defendants Graham or Cohens refused to honor.

Thus, Plaintiff fails to state a claim against Defendants Graham and Cohens

for an alleged denial of special meals or for serving him cold food.

As to the remaining allegations, accepting as true that Defendants

Graham and Cohens personally served Plaintiff food on unsanitary trays with

15 Plaintiff also alleges Defendant Graham, Cohens, and other

Defendants served food that “fail[ed] to comply with USDA My Plate 5-food

groups.” See Am. Compl. at 20. To the extent Plaintiff contends the FSP menus

were nutritionally deficient generally, even if cognizable, such a claim is not

related to those proceeding in this case.

unsanitary utensils, Plaintiff states a plausible deliberate indifference claim.

Plaintiff alleges Defendants Graham and Cohens served meals in “dirty, filthy

plastic trays, cups, utensils, containers (kegs) with black mildew, fungus, dirt,

food from prior meals, etc. . . . Some of said above trays, cups, utensils,

containers, etc. have human wastes, etc.” See Am. Compl. at 21. However

difficult to believe, if Defendant Graham and Cohens engaged in such conduct,

a risk of serious harm to Plaintiff was obvious.16

For the reasons stated, the Supervisory Defendants and Defendant

McCoy are entitled to qualified immunity because Plaintiff fails to state a

plausible claim for relief against them. However, Defendants Graham and

Cohens are not entitled to qualified immunity at this juncture.

D. Claims Against Defendant Nurse Johnson

After service was returned unexecuted as to Nurse Johnson, the Court

directed Plaintiff to show cause why this Defendant should not be dismissed

and to provide identifying information to effectuate service of process. See

16 It is unclear whether Plaintiff proceeds against Defendants Graham

and Cohens on a theory of respondeat superior or for their personal

participation in the alleged conduct. Liberally construing Plaintiff’s allegations

and considering his responses, the Court interprets Plaintiff to mean that

Defendants Graham and Cohens themselves engaged in the alleged conduct,

by either directly serving Plaintiff or allowing Plaintiff to be served meals in

the manner he describes. To the extent Plaintiff alleges Defendants Graham’s

and Cohens’ conduct was based on a widespread policy or custom, his

allegations are conclusory as previously addressed.

Order (Doc. 131). Plaintiff responded (Doc. 136), saying he has no other

information on Nurse Johnson, and he is unable to search for this Defendant

himself. At this juncture, the Court may independently assess whether

Plaintiff states a plausible claim against Nurse Johnson. See 28 U.S.C. §

1915A(b)(1) (providing that a district court may “dismiss [a prisoner’s]

complaint, or any portion of the complaint, if the complaint . . . fails to state a

claim upon which relief may be granted”). See also 28 U.S.C. § 1915(e)(2)(B).

Plaintiff alleges Nurse Johnson was deliberately indifferent to his

serious medical needs by denying his requests for a 4000-calorie diet (to help

him gain weight) and a non-standard therapeutic diet. See Am. Compl. at 14.

Plaintiff concludes Nurse Johnson lacked the authority to deny his requests.

Id. at 14, 15. Rather, according to Plaintiff, Nurse Johnson should have

referred his requests to a doctor “authorized to prescribe said diet[s] sought.”

Id. at 15. Plaintiff also alleges Nurse Johnson used “profane language” against

him and intimidated him into signing a medical-refusal form on December 13,

2013. Id. at 16.

Accepting as true that Nurse Johnson should have referred Plaintiff’s

requests to a doctor, her failure to do so amounts to oversight or negligence; it

is not an Eighth Amendment violation. Additionally, use of profane language

and threatening gestures do not equate to cruel and unusual punishment or

deliberate indifference. Accordingly, Nurse Johnson is due to be dismissed

from this action.

V. Conclusion

Plaintiff argues a dismissal of any claims would be unfair because, in

directing him to amend his complaint, the Court limited him to only ten

additional pages and prohibited him from attaching exhibits. See FDOC &

Graham Resp. at 3, 6, 11. He also contends his amended complaint “relates

back” to his initial complaint and suggests the Court should consider the

exhibits he attached to his initial complaint in ruling on Defendants’ motions.

See FDOC & Graham Resp. at 3, 6, 11; Cohens Resp. at 4.

Generally, an amended complaint supersedes prior iterations of the

complaint. See Lowery v. Alabama Power Co., 483 F.3d 1184, 1219 (11th Cir.

2007) (“[A]n amended complaint supersedes the initial complaint and becomes

the operative pleading in the case.”). In directing Plaintiff to comply with

federal pleading standards, the Court expressly instructed Plaintiff he may not

“refer to or incorporate by reference his original or amended complaints or

attachments, exhibits, or other documents.” See Order (Doc. 79). The Court so

limited Plaintiff because his initial complaint, first amended complaint, and

proposed second amended complaint contained excessive factual allegations

and attachments, making it difficult to discern his claims and the allegations

supporting those claims, and thereby creating a burden for the Court and

Defendants.

Moreover, the Court found Plaintiff’s proposed second amended

complaint deficient because he made no effort to resolve the pleading

deficiencies the Court repeatedly and painstakingly explained to him. See

Order (Doc. 79). Instead, Plaintiff submitted essentially the same documents

and exhaustive allegations but presented them differently to give the

appearance of compliance.

Plaintiff may not avoid dismissal by complaining the Court required him

to comply with federal pleading standards. In fact, allowing Plaintiff to avoid

dismissal for such a reason would completely undermine the Court’s previous

Orders and contravene federal pleading rules. Also of note, despite the Court’s

instructions to Plaintiff that he should limit his claims to those that are

related, Plaintiff chose to plead multiple, unrelated claims and include

irrelevant allegations. While pro se pleadings are held to a less stringent

standard, the duty of a court to construe pro se pleadings liberally does not

require the court to serve as an attorney for the plaintiff. Freeman v. Sec’y,

Dept. of Corr., 679 F. App’x 982, 982 (11th Cir. 2017) (citing GJR Invs., Inc. v.

Cty. of Escambia, 132 F.3d 1359, 1369 (11th Cir. 1998)). The Court has afforded

Plaintiff more than enough opportunities and guidance to submit a proper

complaint, and he has failed to do so, with only few exceptions. Plaintiff’s pro

se status does not entitle him to ignore Court orders or excuse his failure to

comply with the Federal Rules of Civil Procedure. See Moon v. Newsome, 863

F.2d 835, 837 (11th Cir. 1989) (“[O]nce a pro se IFP litigant is in court, he is

subject to the relevant law and rules of court, including the Federal Rules of

Civil Procedure.”).

Accordingly, for the reasons articulated in this Order, only the following

claims will proceed: deliberate indifference to serious medical needs against

Defendant Le in his individual capacity, and deliberate indifference to health

or safety against Defendants Graham and Cohens in their individual

capacities. All other claims and Defendants will be dismissed.

Accordingly, it is now

ORDERED:

1. Defendant Le’s Motion to Dismiss (Doc. 132) is DENIED.

2. Defendants Inch, Jones, Crews, Palmer, and Reddish’s Motion to

Dismiss (Doc. 134) is GRANTED to the extent Plaintiff fails to state a

plausible claim for relief against them.

3. Defendants Espino and Singletary’s Motion to Dismiss (Doc. 141)

is GRANTED to the extent Plaintiff fails to state a deliberate indifference

claim against them.

4. Defendants Graham and McCoy’s Motion to Dismiss (Doc. 146) is

GRANTED in part and DENIED in part. The motion is GRANTED to the

extent Defendant McCoy is entitled to qualified immunity for Plaintiffs failure

to state a claim against him. The motion is DENIED to the extent Plaintiff

states a plausible deliberate indifference claim against Defendant Graham as

stated in this Order.

5. Defendant Cohens’ Motion to Dismiss (Doc. 158) is GRANTED in

part and DENIED in part as stated in this Order.

6. Plaintiffs claims against the following Defendants are dismissed:

Inch, Jones, Crews, Palmer, Reddish, Espino, Singletary, and McCoy.

7. Upon a sua sponte review under 28 U.S.C. § 1915A(b)(1) and 28

U.S.C. § 1915(e)(2)(B), Plaintiffs claims against Defendant Nurse Johnson are

dismissed without prejudice for Plaintiffs failure to state a claim against

Defendant Johnson.

8. Defendants Le, Graham, and Cohens must answer Plaintiffs

amended complaint within twenty days of the date of this Order.

DONE AND ORDERED at Jacksonville, Florida, this 13th day of

January 2021.

4 jal Dow

BRIAN J. DAVIS

United States District Judge

Jax-6 1/12

C:

Counsel of Record

38