West v. Sabrina Schultz

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

FORT MYERS DIVISION

JAMES DARYL WEST,

Plaintiff,

v. Case No: 2:16-cv-694-FtM-38NPM

RONALD HEMPHILL,

CARMELLO BERRIOS, KAREN

BLANKENSHIP, HOWARD

WETTERER, BONNIE

LAROSA, ROBERT

GILBREATH, SABRINA

SCHULTZ, DIANN SPRATT,

JULIE JONES, WEXFORD

HEALTH SOURCES, INC.,

KATHY CONNER, KARA

WILLIAMS and JAMES

LICATA,

Defendants.

/

OPINION AND ORDER1

Before the Court are the Wexford Defendants’ Omnibus Motion to

Dismiss Fourth Amended Complaint (Doc. 214), Defendant Secretary Mark

Inch’s Motion to Dismiss Fourth Amended Complaint (Doc. 215), the

Department Defendants’ Omnibus Motion to Dismiss Fourth Amended

1 Disclaimer: Documents hyperlinked to CM/ECF are subject to PACER fees. By using

hyperlinks, the Court does not endorse, recommend, approve, or guarantee any third parties

or the services or products they provide, nor does it have any agreements with them. The

Court is also not responsible for a hyperlink’s availability and functionality, and a failed

hyperlink does not affect this Order.

Complaint (Doc. 216), Defendant Robert Gilbreath’s Motion to Dismiss Fourth

Amended Complaint (Doc. 217), and Plaintiff James Daryl West’s responses in

opposition (Doc. 218, Doc. 219, Doc. 220, Doc. 221).

Background

This is a civil rights case filed by James Daryl West, a prisoner of the

Florida Department of Corrections (FDOC). The Court recounts the factual

background as pled in West’s Fourth Amended Complaint, which it must take

as true to decide whether the complaint states plausible claims. See Chandler

v. Sec’y Fla. Dep’t of Transp., 695 F.3d 1194, 1198-90 (11th Cir. 2012). West

was involved in a bus accident in 1999. Since then, he has experienced pain in

his back, knee, and right foot. Specifically, West suffered from the following

conditions:

chronic strained lumbosacral ligament, lower back pain, chronic

and intervertebral disc disorder, thoracolumbar, and lumbosacral

lumbar disc disorder/hernia, lumbar spondylosis, right-sided

sciatica and left sided muscle spasms, injury to the muscle, fascia,

and tendon of his lower back, premature degenerative

osteoarthritis, and localized secondary osteoarthritis of the right

knee.

(Doc. 213 at 5-6).

West was incarcerated at Charlotte Correctional from October 3, 2014,

to September 9, 2015. Wexford Health Sources, Inc. provided healthcare to

inmates at Charlotte Correctional under contract with FDOC and employed

the doctors and nurses who treated West during his incarceration there. While

at Charlotte Correctional, Classification Supervisor James Licata assigned

West to work in food service. West’s supervisors—including Foodservice

Director Robert Gilbreath and managers Sabrina Schultz and Diann Spratt—

sometimes instructed West to sit on an upside-down garbage can and chop

vegetables, which West claims exacerbated his injuries and caused him pain.

They declined to provide West a chair despite multiple requests.

Dr. Carmello Berrios, Chief Health Officer at Charlotte Correctional,

saw West for treatment of his pain on June 11, 2015. Berrios ordered x-rays

of West’s knee and diagnosed him with osteoarthritis, degenerative joint

disease, and chronic pain in his knee. Berrios issued West ibuprofen, analgesic

balm, and a cane, and he gave West “passes for restricted activity, light duty,

limited standing, [and] no bending, pushing, or lifting over 15 pounds.” (Doc.

213 at 25). On June 13, 2015, West was given “a bed rest lay-in pass, a

restricted activity pass, a no work pass, and a no recreation pass” until June

16, 2015. (Doc. 213 at 8). Despite the end date, the pass was to stay in effect

until West was x-rayed. On June 17, 2015, FDOC required West to return to

work even though no x-ray had been performed.

X-rays were taken of West’s knee on June 24, 2015. Berrios marked the

x-ray results as “abnormal.” (Doc. 213 at 26). On June 25, 2015, Karen

Blankenship, an advanced registered nurse practitioner at Charlotte

Correctional, saw West to discuss the x-rays and determine a treatment plan.

West requested further testing and evaluation, but Blankenship did not order

any. Nor did Blankenship give West a pass to excuse him from his food service

assignment.

On June 27, 2015, West complained to food service manager Sabrina

Schultz of knee pain. When Schultz told West he still needed to work his

scheduled shift, West declared a medical emergency. He was then seen by

Bonnie LaRosa, registered nurse at Charlotte Correctional. West rated his

knee pain at 10/10 and requested further diagnostic testing, orthopedic

appliances, and pain medication. LaRosa offered ibuprofen and analgesic

balm.

After leaving sick call, West went back to work his food service

assignment. Schultz instructed him to lift a 75-pound bag of vegetables. West

was injured when he attempted to comply.2 The Fourth Amended Complaint

alleges two accounts of the injury. At paragraph 34, West claims that when he

“attempted to lift the bag, he slipped and was then struck by the bag.” While

at paragraph 315, West claims that when he “reached to pick up the bag, it

toppled down and crashed down on [him], causing [him] to fall.” West could

not get up, and two inmates lifted him into a wheelchair. Schultz did not write

an incident report.

2 Defendants question whether this incident occurred. For the purposes of deciding the

motions to dismiss, the Court presumes that it did.

On June 29, 2015, West sought treatment for injuries resulting from his

June 27 fall, but Blankenship and LaRosa denied care. Blankenship accused

West of lying about the incident, and LaRosa told him that nothing had

changed.

On August 13, 2015, LaRosa and Dr. Howard Wetterer, Chief Health

Officer at Charlotte Correctional,3 saw West for pain and numbness in his back,

swelling and pain in his right knee and foot, and difficulty walking. Wetterer

examined West’s right leg and found it to be smaller and weaker than the left.

West requested more testing and medication, but Wetterer declined. LaRosa

examined West’s leg and found that his bandage was too tight.

On October 14, 2015, Dr. Ronald Hemphill, Chief Health Officer at

Charlotte Correctional, saw West for his ongoing pain. He examined West,

gave him painkillers, and ordered x-rays of his knee and foot. Hemphill

received the x-rays on October 29, 2015. They indicated West suffered from

narrowing and osteophytosis of the medial compartment and patellofemoral

joint and degenerative joint disease. Hemphill saw West again on November

21, 2015, for West’s back, knee, and foot pain. West requested further testing

and a consult with a specialist, but Hemphill declined.

3 West attributes the same “Chief Health Officer” title to Berrios, Wetterer, and Ronald

Hemphill without explanation.

West filed a pro se complaint on September 8, 2016. (Doc. 1). After an

appearance by counsel on West’s behalf and a couple amendments, the Court

dismissed the Second Amended Complaint (Doc. 168) because it was a shotgun

pleading. (Doc. 194). West filed his Third Amended Complaint (Doc. 195), then

moved to amend so he could correct one claim and remove another. The Fourth

Amended Complaint followed. It alleges 16 claims of deliberate indifference to

his medical needs and conditions of confinement. Defendants move to dismiss

the claims for failure to state a claim, failure to exhaust administrative

remedy, and qualified immunity.

Legal Standard

When considering a motion to dismiss under Rule 12(b)(6), courts must

accept all factual allegations in the complaint as true and view them in a light

most favorable to the plaintiff. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

The preferential standard of review, however, does not let all pleadings

adorned with facts survive to the next stage of litigation. The Supreme Court

has been clear on this point – a district court should dismiss a claim when a

party does not plead facts that make the claim facially plausible. See Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is facially plausible when

a court can draw a reasonable inference, based on facts pled, that the opposing

party is liable for the alleged misconduct. See Iqbal, 556 U.S. at 678. This

plausibility standard requires “more than a sheer possibility that a defendant

has acted unlawfully.” Id. (citing Twombly, 550 U.S. at 557 (internal quotation

marks omitted)). And a plaintiff must allege more than labels and conclusions

amounting to a formulaic recitation of the elements of a cause of action.

Twombly, 550 U.S. at 555.

West files his Fourth Amended Complaint under 42 U.S.C. § 1983. To

state a § 1983 claim, a plaintiff must allege that (1) the defendant deprived

him of a right secured under the Constitution or federal law, and (2) the

deprivation occurred under color of state law. Bingham v. Thomas, 654 F.3d

1171, 1175 (11th Cir. 2011) (citing Arrington v. Cobb Cty., 139 F.3d 865, 872

(11th Cir. 1998)). In addition, a plaintiff must allege and establish an

affirmative causal connection between the defendant’s conduct and the

constitutional deprivation. Marsh v. Butler Cty., Ala., 268 F.3d 1014, 1059

(11th Cir. 2001).

Discussion

A. Exhaustion of Administrative Remedies

Under the Prison Litigation Reform Act, before a prisoner may bring a §

1983 claim, he must exhaust available administrative remedies. 42 U.S.C. §

1997e. The purpose of administrative exhaustion “is to put the administrative

authority on notice of all issues in contention and to allow the authority an

opportunity to investigate those issues.” Chandler v. Crosby, 379 F.3d 1278,

1287 (11th Cir. 2004) (cleaned up). The PLRA requires “proper exhaustion,”

which “demands compliance with an agency’s deadlines and other critical

procedural rules because no adjudicative system can function effectively

without imposing some orderly structure on the course of its proceedings.”

Woodford v. Ngo, 548 U.S. 81, 90-91 (2006).

The Eleventh Circuit has established a two-step process for deciding a

motion to dismiss for failure to exhaust administrative remedies:

First, the court looks to the factual allegations in the defendant’s

motion to dismiss and those in the plaintiff’s response, and if they

conflict, takes the plaintiff’s version of the facts as true. If, in that

light, the defendant is entitled to have the complaint dismissed for

failure to exhaust administrative remedies, it must be

dismissed…If the complaint is not subject to dismissal at the first

step, where plaintiff’s allegations are assumed to be true, the court

then proceeds to make specific findings in order to resolve the

disputed factual issues related to exhaustion. The defendants bear

the burden of proving that the plaintiff has failed to exhaust his

available administrative remedies. Once the court makes findings

on the disputed issues of fact, it then decides whether under those

findings the prisoner has exhausted his available administrative

remedies.

Turner v. Burnside, 541 F.3d 1077, 1082-83 (11th Cir. 2008).

The Florida legislature delegated to FDOC the establishment of

administrative remedies for aggrieved inmates. Chandler, 379 F.3d at 1287.

FDOC created a three-step grievance process. To exhaust it, a prisoner must

(1) file an informal grievance to the responsible staff member, (2) file a formal

grievance with the warden’s office; and (3) appeal the formal grievance to the

Secretary of the FDOC. Id. at 1288.

West attached to his Fourth Amended Complaint a printout of his appeal

records during his incarceration. (Doc. 213-1). The records log dozens of

grievance appeals beginning in 2010. West also attached 5 informal

grievances, 13 formal grievances, 15 secretary-level appeals, and FDOC’s

responses. (Doc. 213-1). Defendants challenge the grievances for not

addressing the subject matter of this case and not identifying all Defendants.

They also point out that some grievances and appeals were returned without

action due to procedural defects.

After carefully reviewing the grievances, the Court finds that West

exhausted his administrative remedies as to his medical care, being required

to sit on an upside-down garbage can, and being ordered to carry a 75-pound

bag of vegetables. While the grievances sometimes stray from the issues

complained of here, they provided FDOC fair notice that West considered his

medical treatment and working conditions unconstitutional. That remains

true even if the Court disregards the grievances and appeals that were

returned without action due to procedural defects. For example, Grievance No.

15-6-32735 complained of constant knee pain and requested additional medical

treatment. Grievance Nos. 15-6-30011, 15-6-30017 and 15-6-29606 complained

that West’s working conditions caused him pain and violated his medical

passes. And Grievance No. 15-6-29582 centers on West’s July 27 injury while

working in food service. West appealed all five of these grievances to the

secretary level. Finally, West need not have identified all Defendants in his

grievances. PLRA does not impose a “name all defendants” requirement.

Jonse v. Bock, 549 U.S. 199, 217 (2007).

Given the purpose of administrative exhaustion—"to put the

administrative authority on notice of all issues in contention and to allow the

authority an opportunity to investigate those issues”—the Court finds that

West satisfied the PLRA’s pre-suit conditions. Chandler, 379 F.3d at 1287.

There is one exception. In his claims against Gilbreath and Schultz, West

vaguely alleges he was required to return to work after being given a bed-rest

pass. West does not identify who made him return to work, so it is unclear

whether his claims against Gilbreath and Schultz are based on that allegation.

Regardless, he did not mention this claim in his grievances. So to the extent

West claims liability based on his return to work in violation of a bed-rest pass,

that claim was not exhausted.

B. Pleading Sufficiency

West accuses Defendants of violating his rights under the Eighth

Amendment to be free from cruel and unusual punishment. Specifically, he

alleges deliberate indifference to his serious medical needs and conditions of

confinement.

Only officials who personally participate in constitutional violations may

be liable under § 1983. Coleman v. Bowden, 797 F. App’x 422, 427 (11th Cir.

2019). Three Defendants did not personally participate in any of West’s alleged

constitutional violations and can thus be dismissed at the outset. Julie Jones—

whom West sued in her individual capacity—is the former Secretary of the

FDOC.4 West does not allege any facts suggesting that Jones had knowledge

of his medical treatment or working conditions, or that she directed his

treatment in any way. Kathy Conner and Kara Williams were FDOC

employees whose sole participation in the alleged facts was reviewing and

responding to West’s grievances and appeals. Denying grievances, without

more, does not support liability under § 1983. Id.; see also Lee v. Mich. Parole

Bd., 104 F. App’x 490, 493 (6th Cir. 2004) (“Section 1983 liability may not be

imposed simply because a defendant denied an administrative grievance or

failed to act based upon information contained in a grievance.”). Thus, the

claims against Jones, Conner, and Williams—Counts 1, 2, and 9-12—are

dismissed.

1. Deliberate Indifference to Serious Medical Need

“To prevail on a claim of deliberate indifference to serious medical need

in violation of the [Eighth] Amendment, a plaintiff must show: ‘(1) a serious

medical need; (2) the defendant['s] deliberate indifference to that need; and (3)

causation between that indifference and the plaintiff's injury.” Youmans v.

4 Current secretary Mark Inch was not substituted for Jones under Federal Rule of Civil

Procedure 25(d) because Rule 25(d) only applies to a party sued in his or her official capacity.

Gagnon, 626 F.3d 557, 563 (11th Cir.2010) (quoting Mann v. Taser Int'l, Inc.,

588 F.3d 1291, 1306–07 (11th Cir. 2009)).

In the Eleventh Circuit, “[a] serious medical need is ‘one that has been

diagnosed by a physician as mandating treatment or one that is so obvious that

a lay person would easily recognize the necessity for a doctor’s attention.’”

Shaw v. Allen, 701 F. App’x 891, 893 (11th Cir. 2017) (quoting Farrow v. West,

320 F.3d 1235, 1243 (11th Cir. 2003)). West alleges his medical conditions—

listed above—constitute a serious medical need because they were painful.

(Doc. 212 at 6, ¶ 30; Doc. 220 at 3). “Severe pain that is not promptly or

adequately treated can…constitute a serious medical need depending on the

circumstances.” Melton v. Abston, 841 F.3d 1207, 1222 (11th Cir. 2016).

Interpreting West’s allegations in a light most favorable to him, the Court finds

he plausibly alleged a serious medical need.

Next, West must plausibly allege that each Defendant was deliberately

indifferent to his serious medical need. Deliberate indifference has three

components: “(1) subjective knowledge of a risk of serious harm; (2) disregard

of that risk; (3) by conduct that is more than mere negligence.” Bingham v.

Thomas, 654 F.3d 1171, 1176 (11th Cir. 2011) (internal quotation marks

omitted). “Conduct that is more than mere negligence includes: (1) grossly

inadequate care; (2) a decision to take an easier but less efficacious course of

treatment; and (3) medical care that is so cursory as to amount to no treatment

at all.” Id.

Mere medical malpractice or “a simple difference in medical opinion

between the prison’s medical staff and the inmate as to the latter’s diagnosis

or course of treatment does not support a claim of deliberate indifference.”

Melton, 841 F.3d at 1224. Nor does the exercise of medical judgment by a care

provider. Hernandez v. Sec’y Fla. Dep’t of Corr., 611 F. App’x 582, 584 (11th

Cir. 2015). “When a prisoner has received medical attention, courts are

reluctant to second-guess medical judgments even if there is a dispute over the

adequacy of treatment.” Brennan v. Headley, 807 F. App’x 927, 935 (11th Cir.

2020). “Rather, medical treatment violates the Eighth Amendment only when

it is so grossly incompetent, inadequate, or excessive as to shock the conscience

or to be intolerable to fundamental fairness.” Id. (cleaned up).

In evaluating claims of deliberate indifference, courts must judge each

defendant separately and based on what that person knew. Melton, 841 F.3d

at 1224.

a. Dr. Carmello Berrios (Count 4)

Berrios has not appeared in this case and thus has not moved to dismiss

Count 4. But since West is proceeding in forma pauperis, the Court will review

whether Count 4 states a claim on which relief can be granted. See 28 U.S.C.

§ 1915(e)(2) (“the court shall dismiss the case at any time if the court

determines that…(B) the action…(ii) fails to state a claim on which relief may

be granted”).

On June 11, 2015, Berrios examined West and diagnosed him with

osteoarthritis, degenerative joint disease, and chronic knee pain. Berrios gave

West ibuprofen, analgesic balm, and a cane, ordered x-rays of his knee, and

gave him passes to limit his activity. When West told Berrios that Gilbreath

was not honoring the restricted activity passes, Berrios said, “I have written

all the passes authorized by the FDOC.” (Doc. 213 at 25). On June 24, 2015,

Berrios told West that further treatment was “out of the question.” (Doc. 213

at 26).

Berrios did not deny West medical treatment. And contrary to West’s

conclusory allegation, Berrios’s medical care was not so cursory as to amount

to no care at all. Rather, West’s allegations demonstrate that Berrios exercised

his medical judgment and instituted a treatment plan. West wanted more

extensive treatment, but a difference in medical opinion does not give rise to a

claim for deliberate indifference. “[A]s Estelle teaches, the question of whether

government 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) (quoting

Estelle v. Gamble, 429 U.S. 97, 107 (1976)). The Court is guided by Estelle here

and in deciding the remaining medical deliberate indifference claims. Count 4

is dismissed.

b. Karen Blankenship (Count 5)

West’s claim against Blankenship stems from two days in June 2015. On

June 25, Blankenship saw West to discuss his recent x-ray and determine a

treatment plan. During the visit, West requested further testing and

evaluation, but Blankenship did not order any. That shows a difference in

medical opinion, not deliberate indifference.

On June 29, 2015, Blankenship declined to examine or treat West when

he sought care for his June 27 fall because she thought West was lying about

the accident. West explained in a grievance attached to the Fourth Amended

Complaint that Blankenship “really believed that [he] was lying about being

hurt in foodservice because there was no documentation in [his] medical

jacket.” (Doc. 213-1 at 32). Thus, Blankenship did not have subjective

knowledge of a serious medical need on June 29. While Blankenship’s disbelief

might support a claim of negligence or medical malpractice, it is not deliberate

indifference. Count 5 is dismissed.

c. Dr. Howard Wetterer (Count 6)

Wetterer examined West’s knee on August 13, 2015. West wanted more

diagnostic testing and medication, but Wetterer declined. West filed a

grievance requesting an MRI. In response, Wetterer affirmed his assessment,

noting that previous x-rays showed mild arthritis. (Doc. 213-1 at 40). These

allegations demonstrate that Wetterer exercised his medical judgment and

formed an opinion that was different than West’s. That does not amount to

deliberate indifference. Count 6 is dismissed.

d. Bonnie LaRosa (Count 7)

LaRosa saw West twice in 2015. On June 27, 2015, West rated his knee

pain at a 10/10. LaRosa offered ibuprofen and an analgesic balm but rejected

West’s request for further diagnostic testing, orthopedic appliances, and pain

medication. Then on August 13, 2015, West saw LaRosa with difficulty

walking and a swollen knee. LaRosa examined West and determined the

bandage was too tight. LaRosa’s exercise of medical judgment, even if West

disagreed with it, did not demonstrate deliberate indifference. Count 7 is

dismissed.

e. Dr. Ronald Hemphill (Count 8)

Hemphill saw West twice in 2015. On October 14, 2015, Hemphill

examined West, ordered x-rays of his knee and foot (but not his back), and gave

West painkillers. Hemphill saw West again on November 21, 2015. West’s

only allegation from that visit is that Hemphill denied West’s request to see a

specialist and receive more examination and testing. Hemphill’s refusal to

offer West’s preferred course of treatment was not deliberate indifference.

Count 8 is dismissed.

f. Wexford Health Sources, Inc. (Count 3)

Wexford is a private company that provided healthcare to inmates at

Charlotte Correctional under contract with FDOC. As such, Wexford “is

treated as a municipality for purposes of § 1983 claims.” Brennan v. Headley,

807 F. App’x 927, 937 (11th Cir. 2020). Wexford can only be liable if “the

alleged constitutional harm is the result of a custom or policy.” Id. “A policy

is a decision that is officially adopted by the municipality, or created by an

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

municipality, and a custom is a practice that is so settled and permanent that

it takes on the force of law.” Id. (cleaned up).

West alleges he did not receive his desired medical treatment from

Berrios, Blankenship, LaRosa, and Wetterer because Wexford and FDOC

would not authorize it. He claims that Berrios and Blankenship told him

Wexford and FDOC restricted non-emergency care. Wexford argues West has

not met his burden of proof that an offending policy or custom exists. But that

argument is premature. At this stage, West merely needs to allege facts that

make the existence of such a policy or custom plausible. West has done so.

Having found that West adequately alleged a policy or custom, the Court

must decide whether the policy or custom plausibly caused a constitutional

deprivation. West oversteps a bit by alleging that “WEXFORD’s blanket denial

of WEST’s medically necessary evaluation” left his injuries “untreated.” (Doc.

213 at 23). That does not comport with West’s more specific allegations.

Wexford employees evaluated West multiple times and provided West ongoing

treatment. However, West has plausibly alleged that a policy of restricting

non-emergency medical treatment tied the hands of Wexford employees,

prevented West from receiving more intensive treatment, and left him in

severe pain. The Court finds West’s allegations sufficient to state a claim

against Wexford for deliberate indifference.

The Court’s ruling on this point is not inconsistent with dismissal of the

claims against the individual Wexford employees. Monell liability can exist

even if no employee is individually liable. Barnett v. MacArthur 956 F.3d 1291,

1301 (11th Cir. 2020). “Situations may arise where the combined actions of

multiple officials or employees may give rise to a constitutional violation,

supporting municipal liability, but were no one individual’s actions are

sufficient to establish personal liability for the violation.” Id. (quoting Fairley

v. Luman, 281 F.3d 913, 917 (9th Cir. 2002)). The Court dismisses West’s

claims against the individual employees because West did not plausibly allege

that they had the requisite state of mind. That pleading failure does not

undermine West’s claim against Wexford.

2. Deliberate Indifference to Conditions of Confinement

The requirements of an Eighth Amendment claim based on deliberate

indifference to conditions of confinement are similar to those for medical

indifference. A plaintiff must satisfy objective and subjective criteria:

Under the objective component, the plaintiff must demonstrate “a

substantial risk of serious harm.” [Farmer v. Brennan, 511 U.S.

825, 834 (1994)]…Under the subjective component, the plaintiff

must prove “the defendants’ deliberate indifference” to that risk of

harm by making three sub-showings: “(1) subjective knowledge of

a risk of serious harm; (2) disregard of that risk; (3) by conduct that

is more than mere negligence.” [Lane v. Philbin, 835 F.3d 1302,

1307 (11th Cir. 2016)].

Swain v. Junior, 961 F.3d 1276, 1285 (11th Cir. 2020).

West’s conditions-of-confinement claims are based on allegations that

prison officials ignored his medical passes. Berrios diagnosed West with

osteoarthritis, degenerative joint disease, and chronic knee pain and

implemented a treatment plan that included limitations on certain physical

activities. The Court finds it plausible that an official’s disregard of West’s

prescribed limitations could create a substantial risk of serious harm. See

Shaw, supra (“A serious medical need is ‘one that has been diagnosed by a

physician as mandating treatment or one that is so obvious that a lay person

would easily recognize the necessity for a doctor’s attention.’”).

a. James Licata (Count 13)

West sued Licata for assigning him to work in food service and denying

two grievances. West does not allege that Licata knew of West’s medical

conditions and limitations when he assigned West to food service. On June 30,

2015, West filed a grievance requesting a different work assignment. Licata

denied the grievance because West was already scheduled to see the

Institutional Classification Team about a job change. On July 15, 2015, West

filed a grievance against Spratt for making him sit on an upside-down garbage

can and chop vegetables. Licata denied the grievance because it accused Spratt

of retaliating against him but did not identify any action that could be

considered retaliation. (Doc. 213-1 at 55). These allegations do suggest

deliberate indifference. Count 13 is dismissed.

b. Robert Gilbreath (Count 14)

West sues Gilbreath for ignoring West’s medical passes and requiring

West to sit on an upside-down garbage can and chop vegetables. West claims

Gilbreath told him, “If you don’t have a bed rest, lay-in pass, you will work or

go to confinement for refusing to work” and “I don’t care about your passes or

cane.” (Doc. 213 at 52). But West does not allege that Gilbreath actually made

him work while a bed rest pass was in effect. And even if he did, West did not

exhaust his administrative remedies for such a claim. What is more, sitting

on an upside-down garbage can did not violate the limitations enumerated in

West’s medical passes: “Light duty, restricted activity, no standing over 15

minutes, no bending, pulling, or pushing, no lifting over 15 pounds, and the

use of a cane.” (Doc. 213 at 53). Because West does not allege that Gilbreath

made him do anything in violation of his medical passes, Count 14 fails to state

a claim.

c. Sabrina Schultz (Count 15)

Like Berrios, Schultz has not appeared in this case and thus has not

moved to dismiss Count 15. But the Court will review whether Count 15 states

a claim on which relief can be granted. See 28 U.S.C. § 1915(e)(2), supra.

West’s claim against Schultz stems from June 27, 2015, when Schultz

told him to sit on a garbage can and chop vegetables, then told him to carry a

75-pound bag of vegetables. West reminded Schultz that he was cane-

dependent and was not supposed to lift more than 15 pounds, but to no avail.

Schultz threatened West with confinement if he refused. When West

attempted to lift the bag, he fell and exacerbated his preexisting injuries. The

Court finds these allegations sufficient to state a claim for deliberate

indifference.

d. Diann Spratt (Count 16)

West alleges that Spratt regularly required him to sit on a garbage can

instead of a chair and carry 75-pound bags of vegetables, and that Spratt

threatened to place West in confinement if he refused. West also alleges that

Spratt knew he was cane-dependent and limited to lifting no more than 15

pounds. Ordering West to exceed his prescribed limitations created a

substantial risk of serious harm. West has stated a claim for deliberate

indifference against Spratt.

C. Qualified Immunity

The FDOC Defendants raise the defense of qualified immunity, which

protects government officials from civil liability. Howard v. Memnon, 572 F.

App’x 692, 696 (11th Cir. 2014). “To claim qualified immunity, a defendant

must first show he was performing a discretionary function.” Id. “The burden

then shifts to the plaintiff to show that: (1) the defendant violated a

constitutional right; and (2) the right was clearly established at the time of the

violation.” Id. A right is “clearly established” if a reasonable person would

have known about it.

The allegations in the Fourth Amended Complaint establish that Schultz

and Spratt were acting within their discretionary authority when they directed

West’s work in his food service assignment at Charlotte Correctional. The

burden thus shifts to West to show violation of a clearly established

constitutional right. The Court found above that Schultz and Spratt violated

the Eighth Amendment by ordering him to carry 75-pound bags of vegetables

against doctor’s orders. The Court also finds that ordering West to greatly

exceed the lifting limitations prescribed by Dr. Berrios was so obviously wrong

that any reasonable official would have known it violated the Constitution.

Thus, Schultz and Spratt are not shielded by qualified immunity—at least not

at this stage of the case. After further development of the facts, this issue can

be addressed at the summary judgment stage.

Accordingly, it is now

ORDERED:

1. The Wexford Defendants’ Omnibus Motion to Dismiss Fourth

Amended Complaint (Doc. 214) is GRANTED in part and DENIED

in part.

2. Defendant Secretary Mark Inch’s Motion to Dismiss Fourth Amended

Complaint (Doc. 215) is GRANTED.

3. The Department Defendants’ Omnibus Motion to Dismiss Fourth

Amended Complaint (Doc. 216) GRANTED in part and DENIED

in part.

4. Defendant Robert Gilbreath’s Motion to Dismiss Fourth Amended

Complaint (Doc. 217) is GRANTED.

5. Counts 1, 2, and 4-14 are DISMISSED.

6. The Clerk is DIRECTED to terminate all Defendants except Wexford

Health Sources, Inc., Sabrina Schultz, and Diann Spratt.

7. Wexford and Spratt must answer the Fourth Amended Complaint on

or before February 11, 2021. The Court will address service of

process on Schultz in a separate order.

DONE and ORDERED in Fort Myers, Florida on January 28, 2021.

tite POLSTER otal

UNITED STATES DISTRICT JUDGE

Copies: All Parties of Record