Eslinger v. State of Florida Department of Corrections

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

OCALA DIVISION

COLEEN ESLINGER, as Personal

Representative of the Estate

of Alyse Danielle Rolnick,

Plaintiff,

v. Case No. 5:20-cv-11-BJD-PRL

FLORIDA DEPARTMENT OF

CORRECTIONS, et al.

Defendants.

______________________________

ORDER

I. Status

Plaintiff is proceeding on a second amended complaint filed by counsel

(Doc. 47; Am. Compl.). As personal representative of the estate of Alyse

Danielle Rolnick, a former inmate of the Florida Department of Corrections

(FDOC), Plaintiff sues Defendants for damages under federal and state law for

Ms. Rolnick’s death. Plaintiff proceeds against the following Defendants: the

FDOC; Kim Chris Southerland in her capacity as warden of Florida Women’s

Reception Center (FWRC); Hope E. Gartman in her capacity as warden of

Lowell Correctional Institution (LCI); Centurion of Florida, the company under

contract with the FDOC at the relevant times to provide medical care for

inmates; Carlos M. Gonzalez Pagan, M.D.; and Jose Rodriguez, M.D. See Am.

Compl. ¶ 7.

Defendants FDOC, Gartman, and Southerland move to dismiss the

claims against them under Rule 12(b)(6), Federal Rules of Civil Procedure

(Docs. 50, 51, 53). Plaintiff has responded to the motions to dismiss (Docs. 55-

57). Defendants Centurion, Gonzalez Pagan, and Rodriguez (the medical

Defendants) have answered the complaint (Doc. 54).

Also before the Court is Plaintiff’s motion for out-of-time disclosure of

her expert (Doc. 63; Disc. Motion), which the medical Defendants oppose (Doc.

64; Disc. Motion Resp.).

II. Motion to Dismiss Standard

A party may move to dismiss a complaint for a plaintiff’s “failure to state

a claim upon which relief may be granted.” See Fed. R. Civ. P. 12(b)(6). In

ruling on such a motion, the court must accept the plaintiff’s allegations as

true, but the Court need not accept as true legal conclusions. See Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009). Though detailed factual allegations are not

required, a plaintiff should allege enough facts “to raise a reasonable

expectation that discovery will reveal evidence” supporting the plaintiff’s

claims. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007). Rule 8(a) demands

“more than an unadorned, the-defendant-unlawfully-harmed-me accusation.”

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Iqbal, 565 U.S. at 678. The purpose of the federal pleading rules is to ensure a

plaintiff presents her “claims discretely and succinctly, so that[ ] h[er]

adversary can discern what [s]he is claiming and frame a responsive pleading.”

Barmapov v. Amuial, 986 F.3d 1321, 1324 (11th Cir. 2021) (quoting Weiland v.

Palm Bch. Cnty. Sheriff’s Off., 792 F.3d 1313, 1320 (11th Cir. 2015) (first

alteration in original)).

III. Complaint Allegations

Ms. Rolnick was an inmate in the custody of the FDOC beginning on

about April 27, 2017, through her death in early January 2018. See Am. Compl.

¶¶ 40, 97, 99. Ms. Rolnick was first housed at FWRC and was transferred to

LCI on October 16, 2017. Id. ¶ 40. When she entered the FDOC, Ms. Rolnick

had a rare condition called Pulmonary Arterial Hypertension (PAH). Id. ¶ 45.

Plaintiff describes PAH as “a chronic disease that causes the walls of the

arteries of the lungs to tighten and stiffen …. [which] causes stress to the right

side of the heart …. compromising the heart’s ability to push blood out of the

heart, through the lungs and into the rest of the body.” Id.

Plaintiff alleges Defendants knew of Ms. Rolnick’s serious medical

condition and knew she needed to receive “inspired oxygen” 24 hours a day. Id.

¶¶ 46-47. Despite this knowledge, however, Defendants “never provided [Ms.

Rolnick] the appropriate medication or oxygen required to treat her.” Id. ¶ 48.

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According to Plaintiff, when Ms. Rolnick was housed at FWRC, urgent medical

appointments were delayed or canceled, id. ¶¶ 51-58, 60, and Ms. Rolnick

submitted “several” inquiries about the status of her care and to request

treatment, which were not immediately answered or that did not address her

needs, id. ¶¶ 62-67. After Ms. Rolnick was transferred to LCI on October 16,

2017, she still did not receive oxygen or the medication she required to properly

treat her condition. Id. ¶¶ 68-69.

Plaintiff alleges she sent emails and called Defendants Gartman,

Southerland, and other FDOC and Centurion representatives “advising them

of [Ms.] Rolnick’s serious medical needs and pleading with them to address”

those needs. Id. ¶¶ 73-74. Plaintiff chronicles the communications she made or

attempted to make between May 1, 2017, and August 28, 2017. Id. ¶¶ 76-95.

Plaintiff alleges she specifically informed Defendant Southerland, the warden

of FWRC, that Ms. Rolnick could not be in the heat or humidity or walk long

distances and required a particular kind of medication, which the FWRC doctor

refused to prescribe. Id. ¶¶ 91, 93, 94. Plaintiff’s “repeated attempts” to obtain

appropriate medical attention for Ms. Rolnick went ignored. Id. ¶ 75.

Just days before her death at LCI, Ms. Rolnick submitted an inmate

request form “pleading to see a doctor because of her inability to breathe.” Id.

¶ 97. Two days later, the responding official, who is not a Defendant in this

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action, told Ms. Rolnick to submit a sick-call request.1 Id. Three days after that,

Ms. Rolnick was found unresponsive in her cell. Id. ¶ 99. Unnamed Defendants

refused immediate entry to first responders, instructing them first to move the

ambulance and then sending them to the wrong location within the prison. Id.

¶¶ 99-100. When first responders eventually made it to Ms. Rolnick, they could

not revive her, and she was pronounced dead. Id. ¶ 101. The cause of her death

was pulmonary hypertension. Id.

In separate counts, Plaintiff asserts claims under 42 U.S.C. § 1983

against Defendants Southerland, Gartman, Gonzalez Pagan, Rodriguez,

Centurion, and the FDOC for their deliberate indifference to Ms. Rolnick’s

serious medical needs. Id. ¶¶ 104-05, 109, 114, 119, 124, 129, 138-41, 154-55,

157, 165-80, 181-96. Plaintiff also asserts state tort claims against the FDOC

and the medical Defendants. Id. ¶¶ 202-04, 209-11, 215-17, 221-23.

IV. The Motions to Dismiss

The following motions to dismiss are before the Court: the FDOC’s (Doc.

50; FDOC Motion); Defendant Gartman’s (Doc. 51; Gartman Motion); and

Defendant Southerland’s (Doc. 53; Southerland Motion). In each motion,

Defendants assert, among other things, that Plaintiff fails to state a plausible

1 With her complaint, Plaintiff filed a copy of the inmate request and response

(Doc. 47-1).

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deliberate indifference claim under § 1983.

To state a claim under 42 U.S.C. § 1983, a plaintiff must allege “a person”

acting under the color of state law deprived her of a right secured under the

United States Constitution or federal law. See 42 U.S.C. § 1983. 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 she 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)

(describing the three components of deliberate indifference as “(1) subjective

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

that is more than mere negligence”).

“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 Cnty., 774 F.2d 1567, 1575 (11th Cir. 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.

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However, a prisoner who receives some medical care may state a

plausible claim for deliberate indifference if she alleges the care she received

was “so cursory as to amount to no treatment at all,” was grossly inadequate,

or was guided by a “decision to take an easier but less efficacious course of

treatment.” McElligott v. Foley, 182 F.3d 1248, 1255 (11th Cir. 1999). See also

Harris v. Thigpen, 941 F.2d 1495, 1505 (11th Cir. 1991) (“Medical treatment

violates the [E]ighth [A]mendment only when it is ‘so grossly incompetent,

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

fundamental fairness.’”).

“A core principle of Eighth Amendment jurisprudence in the area of

medical care is that prison officials with knowledge of the need for care may

not, by failing to provide care, delaying care, or providing grossly inadequate

care, cause a prisoner to needlessly suffer the pain resulting from his or her

illness.” McElligott, 182 F.3d at 1257. Accordingly, the Eleventh Circuit has

“repeatedly found that ‘an official acts with deliberate indifference when he or

she knows that an inmate is in serious need of medical care, but he fails or

refuses to obtain medical treatment for the inmate.’” Id. at 1255.

“It 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

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1352, 1360 (11th Cir. 2003) (“The standard by which a supervisor is held

liable in [his or her] individual capacity for the actions of a subordinate is

extremely rigorous.”), abrogated in part on other grounds by Randall v. Scott,

610 F.3d 701 (11th Cir. 2010). A supervisor may be liable under § 1983 only

when he or she “personally participates in the alleged constitutional violation

or when there is a causal connection between [his or her] actions … 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 claim against a supervisor is premised on a supervisor’s

knowledge of prior constitutional deprivations, the plaintiff must show those

prior deprivations were “obvious, flagrant, rampant and of continued duration,

rather than isolated occurrences.” Brown v. Crawford, 906 F.2d 667, 671 (11th

Cir. 1990). A supervisor’s failure to train employees may constitute an

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unconstitutional policy or custom, but a plaintiff must allege “the failure to

train amounts to deliberate indifference” to an inmate’s health or safety. See

Keith v. DeKalb Cnty., Georgia, 749 F.3d 1034, 1053 (11th Cir. 2014). Under a

failure-to-train theory, a plaintiff ordinarily must establish the alleged

training deficiency resulted in “[a] pattern of similar constitutional violations.”

Id. (alteration in original) (quoting Connick v. Thompson, 563 U.S. 51, 62

(2011)).

A. The FDOC’s Motion

Plaintiff names the FDOC in four counts: count six (deliberate

indifference under § 1983); count ten (supervisory liability under § 1983); count

eleven (medical negligence under state law); and count fifteen (general

negligence under state law). The FDOC argues Plaintiff fails to state a claim

for relief under § 1983 because she alleges no facts showing the FDOC was

deliberately indifferent to Ms. Rolnick’s medical needs or adopted a policy or

custom that was the driving force behind a constitutional violation; Plaintiff

fails to state a plausible claim for medical negligence because the FDOC is not

a medical provider; Plaintiff fails to state a claim for negligence because she

does not allege the FDOC owed a duty to Ms. Rolnick; and the complaint is a

“shotgun pleading.” See FDOC Motion at 3-5. In response (Doc. 55; Pl. FDOC

Resp.), Plaintiff contends she adequately pleads claims under § 1983, and the

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FDOC can be held vicariously liable for the negligent acts of its employees or

agents. See Pl. FDOC Resp. at 5, 8-9, 11, 14.

Whether Plaintiff’s factual allegations are substantively sufficient to

state a plausible deliberate indifference claim against the FDOC, the claims

arising under § 1983 fail for a more fundamental reason: A state agency such

as the FDOC is not a person amenable to suit under § 1983. See Gardner v.

Riska, 444 F. App’x 353, 355 (11th Cir. 2011) (“A state, a state agency, and a

state official sued in his official capacity are not ‘persons’ within the meaning

of § 1983, thus damages are unavailable.” (quoting Edwards v. Wallace Cmty.

Coll., 49 F.3d 1517, 1524 (11th Cir. 1995))). As such, Plaintiff’s § 1983 claims

against the FDOC (counts six and ten) are subject to dismissal.

Whether the state-law claims may proceed is less clear given the parties’

briefing. The FDOC asserts it cannot be liable for medical malpractice (count

eleven) because it is not a healthcare provider, or for general negligence (count

fifteen) because Plaintiff “fails to allege that [it] owed a duty” to Ms. Rolnick

related to the provision of medical care. See FDOC Motion at 4, 5. In response,

Plaintiff clarifies its state claims are based on a theory of vicarious liability.

See Pl. Resp. at 11-12, 14; see also Am. Compl. ¶¶ 198-203. The Florida

sovereign immunity statute provides as follows, in pertinent part:

The exclusive remedy for injury or damage suffered as

a result of an act, event, or omission of an officer,

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employee, or agent of the state or any of its

subdivisions or constitutional officers shall be by

action against the governmental entity, or the head of

such entity in her or his official capacity, or the

constitutional officer of which the officer, employee, or

agent is an employee, unless such act or omission was

committed in bad faith or with malicious purpose or in

a manner exhibiting wanton and willful disregard of

human rights, safety, or property.

Fla. Stat. § 768.28(9)(a). As a state agency, the FDOC can be sued in state court

for the negligent acts of its employees or agents. Id.

However, because Plaintiff seeks solely compensatory damages from the

FDOC, the state claims may not be cognizable in this Court given the State’s

entitlement to Eleventh Amendment immunity. See Fla. Stat. § 768.28(18)

(“No provision of this section, or of any other section of the Florida Statutes …

shall be construed to waive the immunity of the state or any of its agencies

from suit in federal court, as such immunity is guaranteed by the Eleventh

Amendment.”). See also Schopler v. Bliss, 903 F.2d 1373, 1378-79 (11th Cir.

1990) (“This court has held that section 768.28 does not waive Florida’s

Eleventh Amendment immunity.”); Powell v. Fla. Dep’t of Corr., No. 4:17-CV-

453-WS-GRJ, 2018 WL 2033711, at *3 (N.D. Fla. Mar. 28, 2018), report and

recommendation adopted, No. 4:17CV453-WS/GRJ, 2018 WL 2024624 (N.D.

Fla. May 1, 2018) (“Florida’s consent to be sued for tort claims in state court

in [section] 768.28, Florida Statutes, does not allow tort claims against Florida

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in federal court.”). On summary judgment, the parties should address this

threshold issue. At this juncture, though, the state claims will proceed.

B. Defendant Gartman’s Motion

Defendant Gartman argues Plaintiff’s deliberate indifference claims fail

because Plaintiff makes “all[-]encompassing assertions” about Defendants

jointly and Plaintiff’s allegations directed to her are merely a “formulaic

recitation of the elements of a cause of action.” See Gartman Motion at 3, 5-6.2

Plaintiff alleges enough facts that, accepted as true, demonstrate Ms.

Rolnick had a serious medical need when she was housed at FWRC and LCI.

However, Plaintiff directs absolutely no factual allegations to Defendant

Gartman that would permit the reasonable inference Defendant Gartman

knew of Ms. Rolnick’s serious medical needs and, with that knowledge, was

deliberately indifferent.

Plaintiff refers to Defendant Gartman only in two paragraphs in which

she sets forth the general factual allegations that support her claims:

Coleen Eslinger, on behalf of Alyse Rolnick sent

emails to Gartman, Southerland, and other FDOC and

2 Defendant Gartman also invokes sovereign immunity under Florida law but

confusingly combines the sovereign-immunity and qualified-immunity standards.

See Gartman Motion at 7-8. Regardless, Plaintiff clarifies in her response (Doc. 56;

Pl. Gartman Resp.) that she does not assert state tort claims against Defendant

Gartman. See Pl. Gartman Resp. at 13.

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Centurion representatives, employees, and agents

advising them of Rolnick’s serious medical needs and

pleading with them to address Rolnick’s serious

medical needs.

Furthermore, Coleen Eslinger, on behalf of

Alyse Rolnick made telephone calls and left messages

in attempts to speak to Gartman, Southerland, and

other FDOC and Centurion representatives,

employees, and agents to advise them of Rolnick’s

serious medical needs and pleading with them to

address Rolnick’s serious medical needs.

Am. Compl. ¶¶ 73-74 (full capitalization of names omitted). In the paragraphs

that follow, Plaintiff chronicles the steps she took to notify officials of Ms.

Rolnick’s medical condition and treatment needs. She alleges that between

May 1, 2017, and August 28, 2017, she sent multiple emails and made phone

calls to various prison and FDOC officials. Id. ¶¶ 76-95. During these months,

Ms. Rolnick was housed at FWCR, where Defendant Southerland was the

warden, not at LCI, where Defendant Gartman was the warden. Ms. Rolnick

was transferred to LCI on October 16, 2017. Id. ¶ 40. Plaintiff does not allege

having had any conversation, by phone or email, with Defendant Gartman or

anyone at LCI between October 16, 2017, and the date Ms. Rolnick died. In

fact, the last communication Plaintiff alleges having had with anyone about

Ms. Rolnick’s condition and her deficient medical treatment was on August 28,

2017, months before Ms. Rolnick was transferred to LCI. Id. ¶ 95.

Even if Defendant Gartman, as the warden of LCI, could have seen Ms.

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Rolnick’s “medical chart from the Broward County Jail,” id. ¶ 47, Plaintiff

alleges no facts demonstrating Defendant Gartman knew of Ms. Rolnick’s

condition and also knew that her treatment needs were not being met.

Defendant Gartman is not a medical provider and cannot be held liable under

§ 1983 for failing to protect Ms. Rolnick from a risk of harm of which she was

unaware. See Farmer v. Brennan, 511 U.S. 825, 838 (1994) (“[A]n official’s

failure to alleviate a significant risk that he should have perceived but did not,

while no cause for commendation, cannot under our cases be condemned as the

infliction of punishment.”).

Additionally, it is not enough for Plaintiff to allege facts showing that

Defendant Southerland, warden of a different institution, knew of Ms.

Rolnick’s medical condition and treatment needs because “imputed or

collective knowledge cannot serve as the basis for a claim of deliberate

indifference.” See Burnette v. Taylor, 533 F.3d 1325, 1331 (11th Cir. 2008).

Upon review, Plaintiff’s assertions that she sent emails and attempted to

“speak to [Warden] Gartman” are mere conclusions unsupported by facts.

These bare allegations are insufficient to permit the reasonable inference

Defendant Gartman knew of Ms. Rolnick’s serious medical needs and knew

those needs were not being met. “[A] plaintiff may use legal conclusions to

structure [her] complaint, but legal conclusions ‘must

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be supported by factual allegations.’” McCullough v. Finley, 907 F.3d 1324,

1333 (11th Cir. 2018) (quoting Iqbal, 556 U.S. at 679). Accordingly, count two

must be dismissed.

Plaintiff’s supervisory liability claim against Defendant Gartman (count

eight) also is founded on mere conclusions amounting to a “formulaic recitation

of the elements of a cause of action.” See Twombly, 550 U.S. at 555. For

instance, Plaintiff alleges Defendant Gartman “authoriz[ed]” employees to

violate Ms. Rolnick’s constitutional rights, implemented or sanctioned “de facto

policies, practices, and/or customs” regarding the provision of medical care to

inmates at LCI, knew of a inadequacy in the provision of medical care to

inmates, and failed to properly train or supervise personnel. See Am. Compl.

¶¶ 151-55. Plaintiff also alleges LCI “has a long history, documented in reports

and medical audits, of alarming and life-threatening deficiencies” in the

provision of medical care. Id. ¶ 43.

Plaintiff offers no facts supporting these broad-sweeping conclusions. As

such, she fails to satisfy federal pleading standards. See Barmapov, 986 F.3d

at 1326 (holding the plaintiff’s conclusory and vague allegations prevented

defendants from understanding “the grounds upon which each claim [against

them] rests”). See also McCullough, 907 F.3d at 1334 (“As the Supreme Court

has explained, allegations that government officials were the ‘principal

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architect’ and ‘instrument[ ]’ behind an unlawful policy, without

supporting allegations, are conclusory.”).

For the reasons stated, the claims against Defendant Gartman (counts

two and eight) are due to be dismissed, but Plaintiff will be given an

opportunity to amend, per her request. See Pl. Gartman Resp. at 14.

C. Defendant Southerland’s Motion

Defendant Southerland argues Plaintiff fails to state a deliberate

indifference claim against her because she was not a healthcare provider. See

Southerland Motion at 5-6.3

Deliberate indifference to a prisoner’s serious medical needs can be

manifested by prison staff other than healthcare providers. See, e.g., Goebert

v. Lee Cnty., 510 F.3d 1312, 1327-28 (11th Cir. 2007) (holding the inmate-

plaintiff demonstrated a genuine issue of material fact whether an officer was

deliberately indifferent to her likely miscarriage even though the inmate had

been treated by medical staff where the officer disregarded the inmate’s

complaints to him that “the medical staff … had not attended to her needs”);

see also Johnson, 387 F.3d at 1351 (“A prisoner states a valid claim, under 42

3 Like Defendant Gartman, Defendant Southerland invokes sovereign

immunity. See Southerland Motion at 3-4. In response (Doc. 57; Pl. Southerland

Resp.), Plaintiff clarifies she does not assert state tort claims against Defendant

Southerland. See Pl. Southerland Resp. at 5.

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U.S.C. [§] 1983, ‘whether the indifference is manifested by prison doctors … or

by prison guards.’”).

Unlike Plaintiff’s vague and conclusory allegations against Defendant

Gartman, Plaintiff provides factual detail to show a causal connection between

an alleged constitutional violation and Defendant Southerland’s acts or

omissions. For instance, Plaintiff alleges as follows: on May 1, 2017, she sent

an email, which the former FWRC warden received and forwarded to

Defendant Southerland, see Am. Compl. ¶¶ 76-78; on May 2, 2017, Plaintiff

sent an email directly to Defendant Southerland and her assistant but received

no response, id. ¶¶ 79-80; on August 8, 2017, Plaintiff sent an email to counsel

for the FDOC stating the “warden [of FWRC] is [not] concerned for [Ms.

Rolnick’s] well-being,” id. ¶ 81; on August 17 and 18, 2017, Plaintiff sent an

email to Defendant Southerland, and her assistant acknowledged receipt of the

email, id. ¶¶ 83-83; on August 22 and 23, 2017, Plaintiff sent emails to

Defendant Southerland asking for the name of legal counsel, and Defendant

Southerland responded saying “she would be calling shortly,” id. ¶¶ 86-88; on

August 23, 2017, Plaintiff sent an email to Defendant Southerland and others

asking to speak with Ms. Rolnick about Rolnick’s refusal to see the

pulmonologist, and Defendant Southerland responded, id. ¶¶ 89-90; on August

24, 2017, Plaintiff sent an email to Defendant Southerland advising that Dr.

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Gonzalez Pagan was not giving Ms. Rolnick the medication she needed, id. ¶

91; on August 25, 2017, Plaintiff and Defendant Southerland “exchanged

emails” about Ms. Rolnick’s medical condition and proper treatment for it, id.

¶ 93; on August 28, 2017, Plaintiff sent an email to the Office of the Inspector

General (IG) for the FDOC, an IG representative responded to Plaintiff and

copied Defendant Southerland, and Plaintiff replied to them both advising

“[Ms.] Rolnick’s PAH can be fatal if not treated,” id. ¶ 94; and on August 28,

2017, Plaintiff sent an email to Defendant Southerland and others seeking

“appropriate medical care for [Ms. Rolnick’s] life-threatening illness,” id. ¶ 95.

Accepted as true, Plaintiff’s allegations demonstrate Defendant

Southerland knew of Ms. Rolnick’s health condition, knew her condition could

be fatal if not properly treated, and learned she was not receiving proper

treatment yet took no action. These allegations are sufficient to state a

deliberate indifference claim against Defendant Southerland, despite her not

having been a healthcare provider. See Goebert, 510 F.3d at 1327-28. As such,

counts two and seven are not subject to dismissal under Rule 12(b)(6).4

V. Plaintiff’s Discovery Motion

Plaintiff asks the Court to permit her to disclose her expert report late.

4 Because Plaintiff alleges Defendant Southerland personally participated in a

constitutional violation, the supervisory liability claim necessarily survives.

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See Disc. Motion at 3-4. Plaintiff asserts her failure to timely disclose her

expert report was due to a misunderstanding: When she moved for an

extension of the deadlines (Doc. 58), she intended the expert disclosures

deadlines to be extended as well, but she did not specify as much and therefore

the Court’s amended CMSO did not include new dates for disclosure of expert

reports. Id. at 1-2.

The medical Defendants oppose the request, asserting Plaintiff fails to

demonstrate the “violation of the Court’s [CMSO] was substantially justified

or harmless.” See Disc. Motion Resp. at 1. Defendants contend they “relied

upon Plaintiff’s nondisclosure of experts in making decisions on whether to

retain additional or alternative experts.” Id. at 5.

Under the circumstances, the Court finds Plaintiff’s motion is due to be

granted. Plaintiff’s misunderstanding was reasonable, she first attempted to

obtain Defendants’ informal agreement to allow her to disclose her expert

report beyond the deadline, and there is little harm to Defendants given

discovery is not set to close until July 29, 2021. If the medical Defendants want

to obtain additional or alternative experts, or if they require more time for

discovery in light of the Court’s Order, they should confer with all counsel to

agree upon appropriate deadlines and submit a joint motion, if necessary.

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Accordingly, it is now

ORDERED:

1. The FDOC’s motion to dismiss (Doc. 50) is GRANTED in part and

DENIED in part. The motion is GRANTED to the extent the claims arising

under § 1983 (counts six and ten) are dismissed with prejudice. In all other

respects, the motion is DENIED. The FDOC must answer the second amended

complaint (Doc. 47) within twenty days of the date of this Order.

2. Defendant Gartman’s motion to dismiss (Doc. 51) is GRANTED to

the extent the claims against her are dismissed without prejudice subject

to Plaintiff’s right to amend her complaint solely as to the claims against

Defendant Gartman.

3. Defendant Southerland’s motion to dismiss (Doc. 53) is DENIED.

Defendant Southerland must answer the second amended complaint (Doc. 47)

within twenty days of the date of this Order.

4. If Plaintiff chooses to amend her complaint with respect to the

claims against Defendant Gartman, she must do so by June 15, 2021, and

Defendants must file answers within twenty days of the date Plaintiff files an

amended complaint.

5. Plaintiff’s motion for out-of-time disclosure of Plaintiff’s expert

(Doc. 63) is GRANTED. Plaintiff must disclose her expert report by May 26,

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2021.

DONE AND ORDERED at Jacksonville, Florida, this 20th day of May

2021.

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BRIAN/J, DAVIS

United States District Judge

Jax-6

Cc:

Counsel of Record

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