# Pitts v. Doctor Yukna

> District Court, M.D. Florida · May 24, 2021

URL: https://www.frixlaw.com/law-library/cases/10107586

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** May 24, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

MICHAEL K. PITTS,

Plaintiff,

-vs- Case No. 8:20-cv-867-WFJ-AAS

DR. RANGEL, et al.,

Defendants.
_________________________/

ORDER

BEFORE THE COURT is Defendants’ Motion to Dismiss Plaintiff’s Amended
Complaint and Incorporated Memorandum of Law (Doc. 43), which Plaintiff opposes
(Doc. 52). Upon consideration, the motion to dismiss will be granted, in part.
I. ALLEGATIONS OF THE AMENDED COMPLAINT (Doc. 35)
Mr. Pitts is a pretrial detainee who has been incarcerated at the Pinellas County
Jail (“PCJ”) since April 3, 2019 (Doc. 35, docket p. 8). Defendants are Drs. Rangel
and Yukna, physicians at PCJ; Mr. Kyle, the chief medical officer at PCJ; and Nurses
Carroll, Monahan, and Reese, nurses at PCJ (Id., docket p. 7).1 Defendants are sued
in both their individual and official capacities (Id., docket pp. 3-5).

1 The motion to dismiss was filed by Defendants Rangel, Yukna, Monahan, and Carroll.
Defendants Kyle and Reese have neither waived service of process nor been served with
process at this time.

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Mr. Pitts alleges that Defendants were deliberately indifferent to his serious
medical needs in violation of his rights under the Eighth Amendment to the United
States Constitution (Id., docket p. 9). Specifically, he alleges that he suffers from: 1)

painful blood clots in his legs; 2) three painful hernias; 3) pain in his right shoulder and
right arm ever since he was given a vitamin K injection in his right arm; 4) high blood
pressure; 5) neuropathy in both legs; and 6) pulmonary disease/breathing problems
(Id., docket pp. 10, 13, 14, 22). He complains that the medical treatment he has
received for these ailments is “cursory and inadequate.” (Id., docket p. 14). He

contends that he requires, but has been denied, physical therapy, breathing treatments,
surgery on his blood clots, referrals to outside physicians, and “activities” and
accommodations for his disabilities (Id., docket pp. 16, 18).
Mr. Pitts further alleges that Defendants have violated his due process rights

under the Fourteenth Amendment to the United States Constitution because they have
deprived him of medical records he requested from outside medical providers and use
of the grievance process at PCJ (Id., docket pp. 9, 16-17, 23). Finally, Mr. Pitts
complains that Defendants have failed to accommodate his disabilities in violation of
the Americans with Disabilities Act and Section 504 of the Rehabilitation Act (Id.,

docket pp. 6, 18, 22).
As relief, Mr. Pitts seeks both compensatory and punitive damages (Id., docket
p. 22). He further seeks injunctive relief directing Defendants to: 1) refer him for

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surgery for the blood clots in his legs and his hernias and to “specialists;” 2) provide
him use of a breathing machine and physical therapy for his “disabilities;” 3) allow
him use of the “disabilities unit” at PCJ; 4) house him in the “medical unit” at PCJ;

5) terminate the employment of Defendant Kyle; and 6) allow him use of a wheelchair
and cane at all times (Id., docket pp. 22-24).
II. STANDARD OF REVIEW
Defendants move to dismiss Plaintiff=s complaint pursuant to Rule 12(b)(6),

Fed.R.Civ.P. Rule 12(b)(6) states that any defendant may assert the defense of Afailure
to state a claim upon which relief can be granted@ to a claim for relief. In deciding
whether to grant a motion to dismiss on this ground, a court must accept Athe
allegations in the complaint as true and construe them in the light most favorable to
the nonmoving party.@ Starosta v. MBNA Am. Bank. N.A., 244 F. App’x 939, 941 (11th

Cir. 2007) (unpublished) (quoting from Manuel v. Convergys Corp., 430 F.3d 1132, 1139
(11th Cir. 2005)). However, Aa plaintiff=s obligation to provide the >grounds= of his
>entitle[ment] to relief requires more than labels and conclusions. . . .@ Bell Atlantic Corp.
v. Twombly, 127 S. Ct. 1955, 1964-65 (2007) (alteration in original) (citations omitted).
AFactual allegations must be enough to raise a right to relief above the speculative

level.@ Id.
Although the court must afford a pro se litigant wide leeway in pleadings, a pro
se litigant is nonetheless required to satisfy necessary burdens in that he is Anot relieved

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of his obligation to allege sufficient facts to support a cognizable legal claim,@ and Ato
survive a motion to dismiss, a Plaintiff must do more than merely label his claims.@
Excess Risk Underwriters. Inc. v. Lafayette Ins. Co., 208 F. Supp. 2d 1310, 1313 (S.D. Fla.

2002). Dismissal is, therefore, permitted Awhen on the basis of a dispositive issue of
law, no construction of the factual allegations will support the cause of action.@
Glover v. Liggett Group. Inc., 459 F.3d 1304, 1308 (11th Cir. 2006) (citing Marshall City
Bd. of Educ. v. Marshall City Gas Dist., 992 F.2d 1171, 1174 (11th Cir. 1993)).

III. SUMMARY OF THE ARGUMENTS
In their motion to dismiss, Defendants contend that Plaintiff=s amended
complaint should be dismissed because: 1) Mr. Pitts failed to exhaust his state
administrative remedies before initiating this action; 2) it is an impermissible
“shotgun” pleading that fails to give adequate notice to Defendants of the claims

against them; 3) it fails to state a claim upon which relief may be granted; and 4)
Defendants are entitled to qualified immunity. Plaintiff argues that: 1) he has stated a
claim for a violation of his constitutional rights and violations of the ADA and
Rehabilitation Act; 2) he attempted to exhaust his administrative remedies but was
denied permission to file grievances regarding the lack of medical care, and Defendants

have not provided all his grievances regarding denial of medical care; and 3) his
complaint gives Defendants fair notice of the claims against them (Doc. 52).

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IV. DISCUSSION
A. Failure to exhaust administrative remedies

Defendants argue that the amended complaint must be dismissed because Mr.
Pitts failed to exhaust his administrative remedies with regard to the claims raised in
the amended complaint (Doc. 43, pp. 6-9). A prisoner is required under the Prisoner
Litigation Reform Act to exhaust all available administrative remedies before suing
about prison conditions. 42 U.S.C. § 1997e(a). This means that before initiating this

action, Mr. Pitts needed to properly complete any grievance process established by
PCJ— even if that process is futile or inadequate. See Lambert v. United States, 198 F.
App’x 835, 839–40 (11th Cir. 2006). Moreover, to exhaust administrative remedies
Mr. Pitts was required “to provide in his administrative grievance[s] as much relevant
information about his claims, including the identity of those directly involved in the

alleged deprivations, as [he] reasonably [could have] provide[d].” Brown v. Sikes, 212
F.3d 1205, 1210 (11th Cir. 2000).
According to Defendants, “Plaintiff made absolutely no grievance at any time
during his confinement regarding his claims related to Defendants.” (Doc. 43, p. 8).
In support, Defendants attached to their motion to dismiss an affidavit by Tara

Weschler, a custodian of records for the Pinellas County Sheriff’s Office, and copies
of Mr. Pitts’ grievances, permissions, and a request he submitted via the PCJ
Administrative Services Kiosk Request/Grievance Program (Doc. 43-1, docket pp. 1-

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26). None of the documents appear to address the claims Mr. Pitts alleged in his
amended complaint (Id., docket pp. 4-26).
In response, Mr. Pitts’ contends that “Defendants have not provided all of [his]

requests about medical.” (Doc. 52, p. 3). And in his amended complaint, Mr. Pitts
alleged that “[a]fter repeated [sic] attempts the defendants barred his ability to use the
grievance process. . . .” (Doc. 35, docket p. 6).
To determine if Mr. Pitts exhausted administrative remedies, this Court must
use the two-step test for exhaustion set forth in Turner v. Burnside, 541 F.3d 1077, 1082

(11th Cir. 2008):
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 the 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.

As set forth previously, Defendants contend that Mr. Pitts never filed a
grievance, permission, or request concerning the allegations in his amended
complaint. In alleging that “Defendants have not provided all of [his] requests about
medical,” Mr. Pitts, at least implicitly, contends that he filed grievances concerning
the allegations in his amended complaint that Defendants failed to provide to the
Court. Taking Mr. Pitts’ version of the facts as true, Defendants are not entitled to

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have the complaint dismissed for failure to exhaust administrative remedies.
Consequently, the Court turns to the second step of the Turner analysis. At this stage,
the Court must make “specific findings to resolve disputes of fact, and should dismiss

if, based on those findings, defendants have shown a failure to exhaust.” Whatley v.
Warden, Ware State Prison, 802 F.3d 1205, 1209 (11th Cir. 2015).
Ms. Weschler’s Affidavit states, in pertinent part, that “Composite Exhibit #1
are communications submitted by inmate Michael Pitts from April 3, 2019 through

today’s date. . . .” (Doc. 43-1, docket p. 1). The Affidavit, however, does not specify
that those are all communications Mr. Pitts filed during that time period. Considering
the Affidavit together with Mr. Pitts’ allegation that “Defendants have not provided
all of [his] requests about medical,” the Court finds that it is not clear whether Mr.
Pitts filed grievances regarding the claims he raised in his amended complaint.

Considering this finding, the Court concludes that Defendants have failed to
carry their burden of proving that Mr. Pitts failed to exhaust available administrative
remedies with respect to the claims in the amended complaint. Accordingly,
Defendants’ motion to dismiss will be denied, without prejudice, as to the failure to
exhaust administrative remedies argument.

B. Shotgun pleading
Defendants argue that the amended complaint is a shotgun pleading in that: 1)
it fails to give notice to each Defendant as to precisely what conduct is attributed to

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each of them individually and which claims for relief are directed to each of them
individually; 2) it includes vague, conclusory and immaterial facts, none of which is
connected to any particular Defendant or cause of action; 3) it fails to separate into

different counts each cause of action; and 4) it asserts multiple claims against multiple
Defendants without specifying which Defendants are actually responsible for which
acts or omissions. (Doc. 43, pp. 9-13). The Court agrees.
There are four generally recognized types of shotgun pleading including: (i)
those in which each count adopts the allegations of all preceding counts; (ii) those that

do not re-allege all preceding counts but are replete with conclusory, vague, and
immaterial facts not obviously connected to any particular cause of action; (iii) those
that do not separate each cause of action or claim for relief into a different count; and
(iv) those that assert multiple claims against multiple defendants without specifying
which applies to which. Yeyille v. Miami Dade Cnty. Pub. Sch., 643 F. App’x 882, 884

(11th Cir. 2016) (citing Weiland v. Palm Beach Cnty. Sheriff’s Office, 792 F.3d 1313, 1321-
23 (11th Cir. 2015)). See also Lampkin-Asam v. Volusia Cnty. Sch. Bd., 261 F. App’x 274,
277 (11th Cir. 2008) (“A complaint that fails to articulate claims with sufficient clarity
to allow the defendant to frame a responsive pleading constitutes a ‘shotgun

pleading.’”); Vujin v. Galbut, 2020 WL 7090206, at *4 (11th Cir. Dec. 4, 2020) (“The
essence of a shotgun pleading is ‘that it is virtually impossible to know which
allegations of fact are intended to support which claim(s) for relief.’”) (quoting

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Anderson v. District Bd. Of Trustees of Cent. Florida Cmty. Coll., 77 F.3d 364, 366 (11th Cir.
1996)).
The amended complaint here fits within the second, third, and fourth types. To

illustrate, page 20 of the amended complaint includes rambling allegations of an
incident on February 6, 2020, during which an unnamed nurse, who is not a defendant
in this action, caused Mr. Pitts pain during a medical examination (Doc. 35, docket p.
20). And the rambling allegations throughout the amended complaint makes it very
difficult to discern which Defendants are responsible for the various acts or omissions

that Mr. Pitts claims amounts to deliberate indifference to his serious medical needs,
a denial of due process, and a violation of the ADA and Rehabilitation Act. In short,
the amended complaint muddles the claims and precludes adequate and fair notice to
Defendants of the claims against them and the grounds upon which each claim rests.
Accordingly, dismissal without prejudice of the amended complaint is appropriate.

C. Failure to state a claim and qualified immunity
Given the Court’s ruling that the amended complaint is an impermissible
shotgun pleading that does not give Defendants adequate notice of the claims against
them, this Court need not address, at this time, Defendants’ arguments that they are

entitled to qualified immunity, and the amended complaint fails to state a claim upon
which relief may be granted. Defendants agree that “it is virtually impossible to
determine” from the amended complaint which claims apply to which Defendants

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(See Doc. 43, p. 21). Accordingly, Defendants’ motion to dismiss on these grounds
will be denied without prejudice.
It is therefore ORDERED that:

1. Defendants’ Motion to Dismiss Plaintiff’s Amended Complaint and
Incorporated Memorandum of Law (Doc. 43) is GRANTED in part and DENIED in
part. The motion is GRANTED to the extent that the amended complaint (Doc. 35)
is DISMISSED without prejudice as an impermissible shotgun pleading. The motion

to dismiss is otherwise DENIED without prejudice.
2. Mr. Pitts has thirty (30) days from the date of this Order to file a second
amended complaint to cure the deficiencies outlined above. The Clerk of Court must
mail Mr. Pitts a court approved form to use for filing a second amended complaint. If
Mr. Pitts fails to use the court approved form, the Court may strike the second

amended complaint and dismiss this action without further notice.
3 Mr. Pitts must clearly designate on the face of the document that it is the
“Second Amended Complaint.” The second amended complaint must be retyped or
rewritten in its entirety on the court approved form and may not incorporate any part
of the original or amended complaints by reference. The second amended complaint

will supersede the original and amended complaints, and all claims must be raised in
the second amended complaint.
Mr. Pitts must limit the allegations in the second amended complaint to claims

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related to the same basic incident or issues as raised in the original and amended
complaints, and name as Defendants only those persons who are responsible for the
alleged violations. He must place Defendants’ names in the style of the case on the
first page of the civil rights complaint form and include their addresses and
employment positions in the “Defendants” section of the form. In the statement of
facts, he should clearly describe how each named Defendant is involved in each
alleged violation, alleging the claims in separately numbered paragraphs, and
including specific dates of the alleged illegal acts. In the section entitled “Statement of
Claims,” he must state what rights or statutes he contends have been violated, and he
must provide reference to the facts supporting the claimed violations. Finally, in the
“Relief Requested” section, he shall identify the form of relief he seeks from this Court.
If Mr. Pitts fails to file a second amended complaint within 30 days, this action will be
dismissed without further notice.
4. The Clerk of Court is directed to mail a court approved form for filing a civil
rights complaint with Mr. Pitts’ copy of this Order. This case number should be written
on the form.
ORDERED in Tampa, Florida, on May 24, 2021.
litho,
UNITED STATES DISTRICT JUDGE
cc: Michael K. Pitts, pro se; Counsel of Record
1]

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10107586. Public record. Not legal advice.