Muhammad v. Jones

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

AKEEM MUHAMMAD,

Plaintiff,

v. Case No. 3:16-cv-1436-MMH-PDB

JULIE JONES, et al.,

Defendants.

_____________________________

ORDER

I. Status1

Plaintiff Akeem Muhammad, an inmate of the Florida penal system, is

proceeding on a pro se Second Amended Civil Rights Complaint (Doc. 67; SAC)

against Mark Inch, Secretary of the Florida Department of Corrections (FDOC)

in his official capacity;2 Julie Jones, former Secretary of the FDOC in her

individual capacity; Thomas Reimers, Director of Health Services for the

FDOC in his individual and official capacities; and Olugbenga Ogunsanwo,

former Director of Medical and Mental Health Services for the FDOC in his

individual capacity. Muhammad claims that Defendants have been

1 For all documents filed in this case, the Court cites to the page numbers as assigned by the

Court’s Electronic Case Filing System.

2 At Defendants’ request, the Court substituted Inch, in his official capacity, for Jones, in her

official capacity, as the Secretary of the FDOC. See Order (Doc. 116).

deliberately indifferent to his serious psychiatric needs with respect to his

paraphilic disorder.

Before the Court is Defendants’ Motion for Summary Judgment (Doc.

219; Motion). As an exhibit, Defendants filed under seal the Expert Witness

Report of Rajiv Loungani, MD, MPH (Doc. 219-1; Loungani Report3). The Court

previously advised Muhammad of the provisions of Federal Rule of Civil

Procedure (Rule(s)) 56 and provided him with an opportunity to file a response.

See Order (Doc. 11); Summary Judgment Notice (Doc. 220). Muhammad filed

a Response (Doc. 254; Response) with several exhibits, some of which he filed

under seal (Docs. 254-1 to 254-23, S-258). The Motion is ripe for review.

II. Muhammad’s Allegations

In the SAC, Muhammad alleges that Ogunsanwo and Reimers adopted

and enforced “a statewide blanket ban on hormone therapy for psychiatric

disorders”; Jones/Inch approved and refused to abolish the “blanket ban”; and

Reimers and Jones/Inch intentionally refused to allow a qualified psychologist

or psychiatrist to evaluate, diagnose, and treat Muhammad for paraphilic

3 Muhammad also filed a copy of the Loungani Report. See Doc. S-258 at 102-11. Muhammad

included an addendum completed by Dr. Loungani that corrects a scrivener’s error with

respect to the date of the evaluation. See id. at 111. Dr. Loungani evaluated Muhammad on

February 28, 2020, not February 28, 2019. See id.

2

disorder.4 SAC at 3. He argues that only specially trained psychologists and

psychiatrists can diagnose patients with paraphilic disorder; and that this “ban

effectively deters prison health staff statewide from hiring psychologists and

psychiatrists who are specially qualified” and “[b]ecause of the ban, since at

least 2013, there have been minimal prison psychologists and/or psychiatrists

statewide who are specially qualified to evaluate patients . . . and none of them

have been employed at [Union Correctional Institution (UCI)].” Id. at 7, 9.

Muhammad also alleges that “[h]ormone therapy in the form of antiandrogen

agents is generally the only psychiatrically recognized, accepted, necessary,

and effective treatment for paraphilic disorder.” Id. at 7. According to

Muhammad, however, due to the “ban,” prison staff will not diagnose an

inmate with paraphilic disorder “because they will be unable to provide the

inmate with the antiandrogen therapy that is clinically determined to be

psychiatrically necessary for the inmate’s paraphilic disorder.” Id. at 9.

Muhammad alleges that from 2014 to at least November 14, 2016, he

“repeatedly reported his untreated paraphilic disorder to UCI medical and

4 The evaluation and treatment of Muhammad’s condition has been evolving since he filed

this case. Muhammad acknowledges that “[i]n 2018 and 2019, Defendants allowed [him] to

be diagnosed with paraphilic disorder, but continue to deny [him] the standard of medical

care for paraphilic disorders.” Doc. 208-1 at 1; see Doc. S-258 at 54-55 (treatment note dated

August 8, 2017, assessing Muhammad with paraphilia), 73 (record dated January 11, 2019,

noting “new diagnosis added” of “unspec[ified] Paraphilia”), 74-86 (2019 evaluation).

3

mental health staff,” and “repeatedly requested those staff to evaluate him for

paraphilic disorder, to diagnose him with paraphilic disorder, and to provide

him with psychiatrically recognized, accepted and necessary treatment or

antiandrogen therapy for his untreated paraphilic disorder.” Id. at 10.

Muhammad contends that UCI medical and mental health staff “clinically

determined that [Muhammad] had and continued to have a serious psychiatric

need to be evaluated,” diagnosed, and treated for paraphilic disorder, but “the

ban prevented or effectively prevented UCI medical and mental health staff

from” doing so. Id. As relief, Muhammad seeks “a permanent injunction

against [Inch] as deemed fit by the Court”; “a declaratory judgment against

Reimers as deemed fit by the Court”; monetary damages against Jones,

Ogunsanwo, and Reimers in their individual capacities; and any other relief to

which he is entitled. Id. at 13 (some capitalization omitted).

III. Summary Judgment Standard

Under Rule 56, “[t]he court shall grant summary judgment if the movant

shows that there is no genuine dispute as to any material fact and the movant

is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The record to

be considered on a motion for summary judgment may include “depositions,

documents, electronically stored information, affidavits or declarations,

stipulations (including those made for purposes of the motion only),

4

admissions, interrogatory answers, or other materials.” Fed. R. Civ. P.

56(c)(1)(A).5 An issue is genuine when the evidence is such that a reasonable

jury could return a verdict in favor of the non-moving party. Mize v. Jefferson

City Bd. of Educ., 93 F.3d 739, 742 (11th Cir. 1996) (quoting Hairston v.

Gainesville Sun Publ’g Co., 9 F.3d 913, 919 (11th Cir. 1993)). “[A] mere scintilla

of evidence in support of the non-moving party’s position is insufficient to

defeat a motion for summary judgment.” Kesinger ex rel. Estate of Kesinger v.

Herrington, 381 F.3d 1243, 1247 (11th Cir. 2004) (citing Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 252 (1986)).

The party seeking summary judgment bears the initial burden of

demonstrating to the court, by reference to the record, that there are no

genuine issues of material fact to be determined at trial. See Clark v. Coats &

Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991). “When a moving party has

discharged its burden, the non-moving party must then go beyond the

5 Rule 56 was revised in 2010 “to improve the procedures for presenting and deciding

summary-judgment motions.” Rule 56 advisory committee’s note 2010 Amends.

The standard for granting summary judgment remains

unchanged. The language of subdivision (a) continues to require

that there be no genuine dispute as to any material fact and that

the movant be entitled to judgment as a matter of law. The

amendments will not affect continuing development of the

decisional law construing and applying these phrases.

Id. “[A]lthough the interpretations in the advisory committee[’s] notes are not binding, they

are highly persuasive.” Campbell v. Shinseki, 546 F. App’x 874, 879 n.3 (11th Cir. 2013).

Thus, case law construing the former Rule 56 standard of review remains viable.

5

pleadings, and by its own affidavits, or by depositions, answers to

interrogatories, and admissions on file, designate specific facts showing that

there is a genuine issue for trial.” Jeffery v. Sarasota White Sox, Inc., 64 F.3d

590, 593-94 (11th Cir. 1995) (internal citations and quotation marks omitted).

Substantive law determines the materiality of facts, and “[o]nly disputes over

facts that might affect the outcome of the suit under the governing law will

properly preclude the entry of summary judgment.” Anderson, 477 U.S. at 248.

In determining whether summary judgment is appropriate, a court “must view

all evidence and make all reasonable inferences in favor of the party opposing

summary judgment.” Haves v. City of Miami, 52 F.3d 918, 921 (11th Cir. 1995)

(citing Dibrell Bros. Int’l, S.A. v. Banca Nazionale Del Lavoro, 38 F.3d 1571,

1578 (11th Cir. 1994)). “Summary judgment is improper, however, if the

evidence is such that a reasonable jury could return a verdict for the

nonmoving party.” Guevara v. NCL (Bahamas) Ltd., 920 F.3d 710, 720 (11th

Cir. 2019) (quotation marks and citation omitted).

IV. Parties’ Positions

Defendants argue that even assuming Muhammad can satisfy the

objective prong of a deliberate indifference claim, “he is unable to satisfy the

subjective prong” because he cannot show that Defendants’ actions amounted

to deliberate indifference. Motion at 9. Defendants rely on Dr. Loungani’s

6

Report, arguing that there is “nothing in Dr. Loungani’s [R]eport to suggest

that the Defendants’ conduct amounted to medical treatment that is grossly

incompetent, inadequate, or excessive as to shock the conscience.” Id. at 11.

Defendants further assert that Muhammad has not shown a physical injury,

and thus he is not entitled to compensatory or punitive damages. See id. at 12-

15.

In his Response, Muhammad contends that Defendants have

misconstrued Dr. Loungani’s Report. See Response at 12. He recognizes that

Dr. Loungani opined that the FDOC followed the standard of care for the initial

treatment protocol of his paraphilia; however, Muhammad emphasizes that

Dr. Loungani further found that the initial protocol failed and he recommended

that Defendants consider proceeding to the next step and provide further

treatment. See id. at 12-13. Muhammad also argues that “Defendants’ blanket

ban . . . prohibits, precludes and prevents medical and psychiatric providers

from providing medically necessary antiandrogen treatment for [his]

paraphilic disorder,” and that “Defendants intentionally denied clinical

requests for authorization to treat [Muhammad’s] paraphilic disorder with

medically necessary antiandrogen treatment.” Id. at 14, 17. Finally, as to his

requested monetary relief, he cites to a recent Eleventh Circuit opinion that

was decided after Defendants filed the Motion and contends that he may

7

recover punitive damages without showing a physical injury. Id. at 18.

Regardless, he asserts that he has shown a physical injury. Id. Accordingly,

Muhammad requests the Court deny Defendants’ Motion. Id. at 18-19.

V. Analysis6

“To set out a claim for deliberate indifference to medical need, [the

plaintiff] must make three showings: (1) he had a serious medical need; (2) the

[defendant] w[as] deliberately indifferent to that need; and (3) the

[defendant’s] deliberate indifference and [the plaintiff’s] injury were causally

related. Hinson v. Bias, 927 F.3d 1103, 1121 (11th Cir. 2019); see Nam Dang

by & through Vina Dang v. Sheriff, Seminole Cnty. Fla., 871 F.3d 1272, 1279

(11th Cir. 2017) (“To prevail on [a] § 1983 claim for inadequate medical

treatment, [the plaintiff] must show (1) a serious medical need; (2) the health

care providers’ deliberate indifference to that need; and (3) causation between

the health care providers’ indifference and [the plaintiff’s] injury.”).7

A serious medical need is one that has been diagnosed

by a physician as mandating treatment or one that is

so obvious that even a lay person would easily

recognize the necessity for a doctor’s attention. In the

alternative, a serious medical need is determined by

6 For purposes of summary judgment, the Court views the evidence and all reasonable

inferences therefrom in the light most favorable to the non-moving party. Thus, the facts

described in the Court’s analysis may differ from those that ultimately can be proved.

7 The Eleventh Circuit “has acknowledged that the deliberate indifference standard also

applies to inmates’ psychiatric or mental health needs.” Harris v. Thigpen, 941 F.2d 1495,

1505 (11th Cir. 1991) (citation omitted).

8

whether a delay in treating the need worsens the

condition. In either case, the medical need must be

one that, if left unattended, poses a substantial risk

of serious harm.

Mann v. Taser Int’l, Inc., 588 F.3d 1291, 1307 (11th Cir. 2009) (quotations and

citation omitted); see Patel v. Lanier Cnty. Ga., 969 F.3d 1173, 1188 (11th Cir.

2020).

A claim of deliberate indifference to a serious medical need requires

“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.”

Farrow v. West, 320 F.3d 1235, 1245 (11th Cir. 2003) (citations omitted); see

Patel, 969 F.3d at 1188-89 & n.10 (recognizing “a tension within [Eleventh

Circuit] precedent regarding the minimum standard for culpability under the

deliberate-indifference standard,” as some cases have used “more than gross

negligence” while others have used “more than mere negligence”; finding,

however, that it may be “a distinction without a difference” because “no matter

how serious the negligence, conduct that can’t fairly be characterized as

reckless won’t meet the Supreme Court’s standard” (citations omitted)).

“Subjective knowledge of the risk requires that the defendant be ‘aware of facts

from which the inference could be drawn that a substantial risk of serious

harm exists, and he must also draw the inference.’” Dang, 871 F.3d at 1280

9

(quoting Caldwell v. Warden, FCI Talladega, 748 F.3d 1090, 1099-1100 (11th

Cir. 2014)).

An official disregards a serious risk by more than

mere negligence “when he [or she] knows that an

inmate is in serious need of medical care, but he [or

she] fails or refuses to obtain medical treatment for

the inmate.” Lancaster v. Monroe Cnty., Ala., 116

F.3d 1419, 1425 (11th Cir. 1997), overruled on other

grounds by LeFrere v. Quezada, 588 F.3d 1317, 1318

(11th Cir. 2009). Even when medical care is

ultimately provided, a prison official may nonetheless

act with deliberate indifference by delaying the

treatment of serious medical needs. See Harris v.

Coweta Cnty., 21 F.3d 388, 393-94 (11th Cir. 1994)

(citing Brown v. Hughes, 894 F.2d 1533, 1537-39

(11th Cir. 1990)).[8] Further, “medical care which is

so cursory as to amount to no treatment at all may

amount to deliberate indifference.” Mandel v. Doe,

888 F.2d 783, 789 (11th Cir. 1989) (citations omitted).

However, medical treatment violates the

Constitution only when it is “so grossly incompetent,

inadequate, or excessive as to shock the conscience or

to be intolerable to fundamental fairness.” Rogers v.

Evans, 792 F.2d 1052, 1058 (11th Cir. 1986) (citation

omitted).

8 “Even where medical care is ultimately provided, a prison official may nonetheless act with

deliberate indifference by delaying the treatment of serious medical needs, even for a period

of hours, though the reason for the delay and the nature of the medical need is relevant in

determining what type of delay is constitutionally intolerable.” McElligott v. Foley, 182 F.3d

1248, 1255 (11th Cir. 1999) (citation omitted). However, “[i]t is also true that when a prison

inmate has received medical care, courts hesitate to find an Eighth Amendment violation.”

Waldrop v. Evans, 871 F.2d 1030, 1035 (11th Cir. 1989) (citing Hamm v. DeKalb Cnty., 774

F.2d 1567, 1575 (11th Cir. 1985)); see Boone v. Gaxiola, 665 F. App’x 772, 774 (11th Cir.

2016).

10

Dang, 871 F.3d at 1280 (some internal citations modified). “‘[I]mputed or

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

indifference. Each individual defendant must be judged separately and on the

basis of what that person kn[ew].’” Id. (quoting Burnette v. Taylor, 533 F.3d

1325, 1331 (11th Cir. 2008)).

Defendants rely on Dr. Loungani’s Report which includes the following

assessment and recommendations:

Inmate appears to in fact have paraphilic

disorders – both coercive and pedophilic disorders.

-Standard of Care appears to have been

followed for initial medication treatment algorithm

steps: Selective serotonin reuptake inhibitors (SSRIs)

and neuroleptics/antipsychotic medications

attempted.

-Consider raising Zoloft (sertraline) dose to as

high as 300mg if tolerated, cross-titrate back to Prozac

(fluoxetine, which has evidence in the literature for

treating paraphilic coercive disorder), or to an

alternative antidepressant such as Luvox

(fluvoxamine), Anafranil (clomipramine), or

Norpramin (desipramine), or neuroleptic such as

Abilify (aripiprazole) or Rexult (brexpiprazole), for

Obsessive-Compulsive Disorder and Paraphilic

disorders.

-ReVia (naltrexone), Remeron (mirtazapine),

antipsychotics (e.g. fluphenazine), mood stabilizers

(e.g. Lithium carbonate, carbamazepine, topiramate)

also have been used sporadically in various studies,

with low level of efficacy shown.

-Consider proceeding to next step(s) in

treatment algorithm of paraphilias: add anti-androgen

to SSRI, such as Medroxyprogesterone acetate

11

(MPA),[9] Cyproterone acetate (CPA), GnRH

analogues (e.g. Triptorelin, Leuprorelin,

Gosrelin), all of which have been found to reduce sex

drive, deviant sexual behavior and fantasies in males

as early as within weeks; Depo-Prover[a], given lack of

effectiveness with antidepressants and neuroleptics

attempted thus far, plus moderate risk of sexual

violence toward female staff/guards.

-Psychotherapy – supportive, cognitive-

behavioral, insight-oriented/psychodynamic,

mindfulness-based, empathy training, sexual impulse

control training, relapse prevention, biofeedback,

motivational interviewing.

Continue Psychoeducation to help inmate

understand links between his cognitions, feelings,

physiological responses, and actions; distraction

techniques and other coping skills when overwhelmed.

-Assign male treatment providers (prescribers

and therapist) if possible, and limit exposure to female

staff and guards. This is both for inmate’s benefit, as

well as for the staff’s safety.

-Monitor Suicidal Ideation/Intent/Plan and

Sexual risk of acting out with female staff and guards.

-Tests: Psychiatric labs to rule out psychiatric

symptoms due to general medical conditions. MRI

Brain with and without contrast to evaluate for

neurological lesions, given history of at least three

head injuries with loss of consciousness.

-Bilateral orchidectomy (surgical castration) is a

last resort for serial sex offenders, after all

alternative[s] and less invasive treatment utilized, if

legal in the state of Florida under such conditions.

Loungani Report at 9-10 (emphasis in original).

9 “Medroxyprogesterone Acetate is the generic name of Depo-Provera.” Doc. 254-14 at 6.

12

Defendants assume for purposes of their Motion that Muhammad has a

serious medical need, thus satisfying the objective component of a deliberate

indifference claim. See Motion at 9. As to the subjective component,

Defendants rely on Dr. Loungani’s Report and assert that they “did nothing

wrong.” Id. at 11. According to Defendants, while Muhammad avers in his SAC

“that hormone therapy or anti-androgen therapy is the only psychiatrically

recognized treatment for paraphilic disorders,” Dr. Loungani opined that there

are various other treatment options. Id. at 10 (emphasis in original).

Defendants assert that although Dr. Loungani “listed supplemental treatment

options, including anti-androgen therapy,” Muhammad “is not entitled to the

best, most expensive treatment available.” Id. at 11. They conclude that

Muhammad “is merely upset that the Defendants are not provid[ing] the

treatment he wants.” Id.

Muhammad argues that “Defendants’ blanket ban that prohibits,

precludes and prevents medical and psychiatric providers from providing

medically necessary antiandrogen treatment for [Muhammad’s] paraphilic

disorder” results in deliberate indifference to his serious psychiatric needs.

Response at 14; see also SAC at 3. He relies, in part, on the Eleventh Circuit’s

13

decision in Keohane v. Fla. Dep’t of Corr., 952 F.3d 1257 (11th Cir. 2020).10 In

Keohane, a transgender female inmate sued the Secretary of the FDOC

asserting, in relevant part, that the FDOC’s refusal to accommodate her social-

transitioning requests violated her Eighth Amendment rights. Like here, the

dispute centered on the subjective component. Id. at 1273-74. The Eleventh

Circuit found no Eighth Amendment violation for two main reasons: (1) “the

testifying medical professionals were—and remain—divided over whether

social transitioning is medically necessary to [the plaintiff’s] gender-dysphoria

treatment” and (2) the FDOC “denied [the plaintiff’s] social-transitioning-

related requests, at least in part, on the ground that they presented serious

security concerns.” Id. at 1274-75. Relevant to this Court’s consideration of

Muhammad’s claim, the Eleventh Circuit reasoned:

At worst, then, this is a situation where medical

professionals disagree as to the proper course of

treatment for [the plaintiff’s] gender dysphoria, and

it’s well established that “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 [cannot] support a claim of cruel and

unusual punishment.” Harris v. Thigpen, 941 F.2d

1495, 1505 (11th Cir. 1991); Waldrop v. Evans, 871

F.2d 1030, 1033 (11th Cir. 1989); accord, e.g., Lamb v.

Norwood, 899 F.3d 1159, 1163 (10th Cir. 2018)

(holding that “disagreement alone” does not constitute

10 The appeal came before the Eleventh Circuit after a bench trial in the United States

District Court for the Northern District of Florida. See Keohane v. Jones, 328 F. Supp. 3d

1288 (N.D. Fla. 2018), vacated sub nom. Keohane, 952 F.3d at 1257.

14

deliberate indifference); Kosilek v. Spencer, 774 F.3d

63, 90 (1st Cir. 2014) (“The law is clear that where two

alternative courses of medical treatment exist, and

both alleviate negative effects within the boundaries

of modern medicine, it is not the place of our court to

second guess medical judgments or to require that the

[F]DOC adopt the more compassionate of two

adequate options.” (quotation omitted)). Put simply,

when the medical community can’t agree on the

appropriate course of care, there is simply no legal

basis for concluding that the treatment provided is “so

grossly incompetent, inadequate, or excessive as to

shock the conscience or to be intolerable to

fundamental fairness.” Harris, 941 F.2d at 1505

(quotation omitted). Here, therefore, implementing

the course of treatment recommended by [the

plaintiff’s] FD[O]C medical team, and seconded by a

number of other medical professionals, isn’t “so

unconscionable as to fall below society’s minimum

standards of decency”—and thus violative of the

Eighth Amendment—merely because it conflicts with

the opinion of [the plaintiff’s] retained expert. Kosilek,

774 F.3d at 96.

Keohane, 952 F.3d at 1274-75 (internal citations modified and footnotes

omitted).

Here, in his Report, Dr. Loungani explicitly found that the FDOC

followed the standard of care for the “initial medication treatment algorithm

steps,” and he recommended considering the addition of an anti-androgen

medication as one treatment option. However, Dr. Loungani did not find that

anti-androgen therapy is the only treatment option. Indeed, Dr. Loungani also

recommended certain medications, psychotherapy, psychoeducation, limiting

15

contact with females, monitoring Muhammad’s suicidal ideation, and

conducting certain tests. It follows that Dr. Loungani did not find that Depo-

Provera or other anti-androgen therapy is medically necessary to treat

Muhammad’s paraphilia. Thus, even assuming Defendants were responsible

for a blanket ban on treating paraphilias with anti-androgen therapy, such

therapy, at least according to Dr. Loungani, is not medically necessary to treat

Muhammad’s condition. And Muhammad presents no evidence that anti-

androgen therapy was the sole proper treatment for his paraphilia. Therefore,

there exists no basis to hold Defendants liable under the Eighth Amendment.

This is further confirmed by the evidence Muhammad submitted, which

shows that there is no consensus among medical professionals that anti-

androgen therapy is medically necessary for the treatment of Muhammad’s

paraphilia. A summary of that evidence follows.

On July 2, 2018, Defendant Reimers responded to Muhammad’s second

set of interrogatories and advised that “[i]ndividual and/or group therapy is

generally the accepted practice of treatment” for paraphilic disorders. Doc. 254-

15 at 2-3.11 Defendant Reimers clarified that “the general course of treatment

differs from patient to patient, and there is no single ‘cure’ that fits all

individuals. Treatment must be tailored to the specific concerns of individual

11 See Doc. 254-3 (Reimers’ curriculum vitae).

16

patients.” Id. at 3. He further advised that “Depo-Provera is not . . . indicated

by the Food and Drug Administration as being used to treat paraphilic

disorders. Additionally, [p]araphilic disorders is a category label not a specific

diagnosis, therefore no treatment is specified for a category.” Id.; see also id. at

4 (“Depo-Provera is not an indicated course of treatment to treat paraphilic

disorders according to the FDA, and as a result, is not generally proscribed [sic]

to treat such issues.”). Finally, Defendant Reimers declared that “[t]here is no

blanket ban on Depo-Provera as it is part of FDOC’s formulary.” Id. at 4.12

Also on July 2, 2018, Defendant Reimers responded to Muhammad’s first

set of interrogatories that asked for a detailed explanation of Defendants

Ogunsanwo, Reimers, and the FDOC’s policy or practice relating to the use of

hormone treatment for psychiatric disorders such as paraphilic disorders and

gender identity disorder. See Doc. 254-16 at 2. Defendant Reimers objected to

the relevance of any information related to gender identity disorder, but

otherwise responded:

Health Services Bulletin [(HSB)] 15.05.03 describes

the policies of the [FDOC] regarding treatment of

paraphilic disorders. The Policy is summarized as the

evaluation and referral process and general outline of

treatment. However, the course of treatment is

12 One year prior, in June 2017, the FDOC had four medications on its formulary that the

Generic Product Identifier system classified as anti-androgen: Bicalutamide, Enzalutamide,

Flutamide, and Nilutamide. Doc. 254-20 at 3. The FDOC apparently added Depo-Provera

sometime thereafter.

17

ultimately to be determined by the treating doctor,

and this policy acts a[s] guidelines in determining that

course.

Id. at 3; see Doc. 254-17 (HSB 15.05.03).

Additionally, on several occasions in February and March 2019, A.

McCaw, M.A., a psychology intern, under the supervision of T. Culbreath,

Psy.D., a licensed psychologist, evaluated Muhammad at Zephyrhills

Correctional Institution. See Doc. S-258 at 74-86. McCaw and Dr. Culbreath

diagnosed Muhammad with unspecified paraphilic disorder, among other

diagnoses. Id. at 83. The two made various treatment recommendations, such

as housing Muhammad within the inpatient Transitional Care Unit, assigning

male therapists if possible, obtaining a psychiatric consultation to consider

restarting an SSRI in conjunction with medical staff to address any medical

side effects, engaging in psychoeducation, and utilizing cognitive behavior

interventions. See id. at 83, 85. They did not include any recommendation for

anti-androgen therapy.

Perhaps the best piece of evidence for Muhammad is an April 30, 2019

order written by M. Thomas, APRN, prescribing medroxyprogesterone (Depo-

Provera) for Muhammad. Id. at 88-89.13 On May 3, 2019, John P. Lay, Jr., M.D.,

13 See also Doc. 254-10 at 3-4 (interrogatory responses by Dr. Nicole Knox, Psy.D., on behalf

of Defendant Inch, dated April 23, 2019, stating: “Any consideration of prescribed medication

would be contingent upon the results of the psychiatric evaluation. [Muhammad] has been

18

approved the Drug Exception Request for medroxyprogesterone, id. at 90;

however, a note written by APRN Thomas on May 14, 2019, reflects that the

“order for Depo” was discontinued and that “this is a medication used for a

DSM-5 diagnosis,” id. at 92.14

On June 5, 2019, on behalf of Defendant Inch, Johnathan Greenfield,

M.D., Associate Statewide Psychiatric Director for the FDOC/Centurion,

averred that:

There are no current psychiatrically recognized,

accepted, and appropriate pharmacologic treatments

of paraphilic disorders. The current psychiatrically

recognized and accepted treatment of paraphilic

disorders focuses on an overall comprehensive

treatment involving psychotherapy and behavioral

therapy and may involve pharmacologic interventions

which attempt to address and ameliorate the

symptoms associated with any risk of sexual violence

due to paraphilic behaviors and impairment in

functionality.

approved for possible prescription of [D]epo-[P]rovera, and treatment would follow

thereafter.”)

14 Muhammad blames Defendant Inch for the discontinuation of the Depo-Provera treatment,

arguing that “Inch is not a medical professional and is not trained in the management of

medical care.” Response at 18 (“[O]n 5-14-19, Inch ordered medical professionals to

discontinue [Muhammad’s] treatment with Depo-Provera; (treatment that Inch approved on

4-23-19).”). Muhammad, however, has not presented any evidence that Defendant Inch, who

is sued in his official capacity only, was responsible for the decision to cancel the treatment

order. In Muhammad’s Affidavit, he avers that Dr. H. Johnson and Dr. S. Boyce told him

“that medical and mental health staff at [Zephyrhills Correctional Institution] didn’t have

anything to do with Central Office – FD[O]C cancelling the approval to use Depo-Provera to

treat [his] paraphilia.” Doc. S-258 at 16. Muhammad continued, “In Oct[ober] 2019, Dr.

Thomas told me that Dr. Amaccuci [(the Regional Medical Director)] ordered her to

discontinue [the] Depo-Provera on 5-14-19, and that she didn’t like or agree with that order.”

Id.

19

Doc. 254-14 at 4.

On January 29, 2020, Psychiatric Nurse Practitioner A. Napoli

evaluated Muhammad and noted that he reported “some improvement in

symptoms however [he] continues to have issues with inappropriate and

violent sexual ideations.” Doc. S-258 at 93. Napoli planned to “consider options

for treatment of paraphilia.” Id. at 94. On March 4, 2020, Muhammad reported

to Napoli that the “current dose of Zoloft [was] not helping with [his]

paraphilia” and he requested an increased dose. Id. at 95. Napoli noted

Muhammad’s “great concern about [his] inability to control [his] paraphilia

symptoms,” and Napoli planned to “consult with Dr[s]. Greenfield [and]

Pages.” Id. at 96. On May 12, 2020, Napoli noted: Muhammad “states that

sexual/homicidal urges have been especially bothersome today which has him

distressed. These thoughts are directed at all women present on the quad

including this provider.” Id. at 97. She further indicated that Muhammad “does

not participate in group therapy due to paraphilic urges. [Muhammad]

currently undertaking legal remedy as medications requested for paraphilia

have been denied.” Id. at 98.

20

On March 2, 2021, Psychiatrist C. Lim evaluated Muhammad. Id. at 99-

100.15 Dr. Lim noted that Muhammad reported he was “[b]etter [with] Prozac,”

and he requested the same dose. Id. at 99. Dr. Lim wrote: “Lot of time spent on

[Muhammad’s] demand for [D]epo[] Provera. This has been discussed several

[times with] D[rs.] Greenfield [and] Taylor [and] Request Denied as

discussed.”16 Id. at 100.

In April 2021, Muhammad submitted an inmate request asking why Dr.

Greenfield denied psychiatry’s repeated requests for approval to treat him with

Depo-Provera. Id. at 101. The Director of Psychological Services at Suwannee

Correctional Institution responded: “On 08/03/2020 you received a response

from Dr. Greenfield[:] ‘All DERs [(Drug Exception Requests)] are determined

in full compliance with the Florida DOC policies and procedures, using as

guidelines the most currently approved edition of the Physician Desk

Reference.’” Id. at 101.

Muhammad also filed as exhibits several publications. See Docs. 254-8,

254-9, 254-11, 254-12, 254-13. Notably, one of the publications authored in

15 Some of Dr. Lim’s notes are illegible. See Doc. S-258 at 99-100.

16 In Muhammad’s Affidavit, he interprets this note as follows: “Depo-Provera . . . has been

discussed several [times with] Dr. Greenfield [and] Dr. Taylor. [Our] Request [for Depo-

Provera] denied. . . .” Doc. S-258 at 16-17.

21

2010 proposed an algorithm of pharmacological treatment for paraphilias. See

Doc. 254-8. The algorithm consisted of the following six levels:

LEVEL 1

 Psychotherapy (preferentially

 Aim: control of paraphiliac sexual

cognitive behavioural therapy if

fantasies, compulsions and

available (Level C), no level of

behaviours without impact on

evidence for other forms of

conventional sexual activity and on

psychotherapy)

sexual desire

LEVEL 2

 SSRIs: increase the dosage at the

 Aim: control of paraphiliac sexual

same level as prescribed in OCD

fantasies, compulsions and

(e.g., fluoxetine 40-60 mg/day or

behaviours with minor impact on

paroxetine 40 mg/day (Level C)

conventional sexual activity and on

sexual desire

 May be used in all mild cases

(“hands off” paraphilias with low

risk of sexual violence, i.e.

exhibitionism without any risk of

rape or paedophilia)

 No satisfactory results at level 1

LEVEL 3

 Add a low dose antiandrogen (e.g.,

 Aim: control of paraphiliac sexual

cyproterone acetate 50-100 mg/day)

fantasies, compulsions and

to SSRIs (Level D)

behaviours with a moderate

reduction of conventional sexual

activity and sexual desire

 ‘Hands on’ paraphilias with

fondling but without penetration

 Paraphiliac sexual fantasies

without sexual sadism

 No satisfactory results at level 2

after 4-6 weeks of SSRIs at high

dosages

22

LEVEL 4

 First choice: full dosage of

 Aim: control of paraphiliac sexual

cyproterone acetate (CPA): oral,

fantasies, compulsions and

200-300 mg/day or i.m. 200-400 mg

behaviours with a substantial

once weekly or every 2 weeks; or

reduction of sexual activity and

use medroxyprogesterone acetate:

desire

50-300 mg/day if CPA is not

 Moderate and high risk of sexual

available (Level C)

violence (severe paraphilias with

 If co-morbidity with anxiety,

more intrusive fondling with

depressive or obsessive compulsive

limited number of victims)

symptoms, SSRI’s might be

 No sexual sadism fantasies and/or

associated with cyproterone acetate

behaviour (if present: go to level 5)

 Compliant patient, if not: use i.m.

form or go to level 5

 No satisfactory results at level 3

LEVEL 5

 Long acting GnRH agonists, i.e.

 Aim: control of paraphiliac sexual

triptorelin or leuprolide acetate 3

fantasies, compulsions and

mg/month or 11,25 mg i.m. every 3

behaviours with an almost

months (Level C)

complete suppression of sexual

 Testosterone levels measurements

desire and activity

may be easily used to control the

 High risk of sexual violence and

GnRH agonist treatment

severe paraphilias

observance if necessary

 Sexual sadism fantasies and/or

 Cyproterone acetate may be

behaviour or physical violence

associated with GnRH agonist

 No compliance or no satisfactory

treatment (one week before and

results at level 4

during the first month of GNRHa)

to prevent a flare up effect and to

control the relapse risk of deviant

sexual behaviour associated with

the flare up effect

LEVEL 6

 Use antiandrogen treatment, i.e.

 Aim: control of paraphiliac sexual

cyproterone acetate (50-200 mg/day

fantasies, compulsions and

per os or 200-400 mg once weekly

behaviours with a complete

23

suppression of sexual desire and or every 2 weeks i.m.) or,

activity medroxyprogesterone acetate (300-

 Most severe paraphilias 500 mg/week i.m. if CPA not

(catastrophic cases) available) in addition to GnRH

 No satisfactory results at level 5 agonists (Level D)

 SSRIs may also be added (No level

of evidence)

Doc. 254-8 at 44; see also Doc. 254-9 at 5 (article published in 2016 recognizing

those six levels of treatment were developed prior to the publication of the

DSM-5 but finding they “remain useful because the algorithm is based on the

severity of impairment and risk of harm”).

Even viewing the evidence and making all reasonable inferences in favor

of Muhammad, at most, the evidence shows a difference of opinion between

medical professionals and Muhammad, which cannot support an Eighth

Amendment deliberate indifference claim. See, e.g., Keohane, 952 F.3d at

1274-75; Harris, 941 F.2d at 1505 (“Nor does 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 support a claim of cruel and unusual

punishment.”). Indeed, while some medical professionals and Muhammad

apparently believe Muhammad should be treated with Depo-Provera, other

medical professionals have not recommended such treatment. Compare Doc.

S-258 at 88-89 (April 30, 2019 order for Depo-Provera), with id. at 74-86 (report

authored by McCaw and Culbreath); see also Loungani Report at 9-10

24

(recommending various treatment options, one of which includes anti-

androgen therapy). Notably, Muhammad avers that Drs. Napoli, Cunningham,

Lim, and Cannon told Muhammad that his “paraphilia needs to be treated with

Depo-Provera” but Dr. Greenfield has denied their requests “because FD[O]C

prohibits the use of antiandrogens to treat paraphilia.” Doc. S-258 at 16 (citing

id. at 93-100). However, the medical records Muhammad cites do not support

that proposition. Napoli’s treatment notes do not show that she requested

Muhammad be treated with Depo-Provera, see id. at 93-98, and Dr. Lim’s note

indicates that Muhammad was “demand[ing]” treatment with Depo-Provera,

id. at 100.

The record reveals there is no consensus that Muhammad’s condition

requires anti-androgen therapy.17 There also is no consensus on the course of

treatment for Muhammad’s condition. Nevertheless, this is not a case where

no treatment is being given or the treatment is so cursory as to amount to no

treatment at all. The records reflect that the FDOC has been evaluating and

treating Muhammad’s condition over the course of several years, and it

17 On April 19, 2021, the Court denied Muhammad’s request for an order appointing an expert

witness psychiatrist who specializes in paraphilic disorders (such as Dr. Fred Berlin) or

alternatively, an order appointing counsel to assist Muhammad in obtaining an expert

opinion from Dr. Berlin. See Order (Doc. 239); see also Order (Doc. 248) (denying motion for

reconsideration). Even assuming Muhammad obtained an expert report opining that his

condition required anti-androgen therapy, the Court’s ruling on Defendants’ Motion would

not change. There would remain a difference of opinion among medical professionals about

whether Muhammad required such treatment.

25

continues to do so. See Doc. S-258 at 93-100 (psychiatric follow-up notes dated

January 2020 through March 2021); see also id. at 70 (grievance response from

G. Espino, M.D. dated July 11, 2018: “We have discussed this extensively. We

have offered you group therapy, individual [t]herapy, and Psychotropic

medication to address your treatment needs. The anti-androgens you have

been requesting have been denied by our state Psychiatrist and state Mental

Health Director.” (emphasis added)). In sum, Muhammad is receiving care for

his paraphilia, and “[t]he long and short of it is that diagnosing, monitoring,

and managing conditions—even where a complete cure may be available—will

often meet the ‘minimally adequate medical care’ standard that the Eighth

Amendment imposes.” Hoffer v. Sec’y, Fla. Dep’t of Corr., 973 F.3d 1263, 1273

(11th Cir. 2020) (quoting Harris, 941 F.2d at 1504).

Moreover, Muhammad’s contention that HSB 15.05.03 “prohibits,

prevents and precludes medical and psychiatric providers from treating

paraphilic disorders with medically necessary antiandrogen treatment,”

Response at 5-6, reads language into the HSB that is not present. The HSB

provides guidelines, but it does not preclude a treating doctor from prescribing

an appropriate course of treatment based on an individual inmate’s needs. See

Doc. 254-16 at 2 (Reimers averring that “the course of treatment is ultimately

to be determined by the treating doctor, and [HSB 15.05.03] acts a[s] guidelines

26

in determining that course”). Additionally, the alleged “blanket ban” is

distinguishable from the policy challenged in Keohane to which Muhammad

cites. See Response at 14. In Keohane, the plaintiff alleged that the challenged

policy “amounted to a per se rejection of any treatment that an inmate hadn’t

received prior to her incarceration, without regard to (or any exception for)

medical necessity.” Keohane, 952 F.3d at 1266. While the Eleventh Circuit did

not reach the merits of the issue (it instead found the issue to be moot), the

Court stated: “Were we free to reach the merits, we would almost certainly

agree [with the plaintiff]. . . . It seems to us that responding to an inmate’s

acknowledged medical need with what amounts to a shoulder-shrugging

refusal even to consider whether a particular course of treatment is

appropriate is the very definition of ‘deliberate indifference’—anti-medicine, if

you will.” Id. at 1266-67. Here, however, the evidence shows that the FDOC

evaluated and monitored Muhammad’s condition, considered his requests for

anti-androgen therapy, and provided him with various treatments. At one

point, FDOC medical personnel ordered Depo-Provera for Muhammad, but

that order was subsequently canceled. The reasoning for that cancelation is

unclear. One reason given was because Depo-Provera is used for DSM-5

diagnoses. However, this rationale appears contrary to Defendant Inch’s April

23, 2019 amended response to Muhammad’s second set of interrogatories, in

27

which Dr. Knox, on behalf of Defendant Inch, stated that “[p]araphilia is a

psychologically and psychiatrically recognized Mental disorder defined within

the DSM-V and ICD-10 codes.” Doc. 254-14 at 2. Another reason may have been

that Depo-Provera is not FDA approved as a treatment for paraphilia. See Doc.

254-15 at 3, 4. Or, other FDOC medical professionals may have determined

that anti-androgen treatment was not medically necessary for Muhammad’s

paraphilia. Regardless, the bottom line is that there is no consensus on the

appropriate course of treatment for Muhammad’s paraphilia, the FDOC has at

least considered whether Depo-Provera is appropriate for him, and the FDOC

is monitoring and treating Muhammad’s condition. While the adequacy of

Muhammad’s care may be the “subject of genuine, good-faith disagreement

between healthcare professionals,” there is no evidence to suggest that

Defendants “acted in so reckless and conscience-shocking a manner as to have

violated the Constitution.” Hoffer, 973 F.3d at 1273.

Considering the record, the Court finds that Defendants are entitled to

entry of summary judgment in their favor. Accordingly, it is

ORDERED:

1. Defendants’ Motion for Summary Judgment (Doc. 219) is

GRANTED.

28

2. The Clerk shall enter judgment in favor of Defendants and

against Plaintiff, terminate any pending motions, and close the file.

DONE AND ORDERED at Jacksonville, Florida, this 8 day of

September, 2021.

MARCIA MORALES HOWARD

United States District Judge

JAX-3 9/8

C:

Akeem Muhammad, #706732

Counsel of Record

29