Scayles v. Jacksonville Cardiovascular Center, PL

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

BARBARA SCAYLES, AS

PERSONAL REPRESENTATIVE

OF THE ESTATE OF ULYSSES G.

WILLIAMS, ET AL.,

Plaintiffs,

v.

Case No. 3:19-cv-1311-MMH-PDB

MARK S. INCH, SECRETARY OF

THE FLORIDA DEPARTMENT OF

CORRECTIONS, ET AL.,

Defendants.

ORDER

I. Status

Plaintiffs Barbara Scayles, as personal representative of the estate of

Ulysses G. Williams; Julie McAfee on behalf of A.W., a minor; and Nicole

Berrios on behalf of P.B., a minor, (Plaintiffs) initiated this action with the

assistance of counsel on November 8, 2019. See Doc. 1. Plaintiffs are proceeding

on a third amended complaint (Complaint; Doc. 83). In the Complaint,

Plaintiffs assert claims against the following Defendants: (1) Mark S. Inch,

Secretary of the Florida Department of Corrections (FDOC); (2) Centurion of

Florida, LLC (Centurion); (3) MHM Health Professionals, LLC (MHM); (4)

Gerardo Pedroza-Sierra, M.D.; (5) Jacksonville Cardiovascular Center, P.L.

(JCC); and (6) Waddah Salman, M.D. Plaintiffs contend that Defendants are

liable under 42 U.S.C. § 1983 and Florida law for the death of Ulysses

Williams, who died from a heart attack while an inmate of the Florida penal

system. See generally Complaint. As relief, Plaintiffs request compensatory

damages, costs of litigation, and reasonable attorney fees. Before the Court are

Defendants’ motions to dismiss. See Inch Motion (Doc. 84); Centurion Motion

(Doc. 88); Pedroza Motion (Doc. 89); MHM Motion (Doc. 90); JCC Motion (Doc.

91). Plaintiffs filed responses in opposition to the motions to dismiss. See Inch

Response (Doc. 85); Pedroza Response (Doc. 97); MHM Response (Doc. 98);

Salman Response (Doc. 99); JCC Response (Doc. 100); Centurion Response

(Doc. 101). Thus, the motions to dismiss are ripe for review.

II. Motion to Dismiss Standard

In ruling on a motion to dismiss, the Court must accept the factual

allegations set forth in the complaint as true. See Ashcroft v. Iqbal, 556 U.S.

662, 678 (2009); Swierkiewicz v. Sorema N.A., 534 U.S. 506, 508 n.1 (2002); see

also Lotierzo v. Woman’s World Med. Ctr., Inc., 278 F.3d 1180, 1182 (11th Cir.

2002). In addition, all reasonable inferences should be drawn in favor of the

plaintiff. See Randall v. Scott, 610 F.3d 701, 705 (11th Cir. 2010). Nonetheless,

the plaintiff must still meet some minimal pleading requirements. Jackson v.

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BellSouth Telecomm., 372 F.3d 1250, 1262-63 (11th Cir. 2004) (citations

omitted). Indeed, while “[s]pecific facts are not necessary[,]” the complaint

should “‘give the defendant fair notice of what the . . . claim is and the grounds

upon which it rests.’” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per curiam)

(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Further,

the plaintiff must allege “enough facts to state a claim to relief that is plausible

on its face.” Twombly, 550 U.S. at 570. “A claim has facial plausibility when

the pleaded factual content allows the court to draw the reasonable inference

that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678

(citing Twombly, 550 U.S. at 556).

A “plaintiff’s obligation to provide the grounds of his entitlement to relief

requires more than labels and conclusions, and a formulaic recitation of the

elements of a cause of action will not do[.]” Twombly, 550 U.S. at 555 (internal

quotations omitted); see also Jackson, 372 F.3d at 1262 (explaining that

“conclusory allegations, unwarranted deductions of facts or legal conclusions

masquerading as facts will not prevent dismissal”) (internal citation and

quotations omitted). Indeed, “the tenet that a court must accept as true all of

the allegations contained in a complaint is inapplicable to legal conclusions[,]”

which simply “are not entitled to [an] assumption of truth.” Iqbal, 556 U.S. at

678, 680. Thus, in ruling on a motion to dismiss, the Court must determine

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whether the complaint contains “sufficient factual matter, accepted as true, to

‘state a claim to relief that is plausible on its face[.]’” Id. at 678 (quoting

Twombly, 550 U.S. at 570).

III. Plaintiffs’ Allegations

Plaintiffs assert that starting on June 30, 2015, Ulysses Williams spent

approximately nine days at the Reception and Medical Center (RMC) where he

underwent multiple medical evaluations. Complaint at 5. These evaluations

showed that Williams was obese and had a history of type 2 diabetes and

hypertension. Id. at 6. FDOC then transferred Williams to a facility in

Graceville, FL, where he remained for approximately seventeen months and,

at which, he received treatments for obesity, diabetes, and hypertension. Id.

While at the Graceville prison, medical personnel diagnosed Williams with

dyslipidemia/high cholesterol and documented in his medical records that his

condition was “intermittently uncontrolled, but not imminently life

threatening.” Id. From August through December of 2016, Williams repeatedly

complained and made requests to address chronic chest pain. Id. Over that

period, Williams received more than ten medical consultations concerning

chest pain. Id. Between August of 2016 and January of 2017, the Graceville

facility’s medical staff performed diagnostic tests on Williams, which showed

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abnormal results indicating an inferior myocardial infarct. Id. According to

Plaintiffs, this meant that Williams previously suffered a heart attack. Id.

On January 19, 2017, Williams’ primary care physician at Graceville

requested a cardiology consultation for Williams because of the on and off chest

pain; history of diabetes, dyslipidemia, and hypertension; as well as Williams’

complaint of shortness of breath and chest pain while exercising. Id. at 7. The

primary care physician made a provisional diagnosis of chronic chest pain,

possible inferior infarct, and the need for further studies to rule out coronary

artery disease. Id. On February 7, 2017, the FDOC transferred Williams to

RMC for a cardiology consult with Dr. Waddah Salman. Id.

Salman, who had Williams’ medical records, examined Williams on

February 9, 2017. Id. Salman noted during the examination that Williams was

a smoker and had a family history of coronary disease. Id. Additionally,

Salman’s notes reflect that Williams had experienced intermittent chest pain

for seven months that was “consistent with typical angina.” Id. at 8. According

to Plaintiffs, “Salman recommended with urgency that Mr. Williams undergo

a Lexiscan Nuclear Stress Test.” Id. Medical staff, with Salman overseeing

them, performed the stress test on March 16, 2017. Id. The stress test results

were consistent with someone who had a prior heart attack and was at high

risk of a future heart attack. Id. Despite this information, Plaintiffs allege that

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Salman did not order further medical attention “to coordinate urgent care for

Mr. Williams or follow up with immediate heart catherization that would have

located narrowing or blockages in or near Mr. Williams’ heart where

angioplasty (with or without stent placement) could have been performed to

widen the narrowed arteries.” Id. Salman did not dictate or transcribe the

results of the stress test until late April of 2017, after the five-day period FDOC

regulations prescribe for recording this data, and after Williams had already

died. Id. at 11.

On March 24, 2017, Williams went to the urgent care at RMC “with

complaints of epigastric and chest pain[.]” Id. at 8. Dr. Gerado Pedroza

examined him that day and was aware of Williams’ medical history and his

risk factors for a heart attack. Id. at 9. However, Pedroza did not have access

to the results of the stress test. Id. Nonetheless, Plaintiffs maintain that the

remaining documentation “still indicated that Mr. Williams was high risk for

a subsequent heart attack[.]” Id. Pedroza had an EKG performed on Williams,

the results of which were abnormal, “revealing sinus tachycardia and a

possible anterior myocardial infarction, age undetermined.” Id. Despite these

results and his medical history, Pedroza did not create a treatment plan for

the chest pain. Id. Instead, Pedroza “diagnosed Mr. Williams with epigastric

pain, treated him with prescription medications consisting of Tylenol,

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Lidocaine, Maalox, and Protonix and then subsequently discharged him from

the RMC urgent care[.]” Id. at 9-10. Plaintiffs contend that Williams actually

experienced a heart attack that morning and that Pedroza failed to diagnosis

it and treat it despite the presence of numerous risk factors. Id. at 10. On the

afternoon of March 24, 2017, Williams again went to RMC’s urgent care,

“complaining of epigastric and chest pain again,” where Dr. Rodriguez

examined him. Id. Rodriguez treated Williams as if he were having a heart

attack and performed FDOC’s chest pain protocol while waiting for transport

to Shands Hospital. Id. at 10-11. Sadly, Williams died before transport. Id. at

11.

Plaintiffs maintain that Salman failed to order additional treatment for

Williams’ heart issues and failed to timely transcribe the notes and results of

the stress test prior to Williams’ death. Id. They also contend that Pedroza

failed to correctly diagnose and treat Williams that morning. Id. According to

Plaintiffs, both Pedroza and Salman acted negligently and committed medical

malpractice in the treatment of Williams and, as a result, should be liable

under Florida’s Wrongful Death Act. Id. at 12-13, 24-26. Likewise, they assert

that MHM Health Professionals, Centurion, Mark Inch, and Jacksonville

Cardiovascular Center are vicariously liable for Williams’ death under Florida

law. Id. at 14-18, 26-27. Plaintiffs additionally argue that Pedroza, Centurion,

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and Salman violated Williams’ rights under the Eighth Amendment and are

liable under § 1983. Id. at 18-24, 27-29.

IV. Constitutional Claims

The Court first addresses whether Plaintiffs have established a claim for

relief under § 1983, because if not, the Court should not address Plaintiffs’

state law claims. See Raney v. Allstate Ins. Co., 370 F.3d 1086, 1088-89 (11th

Cir. 2004) (noting that districts courts are encouraged “to dismiss any

remaining state claims when, as here, the federal claims have been dismissed

prior to trial.”). Plaintiffs allege constitutional claims against Pedroza,

Salman, and Centurion.

Eight Amendment Standard

Pursuant to the Eighth Amendment to the United States Constitution,

“Excessive bail shall not be required, nor excessive fines imposed, nor cruel

and unusual punishments inflicted.” U.S. Const. amend. VIII. The Eighth

Amendment “imposes duties on [prison] officials, who must provide humane

conditions of confinement; prison officials must ensure that inmates receive

adequate food, clothing, shelter, and medical care, and must ‘take reasonable

measures to guarantee the safety of the inmates.’” Farmer v. Brennan, 511

U.S. 825, 832 (1994) (quoting Hudson v. Palmer, 468 U.S. 517, 526-27 (1984)).

“To establish an Eighth Amendment violation, a prisoner must satisfy both an

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objective and subjective inquiry regarding a prison official’s conduct.” Oliver v.

Fuhrman, 739 F. App'x 968, 969 (11th Cir. 2018) (citing Chandler v. Crosby,

379 F.3d 1278, 1289 (11th Cir. 2004)). The Eleventh Circuit has explained:

Under the objective component, a prisoner must

allege a condition that is sufficiently serious to violate

the Eighth Amendment. Id. The challenged condition

must be extreme and must pose an unreasonable risk

of serious damage to the prisoner’s future health or

safety. Id. The Eighth Amendment guarantees that

prisoners are provided with a minimal civilized level

of life’s basic necessities. Id.

Under the subjective component, a prisoner

must allege that the prison official, at a minimum,

acted with a state of mind that constituted deliberate

indifference. Id. This means the prisoner must show

that the prison officials: (1) had subjective knowledge

of a risk of serious harm; (2) disregarded that risk; and

(3) displayed conduct that is more than mere

negligence. Farrow v. West, 320 F.3d 1235, 1245 (11th

Cir. 2003).

Id. at 969-70. “To be cruel and unusual punishment, conduct that does not

purport to be punishment at all must involve more than ordinary lack of due

care for the prisoner's interests or safety.” Whitley v. Albers, 475 U.S. 312, 319

(1986).

As it relates to medical care, “[t]he Supreme Court has interpreted the

Eighth Amendment to prohibit ‘deliberate indifference to serious medical

needs of prisoners.’” Melton v. Abston, 841 F.3d 1207, 1220 (11th Cir. 2016)

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(quoting Estelle v. Gamble, 429 U.S. 97, 102 (1976)). The Eleventh circuit has

explained that

To prevail on a deliberate indifference claim, [a

plaintiff] must show: “(1) a serious medical need; (2)

the defendants' deliberate indifference to that need;

and (3) causation between that indifference and the

plaintiff's injury.” Mann v. Taser Int'l, Inc., 588 F.3d

1291, 1306-07 (11th Cir.2009). To establish deliberate

indifference, [a plaintiff] must prove “(1) subjective

knowledge of a risk of serious harm; (2) disregard of

that risk; (3) by conduct that is more than [gross]

negligence.” Townsend v. Jefferson Cnty., 601 F.3d

1152, 1158 (11th Cir.2010) (alteration in original). The

defendants must have been “aware of facts from which

the inference could be drawn that a substantial risk of

serious harm exist[ed]” and then actually draw that

inference. Farrow v. West, 320 F.3d 1235, 1245 (11th

Cir.2003) (quotation omitted).

Easley v. Dep’t of Corr., 590 F. App’x 860, 868 (11th Cir. 2014). “For medical

treatment to rise to the level of a constitutional violation, the care must be ‘so

grossly incompetent, inadequate, or excessive as to shock the conscience or to

be intolerable to fundamental fairness.’” Nimmons v. Aviles, 409 F. App'x 295,

297 (11th Cir. 2011) (quoting Harris v. Thigpen, 941 F.2d 1495, 1505 (11th

Cir.1991)); see also Waldrop v. Evans, 871 F.2d 1030, 1033 (11th Cir. 1989)

(“Grossly incompetent or inadequate care can constitute deliberate

indifference, as can a doctor’s decision to take an easier and less efficacious

course of treatment” or failure to respond to a known medical problem).

However, the law is well settled that the Constitution is not implicated by the

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negligent acts of corrections officials and medical personnel. Daniels v.

Williams, 474 U.S. 327, 330-31 (1986); Davidson v. Cannon, 474 U.S. 344, 348

(1986) ("As we held in Daniels, the protections of the Due Process Clause,

whether procedural or substantive, are just not triggered by lack of due care

by prison officials."). A complaint that a physician has been negligent "in

diagnosing or treating a medical condition does not state a valid claim of

medical mistreatment under the Eighth Amendment." Bingham v. Thomas,

654 F.3d 1171, 1176 (11th Cir. 2011) (quotation marks and citation omitted).

Moreover, the Eleventh Circuit has noted that “[n]othing in our case law would

derive a constitutional deprivation from a prison physician's failure to

subordinate his own professional judgment to that of another doctor; to the

contrary, it is well established that ‘a simple difference in medical opinion’ does

not constitute deliberate indifference.” Bismark v. Fisher, 213 F. App'x 892,

897 (11th Cir. 2007) (quoting Waldrop, 871 F.2d at 1033). Similarly, “the

question of whether governmental 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

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liability under the Eighth Amendment.” Adams v. Poag, 61 F.3d 1537, 1545

(11th Cir. 1995) (citation omitted).

Claims Against Pedroza

In his motion to dismiss, Pedroza argues that, at best, Plaintiffs have

alleged classic negligence and have not made factual allegations to support

their legal conclusions that Pedroza violated the Eighth Amendment. Pedroza

Motion at 2, 16-25. Pedroza does not dispute that Plaintiffs have alleged that

Williams had an objectively serious medical need that, if not addressed, “posed

a risk of serious harm.” Id. at 17. However, he asserts that Plaintiffs did not

allege Pedroza had subjective knowledge of that risk. Id. at 17-25. Instead,

Pedroza maintains that Plaintiffs’ own allegations show that Pedroza

examined and treated Williams, albeit not in the manner Plaintiffs think he

should have, which refute Plaintiffs’ arguments that Pedroza purposely denied

treatment in a deliberately indifferent manner. Id. According to Pedroza,

Plaintiffs’ allegations present a dispute over Pedroza’s medical judgment and

the adequacy of the medical attention Williams received. Id. Pedroza contends

that Plaintiffs have not made allegations that “Pedroza knew Williams was

suffering from a cardiac event but refused to obtain the necessary medical

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treatment.” Id. at 19. As such, Pedroza avers that they have not stated a claim

for relief under § 1983. Id. at 16-25.

Plaintiffs disagree. See generally Pedroza Response. They assert that

Pedroza has mischaracterized or omitted several of Plaintiffs’ allegations in

arguing that they failed to state a claim for relief under § 1983. Id. at 5-7.

According to Plaintiffs, a heart condition is a serious medical condition. Id. at

11. Plaintiffs contend that Pedroza’s subjective knowledge of Williams’ “serious

medical need was evidenced by: (1) patient’s known medical history, which

included Dr. Salman’s medical note requesting a Lexican Nuclear Stress Test

with urgency; (3) [sic] decedent’s EKG results reviewed by Pedroza the

morning which preceded the decedent’s death later that same day; and (4)

Pedroza’s specific medical findings and detailed risk factors generated from his

patient encounter with the decedent.” Id. at 11-12 (emphasis in original).

Plaintiffs maintain that Pedroza should have known that Williams was having

a heart attack that morning because of Williams’ medical history, his transfer

to RMC for his cardiac issues, Williams’ complaint of chest pains that morning,

and the medical data collected from Williams that morning. Id. at 12-13. They

assert that the risks were so obvious that Pedroza’s subjective knowledge of

that risk can be inferred. Id. Plaintiffs further argue that Pedroza’s delay in

treating Williams’ heart attack states a prima facie case of deliberate

13

indifference and that Pedroza’s ineffective treatment measure amounted to no

treatment at all. Id. at 13-14.

The Eleventh Circuit has explained “[t]o be deliberately indifferent a

prison official must know of and disregard an excessive risk to inmate health

or safety; the official must both 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.” Franklin v. Curry, 738 F.3d 1246, 1250 (11th Cir. 2013) (quoting

Goodman v. Kimbrough, 718 F.3d 1325, 1332 (11th Cir. 2013)) (emphasis

added). Here, Plaintiffs have alleged Pedroza knew Williams was having a

heart attack the morning of March 24, 2017, because of various medical data

available to Pedroza that morning. Complaint at 19. Plaintiffs have alleged

facts from which an inference could be drawn that Williams would have a heart

attack. As to whether Pedroza actually drew that inference, Plaintiffs assert

in the response that they adequately alleged Pedroza’s knowledge. Pedroza

Response at 6. Specifically, they cite to the following section of the Complaint:

In the alternative, at all times material, Dr. Pedroza

knew Mr. Williams had a serious medical need as

indicated by Mr. Williams’ medical history; Dr.

Salman’s February 9, 2017, medical note requesting a

Lexiscan Nuclear Stress Test with urgency; Mr.

Williams’ symptoms on the morning of March 24,

2017; and EKG result, all of which indicated that Mr.

Williams was not only high-risk for a heart attack, but

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also was experiencing a heart attack on the morning

of March 24, 2017.

Complaint at 19 (emphasis added except as to “urgency”). Pedroza contends

this portion of the Complaint contains only legal conclusions that are not

supported by factual allegations. Pedroza Motion at 18-19.

The Court notes that “the tenet that a court must accept as true all of

the allegations contained in a complaint is inapplicable to legal conclusions[,]

and “[t]hreadbare recitals of the elements of a cause of action, supported by

mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. In Iqbal,

the United States Supreme Court concluded that the following allegation in

the complaint was a legal conclusion not entitled to be assumed true: defendant

“‘knew of, condoned, and willfully and maliciously agreed to subject [him]’ to

harsh conditions of confinement ‘as a matter of policy, solely on account of [his]

religion, race, and/or national origin and for no legitimate penological

interest.’” Id. at 680.

Here, as in Iqbal, Plaintiffs’ allegation that “Dr. Pedroza knew Mr.

Williams had a serious medical need as indicated by” the medical data is a

legal conclusion not entitled to an assumption of truth. Complaint at 19

(emphasis added). Beyond this conclusion, Plaintiffs do not allege that Pedroza

actually drew an inference from the medical data that Williams was

experiencing a heart attack that morning or that a heart attack was imminent.

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Indeed, as Plaintiffs themselves assert, Pedroza’s medical notes provide no

indication that Pedroza even reviewed Williams’ medical records. Id. at 9.

Moreover, according to Plaintiffs, Williams was experiencing classic heart

attack symptoms the morning of March 24, 2017, “that [were] not diagnosed.”

Id. at 10 (emphasis added). Here, Plaintiffs have not alleged facts showing

Pedroza had subjective knowledge that Williams was having a heart attack or

subjective intent to punish Williams. Nor have they alleged facts supporting

an inference that Pedroza’s response “was poor enough to constitute ‘an

unnecessary and wanton infliction of pain,’ and not merely accidental

inadequacy, ‘negligen[ce] in diagnosi[s] or treat[ment],’ or even ‘[m]edical

malpractice’ actionable under state law[.]” Taylor v. Adams, 221 F.3d 1254,

1258 (11th Cir. 2000) (quoting Estelle, 429 U.S. at 105-06). Thus, Plaintiffs

have not alleged facts plausibly supporting a claim of an Eighth Amendment

violation. See Farmer, 511 U.S. at 838 (“[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.”). The factual allegations presented by Plaintiffs show that

Pedroza diagnosed Williams with epistatic pain and treated him as such –

likely a misdiagnosis or a failure to diagnosis. However, while such factual

allegations may state a claim of negligence, they do not rise to the level of an

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Eighth Amendment violation. See Estelle, 429 U.S. at 106 (“Thus, a complaint

that a physician has been negligent in diagnosing or treating a medical

condition does not state a valid claim of medical mistreatment under the

Eighth Amendment.). Accordingly, Pedroza’s motion is due to be granted as to

the Eighth Amendment claims against him.

Claims Against Salman

In his motion to dismiss, Salman argues that Plaintiffs have failed to

state a claim for relief based on a violation of the Eighth Amendment and that

he is entitled to qualified immunity. JCC Motion at 15-23. According to

Salman, Plaintiffs have not alleged that he acted with deliberate indifference

as defined under Eighth Amendment precedent. Id. at 21. Salman maintains

that Plaintiffs’ claim boils down to a difference in medical opinion, which is not

actionable under § 1983. Id. Even if Plaintiffs did state a claim, Salman

contends that he is entitled to qualified immunity because Plaintiffs have not

shown that the alleged facts violated a clearly established right. Id. at 22.

Instead, Salman asserts that Plaintiffs’ allegations only support a negligence

claim, which is not a constitutional violation. Id. at 23. Also, Salman avers that

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there is no Supreme Court precedent similar to the current case and that his

alleged actions were not obviously unconstitutional. Id.

Plaintiffs maintain that they sufficiently alleged an Eighth Amendment

violation and Salman is not entitled to qualified immunity. Salman Response

at 9-17. As to whether Salman acted with deliberate indifference, Plaintiffs

contend that Salman subjectively knew Williams faced an imminent heart

attack because Salman had access to Williams’ medical history, tests

performed, and Salman’s own examination of Williams. Id. at 10-13. Salman

oversaw the nuclear stress test, which showed that Williams previously

suffered a heart attack and had coronary blockages, but failed to dictate the

results of the stress test until approximately a month later, after Williams had

died. Id. Plaintiffs argue that the risk was obvious and required urgent

treatment, but Salman deliberately failed to act. Id.

In the Complaint, Plaintiffs assert that Salman was the cardiologist at

RMC that examined Williams on February 9, 2017, and March 16, 2017.

Complaint at 7. Plaintiffs maintain that Salman had access to Williams’

medical records, which showed that he had a high risk of suffering a heart

attack. Id. Additionally, they contend that Salman’s examination of Williams

verified additional risk factors for a heart attack. Id. at 7-8. Based on Williams’

history and Salman’s examination, Salman “recommended with urgency that

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Mr. Williams undergo a Lexiscan Nuclear Stress Test.” Id. at 8. On March 16,

2017, Salman oversaw the stress test and EKG, which showed that Williams

had previously had a heart attack and had coronary blockage. Id. Despite

Salman being aware of this data, Plaintiffs assert that he failed to provide any

additional medical action or follow-up. Id. Moreover, Plaintiffs aver that

Salman failed to dictate the results of the stress test until April 21, 2017,

almost a month after Williams’ death and prior to the events of March 24, 2017.

Id. at 11-12. In the Claims section of the Complaint, Plaintiffs allege that

Salman either diagnosed or knew Williams had a high risk of suffering a heart

attack, because Salman was aware of Williams’ complaints, medical history,

and other health issues. Id. at 27-28. Additionally, they assert that Salman’s

decision to urgently request a stress test along with the results of the stress

test and an EKG further demonstrates Salman’s knowledge that Williams had

a serious medical need. Id. at 28.

Plaintiffs have sufficiently alleged the objective component of a

deliberate indifference claim. The Court turns to whether Plaintiffs have

adequately alleged Salman acted with deliberate indifference, and finds that

they have done so. Plaintiffs’ allegations show Salman was so concerned with

Williams’ cardiac health that he “recommended with urgency” that Williams

undergo a stress test. Plaintiffs have alleged the results of that stress test,

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which Salman oversaw, were abnormal and provided data indicating Williams

was at high risk for a future heart attack. Despite notating this information at

the time, he failed to dictate the information into the FDOC database in a

timely fashion. Additionally, one reasonably could infer the delay and Salman’s

failure to direct follow-up treatment unreasonably prolonged treatment in

light the urgent nature of the known risk. At this stage of the proceedings, it

is reasonable to infer from Plaintiffs’ allegation that Salman’s unexplained

failure to continue any treatment or timely transcribe the stress test results

amounted to deliberate indifference. See Brown v. Hughes, 894 F.2d 1533,

1538 (11th Cir. 1990) (“When prison guards ignore without explanation a

prisoner's serious medical condition that is known or obvious to them, the trier

of fact may infer deliberate indifference.”); Carswell v. Bay Cty., 854 F.2d 454,

457 (11th Cir. 1988) (quoting Ancata v. Prison Health Servs., Inc., 769 F.2d

700, 704 (11th Cir. 1985)) (“Under section 1983 ‘knowledge of the need for

medical care and intentional refusal to provide that care has consistently been

held to surpass negligence and constitute deliberate indifference.’”); Granda v.

Schulman, 372 F. App'x 79, 83 (11th Cir. 2010) (“Allegations of a delay in

medical care for ‘serious and painful injuries’ also can state a claim for a

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violation of the Eighth Amendment, especially where delay in treating a

‘known or obvious’ serious medical condition is unexplained”.).

As to Salman’s qualified immunity argument, unreasonable delay in

treating a known serious risk has long been held to violate the Eighth

Amendment. See id.; see also Anderson v. Creighton, 483 U.S. 635, 640 (1987)

(citations omitted) (“This is not to say that an official action is protected by

qualified immunity unless the very action in question has been held unlawful;

but it is to say that in the light of preexisting law the unlawfulness must be

apparent.”). As such, the Court finds that Salman’s motion is due to be denied

as to Plaintiffs’ Eighth Amendment claims against him.

Claims Against Centurion

Centurion contends that Plaintiffs have failed to allege an Eighth

Amendment violation against it. Centurion Motion at 12-20. Specifically, like

Pedroza and Salman, Centurion argues that Plaintiffs have not alleged an

Eighth Amendment violation against either Pedroza or Salman. Id. Moreover,

Centurion argues that other than legal conclusions, Plaintiffs have failed to

allege that Centurion had a custom, policy, or practice that was the moving

force behind Williams’ death. Id.

In response, Plaintiffs argue that they sufficiently alleged Pedroza and

Salman violated Williams’ Eighth Amendment rights. Centurion Response at

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4-11. Regarding Centurion’s custom or policy, Plaintiffs assert that the claim

presented in Ground VI of the Complaint properly alleged Centurion’s policies

- an inadequate chest pain policy and a policy of delayed diagnosis - were the

driving force behind Williams’ death Id. at 11-13. Additionally, Plaintiffs

contend that they alleged these policies impacted other similarly situated

patients. Id. at 13.

Centurion contracted with the Florida Department of Corrections to

provide medical services to inmates within the state of Florida. Although

Centurion is not a governmental entity, “[w]here a function which is

traditionally the exclusive prerogative of the state … is performed by a private

entity, state action is present” for purposes of § 1983. Ancata v. Prison Health

Servs., Inc., 769 F.2d 700, 703 (11th Cir. 1985) (citations omitted). Indeed,

“when a private entity . . . contracts with a county to

provide medical services to inmates, it performs a

function traditionally within the exclusive prerogative

of the state” and “becomes the functional equivalent of

the municipality” under section 1983. Buckner v. Toro,

116 F.3d 450, 452 (11th Cir. 1997). “[L]iability under §

1983 may not be based on the doctrine of respondeat

superior.” Grech v. Clayton Cnty., Ga., 335 F.3d 1326,

1329 (11th Cir. 2003) (en banc).

Craig v. Floyd Cty., Ga., 643 F.3d 1306, 1310 (11th Cir. 2011); see Denham v.

Corizon Health, Inc., Case No. 6:13-cv-1425-Orl-40KRS, 2015 WL 3509294, at

*3 n.1 (M.D. Fla. June 4, 2015) (“[W]hen a government function is performed

22

by a private entity like Corizon, the private entity is treated as the functional

equivalent of the government for which it works.”) (citation omitted), aff’d

(11th Cir. Jan. 13, 2017).

Where a deliberate indifference medical claim is brought against an

entity, such as Centurion, based upon its functional equivalence to a

government entity, the assertion of a constitutional violation is merely the first

hurdle in a plaintiff’s case. This is so because liability for constitutional

deprivations under § 1983 cannot be based on the theory of respondeat

superior. Craig, 643 F.3d at 1310 (quoting Grech v. Clayton Cty., Ga., 335 F.3d

1326, 1329 (11th Cir. 2003) (en banc)); see Denno v. Sch. Bd. Of Volusia Cty.,

218 F.3d 1267, 1276 (11th Cir. 2000). Instead, a government entity may be

liable in a § 1983 action “only where the [government entity] itself causes the

constitutional violation at issue.” Cook ex. rel. Estate of Tessier v. Sheriff of

Monroe Cty., Fla., 402 F.3d 1092, 1116 (11th Cir. 2005) (citations omitted).

Thus, a plaintiff must establish that an official policy or custom of the

government entity was the “moving force” behind the alleged constitutional

deprivation. See Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 693-94 (1978).

In Monell, the Supreme Court held that local governments can be held

liable for constitutional torts caused by official policies. However, such liability

is limited to “acts which the [government entity] has officially sanctioned or

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ordered.” Pembaur v. City of Cincinnati, 475 U.S. 469, 480 (1986). Under the

directives of Monell, a plaintiff also must allege that the constitutional

deprivation was the result of “an official government policy, the actions of an

official fairly deemed to represent government policy, or a custom or practice

so pervasive and well-settled that it assumes the force of law.” Denno, 218 F.3d

at 1276 (citations omitted); see Hoefling v. City of Miami, 811 F.3d 1271, 1279

(11th Cir. 2016) (stating Monell “is meant to limit § 1983 liability to ‘acts which

the municipality has officially sanctioned or ordered’”; adding that “[t]here are,

however, several different ways of establishing municipal liability under §

1983”).

“A policy is a decision that is officially adopted by the [government entity]

or created by an official of such rank that he or she could be said to be acting

on behalf of the [government entity].” Sewell v. Town of Lake Hamilton, 117

F.3d 488, 489 (11th Cir. 1997) (citation omitted). The policy requirement is

designed to “’distinguish acts of the [government entity] from acts of employees

of the [government entity], and thereby make clear that [governmental]

liability is limited to action for which the [government entity] is actually

responsible.’” Grech, 335 F.3d at 1329 n.5 (quotation and citation omitted).

Indeed, governmental liability arises under § 1983 only where “’a deliberate

choice to follow a course of action is made from among various alternatives’” by

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governmental policymakers. City of Canton v. Harris, 489 U.S. 378, 389 (1989)

(quoting Pembaur, 475 U.S. at 483-84). A government entity rarely will have

an officially-adopted policy that permits a particular constitutional violation,

therefore, in order to state a cause of action for damages under § 1983, most

plaintiffs must demonstrate that the government entity has a custom or

practice of permitting the violation. See Grech, 335 F.3d at 1330; McDowell v.

Brown, 392 F.3d 1283, 1289 (11th Cir. 2004). A custom is an act “that has not

been formally approved by an appropriate decisionmaker,” but that is “so

widespread as to have the force of law.” Bd. Of Cty. Comm’rs of Bryan Cty.,

Okla. v. Brown, 520 U.S. 397, 404 (1997) (citation omitted). The Eleventh

Circuit has defined “custom” as “a practice that is so settled and permanent

that it takes on the force of law” or a “persistent and wide-spread practice.”

Sewell, 117 F.3d at 489. Last, “[t]o hold the [government entity] liable, there

must be ‘a direct causal link between [its] policy or custom and the alleged

constitutional deprivation.’” Snow ex rel. Snow v. City of Citronelle, 420 F.3d

1262, 1271 (11th Cir. 2005) (quotation omitted). Because Centurion’s liability

under § 1983 would be based on its functional equivalence to the government

entity responsible for providing medical care and services to inmates, Plaintiffs

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must plead that an official policy or a custom or practice of Centurion was the

moving force behind Williams’ alleged federal constitutional violation.

In the Complaint, Plaintiffs allege that Centurion contracted with FDOC

to provide healthcare within the prison system. Complaint at 3. According to

Plaintiffs, JCC and MHM were subcontractors of Centurion, and Salman

worked as an agent of JCC, while Pedroza worked as an agent of MHM. Id. at

3-4. Plaintiffs assert that Salman did not follow a Centurion policy that

required “medical notes for patient encounters with specialist physicians to be

submitted to the FL DOC ‘on-site practitioner with complete consult report and

other appropriate records within 5 business days of seeing the inmate patient.’”

Id. at 12. In the Claims section of the Complaint, Plaintiffs contend that

Centurion’s chest pain protocol constitutes a policy, custom, or practice that

was the moving force behind Williams’ death. Id. at 23. Plaintiffs maintain that

the chest pain protocol is inadequate and antiquated because it does not

mandate testing for troponin levels and provides inadequate medical care to

patients even when the chest pain protocol does not rule out a current

myocardial infarction. Id. Plaintiffs contend that Centurion’s chest pain

protocol deliberately delays diagnosis and treatment of cardiac care to avoid

transferring patients to non-governmental agency hospital facilities for costly

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treatments and denies urgent and necessary medical care for chest pain until

the patient’s condition is an emergency. Id.

Plaintiffs have identified a specific policy, custom, or practice. However,

their factual allegations do not show that the policy custom, or practice was

the driving force behind Williams’ death. As it relates to Pedroza, as explained

above, Plaintiffs’ allegations do not state a claim of deliberate indifference but

rather, at most, may state a claim of medical malpractice. Indeed, Plaintiffs

allege Pedroza failed to diagnosis Williams’ heart attack that morning, but

they do not allege that Pedroza failed to do so because he followed the chest

pain protocol or any other policy, custom, or practice. Similarly, as to Salman,

there are no factual allegations that Salman failed to timely transcribe the

stress test results because of a policy, custom, or practice. In fact, to the

contrary, Plaintiffs allege that Centurion had a policy that required medical

notes from patient encounters be submitted within five business days of the

examination, but Salman failed to act in accordance with the policy. Complaint

at 12. Plaintiffs also have not asserted facts supporting any inference that

Salman failed to provide additional treatment because of the chest pain

protocol or because of a cost-saving policy. Although Plaintiffs state legal

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conclusions in the Claims section of the Complaint, there are no factual

allegations to support those conclusions.

To the extent Plaintiffs contend the chest pain protocol was the driving

force behind Williams’ death because it was inadequate, this is not sufficient

to state an Eighth Amendment claim. This is so because it demonstrates, at

most, medical malpractice in the construction of the policy. See Monteleone v.

Corizon, 686 F. App’x 655, 661 (11th Cir. 2017). As it relates to Plaintiffs’

assertion that Centurion has a policy to deliberately delay diagnosis and

treatment for patients with cardiac issues in order to save money, Plaintiffs

present only legal conclusions devoid of any well pled allegations of fact in

support of that conclusion. Moreover, “the Eighth Amendment does not

prohibit prison officials from considering cost in determining what type (or

level) of medical care inmates should receive.” Hoffer v. Sec'y, Fla. Dep't of

Corr., 973 F.3d 1263, 1277 (11th Cir. 2020). However, “if a particular course of

treatment is indeed essential to ‘minimally adequate care,’ prison authorities

can't plead poverty as an excuse for refusing to provide it.” Id. The Eleventh

Circuit has emphasized that “minimally adequate care” is “quite minimal”

under the Eighth Amendment. Id.; see also Harris, 941 F.2d at 1510 (quoting

Brown v. Beck, 481 F. Supp. 723, 726 (S.D. Ga. 1980)) (recognizing that medical

care is not constitutionally required to be “‘perfect, the best obtainable, or even

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very good.’”). Here, Plaintiffs have alleged Williams received medical care from

both Pedroza and Salman, although they contend Pedroza failed to diagnosis

a heart attack and Salman inexplicitly failed to continue treatment. But,

Plaintiffs have not shown that any alleged cost-savings policy was the impetus

behind these alleged failures. As such, Plaintiffs have not stated a claim for

relief under the Eighth Amendment as to Centurion.

V. State Law Claims

Damages and Attorney Fees

Defendants Pedroza, JCC, Salman, MHM, and Centurion contend that

Plaintiffs cannot recover damages for Williams’ pain and suffering because

such damages are not permitted under Florida’s Wrongful Death Act. See

Centurion Motion at 9-11; Pedroza Motion at 15-16; MHM Motion at 4-5; JCC

Motion at 24-25. These same Defendants also argue that Plaintiffs are not

entitled to attorney fees on their state law claims against them because there

is no contract or statute entitling Plaintiffs to such fees. See Centurion Motion

at 11-12; Pedroza Motion at 16; MHM Motion at 4-5; JCC Motion at 25.

Plaintiffs assert that a motion to dismiss is not the proper vehicle

through which to challenge insufficiently alleged damages. See Pedroza

Response at 20; MHM Response at 8-10; Salman Response at 20; JCC

Response at 7-10; Centurion Response at 16-19. Nonetheless, Plaintiffs do not

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disagree that they cannot recover damages for Williams’ pain and suffering.

Id. Instead, they contend Defendants have mischaracterized their prayer for

relief. Id. According to Plaintiffs, although they alleged Williams had pain and

suffering, they did not allege that as the basis for damages. Id. As to attorney

fees, Plaintiffs withdraw their request for attorney fees and litigation costs

with respect to their state law claims. Pedroza Response at 20; MHM Response

at 10-11; Salman Response at 20; JCC Response at 10-11; Centurion Response

at 17-20.

Concerning Plaintiffs’ request for damages, the Court agrees with

Plaintiffs that when read in context, they are not requesting damages for

decedent’s pain and suffering. Instead, they request damages on behalf of all

beneficiaries for “sustained loss of net worth accumulations, loss of support and

services, loss of companionship and protection, loss of instruction and

guidance, merged mental pain and suffering, estate administration, financial

assessments, legal expenses, and funeral with burial costs.” Complaint at 21.

As such, to the extent Pedroza, JCC, Salman, MHM, and Centurion seek to

dismiss the claims against them based on the requested relief for damages, the

motions to dismiss are due to be denied. Regarding attorney fees, in light of

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Plaintiffs’ withdrawal of a demand for attorney fees and costs in their state law

claims, the motions to dismiss are due to be denied as moot on this issue.

Claims Against Secretary Inch

In his motion to dismiss, Secretary Inch argues that the state law claim

against him should be dismissed for a number of reasons. The Court finds it

unnecessary to address the arguments raised here because Inch is entitled to

Eleventh Amendment Immunity.1 Plaintiffs sue Inch in his official capacity.

The United States Supreme Court has held that “a suit against a state official

in his or her official capacity is not a suit against the official but rather is a

suit against the official's office. Will v. Michigan Dept. of State Police, 491 U.S.

58, 70 (1989). Ultimately, “it is no different from a suit against the State itself.”

Id. Thus, Plaintiffs’ claim against Inch is actually a claim against the State of

Florida. Pursuant to the Eleventh Amendment, “[t]he Judicial power of the

United States shall not be construed to extend to any suit in law or equity,

commenced or prosecuted against one of the United States by Citizens of

another State, or by Citizens or Subjects of any Foreign State.” U.S. Const.

amend. XI. While section 768.28, waives Florida’s sovereign immunity in state

court, it does not waive its Eleventh Amendment immunity in federal court.

1 Courts can raise the issue of Eleventh Amendment immunity sua

sponte. See Mclendon v. Georgia Dep’t of Community Health, 261 F.3d 1252,

1259 (11th Cir. 2001).

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See Schopler v. Bliss, 903 F.2d 1373, 1379 (11th Cir. 1990). Therefore, Inch is

immune under the Eleventh Amendment to Plaintiffs’ wrongful death claim to

the extent it is brought in federal court. As such, Inch is due to be dismissed

as a Defendant from this action.2

Sovereign Immunity

Both Pedroza and Salman argue in their respective motions to dismiss

that they are entitled to sovereign immunity as to Plaintiffs’ state law claims.

Pedroza Motion at 6-15; JCC Motion at 7-15. Both physicians assert that, as

individually named state agents, they are immune from suit under section

768.28(9), Florida Statutes because Plaintiffs have not alleged that they were

acting outside the scope of their employment or that they acted in bad faith,

with malicious purpose, or a wanton and willful disregard of human rights. Id.

Plaintiffs contend that they did not allege Pedroza or Salman were

agents or employees of FDOC and are not suing them as such. Pedroza

Response at 18-19; Salman Response at 17-19. Instead, Plaintiffs assert that

they are suing both as independent physicians who were agents of MHM and

JCC respectively. Id. According to Plaintiffs, discovery has yet to evolve to the

2 A dismissal on the basis of Eleventh Amendment immunity is a

dismissal for lack of jurisdiction and as such must be without prejudice. See

Nichols v. Ala. State Bar, 815 F.3d 726, 733 (11th Cir. 2016).

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level necessary to determine whether Pedroza or Salman were agents of FDOC,

and, because Plaintiffs have not alleged they were agents of FDOC, their

motions should be denied. Id. Upon review of the Amended Complaint,

Plaintiffs have not alleged an agency relationship between either Pedroza or

Salman with FDOC. As such, Pedroza and Salman’s motion to dismiss based

on sovereign immunity is due to be denied.

In consideration of the foregoing, it is now

ORDERED:

1. Defendant Mark Inch’s motion to dismiss (Doc. 84) is DENIED as

moot. Defendant Inch is entitled to Eleventh Amendment Immunity and is

DISMISSED WITHOUT PREJUDICE from this action.

2. Defendant Centurion’s motion to dismiss (Doc. 88) is GRANTED

in part and DENIED in part. Plaintiffs’ § 1983 claim against Centurion

(Count Six) is DISMISSED WITH PREJUDICE, and the motion is otherwise

DENIED.

3. Defendant Pedroza’s motion to dismiss (Doc. 89) is GRANTED in

part and DENIED in part. Plaintiffs’ § 1983 claim against Pedroza (Count

Five) is DISMISSED WITH PREJUDICE, and the motion is otherwise

DENIED.

4. Defendant MHM’s motion to dismiss (Doc. 90) is DENIED.

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5. Defendants JCC and Salman’s motion to dismiss (Doc. 91) is

DENIED.

6. Plaintiffs’ requests for attorney fees on Counts One, Two, Three,

Four, Seven, and Eight are WITHDRAWN.

DONE AND ORDERED at Jacksonville, Florida, this 3rd day of

January, 2022.

MARCIA MORALES HOWARD

United States District Judge

Jax-8

C:

Counsel of Record

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