# D'Amico v. Montoya

> District Court, M.D. Florida · March 21, 2022

URL: https://www.frixlaw.com/law-library/cases/10109668

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** March 21, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10109668

## How later opinions describe it (automated extraction)

- affirming dismissal of a complaint that alleged, as labels and conclusions, violations of various constitutional rights with no supporting facts to “explain what actions caused which violations”
- describing the three components of deliberate indifference as “(1) subjective knowledge of a risk of serious harm; (2) disregard of that risk; (3) by conduct that is more than mere negligence”
- holding Title II of the ADA “unambiguously extends to state prison inmates”

## Opinion text

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION

STEVEN F. D’AMICO,

Plaintiffs,

v. Case No. 3:20-cv-920-BJD-PDB

VERNON MONTOYA, et al.,

Defendants.
________________________________

ORDER
I. Status
Plaintiff Steven D’Amico, an inmate of the Florida penal system,
initiated this action on August 5, 2020, by filing a pro se Civil Rights Complaint
(Compl.; Doc. 1) against two Defendants, Dr. Vernon Montoya and Nurse Lacey
Bennefield.1 He asserts that Defendants were deliberately indifferent to his
serious medical needs at the Reception and Medical Center (RMC). Before the
Court are Dr. Vernon Montoya’s Motion to Dismiss (Doc. 19) and Nurse Lacey

1 Plaintiff also refers to unknown Florida Department of Corrections
(FDOC) staff in the case style of his Complaint. He does not include them in
the list of Defendants. Therefore, it appears that Plaintiff does not intend to
pursue any claims against unnamed FDOC staff. Plaintiff also has not
described the unnamed FDOC staff with sufficient particularity that they can
be identified. See Richardson v. Johnson, 598 F.3d 734, 738 (11th Cir. 2010).
Accordingly, the Court will direct the Clerk to terminate unnamed FDOC staff
as a Defendant in the case.
Bennefield’s Motion to Dismiss (Doc. 20). Plaintiff filed a response in opposition
to the Motions (Docs. 24, 25). Thus, Defendants’ Motions are ripe for review.

II. Plaintiff’s Allegations
In his Complaint and supporting exhibits (Docs. 1-1 through 1-8),
Plaintiff purports to state the following claims against Defendants Dr.
Montoya and Nurse Bennefield in their individual and official capacities: (1)

retaliation for filing grievances, in violation of the First Amendment; (2)
deliberate indifference to Plaintiff’s chronic lymphocytic leukemia (CLL), in
violation of the Eighth Amendment; (3) conspiracy to deprive Plaintiff of
treatment for his CLL; (4) discrimination, in violation of the Americans with

Disabilities Act (ADA); and (5) torture and cruel, inhumane or degrading
treatment, in violation of the United Nations Universal Declaration of Human
Rights (UNUDHR). Compl. at 2-3, 5, 15.
According to Plaintiff, he visited Dr. Montoya on April 10, 2019. Id. at 9.

Dr. Montoya determined Plaintiff would receive Rituxan maintenance
treatments every two months for eighteen months to treat his CLL. Id. at 5, 9.
Nurse Bennefield administered a Rituxan treatment to Plaintiff on April 23,
2019. Id. at 9-10. During that appointment, Nurse Bennefield allegedly

2
harassed Plaintiff, prompting him to report her actions “in his grievances.” Id.
at 13.

Plaintiff was scheduled for a quarterly examination with Dr. Montoya on
June 24, 2019. Id. at 5. However, Plaintiff could not attend the examination
because he had gastrointestinal issues. Id. at 6. “Nurse Mike” ordered him to
sign a refusal form and threatened to take action if he did not sign it. Id.

Plaintiff signed the form, but he wrote “this day only” beside his signature. Id.
Plaintiff maintains Nurse Bennefield did not reschedule his June 24th
appointment with Dr. Montoya. Id. On July 18, 2019, Plaintiff submitted a sick
call request asking RMC staff to reschedule his appointment. Doc. 1-1. Nurse

Mike returned a copy of the sick call request to Plaintiff with a notation that
Plaintiff had an appointment to see the oncologist in the second week of
August. Compl. at 6; Doc. 1-1. Plaintiff alleges “RMC staff” did not bring him
to the August appointment in retaliation for numerous grievances that he filed

against them. Compl. at 10.
Plaintiff saw Dr. Montoya on September 5, 2019. Id. at 10. During the
appointment, Plaintiff claims Nurse Bennefield interrupted to answer
questions Plaintiff directed to Dr. Montoya and appeared hostile. Id. at 8. Dr.

3
Montoya terminated the Rituxan treatments and determined that he would
only need to examine Plaintiff every three months. Id. at 11.

Plaintiff alleges he again visited Dr. Montoya on January 9, 2020.2 Id. at
13. Dr. Montoya determined Plaintiff’s lymph nodes had not significantly
enlarged and stated he would examine Plaintiff in three months. Id. at 13-14.
According to Plaintiff, Nurse Bennefield has not scheduled an appointment for

him since that date. Id. at 14.
Plaintiff states that RMC protocol dictates a cancer patient must refuse
at least two oncology appointments before termination of an oncology
consultation. Id. at 11. Plaintiff maintains that Dr. Montoya and Nurse

Bennefield conspired for Plaintiff to miss his June 2019 and August 2019
appointments, so Dr. Montoya could cease Rituxan treatments. Id. at 10.
Plaintiff contends Dr. Montoya and Nurse Bennefield sought to end his
treatments in retaliation for a previous civil rights complaint that Plaintiff

filed against Dr. Montoya and grievances that Plaintiff submitted about Nurse
Bennefield. Id. at 9-10. Plaintiff alleges he has not received a Rituxan
treatment since April 23, 2019, resulting in the progression of his CLL. Id. at

2 Plaintiff alleges the date is January 9, 2019, in his Complaint; however,
considering the timeline of events, it appears that the date is January 9, 2020.
4
14. He now suffers from sore, enlarged lymph nodes. Id. Plaintiff seeks proper
oncological care, litigation costs, and compensatory and punitive damages. Id.

at 15.
III. Motion to Dismiss Standard
“To survive a motion to dismiss, a complaint must contain sufficient
factual matter, accepted as true, to ‘state a claim to relief that is plausible on

its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); see also Lotierzo v.
Woman’s World Med. Ctr., Inc., 278 F.3d 1180, 1182 (11th Cir. 2002). “A claim
has facial plausibility when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is liable for the

misconduct alleged.” Iqbal, 556 U.S. at 678. A plaintiff should allege enough
facts “to raise a reasonable expectation that discovery will reveal evidence”
supporting the plaintiff’s claims. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556
(2007).

Though detailed factual allegations are not required, Federal Rule of
Civil Procedure 8(a) demands “more than an unadorned, the-defendant-
unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678. As such, a plaintiff
may not rely on “[t]hreadbare recitals of the elements of a cause of action,

supported by mere conclusory statements.” Gill ex rel. K.C.R. v. Judd, 941 F.3d
5
504, 511 (11th Cir. 2019) (quoting Iqbal, 556 U.S. at 678). Rather, the well-pled
allegations must nudge the claim “across the line from conceivable to

plausible.” Twombly, 550 U.S. at 570. In assessing the sufficiency of a
complaint, all reasonable inferences should be drawn in favor of the plaintiff.
See Iqbal, 556 U.S. at 678.
IV. Consideration of Extrinsic Evidence

In his Complaint, Plaintiff references and attaches grievances that he
filed with RMC officials. Compl. at 5-14; Docs. 1-1 through 1-8. With his
Motion, Dr. Montoya also attaches medical records to demonstrate he did not
deny Plaintiff medical care. Docs. 19-1 through 19-4.

Generally, a court should not consider extrinsic evidence when ruling on
a motion to dismiss unless a document “is central to the plaintiff’s claim” and
incorporated by reference in the complaint. See Brooks v. Blue Cross & Blue
Shield of Fla., Inc., 116 F.3d 1364, 1368-69 (11th Cir. 1997) (“[T]he analysis of

a 12(b)(6) motion is limited primarily to the face of the complaint and
attachments thereto.”). In fact, Rule 12 provides, “[i]f, on a motion under Rule
12(b)(6) or 12(c), matters outside the pleadings are presented to and not
excluded by the court, the motion must be treated as one for summary

judgment under Rule 56.” See Fed. R. Civ. P. 12(d); see also Trustmark Ins.
6
Co. v. ESLU, Inc., 299 F.3d 1265, 1267 (11th Cir. 2002) (“Whenever a judge
considers matters outside the pleadings in a 12(b)(6) motion, that motion is

thereby converted into a Rule 56 Summary Judgment motion.”).
However, the Eleventh Circuit has held a court may consider extrinsic
evidence when ruling on a 12(b)(6) motion if a document “is (1) central to the
plaintiff’s claim and (2) undisputed.” Day v. Taylor, 400 F.3d 1272, 1276 (11th

Cir. 2005) (citing Horsley v. Feldt, 304 F.3d 1125, 1134 (11th Cir. 2002)). Thus,
when a plaintiff, in his complaint, incorporates by reference a document that
is central to his claim, and the opposing party does not contest the authenticity
of the document, a court may consider it when ruling on a motion to dismiss.

Id.
Here, in their Motions to Dismiss, Dr. Montoya and Nurse Bennefield do
not question the authenticity of the documents Plaintiff attached to his
Complaint. See generally Docs. 19, 20. Accordingly, the Court will consider

them, to the extent relevant, in ruling on both Motions.
Although Dr. Montoya also attaches exhibits in support of his Motion,
the Court will not convert Dr. Montoya’s Motion into a motion for summary
judgment and will not consider the exhibits. See Fed. R. Civ. P. 12(d). The

Court’s inquiry at this stage is focused upon whether the Complaint gives
7
Defendants fair notice of the claims and the grounds upon which they rest.
Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per curiam). As to whether Plaintiff

has failed to state a claim upon which relief can be granted, this assertion
“merely tests the sufficiency of the complaint; it does not decide the merits of
the case.” Harvin v. JP Morgan Chase Bank, N.A., No. 1:15-CV-04477-MHC-
JFK, 2016 WL 9450467, at *5 (N.D. Ga. June 28, 2016), report and

recommendation adopted by 2016 WL 9453333 (N.D. Ga. Aug. 1, 2016), aff’d,
696 F. App’x 987 (11th Cir. 2017). Therefore, the Court will consider Dr.
Montoya’s pending Motion as a 12(b)(6) motion for failure to state a claim and
will limit its analysis and ruling accordingly.

V. Analysis
A. Defendant Nurse Bennefield’s Motion
In her Motion to Dismiss, Defendant Nurse Bennefield seeks dismissal
of the Complaint on three grounds: (1) Plaintiff fails to state a claim upon

which relief can be granted pursuant to the First Amendment, Eighth
Amendment, ADA, and UNUDHR; (2) she is entitled to qualified immunity;
and (3) the Eleventh Amendment bars Plaintiff from seeking monetary
damages from Nurse Bennefield in her official capacity. Doc. 20 at 1.

8
i. First Amendment Retaliation Claim
In the Complaint, Plaintiff maintains Nurse Bennefield failed to

schedule medical appointments and discontinued his Rituxan treatments
because he submitted grievances against her. Compl. at 9-10. In Nurse
Bennefield’s Motion, she argues Plaintiff has not sufficiently alleged a First
Amendment retaliation claim. Doc. 20 at 7-10. Nurse Bennefield contends

Plaintiff does not allege she knew about his protected speech or that she had
the authority to take the retaliatory actions. Id.
An inmate who suffers adverse consequences because he submitted
grievances about his conditions of confinement demonstrates a First

Amendment violation. Farrow v. West, 320 F.3d 1235, 1248 (11th Cir. 2003).
To state an actionable retaliation claim, a plaintiff must allege:
(1) his speech was constitutionally protected; (2) the
inmate suffered adverse action such that the [official’s]
allegedly retaliatory conduct would likely deter a
person of ordinary firmness from engaging in such
speech; and (3) there is a causal relationship between
the retaliatory action [the disciplinary punishment]
and the protected speech [the grievance].

O'Bryant v. Finch, 637 F.3d 1207, 1212 (11th Cir. 2011) (quoting with
alteration Smith v. Mosely, 532 F.3d 1270, 1276 (11th Cir. 2008)).
Here, Plaintiff fails to state a claim of retaliation in violation of the First
9
Amendment because he does not sufficiently allege a causal relationship
between his protected speech and any retaliatory actions. Plaintiff makes a

conclusory allegation in his Complaint that Nurse Bennefield failed to schedule
additional appointments for his Rituxan treatments because he submitted
grievances about her harassment of him on April 23, 2019. Compl. at 10. In his
Response, Plaintiff does contend that Nurse Bennefield verbally harassed him

during the April 23rd appointment by generally discussing his criminal case,
civil complaints, grievances, and medical concerns. Doc. 24 at 2. Plaintiff does
not make these allegations in his Complaint. But, even taking his allegations
as true, Plaintiff does not allege Nurse Bennefield knew she was the subject of

any of his grievances and, thus, had any motivation to retaliate against
Plaintiff. The Complaint includes no allegations that Nurse Bennefield saw
the grievances that Plaintiff filed against her, or that she responded to any of
the grievances.

Moreover, Nurse Bennefield apparently rescheduled Plaintiff’s Rituxan
treatment for the second week of August. Compl. at 6; Doc. 1-1. Although
Plaintiff alleges RMC staff members did not bring him to that appointment, he
does not implicate Nurse Bennefield in their actions. Compl. at 10. Plaintiff’s

conclusory, unsupported allegations that Nurse Bennefield retaliated against
10
amount to no “more than an unadorned, the-defendant-unlawfully-harmed-me
accusation,” which does not satisfy the federal pleading standard. Iqbal, 556

U.S. at 678. See also Tani v. Shelby Cnty., 511 F. App’x 854, 857 (11th Cir.
2013) (affirming dismissal of a complaint that alleged, as labels and
conclusions, violations of various constitutional rights with no supporting facts
to “explain what actions caused which violations”). As such, Nurse Bennefield’s

Motion is due to be granted as to Plaintiff’s First Amendment claims against
her.
ii. Eighth Amendment Medical Claim
Plaintiff alleges Nurse Bennefield was deliberately indifferent to his
serious medical needs in that she stopped Rituxan treatments, which resulted

in the progression of his CLL. Compl. at 10, 14. In her Motion, Nurse
Bennefield argues Plaintiff does not sufficiently allege that she knew of a risk
of serious harm or that her deliberate indifference caused the progression of
Plaintiff’s CLL. Doc. 20 at 11-14.

A claim for deliberate indifference to a serious illness or injury is
cognizable under 42 U.S.C. § 1983. See Estelle v. Gamble, 429 U.S. 97, 104
(1976). To state a claim for relief, a plaintiff first must allege he had a serious
medical need. Brown v. Johnson, 387 F.3d 1344, 1351 (11th Cir. 2004). Next,

11
the plaintiff must “allege that the prison official, at a minimum, acted with a
state of mind that constituted deliberate indifference.” Richardson v. Johnson,

598 F.3d 734, 737 (11th Cir. 2010) (describing the three components of
deliberate indifference as “(1) subjective knowledge of a risk of serious harm;
(2) disregard of that risk; (3) by conduct that is more than mere negligence”).
“Where a prisoner has received . . . medical attention and the dispute is

over the adequacy of the treatment, federal courts are generally reluctant to
second guess medical judgments and to constitutionalize claims that sound in
tort law.” Hamm v. DeKalb Cty., 774 F.2d 1567, 1575 (11th Cir. 1985) (quoting
with alteration Westlake v. Lucas, 537 F.2d 857, 860 n.5 (1st Cir. 1981)). As

such, allegations of medical negligence are not cognizable under § 1983.
Estelle, 429 U.S. at 106.
However, the Eleventh Circuit has not held an Eighth Amendment claim
is never plausible when an inmate receives some medical care. On the contrary,

even when a prisoner receives some medical care, a plaintiff states a claim for
deliberate indifference if he alleges the care he received was “so cursory as to
amount to no treatment at all,” was grossly inadequate, or was guided by a
“decision to take an easier but less efficacious course of treatment.” McElligott

v. Foley, 182 F.3d 1248, 1255 (11th Cir. 1999); see also Harris v. Thigpen, 941
12
F.2d 1495, 1505 (11th Cir. 1991) (“Medical treatment violates the [E]ighth
[A]mendment only when it is ‘so grossly incompetent, inadequate, or excessive

as to shock the conscience or to be intolerable to fundamental fairness.’”).
The Eleventh Circuit has “repeatedly found that ‘an official acts with
deliberate indifference when he or she knows that an inmate is in serious need
of medical care, but he fails or refuses to obtain medical treatment for the

inmate.’” McElligott, 182 F.3d at 1255. “A core principle of Eighth Amendment
jurisprudence in the area of medical care is that prison officials with knowledge
of the need for care may not, by failing to provide care, delaying care, or
providing grossly inadequate care, cause a prisoner to needlessly suffer the

pain resulting from his or her illness.” Id. at 1257. Delaying treatment for non-
life-threatening injuries that cause pain, even if momentary, can give rise to a
cognizable constitutional claim. See, e.g., id.
Here, Plaintiff fails to state a claim for relief against Nurse Bennefield

for deliberate indifference to his serious medical need in violation of the Eighth
Amendment. The Court finds Plaintiff does not sufficiently allege causation.
In his Complaint, Plaintiff asserts that Nurse Bennefield failed to schedule
appointments for treatment or visits with Dr. Montoya after June 24, 2019,

and January 9, 2020. However, according to the grievance records Plaintiff
13
submitted with his Complaint, Plaintiff had an appointment scheduled for the
second week of August. Doc. 1-1. It was the oncologist who chose to discontinue

Plaintiff’s chemotherapy treatments because Plaintiff refused to visit a
specialist. Docs. 1-2 at 2; 1-5 at 2. Plaintiff does not offer more than bare
allegations that Nurse Bennefield had influence over Dr. Montoya’s decision to
continue with a particular treatment plan.

According to Plaintiff, Nurse Bennefield appropriately administered the
Rituxan treatments to Plaintiff on April 23, 2019. Plaintiff complains about
verbal harassment during the treatment, but not about Nurse Bennefield’s
administration of the treatment. Compl. at 9-10; Doc. 24 at 2. However, “verbal

abuse alone is insufficient to state a constitutional claim.” Hernandez v. Fla.
Dep’t of Corr., 281 F. App’x 862, 866 (11th Cir. 2008); see also Bismark v.
Fisher, 213 F. App’x 892, 897 (“While [plaintiff] objects to [defendant]’s
apparently brusque mannerisms, it is not a violation of the Eighth Amendment

for a prison physician to consult with a prisoner concerning a medical condition
in an aloof or unfriendly way. Much more is required.”) (citing Harris v.
Thigpen, 941 F.2d 1495, 1505 (11th Cir. 1991)) (footnote omitted). Plaintiff also
does not allege that he complained about the ill effects from the stoppage of

treatments to Nurse Bennefield, or that she otherwise knew he had been
14
suffering ill effects, but she refused to act. For the above reasons, Nurse
Bennefield’s motion to dismiss is due to be granted and Plaintiff’s Eighth

Amendment claim against her dismissed.
iii. Conspiracy
Plaintiff maintains Nurse Bennefield and Dr. Montoya conspired to
deprive Plaintiff of medical care in retaliation for his prior civil rights

complaint against Dr. Montoya and grievances against Nurse Bennefield.
Compl. at 9-10. To establish a § 1983 conspiracy claim, “a plaintiff must prove
the defendants ‘reached an understanding’ to violate the plaintiff's
constitutional rights.” Grider v. City of Auburn, 618 F.3d 1240, 1261 (11th Cir.

2010). “[T]he linchpin for conspiracy is agreement, which presupposes
communication. . . .” Bailey v. Bd. of Cty. Comm’rs, 956 F.2d 1112, 1122 (11th
Cir. 1992).
In his Complaint, Plaintiff offers no facts suggesting Nurse Bennefield

and Dr. Montoya reached an agreement to deprive Plaintiff of medical
treatment in retaliation for his protected speech. Specifically, Plaintiff does not
claim Dr. Montoya and Nurse Bennefield communicated or had opportunities
to communicate with each other. Rather, he only alleges Dr. Montoya and

Nurse Bennefield attended one appointment together on September 9, 2019;
15
however, according to Plaintiff, they had already denied Rituxan treatments
to him in June and August by that time. Compl. at 6, 8, 10. Therefore, Nurse

Bennefield’s Motion as to Plaintiff’s conspiracy claim against her is due to be
granted.
iv. ADA
Title II of the ADA, which applies to state prisons, provides as follows:

“[N]o qualified individual with a disability shall, by reason of such disability,
be excluded from participation in or be denied the benefits of the services,
programs, or activities of a public entity, or be subjected to discrimination by
any such entity.” 42 U.S.C. § 12132. See also Pa. Dep’t of Corr. v. Yeskey, 524

U.S. 206, 213 (1998) (holding Title II of the ADA “unambiguously extends to
state prison inmates”). To state a claim of discrimination under the ADA, a
plaintiff must allege “(1) that he is a qualified individual with a disability; (2)
that he was either excluded from participation in or denied the benefits of a

public entity's services, programs, or activities, or was otherwise discriminated
against by a public entity; and (3) that the exclusion, denial of benefit, or
discrimination was by reason of his disability.” Lonergan v. Fla. Dep’t of Corr.,
623 F. App’x 990, 992 (11th Cir. 2015).

16
The Court initially notes that only public entities may be liable under
the ADA. Owens v. Sec’y, Fla. Dep’t of Corr., 602 F. App’x 475, 478 (11th Cir.

2015). Therefore, to the extent Plaintiff alleges Nurse Bennefield violated the
ADA in her individual capacity, he fails to state a claim for relief. Id.
Even assuming Plaintiff can sue Nurse Bennefield in her official capacity
and Plaintiff is a qualified individual with a disability, he still does not state a

plausible claim for relief. Most significantly, the Complaint does not contain
any facts suggesting Nurse Bennefield denied Plaintiff treatments because of
his disability. Plaintiff instead contends Nurse Bennefield denied treatments
to him in retaliation for grievances that he filed against her. Compl. at 5,

Therefore, Nurse Bennefield’s Motion as to Plaintiff’s ADA claim is due to be
granted.
v. UNUDHR
Plaintiff alleges Nurse Bennefield’s actions violated the UNUDHR’s

prohibition against torture and cruel or inhumane treatment. Compl. at 15.
“The rights secured by the UNDHR are not federal rights.” Moore v.
McLaughlin, 569 F. App’x 656, 660 (11th Cir. 2014). Such a claim is not
cognizable in a § 1983 action where a plaintiff must show deprivation of a

17
federal right. Id. Accordingly, Nurse Bennefield’s Motion as to Plaintiff’s
UNUDHR claim against her is due to be granted.

vi. Official Capacity Claims
“[W]hen an officer is sued under [§] 1983 in his or her official capacity,
the suit is simply another way of pleading an action against an entity of which
an officer is an agent.” Busby v. City of Orlando, 931 F.2d 764, 776 (11th Cir.

1991) (internal quotations and citations omitted). In such cases, the plaintiff
must establish the entity’s official policy or unofficial custom or practice was
the “moving force” behind the alleged constitutional violation. Monell v. Dep’t
of Soc. Servs., 436 U.S. 658, 694 (1978).

Plaintiff’s Complaint suggests that Nurse Bennefield is an employee of
the FDOC. In her Motion, Nurse Bennefield clarifies that she is an agent of a
private company contracting with the FDOC to provide medical services. Doc.
20 at 18. Regardless, the claims are due to be dismissed because Plaintiff has

not alleged that the FDOC or the private company was responsible for a
custom, policy, or practice that was the moving force behind the alleged
violations. There are no allegations suggesting that Nurse Bennefield can be
held liable in her official capacity for any of Plaintiff’s claims. Accordingly,

18
Plaintiff’s claims against Nurse Bennefield in her official capacity are due to
be dismissed.

vii. Qualified Immunity
Nurse Bennefield asserts she is entitled to qualified immunity from
liability under § 1983. Doc. 20 at 20-22. In his Response, Plaintiff does not
appear to refute Nurse Bennefield’s claim of qualified immunity. See generally

Doc. 24. Plaintiff instead repeats the allegations in his Complaint that Nurse
Bennefield failed to schedule his Rituxan treatments despite a serious risk of
harm to Plaintiff. Id. at 5.
An official sued in her individual capacity “is entitled to qualified

immunity for [her] discretionary actions unless [s]he violated ‘clearly
established statutory or constitutional rights of which a reasonable person
would have known.’” Black v. Wigington, 811 F.3d 1259, 1266 (11th Cir. 2016)
(quoting Case v. Eslinger, 555 F.3d 1317, 1325 (11th Cir. 2009)). Qualified

immunity allows government employees to exercise their official duties
without fear of facing personal liability. Alcocer v. Mills, 906 F.3d 944, 951
(11th Cir. 2018). The doctrine protects all but the plainly incompetent or those
who knowingly violate an inmate’s constitutional rights. Id. In other words,

“[q]ualified immunity shields an officer from suit when [he] makes a decision
19
that, even if constitutionally deficient, reasonably misapprehends the law
governing the circumstances [he] confronted.” Taylor v. Riojas, 141 S. Ct. 52,

53 (2020) (quoting Brosseau v. Haugen, 543 U.S. 194, 198 (2004)).
Upon invoking qualified immunity, a defendant bears the initial burden
to demonstrate she was acting within her discretionary authority at the
relevant times. Id. Nurse Bennefield carries her burden. Plaintiff sues Nurse

Bennefield for acts or omissions that occurred while she acted in her role as an
RMC nurse. As such, the burden shifts to Plaintiff, who must point to facts
that, accepted as true, demonstrate Defendant violated a constitutional right
that was “clearly established” at the time of the alleged violation. Id. As set

forth above, the Court has found that Plaintiff failed to state plausible First
and Eighth Amendment claims against Nurse Bennefield. Therefore, Nurse
Bennefield is entitled to qualified immunity as to Plaintiff’s First and Eighth
Amendment claims against her.3

3 The Court need not address Nurse Bennefield’s assertion that the
Eleventh Amendment bars Plaintiff’s claims for monetary damages against
her in her official capacity.
20
B. Defendant Dr. Montoya’s Motion
In his Motion to Dismiss, Defendant Dr. Montoya seeks dismissal on one

ground: Plaintiff fails to state a claim upon which relief can be granted
pursuant to the Eighth Amendment. Doc. 19 at 1-2. Dr. Montoya does not
address or seek dismissal of the following claims: retaliation for protected
speech in violation of the First Amendment; conspiracy to deprive Plaintiff of

his rights pursuant to the First and Eighth Amendments; discrimination in
violation of the ADA; and torture and cruel, inhumane or degrading treatment
in violation of the UNUDHR. See generally Doc. 19
i. Eighth Amendment

Plaintiff alleges Dr. Montoya was deliberately indifferent to his serious
medical needs. He maintains Dr. Montoya stopped Rituxan treatments for his
CLL. Compl. at 10. The cessation of treatment resulted in the progression of
his CLL. Id. at 14. In his Motion, Dr. Montoya contends Plaintiff’s allegations

do not amount to deliberate indifference to a serious medical need, but only to
a difference in medical opinion. Doc. 19 at 3.

21
Here, Plaintiff has alleged sufficient facts suggesting Dr. Montoya was
deliberately indifferent to his serious medical needs.4 According to Plaintiff,

Dr. Montoya determined on April 10, 2019, Plaintiff would receive Rituxan
maintenance treatments every two months for eighteen months to treat his
CLL. Compl. at 5, 9. Plaintiff did not attend his next appointment on June 24,
2019, due to gastrointestinal issues. Id. at 5. According to the grievance records

Plaintiff submitted with his Complaint, the oncologist then chose to
discontinue Plaintiff’s chemotherapy treatments because he refused to visit a
specialist. Docs. 1-2 at 2; 1-5 at 2. Plaintiff identifies Dr. Montoya as the
oncologist who terminated his treatment. Compl. at 5, 9-10. Plaintiff contends

he has not received treatment for his CLL since April 23, 2019. Id. at 13.
Taking Plaintiff’s allegations as true, Dr. Montoya knew Plaintiff had a serious
medical need, and he refused to provide necessary care for a non-medical

4 The Court notes that Plaintiff brought a similar claim against Dr.
Montoya in the United States District Court for the Northern District of
Florida. The Northern District denied Dr. Montoya’s Motion to Dismiss finding
Plaintiff sufficiently stated a claim for relief. D’Amico v. Montoya, No.
4:15CV127-MW/CAS, 2016 WL 11248929, at *4 (N.D. Fla. Feb. 25, 2016),
report and recommendation adopted in part, rejected in part on other grounds,
2016 WL 8711513 (N.D. Fla. Apr. 1, 2016). Moreover, the Northern District
granted Plaintiff’s request for a preliminary injunction because he had not
received treatment for his CLL. D’Amico v. Montoya, No. 4:15CV127-MW/CAS,
2016 WL 4708485, at *1 (N.D. Fla. Sept. 8, 2016).
22
reason. Plaintiff’s allegations nudge the claim “across the line from conceivable
to plausible.” Twombly, 550 U.S. at 570. Accordingly, Dr. Montoya’s Motion is

due to be denied.
In consideration of the foregoing, it is now
ORDERED:
1. Defendant Nurse Lacey Bennefield’s Motion to Dismiss (Doc. 20)

is granted, and Plaintiff Steven D’Amico’s First Amendment, Eighth
Amendment, conspiracy, ADA, and UNUDHR claims against her are
dismissed with prejudice.
2. The Clerk of the Court shall terminate Nurse Lacey

Bennefield5 and unknown FDOC staff as Defendants in the case.
3. Defendant Dr. Vernon Montoya’s Motion to Dismiss (Doc. 19) is
DENIED.

5 Nurse Lacey Bennefield is identified on the docket as Nurse Lacey
Barnett.
23
4. Defendant Dr. Vernon Montoya must answer the Complaint (Doc.
1) within thirty days of the date of this Order.
DONE AND ORDERED at Jacksonville, Florida, this 21st day of
March, 2022.

J) /
Arwan—\ | hegre,
BRIAN. DAVIS
United States District Judge

Jax-9
C: Steven F. D’Amico #L58304
Counsel of record

24

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10109668. Public record. Not legal advice.