James v. Perez-Lugo

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

DERRICK GREGORY JAMES,

Plaintiff,

v. Case No. 3:21-cv-183-BJD-JRK

E. PEREZ-LUGO, et al.

Defendants.

________________________________

ORDER

I. Status

Plaintiff, Derrick Gregory James, an inmate of the Florida penal system,

is proceeding pro se on an amended complaint for the violation of civil rights

under 42 U.S.C. § 1983 against three Defendants (Doc. 9; Am. Compl.).1

Plaintiff’s claims arise from his requests for medical treatment while housed

at Columbia Correctional Institution (CCI) Annex (“the Annex”). Am. Compl.

at 5-7. Before the Court are the following substantive motions: Defendants

Schouest and Bowden’s motion to dismiss (Doc. 16; Schouest Motion), which

1 Plaintiff names six Defendants in his amended complaint, see Am. Compl. at

2-4, but he voluntarily dismissed his claims against three because he was unable to

serve them, see Doc. 29. See also Order (Doc. 36) (dismissing without prejudice the

claims against Defendants Nurse Robinson, M. Tomlinson, and M. Herring). Plaintiff

names “Nurse Roberson” as a Defendant, see Am. Compl. at 1, 2, but, on the docket,

the Clerk spelled this Defendant’s last name as “Robinson.”

Plaintiff opposes (Doc. 19; Pl. Schouest Resp.) with exhibits (Docs. 19-1 through

19-10; Pl. Exs. A-J); Defendant Dr. Perez-Lugo’s motion to dismiss (Doc. 39;

Dr. Motion), which Plaintiff opposes (Doc. 40; Pl. Dr. Resp.);2 and Plaintiff’s

request for the Court to take judicial notice of the record (Doc. 41; Pl. Motion).

Before addressing the motions to dismiss, the Court quickly dispenses

with Plaintiff’s request that the Court take judicial notice. Plaintiff says he did

not have a copy of his amended complaint with him when he was preparing his

response to Dr. Perez-Lugo’s motion to dismiss. Pl. Motion at 1. He now wishes

to draw the Court’s attention to facts he alleged in his amended complaint,

which, he contends, Dr. Perez-Lugo omitted or overlooked in his motion to

dismiss. Id.

Plaintiff does not have to ask the Court to take judicial notice of the facts

he alleges in his amended complaint because, in ruling on a motion to dismiss,

a district court must accept as true the facts a plaintiff alleges in his complaint.

See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). As such, Plaintiff’s request is

due to be denied as moot. Additionally, Plaintiff’s request that the Court grant

summary judgment in his favor, see Pl. Motion at 2, is not properly before the

Court. A party may not request affirmative relief in a response to a motion.

2 In opposing Dr. Perez-Lugo’s motion to dismiss, Plaintiff relies on the exhibits

he filed with his response to Defendants Schouest and Bowden’s motion to dismiss.

See Pl. Dr. Resp. at 1.

2

See Fed. R. Civ. P. 7(b)(1) (“A request for a court order must be made by

motion.”). See also M.D. Fla. R. 3.01(a) (requiring submission of a motion

requesting relief).

II. Motion to Dismiss Standard

Under the Federal Rules of Civil Procedure, a defendant may move to

dismiss a complaint for a plaintiff’s “failure to state a claim upon which relief

may be granted.” Fed. R. Civ. P. 12(b)(6). In ruling on such a motion, the court

must accept the plaintiff’s allegations as true, liberally construing those by a

plaintiff proceeding pro se, but need not accept as true legal conclusions. Iqbal,

556 U.S. at 678. Though detailed factual allegations are not required, Rule 8(a)

demands “more than an unadorned, the-defendant-unlawfully-harmed-me

accusation.” Id. 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).

III. Complaint Allegations

Plaintiff alleges he sought medical care through sick-call requests and

grievances for over a year before he received adequate, proper treatment. Am.

Compl. at 7-9. Plaintiff explains he had been experiencing “numbness at the

bottom of his right foot [and] extreme pain within the right ankle and Achilles-

heel.” Id. at 7. He filed a formal grievance on April 20, 2020, complaining that

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he “was not receiving appropriate care” and that he needed an MRI. Id. On

April 27, 2020, Dr. Perez-Lugo, the Medical Director, denied his grievance

because Plaintiff was improperly attempting to access medical treatment

“through the grievance system.” Id. Dr. Perez-Lugo noted in the grievance

response that Plaintiff had “an upcoming appointment scheduled with the

provider for [his] issue.” Pl. Ex. C at 12.

Plaintiff submitted another grievance on June 8, 2020, again requesting

medical care, including an MRI. Am. Compl. at 7. Plaintiff alleges M.

Tomlinson (a nurse) denied his grievance, informing him “diagnostic tests and

MRI’s are not ordered through the grievance system.” Id. In the response,

Nurse Tomlinson noted Plaintiff was seen on April 27, 2020, at which time “x-

ray results were reviewed,” but the provider decided to “hold” on ordering an

MRI. Pl. Ex. A at 4. Nurse Tomlinson further noted Plaintiff had not accessed

sick call since his April 27, 2020 appointment. Id. Nurse Tomlinson instructed

Plaintiff to access sick call if he had additional “questions or concerns about

[his] current treatment plan.” Id.

Plaintiff thereafter filed a formal grievance, which Dr. Perez-Lugo

denied because the provider who evaluated him on April 27, 2020, determined

an MRI was not clinically indicated. Am. Compl. at 7-8; Pl. Ex. A at 6. Dr.

Perez-Lugo reminded Plaintiff that “diagnostic tests are not issued through the

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grievance system.” Am. Compl. at 7-8; Pl. Ex. A at 6. Plaintiff appealed the

institution responses to the Office of the Secretary of the Florida Department

of Corrections (FDOC), which Defendants Schouest and Bowden denied. Am.

Compl. at 8; Pl. Ex. A at 7-8.

Plaintiff alleges he submitted “another inmate sick-call request” on

November 18, 2020,3 because he noticed “extensive right calf muscle

shrinkage.” Am. Compl. at 8. A review of the sick-call request shows Plaintiff

reported his calf had “continuously been shrinking for several months.” Pl. Ex.

D at 2. He also complained that he had pain in his right ankle and heel and his

foot was numb. Id. Plaintiff alleges he filed a grievance on November 30, 2020,

because the sick-call request did not generate an appointment. Am. Compl. at

8. Nurse K. Roberson denied his grievance, noting, “record review indicates

[Plaintiff was] assessed by medical on [November 18, 2020].” Pl. Ex. D at 3.

Plaintiff alleges Nurse Roberson lied in the grievance response. Am.

Compl. at 8. He denies having “been seen” in sick call on November 18, 2020,

“concerning . . . [the] injury/issue of right calf shrinkage,” and asserts he was

seen by a nurse “concerning his ears only.” Id. (internal quotation marks

3 In his amended complaint, Plaintiff does not reference having submitted sick-

call requests before this one in November 2020. However, with his response to

Defendants Schouest and Bowden’s motion to dismiss, Plaintiff offers a sick-call

request dated April 21, 2020, in which he complained that he needed to see a doctor

about his right foot pain and numbness. Pl. Ex. J at 8.

5

omitted). However, Plaintiff acknowledges he was treated by Nurse Roberson

“on two or three other occasions,” and the nurse told him he/she “was not going

to recommend an MRI” but would put in a request for Plaintiff to see the doctor.

Id.

Plaintiff alleges that, on December 8, 2020, he submitted a formal

grievance complaining that the medical department “wrongly alleged that [he]

was seen” on November 18, 2020. Am. Compl. at 8; see also Pl. Ex. D at 4. Dr.

Perez-Lugo denied his grievance. Am. Compl. at 9; Pl. Ex. D at 5. Dr. Perez-

Lugo noted in the grievance response that “records indicate [Plaintiff was] last

seen in sick call on November 18, 2020, and since that time [he had] not

accessed medical for any complaints.” Pl. Ex. D at 5. Plaintiff alleges he then

appealed to the Office of the Secretary, complaining that the medical

department “outright lied about having seen Plaintiff by way of sick-call

concerning Plaintiff’s right calf leg muscle shrinkage issue.” Am. Compl. at 9.

Defendants Schouest and Bowden denied his appeal. Id. See also Pl. Ex. B at

2.

On January 19, 2021, Plaintiff was treated by Dr. Perez-Lugo, who noted

that Plaintiff’s right calf muscle indeed was much smaller than the left. Am.

Compl. at 9. Dr. Perez-Lugo referred Plaintiff to a neurologist. Id. See also Pl.

Ex. F at 2. Plaintiff alleges that, on February 11, 2021, “[he] was transported

6

to [the Reception and Medical Center (RMC)] to see a neurologist.” Am. Compl.

at 10; Pl. Ex. E at 7. Plaintiff contends the neurologist told him he would need

an MRI and surgery. Am. Compl. at 10. According to documentation Plaintiff

provides, between February and May 2021, Plaintiff submitted at least three

grievances and four sick-call requests to follow up on the treatment the

neurologist allegedly recommended. Pl. Ex. F at 4, 5; Pl. Ex. J at 5; 9-12.

However, only two grievances (dated February 22, 2021, and February 26,

2021) were submitted to officials at the Annex because Plaintiff was

transferred to South Bay Correctional Institution on March 17, 2021. Pl. Ex. J

at 13. Plaintiff acknowledged in one of his sick-call requests he submitted to

officials at South Bay that he had an MRI on May 7, 2021. Pl. Ex. J at 11.

Without specifically connecting factual allegations to his asserted legal

claims or the individual Defendants, Plaintiff alleges Defendants’ conduct

violated the First Amendment, the Fourteenth Amendment (due process), and

the Eighth Amendment. Am. Compl. at 3, 5. He seeks monetary relief and an

injunction against Centurion (apparently through his official-capacity claim

against Dr. Perez-Lugo) related to medical co-payments and the process for

submitting sick-call requests. Id. at 6.

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IV. Analysis

A. Consideration of Extrinsic Evidence

In support of his responses to Defendants’ motions to dismiss, Plaintiff

provides exhibits, most of which are grievance records. 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. 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, “If, 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.” Fed. R.

Civ. P. 12(d). See also Trustmark Ins. 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 without converting it into a Rule 56

motion if the evidence “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,

8

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.

In his amended complaint, Plaintiff references nine exhibits, though he

attaches only one (Doc. 9-1) (exhibit “B”), which is a May 10, 2020 letter

directed to the Office of Veterans Affairs in which Plaintiff pleads for help

obtaining medical treatment, along with a certificate of his discharge from

active duty. See Am. Compl. at 7-10. Plaintiff includes this exhibit (the letter

and discharge certificate) with his responses to Defendants’ motions, though it

is labeled exhibit “I.”

The remainder of the exhibits Plaintiff offers in support of his responses

to Defendants’ motions to dismiss are the following: prison grievance records;

sick-call requests; medical records; an “emergency complaint” Plaintiff sent to

the Governor’s office on August 1, 2019; an eight-paragraph article printed in

“Prison Legal News” in March 2021, regarding Centurion’s contract to provide

medical services for Mississippi inmates; affidavits from eight inmates; a

“complaint” dated April 18, 2021, directed to the Office of the Inspector General

of the FDOC and others, in which Plaintiff reports an alleged “mysterious

9

disappearance of the Neurological Report and Electrical Test and It’s [sic]

Findings, and the cover-up afoot.” See generally Pl. Exs. A-J.

In his amended complaint, Plaintiff incorporates by reference most of the

exhibits he offers in opposition to Defendants’ motions, and Defendants have

not contested the authenticity of the exhibits. However, Plaintiff does not

mention in his amended complaint inmate affidavits or a Prison Legal News

article, nor are those exhibits central to his claims at this juncture of the

proceedings. The inmates aver in their affidavits that Plaintiff’s right calf

muscle was smaller than the left, and Plaintiff was in severe pain. See

generally Pl. Ex. G. Plaintiff alleges as much in his amended complaint, and

the Court must accept his allegation as true. Thus, the affidavits are

duplicative of Plaintiff’s allegations. The Prison Legal News article Plaintiff

offers is about Centurion dropping its contract to provide healthcare for

prisoners in Mississippi. See generally Pl. Ex. H. This article has no bearing

on the issues Plaintiff alleges in his amended complaint.

For the reasons stated, in ruling on Defendants’ motions to dismiss, the

Court will consider Plaintiff’s exhibits to the extent relevant, except exhibits

“G” (inmate affidavits) and “H” (article).

10

B. Deliberate Indifference

A claim for deliberate indifference to a serious illness or injury is

cognizable under § 1983. Estelle v. Gamble, 429 U.S. 97, 104 (1976). To state a

claim, a plaintiff first must allege he had “an objectively serious medical need.”

Brown v. Johnson, 387 F.3d 1344, 1351 (11th Cir. 2004). “To qualify as a

serious medical need, an injury or condition, if not treated, must create a

substantial risk of serious harm.” Hinson v. Bias, 927 F.3d 1103, 1122 (11th

Cir. 2019) (quoting in part Taylor v. Hughes, 920 F.3d 729, 733 (11th Cir.

2019)).

Next, the plaintiff must “allege that the prison official, at a minimum,

acted with a state of mind that constituted deliberate indifference.” Richardson

v. Johnson, 598 F.3d 734, 737 (11th Cir. 2010). Finally, the plaintiff must allege

facts showing a causal connection between the defendant’s conduct and his

resulting injuries. Mann v. Taser Int’l, Inc., 588 F.3d 1291, 1306-07 (11th Cir.

2009), overruled in part on other grounds by Hope v. Pelzer, 536 U.S. 730, 739

(2002) (identifying the elements of a deliberate indifference claim: “(1) a serious

medical need; (2) the defendants’ deliberate indifference to that need; and (3)

causation between that indifference and the plaintiff’s injury”).

“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

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not, by failing to provide care . . . or providing grossly inadequate care, cause a

prisoner to needlessly suffer the pain resulting from his or her illness.”

McElligott v. Foley, 182 F.3d 1248, 1257 (11th Cir. 1999). However, “[a]

prisoner bringing a deliberate-indifference claim has a steep hill to climb.”

Keohane v. Fla. Dep’t of Corr. Sec’y, 952 F.3d 1257, 1266 (11th Cir. 2020). To

sufficiently plead the second element (deliberate indifference), a plaintiff must

do more than allege the care he received was “subpar or different from what

the inmate want[ed].” Id. at 1277. “[F]ederal courts are generally reluctant to

second guess medical judgments and to constitutionalize claims that sound in

tort law.” Hamm v. DeKalb Cnty., 774 F.2d 1567, 1575 (11th Cir. 1985)

(quoting Westlake v. Lucas, 537 F.2d 857, 860 n.5 (1st Cir. 1981)). See also

Farrow v. West, 320 F.3d 1235, 1245 (11th Cir. 2003) (“[T]he Supreme Court

established that ‘deliberate indifference’ entails more than mere negligence.”).

Stated another way, “[d]eliberate indifference is not about ‘inadvertence

or error in good faith,’ but rather about ‘obduracy and wantonness’—a

deliberate refusal to provide aid despite knowledge of a substantial risk of

serious harm.” Stone v. Hendry, 785 F. App’x 763, 769 (11th Cir. 2019) (quoting

Whitley v. Albers, 475 U.S. 312, 319 (1986)). When a plaintiff has received

some treatment, he pleads a deliberate indifference claim only by alleging facts

showing the care he received was “so grossly incompetent, inadequate, or

12

excessive as to shock the conscience or to be intolerable to fundamental

fairness.” Harris v. Thigpen, 941 F.2d 1495, 1505 (11th Cir. 1991) (quoting

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

C. Defendants Schouest and Bowden’s Motion

Defendants Schouest and Bowden were involved in Plaintiff’s efforts to

obtain medical care only as grievance responders. Plaintiff filed a grievance

appeal to the Office of the Secretary on July 9, 2020, and again on January 18,

2021, complaining that medical providers at the Annex were not providing

adequate medical treatment for his calf shrinkage or foot numbness. Am.

Compl. at 8, 9; Pl. Ex. A at 7; Pl. Ex. D at 6. Defendants Schouest and Bowden

denied both appeals, finding the responses Plaintiff received at the

institutional level appropriately addressed his issues. Pl. Ex. A at 8; Pl. Ex. B

at 2.

Defendants Schouest and Bowden argue Plaintiff did not exhaust his

administrative remedies and fails to state a plausible claim against them.

Schouest Motion at 1. Additionally, they invoke qualified immunity. Id. In his

response, Plaintiff contends he exhausted his administrative remedies because

he filed two grievance appeals to the Office of the Secretary, each of which

Defendants Schouest and Bowden denied. Pl. Schouest Resp. at 1. He also

argues he states a claim against Defendants Schouest and Bowden because he

13

alleges they improperly denied his grievances, even though he complained in

“great and extensive detai[l]” about his injuries. Id. at 2. Plaintiff maintains,

“Defendants did review . . . documents and were clearly aware of the

seriousness of Plaintiff’s injury, thus prolonging adequate and proper medical

treatment.” Id.

Prison officials sued in their individual capacity “[are] entitled to

qualified immunity for [their] discretionary actions unless [they] 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 prison officials 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.

Upon asserting a qualified immunity defense, a defendant bears the

initial burden to demonstrate he or she was acting in his or her discretionary

authority at the relevant times. Dukes v. Deaton, 852 F.3d 1035, 1041-42 (11th

Cir. 2017). Defendants meet their burden. Plaintiff sues Defendants Schouest

and Bowden because of their official duties as grievance responders. See Am.

Compl. at 8, 9. Thus, the burden shifts to Plaintiff to point to allegations that,

14

accepted as true, show Defendants Schouest and Bowden violated a clearly

established constitutional right. Alcocer, 906 F.3d at 951. This, Plaintiff cannot

do.

Based on Plaintiff’s allegations and his response to Defendants

Defendants Schouest and Bowden’s motion to dismiss, it is apparent he is

proceeding against them solely in their role as grievance responders. See Am.

Compl. at 8, 9; Pl. Schouest Resp. at 2-4. To the extent Plaintiff suggests

Defendants Schouest and Bowden violated his due process rights by denying

his grievances, he fails to state a plausible claim for relief under § 1983. “[A]

prisoner does not have a constitutionally-protected liberty interest in [a prison]

grievance procedure.” Dunn v. Martin, 178 F. App’x 876, 878 (11th Cir. 2006)

(citing Adams v. Rice, 40 F.3d 72, 75 (4th Cir. 1994)). See also Bingham v.

Thomas, 654 F.3d 1171, 1177 (11th Cir. 2011).

To the extent Plaintiff suggests Defendants Schouest and Bowden were

deliberately indifferent to his serious medical needs simply because they

denied his grievance appeals, he fails to state a plausible claim for relief.

Plaintiff alleges no facts permitting the inference Defendants Schouest or

Bowden had subjective knowledge he faced a substantial risk of serious harm.

Plaintiff appears to construe the grievance responses to suggest Defendants

Schouest and Bowden themselves reviewed his medical records in responding

15

to his grievance appeals and, as such, they should have known he had a serious

medical need that was going untreated. See Pl. Schouest Resp. at 2. In denying

his appeals, however, Defendants Schouest and Bowden did not represent to

Plaintiff that they had reviewed his medical records. Rather, they said their

responses were based on “[r]ecords available to [the] office.” Pl. Ex. A at 8; Pl.

Ex. B at 2 (emphasis added). Regardless, it is clear Defendants Schouest and

Bowden were not medical providers; they were representatives of the Office of

the Secretary at the relevant times. Id.

Assuming arguendo that Defendants Schouest and Bowden had access

to and did in fact review Plaintiff’s medical records but failed to appreciate that

Plaintiff had a serious medical need or was not receiving constitutionally

adequate medical care, such a failure does not equate to deliberate

indifference. See Farmer v. Brennan, 511 U.S. 825, 826 (1994) (“[T]he failure

to alleviate a significant risk that an official should have perceived but did not,

while no cause for commendation, cannot be condemned as the infliction of

punishment.”).

Because Plaintiff fails to state a plausible claim against Defendants

Schouest and Bowden, they are entitled to qualified immunity, and their

16

motion is due to be granted to that extent. As such, their exhaustion defense is

moot.4

D. Dr. Perez-Lugo’s Motion

Dr. Perez-Lugo argues Plaintiff cannot proceed against him in his official

capacity because he is a Centurion employee and because Plaintiff does not

allege facts to invoke supervisor liability; Plaintiff fails to state a plausible

First Amendment claim; Plaintiff’s Fourteenth Amendment claim is subsumed

by his Eighth Amendment claim; Plaintiff fails to state a plausible Eighth

Amendment claim; and Plaintiff’s requests for injunctive relief should be

dismissed because he fails to state an official-capacity claim and because

Plaintiff is no longer housed at the Annex. Dr. Motion at 3-4. In his response,

Plaintiff voluntarily dismisses his Fourteenth Amendment claim, but he

contends his official-capacity claim and First and Eighth Amendment claims

are viable and sufficiently pled. Pl. Dr. Resp. at 1-2.

4 Even if Plaintiff had stated a plausible claim against Defendants Schouest

and Bowden based on their responses to his grievance appeals, Plaintiff’s grievances

were about his requests for medical care, not about allegedly inadequate grievance

responses. See Pl. Ex. A at 7; Pl. Ex. D at 6. In other words, Plaintiff did not file

grievances complaining about any conduct by Defendants Schouest or Bowden. Thus,

had Plaintiff stated a plausible claim against these Defendants, it would have been

un-exhausted.

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i. Eighth Amendment Claim

Plaintiff’s primary claim against Dr. Perez-Lugo (in both his individual

and official capacities) arises under the Eighth Amendment: deliberate

indifference to a serious medical need. Dr. Perez-Lugo accepts for purposes of

his motion to dismiss that Plaintiff alleges a serious medical need. Dr. Motion

at 18 n.3. The Court does the same. As to the individual-capacity claim,

Plaintiff alleges Dr. Perez-Lugo ignored his grievances and sick-call requests

for seven months and failed to completely document in Plaintiff’s medical chart

the reason Dr. Perez-Lugo referred him to a neurologist on January 19, 2021.

See Am. Compl. at 7-10. The Court will handle these issues in reverse order.

First, it is uncontested that the only time Plaintiff was treated by Dr.

Perez-Lugo was on January 19, 2021, and, on that date, Dr. Perez-Lugo

evaluated Plaintiff and referred him to a neurologist. Id. at 9. Plaintiff

contends Dr. Perez-Lugo measured both of his calves, which showed the right

was smaller than the left, but Dr. Perez-Lugo did not “mention[] . . . [the]

measurement numbers” when recording his diagnosis. Id. at 10. See also Pl.

Dr. Resp. at 3. Accepting as true that Dr. Perez-Lugo did not record Plaintiff’s

calf measurements, such conduct cannot be construed as deliberate

indifference. Dr. Perez-Lugo evaluated Plaintiff and referred him for

evaluation by a specialist, and Plaintiff does not assert Dr. Perez-Lugo’s failure

18

to document his calf measurements resulted in any harm or delayed his

appointment with the neurologist. Even if he had alleged as much, however,

Plaintiff’s mere disagreement with Dr. Perez-Lugo’s notetaking practices is

insufficient to state a claim under the Eighth Amendment.

Moreover, Plaintiff does not allege Dr. Perez-Lugo refused to provide or

schedule the treatment the specialist recommended. See Am. Compl. at 10; Pl.

Dr. Resp. at 3-4. In fact, on March 9, 2021, Nurse A. Parrish responded to an

informal grievance Plaintiff submitted (requesting medical boots and a double

mattress pass), and the nurse informed him:

Record review indicates you had NCV/EMG on

2/11/2021 at RMC. A request for these results has been

submitted. Upon receipt of your diagnostic studies, an

appointment will be made. This process usually takes

several weeks. Should you have any further issues

regarding your health or treatment plan, please access

sick call.

Pl. Ex. F at 5. Plaintiff was transferred to South Bay on March 17, 2021, Pl.

Ex. J at 13, meaning Dr. Perez-Lugo was no longer responsible for Plaintiff’s

medical care. Thus, any possible or alleged delay in scheduling an MRI or

surgery is not attributable to Dr. Perez-Lugo.

Second, Plaintiff faults Dr. Perez-Lugo for unnecessarily delaying

Plaintiff’s ability to obtain adequate medical care, including referral to a

neurologist for an MRI and other intervention. See Am. Compl. at 7-9. Plaintiff

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alleges he had been complaining for seven months before Dr. Perez-Lugo

finally saw him. Id. See also Pl. Dr. Resp. at 3. According to the records Plaintiff

provides, he had been submitting grievances (at the Annex) since as early as

March 9, 2020. See Pl. Ex. C at 8. In total, between March 2020 and December

2020, Plaintiff initiated the grievance process at the Annex at least three times

seeking treatment for his leg and foot, and he submitted at least two sick-call

requests. See Pl. Ex. A at 4-8; Pl. Ex. C at 8-9; Pl. Ex. D at 2-4; Pl. Ex. J at 8.

Dr. Perez-Lugo responded to three of Plaintiff’s grievances: on April 20,

2020; on June 29, 2020; and on December 18, 2020. Pl. Ex. A at 6; Pl. Ex. C at

12; Pl. Ex. D at 5. Accepting that Plaintiff’s grievances—to which Dr. Perez-

Lugo responded—put Dr. Perez-Lugo on notice that Plaintiff had a serious

medical need, Plaintiff’s allegations and the grievance responses he relies upon

do not permit the reasonable inference that Dr. Perez-Lugo was deliberately

indifferent to Plaintiff’s serious medical need. Dr. Perez-Lugo did not ignore

Plaintiff’s complaints or decline to ensure Plaintiff was receiving treatment.

On the contrary, in each of his responses, Dr. Perez-Lugo noted there was “no

indication [Plaintiff had] been denied medical care or access to medical.” Pl.

Ex. A at 6; Pl. Ex. C at 12; Pl. Ex. D at 5.

In the April 27, 2020 response, Dr. Perez-Lugo noted Plaintiff had “an

upcoming appointment scheduled with the provider for [the] issue[s] [raised in

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his grievance],” which were his “right bottom foot [pain] . . . [and] right ankle

and right Achilles heel” pain. Pl. Ex. C at 11, 12. And, in fact, records show

Plaintiff treated with a provider on April 27, 2020. Pl. Ex. A at 4, 6.

In the June 29, 2020 response, Dr. Perez-Lugo referenced Plaintiff’s

April 27, 2020 appointment and noted the “provider reviewed [Plaintiff’s] x-ray

results and discussed with [him] based on the x[-]ray results at that time [there

was] no clinical indication for [an] MRI.” Id. at 6. Dr. Perez-Lugo also noted, as

did a nurse who responded to his informal grievance, that Plaintiff had not

accessed sick call since that appointment. Id. at 4, 6. Even if the provider’s

decision not to order an MRI was medically incorrect or debatable, Dr. Perez-

Lugo was not the provider who made the decision. On these facts, Dr. Perez-

Lugo’s deference to a providers’ medical judgment does not suggest deliberate

indifference, even if that medical judgment was incorrect or subject to

reasonable debate among medical practitioners. See Wilson v. Smith, 567 F.

App’x 676, 678 (11th Cir. 2014) (affirming dismissal of a deliberate indifference

claim against a doctor who, upon a mere review of the plaintiff’s medical

record, determined the plaintiff “was receiving appropriate treatment” by

prison medical providers). Moreover, a difference of opinion regarding

questions of medical judgment does not give rise to a claim under the Eighth

Amendment. See Hamm, 774 F.2d at 1575.

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Finally, in the December 18, 2020 response, Dr. Perez-Lugo noted

Plaintiff’s records did not indicate he was being denied medical care. Pl. Ex. D

at 5. Dr. Perez-Lugo observed Plaintiff had been “seen in sick call on November

18, 2020,” and Plaintiff had not sought medical care “for any complaints” after

that appointment. Id. Plaintiff disputes having been seen in sick call on

November 18, 2020, at least for his leg/foot issues. Am. Compl. at 8; Pl. Ex. D

at 4, 6. He accuses Nurse Roberson or the medical department of lying about

him having been seen that day for these issues. Am. Compl. at 8; Pl. Ex. D at

6.

Plaintiff’s own allegations belie his assertion that Nurse Roberson lied.

For instance, in his amended complaint, Plaintiff alleges, on the one hand, that

Nurse Roberson told him (Plaintiff) he or she (the nurse) would not order an

MRI but would “put Plaintiff in to be seen by a Doctor,” but, on the other hand,

Plaintiff contends that he treated with Nurse Roberson only about wax build-

up in his ears, not about his calf shrinkage or foot numbness. Am. Compl. at 8,

10; see also Pl. Ex. D at 6. These assertions are contradictory. If Plaintiff saw

Nurse Roberson only about his ears, as he alleges, Nurse Roberson would have

had no reason to discuss with Plaintiff the necessity (or lack thereof) of

ordering an MRI. In other words, whether an MRI was clinically indicated

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likely would not have been a conversation if Plaintiff’s only medical complaint

addressed at the sick-call appointment was wax build-up.

That Nurse Roberson (or another provider), prior to January 19, 2021,

evaluated Plaintiff’s leg and foot is supported not only (even if implicitly) by

Plaintiff’s own allegations but also by the records he provides. For instance,

both a nurse (M. Tomlinson) and Dr. Perez-Lugo noted in grievance responses

that a provider reviewed Plaintiff’s x-ray results with him and decided an MRI

was not warranted. Pl. Ex. A at 4, 6. Additionally, in Plaintiff’s “Chronological

Record of Health Care,” which he offers in opposition to Defendants’ motions,

Nurse Tomlinson noted on December 16, 2020, that Plaintiff had submitted a

formal grievance and that he was “last seen 11-18-2020.” Pl. Ex. E at 6. While

the entry does not say Plaintiff was seen on November 18, 2020, regarding leg

or foot complaints, the entry was made by Nurse Tomlinson, not Nurse

Roberson.

Despite the contradictions in Plaintiff’s own allegations, accepting as

true that Nurse Roberson lied or mistakenly misinterpreted a note written by

another nurse about the fact that Plaintiff was treated on November 18, 2020,

for his calf shrinkage or foot numbness, Plaintiff does not allege that Dr. Perez-

Lugo knew Plaintiff had not been seen about those issues on that date.

Plaintiff’s own medical record indicate he had been seen in sick call on

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November 18, 2020. Pl. Ex. E at 6. And, as discussed previously, when Plaintiff

personally treated with Dr. Perez-Lugo on January 19, 2021, Dr. Perez-Lugo

evaluated him and, based on that evaluation, referred him to a specialist.

Plaintiff alleges no facts permitting the inference that Dr. Perez-Lugo provided

care that was “so grossly incompetent, inadequate, or excessive as to shock the

conscience or to be intolerable to fundamental fairness.” See Harris, 941 F.2d

at 1505.

As to Plaintiff’s official-capacity claim against Dr. Perez-Lugo, assuming

Plaintiff could proceed against Dr. Perez-Lugo in such a capacity, Plaintiff fails

to state a plausible claim for relief. “A claim asserted against an individual in

his or her official capacity is, in reality, a suit against the entity that employs

the individual.” Mann, 588 F.3d at 1309 (citing Brown v. Neumann, 188 F.3d

1289, 1290 (11th Cir.1999)). When there is no basis to support a federal claim

against a prison official in his individual capacity, there is no basis to support

an official-capacity claim against that person. Id. Moreover, Plaintiff does not

allege Centurion’s official policy or unofficial custom or practice was the

“moving force” behind an alleged constitutional violation. Monell v. Dep’t of

Soc. Servs., 436 U.S. 658, 694 (1978).5

5 To the extent Plaintiff purports to proceed against Defendants Schouest and

Bowden in their official capacities, he fails to state a plausible claim against them in

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ii. First Amendment Claim

Plaintiff alleges Dr. Perez-Lugo “retaliated against [him] for filing

grievances, thus prolonging adequate treatment.” Am. Compl. at 5. To state an

actionable claim for retaliation, a plaintiff must allege:

(1) his speech was constitutionally protected; (2) [he]

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 . . . and the protected speech [the

grievance].

O’Bryant v. Finch, 637 F.3d 1207, 1212 (11th Cir. 2011) (second and fourth

alterations in original).

In his response to Dr. Perez-Lugo’s motion, Plaintiff contends “Dr. Perez-

Lugo . . . stated within two of his Formal Grievance responses, that nothing

wasn’t going to be done [sic] concerning Plaintiff’s serious injury because of

grievance filings.” Pl. Dr. Resp. at 2. Plaintiff does not make such allegations

in his amended complaint. On the contrary, Plaintiff alleges Dr. Perez-Lugo

responded to him three times, each time informing him he had not been denied

medical treatment. Am. Compl. at 7, 8, 9. Plaintiff provides copies of these

grievance responses, dated April 27, 2020, June 29, 2020, and December 18,

that capacity for the same reason he fails to assert an official-capacity claim against

Dr. Perez-Lugo.

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2020, and in none of them does Dr. Perez-Lugo tell Plaintiff nothing would be

done for him because he had filed grievances. Pl. Ex. A at 6; Pl. Ex. C at 12; Pl.

Ex. D at 5. Plaintiff’s conclusory, unsupported allegations that Dr. Perez-Lugo

retaliated against him 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., Ala., 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”).

Accordingly, it is now

ORDERED:

1. Defendants Schouest and Bowden’s motion to dismiss (Doc. 16) is

GRANTED to the extent stated.

2. Defendant Dr. Perez-Lugo’s motion to dismiss (Doc. 39) is

GRANTED.

3. All claims against Defendants Schouest, Bowden, and Perez-Lugo

are dismissed with prejudice.6

6 Generally, a pro se plaintiff should be provided an opportunity to amend his

complaint “[w]here it appears a more carefully drafted complaint might state a claim

upon which relief can be granted.” Bank v. Pitt, 928 F.2d 1108, 1112 (11th Cir. 1991),

overruled in part by Wagner v. Daewoo Heavy Indus. Am. Corp., 314 F.3d 541, 542

(11th Cir. 2002) (en banc). However, if an amendment would be futile, such as where

a plaintiff can “prove no set of facts” that would entitle him to relief, id., the Court

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4. Plaintiffs request for the Court to take judicial notice of the record

(Doc. 41) is DENIED as moot.

5. Attorneys Edwards and Dzwonkowski’s motion to withdraw as

counsel for Defendant Dr. Perez-Lugo (Doc. 438) is GRANTED. Attorney

Ronald Chapman filed a notice of appearance on Defendant Dr. Perez-Lugo’s

behalf (Doc. 42). The Clerk is directed to update the docket accordingly.

6. The Clerk is directed to enter judgment, terminate any pending

motions, and close the file.

DONE AND ORDERED at Jacksonville, Florida, this 22nd day of

March 2022.

ef) -

fd /iton— ( | by 14___

BRIAN/I, DAVIS

United States District Judge

Jax-6

C:

Derrick C. James

Counsel of Record

may dismiss the case with prejudice, Cockrell v. Sparks, 510 F.3d 1307, 1810 (11th

Cir. 2007) (“Leave to amend a complaint is futile when the complaint as amended

would still be properly dismissed or be immediately subject to summary judgment for

the defendant.”). Plaintiff has previously been given an opportunity to amend his

claims. See Order (Doc. 8). Additionally, any effort by Plaintiff to further amend his

claims premised on these facts would be futile.

27