# Lockhart v. Cunningham

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

URL: https://www.frixlaw.com/law-library/cases/10110346

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** June 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/10110346

## How later opinions describe it (automated extraction)

- holding the Due Process Clause provides no greater protection than does the Eighth Amendment’s Cruel and Unusual Punishments clause

## Opinion text

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
OCALA DIVISION

EDWIN W. LOCKHART,
Plaintiff,

Case No. 5:22-cv-194-KKM-PRL

DUANE CUNNINGHAM, et al.,
Defendants.

ORDER
Plaintiff Edwin W. Lockhart sues three medical professionals and the Secretary of
the Florida Department of Corrections (each in their individual capacity) under 42 U.S.C.
§ 1983. (Doc. 1.) Lockhart alleges he was denied adequate medical care while incarcerated

at Marion Correctional Institution. (7d. at 8-9.) For the reasons explained below, the
Complaint (Doc. 1) is dismissed without prejudice, and Lockhart must file an amended
complaint if he desires to proceed in this action.
I. Legal Background

a. Section 1915
Under 28 U.S.C. § 1915A(a), federal courts must conduct an initial screening of
civil suits brought by prisoners seeking redress from a governmental entity or its employee
to determine whether they should proceed. Upon review, a court is required to dismiss a

complaint (or any portion thereof) that is frivolous, malicious, fails to state a claim for relief,

or seeks monetary relief against a defendant who is immune from such relief. See 28 U.S.C.
§ 1915A(b); see also 28 U.S.C. § 1915(e)(2).
A complaint is frivolous if it is without arguable merit either in law or in fact. See

Neitzke v. Williams, 490 U.S. 319, 325 (1989). Dismissals for failure to state a claim are
governed by Federal Rule of Civil Procedure 12(b)(6). See Mitchell v. Farcass, 112 F.3d
1483, 1490 (11th Cir. 1997) (“The language of section 1915(e)(2)(B)(ii) tracks the
language of Fed. R. Civ. P. 12(b)(6)”). Additionally, courts must read a plaintiffs pro se
allegations in a liberal fashion. See Haines v. Kerner, 404 U.S. 519, 520 (1972).
b. Section 1983
Lockhart’s claim arises under 42 U.S.C. § 1983. “[S]ection 1983 provides a method
for vindicating federal rights conferred by the Constitution and federal statutes.” Bannum,
Inc. v. City of Fort Lauderdale, 901 F.2d 989, 997 (11th Cir. 1990) (citations omitted). To
successfully plead a § 1983 claim, a plaintiff must allege two elements: “(1) that the act or

omission deprived plaintiff of a right, privilege or immunity secured by the Constitution or
laws of the United States, and (2) that the act or omission was done by a person acting
under color of law.” Id. at 996-97 (citations omitted). Thus, a plaintiff must show that the
defendant acted under the color of law or otherwise showed some type of state action that
led to the violation of the plaintiffs rights. Id.

II. Analysis
Lockhart, who is confined at Marion Correctional Institution (MCI) and proceeds
pro se in this action, sues Duane Cunningham, a Nurse Practitioner at MCI employed by
Centurion of Florida, LLC (Centurion); Carrie Daffron, Health Services Administrator
of MCI employed by Centurion; Jason Brenes, Region 3 Medical Director of the Florida
Department of Corrections (FDOC) employed by Centurion; and Ricky Dixon, Secretary,
FDOC. Lockhart claims the Defendants subjected him to cruel and unusual punishment
in violation of the Eighth Amendment of the United States Constitution and deprived him
of his right to due process of law in violation of the Fourteenth Amendment of the United
States Constitution. (Doc. 1 at 8.) Lockhart contends that the Defendants’ acts constituted
“gross negligence.” Id.
Lockhart alleges that he served in the United States Army from March 1, 1976,
through February 29, 1980, and during his term of service he had surgery on his left hip
and thigh, requiring pins and rods to stabilize his hip and thigh; he suffered spinal damage
to L4 and L5 lumbar; and he had surgery on his left shoulder. (d. at 8.) He received a
disability rating of 60 percent from the Department of Veterans Affairs (VA). Ud.) Upon
his entry into the FDOC almost eight years ago, he was diagnosed, given a walker, and
received passes for lower bunk, restricted activity, no prolonged standing, no pushing,
pulling, or lifting, and an extra pillow to aid with spinal pain. Ud. at 8-9.) Lockhard alleges

that Defendant Cunningham then took away Lockhart’s walker and all of the passes. □□□□

at 9.) Lockhart filed a formal grievance on December 18, 2021, and Defendant Brenes, on
December 28, 2021, upheld the decision without an investigation into the VA records.
Lockhart pursued an informal grievance, and Defendant Daffron upheld
Cunningham’s decision without any investigation into Lockhart’s American with
Disabilities Act (ADA) status or VA disability. Id.) Lockhart appealed to the Secretary,
FDOC, and Michelle Schouest, a classification officer, responded on February 11, 2022,
upholding the decision without investigation. (Jd.)
Lockhart filed another informal grievance on February 24, 2022, and Kelly Ann
Sites, an Administrative Assistant at MCI, Centurion, denied relief. Ud.) Defendant
Dixon upheld the decisions. (/d.) Lockhart seeks injunctive relief and nominal and punitive
damages “due to this gross negligence” as well as all other relief that the Court deems

appropriate. (Id.)
To allege deliberate indifference to a serious medical need, a plaintiff must allege an
objectively serious medical need and that a prison official acted with an attitude of
“deliberate indifference” to that serious medical need. See Estelle v. Gamble, 429 U.S. 97,
104-105 (1976). A serious medical need is “one that has been diagnosed by a physician as
mandating treatment or one that is so obvious that even a lay person would easily recognize
the necessity for a doctor's attention.” Mann v. Taser Int?, Inc., 588 F.3d 1291, 1307 (11th

Cir. 2009) (quoting Hill v. Dekalb Reg! Youth Det. Ctr., 40 F.3d 1176, 1187 (11th Cir.
1994)). To demonstrate deliberate indifference, a plaintiff must show: “(1) subjective
knowledge of a risk of serious harm; (2) disregard of that risk; (3) by conduct that is more
than [gross] negligence.” Goebert v. Lee Cnty., 510 F.3d 1312, 1327 (11th Cir. 2007)
(alteration in original) (internal quotation marks and citation omitted). See Hoffer v. Sec’y,
Fla. Dep't of Corr., 973 F.3d 1263, 1270 (11th Cir. 2020) (same); Burnette v. Taylor, 533
F.3d 1325, 1330 (11th Cir. 2008) (same).
Lockhart’s Complaint is deficient in several ways. His allegation that he was
deprived of due process is conclusory and devoid of factual support. He alleges that he used
the grievance process on several occasions, and the Defendants or other individuals
responded to his grievances. To the extent Plaintiff is alleging his grievances have been
mishandled, mismanaged, or improperly denied, such a claim does not support a § 1983

action. See Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999) (concluding that prison
officials who were not involved in termination from job and whose only function involved
the denial of administrative grievances or the failure to act were not liable under § 1983 on

a theory that the failure to act constituted an acquiescence in the unconstitutional conduct).
As such, Lockhart’s dissatisfaction with Defendants’ responses to grievances fails to state a
plausible claim for a denial of due process under the Fourteenth Amendment. A
supervisor's or reviewer's denial of a grievance is insufficient to establish liability under §

1983 absent allegations that the supervisor or reviewer personally participated in the
purported “unconstitutional conduct brought to light by the grievance.” Williams v.

Adkinson, No. 3:17cv184/LAC/EMT, 2020 WL 982007, at *5 (N.D. Fla. Feb. 7, 2020),
report and recommendation adopted by 2020 WL 980144 (N.D. Fla. Feb. 28, 2020), appeal
dismissed sub nom. Williams v. Sheppard, No. 20-10998-C, 2020 WL 5536689 (11th Cir.
July 14, 2020). See also Gallagher v. Shelton, 587 F.3d 1063, 1069 (10th Cir. 2009) (same).
To the extent Lockhart is raising a substantive due process claim based on the
alleged denial of adequate medical care, such a claim is redundant of the Eighth
amendment claim that he asserts. When a constitutional amendment “provides an explicit
textual source of constitutional protection,” that amendment guides the analysis, “not the

more generalized notion of ‘substantive due process.” Graham v. Connor, 490 U.S. 386,
395 (1989). See also Whitley v. Albers, 475 U.S. 312, 327 (1986) (holding the Due Process
Clause provides no greater protection than does the Eighth Amendment’s Cruel and
Unusual Punishments clause). Indeed, “the standards under the Fourteenth Amendment

are identical to those under the Eighth.” Goedert, 510 F.3d at 1326 (citation omitted).
An Eighth Amendment claim for deliberate indifference to a serious medical need

is cognizable under § 1983, but to state a claim for relief for deliberate indifference to a

serious medical need, a plaintiff must allege that the prison official, at a minimum, acted
with a state of mind that constituted deliberate indifference. As stated above, the plaintiff

must allege facts that make it plausible that the defendant possessed a (1) subjective
knowledge of a risk of serious harm, (2) disregarded that risk, and did so (3) by conduct
that constituted more than gross negligence. See Hoffer, 973 F.3d at 1270. However, “a

mere difference in medical opinion does not constitute deliberate indifference.” Packer v.

Lamour, No. 21-10022, 2022 WL 1297821, at *2 (11th Cir. May 2, 2022) (per curiam)
(citing Waldrop v. Evans, 871 F.2d 1030, 1033 (11th Cir. 1989))."
In his Complaint, Lockhart alleges that Cunningham decided Plaintiff no longer
qualified for or should be prescribed a walker and medical passes. Based on the Complaint,
it appears the medical professionals determined that Lockhart’s condition no longer met
the criteria for the passes or walker and that a cane would help with Lockhart’s stability.
(Doc. 1 at 15.) But that sort of difference in medical opinion does not state a deliberate
indifference claim. Waldrop, 871 F.2d at 1033. See Packer, 2022 WL 1297821, at *3 (“a
difference in medical opinion does not constitute deliberate indifference”) (citing Waldrop,
871 F.2d at 1033). Nor does that determination alone by Cunningham or others make it
plausible that they knew of a serious risk of harm and disregarded it.
Lockhart’s allegations of medical negligence or medical malpractice also do not
satisfy the stringent deliberate indifference standard. See Estelle, 429 U.S. at 105-106 (a

' The Court finds the reasoning of Packer persuasive. See McNamara v. Gov't Emp. Ins. Co., 30 F.4th 1055,
1060-61 (11th Cir. 2022) (reiterating that unpublished opinions may be cited as persuasive authority but
are not binding precedent). See Rule 32.1, Fed. R. App. P.

claim of a negligent diagnosis or treatment does not state a valid claim of medical

mistreatment under the Eighth Amendment). These allegations of medical malpractice do

not rise to the level of a constitutional violation merely because Lockhart is a prisoner. Jd.

at 106. In order to demonstrate an Eighth Amendment violation, an inmate must show
the care he received was “so grossly incompetent, inadequate, or excessive as to shock the

conscience or to be intolerable to fundamental fairness.” Harris v. Thigpen, 941 F.2d 1495,
1505 (11th Cir. 1991) (citation omitted). Lockhart does not describe medical care that is

so grossly incompetent that it shocks the conscience. Furthermore, to the extent Lockhart
seeks to hold administrative reviewers and supervisors liable for the actions of others, his
claim fails absent their direct involvement or implementation of a policy that caused the
unconstitutional harm. See Cottone v. Jenne, 326 F.3d 1352, 1360 (11th Cir. 2003) (“It is
well established in this Circuit that supervisory officials are not liable under § 1983 for the
unconstitutional acts of their subordinates on the basis of respondeat superior or vicarious
liability.”), abrogated in part on other grounds by Randall v. Scott, 610 F.3d 701 (11th Cir.
2010).
III. Conclusion
For the foregoing reasons, the following is ORDERED:
1. Lockhart’s Complaint (Doc. 1) is DISMISSED without prejudice to the filing of

an amended complaint by July 5, 2022.

a. To amend his complaint, Lockhart should completely fill out a new civil rights
complaint. On the new form, Lockhart must mark it as “Amended Complaint.”
The amended complaint must include a// of Lockhart’s claims in this action that
he wishes to pursue. It may not refer to or incorporate prior complaints.
b. The amended complaint supersedes all prior complaints, and all claims must be
raised in the amended complaint.
2. Lockhart is advised that failure to fully comply with this Order will result in the
dismissal of this action, for failure to state a claim, without further notice. Failure

to file a timely amended complaint will deprive this Court of jurisdiction to

entertain any prejudgment motions, including extensions of time.

3. The Clerk is directed to mail to Lockhart, along with this Order, a standard prisoner
civil rights complaint form.
ORDERED in Ocala, Florida on June 21, 2022.

fatten Kila Meisel
athryn’ Kimball Mizelle
United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10110346. Public record. Not legal advice.