Ratley v. Inch

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

MICHAEL STEVEN RATLEY,

Plaintiff,

v.

Case No. 3:21-cv-598-MMH-LLL

MARK INCH, et al.,

Defendants.

ORDER

I. Status

Plaintiff Michael Steven Ratley, an inmate in the custody of the Florida

Department of Corrections (FDOC), initiated this action on June 14, 2021, by

filing a pro se Civil Rights Complaint (Doc. 1). He filed an Amended Complaint

(AC; Doc. 28) with exhibits (Doc. 28-1) on October 12, 2021.1 In the AC, Ratley

asserts claims pursuant to 42 U.S.C. § 1983 against the following Defendants:

(1) Mark Inch, the FDOC Secretary; (2) Palmer, FDOC Region 2 Director; (3)

Glenn Young, Hamilton Correctional Institution Annex (HCIA) Warden; (4)

Gerald Stewart, HCIA Assistant Warden; (5) Sergeant E. Burkette; (6)

1 For purposes of reference to pleadings and exhibits, the Court will cite the

document page numbers assigned by the Court’s electronic docketing system.

Centurion Health (Centurion); (7) Dr. Leslie Colombani,2 M.D., HCIA Chief

Health Officer (CHO); (8) Nurse Ira Lee; (9) Dr. Richard Laubaugh, M.D.,

orthopedic surgeon and CHO at Taylor Correctional Institution; and (10) Dr.

Jason Brenes-Catinchi, M.D., Central Florida Reception Center (CFRC)

Medical Director. He alleges that Defendants violated his Eighth Amendment

right to be free from cruel and unusual punishment when Defendant Burkette

assaulted him on September 16, 2019; Defendants Centurion, Lee, Colombani,

Brenes-Catinchi, and Laubaugh denied him proper medical care following the

assault; and Defendants Inch, Palmer, Stewart, and Young failed to remedy

the mistreatment related to Burkette’s assault and Defendants Centurion,

Lee, Colombani, Brenes-Catinchi, and Laubaugh’s provision of inadequate

medical care. As relief, he seeks monetary damages. He also asks that the

Court direct the FDOC to train its staff and provide him proper medical care.

This matter is before the Court on Defendants Inch, Palmer, Stewart,

and Young’s Motion to Dismiss (FDOC Motion; Doc. 56) and Defendants

Centurion, Lee, Colombani, Brenes-Catinchi, and Laubaugh’s Motion to

Dismiss (Medical Motion; Doc. 57). The Court advised Ratley that granting a

motion to dismiss would be an adjudication of the case that could foreclose

2 The Court will direct the Clerk to correct the docket to reflect the proper

spelling of Dr. Colombani’s surname.

2

subsequent litigation on the matter and gave him an opportunity to respond.

See Order (Doc. 5). Ratley filed responses in opposition to the Motions. See

Response to Defendants’ Centurion, Lee, Colombani, Brenes-Catinchi, and

Laubaugh’s Motion to Dismiss (Response; Doc. 61); Response to Defendants

Inch, Palmer, Stewart, and Young’s Motion to Dismiss (Response II; Doc. 60).

Defendants’ Motions are ripe for review.

II. Plaintiff’s Allegations3

As to the specific underlying facts supporting his Eighth Amendment

claims, Ratley asserts that, on September 16, 2019, two inmates hit him on the

back of his head, and when he awoke from unconsciousness, Sergeant Burkette

stomped and kicked him. AC at 7, 13. According to Ratley, on September 18th,

he showed his right shoulder and arm injuries to Ms. Troy (a library

supervisor), who immediately sent Ratley to the medical clinic where he saw

Defendant Lee, a nurse. Id. at 14-15. He states that Lee ordered x-rays and

3 The AC is the operative pleading. In considering a motion to dismiss, the

Court must accept all factual allegations in the Amended Complaint as true, consider

the allegations in the light most favorable to the plaintiff, and accept all reasonable

inferences that can be drawn from such allegations. Miljkovic v. Shafritz and Dinkin,

P.A., 791 F.3d 1291, 1297 (11th Cir. 2015) (quotations and citations omitted). As such,

the recited facts are drawn from the AC and may differ from those that ultimately

can be proved. Additionally, because this matter is before the Court on motions to

dismiss filed by Defendants Centurion, Lee, Colombani, Brenes-Catinchi, Laubaugh,

Inch, Palmer, Stewart, and Young, the Court’s recitation of the facts will focus on

Ratley’s allegations as to these Defendants.

3

gave him Ibuprofen and a 45-day restricted-activity pass. Id. at 7, 15. He

maintains that he was told it looked like a torn bicep. Id. at 15. Ratley asserts

that on September 20th, he declared a second medical emergency, and saw “the

night nurse” who contacted Lee. Id. at 16. He states that Lee authorized a Solu-

Medrol (steroid shot for pain and swelling), Ibuprofen, and Tylenol packs for

pain. Id. at 8, 16.

Ratley avers that when he sent “multiple emails” to his sister (Brandy

Parrish) about the “extreme pain,” she called the medical staff on September

22nd to ask for a “welfare check.” Id. at 16. That same day, officers escorted

him to the medical room, where Nurse Whitmore gave him Tylenol packs and

told him “to stop having his family call” because “nothing else” could be done.

Id. According to Ratley, on September 23rd, he tried to declare a medical

emergency while housed in confinement, and the confinement staff notified the

nurse who came to his cell, denied his medical emergency, and told him that

the medical staff was aware of the issue and all medical remedies had been

exhausted. Id. at 16-17. He avers that Defendant Colombani saw him on

September 24th in the medical clinic and issued more Ibuprofen and a right-

arm sling. Id. at 17; Doc. 28-1 at 4. He maintains that the medical staff denied

his requests for “stronger medication” or a transfer to an outside hospital. Id.

at 17.

4

According to Ratley, a technician took an x-ray of Ratley’s right shoulder

on September 25th, and the results showed “markedly comminuted fracture

displacement of the humeral head/neck” with “markedly displaced greater

tuberosity with oblique fracture through the proximal humerus.” Id. at 17; Doc.

28-1 at 3, Radiology Report (finding “markedly comminuted fracture

dislocation”), dated September 25, 2019. He states that the technician

informed the confinement staff to keep Ratley in a holding cell until she could

contact the medical staff for further instructions. AC at 17. He maintains that

he signed a consultation form for a transfer to the Reception and Medical

Center (RMC) where an orthopedic surgeon would consult with him. Id. at 17-

18. Ratley states that he tried to declare a medical emergency, however, he was

advised he had exhausted “all medical options” until he saw the orthopedic

surgeon. Id. at 8, 18. He asserts that when the staff returned him to general

population on September 26th, he declared a medical emergency and saw

Nurses Whitmore, Booth, and Reise who advised him that nothing else could

be done until the consultation request to see the orthopedic surgeon was

approved. Id. at 18. He avers that the nurses advised him to stop complaining

to his mother and sister and “man up” while he waited for surgery. Id. He notes

that an ROI (release of information) was on file for his mother and sister. Id.

5

Ratley maintains that the next day (September 27th), he saw Drs.

Winters and Ryan for an orthopedic consultation at RMC. Id. After two

additional x-rays, they told him he needed emergency surgery to repair the

right-shoulder damage. Id. He avers that the surgery had to be rescheduled

because “the proper surgical parts were not on site.” Id. at 18-19; Doc. 28-1 at

5 (complaining in a grievance to the FDOC Secretary about a 13-day delay and

that the surgeon did not have “enough parts” to complete the surgery, so the

FDOC returned him to HCIA’s general population). Ratley explains that he

updated his sister at visitation on September 28th, and the next day, she filed

a complaint on the FDOC website about the lack of adequate medical care. AC

at 19-20.

Next, Ratley avers that he declared another medical emergency on

September 30th, and Nurses Reise and Sturdivant saw him in the medical

clinic, and called Dr. Colombani who ordered three shots (one for pain, and two

for swelling and bruising). Id. at 20. Ratley maintains that he asked the

medical staff if he could remove his shirt, so they could see the extent of his

injury (which included a more recent injury caused by his cellmate who stepped

on Ratley’s broken arm while getting off his bunk). Id. He states that “this was

the first and only time [he] was allowed to show [his] full injury to medical

staff.” Id. He avers that the right-shoulder surgery request was upgraded from

6

urgent to emergent, and he was advised he could no longer take Ibuprofen, but

the security staff could provide Tylenol packs. Id. at 21.

According to Ratley, his sister was told on October 3rd that his surgery

was approved, and she called the medical staff on October 9th asking for a

“wellness check.” Id. at 22. He maintains that his sister emailed Palmer and

the FDOC central office, and he submitted grievances about the inadequate

medical care. Id. at 22-23. Ratley states that, on October 16th, he was seen at

sick call for an elevated pulse and high blood pressure due to the extreme pain,

and again was given Tylenol packs. Id. at 23. He states that, on October 21st,

his sister spoke to Ms. Gaylord, who advised that Ratley’s surgery was

approved. Id.

Next, Ratley asserts that, on October 23rd, the FDOC transferred him to

CFRC for surgery at the Orlando Outpatient Surgical Center. Id. at 24. He

states that the CFRC intake medical staff gave him medication to lower his

pulse. Id. According to Ratley, the FDOC transported him to the surgical center

on October 24th, however, his surgery was canceled because the elevator was

broken. Id.; Doc. 28-1 at 13. He states that the FDOC returned him to CFRC,

where he saw an “APRN and MD” who advised him that he “would be held”

there until his surgery. Id. at 24. He complains that he “was still not given any

pain medication.” Id. He asserts that H. Kirkland, a CFRC consultation

7

coordinator, informed him on October 29th that the FDOC would notify him

about rescheduling his surgery. Id. Ratley maintains that the medical staff

gave him Naproxen as a pain reliever on October 30th. Id. According to Ratley,

he went to sick call on November 1st, and a nurse told him he “would not

receive any stronger medication regardless of [his] pain level.” Id. at 24-25.

Ratley asserts that he ultimately had right-shoulder open reduction

internal fixation (ORIF) surgery on November 4th, and was returned to CFRC

where the staff released him to general population the following morning,

despite his requests to stay in the infirmary. Id. at 25. According to Ratley, he

had a follow-up visit with Valdez (a physician’s assistant) on November 12th,

was given Ibuprofen and Tylenol, and transferred to RMC on November 14th

for follow-up care. Id. He states that, on November 15th, he saw Drs. Winters

and Ryan, who removed the stitches and ordered Naproxen, “which was never

filled.” Id. at 26. He maintains that the FDOC transferred him to HCIA on

December 13, 2019, and placed him in confinement due to an Office of the

Inspector General (OIG) investigation. Id. at 27. He describes an environment

where he saw Burkette and one of the inmates who had attacked him. Id.

Ratley states that he started right-shoulder physical therapy on January 2,

2020. Id. at 29.

8

He avers that he “began to complain” about left-shoulder pain to the

physical therapist on January 10, 2020, id. at 29, saw a primary care physician

about the pain on March 12th, was given injections for pain and swelling, and

advised to do therapy in the dormitory to increase range of motion, id. at 30.

Ratley asserts that Dr. Laubaugh, an orthopedic surgeon, failed to order an x-

ray that day. Id. at 9-10. He alleges that, on April 10th, a nurse saw him in

sick call regarding bilateral shoulder pain and ordered an x-ray of the left

shoulder. Id. at 10, 30. He maintains that the x-ray showed “impacted anterior

glenohumeral joint dislocation,” for which he had left-shoulder ORIF surgery

on June 5th. Id.

According to Ratley, he had an orthopedic follow-up visit on June 19th,

and the x-ray showed “unchanged impacted anterior glenohumeral joint

dislocation,” for which the orthopedic surgeon referred him to another surgeon

for a double reversal total shoulder replacement due to a Hills-Sachs Impaction

Fracture. Id.; Doc. 28-1 at 32, Radiology Report, dated June 19, 2020. He

maintains that he saw a primary care physician about bilateral shoulder pain

on July 14th, and was given Ibuprofen. AC at 30. Ratley states that he

complained about right-shoulder pain at sick call on July 23rd, and days later,

he asked for an update about his upcoming left-shoulder surgery. Id. He avers

that he saw a primary care physician about bilateral shoulder pain on July

9

28th, and “[n]othing was done.” Id. at 31. Ratley also states that he filed

grievances and also complained about bilateral shoulder pain on August 13th

and right-shoulder pain on August 26th at his sick-call visits. Id. He avers that,

on August 31st, he complained to a primary care physician about his chronic

right-shoulder pain, and was told that surgery for his left shoulder was

approved. Id. He states that he continued to submit grievances related to his

shoulder pain. Id. at 31-34.

Next, Ratley asserts that he complained about right-shoulder pain at

sick-call visits on September 11, 17, 2020; October 2, 2020; January 26, 2021;

March 21, 2021; and May 17, 25, 26, 2021, and bilateral shoulder pain at sick-

call visits on October 10, 2020, and December 17, 2020. Id. He states that, on

September 23, 2020, he saw a primary care physician, who informed him that

the chronic right-shoulder pain was normal because of the hardware and

previous injury. Id. at 32. Ratley avers that a primary care physician ordered

pain target point injections on October 23, 2020, and an x-ray showed that the

bones had healed, and hardware appeared normal. Id. at 33. He states that he

received pain target point injections on November 6, 2020. Id. According to

Ratley, a July 19, 2021 right-shoulder x-ray showed “mild OA [osteoarthritis]

with stable postoperative changes with healed fracture.” Id. at 34.

10

Additionally, as to his left-shoulder pain, Ratley states that, on

September 15, 2020, an orthopedic surgeon at Orlando Regional Medical

Center told him that he needed a double reversal total shoulder replacement

to correct the Hill-Sachs Impaction Fracture. Id. at 32. He states that an

orthopedic surgeon performed the double reversal total left-shoulder

replacement on December 28, 2020. Id. at 33. He avers that he complained at

sick call in February 2021 about the lack of a follow-up visit with an orthopedic

surgeon. Id.

Ratley maintains that he suffered unnecessary delays related to the

provision of medical care. He states that he suffered with left-shoulder pain

from January 10, 2020 (when he first complained to a physical therapist) to

December 28, 2020, when an orthopedic surgeon performed a double reversal

total shoulder replacement. Id. at 10, 33. He specifically calculates the delay

as lasting 193 days (from June 19, 2020, when an orthopedic surgeon referred

him to another orthopedic surgeon for additional left-shoulder surgery), and

478 days (from September 16, 2019, when Burkette assaulted him). Id. at 10,

33. He also states that he suffered with right-shoulder pain from September

16, 2019, until November 4, 2019, when he had ORIF surgery. Id. at 10.

11

III. 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.

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 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

12

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

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). And, while “[p]ro se pleadings are held to a less

stringent standard than pleadings drafted by attorneys and will, therefore, be

liberally construed,” Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th

Cir. 1998), “‘this leniency does not give a court license to serve as de facto

counsel for a party, or to rewrite an otherwise deficient pleading in order to

sustain an action.’” Campbell v. Air Jamaica Ltd., 760 F.3d 1165, 1168-69 (11th

Cir. 2014) (quoting GJR Invs., Inc. v. Cnty. of Escambia, Fla., 132 F.3d 1359,

1369 (11th Cir. 1998) (citations omitted), overruled in part on other grounds as

recognized in Randall, 610 F.3d at 709).

13

IV. Summary of the Arguments

Defendants Centurion, Lee, Colombani, Brenes-Catinchi, and Laubaugh

request dismissal of Ratley’s Eighth Amendment claims against them. See

Medical Motion at 8-24. They assert that (1) Ratley’s allegations are

insufficient to state plausible medical deliberate indifference claims against

them, id. at 9-16; (2) the Eleventh Amendment bars Ratley’s claims for

monetary damages against them in their official capacities, id. at 16-17; (3)

Centurion cannot be held liable under 42 U.S.C. § 1983, id. at 17-20; (4) to the

extent Ratley intends to pursue a medical malpractice or negligence claim, he

has failed to comply with the pre-suit requirements of Florida’s Medical

Malpractice Act, id. at 20-22; and (5) Centurion is immune from suit as to any

claim of medical negligence or malpractice, id. at 22-24. Additionally,

Defendants Inch, Palmer, Stewart, and Young request dismissal of Ratley’s

Eighth Amendment claims against them. FDOC Motion at 5-13. They assert

that (1) Ratley’s allegations are insufficient to state plausible deliberate

indifference claims against them, id. at 5-12, and (2) the Eleventh Amendment

bars Ratley’s claims for monetary damages against them in their official

capacities, id. at 12. In his Responses, Ratley contends that he states plausible

Eighth Amendment claims against Defendants. See generally Response;

Response II.

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V. Discussion

A. Eighth Amendment Deliberate Indifference

Claims Against Defendants Lee, Colombani,

Brenes-Catinchi, and Laubaugh

Ratley asserts that Defendants Lee, Colombani, Brenes-Catinchi, and

Laubaugh violated his Eighth Amendment right when they were deliberately

indifferent to his serious medical needs, i.e. shoulder ailments. In his AC,

Ratley provides a detailed chronology of his medical complaints and sick-call

visits, which he initiated as a result of injuries he allegedly sustained on

September 16, 2019, when Sergeant Burkette kicked him as he awoke from

unconsciousness. Ratley also chronicles the campaign he, along with his family

members, executed to seek timely, adequate medical treatment for his injuries.

Defendants contend that their conduct does not amount to deliberate

indifference. Medical Motion at 9-16. They assert that they provided “ongoing

care,” and that Ratley’s assertions related to “the type of treatment” (providing

medications as opposed to surgeries) or “the location of any such treatment”

(within the institution as opposed to an outside medical facility) do not rise to

the level of deliberate indifference. Id. at 11.

In his Response to the Medical Motion, Ratley reasserts the allegations

he presents in his AC, and cites to exhibits that he attached to his AC. He

states that he “is not saying that no medical care was given, but that the level

15

of care given was so disproportionate to the injury and the time for the proper

treatment to be given was so far outside of any minimum level of care that i[t]

did not meet the constitutional minimum.” Response at 2-3. He maintains that

Defendants failed to provide adequate care in a timely manner when they were

aware of the seriousness of his shoulder injuries, and that the delays he

endured contributed to additional suffering. Id. at 3-20.

Pursuant to the Eighth Amendment of 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

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

Junior, 961 F.3d 1276, 1285 (11th Cir. 2020) (citing Farmer, 511 U.S. at 834);

Chandler v. Crosby, 379 F.3d 1278, 1289 (11th Cir. 2004). The Eleventh Circuit

has explained:

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Under the objective component, a prisoner must allege

a condition that is sufficiently serious to violate the

Eighth Amendment. Id.[4] 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).

Oliver v. Fuhrman, 739 F. App’x 968, 969-70 (11th Cir. 2018).5 “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, “the Supreme Court has held that prison

officials violate the bar on cruel and unusual punishments when they display

‘deliberate indifference to serious medical needs of prisoners.’” Keohane v. Fla.

4 Chandler, 379 F.3d at 1289.

5 The Court does not rely on unpublished opinions as binding precedent;

however, they may be cited in this Order when the Court finds them persuasive on a

particular point. See McNamara v. GEICO, 30 F.4th 1055, 1060-61 (11th Cir. 2022);

see generally Fed. R. App. P. 32.1; 11th Cir. R. 36–2 (“Unpublished opinions are not

considered binding precedent, but they may be cited as persuasive authority.”).

17

Dep’t of Corr. Sec’y, 952 F.3d 1257, 1265 (11th Cir. 2020) (quoting Estelle v.

Gamble, 429 U.S. 97, 104 (1976)). 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). The Eleventh Circuit has explained:

“To show that a prison official acted with

deliberate indifference to serious medical needs, a

plaintiff must satisfy both an objective and a

subjective inquiry.” Farrow v. West, 320 F.3d 1235,

1243 (11th Cir. 2003). To meet the first prong, the

plaintiff must demonstrate an “objectively serious

medical need”—i.e., “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,” and, in either

instance, “one that, if left unattended, poses a

substantial risk of serious harm.” Id. (alteration

adopted) (quotations omitted). To satisfy the

second, subjective prong, the plaintiff must prove

that the prison officials “acted with deliberate

indifference to [his serious medical] need.” Harper v.

Lawrence Cty., 592 F.3d 1227, 1234 (11th Cir. 2010)

(quotation omitted). “To establish deliberate

indifference,” a plaintiff must demonstrate that the

prison officials “(1) had subjective knowledge of a risk

of serious harm; (2) disregarded that risk; and (3)

acted with more than gross negligence.” Id. (quotation

omitted).[6] An inmate-plaintiff bears the burden to

6 The Eleventh Circuit has recognized “a tension within [its] precedent

regarding the minimum standard for culpability under the deliberate-indifference

standard.” Hoffer v. Sec’y, Fla. Dep’t of Corr., 973 F.3d 1263, 1270 n.2 (11th Cir.

18

establish both prongs. Goebert v. Lee Cty., 510 F.3d

1312, 1326 (11th Cir. 2007).

Hoffer v. Sec’y, Fla. Dep’t of Corr., 973 F.3d 1263, 1270 (11th Cir. 2020)

(footnote omitted; emphasis added). 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.’” Hoffer, 973 F.3d at 1271 (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) (stating “[g]rossly 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 fail to respond to a known

medical problem).

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

by the 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

2021). The court stated that the “competing articulations –‘gross’ vs. ‘mere’

negligence”– may be “a distinction without a difference” because “no matter how

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

meet the Supreme Court’s standard.” Id.; Patel v. Lanier Cnty. Ga., 969 F.3d 1173,

1188 n.10 (11th Cir. 2020).

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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, 654 F.3d at

1176 (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 liability under the Eighth

Amendment.” Adams v. Poag, 61 F.3d 1537, 1545 (11th Cir. 1995) (citation

omitted). In sum, the Eleventh Circuit has stated:

A prisoner bringing a deliberate-indifference

claim has a steep hill to climb. We have held, for

instance, that the Constitution doesn't require that

the medical care provided to prisoners be “perfect, the

best obtainable, or even very good.” Harris, 941 F.2d

at 1510 (quotation omitted).[ 7 ] Rather, “[m]edical

treatment violates the [E]ighth [A]mendment only

7 Harris v. Thigpen, 941 F.2d 1495 (11th Cir. 1991).

20

when it is so grossly incompetent, inadequate, or

excessive as to shock the conscience or to be intolerable

to fundamental fairness.” Id. at 1505 (quotation

omitted). We have also emphasized—as have our

sister circuits—that “a simple difference in medical

opinion between the prison’s medical staff and the

inmate as to the latter’s diagnosis or course of

treatment [fails to] support a claim of cruel and

unusual punishment.” Id.; accord, e.g., Lamb v.

Norwood, 899 F.3d 1159, 1162 (10th Cir. 2018) (“We

have consistently held that prison officials do not act

with deliberate indifference when they provide

medical treatment even if it is subpar or different from

what the inmate wants.”); Kosilek v. Spencer, 774 F.3d

63, 82 (1st Cir. 2014) (en banc) (“[The Eighth

Amendment] does not impose upon prison

administrators a duty to provide care that is ideal, or

of the prisoner's choosing.”).

Keohane, 952 F.3d at 1266.

Despite this high threshold, the Eleventh Circuit has recognized that,

even when a prisoner receives some medical care, a plaintiff can state 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). Viewing the allegations in the

AC in the light most favorable to Ratley, he describes an environment where

the medical attention he received from Defendants was disproportionate to the

severity of the injuries, and that he endured unnecessary delays that

21

ultimately worsened his medical conditions. See generally AC. Accepting the

allegations in the AC as true, as the Court must, and drawing all reasonable

inferences in Ratley’s favor, his well-pled assertions nudge his Eighth

Amendment claims “across the line from conceivable to plausible.” Twombly,

550 U.S. at 570. Thus, his assertions relating to Defendants Lee, Colombani,

Brenes-Catinchi, and Laubaugh’s provision of medical care state plausible

Eighth Amendment deliberate indifference claims against them. As such, the

Medical Motion is due to be denied as to Ratley’s Eighth Amendment

deliberate indifference claims against these Defendants.

B. Eleventh Amendment Immunity

Defendants Lee, Colombani, Brenes-Catinchi, Laubaugh, Inch, Palmer,

Stewart, and Young assert that, to the extent they are sued in their official

capacities for monetary damages, they are entitled to Eleventh Amendment

immunity. See FDOC Motion at 12; Medical Motion at 16-17. The Eleventh

Amendment provides that “[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. It is well-settled that,

in the absence of consent, “a suit in which the State or one of its agencies or

departments is named as the defendant is proscribed by the Eleventh

22

Amendment.” Papasan v. Allain, 478 U.S. 265, 276 (1986) (quotation omitted).

The Eleventh Amendment also prohibits suits against state officials where the

state is the real party in interest, such that a plaintiff could not sue to have a

state officer pay funds directly from the state treasury for the wrongful acts of

the state. Summit Med. Assocs., P.C. v. Pryor, 180 F.3d 1326, 1336 (11th Cir.

1999).

In Zatler v. Wainwright, 802 F.2d 397, 400 (11th Cir. 1986) (per curiam),

the Eleventh Circuit noted:

It is clear that Congress did not intend to

abrogate a state’s eleventh amendment immunity in

section 1983 damage suits. Quern v. Jordan, 440 U.S.

332, 340-45, 99 S.Ct. 1139, 1144-45, 59 L.Ed.2d 358

(1979). Furthermore, after reviewing specific

provisions of the Florida statutes, we recently

concluded that Florida’s limited waiver of sovereign

immunity was not intended to encompass section

1983 suits for damages. See Gamble,[8] 779 F.2d at

1513-20.

Accordingly, in Zatler, the court found that the FDOC Secretary was immune

from suit in his official capacity. Id. Thus, insofar as Ratley may be seeking

monetary damages from Defendants in their official capacities, the Eleventh

Amendment bars suit. Therefore, the Motions are due to be granted to the

8 Gamble v. Fla. Dep’t of Health & Rehab. Serv., 779 F.2d 1509 (11th Cir.

1986).

23

extent that Ratley requests monetary damages from Defendants in their

official capacities.9

C. Eighth Amendment Claims Against

Defendants Inch, Palmer, Stewart, and Young

In the AC, Ratley asserts that Defendants Inch, Palmer, Stewart, and

Young violated his Eighth Amendment right when he (along with his sister)

notified Defendants about his health and safety concerns, and they failed to

remedy the ongoing mistreatment. See generally AC. Defendants contend that

Ratley fails to state plausible Eighth Amendment claims against them. See

generally FDOC Motion. In his Response, Ratley maintains that Defendants

were well aware of the mistreatment he endured stemming from Burkette’s

assault and the denial of medical care. See generally Response II.

As to supervisory liability, the Eleventh Circuit has stated:

Supervisory officials are not vicariously liable under

section 1983 for the unconstitutional acts of their

subordinates. Hartley v. Parnell, 193 F.3d 1263, 1269

(11th Cir. 1999). Plaintiff[] must instead allege that

the supervisor, through his own actions, violated the

Constitution. Ashcroft v. Iqbal, 556 U.S. 662, 676, 129

S.Ct. 1937, 173 L.Ed.2d 868 (2009).

Ingram v. Kubik, 30 F.4th 1241, 1254 (11th Cir. 2022). A prisoner must assert

9 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).

24

facts showing either that a supervisor personally participated in the alleged

constitutional violation or that there is a causal connection between the actions

of the supervising official and the alleged constitutional deprivation to state a

claim against a supervising official. Hartley v. Parnell, 193 F.3d 1263, 1269

(11th Cir. 1999); Gaffney v. Warden, Taylor Corr. Inst., No. 20-13572, 2022 WL

18381, at *5 (11th Cir. Jan. 3, 2022) (per curiam) (stating supervisory liability

“only occurs when the supervisor personally participates in the alleged

unconstitutional conduct or when there is a causal connection between the

actions of a supervising official and the alleged constitutional deprivation.”).

The Court finds that Ratley alleges sufficient facts suggesting that

Defendants were personally involved in, or otherwise causally connected to,

the alleged violations of his federal statutory or constitutional rights. See AC

at 8-9, 21-23, 26-27; see generally Doc. 28-1. As such, the FDOC Motion is due

to be denied as to Ratley’s Eighth Amendment claims against Defendants Inch,

Palmer, Young, and Stewart.

D. Eighth Amendment Claim Against Centurion

In the AC, Ratley asserts that Centurion, as the “medical services

provider” that contracted with the FDOC, failed in its supervisory capacity to

remedy the ongoing mistreatment and violated state law. AC at 7-10.

Defendant Centurion maintains that Ratley fails to allege that Centurion had

25

a custom, policy, or practice that was the moving force behind a federal

constitutional violation. Medical Motion at 19-20. In his Response, Ratley

elaborates, stating that Centurion had a cost-savings plan that included delays

and alternative treatment plans. Response at 9, 13, 18.

Centurion provides medical services to inmates within the state of

Florida pursuant to a contract with the FDOC. 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 Cnty., 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

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

26

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 Cnty., Ga., 335

F.3d 1326, 1329 (11th Cir. 2003) (en banc)); see Denno v. Sch. Bd. Of Volusia

Cnty., 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 Cnty., 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

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

27

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

28

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 Cnty. Comm’rs of Bryan Cnty.,

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, Ratley

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

29

moving force behind Defendants Lee, Colombani, Brenes-Catinchi, and

Laubaugh’s alleged federal constitutional violations.

In the AC, Ratley states that Centurion contracted with the FDOC to

provide healthcare within the prison system. AC at 7. He asserts that

Defendants Lee, Colombani, Brenes-Catinchi, and Laubaugh “violated

protocol” and the code of ethics when they failed to provide timely medical care.

Id. at 7-10. However, Ratley has alleged no facts showing that Centurion itself

violated his federal constitutional rights or caused a violation of his

constitutional rights. Stated another way, Ratley has asserted no facts showing

that a policy, custom, or practice of Centurion was the moving force behind any

violation of his federal constitutional rights. Rather, Ratley provides a detailed

factual chronology about how individual medical providers, such as Lee,

Colombani, Brenes-Catinchi, and Laubaugh, willfully disregarded “established

medical protocol” for what Ratley describes as injuries that needed urgent

attention. Id. at 10. This is insufficient to state a claim against Centurion. As

such, the Medical Motion is due to be granted to the extent that Ratley’s Eighth

Amendment claim against Centurion will be dismissed.10

10 The Court need not address Centurion’s assertion of sovereign immunity.

See Medical Motion at 22-24.

30

E. Florida’s Pre-Suit Requirements

for a Medical Malpractice Claim

In the AC, Ratley also asserts that Defendants violated his Eighth

Amendment right to be free from cruel and unusual punishment. AC at 4.

Defendants Lee, Colombani, Brenes-Catinchi, and Laubaugh contend that, to

the extent Ratley is attempting to bring medical malpractice claims against

them, the claims are barred because he failed to comply with Florida’s pre-suit

requirements. Medical Motion at 20-22. They urge the Court to dismiss the

medical malpractice and/or negligence claims with prejudice. Id. at 21-22. In

his Response, Ratley states that “he was unaware of Florida’s Medical

Malpractice Act and is now aware that failure to file a Notice of Intent ‘is fatal

to a malpractice claim.’” Response at 20 (citation omitted). He asserts that he

“is now aware that he is no longer allowed to pursue any state tort remedies

but wishes to continue to fight the ongoing constitutional violations he has

endured at the hands of the defendant[]s.” Id.

The Eleventh Circuit has persuasively stated:

Florida law requires that[,] before filing any

claim for personal injury or wrongful death arising

from medical malpractice, the claimant conduct an

investigation of the claim and send the defendant(s) a

notice of intent to sue, along with a corroborating

opinion by a medical expert. Fla. Stat. § 766.203(2)

(2005). Attorneys must file with the claim a certificate

of counsel, verifying that they have conducted a

31

reasonable investigation and that there is a basis for a

good faith belief that medical negligence occurred. Fla.

Stat. § 766.104 (2005). The Florida Supreme Court has

made clear that these requirements are prerequisites

to suit, but not jurisdictional. Kukral v. Mekras, 679

So.2d 278, 283 (Fla. 1996). . . .

Florida law mandates the dismissal of a claim for

medical malpractice when the pre-suit requirements

have not been fulfilled. Fla. Stat. § 766.206(2) (2005).

Johnson v. McNeil, 278 F. App’x 866, 871-72 (11th Cir. 2008).

Florida’s statutory pre-suit investigation process requires a claimant to

conduct a reasonable investigation to determine whether there are “grounds

for a good faith belief that there has been negligence in the care or treatment

of the claimant.” Fla. Stat. § 766.104(1); see Fla. Stat. § 766.203(2); Weaver v.

Myers, 229 So.3d 1118, 1121 (Fla. 2017) (“[B]efore filing a medical negligence

action in Florida, a claimant must satisfy statutory requirements, which

include conducting a presuit investigation process to ascertain whether there

are reasonable grounds to believe that the defendant medical provider was

negligent, and that the negligence resulted in injury to the claimant.”). The

claimant must corroborate his claim of medical negligence with a verified

written medical expert opinion, which must be furnished to each potential

defendant with the notice of intent to initiate litigation. Fla. Stat. § 766.203(2).

In accordance with Florida law, to the extent Ratley intends to bring a medical

32

malpractice claim against any Defendant, he was required to comply with the

mandatory pre-suit requirements set forth in Chapter 766. Because he has not

done so, the Medical Motion is due to be granted as to Ratley’s medical

malpractice claims. Thus, Ratley’s claims will be dismissed without prejudice,

and he may refile his state law claims in state court if the applicable law

supports his ability to do so.11

In consideration of the foregoing, it is now

ORDERED:

1. Defendants Inch, Palmer, Stewart, and Young’s Motion to Dismiss

(Doc. 56) is GRANTED in part as to Ratley’s claims for monetary damages

against Defendants in their official capacities. Otherwise, the Motion is

DENIED.

2. Defendants Centurion, Lee, Colombani, Brenes-Catinchi, and

Laubaugh’s Motion to Dismiss (Doc. 57) is GRANTED in part as to Ratley’s

(1) claims for monetary damages against Defendants Lee, Colombani, Brenes-

Catinchi, and Laubaugh in their official capacities; (2) Eighth Amendment

11 The statute of limitations for a medical malpractice claim is two years, see

Fla. Stat. § 95.11(4)(b), while the statute of limitations for a negligence claim is four

years, see Fla. Stat. § 95.11(3)(a). The Court expresses no opinion as to whether a

state-law claim for medical malpractice or negligence would be barred by the

applicable statute of limitations.

33

claim against Centurion; and (3) medical malpractice claims against Lee,

Colombani, Brenes-Catinchi, and Laubaugh because Ratley failed to comply

with Florida’s pre-suit requirements. Otherwise, the Motion is DENIED.

3. Defendants Dixon, '? Palmer, Stewart, Young, Lee, Colombani,

Brenes-Catinchi, and Laubaugh shall respond to the Amended Complaint no

later than July 20, 2022. Upon the filing of Defendants’ Answers, the Court,

by separate Order, will set deadlines for discovery and the filing of dispositive

motions.

4, The Court directs the Clerk to terminate Centurion as a

Defendant in the case, and make the appropriate entries on the docket to

reflect the substitution of Ricky D. Dixon for Mark Inch, and the proper

spelling of Dr. L. Colombani’s surname.

DONE AND ORDERED at Jacksonville, Florida, this 21st day of

June, 2022.

MARCIA MORALES HOWARD

United States District Judge

12 Ratley sues Mark Inch in his official capacity as Secretary of the Florida

Department of Corrections (FDOC), a position he no longer holds. Ricky D. Dixon is

the current Secretary of the FDOC. Therefore, pursuant to Rule 25(d)(1) of the

Federal Rules of Civil Procedure, Ricky D. Dixon is substituted as the proper party

Defendant as the FDOC Secretary with respect to the official-capacity claim.

34

Jax-1 5/31

c:

Michael Steven Ratley, FDOC #J39737

Counsel of Record

35