Greene v. Dixon

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

KEVIN L. GREENE,

Plaintiff,

v. Case No. 3:22-cv-799-BJD-PDB

RICKY D. DIXON, et al.,

Defendants.

_______________________________

ORDER

Plaintiff, Kevin L. Greene, an inmate of the Florida penal system, is

proceeding through counsel who is specially appearing on Greene’s behalf (Doc.

7). On July 22, 2022, Greene filed a complaint for the violation of civil rights

(Doc. 1; Compl.), and then moved to proceed in forma pauperis (Doc. 5), which

the Court granted (Doc. 8). Because Greene is proceeding as a pauper, the

Court has an obligation under the Prison Litigation Reform Act (PLRA) to

screen his complaint. See 28 U.S.C. § 1915(e)(2)(B). The relevant provision

provides, “[a] court shall dismiss [a] case at any time if the court determines

that . . . the action . . . fails to state a claim on which relief may be granted.”

Id.

Since the PLRA’s “failure-to-state-a-claim” language mirrors the

language of Rule 12(b)(6) of the Federal Rules of Civil Procedure, courts apply

the same standard. Mitchell v. Farcass, 112 F.3d 1483, 1490 (11th Cir. 1997).

See also Alba v. Montford, 517 F.3d 1249, 1252 (11th Cir. 2008). “To survive a

motion to dismiss, a complaint must contain sufficient factual matter, accepted

as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal,

556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570

(2007)). “Labels and conclusions” or “a formulaic recitation of the elements of

a cause of action” that amount to “naked assertions” will not suffice. Id.

(quoting Twombly, 550 U.S. at 555).

In his complaint, Greene complains about medical treatment he received

while in the custody of the Florida Department of Corrections (FDOC) for a

skin condition. See Compl. ¶¶ 1-3. He names three Defendants: Ricky Dixon,

in his official capacity as the Secretary of the FDOC; Centurion of Florida, LLC,

the medical services company under contract with the FDOC to provide

treatment for inmates; and Kathryn Leveen, an APRN (advanced practice

registered nurse). Id. ¶¶ 9-11. Greene acknowledges he received treatment at

two correctional institutions—the Reception and Medical Center (RMC), where

Defendant Nurse Leveen works, and Desoto Annex Correctional Institution

(Desoto)—and he chronicles that treatment in his complaint. See generally id.

Greene explains he was seen by a provider either at RMC or Desoto on

an unknown date in July 2021 (at Desoto); an unknown date in August 2021

(at Desoto); October 15, 2021 (at RMC by Nurse Leveen, who diagnosed

Eczema and prescribed medications/lotions); November 19, 2021 (at RMC by

Nurse Leveen, who ordered a biopsy); November 23, 2021 (biopsy at RMC);

December 9, 2021 (at Desoto); an unknown date in December 2021 (at Desoto);

January 12, 2022 (at RMC by Nurse Leveen, who sent photos to a

dermatologist and diagnosed Scabies);1 January 17, 2022 (at RMC by Nurse

Leveen, who changed one of Greene’s prescriptions); an unknown date in

February 2022 (at RMC by Nurse Leveen, who prescribed a cream that was

contraindicated for patients with glaucoma, an illness Greene has); and an

unknown date in February 2022 (at RMC by Nurse Leveen, who prescribed

medications (Clobetasol and Triamcinolone) based on a new suspected

diagnosis (Neurodermatitis) and said she would consider a referral to a

dermatologist “if the medication did not work”). Id. ¶¶ 14-15, 18, 20-21, 25, 29,

31, 36-37, 40.

Greene alleges the medications Nurse Leveen last prescribed (Clobetasol

and Triamcinolone) were unavailable when he went to the “Keep on Person”

window on March 1, 2022. Id. ¶ 41. He was told “no prescription had been

written.” Id. Greene does not allege if or when he received the medications, but

1 Greene alleges Nurse Leveen sent photos to a dermatologist on January 12, 2022,

but he does not say whether he treated with Nurse Leveen on that day. See Compl. ¶

29. At about that time, he also was under the care of another APRN named Stump.

He filed a grievance on January 14, 2022, complaining that he had not received a

medication Nurse Stump had ordered for him. Id. ¶ 30.

it appears he ultimately did. He alleges that on April 22, 2022, he wrote a

grievance complaining about his medical care, noting that “if [Nurse] Leveen

did not write [him] a referral to a dermatologist . . . he would move forward

with litigation.” Id. ¶ 46. He does not allege he also complained that he still

had not received his medications. Id.

Greene alleges he has been “erroneously diagnosed more than seven (7)

times,” and none of the prescriptions have resolved his skin condition. Id. ¶ 48.

He raises these claims: deliberate indifference to serious medical needs under

42 U.S.C. § 1983 and 42 U.S.C. § 19882 (counts one and two), id. ¶¶ 49-50; and

intentional or negligent infliction of emotional distress (count three), id. ¶ 51.

He seeks declaratory and injunctive relief as well as damages. Id. (pp. 14-15).

To state a claim under 42 U.S.C. § 1983, a plaintiff must allege that a

person acting under the color of state law deprived him of a right secured under

the United States Constitution or federal law. 42 U.S.C. § 1983. A claim for

deliberate indifference to a serious illness or injury is cognizable under § 1983.

Estelle v. Gamble, 429 U.S. 97, 104 (1976). See also 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

2 Section 1988 is purely procedural; “[it] does not create an independent cause of

action for deprivation of constitutional rights.” McLaughlin v. City of LaGrange, 662

F.2d 1385, 1388 n.1 (11th Cir. 1981).

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 medical provider demonstrates

deliberate indifference, for example, when he or she knows an inmate needs

medical care but intentionally refuses to provide that care. Ancata v. Prison

Health Servs., Inc., 769 F.2d 700, 704 (11th Cir. 1985).

However, “[when] a prisoner has received ... medical attention and the

dispute is over the adequacy of the treatment, federal courts are generally

reluctant to second guess medical judgments and to constitutionalize claims

that sound in tort law.” Hamm v. DeKalb Cnty., 774 F.2d 1567, 1575 (11th Cir.

1985) (quoting Westlake v. Lucas, 537 F.2d 857, 860 n.5 (1st Cir. 1981) (second

alteration in original)). See also Adams v. Poag, 61 F.3d 1537, 1545 (11th Cir.

1995) (“[W]hether 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.”).

To state a deliberate indifference claim under the Eighth Amendment, a

plaintiff must do more than allege the care he received was “subpar or different

from what [he] want[ed].” Keohane v. Fla. Dep’t of Corr. Sec’y, 952 F.3d 1257,

1277 (11th Cir. 2020). For instance, negligent misdiagnosis is not actionable as

deliberate indifference. Estelle, 429 U.S. at 105-06 (“[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.”). The Eleventh Circuit has identified limited circumstances in

which a prisoner may demonstrate deliberate indifference when he has

received some medical treatment: when the treatment is “so grossly

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

intolerable to fundamental fairness”; when a provider takes an easier and less

efficacious course of treatment”; or when the treatment “is so cursory as to

amount to no treatment at all.” Adams, 61 F.3d at 1544. Additionally, delaying

necessary medical care can amount to deliberate indifference, but “the reason

for the delay and the nature of the medical need is relevant in determining

what type of delay is constitutionally intolerable.” McElligott v. Foley, 182 F.3d

1248, 1255 (11th Cir. 1999).

Even if a plaintiff were to allege a medical provider had been deliberately

indifferent to his serious medical needs, he may not necessarily proceed on a

separate claim against the medical provider’s supervisor or employer. That is

because liability under § 1983 may not be based on a theory of vicarious

liability. Cottone v. Jenne, 326 F.3d 1352, 1360 (11th Cir. 2003), abrogated in

part on other grounds by Randall v. Scott, 610 F.3d 701 (11th Cir. 2010). In

other words, § 1983 liability must be based on something more than “the mere

fact that [a supervisor or municipality] employed [an] offending official.” City

of Oklahoma City v. Tuttle, 471 U.S. 808, 810 (1985). A claim against a

supervisor may proceed only “when the supervisor personally participates in

the alleged constitutional violation or when there is a causal connection

between actions of the supervising official and the alleged constitutional

deprivation.” Brown v. Crawford, 906 F.2d 667, 671 (11th Cir. 1990). A causal

connection can be established when a supervisor knows a subordinate will act

unlawfully or adopts a policy that results in deliberate indifference to an

inmate’s constitutional rights. Id. See also Cottone, 326 F.3d at 1360.

The Eleventh Circuit has noted, “[t]he standard by which a supervisor is

held liable in [his] individual capacity for the actions of a subordinate is

extremely rigorous.” Henley v. Payne, 945 F.3d 1320, 1331 (11th Cir. 2019)

(quoting Braddy v. Fla. Dep’t of Lab. Emp’t Sec., 133 F.3d 797, 802 (11th Cir.

1998) (first alteration in original)). Similarly, to proceed against a

municipality, including a private company under contract with a

municipality,3 a plaintiff must allege the existence of a “custom or policy that

constituted deliberate indifference to [a] constitutional right” and that caused

a constitutional violation. Moody v. City of Delray Beach, 609 F. App’x 966, 967

3 “[W]hen 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 [§] 1983.”

Craig v. Floyd Cnty., Ga., 643 F.3d 1306, 1310 (11th Cir. 2011) (quoting with second

alteration Buckner v. Toro, 116 F.3d 450, 452 (11th Cir. 1997)).

(11th Cir. 2015) (citing McDowell v. Brown, 392 F.3d 1283, 1290 (11th Cir.

2004)). See also Monell v. N.Y. City Dep’t of Soc. Servs., 436 U.S. 658, 691 (1978)

(holding that § 1983 applies to municipalities but liability arises only when a

“municipal policy of some nature cause[s] a constitutional tort”).

When proceeding on an unlawful-policy theory, a plaintiff must “point[]

to multiple incidents or multiple reports of prior misconduct by a particular

employee,” Ingram v. Kubik, 30 F.4th 1241, 1254 (11th Cir. 2022), because a

“municipal policy must be ‘the moving force of the constitutional violation,’”

Tuttle, 471 U.S. at 820. Thus, a plaintiff’s reference to a “single incident of a

constitutional violation is insufficient to [allege] a policy or custom even when

the incident involves several employees.” Craig, 643 F.3d at 1311; Ingram, 30

F.4th at 1254. See also Weiland v. Palm Beach Cnty. Sheriff’s Off., 792 F.3d

1313, 1329-30 (11th Cir. 2015) (holding the plaintiff’s claim against the

sheriff’s office was properly dismissed because the claim arose out of the

plaintiff’s own experiences; he did not allege a pattern of similar, prior

violations).

Moreover, conclusory allegations of a policy or custom will not suffice.

See Iqbal, 556 U.S. at 679 (“While legal conclusions can provide the framework

of a complaint, they must be supported by factual allegations.”). A plaintiff

must do more than use certain “buzzwords,” such as “policy” or “custom” to

state a plausible claim for relief against a supervisor or municipality. See, e.g.,

Doe v. Univ. of Ala. in Huntsville, 177 F. Supp. 3d 1380, 1398 (N.D. Ala. 2016)

(“Merely mouthing the buzzwords like ‘pattern and practice’ (or, as in this case

‘policies and practices’) in a complaint does not satisfy minimum pleading

requirements because it represents a legal conclusion, and such conclusory

labels are not credited for Rule 12(b)(6) purposes.”).

Greene’s complaint is subject to dismissal under the PLRA because he

fails to state a plausible claim for relief under § 1983. See Iqbal, 556 U.S. at

678. First, Greene fails to state a deliberate indifference claim against Nurse

Leveen. He does not allege Nurse Leveen failed to provide care for him or

ignored a serious medical need. On the contrary, he chronicles months of care

Nurse Leveen (and others) provided for his skin condition and faults her for

misdiagnosis, minor delays in prescribing medications, or prescribing a

medication contraindicated for patients with glaucoma.4 These allegations

suggest negligence, not deliberate indifference. See Estelle, 429 U.S. at 107.

The last time Greene allegedly treated with Nurse Leveen, in February

2022, she agreed that he was not suffering from Eczema or Scabies but

Neurodermatitis, and she prescribed new medications. See Compl. ¶ 40. Before

that, Nurse Leveen ordered a biopsy and, when initial treatments proved

4 Greene does not allege he suffered any adverse consequences or sustained an injury

by being prescribed a medication he should not have been taking because of his

glaucoma. In fact, he alleges he knew the medication prescribed was contraindicated

for him, so he “discarded [it] without use.” See Compl. ¶ 37.

ineffective, she consulted a dermatologist to whom she sent pictures of

Greene’s skin. Id. ¶¶ 20, 29. Accepting as true Greene’s allegations, he does

not allege facts permitting the reasonable inference that Nurse Leveen

provided medical care “so grossly incompetent, inadequate, or excessive as to

shock the conscience or to be intolerable to fundamental fairness.” See Harris

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

Nor does Greene allege facts suggesting Nurse Leveen provided care so

cursory as to amount to no treatment at all. As summarized, Greene received

extensive treatment at two correctional institutions. See Compl. ¶¶ 13-15, 22-

26. He even recognizes this, alleging he received “numerous diagnoses and

treatments.” Id. ¶ 3. When Greene was housed at RMC, Nurse Leveen

evaluated him and prescribed medications (including lotions) for his skin

condition. Id. ¶¶ 18, 20, 29, 31, 40. She also ordered a biopsy, consulted a

dermatologist, and adjusted medications when they proved ineffective. Id. ¶¶

21, 29, 31.

Greene’s sole complaint about his medical care appears to be that he has

not been referred “to a dermatologist for a more definitive specialized diagnosis

and treatment.” Id. ¶ 3. Indeed, the injunctive relief he seeks is to be referred

to a dermatologist and for the prison medical providers to “abide by the

dermatologist’s recommendation(s).” Id. (p. 14). As a prisoner, Greene is not

entitled to a provider of his choice or to mandate a particular course of

treatment. See Harris, 941 F.2d at 1505 (“[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 [does not] support a claim [for deliberate

indifference].”). That Nurse Leveen chose not to refer Greene to a

dermatologist (at least not as of February 2022) does not mean she is or has

been deliberately indifferent to his skin condition. In short, Greene does not

allege facts permitting the reasonable inference that Nurse Leveen was

deliberately indifferent to his serious medical needs.5

Because Greene fails to state a plausible claim against Nurse Leveen,

his claims against Centurion and the FDOC (Secretary Inch)6 necessarily fail.

See Mann v. Taser Intern., Inc., 588 F.3d 1291, 1308 (11th Cir. 2009 (citing

Hicks v. Moore, 422 F.3d 1246, 1253 (11th Cir. 2005)). In any case, however,

Greene’s allegation that Centurion and the FDOC had a “policy and practice of

refusing to refer [Greene] to a dermatologist” to reduce costs, see Compl. ¶¶ 2,

4, fails to state a plausible claim under the rigorous supervisory liability

standard. Not only are Greene’s allegations conclusory, but his “policy”

allegations relate solely to the medical care he received (or did not receive) for

5 For purposes of its PLRA review, the Court accepts without deciding that Greene’s

skin condition constitutes a serious medical need.

6 “[O]fficial-capacity suits generally represent only another way of pleading an action

against an entity of which an officer is an agent.” Monell, 436 U.S. at 690 n.55.

over about eight or nine months; he does not allege there were “multiple

incidents or multiple reports of prior misconduct” involving Nurse Leveen or

other medical providers under circumstances like those he experienced. See

Ingram, 30 F.4th at 1254.

With the dismissal of Greene’s federal claims, the Court declines to

exercise supplemental jurisdiction over Greene’s state-law claim for

intentional or negligent infliction of emotional distress. See 28 U.S.C. §

1367(c)(3). See also Baggett v. First Nat’l Bank of Gainesville, 117 F.3d 1342,

1353 (11th Cir. 1997) (“State courts, not federal courts, should be the final

arbiters of state law.”). Thus, the Court will dismiss Greene’s complaint

without prejudice subject to his right to file an amended complaint if he so

chooses.

Accordingly, it is

ORDERED:

1. Plaintiff’s complaint (Doc. 1) is DISMISSED without prejudice.

2. If Plaintiff wants to proceed, he must submit an amended

complaint by October 12, 2022.

3. If Plaintiff does not submit an amended complaint by October 12,

2022, this action will be dismissed without prejudice.

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

September 2022.

fo ‘Cimene ( | » OA

BRIAN, DAVIS

United States District Judge

Jax-6

C: Counsel of Record

13