# Greene v. Dixon

> District Court, M.D. Florida · September 22, 2022

URL: https://www.frixlaw.com/law-library/cases/10111069

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** September 22, 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/10111069

## How later opinions describe it (automated extraction)

- holding that § 1983 applies to municipalities but liability arises only when a “municipal policy of some nature cause[s] a constitutional tort”
- 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

## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10111069. Public record. Not legal advice.