Thorne v. Cheatham

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

OCALA DIVISION

ANTOWAN THORNE,

Plaintiff,

v. Case No. 5:21-cv-321-BJD-PRL

R.C. CHEATHAM, et al.,

Defendants.

______________________________

ORDER

I. Status

Plaintiff, Antowan Thorne, is a federal inmate proceeding on a third

amended complaint against four federal officials under Bivens v. Six Unknown

Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971)1 (Doc. 13; Am.

Compl.). Defendants collectively move to dismiss the complaint (Doc. 29; Def.

Mot.). Plaintiff opposes the motion (Doc. 31; Pl. Resp.).

II. Motion to Dismiss Standard

A defendant may move to dismiss a complaint for a plaintiff’s “failure to

state a claim upon which relief may be granted.” Fed. R. Civ. P. 12(b)(6). In

1 In Bivens, the Supreme Court recognized an implied right of action for

damages against a federal agent who, acting under “color of his authority,”

violated the plaintiff’s Fourth Amendment right to be free from unreasonable

searches and seizures. 403 U.S. at 389, 397.

ruling on such a motion, the court must accept the plaintiff’s allegations as

true, liberally construing those by a plaintiff proceeding pro se, but need not

accept as true legal conclusions. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

Though detailed factual allegations are not required, Rule 8(a) demands “more

than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Id. A

plaintiff should allege enough facts “to raise a reasonable expectation that

discovery will reveal evidence” supporting the plaintiff’s claims. Bell Atl. Corp.

v. Twombly, 550 U.S. 544, 556 (2007).

III. Complaint Allegations

Plaintiff’s claims arise out of an injury he sustained at USP Coleman I

in November 2018. See Am. Compl. at 4. He sues Warden R.C. Cheatham, Dr.

M. Tidwell, Nurse B. Jackson, and Captain R. Dunbar for an alleged Eighth

Amendment violation. Id. at 2-4. Plaintiff alleges he injured his right hand

when he fell playing handball, and because he did not receive proper

treatment, his hand, which turned out to be broken, “heal[ed] in a malunited

position.” Id. at 4-5. Plaintiff alleges a hand specialist recommended surgery

on July 8, 2019, but the recommendation was not approved. Id. at 5, 12.

According to Plaintiff, the lack of proper treatment caused permanent damage

to his hand, including nerve damage, arthritis, numbness, and muscle damage.

Id. at 12.

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Plaintiff explains Warden Cheatham did not authorize or approve

surgery as recommended by the specialist and did not “discipline staff to do

what was needed [to treat his] injury”; Dr. Tidwell failed to follow up on the

hand specialist’s surgical recommendation and failed to order a brace or cast

and proper pain medication; Nurse Jackson ignored Plaintiff’s multiple

requests for additional treatment; and Captain Dunbar failed to discipline staff

or “tak[e] charge” when Plaintiff complained of pain for up to five months. Id.

at 12-13.

IV. Analysis

Defendants move to dismiss the complaint on the following grounds:

Plaintiff failed to exhaust his administrative remedies; they are entitled to

qualified immunity; and any supervisory or official-capacity claims are not

cognizable under Bivens. Def. Mot. at 1-2. In response, Plaintiff says he did

exhaust his administrative remedies, and he clarifies or reiterates the facts

supporting his claims against each Defendant. See Pl. Resp. at 2-5.

A. Exhaustion

The Prison Litigation Reform Act (PLRA) provides, “[n]o action shall be

brought with respect to prison conditions . . . until such administrative

remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). Exhaustion of

available administrative remedies is “a precondition to an adjudication on the

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merits.” Bryant v. Rich, 530 F.3d 1368, 1374 (11th Cir. 2008). See also Jones v.

Bock, 549 U.S. 199, 211 (2007). While “the PLRA exhaustion requirement is

not jurisdictional[,]” Woodford v. Ngo, 548 U.S. 81, 101 (2006), “exhaustion is

mandatory . . . and unexhausted claims cannot be brought,” Pavao v. Sims, 679

F. App’x 819, 823 (11th Cir. 2017)2 (per curiam) (citing Jones, 549 U.S. at 211).

“[F]ederal prisoners suing under Bivens . . . must first exhaust inmate

grievance procedures just as state prisoners” suing under § 1983 must do.

Porter v. Nussle, 534 U.S. 516, 524 (2002); see also O’Brien v. Seay, 263 F. App’x

5, 8 (11th Cir. 2008) (recognizing the PLRA exhaustion requirement applies to

Bivens claims).

“[T]he PLRA . . . requires proper exhaustion,” which means a prisoner

must grieve his issues in compliance with the agency’s procedural rules, so the

agency has a “full and fair opportunity” to address a prisoner’s issues on the

merits. Woodford, 548 U.S. at 90, 93. To properly exhaust administrative

remedies, a federal prisoner must complete a multi-tiered system as set forth

in the Bureau of Prison’s Administrative Remedy Program (ARP). See 28

C.F.R. §§ 542.10, 542.13-542.15; see also Okpala v. Drew, 248 F. App’x 72, 73

n.2 (11th Cir. 2007) (citing Alexander v. Hawk, 159 F.3d 1321, 1324 (11th Cir.

2 Any unpublished decisions cited in this Order are deemed persuasive on the

relevant point of law. See McNamara v. Gov’t Emps. Ins. Co., 30 F.4th 1055,

1061 (11th Cir. 2022).

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1998)). First, with some exceptions, a prisoner must attempt an “informal

resolution” by presenting an issue of concern to prison staff. 28 C.F.R. § 542.13.

Next, a prisoner must seek relief from the warden by timely submitting an

administrative remedy request using form BP-9. 28 C.F.R. § 542.14(a). Then,

if an inmate is unsatisfied with the warden’s response, he must timely submit

an appeal to the regional director using form BP-10. 28 C.F.R. § 542.15(a).

Finally, a prisoner must timely submit an appeal to the general counsel using

form BP-11. Id.

When confronted with an exhaustion defense, courts in the Eleventh

Circuit employ a two-step process:

First, district courts look to the factual allegations in

the motion to dismiss and those in the prisoner’s

response and accept the prisoner’s view of the facts as

true. . . . Second, if dismissal is not warranted on the

prisoner’s view of the facts, the court makes specific

findings to resolve disputes of fact, and should dismiss

if, based on those findings, defendants have shown a

failure to exhaust.

Whatley v. Warden, Ware State Prison, 802 F.3d 1205, 1209 (11th Cir. 2015)

(internal citations omitted) (citing Turner v. Burnside, 541 F.3d 1077, 1082-83

(11th Cir. 2008)). Because failure to exhaust is an affirmative defense, the

defendant bears the burden. Turner, 541 F.3d at 1082.

Under the first step of the Turner analysis, the Court must accept as true

that Plaintiff exhausted his administrative remedies, as he asserts in his

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complaint, see Am. Compl. at 7, and response, see Pl. Resp. at 2. See Turner,

541 F.3d at 1082-83. At the second step of the Turner analysis, the Court need

not resolve factual disputes because there are none. Defendants concede

Plaintiff timely and properly complied with the ARP. See Def. Mot. at 3-4, 7-

8.3 They argue, however, that the grievances Plaintiff filed were insufficient to

exhaust the claims he raises in this case because he initiated the ARP before

the surgical recommendation was made, and “the focus of [his administrative]

remedy was to seek follow-up to the December 2018 x-rays.” Id. at 7-8. They

maintain that, to properly exhaust, Plaintiff had to have filed an

administrative remedy specifically about the delay in scheduling the surgery

once the surgical recommendation had been made. Id.

Defendants’ argument is not well-taken. The PLRA does not mandate a

certain level of specificity in prison grievance forms; rather, the applicable

prison grievance procedure “define[s] the boundaries of proper exhaustion.” See

Jones, 549 U.S. at 218 (“Compliance with prison grievance procedures . . . is all

that is required by the PLRA to ‘properly exhaust.’”). According to the

grievance records, Plaintiff complained generally about treatment (or lack

thereof) for his hand injury. See Doc. 1 at 10, 12. Plaintiff, therefore, alerted

3 With his original complaint, Plaintiff included a copy of his grievances and

responses. See Doc. 1 at 10-15. The responses show his grievances at each level

were addressed on the merits. Id. at 11, 13, 15.

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prison officials that he was displeased with the level of care he was receiving,

affording them a chance to address and resolve his complaint before he

initiated a civil rights action. See Whatley, 802 F.3d at 1208 (“The purpose of

the PLRA’s exhaustion requirement is to ‘afford corrections officials time and

opportunity to address complaints internally before allowing the initiation of

a federal case’.”). As such, Defendants do not carry their burden to demonstrate

a failure to properly exhaust, and their motion is due to be denied as to that

argument.

B. Qualified Immunity

Defendants invoke qualified immunity, contending Plaintiff does not

allege a deliberate indifference claim against any of them. Def. Mot. at 11-12.

Prison officials sued in their individual capacities are “entitled to qualified

immunity for [their] discretionary actions unless [they] violated ‘clearly

established statutory or constitutional rights of which a reasonable person

would have known.’” Black v. Wigington, 811 F.3d 1259, 1266 (11th Cir. 2016)

(quoting Case v. Eslinger, 555 F.3d 1317, 1325 (11th Cir. 2009)). Qualified

immunity allows officers to exercise their official duties without fear of facing

personal liability. Alcocer v. Mills, 906 F.3d 944, 951 (11th Cir. 2018). The

doctrine protects all but the plainly incompetent or those who knowingly

violate an inmate’s constitutional rights. Id.

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Upon asserting a qualified immunity defense, a defendant bears the

initial burden to demonstrate he was acting in his discretionary authority at

the relevant times. Dukes v. Deaton, 852 F.3d 1035, 1041-42 (11th Cir. 2017).

After that, the burden shifts to the plaintiff to point to allegations that,

accepted as true, permit the inference the defendant violated a clearly

established constitutional right. Plaintiff does not contest that Defendants

were acting within their discretionary duties at the relevant times. But he

asserts in his response that he properly alleges each Defendant was

deliberately indifferent to his serious medical needs. Pl. Resp. at 2-5.

To state a deliberate-indifference claim, a plaintiff first must allege he

had “an objectively serious medical need.” Brown v. Johnson, 387 F.3d 1344,

1351 (11th Cir. 2004).4 “To qualify as a serious medical need, an injury or

condition, if not treated, must create a substantial risk of serious harm.”

Hinson v. Bias, 927 F.3d 1103, 1122 (11th Cir. 2019) (quoting in part Taylor v.

Hughes, 920 F.3d 729, 733 (11th Cir. 2019)). Next, the plaintiff must “allege

that the prison official, at a minimum, acted with a state of mind that

constituted deliberate indifference.” Richardson v. Johnson, 598 F.3d 734, 737

(11th Cir. 2010). Finally, the plaintiff must allege facts showing a causal

4 Generally, when a plaintiff has a viable Bivens claim, a court will apply case

law interpreting 42 U.S.C. § 1983. See, e.g., Solliday v. Fed. Officers, 413 F.

App’x 206, 209 (11th Cir. 2011).

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connection between the defendant’s conduct and his injury. 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).

“A core principle of Eighth Amendment jurisprudence in the area of

medical care is that prison officials with knowledge of the need for care may

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

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

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

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

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

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

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

[he] want[ed].” Id. In other words, “‘deliberate indifference’ entails more than

mere negligence.”5 Farrow, 320 F.3d at 1245. As such, a complaint that a

5 The Eleventh Circuit has been inconsistent in its articulation of the standard

of culpability. For instance, some cases describe this element as requiring a

showing of more than “mere negligence,” Melton v. Abston, 841 F.3d 1207, 1223

n.2 (11th Cir. 2016), abrogated on other grounds by Twombly, 550 U.S. 544;

Farrow v. West, 320 F.3d 1235, 1245 (11th Cir. 2003); McElligott, 182 F.3d at

1255, while others describe this element as requiring a showing of more than

“gross negligence,” Goodman v. Kimbrough, 718 F.3d 1325, 1332 (11th Cir.

2013); Townsend v. Jefferson Cnty., 601 F.3d 1152, 1158 (11th Cir. 2010);

Goebert v. Lee Cnty., 510 F.3d 1312, 1327 (11th Cir. 2007). The court

acknowledged this “tension within [its] precedent,” noting as follows: “These

competing articulations—‘gross’ vs. ‘mere’ negligence—may well represent a

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medical provider negligently diagnosed or treated an injury “does not state a

valid claim of medical mistreatment under the Eighth Amendment.” Estelle,

429 U.S. at 106, 107 (holding a prisoner failed to state a plausible claim where

he alleged merely that more should have been done to diagnose his back injury

and treat his pain). See also Hamm v. DeKalb Cnty., 774 F.2d 1567, 1575 (11th

Cir. 1985) (“[F]ederal courts are generally reluctant to second guess medical

judgments and to constitutionalize claims that sound in tort law.”).

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

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

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

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

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

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

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

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

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

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

distinction without a difference because . . . the Supreme Court itself has

likened the deliberate-indifference standard to ‘subjective recklessness as used

in the criminal law.’” Hoffer v. Sec’y, Fla. Dep’t of Corr., 973 F.3d 1263, 1271

n.2 (11th Cir. 2020) (emphasis in original). See also Patel v. Lanier Cnty., Ga.,

969 F.3d 1173, 1188 n.10 (11th Cir. 2020).

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Even if a plaintiff alleges a medical provider or corrections officer had

been deliberately indifferent to his serious medical needs, he must allege more

to state a plausible claim against the employee’s supervisor if the supervisor

did not personally participate in the alleged violation. That is because a

supervisor may not be held liable under Bivens on a theory of vicarious

liability. Ziglar v. Abbasi, 137 S. Ct. 1843, 1860 (2017) (“[A] Bivens claim is

brought against the individual official for his or her own acts, not the acts of

others.”). See also 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).

Defendants do not dispute that Plaintiff’s hand injury constituted a

“serious medical need.” See Def. Mot. at 10-11. Rather, they argue Plaintiff

fails to allege they acted with deliberate indifference. Id. at 11. Because a

deliberate-indifference claim has a state-of-mind component, “[e]ach individual

[d]efendant must be judged separately and on the basis of what that person

knows.” Burnette v. Taylor, 533 F.3d 1325, 1331 (11th Cir. 2008). “[I]mputed

or collective knowledge cannot serve as the basis for a claim of deliberate

indifference.” Id. Similarly, “each defendant is entitled to an independent

qualified-immunity analysis as it relates to his or her actions and omissions.”

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Alcocer, 906 F.3d at 951 (quoting Zatler v. Wainwright, 802 F.2d 397, 401 (11th

Cir. 1986) (per curiam)).

i. Dr. Tidwell

Plaintiff alleges Dr. Tidwell failed to “follow up on the hand specialist

report . . . for surgery . . . caus[ing] delay.” Am. Compl. at 12. He also asserts

Dr. Tidwell did not prescribe anything to help prevent permanent damage or

ease his pain, such as a brace/cast and “proper pain medication.” Id. Despite

the Court having directed Plaintiff to amend his claims to clearly describe how

each named Defendant was responsible for a constitutional violation, see Order

(Doc. 7), the facts in the operative complaint are rather minimal. With his

original complaint (Doc. 1), however, Plaintiff provided some medical and

grievance records, which provide a bit more detail, at least as to the timeline

of Plaintiff’s injury and Dr. Tidwell’s involvement in his treatment.

Generally, a court should not consider extrinsic evidence when ruling on

a motion to dismiss unless a document “is central to the plaintiff’s claim” and

incorporated by reference in the complaint. Brooks v. Blue Cross & Blue Shield

of Fla., Inc., 116 F.3d 1364, 1368-69 (11th Cir. 1997) (“[T]he analysis of a

12(b)(6) motion is limited primarily to the face of the complaint and

attachments thereto.”). The records Plaintiff provides certainly are central to

his claims, and Defendants do not contest their authenticity. In fact, they

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reference some of the records in their motion to dismiss. Def. Mot. at 3, 11. The

closer question, however, is whether the records were incorporated by

reference given the original complaint was superseded by the filing of the

operative pleading, with which the records were not provided. Although

Plaintiff did not include a copy of the records with his third amended

complaint, he references a specific administrative remedy in both his operative

complaint and response, see Am. Compl. at 5, 7, 12; Pl. Resp. at 1-2, but a copy

of that administrative remedy appears on the docket only with the original

complaint, see Doc. 1 at 10.

Given Plaintiff himself relies upon records he filed with his original

complaint, the records are relevant to the claims, and no party disputes their

authenticity, the Court will consider them. See Day v. Taylor, 400 F.3d 1272,

1276 (11th Cir. 2005) (holding a court may consider extrinsic evidence when

ruling on a 12(b)(6) motion without converting it into a Rule 56 motion if the

evidence “is (1) central to the plaintiff’s claim and (2) undisputed”).

Much of Plaintiff’s medical care is summarized in grievance records,

including responses. According to those records, Plaintiff had an x-ray shortly

after his injury, which “showed no broken, fractured or dislocated bones.” Doc.

1 at 11, 13. Plaintiff returned to the clinic on December 4, 2018, because he

still had pain. Id. at 13. The medical provider (unnamed) found Plaintiff had

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full range of motion in his hand. Id. at 18. Plaintiff was given an Ace wrap and

told to apply warm compresses, purchase over-the-counter pain medications,

and return if needed. Id. at 13, 18. As of January 8, 2019, Plaintiff had not

purchased Motrin at the commissary. Id. at 18. Plaintiff failed to show for a

follow-up appointment on January 16, 2019. Id. at 11. Plaintiff submitted

grievances on January 29, 2019, and March 18, 2019, questioning the negative

results of the November x-ray because his bone was sticking out and his hand

remained swollen. Doc. 1 at 10, 12.6

Plaintiff also provides some medical records. On May 16, 2019, Dr.

Tidwell evaluated him. Id. at 19. Dr. Tidwell ordered x-rays for a suspected

“possible dislocation or ligamental damage to the saddle joint [of the right

thumb].” Id. Dr. Tidwell prescribed ice and Motrin for pain and referred

Plaintiff to a hand surgeon. Id. As to the surgical consultation, Dr. Tidwell

noted, “[P]lease try to schedule early.” Id.

Plaintiff was seen at a hand center on July 8, 2019. Id. at 20. The surgeon

recommended surgery for “reconstruction and stabilization of the [right]

thumb CMCJ [carpometacarpal joint].” Id. It appears Dr. Tidwell knew of the

surgical request because the medical note indicates Dr. Tidwell was required

6 Plaintiff submitted a third grievance form (an appeal), but it is illegible. Doc.

1 at 14.

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to “cosign” the order. Id. at 21. The next medical record Plaintiff provides is

dated April 15, 2020, when he returned to the hand center for a follow-up. Id.

at 23. Dr. Cynthia Harding noted Plaintiff was to be scheduled for right thumb

surgery “once authorized by Coleman facility.” Id. There is nothing in the

record indicating why surgery had not yet been scheduled or whether a

particular official at Coleman had denied the request. See id. The medical

record is confusing because it says that Plaintiff “elected surgery” but also that

Plaintiff “elected conservative treatment, and does not yet want surgery.” Id.

Dr. Harding gave Plaintiff an injection. Id.

Liberally construing his allegations, Plaintiff does not allege Dr. Tidwell,

whom it appears treated Plaintiff only one time, provided care that was “so

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

be intolerable to fundamental fairness.” See Harris, 941 F.2d at 1505.

Importantly, Plaintiff does not fault Dr. Tidwell for the initial misdiagnosis,

which caused his thumb to heal in a malunited position. Even if Dr. Tidwell

were responsible for an alleged misdiagnosis, however, such conduct

constitutes medical negligence, not deliberate indifference. See Estelle, 429

U.S. at 106. If anything, Plaintiff’s own records show Dr. Tidwell was the

opposite of indifferent to Plaintiff’s injury: Dr. Tidwell ordered additional x-

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rays and referred Plaintiff to a surgeon for an appointment to be scheduled as

soon as possible. See Doc. 1 at 19.

To the extent Plaintiff wanted stronger pain medication or a splint/cast

while awaiting the surgical consult, he alleges at most a difference in medical

opinion, which is not actionable as an Eighth Amendment violation. See, e.g.,

Estelle, 429 U.S. at 106-07. Moreover, while Plaintiff faults Dr. Tidwell for not

doing more, Plaintiff does not allege he complained to Dr. Tidwell that

conservative measures, including over-the-counter pain medications, were not

effective, and that, with such knowledge, Dr. Tidwell ignored him or refused to

further evaluate him. See Am. Compl. at 5, 12.

It is clear from the records that surgery was recommended on July 8,

2019, but it either was not approved or not scheduled. See Doc. 1 at 20, 24-25.

However, Plaintiff does not allege Dr. Tidwell was responsible or, if he were

responsible, that the failure to schedule surgery was anything more than an

oversight. See id. For instance, he does not allege Dr. Tidwell told him he (Dr.

Tidwell) would not approve surgery. In fact, it appears from the records

Plaintiff himself provides that Dr. Tidwell wanted Plaintiff to have surgery

given Dr. Tidwell referred Plaintiff to the surgeon and noted in the referral

that an appointment should be scheduled as soon as possible. Id. at 19.

Moreover, by the time Plaintiff treated with Dr. Tidwell and the surgeon, his

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hand had already healed improperly, meaning any delay attributable to Dr.

Tidwell did not cause the injury of which Plaintiff complains. Id. at 19-20.

Because Plaintiff fails to state a plausible claim against Dr. Tidwell,

Defendants’ motion is due to be granted in part to the extent that Dr. Tidwell

is entitled to qualified immunity.

ii. Nurse Jackson

Plaintiff alleges he complained to Nurse Jackson “on more than one

occasion” that he still had pain and swelling even though the initial x-ray was

negative, but Nurse Jackson provided no care or ignored him. Am. Compl. at

12; Pl. Resp. at 3. In his response, Plaintiff explains he continued going to

“medical for the same complaint . . . and [Nurse Jackson] . . . [would] call other

inmates to be seen but not [him].” Pl. Resp. at 4. Accepting these allegations

as true, Plaintiff does enough to state a plausible deliberate indifference claim

against Nurse Jackson. See, e.g., McElligott, 182 F.3d at 1257 (“[P]rison

officials with knowledge of the need for care may not, by failing to provide care

. . . cause a prisoner to needlessly suffer the pain resulting from his or her

illness.”). Accordingly, Defendants’ motion is due to be denied in part as to

Nurse Jackson’s invocation of qualified immunity.

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iii. Defendants Cheatham & Dunbar

It appears Plaintiff proceeds against both Warden Cheatham and

Captain Dunbar because they are supervisors; neither is a medical provider.

Plaintiff alleges Warden Cheatham did not authorize or approve hand surgery

as requested by the surgeon. See Am. Compl. at 12. He says Warden Cheatham

had knowledge of the surgical request through a grievance he filed. Id. But the

grievance Plaintiff references—administrative remedy #966047-F1—was

dated January 29, 2019, before Plaintiff had even seen the surgeon. Id. To the

extent Plaintiff contends Warden Cheatham should have “discipline[d] staff to

do what was needed [to address his] injury,” see Am. Compl. at 12, such

allegations suggest a claim based on a theory of vicarious liability, which is not

actionable under Bivens. See Ziglar, 137 S. Ct. at 1860.

Even more, Warden Cheatham’s response to Plaintiff’s administrative

remedy suggests he (the Warden) had no knowledge that Plaintiff required

more or better treatment. See Doc. 1 at 11. On the contrary, Warden Cheatham

learned that Plaintiff had been seen by a medical provider who advised

Plaintiff to take over-the-counter pain medications because x-ray results were

negative, and Plaintiff failed to show for a follow-up appointment. Id. As a non-

medical provider responding to a medical grievance, Warden Cheatham was

permitted to rely on the medical provider’s expertise under the circumstances.

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See Williams v. Limestone Cnty., Ala., 198 F. App’x 893, 897 (11th Cir. 2006)

(“[S]upervisory officials are entitled to rely on medical judgments made by

medical professionals responsible for prisoner care.” (citing Durmer v.

O’Carroll, 991 F.2d 64, 69 (3d Cir. 1993); White v. Farrier, 849 F.2d 322, 327

(8th Cir. 1988))).

Similar to his allegations against Warden Cheatham, Plaintiff alleges

Captain Dunbar knew about his hand injury but failed to ensure he “was

receiving adequate medical care” by “disciplin[ing] staff and taking charge.”

Am. Compl. at 13. See also Pl. Resp. at 4-5. Such allegations suggest Plaintiff

proceeds against Defendant Dunbar solely on a theory of vicarious liability.

Plaintiff does not allege Captain Dunbar personally participated in a

constitutional violation. For instance, he does not allege Captain Dunbar

blocked his access to sick-call. See Am. Compl. at 12-13.

For the stated reasons, Plaintiff fails to state a plausible deliberate-

indifference claim against Warden Cheatham and Captain Dunbar, and those

Defendants, therefore, are entitled to qualified immunity.

Accordingly, it is now

ORDERED:

1. Defendants’ motion to dismiss (Doc. 29) is GRANTED in part and

DENIED in part. The motion is GRANTED to the extent Defendants

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Tidwell, Cheatham, and Dunbar are entitled to qualified immunity and the

claims against them are dismissed with prejudice. The motion is otherwise

DENIED.

2. The Clerk shall terminate Defendants Tidwell, Cheatham, and

Dunbar as parties to this action.

3. Defendant Jackson shall file an answer to Plaintiff's third

amended complaint (Doc. 18) within twenty days of the date of this Order.

DONE AND ORDERED at Jacksonville, Florida, this 31st day of

October 2022.

4 YQ -

[Stim l),

BRIAN/J . DAVIS

United States District Judge

Jax-6

Cc: Antowan Thorne

Counsel of Record

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