Murray v. Carlton

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

OCALA DIVISION

AARON MICHAEL MURRAY,

Plaintiff,

v. Case No. 5:21-cv-424-KKM-PRL

E.K. CARLTON, et al.,

Defendants.

ORDER

Plaintiff Aaron Murray brings claims for First Amendment retaliation and Eighth

Amendment deliberate indifference under Bivens v. Six Unknown Agents of the Federal

Bureau of Narcotics, 403 U.S. 388 (1971). (Doc. 1). In his complaint, Murray names seven

Defendants: the former warden of his correctional institution, three medical providers, a

unit counselor, and two unknown corrections officers each identified as John/Jane Doe.

(Doc. 1 at 2-3, 12-14.)' The named Defendants move to dismiss the First Amendment

retaliation claims against Warden Carlton and Unit Counselor Michelle Cortopassi and

the Eighth Amendment deliberate indifference claim against Warden Carlton. (Id.) The

' Despite the Court informing Murry “it is his responsibility to determine the identity” of the Doe

Defendants (Doc. 6), he has yet to do so.

medical providers do not seek dismissal of the claims against them and have not filed an

answer. Murray opposes the partial motion to dismiss. (Doc. 29.)

Because the Court declines to extend Bivens to this context, the Court dismisses the

First Amendment retaliation claims. And because Murray fails to state a plausible

deliberate indifference claim against Warden Carlton, the Court dismisses the Eighth

Amendment claim against him. The Court also sua sponte dismisses the deliberate

indifference claims against the two Doe Defendants.

I. FACTUAL BACKGROUND

Murray, a federal inmate housed at Coleman Correctional Institution (Medium),

alleges Warden Carlton and three medical providers—Jeannette Miranda, Linda Criswell,

and Dr. Li—were deliberately indifferent to his serious medical needs, and Warden

Carlton and Unit Counselor Cortopassi retaliated against him. (Doc. 1 at 3, 15-16, 38.)

Murray alleges that he began experiencing abdominal pain on March 8, 2019. (Id. at 17.)

After multiple, unsuccessful trips to the sick-call unit, Murray was transferred to a hospital

on March 16, 2019, where he was diagnosed with gallstones and told “he would need

surgery in the very near future.” (Id. at 17-22.) The emergency room physician said Murray

should take Hydrocodone until his surgery, but when Murray returned to the prison,

Miranda prescribed only a three-day supply of the pain medication. (Id. at 22.)

Surgery was not immediately scheduled, but Miranda, Criswell, and Dr. Li denied

Murray’s requests for more pain medication, even though his pain caused a rise in blood

pressure, potentially exacerbating his heart condition. (Id. at 23, 25, 27.) Miranda and

Criswell prescribed blood pressure medication and over-the-counter pain killers, but

Murray reported to them and others that the medications did not help and that his pain

had worsened. (Id. at 23-25.)

Murray treated with a gastroenterologist on May 16, 2019, after spending two

months in “excruciating pain without proper pain medication.” (Id. at 28.) The specialist

recommended immediate surgery. (Id. at 28-29.) Despite the recommendation, Murray

did not have surgery for nearly seven months—on December 18, 2019. (Id. at 31.) Between

May 16, 2019, and December 18, 2019, Murray received no prescription pain medication.

(Id.) Murray alleges he lived with “excruciating pain” for nine months and, during all but

five days of that nine months, Miranda and Criswell prescribed only over-the-counter

medications, which were ineffective, and Dr. Li ignored his pleas for “effective pain

management medication” and for surgery to be scheduled sooner. (Id. at 25.)

Murray alleges he wrote a grievance to Warden Carlton on August 29, 2019,

reporting that “medical staff [was] deliberately indifferent to his serious medical needs and

... acting unlawfully.” (Id. at 29.) Warden Carlton did not respond, so Murray sent an

electronic request to Warden Carlton on September 19, 2019. (Id. at 30.) Warden Carlton

responded to the electronic request but did not address “any of [Murray’s] concerns.” (Id.)

Murray names Cortopassi as a Defendant because, “as the Unit Counselor,”

Cortopassi was “[Murray’s] only avenue to the Bureau of Prison’s [(BOP’s)] administrative

remedy process,” and, in that role, Cortopassi “was subjectively motivated to discipline

[Murray] for exercising his First Amendment rights.” (Id. at 16.) Murray states Cortopassi

retaliated against him “in multiple ways,” such as by “refus[ing] to allow him to continue

his administrative remedy” process, possibly neglecting to return his BP-10 packet, and by

failing to give Murray copies of responses to his grievance appeals. (Id. at 16, 30, 32-33.)

II. ANALYSIS

A. Motion to Dismiss Standard

To survive a motion to dismiss for failure to state a claim, a plaintiff must plead

sufficient facts to state a claim that is “plausible on its face.” Ashcroft v. Iqbal, 556 U.S.

662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 554, 570 (2007)). A claim

is plausible on its face when a plaintiff “pleads factual content that allows the court to draw

the reasonable inference that the defendant is liable for the misconduct alleged.” Id. When

considering the motion, the court accepts all factual allegations of the complaint as true

and construes them in the light most favorable to the plaintiff. Pielage v. McConnell, 516

F.3d 1282, 1284 (11th Cir. 2008). This tenet, of course, is “inapplicable to legal

conclusions.” Iqbal, 556 U.S. at 678. “While legal conclusions can provide the framework

of a complaint, they must be supported by factual allegations.” Id. at 679. Courts should

limit their “consideration to the well-pleaded factual allegations, documents central to or

referenced in the complaint, and matters judicially noticed.” La Grasta v. First Union Sec.,

Inc., 358 F.3d 840, 845 (11th Cir. 2004).

B. First Amendment Retaliation Under Bivens

A Bivens claim is an implied right of action for damages under the Constitution

against a federal officer in his individual capacity who violates an individual’s constitutional

rights. See Corr. Serv. Corp. v. Malesko, 534 U.S. 61, 66 (2001). The Supreme Court has

created a Bivens remedy in only three circumstances: the Fourth Amendment (the

circumstance arising in Bivens itself); the Due Process Clause of the Fifth Amendment for

gender discrimination claims, Davis v. Passman, 442 U.S. 228 (1979); and the Eighth

Amendment’s Cruel and Unusual Punishment Clause for deliberate indifference claims,

Carlson v. Green, 446 U.S. 14 (1980). See Ziglar v. Abbasi, 137 S. Ct. 1843, 1854-55

(2017) (explaining the three narrow circumstances in which the Court has recognized “an

implied damages remedy under the Constitution itself”). Despite the continued vitality of

Bivens and its progeny, the Supreme Court has “changed course” and not recognized new

implied damages remedies under the Constitution in decades. Hernandez v. Mesa, 140 S.

Ct. 735, 741 (2020) (quoting Ziglar, 137 S. Ct. at 1855). And the Court has instructed

lower courts to exercise “caution before extending Bivens remedies into any new context.”

Ziglar, 137 S. Ct. at 1857. Ifa claim “presents a new Bivens context,” or one that “difflers]

in a meaningful way from previous Bivens cases,” a court should consider whether “special

factors” counsel hesitation before extending a damages remedy. Id. at 1859. See also

Hernandez, 140 S. Ct. at 743.

Defendants argue Plaintiffs First Amendment claims should be dismissed because

his claims differ “in a meaningful way from previous Bivens cases decided by [the Supreme

Court],” and special factors counsel against extending a damages remedy here. (Doc. 24 at

9, 12.) Murray argues the opposite. (See generally Doc. 29.)

The Court need not engage in the Ziglar two-step analysis here because “there is

no Bivens action for First Amendment retaliation.” Egbert v. Boule, 142 S. Ct. 1793,

1807 (2022). Recently, the Supreme Court reversed the judgment of an appellate court,

which had extended a Bivens remedy to a plaintiffs retaliation claim against a Border Patrol

agent, reasoning that “the Judiciary is ill equipped” to extend a damages remedy for an

alleged constitutional violation by a federal employee, “especially... when it comes to First

Amendment claims.” Id. at 1800, 1802, 1808-09. As it had done before, the Court stressed,

all but the most unusual circumstances, prescribing a cause of action is a job for

Congress, not the courts.” [d. at 1800.

As a result, Egbert forecloses Murray’s First Amendment retaliation claims against

Warden Carlton and Unit Counselor Cortopassi, which must be dismissed as not

cognizable under Bivens. See id. at 1807.

C. Deliberate Indifference

To state a Bivens claim for deliberate indifference to a serious medical need, a

plaintiff must allege an objectively serious medical need and that a prison official acted with

“deliberate indifference” to that serious medical need. See Estelle v. Gamble, 429 U.S. 97,

104-105 (1976). A serious medical need is “one that has been diagnosed by a physician as

mandating treatment or one that is so obvious that even a lay person would easily recognize

the necessity for a doctor’s attention.” Mann v. Taser Int’, Inc., 588 F.3d 1291, 1307 (11th

Cir. 2009) (quoting Hill v. Dekalb Reg’! Youth Det. Ctr., 40 F.3d 1176, 1187 (11th Cir.

1994)). To demonstrate deliberate indifference, a plaintiff must show the following:

“(1) subjective knowledge of a risk of serious harm; (2) disregard of that risk; (3) by conduct

that is more than [gross] negligence.” Goebert v. Lee Cnty., 510 F.3d 1312, 1327 (11th

Cir. 2007) (alteration in original). See also Hoffer v. Sec’y, Fla. Dep’t of Corr., 973 F.3d

1263, 1270 (11th Cir. 2020) (same); Burnette v. Taylor, 533 F.3d 1325, 1330 (11th Cir.

2008) (same).?

2 The Eleventh Circuit has not always articulated the third clement consistently—the standard of

culpability. For instance, some cases describe this element as requiring a showing of more than “mere

negligence,” Melton v. Abston, $41 F.3d 1207, 1223 n.2 (11th Cir. 2016), abrogated on other grounds by

“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). This is so

because “[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)). Simply put, “mere

misdiagnosis or subpar care, even if it rises to the level of medical malpractice, does not

constitute deliberate indifference.” Simmons v. Fla. Dep’t of Corr., No. 5:14-cv-438-Oc-

39PRL, 2015 WL 3454274, at *10 (M.D. Fla. May 29, 2015). Further, “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) (quotations omitted).

Twombly, 550 U.S. 544; Farrow v. West, 320 F.3d 1235, 1245 (11th Cir. 2003); McElligott v. Foley, 182

F.3d 1248, 1255 (11th Cir. 1999), while others describe this element as requiring a showing of more than

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, 510 F.3d at 1327. That court has acknowledged

this “tension within [its] precedent,” noting that “[t]hese competing articulations—‘gross’ vs. ‘mere’

negligence—may well represent a 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,

973 F.3d at 1271 n.2 (citing Farmer v. Brennan, 511 U.S. 825, 839-40 (1994)); see also Patel v. Lanier

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

A defendant who holds a supervisory position may not be held liable under Bivens

simply because a correctional institution staff member violated an inmate’s constitutional

rights. Ziglar, 137 S. Ct. at 1860 (“[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) (“It is well established in this Circuit that supervisory officials

are not liable . . . for the unconstitutional acts of their subordinates on the basis of

respondeat superior or vicarious liability.”). However, if a plaintiff alleges that a supervisory

official himself was deliberately indifferent, a Bivens claim may proceed against the

supervisor. Greason v. Kemp, 891 F.2d 829, 836 (11th Cir. 1990).

Defendants do not dispute that Murray alleges he had a serious medical need. (See

Doc. 24 at 16.) Rather, they argue Murray fails to state a plausible deliberate indifference

claim against Warden Carlton because he is proceeding against Warden Carlton solely on

a theory of vicarious liability. (Id. at 15.) Specifically, they note Warden Carlton did not

participate in Murray’s medical care, and Murray’s allegation that he informed Warden

Carlton his medical needs were not being met is insufficient to establish that Warden

Carlton personally participated in a constitutional violation. (Id. at 15-16.) Murray

disagrees, explaining “he specifically informed Warden Carlton that he was in serious pain”

and was being denied pain medication against the advice of an emergency room doctor, yet

Warden Carlton took no action. (Doc. 29 at 28-30.)

In his complaint, Murray alleges he complained to Warden Carlton in a grievance

that he was dissatisfied with the prison medical staff, but Warden Carlton did not respond

at first and, when Warden Carlton did respond, Murray found it insufficient. (Doc. 1 at

29.) Accepting these allegations as true, Murray fails to allege a plausible deliberate

indifference claim against Warden Carlton, a non-medical provider. A failure to respond

to an inmate’s grievance or a failure to “answer” an inmate’s concerns to the inmate’s

satisfaction cannot “fairly be characterized as reckless.” See Patel, 969 F.3d at 1188 n.10

(emphasis in original). At most, such conduct suggests “inadvertence or error in good

faith.” See Stone, 785 F. App’x at 769.

Murray says in his response that he told Warden Carlton both in writing and in

person that medical providers had been ignoring his serious pain, that his surgery was

supposed to have been scheduled immediately but was not, that he had been denied pain

medication, and that his heart condition was at risk of worsening, yet Warden Carlton

“ignored each and every request.” (Doc. 29 at 30-31.) Even if such facts, accepted as true,

would be sufficient to state a plausible claim against Warden Carlton, Murray does not

state these allegations in his complaint. “New allegations made in the response to

the motion to dismiss cannot ‘save’ an insufficiently pleaded complaint from dismissal.”

Osan v. Verizon Fla. LLC, No. 8:15-cv-104-T-36TGW, 2015 WL 13749752, at *3

(M.D. Fla. Sept. 1, 2015).

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As such, Murray’s deliberate indifference claim against Warden Carlton must be

dismissed as not plausible.

D. Claims Against Doe Defendants

Under 28 U.S.C. § 1915A(a), federal courts must conduct an initial screening of

civil suits brought by prisoners seeking redress from a governmental entity or its employee

to determine whether they should proceed. Upon review, a court is required to dismiss a

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

relief, or seeks monetary relief against a defendant who is immune from such relief. See 28

U.S.C. § 1915A(b); see also 28 U.S.C. § 1915(e)(2)(B) (“Notwithstanding any filing fee,

or any portion thereof, that may have been paid, the court shall dismiss the case at any time

if the court determines that... the action. . . is frivolous or malicious . . . [or] fails to state

a claim on which relief may be granted” (internal numbering omitted)). A complaint is

frivolous if it is without arguable merit either in law or in fact. Neitzke v. Williams, 490

U.S. 319, 325 (1989). Dismissals for failure to state a claim are governed by Federal Rule

of Civil Procedure 12(b)(6). See Mitchell v. Farcass, 112 F.3d 1483, 1490 (11th Cir. 1997)

(“The language of section 1915(e)(2)(B)(ii) tracks the language of Fed. R. Civ. P.

12(b)(6).”).

Under the above standards, Murray’s claims against the two Doe Defendants, who

have not yet been identified or served, cannot survive. Murray alleges both Doe Defendants

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worked in the sick-call unit at the relevant times, but he does not identify them as medical

providers. (Doc. 1 at 17-19.) Murray encountered the Doe Defendants on different days

when his abdominal pain first started but before he was diagnosed with an illness

necessitating surgery. (Id.) On March 11, 2019, Murray went to sick call complaining

about “abdominal pain and swelling of the abdominal region.” (Id. at 17.) After Murray

completed a sick-call request, Doe Defendant #1 told Murray to return to his housing unit

and that he would be called back later in the day. Id.) Murray alleges “he was never called

back.” (Id.)

Murray returned the following day, March 12, 2019, and filled out another sick-call

request. (Id. at 17-18.) Doe Defendant #1 again told Murray to return to his housing unit

and that he would be called back later in the day. (Id. at 18.) Again, though, Murray was

not called back. (Id.) On March 13, 2019, Murray notified a correctional officer (CO) that

he was in severe pain and needed to be seen in sick call. (Id.) The CO sent Murray to sick

call, where he encountered Doe Defendant #2, who told him sick call was closed and he

would have to return the next day. (Id.) Murray alleges he told Doe Defendant #2 his pain

was so severe that he would go to the emergency room if he had not been incarcerated, yet

Doe Defendant #2 “told [Murray], without examining him, that his condition was not an

emergency” and that he should drink water and take aspirin. (Id. at 19.) Murray says Doe

Defendant #2 was not qualified to assess his medical condition or decide whether his

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condition warranted immediate treatment. (Id.) Additionally, Murray alleges Doe

Defendant #2 told Murray he should not have complained about his medical condition to

a CO. (Id. at 18.) Murray asserts no other allegations against the Doe Defendants. (See

generally id.)

The deliberate indifference standard requires a plaintiff to allege facts that make it

plausible that the defendant knew of a serious risk of harm but disregarded that risk by

conduct that is more than gross negligence. See Townsend, 601 F.3d at 1158. The

Eleventh Circuit has routinely underscored that this standard “is far more onerous than

normal tort-based standards of conduct sounding in negligence, and is in fact akin to

subjective recklessness as used in the criminal law.” Hoffer, 973 F.3d at 1271 (quotations

omitted); see also Patel, 969 F.3d at 1188 n.10 (“[N]o matter how serious the negligence,

conduct that can’t fairly be characterized as reckless won't meet the Supreme Court’s

standard.” (emphasis in original)). In the prison context, “[m]edical treatment violates the

[Eighth [A]mendment only when it is 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) (quotations omitted). Stated another way, a

complaint that a medical provider has been negligent “in diagnosing or treating a medical

condition does not state a valid claim of medical mistreatment under the Eighth

13

Amendment.” Bingham v. Thomas, 654 F.3d 1171, 1176 (11th Cir. 2011) (quoting

Estelle, 429 U.S. at 106).

Murray fails to allege facts to support an Eighth Amendment claim against the Doe

Defendants. As to Doe Defendant #1, Murray merely alleges the unknown staff member

instructed him to return to his housing unit until someone in the sick-call unit could

evaluate him. (Doc. 1 at 17.) Murray contends he was not “called back,” but he does not

say Doe Defendant #1 was responsible for the oversight. Even so, that Murray was never

called back to the sick-call unit suggests at most negligence.

As to Doe Defendant #2, Murray’s claim lacks specific facts that would allow the

Court to draw a reasonable inference this individual was deliberately indifferent to a serious

medical need. Accepting as true that Murray told Doe Defendant #2 he was in such severe

pain that he would have gone to the emergency room had he not been incarcerated, Murray

does not allege Doe Defendant #2 was a medical provider or could have provided medical

care for him. In fact, Murray alleges facts suggesting Doe Defendant #2 was not a medical

provider. (Id. at 13, 18-19.) He alleges, “[Doe Defendant] #2 made a medical call that she

was not trained to make and she was not qualified to determine any treatment or decide . .

. whether [Murray] should have been seen right away.” (Id.) Murray’s subjective belief that

he should have seen a medical provider “right away” does not permit the reasonable

inference that Doe Defendant #2 had subjective knowledge of a serious medical need that,

14

“Gf left unattended, [would pose] a substantial risk of serious harm” to Murray. See Taylor

v. Adams, 221 F.3d 1254, 1258 (11th Cir. 2000) (quoting in part Farmer, 511 U.S. at 834).

Even had Murray expressed that he believed he was suffering a life-threatening

illness, such as appendicitis, the Doe Defendant #2’s failure to appreciate the gravity of

Murray’s medical condition does not suggest deliberate indifference. See Farmer, 511 U.S.

at 826 (“[TJhe failure to alleviate a significant risk that an official should have perceived

but did not, while no cause for commendation, cannot be condemned as the infliction of

punishment.”). Any such failure would amount to negligence. Finally, even if true that Doe

Defendant #2 was unkind or chastised Murray for complaining to a CO about his pain,

that does not satisfy the stringent deliberate indifference standard. See Bismark, 213 F.

App’x at 897 (“[I]t is not a violation of the Eighth Amendment for a prison physician to

consult with a prisoner concerning a medical condition in an aloof or unfriendly way. Much

more is required.” (citing Harris, 941 F.2d at 1505)).

For these reasons, Murray fails to state a plausible Bivens claim under the Eighth

Amendment against the Doe Defendants and the claims against them are dismissed.

IIT. Conclusion

For the foregoing reasons, the following is ORDERED:

1. Defendants’ Motion to Dismiss (Doc. 24) is GRANTED. Murray’s First

Amendment retaliation claims against Warden Carlton and Unit Counselor

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Cortopassi and his Eighth Amendment deliberate indifference claim against

Warden Carlton are dismissed.

2. Defendants Miranda, Criswell, and Dr. Li must answer the complaint (Doc. 1)

no later than January 13, 2023.

3. Murray’s deliberate indifference claims against the two Doe Defendants are

DISMISSED under 28 U.S.C. § 1915A(b) and 28 U.S.C. § 1915(e)(2)(B).

4. The Court directs the Clerk to terminate Warden Carlton, Unit Counselor

Cortopassi, and the Doe Defendants as parties to this action.

ORDERED in Ocala, Florida on December 27, 2022.

4 at Ramla Ws whl

athryn’ Kimball Mizelle

United States District Judge

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