Martelus v. Perez-Lugo

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

LUKENS MARTELUS,

Plaintiff,

v. Case No. 3:22-cv-874-BJD-JBT

E. PEREZ-LUGO, et al.,

Defendants.

_______________________________

ORDER

I. Status

Plaintiff, Lukens Martelus, an inmate of the Florida penal system,

initiated this action pro se by filing a complaint for the violation of civil rights,

which was docketed on August 11, 2022 (Doc. 1). Plaintiff paid the full filing

fee. See docket. In accordance with its obligation under the Prison Litigation

Reform Act (PLRA), the Court reviewed the sufficiency of the complaint. See

28 U.S.C. § 1915A(a), (b) (providing that a court must review a complaint by a

prisoner against a governmental officer or employee and dismiss the

complaint, or any portion of it, if it “is frivolous, malicious, or fails to state a

claim upon which relief may be granted”). The Court found Plaintiff failed to

state a plausible claim for relief against two of the three named Defendants—

Ricky Dixon, the Secretary of the Florida Department of Corrections (FDOC)

and Christina Crews, the Assistant Warden of Columbia Correctional

Institution (CCI)—and, therefore, dismissed the claims against those

Defendants, but directed Plaintiff to serve the remaining Defendant, Dr. Perez-

Lugo. See Orders (Docs. 4, 5).

At Plaintiff’s request, the Court granted him leave to amend his

complaint. See Order (Doc. 12). Plaintiff filed an amended complaint (Doc. 15;

Am. Compl.) with supporting documents (Doc. 15-1; Pl. Ex.) (medical and

grievance records). Through a motion (Doc. 19), Plaintiff asks the Court to

direct the U.S. Marshals Service to serve the named Defendants and to place

a lien on his prison account for the cost. Before addressing the motion, the

Court must assess the sufficiency of Plaintiff’s amended complaint in

accordance with its obligation under the PLRA.

II. Standard of Review

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 in both contexts. 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.

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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).

Moreover, a complaint must “contain either direct or inferential

allegations respecting all the material elements necessary to sustain a

recovery under some viable legal theory.” Roe v. Aware Woman Ctr. for Choice,

Inc., 253 F.3d 678, 683 (11th Cir. 2001) (quoting In re Plywood Antitrust Litig.,

655 F.2d 627, 641 (5th Cir. Unit A Sept. 8, 1981)). In reviewing a complaint, a

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.

Iqbal, 556 U.S. at 678.

III. Complaint Allegations

In his amended complaint, Plaintiff names six Defendants, including the

two previously dismissed: Dr. E. Perez-Lugo; Centurion Medical Group; an

unnamed doctor identified solely as the “Executive Medical Director”;1

Secretary Dixon; Assistant Warden Crews; and S. Geiger, a health services

administrator at CCI. See Am. Compl. at 2-4. Plaintiff’s allegations are sparse.

He alleges that, on or around April 21, 2022, he was denied “specialized

1 It appears Plaintiff is referencing a person employed by the FDOC, not Centurion.

See Am. Compl. at 3.

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medical treatment to see [a] back surgeon.” Id. at 6. According to Plaintiff, he

had back surgery, and the back surgeon wanted to see him for follow-up

treatment, but the Defendants, “while acting in concert with one another[,]

refused to follow [the] specialist recommendation’s [sic].” Id. He contends he

has suffered ongoing back degeneration because “a medical official without

specialized training” was making decisions about his continuing treatment. Id.

As relief, he seeks compensatory damages and to be evaluated by a back

specialist or sent back to the surgeon, Dr. Scibelli, at Jackson Memorial

Hospital. Id.

In support of his allegations, Plaintiff incorporates by reference the

attached medical and grievance records. See id. In his grievance records,

Plaintiff indicates he had been treating with doctors for about ten years, but

his back surgery had caused “major damage,” which he attributed to the

incompetence of medical staff. See Pl. Ex. at 7-8, 13. On April 21, 2022, Plaintiff

treated with Dr. Scibelli, a neurosurgeon, who noted Plaintiff “has had

multiple surgeries on his spine.” Id. at 3. Dr. Scibelli recommended Plaintiff

have a follow-up MRI and CT scan. Id.

Plaintiff filed a formal grievance on April 26, 2022, complaining about

his appointment with Dr. Scibelli. Id. at 5. While unclear, it appears Dr.

Scibelli had been telling Plaintiff the MRI and CT scan could not be completed

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until Dr. Scibelli received authorization from the prison, but it turned out, the

authorization “was [t]here all the time,” and Dr. Scibelli was giving Plaintiff

“the run[-]around.” Id. Plaintiff accused Dr. Scibelli of “preventing [him] from

receiving the treatment he deserve[d].” Id. Defendants Dr. Perez-Lugo and

Assistant Warden Crews responded to Plaintiff’s grievance informing him he

would “have a follow up with the provider to discuss [a] treatment plan” once

his medical records from his recent appointment had been sent to the prison.

Id. at 6. They informed Plaintiff “[i]t [was] the responsibility of the specialist

to determine the appropriate treatment regimen for [his] condition” and that

any questions about his treatment plan should be addressed through sick call.

Id.

Plaintiff appealed the grievance response from Dr. Perez-Lugo and

Assistant Warden Crews, saying that an “orthopedic specialist [should]

determine an ‘appropriate treatment plan’ for [him].” Id. at 16. Plaintiff

requested that he be scheduled with a physician at the Reception and Medical

Center. Id. In denying his appeal, the grievance responder noted he had been

seen by a physician on June 22, 2022. Id. at 17.

The physician Plaintiff treated with on June 22, 2022, was Defendant

Dr. Perez-Lugo. Id. at 1. Dr. Perez-Lugo noted Plaintiff had been in “constant

pain,” which he (the doctor) had discussed with another doctor. Id. An MRI and

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CT scan had been ordered and were to be sent to Dr. Scibelli for Plaintiff’s

follow-up. Id. Plaintiff had the MRI in July 2022. See id. at 20. It appears there

was a lengthy delay in sending the results of the MRI and CT scan to Dr.

Scibelli. See id. On October 10, 2022, Plaintiff complained that he had had two

appointments with a specialist (presumably Dr. Scibelli), but he was unable to

receive treatment because the results of his MRI and CT scan had not yet been

sent to the doctor. Id. The responding official noted that “several attempts

[had] been made to request a disc [of the scans] . . . . but it [had] not [yet] been

received.” Id. Plaintiff’s appointment with the specialist had been rescheduled.

Id.

On October 12, 2022, Plaintiff complained again about the delay in

sending his medical records to the specialist. Id. at 19. The responding official

noted the MRI disc had been requested and a new appointment had been

scheduled. Id. On October 25, 2022, Plaintiff appealed the grievance response,

complaining that his back pain “continue[d] to get worse” but prison officials

had been deliberately indifferent to his serious medical needs. Id. at 23. He

asserted the medical staff was not competent “to examine or to refer [him] to

others who can [help].” Id. In noting Plaintiff had been seen by a medical

provider on November 3, 2022, the responding official denied his appeal on

November 18, 2022. Id. at 22.

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On November 30, 2022, Plaintiff filed an informal grievance to medical

noting that he told Defendant S. Geiger the prior day he had been experiencing

“excruciating pain” and asked to see a specialist. Id. Apparently, the specialist

still had not received the disc of Plaintiff’s scans. Id. S. Geiger responded,

noting a consult request was submitted on November 3, 2022, and the consult

had been approved and was awaiting scheduling. Id. at 24.

IV. Applicable Law

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. See 42 U.S.C. § 1983. A

claim for deliberate indifference to a serious illness or injury is cognizable

under § 1983 as an Eighth Amendment violation. Estelle v. Gamble, 429 U.S.

97, 104 (1976). However, a prisoner bringing such a claim “has a steep hill to

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

2020). In the prison context, a medical provider is deemed to have been

deliberately indifferent, 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), or delays necessary

medical care for non-medical reasons, McElligott v. Foley, 182 F.3d 1248, 1255

(11th Cir. 1999).

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Negligence 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.”). In other words, “[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.”). As such, to state a deliberate indifference claim

under the Eighth Amendment, a prisoner-plaintiff must do more than allege

the care he received was “subpar or different from what [he] want[ed].”

Keohane, 952 F.3d at 1277. He must allege the treatment he received was “so

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

be intolerable to fundamental fairness.” Adams, 61 F.3d at 1544.

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Even if a prisoner-plaintiff were to plausibly allege a medical provider

had been deliberately indifferent to his serious medical needs, he may not

necessarily proceed against the medical provider’s supervisor or employer.

This 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 supervisor also cannot

be held liable under § 1983 simply for having responded to a prisoner’s

grievance. Jones v. Eckloff, No. 2:12-cv-375-Ftm-29DNF, 2013 WL 6231181, at

*4 (M.D. Fla. Dec. 2, 2013) (“[F]iling a grievance with a supervisory person does

not automatically make the supervisor liable for the allegedly unconstitutional

conduct brought to light by the grievance, even when the grievance is denied.”

(citing Gallagher v. Shelton, 587 F.3d 1063, 1069 (10th Cir. 2009))).

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

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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. Similarly, to proceed against a municipality, including a private

company under contract with a municipality,2 a plaintiff must allege the

existence of a “custom or policy that constituted deliberate indifference to [a]

constitutional right” and caused a constitutional violation. Moody v. City of

Delray Beach, 609 F. App’x 966, 967 (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”).

V. Analysis

Plaintiff’s amended 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. Plaintiff does not explain why he names the Defendants he

does; he merely alleges that all Defendants “act[ed] in concert with one another

2 “[W]hen a private entity . . . contracts with a [municipality] 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 Buckner v. Toro, 116 F.3d 450, 452 (11th Cir. 1997)) (second alteration in

original).

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[by] refus[ing] to follow specialist recommendation’s [sic].” See Am. Compl. at

6. He does not say what recommendation(s) by the specialist the named

Defendants refused to follow. See id. It appears Plaintiff names the individual

Defendants he does solely because they responded to grievances or were

supervisors of employees who made a mistake or did not do what Plaintiff

wanted or expected. Even assuming mistakes or negligence constitute

deliberate indifference, liability under § 1983 may not be based on a theory of

respondeat superior. See Cottone, 326 F.3d at 1360. And, as to Centurion, not

only does Plaintiff fail to allege an underlying constitutional violation by one

of the individual Defendants, but he does not allege an official policy or

unofficial custom was the “moving force” behind a constitutional violation. See

Monell, 436 U.S. at 691.

Moreover, Plaintiff’s allegations and supporting documents demonstrate

he received medical care, including the care recommended by the specialist,

Dr. Scibelli. Based on his complaint allegations and supporting documentation,

it appears Plaintiff initiated this action based on his frustration with Dr.

Scibelli. For instance, Plaintiff claims the incident or conduct giving rise to his

claims occurred on April 21, 2022, see Am. Compl. at 4-5, which is the day he

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treated with Dr. Scibelli, see Pl. Ex. at 3.3 In a grievance he filed shortly after

that appointment, Plaintiff complained that Dr. Scibelli was giving him the

“run[-]around.” Id. at 5. Not only is Dr. Scibelli not a named Defendant, but to

the extent Dr. Scibelli was responsible for the delay in scheduling a follow-up

MRI and CT scan, it appears the delay was based on a miscommunication,

misinformation, or mere mistake, which is not actionable as deliberate

indifference. See Estelle, 429 U.S. at 105-06. Regardless, however, neither

Centurion nor prison administrators or other prison staff can be held liable

under § 1983 for another person’s negligence or conduct. See Monell, 436 U.S.

at 691; Cottone, 326 F.3d at 1360.

Finally, to the extent Plaintiff contends medical providers at the prison,

including Defendant Dr. Perez-Lugo, were deliberately indifferent to his

serious medical needs, his own records belie such a conclusory assertion.

Indeed, Plaintiff’s grievance records show he had been receiving medical care

for a decade, including referral to and surgery by a neurosurgeon and post-

surgery care. See Pl. Ex. at 1, 3, 13, 20-22. It appears Plaintiff’s primary

complaint against those at the prison, as demonstrated through his grievance

records, is that the MRI and CT results were not promptly sent to Dr. Scibelli,

3 Most of the supporting records Plaintiff provides with his amended complaint are

dated after April 21, 2022, and, indeed, are dated after he initiated this action. See

generally Pl. Ex.

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which delayed Dr. Scibelli in formulating a treatment plan for Plaintiff. Even

accepting these allegations as true, Plaintiff does not fault any of the named

Defendants for the delay, nor does he allege facts that would permit the

reasonable inference the delay was the result of anything other than mistake

or internal administrative bureaucracy.

To the extent Plaintiff suggests he was unhappy with administrative

protocols that are inherent in the prison medical context or with the treatment

decisions made by his doctors, such allegations do not satisfy the stringent

standard of liability under § 1983. 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].”). Plaintiff merely alleges the care he received was

“subpar or different from what [he] want[ed].” See Keohane, 952 F.3d at 1277.

He alleges no facts that would permit the reasonable inference the care he

received was “so grossly incompetent, inadequate, or excessive as to shock the

conscience or to be intolerable to fundamental fairness.” See Adams, 61 F.3d at

1544.

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VI. Conclusion

Accordingly, it is

ORDERED:

1. This case is DISMISSED without prejudice under the PLRA,

28 U.S.C. § 1915A.

2. The Clerk shall enter judgment dismissing this case without

prejudice, terminate any pending motions, and close the file.

DONE AND ORDERED at Jacksonville, Florida, this 27th day of

March 2023.

J) é / =

fo fAgas__| | b4arn—

BRIAN/J . DAVIS

United States District Judge

Jax-6

C:

Lukens Martelus

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