Gaffney v. Scibelli

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

JOHNNY R. GAFFNEY,

Plaintiff,

v. Case No. 3:22-cv-1213-BJD-MCR

STEPHEN SCIBELLI, M.D., and

CENTURION OF FLORIDA, LLC,

Defendants.

___________________________________

ORDER

I. Status & Background

Plaintiff Johnny Gaffney, a sixty-three-year-old inmate of the Florida

penal system, is proceeding on a complaint for the violation of civil rights

against Centurion of Florida, LLC, and Dr. Stephen Scibelli, a neurosurgeon

(Doc. 1; Compl.). He alleges Defendants “are providing inadequate medical

treatment for [his] serious medical condition [a lower back injury].” See Compl.

at 5. Plaintiff does not allege an outright denial of medical care. In fact, he

acknowledges he was diagnosed with sciatica in about 2011; Dr. Scibelli

performed surgery in April 2018; and he has had some follow-up appointments

since then. Id. at 4-5, 8-9. However, Plaintiff alleges Dr. Scibelli routinely

intentionally refused to show up for his appointments at Jacksonville

Memorial Hospital (JMH) because he (the doctor) did not like having to deal

with the Florida Department of Corrections’ (FDC’s) security protocols, which

requires that he “surrender his cell phone while on the FDC wing of the

hospital.” Id. at 8-9.

Plaintiff alleges Dr. Scibelli informed him in 2019 that he had to have a

second surgery on his back, which was approved, but Centurion did not

schedule the appointment. Id. at 5-6. When Plaintiff inquired or complained

about the failure to schedule the recommended and approved surgery,

Centurion scheduled a follow-up appointment with Dr. Scibelli for September

29, 2021. Id. at 6. For that appointment, Plaintiff was transported from Desoto

Correctional Institution (DCI), in Arcadia, Florida, to the Reception and

Medical Center (RMC), which is closer to JMH. Dr. Scibelli failed to show for

Plaintiff’s next scheduled appointment on October 7, 2021. Id. The

appointment was rescheduled, but Dr. Scibelli failed to show on the following

additional dates: December 2, 2021; January 13, 2022; February 10, 2022; and

February 24, 2022. Id. at 6-8. All the while, Plaintiff remained at RMC.

Plaintiff assert that, because it took so long for him to see Dr. Scibelli

after the September 2021 appointment, the FDC transported him back to DCI,

which is his assigned prison, so he would not have to be “reclassif[ied] . . . for

another institution.” Id. at 8. Each transfer requires that he carry all his

2

personal property on his shoulders, which aggravates his sciatica. Id. at 8, 10.

Plaintiff alleges Centurion knows of Dr. Scibelli’s penchant for not showing up

for scheduled appointments but refuses to change doctors “to save costs.” Id. at

9, 12. Plaintiff seeks declaratory relief, injunctive relief, and compensatory and

punitive damages. Id. at 15-16.

Defendants separately move to dismiss the claims against them (Docs.

8, 9), arguing Plaintiff fails to state a plausible deliberate indifference claim

because his allegations demonstrate he has received medical care and he

merely objects to how that care is delivered, and his allegations are conclusory.

See Doc. 8 at 8-9; Doc. 9 at 4-6. Additionally, Dr. Scibelli argues he is not a

“state actor,” and Centurion moves to strike Plaintiff’s request for punitive

damages. See Doc. 8 at 5-6; Doc. 9 at 5. 1 Plaintiff opposes the motions to

1 Defendants do not dispute that Plaintiff’s back injury constitutes a

serious medical need. See Doc. 8 at 7-8; Doc. 9 at 4-5. With respect to Dr.

Scibelli’s assertion that he is not a state actor, Plaintiff alleges Dr. Scibelli was

under contract with Centurion or the FDC and provided care for inmates at

JMH on a special FDC wing of the hospital. See Compl. at 7. These allegations,

accepted as true, permit the reasonable inference Dr. Scibelli was a “state

actor” at the relevant times. See Carswell v. Bay Cnty., 854 F.2d 454, 456 (11th

Cir. 1988) (“[A] private physician who is under contract with a state to provide

medical care to inmates acts ‘under color of state law for purposes of section

1983 when undertaking his duties’ to treat an inmate.”). See also Ort v.

Pinchback, 786 F.2d 1105, 1107 (11th Cir. 1986) (holding the district court

erred “in concluding that a physician who contracts with the state to provide

medical care to inmates does not act under color of state law”). Whether Dr.

Scibelli indeed was a state actor depends on an analysis of facts outside the

complaint and, thus, is an issue that cannot be resolved at this juncture.

3

dismiss (Docs. 13, 16, 17), and he has recently filed an emergency motion for

preliminary injunction (Doc. 23; Pl. Mot.), which Centurion opposes (Doc. 27;

Resp.).2

II. Motions to Dismiss

Liberally construing Plaintiff’s pro se allegations and accepting them as

true, which the Court must do on a motion to dismiss under Rule 12(b)(6) of

the Federal Rules of Civil Procedure, the Court concludes Plaintiff alleges

enough facts “to raise a reasonable expectation that discovery will reveal

evidence” supporting his claims. See Bell Atl. Corp. v. Twombly, 550 U.S. 544,

556 (2007). That Plaintiff received some medical treatment for his back injury

does not mean he fails to state a claim for deliberate indifference.

If true that Dr. Scibelli intentionally failed to show for multiple

appointments with a patient he knew needed surgery simply because he did

not want to be inconvenienced by the FDC’s security protocols, and further

accepting the delay caused Plaintiff to suffer unnecessarily, Plaintiff states a

plausible deliberate indifference claim against Dr. Scibelli. A delay in

providing necessary medical treatment for non-medical reasons can constitute

deliberate indifference. Ancata v. Prison Health Servs., Inc., 769 F.2d 700, 704

2 When Plaintiff filed his motion, he was housed at Desoto Correctional

Institution (DCI); he is now at RMC, though it is unclear whether his transfer

there is temporary.

4

(11th Cir. 1985) (“The knowledge of the need for medical care and intentional

refusal to provide that care has consistently been held to surpass negligence

and constitute deliberate indifference.”). See also Brown v. Hughes, 894 F.2d

1533, 1537 (11th Cir. 1990) (“Deliberate indifference to a prisoner’s serious

medical needs violates the eighth amendment because denying or delaying

medical treatment is tantamount to ‘unnecessary and wanton infliction of

pain.’”).

As to Centurion, accepting as true the non-conclusory allegations that it

is well known Dr. Scibelli routinely fails to show up for appointments with

inmates requiring specialized care, but Centurion refuses to schedule

appointments with a different doctor solely to save money, Plaintiff alleges

enough to permit the reasonable inference that Centurion had a custom or

policy that constituted deliberate indifference and caused a constitutional

violation. Of course, Centurion may consider cost in satisfying its contract with

the FDC to provide healthcare for state inmates. See Hoffer v. Sec’y, Fla. Dep’t

of Corr., 973 F.3d 1263, 1276 (11th Cir. 2020) (quoting with alteration Reynolds

v. Wagner, 128 F.3d 166, 175 (3d Cir. 1997) (“[T]he deliberate indifference

standard ... does not guarantee prisoners the right to be entirely free from the

cost considerations that figure in the medical-care decisions made by most non-

prisoners in our society.”). However, the Eleventh Circuit has ruled that

5

“systemic deficiencies [in a prison’s health system] can provide the basis for a

finding of deliberate indifference.” Rogers v. Evans, 792 F.2d 1052, 1058-59

(11th Cir. 1986).

A series of incidents closely related in time may

disclose a pattern of conduct amounting to deliberate

indifference. Repeated examples of delayed or denied

medical care may indicate a deliberate indifference by

prison authorities to the suffering that results.

Id. (internal citations omitted). Liberally construed, Plaintiff’s allegations

permit the reasonable inference that Centurion knew of a systemic or gross

deficiency as it related to Dr. Scibelli’s care of inmates, such that inmates

requiring treatment with Dr. Scibelli “effectively [were] denied access to

adequate medical care.” See Harris v. Thigpen, 941 F.2d 1495, 1505 (11th Cir.

1991).

Defendants’ arguments that Plaintiff does not “support” his allegations

with “evidence or documentation” are misplaced in a motion to dismiss under

Rule 12(b)(6). See Doc. 8 at 8; Doc. 9 at 4. Whether Plaintiff can prove a claim

for deliberate indifference is more properly raised in a Rule 56 motion with

supporting records, affidavits, and other relevant evidence. Plaintiff alleges

enough to nudge the claims “across the line from conceivable to plausible.” See

Twombly, 550 U.S. at 570. Moreover, given Plaintiff alleges Defendants were

deliberately indifferent to his serious medical needs, a standard that is equated

6

with “reckless disregard,” Wade v. McDade, 67 F.4th 1363, 1374 (11th Cir.

2023), his request for punitive damages is not due to be stricken, see Barnett v.

MacArthur, 715 F. App’x 894, 905 (11th Cir. 2017) (“Punitive damages are

appropriate in § 1983 cases ‘where a defendant’s conduct is motivated by evil

intent or involves callous or reckless indifference to federally protected

rights.’”).

III. Plaintiff’s Motion for Injunctive Relief

Plaintiff’s motion concerns his transfers between DCI and RMC for his

medical treatment. He seeks relief solely from Defendant Centurion, not Dr.

Scibelli. Plaintiff asserts the “continual[] transfer[s]” from DCI to RMC have

caused a new injury (damage to his left shoulder) and worsening of his back

injury because of the amount of property he must carry during each transfer.

See Pl. Mot. at 2-3, 5. He explains that he uses a cane (in his right hand)

because of his back injury, which forces him to carry his belongings over his

left shoulder. Id. at 3. When he filed the motion, Plaintiff was scheduled to be

seen in the cardiac and respiratory clinic for renewal of the following medical

passes: lower bunk; cane; no pushing or lifting more than ten pounds; and no

prolonged standing. Id. at 4. Plaintiff seeks an order prohibiting Centurion

from transferring him to RMC for further treatment; he says he would rather

“live with [the] conditions” than receive treatment if he cannot get that

7

treatment closer to where he is housed (at DCI). Id. at 5, 10. However, he

clarifies that he is “not refusing medical treatment.” Id. at 8.

In its response, Centurion argues Plaintiff’s “allegations in his [motion]

have only a tenuous connection to the allegations in his [c]omplaint,” and he

does not otherwise demonstrate a likelihood of success on the merits of his

claim. See Resp. at 3. Additionally, Centurion contends Plaintiff offers no

evidence demonstrating that the transfers have caused a new injury or

worsened his back injury. Id. at 4. Centurion provides a copy of an April 18,

2023 x-ray report, which shows Plaintiff’s left shoulder has no fracture or

dislocation but he has “[d]egenerative joint disease.” See Doc. 27-1. Centurion

also maintains it has no control over inmate transfers, and it does not appear

Plaintiff attempted to first seek relief through the prison grievance process. Id.

at 7-8. See also Doc. 27-2. Finally, Centurion observes that the relief Plaintiff

seeks from the Court—to prevent further transports for medical treatment at

RMC or JMH—he can obtain himself “by simply refusing the medical care that

he has sought.” Id. at 8.

Injunctive relief, whether in the form of a temporary restraining order

or a preliminary injunction,3 “is an ‘extraordinary and drastic remedy,’ and

3 The primary distinction between a temporary restraining order and a

preliminary injunction is that the former is issued ex parte, while the latter

requires “notice to the adverse party.” Fed. R. Civ. P. 65(a), (b). See also M.D.

8

[the movant] bears the ‘burden of persuasion.’” Wreal, LLC v. Amazon.com,

Inc., 840 F.3d 1244, 1247 (11th Cir. 2016) (quoting Siegel v. LePore, 234 F.3d

1163, 1176 (11th Cir. 2000)). To demonstrate entitlement to injunctive relief,

a movant must show the following four prerequisites:

(1) a substantial likelihood of success on the merits; (2)

that irreparable injury will be suffered if the relief is

not granted; (3) that the threatened injury outweighs

the harm the relief would inflict on the non-movant;

and (4) that entry of the relief would serve the public

interest.

Schiavo ex rel. Schindler v. Schiavo, 403 F.3d 1223, 1225-26 (11th Cir. 2005).

With respect to the second prerequisite, “the asserted irreparable injury ‘must

be neither remote nor speculative, but actual and imminent.’” Siegel, 234 F.3d

at 1176. Moreover, the request for injunctive relief must be related to the

claims raised in the operative complaint. See Kaimowitz v. Orlando, Fla., 122

F.3d 41, 43 (11th Cir. 1997), opinion amended on reh’g, 131 F.3d 950 (11th Cir.

1997) (“A district court should not issue an injunction when the injunction in

question is not of the same character, and deals with a matter lying wholly

outside the issues in the suit.”).

Plaintiff fails to carry his burden to demonstrate injunctive relief is

warranted. Even though he states a plausible claim for deliberate indifference

Fla. R. 6.01, 6.02 (describing the requirements for the issuance of temporary

restraining orders and preliminary injunctions).

9

against Centurion, his allegations alone fail to show he is likely to succeed on

the merits of that claim. Alleging a plausible deliberate indifference claim

against a healthcare company based on a theory of widespread abuse or

systemic healthcare deficiencies is a far cry from proving (or being likely to

prove) such a claim. See S. Wine & Spirits of Am., Inc. v. Simpkins, No. 10-

21136-Civ, 2011 WL 124631, at *2 (S.D. Fla. Jan. 14, 2011) (“A substantial

likelihood of success on the merits is shown if good reasons for anticipating

that result are demonstrated. It is not enough that a merely colorable claim is

advanced.”).

Moreover, to the extent Plaintiff seeks relief related to a new shoulder

injury, his request for relief is unrelated “to the claims raised in the operative

complaint.” See Kaimowitz, 122 F.3d at 43. He is proceeding in this action

against Centurion and Dr. Scibelli based on a delay in medical care for a back

injury. He has not filed a complaint against an appropriate defendant based

on an alleged shoulder injury. And, as Centurion rightly notes, the FDC

controls inmate transport and housing placement. FDC is not a party to this

action.4 The Court appreciates that Plaintiff is in a tough position—choosing

4 If Plaintiff indeed has medical passes that FDC officials are not

honoring when Plaintiff is transferred between institutions, Plaintiff should

seek appropriate relief through the prison grievance process or raise the issue

with medical providers who have requested, recommended, or issued the

passes.

10

between getting the care he needs or denying care because he has difficulty

with transport—but, as an incarcerated person, he is not entitled to mandate

the location of his medical care. No physician has determined Plaintiff is unfit

for travel to and from his medical appointments. See Doc. 27-2 ¶ 8 (Dr. Lay’s

declaration averring, “[Plaintiff’s] medical records do not suggest that he is

medically unstable for transport to RMC or to [JMH]”). It also appears his

request for relief may be moot because he filed a notice of change of address on

July 24, 2023, indicating he is now housed at RMC, though it is not clear

whether this is a temporary relocation solely for medical services. See Doc. 26.

In consideration of the facts and issues, the Court finds it prudent to

refer this case to the assigned magistrate judge for an early settlement

conference at which Plaintiff hopefully will have legal representation. The

issues are narrow, and the parties may benefit from early negotiations before

engaging in discovery and other motion practice. Additionally, it appears at

least one of Plaintiff’s requests for relief included in his complaint is moot. For

instance, he seeks injunctive relief “in the form of having no further

appointments with Dr. Scibelli.” See Compl. at 14. In his responses to

Defendants’ motions to dismiss, Plaintiff asserts he is treating with a new

neurosurgeon at JMH because Dr. Scibelli no longer works there. See Doc. 17

at 4.

11

Accordingly, it is

ORDERED:

1. Defendant Scibelli’s motion to dismiss (Doc. 8) is DENIED.

2. Defendant Centurion’s motion to dismiss (Doc. 9) is DENIED.

3. Defendants shall answer the complaint (Doc. 1) within twenty

days of the date of this Order.

4. Plaintiffs emergency motion for preliminary injunction (Doc. 23)

is DENIED.

5. This case is REFERRED to the Jacksonville Division Civil Pro

Bono Appointment Program so the designated deputy clerk of the Court may

seek counsel to represent Plaintiff for purposes of a settlement conference. If

an attorney accepts the limited pro bono appointment, the Court will refer the

case to the assigned magistrate judge for a settlement conference. However,

the Court encourages the parties to attempt to settle the case privately in the

meantime.

DONE AND ORDERED at Jacksonville, Florida, this 4th day of August

2023.

Zh. NO -

i) Aanue | CAcrnaa

United States District Judge

12

Jax-6

c:

Johnny R. Gaffney

Counsel of Record

13