Winch v. Centurion of Florida, LLC

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

STEVEN WINCH,

Plaintiff,

v. Case No. 3:22-cv-215-BJD-JBT

CENTURION OF FLORIDA, LLC,

et al.,

Defendants.

__________________________________

ORDER

I. Status

Plaintiff, Steven Winch, a state inmate, is proceeding on a third amended

complaint (Doc. 9; Am. Compl.) against five Defendants: Centurion of Florida,

LLC, a medical company under contract with the Florida Department of

Corrections to provide healthcare for inmates; Dr. Jackie Westfall, Medical

Director; Dr. Max Solano, Medical Director; Loretta Dawson, Advanced

Registered Nurse Practitioner; and Dr. Anand S. Gupta, Surgeon. See Am.

Compl. at 2-3, 13. Plaintiff asserts claims for deliberate indifference under 42

U.S.C. § 1983 and medical malpractice/negligence under state law related to

treatment he received for an unspecified skin condition between December

2020 and early 2022. Id. at 14, 16, 21, 23-32. Plaintiff’s specific claims are as

follows: deliberate indifference in violation of the Eighth Amendment against

Defendants Centurion (Counts I, II, IV, V, VII, and VIII), Dr. Westfall (Count

III), Nurse Dawson (Count VI), and Dr. Gupta (Count IX); and medical

negligence or malpractice in violation of Florida Statutes sections 456.47,

458.348(1)(a), 464.012(3),(4), or 766.102 or the Florida Administrative Code

against Defendants Dr. Westfall (Count X), Dr. Solano (Count XI), Nurse

Dawson (Counts XII and XIII), Centurion (Count XIV), and Dr. Gupta (Count

XV).

Centurion and its employees, Dr. Westfall, Nurse Dawson, and Dr.

Gupta (collectively, “Centurion Defendants”), move to dismiss the claims

against them for Plaintiff’s failure to state a plausible claim for relief (Doc. 25;

Centurion Mot.). Dr. Solano separately moves to dismiss the sole claim

asserted against him (medical malpractice under Florida law) for Plaintiff’s

failure to comply with presuit requirements under Chapter 766 of the Florida

Statutes (Doc. 26). Plaintiff has responded to both motions in one response

(Doc. 37; Pl. Resp.).

As to the state-law claims against Defendants Dr. Gupta and Dr. Solano,

Plaintiff concedes he “failed to comply with the Florida Medical Malpractice

Act” and voluntarily dismisses his medical malpractice claims against these

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Defendants.1 See Pl. Resp. at 13. He argues, however, that his medical

malpractice/negligence claims against Defendants Dr. Westfall, Nurse

Dawson, and Centurion may proceed because he “fully complied with the

Florida Medical Malpractice Act’s pre-suit requirements, or they were

otherwise waived.” Id. at 8. Except as to the medical malpractice claim against

Defendant Dr. Gupta, Plaintiff opposes the Centurion Defendants’ motion. See

generally id.

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

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

1 Plaintiff asks that the claims be voluntarily dismissed without

prejudice. See Pl. Resp. at 13. Rule 41 of the Federal Rules of Civil Procedure

provides in pertinent part, “[a] plaintiff may dismiss an action without a court

order by filing[] . . . a notice of dismissal before the opposing party serves either

an answer or a motion for summary judgment.” Fed. R. Civ. P. 41(a)(1)(A)(i).

Because Defendants have not filed an answer or a motion for summary

judgment, Plaintiff is permitted to voluntarily dismiss his claims without

prejudice. See id.

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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 alleges he first treated with Dr. Westfall at Putnam

Correctional Institution (PCI) on December 4, 2020, nearly three years after

he “began suffering from skin irritation, rash-like bumps, itching, and sores”

for which he treated with other providers, including a dermatologist, Dr.

Solano. See Am. Compl. at 14, 16. Plaintiff explained to Dr. Westfall the history

of his skin condition, including that numerous healthcare providers had

diagnosed him with scabies and had prescribed various medications that “all

proved ineffective/inadequate,” including Permetherin Lotion, Ivermectin,

Prednisone, Triamcinolone, topical steroids, and antibiotics. Id. at 16. Dr.

Westfall reviewed Plaintiff’s medical records and, according to Plaintiff,

“conducted a cursory examination,” after which he prescribed Triamcinolone

Acetonide Cream—a medication the dermatologist, in June 2020,

recommended that Plaintiff “no longer be prescribed” because it was making

his skin thin and easily prone to infection. Id. at 15-16. Dr. Westfall refused

Plaintiff’s request to be sent back to a dermatologist. Id. at 16.

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Plaintiff treated with Dr. Westfall again on about January 12, 2021. Id.

Dr. Westfall conducted a “skin scraping test,” which showed “no evidence of

organic matter.” Id. Plaintiff alleges he treated with Dr. Westfall on “several

occasions” between February 16, 2021, and March 10, 2021. Id. He contends

Dr. Westfall “conducted cursory examinations[,] diagnosed [his] condition as

either unknown dermatitis or scabies,” and prescribed medications that

Plaintiff told him had “failed to resolve his condition” or had caused him to

develop blisters, sores, and infections in the past, or that the dermatologist

recommended he no longer take: Permethrin Lotion, Ivermectin, Prednisone,

Triamcinolone, topical steroids, and antibiotics. Id. at 16-17. Plaintiff alleges

the Permethrin Lotion and Ivermectin caused him to develop blisters, sores,

and infections. Id. at 17. On March 16, 2021, Dr. Westfall prescribed different

medications, Ketoconazole Cream and Fluconazole, which Plaintiff alleges had

been prescribed in the past but did not help. Id. at 17, 17 n.6.

On March 30, 2021,2 Dr. Westfall told Plaintiff there was nothing more

he could do to treat his “skin disease,” and he told Plaintiff he would be

referring him to a dermatologist. Id. at 17. Plaintiff alleges the consultation

was not approved (presumably by Centurion), but he instead had a RubiconMD

2 Plaintiff alleges he received a prescription for antibiotics (Doxycycline)

on May 5, 2021, but he does not say who prescribed it. See Am. Compl. at 17.

He contends he received it “without seeing Dr. Westfall.” Id.

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eConsult.3 Id. at 17-18. The RubiconMD eConsult recommended Plaintiff try

the oral antibiotic he was already taking (Doxycycline), but Plaintiff told Dr.

Westfall he tried that medication in the past and it did not help. Id. at 18.

Plaintiff continued to use the medication as recommended, but his “skin

disease remained unresolved.” Id.4

Plaintiff did not treat with Dr. Westfall again until February 2022,

apparently because Dr. Westfall had taken a leave of absence. Id. at 19, 21.

While Dr. Westfall was on leave, Plaintiff treated with Nurse Dawson two

times. Id. at 19. At his first appointment, on September 17, 2021, Nurse

Dawson prescribed Doxycycline, which Plaintiff advised had previously proven

ineffective. Id. Plaintiff also told Nurse Dawson that he was having trouble

sleeping and the medication the dermatologist prescribed about four weeks

prior was causing him to have blurred vision, confusion, irritability, and

3 Plaintiff says RubiconMD is “an information service that does not

provide medical diagnosis or treatment.” See Am. Compl. at 18 n.8. The

RubiconMD website indicates the platform allows primary care physicians to

electronically consult with specialists regarding a patient’s symptoms and

treatment needs. See https://www.rubiconmd.com/ (last visited Aug. 7, 2023).

4 Plaintiff eventually had a consultation with dermatologist Dr. Solano

in August 2021, though he alleges Centurion delayed the appointment by four

months and scheduled it as a telehealth consultation. See Am. Compl. at 18.

Plaintiff alleges Dr. Solano conducted a cursory examination “through a

webcam” and did not review medical records or perform diagnostic tests. Id. at

18-19. Dr. Solano prescribed two medications (Neurontin and Doxepin), but

Centurion approved only one (Doxepin). Id. at 19.

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agitation, but Nurse Dawson made no changes or adjustments to the

medication, noting instead that Plaintiff was scheduled for a follow-up

appointment with the dermatologist in February 2022 (about five months in

the future). Id. at 19-20. At the second appointment with Nurse Dawson, on

October 14, 2021, Plaintiff voiced many of the same complaints—difficulty

sleeping and unpleasant side-effects from the medication the dermatologist

prescribed—but Nurse Dawson refused to change the medication or request

that Plaintiff’s follow-up occur sooner. Id. at 20.

Plaintiff was sent to the Reception and Medical Center (RMC) on

February 15, 2022, for what was supposed to have been a follow-up

appointment with the dermatologist. Id. Instead of treating with a

dermatologist, though, he treated with Dr. Gupta, a surgeon.5 Id. Plaintiff

alleges Dr. Gupta “conducted a cursory examination,” prescribed medications

that were ineffective in the past (Claritin and Triamcinolone Acetonide

Cream), and scheduled him for a one-month follow-up. Id. at 20-21. Plaintiff

complains that Dr. Gupta did not review his medical records or refer him to a

dermatologist. Id. at 21.

5 Plaintiff alleges a nurse at PCI told him no dermatologists were

available. See Am. Compl. at 21.

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On February 25, 2022, Dr. Westfall saw Plaintiff again and prescribed

the same (ineffective) medications as did Dr. Gupta. Id. On March 4, 2022,

Plaintiff presented to Dr. Westfall with “a blistery sore on his lip, and

numerous bumps and ring-like swellings inside his mouth.” Id. Dr. Westfall

prescribed an antifungal medication, which Plaintiff alleges had been

prescribed twice before (apparently since the onset of his symptoms in 2017)

without benefit. Id. Plaintiff treated with Dr. Westfall again on the following

dates: April 1, 2022; April 19, 2022; and May 23, 2022. Id. at 22-23. Dr. Westfall

again prescribed medications that had proven ineffective in the past, including

antibiotics, and gave Plaintiff Benadryl for the intense itching he was

experiencing. Id. at 22. Plaintiff alleges Dr. Westfall told him that “[t]here

[was] no dermatologist in the State of Florida” who could treat him. Id. Plaintiff

was sent to RMC again on May 17, 2022. Id. at 22-23. Dr. Gupta advised he

would submit a request for Plaintiff to be seen by a dermatologist. Id. at 23.

Plaintiff alleges that, at the time he filed his operative complaint, his

“chronic and unstable serious skin disease [was] still inaccurately diagnosed

and inadequately medicated. . . . and . . . causing substantial and irreparable

physical injuries and emotional harm to [him].” Id.

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IV. Analysis

The Centurion Defendants move to dismiss the claims against them on

the following grounds: Plaintiff does not allege facts demonstrating Defendants

Dr. Westfall, Nurse Dawson, or Dr. Gupta were deliberately indifferent to his

serious medical needs; Plaintiff fails to allege facts to proceed against

Centurion, such as the adoption of a policy or custom that was the “moving

force” behind a constitutional violation; Plaintiff failed to comply with Florida’s

medical malpractice presuit requirements; Plaintiff fails to state a plausible

medical malpractice claim; and Centurion is entitled to sovereign immunity.

See generally Centurion Mot.

A. Deliberate Indifference

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

cognizable under § 1983. See Estelle v. Gamble, 429 U.S. 97, 104 (1976). To

state a claim, a plaintiff first must allege he had a serious medical need. Brown

v. Johnson, 387 F.3d 1344, 1351 (11th Cir. 2004). 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

connection between the defendant’s conduct and his resulting injuries. Mann

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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. Rather, “a plaintiff must [allege] that the defendant (1) had

subjective knowledge of a risk of serious harm, (2) disregarded that risk, and

(3) acted with more than gross negligence.” Wade v. McDade, 67 F.4th 1363,

1374 (11th Cir. 2023) (emphasis in original).

The Eleventh Circuit recently has “been at pains to emphasize” that

deliberate indifference is much more stringent a standard than negligence or

malpractice: it “is not a constitutionalized version of common-law negligence.”

Hoffer v. Sec’y, Fla. Dep’t of Corr., 973 F.3d 1263, 1271 (11th Cir. 2020)

(emphasis in original) (quoting Swain v. Junior, 961 F.3d 1276, 1287-88 (11th

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Cir. 2020)). The Eighth Amendment does not mandate that the medical care

prisoners receive be “perfect, the best obtainable, or even very good.” Id.

(quoting Harris, 941 F.2d at 1510). As such, allegations that prison medical

providers “could be doing more, doing better” do not satisfy the stringent

deliberate indifference standard. Id. See also 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).

The cases in which the Eleventh Circuit has found the deliberate-

indifference standard satisfied “typically involved egregious circumstances,

[such as] prison officials denying inmates medication for no reason at all.”

Wade, 67 F.4th at 1376. Even a decision by a medical provider that can be

classified as “more than merely negligent . . . . does not rise to the level of a

constitutional violation.” Id. at 1375 (emphasis in original) (concluding a

nurse’s decision to wait for an inmate’s already-ordered epilepsy medication to

arrive rather than to retrieve some from the supply closet, while “regrettable,”

was not more than grossly negligent).

When a plaintiff has received some treatment, he pleads a deliberate-

indifference claim by alleging facts showing the care he received was “so

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

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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)). 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)6 (quoting Whitley v. Albers, 475 U.S. 312, 319 (1986)).

Defendants do not dispute that Plaintiff had a “serious medical need.”

See Centurion Mot. at 7. Rather, they argue Plaintiff alleges a mere

disagreement with medical judgments or dissatisfaction with the treatment he

received. Id. at 7-12.

B. Claims Against Dr. Westfall, Nurse Dawson, and Dr. Gupta

Accepting as true Plaintiff’s allegations, he fails to allege a plausible

deliberate indifference claim against Defendants Dr. Westfall, Nurse Dawson,

and Dr. Gupta. Notably, Plaintiff’s allegations describing the treatment he

received for his skin condition comprise 59 paragraphs spanning over nine

pages. It appears he unfortunately has a difficult-to-diagnose or difficult-to-

6 Any unpublished decisions cited in this Order are deemed persuasive

authority on the relevant point of law. See McNamara v. GEICO, 30 F.4th

1055, 1061 (11th Cir. 2022).

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treat condition, but the inability to properly diagnose or provide complete relief

for a condition does not by itself suggest deliberate indifference.

Dr. Westfall treated Plaintiff the most of the three providers. Even

though Dr. Westfall is not a dermatologist and was unable to properly diagnose

Plaintiff or prescribe anything that provided relief for his symptoms, Dr.

Westfall’s treatment cannot be described as more than merely negligent, and

certainly not more than grossly negligent. Even accepting as true that Dr.

Westfall “conducted cursory examinations,” see Am. Compl. at 24, the facts

alleged do not permit the reasonable inference that Dr. Westfall knew what

treatment Plaintiff needed but refused or delayed that treatment for non-

medical reasons. See Adams v. Poag, 61 F.3d 1537, 1546 (11th Cir. 1995) (“[The

law] requires … not merely the knowledge of a condition, but the knowledge of

necessary treatment coupled with a refusal to treat properly or a delay in such

treatment.”). Indeed, Plaintiff himself acknowledges that Dr. Westfall and

others were unable to diagnose his condition. See Am. Compl. at 23.

Plaintiff alleges Dr. Westfall prescribed multiple different medications,

consulted with a dermatologist, and referred him to a dermatologist when the

consult did not produce positive results. Even though Dr. Westfall prescribed

medications knowing they had proven ineffective in the past, there is nothing

to indicate Dr. Westfall knew that trying certain medications again put

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Plaintiff at a substantial risk of serious harm. See Monteleone v. Corizon, 686

F. App’x 655, 660 (11th Cir. 2017) (citing Estelle, 429 U.S. at 107)

(“[D]etermining which medication to prescribe is generally a matter of medical

judgment.”). An ineffective medication is not the same as a harmful

medication.

Plaintiff treated with Nurse Dawson and Dr. Gupta only twice each.

Plaintiff’s primary complaint about the care rendered by Nurse Dawson was

that, as a nurse merely filling in while Dr. Westfall was on leave, she was

“unqualified to exercise professional judgment” and “disregarded Plaintiff’s

complaints of his suffering” by failing “to submit referrals to advance [his] care

to a licensed physician or a specialist.” See Am. Compl. at 26-27. Accepting that

Nurse Dawson was ill-equipped to fill the role of a doctor and could not or would

not discontinue or change a medication prescribed by a physician or request an

earlier follow-up appointment with a specialist, Plaintiff alleges at most a

disagreement with medical judgments or mere negligence. Nurse Dawson

cannot be said to have refused to refer Plaintiff to a specialist because the

referral had already been made. See id. at 20. Assuming she could have, her

decision not to request that the appointment occur sooner than the

dermatologist recommended is one of medical judgment. That Plaintiff

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disagreed with her judgment does not mean she was deliberately indifferent to

his serious medical needs.

Plaintiff complains that Dr. Gupta, a surgeon, was unqualified to treat

his skin condition, conducted a “cursory examination,” failed to refer him to a

dermatologist, and prescribed medications knowing they had proven

ineffective in the past. Id. at 28-29. For the reasons already stated, such

allegations do not suggest deliberate indifference. See supra pp. 13-14. See also

Adams, 61 F.3d at 1543 (“Mere negligence in diagnosing or treating a medical

condition is an insufficient basis for grounding liability on a claim of medical

mistreatment under the Eighth Amendment.”).

In sum, Plaintiff’s allegations against Defendants Dr. Westfall, Nurse

Dawson, and Dr. Gupta do not permit the reasonable inference they were

deliberately indifferent to Plaintiff’s serious medical needs. It appears Plaintiff

believes some or all medical providers were not as persistent as he would have

liked but a lack of persistence does not equate to more than gross negligence,

especially considering multiple doctors, including a dermatologist, have

struggled to find an effective treatment for Plaintiff’s apparently mysterious

condition. The Court concurs with the Centurion Defendants that Plaintiff’s

“allegations all speak to [his] [dis]satisfaction with the treatment he received.”

See Centurion Mot. at 11 (citing cases). Accordingly, the Centurion Defendants’

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motion is due to be granted to the extent Plaintiff fails to state a plausible

deliberate indifference claim against the individual medical providers.

C. Claims Against Centurion

In six different Counts, Plaintiff asserts Centurion was deliberately

indifferent to his serious medical needs in the following ways: “denying him

access to a dermatologist”; delaying his follow-up appointment with Dr. Solano

by four months; using telehealth services to save costs; and failing to

adequately staff the medical departments at both PCI and RMC. See Am.

Compl. at 23-28. Plaintiff contends each failure was the result of a policy or

custom or motivated by a desire to save costs. See id. Plaintiff’s deliberate

indifference claims against Centurion necessarily fail because he does not state

a plausible claim against the individual medical providers. “There can be no

policy-based liability or supervisory liability when there is no underlying

constitutional violation.” Knight through Kerr v. Miami-Dade Cnty., 856 F.3d

795, 821 (11th Cir. 2017) (citing City of L.A. v. Heller, 475 U.S. 796, 799 (1986)).

As such, the deliberate indifference claims against Centurion are due to be

dismissed.

D. Supplemental Jurisdiction

With Plaintiff’s constitutional claims due to be dismissed, the only

remaining claims arise under state law. The Eleventh Circuit has “encouraged

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district courts to dismiss any remaining state claims when … the federal

claims have been dismissed prior to trial.” Raney v. Allstate Ins. Co., 370 F.3d

1086, 1089 (11th Cir. 2004). See also 28 U.S.C. § 1367(c)(3) (“[D]istrict courts

may decline to exercise supplemental jurisdiction over [state claims] if . . . the

district court has dismissed all claims over which it has original jurisdiction.”).

The Court declines to exercise supplemental jurisdiction over the pendent

state-law claims, which are best resolved by the state court. See Hardy v.

Birmingham Bd. of Educ., 954 F.2d 1546, 1553 (11th Cir. 1992) (“State courts,

not federal courts, are the final expositors of state law.”). As such, the state-

law claims will be dismissed without prejudice subject to Plaintiff’s right to

pursue them in state court if he so chooses.

Accordingly, it is now

ORDERED:

1. Defendants Centurion of Florida, LLC, Dr. Westfall, Nurse

Dawson, and Dr. Gupta’s motion to dismiss (Doc. 25) is GRANTED in part to

the extent Counts I through IX are dismissed with prejudice for Plaintiff’s

failure to state a plausible claim for relief. Given the Court declines to exercise

supplemental jurisdiction over the remaining state-law claims, the remainder

of the motion is DENIED as moot.

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2. Defendant Dr. Solano’s motion to dismiss (Doc. 26) is DENIED as

moot.

3. Plaintiff's state-law claims asserted in Counts X through XV are

dismissed without prejudice.

4, The Clerk shall enter judgment accordingly, terminate any

pending motions as moot, and close the case.

DONE AND ORDERED at Jacksonville, Florida, this 17th day of

August 2023.

4 YQ:

Demet) Ben

BRIAN/J . DAVIS

United States District Judge

Jax-6

C: Steven Winch

Counsel of Record

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