Burton v. Espino

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

JONATHAN MICHAEL BURTON,

Plaintiff,

v. Case No. 3:21-cv-597-BJD-MCR

GONZALO A. ESPINO, M.D.,

Defendant.

______________________________

ORDER

I. Status

Plaintiff, Jonathan Michael Burton, an inmate in the custody of the

Florida Department of Corrections (FDOC), initiated this action by filing a pro

se complaint under 42 U.S.C. § 1983. Doc. 1. He is proceeding on a Second

Amended Complaint (Doc. 22). Plaintiff sues one Defendant – Gonzalo A.

Espino, M.D. Id. at 2. He alleges Defendant acted deliberately indifferent to

his serious medical needs following a use of force. See generally id.

Before the Court is Defendant’s Motion to Dismiss (Doc. 50; Motion). The

Court advised Plaintiff that granting a motion to dismiss would be an

adjudication of the claim that could foreclose any subsequent litigation and

provided Plaintiff with an opportunity to respond. See Order (Doc. 12). Plaintiff

filed two responses opposing the Motion (Docs. 60, 62). Thus, the Motion is ripe

for the Court’s review.

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

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. Plaintiff’s Allegations

Plaintiff alleges that on April 21, 2020, while housed at Florida State

Prison, officers engaged in two uses of excessive force resulting in severe

injuries. Doc. 22 at 13. According to Plaintiff, the first use of force occurred

while Officers Mitchell and Smith were escorting him back to his cell after a

mental health meeting. Id. He asserts Smith used his radio to hit Plaintiff in

the head, causing a large laceration, and Mitchell “snapp[ed]” Plaintiff’s left

ring finger while punching and kicking him. Id. Medical evaluated Plaintiff

following the first use of force and used Dermabond to close Plaintiff’s

headwound. Id. at 13-14.

Plaintiff contends that after the exam, while officers escorted him back

to his cell, he advised the officers that his head hurt, he suffers from epilepsy,

and he was experiencing “unbearable pain” in his knee, hand, and ribs. Id.

Plaintiff alleges he then refused to enter his cell and declared a medical

emergency. Id. According to Plaintiff, in response to his declaration, four

officers began physically beating him. Id. at 13-14. He asserts the use of force

caused his headwound to reopen and begin “bleeding badly” and he sustained

new injuries. Id. at 14. Plaintiff states Nurse Waite then “refused to see” his

new injuries. Id. According to Plaintiff, once he was placed in his cell and

officials left, he suffered two seizures. Id.

Plaintiff asserts that Defendant Espino evaluated him for the first time

on April 23, 2020. Id. Plaintiff maintains that as soon as he entered Defendant

Espino’s exam room, Defendant Espino stated, “I got your grievances!” before

yelling, “He’s done!” and demanding officers escort Plaintiff out of the office.

Id. Plaintiff argues he then asked Defendant Espino to examine his

headwound, told him about his two seizures, and explained he was

experiencing pain and swelling in his fingers, ribs, and knee. Id. Defendant

Espino replied, “Think about that next time you write a grievance[,] [g]et out

of here!” Id. According to Plaintiff, he later learned that after that encounter,

Defendant Espino ordered x-rays for Plaintiff’s chest, left hand, left knee, and

left ribs. Doc. 22 at 14; Doc. 22-1 at 4-5. The x-rays were conducted on April 27,

2023, and showed Plaintiff’s left hand, knee, and ribs appeared normal with no

fractures or dislocation, and his chest appeared normal. Id.

Plaintiff asserts that in the months that followed, his head and hand

injuries got significantly worse and he continuously filed sick-call requests and

grievances requesting medical care for those injuries. Doc. 22 at 14. He

contends that in response to those sick-call requests, another doctor ordered x-

rays for both Plaintiff’s hands. Doc. 22 at 14. According to Plaintiff, the second

set of x-rays, conducted on July 27, 2020, showed a “new ring finger [proximal

interphalangeal (PIP)] joint flexion deformity” on his left hand, as well as

“index and long fingers PIP joints” flexion on his right hand. Id.; Doc. 22-1 at

6. He contends Defendant Espino’s failure to provide adequate medical care

caused his injuries to worsen, as the July 2020 x-ray results show. Doc. 22 at

14.

Plaintiff contends that two months after the July x-ray, in September,

Nurse K. Cribb falsified medical documents “to cover up [Defendant] Espino[’s]

failure to treat [ ] Plaintiff’s serious medical need” by erroneously documenting

that Plaintiff’s pain does not radiate despite Plaintiff’s continuous complaints

that his pain “was extreme and [ ] runs up [his] arm.” Id. at 14-15. He also

alleges Sergeant Harper and Nurse Waite helped cover up Defendant Espino’s

actions by refusing to take Plaintiff to his follow-up exam and instead

erroneously documenting that Plaintiff refused to attend his call-out.1 Id. at

15. According to Plaintiff, in September 2020, soon after he was diagnosed with

“deformity/PIP joint flexion,” officials sent him to Reception and Medical

Center for an orthopedic consult. Id. The orthopedic specialist diagnosed

Plaintiff with Boutonnières deformity on his right index finger and left ring

finger; noted a forty-five-degree flexion contraction on Plaintiff’s left ring PIP

joint and right index PIP joint; and documented a reduced range of motion.

Doc. 22-1 at 9 The orthopedic specialist recommended Plaintiff undergo

physical therapy to regain range of motion in both hands. Id. Plaintiff asserts

the documented hand injuries were so obvious that even a lay person would be

on notice of Plaintiff’s need for medical care. Id.

Plaintiff states that Defendant Espino denied the orthopedic doctor’s

physical therapy recommendation. Doc. 22 at 15. Plaintiff attaches to his

Second Amended Complaint his November 3, 2020, medical record, in which

Defendant Espino documented the orthopedic specialist’s physical therapy

recommendation and noted, “not approved condition.” Doc. 22-1 at 12.

According to Plaintiff, when he denied Plaintiff physical therapy, Defendant

Espino stated, “I told you about writing those grievances on me[,] get out of my

1 Plaintiff alleges Defendant Espino was not at work during a portion of the

relevant timeframe. See Doc. 22 at 15.

office.” Doc. 22 at 15. Plaintiff argues Defendant Espino has continuously

denied Plaintiff’s requests for medical care to treat his head and hand injuries,

violating his rights under the Eighth and Fourteenth Amendments. Id. at 16.

As to his head injury, Plaintiff alleges his hereditary epilepsy is a serious

medical need that became worse following the April 21, 2020, uses of force;

Defendant Espino knows about Plaintiff’s epilepsy diagnosis and knew about

Plaintiff’s head injury; Defendant Espino never treated Plaintiff’s head injury;

and Defendant Espino’s failure to provide medical care caused Plaintiff to

suffer two seizures, reoccurring bleeding, long-lasting pain, and sleepless

nights. Id. at 16-17. As to Plaintiff’s hand injuries, Plaintiff asserts he now

suffers from Boutonnières deformity/flexion; Defendant Espino knows about

this serious medical need as the injuries/deformities are so obvious that even

a lay person would know he needs medical attention; Defendant Espino has

provided no medical treatment and refused to approve the recommended

physical therapy; and Defendant Espino’s failure caused Plaintiff’s injuries to

worsen. Plaintiff considers his hand injuries to be the more serious medical

need, and he has repeatedly asked for medical care but has received no

treatment. Id. at 17. Plaintiff attaches to his Second Amended Complaint

several medical records, sick-call requests, and administrative grievances. See

generally Docs. 22-1 through 22-3. He requests declaratory relief and

compensatory and punitive damages. Id. at 17-18.

IV. Analysis

In his Motion, Defendant Espino requests that the Court dismiss this

action and the claims against him. See generally Doc. 50. First, Defendant

Espino argues that the Eighth Amendment applies to Plaintiff’s deliberate

indifference claim and thus his Fourteenth Amendment due process claim

must be dismissed. Id. at 18. When a constitutional amendment “provides an

explicit textual source of constitutional protection,” that amendment guides

the analysis, “not the more generalized notion of ‘substantive due process.’”

Graham v. Connor, 490 U.S. 386, 395 (1989). Here, the Eighth Amendment

provides the explicit source for Plaintiff’s allegations. Thus, the Fourteenth

Amendment is inapplicable, and Defendant Espino’s Motion is due to be

granted on this issue.

Next, Defendant Espino argues Plaintiff’s state-based “medical

negligence” claims must be dismissed because Plaintiff failed to comply with

the presuit requirements in Chapter 776 of the Florida Statutes. Doc. 50 at 18.

In response, Plaintiff clarifies that he brings his claims under only 42 U.S.C. §

1983 and § 1983 does not require Plaintiff to comply with Chapter 776’s presuit

notice. Doc. 62 at 9. Considering Plaintiff’s response, Defendant Espino’s

Motion is due to be denied as moot on this issue.

Finally, Defendant Espino argues this action should be dismissed

because Plaintiff fails to state an Eighth Amendment claim upon which relief

can be granted; and Plaintiff is not entitled to punitive damages because he

fails to plausibly allege conduct that is willful and malicious. Doc. 50 at 11-18.

To state a claim under 42 U.S.C. § 1983, a plaintiff must allege that (1)

the defendant deprived him of a right secured under the United States

Constitution or federal law, and (2) such deprivation occurred under color of

state law. Salvato v. Miley, 790 F.3d 1286, 1295 (11th Cir. 2015); Bingham v.

Thomas, 654 F.3d 1171, 1175 (11th Cir. 2011) (per curiam) (citation omitted);

Richardson v. Johnson, 598 F.3d 734, 737 (11th Cir. 2010) (per curiam)

(citations omitted). The Eleventh Circuit also requires “‘an affirmative causal

connection between the official’s acts or omissions and the alleged

constitutional deprivation’ in § 1983 cases.” Rodriguez v. Sec’y, Dep’t of Corr.,

508 F.3d 611, 625 (11th Cir. 2007) (quoting Zatler v. Wainwright, 802 F.2d 397,

401 (11th Cir. 1986)). Moreover, “conclusory allegations, unwarranted

deductions of facts, or legal conclusions masquerading as facts will not prevent

dismissal.” Rehberger v. Henry Cnty., Ga., 577 F. App’x 937, 938 (11th Cir.

2014).2 Absent a federal constitutional deprivation or violation of a federal

right, a plaintiff cannot sustain a cause of action against a defendant.

2 The Court does not rely on unpublished opinions as binding precedent; however, they

may be cited in this Order when the Court finds them persuasive on a particular point. See

McNamara v. GEICO, 30 F.4th 1055, 1060–61 (11th Cir. 2022); see generally Fed. R. App. P.

32.1; 11th Cir. R. 36-2 (“Unpublished opinions are not considered binding precedent, but they

may be cited as persuasive authority.”).

“To show that a prison official acted with deliberate indifference to

serious medical needs [under the Eighth Amendment], a plaintiff must satisfy

both an objective and a subjective inquiry.” Brown v. Johnson, 387 F.3d 1344,

1351 (11th Cir. 2004) (quoting Farrow v. West, 320 F.3d 1235, 1243 (11th Cir.

2003)). First, the plaintiff must satisfy the objective component by showing he

had a serious medical need. Goebert v. Lee Cnty., 510 F.3d 1312, 1326 (11th

Cir. 2007).

“A serious medical need is considered ‘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.’” Id. (citing Hill v. Dekalb Reg’l

Youth Det. Ctr., 40 F.3d 1176, 1187 (11th Cir. 1994)).

In either case, “the medical need must be one that, if

left unattended, pos[es] a substantial risk of serious

harm.” Id. (citation and internal quotations marks

omitted).

Brown, 387 F.3d at 1351. Next, “[t]o make out the subjective component of an

Eighth Amendment deliberate-indifference claim, a plaintiff must establish

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).

Here, Defendant Espino does not dispute that Plaintiff’s hand injuries

constitute a serious medical need.3 See generally Doc. 50. Rather, he asserts he

was not deliberately indifferent to Plaintiff’s hand injuries by conduct that was

more than negligence. Id. at 11-17. According to Defendant Espino, “the facts

alleged by Plaintiff constitute nothing more than claims for medical

malpractice and/or Plaintiff’s disagreement with the treatment course pursued

by several health care professionals over the course of 2020.” Id. at 11. He

asserts that the allegations in the Second Amended Complaint and the

attachments thereto show several health care providers treated, saw, and

assessed Plaintiff’s hand injuries for months. Id. at 14. Defendant Espino

contends Plaintiff underwent x-rays and even consulted an orthopedic surgeon.

Id. According to Defendant Espino, while Plaintiff believes he should have

received the recommended physical therapy, Defendant Espino, in his medical

judgment, determined physical therapy was unnecessary based on his

observations. Id. at 15. Instead, Defendant Espino argues Plaintiff merely

disagrees with the course of treatment for his finger injuries, but this dispute

in treatment does not rise to a constitutional violation. Id.

3 Defendant Espino does not seek to dismiss Plaintiff’s Eighth Amendment

claim regarding his head injury, and thus, the Court does not address those

allegations.

The “receipt of some medical care does not automatically defeat a claim

of deliberate indifference.” Edwards v. Snyder, 478 F.3d 827, 831 (7th Cir.

2007); see also Arnett v. Webster, 658 F.3d 742, 751 (7th Cir. 2011) (prisoner

need not show that his or her medical needs were “literally ignored”).4

Deliberate indifference may occur where a prison official, knowing about a

significant risk to inmate health or safety, administers “blatantly

inappropriate” medical treatment, Edwards, 478 F.3d at 831, acts in a manner

contrary to the recommendation of specialists, Arnett, 658 F.3d at 753, or

delays a prisoner’s treatment for non-medical reasons, thereby exacerbating

his pain and suffering, McGowan v. Hulick, 612 F.3d 636, 640 (7th Cir. 2010).

Here, Plaintiff alleges that after the use of force, Defendant Espino

briefly examined him and documented a 0.25 cm abrasion on his left middle

finger and a 0.5 cm abrasion on his left ring finger. See Doc. 22-1 at 2.

Defendant Espino also ordered x-rays of Plaintiff’s left hand. Id. at 4-5. But,

according to Plaintiff, over the next seven months, Defendant Espino ignored

Plaintiff’s requests for medical assistance and refused to provide him any care

for his hand injuries. Doc. 22 at 17. As a result of Defendant Espino’s lack of

treatment, Plaintiff alleges his hand injuries have significantly worsened.

4 The Court does not rely on decisions of other circuits, published or

unpublished, as binding precedent; however, they may be cited in this Order when

the Court finds them persuasive on a particular point. See United States v. Rosenthal,

763 F.2d 1291, 1295 n.4 (11th Cir. 1985).

Indeed, while the April 2020 x-ray of Plaintiff’s left hand appeared normal, the

July 2020 x-ray revealed a left ring finger PIP joint flexion deformity and

flexion of the right index and long finger PIP joints. Doc. 22-1 at 4-6. Plaintiff

has been diagnosed with Boutonnières deformity/flexion, he has lost the ability

to grasp objects, and his range of motion has decreased. Doc. 22-1 at 9-10. In

October 2020, an orthopedic specialist recommended Plaintiff undergo physical

therapy to regain the range of motion in his hands. Id. at 10. According to

Plaintiff, however, Defendant Espino refused to follow the specialist’s

recommendation and continues to refuse any alternative treatment for these

injuries despite Plaintiff’s repeated requests for medical care. Doc. at 20 at 17

At this stage, taking Plaintiff’s allegations as true, as the Court must,

Plaintiff has sufficiently alleged Defendant Espino has disregarded Plaintiff’s

need for medical care by conduct that is more than negligence. Plaintiff also

sufficiently alleges that he suffered more physical injuries because of

Defendant Espino’s alleged deliberate indifference. Likewise, given Plaintiff

alleges Defendant was deliberately indifferent to his serious medical needs, a

standard that is equated 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.’”). Thus, Defendant Espino’s Motion is due to be

denied as to these issues.

V. New Claim in Plaintiff’s Response

Plaintiff argues in his response that he also brings a First Amendment

retaliation claim against Defendant Espino. See Doc. 60 at 13. Defendant

Espino does not address the purported First Amendment retaliation claim in

his Motion. See generally Doc. 50. Even though Plaintiff does not explicitly

reference the First Amendment in his Second Amended Complaint, he asserts

Defendant Espino refused to provide medical care because he filed grievances.

Doc. 22 at 14, 15. Liberally construing his pro se allegations, the Court finds

Plaintiff’s Second Amended Complaint gives Defendant Espino fair notice that

Plaintiff is attempting to raise a First Amendment retaliation claim.

Accordingly, it is

ORDERED:

1. Defendant Espino’s Motion to Dismiss (Doc. 50) is GRANTED in

part and DENIED in part. The Motion is GRANTED to the extent that

Plaintiff’s Fourteenth Amendment claim is DISMISSED with prejudice.

The Motion (Doc. 50) is otherwise DENIED.

2. Defendant Espino must file an answer to the Second Amended

Complaint by September 18, 2023. After Defendant Espino files his answer,

the Court will set further deadlines by separate order.

3. The parties are encouraged to discuss the possibility of settlement

and notify the Court if their efforts are successful. In doing so, Plaintiff and

Defendant are encouraged to maintain a realistic approach in making and/or

considering any settlement offers.

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

August, 2028.

J) i

(I Mon ,j. or

BRIAN/I, DAVIS

United States District Judge

Jax-7

C: Jonathan Michael Burton, #Y50899

Counsel of record

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