# Burton v. Espino

> District Court, M.D. Florida · August 17, 2023

URL: https://www.frixlaw.com/law-library/cases/10113769

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** August 17, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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

14

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10113769. Public record. Not legal advice.