# Ray v. Secretary, Department of Corrections

> District Court, M.D. Florida · August 29, 2023

URL: https://www.frixlaw.com/law-library/cases/10113892

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** August 29, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10113892

## How later opinions describe it (automated extraction)

- holding that § 1983 applies to municipalities but liability arises only when a “municipal policy of some nature cause[s] a constitutional tort”
- holding a prisoner failed to state a plausible claim where he alleged that more should have been done to diagnose his back injury and treat his pain

## Opinion text

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION

EARL JAMES RAY,

Plaintiff,

v. Case No. 3:23-cv-365-BJD-MCR

SECRETARY, DEPARTMENT OF
CORRECTIONS, et al.,

Defendants.
_______________________________

ORDER OF DISMISSAL WITHOUT PREJUDICE

I. Status
Plaintiff, Earl James Ray, an inmate of the Florida penal system,
initiated this action pro se by filing a complaint for the violation of civil rights
under 42 U.S.C. § 1983 (Doc. 1; Compl.), along with exhibits (Docs. 1-1 through
1-5; Compl. Exs. A-E), a motion to proceed in forma pauperis (Doc. 2), and a
motion to appoint counsel (Doc. 3). Plaintiff names three Defendants for their
alleged deliberate indifference to his serious medical needs: Ricky Dixon, the
Secretary of the Florida Department of Corrections (FDC); Centurion of
Florida, LLC, a company under contract with the FDC to provide medical care
for inmates; and Dr. Anthony Massaro, an oral surgeon who performed surgery
on Plaintiff on April 9, 2019. See Compl. at 2-3, 5. Plaintiff alleges Dr. Massaro
“severed numerous nerves on the left side of [his] tongue” during a molar
extraction, which has caused chronic numbness and pain. Id. at 5. He contends
he has permanent nerve damage, and treatment for the issue was denied or

delayed due to policies, practices, or customs of “unnecessarily delaying or
denying proper and timely treatment to inmates.” Id. at 4, 6.
II. Standard of Review
The Prison Litigation Reform Act (PLRA) requires a district court to

dismiss a complaint if the court determines it is frivolous, malicious, or fails to
state a claim on which relief may be granted. 28 U.S.C. §§ 1915(e)(2)(B),
1915A(b)(1). 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.
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

2
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 & Exhibits1
Plaintiff acknowledges in his complaint that he received medical care for
his initial injury—an impacted wisdom tooth. See Compl. at 5. He had surgery
on April 9, 2019. Id. See also Compl. Ex. B at 2 (March 21, 2019 medical record

documenting Plaintiff’s pre-surgery evaluation by Dr. Massaro). Plaintiff
alleges, and his accompanying medical records confirm, Dr. Massaro nicked
Plaintiff’s tongue with a dental drill, causing permanent nerve damage and
burning/tingling on the left side of his tongue. See Compl. at 5-6. See also

Compl. Ex. B at 11. Plaintiff complains that, after the surgery, he “received no
treatment for the extreme and continuous pain and burning throughout the
left side of his tongue for more than six (6) months.” See Compl. at 6. He further

1 In reviewing the facial sufficiency of a complaint, a court may consider
extrinsic evidence when a document “is central to the plaintiff’s claim” and
incorporated by reference in the complaint. See Brooks v. Blue Cross & Blue
Shield of Fla., Inc., 116 F.3d 1364, 1368-69 (11th Cir. 1997).
3
alleges, “For years, Defendants led [him] to believe that he was being
scheduled to be treated, but the Defendants had no intention of treating [him].

Instead, the Defendants withheld treatment from Plaintiff for approximately
fifteen (15) months.” Id. at 7.
Plaintiff’s own allegations, grievance records, and medical records belie
his assertions that he received no care for six months after the surgery and

that care was unnecessarily and intentionally delayed for fifteen months at
some later time. For instance, Plaintiff contends in his complaint and in
grievances that the dentist at Tomoka Correctional Institution (TCI), Dr.
Calcagno, saw him immediately after the surgery and prescribed antibiotics

for an infection that appears to have been unrelated to the nerve damage. Id.
See also Compl. Ex. A at 11. Dr. Calcagno was aware of the nerve damage and
told Plaintiff he would need to wait six months to a year to see if it would heal
on its own. See Compl. at 6. Dr. Calcagno informed Plaintiff the nerve may

never heal. Id. See also Compl. Ex. A at 11.
Although Dr. Calcagno told Plaintiff he would have to wait at least six
months for his tongue to have time to heal on its own, Dr. Calcagno, “continued
to place [him] on the call-out [list]” to check the status of his injury. See Compl.

Ex. A at 11, 13. Indeed, Plaintiff had follow-up or sick-call appointments with

4
Dr. Calcagno on the following dates: September 9, 2019; September 16, 2019;
October 1, 2019; and October 8, 2019. See Compl. Ex. B at 3.

Plaintiff concedes in his complaint that Dr. Calcagno referred him to the
Reception and Medical Center (RMC) to be seen by a specialist. See Compl. at
6. He does not say when the referral was made, but based on grievance and
medical records, it appears Dr. Calcagno made the referral after monitoring

Plaintiff’s condition for about six months. See Compl. Ex. A at 11, 13; Compl.
Ex. B at 3. While Plaintiff was waiting to be seen at RMC, he continued seeing
providers at TCI: on January 27, 2020, Dr. Popa noted Plaintiff had been
referred to RMC, but the appointment was never scheduled. See Compl. Ex. B

at 4; Compl. Ex. D at 5. Dr. Popa wrote another referral for Plaintiff to be seen
at RMC but told Plaintiff that “possibly nothing can be done for [the issue].”
See Compl. Ex. B at 4.
Plaintiff continued treating with Dr. Popa while waiting for his RMC

appointment, which was delayed because of COVID-19. See id. at 4-6. See also
Compl. Ex. A at 11-12. In grievance responses dated May 12, 2020, and August
19, 2020, Plaintiff was informed, “Due to COVID-19 presently there is no
movement on the compound except for emergent care,” but he would “be seen

when transportation between institutions resumes.” See Compl. Ex. A at 12,
16. On July 16, 2020, Dr. Popa noted Plaintiff was on the list to be seen at

5
RMC, and on September 9, 2020, Dr. Popa called RMC to have him moved up
on the list because Tylenol was providing him no relief. See Compl. Ex. B at 6-

7.
Plaintiff had an appointment with Dr. D. Smith, an oral and
maxillofacial surgeon at RMC, on September 21, 2020. Id. at 15, 19. See also
Compl. Ex. A at 20. The notes regarding the diagnosis and treatment plan are

difficult to read, but Dr. Smith noted Plaintiff should return in three months,
which he did, on January 1, 2021. See Compl. Ex. B at 8, 15, 19. A January 13,
2021 entry by Dr. Popa notes that “RMC . . . could not help [Plaintiff] [with
the] burning [of his] tongue.” Id. at 8. Dr. Smith saw Plaintiff again on March

8, 2021. Id. at 9. Again, the notes are difficult to read, but a March 10, 2021
entry by Dr. Popa notes that Plaintiff did “not want to return to RMC” for more
appointments. Id. See also Compl. Ex. D at 7 (refusal form). Plaintiff alleges in
his complaint that Dr. Smith informed him “[he] would have to live with this

injury [for] the rest of his life,” and he (Dr. Smith) did not recommend Plaintiff
attempt a surgical solution (if there was one) while he was in prison. See
Compl. at 7. On April 5, 2021, Dr. Popa dispensed Ibuprofen for pain. See
Compl. Ex. B at 10.

6
On April 20, 2021, and May 10, 2021,2 Dr. Popa noted Plaintiff had a
“chronic condition” for which there was “no cure.” Id. at 11. Dr. Popa dispensed

more Ibuprofen at both appointments. Id. Plaintiff returned to Dr. Popa again
on June 9, 2021, and on June 10, 2021, Dr. Popa ordered another RMC consult.
Id. at 12. Plaintiff had another appointment with Dr. Smith at RMC on June
28, 2021. Id. The notes are difficult to read, but it appears Dr. Smith

recommended that Plaintiff follow-up as needed. Id. On July 6, 2021, Dr. Popa
evaluated Plaintiff, noting he had a history of nerve damage for which the
treatment plan was “pall[i]ative” care. Id. at 13. Dr. Popa dispensed more
Ibuprofen. Id. Plaintiff refused his August 4, 2021 appointment. Id. On

September 17, 2021, he was seen in sick-call for a “limited evaluation.” Id.
Plaintiff was seen in sick-call again on October 4, 2021. Id. at 16. He
failed to show for his scheduled October 6, 2021 appointment with dental
because of a security issue. Id. He treated with a dental nurse on October 12,

2021, October 27, 2021, November 10, 2021, and December 1, 2021. Id. at 17-
18. The nurse referred him to an oral surgeon in October. Id. at 18. See also
Compl. Ex. D at 9 (referral for oral surgery consult).

2 For the April 20th appointment, the year is noted to be “2019,” but that
appears to be a scrivener’s error. See Compl. Ex. B at 11.
7
On January 10, 2022, Plaintiff was seen at RMC and a request for a
neurology consult was submitted for his chronic left tongue paresthesia. See

Compl. Ex. C at 2-4, 17, 19. It appears he had appointments regularly between
January 10, 2022 and July 15, 2022, when another neurology consultation
request was submitted by Dr. Asbelti Llorens, along with an order for a brain
MRI. Id. at 23, 30. Plaintiff had a brain MRI on August 24, 2022, which was

largely unremarkable. Id. at 32-33. Plaintiff treated with Dr. Iman Naseri at
RMC on December 12, 2022. See Compl. Ex. D at 12. Dr. Naseri prescribed a
trial of triamcinolone oral paste and told Plaintiff to follow-up in two to three
months. Id. at 13.

IV. Deliberate Indifference Standard
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

8
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

9
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 v. Thigpen, 941 F.2d 1495, 1510 (11th Cir. 1991)). As such,
allegations that prison medical providers “could be doing more, doing better”
do not satisfy the stringent deliberate indifference standard. Id. 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.” Wade, 67
F.4th 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). See also Estelle, 429 U.S. at 106, 107 (holding a prisoner
failed to state a plausible claim where he alleged that more should have been
done to diagnose his back injury and treat his pain).
When a plaintiff has received some treatment, to plead a deliberate-

indifference claim, he must allege facts showing the care he received was “so
grossly incompetent, inadequate, or excessive as to shock the conscience or to
be intolerable to fundamental fairness.” Harris, 941 F.2d at 1505 (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

10
despite knowledge of a substantial risk of serious harm.” Stone v. Hendry, 785
F. App’x 763, 769 (11th Cir. 2019)3 (quoting Whitley v. Albers, 475 U.S. 312,

319 (1986)).
If a plaintiff plausibly alleges a medical provider was deliberately
indifferent to his serious medical needs, he must allege more to proceed on a
claim against the provider’s supervisor or employer because, under § 1983, a

claim must be premised on something more than a theory of respondeat
superior or 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). See also Brown v. Crawford, 906 F.2d 667, 671 (11th Cir.

1990) (“It is axiomatic, in [§] 1983 actions, that liability must be based on
something more than a theory of respondeat superior.”).
A claim against a supervisor arises 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.” Id. Absent direct involvement by a supervisor—
such as when the supervisor knows a subordinate will act unlawfully or adopts
a policy that results in deliberate indifference to inmates’ constitutional

3 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).
11
rights—the requisite causal connection “can be established when a history of
widespread abuse puts the responsible supervisor on notice of the need to

correct the alleged deprivation, and he fails to do so.” See id.; Cottone, 326 F.3d
at 1360. A plaintiff relying on the “history of widespread abuse” theory must
demonstrate the past deprivations were “obvious, flagrant, rampant and of
continued duration,” such that the supervising official was on notice of the need

to take corrective action. See Brown, 906 F.2d at 671.
Similarly, to proceed against a municipality, including a private medical
services provider under contract with a municipality,4 a plaintiff must allege
the existence of a “custom or policy that constituted deliberate indifference to

[a] constitutional right” and that 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”).

4 “[W]hen a private entity ... contracts with a county 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) (second alteration in original) (internal quotation marks
omitted) (quoting Buckner v. Toro, 116 F.3d 450, 452 (11th Cir. 1997)).
12
When a plaintiff premises a claim for supervisory or municipal liability
on an unconstitutional-policy theory, his allegations cannot be conclusory. See

Rankin v. Bd. of Regents of the Univ. Sys. of Ga., 732 F. App’x 779, 783 (11th
Cir. 2018). Instead, a plaintiff must allege facts “show[ing] a persistent and
wide-spread practice.” Goebert v. Lee Cnty., 510 F.3d 1312, 1332 (11th Cir.
2007) (quoting Depew v. City of St. Mary’s, Ga., 787 F.2d 1496, 1499 (11th Cir.

1986)). “A single incident of a constitutional violation is insufficient to prove a
policy or custom even when the incident involves several employees.” Craig,
643 F.3d at 1311. See also Rankin, 732 F. App’x at 783 (reasoning that the
“claim [against the supervisor] fail[ed] because most of the allegations

supporting it [were] conclusory, and to the extent some [were] based on facts,
they [were] limited to [the plaintiff’s] own experience”).
V. Analysis
Plaintiff fails to state a plausible deliberate indifference claim against

Dr. Massaro. Accepting that Dr. Massaro nicked Plaintiff’s tongue, causing
permanent damage, including numbness, tingling, and pain, such conduct
constitutes mere negligence. Plaintiff himself acknowledges that, in
attempting to find a lawyer to represent him, the lawyers he contacted

described the claim as one of “medical malpractice.” See Compl. Ex. E at 13,
17. That Plaintiff suffered a permanent injury appears indisputable and is

13
regrettable. However, “[a]ccidents, mistakes, negligence, and medical
malpractice are not constitutional violation[s] merely because the victim is a

prisoner.” Harris v. Coweta Cnty., 21 F.3d 388, 393 (11th Cir. 1994) (second
alteration in original) (internal quotation marks omitted) (quoting Estelle, 429
U.S. at 106).
Plaintiff’s claims against Centurion and the Secretary of the FDC also

fail. To the extent Plaintiff’s claims against these Defendants are premised on
an underlying violation by Dr. Massaro, the claims necessarily fail because he
does not state a plausible deliberate indifference claim against Dr. Massaro.
“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)).
To the extent Plaintiff’s claims against Centurion and the FDC are based

on alleged personal participation through the adoption of policies or customs,
he fails to state a plausible claim for relief. Despite Plaintiff’s conclusory
assertions that treatment for the nerve damage to his tongue was delayed or
denied, his allegations and supporting records demonstrate he received

consistent medical care, including referrals to specialists. Accepting as true
that Plaintiff’s initial appointment with a specialist at RMC was not

14
immediately scheduled when Dr. Calcagno requested the appointment in
October 2019, Plaintiff’s allegations do not permit the reasonable inference the

failure was attributable to an official policy, custom, or practice of Centurion
or the FDC. On the contrary, it appears to have been an oversight or error on
the part of an unknown and unnamed individual, and, when the oversight was
discovered, Dr. Popa submitted another referral. Additionally, Plaintiff alleges

no facts demonstrating scheduling errors occurred with such regularity that
prison officials were on notice of deprivations that were “obvious, flagrant,
rampant and of continued duration.” See Brown, 906 F.2d at 671. Rather,
Plaintiff’s allegations regarding delayed medical care revolve around his own

experiences. See Rankin, 732 F. App’x at 783.
Even if the decision by Centurion or the FDC not to transport inmates
for routine medical appointments during the height of the COVID-19 pandemic
constitutes an official policy, Plaintiff’s allegations do not permit the

reasonable inference the policy “constituted deliberate indifference to [a]
constitutional right” or caused a constitutional violation. See Moody, 609 F.
App’x at 967. Plaintiff continued being seen by providers at TCI while he
waited for his appointment at RMC. Moreover, Plaintiff himself acknowledges,

and his records demonstrate, the injury he sustained is permanent and his
treatment options merely palliative, not curative. See Compl. at 7-8. See also

15
See Compl. Ex. B at 11, 13. Thus, any delay in seeing a specialist could not
have impact his prognosis or treatment plan.
VI. Conclusion
For the reasons stated, Plaintiff fails to state a plausible deliberate
indifference claim against the named Defendants, and his complaint is due to
be dismissed.
Accordingly, it is
ORDERED:
1. This case is DISMISSED without prejudice.
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 29th day of
August 20238.

Zi NO -
KM) Armas

United States District Judge

Jax-6
C: Earl James Ray

16

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10113892. Public record. Not legal advice.