The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
OCALA DIVISION
ROMANCEE OSHAY GEORGE,
Plaintiff,
v. Case No.: 5:21-cv-632-SPC-PRL
KRISTIE MATHIEU and NEIL
FUCHLER,
Defendants.
/
OPINION AND ORDER
Before the Court is Defendants’ Motion to Dismiss/Alternative Motion
for a More Definite Statement (Doc. 44).
Background
Plaintiff Romancee Oshay George is a federal prisoner, and he brings
this Bivens1 action against two prison nurses in their individual capacities.
The Court recounts the factual background as pled in George’s Amended
complaint, which it must take as true to decide whether the Amended
complaint states a plausible claim. See Chandler v. Sec’y Fla. Dep’t of Transp.,
695 F.3d 1194, 1198-99 (11th Cir. 2012).
George is a carrier of human immunodeficiency virus (HIV), and he takes
medication to manage the infection. On December 4, 2020, George arrived at
1 Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971).
USP Coleman with a 7-day supply of his medication. He claims, “Medical was
suppose [sic] to put a refill but failed to do so.” (Doc. 21 at 5). George submitted
several written requests for a refill to defendants Mathieu and Fulcher, both
nurses at USP Coleman. George did not receive an immediate refill, and he
went without his medication from December 11-15, 2020. George blames the
missed doses for a drop in his CD4 cell count.2 In January 2021, George’s CD4
cell count was 533, and it rose to 588 in September 2021—George claims it was
normally in the 700s and 800s.
George asserts Fulcher and Mathieu were deliberately indifferent to his
serious medical need in violation of the Eighth Amendment. He seeks $1
million in compensatory damages and $1 million in punitive damages.
Defendants argue George fails to state a claim and seek dismissal with
prejudice under Federal Rule of Civil Procedure 12(b)(6). Alternatively, they
request a more definite statement. In response, George submitted about 50
pages of documents, none of which appear relevant to his claims against
Fulcher and Mathieu.
2 CD4 cells are an important part of the immune system—they help the body fight infections.
HIV attacks and lowers the number of CD4 cells in a person’s blood. Center for Disease
Control and Prevention, About Your Viral Load and CD4 Cell Count,
https://www.cdc.gov/hiv/basics/livingwithhiv/understanding-care.html (last visited January
3, 2024).
Legal Standard
When considering a motion to dismiss under Rule 12(b)(6), courts must
accept all factual allegations in the complaint as true and view them in a light
most favorable to the plaintiff. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
The preferential standard of review, however, does not let all pleadings
adorned with facts survive to the next stage of litigation. The Supreme Court
has been clear on this point—a district court should dismiss a claim when a
party does not plead facts that make the claim facially plausible. See Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is facially plausible when
a court can draw a reasonable inference, based on facts pled, that the opposing
party is liable for the alleged misconduct. See Iqbal, 556 U.S. at 678. This
plausibility standard requires “more than a sheer possibility that a defendant
has acted unlawfully.” Id. (citing Twombly, 550 U.S. at 557 (internal quotation
marks omitted)). And a plaintiff must allege more than labels and conclusions
amounting to a formulaic recitation of the elements of a cause of action.
Twombly, 550 U.S. at 555.
George is representing himself in this action. Courts hold the pleadings
of pro se litigants to a less stringent standard than pleadings drafted by
attorneys. Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998).
But courts do not have a duty to “re-write” a pro se litigant’s complaint to find
a claim. See Washington v. Dep’t of Children & Families, 256 F. App’x 326, 327
(11th Cir. 2007).
Discussion
Defendants first argue George has failed to state an Eighth Amendment
claim. In Estelle v. Gamble, the Supreme Court established that “deliberate
indifference to serious medical needs of prisoners constitutes the ‘unnecessary
and wanton infliction of pain,’ proscribed by the Eighth Amendment.” 429 U.S.
97, 104 (1976). But not every claim of inadequate medical treatment gives rise
to an Eighth Amendment violation. Id. at 105. Negligence in diagnosis or
treatment—even if it constitutes medical malpractice—does not necessarily
violate the constitution. Id. at 106.
“To prevail on a claim of deliberate indifference to serious medical need
in violation of the [Eighth] Amendment, a plaintiff must show: ‘(1) a serious
medical need; (2) the defendant['s] deliberate indifference to that need; and (3)
causation between that indifference and the plaintiff's injury.’” Youmans v.
Gagnon, 626 F.3d 557, 563 (11th Cir.2010) (quoting Mann v. Taser Int'l, Inc.,
588 F.3d 1291, 1306–07 (11th Cir. 2009)). In the Eleventh Circuit, “[a] serious
medical need is ‘one that has been diagnosed by a physician as mandating
treatment or one that is so obvious that a lay person would easily recognize the
necessity for a doctor’s attention.’” Shaw v. Allen, 701 F. App’x 891, 893 (11th
Cir. 2017) (quoting Farrow v. West, 320 F.3d 1235, 1243 (11th Cir. 2003)).
Deliberate indifference has three components: “(1) subjective knowledge
of a risk of serious harm; (2) disregard of that risk; (3) by conduct that is more
than mere negligence.” Bingham v. Thomas, 654 F.3d 1171, 1176 (11th Cir.
2011) (internal quotation marks omitted). “Conduct that is more than mere
negligence includes: (1) grossly inadequate care; (2) a decision to take an easier
but less efficacious course of treatment; and (3) medical care that is so cursory
as to amount to no treatment at all.” Id. But “a simple difference in medical
opinion between the prison’s medical staff and the inmate as to the latter’s
diagnosis or course of treatment does not support a claim of deliberate
indifference.” Wilson v. Smith, 567 F. App’x 676, 678 (11th Cir. 2014) (internal
citation and quotation marks omitted). “Moreover, matters of medical
judgment do not constitute deliberate indifference.” Id. (citing Estelle, 429 U.S.
at 107).
Defendants concede that HIV is a serious medical need, but they argue
George failed to plead facts showing deliberate indifference and causation. The
Court partially agrees. According to the Amended Complaint, George
submitted requests for a refill “everyday until [he] received his medication.”
(Doc. 21 at 6). But he does not state when he began making the requests, what
information he included in the requests, or how Mathieu and Fulcher
responded to the requests. Defendants, as medical professionals, presumably
understood the seriousness of an HIV infection. But the Amended Complaint
does not allege what Defendants knew about George’s condition and treatment
plan, when each of them learned that George needed a refill of his medication,
or what they did about it. The Court cannot infer deliberate indifference based
on such barebones factual allegations. It is not enough for George to allege
that he was harmed.
As for causation, Defendants argue George cannot show a compensable
injury from the missed doses because his CD4 count remained within a normal
range, and because George’s medical records show fluctuating CD4 levels
before the lapse. This argument is premature. The Court declines to consider
medical records outside the pleadings at this stage of the case. George alleged
the lapse in his access to medication caused his CD4 level to drop. The Court
accepts that allegation as true when considering Defendants 12(b)(6)
challenge. What is more, George claims he has had trouble getting timely drug
refills in the past, so historical fluctuations in his CD4 level could have been
caused by missed doses.
Defendants next argue this action falls outside the scope of Bivens. To
determine whether a claim is actionable under Bivens, courts make a two-step
inquiry. First, courts “ask whether the case presents a new Bivens context—
i.e., is it meaningfully different from the three cases in which the Court has
implied a damages action.” Egbert v. Boule, 142 S. Ct. 1793, 1803 (2022)
(cleaned up). Second, if the case presents a new context, “a Bivens remedy is
unavailable if there are ‘special factors’ indicating that the Judiciary is at least
arguably less equipped than Congress to ‘weigh the costs and benefits of
allowing a damages action to proceed.” Id. (quoting Ziglar v. Abbasi, 582 U.S.
120, 136 (2017)).
One of the cases that sets the bounds of Bivens is Carlson v. Green, 446
U.S. 14 (1980), which recognized a Bivens action for deliberate indifference to
serious medical needs under the Eighth Amendment. In Carlson, an inmate
named Joseph Jones, Jr. died in federal custody. Jones’s estate alleged that
certain prison officials,
being fully apprised of the gross inadequacy of medical facilities
and staff at the Federal Correction Center in Terre Haute, Ind.,
and of the seriousness of Jones' chronic asthmatic condition,
nonetheless kept him in that facility against the advice of doctors,
failed to give him competent medical attention for some eight
hours after he had an asthmatic attack, administered contra-
indicated drugs which made his attack more severe, attempted to
use a respirator known to be inoperative which further impeded
his breathing, and delayed for too long a time his transfer to an
outside hospital.
Carlson, 446 U.S. at 16 n.1.
Defendants point differences in the factual allegations here and in
Carlson: this action is based on failure to provide medicine, George’s condition
is chronic rather than emergent, and George did not die. Defendants argue
that under Egbert, distinctions like these are enough to put a claim in a new
Bivens context. But if that were true, every Bivens claim would present a new
context. Some courts have indeed found that slight factual differences are
enough to create a new context. See, e.g., Johnson v. Terry, No. 1:18-cv-1899-
AT-JSA, 2023 WL 3215538, at *7 (N.D. Ga. Jan. 30, 2023). Other courts note
that this approach would virtually—or perhaps entirely—eliminate Bivens
actions. And since Egbert did not overrule Bivens or Carlson, courts have
allowed deliberate indifference claims to proceed post-Egbert even though the
facts do not exactly match Carlson. See Duncan v. United States, No. 1:20-cv-
1685-SEG, 2023 WL 2370479, at *4-6 (N.D. Ga. Feb. 27, 2023).
All that said, it is premature to decide whether George’s claim fits into
an existing Bivens context. As explained above, George has not made sufficient
allegations about Defendants’ conduct to show they were deliberately
indifferent to his needs. The Court will give George one final opportunity to
amend his complaint. A second amended complaint must state what each
defendant knew about George’s condition, when he or she knew it, and how he
or she responded. The new factual allegations will inform an Egbert analysis.
A second amended complaint will also address Defendants’ final point.
They argue if the action is not dismissed with prejudice, the Court should order
George to plead with enough specificity to allow an analysis of qualified
immunity. Indeed, courts should consider qualified immunity as soon as
possible. Simmons v. Bradshaw, 879 F.3d 1157, 1162 (11th Cir. 2018). And
the Court must decide whether each defendant is entitled to qualified
immunity based on his or her own conduct. See Alcocer v. Mills, 906 F.3d 944,
951 (11th Cir. 2018). So when drafting a second amended complaint, George
may not plead against the defendants collectively. He must state specific
allegations against each defendant based on their own conduct.
Accordingly, it is now
ORDERED:
Defendants’ Motion to Dismiss/Alternative Motion for a More Definite
Statement (Doc. 44) is GRANTED in part and DENIED in part. George’s
Amended Complaint is DISMISSED without prejudice. George may file a
second amended complaint by February 10, 2023. Otherwise, the Court will
enter judgment and close this case without further notice.
DONE and ORDERED in Fort Myers, Florida on January 12, 2024.
UNITED STATES DISTRICT JUDGE
SA: FTMP-1
Copies: All Parties of Record