Deffendall v. Indian River County Sheriff

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 21-cv-14201-ALTMAN/Hunt

MARK EUGENE DEFFENDALL,

Plaintiff,

v.

SGT. KENNETH STINSON, et al.,

Defendants.

________________________________/

ORDER

On November 24, 2023, we entered an Order granting in part and denying in part the

Defendants’ Motion for Summary Judgment (the “MSJ Order”). See Deffendall v. Stinson, 2023 WL

8170937 (S.D. Fla. Nov. 24, 2023) (Altman, J.). In our MSJ Order, we denied summary judgment as

to Defendants Stinson, Brown, Bryant, Jones, and Goines; granted summary judgment in favor of

Defendant Nusser; and dismissed Defendant Hamilton from the case. See id. at *16. Unsatisfied with

this result, the Defendants ask us to reconsider our MSJ Order and to “enter summary judgment in

favor of Jones, Goines, and dismiss[ ] Brown, Stinson, and Bryant.” Motion for Reconsideration [ECF

No. 105] at 20.1 Because the Defendants have failed to persuade us that our MSJ Order was clearly

erroneous—or that it created some manifest injustice—we DENY their Motion for Reconsideration.

THE LAW

“When an action presents more than one claim for relief . . . or when multiple parties are

involved, the court may direct entry of a final judgment as to one or more, but fewer than all, claims

or parties only if the court expressly determines that there is no just reason for delay.” FED. R. CIV. P.

1 The Motion for Reconsideration is fully briefed. See Response in Opposition to Motion for

Reconsideration (“Response”) [ECF No. 108]; Defendants’ Reply Memorandum in Support of Their

Motion for Reconsideration (“Reply”) [ECF No. 109].

54(b). “Otherwise, any order or other decision, however designated, that adjudicates fewer than all the

claims or the rights and liabilities of fewer than all the parties”—like our MSJ Order—“does not end

the action as to any of the claims or parties and may be revised at any time before the entry of a

judgment adjudicating all the claims and all the parties’ rights and liabilities.” Ibid.

“Although Rule 54(b) does not delineate the parameters of a district court’s discretion to

reconsider interlocutory orders, [the Eleventh Circuit has] indicated that Rule 54(b) takes after Rule

60(b).” Herman v. Hartford Life and Accident Ins. Co., 508 F. App’x 923, 927 n.1 (11th Cir. 2013) (citing

Fernandez v. Bankers Nat’l Life Ins. Co., 906 F.2d 559, 569 (11th Cir. 1990)); see also id. at 927–28

(“Reconsideration of [an interlocutory order] is appropriate to correct manifest errors of law or

fact, and we will only reverse a district court’s recission of its interlocutory order for abuse of

discretion.” (cleaned up)). Under Rule 60(b), “the court may relieve a party . . . from a final judgment,

order or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect;

(2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time

to move for a new trial under Rule 59(b); (3) fraud[,] . . . misrepresentation, or misconduct by an

opposing party; (4) the judgment is void; (5) the judgment has been satisfied, released or discharged;

it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no

longer equitable; or (6) any other reason that justifies relief.” FED. R. CIV. P. 60(b).

But “[r]econsideration of a previous order is an extraordinary remedy to be employed

sparingly.” Burger King Corp. v. Ashland Equities, Inc., 181 F. Supp. 2d 1366, 1370 (S.D. Fla. 2002) (Gold,

J.) (cleaned up). “In order to reconsider a judgment[,] there must be a reason why the court should

reconsider its prior decision, and the moving party must set forth facts or law of a strongly convincing

nature to induce the court to reverse its prior decision.” Id. at 1369. “Courts have distilled three major

grounds justifying reconsideration: (1) an intervening change in controlling law; (2) the availability of

new evidence; and (3) the need to correct clear error or manifest injustice.” Benestad v. Johnson & Johnson,

2022 WL 5239598, at *1 (S.D. Fla. Oct. 4, 2022) (Singhal, J.) (emphasis added & cleaned up). Motions

for reconsideration, in other words, “cannot be used to relitigate old matters, raise argument or present

evidence that could have been raised prior to the entry of judgment. This prohibition includes new

arguments that were previously available, but not pressed.” Wilchombe v. TeeVee Toons, Inc., 555 F.3d

949, 957 (11th Cir. 2009) (cleaned up); see also Z.K. Marine Inc. v. M/V Archigetis, 808 F. Supp. 1561,

1563 (S.D. Fla. 1992) (Hoeveler, J.) (“It is an improper use of the motion to reconsider to ask the

Court to rethink what the Court already thought through—rightly or wrongly.” (cleaned up)).

ANALYSIS

I. Defendants Jones and Goines

The Defendants first say that we made three mistakes in denying Jones’s and Goines’s requests

for summary judgment: (1) that we allowed Deffendall to “assert a new theory of liability at the

summary judgment stage,” Motion at 6; (2) that we applied the wrong legal standard by failing to

consider whether “the medical care provided by Jones and Goines . . . was so grossly incompetent as

to shock the conscience,” id. at 11 (cleaned up); and (3) that we erred in finding that Jones and Goines

weren’t entitled to qualified immunity because (they say) no case suggests that “the Defendants

violated clearly established law,” id. at 12. We’ll address (and reject) each of these arguments in turn.

First, Deffendall didn’t constructively amend his claims against Jones and Goines in his

summary-judgment briefing. The Defendants claim that “this lawsuit has always been about whether

the defendants were deliberate indifferent [sic] by not following the post operative treatment

prescribed by outside dentist Dr. Bucaj, and NOT whether the defendants were deliberately indifferent

based on [whether Jones and Goines properly followed the jail’s dental-pain protocol].” Id. at 3. In

the Defendants’ view, “Plaintiff’s deliberate indifference to serious medical needs claim has been

predicated on and limited to the fact that Defendants did not follow [Dr. Bucaj’s] post operative

treatment plan for pain”—and so (they insist), Deffendall shouldn’t have been allowed, at summary

judgment, to claim that Jones and Goines also failed to follow the Indian River County Jail’s dental-

pain protocol. Id. at 5.

The Defendants are right that Deffendall can’t “amend [his] complaint through argument in a

brief opposing summary judgment.” Gilmour v. Gates, McDonald & Co., 382 F.3d 1312, 1315 (11th Cir.

2004) (citing Shanahan v. City of Chicago, 82 F.3d 776, 781 (7th Cir. 1996)). But that’s not what he did.

In his Amended Complaint, Deffendall alleged that Jones and Goines “acted in contravention to county

jail policy and the constitutional rights of the Plaintiff when . . . [they] failed to provide medical care to

the Plaintiff[.]” Amended Complaint [ECF No. 14] at 7 (emphasis added); see also id. at 10–11

(“[Defendants] refused to implement the surgeon’s treatment plan purposely withholding the required

medication and probiotics prescribed to the Plaintiff. . . . [Defendants’] refusal, and [their] total

disregard for the Plaintiff’s complaints, caused the Plaintiff undue and unnecessary pain and

suffering.”).2

While Deffendall’s Amended Complaint never explicitly said that Jones and Goines “failed to

follow the jail’s own protocol for dental pain in that they did not contact the jail’s medical authority,

Dr. Silverman, for further orders when the Ibuprofen was not alleviating his pain,” Motion at 3, a

party only “impermissibly asserts a new claim at the summary judgment stage [if he] asserts new facts

that would provide a new theory of recovery,” MSPA Claims 1, LLC v. Covington Specialty Ins. Co., 548

F. Supp. 3d 1269, 1277 (S.D. Fla. 2021) (Williams, J.) (quoting Arthur v. Thomas, 2014 WL 466143, at

*4 (M.D. Ala. Feb. 5, 2014) (Fuller, J.)). And Deffendall’s factual allegations have remained consistent

throughout the pendency of this litigation: He’s always said that he was in pain from a dental

2 Although Deffendall is now represented by counsel, he filed his Amended Complaint pro se. See

generally Amended Complaint. We thus agree with Deffendall that his pro se pleading “must be looked

at in a ‘more charitable light’” and “liberally construed.” Response at 6 (quoting Miller v. Donald, 541

F.3d 1091, 1100 (11th Cir. 2008)); see also Erickson v. Pardus, 551 U.S. 89, 94 (2007) (“A document filed

pro se is to be liberally construed, and a pro se complaint, however inartfully pleaded, must be held to

less stringent standards than formal pleadings drafted by lawyers.” (cleaned up)).

procedure, that Jones and Goines knew he was in pain, that Jones and Goines knew about a specific

treatment that would alleviate Deffendall’s pain, and that Jones and Goines deliberately decided not to

pursue that treatment plan.

Deffendall’s failure to describe, until summary judgment, exactly how the Defendants violated

the Jail’s treatment policies doesn’t mean that he failed to give them adequate notice of his claim. See,

e.g., Sams v. United Food & Com. Workers Int’l Union, 866 F.2d 1380, 1384 (11th Cir. 1989) (“A complaint

need not specify in detail the precise theory giving rise to recovery. All that is required is that the

defendant be on notice as to the claim being asserted against him and the grounds on which it rests.”).

He, after all, has alleged from the outset that Jones and Goines knew they were required to treat his

pain (because of Dr. Bucaj’s orders, “county jail policy,” or some other obligation) but deliberately failed

to do so. And that was sufficient to put the Defendants on notice here. See Hodges v. Sch. Bd. of Orange

Cnty., Fla., 2012 WL 5051923, at *4 (M.D. Fla. Oct. 18, 2012) (Honeywell, J.) (“Here, Plaintiffs are not

attempting to assert an entirely new claim that is not contained in the operative complaint. Rather,

Plaintiffs are asserting additional facts to support their existing claim of retaliation.”).3 Because

3 We acknowledge the Defendants’ point that, in the Amended Complaint, Deffendall’s specific

deliberate-indifference claim was that Jones and Goines “would not carry out [Dr. Bucaj’s] orders for

treatment, e.g. administer prescribed medications and probiotics,” Amended Complaint at 10–11—

not that Jones and Goines failed to follow the dental-pain protocol established by Dr. Silverman, see

Reply at 4 (“Plaintiff’s allegation that the Defendants ‘acted in contravention of county policy’ in the

context of the factual allegations . . . absolutely cannot reasonably be read to capture the factual issue

of whether the Defendants complied with Dr. Silverman’s protocol for dental pain.”). But the

undisputed evidence is that Dr. Bucaj adopted the Jail’s dental-pain protocol as part of his post-

operative treatment plan for Deffendall. See, e.g., Joint Statement of Undisputed Facts [ECF No. 79] ¶

27 (“Nurse Jones wrote a medical note indicting [sic] that she spoke to Heather at Dr. Bucaj’s office .

. . [Heather] stated that [Dr. Bucaj’s office] will stay with jail protocol.”); Dr. Bucaj Deposition Tr.

[ECF No. 77-3] at 13:21–24 (“Q: And would you typically follow the jail’s protocol as far as what

medication you would allow or recommend the person take related to their dental care? [Dr. Bucaj]:

With [Deffendall] it was—yeah.”); see also Defendants’ Statement of Material Facts [ECF No. 80] ¶ 11

(“The dental pain protocol written by Dr. Silverman to be implemented and followed at the jail

provided for Ibuprofen, 400 mg for a month and Tylenol, two tablets, may be substituted.”); id. at

25:18–23 (“Q: But if [a patient] didn’t receive a narcotic, though, what would be the alternative to

that? . . . A: If they chose not to, then they can simply go and take anti-inflammatories, which is going

to be over-the-counter Aleve or aspirin [or ibuprofen] rotated with Tylenol.”). Dr. Bucaj, in short,

Deffendall’s allegation that Jones and Goines failed to follow the dental-pain protocol is merely a

refinement of his original deliberate-indifference claim—not, as the Defendants imply, an entirely new

theory of liability—he didn’t constructively amend the Amended Complaint in his summary-judgment

briefing.

Second, our MSJ Order applied the correct legal standard to Deffendall’s deliberate-

indifference-to-serious-medical-needs claim. In that order, we described the three elements of a

deliberate-indifference claim as follows: “(1) subjective knowledge of a risk of serious harm; (2)

disregard of that risk; and (3) conduct that is more than negligence.” Deffendall, 2023 WL 8170937, at

*13 (cleaned up & quoting Mann v. Taser Int’l, Inc., 588 F.3d 1291, 1306–07 (11th Cir. 2009)). The

Defendants insist that we should’ve relied on Hoffer v. Secretary, Florida Department of Corrections, 973 F.3d

1263 (11th Cir. 2020), where the Eleventh Circuit held that, for a prison official to be held liable for

deliberate indifference, he must have acted “with more than gross negligence”—not more than mere

negligence. Id. at 1270 (emphasis added). And, the Defendants continue, if we’d applied Hoffer’s more-

than-gross-negligence standard, we wouldn’t have let a jury decide whether “the medical care provided

by Jones and Goines to treat Deffendall’s pain post oral surgery” constituted deliberate indifference.

Motion at 11.

In saying so, the Defendants have identified an unresolved legal issue in our Circuit: Does

deliberate indifference require a showing of more than mere negligence or of more than gross

negligence? On May 22, 2023, the Eleventh Circuit briefly resolved this question (before it vacated its

decision and took the issue en banc) when it held that, “[t]o make out the subjective component of an

Eighth Amendment deliberate-indifference claim, a plaintiff must establish that the defendant . . .

acted with more than gross negligence.” Wade v. McDade, 67 F.4th 1363, 1374 (11th Cir. 2023), vacated

ordered that Deffendall be treated pursuant to the Jail’s dental-pain protocol. So, by alleging that Jones

and Goines failed to follow Dr. Bucaj’s orders, Deffendall reasonably placed the Defendants on notice

that they hadn’t properly followed the Jail’s dental-pain protocol.

and reh’g en banc granted sub nom. Wade v. Ga. Corr. Health, LLC, 83 F.4th 1332 (11th Cir. 2023). Of

course, with Wade now vacated, we’re left with “a jumble,” as different panels of the Eleventh Circuit

“have pitched back and forth—and back and forth and back and forth—between the ‘more than mere

negligence’ and ‘more than gross negligence’ standards for the better part of the last three decades.”

Id. at 1371–72. To make matters worse, the Eleventh Circuit held in Hoffer—the same case the

Defendants hold up as the gold standard—that “[t]hese competing articulations—‘gross’ vs. ‘mere’

negligence—may well represent a distinction without a difference because . . . the Supreme Court itself

has likened the deliberate-indifference standard to ‘subjective recklessness as used in the criminal

law.’” 973 F.3d at 1270 n.2 (quoting Farmer v. Brennan, 511 U.S. 825, 839–40 (1994)).4

The upshot is that it doesn’t much matter what the standard is because there remains an

unresolved issue of material fact as to whether Jones and Goines acted with a sufficiently reckless state

of mind. Deffendall (recall) alleged that he “complained of his pain verbally every time he saw an

officer or nurse and in writing at least once per day” from December 16, 2021 (when he was first

given ibuprofen) until “he was administered acetaminophen on December 23, 2021.” Deffendall, 2023

WL 8170937, at *14. We found that, if these allegations are true, “Deffendall complained about his

constant pain for a whole week before he received any other pain medication to help alleviate his

symptoms,” and we held that “[t]he failure to provide effective pain medication—here, the

acetaminophen in addition to the ibuprofen—for nearly a week could constitute deliberate

4 During the en banc argument in Wade, Chief Judge Pryor suggested that the court might eliminate the

negligence-gross negligence element altogether. See Oral Argument at 44:36–45:13, Wade v. Ga. Corr.

Health, LLC, No. 21-14275 (11th Cir. Feb. 13, 2024) (“[Appellant’s Counsel]: Your Honors, the parties

agree that the Farmer test is two parts and does not include a free-standing element of [negligence] . .

. . [Chief Judge Pryor]: And [the Court] can apply that [two-part standard]—send it back to the panel

and apply the standard. . . . And forget about this negligence versus gross negligence stuff because it’s

just not part of the test, right? [Appellant’s Counsel]: Exactly, Your Honor.”). While the Eleventh

Circuit’s apparent desire to hew more closely to the deliberate-indifference test the Supreme Court

laid out in Farmer probably means that this fight over negligence versus gross negligence is much ado

about nothing, we’ll still address the Defendants’ argument directly because—as of this writing—the

“more than negligence/gross negligence” element is still part of the law in our Circuit.

indifference.” Ibid. (citing McElligott v. Foley, 182 F.3d 1248, 1257 (11th Cir. 1999)). And that’s true

even if the standard is “more than gross negligence” because a jail official’s failure to give any form of

relief to an inmate who, for a whole week, is constantly complaining of pain is “the equivalent of

recklessly disregarding a substantial risk of serious harm to the inmate.” Cottrell v. Caldwell, 85 F.3d

1480, 1491 (11th Cir. 1996); see also Ireland v. Prummell, 53 F.4th 1274, 1287–88 (11th Cir. 2022)

(reiterating that an official’s actions may “amount[ ] to more than gross negligence” if he or she

“delay[s] the treatment of serious medical needs” for an unreasonable length of time (citing McElligott,

182 F.3d at 1255)).5

A defendant acts with deliberate indifference when he knowingly withholds pain medication

from an inmate who clearly needs it. See McElligott, 182 F.3d at 1257 (“Insofar as Elmore’s pain was

concerned, a jury could find that the medication provided to Elmore was so cursory as to amount to

no care at all. A jury could conclude that, despite being aware that the medication prescribed for

Elmore was not treating the severe pain he was experiencing, Dr. Foley and Wagner did nothing to

treat Elmore’s pain or respond to the deterioration of his condition.”). And, since “there’s a genuine

issue of material fact as to whether Jones and Goines properly followed the Jail’s dental pain protocol

once it became clear that Deffendall’s pain wasn’t getting any better,” Deffendall, 2023 WL 8170937, at

*15, we were right to deny summary judgment if (as is the case here) the parties genuinely dispute

5 The Defendants maintain that they couldn’t have acted with deliberate indifference since the “[f]ailure

to follow procedures”—in this case, the Jail’s dental-pain protocol—“does not, by itself, rise to the

level of deliberate indifference because doing so is at most a form of negligence.” Motion at 7 n.3

(quoting Taylor v. Adams, 221 F.3d 1254, 1259 (11th Cir. 2000)). But Deffendall doesn’t merely allege

that the Defendants failed to follow the technical requirements of the dental-pain protocol. As we’ve

said, Deffendall asserts that he complained about pain every day for a whole week, that the Defendants

knew about his pain, and that they unjustifiably refused to do anything to help him despite the presence

of a policy that could have provided him with much-needed relief. See, e.g., Bowen v. Warden Baldwin

State Prison, 826 F.3d 1312, 1323 n.27 (11th Cir. 2016) (“But more than just a failure to follow

procedure has been alleged in the present case. That allegation is coupled with the allegations that the

defendant officials knew about Merkerson’s severe and documented mental illness, his violent

behavior, and his recent assault on a cellmate, and it is those allegations together that form the basis

for the claim.”). That’s sufficient to get to trial on Deffendall’s deliberate-indifference claim.

whether the Defendants took any action to alleviate Deffendall’s pain during the week in which he was

suffering.

Third, Jones and Goines aren’t entitled to qualified immunity. To overcome a qualified-

immunity defense, a plaintiff must (1) allege facts that, “if true, establish a constitutional violation”

and (2) show that “the right violated was ‘clearly established.’” Grider v. City of Auburn, Ala., 618 F.3d

1240, 1254 (11th Cir. 2010). According to the Defendants, Deffendall failed to show that “the right

involved was clearly established at the time of the putative misconduct,” and they contend that we

relied on several cases that “are not applicable” to the right at issue here (viz., deliberate indifference

to Deffendall’s dental pain). Motion at 12.6 We disagree.

A right is “clearly established” when, “at the time of the officer’s conduct, ‘the law was

sufficiently clear that every reasonable official would understand that what he is doing’ is unlawful.”

Helm v. Rainbow City, Ala., 989 F.3d 1265, 1272 (11th Cir. 2021) (quoting Dist. of Columbia v. Wesby, 583

U.S. 48, 63 (2018)). A right can become clearly established in one of three ways: (1) “a materially

similar case has already been decided”; (2) “a broader, clearly established principle [controls] the novel

facts of the situation”; or (3) “the conduct involved in the case . . . so obviously violate[s] the

constitution that prior case law is unnecessary.” Terrell v. Smith, 668 F.3d 1244, 1255 (11th Cir. 2012).

6 The Defendants also claim that “Deffendall completely failed to address qualified immunity in his

Response,” so he didn’t “alleg[e] facts that establish that the Defendants violated his constitutional

rights[.]” Motion at 12. But the law only requires us to “decide whether the facts that a plaintiff has

alleged or shown make out a violation of a constitutional right.” Pearson v. Callahan, 555 U.S. 223, 232

(2009) (cleaned up). Deffendall obviously met this very low burden. See Deffendall, 2023 WL 8170937,

at *14 (“If [Deffendall’s allegation is] true—and, at this stage of the case, we must assume that it is—

then Deffendall complained about his constant pain for a whole week before he received any other

pain medication to help alleviate his symptoms. The failure to provide effective pain medication—

here, the acetaminophen in addition to the ibuprofen—for nearly a week could constitute deliberate

indifference.”). Contra the Defendants’ position here, Deffendall’s failure to use the phrase “qualified

immunity” in his briefing doesn’t mean that he acceded to that defense—especially because he

properly asserted facts that, if true, would overcome that defense. Cf. Brooks v. United States, 723 F.

App’x 703, 705 (11th Cir. 2018) (“But motion practice is not talismanic, and we do not require

petitioners to recite magic words.”).

Only the United States Supreme Court, the Eleventh Circuit, and the Florida Supreme Court can

“clearly establish” the law for purposes of qualified immunity. Ibid.7 To show that a case is “materially

similar,” we ask whether the “existing precedent [has] placed the constitutional question beyond

debate.” Wade v. United States, 13 F.4th 1217, 1226 (11th Cir. 2021) (cleaned up). Although the case

“need not be ‘directly on point,’” we must be sure to compare the “particularized facts” of each case

because “minor variations between cases may prove critical.” Ibid. (cleaned up).

In denying qualified immunity, we relied on two published Eleventh Circuit cases: McElligott

and Melton v. Abston, 841 F.3d 1207 (11th Cir. 2016). See Deffendall, 2023 WL 8170937, at *15.8 Based

on these cases, we concluded that “[t]he Eleventh Circuit has held that failing to provide care, delaying

care, or providing grossly inadequate care which causes a prisoner to needlessly suffer pain violates

clearly established law.” Ibid. (cleaned up). The Defendants say that neither McElligott nor Melton clearly

establishes this principle because these cases “could not be more different than the facts in the case at

hand.” Motion at 13. Again, we disagree.

The Defendants are right, of course, that the facts of McElligott and Melton aren’t identical to

ours. For one thing, neither case was about the failure to treat dental pain—though neither limited its

7 “Unpublished cases, however, do not serve as binding precedent, and cannot be relied upon to define

clearly established law.” J.W. ex rel. Williams v. Birmingham Bd. of Educ., 904 F.3d 1248, 1260 n.1 (11th

Cir. 2018).

8 True, we also cited two cases that don’t “clearly establish” this right: an unpublished Eleventh Circuit

opinion, Benson v. Gordon County, Georgia, 479 F. App’x 315 (11th Cir. 2012); and a district court opinion,

Sparks v. Fye, 2015 WL 1401063 (M.D. Ga. Mar. 26, 2016) (Treadwell, J.). But we cited these cases,

not because they clearly established any rights, but because they showed that other courts (including

a panel of the Eleventh Circuit) have interpreted the Eleventh Circuit’s cases in the same way we did.

We cited them, in other words, because they took (as we did) McElligott and Melton to mean that the

law in our Circuit is “clearly established” that prison officials violate the Constitution when they, for

days, deliberately ignore an inmate’s pain. See Benson, 479 F. App’x at 319 (“[The plaintiff] has put forth

evidence that he went without pain medication for days. Rutledge knew Benson was in pain and that

a physician had prescribed medication for that pain. Yet by failing to provide his medication, she

allowed Benson to ‘needlessly suffer’ from his back pain. Therefore, Rutledge is not entitled to

summary judgment on the § 1983 claim on the ground of qualified immunity.”); Sparks, 2015 WL

1401063, at *8 (“Clearly established law provides that prison officials may violate the Eighth

Amendment’s commands by failing to treat an inmate’s pain.” (cleaned up)).

scope to complaints of, for instance, stomach (rather than tooth) pain. For another, the inmates in

McElligott and Melton complained about their pain for months—not days. See, e.g., McElligott, 182 F.3d

at 1257 (“Despite the repeated complaints about the [abdominal] pain he was suffering from, a jury

could find that Dr. Foley and nurse Wagner basically did nothing to alleviate that pain, essentially

letting Elmore suffer even as his condition was deteriorating.”); Melton, 841 F.3d at 1225 (“Next, a

reasonable jury could also find that Dr. Sullivan acted with deliberate indifference to Melton’s injury

and resulting pain. Most notably, Dr. Sullivan did not even meet with Melton in person until

approximately eight months after his injury. Even then, Dr. Sullivan never examined Melton’s arm

despite knowing it was fractured and painful.”). Still, these cases unambiguously stand for the basic

proposition (i.e., they “clearly establish”) that a jail official cannot “cause a prisoner to needlessly suffer

the pain resulting from his or her illness” by “failure to provide care” or by “delaying care.” McElligott,

182 F.3d at 1257. And we cannot simply ignore these cases just because the inmates there were

suffering longer. Cf. Melton, 841 F.3d at 1227–28 (“Our decision in McElligott also clearly established

Melton’s right to timely treatment. . . . While [McElligott] do[es] not address facts identical to those in

this case, our Circuit precedent makes clear that Dr. Sullivan is not entitled to qualified immunity.”

(emphasis added)).9

It’s therefore unsurprising that courts in our circuit have repeatedly held that a jail’s knowing

failure to provide an inmate with effective pain relief for days violates “clearly established” law. See,

e.g., Danley v. Allen, 540 F.3d 1298, 1312–13 (11th Cir. 2008) (“The allegations in the complaint are

that the jailers took only ineffective measures to remedy the [effects of pepper spray] and then mocked

9 Other published Eleventh Circuit cases likewise “clearly establish” this right. See, e.g., Goebert v. Lee

Cnty., 510 F.3d 1312, 1331 (11th Cir. 2007) (“Captain Weaver’s alleged inaction [for one day] is of the

type that we have held violates the well established right of prisoners to timely treatment for serious

medical conditions.”); Harris v. Coweta Cnty., 21 F.3d 388, 393 (11th Cir. 1994) (“At the time of Harris’

incarceration, it was clearly established that knowledge of the need for medical care and intentional

refusal to provide that care [for one-and-a-half months] constituted deliberate indifference.”).

Danley and ignored his pleas for help [for twenty minutes] . . . . Although Danley’s allegations may

later turn out to be unfounded, reasonable jailers would have been aware that the conduct that Danley

alleges violated his clearly established rights.”); Benson, 479 F. App’x at 319 (holding that the failure to

provide pain medication “for days” violated “clearly established law”); Sparks, 2015 WL 1401063, at

*8 (same); Edwards v. Abbett, 2020 WL 6395454, at *6–7 (M.D. Ala. Nov. 2, 2020) (Thompson, J.)

(“There are several statements of general principles in Eleventh Circuit case law . . . that clearly

established that a jail official’s deliberately indifferent failure to provide treatment for an inmate’s

serious pain [for five hours and fifty-five minutes] violates the Eighth Amendment.”); Hardy v. Ga.

Dep’t of Corr., 2021 WL 3610466, at *12–13 (S.D. Ga. Aug. 13, 2021) (Hall, C.J.) (“Additionally, the

Eleventh Circuit has recognized that prison officials may violate the Eighth Amendment’s commands

by failing to treat an inmate’s pain [for two weeks] . . . The facts do not have to be identical to clearly

establish a right.”); Henegar v. Ga. Corr. Health, LLC, 2021 WL 11133945, at *13 (N.D. Ga. Sept. 30,

2021) (Totenberg, J.) (“[T]he evidence could suggest that the jail nurse provided grossly inadequate

care by failing to give him pain medication for days at a time or by merely coming to his cell and offering

medication that Benson could not retrieve, thus violating the plaintiff’s constitutional rights by being

deliberately indifferent to his serious medical needs.” (emphasis added)).

Against all this, the Defendants say only that “[n]one of the cited cases put Jones and Goines

on notice that it was unconstitutional for them not to call the jail physician for further orders when

pain medication in the form of Ibuprofen 800 mg was given to Deffendall pursuant to the dental

protocol, [and] when [Deffendall] complained that Ibuprofen 800 mg was not working Nurse Jones

immediately substituted Tylenol 500 mg[.]” Motion at 14–15. Here, again, they miss the point. The

evidence at trial may very well vindicate the Defendants’ belief that they promptly provided Deffendall

with acetaminophen once they realized that the ibuprofen wasn’t working. But this is summary

judgment, not trial, and we found this factual issue—how quickly Jones and Goines responded to

Deffendall’s complaints of pain—is both material and highly disputed. See Deffendall, 2023 WL 8170937,

at *15 (“And the evidence on this last issue—viz., whether Jones or Goines told Dr. Silverman that

Deffendall was still complaining of intense pain despite being given ibuprofen—is contested. This

contested (and genuinely material) fact precludes us from granting summary judgment for Jones and

Goines.” (cleaned up)). The point is this: If Deffendall’s allegations are true, then Jones and Goines

violated Deffendall’s “clearly established” constitutional right, and they aren’t entitled to qualified

immunity. See Johnson v. Breeden, 280 F.3d 1308, 1317 (11th Cir. 2002) (“But if the evidence at the

summary judgment stage, viewed in the light most favorable to the plaintiff, shows there are facts that

are inconsistent with qualified immunity being granted, the case and the qualified immunity issue along

with it will proceed to trial.”), abrogated on other grounds by Kingsley v. Hendrickson, 576 U.S. 389, 395 (2015).

* * *

To recap, then, Deffendall didn’t constructively amend his Amended Complaint; Jones’s and

Goines’s alleged failure to treat Deffendall’s pain satisfied the “more than gross negligence” standard;

and Jones and Goines aren’t entitled to qualified immunity. Because the Defendants failed to show

that the MSJ Order was suffused with “clear error” (or that it was “manifestly unjust”), we see no

reason to reconsider our ruling.10

II. Defendants Stinson, Brown, and Bryant

In their Motion, the Defendants also contend that we should’ve dismissed Stinson, Brown,

and Bryant from the case because Deffendall failed to exhaust his administrative remedies against

them. As they see it, our finding that Deffendall failed to exhaust his remedies against Defendant

Hamilton essentially required us to find that he likewise failed to exhaust as to Stinson, Brown, and

10 At a hearing on February 13, 2024, counsel for the Defendants informed us that, if we denied this

part of the Motion, he would “immediately” file an interlocutory appeal with the Eleventh Circuit.

Since an interlocutory appeal would halt any future trial proceedings as to Defendants Jones and

Goines, we DENY as moot the Defendants’ Motion for Reconsideration of Request for Change of

Venue to Fort Pierce [ECF No. 119].

Bryant. See Motion at 17 (“The Court’s finding that Deffendall did not exhaust the available remedies

before bringing this claim against Stinson, Brown, Bryan [sic], and Hamilton . . . dictates that the entire

failure to protect claim must be dismissed, and not only against Hamilton. That is so because an inmate

cannot bring any action if it has been found that he failed to exhaust that claim as to any defendant,

including defendants who did not even raise the defense, as well as unserved defendants.”). Deffendall

reminds us that this is the third time the Defendants have argued “that [he] failed to exhaust his

administrative remedies” and that reconsideration isn’t an appropriate vehicle “to instruct the court

on how the court could have done it better[.]” Response at 13–14 (cleaned up). Deffendall is, of

course, right. We’ve already ruled on this issue multiple times, and the Defendants cannot use a motion

for reconsideration to “ask the Court to rethink what the Court already thought through—rightly or

wrongly.” Z.K. Marine Inc., 808 F. Supp. at 1563 (cleaned up). Still, in the interest of completeness,

we’ll explain for the third (and final) time why we aren’t dismissing Deffendall’s claims against Stinson,

Brown, and Bryant.

The Prison Litigation Reform Act (“PLRA”) “mandates that an inmate exhaust ‘such

administrative remedies as are available’ before bringing suit to challenge prison conditions.” Ross v.

Blake, 578 U.S. 632, 635 (2016) (emphasis added & quoting 42 U.S.C. § 1997e(a)). “[T]hat mandatory

language means a court may not excuse a failure to exhaust[.]” Id. at 639. All that said, the Supreme

Court has been clear that “the PLRA exhaustion requirement is not jurisdictional[.]” Woodford v. Ngo,

548 U.S. 81, 101 (2006); accord Bryant v. Rich, 530 F.3d 1368, 1374 n.10 (11th Cir. 2008) (“The Supreme

Court has confirmed that exhaustion under the PLRA is not a jurisdictional perquisite.”). And that’s

important because “jurisdictional rules” differ in salient ways from non-jurisdictional rules—also

known as “claim-processing rules.” A jurisdictional rule “properly applies only to prescriptions

delineating the classes of cases (subject-matter jurisdiction) and the persons (personal jurisdiction)

implicating [the court’s adjudicatory authority].” Santiago-Lugo v. Warden, 785 F.3d 467, 472 (11th Cir.

2015) (cleaned up). By contrast, claim-processing rules, “such as exhaustion requirements,” promote

“the orderly progress of litigation by requiring that the parties take certain procedural steps at certain

specified times.” Ibid. (quoting Henderson ex rel. Henderson v. Shinseki, 562 U.S. 428, 435 (2011)). And

the PLRA’s exhaustion requirement is a claim-processing rule. See ibid. (“Examples of non-

jurisdictional rules, on the other hand, include ‘claim-processing rules,’ such as exhaustion

requirements[.]”); see also Coleman v. Newburgh Enlarged City Sch. Dist., 503 F.3d 198, 208 (2d Cir. 2007)

(“[T]he exhaustion requirement in the [PLRA] is a claim-processing rule because the requirement

affects a prisoner’s preexisting claims—brought under different statutes such as 42 U.S.C. § 1983—

and thus exhaustion is not ‘essential to the existence of the claim.’” (quoting Richardson v. Goord, 347

F.3d 431, 434 (2d Cir. 2003))); Brown v. GEO Grp., Inc., 2021 WL 4976333, at *6 (S.D. Fla. Aug. 18,

2021) (Reid, Mag. J.) (“Furthermore, this Circuit considers the [PLRA’s] administrative exhaustion

requirement to be a non-jurisdictional claim-processing rule.” (citing Santiago-Lugo, 785 F.3d at 472)),

report and recommendation adopted, 2021 WL 3927379 (S.D. Fla. Sept. 2, 2021) (Rosenberg, J.).

The biggest difference for our purposes between a jurisdictional rule and a claim-processing

rule is that the latter can be waived or forfeited. See Union Pac. R.R. Co. v. Bhd. of Locomotive Eng’rs & Trainmen,

558 U.S. 67, 81–82 (2009) (“Subject-matter jurisdiction properly comprehended, we emphasized,

refers to a tribunal’s power to hear a case, a matter that can never be forfeited or waived. In contrast,

a claim-processing rule, even if unalterable on a party’s application, does not reduce the adjudicatory domain

of a tribunal and is ordinarily forfeited if the party asserting the rule waits too long to raise the point.”

(emphasis added & cleaned up)); Hamer v. Neighborhood Hous. Servs. of Chi., 583 U.S. 17, 20 (2017)

(“Mandatory claim-processing rules are less stern [than jurisdictional rules]. If properly invoked,

mandatory claim-processing rules must be enforced, but they may be waived or forfeited.” (emphasis

added)); United States v. DiFalco, 837 F.3d 1207, 1217 (11th Cir. 2016) (“[U]nlike a jurisdictional rule, a

claim-processing rule can be forfeited by a party.”).

And Defendants Stinson, Brown, and Bryant unambiguously forfeited their right to assert an

exhaustion defense—a claim-processing rule—in this case. These Defendants (remember) first moved

to dismiss Deffendall’s Amended Complaint on exhaustion grounds in a Motion for Judgment on the

Pleadings under Federal Rule of Civil Procedure 12(c). See [ECF No. 67]. We denied that motion in

three steps. First, we applied the Eleventh Circuit’s decision in Bryant v. Rich, 530 F.3d 1368 (11th Cir.

2008), which held that “exhaustion defenses ‘should be decided in a Rule 12(b) motion to dismiss’”

because “exhaustion of administrative remedies is a matter of abatement and not generally an

adjudication on the merits[.]” Order Denying Motion for Judgment on the Pleadings (“MJP Order”)

[ECF No. 76] at 2 (quoting Bryant, 530 F.3d at 1375). Second, we recognized that Defendants Stinson,

Bryant, and Brown had “already filed a Rule 12(b)(6) motion to dismiss, in which they argued that

Deffendall’s claims were barred by the statute of limitations.” Ibid. (cleaned up). This was a big

problem for the Defendants, we explained, because Rule 12(g)(2) “forbids a defendant from filing a

second Rule 12 motion that ‘raises a defense or objection that was available to the party but omitted

from its earlier motion.’” Id. at 3 (cleaned up & quoting FED. R. CIV. P. 12(g)(2)); see also Lane v. XYZ

Venture Partners, LLC, 322 F. App’x 675, 678 (11th Cir. 2009) (“[W]aiver is only accomplished if the

defense is not asserted in the first motion made under Rule 12 or responsive pleading.”).11 Third, we

applied Brooks v. Warden, 706 F. App’x 965 (11th Cir. 2017)—an unpublished Eleventh Circuit decision

that was “strikingly similar” to ours—and found that “Rule 12(g)(2) prevented [the Defendants] from

raising [their] exhaustion defense for the first time in a second Rule 12 motion.” MJP Order at 3 (citing

Brooks, 706 F. App’x at 969). We, in short, agreed with the Eleventh Circuit’s decision in Brooks that a

“PLRA exhaustion defense” doesn’t fall within the enumerated exceptions of Rule 12(h)(2) and (3)

because exhaustion “is independent of the merits of the plaintiff’s claim” and “is not jurisdictional.”

11 Defendant Hamilton, by contrast, was served only after the Defendants’ first Rule 12 motion was

filed, so he “couldn’t have waived his exhaustion defense under Rule 12(g)(2) because he never joined

the earlier Rule 12(b) motion.” Deffendall, 2023 WL 8170937, at *9.

Brooks, 706 F. App’x at 969 (first citing Bryant, 530 F.3d at 1376 n.12; and then citing Woodford, 548

U.S. at 101). We stand by every part of that analysis.

In the face of all this, the Defendants advance three counterarguments—all meritless. First,

they criticize our reliance on Brooks, “which is not binding” and which (they say) impermissibly

“carv[ed] out an exception to the PLRA’s mandatory [exhaustion] requirement, where Congress did

not provide for one.” Motion at 17. We’ve already explained why we found Brooks persuasive: because

it’s “virtually identical” to our case; because “courts around our Circuit have consistently applied

Brooks” in the way we do here; and because it properly applies the plain language of Rule 12(g)(2) to a

waivable claim-processing rule the Defendants invoked for the first time in a successive Rule 12(b)

motion. MJP Order at 4–5. As we’ve said, Brooks didn’t create an “exception” to the PLRA’s

exhaustion requirement; it simply applied a principle the Supreme Court and the Eleventh Circuit have

repeatedly endorsed: that, “as a non-jurisdictional claim processing rule, the exhaustion defense is

subject to forfeiture under Rule 12(g)(2).” Brooks, 706 F. App’x at 969–70 (citing Union Pac. R.R., 558

U.S. at 81–82). That’s pretty straightforward and (to our mind) uncontroversial.

Second, the Defendants say that Deffendall “cannot bring any action if it has been found that

he failed to exhaust that claim as to any defendant[.]” Motion at 17. They insist, in other words, that

we must dismiss Deffendall’s claim against Stinson, Brown, and Bryant because we dismissed his claim

against Hamilton. For this proposition, the Defendants cite four cases: Bure v. Miami-Dade Corrections

Department, 507 F. App’x 904 (11th Cir. 2013); Tilus v. Kelly, 2012 WL 12894237 (S.D. Fla. Mar. 22,

2012) (White, Mag. J.), report and recommendation adopted, 2012 WL 12894238 (S.D. Fla. Apr. 9, 2012)

(Cohn, J.), aff’d, 510 F. App’x 864 (11th Cir. 2013); Kingcade v. Parker, 949 F. Supp. 2d 1232 (S.D. Fla.

2013) (Altonaga, J.); and Pace v. Lewis, 2021 WL 3485653 (S.D. Fla. Apr. 29, 2021) (O’Sullivan, Mag.

J.), report and recommendation adopted sub nom., Pace v. Lawerance, 2021 WL 3485651 (S.D. Fla. July 13,

2021) (King, J.). But these cases stand for the unremarkable proposition that, if a district court finds

that a plaintiff has failed to exhaust his administrative remedies as to one defendant, it can infer that the

exhaustion defense also applies to other defendants who hadn’t yet raised it. See Bure, 507 F. App’x at

906 (“The district court also properly dismissed Bure’s motion to add Nottage as an additional

defendant. Bure cannot bring any claims relating to the incident because he failed to exhaust his

administrative remedies[.]”); Tilus, 2012 WL 12894237, at *10 (“Since Plaintiff cannot now cure his

failure to exhaust relating to the claim in his complaint, as amended, against the present defendants,

this suit as to all defendants is forever barred.”); Kingcade, 949 F. Supp. 2d at 1235 (“[T]he Court finds

Kingcade has failed to demonstrate he exhausted his administrative remedies; thus, the claim against

Mimoso is frivolous as it suffers from the same jurisdictional defect as do his claims against

Defendants Headley and Jackson.”); Pace, 2021 WL 3485653, at *10 (“Notably, Lt. M.P. and Jane Doe

have not been served, as unexecuted returns were filed as to these two Defendants. . . . At this juncture,

however, for the reasons stated in relation to the Defendants’ Motion to Dismiss, the Amended

Complaint should also be DISMISSED WITH PREJUDICE as to Defendants, M.P., Jane Doe, and

Duke based on Plaintiff’s failure to exhaust administrative remedies.”). None of these cases involved

defendants who had forfeited their exhaustion defenses, and there’s no reason to apply these cases where

(as here) the unambiguous text of Rule 12(g)(2) plainly governs. See Brooks, 706 F. App’x at 969 (“In

sum, then, because Deputy Powell failed to raise the exhaustion defense in his first motion to

dismiss—and because neither exception to Rule 12(g)(2) applies—he has forfeited the ability to raise

the defense now, and the District Court should not have considered it.” (emphasis added)).

Third, the Defendants say that the “plaintiff [didn’t] suffer prejudice from the omission”

because they “raised the [exhaustion] defense in their Answer filed on October 18, 2022, only 40 days

after being served[.]” Motion at 18–19. The Defendants are really confusing things here. The standard

they’re talking about applies to affirmative defenses a party advances under Rule 8(c). See Proctor v.

Fluor Enters., Inc., 494 F.3d 1337, 1350 (11th Cir. 2007) (“In deciding waiver issues under Rule 8(c),

this Court in some cases has examined whether a plaintiff had notice of the unpled defense or was

prejudiced by the lack of notice.’’). And they’re right that “[fjailure to exhaust under the PLRA [ts] an

affirmative defense[.]” Bryant, 530 F.3d at 1374 n.9. But the Eleventh Circuit has expAcitly said that the

affirmative defense of “exhaustion should be decided in a Rule 12(b) motion to dismiss[.]” Jd at 1375.

In other words, Rule 12(g)(2)’s rule against successive 12(b) motions—not the “prejudice” standard

that applies to ofber affirmative defenses under Rule 8(c)—governs the exhaustion inquiry.

* * *

We therefore reaffirm our decision vof to dismiss Defendants Stinson, Brown, and Bryant

from the case. These Defendants have forfeited their exhaustion defense under Rule 12(g)(2), and we

won't spill more ink on a subject that’s been over-briefed and over-argued.

CONCLUSION

After careful review, we hereby ORDER and ADJUDGE that the Defendants’ Motion for

Reconsideration of our MS] Order [ECF No. 105] is DENTED. The Defendants’ Motion for

Reconsideration of Request for Change of Venue to Fort Pierce [ECF No. 119] 1s DENIED as

moot.

DONE AND ORDERED in the Southern District of Florida on March 18, 2024.

ROYK.ALTMAN ———

UNITED STATES DISTRICT JUDGE

cc: counsel of record

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