Brown v. Naphcare Health Care Services of Florida

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

CURTIS WAYNE BROWN, II,

Plaintiff,

v. CASE NO. 8:24-cv-894-SDM-AEP

NAPHCARE HEALTH SERVICES,

DR. OGAGA,

Defendants.

/

ORDER

Brown’s complaint alleges that the defendants are violating his civil rights by

prescribing him improper medication while serving his sentence in the Hillsborough

County jail. Brown moves for leave to proceed in forma pauperis. (Doc. 2) The

Prisoner Litigation Reform Act (“PLRA”) requires dismissal of an in forma pauperis

prisoner’s case “if the allegation of poverty is untrue” or if the case “is frivolous or

malicious, fails to state a claim on which relief may be granted, or seeks monetary relief

against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e). Although

the complaint is entitled to a generous interpretation, Haines v. Kerner, 404 U.S. 519

(1972) (per curiam), Brown must file an amended complaint.

Brown names as the defendants Naphcare Health Care Services and Dr. Ogaga,

who is employed by Naphcare as a doctor at the Hillsborough County jail. Brown

cannot pursue a Section 1983 action based only on a defendant’s position as the

employer of someone who allegedly wronged Brown. A claim against an employer

based on an act by an employee asserts a claim under the principle of respondeat superior.

Although permitted in other civil tort actions, respondent superior is inapplicable in a

Section 1983 action. Monell v. N.Y.C. Dep’t of Social Services, 436 U.S. 691, 694 (1978);

Grech v. Clayton County, Ga., 335 F.3d 1326, 1329 (11th Cir. 2003) (en banc). See also

Goebert v. Lee County, 510 F.3d 1312, 1331 (11th Cir. 2007) (“We do not recognize

vicarious liability, including respondeat superior, in § 1983 actions.”). Consequently, the

complaint is insufficient to state a claim against Naphcare Health Care Services.

Also, Brown must amend his claim that Dr. Ogaga has provided “inadequate

medical care, deliberate indifference to my serious medical needs.” (Doc. 1 at 3)

Brown alleges that he experiences diabetic neuropathy in his hands and feet and that

Dr. Ogaga has prescribed “cymbalta 60 mg,” which Brown both asserts is medication

for a mental health condition and represents is medication he refuses because it makes

him sick. Brown states that he has advised medical personnel both orally and through

the administrative grievance process that “gabapentin 800mg twice daily” effectively

treats his condition without the side effect “cymbalta” causes and that Naphcare

prescribed him “gabapentin” in prior stays in the jail. One of the responses to his

requests advises that “gabapentin is not a protocol drug in the jail anymore.” (Doc. 1 at

22)

A state has the constitutional obligation to provide adequate medical care to

those whom it confines. Adams v. Poag, 61 F.3d 1537 (11th Cir. 1995); Mandel v. Doe,

888 F.2d 783 (11th Cir. 1989). The standard for a prisoner claiming medical

mistreatment is well-established: a prisoner must allege and show that an official acted

with deliberate indifference to a serious medical need. A difference of opinion over

matters of medical judgment, in either diagnosis or treatment, supports no

constitutional claim. “Where a prisoner has received . . . medical attention and the

dispute is over the adequacy of the treatment, federal courts are generally reluctant to

second guess medical judgments and to constitutionalize claims that sound in tort law.”

Hamm v. Dekalb Cnty., 774 F.2d 1567, 1575 (11th Cir. 1985). See Fischer v. Federal Bureau

of Prisons, 349 F. App’x 372, 374 (11th Cir. 2009);1 Waldrop v. Evans, 871 F.2d 1030,

1033 (11th Cir. 1989); Ramos v. Lamm, 639 F.2d 559, 575 (10th Cir. 1980). Moreover,

while “failure to substitute a more effective medication may constitute negligence, it

does not rise to the level of deliberate indifference.” Monteleone v. Corizon, 686 F. App’x

655, 659–60 (11th Cir. 2017).

However, affording the complaint a generous interpretation, Brown alleges not

only that Dr. Ogaga will not prescribe the medication that Brown wants –– an

allegation that would fail to state a claim under Section 1983 –– but that the only

medication that Dr. Ogaga prescribes makes him sick such that he refuses to take the

medication. Consequently, Brown is allegedly provided no medication that he can

consume for his diabetic neuropathy.

Lastly, Brown moves for both greater indigent supplies (Docs. 3 and 5) and for

leave to amend (Doc. 6) to correct omissions in his complaint. A confined person must

1 “Unpublished opinions are not considered binding precedent, but they may be cited as

persuasive authority.” 11th Cir. Rule 36-2.

have both “meaningful access to the courts,” Bounds v. Smith, 430 U.S. 817, 823 (1977),

and “a reasonably adequate opportunity to file non-frivolous legal claims challenging

their convictions or conditions of confinement.” Lewis v. Casey, 518 U.S. 343, 357

(1996). Brown’s filings in just this federal court belie Brown’s asserted lack of indigent

supplies. Brown v. Naphcare Healthcare Services, 8:24-cv-936-TPB-NHA (opened

4/18/2024 and dismissed as a duplicate to the present action); Brown v. Hillsborough

County Jail, 8:24-cv-1102-KKM-UAM (opened 5/8/2024 and dismissed for failing to

comply with court orders); Brown v. Cronister, 8:24-cv-1611-SDM-AEP (opened

7/8/2024); Brown v. Cronister, 8:24-cv-1638-MSS-NHA (opened 7/10/2024). Brown is

entitled to a reasonable quantity of indigent supplies, not unlimited supplies.

And as determined above, Brown must file an amended complaint, which must

be complete because an amended complaint supersedes the original complaint and, as a

consequence, “specific claims made against particular defendants in the original

complaint are not preserved unless they are also set forth in the amended complaint.”

Gross v. White, 340 F. App’x 527, 534 (11th Cir. 2009). See Fritz v. Standard Sec. Life Ins.

Co., 676 F.2d 1356, 1358 (11th Cir. 1982) (“Under the Federal rules, an amended

complaint supersedes the original complaint.”). See also Lane v. Philbin, 835 F.3d 1302

n.1 (11th Cir. 2016) (describing as “irregular” a district court’s construing together both

an original and an amended complaint). In other words, the amended complaint must

state each claim without reliance on allegations in the earlier complaint.

Also, Brown is advised that, if he fails either to move for an extension of time or

to file an amended complaint within the time allotted, this order dismissing the initial

complaint will become a final judgment. Auto. Alignment & Body Serv., Inc. v. State Farm

Mut. Auto. Ins. Co., 953 F.3d 707, 720–21 (11th Cir. 2020) (“[A]n order dismissing a

complaint with leave to amend within a specified time becomes a final judgment if the

time allowed for amendment expires without the plaintiff [amending the complaint or]

seeking an extension. And when the order becomes a final judgment, the district court

loses ‘all its prejudgment powers to grant any more extensions’ of time to amend the

complaint.”) (quoting Hertz Corp. v. Alamo Rent-A-Car, Inc., 16 F.3d 1126 (11th Cir.

1994)).

The complaint (Doc. 1) is DISMISSED under 28 U.S.C. § 1915(e) for failing to

state a claim upon which relief can be granted, but the dismissal is WITHOUT

PREJUDICE to the filing of an amended complaint within THIRTY (30) DAYS. The

failure to timely file an amended complaint will result in the dismissal of this action

without further notice. The clerk must send to Brown the required civil rights

complaint form. The motions for leave to proceed in forma pauperis and to file an

amended complaint (Docs. 2 and 6) are GRANTED. The motions (Docs. 3 and 5) for

greater indigent supplies are DENIED.

A CAUTION TO MR. BROWN

Litigation in federal court is difficult and requires timely compliance with

applicable rules, including the Federal Rules of Civil Procedure, the Local Rules, the

Federal Rules of Evidence, and several procedural, discovery, and other orders.

A judge cannot assist a party, even a pro se party, in conducting an action, and a

plaintiff enjoys only a limited opportunity to amend the complaint. Therefore, Brown

is strongly advised — before amending the complaint — to obtain legal advice and

assistance from a member of The Florida Bar.

ORDERED in Tampa, Florida, on July 12, 2024.

STEVEN D. MERRYDAY

UNITED STATES DISTRICT JUDGE

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