KELLY v. CENTURION OF FLORIDA

UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

TARRUS HAKEEM KELLY,

Plaintiff,

vs. Case No.: 3:25cv543/LAC/ZCB

CENTURION OF FLORIDA, et al.,

Defendants.

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REPORT AND RECOMMENDATION

Plaintiff is incarcerated in the Florida Department of Corrections

(FDOC). He is proceeding pro se and in forma pauperis in this civil rights

action under 42 U.S.C. § 1983. (Docs. 7, 11).

Presently before the Court is the Amended Complaint. (Doc. 11).

The Court is statutorily required to screen Plaintiff’s Amended

Complaint to determine whether it is frivolous, malicious, fails to state a

claim on which relief may be granted, or seeks monetary relief from a

defendant who is immune. See 28 U.S.C. § 1915(e) (requiring screening

of in forma pauperis complaints); see also Jones v. Bock, 549 U.S. 199,

202 (2007) (recognizing that Congress has mandated “early judicial

screening of prisoner complaints”). After screening the Amended

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Complaint, the undersigned recommends dismissal of Plaintiff’s claims

for failure to state a claim on which relief can be granted.1

I. Background2

Plaintiff’s complaint names three Defendants: (1) Centurion of

Florida, the contracted provider of medical services to FDOC inmates; (2)

Dr. E. Hernandez-Perez, Regional Medical Director; and (3) C. Bearden,

a licensed practical nurse. (Doc. 11 at 1-3). In June 2024, Plaintiff

suffered from hypertension (high blood pressure) and was prescribed two

medications, Lisinopril (10 mg) and Amlodipine (10 mg). (Id. at 5). The

medications were designated “Keep On Person (KOP)” which meant

Plaintiff stored them in his cell and administered them himself. (Doc. 1

at 14).

1 The Court previously provided Plaintiff an opportunity to amend after

explaining to him deficiencies in his prior pleading. (Doc. 9).

Nonetheless, Plaintiff’s Amended Complaint still includes the same

pleading deficiencies. See generally Bryant v. Dupree, 252 F.3d 1161,

1163 (11th Cir. 2001) (stating that a plaintiff typically “must be given at

least one chance to amend the complaint before the district court

dismisses the action”).

2 At this point, the Court assumes the truth of all well-pled factual

allegations. Conclusory allegations and legal conclusions couched as

factual allegations are not entitled to a presumption of truth. Ashcroft v.

Iqbal, 556 U.S. 662, 681 (2009).

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On June 20, 2024, Plaintiff was taken to the medical department at

Walton Correctional Institution for a pre-confinement exam. (Doc. 11 at

5). Plaintiff had taken his Lisinopril that morning. (Id. at 5-6).

Defendant Nurse Bearden asked Plaintiff if he had his medications with

him. (Doc. 1 at 5). Plaintiff responded no. (Id.). Nurse Bearden did not

check Plaintiff’s blood pressure. (Doc. 11 at 5-6). She told Plaintiff she

would deliver his medications to him in confinement, but she never did.

(Id. at 6, 8).

Plaintiff began experiencing weight loss, headaches, severe

sleepiness, nausea, some diarrhea, and lower back pain. (Id. at 7). He

filed a medical grievance on June 26, 2024 concerning his failure to

receive his medications and describing his symptoms. (Doc. 11 at 7; Doc.

1 at 16). Defendant Dr. Hernandez-Perez responded to Plaintiff’s

grievance the next day, June 27. (Doc. 11 at 8; Doc. 1 at 17). Dr.

Hernandez-Perez told Plaintiff that sick call was available to address any

medical issues, and medical staff would then refer him to a doctor for

evaluation if necessary. (Doc. 11 at 8; Doc. 1 at 17). Dr. Hernandez-Perez

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also told Plaintiff that he was scheduled to see the medical provider and

to “watch the call out” for the appointment. (Doc. 1 at 17).

Plaintiff appealed Defendant Hernandez-Perez’s response. (Doc. 11

at 7-8; Doc. 1 at 19). The Health Services Director denied the appeal.

(Doc. 1 at 19). The Director explained that Plaintiff was seen by a

clinician on July 25, 2024 (two days after Plaintiff filed the appeal) and

had an opportunity to address his medical concerns then. (Id.). Indeed,

Plaintiff alleges he received his blood pressure medication on July 25,

2024, thirty-five days after his pre-confinement exam with Nurse

Bearden. (Doc. 11 at 7).

According to Plaintiff, Defendant Centurion has a policy or custom

of requiring medical staff to wait until security staff brings an inmate’s

medication from his pre-confinement cell to the medical department

before delivering the medication to the inmate in confinement. (Doc. 11

at 8-9; Doc. 1 at 14). He alleges this policy or custom caused the delay in

his receiving his blood pressure medications. (Doc. 11 at 9).

Plaintiff alleges the delay in receiving his medications caused him

to suffer physical and emotional harm. (Id. at 6-7, 9). He brings claims

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of medical deliberate indifference against Defendants Nurse Bearden,

Dr. Hernandez-Perez, and Centurion under the Eighth Amendment. (Id.

at 9). Plaintiff seeks billions of dollars in compensatory and punitive

damages. (Id.).

II. Statutory Screening Standard

To survive dismissal at the screening phase, “a complaint must

contain sufficient factual matter, accepted as true, to state a claim to

relief that is plausible on its face.” Iqbal, 556 U.S. at 678 (cleaned up).

The plausibility standard is met only where the facts alleged enable “the

court to draw the reasonable inference that the defendant is liable for the

misconduct alleged.” Id. Plausibility means “more than a sheer

possibility that a defendant has acted unlawfully.” Id. “Where a

complaint pleads facts that are merely consistent with a defendant’s

liability, it stops short of the line between possibility and plausibility of

entitlement to relief.” Id. (internal quotation marks omitted). The

determination of whether a complaint states a plausible claim for relief

is “a context-specific task that requires the reviewing court to draw on its

judicial experience and common sense.” Id. at 679.

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Pro se pleadings are to be liberally construed. Miller v. Donald, 541

F.3d 1091, 1100 (11th Cir. 2008). But “this leniency does not give a court

license to serve as de facto counsel for a party, or to rewrite an otherwise

deficient pleading in order to sustain an action.” Campbell v. Air

Jamaica Ltd., 760 F.3d 1165, 1168-69 (11th Cir. 2014).

III. Discussion

A. Plaintiff has not stated a plausible § 1983 claim against

Defendant Nurse Bearden.

Plaintiff asserts a claim of deliberate indifference to medical needs

against Defendant Nurse Bearden under the Eighth Amendment.

The Eighth Amendment forbids the “inflict[ion]” of “cruel and

unusual punishments.” U.S. Const. amend. VIII. The Supreme Court

has held that it is “cruel and unusual punishment” for prison officials to

act with “deliberate indifference to serious medical needs of prisoners.”

Estelle v. Gamble, 429 U.S. 97, 104 (1976). That means prison officials

are obligated to provide prisoners with “minimally adequate medical

care.” Harris v. Thigpen, 941 F.2d 1495, 1504 (11th Cir. 1991). The

deliberate indifference standard is much higher than simple negligence

or medical malpractice. Id. at 1505. The Eighth Amendment does not

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require a prisoner’s medical care to be “perfect, the best obtainable, or

even very good.” Id. at 1510 (cleaned up). Indeed, the deliberate

indifference standard is only met if medical care is “so grossly

incompetent, inadequate, or excessive as to shock the conscience or to be

intolerable to fundamental fairness.” Id. at 1505 (cleaned up).

Prevailing on a deliberate indifference claim requires Plaintiff to

satisfy two prongs—one objective, one subjective. Farrow v. West, 320

F.3d 1235, 1243 (11th Cir. 2003). Satisfying the objective prong requires

a plaintiff to show an “objectively serious medical need.” Keohane v. Fla.

Dep’t of Corr. Sec’y, 952 F.3d 1257, 1266 (11th Cir. 2020) (cleaned up). A

medical need is objectively serious if it “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—

that, if left unattended, poses a substantial risk of serious harm.” Id.

(cleaned up). To satisfy the subjective prong, a plaintiff must provide

sufficient evidence that prison officials “acted with subjective

recklessness as used in the criminal law[.]” Wade v. McDade, 106 F.4th

1251, 1262 (11th Cir. 2024) (en banc) (cleaned up). Subjective

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recklessness requires that prison officials were “actually, subjectively

aware that [their] own conduct caused a substantial risk of serious harm

to the plaintiff.” Id. But “even if the defendant actually knew of a

substantial risk to inmate health or safety, he cannot be found liable

under the [Eighth Amendment] if he responded reasonably to the risk.”

Id. (cleaned up).

Plaintiff claims that Defendant Nurse Bearden was deliberately

indifferent because she did not take a blood pressure reading during the

pre-confinement exam, and she also did not deliver Plaintiff’s blood

pressure medications to his confinement cell. These allegations do not

permit a reasonable inference of deliberate indifference. Deliberate

indifference requires a showing that the defendant’s conduct was

intentional. See Ancata v. Prison Health Servs., Inc., 769 F.2d 700, 704

(11th Cir. 1985) (explaining that “[t]he knowledge of the need for medical

care and intentional refusal to provide that care has consistently been

held to…constitute deliberate indifference.”). Plaintiff does not allege

any facts showing that Nurse Bearden intentionally refused to take a

blood pressure reading as opposed to simply negligently failing to do so.

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Likewise, Plaintiff does not allege any facts showing that Nurse Bearden

intentionally refused to deliver Plaintiff’s medications as opposed to

simply negligently failing to do so. Plaintiff has not alleged facts that

permit the Court to draw a reasonable inference of deliberate indifference

on Nurse Bearden’s part. For this reason, Plaintiff has not stated a

plausible § 1983 claim against Defendant Nurse Bearden.

B. Plaintiff has not stated a plausible § 1983 claim against

Defendant Dr. Hernandez-Perez.

Plaintiff’s Eighth Amendment claim against Defendant Dr.

Hernandez-Perez fares no better. Plaintiff alleges Dr. Hernandez-Perez

was deliberately indifferent to his need for the medications because Dr.

Hernandez-Perez denied his grievance concerning Nurse Bearden’s

failure to provide it.

Dr. Hernandez-Perez’s signature on the grievance suggests he

knew that Plaintiff had been without his medications for six days and

was experiencing ill effects. See Johnson v. Lewis, 83 F.4th 1319, 1329

(11th Cir. 2023) (explaining that defendant doctor’s signature on denied

grievance detailing plaintiff’s medical condition and lack of treatment

supported a reasonable inference that doctor had knowledge of the

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contents of the grievance). But Dr. Hernandez-Perez’s immediate act

(the day after he received the grievance) of scheduling Plaintiff to be seen

by a clinician, instructing Plaintiff to “watch the call out,” and reminding

Plaintiff of the availability of sick call, shows that Dr. Hernandez-Perez

“responded reasonably” to any risk to Plaintiff’s health or safety. Wade,

106 F.4th at 1262. For this reason, Plaintiff has not stated a plausible

§ 1983 claim against Dr. Hernandez-Perez.

C. Plaintiff has not stated a plausible § 1983 claim against

Defendant Centurion.

This leaves Plaintiff’s Eighth Amendment claim against Defendant

Centurion, the employer of Nurse Bearden and Dr. Hernandez-Perez.

According to Plaintiff, Centurion has a policy or custom of requiring

medical staff to wait until security staff brings an inmate’s medication

from his pre-confinement cell to the medical department before

delivering the medication to the inmate in confinement. He alleges this

policy or custom caused the delay in his receiving his blood pressure

medications.

“Because Centurion is a private entity contracting with FDOC to

provide medical services to inmates, it is treated as a municipality under

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§ 1983.” Derks v. Bassa, No. 22-13202, 2023 WL 5664197, at *2 (11th Cir.

Sept. 1, 2023). As such, to prevail on a § 1983 claim against Centurion,

a plaintiff must show that (1) his constitutional rights were violated; (2)

Centurion had a custom or policy that constituted deliberate indifference

to that constitutional right; and (3) the policy or custom caused the

violation. McDowell v. Brown, 392 F.3d 1283, 1289 (11th Cir. 2004);

Estate of Hand v. Fla. Dep’t of Corr., No. 21-11542, 2023 WL 119426, at

*6 (11th Cir. Jan. 6, 2023) (stating that Ҥ 1983 liability against

Centurion must be conditioned on the existence of an official policy or

custom that constitutes deliberate indifference”).

Here, Plaintiff has not shown that Centurion’s policy constituted

deliberate indifference to inmates’ needs for medication. Plaintiff does

not allege any facts that permit a reasonable inference that Centurion

knew that the policy was causing delays in inmates’ receiving medication

or placing inmates at substantial risk of serious harm.3

3 Moreover, the availability of Centurion’s sick call procedure cuts against

any inference of deliberate indifference. That procedure provided a

safety net for any inmate who experienced a delay in receiving

medication. Plaintiff knew about the sick call process because he has

been in FDOC custody for several years. Additionally, Dr. Hernandez-

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Plaintiff’s allegations also fail to permit a reasonable inference of

causation. He suggests the delay in his receiving medication would not

have occurred if nurses had been able to retrieve the medications from

his cell instead of their having to wait for security staff to do so. But this

allegation is purely speculative and not based on any facts. There are

simply no facts alleged that permit a reasonable inference that the delay

in delivery of Plaintiff’s medication was the result of Centurion’s policy

of waiting for security staff to bring it to the medical department.

Plaintiff has not shown that Centurion’s policy or custom

constituted deliberate indifference. Nor has he shown that the policy

caused the delay in his receiving medications. For these reasons, he has

not stated a plausible § 1983 claim against Centurion.

IV. Conclusion

For the reasons above, it is respectfully RECOMMENDED that:

Perez reminded Plaintiff that sick call was available to address any

medical concerns.

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1. Plaintiff’s Eighth Amendment deliberate indifference claims

against Defendants be DISMISSED for failure to state a claim upon

which relief can be granted under 28 U.S.C. § 1915(e)(2)(B)(ii).

2. The Clerk of Court be directed to close this case.

At Pensacola, Florida this 14th day of July 2025.

/s/ Zachary C. Bolitho

Zachary C. Bolitho

United States Magistrate Judge

Notice to the Parties

Objections to these proposed findings and recommendations must be

filed within fourteen days of the date of the Report and Recommendation.

Any different deadline that may appear on the electronic docket is for the

Court’s internal use only and does not control. An objecting party must

serve a copy of the objections on all other parties. A party who fails to

object to the magistrate judge’s findings or recommendations contained

in a report and recommendation waives the right to challenge on appeal

the district court’s order based on unobjected-to factual and legal

conclusions. See 11th Cir. Rule 3-1; 28 U.S.C. § 636.

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