GAY

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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

JOHN S. GAY,

D.O.C. # 882614,

Plaintiff,

vs. Case No. 4:25cv053-AW-MAF

KAYLA SCOTT, RN,

and JOHN HRICZ, RN,

Defendants.

____________________________/

SECOND REPORT AND RECOMMENDATION1

This case was removed to this Court from state court on February 5,

2025. ECF No. 1. Plaintiff ultimately filed a third amended complaint

[hereinafter “complaint”], ECF No. 24, on May 6, 2025. The two Defendant

nurses, Scott and Hricz, were served with process in October 2025, ECF

Nos. 69-70, and filed a motion to dismiss, ECF No. 82, on December 1,

1 Previously, a Report and Recommendation, ECF No. 89, was entered on the

motion to dismiss, ECF No. 33, filed by Defendant Centurion of Florida. That Report

and Recommendation was adopted, ECF No. 104, and Centurion was dismissed from

this case in March 2026.

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2025. The pro se Plaintiff has filed a response in opposition to Defendants’

motion, ECF No. 98, and the motion is ready for a ruling.

Allegations of the Complaint, ECF No. 24

On November 13, 2022, Plaintiff was incarcerated at Columbia

Correctional Institution Annex. ECF No. 24 at 5. An officer doing rounds

noticed that “something was amiss” with Plaintiff as he was not sitting up,

and “immediately called medical emergency.” Id. After 30 minutes without

a response to that call, the officer called for medical again. Id. When there

still was no response, the officer enlisted the help of three other inmates to

assist Plaintiff to medical. Id.

Defendants Scott and Hricz “turned Plaintiff away stating that Plaintiff

was not having a stroke.” Id. at 5-6. Defendant Scott claimed Plaintiff “was

faking a stroke in order to transfer.” Id. at 6. Plaintiff alleged that the

Defendant nurses “refused to acknowledge” his “medical emergency”

seven separate times between November 13th and 14th. Id. at 6. Plaintiff

contends he “declared a medical emergency a total of seven times” during

that two day span, but each time, Defendants denied him treatment. Id.

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Eventually, ARPN McQueen saw Plaintiff and called an ambulance.

ECF No. 24 at 6. At the hospital, it was determined that Plaintiff had

suffered two strokes. Id. at 7.

Plaintiff alleges that Defendants Scott and Hricz acted with deliberate

indifference to Plaintiff’s serious medical needs by failing “to even

physically examine” him. Id. at 9, 12. He points out that without the

assistance of McQueen, he would have “faced much worse.” Id. at 9; see

also id. at 22.

Count II of the complaint is brought against Defendant Scott, and

Count III is brought against Defendant Hricz. ECF No. 24 at 16-18. Both

counts assert Eighth and Fourteenth Amendment claims for “failing to

provide the necessary care and treatment in a timely manner.” Id. at 16,

18. As relief, Plaintiff seeks a declaratory judgment, compensatory and

punitive damages from the Defendant nurses who are sued in their

individual capacities.

Motion to Dismiss, ECF No. 82

Defendants Scott and Hricz filed a joint motion to dismiss, ECF No.

82, in which they “deny” Plaintiff’s complaint and seek dismissal under Rule

12(b)(6) because, “even if” Plaintiff’s claims are “accepted as true,” the

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complaint “fails to state a constitutional or legally sufficient claim.” Id. at 2.

Defendants also assert their entitlement to qualified immunity, and contend

that any state law claim for medical negligence is barred for failure to

comply with the pre-suit screening requirements under Florida law. Id. at 3.

Standard of Review

The motion to dismiss was filed pursuant to Federal Rule of Civil

Procedure 12(b)(6). In ruling on a Rule 12(b)(6) motion, the Court must

determine whether a complaint alleges “enough facts to state a claim to

relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S.

544, 570, 127 S. Ct. 1955, 1974, 167 L. Ed. 2d 929 (2007). Detailed

factual allegations are not required, but Plaintiff must provide “more than

labels and conclusions, and a formulaic recitation of the elements of a

cause of action will not do.” Twombly, 550 U.S. at 555, 127 S. Ct. at 1964-

65. Furthermore, the facts of a well-pleaded complaint must be accepted

as true and the case should proceed even if it appears “that actual proof of

those facts is improbable, and ‘that a recovery is very remote and unlikely.’”

550 U.S. at 556, 127 S. Ct. at 1965 (citations omitted).

Pro se complaints are held to less stringent standards than those

drafted by an attorney. Wright v. Newsome, 795 F.2d 964, 967 (11th Cir.

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1986) (citing Haines v. Kerner, 404 U.S. 519, 520-521, 92 S. Ct. 594, 596,

30 L. Ed. 2d 652 (1972)). Nevertheless, a complaint must provide

sufficient notice of the claim and the grounds upon which it rests so that a

“largely groundless claim” does not proceed through discovery and “take

up the time of a number of other people . . . .” Dura Pharmaceuticals, Inc.

v. Broudo, 544 U.S. 336, 125 S. Ct. 1627, 161 L. Ed. 2d 577 (2005)

(quoted in Twombly, 550 U.S. at 558). Thus, a motion to dismiss considers

the legal sufficiency of a complaint, but does not determine whether the

Plaintiff will ultimately prevail. Swierkiewicz v. Sorema N. A., 534 U.S. 506,

511, 122 S. Ct. 992, 997, 152 L. Ed. 2d 1 (2002) (citing to Scheuer v.

Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974)).

Analysis

The Eighth Amendment of the United States Constitution requires

prison officials “to provide medical care for those whom it is punishing by

incarceration.” Estelle v. Gamble, 429 U.S. 97, 103, 97 S. Ct. 285, 290, 50

L. Ed. 2d 251 (1976). “An inmate must rely on prison authorities to treat his

medical needs; if the authorities fail to do so, those needs will not be met.”

Estelle, 429 U.S. at 103, 97 S. Ct. at 290. If an official is deliberately

indifferent to a prisoner’s serious medical needs, that official violates the

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Eighth Amendment’s2 prohibition against cruel and unusual punishment.

Id. at 104, 97 S. Ct. at 291.

“To establish a deliberate indifference claim, a plaintiff must show: (1)

a serious medical need; (2) the defendant’s deliberate indifference to that

need; and (3) causation between the defendant’s indifference and the

plaintiff’s injury.” Goebert v. Lee Cnty., 510 F.3d 1312, 1326 (11th Cir.

2007) (cited in Roy v. Ivy, 53 F.4th 1338, 1346-47 (11th Cir. 2022)). “The

inmate must show that the public official acted with an attitude of

‘deliberate indifference’ by demonstrating three facts: (1) the defendant had

subjective knowledge of a risk of serious harm; (2) the defendant

disregarded that risk; and (3) the defendant’s conduct was more than mere

negligence.” McKeithen v. Jackson, 606 F. App’x 937, 939 (11th Cir. 2015)

(citing to Brown v. Johnson, 387 F.3d 1344, 1351 (11th Cir. 2004)).

“Conduct that is more than mere negligence includes: (1) knowledge of a

2 As a matter of clarification, Plaintiff asserted Eighth and Fourteenth Amendment

claims, but he did not assert an independent Fourteenth Amendment claim. The

Fourteenth Amendment claim is construed only as making the rights contained in the

Bill of Rights applicable to the actions of State officials. Albright v. Oliver, 510 U.S. 266,

272, 114 S. Ct. 807, 812, 127 L. Ed. 2d 114 (1994); see also Timbs v. Indiana, 586 U.S.

146, 150, 139 S. Ct. 682, 687, 203 L. Ed. 2d 11 (2019) (noting that with only “a handful

of exceptions,” the Supreme Court “has held that the Fourteenth Amendment's Due

Process Clause incorporates the protections contained in the Bill of Rights, rendering

them applicable to the States”).

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serious medical need and a failure or refusal to provide care; (2) delaying

treatment for non-medical reasons; (3) grossly inadequate care; (4) a

decision to take an easier but less efficacious course of treatment; or (5)

medical care that is so cursory as to amount to no treatment at all.”

McKeithen, 606 F. App’x at 939 (citing to McElligott v. Foley, 182 F.3d

1248, 1255 (11th Cir. 1999)).

The initial consideration is whether Plaintiff alleged a “serious medical

need,” an objective inquiry. Taylor v. Adams, 221 F.3d 1254, 1257 (11th

Cir. 2000); Farrow v. West, 320 F.3d 1235, 1243 (11th Cir. 2003). Here,

Plaintiff alleged that after he was taken by ambulance to an outside

hospital, it was determined that Plaintiff had suffered two strokes. It cannot

seriously be disputed that a stroke is a serious medical need.3

Turning to the remaining elements, Plaintiff must show the

Defendants had subjective knowledge of a risk of serious harm, but

disregarded that risk with conduct that was “more than mere negligence.”

3 In the Eleventh Circuit, “a serious medical need is considered ‘one that 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.’” Hill v.

Dekalb Reg’l Youth Det. Ctr., 40 F.3d 1176, 1187 (11th Cir.1994) (quotation marks and

citation omitted) (quoted in Farrow, 320 F.3d at 1243). Plaintiff alleged that an officer

doing rounds recognized Plaintiff was in need of medical attention.

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As to those facts, Plaintiff alleged that his condition was noticed by an

officer doing rounds who, as a lay person, could tell that “something was

amiss.” ECF No. 24 at 5. The officer immediately called for help with a

“medical emergency,” but Defendants failed to respond to that call. Plaintiff

was taken to medical by the officer and three inmates, but Plaintiff alleged

that Defendants Scott and Hricz turned him away, “stating that Plaintiff was

not having a stroke” and was “faking” it for a transfer. Id. at 5-6. In all,

Plaintiff alleged that they “refused to acknowledge” his medical emergency

seven different times in a two-day span of time. Plaintiff’s response to the

motion to dismiss also asserts that Defendants “denied all medical

treatment” to him over two days, “ignored his health and for some reason

refused him treatment.” ECF No. 98 at 2, 3.

Plaintiff’s allegations could have been more clear by providing

statements which explain his symptoms and physical condition,4 but

Plaintiff did provide several facts which support finding that Defendants, as

medical professionals, were deliberately indifferent to his medical needs.

That fact that a correctional officer - someone who presumably lacked

4 In response to the motion to dismiss, Plaintiff said “he was drooling out of his

mouth, left eye was completely closed, his face was discolored, slurring of speech” and

mumbling. ECF No. 98 at 3.

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medical training - was able to determine that Plaintiff needed medical

assistance provides an inference that registered nurses should have also

known of his need for medical care. Plaintiff alleged that a medical

emergency was declared seven times by a correctional officer, see ECF

No. 24 at 22, but Defendants refused to provide him treatment. When

Plaintiff was seen by another medical professional, ARPN McQueen, he

examined Plaintiff and called an ambulance. Viewing those facts together

and accepting them as true, the undersigned concludes that Plaintiff has

provided enough facts to survive the brief, bare bones motion to dismiss.

Defendants’ motion argued that Plaintiff alleged he was evaluated by

the Defendants “several times” but “determined he was not having a stroke,

and sent him back to his dormitory . . . .” ECF No. 82 at 2. Those were not

Plaintiff’s allegations. Plaintiff alleged that Defendants never evaluated him

or examined him. If accepted as true, as it must be at this stage, that fact

alone, in combination with the fact that a correctional officer repeatedly

sought medical attention for Plaintiff, supports the claim of deliberate

indifference. Plaintiff’s complaint indicates Defendants refused to provide

him treatment, and that is conduct “that is more than mere negligence.”

McKeithen, 606 F. App’x at 939.

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It may be that the evidence of this case will ultimately show that

Defendants evaluated Plaintiff but misdiagnosed his condition or simply

failed to alleviate a significant risk that they “should have perceived but did

not.” Burnette v. Taylor, 533 F.3d 1325, 1331 (11th Cir. 2008); see also

Campbell v. Sikes, 169 F.3d 1353, 1366-67 (11th Cir. 1999) (noting that a

misdiagnosis is not sufficient for the subjective intent prong of deliberate

indifference unless the defendant knowingly did so). However, at the

motion to dismiss stage of litigation, Plaintiff has alleged sufficient facts to

state a claim, and he should be permitted to pursue discovery. Thus,

Defendants’ motion to dismiss should be denied.

Notably, Defendants argued that they “are entitled to qualified

immunity.” ECF No. 82 at 3. However, it has been well established for 50

years that prisoners have a right to medical care. See Estelle v. Gamble,

429 U.S. 97, 103, 97 S. Ct. 285, 290, 50 L. Ed. 2d 251 (1976). The

qualified immunity defense should be rejected.

Finally, Defendants argued that a state law claim for medical

negligence must be dismissed for failure to comply with state law pre-suit

procedures. ECF No. 82 at 3. Because Plaintiff did not allege anything

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more than the Eighth Amendment claim for the denial of medical care, that

argument should also be rejected.

RECOMMENDATION

In light of the foregoing, it is respectfully RECOMMENDED that the

motion to dismiss, ECF No. 82, be DENIED, and this case be REMANDED

for further proceedings.

IN CHAMBERS at Tallahassee, Florida, on May 5, 2026.

S/ Martin A. Fitzpatrick

MARTIN A. FITZPATRICK

UNITED STATES MAGISTRATE JUDGE

NOTICE TO THE PARTIES

Within fourteen (14) days after being served with a copy of this

Report and Recommendation, a party may serve and file specific written

objections to these proposed findings and recommendations. Fed. R.

Civ. P. 72(b)(2). A copy of the objections shall be served upon all other

parties. A party may respond to another party’s objections within

fourteen (14) days after being served with a copy thereof. Fed. R. Civ.

P. 72(b)(2). Any different deadline that may appear on the electronic

docket is for the Court’s internal use only and does not control. If a

party fails to object to the Magistrate Judge’s findings or

recommendations as to any particular claim or issue contained in this

Report and Recommendation, that party waives the right to challenge on

appeal the District Court’s order based on the unobjected-to factual and

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

Case No. 4:25cv53-AW-MAF