Iriele v. Griffin

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ALABAMA

WESTERN DIVISION

GRANT SUNNY IRIELE, as the )

personal representative of the estate )

of ROSEMARY EWERE IRIELE )

(a.k.a. Rosemary Ofume), )

) 7:20-cv-383-LSC

Plaintiff, )

)

v. )

)

RICHARD CARROLL GRIFFIN, )

ET AL., )

)

Defendants. )

MEMORANDUM OF OPINION

Rosemary Ewere Iriele, also known as Rosemary Ofume, died of a pulmonary

infarction while in custody at FCI Aliceville. Grant Iriele, her son and the personal

representative of her estate, brought this action against Warden Patricia Bradley,

“Officer Jones,”1 Dr. Richard Griffin, Nurse Elizabeth Knopp, Christopher Potter,

and Nurse Jason Etheridge (collectively, when excluding “Officer Jones,” the

“Individual Federal Defendants”) in their individual capacities, alleging deliberate

indifference to serious medical needs under the Eighth Amendment, pursuant to the

1 Officer Jones has not been specifically identified in this lawsuit, nor has an attorney for Officer

Jones appeared. It appears that “[t]he government is continuing efforts to locate” this defendant.

(Doc. 46 at 7 n.3.)

legal standards set forth in Bivens v. Six Unknown Named Agents of the Fed. Bureau

of Narcotics, 403 U.S. 388 (1971). He also brought this action against the United

States, alleging negligence and wrongful death under the Federal Torts Claims Act

(“FTCA”).

Presently before the Court are Motions to Dismiss filed by the United States

and the Individual Federal Defendants. (Docs. 44, 46.) Also before the Court is the

Estate’s (hereinafter “Plaintiff”) Motion for Leave to File a Second Amended

Complaint. (Doc. 51.) The issues have been fully briefed by the parties and are ripe

for review. For the reasons discussed below, the United States’s Motion to Dismiss

is GRANTED. (Doc. 44.) The Individual Federal Defendants’ Motion to Dismiss is

GRANTED in part and DENIED in part. (Doc. 46.) Plaintiff’s Motion for Leave to

File a Second Amended Complaint is GRANTED as to the remaining defendants.

(Doc. 51.)

I. FACTUAL BACKGROUND

In evaluating a motion to dismiss, this Court “accept[s] the allegations in the

complaint as true and constru[es] them in the light most favorable to the plaintiff.”

Lanfear v. Home Depot, Inc., 679 F.3d 1267, 1275 (11th Cir. 2012) (quoting

Ironworkers Loc. Union 68 v. AstraZeneca Pharm., LP, 634 F.3d 1352, 1359 (11th

Cir. 2011)). As all Defendants oppose Plaintiff’s Motion for Leave to File a Second

Amended Complaint on the ground that further amendment would be futile (Doc. 54

at 6; Doc. 55 at 9), the following “facts” are taken from the allegations contained in

both Plaintiff’s Amended Complaint and Second Amended Complaint, and the

Court makes no ruling on their veracity. These are “facts” for purposes of evaluating

the Motions to Dismiss only.

On or near August 24, 2017, Rosemary Iriele (hereinafter “Iriele”) had an

initial health and intake screen at FCI Aliceville. (Doc. 51-1 ¶ 19.) At this time, she

had an elevated pulse rate of 110 bpm. (Id. ¶ 19.) She was given a Tuberculin Skin

Test (“TST”), despite the fact that she had recently tested positive while confined at

Robert A. Deyton Detention Facility (hereinafter “Lovejoy”) and it is rare to test

negative after a positive result. (Id. ¶¶ 20, 22.)

On August 31, 2017, Iriele initiated a sick call visit. (Id. ¶ 24.) She believed

that she was having an adverse reaction to the TST, and she complained of pain in

her extremities. (Id.) Her pulse rate was elevated at 102 bpm. (Id.) She did not

receive treatment. (Id.)

On September 13, 2017, Iriele had a scheduled medical examination with Dr.

Griffin, who is a physician at FCI Aliceville. (Id. ¶ 25.) Although her pulse rate was

elevated at 119 bpm, Dr. Griffin did not order any additional testing or provide any

treatment. (Id.)

Later that month, Iriele was transferred to Lovejoy, where her pulse rate was

consistently in the range of 105–110 bpm. (Id. ¶¶ 26–27.) She was later returned to

Aliceville, where she had an initial health screen on March 8, 2018. (Id. ¶ 28.) The

health screen was performed by Nurse Etheridge and examined and cosigned by Dr.

Griffin. (Id.) Although her pulse rate was 105 bpm and her records showed the

elevated pulse rates from the previous months at Lovejoy, neither Nurse Etheridge

nor Dr. Griffin provided treatment for the elevated heart rate. (Id.) Further, Iriele

expressed that she did not want another TST done at this time; however, she allowed

Nurse Etheridge to perform the TST after he allegedly threatened to place her in

solitary confinement. (Id. ¶ 29.) According to Plaintiff, Etheridge did not document

this TST “upon realizing it may have harmed Iriele.” (Id.) Etheridge later came to

Iriele and apologized to her after she filed a grievance against him. (Id. ¶¶ 31–32.)

“After the TST administration on March 8, 2018, Iriele became gravely ill.”

(Id. ¶ 33.) She believed that her illness was an adverse reaction to the TST, and she

complained that she felt “itchy, dizzy, lightheaded, couldn’t walk long distances, and

began showing cold like symptoms.” (Id. ¶ 34.) “[H]er body felt horrible all over.”

(Id.) On March 15, 2018, she went to the prison clinic, where she was evaluated by

Health Aide and Technician Potter. (Id. ¶ 35.) Despite that she had visible skin

irritations and an elevated pulse rate of 104 bpm, Potter did not provide any

treatment. (Id.) Potter did tell her to get hydrocortisone from the commissary, which

she did. (Id. ¶ 36.) Potter’s examination findings were reviewed by Dr. Griffin. (Id.

¶ 35.)

From March 15–19, Iriele continued to go to sick call, as her symptoms

“dramatically worsened.” (Id. ¶ 37.) However, according to Plaintiff, Dr. Griffin and

the medical staff “failed to respond by investigating the cause of her symptoms.”

(Id.) As Plaintiff describes it, “Griffin and Potter belittled her, turned her away, []

refused to diagnose her or otherwise provide her with medical care” and “accused

her of faking illness.” (Id. ¶ 38.) They did not perform any further medical evaluation

during this timeframe. (Id.)

On March 19, 2018, Iriele went to sick call, where she was seen by Nurse

Knopp. (Id. ¶ 39.) Iriele complained of “fever, persistent cough, and nasal

congestion,” and she had an elevated pulse rate of 113 bpm. (Id.) Significantly, she

had also lost nine pounds within the last four days. (Id. ¶ 42.) Nurse Knopp did not

provide any treatment, and this record was reviewed and signed by Dr. Griffin. (Id.)

According to Plaintiff, if either Dr. Griffin, Nurse Etheridge, Potter, or Nurse

Knopp had properly examined Iriele, they would have recognized her obvious

pulmonary emboli symptoms. (Id. ¶ 40.) These symptoms are highlighted in the

Merck Manual as being “red flags” that “warrant[] immediate medical attention.”

(Id. ¶ 41.)

One of Iriele’s fellow inmates recounted that, in the days preceding her death,

she could be seen coming out of the medical unit, crying in pain and stating, “they

won’t do anything to help me.” (Id. ¶ 47.) On March 20, 2018, Iriele told another

fellow inmate that her chest and head hurt, and that the medical staff “doesn’t want

to do anything to help me.” (Id. ¶ 48.)

Iriele died on March 21, 2018. That morning, her “condition became so severe

that she could not lie down due to severe difficulty breathing and she feared

completely losing her breath altogether and dying as a result. Iriele’s roommate,

Leslie Furgeuora-Espinoza, who was also a trained medical professional, pushed the

emergency alarm to call for help.” (Id. ¶ 50.) Officer Jones responded to the alarm

and determined that Iriele “[would] be alright” and “could go to sick call.” (Id. ¶ 51.)

Officer Jones deactivated the alarm and did not alert anyone else about the

emergency call. (Id.) Plaintiff claims that if Officer Jones had taken action, “[Iriele]

could have been saved with blood thinners, anticoagulants, and thrombolytics.” (Id.

¶ 52.)

After Jones left, Iriele told Furgeuora-Espinoza to go to breakfast; however,

Furgeuora-Espinoza sought help. (Id. ¶ 53.) When Furgeuora-Espinoza returned,

Iriele had collapsed on the floor and was writhing in pain. (Id. ¶¶ 53–54) Furgeuora-

Espinoza pushed the emergency alarm again. (Id. ¶ 54.) When Officer Jones

returned, he again deactivated the alarm, and he told Furgeuora-Espinoza to “fill out

paperwork for Iriele and then take her to sick call.” (Id.)

Furgeuora-Espinoza later hit the emergency alarm for a third time. (Id. ¶ 56.)

Two different officers responded to this call and found Iriele unresponsive. (Id.)

They acknowledged the emergency and alerted medical personnel. (Id.) “When

medical staff finally arrived to Iriele’s cell, Potter started performing CPR.” (Id. ¶

57.) According to Plaintiff, “[h]ad Potter simply investigated the situation, as any

reasonable health care provider would have done, he would have known that CPR

was the exact wrong thing to do in such a situation.” (Id.)

Two witnesses have stated that Iriele died in her cell. (Id. ¶ 58.) She died of a

pulmonary infarction, which Plaintiff claims “is a known risk factor for persistent

tachycardia2—for which Iriele consistently displayed signs.” (Id. ¶¶ 64–67.)

Furgeuora-Espinoza was sequestered and questioned in the wake of Iriele’s death at

the direction of Warden Bradley. (Id. ¶ 59.)

Prior to filing this lawsuit, Plaintiff submitted an administrative complaint to

the Federal Bureau of Prisons’ Southeast Regional Office. (Id. ¶ 8.) Plaintiff received

a denial letter that was dated May 19, 2020. (Id.)

II. STANDARD OF REVIEW

In general, a pleading must include “a short and plain statement of the claim

showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). However, to

withstand a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), a complaint “must

plead enough facts to state a claim to relief that is plausible on its face.” Ray v. Spirit

Airlines, Inc., 836 F.3d 1340, 1347–48 (11th Cir. 2016) (quoting Bell Atl. Corp. v.

2 Plaintiff claims that an elevated heart rate above 100 bpm constitutes tachycardia. (Doc. 5-1 ¶ 19 n.1.)

Twombly, 550 U.S. 544, 570 (2007)) (internal quotation marks omitted). “A claim

has facial plausibility when the plaintiff pleads factual content that allows the court

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

alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Stated another way, the factual

allegations in the complaint must be sufficient to “raise a right to relief above the

speculative level.” Edwards v. Prime, Inc., 602 F.3d 1276, 1291 (11th Cir. 2010). A

complaint that “succeeds in identifying facts that are suggestive enough to render

[the necessary elements of a claim] plausible” will survive a motion to dismiss. Watts

v. Fla. Int’l Univ., 495 F.3d 1289, 1296 (11th Cir. 2007) (quoting Twombly, 550 U.S.

at 556) (internal quotation marks omitted).

In evaluating the sufficiency of a complaint, this Court first “identif[ies]

pleadings that, because they are no more than conclusions, are not entitled to the

assumption of truth.” Iqbal, 556 U.S. at 679. This Court then “assume[s] the[]

veracity” of the complaint’s “well-pleaded factual allegations” and “determine[s]

whether they plausibly give rise to an entitlement to relief.” Id. Review of the

complaint is “a context-specific task that requires [this Court] to draw on its judicial

experience and common sense.” Id. If the pleading “contain[s] enough information

regarding the material elements of a cause of action to support recovery under some

‘viable legal theory,’” it satisfies the notice pleading standard. Am. Fed’n of Lab. &

Cong. of Indus. Orgs. v. City of Miami, 637 F.3d 1178, 1186 (11th Cir. 2011)

(quoting Roe v. Aware Woman Ctr. for Choice, Inc., 253 F.3d 678, 683–84 (11th

Cir. 2001)).

III. ANALYSIS

A. Deliberate Indifference Claims

1. Count I: Deliberate Indifference to Medical Needs

The Individual Federal Defendants argue that Count I, Plaintiff’s deliberate

indifference as to medical needs count that is based on the Individual Federal

Defendants’ personal participation in Iriele’s care, is due to be dismissed because

Plaintiff has failed to state a claim and because they are entitled to qualified

immunity. The Court addresses each argument, as it pertains to each Individual

Federal Defendant, in turn.

a. Whether Plaintiff Has Failed to State a Claim

When a prison official is deliberately indifferent to the serious medical needs

of an inmate, the official violates the Eighth Amendment’s prohibition of cruel and

unusual punishment. See Estelle v. Gamble, 429 U.S. 97, 104–05 (1976). To assert

an Eighth Amendment deliberate indifference claim, a plaintiff must establish both

that the plaintiff had an objectively serious medical need and that the official

subjectively acted with deliberate indifference to that need. Burnette v. Taylor, 533

F.3d 1325, 1330 (11th Cir. 2008). For purposes of this Motion to Dismiss, the

Individual Federal Defendants do not dispute that Iriele suffered from an objectively

serious medical need. (Doc. 46 at 14.) Rather, the Individual Federal Defendants

contest the subjective component. (Id.)

To show the official subjectively acted with deliberate indifference, “[t]he

plaintiff must prove that the defendant (1) actually knew about a risk of serious harm;

(2) disregarded that risk; and (3) acted with more than ______ negligence.” Wade v.

McDade, 67 F.4th 1363, 1370 (11th Cir. 2023) (citing Hoffer v. Secretary, Fla.

Dep't of Corr., 973 F.3d 1263, 1270 (11th Cir. 2020)) (space intentionally left blank

by the Eleventh Circuit), vacated sub. nom. Wade v. Ga. Corr. Health, LLC, No. 21-

14275, 2023 WL 6613842, at *1 (11th Cir. Oct. 11, 2023), reh’g granted. “Whether

a prison official had the requisite knowledge of a substantial risk is a question of fact

subject to demonstration in the usual ways, including inference from circumstantial

evidence.” Farmer v. Brennan, 511 U.S. 825, 842 (1994). But it is not sufficient to

find that the defendants “should have known” about the risk of harm: “the official

must both be aware of facts from which the inference could be drawn that a

substantial risk of serious harm exists, and he must also draw the inference.”

Franklin v. Curry, 738 F.3d 1246, 1250 (11th Cir. 2013) (quoting Goodman v.

Kimbrough, 718 F.3d 1325, 1332 (11th Cir. 2013)). In short, each defendant is

judged individually based on what they know. See Harper v. Lawrence County, 592

F.3d 1227, 1234 (11th Cir. 2010).

There has been a divide among Eleventh Circuit panels as to whether the last

prong of the subjective analysis requires an official to act with “more than mere

negligence” or “more than gross negligence.”3 In Wade v. McDade, which the

Eleventh Circuit is rehearing en banc, the Eleventh Circuit panel resolved the dispute

in favor of the “more than gross negligence standard,” explaining that the first panel

to have confronted the issue adopted the “more than gross negligence standard.”

Wade, 67 F.4th at 1372 (citing Townsend v. Jefferson, 601 F.3d 1152, 1158 (11th

Cir. 2010)). As the Eleventh Circuit has not heard the issue en banc, the Wade panel

explained that it was bound by the prior-panel-precedent rule to proceed under the

“more than gross negligence standard.” Wade, 67 F.4th at 1373 (citing United States

v. Dailey, 24 F.3d 1323, 1327 (11th Cir. 1994)). This standard is the “‘equivalent of

recklessly disregarding’ a substantial risk of serious harm.” Wade, F.4th at 1375

(quoting Cottrell v. Caldwell, 85 F.3d 1480, 1491 (11th Cir. 1996)).

Whatever the Eleventh Circuit might decide when rehearing Wade en banc,

until that ruling, this Court is also bound by Townsend. Accordingly, to establish a

3 It is worth noting that at least one Eleventh Circuit panel has expressed that these “competing

articulations” could “represent a distinction without a difference because . . . the Supreme Court

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

criminal law.’” Patel v. Lanier County, 969 F.3d 1173, 1188 n.10 (11th Cir. 2020) (quoting Farmer

v. Brennan, 511 U.S. 825, 839–40 (1994)). “Accordingly, no matter how serious the negligence,

conduct that can’t fairly be categorized as reckless won’t meet the Supreme Court’s standard.”

Patel, 969 F.3d at 1888 n.10.

claim of deliberate indifference, Plaintiff must show that the Individual Federal

Defendants acted with “more than gross negligence.”

In terms of the specific type of conduct that constitutes “deliberate

indifference to medical needs,” the Eleventh Circuit has summarized:

Our cases have consistently held that knowledge of the need for medical care

and an intentional refusal to provide that care constitutes deliberate

indifference. Carswell v. Bay County, 854 F.2d 454, 457 (11th Cir.

1988); Ancata v. Prison Health Services, Inc., 769 F.2d 700, 704 (11th Cir.

1985). Medical treatment that is “so grossly incompetent, inadequate, or

excessive as to shock the conscience or to be intolerable to fundamental

fairness” constitutes deliberate indifference. Rogers v. Evans, 792 F.2d 1052,

1058 (11th Cir. 1986). “A doctor's decision to take an easier and less

efficacious course of treatment” also constitutes deliberate

indifferen[ce]. Waldrop v. Evans, 871 F.2d 1030, 1033 (11th Cir. 1989).

Additionally, when the need for medical treatment is obvious, medical care

that is so cursory as to amount to no treatment at all may constitute deliberate

indifference. See Ancata, 769 F.2d at 704. Also, delay in access to medical

care that is “tantamount to ‘unnecessary and wanton infliction of pain,’” may

constitute deliberate indifference to a prisoner's serious medical needs. Brown

v. Hughes, 894 F.2d 1533, 1537 (11th Cir. 1990) (per curiam)

(quoting Estelle, 429 U.S. at 104, 97 S. Ct. at 291), cert. denied, 496 U.S. 928.

Some delay in rendering medical treatment may be tolerable depending on the

nature of the medical need and the reason for the delay. Harris v. Coweta

County, 21 F.3d 388, 393–94 (11th Cir. 1994).

Adams v. Poag, 61 F.3d 1537, 1543–44 (11th Cir. 1995) (cleaned up). But mere

medical malpractice or a failure to properly diagnose does not give risk to a

deliberate indifference claim. See McElligott v. Foley, 182 F.3d 1248, 1254 (11th

Cir. 1999). Rather, deliberate indifference is typically only found in the most

egregious situations. See Wade, 67 F.4th at 1376.

For example, a prison official is deliberately indifferent when they are aware

of a serious medical need or are aware that a course of treatment is clearly

inadequate, yet do nothing to improve the prisoner’s condition. See Patel, 969 F.3d

at 1190; McElligott, 182 F.3d at 1256; Carswell v. Bay County, 854 F.2d 454, 456

(11th Cir. 1988); Goebert, 510 F.3d at 1331. Based on Plaintiff’s allegations, the

actions of some, but not all, Individual Federal Defendants possibly fall into this

category of deliberately indifferent conduct.

The Court’s analysis starts with Dr. Griffin. Plaintiff alleges that Dr. Griffin

knew of Iriele’s increasingly serious medical needs and symptoms, but he took no

action or acted clearly inadequately. (Doc. 51-1 ¶ 71.) Dr. Griffin allegedly knew of

Iriele’s condition because: “Indeed, in the days leading to her death, Iriele went to

sick call every single day. She complained of the real and critical pain, and other

symptoms she was experiencing . . . However, every day she sought help, she was

turned away. Defendant Griffin cosigned each and every one of her sick call

records.” (Id. ¶ 79.) Further, when Iriele went to sick call between March 15–19, Dr.

Griffin allegedly “belittled her, turned her away, and refused to diagnose her.” (Id.

¶ 38.) Based on these allegations, it appears that Dr. Griffin knew of Iriele’s risk of

serious harm. He disregarded this risk by allegedly refusing to provide any treatment.

In fact, Plaintiff’s Complaint alleges that the only treatment Iriele received, leading

up to her becoming unresponsive on March 21, was Potter’s recommendation to

obtain hydrocortisone for her skin irritations. (Id. ¶ 36.) This was despite Iriele’s

reported symptoms of elevated heart rate, dramatic weight loss of nine pounds within

four days, lightheadedness, weakness, and fever, among other symptoms. (Id. ¶ ¶ 34,

39, 42.) Blatantly ignoring all these combined symptoms was more than grossly

negligent. See Patel, 969 F.3d at 1190; McElligott, 182 F.3d at 1256; Carswell, 854

F.2d at 456; Goebert, 510 F.3d at 1331. Plaintiff has stated a claim against Dr.

Griffin.

For similar reasons, Plaintiff has asserted a claim against Potter. Plaintiff’s

allegations against Potter can be divided into two groups: allegations against Potter

prior to Iriele becoming unresponsive on March 21, 2018 and allegations against

Potter after that event. Regarding Potter’s interaction with Iriele prior to March 21,

Potter first evaluated her on March 15 (Doc. 51-1 ¶ 35), where it appears that Iriele

presented with skin irritations, an elevated pulse rate, lightheadedness, weakness,

and cold-like symptoms. (Id. ¶¶ 34–35.) According to the Complaint, when Iriele

continued to go to sick call from March 15–19, Potter “belittled her, turned her away,

and refused to diagnose her.” (Id. ¶ 38.) “Potter was allegedly aware of repeated

notations of tachycardia within Iriele’s medical records” (Id. ¶ 108) and of her

dramatic weight loss (Id. ¶ 106). But the only treatment Potter allegedly ever

provided during this timeframe was a recommendation for hydrocortisone to treat

her rashes. (Id. ¶ 36.) These allegations, when combined, sufficiently establish that

Potter was aware that Iriele faced a serious risk of harm and essentially ignored her,

rather than trying to figure out the problem. Doing nothing in the face of an

obviously serious medical problem is more than grossly negligent, and thus Plaintiff

has stated a claim against Potter. See Patel, 969 F.3d at 1190; McElligott, 182 F.3d

at 1256; Carswell, 854 F.2d at 456; Goebert, 510 F.3d at 1331.

The Court notes that the allegations regarding Potter’s conduct after Iriele

became unresponsive would not give rise to a deliberate indifference claim. Plaintiff

seemingly blames Potter for performing CPR on Iriele after he was alerted of her

unresponsive condition. (Doc. 51-1 ¶ 106.) Regardless of if, as Plaintiff claims, CPR

was the worst possible treatment that Potter could have performed at the time (Id.),

responding to an emergent situation by performing CPR is not more than grossly

negligent. Accordingly, Potter was not deliberately indifferent when he performed

CPR on Iriele; rather, Plaintiff has stated a claim against Potter for all that transpired

prior to this event.

Plaintiff has also stated a claim against Nurse Knopp. According to Plaintiff,

Nurse Knopp’s involvement in Iriele’s care was exclusive to a March 19, 2018 sick

call visit. (Id. ¶ 39.) In this sick call visit, Iriele presented symptoms of fever, cough,

congestion, elevated heart rate, and rapid weight loss. (Id. ¶¶ 39, 42.) Nurse Knopp

was allegedly aware of Iriele’s history of elevated heart rate based on the repeated

notations within her medical records. (Id. ¶ 91.) Nurse Knopp allegedly did not

provide any treatment despite her knowledge of these symptoms. (Id. ¶ 88.) Even a

lay person would recognize that losing nine pounds in four days, especially when

combined with these other symptoms, signaled a serious medical problem.

Accordingly, from these assertions, it appears that Nurse Knopp knew that Iriele was

at serious risk of harm. And when Nurse Knopp allegedly did not provide any

treatment or otherwise investigate the cause of Iriele’s condition, Nurse Knopp

disregarded this risk. Based on these alleged facts, a reasonable jury could determine

that Nurse Knopp’s disregard was more than grossly negligent. See Patel, 969 F.3d

at 1190; McElligott, 182 F.3d at 1256; Carswell, 854 F.2d at 456; Goebert, 510 F.3d

at 1331. Plaintiff has therefore stated a plausible claim against Nurse Knopp.

Whether Plaintiff has asserted a claim against Nurse Etheridge is a closer

question. The allegations regarding Nurse Etheridge essentially are that he forcefully

administered the TST and that he did not treat Iriele’s persistent tachycardia. (Doc.

51-1 ¶¶ 28–29). Plaintiff also makes the conclusory allegation that Nurse Etheridge

knew of Iriele’s weight loss (Id. ¶¶ 122–23); however, there is no allegation that

Nurse Etheridge treated Iriele after her initial health screen on March 8, 2018. As

her weight loss occurred over the four-day period from March 15–19 (Id. ¶ 42),

Nurse Etheridge could not have known about Iriele’s rapid weight loss based on the

allegations in the Complaint. And thus, it follows that Nurse Etheridge was not

deliberately indifferent by not responding to Iriele’s weight loss.

It also follows that Nurse Etheridge did not actually know Iriele was at risk of

serious harm, nor was he more than grossly negligent, by administering the TST.

While Iriele told Nurse Etheridge she did not want another TST, Iriele’s request was

based on her belief that she had previously had a negative reaction to TSTs. (Id. ¶

29.) Iriele allegedly told Nurse Etheridge that “her doctor specifically warned her to

not let anyone give her that test again due to hypersensitivity concerns.” (Doc. 14 ¶

25.) However, as the Individual Federal Defendants describe in their Motion to

Dismiss, a TST is a standard test for inmates entering a new prison. (Doc. 46 at 2,

15.) It is not apparent from the Complaint that the instruction from Iriele’s doctor

ever appeared in her medical records. Consequently, it is not clear that Nurse

Etheridge would have known that performing such a standard test could cause a

serious health condition. But even if Nurse Etheridge was aware, he did not act with

more than gross negligence. “[I]t is axiomatic that simple medical malpractice does

not give rise to the level of a constitutional violation.” Estelle, 429 U.S. at 106. And

at worst, Nurse Etheridge’s conduct could be construed as simple malpractice.

Therefore, Nurse Etheridge was not deliberately indifferent merely by administering

the TST.

In terms of Nurse Etheridge not addressing Iriele’s elevated heart rate, the

Court still does not find deliberate indifference. Iriele had been experiencing an

elevated heart rate for over six months prior to his examination. (Doc. 51-1 ¶¶ 19,

25, 27.) Her history of an elevated heart rate was catalogued in her health records,

which Nurse Etheridge allegedly had access to. (Id. ¶¶ 28, 125.) However, unlike

Dr. Griffin, Potter, and Nurse Knopp, Nurse Etheridge was not presented with any

symptoms other than Iriele’s elevated heart rate. Based on the extended time that

Iriele had an elevated heart rate, and the fact that she complained of no other

symptoms, Plaintiff has not established that Nurse Etheridge actually knew that

Iriele was at serious risk of harm, that he disregarded that risk, or that he acted with

more than gross negligence. Plaintiff’s deliberate indifference claim against Nurse

Etheridge fails.

Lastly, Plaintiff includes Warden Bradley in Count I. Plaintiff claims that

Warden Bradley, “as supervisor of the prison and its employees, failed to ensure that

inmates received adequate and prompt medical care by, including but not limited to

the following: failing to create and implement sufficient policies and procedures

regarding the provision of medical care to inmates, failing to ensure adequate and

sufficient training regarding medical care for inmates, failing to provide proper

supervision and discipline of jailers, and failing to ensure sufficient staffing to

prevent deliberate indifference to the medical needs of inmates.” (Id. ¶ 139.) There

is no allegation that Warden Bradley personally did anything that constitutes

deliberate indifference; rather, Plaintiff’s claims all involve Warden Bradley’s

actions in her supervisory capacity. Therefore, to the extent that Plaintiff asserts a

deliberate indifference claim against Warden Bradley, it is properly considered

under the supervisory liability counts, i.e. Counts II–IV.

b. Whether Defendants Are Entitled to Qualified Immunity

Even if a prison official violated Iriele’s Eighth Amendment rights, they may

nonetheless be entitled to qualified immunity. Qualified immunity shields

government officials from personal liability for civil damages. See Harlow v.

Fitzgerald, 457 U.S. 800, 818 (1982). “To claim qualified immunity, a defendant

official must first show that his allegedly wrongful act or omission occurred while

he was engaged in a discretionary duty.” Goebert v. Lee County, 510 F.3d 1312,

1329 (11th Cir. 2007). Once the official shows that they were engaged in a

discretionary duty, the plaintiff must show that 1) the defendant violated a

constitutional right and 2) that right was clearly established at the time of the

violation. See Corbitt v. Vickers, 929 F.3d 1304, 1311 (11th Cir. 2019).

The Individual Federal Defendants clearly acted within the scope of their

discretionary authority. See Hartley v. Butler, 147 F. App’x 61, 61–62 (11th Cir.

2005) (holding that a defendant was entitled to qualified immunity because “the

allegations in Plaintiff’s complaint are sufficient to show that [Defendant] was acting

within his discretionary authority”).4 A government official acts within his

discretionary authority if his actions “are of a type that fell within the employee’s

job responsibilities.” Holloman ex rel. Holloman v. Harland, 370 F.3d 1252, 1265

(11th Cir. 2004). Treatment and patient care decisions plainly fall within the job

responsibilities of prison medical personnel. And prison policymaking, training,

supervision and discipline, and staffing clearly falls within the job functions of a

prison warden. Because the Individual Federal Defendants acted within their

discretionary authority, the burden then shifted to Plaintiff to allege that Iriele’s

Eighth Amendment rights were violated and that these rights were clearly

established.

As discussed above, Plaintiff did not sufficiently allege that Nurse Etheridge

or Warden Bradley violated Iriele’s Eighth Amendment rights5 in Count I, and

therefore they are entitled to qualified immunity on this Count. Plaintiff has

sufficiently pled that Dr. Griffin, Potter, and Nurse Knopp violated Iriele’s Eighth

4 While opinions from the Federal Appendix are not binding on this Court, these opinions can be

persuasive authority.

5 Even if Plaintiff had alleged a constitutional violation against Nurse Etheridge, he would still

be entitled to qualified immunity because Plaintiff has pointed the Court to no source of law

where the administration of a standard test, like a TST, without a documented medical history of

risk from such a test would constitute deliberate indifference. Nor has Plaintiff directed the Court

to any source of law where failure to address a long-standing history of elevated heart rate,

without any other symptoms, established deliberate indifference.

Amendment rights, and so the Court must determine whether Iriele’s rights were

clearly established.

A constitutional right is clearly established if it is one that “a reasonable

person would have known.” Harlow, 457 U.S. at 1818. There are “three sources of

law that would put a government official on notice of statutory or constitutional

rights: specific statutory or constitutional provisions; principles of law enunciated in

relevant decisions; and factually similar cases already decided by state and federal

courts in the relevant jurisdiction.” Goebert, 510 F.3d at 1330. “Caselaw does not

require a case directly on point for a right to be clearly established,” but “existing

precedent must have placed the statutory or constitutional question beyond debate.”

Kisela v. Hughes, 138 S. Ct. 1148, 1152 (2018) (quoting White v. Pauly, 137 S. Ct.

548, 551 (2017)). “In other words, immunity protects all but the plainly incompetent

or those who knowingly violate the law.” Kisela, 138 S. Ct. at 1152 (quoting White,

137 S. Ct. at 551).

The factual circumstances of this case are analogous to two cases cited by

Plaintiff: McElligott v. Foley, 182 F.3d 1248, 1257 (11th Cir. 1999) and Goebert v.

Lee County, 510 F.3d 1312, 1326 (11th Cir. 2007). In McElligott, an inmate entered

prison having experienced stomach pain for the previous five months, and during his

six months in custody, his pain worsened. The prison’s sole physician and nurse

were notified of the prisoner’s severe pain, but they only treated his pain by

prescribing Tylenol, Pepto-Bismol, and an anti-gas medication, Bentyl. The

inmate’s health continued to deteriorate, and he lost twenty pounds over his last two

months in prison. Eventually, the inmate was hospitalized and diagnosed with

terminal cancer. The court held that the prison physician and nurse were deliberately

indifferent. McElligott, 182 F.3d at 1256. The court reasoned that a jury could find

the physician and nurse were aware that the medications were not effective and that

the inmate’s health was deteriorating, yet they did nothing to alleviate his pain or

further treat him. Id. at 1257–59. The court explained that the factual circumstances

were very similar to Carswell v. Bay County, 854 F.2d 454 (11th Cir. 1988), where

a pretrial detainee constantly pleaded for medical attention, was given ineffective

treatment or ignored altogether by medical personnel, and was diagnosed as a

diabetic eleven weeks, and fifty pounds lost, later. McElligott, 182 F.3d at 1331. The

McElligot court did not fault the physician and the nurse for not diagnosing the

cancer; rather, it was the lack of trying to diagnose or treat the inmate that amounted

to deliberate indifference. Id. at 1256.

Similarly, in Goebert, the Eleventh Circuit found that a prison official was

deliberately indifferent to an inmate’s serious medical needs after the official

disbelieved her medical complaints without any investigation. In Goebert, a

pregnant inmate submitted a complaint to the jail captain, “inform[ing] him that she

had been leaking fluid for nine days, that the jail doctor recognized the need for her

to see an outside doctor, that the problem had become worse since she was seen by

the jail doctor, and that she had not felt the baby move for a few days before writing

the complaint.” Goebert, 510 F.3d at 1327. Two days later, the inmate was taken to

the hospital, where she lost the baby. She did not receive a response from the captain

until a week after her complaint, and his response was: “Medical can set up [an

appointment with an obstetrician] at your expense if you desire.” Id. at 1320. The

court found the captain’s conduct constituted deliberate indifference. Id. at 1325. As

the court explained, the captain was obligated to investigate the matter. Id. at 1328.

Instead, he simply chose to disbelieve her because she was an inmate. Id. at 1328–

31. His decision not to investigate at all, in the face of an inmate experiencing a

serious medical condition, was deliberately indifferent.

Based on the Eleventh Circuit’s decisions in McElligott and Goebert, as well

as Carswell, a reasonable person would have known that the alleged conduct of Dr.

Griffin, Nurse Knopp, and Potter was deliberately indifferent. Like the defendants

in McElligott, Goebert, and Carswell, Dr. Griffin, Nurse Knopp, and Potter were

confronted with a situation where an inmate’s health was obviously deteriorating.

Iriele had lost a significant amount of weight in a short amount of time, and her

condition continued to decline. And yet, Dr. Griffin, Nurse Knopp, and Potter

allegedly did nothing. Because McElligott, Goebert, and Carswell put Dr. Griffin,

Nurse Knopp, and Potter on notice that blatantly failing to investigate an inmate’s

serious medical condition qualified as deliberate indifference, they are not entitled

to qualified immunity.

2. Counts II–IV: Supervisory Deliberate Indifference Claims

Plaintiff’s remaining claims against the Individual Federal Defendants are

deliberate indifference claims premised on supervisory liability. Specifically,

Plaintiff asserts: Count II–Failure to Train and Supervise against Dr. Griffin and

Warden Bradley; Count III–Failure to Discipline against Warden Bradley; and

Count IV–Failure to Protect against Warden Bradley. Dr. Griffin and Warden

Bradley have moved to dismiss these claims, arguing that Plaintiff has failed to state

a claim and that they are entitled to qualified immunity. Specifically, Dr. Griffin and

Warden Bradley argue that these claims “essentially rely on vicarious liability . . . or

a general failure to protect inmates from staff’s medical neglect,” which cannot form

the basis of a deliberate indifference claim. (Doc. 46 at 18.) The Court addresses

whether Plaintiff has alleged a constitutional violation first, and whether Dr. Griffin

and Warden Bradley are nonetheless entitled to qualified immunity on these claims

second.

a. Whether Plaintiff Has Stated a Claim

“The standard by which a supervisor is held liable in her individual capacity

for the actions of a subordinate is extremely rigorous.” Braddy v. Fla. Dep't of Lab.

& Emp. Sec., 133 F.3d 797, 802 (11th Cir. 1998). To establish supervisory liability

for a deliberate indifference claim, a plaintiff “cannot rely on theories of vicarious

liability or respondent superior.” Williams v. Limestone County, 198 F. App’x 893,

896 (11th Cir. 2006); Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009). Rather, “a plaintiff

must allege that the supervisor personally participated in the alleged unconstitutional

conduct or that there is a causal connection between the actions of a supervising

official and the alleged constitutional deprivation.” Franklin, 738 F.3d at 1249

(internal citations omitted); see Gonzalez v. Reno, 326F.3d 1228, 1234 (11th Cir.

2003). Specifically, when there is no allegation of personal participation,

supervisory liability will be established when the supervisor adopts a facially

unconstitutional policy or when the policy is unconstitutionally implemented. Wade,

67 F.4th at 1376 (citing Goebert, 510 F.3d at 1332).

Starting with Warden Bradley, it is clear that she did not “personally

participate” in any unconstitutional conduct. Plaintiff does not allege that Warden

Bradley ever had any direct contact with Iriele. See Belcher v. City of Foley, 30 F.3d

1390, 1396 (11th Cir. 1994). Rather, Plaintiff’s claims against Warden Bradley are

premised on her alleged unconstitutional customs or policies that amounted to a

failure to train or supervise, discipline, or protect. (Doc. 51-1 ¶¶ 158, 168, 173.)

Plaintiff does not sufficiently allege that Warden Bradley adopted facially

unconstitutional policies. Plaintiff does assert that Warden Bradley “promulgated

customs or policies of inadequate training or supervision that demonstrated

deliberate indifference.” (Id. at ¶ 158.) And Plaintiff further asserts that Warden

Bradley had a “custom or policy of failing to discipline her staff” and a “custom or

policy of failing to protect the inmates in FCI Aliceville.” (Id. at ¶¶ 168, 173.) But

Plaintiff does not sufficiently allege what exactly these customs or policies were, or

what made them facially unconstitutional. See Franklin, 738 F.3d at 1251. Plaintiff’s

allegations are plainly conclusory and are therefore insufficient to establish facially

unconstitutional customs or policies.

Plaintiff’s primary argument seems to be that Warden Bradley acted with

deliberate indifference in implementing her customs and policies. In evaluating this

challenge, the Court must determine “(1) whether the supervisor's failure to

adequately train and supervise [, discipline, or protect] . . . constituted deliberate

indifference to an inmate's medical needs; (2) whether a reasonable person in the

supervisor's position would understand that the failure to train and supervise [,

discipline, or protect] constituted deliberate indifference; and (3) whether the

supervisor's conduct was causally related to the subordinate's constitutional

violation.” Poag, 61 F.3d at 1544. The causation element is satisfied when the

Plaintiff shows “(1) ‘a history [or pattern] of widespread abuse puts the responsible

supervisor on notice of the need to correct the alleged deprivation, and he fails to do

so’; (2) ‘a supervisor's custom or policy . . . results in deliberate indifference to

constitutional rights’; or (3) ‘facts support an inference that the supervisor directed

the subordinates to act unlawfully or knew that the subordinates would act

unlawfully and failed to stop them from doing so.’” Wade, 67 F.4th at 1377 (quoting

Cottone v. Jenne, 326 F.3d 1352, 1360 (11th Cir. 2003), abrogated in part on other

grounds by Randall v. Scott, 610 F.3d 701 (11th Cir. 2010) (alteration accepted)

(internal citations and quotations omitted)). The history or pattern of deliberate

indifference must be “obvious, flagrant, rampant, and of continued duration, rather

than isolated occurrences,” so as to establish that the supervisor “had actual or

constructive notice” of the violations. Keith v. Dekalb County, 749 F.3d 1034, 1048–

49 (11th Cir. 2014) (first quoting Hartley v. Parnell, 193 F.3d 1263, 1269 (11th Cir.

1999); then quoting Goebert, 510 F.3d at 1332).

Plaintiff has not satisfied the causation element. Plaintiff argues that there was

a pattern or history of abuse that was sufficient to put Warden Bradley on notice that

inmates’ medical needs were being treated with deliberate indifference by prison

staff. (Doc. 52 at 17; Doc. 51-1 ¶¶ 157, 166, 171.) To show this alleged history or

pattern, Plaintiff directs the Court to three district court cases that involved FCI

Aliceville around the relevant time period: Michel v. Fed. Bureau of Prisons FCI,

No. 7:16-cv-00863-RDP-HNJ, 2017 U.S. Dist. LEXIS 217499, at *1 (N.D. Ala.

Nov. 15, 2017); Smith v. United States, No. 7:16-cv-00184-AKK-JHE, 2018 U.S.

Dist. LEXIS 46388, at *1 (N.D. Ala. Mar. 5, 2018); and Winston v. Aducci-

Washington, No. 7:17-cv-01099-VEH-SGC, 2018 U.S. Dist. LEXIS 84021, at *1

(N.D. Ala. Apr. 19, 2018). (Doc. 52 at 17; Doc. 51-1 ¶¶ 157, 166, 171.)

But these cases do not establish a history or pattern of conduct that would put

Warden Bradley on “actual or constructive notice of a flagrant, persistent pattern of

violations.” Goebert, 510 F.3d at 1332. In both Michel and Winston, the court

dismissed the claims brought against the individual defendants for failure to exhaust

administrative remedies, thereby not even reaching the merits of the plaintiffs’

claims, and dismissed the claims against Warden Bradley’s predecessor because the

claims were essentially based on vicarious liability. Michel, 2017 U.S. Dist. LEXIS

217499, at *30–32; Winston, 2018 U.S. Dist. LEXIS 84021, at *13–14, 16–18. In

Smith, the court ultimately granted summary judgment to the United States on FTCA

claims: no deliberate indifference claims were even alleged. Smith v. United States,

No. 7:16-cv-00184-AKK-JHE, 2019 WL 1104996, at *52 (N.D. Ala. Jan. 22, 2019).

Thus, Plaintiff has fallen well-short of showing the widespread history or pattern of

abuse that would put Warden Bradley on notice that her policies were implemented

in a way amounting to deliberate indifference.

Further, Plaintiff has not established that Warden Bradley’s customs or

policies generally resulted in deliberate indifference, or that she directed her

subordinates to act unlawfully or knew they would do so and failed to intervene. See

Wade, 67 F.4th at 1377. As a nonmedical professional, Warden Bradley was

“entitled to rely on medical judgments made by medical professionals responsible

for prisoner care.” Williams, 198 F. App’x at 897. She was generally entitled to trust

prison medical professionals to appropriately monitor prisoner medical care. See

Wade, 67 F.4th at 1378. There is also no allegation that Warden Bradley directed the

medical staff to act with deliberate indifference, nor is there any sufficient allegation

that she knew they would act with deliberate indifference. In short, nothing in the

pleadings suggests that Warden Bradley had notice of the alleged deliberate

indifference being shown to Iriele or to any other inmate. Warden Bradley was

seemingly only named as a defendant in this lawsuit for one reason: because she was

the warden. This is essentially a theory of vicarious liability, and it is insufficient to

hold her liable.

Turning to Dr. Griffin, Plaintiff has sufficiently alleged that Dr. Griffin

personally participated in unconstitutional conduct, or that there is at least a causal

connection between his conduct and the alleged unconstitutional conduct of his

subordinates. As a reminder, “[w]e apply a three-prong test to determine a

supervisor's liability: (1) whether the supervisor's failure to adequately train and

supervise subordinates constituted deliberate indifference to an inmate's medical

needs: (2) whether a reasonable person in the supervisor's position would understand

that the failure to train and supervise constituted deliberate indifference; and (3)

whether the supervisor's conduct was causally related to the subordinate's

constitutional violation.” Poag, 61 F.3d at 1544. Unlike Warden Bradley, Dr. Griffin

cosigned each of Iriele’s sick call records, which documented her worsening

condition, and he allegedly did nothing to correct the inaction of his subordinates.

The failure to further train or supervise, on these facts, constitutes deliberate

indifference and a reasonable supervising physician would understand this. Dr.

Griffin’s inaction caused, or at least had a causal connection to, his subordinates’

alleged deliberate indifference because he knew they were acting unlawfully but did

nothing to correct them. See Fulwood v. Fed. Bureau of Prisons, 568 F. App’x 753,

756 (11th Cir. 2014). Accordingly, Plaintiff has stated a deliberate indifference claim

against Dr. Griffin for failing to train or supervise his subordinates.

b. Whether Defendants Are Entitled to Qualified Immunity

As previously mentioned, to assert qualified immunity, a government official

must first establish that they acted within their discretionary authority. See Hartley,

147 F. App’x at 61–62. After the official makes this showing, the burden shifts to

the plaintiff to establish that the official violated a clearly established constitutional

right. See Corbitt, 929 F.3d at 1311.

Warden Bradley easily satisfies this standard and is therefore entitled to

qualified immunity. First, deciding how to train or supervise staff, when to discipline

staff, and how to protect inmates falls clearly within the discretionary responsibilities

of a prison warden. Second, Plaintiff has not alleged that Warden Bradley violated

Iriele’s clearly established Eighth Amendment rights. To the contrary, it is clearly

established that a prison warden, like Warden Bradley, is not deliberately indifferent

merely because they are the warden. Consequently, Warden Bradley is entitled to

qualified immunity.

Regarding Dr. Griffin, it is also clear that decisions about training or

supervising subordinates falls within a supervising physician’s discretionary

authority. Further, as explained above, Plaintiff has stated a deliberate indifference

claim against Dr. Griffin based on supervisory liability. However, the question

remains whether Dr. Griffin’s violated a clearly established constitutional right.

Plaintiff has not pointed the Court to a specific source of law that would put

Dr. Griffin on notice that his alleged conduct as a supervisor was unconstitutional.

In the Court’s review of the case law, the closest parallel to Dr. Griffin’s conduct is

Greason v. Kemp, 891 F.2d 829 (11th Cir. 1990). In Greason, an inmate with a

history of mental illness committed suicide after a prison doctor, Dr. Fodor,

discontinued his anti-depressant medication and failed to monitor him. Prior to

stopping the medication, two mental health professionals had written reports

advising against discontinuing the medication. These reports were maintained in the

inmate’s clinical file. The Eleventh Circuit denied summary judgment on the

supervisory deliberate indifference claims against the prison clinical director, who

was the direct supervisor of Dr. Fodor, and the director of mental health for the

Georgia Department of Corrections. Id. at 837–39. Regarding the prison clinical

director, the Eleventh Circuit explained that he was aware the inmate’s medication

had been stopped due to his review of Dr. Fodor’s notes, he was aware of the reports

in the inmate’s file advising against the discontinuation of the medication, and he

was aware of a similar incident involving another inmate. Id. at 838. Because the

prison clinical director failed to warn competent officials, despite his knowledge, the

court held that a jury could find deliberate indifference. Regarding the director of

mental health, the court explained that he had also received the reports advising

against discontinuing the medicine and he was also aware of a similar incident

involving a different inmate. Id. at 839. Because he failed to take any action despite

this knowledge, the court determined that a reasonable jury could find deliberate

indifference. Id.

While cases do not have to be identical to put a party on notice that their

conduct was unconstitutional, denying qualified immunity here would be a bridge

too far. Unlike in Greason, there was no letter in Iriele’s file recommending a

specific course of treatment that Dr. Griffin, as a supervising physician, ignored.

Additionally, unlike in Greason, Dr. Griffin was not aware of a similar incident

involving a different inmate. Thus, there were additional circumstances in Greason

that are not present in this case. For that reason, the Court cannot say that Dr. Griffin

was on notice that his conduct, as a supervisor, constituted deliberate indifference.

He was not sufficiently on notice that failure to train or supervise his subordinates,

in these circumstances, was deliberately indifferent. Dr. Griffin is therefore entitled

to qualified immunity as to this Count.

B. FTCA Claims

The United States argues that Plaintiff’s FTCA claims, Counts V–VI, are due

to be dismissed because 1) the discretionary function exception bars Plaintiff’s

claims and 2) Plaintiff’s FTCA claims are actually constitutional tort claims,

repackaged as state tort claims. Thus, according to the United States, Plaintiff has

failed to establish subject matter jurisdiction. Because Plaintiff’s claims are barred

by the discretionary function exception, the Court does not address the second

argument.

The FTCA is a limited waiver of the federal government’s sovereign

immunity. See Zelaya v. United States, 781 F.3d 1315, 1321 (11th Cir. 2015). Under

the FTCA, individuals may sue the government for state law torts that are committed

by federal employees. See id. at 1323. However, one exception to the FTCA’s waiver

of the government’s immunity is when an employee is performing a discretionary

function. 28 U.S.C. § 2680(a).

For the discretionary function exception to apply, 1) “the conduct that forms

the basis of the suit must involve an element of judgment or choice by the

employee,” Zelaya, 781 F.3d at 1329, and 2) the Court must “determine whether that

judgment is of the kind that the discretionary function exception was designed to

shield.” Zelaya, 781 F.3d at 1330 (quoting Berkovitz v. United States, 486 U.S. 531,

536 (1988)). If an employee acts within their discretion, their conduct will be

shielded, even if that discretion is abused. Zelaya, 781 F.3d at 1329. An employee

will generally act within their discretion unless a “federal statute, regulation, or

policy specifically prescribes a course of action for an employee to follow.” Shivers

v. United States, 1 F.4th 924, 931 (11th Cir. 2021) (quoting United States v. Gaubert,

499 U.S. 315, 322 (1991)), cert. denied, 2142 S. Ct. 1361 (2022); see Cohen v.

United States, 151 F.3d 1338, 1344–45 (11th Cir. 1998) (explaining that if an

employee violates internal guidelines set forth in the Bureau of Prison’s Program

Statement that mandate specific conduct, then the government will be liable under

the FTCA and will not be protected by the discretionary function exception).

Plaintiff has argued that the discretionary function exception does not apply.

Plaintiff originally relied on 18 U.S.C. § 4042(a)(2)–(3) as providing the

nondiscretionary basis for which to allege FTCA violations. (Doc. 14 ¶ 108.)

Plaintiff specifically alleged that, under 18 U.S.C. § 4042(a)(2)–(3), the United

States had a nondiscretionary “duty to provide inmates with a safe and secure

environment, free of dangers, including the dangers of deliberate indifference to

serious medical needs” (Id. ¶ 109) and “to provide inmates a reasonably safe place

with staff that are adequate in number and properly trained” (Id. ¶ 110). However,

the United States effectively rebutted Plaintiff’s argument in its Motion to Dismiss

by explaining how it is well-established that 18 U.S.C. § 4042(a)(2)–(3) allows the

government ample discretion in protecting and caring for prisoners, including in

making staffing decisions. (Doc. 44 at 12.); see Shivers, 1 F.4th at 929 (“[W]hile 18

U.S.C. § 4042 ‘imposes on the BOP a general duty of care to safeguard prisoners,’

it ‘leaves BOP personnel sufficient discretion about how their § 4042 duty of care is

to be accomplished to warrant application of the discretionary function exception.’”

(quoting Cohen, 151 F.3d at 1342)); McFarland v. Warden, 557 F. App’x 915, 916

(11th Cir. 2014). Plaintiff then altered its theory. (Doc. 51 at 5–7.)

Now, Plaintiff contends that the United States violated nondiscretionary

duties defined in Federal Bureau of Prisons, Program Statement 6031.04. (Doc. 51

¶ 179, 189; Doc. 53 at 7.) As Plaintiff highlights, Section 6031.04 states: “Treatment

for [Medically Necessary – Acute or Emergent] conditions . . . is essential to sustain

life or function and warrant immediate attention.” (Id. (citing Federal Bureau of

Prisons, Program Statement 6031.04, at 6 (2014)). Medically acute or emergent

conditions are those “which without care would cause rapid deterioration of the

inmate’s health, significant irreversible loss of function, or may be life-threatening.”

Federal Bureau of Prisons, Program Statement 6031.04, at 5 (2014). Thus, according

to Plaintiff, the United States had a nondiscretionary duty to provide immediate

medical care to Iriele and then breached this duty. Further, Plaintiff contends that

Program Statement 6031.04 mandates certain staffing requirements that the United

States failed to maintain. (Doc. 53 at 7 (citing PS 6031.04 (12)).

The United States argues that the Program Statement cannot define its duty

under the FTCA. (Doc. 54 at 14.) To that end, the Court disagrees.

True, the federal government is not liable under the FTCA when an employee

merely fails to perform duties mandated by a federal law or policy. See Zelaya, 781

F.3d at 1324; see also Dalrymple v. United States, 460 F.3d 1318, 1327 (11th Cir.

2006) (“Violating an internal policy or procedure does not create a cause of action

under the FTCA against the government unless the challenged conduct is

independently tortious under applicable state law.”). For example, if an employee

negligently violates an internal policy or procedure, but the employee owes no state

law duty to the plaintiff, then the employee’s conduct will not give rise to an

actionable negligence claim under the FTCA. See Smith v. United States, 14 F.4th

1348, 1353 (11th Cir. 2020); Smith v. United States, 14 F.4th 1228, 1233–34 (11th

Cir. 2021); see also Dalrymple, 460 F.3d at 1327–28.

But federal statutes, regulations, and guidelines may be relevant in

“provid[ing] evidence that the government has assumed duties analogous to those

recognized by local tort law” or “provid[ing] the standard of care against which the

government's conduct should be assessed.” Zelaya, 781 F.3d at 1324 (quoting Art

Metal-U.S.A., Inc. v. United States, 753 F.2d 1151, 1158 (D.C. Cir. 1985)).

Essentially, “the negligent performance of duties set out in federal statutes and

regulations [and guidelines] may shore up a claim under the FTCA, ‘but only if there

are analogous duties under local tort law.’” Zelaya, 781 F.3d at 1324 (quoting Art

Metal-U.S.A., 753 F.2d at 1157; see also Dalrymple, 460 F.3d at 1327. For example,

in Cohen v. United States, the Eleventh Circuit even discussed how violating

mandatory duties set forth in the BOP’s Program Statement would lead to FTCA

liability under Georgia tort law. 151 F.3d at 1344–45. Here, Program Statement

6031.04 provides certain duties owed to inmates. And under Alabama law, prison

officials owe inmates a duty of care. See Sloss-Sheffield Steel & Iron Co. v. Weir, 60

So. 851 (Ala. 1913); Patton v. Thompson, 958 So. 2d 303, 310 (Ala. 2006) (“Prison

officials have a duty to exercise ordinary and reasonable care for the protection of

persons in their custody.”). The Court is satisfied Program Statement 6031.04 is

analogous to Alabama tort law and can therefore define the United States’s duty of

care under the FTCA.

The next question becomes whether the United States’s discharge of its duties,

as defined by Program Statement 6031.04, involved discretion. At the outset, it is

apparent that staffing decisions are discretionary under the policy. The policy

specifically states that “[e]ach institution will assess the current health services

staffing pattern” and that it is the physician’s responsibility “[t]o provide training.”

Federal Bureau of Prisons, Program Statement 6031.04, at 14–15 (2014). The policy

does provide examples of staffing numbers that would be required based on specific

inmate numbers,6 but ultimately “[t]he provider-to-inmate ratio may also need to be

adjusted depending on institution’s security level, physical layout, and mission.” Id.

at 15. Together, this language allows prison officials ample discretion to create a

staffing pattern and training program that is sufficient for each individual facility.

These decisions are the kinds of decisions that the exception was designed to protect.

See McFarland, 557 F. App’x at 916. Therefore, any FTCA claim that Plaintiff

asserts based on staffing decisions and training is barred by the discretionary

function exception.

As to whether the United States had a nondiscretionary duty to provide

“immediate care” under Program Statement 6031.04, Plaintiff directs the Court to

two cases where district courts in this Circuit determined that the guideline was

nondiscretionary. (Doc. 53 at 8–11 (citing Keahl v. United States, No. 4:15-cv-15,

2017 WL 101781, at *1 (N.D. Fla. 2017); then citing Krocka v. Georges, No. 1:17-

cv-5173, 2019 WL 13418253, at *1 (N.D. Ga. Jan. 30, 2019)). These cases are not

binding on this Court, and they are not persuasive. Determining whether a medical

condition is “acute or emergent,” and what constitutes “immediate care,” involves

6 The Court notes that Plaintiff has not specifically pled how many staff were on duty during the

relevant times at FCI Aliceville, nor how many should have been on duty. (Doc. 51-1 ¶ 181).

Therefore, even if Program Statement 6031.04 provided a nondiscretionary duty, it is impossible

for the Court to assess whether the United States was noncompliant.

the exact element of judgment or choice that the discretionary function exception

was designed to protect. While at times these decisions may be straight-forward, that

is not always the case. This is particularly apparent when comparing the

circumstances present in Keahl and Krocka with the circumstances here. In both

Keahl and Krocka, the plaintiffs had a specific diagnosis of an emergency condition,

namely a macular hole and a detached retina, and a recommendation for immediate

surgery. See Keahl, 2017 WL 101781, at *3, 6; Krocka, 2019 WL 13418253, at *1,

8–10. In contrast, Iriele had not been diagnosed with a medically emergent or acute

condition, and no specific treatment had been recommended. Determining whether

Iriele was suffering from an acute or emergent medical condition, and thus required

immediate care, involved judgment, even if that judgment was abused. See Zelaya,

781 F.3d at 1329. Accordingly, the conduct at issue in this case falls within the

discretionary function exception. Counts V and VI are due to be dismissed.

IV. CONCLUSION

For the reasons discussed above, the United States’s Motion to Dismiss is

GRANTED. (Doc. 44.) The Individual Federal Defendants’ Motion to Dismiss is

GRANTED in part and DENIED in part. (Doc. 46.) The only remaining count is

Count I against Dr. Griffin, Potter, and Nurse Knopp. Nurse Etheridge, Warden

Bradley, and the United States are hereby dismissed as defendants. Plaintiff’s

Motion for Leave to File a Second Amended Complaint is GRANTED as to the

remaining defendants. (Doc. 51.) The Court will enter an Order consistent with this

Memorandum of Opinion.

DONE and ORDERED on December 5, 2023.

L. Scott G

United States DistWét Judge

215755

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