Hutchinson v. Cortes

TIANT HUTCHINSON, Plaintiff, v. DR. A. CORTES, DR. NAYYER ISLAM, and DR. A. VARONA, Defendants.

Case No. 4:20cv18-MW-MAF

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF FLORIDA TALLAHASSEE DIVISION

February 26, 2021

REPORT AND RECOMMENDATION

Pending in this case are three motions to dismiss Plaintiff's complaint. See ECF Nos. 38, 41, and 49. As of this date, Plaintiff has filed a response to Defendant Varona's motion to dismiss. ECF No. 47. However, because Plaintiff has not yet filed responses to the motions to dismiss filed by Defendants Islam or Cortes, this Report and Recommendation addresses only Defendant Varona's motion to dismiss, ECF No. 41.

Allegations of the Amended Complaint, ECF No. 14

Plaintiff is a prisoner in the custody of the Florida Department of Corrections. In May of 2013, Plaintiff fractured his right knee. X-rays confirmed Plaintiff "suffered a fracture of his medial tibial plateau" and Plaintiff was informed that he needed surgery. ECF No. 14 at 3. Plaintiff was transferred, however, and the surgery was never performed. Id. at 3-4. Subsequent x-rays were taken in November 2013, "which indicated the Plaintiff's fractured knee was getting worse." Id. at 4. Plaintiff was given pain medication and a "bed rest lay-in pass," but not surgery. Id.

In 2016, Plaintiff met with Defendant Islam who gave him more pain medication, a knee brace, and a bed rest lay-in pass, but did not "take the necessary steps to ensure that the Plaintiff would receive the required surgery." Id. The amended complaint states that "Defendant Islam told the Plaintiff that he needed surgery to correct the fracture in his knee," but he did not take actions to make that happen. Id.

After several more transfers in 2016 and 2018, Plaintiff was housed at Jefferson Correctional Institution. Id. at 4. There, he declared a "medical emergency" because of the "now excruciating pain in his knee." Id. Defendant Varona ordered another x-ray. Id. Defendant Varona told Plaintiff his "knee suffered from Degenerative Joint Disease (DJD)" and said that "the fracture in his knee required surgery to correct so that it would heal properly." Id. Nevertheless, Defendant Varona failed to recommend the needed surgery and, instead, issued Plaintiff only pain medication and a bed rest lay-in pass. ECF No. 14 at 5.

Plaintiff was later transferred to Holmes Correctional Institution. In February of 2019, Plaintiff's knee "gave out" while leaving the dining hall. Id. at 5. He was taken to medical and examined by Dr. Lopez Rivera, who "completed the necessary steps for the Plaintiff to have the necessary surgery." Id. Plaintiff alleged that surgery was performed on May 24, 2019, but he "continues to suffer complications from his knee" and was scheduled for another surgery. Id. He alleges that he suffers with "daily pain" and claims the Defendants' inactions "caused him to suffer permanent damage, intense emotional distress, anxiety, psychological trauma, and continued limited usage and pain in his right knee." Id.

Plaintiff raises Eighth Amendment claims against all three Defendants and claims they were deliberately indifferent to his serious medical needs. Id. at 6. He simultaneously alleges that Defendants' failure "to provide the proper treatment . . . constitutes the tort of negligence and medical malpractice under" state law. Id. Plaintiff seeks a declaratory judgment, compensatory and punitive damages, and any other relief deemed appropriate. Id. at 6-7.

Standard of Review

The issue on whether a complaint should be dismissed pursuant to Fed. R. Civ. P. 12(b)(6) for failing to state a claim upon which relief can be granted is whether the plaintiff has alleged enough plausible facts to support the claim stated. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L. Ed. 2d 929 (2007) (retiring the standard from Conley v. Gibson, 355 U.S. 41, 78 S. Ct. 99, 2 L. Ed. 2d 80 (1957)). "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949, 173 L. Ed. 2d 868 (2009) (quoting Twombly, 550 U.S. at 570, 127 S. Ct. 1955).¹ "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 themisconduct alleged." Iqbal, 556 U.S. at 677 (citing Twombly, 550 U.S. at 556); see also Speaker v. U.S. Dep't of Health, 623 F.3d 1371, 1380 (11th Cir. 2010). "The plausibility standard" is not the same as a "probability requirement," and "asks for more than a sheer possibility that a defendant has acted unlawfully." Iqbal, 556 U.S. at 677 (quoting Twombly, 550 U.S. at 556). A complaint that "pleads facts that are 'merely consistent with' a defendant's liability," falls "short of the line between possibility and plausibility." Iqbal, 129 556 U.S. at 677 (quoting Twombly, 550 U.S. at 557).

The pleading standard is not heightened, but flexible, in line with Rule 8's command to simply give fair notice to the defendant of the plaintiff's claim and the grounds upon which it rests. Swierkiewicz v. Sorema, 534 U.S. 506, 122 S. Ct. 992, 998, 152 L. Ed. 2d 1 (2002) ("Rule 8(a)'s simplified pleading standard applies to all civil actions, with limited exceptions."). 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. 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). The requirements of Rule 8 do "not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions." Iqbal, 556 U.S. at 678-79, 129 S. Ct. at 1949. A complaint does not need detailed factual allegations to survive a motion to dismiss, but Rule 8 "demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." 556 U.S. at 678, 129 S. Ct. at 1949. "A pleading that offers 'labels and conclusions' or 'a formulaic recitation of the elements of a cause of action will not do.'" Id. (quoting Twombly, 550 U.S. at 555). Thus, "conclusory allegations, unwarranted factual deductions or legal conclusions masquerading as facts will not prevent dismissal." Davila v. Delta Air Lines, Inc., 326 F.3d 1183, 1185 (11th Cir. 2003).

One additional principle bears highlighting: a motion to dismiss does not test the truth of a complaint's factual allegations. As noted above, factual allegations, though not legal conclusions, must be "accepted as true," Ashcroft, 556 U.S. at 678, 129 S. Ct. at 1949, even when they are "doubtful in fact." Twombly, 550 U.S. at 555, 127 S. Ct. at 1965. "Instead, it remains true, after Twombly and Iqbal as before, that 'federal courts and litigants must rely on summary judgment and control of discovery to weed out unmeritorious claims sooner rather than later.'" Leatherman v. Tarrant Cty. Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 168-69 (1993) (quoted in Yawn v. Sec'y of Dep't of Corr., No. 5:13cv228-RH/EMT, 2017 WL 2691423, at *1 (N.D. Fla. June 21, 2017)).

Arguments in Motion to Dismiss, ECF No. 41

Defendant Varona raises five arguments in support of the motion to dismiss. First, Defendant contends that because she is sued in her individual capacity, she can "only be sued for money damages" and not declaratory relief. ECF No. 41 at 6-9. Furthermore, Plaintiff is no longer housed at the same institution where Defendant Varona works. Id. at 7. Second, Defendant argues that the state law claims for negligence and/or medical malpractice must be dismissed because Plaintiff did not comply with the pre-suit notice requirement of Florida law. Id. at 9. Third, Defendant argues that she has immunity from Plaintiff's state law claims pursuant to Florida § 768.28. Id. at 10. Fourth, Defendant Varona contends that the complaint is insufficient to state a claim under the Eighth Amendment. Id. at 17-25. Finally, Defendant raises qualified immunity as a defense to the constitutional claim. Id. at 25.

Analysis

A. Declaratory Relief

According to the complaint, Plaintiff was treated by Defendant Varona at Jefferson Correctional Institution in 2018. ECF No. 14 at 4. Plaintiff was transferred away from Jefferson Correctional Institution "sometime during December 2018 and January 2019." Id. at 5. It is not disputed that Plaintiff is no longer housed at that institution, and there is no suggestion that Plaintiff is likely to again receive treatment from Defendant Varona because she still works at Jefferson C.I. ECF No. 41 at 7.

A request for monetary damages is to "compensate the claimant for alleged past wrongs." McKinnon v. Talladega Cty., Ala., 745 F.2d 1360, 1362 (11th Cir. 1984). A request for declaratory or injunctive relief, however, is a prospective remedy which becomes moot when a prisoner is transferred. McKinnon, 745 F.2d at 1362-1363; see also Robbins v. Robertson, 782 F. App'x 794, 800 (11th Cir. 2019) (explaining that entering an injunction against two individual defendants who worked at the Valdosta Prisoner where the plaintiff no longer was housed "would be an empty order, as these officials no longer have any ability to provide Plaintiff with" the relief sought); D'Amico v. Jones, No. 4:18cv494-RH- HTC, 2020 WL 3978401, at *2 (N.D. Fla. June 19, 2020), report and recommendation adopted, No. 4:18cv494-RH-HTC, 2020 WL 3978369 (N.D. Fla. July 14, 2020) (holding that prisoner's motion for an injunction concerning "the withholding of Retuxin by unnamed medical staff at Reception and Medical Center" was moot...