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

April 5, 2021

THIRD REPORT AND RECOMMENDATION¹

Three motions to dismiss were filed in this case, one by each named Defendant. Recently Defendant Varona's motion to dismiss, ECF No. 41, was granted in part and denied in part, without objection. ECF Nos. 61-62. The two remaining motions to dismiss were filed by Defendants Islam, ECF No. 38, and Cortes, ECF No. 49. Both Defendants seek to dismiss theclaims asserted against them in the pro se Plaintiff's first amended complaint, ECF No. 14.

Defendant Cortes, a physician at Liberty Correctional Institution, filed his motion to dismiss on November 2, 2020. ECF No. 49. Plaintiff was initially directed to file his response in opposition to that motion by December 2, 2020. ECF No. 50. That deadline was subsequently extended several times, see ECF Nos. 53, 55, and 60, and Plaintiff had until February 26, 2021, to respond to the motion. ECF No. 60. As of this date, Plaintiff has not responded.

In addition, Defendant Islam, also a physician at Liberty Correctional Institution, filed a motion to dismiss on September 11, 2020. ECF No. 38. Again, Plaintiff's deadline to respond to Defendant Islam's motion to dismiss was extended from November 18, 2020, see ECF No. 46, to February 26, 2021. ECF No. 60. Plaintiff has not responded to that motion either.

Because Plaintiff has had sufficient time to respond to both of the motions and his deadline expired more than a month ago, this Report and Recommendation is entered to address the pending motions even though Plaintiff did not respond. Although the motions are unopposed, they have nevertheless been considered on the merits. The Court has discretion to "grant a motion by default if an opposing party does not file a memorandum as required by" Local Rule 7.1. In this case, however, it is not recommended that the motions be granted merely because of Plaintiff's default. N.D. Fla. Loc. R. 7.1(H).

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, while housed at Wakulla Correctional Institution, Plaintiff fractured his right knee. ECF No. 14 at 3. X-rays confirmed Plaintiff "suffered a fracture of his medial tibial plateau" and Plaintiff was informed that he needed surgery. Id. Plaintiff was transferred to the Regional Medical Center for surgery in August 2013, but Plaintiff alleged that due to circumstances out of his control, he was transferred to Santa Rosa Correctional Institution and the surgery was never performed. Id.

Plaintiff was seen by ARNP Szalai in approximately November 2013, and was issued pain medication and a "bed rest lay-in pass." ECF No. 14 at 4. Subsequent x-rays were also taken "which indicated the Plaintiff's fractured knee was getting worse," but Plaintiff contends a recommendation was not made for him "to have the required surgery." Id.

After Plaintiff was transferred to Liberty Correctional Institution, he initiated the sick call procedure because the pain in his right knee was not better. Id. at 4. On or about January 12, 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.

Plaintiff was transferred several more times in 2016 and 2018, finally arriving 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, diagnosed Plaintiff with "Degenerative Joint Disease (DJD)" and said that "the fracture in his knee required surgery to correct so that it would heal properly." Id. Again, Defendant Varona failed to recommend the needed surgery and, instead, issued Plaintiff only pain medication and a bed rest lay-in pass. Id. at 5.

Plaintiff was later transferred to Holmes Correctional Institution. In February of 2019, Plaintiff's knee "gave out" while he was 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. Plaintiff said 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).² "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." 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 "probabilityrequirement," 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).

Defendant Islam's Motion to Dismiss, ECF No. 38

Defendant Islam argues that Plaintiff's complaint fails to state a claim because it does not rise to the requisite level of "deliberate indifference" under the Eighth Amendment. ECF No. 38 at 1-3. Further, he contends that Plaintiff's state law claims for negligence and/or medical malpractice must be dismissed because Plaintiff did not comply with the pre-suit notice requirements of Florida Chapter 766. Id. at 8-10.

Defendant Cortes' Motion to Dismiss, ECF No. 49

Defendant Cortes argues that Plaintiff's complaint should be dismissed for failure to state a claim as Plaintiff "failed to allege a constitutional violation. Id. at 2. In addition, Defendant Cortes points out that Plaintiff did not comply with the conditions precedent to bringing a state law claim for negligence and/or medical malpractice. Id. Further, Defendant argues that he has immunity, that Plaintiff did not allege a "physical injury sufficient to recover compensatory and punitive damages," and that Plaintiff is not entitled to declaratory relief either. Id.

Analysis

A. Defendant Cortes³

The only argument that needs to be addressed is that Plaintiff's amended complaint "is subject to dismissal for failure to state a claim upon which relief can be granted." ECF No. 49 at 2. The...