Curry v. Inch, Case No. 4:18cv207-RH/CAS
| Decision Date | 10 February 2020 |
| Docket Number | Case No. 4:18cv207-RH/CAS |
| Parties | DAVID T. CURRY, Plaintiff, v. MARK S. INCH, et al., Defendants. |
| Court | U.S. District Court — Northern District of Florida |
Pending in this case are two motions to dismiss. The first was filed by Defendant Vilchez, ECF No. 49, and the second was filed by Defendant Lopez, ECF No. 53. The pro se Plaintiff was advised of his obligation to respond to both motions, ECF Nos. 51 and 54, and his responses, ECF Nos. 70-71, have been considered.1
The operative pleading is Plaintiff's second amended complaint [hereinafter "complaint"], ECF No. 23, in which Plaintiff generally claims that Defendants have been deliberately indifferent to his serious medicalneeds. Id. at 1. Plaintiff alleges that while he has been incarcerated in the Florida Department of Corrections, Defendants have "failed and/or refused to provide life-saving Hepatitis-C treatment" to him. Id.
Plaintiff entered the Department's custody in January 2015. Id. at 16. He had already been diagnosed with the Hepatitis-C Virus ("HCV") and alleged that it was at "stage 4" in 2013. Id. Defendant Lopez was the doctor at Okaloosa Correctional Institution, and Defendant Vilchez was the doctor at Gulf Correctional Institution. Id. Plaintiff was under the care of both doctors while housed at those institutions. He alleges that Defendants Lopez and Vilchez denied him treatment for HCV due to lack of funding. Id. at 19, 21.
Plaintiff's complaint, as it pertains to those Defendants, asserts an Eighth Amendment claim for deliberate indifference under 42 U.S.C. § 1983 (count 1), a second claim for "inadequate medical care" under § 1983 (count 3), and a negligence claim (count 4). Plaintiff requests compensatory and punitive damages, "[a]ny any other equitable and legal relief which the Court deems appropriate . . . ." ECF No. 23 at 32.
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). "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, 556 U.S. 662, 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 678, 129 S. Ct. at 1949 (citing Twombly, 550 U.S. at 556, 127 S. Ct. at 1965); see also Wilborn v. Jones, 761 F. App'x 908, 910 (11th Cir. 2019). "The plausibility standard" is not the same as a "probability requirement," and "asks for more than a sheer possibility that a defendanthas 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) (). 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).
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) ().
Dr. Lopez argues that Plaintiff failed to exhaust administrative remedies as required by the Prison Litigation Reform Act, 42 U.S.C. § 1997e(a). ECF No. 53 at 5. Dr. Lopez contends, first, that Plaintiff's efforts to exhaust his claims fell short because his formal grievance was untimely. Id. at 7. Second, Dr. Lopez claims that because a second grievance appeal was "never denied, the present lawsuit never became ripe for filing, and should be dismissed accordingly." Id. at 8.
As explained in the motion, the Department generally has a three-step grievance procedure. ECF No. 53 at 6 (citing FLA. ADMIN. CODE R. 33-103.005 through 33-103.007). However, where a grievance is "of a medical nature," the rules require filing only a formal grievance and then a grievance appeal. FLA. ADMIN. CODE R. 33-103.008; 33-103.005(1).
Defendant Lopez submitted evidence that Plaintiff filed both a formal grievance and an appeal. Formal grievance (# 1702-115-073) was submitted on February 20, 2017, and was denied on March 6, 2017. Defendant's Ex. A (ECF No. 53-1 at 3). Defendant argues that Plaintiff's grievance was untimely because it was not filed within 15 days from the date Plaintiff was examined by Dr. Lopez, which Defendant states was January 27, 2017. ECF No. 53 at 7.
Review of Plaintiff's grievance reveals that Plaintiff was complaining about his HCV treatment in general and did not refer to a specific treatment date. ECF No. 53-1 at 1-2. More importantly, Plaintiff's formal grievance was addressed on the merits, his issue deemed to be "unfounded," and the grievance was "denied." Id. at 3.
"The Prison Litigation Reform Act of 1995 (PLRA) mandates that an inmate exhaust 'such administrative remedies as are available' before bringing suit to challenge prison conditions." 42 U.S.C. § 1997e(a) (). The Supreme Court has held that "failure to exhaust is an affirmative defense under the PLRA." Jones v. Bock, 549 U.S. 199, 216, 127 S. Ct. 910, 166 L. Ed. 2d 798 (2007).3 The issue of exhaustion is "treated as a matter in abatement."4 Bryant v. Rich, 530 F.3d 1368, 1374 (11th Cir. 2008) (cited in Turner v. Burnside, 541 F.3d 1077, 1082 (11th Cir. 2008)). The purpose of exhaustion is to "afford corrections officials time and opportunity to address complaints internally before allowing theinitiation of a federal case." Woodford v. Ngo, 548 U.S. 81, 93, 126 S. Ct. 2378, 2387, 165 L. Ed. 2d 368 (2006) (quoted in Whatley v. Warden, Ware State Prison, 802 F.3d 1205, 1208 (11th Cir. 2015)). In doing so, prisoners must "properly exhaust" administrative remedies by complying with prison grievance procedures. Jones, 549 U.S. at 218, 127 S.Ct. at 922-23. Nevertheless, "district courts may not find a lack of exhaustion by enforcing procedural bars that the prison declined to enforce." Whatley, 802 F.3d at 1213-14.
In Whatley, the Eleventh Circuit Court of Appeals pointed out that under the relevant rules, prison officials could have rejected the prisoner's grievance and refused "to consider issues not raised in an informal grievance." 802 F.3d at 1214. However, prison officials ignored that procedural flaw and considered the merits of the prisoner's claims in the formal grievance and appeal. Id. Accordingly, "a procedural flaw [that is] ignored by a prison cannot later be resurrected by the District Court to defeat exhaustion." 802 F.3d at 1215 (citation omitted). Whatley controls this issue. Because prison officials decided Plaintiff's allegedly "procedurally flawed grievance on the merits" when his formal grievance was denied, the motion to dismiss should be denied as to this issue.
Defendant's second argument as to the exhaustion issue fares no better. Dr. Lopez claimed that Plaintiff's grievance appeal was "never denied" and his treatment was merely deferred. ECF No. 53 at 8. Indeed, Defendant argues that "[n]owhere in the response to the Appeal does it state that the Appeal was denied." Id. Based on his reading of the record, Defendant Lopez claims this lawsuit "never became ripe for filing, and should be dismissed accordingly." Id.
Defendant Lopez is wrong for two reasons. The first reason is that the first two words typed on the response state: "Appeal Denied." ECF No. 53-1 at 5. The second reason is that the appeal was denied on July 7, 2017. Id. However, Plaintiff submitted his appeal on March 9, 2017. ECF No. 53-1 at 4. Thus, it took the Secretary's Office four months to provide a response to Plaintiff. However, the Department's rules state that a grievance appeal must "be responded to within 30 calendar days from the date of the receipt of the grievance" appeal. FLA. ADMIN. CODE R. 33-103.011(3)(c). The...
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