IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
CHARLES J. DAVIS, NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
Appellant, DISPOSITION THEREOF IF FILED
v. CASE NO. 1D13-2119
BAY COUNTY JAIL, SHERIFF,
FRANK MCKEITHEN, ET AL.,
Appellees.
_____________________________/
Opinion filed October 13, 2014.
An appeal from the Circuit Court for Bay County.
Michael C. Overstreet, Judge.
Charles Davis, pro se, Appellant.
Pamela Jo Bondi, Attorney General, Tallahassee; Barbara C. Fromm of Jolly &
Peterson, P.A., Tallahassee, for Appellees Rick Anglin and Ronald Lippmann.
WOLF, J.
In this prisoner civil litigation case, with one exception, we find no error in
the dismissal with prejudice of appellant’s four-time amended complaint. Upon
close consideration of the amended complaint, we find that appellant has
sufficiently alleged facts in support of a 42 U.S.C. § 1983 claim of inadequate
medical care to avoid a motion to dismiss. We, therefore, reverse the order of
dismissal in part and remand for further proceedings consistent with this opinion.
In his complaint (which this court concedes is not the model of clarity),
appellant alleged that Rick Anglin, warden of the Bay County jail, and Doctor
Ronald Lippmann, the physician overseeing medical care of inmates held in the
jail, in their individual capacity, inflicted “cruel and unusual” punishment in
violation of appellant’s Eighth Amendment rights by demonstrating “deliberate
indifference” to appellant’s diagnosed medical condition and continuing severe
pain. Appellant alleges he repeatedly requested medical passes and pain
medication for a ruptured disk and pinched nerve in his lower back and that his
condition was documented in medical records held by the jail from a prior
incarceration. While Anglin and Dr. Lippmann were not personally involved in
appellant’s initial medical screening upon arrival at the jail, appellant alleges that
both were informed of his continuing pain and requests for medical assistance
through repeated grievance and medical request forms and both failed to provide
adequate care. Appellant alleges that after seventy-eight days in detention, he was
finally provided medical passes and pain medication, but only after notice of this
suit was filed.
The trial court, after allowing multiple amendments, dismissed the complaint
with prejudice, in part for failing to state facts sufficient to rise to the level of
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constitutional violations for medical care. The court explained that the complaint
attempted to hold Anglin and Dr. Lippmann responsible for “simply knowing”
about alleged improper medical care rendered by the medical staff and failed to
allege facts to hold them personally liable for another’s negligent acts or
omissions. This was error. For a constitutional cause of action against Anglin and
Dr. Lippmann to survive a motion to dismiss, it is not necessary for appellant to
allege facts to hold them liable for another’s acts or omissions as the court asserts.
We review an order dismissing a complaint with prejudice under the de novo
standard. See Hardwick v. Moore, 795 So. 2d 970, 972 (Fla. 1st DCA 2001).
Inadequate medical care can be the basis of an Eighth Amendment “cruel
and unusual punishment” § 1983 claim in state courts. See Higgs v. Fla. Dep’t of
Corr., 647 So. 2d 962 (Fla. 1st DCA 1994). The United States Supreme Court has
determined that deliberate indifference to a prisoner’s serious medical condition
may violate the Eighth Amendment prohibition against “cruel and unusual
punishment.” Estelle v. Gamble, 429 U.S. 97, 104–05 (1976) (“We therefore
conclude that deliberate indifference to serious medical needs of prisoners
constitutes the ‘unnecessary and wanton infliction of pain’ proscribed by the
Eighth Amendment. This is true whether the indifference is manifested by prison
doctors in their response to the prisoner’s needs or by prison guards in intentionally
denying or delaying access to medical care or intentionally interfering with the
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treatment once prescribed.”). As the court explained, “deliberate indifference,” or
purposely ignoring the “serious medical needs” of prisoners, amounts to “cruel and
unusual punishment” forbidden by the Eighth Amendment. Id.
The “deliberate indifference” standard involves both an objective and a
subjective component. The objective component is met by evidence of “serious
medical need” which includes, in relevant part, the existence of “chronic and
substantial pain.” Brock v. Wright, 315 F.3d 158, 162 (2d Cir. 2003). Appellant’s
allegation of continual severe pain coupled with the claim that appellant was
eventually provided the medical passes and pain medication he sought appears to
meet this objective component.
The subjective component requires an official to know the facts that could
have shown the prisoner’s health was in danger and the official must actually
believe the prisoner’s health is in danger. Farmer v. Brennan, 511 U.S. 825, 837
(1994) (“[T]he 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.”).
Notably, a mere difference of opinion between an inmate and prison medical
staff does not give rise to an Eighth Amendment violation. See Smith v. Fisher,
965 So. 2d 205, 207 (Fla. 4th DCA 2007). However, some types of situations
where courts have found prison medical staff to be “deliberately indifferent,” and
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not just exercising differences of professional opinion, include failure to provide
treatment for diagnosed conditions and failure to investigate the medical situation
enough to make an informed judgment -- including reviewing medical records. See
Hudson v. McHugh, 148 F.3d 859, 861 (7th Cir. 1998); and McElligott v. Foley,
182 F.3d 1248, 1252, 1256–57 (11th Cir. 1999) (finding in a Florida case that
failure to inquire about and treat patient’s severe pain, and repeated delays in
doctors seeing the patient, could constitute deliberate indifference). Here, appellant
alleges both a prior diagnosis of a ruptured disk and pinched nerve and the
existence of prior medical records in the jail’s possession confirming the diagnosis
and treatment.
Because of the knowledge requirement of the subjective component,
individual liability cannot attach through vicarious liability, such as respondeat
superior. Liability requires a showing that the supervisor themselves acted with
“deliberate indifference.” See Williams v. Smith, 781 F.2d 319, 323–24 (2d Cir.
1986) (discussing the ways in which supervisors may be found liable under §
1983); and Burton v. Lynch, 664 F. Supp. 2d 349 (S.D.N.Y. 2009) (attaching
liability to prison official who reviews prison grievance evidencing an ongoing
constitutional violation and fails to remedy the violation only when the violation is
in fact ongoing and subject to remedy by that official). Thus, the supervisor can
become personally liable under the correct facts.
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In this case, appellant alleged that both Anglin and Dr. Lippmann were well
aware of his complaints and they themselves failed to act. This is a separate
allegation from any claim that the medical staff initially failed to provide adequate
care. In focusing on whether Anglin and Dr. Lippmann could be personally liable
for another’s acts, the court overlooked the fact that the complaint alleged that the
two men would be directly liable for their own acts or omissions. For a cause of
action against Anglin and Dr. Lippmann to survive a motion to dismiss, it is not
necessary for appellant to allege facts to hold them liable for another’s acts or
omissions as the court asserts.
Appellant alleged that both Anglin and Dr. Lippmann were “deliberately
indifferent” to his serious medical needs, specifically chronic severe pain, and
failed to provide adequate care for seventy-eight days despite learning of the
improper medical care via repeated grievances and medical request forms. These
are all facts alleged in the complaint that would support a § 1983 claim for
improper medical care. We reverse the order of dismissal only as it pertains to
Anglin and Dr. Lippmann for appellant’s constitutional claim of inadequate
medical care. We affirm the order in all other respects.
REVERSED in part, AFFIRMED in part, and REMANDED for further
proceedings.
LEWIS, C.J., CONCURS; MAKAR, J., CONCURRING IN PART AND
DISSENTING IN PART WITH OPINION.
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MAKAR, J., concurring in part, dissenting in part.
Shortly after his arrest, Charles J. Davis was placed in the Bay County
detention center in Panama City, Florida on January 6, 2011. According to the
allegations in his five page, fifth amended complaint, which relates only to the time
he was a pre-trial detainee at the center, he made known to medical staff upon his
arrival that he had preexisting injuries for which pain medications and other
accommodations were necessary (such as a lower bunk, work restrictions, and
avoidance of stairs). His medical evaluation and decisions about his medical
treatment were made by a physician’s assistant, who denied his initial request for
accommodations as well as his renewed requests a few weeks later during a
physical exam.
Although neither the warden, Rick Anglin, nor the physician overseeing the
center’s provision of medical services, Dr. R. Lippman, were involved in these
medical decisions, Davis alleges he filed grievances about the lack of proper
medical care and accommodations, which were denied by the warden, the
physician and the physician’s assistant. He alleges that shortly thereafter, on March
24, 2011, “all requested medical passes and pain meds, were finally issued” after
he notified the warden that he was going to file a lawsuit. A little over a week later,
Davis filed his initial complaint in circuit court, naming nine individuals and the
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county commission as defendants who engaged in a range of offenses against him,
which was dismissed due to its “vague, incomplete or incomprehensible”
allegations. Over the course of almost the next two years, the same trial judge
allowed Davis to amend his complaint multiple times to overcome various
deficiencies. The fifth iteration of his complaint—which consisted of state and
federal claims—was ultimately dismissed with prejudice by the trial judge, who
concluded that Davis had failed “to allege facts sufficient to rise to the level of a
constitutional violation.” He also ruled that insufficient facts were alleged to hold
Warden Anglin and Dr. Lippman “personally liable for another’s negligent acts or
omissions.” This appeal ensued.
Because dismissal of all of the state and federal claims was appropriate,
allowing Davis’s federal constitutional claim to proceed against the warden and the
supervisory physician is error. The theory of Davis’s federal constitutional claim is
that both of these individuals were on notice that his serious medical needs were
not being met (because of his grievances) and that they acquiesced in these
deprivations (by denying the grievances) thereby imposing individual liability on
them under section 1983. But a viable claim of individual liability under section
1983 must overcome various pleading hurdles, which Davis has failed to do, even
in light of the leniency given to pro se litigants.
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Under Florida procedural law, a complaint that simply strings together a
series of sentences and paragraphs containing legal conclusions and theories does
not establish a claim for relief. See Rule 1.110, Fla. R. Civ. P.; see e.g., Barrett v.
City of Margate, 743 So. 2d 1160, 1162-63 (Fla. 4th DCA 1999) (“It is insufficient
to plead opinions, theories, legal conclusions or argument.”); Maiden v. Carter,
234 So. 2d 168, 170 (Fla. 1st DCA 1970) (“It is a fundamental principle of
pleading that the complaint, to be sufficient, must allege ultimate facts as
distinguished from legal conclusions which, if proved, would establish a cause of
action for which relief may be granted.”). Pro se litigants get leniency in amending
their complaints, but in the end they must meet pleading requirements to allege
ultimate facts holding the defendants liable. Barrett, 743 So. 2d at 1162-63 (“The
complaint, whether filed by an attorney or pro se litigant, must set forth factual
assertions that can be supported by evidence which gives rise to legal liability.”).
Similar principles apply in federal courts: a complaint that patches together a
string of legal conclusions will not survive a motion to dismiss. Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (“Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not suffice.”). If legal
conclusions are alleged, they are not deemed true for purposes of a motion to
dismiss. Id. (“[T]he tenet that a court must accept as true all of the allegations
contained in a complaint is inapplicable to legal conclusions.”). As the Supreme
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Court has long held, “we are not bound to accept as true a legal conclusion
couched as a factual allegation.” Papasan v. Allain, 478 U.S. 265, 286 (1986).
Likewise, “a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to
relief’ requires more than labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do[.]” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555 (2007) (citation omitted).
Here, Davis—despite many opportunities to allege a claim—has come up
short. The allegations applicable to Warden Anglin and Dr. Lippman amount to
legal conclusions “couched as” factual allegations. Davis claims:
• “[T]hat his 14th Amendment rights towards a pretrial detainee, was
[sic] violated by warden, Rick Anglin, and medical staff, physician R.
Lippman, each, in their individual capacity, due process clause.”
• “Cruel and unusual punishments - denial of medical passes, placed
into confinement twice by not having required medical passes.
Warden, Rick Anglin, medical staff, physician, R. Lippman, each, in
their individual capacity. Petitioner had to suffer with severe pains in
his head, neck, lower back, because of his improper care, and no
meds.”
• “[T]hat warden, Rick Anglin, oversees the Bay County Jail, and he
has a duty to assure that all pretrial detainees are provided with proper
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medical care. He further states that physician, R. Lippman, oversees
his asst., Kathi Norman, knowingly and willingly allowed his asst., to
continue to give a pretrial detainee improper medical care. Prior
notice was given to warden, and medical staff, that a law suit was in
process of being filed, on or about March 2011.”
These amount to legal conclusions that the two defendants violated his rights,
which need not be accepted as true. Iqbal, 556 U.S. at 678-79 (legal conclusions
“are not entitled to the assumption of truth.”). They are classic examples of
formulaic labels that fall short under applicable pleading standards. Twombly, 550
U.S. at 555.
Similarly, because Davis is asserting a deliberate indifference claim under
the Eighth Amendment, he must plead facts showing that actions taken by prison
officials were done with the intent or purpose of causing harm; it is not enough to
allege a prison official had knowledge of the harm. Iqbal, 556 U.S. at 676-77
(“Under extant precedent purposeful discrimination requires more than ‘intent as
violation or intent awareness of consequences[.]’ It instead involves a
decisionmaker’s undertaking a course of action ‘because of,’ not merely ‘in spite
of’ [the action’s] adverse effects upon an identifiable group.”) (internal citations
omitted). But that is all Davis has done.
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• Davis “states that medical staff, warden, Rick Anglin, knowingly and
willingly made him suffer with severe pains, even though he had prior
medical files to verify his complaints.” (emphasis added).
• Davis “states that warden Rick Anglin, and physician, R. Lippman,
both knew of his improper medical treatments by the facility asst.,
physician, Kathi Norman.” (emphasis added).
• Davis pleads: “Delibert [sic] Indifference - Physician, R. Lippman,
warden, Rick Anglin, each, in their individual capacity, both R.
Lippman and warden knew of petitioner’s serious medical needs and
failed to provide him with adequate care.” (emphasis added).
Nowhere does Davis allege specific facts of the type that would support a
“deliberate indifference” claim; instead, he alleges that the defendants merely
“knew” of allegedly improper care and failed to take remedial steps within their
authority, which falls short of the requisite standard for this type of constitutional
violation. Iqbal, 566 U.S. at 676-77; see also Pers. Adm’r of Mass. v. Feeny, 442
U.S. 256, 279 (1979). His allegation that the actions were “willingly” done is a
legal conclusion that fails to advance a viable claim; at most it is a legal conclusion
that serves only to frame the structure of a claim. Iqbal, 556 U.S. at 678-79
(“While legal conclusions can provide the framework of a complaint, they must be
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supported by factual allegations.”); see also Barrett, 743 So. 2d at 1162-63;
Maiden, 234 So. 2d at 170.
Prison officials exercise their judgment (and sometimes negligent judgment)
daily in denying medical requests and grievances with knowledge that the grievant-
prisoners have made claims for specific medical care or treatment. Liability does
not exist in these situations absent facts showing that prison officials acted with the
requisite subjective intent to harm and engaged in conduct more culpable than
negligence, i.e., deliberate indifference. Differences of opinion and negligence do
not meet the constitutional standard. See, e.g., Farmer v. Brennan, 511 U.S. 825,
835 (1994).
This analysis is based on principles of Florida procedural law (and federal
principles consistent with Florida principles); it is not based on the even more
demanding “plausibility” standard in federal law. Iqbal, 556 U.S. at 678.
Nonetheless, it is noteworthy that had Davis’s case been removed to federal court
(as almost always happens in state section 1983 actions), it would likely have been
dismissed without as many opportunities for amendment and likely summarily
affirmed on appeal. See Rosa v. Fla. Dep’t of Corr., 522 Fed. Appx. 710, 715-16
(11th Cir. 2013) (inmate provided an opportunity to amend, but made only
“threadbare assertions of alleged constitutional violations, without further factual
support” which are insufficient under Iqbal). Notably, the claims in Rosa included
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claims that the warden and others “were deliberately indifferent either to his
grievances or to the retaliatory actions of their subordinates.” Id. The inmate also
alleged that one defendant “was deliberately indifferent to his care and safety, and
that [another defendant] was liable for her ‘no care policy,’ which led to the filing
of false reports.” Id. Much like Davis’s claims, the inmate’s claims were dismissed
and then affirmed on appeal because they “were too conclusory and vague to
satisfy the pleading standards set forth in Twombly and Iqbal.” Id.
In addition, the alleged actions of Warden Anglin and Dr. Lippman in
denying Davis’s grievances are just as consistent with lawful conduct as Davis’s
constitutional claims; absent some statement of ultimate facts showing that these
officials acted in an unconstitutional manner, dismissal was proper. Iqbal, 556 U.S.
at 678 (“Where a complaint pleads facts that are ‘merely consistent with’ a
defendant’s liability, it ‘stops short of the line between possibility and plausibility
of ‘entitlement to relief.’”) (quoting Twombly, 550 U.S. at 557). The fact pattern
that Davis alleges is consistent with lawful conduct for which the defendants have
no legal liability; applying a “deliberate indifference” label to this conduct does not
add any ultimate fact distinguishing lawful from unlawful conduct.
Florida’s judicial system is open to litigants asserting federal claims that
meet pleading standards. Davis—a prolific prisoner-litigant with four cases
currently lodged in this court—was given exceptional leniency in his attempt to
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assert federal and state claims; none satisfy the basic pleading requirements of
Florida law, including his federal claim, whose dismissal should also be affirmed.
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