Filed: Sep. 17, 2020
Latest Update: Sep. 17, 2020
Summary: Case: 20-10398 Date Filed: 09/17/2020 Page: 1 of 8 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ No. 20-10398 Non-Argument Calendar _ D.C. Docket No. 1:18-cv-22178-KMW ABRAHAM JACKSON MPAKA, Plaintiff-Appellee, versus JACKSON MEMORIAL HOSPITAL, Carlos Migoya, Director, et al., Defendants, SERGIO ARCEY, Psychiatrist, Jackson Memorial Hospital, Defendant-Appellant. _ Appeal from the United States District Court for the Southern District of Florida _ (September 1
Summary: Case: 20-10398 Date Filed: 09/17/2020 Page: 1 of 8 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ No. 20-10398 Non-Argument Calendar _ D.C. Docket No. 1:18-cv-22178-KMW ABRAHAM JACKSON MPAKA, Plaintiff-Appellee, versus JACKSON MEMORIAL HOSPITAL, Carlos Migoya, Director, et al., Defendants, SERGIO ARCEY, Psychiatrist, Jackson Memorial Hospital, Defendant-Appellant. _ Appeal from the United States District Court for the Southern District of Florida _ (September 17..
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Case: 20-10398 Date Filed: 09/17/2020 Page: 1 of 8
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 20-10398
Non-Argument Calendar
________________________
D.C. Docket No. 1:18-cv-22178-KMW
ABRAHAM JACKSON MPAKA,
Plaintiff-Appellee,
versus
JACKSON MEMORIAL HOSPITAL,
Carlos Migoya, Director, et al.,
Defendants,
SERGIO ARCEY,
Psychiatrist, Jackson Memorial Hospital,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(September 17, 2020)
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Before WILSON, JILL PRYOR, and NEWSOM, Circuit Judges.
PER CURIAM:
Pro se plaintiff Abraham Mpaka brings this 42 U.S.C. § 1983 action against
Dr. Sergio Arcey. Mr. Mpaka claims that Dr. Arcey acted with deliberate
indifference to Mr. Mpaka’s serious medical needs in violation of the Fourteenth
Amendment. He also claims that Dr. Arcey retaliated against Mr. Mpaka’s
exercise of protected speech in violation of the First Amendment. The district
court denied Dr. Arcey’s motion for judgment on the pleadings. We now reverse
and remand for further proceedings.
BACKGROUND
Mr. Mpaka alleges that, while incarcerated in 2012, he became severely
depressed and was treated with Wellbutrin, an anti-depressant drug. During 2015
and 2016, doctors tried to treat his depression by prescribing alternative drugs,
such as Zoloft and Celexa. But because these drugs caused adverse side effects,
including hallucinations and suicidal ideation, the prescriptions were discontinued.
Mr. Mpaka resumed taking Wellbutrin in June 2016.
Two years later, Dr. Arcey, a psychiatrist, treated Mr. Mpaka at Metro West
Detention Center. Dr. Arcey informed Mr. Mpaka that a U.S. Department of
Justice (DOJ) order required all detainees taking Wellbutrin to be switched to
Cymbalta. Dr. Arcey presented Mr. Mpaka with a release form to authorize the
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change in his medication, but Mr. Mpaka refused to sign. At a consultation a
month later, Mr. Mpaka again refused to sign.
Mr. Mpaka’s amended complaint outlines his opposition to Cymbalta. Mr.
Mpaka alleges that the Food and Drug Administration has “unequivocal
reservations” about Cymbalta because of various negative health effects. He also
cites his past adverse reactions to other anti-depressant drugs that he had taken as
substitutes for Wellbutrin. Mr. Mpaka then claims that Cymbalta would impair his
ability to testify in his own defense at trial. And finally, he alleges that Cymbalta
contains ingredients to which he is allergic.
About a month after he rejected Cymbalta for the second time, Mr. Mpaka
was scheduled to meet with Dr. Arcey again. But that meeting was later pushed
back about three weeks, leaving Mr. Mpaka without anti-depressant medication for
that time. Mr. Mpaka then placed a request to see Dr. Arcey. Without seeing Mr.
Mpaka, Dr. Arcey increased Mr. Mpaka’s dosage for Benadryl but did not renew
his anti-depressant medication.
Mr. Mpaka then filed this action. Eventually, Dr. Arcey moved to dismiss,
arguing that Mr. Mpaka failed to state a claim for deliberate indifference or
retaliation. The court denied the motion. Then, along with his answer, Dr. Arcey
filed a motion for judgment on the pleadings under Federal Rule of Civil Procedure
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12(c) based on qualified immunity. The court denied this motion as well. Dr.
Arcey now appeals.
DISCUSSION
We review the district court’s denial of a motion for judgment on the
pleadings de novo, accepting the allegations in Mr. Mpaka’s complaint as true and
viewing them in the light most favorable to him. Douglas Asphalt Co. v. Qore,
Inc., 541 F.3d 1269, 1273 (11th Cir. 2008). We apply the same standard to
interlocutory appeals from the denial of qualified immunity. Mikko v. City of
Atlanta, Ga.,
857 F.3d 1136, 1141–42 (11th Cir. 2017).
“Judgment on the pleadings is appropriate where there are no material facts
in dispute and the moving party is entitled to judgment as a matter of law.” Perez
v. Wells Fargo N.A., 774 F.3d 1329, 1335 (11th Cir. 2014). We “liberally
construe[]” pro se pleadings and hold them “to a less stringent standard” than
pleadings drafted by attorneys. Tannenbaum v. United States,
148 F.3d 1262, 1263
(11th Cir. 1998) (per curiam).
“To be entitled to qualified immunity, an official must first prove that he
was acting within the scope of his discretionary authority when the allegedly
wrongful acts occurred.” Mikko, 857 F.3d at 1143–44 (internal quotation mark
omitted). “If he does that, the burden shifts to the plaintiff to establish (1) that the
official violated a statutory or constitutional right, and (2) that the right was clearly
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established at the time of the challenged conduct.” Id. at 1144 (internal quotation
mark omitted). Although courts need not address these two prongs in sequential
order, both prongs must be met to deny an official qualified immunity. Roberts v.
Spielman,
643 F.3d 899, 904 (11th Cir. 2011).
It is undisputed that Dr. Arcey acted within the scope of his discretionary
authority at the time of the alleged wrongdoing. The burden thus shifts to Mr.
Mpaka to satisfy the two-pronged test. We take Mr. Mpaka’s deliberate
indifference and retaliation claims in turn.
I.
To establish a deliberate indifference claim, Mr. Mpaka must at least “prove
(1) subjective knowledge of a risk of serious harm; and (2) disregard of that risk
(3) by conduct that is more than mere negligence.” Dang ex rel. Dang v. Sheriff,
Seminole Cty. Fla., 871 F.3d 1272, 1280 (11th Cir. 2017). Medical treatment is
constitutionally inadequate “when it is so grossly incompetent, inadequate, or
excessive as to shock the conscience or to be intolerable to fundamental fairness.”
Id. (internal quotation mark omitted).
Mr. Mpaka fails the first prong, as nothing in his complaint suggests that Dr.
Arcey knew that Mr. Mpaka faced a serious risk of harm. The district court found
that “the facts set forth in the Amended Complaint suggest Dr. Arcey was aware of
Plaintiff’s medication history and disregarded the fact that Cymbalta, the
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recommended substitute medication for Wellbutrin had not worked or caused
Plaintiff to suffer severe adverse reactions.” Yet Mr. Mpaka’s amended complaint
refers to his past adverse reactions only in connection with other anti-depressant
medications—not in connection with Cymbalta. And, more importantly, while the
amended complaint lists Mr. Mpaka’s concerns with Cymbalta, it does not allege
that Mr. Mpaka told Dr. Arcey—or that Dr. Arcey had any subjective
knowledge—that Mr. Mpaka was allergic to or would be harmed by the drug. So
even taking Mr. Mpaka’s allegations as true and holding his pro se pleading to a
less stringent standard, there is still no basis for concluding that Dr. Arcey had
subjective knowledge of Cymbalta posing a risk of serious harm to Mr. Mpaka.
Therefore, his complaint fails to sufficiently allege that Dr. Arcey was deliberately
indifferent to a serious medical need.
II.
Turning next to the retaliation claim, the First Amendment prohibits officials
from retaliating against prisoners for exercising their right of free speech by filing
lawsuits or grievances. O’Bryant v. Finch, 637 F.3d 1207, 1212 (11th Cir. 2011)
(per curiam). To prevail on a retaliation claim, Mr. Mpaka must establish that: “(1)
his speech was constitutionally protected; (2) [he] suffered adverse action such that
the [official’s] allegedly retaliatory conduct would likely deter a person of ordinary
firmness from engaging in such speech; and (3) there is a causal relationship
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between the retaliatory action . . . and the protected speech.” Id. (second alteration
in original). Once the plaintiff establishes that protected conduct was a motivating
factor for the alleged harm, the burden shifts to the defendant to show it would
have taken the same action without the protected activity. Smith v. Fla. Dep’t of
Corr.,
713 F.3d 1059, 1063 (11th Cir. 2013).
Here, even if Mr. Mpaka’s speech is constitutionally protected and Dr.
Arcey’s conduct would have deterred him from engaging in that speech, his
complaint fails to establish the required causal connection. Mr. Mpaka’s
retaliation claim largely hinges on the lapse of his Wellbutrin prescription, as well
as the postponement of his appointment with Dr. Arcey that caused a gap in Mr.
Mpaka’s anti-depression treatment. But Mr. Mpaka’s allegations show that the
DOJ, rather than Dr. Arcey, decided to discontinue Wellbutrin prescriptions. And
it was Mr. Mpaka’s refusal to sign the required authorization form that prevented
Dr. Arcey from prescribing a substitute medication. Mr. Mpaka’s complaint,
rather than establishing retaliation on Dr. Arcey’s part, shows that Dr. Arcey in
fact increased Mr. Mpaka’s Benadryl prescription as an alternative treatment after
Mr. Mpaka refused to authorize a substitute anti-depressant. Merely labeling Dr.
Arcey’s action “retaliat[ory]” does not draw a sufficient causal link between Dr.
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Arcey’s alleged action and the protected speech. So his complaint fails to
sufficiently allege retaliation.1 Dr. Arcey is thus entitled to qualified immunity.
REVERSED and REMANDED.
1
Because we hold that Mr. Mpaka failed to state any constitutional claim, we need not consider
the clearly established law prong. See Roberts, 643 F.3d at 904.
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