BRIAN J. DAVIS, District Judge.
On May 30, 2013, Plaintiff Raymond A. Delgado instituted this action by filing a civil rights Complaint (Complaint) (Doc. 1) pursuant to 42 U.S.C. § 1983.
Defendants assert that Plaintiff has not exhausted his administrative remedies and has failed to state a claim upon which relief can be granted. The matter is ripe for review.
In the Amended Complaint, Plaintiff names as Defendants David B. Shoar, in his official capacity as Sheriff of St. Johns County, Florida; Armor Correctional Health Services, Inc. (Armor); Dr. Zehra Cumber, D.O. (Dr. Cumber), individually; and several unknown jail medical staff, individually. There are four counts raised: (1) Count One — 42 U.S.C. § 1983: deliberate indifference (Defendant Dr. Cumber); (2) Count Two — 42 U.S.C. § 1983: deliberate indifference (Defendants Several Unknown Jail Medical Staff); (3) Count Three — 42 U.S.C. § 1983: municipal liability (Defendant Shoar); and (4) Count Four — deliberate indifference (Defendant Armor). Amended Complaint at 8-13.
In the Amended Complaint, Plaintiff alleges the following. He was arrested on September 3, 2010, and confined as a pretrial detainee at the St. Johns County Jail (Jail) from that date until he was transferred to state prison on April 17, 2012, after sentence was imposed on April 13, 2012. He has a family history of colon cancer. Plaintiff had symptoms and pain while confined in the Jail. As of September 10, 2010, the medical staff was aware that Plaintiff's father had died of colon cancer. On September 11, 2010, Plaintiff informed the medical staff in writing that he noticed red/blood-like patchy areas in his stool. Plaintiff is over fifty years of age and has a family history of colon cancer. Plaintiff received no treatment for symptoms for almost two months. Plaintiff notified the medical staff in writing on November 4, 2010 that he continued to have thinner stools and was still experiencing abdominal tenderness. Plaintiff notified the medical staff that he had lost forty-five pounds since being confined in the Jail.
On November 6, 2010, a nurse saw Plaintiff for abdominal pain. The nurse noted Plaintiff was experiencing abdominal pain, constipation, weight loss, and tenderness to palpation of his abdomen. She further noted that Plaintiff had rebound tenderness. On November 11, 2010, a nurse saw Plaintiff for back pain and leg weakness. The nurse noted cancer as a current medical problem.
On November 12, 2010, Plaintiff saw Dr. Cumber. Dr. Cumber noted Plaintiff's abdominal pain and tenderness and found Plaintiff to be guaiac positive (blood in his stool). Dr. Cumber prescribed Metamucil (an over-the-counter fiber supplement).
On November 27, 2010, Plaintiff informed the medical staff that he was continuing to have abdominal discomfort. A nurse saw Plaintiff on November 29, 2010, and by this time, Plaintiff had lost sixty pounds since his confinement in Jail. The nurse noted Plaintiff experienced abdominal pain, constipation, and weight loss for the past month. She also found his abdomen to be tender to palpation and he had bloody stools. The nurse referred Plaintiff to Dr. Cumber.
Dr. Cumber saw Plaintiff on December 6, 2010. Plaintiff complained about abdominal pain and having to strain during bowel movements. Dr. Cumber recorded that Plaintiff's abdomen remained tender, and then diagnosed Plaintiff with diverticulosis [sic] and constipation. Dr. Cumber prescribed a stool softener, Colace.
On December 18, 2010, Plaintiff notified medical staff in writing of his persistent abdominal pain. Dr. Cumber saw Plaintiff on December 21, 2010. Plaintiff informed the doctor that he continued to have abdominal pain and a green stool. Dr. Cumber prescribed Bentyl, an anti-spasmodic and anti-gas medication used to treat irritable bowel syndrome.
A nurse practitioner saw Plaintiff on January 15, 2011. Plaintiff complained of continued abdominal pain and constipation. The nurse practitioner continued Plaintiff on Bentyl. On March 25, 2011, Plaintiff notified the medical staff that he continued to have blood in his stool and it had been some time since he had seen a doctor regarding his problem. Dr. Cumber saw Plaintiff on April 12, 2011. Plaintiff reported razor sharp pain during bowel movements. Dr. Cumber increased the Metamucil dosage and continued Colace and Bentyl. After April 12, 2011, Plaintiff received refills of fiber supplements and stool softeners. In August 2011, the anti-gas medication was discontinued.
No colon examination was conducted while Plaintiff was in the Jail. Plaintiff was never sent for a CT scan. In sum, no routine evaluation for colon cancer was conducted even though Plaintiff had significant weight loss, blood in his stool, abdominal pain, family history of the disease, and is a male over fifty. Plaintiff's symptoms persisted and worsened throughout his stay at the Jail.
After Plaintiff was transferred to the Florida Department of Corrections, he presented acute symptoms of distress caused by colon cancer. Plaintiff received treatment at Memorial Hospital in Jacksonville, Florida. At that point, doctors discovered colon cancer that had perforated his colon and spread to his liver. Plaintiff received immediate emergency surgery. Due to the long delay in proper examination, diagnosis and treatment, Plaintiff's projected five-year survival rate dropped from 74% to as low as 8%. Routine tests offered in late 2010 would have shown the presence of cancer, reducing Plaintiff's pain and suffering. Also, early diagnosis would have allowed for containment of the cancer to the wall of the colon, preventing the need for chemotherapy or a colostomy.
Plaintiff seeks compensatory and punitive damages against Dr. Cumber and the unknown Jail medical staff; he seeks compensatory damages against Defendants Shoar and Armor.
Defendants Armor and Dr. Cumber move to dismiss the action pursuant to 42 U.S.C. § 1997e(a). Exhaustion of available administrative remedies is required before an action with respect to prison conditions by a prisoner may be initiated in this Court. In addressing this threshold issue, the Eleventh Circuit provides:
Defendants Armor and Dr. Cumber contend that Plaintiff has not exhausted his administrative remedies. Exhaustion of available administrative remedies is "a precondition to an adjudication on the merits" and is mandatory under the Prison Litigation Reform Act.
The Eleventh Circuit, in discussing an unenumerated motion to dismiss under 12(b), Fed.R.Civ.P., based on failure to exhaust administrative remedies, notes:
If a prisoner fails to completely exhaust his administrative remedies prior to initiating a suit in federal court, the complaint must be dismissed. "This is true even if the inmate thereafter exhausts his administrative remedies after initiating his action in federal court."
Defendants assert that Plaintiff failed to meet his burden of establishing that he has exhausted his administrative remedies in his Amended Complaint. Upon review of the relevant case law, a pretrial detainee is not required to plead or demonstrate exhaustion in his complaint: "[w]e conclude that failure to exhaust is an affirmative defense under the PLRA, and that inmates are not required to specially plead or demonstrate exhaustion in their complaints."
To exhaust administrative remedies, an inmate is required to use all steps that the agency holds out; however, Defendants have not provided the Court with any information regarding the administrative steps the agency held out to Plaintiff during his confinement in the Jail. Initially, the Court notes that Defendants fail to identify the administrative process that was available to Plaintiff at the Jail during the period from September 3, 2010 through April 17, 2012. Also, Defendants have not submitted any documentation or any citations to any relevant rules and procedures of the Jail. Plaintiff does not concede that he failed to exhaust his administrative remedies prior to filing his case. And, from the face of the Amended Complaint, it is not readily apparent that Plaintiff failed to exhaust administrative remedies available at the Jail.
Indeed, Plaintiff grieved and complained, often in writing, about his medical problems. As noted by Plaintiff, "the Court and the Plaintiff have no evidence of what the purported administrative remedies would have been in this case, and the Defendants have failed to provide the same." Response at 6. Thus, Dr. Cumber's and Armor's Motions to Dismiss are due to be denied with respect to the affirmative defense of failure to exhaust administrative remedies.
"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.'"
The Eleventh Circuit recently discussed the underlying requirements in presenting a claim of deliberate indifference to a serious medical need:
Defendant Dr. Cumber asserts that Plaintiff has failed to adequately allege a claim of deliberate indifference to a serious medical need. Instead, Dr. Cumber suggests, Plaintiff has simply presented a "disagreement with the medical decisions as to the proper course of medical treatment given to him." Dr. Cumber's Motion to Dismiss at 8.
Upon review of the Amended Complaint, Plaintiff has adequately presented a Fourteenth Amendment claim, alleging the denial of medical care for his serious medical needs in Count One of the Amended Complaint. Amended Complaint at 8-9. Plaintiff claims Dr. Cumber's actions and/or omissions were done with malice and/or reckless indifference to Plaintiff's serious medical needs. Id. at 8.
After
The Court concludes that Defendant Dr. Cumber's Motion to Dismiss should be denied. Plaintiff's claim against Dr. Cumber has facial plausibility and will not be dismissed for failure to state a claim under the Fourteenth Amendment.
The matters raised in Defendant Dr. Cumber's Motion to Dismiss would more properly be raised in a Rule 56 motion with supporting medical records, affidavits, and other relevant documents. Plaintiff has pled "enough facts to state a claim to relief that is plausible on its face."
In Armor's Motion to Dismiss, Armor contends that Count IV should be dismissed for Plaintiff's failure to sufficiently allege a policy of deliberate indifference to serious medical needs. Armor urges this Court to find that Plaintiff's Amended Complaint "is devoid of any factual allegations and consists entirely of conclusory assertions." Armor's Motion to Dismiss at 6.
Plaintiff sets forth his allegations against Defendant Armor, claiming Defendant Armor "instituted and followed practices, customs, and policies which directly resulted in deliberate indifference to Mr. Delgado's serious medical needs." Amended Complaint at 12. In support of this contention, Plaintiff references the following: (1) Armor was aware of a systemic and widespread practice of inadequate medical care despite the obvious need for medical care; (2) Armor failed to discipline its agents and employees for their actions/omissions; and (3) Armor ratified the medical decisions and the reasons for those decisions.
Armor is a private Florida corporation contracting with St. Johns County and/or the Sheriff's Office. Amended Complaint at 2. Since St. Johns County contracted out its health care of inmates, the obligations of the Fourteenth Amendment attach. It is undisputed that Armor is a person acting under color of state law. Thus, Armor may be liable under 42 U.S.C. § 1983 for a constitutional violation. But, Plaintiff "must do more than assert
The Court concludes that Defendant Armor's Motion to Dismiss should be denied. Thus, Defendants Armor and Dr. Cumber will be directed to respond to the Amended Complaint.
Therefore, it is now
1. Defendant, Armor Correctional Health Services, Inc.'s Motion to Dismiss Plaintiff's Amended Complaint (Doc. 34) and Defendant, Dr. Zehra Cumber's Motion to Dismiss Plaintiff's Amended Complaint (Doc. 35) are
2. Defendants Armor and Dr. Cumber shall respond to the Amended Complaint by
3. Defendants, Armor Correctional Health Services, Inc. and Dr. Zehra Cumber's Motion to Compel Answers to Interrogatories and Response to Request to Produce (Doc. 39) is