Case 1:14-cv-20341-DPG Document 118 Entered on FLSD Docket 05/08/2015 Page 1 of 25 UN ITED STATES D ISTRICT COURT SOUTHEM D ISTRICT OF FLORID A CA SE N O .I4-ZO34I-CIV -GA YLES/M CALILEY GEORGE HORN , Plaintiff, VS. JULIE L.JONES,Secretary ofthe Florida D epartm ent of Corrections, in her official capacity,etal. Defendants. / REPOR T AND R EC O M M ENDATIO NS ON M O TIO N S TO D ISM ISS Tw o ofthe Defendants in this action,Julie L.Jones,the Secretary ofthe Florida Departm entofCorrections1,and Seyed H osseini, M .D .,have filed m otionsto dism iss the Second Amended Complaint. (DE 86,871.The Secretary alternatively movesto strike from thatComplaintaprayerforinjunctiverelief. (DE 86j. The Honorable Darrin P. GayleshasreferredtheM otionstome.(DE 115q.They arefullybriefed. (DE 97,101, 1021.Forthereasonsofferedbelow,Irecommendthatboth M otionsbedenied. 1. Background Plaintiff G eorge H orn,a Florida State prison inm ate,has brought an action for deliberateindifferencetohisseriousmedicalneeds,pursuantto 42 U.S.C.j 1983 andthe Eighth and Fourteenth Am endm ents to the U nited States Constitution. Plaintiff claim s lAtthe time thisaction was filed M ichaelCrew swas Secretary ofthe Florida Departm entof Correctionsandwasnamed,in hisoffcialcapacity,asaDefendantin thisaction. (DE 86,! 1). Hehassinceresigned,and thecurrentSecretary isJulieL.Jones. LId.,! 2;DE 102,pp.1-21. Pursuantto FederalRuleofCivilProcedure25(d),Ms.Joneshasbeen automatically substituted asaDefendantin thisaction. Case 1:14-cv-20341-DPG Document 118 Entered on FLSD Docket 05/08/2015 Page 2 of 25 the Defendantsdenied ordelayed providing him with necessary m edicaltreatm entto treat serious m edical conditions that arose from Plaintiffs failed hip replacem ent surgery. Plaintiff has sued five Defendants: (1) the Secretary of the Florida Department of Corrections,(2)W exford Health Sources,aprivate company thatmanages healthcare servicesin num erousprisons in South Florida pursuantto a contractwith the D epartm ent ofCorrections (tiW exford''),(3)M arlene Hemandez,M .D.,medicalsite directoratthe South Florida Reception Center,the prison where Plaintiff has been incarcerated,(4) Seyed Hosseini,M .D .,the form erchiefhealth oftsceratSouth Florida Reception Center and (5)David Reddick,M .D.,regional medicaldirector for a1l facilities serviced by W exford in South Florida.(DE 77,!!2-6,271. A. AllegationsofDelayed and Denied M edicalCare2 At som e tim e before he was incarcerated, Plaintiff received a total right hip replacement. Lld.! 8). In July 2011,while in custody atthe South Florida Reception Center,Plaintiffdeveloped an infection and severe abscess atthe site ofhis artificialhip. L1d.,! 91. Plaintiffwasadmitted toKendallRegionalM edicalCenterfortreatmentfor approxim ately six w eeks, w here his doctors recom m ended that he have im m ediate surgery to remove the failed artificialhip, L1d.,!! 10-11q. Rather than undergo that procedure,Plaintiffw as discharged to the South Florida Reception Centerwhere,during 2 W hen considering whether to grant a m otion to dismiss,the courtmust assum e the facts alleged are true and castthem in the lightmostfavorable to the plaintiff. Quality Foods de Centro Am erica v. fatinAmericanAgribusinessDev.Corp.S. A.,711F.2d989,994-95(11thcir. 1983). Case 1:14-cv-20341-DPG Document 118 Entered on FLSD Docket 05/08/2015 Page 3 of 25 the follow ing seven m onths,he received oralantibiotics and the abscessw as drained on numerousoccasions.L1d.,!! 12,141. Plaintiffs infection persisted and he w asplaced in the Center'spalliative care unit forthe nexttwelve months,where he received intravenousantibiotics. L1d.,!! 14-151. During thattim e Plaintiffsuffered extrem e pain and m uscle and nerve dam age from the worseninginfection. L1d.,!! 15-161. W hile atthe Center,Plaintiffoften asked Dr.Hosseiniwhether he w ould receive the recomm ended surgery to rem ove his failed artificialhip. Dr.H osseiniindicated that Plaintiffs surgery had been delayed because the Departm ent of Corrections had not reached an agreem entwith hospitals for orthopedic surgery services forinm ates because ofdisagreementover paymentprocedures. L1d.,!! 17,18). Plaintiff exhausted a11 grievanceproceduresavailabletohim.f1d.,! 17J. In February 2013,Plaintiffwas sentto K endallRegionalM edicalCenterto have a new PICC lineinstalled.3 (Id,,! 194. During hisvisit,thedoctorswho recommended -nineteen m onths earlier -- thatPlaintiffreceive im m ediate surgery to rem ove his failed artificial hip,encountered him again and learned that the surgery had not taken place. (;#.). Thetreating physiciansmadearrangementswith theDepartmentofCorrectionsfor Plaintiff to undergo em ergency surgery at Kendall Regional, w hich took place on February 27, 2013. fld., !! 20, 211. Dr. Arturo Corces, an orthopedic surgeon, performed theprocedurebyremovingtheartificialhipjoint,cleaning theinfectedareas 3 A PICC lineisa peripherally inserted centralcatheterwhich can beused to adm inister medicines over an extended period of tim e. See http://w ww.webmd.conl/painmu agem enftc/central-venous-catheters-topic-ovew iew Case 1:14-cv-20341-DPG Document 118 Entered on FLSD Docket 05/08/2015 Page 4 of 25 andplacing antibioticbeadstotreattheremaining infection. f1d.,! 21). Severalweeks later, on M arch 13, 2013, Plaintiff again underwent surgery; this tim e Dr. Corces removed the antibiotic beads and inserted a spacerin place ofthejoint. f1d.,! 221. Plaintiff then returned to the South Florida Reception Center for two months. (f#.1. Duringthistimethespacerdislocated,causingPlaintiffseverepain.f1d.,!23j.Plaintiff requested butdidnotreceivemedicalcareforthedislocated hip spacer. f1d.?. On M ay 2013,Dr.Corces again operated on Plaintifflrem oving the spacerand cleaningtheareaofthehipjoint.f1d.,!241.Dr.Corcespreparedanoperativereportthe following day,in which he recounted instances while Plaintiffw as in custody,when his m edicalcare w asdelayed ordenied; (Plaintiffjisstatus postaprevious totalhip replacementthat has failed secondary to infection. U nfortunately a large part of the reason ...for the failure has to do w ith the factthat thispatientpriorto his having (seen me)had overa year of drainage. (Plaintiftl had undergone surgery now three m onthsago and wastold to return to the office approxim ately onew eek aftersurgery. Thispatienthoweverforreasonsthat 1do notunderstand wasneverreturngedlto the ofsce...(I1n addition even when the patient w as seen last week with (mlaterialcoming from thehip and the patientwastold to immediately gotothehospitall,)themanagingcompany that is takling) care ofpatient did notsend the patientto the hospital. (ltqwasnecessary formeto speak with the medical directorw ho gave no reason asto w hy thispatientw as being treated in thisfashion. Lld.! 251. Also following this third surgery,Dr.Corcesrecommended thatPlaintiff receive an abductor brace to im m obilize his hip and preventdam age and pain w hile he waswithoutahipjoint. L1d.,! 291. Plaintiffdid notreceivetherecommendedbrace, which causedPlaintiffadditionalpain. Vd.,!! 30,311. Case 1:14-cv-20341-DPG Document 118 Entered on FLSD Docket 05/08/2015 Page 5 of 25 Dr.Corces also recom m ended that Plaintiff have a fourth surgery to inxplant a new prosthetichip,which wasscheduled forOctober2013.L1d.,! 261. Thissurgery has notbeen performed because the Departm entofCorrectionsand W exford have refused to pay forthisorany othersurgery. (f#.).Plaintiffflled grievancesregardingthe denialof thisfourthsurgery. L1d.,!331.Hisgrievancewasapproved on September3,2013,and déan orthopedic consultwas approved by the utilization m anagem entstructure''and içw as approved forsurgery,pending the authorization code and eventually scheduling tim e. . . '' Lld.! 34). . A fter this approval D r. Hosseini and D r. Reddick sent Plaintiff to another orthopedic surgeon for a second opinion for the sole purpose of costcontainm ent. 7#. ). The consulting orthopedic surgeon,Dr.Jose Ponce D e Leon, stated that he could not continue a course of surgery,where another surgeon had already done work,w ithoutan assisting surgeon. L1d.,!(351. W exford treated Dr.Ponce De Leon's opinion as a statem ent that the fourth surgery w as unnecessary or impossible,and denied Plaintiff surgery to implanta new prosthetic hip. L1d.,! 36). Plaintiffhas repeatedly tried to obtain thisGnalsurgery,butithasbeen refused.Lld.! 371. PlaintiffallegesthatW exford hasa policy orcustom ofdirecting or incentivizing its healthcare em ployees to deny non-em ergency surgicalcare in order to reduce costs and maxim ize itsprofitability. L1d.,!! 76-771. Plaintiffallegesthatthe Departmentof Corrections contracted w ith W exford,w ith the know ledge that W exford's cost cutting m easures had resulted in an unacceptable decline in the quality ofm edicalcare provided prisoners. L1d.,! 841. Plaintiffcitesan August2004 reportby the FloridaLegislature's Case 1:14-cv-20341-DPG Document 118 Entered on FLSD Docket 05/08/2015 Page 6 of 25 Oftice of Program Policy A nalysis and Governm ent A ccountability that reviewed W exford's perform ance under an earlier contract between it and the D epartm ent of Corrections.fld.,! 751.Thereportfoundthat$1(aqprimaryway W exfordcontainscosts is through tightutilization m anagem ent''and found thatSsthe quality ofW exford'shealth care hasbeen problematic.'' (fJ.J. The reportstated thatseveralcorrectionalfacilities W exford serviced, including the South Florida Reception Center,ésoften have show n repeated deficiencies and a deteriorated levelof service to the extent thatthe clinical quality ofcarerequired immediate correctiveaction by thecontractor.'' fld.à. Thereport specifically identifed dtpostponem entofspecialty clinicalvisits''as an issue ofconcern. (.J#.). SincePlaintifpsthird surgery in May 2013,hehasnohipjointandnospacerin thejoint,causing hisfemurto move independently ofhiship. fld.,!282. Asaresult, Plaintiff's1eg isimmobile,and any movementofhisthigh causeshim intensepain. f1d.?. Nurses atthe South Florida Reception Center adm inistered liquid m orphine to Plaintiff overatwo yearperiod beginning in late 2011. (1d.,! 381. 0n January 7,2014,Dr. Hernandez abruptly discontinued the m om hine, and refused to provide alternative treatm entforPlaintiffspain,claim ing thatm om hine pills had been found as contraband inanotherinmate'spossession. f1d.,!39J. B. The Pending M otions M s.Jones,Secretary ofthe Florida D epartm entofCorrections,and Dr.H osseini move to dismissthe Second Amended ComplaintunderRule 12 (b) (6),F.R.Civ.P., arguing thatPlaintiff failed to state a claim for relief (DE 86,871. Both Defendants 6 Case 1:14-cv-20341-DPG Document 118 Entered on FLSD Docket 05/08/2015 Page 7 of 25 contend that Plaintiff has not alleged sufscient facts to state a claim for deliberate indifference.(DE 86,pp.3-8;DE 87,pp.3-81.They alsomakeotherargumentsinfavor of dism issal: the Secretary argues that Plaintiffs claim s are barred by separation of powers and the Eleventh Am endm ent, and Dr.Hosseini argues that he is entitled to qualified immunity. (DE 86,pp.8-10;DE 87,pp.8-101. TheSecretary alternatively movesto strike,underRule 12(9,ademand forinjunctiverelief.Iaddresseach motion iflttllnz. II. Analysis A. Standard To survive a m otion to dism iss,a plaintiffm ustplead factsthatm ake outa claim thatisplausible on its face and which raisesthe rightto reliefbeyond a speculative level. BellAtlantic Corp.v.Twombly,550 U.S.544,555-7 (2007).Thisstandard requiresthe pleaderto do m ore than recite elem entsofa cause ofaction orstate legalconclusions.1d. at555. Rather,the pleader m ustsetforth a shortand plain statem entthatprovides the defendantwith fairnotice ofthe nature ofthe claim. Fed.R.CiV.P.8(a);Dura Pharm, Inc.v.Broudo,544 U.S.336,346-7 (2005). Atthisearly stage in the proceedingsthe Courtm ustassum e the Plaintifps allegations are true and considerthem in the lightm ost favorabletothePlaintiff.QualityFoodsdeCentroAmerica,711F.2dat994-95. Plaintiffbrings his claim s pursuantto the Eighth and Fourteenth A m endm ents to theConstitution,and42 U.S.C.j 1983.(DE 77,p.11. TheEighth Amendmentprohibits crueland unusualpunishm ent,and it is m ade applicable to the states by the Fourteenth Amendment. Fieldsv.Corizon Health,Inc.,490 Fed.Appx.174,181(11th Cir.2012) Case 1:14-cv-20341-DPG Document 118 Entered on FLSD Docket 05/08/2015 Page 8 of 25 (citationomitted). Itiswellestablishedthataprison staffsdeliberateindifferenceto an inm ate's serious m edical needs violates the inm ate's right to be free from cruel and unusualpunishm ent. 1d. The prisoner can sue those prison staffers who violated his Eighth Am endm ent rights, and the municipality that runs the prison system , under 42 U.S.C.j 1983.1d. To state a claim for deliberate indifference to a serious m edicalneed, Plaintiff mustallege: (1)hisseriousmedicalneed;(2)Defendants'deliberate indifferencetothat need;and (3)causation between thatindifferenceand Plaintiffsinjury. Mann v,Taser Intern.,Inc.,588 F.3d 1291,1306-07 (11th Cir.2009). Here,there is no dispute that Plaintiffalleged he had a serious m edicalneed w hile in custody;thusPlaintiffs pleading ofthatelem entisnotin question. To plead the second elem ent,deliberate indifference,Plaintiff m ust suffciently allege: (1)Defendants'subjectiveknowledgeofarisk ofseriousharm to Plaintiff;(2) Defendants'disregard ofthatrisk;(3) and thatDefendants'conductamounted to more than gross negligence. 1d., at 1307;Alsobrook v.Alvarado,477 Fed.Appx.710,712 (11thCir.2012). The level of proof required for the causation elem ent has been described in varying, although not dissim ilar,w ays. The Eleventh Circuit addressed the pleading requirem ent of an inm ate's claim of deliberate indifference to the conditions-of- contsnem ent,noting thatSscausation m ay be found w here an officialw as in a position to have taken steps thatcould have averted an unconstitutionalcondition,but failed to do so,'' S#iresv.Paul,581Fed.Appx.786,793 (111 Cir.2014),citing faM arca v.Turner, Case 1:14-cv-20341-DPG Document 118 Entered on FLSD Docket 05/08/2015 Page 9 of 25 995 F.2d 1526,1539 (11thCir.1993). TheCourtnoted thatthe plaintiffmustshow that the ddofficial's actsorom issionsw ere the cause - notm erely a contributing factor- ofthe constitutionally insrm condition.''1d.(quotingLaMarca,995 F.2dat1538). A sister courtin this Circuitaddressed the pleading requirem ents ofthe causation elementin a section 1983deliberate indifference claim,noting idgiln a j1983 claim,a governm ent official's failure to act must have been a substantial factor leading to the violation ofa constitutionally protected liberty orproperty interest.'' Ray v.E .FJ Foltz, 354F.Supp.2d 1309,1316 (M .D.Fla.2005)(citation andquotation marksomitted). In another case the Eleventh Circuit had before itan appealof a districtcourt's grantofsummaryjudgmentin favorofaprison directorofnursing,whoaninmatesued under section 1983 charging that her deliberate indifference to the inm ate's serious medicalneeds caused him injury. There,the Eleventh Circuit noted: Sdto survive summaryjudgment,aplaintiffmustshow thatthedelay attributableto the defendant's indifferencelikelycausedtheplaintiffsinjury.''McDanielsv.Lee,405Fed.Appx.456, 458(11thCir.2010)(citationomitted). Anotherdivision ofthisCourthad before itam otion to dism issan inm ate's claim ofdeliberate indifference to hisseriousm edicalneed. ThatCourtnoted thatproofofthe second elementofdeliberate indifference (thatthe defendantdisregarded the plaintiffs serious medicalneed) tsoverlaps''with the causation element,so that d'ltlhe question (becomeslwhetherthe delay worsened the plaintiffscondition.''D ittmer v.Bradshaws No.12-81309-CV,2015 W L 471371,at *5 (S.D.Fla.Feb.4,2015)citing M cDaniels, supra, and Goebertv.Lee Ca1.,510 F.3d 1312,1327 (11thcir.2007). The Courtneed 9 Case 1:14-cv-20341-DPG Document 118 Entered on FLSD Docket 05/08/2015 Page 10 of 25 not settle, atthis m om ent,on the exact m easure ofthe proof required of the causation elem ent,as Plaintiffhas adequately plead this elem entapplying the language ofany of the foregoing decisions. W ith these principlesin m ind,IconsiderDefendants'argum entsfordism issal. B. Dr.H osseini'sM ntion to Dism iss PlaintiffH as Stated A Claim Plaintiff alleges that Dr.H osseiniknew of Plaintiffs serious m edical needs and had the authority to address those needs but failed to do so,causing Plaintiff to suffer SCVCIX Pain,nCI'VC and m uscle dam age,long term inability to w alk and other physical injury. (DE 77,!! 42-464. Dr.HosseinicontendsPlaintiffhasfailed to statea claim because his allegations show thatPlaintiffreceived atleastm inim ally adequate treatm ent during the nineteen months he waited for his hip removal surgery. (DE 87,p. 5). W hether Plaintiff,in fact,received adequate treatm ent at the South Florida Reception Centerisa question offactthatcannotbe resolved on am otion to dism iss. The Second Am ended Com plaint is not a m odel of clarity,but yvhen read as a whole l believe it states a claim against D r. H osseini. Its allegations include the following: (i) Dr. Hosseini knew that Plaintiffs doctors recommended immediate surgery to remove his failed artificial hip,(ii) Dr.Hosseini knew that Plaintiff was suffering from a severeinfection and abscess because ofhis failed hip jointand these conditionsw ere likely to worsen ifthe artificialhip was notrem oved or itsrem ovalw as delayed,(iii)the nineteen month delay before Plaintiffreceived thatsurgery exacerbated his condition because his infection w orsened and he suffered extrem e pain and m uscle Case 1:14-cv-20341-DPG Document 118 Entered on FLSD Docket 05/08/2015 Page 11 of 25 andnervetissuedamage,and (iv)thedelaywasmedicallyunjustisedbecauseitresulted from disagreement over payment. EDE 77,!! 11, 15-16, 18,421. These allegations, when construed in a lightm ostfavorable to Plaintiff,supporteach ofthe elem entssetout above and state a plausible claim ofdeliberate indifference by Dr.H osseinito Plaintiffs seriousm edicalneed.4 Dr.Hosseinialso argues thathis actions in sending Plaintiff for a second opinion do not state a claim for deliberate indifference because second opinions tsare routine issuesofmedicaljudgment.'' (DE 87,p.7). Plaintiff,however,allegesthatthe only reasonDr.HosseinisentPlaintiffforasecondopinion wasto contain costs. gDE 77,! 341. Saving money isnotamedicaljustification to delay treatment. Fields,490 Fed. Appx. at 184-85. Plaintiffs allegations that necessary m edical care was delayed or denied because ofnon-m edicalreasons such as costcontainm entare suficientto survive a motion to dismiss. Kruger v.Jenne,164 F.supp.zd 1330,1336 (S.D.Fla.2000) (inmate stated j 1983 claim when she alleged medicalprovider denied recommended treatmentbased on costcuttingpolicy). Lastly,Dr.Hosseini argues that Plaintiff has not sufficiently alleged causation because the ninetecn m onth delay in Plaintiff s hip rem oval surgery w as the result of 4As noted,Plaintiffmustestablish thatthe Defendants'conductrose to a levelgreater than grossnegligence. Fora delay ofmedicalcare,thatisestablished where çéitisapparentthat delay would detrimentally exacerbate the medicalproblem ,the delay doesseriously exacerbate themedicalproblem and thedelay ismedicallyunjustified.'' Taylorv.Adams,221F.3d 1254, 1259-60 (11th Cir.2000)(quotation marksand citation omitted). Plaintiffsallegationsagainst Dr. H osseini, if proven true, plausibly support a finding that D r. H osseini's conduct was som ething m ore than grossnegligence. 11 Case 1:14-cv-20341-DPG Document 118 Entered on FLSD Docket 05/08/2015 Page 12 of 25 'scontractualreasons atthe state level,''notany actions ofDr.H osseini,and D r.H osseini is not alleged to have had any controlover the doctor who issued the second opinion. (DE 87,pp.5,7). These argumentsoverlook Plaintiff'sallegation thatDr.Hosseinihad the authority to address Plaintifps serious m edical needs but failed to do so and understood the need for the delayed and denied m edical care, and that this led to Plaintiffsinjury and suffering. (DE 77,! 461. Similarallegationshave satisfied the causation elem entforpurposes ofa m otion to dism iss. See e.g.,Brown v.M cGowan,N o. 3:13cv545/RV/EMT,2014 W' L 4538056,at*5 (N.D.Fla.Sept.11,2014)(allegations thatDefendants knew ofPlaintiff s diagnosis and treatm ent,and knew ofhis w orsening condition yetfailed to evaluate ortreathim despite their authority to do so,are sufscient to state an Eighth Amendment claim). Discovery willlikely revealthe extent ofDr. Hosseini's authority and whetherhe wasresponsible forany delay ordenialofPlaintiffs necessary m edicalcare. A tthis stage the Courtm usttake Plaintiffs allegations as true, and Iconclude thatthose allegationsstatea plausible claim under j 1983 foraviolation ofPlaintiffsEighth Am endm entrights. 2. Oualified lm m unity Dr. Hosseini argues that dism issal is proper because he is entitled to qualified immunity. (DE 87,pp.8-101. The doctrine ofqualified immunity providesficomplete protection for govem m ent officials sued in their individual capacities as long as their conduct violates no clearly established statutory or constitutional rights of which a reasonable person would have known.'' Lee v.Ferraro,284 F.3d 1188,1193-94 (11th Cir.2002)(quotation marksand citation omitted). il-f'he purpose ofthis im m unity is to 12 Case 1:14-cv-20341-DPG Document 118 Entered on FLSD Docket 05/08/2015 Page 13 of 25 allow governm ent ofscials to carry out their discretionary duties w ithout the fear of personalliability orharassing litigation ....''1d.at1194.Qualified immunity should be applied atthe earliestpossible stage oflitigation,and itistherefore appropriate to decide its applicability on a m otion to dism iss. Often how ever,this is notpossible,and forthis reasonitismoretypicallyaddressedatsummaryjudgment.Brown,2014W L 4538056at .6 (citation omittedl.s dioualified immunity is applicable unlessthe official'sconductviolated a clearly established constitutionalright.'' Pearson v.Callahan,555 U.S.223,232 (2009). To receive qualified im m unity,D r.Hosseinim ustfirstestablish thathe w asacting w ithin his discretionary authority during the events in question. Cottone v.Jenne,326 F.3d 1352, 1357(11th Cir.2003).PlaintiffdoesnotdisputethatDr.Hosseiniwasactingwithinhis discretionary authority. (DE 97,pp.151.Theburdenthen shiûsto Plaintiffto show that Dr.H osseiniis notentitled to qualified im m unity. 1d.at 1358. To do so,Plaintiffm ust satisfy thetwo-pronged qualised immunity standard: (1)thecomplaintmustallegefacts thatamountto a violation ofhis constitutionalrights,and (2)the constitutionalrights m usthave been ûûclearly established''at the tim e of the alleged m isconduct. 1d.at232. As explained in the priorsubsection,Plaintiffhasalleged conductby Dr.H osseinithat,if 5 See Jlso,M arshall v. Florida Dept. of Corrections,No. 10-20101-cv,2011 W L 1303213,at*4(S.D.Fla.M arch31,2011)(tilW qhereitisnotevidentfrom theallegationsofthe complaintalone thata defendantis entitled to qualified im munity,the case willproceed to the sllmmary judgmentstage,the mosttypicaljuncture atwhich de# ndants entitled to qualfed immunity are released #om the threat of liability and the burden of further litigation.'') (emphasisinoriginal;citationomitted). 13 Case 1:14-cv-20341-DPG Document 118 Entered on FLSD Docket 05/08/2015 Page 14 of 25 proven true,plausibly establish a violation of Plaintiffs Eighth A m endm entrights;the tirstprong istherefore satissed. As for the second prong (whether Plaintiffs constitutional rights w ere clearly established) tsthe relevant, dispositive inquiry ... is whether it would be clear to a reasonable officialthathis conductwasunlaw fulin the situation he confronted.'' Brown, 2014 WL 4538056 at*6 (quotation marksand citation omitted). W hilePlaintiffmakesa host of allegations, his central claim is that D efendants denied, or greatly delayed, providing Plaintiff surgery he needed to treathis undisputed serious m edicalneed,and thatDefendantsdid so only to save money. (DE 77,!! 13,18,23,45,46). Delaying treatmentforseriousand painfulinjurieshasbeen iiclearly recognized asrising to the levelofa constitutionalclaim.'' Harrisv.Coweta C/unfy,21F.3d 388,393 (11th Cir. 1994)(citationsomitted). Forthe law to be clearly established,though,precedentmust give fairnotice ofthe am ountoftim e thatconstitutesactionable delay. 1d.at393. tû-l'he tolerable length ofthe delay in providing m edicalattention depends on the nature ofthe m edicalneed and the reason forthe delay.''1d.at393-94. M edicalconditions necessarily vary am ong individuals,including the severity of the condition and the prescribed course oftreatm ent. N o two cases ofinm ates claim ing deliberate indifference by prison officialsto their serious m edicalneeds willpresentthe same facts. The doctrine ofqualitled immunity does notdemand this. CiA judicial precedent w ith m aterially identical facts is not essential for the law to be clearly established, but the preexisting 1aw m ust m ake it obvious that the defendant's acts 14 Case 1:14-cv-20341-DPG Document 118 Entered on FLSD Docket 05/08/2015 Page 15 of 25 violated the plaintiffs rights in the specific set of circum stances at issue.'' Youmans v. Gagnon,626 F.3d 557,563(11th Cir.2010). The Eleventh Circuit has issued a num ber of decisions before the events in question that declare that prison officials w ho substantially delay or deny inm ates necessary m edical care for nonm edical reasons such as cost savings can violate the inm ate'sEighth A m endm entrights. See Farrow v West,320 F.3d 1235,1246-47 (11th . Cir.2003)(fifteen month delay in providing prisonerneededdentures,which causedhim pain,bleeding and swollen gumsand weightloss,raisedjury question whetherdoctor wasdeliberately indifferenttowardsprisoner's seriousmedicalneed); Fields,490 Fed. Appx.at185(içcostisnotafactorwhich canjustifythelackoftimelymedicaltreatment forraseriousmedicalneedq.'')(citingAncata v.Prison Health Servs.,769F.2d 700,705 (11th Cir.1985)Ctack offundsforfacilitiescannotjustify an unconstitutionallack of competentmedicalcare ortreatmentofinmates.''l);Harris,21F.3d at394 (déunderthe clearly established legal norm s,a reasonable sheriff w ould have know n that delaying prescribed treatm ent for a serious m edical need for several w eeks for a nonm edical reason may violatean inmate'sconstitutionalrights.''). Taking Plaintiff s allegations as true,I am unable to conclude atthis m otion to dism issstage thatDr.Hosseiniis entitled to qualified im m unity. Itherefore recom m end thatthe Courtdeny Dr.Hosseini's m otion to dism iss. In sum ,I conclude thatPlaintiff allegations are sufficientto state a claim against Dr.Hosseiniunder j 1983 and the Eighth Amendment,and on this record the Second Am ended Com plaintshould notbe dism issed based on qualised im m unity. 15 Case 1:14-cv-20341-DPG Document 118 Entered on FLSD Docket 05/08/2015 Page 16 of 25 C. M otion to D ism issBy theFlorida Departm entofCorrections 1. PlaintiffH asStated A Claim PlaintiffallegesthattheFloridaDepartmentofCorrections(d$FDOC'')hasapolicy of outsourcing its healthcare responsibilities to private contractors to save m oney on inmate healthcare costs. (DE 77,! 83). Pursuantto thispolicy,FDOC entered into a contract w ith W exford know ing that W exford had a policy or custom of directing or incentivizing its healthcare em ployees to deny non-em ergency surgicalcare in order to contain costs and m axim ize itsprofitability,which caused an unacceptable decline in the qualityofmedicalcareprovided toprisoners.L1d.,!!76,77,841.Plaintiffalso alleges that the Secretary of FD OC çiknow s of and condones or encourages the custom of the Florida Departm ent of Corrections healthcare em ployees and the em ployees of its contractorsto deny necessary m edicalcare forinm ates'seriousm edicalneedsin orderto reduce costsand/orincrease protks in deliberate indifference to the seriousm edicalneeds ofinmates-'' Lld,T 851.Plaintiffassertsthatthesepoliciesand customsofFDOC were the driving force behind the deliberate indifference of the physicians who delayed or denied providing Plaintiff w ith necessary m edical treatm ent, which caused Plaintiff severe pain,nerve and m uscle dam age,long term inability to w alk and other physical injury.Lld,!!86,874. To holdtheSecretary liableunderj 1983,Plaintiffmustshow thattheFDOC had a custom orpolicy which was isthe moving force (behindlthe constitutionalviolation.'' Young v.CityofAugusta,Ga.,59F.3d 1160,1171(11th Cir.1995).iiAnactiondoesnot need to be officialin nature in orderto constitute a ...policy orcustom .'' Vasquez v.City 16 Case 1:14-cv-20341-DPG Document 118 Entered on FLSD Docket 05/08/2015 Page 17 of 25 ofM iamiBeach,895 F.supp.zd 1275,1277 (S.D.Fla.2012)(citation omitted). Sd-f' he Eleventh Circuit recognizes that a longstanding and w idespread practice is deem ed authorized by the policym aking officials because they m ust have know n about it but failedto stop it.'' 1d.at1278(citingBrown v.City ofFortLauderdale,923 F.2d 1474, 1481(11th Cir.1991))(quotation marksomitted). Plaintiffallegessuch alongstanding and w idespread practice ofFDO C. In particular, Plaintiff alleges that the Florida Legislature's Office of Program Policy Analysisand G ovem m entA ccountability issued a reportin 2004 aboutW exford's performance during a previous contractwith FDOC. (DE 77,! 751. The reportfound thatçsla)primary way W exford contains costs is through tightutilization management'' and found thatdçthe quality ofW exford'shealth care hasbeen problematic.'' (J#.). The report further states that several correctional facilities W exford serviced,including the South Florida Reception Centerwhere Plaintiffhasbeen incarcerated,çsoften have shown repeated deficiencies and a deteriorated level of service to the extent that the clinical quality ofcarerequired immediate corrediveaction by thecontractor.'' lf#.q. Thereport identifed f%postponementofspecialty clinicalvisits''asan issueofconcern.@f#.1. The Secretary arguesthatPlaintiffm akes only conclusory allegations ofan FDO C custom orpolicy thatcaused the deprivation ofhis constitutionalrights,and thatPlaintiff hasnotalleged similar incidents otherthan his own. (DE 86,pp.4-6,8). l disagree. PlaintiffallegesthatFD O C know s oforencouragesthe custom ofits own em ployeesand its contractor's em ployeesto deny m edicalcare to inm ates in order to reduce costs,and supportstheseassertionswith detailed allegationsofthe2004 legislativereport. (DE 77, 17 Case 1:14-cv-20341-DPG Document 118 Entered on FLSD Docket 05/08/2015 Page 18 of 25 !! 75,84-86j. Itistrue thatida pattern ofsimilar constitutionalviolations is ordinarily necessary''to impose liability on FDOC and that ççlpqroof of a single incident of unconstitutional activity'' is insufficient. Craig v.Floyd fbun/y Ga., 643 F.3d 1306, 1310 (11th Cir.2011). However,the2004 legislativereportdoesnotreferto an isolated incident' ,itrefersto dlrepeated deficiencies''which required iiimm ediate correctiveaction'' for issues such as (spostponem ent of specialty clinicalvisits''- the type of insufficient medicalcarethatPlaintiffallegeshereceived. (DE 77,!751. The Secretary also assertsthatthisreportistoo rem ote in tim e to retlectan FD OC policy in effectwhen Plaintiffwasinjured. (DE 102,p.4). Although thereportwas issued seven yearsbefore the events in question,itrefers to sim ilarconductatissue here. The gap in time may be importantatsummary judgmentdepending upon the other evidence thatPlaintiffoffers,butthe reportis sufficientatthis stagetoplausibly establish apattern ofviolations. The Secretary also argues thatPlaintiff has not alleged that an FDO C policy or custom actually caused hisinjury. (DE 86,p.4-61.Again ldisagree. Plaintiffalleges thatFD OC'Scustom sand policies tsw ere the driving force''behind the deprivationsofhis constitutionalrights,which caused Plaintiffto sufferseverepain and physicalinjuries. (DE 77,!! 86-871. Itisplausiblethatthedelaysand denialofcare alleged in the Second Am ended Com plaintresulted from FDO C'S know ing failure to insure thatinm atesw ere provided needed m edicaltreatm ent,and did so to reduce costs. Othercourtshave found sim ilarallegations sufficientto state a claim ,and Ireach the sam e conclusion here. Elliottex rel.Listau v,M adison Cbz/n/y,A1a.,N o.5:14-cv18 Case 1:14-cv-20341-DPG Document 118 Entered on FLSD Docket 05/08/2015 Page 19 of 25 1309-CLS,2015 W L 1013202,at #17 (N.D.Ala.M arch 9,2015) (allegations that plaintiffsdeath resulted,in part,from county's retention ofcontractordespite knowledge of contractor's unconstitutionalpractices,and county's know ledge that contractor w as incentivized to deny inmatesoutsidemedicalcareto increaseproits,suffkientto state j 1983claim);Samsv.PrisonHealthServices,Inc.,No.8:06-cv-862-7--24M AP,2007W L 788365,at*4(M .D.Fla.M arch 14,2007)(plaintiffstatedj1983claim whereiditcanbe inferred from the second am ended com plaintthatthe County had notice ofthe problem s w ith delivery of m edical care to pretrial detainees ... and that these problem s contributed to (plaintifps)death.'');Kruger,164 F.Supp.2d at1340 (denying motion to dism iss j 1983 claim where plaintiff alleged defendant's cost savings policy caused plaintiffto sufferprolongedpain andworsened hisconditions). Finally,the Secretary asserts thatdism issalis w arranted because Plaintiffhas not shown that the Secretary had authority or responsibility for inm ate healthcare once W exfordtook overcorrectionalhealthcareservices. (DE 86,pp.6-71. Thisargumentis unpersuasive. The obligation of state and localgovernm entsto provide m edicalcare to prisoners is a non-delegable duty thatcannotbe absolved by contracting w ith a private entity.Ancata,769 F.2d at705. Forthese reasons,Irecom m end thatthe Secretary'sM otion to Dism isspursuantto Rule 12(b)(6)bedenied. 19 Case 1:14-cv-20341-DPG Document 118 Entered on FLSD Docket 05/08/2015 Page 20 of 25 PlaintiffsClaimsAreNotBarredBv TheEleventh Am endm ent Citing one case that does notstand forthe proposition for w hich it is cited,6 the Secretary contends that the Com plaint should be dism issed because the requested injunctive relief, if panted, would violate the Eleventh Amendment to the U.S. Constitution. TheThirdAmended ComplaintaskstheCourtto enterthefollowing injunctions againstthe Secretary: a. An injunction directing the Secretary of the Florida Department of Corrections to take all necessary action to ensure that the Plaintiff receives allsurgery recom m ended forthe Plaintifps righthip revision, identified as a serious m edical need by Dr. A rturo Corces, and all recom m ended necessary m edical care to com plete hip revision and recoverfrom thatsurgery; b, An injunction directing the Secretary ofthe Florida Departmentof Corrections to take all necessary action to ensure that the Plaintiff receives a1l necessary pain m anagem ent services for pain associated withhishiprevisionandinfectionsandotherassociatedinjuries; c. An injunction directing the Secretary oftheFlorida Departmentof Corrections to reassum e direct supervision and control of healthcare operationsatits facilities from W exford Health Sources,lnc. (DE 77,p.151. AlthoughtheSecretarycontendsthateach oftheseinjunctionswouldbeimproper Rce, DE 86,p. 8j it appears thatthe Secretary's Eleventh Amendment argument is confined to the finalrequestforrelief- thatthe Secretary be ordered to cease delegating 6 GreatNorthern L(Je ' Ins.Co.v.Read,322 U.S.47,50-51 (1946). The Secretary incorrectly citesthatcase,atpages50 and 51,forthe proposition thatçsliability resulting in the expenditureofpublicfundsfrom theStatetreasuryisbarredbytheEleventhAmendment.'' (DE 86,p.9). 20 Case 1:14-cv-20341-DPG Document 118 Entered on FLSD Docket 05/08/2015 Page 21 of 25 to W exford the provision ofhealth care servicesto Florida inm ates,and to assum e direct control of inm ate m edical care. The Secretary argues that if entered, this injunction w ould require the FDO C to expend m ore m oney on health care servicesforinm ates than itis spending now ,and thatsuch an orderw ould violate the Eleventh Am endm ent. (See id.at9-10j. The Secretary's argum ent is undeveloped and appears at odds with binding precedent. The Eleventh Am endm ent7 im m unizes state officials sued in their official capacity form oney dam ages. Zatlerv.Wainwright,802 F.2d 397,400 (11th Cir.1986). It does not,how ever,protect state officials from claim s for prospective declaratory or injundivereliefto end continuing violationsoffederallaw. Florida Ass'n of Rehab. Facilities,Inc.v.Fla.Dep'tofHealth andRehabilitativeServ.,225F.3d 1208,1219-20 (11th Cir.2000). Itis clearthatPlaintiffdoesnotseek m oney dam ages from the Secretary,and his requested injunction isprospective in nature,as itwould require the Secretary,going forward,to reassum e direct controlofinm ate healthcare. lt is also clear thatstates are obligated ésto provide adequate m edicalcare to those whom ithas incarcerated,'' Adams v.Poags61F.3d 1537.1543 (11th Cir.1995),andthatcourtscanorderstatest()meetthat Constitutionalobligationseven ifthis would require state expenditure offunds. Papasan v.Allain,478 U.S.265,278 (1986). The Secretary hasnotprovided Iegalanalysis or ?TheEleventh Am endmentstates: çt-l-he JudicialPowerofthe United Statesshallnotbe construed to extend to any suitin law orequity,comm enced orprosecuted againstone ofthe UnitedStatesbyCitizensofanotherState,orbyCitizensorSubjectsofany ForeignState.''U.S. Const.am end.X I. 21 Case 1:14-cv-20341-DPG Document 118 Entered on FLSD Docket 05/08/2015 Page 22 of 25 authority to demonstrate how entry ofthe tsnalrequested injunction would violate the Eleventh Am endm entand herm otion to dism issthe Second Am ended Com plainton this ground should be denied. 3. The Doctrine ofSeparation ofPow ersD oesN otRequirethe Courtto D ism issthe Com plaintorStrikethe Prayersfor Iniunctive Relief The Secretary also argues that,although itis notexpressly stated,the finalprayer forinjunctivereliefwouldrequiretheFDOC toterminateitscontractwith W exford,and thatsuch an orderwouldconstituteimpermissiblejudicialinterferencein theday-to-day operations of the executive branch in violation ofthe principle of separation ofpow ers. (DE 86,p.8-91. The Secretary asksthatthe Complaintbe dismissed forthisreason,or altemativelymovesunderRule12(9 fortheCourttostrikethisclaim forrelief.LId.,pp. 10-11). Plaintiff responds to the Secretary's separation of powers argum ent w ith the dubiouscontentionthattheSecretarycouldcomplywiththerequestedinjunctionwithout term inating the FD oc-W exford contractbecause flW exford provides num erous services for the D epartm ent of Corrections under its contract other than healthcare management. (DE 97,p.8). Notably,Plaintiffs Complaintsays nothing ofW exford providing non-healthcare related services.8 From whatispled in the Com plaintitw ould 8 A ccording to the Com plaint, W exford çstook over healthcare m anagem ent and utilization m anagem ent duties for healthcare services in numerous prisons in South Florida, including South Florida Reception Center''and isa ç%for-profitcorporation engaged in providing healthcare persolm eland m anagem entservicesforFlorida Departm entofCorrectionsfacilities.'' (DE 77,!!27,681. 22 Case 1:14-cv-20341-DPG Document 118 Entered on FLSD Docket 05/08/2015 Page 23 of 25 appearthattherequested injunctionwouldrequiretheFDOC toterminate,ormodify,its contractwith W exford. The Secretary m ay be rightthatthe requested reliefwould go beyond whatm ight be needed to rem edy the FD OC'S Eighth A m endm entviolation,ifthis Courtw ere to find such violation. Federalappellate courts have warned thattrialcourts m usttread carefully when fashioning arem edy fora state'sfailure to operate itsprison system consistentwith Constitutionalm andates. The Suprem e Courthaswritten: Running a prison is an inordinately difficult undertaking that requires expertise, planning, and the com m itm ent of resources, all of w hich are peculiarly w ithin the province ofthe legislative and executive branches of governm ent. Prison adm inistration is, m oreover, a task that has been com m itted to the responsibility ofthose branches,and separation ofpow ers concernscounselapolicy ofjudicialrestraint. W hereastatepenalsystem is involved, federal courts have, as w e indicated in M artinez,9 additional reason to accord deference to the appropriateprison authorities. Turner v.Sa-fley,482 U.S.78,84-85 (1987). This has been identified as a tûpolicy of m inim um intrusion into the affairs of state prison adm inistration''by federal courts. Newm an State of Alabama,683 F.2d 1312,1320-21 (11th Cir. 1982) (citations olnitted).l0 The Secretary asks the Courtto dism iss a1lclaim s againsther sim ply because the prayer for relief m ay be excessive. Certainly, the presence in the Com plaint of this 9Procunier v. M artinez,416U.S.396(1974). 10 In N ewman, the CourtofAppealsreversed a DistrictCourt's orderthatthe Alabam a Departm ent of Corrections release from custody several hundred prisoners, selected by the Court,asa meansofreducing unconstitutionalovercrowding in theAlabama prison system . The CourtofAppealsnoted thatpermanentinjunctiverelieffrom aconstitutionalviolation lfmustbe no broaderthan necessary to rem edy theconstitutionalviolation.'' 1d.at1319. ltfound thatthe trialcourt'sorderçdinvolved thecourtintheoperation oftheState'ssystem ofcriminaljusticeto agreaterextentthan necessary to rem edy theconstitutionalviolation.''Id.at1320 23 Case 1:14-cv-20341-DPG Document 118 Entered on FLSD Docket 05/08/2015 Page 24 of 25 requested rem edy does not underm ine the finding that Plaintiff has othem ise stated a claim forrelief againstthe Secretary. The Secretary has provided no authority that the Courtshould dism issthe Complaintforthis reason,and Irecom m end thatthe m otion to dism isson thisground be denied. The Secretary has also failed to m eet her heavy burden to show thatitis proper underRule 12 (9 to strikethisproposedremedy now.A motion to strikeseeksaSldrastic rem edy ...disfavored by the courts.'' Williams v.D elray Auto M all,Inc.,289 F.R.D . 697,699 (S.D.Fla.2013)(citationsomitted). M otions to strike are ''denied unless the challenged allegations have no possible relation or logicalconnection to the subject matterofthe controversy and may cause someform ofsignificantprejudice to oneor m ore ofthe partiesto the action.'' Kenneth F.H ackett& Associates,Inc.,v.GE Capital Information Tech.,744 F.supp.zd 1305,1309(S. D .Fla.2010)(citationsomitted).Here, thedisputedprayerforinjunctivereliefhasalogicalconnectiontotheallegationsofthe Complaint. And the Secretary hasnotshown how shewillbeprejudiced to havethis dem and rem ain in the Complaint.11 ln sum ,the Courtcannot conclude w ith certainty atthis stage of the proceeding thatthis prayer for reliefwould be unavailable as a m atter oflaw . W hether itm ightbe appropriate w ill depend on the proof presented and the Court's legal conclusions, It 11Courtshave held thata prayerforrelief(often forpunitive dnmages)thatplainly is unavailableundertheapplicablelaw mayproperlybesubjecttoamotiontostrikeunderRule 12 (9.See e.g.Schmidtv.Bar4 Inc.,CaseNo.6:14-cv-62,2014 W L 5149175 *7 (S.D.Ga.Oct. 14,2014);Parsonsv.Okaloosa Cn/z.SchoolDfl/.,Case No.3:09cv254/W S/EM T,2010 W L 1753152 (N.D.Fla. M arch 30,2010);Hodgev.Orlando UtilitiesCommission,CaseNo.6:09cv-1059-Or1,2009 W L 4042930*4(M .D.Fla.Nov.23,2009).ThisCourtdoesnothavebefore itsuch aclearcutsituation. 24 Case 1:14-cv-20341-DPG Document 118 Entered on FLSD Docket 05/08/2015 Page 25 of 25 would be prem ature to conclude that itm ust be struck from the Com plaint. ltherefore recom m end thatthatthe Courtdeny the m otion to dism issor strike Plaintiffsprayers for injunctiverelief. 111. Recom m endation Based on the foregoing, I R ESPEC TFULLY R ECO M M EN D that the Secretary'sM otion to D ism iss Second A m ended Com plaintorin the A ltem ative,M otion toStrike(DE 862,beDENIED,andDr.Hosseini'sMotion toDismissSecondAmended Complaint(DE 871,beDENIED. IV. Objections Pursuantto Magistrate Rule 4(a),thepartiesmay filewritten objectionsto this Reportand Recom m endation with the H onorable Danin P.Gayles within 14 days ofthe dateofthisReportand Recommendation.Failureto timely tile objectionsshallbarthe parties from attacking on appeal any factual findings contained herein. See R TC v. Hallmark Builders,Inc.,996 F.2d 1144,1149 (11th Cir.1993)9foconte v.Dugger,847 F.2d 745,749-50(11th Cir.1988). RESPECTFU LY RECOM M END ED in cham bers atM iam i, Florida,this 8th day ofM ay,2015. 1 * CHRIS M CALILEY UNITED STA TES M A GISTM TE JU DGE cc: The H onorable D arrin P.Gayles A 1lcounselofrecord 25