GAFFNEY

v.

SCIBELLI

I. Status & Background

Plaintiff Johnny Gaffney, a sixty-three-year-old inmate of the Florida penal system, is proceeding on a complaint for the violation of civil rights against Centurion of Florida, LLC, and Dr. Stephen Scibelli, a neurosurgeon (Doc. 1; Compl.). He alleges Defendants “are providing inadequate medical treatment for [his] serious medical condition [a lower back injury].” See Compl. at 5. Plaintiff does not allege an outright denial of medical care. In fact, he acknowledges he was diagnosed with sciatica in about 2011; Dr. Scibelli performed surgery in April 2018; and he has had some follow-up appointments since then. Id. at 4-5, 8-9. However, Plaintiff alleges Dr. Scibelli routinely intentionally refused to show up for his appointments at Jacksonville Memorial Hospital (JMH) because he (the doctor) did not like having to deal with the Florida Department of Corrections’ (FDC’s) security protocols, which requires that he “surrender his cell phone while on the FDC wing of the hospital.” Id. at 8-9. Plaintiff alleges Dr. Scibelli informed him in 2019 that he had to have a second surgery on his back, which was approved, but Centurion did not schedule the appointment. Id. at 5-6. When Plaintiff inquired or complained about the failure to schedule the recommended and approved surgery, Centurion scheduled a follow-up appointment with Dr. Scibelli for September 29, 2021. Id. at 6. For that appointment, Plaintiff was transported from Desoto

Correctional Institution (DCI), in Arcadia, Florida, to the Reception and Medical Center (RMC), which is closer to JMH. Dr. Scibelli failed to show for Plaintiff’s next scheduled appointment on October 7, 2021. Id. The appointment was rescheduled, but Dr. Scibelli failed to show on the following additional dates: December², 2021; January 13, 2022; February 10, 2022; and February 24, 2022. Id. at 6-8. All the while, Plaintiff remained at RMC. Plaintiff assert that, because it took so long for him to see Dr. Scibelli after the September 2021 appointment, the FDC transported him back to DCI,

which is his assigned prison, so he would not have to be “reclassif[ied] . . . for another institution.” Id. at 8. Each transfer requires that he carry all his personal property on his shoulders, which aggravates his sciatica. Id. at 8, 10. Plaintiff alleges Centurion knows of Dr. Scibelli’s penchant for not showing up for scheduled appointments but refuses to change doctors “to save costs.” Id. at 9, 12. Plaintiff seeks declaratory relief, injunctive relief, and compensatory and punitive damages. Id. at 15-16. Defendants separately move to dismiss the claims against them (Docs.

8, 9), arguing Plaintiff fails to state a plausible deliberate indifference claim because his allegations demonstrate he has received medical care and he merely objects to how that care is delivered, and his allegations are conclusory. See Doc. 8 at 8-9; Doc. 9 at 4-6. Additionally, Dr. Scibelli argues he is not a

“state actor,” and Centurion moves to strike Plaintiff’s request for punitive damages. See Doc. 8 at 5-6; Doc. 9 at 5. 1 Plaintiff opposes the motions to

Resp.).²

II. Motions to Dismiss

Liberally construing Plaintiff’s pro se allegations and accepting them as true, which the Court must do on a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure, the Court concludes Plaintiff alleges enough facts “to raise a reasonable expectation that discovery will reveal evidence” supporting his claims. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007). That Plaintiff received some medical treatment for his back injury does not mean he fails to state a claim for deliberate indifference. If true that Dr. Scibelli intentionally failed to show for multiple appointments with a patient he knew needed surgery simply because he did not want to be inconvenienced by the FDC’s security protocols, and further accepting the delay caused Plaintiff to suffer unnecessarily, Plaintiff states a plausible deliberate indifference claim against Dr. Scibelli. A delay in providing necessary medical treatment for non-medical reasons can constitute deliberate indifference. Ancata v. Prison Health Servs., Inc., 769 F. 2d 700, 704

“systemic deficiencies [in a prison’s health system] can provide the basis for a finding of deliberate indifference.” Rogers v. Evans, 792 F. 2d 1052, 1058-59 (11th Cir. 1986). A series of incidents closely related in time may disclose a pattern of conduct amounting to deliberate indifference. Repeated examples of delayed or denied medical care may indicate a deliberate indifference by prison authorities to the suffering that results.

Id. (internal citations omitted). Liberally construed, Plaintiff’s allegations permit the reasonable inference that Centurion knew of a systemic or gross deficiency as it related to Dr. Scibelli’s care of inmates, such that inmates requiring treatment with Dr. Scibelli “effectively [were] denied access to adequate medical care.” See Harris v. Thigpen, 941 F. 2d 1495, 1505 (11th Cir. 1991). Defendants’ arguments that Plaintiff does not “support” his allegations with “evidence or documentation” are misplaced in a motion to dismiss under Rule 12(b)(6). See Doc. 8 at 8; Doc. 9 at 4. Whether Plaintiff can prove a claim for deliberate indifference is more properly raised in a Rule 56 motion with supporting records, affidavits, and other relevant evidence. Plaintiff alleges enough to nudge the claims “across the line from conceivable to plausible.” See

Twombly, 550 U.S. at 570. Moreover, given Plaintiff alleges Defendants were deliberately indifferent to his serious medical needs, a standard that is equated with “reckless disregard,” Wade v. McDade, 67 F. 4th 1363, 1374 (11th Cir. 2023), his request for punitive damages is not due to be stricken, see Barnett v. MacArthur, 715 F. App’x 894, 905 (11th Cir. 2017) (“Punitive damages are appropriate in § 1983 cases ‘where a defendant’s conduct is motivated by evil intent or involves callous or reckless indifference to federally protected rights.’”).

III. Plaintiff’s Motion for Injunctive Relief Plaintiff’s motion concerns his transfers between DCI and RMC for his medical treatment. He seeks relief solely from Defendant Centurion, not Dr. Scibelli. Plaintiff asserts the “continual[] transfer[s]” from DCI to RMC have caused a new injury (damage to his left shoulder) and worsening of his back injury because of the amount of property he must carry during each transfer. See Pl. Mot. at 2-3, 5. He explains that he uses a cane (in his right hand) because of his back injury, which forces him to carry his belongings over his left shoulder. Id. at 3. When he filed the motion, Plaintiff was scheduled to be seen in the cardiac and respiratory clinic for renewal of the following medical passes: lower bunk; cane; no pushing or lifting more than ten pounds; and no prolonged standing. Id. at 4. Plaintiff seeks an order prohibiting Centurion from transferring him to RMC for further treatment; he says he would rather “live with [the] conditions” than receive treatment if he cannot get that treatment closer to where he is housed (at DCI). Id. at 5, 10. However, he clarifies that he is “not refusing medical treatment.” Id. at 8.

In its response, Centurion argues Plaintiff’s “allegations in his [motion] have only a tenuous connection to the allegations in his [c]omplaint,” and he does not otherwise demonstrate a likelihood of success on the merits of his claim. See Resp. at 3. Additionally, Centurion contends Plaintiff offers no evidence demonstrating that the transfers have caused a new injury or worsened his back injury. Id. at 4. Centurion provides a copy of an April 18, 2023 x-ray report, which shows Plaintiff’s left shoulder has no fracture or dislocation but he has “[d]egenerative joint disease.” See Doc. 27-1. Centurion also maintains it has no control over inmate transfers, and it does not appear Plaintiff attempted to first seek relief through the prison grievance process. Id. at 7-8. See also Doc. 27-2. Finally, Centurion observes that the relief Plaintiff seeks from the Court—to prevent further transports for medical treatment at

RMC or JMH—he can obtain himself “by simply refusing the medical care that he has sought.” Id. at 8. Injunctive relief, whether in the form of a temporary restraining order or a preliminary injunction,³ “is an ‘extraordinary and drastic remedy,’ and

1163, 1176 (11th Cir. 2000)). To demonstrate entitlement to injunctive relief, a movant must show the following four prerequisites: (1) a substantial likelihood of success on the merits; (2) that irreparable injury will be suffered if the relief is not granted; (3) that the threatened injury outweighs the harm the relief would inflict on the non-movant; and (4) that entry of the relief would serve the public interest.

Schiavo ex rel. Schindler v. Schiavo, 403 F. 3d 1223, 1225-26 (11th Cir. 2005). With respect to the second prerequisite, “the asserted irreparable injury ‘must be neither remote nor speculative, but actual and imminent.’” Siegel, 234 F. 3d at 1176. Moreover, the request for injunctive relief must be related to the claims raised in the operative complaint. See Kaimowitz v. Orlando, Fla., 122 F. 3d 41, 43 (11th Cir. 1997), opinion amended on reh’g, 131 F. 3d 950 (11th Cir. 1997) (“A district court should not issue an injunction when the injunction in question is not of the same character, and deals with a matter lying wholly outside the issues in the suit.”). Plaintiff fails to carry his burden to demonstrate injunctive relief is warranted. Even though he states a plausible claim for deliberate indifference

Fla. R. 6.01, 6.02 (describing the requirements for the issuance of temporary restraining orders and preliminary injunctions). against Centurion, his allegations alone fail to show he is likely to succeed on the merits of that claim. Alleging a plausible deliberate indifference claim against a healthcare company based on a theory of widespread abuse or systemic healthcare deficiencies is a far cry from proving (or being likely to prove) such a claim. See S. Wine & Spirits of Am., Inc. v. Simpkins, No. 10- 21136-Civ, 2011 WL 124631, at *2 (S.D. Fla. Jan. 14, 2011) (“A substantial likelihood of success on the merits is shown if good reasons for anticipating that result are demonstrated. It is not enough that a merely colorable claim is advanced.”). Moreover, to the extent Plaintiff seeks relief related to a new shoulder injury, his request for relief is unrelated “to the claims raised in the operative complaint.” See Kaimowitz, 122 F. 3d at 43. He is proceeding in this action against Centurion and Dr. Scibelli based on a delay in medical care for a back injury. He has not filed a complaint against an appropriate defendant based on an alleged shoulder injury. And, as Centurion rightly notes, the FDC controls inmate transport and housing placement. FDC is not a party to this action.⁴ The Court appreciates that Plaintiff is in a tough position—choosing

Accordingly, it is ORDERED: 1. Defendant Scibelli’s motion to dismiss (Doc. 8) is DENIED. 2. Defendant Centurion’s motion to dismiss (Doc. 9) is DENIED. 3. Defendants shall answer the complaint (Doc. 1) within twenty days of the date of this Order. 4. Plaintiffs emergency motion for preliminary injunction (Doc. 23) is DENIED. 5. This case is REFERRED to the Jacksonville Division Civil Pro Bono Appointment Program so the designated deputy clerk of the Court may seek counsel to represent Plaintiff for purposes of a settlement conference. If an attorney accepts the limited pro bono appointment, the Court will refer the case to the assigned magistrate judge for a settlement conference. However, the Court encourages the parties to attempt to settle the case privately in the meantime. DONE AND ORDERED at Jacksonville, Florida, this 4th day of August 2023.

Zh. NO - i) Aanue | CAcrnaa

United States District Judge

Jax-6 c: Johnny R. Gaffney Counsel of Record