ABBOTT

v.

CORIZON, LLC

I. Status

Plaintiff, Robert Abbott, an inmate of the Florida Department of Corrections (FDOC), is proceeding on an amended complaint for violation of civil rights (Doc. 8; Compl.) against Corizon, LLC, for the alleged deliberate indifference to his serious medical needs. Corizon seeks dismissal of the action (Doc. 22; Motion) for Plaintiff’s failure to state a claim and failure to exhaust his administrative remedies. See Motion at 1, 11. Plaintiff responded to the motion (Doc. 26; Resp.), and Corizon, with the Court’s permission, filed a reply (Doc. 29; Reply).

II. Motion to Dismiss Standard

“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.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); see also Lotierzo v. Woman’s World Med. Ctr., Inc., 278 F. 3d 1180, 1182 (11th Cir. 2002). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. A plaintiff should allege enough facts “to raise a reasonable expectation that discovery will reveal evidence” supporting the plaintiff’s claims. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007). Though detailed factual allegations are not required, Federal Rule of Civil Procedure 8(a) demands “more than an unadorned, thedefendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678. As such, a plaintiff may not rely on “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements.” Gill, 2019 WL 5304078, at *2 (quoting Iqbal, 556 U.S. at 678). Rather, the well-pled allegations must nudge the claim “across the line from conceivable to plausible.” Twombly, 550 U.S. at 570. In assessing the sufficiency of a complaint, all reasonable inferences should be drawn in favor of the plaintiff. See Iqbal, 556 U.S. at 678.

III. Complaint Allegations

Plaintiff alleges he broke his wrist when he fell on September 22, 2015, at Union Correctional Institution (UCI). See Compl. at 4-5. The UCI doctor, Perez, wanted to transport Plaintiff to the emergency room, but the Regional Medical Director of Corizon issued an “alternate treatment plan,” which consisted of “an ace bandage and sling” and referral to an orthopedic surgeon. Id. at 5. Plaintiff alleges Dr. Perez told him Corizon does not consider broken bones an emergency and will not, therefore, approve emergency transport. Id. Plaintiff alleges an orthopedic surgeon recommended surgery, which Corizon unnecessarily delayed for six months. Id. at 9, 11. Plaintiff alleges his wrist is now deformed, causing chronic aching and decreased function of his hand. Id. at 7. He says his injury was further exacerbated by his advanced age.¹ Id. at 9. Plaintiff asserts Corizon’s “state-wide cost-containment policies” caused the delay in providing the treatment he needed, and the medication he received was “inadequate” to address his pain while he awaited surgery. Id. at 6.2 Plaintiff seeks compensatory and punitive damages. Id. at 8, 11.

IV. Analysis & Conclusions

A. Exhaustion

First, Corizon asserts Plaintiff did not exhaust his administrative remedies. See Motion at 14; Reply at 1. Plaintiff contests this assertion. See Resp. at 17-18.

While “the PLRA exhaustion requirement is not jurisdictional[,]” Woodford v. Ngo, 548 U.S. 81, 101 (2006), “exhaustion is mandatory . . . and unexhausted claims cannot be brought,” Pavao v. Sims, 679 F. App’x 819, 823 (11th Cir. 2017) (per curiam) (citing Jones, 549 U.S. at 211). Nevertheless, prisoners are not required to “specially plead or demonstrate exhaustion in their complaints.” See Jones, 549 U.S. at 216. Not only is there a recognized exhaustion requirement, “the PLRA . . . requires proper exhaustion” as set forth in applicable administrative rules and policies. Woodford, 548 U.S. at 93. As such, “[p]roper exhaustion demands compliance with an agency’s deadlines and other critical procedural rules[.]” Id. Generally, to properly exhaust administrative remedies, a Florida prisoner must complete a three-step process, as fully set forth in the Florida Administrative Code (FAC), by first filing an informal grievance to the institution, then a formal grievance to the institution, and then an appeal to the Office of the Secretary of the FDOC. See Fla. Admin. Code r. 33-103.005 through 33-103.007. See also Dimanche v. Brown, 783 F. 3d 1204, 1211 (11th Cir. 2015). However, an inmate may bypass the informal-grievance-step and proceed directly to the formal-grievance-step when grieving a medical issue. See Fla. Admin. Code r. 33-103.005(1). When confronted with an exhaustion defense, courts in the Eleventh Circuit employ a two-step process: First, district courts look to the factual allegations in the motion to dismiss and those in the prisoner’s response and accept the prisoner’s view of the facts as true. The court should dismiss if the facts as stated by the prisoner show a failure to exhaust. Second, if dismissal is not warranted on the prisoner’s view of the facts, the court makes specific findings to resolve disputes of fact, and should dismiss if, based on those findings, defendants have shown a failure to exhaust.

Whatley v. Warden, Ware State Prison, 802 F. 3d 1205, 1209 (11th Cir. 2015) (internal citations omitted) (citing Turner v. Burnside, 541 F. 3d 1077, 1082-83 (11th Cir. 2008)). Because failure-to-exhaust is an affirmative defense, the defendant bears the burden. Turner, 541 F. 3d at 1082. In its motion, Corizon asserts, “According to the record, [Plaintiff] never filed a grievance regarding his care during the time Corizon could meaningfully address his complaints.” See Motion at 14. Corizon provides no records to substantiate its assertion, however. Rather, in its reply, Corizon argues the records Plaintiff provides with his response “make clear that [he] did not exhaust the grievance procedure.” See Reply at 1. Plaintiff contends in his response to Corizon’s motion that he filed three grievances—one at each step of the process: an informal grievance to Dr. Perez; a formal grievance to the Warden’s office; and an appeal to the Secretary’s office. See Resp. at 17. Under the first step of the Turner analysis, the Court must accept as true that Plaintiff filed a grievance at each step of the process, as he asserts. See Turner, 541 F. 3d at 1082-83. If Plaintiff timely and properly filed an informal grievance, a formal grievance, and an appeal to the Secretary’s office, complaining about the lack of treatment he received for injuries he sustained when he fell, then he exhausted his administrative remedies. In other words, Plaintiff’s allegations do not demonstrate his failure to exhaust. See id. Thus, Corizon is not entitled to dismissal at the first step. At the second step of the Turner analysis, the Court “make[s] factual findings on the disputed issues of fact.” Id. See also Bryant, 530 F. 3d at 1376 (holding district courts must act as factfinders when ruling on matters in abatement, such as exhaustion). Plaintiff and Corizon dispute only whether Plaintiff submitted grievances related to the September 22, 2015 incident. Corizon asserts, “[Plaintiff] filed no grievances during the time Corizon provided medical services, but only filed grievances in 2011 and 2019.” See Motion at 2. On the other hand, Plaintiff maintains he did. The Court need not make a credibility determination because Plaintiff offers copies of the grievances he submitted (Docs. 26- 1, 26-2; Pl. Ex. A, B). On September 29, 2015, Plaintiff submitted an informal grievance to the Warden’s office. See Pl. Ex. A at 2. Plaintiff complained the pain medication he received was inadequate, and he asked the Warden to direct staff to “give [him] proper treatment.”³ Id. The request was denied on October 7, 2015. Id. On October 16, 2015, Plaintiff submitted an appeal to the Office of the Secretary, asking that he be provided “proper treatment and adequate pain medication.” See Pl. Ex. B at 2. Plaintiff contends the Secretary’s office did not respond. See Resp. at 18. By submitting an informal grievance to the Warden’s office,⁴ Plaintiff properly initiated the grievance process. Plaintiff does not demonstrate he then filed a formal grievance to the Warden’s

B. Deliberate Indifference

Second, Corizon contends Plaintiff fails to state a deliberate indifference claim. See Motion at 1. Corizon does not explicitly say why Plaintiff fails to state a claim, nor does Corizon directly reference Plaintiff’s allegations. In fact, Corizon includes no analysis in support of its conclusory assertion; rather, Corizon sets forth pages of law (some of which is inapplicable here)⁵ and then implicitly suggests Plaintiff fails to meet the minimal pleading standard: [Plaintiff] has two methods to plead Corizon’s unconstitutional policy: (1) an officially promulgated unconstitutional policy, or (2) a widespread unconstitutional and unofficial custom or practice created by a policymaker for Corizon. [Plaintiff] must also allege the policy was created with knowledge that his injuries were a highly probable consequence of the policy’s creation.

Id. at 11. Plaintiff does precisely what Corizon maintains he must: he alleges Corizon’s “state-wide cost-containment policies” caused

BRIAN J. DAVIS

United States District Judge

Jax-6 Cc: Robert Abbott Counsel of Record