                                      IN THE DISTRICT COURT OF APPEAL
                                      FIRST DISTRICT, STATE OF FLORIDA

CHARLES J. DAVIS,                     NOT FINAL UNTIL TIME EXPIRES TO
                                      FILE MOTION FOR REHEARING AND
      Appellant,                      DISPOSITION THEREOF IF FILED

v.                                    CASE NO. 1D13-2119

BAY COUNTY JAIL, SHERIFF,
FRANK MCKEITHEN, ET AL.,

      Appellees.

_____________________________/

Opinion filed October 13, 2014.

An appeal from the Circuit Court for Bay County.
Michael C. Overstreet, Judge.

Charles Davis, pro se, Appellant.

Pamela Jo Bondi, Attorney General, Tallahassee; Barbara C. Fromm of Jolly &
Peterson, P.A., Tallahassee, for Appellees Rick Anglin and Ronald Lippmann.




WOLF, J.

      In this prisoner civil litigation case, with one exception, we find no error in

the dismissal with prejudice of appellant’s four-time amended complaint. Upon

close consideration of the amended complaint, we find that appellant has

sufficiently alleged facts in support of a 42 U.S.C. § 1983 claim of inadequate
medical care to avoid a motion to dismiss. We, therefore, reverse the order of

dismissal in part and remand for further proceedings consistent with this opinion.

      In his complaint (which this court concedes is not the model of clarity),

appellant alleged that Rick Anglin, warden of the Bay County jail, and Doctor

Ronald Lippmann, the physician overseeing medical care of inmates held in the

jail, in their individual capacity, inflicted “cruel and unusual” punishment in

violation of appellant’s Eighth Amendment rights by demonstrating “deliberate

indifference” to appellant’s diagnosed medical condition and continuing severe

pain. Appellant alleges he repeatedly requested medical passes and pain

medication for a ruptured disk and pinched nerve in his lower back and that his

condition was documented in medical records held by the jail from a prior

incarceration. While Anglin and Dr. Lippmann were not personally involved in

appellant’s initial medical screening upon arrival at the jail, appellant alleges that

both were informed of his continuing pain and requests for medical assistance

through repeated grievance and medical request forms and both failed to provide

adequate care. Appellant alleges that after seventy-eight days in detention, he was

finally provided medical passes and pain medication, but only after notice of this

suit was filed.

      The trial court, after allowing multiple amendments, dismissed the complaint

with prejudice, in part for failing to state facts sufficient to rise to the level of

                                          2
constitutional violations for medical care. The court explained that the complaint

attempted to hold Anglin and Dr. Lippmann responsible for “simply knowing”

about alleged improper medical care rendered by the medical staff and failed to

allege facts to hold them personally liable for another’s negligent acts or

omissions. This was error. For a constitutional cause of action against Anglin and

Dr. Lippmann to survive a motion to dismiss, it is not necessary for appellant to

allege facts to hold them liable for another’s acts or omissions as the court asserts.

      We review an order dismissing a complaint with prejudice under the de novo

standard. See Hardwick v. Moore, 795 So. 2d 970, 972 (Fla. 1st DCA 2001).

      Inadequate medical care can be the basis of an Eighth Amendment “cruel

and unusual punishment” § 1983 claim in state courts. See Higgs v. Fla. Dep’t of

Corr., 647 So. 2d 962 (Fla. 1st DCA 1994). The United States Supreme Court has

determined that deliberate indifference to a prisoner’s serious medical condition

may violate the Eighth Amendment prohibition against “cruel and unusual

punishment.” Estelle v. Gamble, 429 U.S. 97, 104–05 (1976) (“We therefore

conclude that deliberate indifference to serious medical needs of prisoners

constitutes the ‘unnecessary and wanton infliction of pain’ proscribed by the

Eighth Amendment. This is true whether the indifference is manifested by prison

doctors in their response to the prisoner’s needs or by prison guards in intentionally

denying or delaying access to medical care or intentionally interfering with the

                                          3
treatment once prescribed.”). As the court explained, “deliberate indifference,” or

purposely ignoring the “serious medical needs” of prisoners, amounts to “cruel and

unusual punishment” forbidden by the Eighth Amendment. Id.

      The “deliberate indifference” standard involves both an objective and a

subjective component. The objective component is met by evidence of “serious

medical need” which includes, in relevant part, the existence of “chronic and

substantial pain.” Brock v. Wright, 315 F.3d 158, 162 (2d Cir. 2003). Appellant’s

allegation of continual severe pain coupled with the claim that appellant was

eventually provided the medical passes and pain medication he sought appears to

meet this objective component.

      The subjective component requires an official to know the facts that could

have shown the prisoner’s health was in danger and the official must actually

believe the prisoner’s health is in danger. Farmer v. Brennan, 511 U.S. 825, 837

(1994) (“[T]he official must both be aware of facts from which the inference could

be drawn that a substantial risk of serious harm exists, and he must also draw the

inference.”).

      Notably, a mere difference of opinion between an inmate and prison medical

staff does not give rise to an Eighth Amendment violation. See Smith v. Fisher,

965 So. 2d 205, 207 (Fla. 4th DCA 2007). However, some types of situations

where courts have found prison medical staff to be “deliberately indifferent,” and

                                        4
not just exercising differences of professional opinion, include failure to provide

treatment for diagnosed conditions and failure to investigate the medical situation

enough to make an informed judgment -- including reviewing medical records. See

Hudson v. McHugh, 148 F.3d 859, 861 (7th Cir. 1998); and McElligott v. Foley,

182 F.3d 1248, 1252, 1256–57 (11th Cir. 1999) (finding in a Florida case that

failure to inquire about and treat patient’s severe pain, and repeated delays in

doctors seeing the patient, could constitute deliberate indifference). Here, appellant

alleges both a prior diagnosis of a ruptured disk and pinched nerve and the

existence of prior medical records in the jail’s possession confirming the diagnosis

and treatment.

      Because of the knowledge requirement of the subjective component,

individual liability cannot attach through vicarious liability, such as respondeat

superior. Liability requires a showing that the supervisor themselves acted with

“deliberate indifference.” See Williams v. Smith, 781 F.2d 319, 323–24 (2d Cir.

1986) (discussing the ways in which supervisors may be found liable under §

1983); and Burton v. Lynch, 664 F. Supp. 2d 349 (S.D.N.Y. 2009) (attaching

liability to prison official who reviews prison grievance evidencing an ongoing

constitutional violation and fails to remedy the violation only when the violation is

in fact ongoing and subject to remedy by that official). Thus, the supervisor can

become personally liable under the correct facts.

                                          5
      In this case, appellant alleged that both Anglin and Dr. Lippmann were well

aware of his complaints and they themselves failed to act. This is a separate

allegation from any claim that the medical staff initially failed to provide adequate

care. In focusing on whether Anglin and Dr. Lippmann could be personally liable

for another’s acts, the court overlooked the fact that the complaint alleged that the

two men would be directly liable for their own acts or omissions. For a cause of

action against Anglin and Dr. Lippmann to survive a motion to dismiss, it is not

necessary for appellant to allege facts to hold them liable for another’s acts or

omissions as the court asserts.

      Appellant alleged that both Anglin and Dr. Lippmann were “deliberately

indifferent” to his serious medical needs, specifically chronic severe pain, and

failed to provide adequate care for seventy-eight days despite learning of the

improper medical care via repeated grievances and medical request forms. These

are all facts alleged in the complaint that would support a § 1983 claim for

improper medical care. We reverse the order of dismissal only as it pertains to

Anglin and Dr. Lippmann for appellant’s constitutional claim of inadequate

medical care. We affirm the order in all other respects.

      REVERSED in part, AFFIRMED in part, and REMANDED for further

proceedings.

LEWIS, C.J., CONCURS; MAKAR, J., CONCURRING IN PART AND
DISSENTING IN PART WITH OPINION.
                                          6
MAKAR, J., concurring in part, dissenting in part.

      Shortly after his arrest, Charles J. Davis was placed in the Bay County

detention center in Panama City, Florida on January 6, 2011. According to the

allegations in his five page, fifth amended complaint, which relates only to the time

he was a pre-trial detainee at the center, he made known to medical staff upon his

arrival that he had preexisting injuries for which pain medications and other

accommodations were necessary (such as a lower bunk, work restrictions, and

avoidance of stairs). His medical evaluation and decisions about his medical

treatment were made by a physician’s assistant, who denied his initial request for

accommodations as well as his renewed requests a few weeks later during a

physical exam.

      Although neither the warden, Rick Anglin, nor the physician overseeing the

center’s provision of medical services, Dr. R. Lippman, were involved in these

medical decisions, Davis alleges he filed grievances about the lack of proper

medical care and accommodations, which were denied by the warden, the

physician and the physician’s assistant. He alleges that shortly thereafter, on March

24, 2011, “all requested medical passes and pain meds, were finally issued” after

he notified the warden that he was going to file a lawsuit. A little over a week later,

Davis filed his initial complaint in circuit court, naming nine individuals and the

                                          7
county commission as defendants who engaged in a range of offenses against him,

which was dismissed due to its “vague, incomplete or incomprehensible”

allegations. Over the course of almost the next two years, the same trial judge

allowed Davis to amend his complaint multiple times to overcome various

deficiencies. The fifth iteration of his complaint—which consisted of state and

federal claims—was ultimately dismissed with prejudice by the trial judge, who

concluded that Davis had failed “to allege facts sufficient to rise to the level of a

constitutional violation.” He also ruled that insufficient facts were alleged to hold

Warden Anglin and Dr. Lippman “personally liable for another’s negligent acts or

omissions.” This appeal ensued.

      Because dismissal of all of the state and federal claims was appropriate,

allowing Davis’s federal constitutional claim to proceed against the warden and the

supervisory physician is error. The theory of Davis’s federal constitutional claim is

that both of these individuals were on notice that his serious medical needs were

not being met (because of his grievances) and that they acquiesced in these

deprivations (by denying the grievances) thereby imposing individual liability on

them under section 1983. But a viable claim of individual liability under section

1983 must overcome various pleading hurdles, which Davis has failed to do, even

in light of the leniency given to pro se litigants.




                                            8
      Under Florida procedural law, a complaint that simply strings together a

series of sentences and paragraphs containing legal conclusions and theories does

not establish a claim for relief. See Rule 1.110, Fla. R. Civ. P.; see e.g., Barrett v.

City of Margate, 743 So. 2d 1160, 1162-63 (Fla. 4th DCA 1999) (“It is insufficient

to plead opinions, theories, legal conclusions or argument.”); Maiden v. Carter,

234 So. 2d 168, 170 (Fla. 1st DCA 1970) (“It is a fundamental principle of

pleading that the complaint, to be sufficient, must allege ultimate facts as

distinguished from legal conclusions which, if proved, would establish a cause of

action for which relief may be granted.”). Pro se litigants get leniency in amending

their complaints, but in the end they must meet pleading requirements to allege

ultimate facts holding the defendants liable. Barrett, 743 So. 2d at 1162-63 (“The

complaint, whether filed by an attorney or pro se litigant, must set forth factual

assertions that can be supported by evidence which gives rise to legal liability.”).

      Similar principles apply in federal courts: a complaint that patches together a

string of legal conclusions will not survive a motion to dismiss. Ashcroft v. Iqbal,

556 U.S. 662, 678 (2009) (“Threadbare recitals of the elements of a cause of

action, supported by mere conclusory statements, do not suffice.”). If legal

conclusions are alleged, they are not deemed true for purposes of a motion to

dismiss. Id. (“[T]he tenet that a court must accept as true all of the allegations

contained in a complaint is inapplicable to legal conclusions.”). As the Supreme

                                          9
Court has long held, “we are not bound to accept as true a legal conclusion

couched as a factual allegation.” Papasan v. Allain, 478 U.S. 265, 286 (1986).

Likewise, “a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to

relief’ requires more than labels and conclusions, and a formulaic recitation of the

elements of a cause of action will not do[.]” Bell Atl. Corp. v. Twombly, 550 U.S.

544, 555 (2007) (citation omitted).

      Here, Davis—despite many opportunities to allege a claim—has come up

short. The allegations applicable to Warden Anglin and Dr. Lippman amount to

legal conclusions “couched as” factual allegations. Davis claims:

         •   “[T]hat his 14th Amendment rights towards a pretrial detainee, was

             [sic] violated by warden, Rick Anglin, and medical staff, physician R.

             Lippman, each, in their individual capacity, due process clause.”

         •   “Cruel and unusual punishments - denial of medical passes, placed

             into confinement twice by not having required medical passes.

             Warden, Rick Anglin, medical staff, physician, R. Lippman, each, in

             their individual capacity. Petitioner had to suffer with severe pains in

             his head, neck, lower back, because of his improper care, and no

             meds.”

         • “[T]hat warden, Rick Anglin, oversees the Bay County Jail, and he

             has a duty to assure that all pretrial detainees are provided with proper

                                         10
               medical care. He further states that physician, R. Lippman, oversees

               his asst., Kathi Norman, knowingly and willingly allowed his asst., to

               continue to give a pretrial detainee improper medical care. Prior

               notice was given to warden, and medical staff, that a law suit was in

               process of being filed, on or about March 2011.”

These amount to legal conclusions that the two defendants violated his rights,

which need not be accepted as true. Iqbal, 556 U.S. at 678-79 (legal conclusions

“are not entitled to the assumption of truth.”). They are classic examples of

formulaic labels that fall short under applicable pleading standards. Twombly, 550

U.S. at 555.

      Similarly, because Davis is asserting a deliberate indifference claim under

the Eighth Amendment, he must plead facts showing that actions taken by prison

officials were done with the intent or purpose of causing harm; it is not enough to

allege a prison official had knowledge of the harm. Iqbal, 556 U.S. at 676-77

(“Under extant precedent purposeful discrimination requires more than ‘intent as

violation or intent awareness of consequences[.]’ It instead involves a

decisionmaker’s undertaking a course of action ‘because of,’ not merely ‘in spite

of’ [the action’s] adverse effects upon an identifiable group.”) (internal citations

omitted). But that is all Davis has done.




                                            11
          • Davis “states that medical staff, warden, Rick Anglin, knowingly and

             willingly made him suffer with severe pains, even though he had prior

             medical files to verify his complaints.” (emphasis added).

          • Davis “states that warden Rick Anglin, and physician, R. Lippman,

             both knew of his improper medical treatments by the facility asst.,

             physician, Kathi Norman.” (emphasis added).

          • Davis pleads: “Delibert [sic] Indifference - Physician, R. Lippman,

             warden, Rick Anglin, each, in their individual capacity, both R.

             Lippman and warden knew of petitioner’s serious medical needs and

             failed to provide him with adequate care.” (emphasis added).

      Nowhere does Davis allege specific facts of the type that would support a

“deliberate indifference” claim; instead, he alleges that the defendants merely

“knew” of allegedly improper care and failed to take remedial steps within their

authority, which falls short of the requisite standard for this type of constitutional

violation. Iqbal, 566 U.S. at 676-77; see also Pers. Adm’r of Mass. v. Feeny, 442

U.S. 256, 279 (1979). His allegation that the actions were “willingly” done is a

legal conclusion that fails to advance a viable claim; at most it is a legal conclusion

that serves only to frame the structure of a claim. Iqbal, 556 U.S. at 678-79

(“While legal conclusions can provide the framework of a complaint, they must be



                                          12
supported by factual allegations.”); see also Barrett, 743 So. 2d at 1162-63;

Maiden, 234 So. 2d at 170.

      Prison officials exercise their judgment (and sometimes negligent judgment)

daily in denying medical requests and grievances with knowledge that the grievant-

prisoners have made claims for specific medical care or treatment. Liability does

not exist in these situations absent facts showing that prison officials acted with the

requisite subjective intent to harm and engaged in conduct more culpable than

negligence, i.e., deliberate indifference. Differences of opinion and negligence do

not meet the constitutional standard. See, e.g., Farmer v. Brennan, 511 U.S. 825,

835 (1994).

      This analysis is based on principles of Florida procedural law (and federal

principles consistent with Florida principles); it is not based on the even more

demanding “plausibility” standard in federal law. Iqbal, 556 U.S. at 678.

Nonetheless, it is noteworthy that had Davis’s case been removed to federal court

(as almost always happens in state section 1983 actions), it would likely have been

dismissed without as many opportunities for amendment and likely summarily

affirmed on appeal. See Rosa v. Fla. Dep’t of Corr., 522 Fed. Appx. 710, 715-16

(11th Cir. 2013) (inmate provided an opportunity to amend, but made only

“threadbare assertions of alleged constitutional violations, without further factual

support” which are insufficient under Iqbal). Notably, the claims in Rosa included

                                          13
claims that the warden and others “were deliberately indifferent either to his

grievances or to the retaliatory actions of their subordinates.” Id. The inmate also

alleged that one defendant “was deliberately indifferent to his care and safety, and

that [another defendant] was liable for her ‘no care policy,’ which led to the filing

of false reports.” Id. Much like Davis’s claims, the inmate’s claims were dismissed

and then affirmed on appeal because they “were too conclusory and vague to

satisfy the pleading standards set forth in Twombly and Iqbal.” Id.

      In addition, the alleged actions of Warden Anglin and Dr. Lippman in

denying Davis’s grievances are just as consistent with lawful conduct as Davis’s

constitutional claims; absent some statement of ultimate facts showing that these

officials acted in an unconstitutional manner, dismissal was proper. Iqbal, 556 U.S.

at 678 (“Where a complaint pleads facts that are ‘merely consistent with’ a

defendant’s liability, it ‘stops short of the line between possibility and plausibility

of ‘entitlement to relief.’”) (quoting Twombly, 550 U.S. at 557). The fact pattern

that Davis alleges is consistent with lawful conduct for which the defendants have

no legal liability; applying a “deliberate indifference” label to this conduct does not

add any ultimate fact distinguishing lawful from unlawful conduct.

      Florida’s judicial system is open to litigants asserting federal claims that

meet pleading standards. Davis—a prolific prisoner-litigant with four cases

currently lodged in this court—was given exceptional leniency in his attempt to

                                          14
assert federal and state claims; none satisfy the basic pleading requirements of

Florida law, including his federal claim, whose dismissal should also be affirmed.




                                        15
