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UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PANAMA CITY DIVISION

BRIAN EDWARD GLICK,

Plaintiff,

v.

Case No. 5:20-cv-164-TKW-MJF

CENTURION OF FLORIDA, et al.,

Defendants.

/

REPORT AND RECOMMENDATION

Plaintiff, a prisoner proceeding pro se and in forma pauperis, has filed a fourth 

amended complaint alleging violations of the Eighth Amendment and the Americans 

with Disabilities Act (“ADA”). (Doc. 23). The undersigned recommends that

Plaintiff’s complaint be dismissed under 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 

1915A(b)(1), for failure to state a claim upon which relief can be granted.

1

I. PLAINTIFF’S FOURTH AMENDED COMPLAINT

Plaintiff Brian Edward Glick is an inmate of the Florida Department of 

Corrections (“FDC”) confined at Santa Rosa Correctional Institution Annex. (Doc. 

23 at 2). Plaintiff’s fourth amended complaint names three Defendants: P. Miller, an 

1 The District Court referred this case to the undersigned to address preliminary 

matters and to make recommendations regarding dispositive matters. See N.D. Fla. 

Loc. R. 72.2(C); see also 28 U.S.C. § 636(b)(1)(B), (C); Fed. R. Civ. P. 72(b).

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Advanced Registered Nurse Practitioner at Gulf Correctional Institution; Michelle 

Schouest, an Intensive Instructional Service Consultant at the FDC’s Central Office; 

and Centurion of Florida, a private entity that contracts with the State of Florida to 

provide medical services to inmates. (Id. at 2-3). Plaintiff claims the Defendants 

violated his Eighth-Amendment rights by “revoking” his medical passes for a 

walking cane, insoles, bottom bunk, and no prolonged standing upon his transfer 

from one FDC institution to another. (Id. at 14). Plaintiff also asserts an ADA claim 

against Centurion based upon the same facts. (Id.). In support of these claims, 

Plaintiff alleges the following.

When Plaintiff entered the FDC in March 2006, he had a bullet lodged behind 

his right ankle. (Doc. 23 at 6, ⁋ 2). Plaintiff alleges that in May 2019, while he was 

housed at Mayo C.I., he began experiencing increased pain in his right ankle and 

heel when he placed weight on it. (Id. at 7, ⁋⁋ 7-9). Plaintiff filed a sick-call request 

complaining of pain and disturbance in his gait. (Id., ⁋ 10). Plaintiff was seen by a 

nurse, who set up an appointment with a doctor. (Id.). Three days later, Plaintiff was 

seen by a doctor, who ordered x-rays of Plaintiff’s right foot. (Id. at 8, ⁋ 11). Plaintiff 

was seen again by Mayo C.I. medical staff in July 2019. (Id., ⁋ 13). Plaintiff alleges 

that medical staff advised him that the pain was probably caused by the bullet’s close 

proximity to a nerve. (Id.). Medical staff issued Plaintiff passes for a walking cane, 

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insoles, and no prolonged standing to manage his pain and improve his gait 

disturbance. (Id.).

Plaintiff was transferred from Mayo C.I. to Gulf C.I. in October 2019. (Doc. 

23 at 9-10, ⁋ 16). Within a week of transfer, Defendant Miller “revoked” Plaintiff’s 

medical passes after reviewing his medical file and determining (which she noted on 

his inmate intake form): “Passes are not medically necessary (was given based on 

subjective complaints).” (Id., ⁋⁋ 16-18). Plaintiff complains that Miller “revoked” 

the passes “without any examination or appointment.” (Id.). Plaintiff concludes that 

Miller revoked the passes pursuant to Centurion’s “longstanding policy, practice, 

and custom” of revoking all medical passes issued by medical providers at an 

inmate’s sending institution upon an inmate’s arrival at “penal camps for problem 

inmates,” such as Gulf C.I. (Id. at 10-11, ⁋⁋ 17, 19).

Plaintiff states that he later was moved to a top bunk. (Doc. 23 at 11, ⁋ 20).

He alleges that having to climb up and down from the top bunk, stand for long 

periods, and walk across the compound without a walking cane aggravated his pain

and gait disturbance. (Id.). Plaintiff filed a grievance (not a sick-call request) to the 

Gulf C.I. medical department complaining about the revocation of the medical 

passes issued at Mayo C.I. (Id. at 11-12, ⁋ 21). A nurse, who is not a named 

Defendant, responded to Plaintiff’s grievance by stating that the medical passes were 

not medically indicated because Plaintiff’s x-ray report did not indicate bone or joint 

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damage. (Id.). Plaintiff appealed the denial of his grievance to the Office of the 

Secretary, describing his medical history. (Id. at 12, ⁋ 22). Defendant Schouest 

denied Plaintiff’s grievance appeal on December 13, 2019, noting that the 

institutional response “appropriately addresses the issue.” (Id.). Plaintiff alleges that 

the pain in his right ankle increased, and that after several weeks security staff moved 

him to a bottom bunk. (Id. at 12-13, ⁋ 23).

In February 2020, Plaintiff was transferred to Santa Rosa C.I., where he 

remains confined. (Doc. 23 at 13, ⁋ 24). A clinician at Santa Rosa C.I. issued Plaintiff 

a medical pass for no prolonged standing. (Id.). Plaintiff alleges that the clinician 

informed him that, pursuant to Centurion policy, a walking cane and insoles are

issued only to treat a “physical deformity,” not nerve pain. (Id., ⁋ 25).

As previously noted, Plaintiff claims that the Defendants were deliberately

indifferent to his need for medical passes for a walking cane, insoles, bottom bunk, 

and no prolonged standing, in violation of his Eighth-Amendment rights. (Id. at 14). 

Plaintiff also asserts an ADA claim against Centurion. (Id.).

Plaintiff seeks nominal damages of $100.00 from each Defendant, 

compensatory damages of $1,000,000.00 from each Defendant, and punitive 

damages of $1,000,000.00 from each Defendant. (Doc. 23 at 15). He also requests 

an injunction requiring Centurion to “provide either surgery or treatment, and to 

acknowledge [his] disability.” (Id.). 

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II. SCREENING STANDARD UNDER 28 U.S.C. §§ 1915A AND 1915(e)(2)

Because Plaintiff is a prisoner and is proceeding in forma pauperis, the court 

is required to review his complaint, identify cognizable claims and dismiss the

complaint, or any portion thereof, if the complaint “(1) is frivolous, malicious, or 

fails to state a claim upon which relief may be granted; or (2) seeks monetary relief 

from a defendant who is immune from such relief.” 28 U.S.C. § 1915A(a)-(b); see 

also 28 U.S.C. § 1915(e)(2)(B) (applying the same standard to in forma pauperis

proceedings). Determining whether a complaint states a claim upon which relief can 

be granted is governed by the standard set forth in Rule 12(b)(6) of the Federal Rules 

of Civil Procedure. See Fed. R. Civ. P. 12(b)(6); Mitchell v. Farcass, 112 F.3d 1483, 

1485 (11th Cir. 1997). The court accepts all well-pleaded factual allegations of the 

complaint as true and evaluates all reasonable inferences derived from those facts in 

the light most favorable to the plaintiff. Hunnings v. Texaco, Inc., 29 F.3d 1480, 

1483 (11th Cir. 1994). 

There are a few exceptions to this rule, such as when the facts alleged are 

internally inconsistent or where they run counter to facts of which the court can take 

judicial notice. 5B CHARLES A. WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE 

AND PROCEDURE § 1357 (2008). Further, only well pleaded factual allegations are 

taken as true and only reasonable inferences are drawn in favor of the plaintiff. See 

Oladeinde v. City of Birmingham, 963 F.2d 1481, 1485 (11th Cir. 1992); Marrero v. 

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City of Hialeah, 625 F.2d 499, 502 (5th Cir. 1980); see also Associated Builders, 

Inc. v. Ala. Power Co., 505 F.2d 97, 100 (5th Cir. 1974) (“unwarranted deductions 

of fact are not admitted as true”). Mere “labels and conclusions” are not accepted as 

true. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citing Papasan v. Allain, 

478 U.S. 265, 286 (1986) (noting that courts “are not bound to accept as true a legal 

conclusion couched as a factual allegation”)); Ashcroft v. Iqbal, 556 U.S. 662, 681

(2009) (explaining that conclusory allegations are not entitled to a presumption of 

truth); Sinaltrainal v. Coca-Cola Co., 578 F.3d 1252, 1266 (11th Cir. 2009) (“[I]n 

testing the sufficiency of the plaintiff’s allegations, we do not credit . . . conclusory 

allegations as true.”).

To survive dismissal, “a complaint must contain sufficient factual matter, 

accepted as true, to ‘state a claim to relief that is plausible on its face.’” Iqbal, 556 

U.S. at 678 (quoting Twombly, 550 U.S. at 570). “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.” Id. at 678. The 

mere possibility that the defendant acted unlawfully is insufficient. Id. The 

complaint must include “[f]actual allegations . . . [sufficient] to raise a right to relief 

above the speculative level,” Twombly, 550 U.S. at 555, that is, “across the line from 

conceivable to plausible.” Id. at 570; see also Iqbal, 556 U.S. at 678 (reiterating that 

although Rule 8 of the Federal Rules of Civil Procedure does not require detailed 

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factual allegations, it demands “more than an unadorned, the-defendant-unlawfullyharmed-me accusation.”). A complaint also may be dismissed for failure to state a 

claim “when its allegations, on their face, show that an affirmative defense bars 

recovery on the claim.” Cottone v. Jenne, 326 F.3d 1352, 1357 (11th Cir. 2003); see 

also Marsh v. Butler Cnty., Ala., 268 F.3d 1014, 1022 (11th Cir. 2001); Jones v. 

Bock, 549 U.S. 199, 215 (2007) (reiterating that principle).

III. DISCUSSION

A. Plaintiff’s Complaint Fails to State a Plausible Eighth-Amendment Claim 

Against Defendant Schouest, Centurion, or Miller

1. Eighth-Amendment Standard

The Eighth Amendment of the United States Constitution prohibits the 

“inflict[ion]” of “cruel and unusual punishments.” U.S. Const. amend VIII. Under 

the Eighth Amendment, the “[f]ederal and state governments . . . have a 

constitutional obligation to provide minimally adequate medical care to those whom 

they are punishing by incarceration.” Harris v. Thigpen, 941 F.2d 1495, 1504 (11th 

Cir. 1991). As particularly relevant here, the Supreme Court has held that prison 

officials violate the prohibition on cruel and unusual punishments when they display 

“deliberate indifference to serious medical needs of prisoners.” Estelle v. Gamble, 

429 U.S. 97, 104 (1976).

A deliberate-indifference claim has both an objective and a subjective 

component. Brown v. Johnson, 387 F.3d 1344, 1351 (11th Cir. 2004). First, the 

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prisoner must prove that he had “an objectively serious medical need.” Id. “[A] 

‘serious’ medical need is one that has been diagnosed by a physician as mandating 

treatment or one that is so obvious that even a lay person would easily recognize the 

necessity for a doctor’s attention.” Hill v. Dekalb Reg’l Youth Det. Ctr., 40 F.3d 

1176, 1187 (11th Cir. 1994) (quotation omitted), overruled in part on other grounds 

in Hope v. Pelzer, 536 U.S. 730, 739 n.9 (2002); see also Andujar v. Rodriguez, 486 

F.3d 1199, 1203 (11th Cir. 2007) (same). “[T]he medical need must be one that, if 

left unattended, poses a substantial risk of serious harm.” Farrow v. West, 320 F.3d 

1235, 1243 (11th Cir. 2003) (quotation marks and citation omitted).

Second, the prisoner must prove that prison officials acted with “deliberate 

indifference” to that need. Brown, 387 F.3d at 1351. This requires the prisoner to 

show that the officials (1) had “subjective knowledge of a risk of serious harm” and 

(2) “disregard[ed]” that risk (3) by conduct that was “more than mere negligence.” 

Id. The defendant must be aware of facts from which the inference could be drawn 

that a substantial risk of serious harm exists, and the defendant also must draw the 

inference. Farmer v. Brennan, 511 U.S. 825, 837 (1994). The deliberate-indifference 

standard is akin to “subjective recklessness as used in the criminal law.” Farmer, 

511 U.S. at 839-40; Hoffer v. Sec’y, Fla. Dep’t of Corr., 973 F.3d 1263, 1270 n.2 

(11th Cir. 2020). A defendant’s “failure to alleviate a significant risk that he should 

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have perceived but did not, while no cause for commendation, cannot under our 

cases be condemned as the infliction of punishment.” Farmer, 511 U.S. at 838.

“A prisoner bringing a deliberate-indifference claim has a steep hill to climb.” 

Keohane v. Fla. Dep’t of Corr. Sec’y, 952 F.3d 1257, 1266 (11th Cir. 2020). The 

Eleventh Circuit has held, for instance, that the Constitution does not require that the 

medical care provided to prisoners be “perfect, the best obtainable, or even very 

good.” Harris, 941 F.2d at 1510 (quotation omitted). Rather, “[m]edical treatment 

violates the [E]ighth [A]mendment only when it is so grossly incompetent, 

inadequate, or excessive as to shock the conscience or to be intolerable to 

fundamental fairness.” Id. at 1505 (quotation omitted).

Furthermore, the Eleventh Circuit has stated that “[n]othing in our case law 

would derive a constitutional deprivation from a prison physician’s failure to 

subordinate his own professional judgment to that of another doctor; to the contrary, 

it is well established that ‘a simple difference in medical opinion’ does not constitute 

deliberate indifference.” Bismark v. Fisher, 213 F. App’x 892, 897 (11th Cir. 2007) 

(quoting Waldrop v. Evans, 871 F.2d 1030, 1033 (11th Cir. 1989)). Similarly, “the 

question of whether governmental actors should have employed additional 

diagnostic techniques or forms of treatment ‘is a classic example of a matter for 

medical judgment’ and therefore not an appropriate basis for grounding liability 

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under the Eighth Amendment.” Adams v. Poag, 61 F.3d 1537, 1545 (11th Cir. 1995) 

(citation omitted).

2. Plaintiff’s Complaint Fails To State A Plausible Eighth-Amendment 

Claim Against Defendant Schouest

Plaintiff’s Eighth-Amendment claim against Defendant Schouest is based 

solely on her denial of Plaintiff’s administrative grievance appealing the institutional 

medical staff’s denial of his request for the medical passes. 

“It is well established that § 1983 claims may not be brought against 

supervisory officials on the basis of vicarious liability or respondeat superior.” 

Keating v. City of Miami, 598 F.3d 753, 762 (11th Cir. 2010) (citation omitted). A 

supervisor may be liable under § 1983 only if she “personally participates in the 

alleged constitutional violation or when there is a causal connection between the 

actions of the supervising official and the alleged constitutional violation.” Id. (citing

Gonzalez v. Reno, 325 F.3d 1228, 1234 (11th Cir. 2003)). 

The mere fact that Defendant Schouest denied Plaintiff’s grievance appeal 

does not state a plausible basis for holding her liable for the decisions of Plaintiff’s 

medical providers at his institution. See Keating, 598 F.3d at 762; see also Gallagher 

v. Shelton, 587 F.3d 1063, 1069 (10th Cir. 2009) (“[A] denial of a grievance, by 

itself without any connection to the violation of constitutional rights alleged by 

plaintiff, does not establish personal participation under § 1983.”); Shehee v. 

Luttrell, 199 F.3d 295, 300 (6th Cir. 1999) (refusing to impose liability under § 1983 

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on supervisory official who denied administrative grievance and otherwise failed to 

act based on information contained in the grievance); see also, e.g., Coleman v. 

Bowden, 797 F. App’x 422, 427 (11th Cir. 2019) (dismissing prisoner’s claim 

against prison official whose only alleged involvement was reviewing plaintiff’s 

“emergency” grievance as the FDC Secretary’s representative, and returning the 

grievance without action) (citing Gallagher, supra); Hoever v. Belleis, 703 F. App’x 

908, 912 (11th Cir. 2017) (dismissing prisoner’s claim against supervisors of 

offending officers; prisoner’s allegation that the supervisors denied grievances 

against their subordinates “was insufficient to establish that the supervisors 

instigated or encouraged unlawful conduct.”).

Further, Defendant Schouest’s act of deferring to the opinion of Plaintiff’s 

medical providers at his current institution (then Gulf C.I.) does not plausibly 

suggest that Schouest inferred that a substantial risk of serious harm would befall 

Plaintiff if she did not approve his grievance and/or direct his medical providers to 

issue passes for a walking cane, insoles, low bunk, and no prolonged standing. See, 

e.g., Howell v. Evans, 922 F.2d 712, 723 (“We do not dispute [the] right to rely on 

medical professionals for clinical determinations.”), vacated by settlement, 931 F.2d 

711 (11th Cir. 1991), reinstated by order, 12 F.3d 190 n.* (11th Cir. 1994); see also 

Dolihite v. Maughon, 74 F.3d 1027, 1054-55 (11th Cir. 1996) (awarding director of 

adolescent center summary judgment on section 1983 due process complaint when 

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director could “reasonably rely on” judgment of medical personnel to secure suicidal 

youth’s surroundings); Acosta v. Watts, 281 F. App’x 906, 908 (11th Cir. 2008) 

(holding that administrative official who denied prisoner’s administrative appeal and 

request for surgery based on clinical determination by medical providers that surgery 

was not required “cannot be held liable for a constitutional tort when his 

administrative decision was grounded in a decision made by medical personnel.”).

This court previously notified Plaintiff of the Eighth-Amendment standard 

and that his factual allegations failed to state a plausible claim for relief against 

Defendant Schouest. (See Doc. 22). Plaintiff still has not come forward with facts 

that state a plausible claim for relief against this Defendant. For these reasons, 

Plaintiff’s Eighth-Amendment claim against Defendant Schouest should be 

dismissed under § 1915(e)(2)(B)(ii) and § 1915A(b)(1), for failure to state a claim.

See, e.g., Thompson v. Kelly, 710 F. App’x 430, 431 (11th Cir. 2018) (dismissing 

complaint where plaintiff received opportunity to amend her complaint—as well as 

instruction from the district court as to prior complaints’ legal deficiencies—yet still 

failed to plead facts plausibly elevating her claims above the speculative level (citing 

Twombly, 550 U.S. at 555-56)). 

3. Plaintiff’s Complaint Fails to State A Plausible Eighth-Amendment 

Claim Against Centurion

As the court previously advised Plaintiff (see Doc. 22), an employing entity 

like Centurion cannot be held liable under § 1983 for an employee’s actions based 

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on vicarious liability or respondeat superior. Monell v. Dep’t of Soc. Servs., 436 

U.S. 658, 694 (1978) (holding that an employing entity—there a city—“may not be 

sued under § 1983 for an injury inflicted solely by its employee or agents.”); Cottone, 

326 F.3d at 1360. Instead, to impose liability on Centurion under § 1983, Plaintiff 

must show that (1) his Eighth-Amendment right was violated; (2) Centurion had a 

custom or policy that constituted deliberate indifference to that right; and (3) the 

custom or policy caused the violation. McDowell v. Brown, 392 F.3d 1283, 1289 

(11th Cir. 2004); Monell, 436 U.S. at 694 (holding that an employing entity is liable 

under § 1983 for an employee’s constitutional violation only if the violation was 

based on the entity’s policy or custom, or if the employee was one whose edicts or 

acts fairly could be said to represent official policy); Buckner v. Toro, 116 F.3d 450, 

452-53 (11th Cir. 1997) (explaining that the Monell policy-or-custom requirement 

applies to entities performing traditional state functions); see also, e.g., Brennan v. 

Headley, 807 F. App’x 927, 937 (11th Cir. 2020) (“Corizon, as a private entity that 

contracts with the state to provide medical services to inmates, is treated as a 

municipality for purposes of § 1983 claims.”); Smith v. Salter, 794 F. App’x 817, 

821 (11th Cir. 2019) (“To prevail on a § 1983 claim against a company that has 

contracted to provide medical care to prisoners, [the prisoner/plaintiff] must 

establish that his injury was the result of a policy or custom.”).

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Plaintiff must “identify a [Centurion] policy or custom that caused his injury.” 

McDowell, 392 F.3d at 1290 (internal quotation marks and citations omitted). This 

“threshold identification of a custom or policy” ensures that Centurion is held liable 

only for those deprivations resulting from official policy, and it “prevents the 

imposition of liability based upon an isolated incident.” Id. “A policy is a decision 

that is officially adopted by [Centurion], or created by an official of such rank that 

he or she could be said to be acting on behalf of [Centurion].” Cooper v. Dillon, 403 

F.3d 1208, 1221 (11th Cir. 2005) (quotation marks and citation omitted); see also 

id. (“Only those officials who have final policymaking authority may render the 

municipality liable under § 1983.”). “A custom is a practice that is so settled and 

permanent that it takes on the force of law.” Id.

Plaintiff maintains that two policies or customs caused his injury (i.e., pain

and gait disturbance). Plaintiff alleges that Centurion has a policy of “revoking” all 

medical passes issued by medical providers at an inmate’s prior institution when the 

inmate is received at “penal camps for problem inmates.” (Doc. 23 at 10-11, ⁋⁋ 17, 

19). Plaintiff admits, however, that a medical provider at the receiving institution 

reviews the inmate’s medical file and examines—for medical necessity—the passes 

issued by medical providers at the sending institution. (Id. at 9-10, ¶ 16). Plaintiff 

also admits that medical providers at the receiving institution issue passes that they 

deem medically necessary. (Id. at 13, ¶ 24). This policy of requiring a determination

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of medical necessity by medical providers at the inmate’s new institution does not 

constitute deliberate indifference.

Plaintiff also alleges that Centurion has a policy of “not allow[ing] any passes 

for a cane, insoles, or anything else beyond a no-prolonged-standing . . . unless the 

inmate had a ‘physical deformity,’ regardless of nerve pain.” (Doc. 23 at 13, ⁋ 25). 

Plaintiff’s allegation is refuted by the fact that he was provided a walking cane and 

insoles, as well as a pass for a low bunk, at Mayo C.I. which also is an FDC 

institution for which Centurion is contracted to provide medical services.2 (Id. at 8, 

¶ 13).

This court previously notified Plaintiff of the Eighth-Amendment standard 

and that his factual allegations failed to state a plausible claim for relief against 

Centurion. (See Doc. 22). Plaintiff still has not come forward with facts that state a 

plausible claim for relief against this Defendant. For these reasons, Plaintiff’s 

Eighth-Amendment claim against Centurion should be dismissed under 

2 Pursuant to Rule 201(b)(2) of the Federal Rules of Evidence, the court takes judicial 

notice of the fact that Centurion has been the FDC’s medical contractor since May 

2016. See McPherson v. Fla. Dep’t of Corr., No. 4:19-cv-156-MW-MJF, 2020 WL 

7017741, at *3 (N.D. Fla. July 27, 2020) (finding as fact that Centurion has been the 

FDC’s medical contractor since May 2016). The court’s taking judicial notice of this 

fact in a non-dispositive order provides Plaintiff an opportunity to be heard as 

required by Rule 201(e). See Paez v. Sec’y, Fla. Dep’t of Corr., 947 F.3d 649, 651-

53 (11th Cir. 2020).

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§ 1915(e)(2)(B)(ii) and § 1915A(b)(1), for failure to state a claim upon which relief 

can be granted.

4. Plaintiff’s Complaint Fails To State A Plausible Eighth-Amendment 

Claim Against Defendant Miller

Plaintiff’s claim against Defendant Miller is based on Miller’s act of

“revoking” Plaintiff’s medical passes during the intake process at Gulf C.I. (Doc. 23 

at 9-10, ¶ 16). Plaintiff alleges that Miller reviewed his medical file, including his

prior passes, and revoked them on this basis: “Passes are not medically necessary 

(was given based on subjective complaints).” (Id., ⁋⁋ 16-18). Plaintiff alleges that 

Miller made this determination “without any examination or appointment.” (Id.).

The fact that Miller applied a more conservative standard—one that required 

medical necessity—than Plaintiff’s medical providers at Mayo C.I. does not support 

a claim of deliberate indifference. See Waldrop, 871 F.2d at 1033; see also, e.g., 

Bismark v. Fisher, 213 F. App’x 892, 897 (11th Cir. 2007) (“The Eighth Amendment 

did not compel Dr. Fisher to check his own medical training and judgment at the 

door, simply because he was informed that some other doctor at some other time had 

prescribed orthopedic shoes for his patient.”).

Further, Plaintiff’s factual allegations do not plausibly suggest that Miller 

subjectively inferred that revoking Plaintiff’s passes during the intake process placed 

Plaintiff at a substantial risk of serious harm. The sick-call process was available to 

Plaintiff to obtain medical services, including issuance of passes. Indeed, Plaintiff 

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acknowledges that his use of the sick-call process was the means by which he 

obtained the medical passes at Mayo C.I. (Doc. 23 at 7-8, ¶¶ 10, 13). For these 

reasons, Plaintiff’s existing factual allegations fail to state a plausible deliberate 

indifference claim against Miller, and should be dismissed under § 1915(e)(2)(B)(ii) 

and § 1915A(b)(1).

B. Plaintiff’s Complaint Fails To State A Plausible ADA Claim Against 

Centurion

“In order to state a Title II claim, a plaintiff generally must prove (1) that he 

is a qualified individual with a disability; (2) that he was either excluded from 

participation in or denied the benefits of a public entity’s services, programs, or 

activities, or was otherwise discriminated against by the public entity; and (3) that 

the exclusion, denial of benefit, or discrimination was by reason of the plaintiff’s 

disability.” Bircoll v. Miami-Dade Cnty., 480 F.3d 1072, 1083 (11th Cir. 2007).

“[T]he plain text of Title II of the ADA unambiguously extends to state prison 

inmates . . . .” Pa. Dep’t of Corr. v. Yeskey, 524 U.S. 206, 213 (1998). That is, “a 

disabled prisoner can state a Title II-ADA claim if he is denied participation in an 

activity provided in state prison by reason of his disability.” Bircoll, 480 F.3d at 

1081. Although “the ADA . . . was never intended to apply to decisions 

involving . . . medical treatment,” Schiavo ex rel. Schindler v. Schiavo, 403 F.3d 

1289, 1294 (11th Cir. 2005), the Supreme Court has made clear that “medical 

services” fall within the ambit of Title II. See Yeskey, 524 U.S. at 210.

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Plaintiff’s complaint clearly fails to satisfy the second and third prongs of an 

ADA claim. Plaintiff cannot show that he was “excluded from participation in or 

denied the benefits of” Centurion’s medical services—specifically, its provision of 

medical passes for walking canes, insoles, low bunk, and no prolonged standing—

because of his disability. As previously noted, Plaintiff admits that he had access to 

medical services and that received the very medical services at issue here (particular 

medical passes) from Centurion while confined at Mayo C.I. The fact that his 

medical providers at Gulf C.I. did not deem the passes medically necessary does not 

state a plausible claim of disability discrimination against Centurion. See Schiavo, 

403 F.3d at 1294 (dismissing ADA claim where allegations of complaint 

demonstrated that hospice did not remove nutrition and withhold medication from 

patient “on the basis of [her] disability,” but rather on a different basis (a court 

order); noting also that the ADA is not a remedy for medical malpractice (citing 

Bryant v. Madigan, 84 F.3d 246, 249 (7th Cir. 1996))).

Because Plaintiff’s ADA claim against Centurion is not plausible on its face, 

it should be dismissed under § 1915(e)(2)(B)(ii) and § 1915A(b)(1), for failure to 

state a claim. See Bircoll, 480 F.3d at 1083; see also, e.g. Owens v. Sec’y, Fla. Dep’t 

of Corr., 602 F. App’x 475, 478-79 (11th Cir. 2015) (holding that prisoner’s 

complaint failed to state a plausible ADA claim based on prison medical officials’

denial of certain medical services; prisoner’s allegations did not demonstrate that he 

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was excluded from or denied the benefits of the prison’s services because of his 

disability, and documents attached to his complaint revealed that he had access to 

medical services and that he received medical services for the purpose of treating his 

disability); Jones v. Rutherford, 546 F. App’x 808, 811-12 (11th Cir. 2013) 

(dismissing ADA claim where plaintiff alleged merely that he was given insufficient 

medical care).

IV. CONCLUSION

The facts as pleaded in Plaintiff’s fourth amended complaint fail to state a 

plausible Eighth-Amendment claim or ADA claim against any of the Defendants. 

For this reason, the undersigned respectfully RECOMMENDS that:

1. Plaintiff’s fourth amended complaint be DISMISSED under 28 U.S.C. 

§§ 1915(e)(2)(B)(ii) and 1915A(b)(1), for failure to state a claim upon which 

relief can be granted.

2. The clerk of court be directed to close this case file.

At Pensacola, Florida, this 14th day of October, 2021.

/s/ Michael J. Frank

Michael J. Frank

United States Magistrate Judge

NOTICE TO THE PARTIES

Objections to these proposed findings and recommendations must 

be filed within fourteen (14) days of the date of the Report and 

Recommendation. Any different deadline that may appear on the 

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electronic docket is for the court’s internal use only and does not 

control. An objecting party must serve a copy of the objections on 

all other parties. A party who fails to object to the magistrate 

judge’s findings or recommendations contained in a report and 

recommendation waives the right to challenge on appeal the 

district court’s order based on unobjected-to factual and legal 

conclusions. See 11th Cir. R. 3-1; 28 U.S.C. § 636.

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