IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA

PANAMA CITY DIVISION

MICHAEL J. LOEBER,

Plaintiff,

vs. CASE NO. 5:09-cv-402/RS-MD

DEPARTMENT OF CORRECTIONS,

STATE OF FLORIDA, ET AL. 

Defendants.

_________________________________________/

ORDER

Before me is Defendant Andem’s Motion to Dismiss Amended Complaint (Doc. 

41). Plaintiff has not filed a response. “Failure to file a responsive memorandum may be 

sufficient grounds to grant the motion.” N.D. Fla. Loc. R 7.1 (C) (1). 

I. Standard of Review

To survive a motion to dismiss, a complaint must contain sufficient facts, which 

accepted as true, state a claim to relief that is plausible on its face. Ashcroft v. Iqbal, 129 

S. Ct. 1937, 1949 (2009); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 569, 127 S. Ct. 

1955, 1974 (2007). Granting a motion to dismiss is appropriate if it is clear that no relief 

could be granted under any set of facts that could be proven consistent with the 

allegations of the complaint. Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S. Ct. 

2229, 2232 (1984). In making this determination, the court must accept all factual 

allegations in the complaint as true and in the light most favorable to Plaintiff. 

Christopher v. Harbury, 536 U.S. 403, 406, 122 S. Ct. 2179, 2182 (2003).
II. Background

Plaintiff, a prisoner suffering from Hepatitis-C, was incarcerated from July 2007 

until March 2010 in several facilities--at Leon County Jail (“LCJ”), Holmes Correctional 

Institute (“HCI”), and Wakulla Correctional Institute (“WCI”) (Doc. 30, p.4).1 

Defendant is a physician employed by Defendant DOC at HCI. (Doc. 30, p.3-4). 

Plaintiff alleges that during incarceration at HCI and WCI, he was treated with 

lactulose and was denied treatment with interferon and/or ribavirin (Doc. 30, p. 5). 

Plaintiff alleges that on multiple occasions he requested such treatment and that the 

denial of treatment by interferon and/or ribavirin resulted in a “radically deteriorated” 

medical condition (Doc. 30, p. 6). 

III. Analysis 

The doctrine of qualified immunity protects government officials from civil 

damages “insofar as their conduct does not violate clearly established statutory or 

constitutional rights of which a reasonable person would have known." Pearson v. 

Callahan, U.S. , 129 S. Ct. 808, 815 (2009) (citation omitted). This doctrine is 

intended to balance "the need to hold public officials accountable when they exercise 

power irresponsibly and the need to shield officials from harassment, distraction, and 

liability when they perform their duties reasonably." Id.

In Saucier v. Katz, 533 U.S. 194, 201, 121 S. Ct. 2151, 2156 (2001), the Supreme 

Court mandated a two-step process for lower courts to follow in resolving qualified 

 

1

Plaintiff was incarcerated within LCJ from July 2007 until April 2008. Plaintiff was incarcerated within HCI from 

April 2008 until September 2008. Plaintiff was incarcerated within WCI from September 2008 until April 2009. 

Plaintiff was again incarcerated within HCI from April 2009 until his release from prison in March 2010. 
immunity claims. First, the court had to decide whether the facts that the plaintiff alleged 

showed a violation of a constitutional right. Id. Second, if the plaintiff satisfied the first 

step, the court had to determine whether "the right at issue was 'clearly established' at the 

time of defendant's alleged misconduct." Pearson, 129 S. Ct. at 816 (quoting Saucier, 

533 U.S. at 201, 121 S. Ct. at 2156).

The Supreme Court revisited Saucier's mandatory two-step inquiry in Pearson. 

Id., 129 S. Ct. at 815-18. The Court held that while the Saucier process is often 

appropriate, “it should no longer be regarded as mandatory.” Rather, “[t]he judges of the 

district courts and the court of appeals should be permitted to exercise their sound 

discretion in deciding which of the two prongs of the qualified immunity analysis should 

be addressed first in light of the circumstances in the particular case at hand.” Id. at 818.

Applying this two-step analysis, the courts have recognized that “deliberate 

indifference to serious medical needs of prisoners” violates the Eighth Amendment.

Erickson v. Pardus, 551 U.S. 89, 90, 127 S. Ct. 2197, 2198 (2007) (citing Estelle v. 

Gamble, 429 U.S. 97, 104-105, 97 S. Ct. 285, 292(1976)). 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 treatment once prescribed.” Id. 

To sustain such a claim, Plaintiff must allege facts that satisfy both an objective 

and a subjective requirement. There must be an "objectively serious deprivation" of 
medical care, which requires (1) "an objectively serious medical need2

. . . that, if left 

unattended, poses a substantial risk of serious harm," and (2) that the state actor's 

response "was poor enough to constitute an unnecessary and wanton infliction of pain, 

and not merely accidental inadequacy, negligence in diagnosis or treatment, or even 

medical malpractice actionable under state law." Granda v. Schulman, 2010 U.S. App. 

LEXIS 7372, 7-9 (11th Cir. 2010) (per curiam) (citations omitted). 

Plaintiff also must allege the state actor's subjective intent to punish by pleading 

facts that would show that Defendant acted with deliberate indifference. Deliberate 

indifference is shown by: (1) the actor's "subjective knowledge of a risk of serious harm;" 

(2) the actor's "disregard of that risk;" and (3) "conduct that is more than mere 

negligence." Deliberate indifference includes: (1) "grossly inadequate care," (2) "a 

decision to take an easier but less efficacious course of treatment," and (3) medical care 

that is "so cursory as to amount to no treatment at all." Id.

Turning to the facts of the case, when viewed in the light most favorable to 

Plaintiff, the complaint fails to allege sufficient facts to show a violation of the Eighth 

Amendment. Hepatitis-C is an objectively serious medical need that poses a substantial 

risk of harm. See Brown v. Johnson, 387 F.3d 1344, 1351 (11th Cir. 2004). However, 

Plaintiff has failed to present facts to support the inference that providing Plaintiff with 

lactulose rather than the requested interferon and/or ribavirin amounts to, if anything, 

more than mere negligence. The claim that lactulose “treated [Plaintiff’s] symptoms, but 

 

2 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." Granda, 2010 

U.S. App. LEXIS at 7-9. 
not his underlying condition,” (Doc. 30, p. 5), is not an allegation that the requested 

alternative treatment would have been medically appropriate, that it would have 

improved Plaintiff’s condition, or that it was superior to lactulose. This lack of facts is 

notably absent in light of the potential side effects of the requested alternative treatment. 

See Bender v. Regier, 385 F.3d 1133, 1135 (8th Cir. 2004) (“Interferon treatment has 

serious potential side-effects, including nausea, anemia, depression, and decomposition 

of the liver. Its success rate is relatively low -- 15-30% for regular interferon and 40-50% 

for [interferon and ribavirin] treatment. The selection of patients for interferon treatment 

is highly individualized and depends upon many factors.”).

For these same reasons, Plaintiff has not presented facts to demonstrate deliberate 

indifference. Plaintiff has not shown that treatment with lactulose, rather than with the 

requested alternative, represents a disregard for the risk of harm from Hepatitis-C. Nor 

does Plaintiff show that lactulose treatment was, if anything, more than mere negligence. 

Cf. Brown v. Johnson, 387 F.3d 1344, 1351 (11th Cir. 2004) (where a “complete 

withdrawal of treatment” for Hepatitis-C amounted to deliberate indifference).

Defendant Andem, thus, entitled to qualified immunity because Plaintiff’s 

allegations are “merely consistent” with Defendant’s liability, but stop short of the “line 

between possibility and plausibility of entitlement to relief.” Iqbal, U.S. , 129 S. Ct. 

at 1949 (citing Twombly, 550 U.S. at 557, 127 S. Ct. at 1966). 
IV. Conclusion

IT IS ORDERED

1. Count I Eighth Amendment claim is dismissed with prejudice because 

Defendant Andem is entitled to qualified immunity. 

2. Defendant Andem is dismissed as party to this case. 

ORDERED on August 20, 2010

/S/ Richard Smoak 

RICHARD SMOAK

UNITED STATES DISTRICT JUDGE