1

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA

 PANAMA CITY DIVISION

MICHAEL LOEBER DC#895668,

Plaintiff,

v. Case No. 5:09cv402/RS/MD

DEPARTMENT OF CORRECTIONS, 

STATE OF FLORIDA, ET AL.

Defendants.

________________________________/

DEFENDANTS DEPARTMENT OF CORRECTIONS, GONZALEZ-TORRES,

LEMON AND WAHL’S MOTION TO DISMISS

Defendants, DEPARTMENT OF CORRECTIONS, DELIANA GONZALEZTORRES, PATRICIA LEMON, and MARY COLLEEN WAHL, through counsel,

move to dismiss the amended complaint for failure to state a claim.

In support, defendants submit the following Memorandum of Law.

Memorandum of Law

I. The Allegations of the Amended Complaint:

Plaintiff, Michael Loeber, is a former inmate of the

Florida Department of Corrections. (Amended Complaint, doc. 30 at

2, ¶5.) Plaintiff was received into the custody of the Department

of Corrections in April 2008 from the Leon County Jail. (Amended

Complaint, doc. 30 at 4, ¶14.) Plaintiff was released from the

custody of the Department of Corrections on March 5, 2010, and

currently resides in Leon County, Florida. (Amended Complaint,doc.

30 at 2, ¶5; at 4, ¶14.) At the time the original complaint was
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filed, plaintiff was still in the custody of the Department of

Corrections and was housed at Holmes Correctional Institution

(“HCI”). (Amended Complaint, doc. 30 at 2, ¶5.) During his

incarceration, plaintiff was also housed at Wakulla Correctional

Institution (“WCI”) for a brief period between late September 2008

through late April 2009. (Amended Complaint, doc. 30 at 2, ¶5; at

4, ¶14.) 

Plaintiff has filed an amended complaint pursuant to 42

U.S.C. § 1983 alleging that defendants have failed to properly

treat him for his Hepatitis C in violation of his federal rights

under the Eighth and Fourteenth Amendments to the United States

Constitution, Title II of the Americans With Disabilities Act, and

Section 504 of the Rehabilitation Act. Plaintiff also brings a

state law claim for negligence against the Florida Department of

Corrections. (Amended Complaint, Doc. 30.)

Plaintiff alleges he is 50 years old and suffers from

various medical conditions, specifically including Hepatitis-C.

(Amended Complaint, Doc. 30 at 4, ¶ 13.) One of the complications

of Hepatitis-C is elevated blood ammonia levels. (Id.) Plaintiff

claims that while incarcerated with the Florida Department of

Corrections at HCI and WCI he was “mistreated medically for his

hepatitis-C and related conditions.” (Amended Complaint, Doc. 30

at 5, ¶¶ 16-17.) Plaintiff claims that he communicated his

condition, including specifically his need for the Hepatitis C
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medications interferon and/or ribavirin, on multiple occasions to

defendants Andem and Wahl at HCI and defendants Torres and Lemon at

WCI, but he was not administered either of the medications. (Id.)

Instead, plaintiff alleges he was only issued the medication

lactulose to regulate the symptom of elevated ammonia levels, but

the underlying Hepatitis C condition was left unmedicated or

treated. (Id.)

Plaintiff claims his condition radically deteriorated

over the total period of his imprisonment and that the

deterioration included substantially elevated ammonia levels in his

blood, associated confusion and other brain symptoms, portosystemic

encephalopathy, substantial mental and emotional deterioration, and

five episodes bordering on hepatic coma. (Amended Complaint, Doc.

30 at 6, ¶ 18.) Plaintiff further alleges that he is in a constant

condition of extreme fatigue, with burning eues, tremors bordering

on convulsion, inability to writ and perform other similar fine

motor skills, and insufficient energy to be gainfully employed.

(Id.) 

Plaintiff claims that an officer at WCI ignored a medical

“pass” approving “light duty and frequent rest” and ordered him out

of his bunk outside the dormitory. (Amended Complaint, Doc. 30 at

6, ¶ 19.) Plaintiff also alleges that while at HCI he was attacked

and injured by another inmate because the officer on duty in the

dormitory was working on a computer rather than monitoring the
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dormitory. (Amended Complaint, Doc. 30 at 7, ¶20.)

Plaintiff asserts that he has suffered severe physical

and emotional injuries, mental and physical pain and suffering,

loss of the enjoyment of life, bodily injury, lost wages and other

remuneration for which he seeks damages from defendants. (Amended

Complaint, Doc. 30 at 9, ¶ 32; at 11, ¶ 44; at 12-13, ¶ 55; at 14,

¶ 62; at 18.) Plaintiff also seeks equitable relief mandating

defendants’ obedience to the laws and an injunction permanently

enjoining defendants from future violations of the state and

federal laws outlined in the complaint. (Amended Complaint, Doc.

30 at 18.) Plaintiff further seeks attorney’s fees and costs.

(Amended Complaint, Doc. 30 at 19.)

II. Plaintiff’s Exhaustion of Administrative Remedies:

Department of Corrections’ records show that plaintiff

only filed two grievances with the Office of the Secretary

regarding his medical care while incarcerated. The first

grievance, Log #09-6-02017, was filed with the Office of the

Secretary on January 21, 2009. (Defendants’ Exhibit A at A3.) The

second grievance, Log #09-6-22583, was filed with the Office of the

Secretary on July 21, 2009. (Id. at A9.) In each of these

grievances, plaintiff contested the denial of interferon treatments

that had been recommended by a doctor that plaintiff had seen at

the Bond Clinic in Tallahassee, Florida, prior to his arrest in
1

 Nowhere in his grievances does plaintiff raise an issue

under the Americans With Disabilities Act or Section 504 of the

Rehabilitation Act of 1973. 

5

2007.1 (Defendants’ Exhibit A.) 

Both grievances were returned without action because

plaintiff failed to properly follow the administrative grievance

procedure. As to grievance log #09-6-02017, plaintiff failed to

timely file a grievance appeal within 15 calendar days of

institutional response as required by Florida Administrative Code

Rule 33-103.014(l). (Defendants’ Exhibit A at A2.) Plaintiff was

specifically advised that there was a receipting process at the

institutional level under Florida Administrative Code Rule 33-

103.006(9) to assure appeals could be submitted in a timely fashion

and noted that plaintiff’s failure to avail himself of this

receipting process may have contributed to his late filing. (Id.)

The second grievance filed with the Office of Secretary

by plaintiff was received on July 21, 2009. (Defendants’ Exhibit

A at A8) This grievance was filed in non-compliance with Florida

Administrative Code Rule 33-103.006 because plaintiff did not

attach a copy of the formal grievance at the institutional level

and plaintiff was advised that he could not by-pass this step.

(Id.) However, plaintiff was given an additional 15 days to

resubmit his grievance at the institutional level and was advised

to attach a copy of the grievance response authorizing him to do
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so. (Id.) While given this second opportunity to grieve this

issue, plaintiff failed to follow through as instructed. 

III. Argument:

A. Plaintiff Failed to Properly Exhaust Administrative

Remedies and Therefore His Complaint Must Be Dismissed:

Pursuant to 42 U.S.C. § 1997e(a), a prisoner must exhaust

his administrative remedies before pursuing a civil rights action:

(a) Applicability of administrative remedies

No action shall be brought with respect to

prison conditions under section 1983 of this

title, or any other Federal law, by a prisoner

confined in any jail, prison, or other

correctional facility until such

administrative remedies as are available are

exhausted.

The United States Supreme Court has held that the

exhaustion requirement under § 1997e requires “‘proper exhaustion,’

“ such that “a prisoner must exhaust all prescribed administrative

remedies available to him. . .before filing a lawsuit to seek

judicial redress.” Garcia v. Glover, 197 Fed. App'x 866, 868 (11th

Cir.2006) (quoting Woodford v. Ngo, 548 U.S. 81, 93, 126 S.Ct.

2378, 165 L.Ed.2d 368 (2006)). The Supreme Court has repeatedly

held that “[t]here is no question that exhaustion is mandatory

under the PLRA and that unexhausted claims cannot be brought in

court.” Jones v. Bock, 549 U.S. 199, 127 S.Ct. 910, 918-19, 166

L.Ed.2d 798 (2007) (citing Porter v. Nussle, 534 U.S. 516, 524, 122

S.Ct. 983, 152 L.Ed.2d 12 (2002)). Moreover, the PLRA requires
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"proper exhaustion," so that the agency addresses the issues on the

merits. Woodford v. Ngo, 548 U.S. 81, 126 S.Ct. 2378, 2387-88, 165

L.Ed.2d 368 (2006); see also id., 126 S.Ct. at 2388 ("The benefits

of exhaustion can be realized only if the prison grievance system

is given a fair opportunity to consider the grievance. The prison

grievance system will not have such an opportunity unless the

grievant complies with the system's critical procedural rules.").

In Bryant v. Rich, 530 F.3d 1368 (11th Cir.2008), the

Eleventh Circuit held:

Because exhaustion of administrative remedies

is a matter in abatement and not generally an

adjudication on the merits, an exhaustion

defense ... is not ordinarily the proper

subject for a summary judgment; instead, it

“should be raised in a motion to dismiss, or

be treated as such if raised in a motion for

summary judgment.”

Id. at 1374-75 (11th Cir.2008) (quoting Ritza v. Int'l

Longshoremen's & Warehousemen's Union, 837 F.2d 365, 368-69 (9th

Cir.1988)). Therefore, Defendants may properly raise this

exhaustion defense in the instant motion to dismiss.

“When motions to dismiss are based on issues not

enumerated under Rule 12(b), such as here, then Federal Rule of

Civil Procedure 43(c) governs and ‘permits courts to hear evidence

outside of the record on affidavits submitted by the parties.’”

Brown v. Darr, 2010 WL 1416552, at *3 (M.D.Ga.2010) (quoting

Bryant, 530 F.3d at 1377 n. 16). Accordingly, “the parties may

submit documentary evidence concerning the exhaustion issue and
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doing so will not require the conversion of the motion to dismiss

into a summary judgment motion.” Id.

To determine whether a complaint should be dismissed for

failure to exhaust administrative remedies, the court must first

consider the factual allegations in the defendant's motion to

dismiss and those in the plaintiff's response, and if they

conflict, the court must accept, for purposes of the motion, the

plaintiff's version of the facts as true. See Turner v. Burnside,

541 F.3d 1077, 1082 (11th Cir.2008). “‘If, in that light, the

defendant is entitled to have the complaint dismissed for failure

to exhaust administrative remedies, it must be dismissed.’” Id.

The Florida Department of Corrections has a three-step

inmate grievance procedure for all inmates in their custody, which

is set forth in Chapter 33-103 of the Florida Administrative Code.

Henderson v. Langenbrunner, 2010 WL 1408371, at *4 (M.D.Fla.2010).

First, an inmate must normally file either an

informal grievance or formal grievance

depending on the nature of his complaint.

Informal grievances are to be filed “within a

reasonable time” of the date of the incident.

Inmates must file a formal grievance within

fifteen days from when the informal grievance

was responded to; or, within fifteen days of

the date of the incident if the grievance is

used to initiate the grievance process. If the

inmate's issue is not resolved at the

institutional level, the inmate must file an

appeal to the Office of the Secretary of the

Department.

Id. (citations omitted).

In this case, plaintiff failed to properly exhaust his
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administrative remedies because he failed to comply with the

procedural requirements necessary to obtain review from the Office

of the Secretary. Although the first grievance was dismissed as

untimely, plaintiff was given a second chance with his second

grievance in July 2009 to properly complete the process; however,

plaintiff failed to follow the explicit instructions given him in

the grievance response and he failed to present any further appeals

to the Office of the Secretary. Accordingly, plaintiff’s complaint

must be dismissed.

In response to this motion to dismiss, plaintiff may

attempt to claim that (1) because he has been released from custody

he no longer is required to exhaust administrative remedies in

order to proceed with this action or (2) that the amendment to the

complaint after plaintiff’s release from incarceration obviates the

need for exhaustion. Neither position has merit. 

At the time plaintiff brought his complaint, he

indisputably was a prisoner. Section 1915e(a) of the Prison

Litigation Reform Act provides

No action shall be brought with respect to

prison conditions under § 1983 of this title,

or any other Federal law by a prisoner

confined in any jail, prison, or other

correctional facility until such

administrative remedies as are available are

exhausted.

42 U.S.C. § 1997e(a).

“Because (1) plaintiff was a prisoner when he "brought"
2

 For an extended explanation of why "to bring" means "to

file," see Harris v. Garner, 216 F.3d 970, 973-80 (11th

Cir.2000)(en banc) (construing a different subsection of the same

statute). 

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his suit, and (2) plaintiff's suit implicates "prison conditions,"

§ 1997e(a) applies and plaintiff was required to exhaust any

available administrative remedies before he filed suit.” Cox v.

Mayer, 332 F.3d 422, 425 (6th Cir. 2003).2 Moreover, plaintiff’s

failure to properly exhaust his administrative remedies is not

cured by the amendment of the complaint following plaintiff’s

release under Federal Rule of Civil Procedure 15(d). “[A]

procedural rule ‘cannot overrule a substantive requirement or

restriction contained in a statute (especially a subsequently

enacted one).’” Cox v. Mayer, 332 F.3d at 428, quoting Harris v.

Garner, 216 F.3d 970 (11th Cir.2000)(en banc) (declining-under

similar circumstances-to apply Rule 15(d) to excuse plaintiff's

failure to comply with an analogous provision of the PLRA, §

1997e(e)).

Accordingly, for the foregoing reasons, the complaint

must be dismissed.

B. The Eighth Amendment Deliberate Indifference Claim in

Count I Against Defendants Lemon, Wahl, and Gonzalez-Torres:

To prevail on a deliberate indifference claim, the

plaintiffs must satisfy both an objective and a subjective inquiry

– first, by establishing an objectively serious medical need and
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second, by demonstrating that the defendants acted with deliberate

indifference to the need. See Brown v. Johnson, 387 F.3d 1344,

1351 (11th Cir. 2004), citing to Farrow v. West, 320 F.3d 1235,

1243. Defendants do not dispute that a heart attack is a serious

medical need. However, to satisfy the subjective element of

deliberate indifference to a serious medical need, plaintiffs must

demonstrate three things; “(1) subjective knowledge of a risk of

serious harm; (2) disregard of that risk; (3) by conduct that is

more than [gross] negligence.” Bozeman v. Orum, 422 F.3d 1265,

1272, citing to Brown v. Johnson, supra, and also Miller v. King,

384 F.3d 1248, 1261 (11th Cir. 2004)(noting, after Farmer v.

Brennan, 511 U.S. 825, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994), that

gross negligence fails to satisfy state-of-mind requirement for

deliberate indifference)(final citation omitted). 

Although Federal Rule of Civil Procedure 8(a)(2) requires

only “a short and plain statement of the claim showing that the

pleader is entitled to relief,” in order to satisfy Rule 8,

“[f]actual allegations must be enough to raise a right to relief

above the speculative level . . . [and to] nudge[][the] claims

across the line from conceivable to plausible.” Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 555, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929

(2007). The Eleventh Circuit has tightened the application of Rule

8 in section 1983 cases where qualified immunity is at issue. In

such cases, the “heightened pleading standard” applies and “[s]ome
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factual detail in the pleadings is necessary.” Harper v. Lawrence

County, Alabama, 592 F.3d 1227, 1232-33 (11th Cir. 2010), quoting

GJR Invs., Inc. v. County of Escambia, Fla., 132 F.3d 1369, 1367

(11th Cir. 1998); see also Danley v. Allen, 540 F.3d 1298, 1314 (11th

Cir. 2008)(“under the heightened pleading requirement, the relevant

facts must be alleged with some specificity.”)

Here the complaint includes a paucity of real factual

allegations. Most of the complaint is couched in terms of legal

conclusions. There are no direct factual allegations that give

notice to the defendants of what actions taken by each of them

support the plaintiff’s claim that each defendant was deliberately

indifferent to plaintiff’s medical needs. Plaintiff only generally

states that he communicated his condition to the defendants at each

of the institutions where he was housed and make known that he

wanted treatment with interferon and/or ribavirin. (Amended

Complaint, Doc. 30 at 5, ¶¶ 16-17.) Plaintiff then states that he

was only given lactulose, although he does not state which if any

of the named individual defendants prescribed the lactulose. (Id.)

Plaintiff claims that he was medically mistreated for his Hepatitis

C condition and that the only medication he received treated only

symptoms but not the condition itself. (Id.) Plaintiff also

claims the individual defendants “had notice of inadequate

custodial, medical, and diagnostic care, and of inappropriate

placement of Plaintiff in confinement, and failed to establish or
3

 There is not a single factual allegation made in the

complaint to support any of these broad conclusions, let alone put

defendants on notice of the nature of the constitutional claim.

Plaintiff fails to (1) specify how each of the defendants allegedly

deprived plaintiff of the ability to assist in his own health care,

(2) what therapies allegedly denied by each specific defendant, (3)

how defendants failed to act that resulted in denial of needed

medical services. 

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implement policies to treat Plaintiff’s serious medical

conditions.” (Amended Complaint at 8, ¶ 25.) However, nowhere

does plaintiff state how defendants were placed on notice of such

claimed deficiencies in care nor does plaintiff provide any factual

background on his alleged placement in confinement, the basis for

its inappropriateness if true, and the obligations of each

individual defendant in this regard. Plaintiff further asserts

through general and broad allegations that defendants were

deliberately indifferent by (1) depriving plaintiff of the means of

assisting in his own health care, (2) by failing to provide

necessary therapies, (3) by failing to follow up on indicators for

serious health problems, (4) by failing to timely respond to

plaintiff’s medical needs, (5) by failing to provide timely and

necessary medical care, and (6) by failing to permit others to

provide timely necessary medical care.3 

The most that can be gleaned from the complaint is that

plaintiff wanted treatment with interferon and/or ribavirin and

that defendants (presumably all four individually named defendants

of the Department of Corrections) denied that particular course of
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treatment and instead only provided plaintiff with the medication

lactulose. This series of conclusive allegations appear grounded

not in deliberate difference but in a difference of medical

opinion. The fact that plaintiff may want this treatment does not

mean that the treatment necessarily is medically appropriate. 

Since 2002, an interferon treatment involving a

combination of pegylated interferon (interferon with polyethylene

glycol) and ribavirin has been available for treatment of Hepatitis

C. See Bender v. Regier, 385 F.3d at 1135. “Interferon treatment

has serious potential side-effects, including nausea, anemia,

depression, and decomposition of the liver.” Id. “The selection

of patients for interferon treatment is highly individualized and

depends upon many factors.” Id. “Treatment is not appropriate for

patients with advanced liver problems such as cirrhosis.” Id.

In this case, while plaintiff has alleged that before he

was arrested he was a candidate for interferon treatment that does

not necessarily provide a basis for claiming that some nine months

to a year later his condition is still appropriate for such

treatment. As noted above, “[interferon] treatment is not

appropriate for patients with advanced liver problems such as

cirrhosis.” Bender v. Regier, 385 F.3d at 1135. Nowhere does

plaintiff allege that any of these medical defendants have

determined treatment with interferon and ribavirin is the

appropriate course of treatment but then has denied the treatment
15

or failed to assure the treatment is rendered. What plaintiff

appears to allege is that there is a difference of medical judgment

on what course of treatment is appropriate. 

A difference of opinion over matters of medical judgment

does not give rise to a constitutional claim. See Shiflet v.

Cornell, 933 F. Supp. 1549 (M.D. Fla. 1996), citing Massey v.

Hutto, 545 F.2d 45 (8th Cir. 1976). Whether particular forms of

treatment are indicated for an inmate is a matter for medical

judgment. See Sult v. Prison Health Services Polk County Jail, 806

F.Supp. 251, 252 (M.D. Fla. 1992). A medical decision not to order

such measures does not represent cruel and unusual punishment.

Id., citing Estelle v. Gamble (citation omitted). Moreover,

. . . nothing in the Eighth Amendment prevents

prison doctors from exercising their

independent medical judgment. White v.

Farrier, 849 F.2d 322, 327 (8th Cir. 1988).

Prisoners do not have a constitutional right

to any particular type of treatment. See id.

at 327-28. Prison officials do not violate

the Eighth Amendment when, in the exercise of

their professional judgment, they refuse to

implement a prisoner’s requested course of

treatment. Kayser v. Caspari, 16 F.3d 270,

281 (8th Cir. 1994); Taylor v. Turner, 884 F.2d

1088, 1090 (8th Cir. 1989).

Long v. Nix, 86 F.3d 761, 765 (8th Cir. 1996).

Even assuming that defendants’ medical judgments were

grossly negligent, the claim would not rise to the level of a

constitutional violation. See Bozeman v. Orum, 422 F.3d 1265,

1272, citing to Brown v. Johnson, supra, and also Miller v. King,
4

 “The defense of qualified immunity represents a balance

between the need for a damages remedy to protect the rights of

citizens and the need for government officials to be able to carry

out their discretionary functions without the fear of constant

baseless litigation.” GJR Invs., Inc. v. County of Escambia, 132

F.3d 1359, 1366 (11th Cir. 1998). Under the doctrine of qualified

immunity, government officials acting within their discretionary

authority are immune from suit unless the official's conduct

“violates ‘clearly established [federal] statutory or

constitutional rights of which a reasonable person would have

known.’ ” Id. (alteration in original) (quoting Harlow v.

Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396

(1982)). The Supreme Court has established a two-part test for

determining whether an officer is entitled to qualified immunity.

The court must determine “whether [the] plaintiff's allegations, if

true, establish a constitutional violation.” Hope v. Pelzer, 536

U.S. 730, 736, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002) (citation

omitted). The court must also determine whether the constitutional

violation was clearly established. Saucier v. Katz, 533 U.S. 194,

201, 121 S.Ct. 2151. However, the district court has discretion to

determine in what order to address each part. Pearson v. Callahan,

555 U.S. — , 129 S.Ct. 808, 818 (2009).

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384 F.3d 1248, 1261 (11th Cir. 2004)(noting, after Farmer v.

Brennan, 511 U.S. 825, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994), that

gross negligence fails to satisfy state-of-mind requirement for

deliberate indifference)(final citation omitted). Accordingly,

the claims against defendants Gonzalez-Torres, Wahl, and Lemon must

be dismissed or alternatively defendants should be entitled to

qualified immunity.4 

C. The Rehabilitation Act and ADA Claims Under Counts II

and III:

Counts II and III of the complaint allege violations of

the Rehabilitation Act of 1973 (hereinafter “Rehabilitation Act”)

and the Americans with Disabilities Act (hereinafter “ADA”). Title
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II of the ADA provides that “no qualified individual with a

disability shall, by reason of such disability, be excluded from

participation in or be denied the benefits of the services,

programs, or activities of a public entity, or be subjected to

discrimination by any such entity.” 42 U.S.C. § 12132. The

language of Title II generally tracks the language of Section 504

of the Rehabilitation Act of 1973 and, in fact, the statute

specifically provides that “the remedies, procedures and rights”

available under Section 504 shall be the same as those available

under Title II. 42 U.S.C. § 12133. Under both the ADA and the

Rehabilitation Act, a plaintiff must demonstrate that: (1) he is a

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

participation in, or denied benefits of, services, programs, or

activities by a public entity; and (3) that such exclusion, denial

of benefits, or discrimination was by reason of his disability.

In Counts II and III, plaintiff generally alleges that he

was denied “services and/or programs available to others that could

have treated him” and that plaintiff “could have benefitted from

therapies and medications to address his serious health condition.”

(Amended Complaint, doc. 30 at 10-11, ¶¶ 41-42; see similar

allegations at 12, ¶¶ 50-51.) He also alleges that the Florida

Department of Corrections refused “to accommodate the needs of

Plaintiff by failing to provide him the necessary medical care and

treatment for his condition and then, on one occasion referenced
18

[in the complaint], demand[ed] that Plaintiff work when he was

unable to do so . . . .” (Amended Complaint, doc. 30 at 10, ¶

40.)(Emphasis supplied.) Plaintiff references a failure to

accommodate his needs but nowhere in the complaint does plaintiff

identify the accommodation that allegedly was available and could

have been provided by the Department of Corrections. Neither does

plaintiff allege that he requested this accommodation and was

refused. What plaintiff does allege is that he was denied a

particular treatment regimen – that is, treatment with interferon

and ribavirin – and instead only administered the drug lactulose to

regulate the symptoms of elevated ammonia levels associated with

the advancement of his Hepatitis C condition. 

Assuming for purposes of this motion only that plaintiff

is a qualified individual with a disability, plaintiff has failed

to demonstrate that he has been excluded from the benefits of

medical and diagnostic services due to his disability and has

failed to show any discriminatory motive in connection with the

delivery of medical services. Furthermore, a careful examination

of the complaint reveals that plaintiff’s claims are grounded on

the adequacy and appropriateness of medical and diagnostic care,

which are not actionable under either the Rehabilitation Act or the

ADA.

The complaint in this case is largely comprised of

boilerplate legal conclusions. There is a paucity of real factual
19

allegations to support the legal claims asserted. There are

certainly no factual allegations to support that the denial of

treatment with interferon and/or ribavirin was due to

discriminatory motives of the defendants or other staff. Plaintiff

has alleged nothing more than a disagreement between his own

perception of what treatment is necessary for his condition and

that of the medical professionals delivering the care.

Neither the ADA nor the Rehabilitation Act create a

federal cause of action for prisoners challenging the medical

treatment provided for their underlying disabilities. See, e.g.,

Brown v. Baca, 2010 WL 316475 at *7 (C.D. Cal.), citing Alexander

v. Tilton, 2009 WL 464486 at *7 (E.D. Cal., February 24, 2009),

Burger v. Bloomberg, 418 F.3d 882, 883 (8th Cir. 2005)(holding that

claims pursuant to the ADA or the Rehabilitation Act “cannot be

based on medical treatment decisions”); Grzan v. Charter Hosp. Of

Northwest Indiana, 104 F. 3d 116, 121-22 (7th Cir.

1997)(“Allegations of discriminatory medical treatment do not fit

into the four-element framework required by section 504 [of the

Rehabilitation Act].”) Plaintiff’s claims under the ADA and the

Rehabilitation Act are really claims of inadequate medical care and

treatment. 

Plaintiff asserts that he should have received interferon

and ribavirin therapy and that defendants failed to provide timely

medical and diagnostic care called for by his health condition.
20

These claims are related to the adequacy of the treatment afforded

plaintiff. Neither Title II of the ADA nor Section 504 of the

Rehabilitation Act provide a remedy for inadequate medical

treatment. See Breedlove v. Costner, 2010 WL 354024 (W.D. Okla.,

January 22, 2010), citing Fitzgerald v. Corrections Corporation of

America, 403 F.3d 1134, 1144 (10th Cir. 2005)(holding tha the ADA

did not provide a remedy because the plaintiff’s alleged disability

was the reason he was seeking treatment); see also Rashad v.

Doughty, 4 Fed. Appx. 558, 560 (10th Cir., January 29,

2001)(unpublished op.)(“the failure to provide medical treatment to

a disabled prisoner . . . does not constitute an ADA

violation”(citations omitted)); Callahan v. Southwestern Medical

Center of Lawton, 178 Fed. Appx. 837, 839-40(10th Cir., May 8,

2006)(unpublished op.)(stating that claims relating to medical

treatment “are not cognizable under the ADA” (citation omitted)).

As pointed out by the district court in Breedlove, supra,

“[C]ourts have differentiated ADA claims based

on negligent medical care from those based on

discriminatory medical care.” Kiman v. New

Hampshire Department of Corrections, 451 F.3d

274, 284 (1st Cir. 2006)(citations omitted).

For example, the Tenth Circuit Court of

Appeals has explained: “[The ADA and

Rehabilitation Act] afford disabled persons

legal rights regarding access to programs and

activities enjoyed by all, not a general

federal cause of action for challenging the

medical treatment of their underlying

disabilities.” Moore v. Prison Health

Services, Inc., 201 F.3d 448, 1999 WL 1079848,

Westlaw op. At 1 (10th Cir. Dec. 1,

1999)(unpublished op.)(citations omitted).
21

Breedlove, 2010 WL 354024 at *3, n. 16 (W.D. Okla., Jan. 22, 2010).

Finally, plaintiff has wholly failed to demonstrate that

there has been any discriminatory motive in the delivery of medical

services. Plaintiff presents no allegations that the denial of

treatment with interferon and/or ribavirin is discriminatory based

upon the disability itself. Further, to the extent that plaintiff

believes that his allegations that an officer ignored is medical

pass and required him to report to the Captain on the outside yard

or that another officer failed to prevent an attack on plaintiff

because she was distracted by completing work on the computer are

sufficient to demonstrate discriminatory motive, plaintiff’s

reliance is misplaced. First, it is not clear how these

allegations show discriminatory intent based upon plaintiff’s

disability. Second, isolated acts of negligence of employees do

not come within the ambit of discrimination against disabled

persons proscribed by the ADA. See Foley v. City of Lafayette,

Indiana, 359 F.3d 925, 930 (7th Cir. 2004)(Allegations of

individual, isolated instances of employee negligence and not a

systemic problem with policies of the city do not constitute a

violation of the ADA; isolated acts of negligence by a city

employee do not come within the ambit of discrimination against

disabled persons proscribed by the ADA because the conduct was

neither a willful nor systematic effort on the part of the city to

deprive Robert the accommodation due him); see also Moore v.
5

 As noted in the Foley case, a Colorado state court case

illustrates this principle. See Pack v. Ark. Valley Corr.

Facility, 894 P.2d 34, 39 (Colo.Ct.App.1995). In Pack, the

plaintiff slipped and fell in the handicapped area of the parking

lot while visiting a correctional facility. Id. at 35. Along with

a negligence claim, the plaintiff alleged that he was disabled and

the accumulation of snow and ice in the parking lot violated the

ADA by effectively denying him access to the public facility. Id.

at 38. Applying 28 C.F.R. § 35.133, a regulation with language

identical to that in 49 C.F.R. § 37.161(a) and (c), the Colorado

court concluded that an isolated instance of alleged negligence by

agents of the state-in this case, the failure of prison employees

to remove the snow from the parking lot-could not violate the ADA,

which was "intended instead to prevent consistent and

discriminatory denial of access." Pack, 894 P.2d at 39.

22

Curtis, 68 Fed. Appx. 561, 563, 2003 WL 21397865 **2 (6th Cir.

2003)(Moore did not allege or show that the defendants deprived him

of any service, program, or activities because of his disability,

and his disputes with staff and his inmate assistants resulted in

only isolated instances where he missed meals or privileges).5 The

ADA proscribes consistent, systemic discrimination by a covered

entity, not isolated instances of employee negligence or improper

behavior. 

For the reasons cited above, Counts II and III of the

complaint must be dismissed.

D. The State Law Negligence Claim in Count IV:

Plaintiff brings a state law claim in Count IV against

the Florida Department of Corrections. Plaintiff relies on the

Court’s supplemental jurisdiction under 28 U.S.C. § 1367(a) to

justify bringing this claim in federal court.
23

“Absent a legitimate abrogation of immunity by Congress

or a waiver of immunity by the state being sued, the Eleventh

Amendment is an absolute bar to suit by an individual against a

state or its agencies in federal court....” See, Gamble v. Florida

Dept. of Health and Rehabilitative Services, 779 F.2d 1509, 1511

(11th Cir. 1986)(citations omitted). Moreover, “this will bar

damage awards against state officers sued in their official

capacities in suits brought in federal court pursuant to 42 U.S.C.

§ 1983....” Gamble, 779 F.2d at 1512.

States and state officials acting in their official

capacities are not persons for the purposes of lawsuits brought

pursuant to Title 42 U.S.C. § 1983. Will v. Michigan Dep’t of

State Police, 491 U.S. 58, 71, n. 10 (1989). A court shall

dismiss a case at any time if the court decides the action “seeks

monetary relief against a defendant who is immune from such

relief.” 28 U.S.C. §1915(e)(2)(B)(iii).

Because the federal claims which confer original

jurisdiction to the Court under 42 U.S.C. § 1983 should be

dismissed, the Court should decline supplemental jurisdiction and

dismiss the state law claim. See Walker v. Sun Trust Bank of

Thomasville, Ga., 2010 WL 165131 at *4 (11th Cir., Jan. 19,

2010)(internal citations omitted)(even if a court possesses subject

matter jurisdiction over state law claims by virtue of their close

connection to a federal claim, the court may decline to exercise
24

its jurisdiction over the state law claims where, among other

things, the court has dismissed all claims over which it had

original jurisdiction).

Additionally, plaintiff’s claim should be dismissed

because plaintiff has failed to allege or demonstrate that he has

complied with the conditions precedent to filing a state law claim

for negligence under section 768.28, Florida Statutes. See

Wagatha v. City of Satellite Beach, 865 So.2d 620, 622 (Fla. 5th DCA

2004). A plaintiff must plead compliance with the statute,

although a general averment will suffice. Motor v. Citrus County

Sch. Bd., 856 So.2d 1054 (Fla. 5th DCA 2003). “Under section

768.28(6), not only must the notice be given before a suit may be

maintained, but also the complaint must contain an allegation of

such notice.... Where the time for such notice has expired so that

it is apparent that the plaintiff cannot fulfill the requirement,

the trial court has no alternative but to dismiss the complaint

with prejudice.” Menendez v. North Broward Hosp. Dist., 537 So.2d

89, 91 (Fla.1988). Because plaintiff had failed to either allege

or demonstrate that he has complied with the statutory presuit

requirements, this the state law claim must be dismissed.

E. Plaintiff’s Claims For Injunctive and Equitable

Relief Are Moot:

Plaintiff’s prayer for relief includes requests for

equitable and injunctive relief mandating defendants’ obedience to

the laws cited in the complaint and enjoining defendants from
25

future violations of the state and federal laws cited in the

complaint. However, plaintiff’s release from incarceration in

March 2010 has mooted any claims for equitable and injunctive

relief as plaintiff is no longer subject to the custody and control

of defendants. See Mann v. McNeil, 360 Fed. Appx. 31 (11th Cir.

2010)(Mann contends that all of the alleged abuse by prison

officials stemmed from one initial complaint at his former prison,

for which he already received a prison transfer; thus, Mann's

current request for declaratory relief in the form of a prison

transfer is moot) citing to Smith v. Allen, 502 F.3d 1255, 1267

(11th Cir.2007) (“The general rule in our circuit is that a

transfer or a release of a prisoner from prison will moot that

prisoner's claims for injunctive and declaratory relief.”). 

F. The Eleventh Amendment Bars A Complaint for Damages

Against Defendants In Their Official Capacities:

It is not clear whether plaintiff sues defendants in both

their individual and official capacities. While plaintiff does

include a request for equitable and injunctive relief in the prayer

for relief, to the extent that plaintiff is suing defendants in

their official capacities for damages, this relief must be denied.

“Absent a legitimate abrogation of immunity by Congress

or a waiver of immunity by the state being sued, the Eleventh

Amendment is an absolute bar to suit by an individual against a

state or its agencies in federal court....” See, Gamble v. Florida

Dept. of Health and Rehabilitative Services, 779 F.2d 1509, 1511
26

(11th Cir. 1986)(citations omitted). Moreover, “this will bar

damage awards against state officers sued in their official

capacities in suits brought in federal court pursuant to 42 U.S.C.

§ 1983....” Gamble, 779 F.2d at 1512.

States and state officials acting in their official

capacities are not persons for the purposes of lawsuits brought

pursuant to Title 42 U.S.C. § 1983. Will v. Michigan Dep’t of

State Police, 491 U.S. 58, 71, n. 10 (1989). A court shall

dismiss a case at any time if the court decides the action “seeks

monetary relief against a defendant who is immune from such

relief.” 28 U.S.C. §1915(e)(2)(B)(iii).

Conclusion

For the foregoing reasons, defendants McNeil, GonzalezTorres, Wahl, and Lemon are entitled to dismissal of the amended

complaint.

Respectfully submitted,

BILL McCOLLUM

ATTORNEY GENERAL

/s/ Susan A. Maher 

SUSAN A. MAHER

CHIEF ASSISTANT ATTORNEY GENERAL

CORRECTIONS LITIGATION

FLORIDA BAR NO. 0438359

OFFICE OF THE ATTORNEY GENERAL

The Capitol, Suite PL-01

Tallahassee, Florida 32399-1050

(850) 414-3300 - Telephone

(850) 488-4872 - Facsimile

Email: susan.maher@myfloridalegal.com
27

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the

foregoing DEFENDANTS DEPARTMENT OF CORRECTIONS, GONZALEZ-TORRES,

LEMON, AND WAHL’S MOTION TO DISMISS THE AMENDED COMPLAINT has been

furnished electronically through the Court’s CM/ECF system to MARIE

A. MATTOX, ESQUIRE, Marie A. mattox, P.A., 310 East Bradford Road,

Tallahassee, Florida 32303, on this 7th day of June, 2010.

/s/ Susan A. Maher 

Susan A. Maher