This Response is one page over the page limit permitted by the Local Rules of this 1

Court. Plaintiff tried to consolidate his arguments but was unable to reduce them any further

than reflected herein. Defendant’s Motion exceeded the page limit by one page without

objection from Plaintiff and he respectfully requests that this Court accept this Response as being

one page over the page limit.

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA

PANAMA CITY DIVISION

MICHAEL J. LOEBER,

Plaintiff, Case No. 5:09cv402-RS/MD

v.

DEPARTMENT OF CORRECTIONS, 

STATE OF FLORIDA, LARRY CAMPBELL,

in his official capacity as Sheriff, Leon 

County, Florida, PRISON HEALTH SERVICES,

INC., DELIANA GONZALEZ TORRES, M.D., 

individually, ERIONG OKON ANDEM, M.D.,

individually, MARY COLLEEN WAHL, ARNP, 

individually, and PATRICIA LEMON, ARNP, 

individually, 

Defendants.

____________________________________________/

PLAINTIFF’S RESPONSE IN OPPOSITION TO DEFENDANTS’ MOTION TO

DISMISS AMENDED COMPLAINT1

Plaintiff MICHAEL J. LOEBER, through his counsel, hereby files his Response

in Opposition to Defendants’ Motion to Dismiss Amended Complaint, and states:
2

I. INTRODUCTION AND FACTS

This is an action brought by Plaintiff Michael Loeber (“Loeber” or “Plaintiff”)

against multiple defendants largely based on the withholding of necessary medical

treatment during his incarcerations at the Leon County Jail (“LCJ”), the Wakulla

Correctional Institute (“WCI”), and the Holmes Correctional Institute (“HCI”) (Amended

Complaint, ¶¶ 5, 14-20). 

Plaintiff suffers from Hepatitis-C. In the Affidavit filed as Exhibit 1, and in

Exhibits A-G referenced therein, Plaintiff has documented that he religiously and

meticulously followed the procedures for administrative grievance and appeal, while

housed at both WCI and HCI. His grievance history summarized in the paragraphs to

follow, supported by copies of grievance documents and responses, demonstrate complete

exhaustion of administrative remedies, the rather obvious actions of Defendant DOC

through its employees and representatives to thwart such exhaustion, and Plaintiff’s good

faith efforts to comply with all of the procedures in the PLRA. 

Preliminarily, at all times pertinent to this action, Plaintiff has suffered from

Hepatitis-C, had prior knowledge of his need for medication- specifically interferon and

ribavirin, communicated such knowledge to the Defendants, but was never given either

medicine. [Amended Complaint, ¶¶ 13, 16, 17]. Instead of the medicines he needed,

Plaintiff was administered lactulose. [Id., ¶¶ 16, 17]. 

While housed at WCI, Plaintiff submitted a series of grievances referenced by

Defendants under Log #09-6-02017. [See Doc 33, p. 4]. Prior to the document referenced
3

by the Defendant as “Log #09-6-02017" [Doc 33, pgs. 4], Plaintiff filed the documents

included in Exhibit A, filed herewith, which include: an “informal grievance” dated

November 17, 2008, a “formal” or “institutional grievance” dated December 12, 2008,

and a “formal appeal” of the response denying such formal grievance dated January 16,

2009. [Loeber Affidavit, ¶ 6]. His appeal was denied as untimely because, according to

the Defendant DOC, “the appeal must be received in the Office of the Secretary within

fifteen days of the institutional response.” 

Addressing such denial, Plaintiff maintains that each and every time he received

an institutional response denying a formal grievance, he proceeded to prepare and submit

an appeal to the DOC Secretary, either the very day he received the institutional response,

or the following day. [Id,,¶ 7] Specific to the appeal to the Secretary of his WCI

grievance, Plaintiff remembers having noticed that in mid-January 2009, he received a

response signed by Dr. Torres and by the Assistant Warden in mid-December, 2008, that

such delayed receipt was common, and that did not worry him as he understood that the

fifteen-day period for appealing to the Secretary began to run when he received an

institutional response, not when it was signed. [Loeber’s Affidavit, Exhibit 1, ¶ 8]. He

was thus timely as to the WCI grievances and appeals to the DOC Secretary.

Things were worse administratively at HCI, as none of the four formal/

institutional grievances he submitted there was ever acted upon, returned nor responded

to. [Id., ¶¶ 11, 15, 18, 20]. With the first of the four grievances, ultimately bearing

appeal Log #09-6-20644, [see Exhibit C hereto, not mentioned by the Defendants in their
4

Motion to Dismiss], that appeal was returned “for being in non-compliance with Chapter

33-103, Fla. Admin. Code, you did not provide this office with a copy of the institution’s

response to a formal grievance filed at the institutional level”. [Id., ¶ 10]. Further, while

that response granted Plaintiff an additional fifteen days to cure the deficiency, because

Plaintiff never received an institutional response from the HCI warden (and was not

permitted to copy his institutional submissions), he had nothing to add and thus could not

refile with the DOC Secretary within those fifteen days. [Plaintiff’s Affidavit, Exhibit 1,

¶¶ 11, 12].

Further, while Plaintiff was not aware of it at the time such appeal was denied, he

was later informed (in response to his subsequent appeal bearing Log #09-6-25622) that

his institutional grievance in connection with appeal #09-6-20644 was “inadvertently

forwarded to [the DOC Secretary’s] office in error”. [Id., ¶ 13]. Thus, at the exact same

time Defendant DOC was denying Plaintiff’s appeal and “offering” him fifteen additional

days to cure by supplementing documents he didn’t have (and could not have had because

the Warden at HCI never responded), DOC itself had in its possession the original of

Plaintiff’s institutional grievance, the very possession of which also evidenced the HCI

warden’s absence of a response. Then, instead of clipping one document (the

“inadvertently forwarded” institutional grievance) to another (the naked appeal), DOC

“offered” Plaintiff fifteen days to produce a document it knew he didn’t have! [Id., ¶ 13].

Addressing the second HCI appeal, Exhibit D hereto, referenced by these

Defendants under Log #09-6-22583 [Doc 33, pg. 4], Plaintiff was able to obtain a copy of
5

his informal grievance dated July 9, 2009 (although he was not able to obtain a copy of

the associated formal grievance), and of his formal appeal dated July 16, 2009. [Id., ¶ 14]. 

Again the appeal was denied (“returned without action”), “for being ‘in non-compliance

with Chapter 33-103.006... You did not provide this office with a copy of the formal

grievance filed at the institutional level.’” [Id.]. Again, Plaintiff remembers both

submitting such a formal grievance (following the informal grievance he managed to

retain), and also receiving neither a response nor verification of receipt of such formal

grievance. [Id., ¶ 15].

Plaintiff’s third HCI appeal dated July 18, 2009, [see Exhibit E hereto], was never

(to Plaintiff’s knowledge) assigned a log number [id., ¶ 16], and is also not mentioned in

Defendants’ Motion, Doc 33. Plaintiff submitted–and made a copy of–a handwritten

recitation of July 15, 2009, setting forth from memory the content of his earlier related

informal grievance. [Id.]. Having submitted that appeal on DOC Form No. DC6-236

[rather than the correct Form No. DC1-303], that appeal was “received back unanswered

Thursday July 23, 2009,” and generated a memorandum from the DOC through R.

Padgham admonishing Plaintiff to “use proper forms when submitting a grievance” [Id.].

As for the third HCI appeal, Plaintiff states that he asked a “law clerk” on duty at

HCI for the proper form for an appeal to the Secretary, [and] on that occasion he couldn’t

locate one, went in to see the DOC officer in charge of the library for advice, and upon

exiting that officer’s office handed [Loeber] a blank form DC6-236 with the instructions
6

‘this will work.’” [Id., ¶ 18]. This appeal was submitted but not acted upon by HCI. [Id.,

¶ 19]. 

In connection with his fourth and final HCI appeal, Exhibit F hereto, bearing Log

#09-6-25622 and again not mentioned by the Defendants in their Motion [Doc 33], that

appeal was “returned without action” with the notation “your time frame to grieve this

disciplinary report has expired”. [Id., ¶ 19]. More specifically, in addition to being the

“response” that informed Plaintiff that DOC had “inadvertently” received the institutional

grievance associated with his earlier appeal, the response to appeal #09-6-25622

evidenced that someone at DOC understood that such appeal was a procedurally errant

follow-up of appeal #09-6-20644 rather than a separate appeal of a separate institutional

grievance. 

Significantly, in his appeal #09-6-25622, Plaintiff told DOC that he had submitted

both informal and formal grievances to HCI, which grievances were neither acted upon,

returned nor responded to, and of which he was not able to make copies. [Id., ¶ 20]. 

Focusing solely on HCI, Plaintiff never received a response to, nor even a confirmation of

receipt of, any of the four institutional grievances submitted to therein to the HCI warden. 

Finally, out of pure frustration, Plaintiff submitted one last “global appeal” to the

DOC Secretary, dated December 1, 2009, Exhibit G hereto. Not surprisingly, that too

received no response [Id., ¶ 21].
7

II. STANDARD FOR MOTION TO DISMISS

“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.’” Erickson v. Pardus, 127 S.Ct.

2197, 2200, 167 L.Ed.2d 1081 (2007). “[W]e do not require heightened fact pleading of

specifics, but only enough facts to state a claim to relief that is plausible on its face.” Bell

Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1974 (2007). The Supreme Court has

clarified that to satisfy Rule 8, “factual allegations must be enough to raise a right to relief

above the speculative level.” Id. “[F]actual content that allows the court to draw the

reasonable inference that the defendant is liable for the misconduct alleged” must be pled. 

Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009). Plaintiff has satisfied his burden.

III. THE PLRA DOES NOT BAR PLAINTIFF’S CLAIMS

A. Plaintiff Exhausted all Administrative Remedies

In Kozuh v. Nichols, 185 Fed.Appx. 874 (11 Cir. 2006), the Eleventh Circuit set th

forth the grievance requirements set forth in the Florida Administrative Code, articulating

a three-step procedure for most grievances and a two-step procedure for the medical

grievances at issue, as follows:

In Florida, the grievance process consists of a three-step procedure. An inmate

must first file an “informal grievance to the staff member who is responsible in

the particular area of the problem.” Fla. Admin. Code § 33-103.005(1). The

second step requires the inmate file a formal grievance with the warden. Id. § 33-

103.006(1)(a). If the inmate is unsuccessful at this point, he may submit an appeal

to the Secretary of the DOC. Id. § 33-103.007. 

Medical grievances require only a two-step procedure: the inmate must file a

formal grievance at the institutional level with the chief health officer. If the
8

inmate is unsuccessful, he may file an appeal with the Secretary. Id. § 33-

103.008.

Kozuh, 185 Fed.Appx. at 877 (footnote omitted).

In the instant case, Plaintiff properly submitted at the institutional level and

through appeal to the DOC Secretary five different grievances, all pertinent to the

treatment and medication for his Hepatitis-C. [See Introduction and Statement of Facts,

supra, and Loeber Affidavit, filed as Exhibit 1, passim]. While the appeal of Plaintiff’s

WCI grievance bearing Log #09-6-02017 was denied because “the appeal must be

received in the Office of the Secretary within fifteen days of the institutional process,” the

timing of Plaintiff’s appeal was due entirely to DOC, through its employees and agents,

not having delivered WC’s response to Plaintiff’s institutional grievance until after the

running of those fifteen days. There are no other actions required by Plaintiff with

respect to WCI. 

Similarly, the appeal of Plaintiff’s HCI grievance bearing Log # 09-6-20644 was

denied based on his failure to attach “the institution’s response to a formal grievance filed

at the institutional level.” While the response to such appeal granted Plaintiff fifteen

additional days within which to attach such institutional response, he could never obtain

such a response, and thus had nothing to supplement during those fifteen days. Further,

and unbeknownst to Plaintiff at that time, at the very moment DOC’s Bureau of

Grievance Appeals was denying this appeal for failure to attach “the institution’s

response,” it had in its possession, the related institutional grievance earlier submitted by
9

Plaintiff, which showed that HCI failed to respond to his grievance. There was no other

appeal available to Plaintiff after that response. 

The appeal of Plaintiff’s second HCI grievance, and third overall, bearing Log

#09-6-22583, was denied for failure to “provide this office with a copy of the formal

grievance filed at the institutional level.” While Plaintiff specifically remembers

submitting such a grievance, he was not permitted to make a copy for himself, never

received any response thereon from the Warden, and thus had nothing to attach to his

appeal. In any event, he had once again exhausted all available administrative remedies.

Plaintiff’s appeal of July 18, 2009, to his knowledge unnumbered, may or may not

be deemed to have satisfied the exhaustion requirement. Given his good faith efforts, and

inability to obtain Form No. DC1-303 from the library at HCI, plus the communication

from the DOC officer in charge of the HCI library through an inmate-law clerk about

Form No. CD6-236 working in its place, it is Plaintiff’s position that he also exhausted

administrative remedies with regard to this appeal as he filed the appeal on the only form

available that was provided to him through a law clerk at the direction of a DOC officer.

Lastly, Plaintiff’s appeal bearing Log #09-6-25622 appears to have been

understood as a procedurally errant follow-up of earlier appeal #09-6-20644, submitted

without the institution’s grievance response, and was denied as untimely. That said,

notwithstanding Plaintiff having in fact timely submitted a new institutional grievance (as

earlier instructed), which institutional grievance–if returned– would serve to make timely
10

appeal #09-6-25622, once again Plaintiff fully exhausted the administrative remedies

available to him.

B. Plaintiff’s Attempts to Comply with the PLRA were Thwarted

by DOC and thus, his Failure to Exhaust is Excused

In the event this Court finds that Plaintiff somehow failed to satisfy the PLRA

exhaustion requirement, the PLRA and cases in every jurisdiction that has addressed the

issue make clear that Plaintiff was only obligated to exhaust administrative remedies

actually “available” to him, and that he could not be required to exhaust theoretical

remedies made unavailable to him by Defendants (or for that matter, by anyone else). 

This was stated most succinctly in Miller v. Norris, 247 F.3d 736 (8 Cir 2001), on facts th

precisely like those at bar in which a plaintiff alleged in detailed and nonconclusory

fashion that his non-exhaustion was due to the fact that the Department of Corrections

would not provide the forms he requested for filing a grievance. Vacating dismissal, the

court held as follows:

. . . Mr. Miller alleged facts... that may establish compliance with the statutory

exhaustion requirement. The statute provides that “no action shall be brought

with respect to prison conditions under section 1983 by a prisoner confined in any

jail, prison, or other correctional facility until such administrative remedies as are

available are exhausted”; see s. 1997e(a). This provision does not require

exhaustion of all remedies; it requires the exhaustion of “such administrative

remedies as are available.” Although the PLRA does not provide a definition, the

plain meaning of the term “available” is “capable of use for the accomplishment

of a purpose; immediately utilizable, accessible”; see Webster’s Third New

International Dictionary.

We believe that a remedy that prison officials prevent a prisoner from “utilizing”

is not an “available” remedy under § 1997e(a), and that Mr. Miller’s allegations
11

raise an inference that he was prevented from utilizing the prison’s administrative

remedies.

Miller, 247 F.3d at 740 (emphasis in original and citations to authority omitted).

The Eleventh Circuit recognized this obvious and essential defense, labeling it

with the word “thwarted,” in Kozuh, supra, and applied it two years later in Turner v.

Burnside, 541 F.3d 1077 (11 Cir. 2008). In Turner, after alleging his satisfaction of the th

grievance procedures in effect at Men’s State Prison in Hardwick, Georgia, the plaintiff

further alleged that “[Warden] Meadows then tore up Turner’s [administrative] complaint

in front of him,” Turner, 541 F.3d at 1081, the functional equivalent of the averment at

bar that Plaintiff’s myriad of formal grievances at HCI were “neither acted upon, returned

nor responded to.” [See Introduction and Statement of Facts, infra.] In Turner, the

Eleventh Circuit held:

We reject the defendants’ arguments that Turner was required to file an additional

grievance or to seek leave to file an out-of-time grievance. Turner alleges that he

properly filed his formal grievance but that Warden Meadows tore it up. Nothing

in [Georgia] SOP IIB05-0001, the applicable prison regulation, requires an inmate

to grieve a breakdown in the grievance process. Nor does anything in the SOP

require an inmate to seek leave to resubmit the same grievance to the same official

who destroyed the evidence when it was properly filed as a matter of right. The

PLRA requires that inmates exhaust their available administrative remedies. 42

U.S.C. § 1997e(a). It does not require inmates to craft new procedures when

prison officials demonstrate... that they will refuse to abide by the established ones

[citation omitted].

Turner, 541 F.3d at 1083.

In the event one or more of Plaintiff’s five administrative grievances on treatment

and medication of his Hepatitis-C were deemed by this Court to have been aborted short
12

of exhaustion, the facts surrounding any such failure of exhaustion surely evidence that

Plaintiff was thwarted from exhausting the required remedies. For appeal #09-6-02017

from Plaintiff’s WCI grievance, if the untimeliness of Plaintiff’s response were deemed a

failure or exhaustion, self-evidently, such untimeliness was due to one thing and one

thing only: the failure of the WCI warden and his staff to deliver their response to

Plaintiff’s institutional grievance within fifteen days of its signing.

For appeal #09-6-20644, in the event Plaintiff’s failure to attach a document he

never received was deemed a failure of exhaustion, DOC’s undisputed actions on this

appeal provide the clearest evidence of thwarting imaginable. That is, at the very moment

it was denying Plaintiff’s appeal for failure to attach the HCI warden’s response to his

earlier institutional grievance, DOC’s Bureau of Grievance Appeals actually had that

institutional grievance it its possession, thus guaranteeing that no response could have

come from HCI’s warden!

For appeal #09-6-22583, should denial for failure to “provide this office with a

copy of the formal grievance” be deemed a failure of exhaustion, the reason that Plaintiff

did not provide that copy is that the HCI warden simply did not respond to Plaintiff’s

institutional grievance thus the quintessential “thwarting” under the law.

For Plaintiff’s unnumbered appeal dated July 18, 2009, which was received back

unanswered Thursday July 23, 2009, the failure to locate a proper form for appeal by the

DOC officer in charge of the library at HCI, coupled with that officer having

communicated to Plaintiff through an inmate-law clerk that “this will work” (in
13

connection with the wrong form), constitutes rather obvious thwarting of the proper

completion of Plaintiff’s appeal.

Lastly, for appeal #09-6-25622, should this Court determine return thereof by the

DOC as untimely as a failure of exhaustion, the facts explained above again involving an

absence of any response at the institutional level, which led DOC’s Bureau of Grievance

Appeals to treat the appeal as an untimely follow-up of an earlier grievance and appeal,

once again constituted an act thwarting Plaintiff’s good faith efforts to exhaust

administrative remedies (and through those remedies, to obtain the medication he

needed).

That said, nowhere in the PLRA, the Florida Administrative Code, any case

authority or even these Defendants’ motion papers is it even suggested that a plaintiff

must exhaust administrative remedies five different times. At bar, Plaintiff either

exhausted five times, or the number of times he exhausted and the number of times he

was truly thwarted sums to five. One exhaustion is enough to avoid dismissal; five shows

incredible patience and fortitude.

C. The Filing of an Amended Complaint Absolved Plaintiff of Complying 

with the Conditions Precedent in the PLRA

On pages 10 and 11 of their Motion [Doc 33], Defendants correctly anticipate

Plaintiff’s argument that in the event that he is found not to have properly exhausted the

administrative remedies under the PLRA, that the filing of an amended complaint, post

release, means that he PLRA no longer applies. 
14

Plaintiff filed an Amended Complaint after he was released from prison. He was

not incarcerated at the time the Amended Complaint was filed. The filing of an amended

complaint is the “functional equivalent of filing a new complaint.” Barnes v. Briley, 420

F.3d 673, 678 (7 Cir. 2005). In Barnes, the court allowed a prisoner to amend his th

complaint to include claims that were exhausted during the pendency of his suit. Barnes

had filed his original complaint pro se. Through counsel, he later filed an amended

complaint which the court found to be the equivalent of a new complaint. Given this

analysis in Barnes, the PLRA’s exhaustion requirement no longer applies to the Plaintiff

in this case as he was no longer in prison when the Amended Complaint was filed. See

Barnes, 420 F.3d at 678; Minix v. Pazera, 2007 WL 4233455, *4 (N.D.Ind. 2007)(not

reported) (once the plaintiff was released from custody and amended his complaint, the

requirements of the PLRA no longer applied); see also Robbins v. Switzer, 104 F.3d 895

(7 Cir. 1997)(PLRA found not to apply to appeals filed after plaintiff was released from th

prison).

Relying upon a single Sixth Circuit authority on point, Cox v. Mayer, 332 F.3d

422 (6 Cir. 2003), Defendants do not present a sensible rationale in support of the th

position that the exhaustion requirement still pertains, even with regard to an amended

complaint following Plaintiff’s release from prison. Preliminary to analyzing Cox, which

relies on Eleventh Circuit precedent interpreting a different section of the PLRA, the law

is clear that the exhaustion requirement of §1997e(a) does not apply to a lawsuit on

prison conditions initiated subsequent to a prisoner’s release. See Greig v. Goord, 169
15

F.3d 165 (2 Cir. 1999). Thus, the question before this court–one of first impression in nd

this circuit–is whether such a requirement pertains to claims pled in an amended

complaint filed subsequent to release, when the plaintiff was incarcerated upon filing his

original complaint.

In Minix v. Pazera, 2007 WL 4233455 (N.D.Ind. 2007), the court broadened the

Seventh Circuit’s earlier decision in Barnes v. Briley, 420 F.3d 673, opining that “once

Mr. Zick was released from custody, the PLRA no longer applied, so he sought to amend

his complaint. The filing of plaintiffs’ amended complaint was the equivalent of filing a

new complaint. When he filed the amended complaint, Mr. Zick was no longer

incarcerated and so no longer subject to the PLRA requirements.” Minix, 2007 WL

4233455 at *5.

In a several decisions from the Southern District of New York, Morris v. Eversley,

205 F.Supp.2d 434 (S.D.N.Y. 2002) (“Morris I”), and Morris v. Eversley, 343 F.Supp.2d

234 (S.D.N.Y. 2004) (“Morris II”), the court first sensibly held failure of exhaustion

dismissal not to pertain in the context of post-release amendment (Morris I), and then

provided case authorities and analysis supportive of that holding. The court held that

“considerations of judicial efficiency and economy advise against dismissal of Morris’

claims.” Morris I, 205 F.Supp.2d at 241. The same rationale applies here. 

IV. PLAINTIFF’S EIGHTH AMENDMENT CLAIMS AGAINST THE

INDIVIDUAL DEFENDANTS SHOULD NOT BE DISMISSED

In Section B of Doc 33, the Individual Defendants argue that Plaintiff’s Eighth
16

Amendment claims in Count I are insufficiently pled, based on the heightened pleading

standard. Defendants are wrong. 

Under the heightened pleading standard, the plaintiff is required to provide facts

with “sufficient detail for Defendants to understand what alleged rights were violated . . .

and which of their actions allegedly violated those rights,” as well as “for the court to

determine whether those facts indeed set our a violation of rights and whether those rights

were clearly established when these incidents occurred.” Amnesty Int’l, USA v. Battle,

559 F. 3d 1170, 1180 (11 Cir. 2009). th

Recently, the Eleventh Circuit addressed the same issue presented sub judice in

Harper v. Lawrence County, 592 F.3d 1227 (11 Cir. 2010). The Harper court affirmed

th

in pertinent part denial of a motion to dismiss in an inmate deliberate indifference to

medical needs case where the pleadings were similar to those at bar.

In Harper, the court analyzed the claims under a two step framework: first, the

court is to determine “whether the [defendant’s] conduct amounted to a constitutional

violation,” and second, the court is to “analyze[ ] whether the right violated was ‘clearly

established’ at the time of the violation.” Id. at 1233 (quoting Lewis v. City of West

Palm Beach, Fla., 561 F.3d 1288, 1291 (11 Cir. 2009)). th

“To perform the first step of the qualified immunity analysis, we must determine

whether Plaintiff properly stated a ‘personal participation’ claim for deliberate

indifference under the Fourteenth Amendment” against the individual defendants. Id. at

1234. The plaintiff must sufficiently allege “both an objective serious medical need and
17

that a Defendant acted with deliberate indifference to that need.” Id. (quoting Burnette v.

Taylor, 533 F.3d 1325, 1330 (11 Cir. 2008). To establish “deliberate indifference,” the th

Plaintiff must demonstrate that the individual defendants “(1) had subjective knowledge

of a risk of serious harm; (2) disregarded that risk; and (3) acted with more than gross

negligence.” Id. He is also required to show that the individual defendants’ conduct

caused his injuries. Id. 

With respect to each Individual Defendant, Plaintiff has alleged the following:

TORRES: Torres is a physician employed as Chief Health Official of Wakulla

Correctional Institution (WCI). [Amended Complaint, ¶ 9]. Plaintiff communicated his

medical condition directly to Torres, including his need for interferon and/or ribavirin.

[Amended Complaint, ¶ 17]. Despite such direct communication, Torres administered

only lactulose to Plaintiff. [Amended Complaint, ¶ 17]. Torres knew that failure to

provide timely treatment or medication would result in serious medical consequences,

including death. [Amended Complaint, ¶ 24]. Torres had notice of inadequate custodial,

medical, and diagnostic care of Plaintiff [Amended Complaint, ¶ 25]. Torres failed to

establish or implement policies to treat Plaintiff’s serious condition. [Amended

Complaint, ¶ 25]. Torres was deliberately indifferent to, and recklessly disregarded,

Plaintiff’s medical care. [Amended Complaint, ¶ 27]. Torres deprived Plaintiff of the

means of assisting in his own health care. [Amended Complaint, ¶ 27]. Torres failed to

provide Plaintiff with necessary health therapies. [Amended Complaint, ¶ 27]. Torres

failed to follow-up on Plaintiff’s serious health problems. [Amended Complaint, ¶ 27]. 
18

Torres failed to timely respond to Plaintiff’s medical needs. [Amended Complaint, ¶ 27]. 

Torres failed to provide Plaintiff with timely and necessary medical care. [Amended

Complaint, ¶ 27]. Torres did not permit others to provide Plaintiff with timely and

necessary medical care. [Amended Complaint, ¶ 27]. Torres recklessly deviated from

reasonably acceptable standards of medical care in failing to provide Plaintiff with

necessary medical interventions. [Amended Complaint, ¶ 27]. Torres knew that failure to

provide Plaintiff adequate medical care would result in substantial risk to Plaintiff’s

health, including the risks of death and permanent injury. [Amended Complaint, ¶ 27]. 

The medical services provide by Torres to Plaintiff were so grossly substandard as to

amount to no medical care at all. [Amended Complaint, ¶ 27].

WAHL: Wahl is a nurse practitioner employed by the DOC and providing

services at HCI . [Amended Complaint, ¶ 11]. Plaintiff communicated his medical

condition on multiple occasions directly to Wahl, including his need for interferon and/or

ribavirin. [Amended Complaint, ¶ 16]. Despite such direct communication, Wahl

administered only lactulose to Plaintiff. [Amended Complaint, ¶ 16]. Wahl knew that

failure to provide timely treatment or medication would result in serious medical

consequences, including death. [Amended Complaint, ¶ 24]. Wahl had notice of

inadequate custodial, medical, and diagnostic care of Plaintiff [Amended Complaint, ¶

25]. Wahl failed to establish or implement policies to treat Plaintiff’s serious condition.

[Amended Complaint, ¶ 25]. Wahl was deliberately indifferent to, and recklessly

disregarded, Plaintiff’s medical care. [Amended Complaint, ¶ 27]. Wahl deprived
19

Plaintiff of the means of assisting in his own health care. [Amended Complaint, ¶ 27]. 

Wahl failed to provide Plaintiff with necessary health therapies. [Amended Complaint, ¶

27]. Wahl failed to follow-up on Plaintiff’s serious health problems. [Amended

Complaint, ¶ 27]. Wahl failed to timely respond to Plaintiff’s medical needs. [Amended

Complaint, ¶ 27]. Wahl failed to provide Plaintiff with timely and necessary medical

care. [Amended Complaint, ¶ 27]. Wahl did not permit others to provide Plaintiff with

timely and necessary medical care. [Amended Complaint, ¶ 27]. Wahl recklessly

deviated from reasonably acceptable standards of medical care in failing to provide

Plaintiff with necessary medical interventions. [Amended Complaint, ¶ 27]. Wahl knew

that failure to provide Plaintiff adequate medical care would result in substantial risk to

Plaintiff’s health, including the risks of death and permanent injury. [Amended

Complaint, ¶ 27]. The medical services provide by Wahl to Plaintiff were so grossly

substandard as to amount to no medical care at all. [Amended Complaint, ¶ 27].

LEMON: Lemon is a nurse practitioner employed by the DOC and providing

services at WCI . [Amended Complaint, ¶ 12]. Plaintiff communicated his medical

condition directly to Lemon, including his need for interferon and/or ribavirin. [Amended

Complaint, ¶ 17]. Despite such direct communication, Lemon administered only

lactulose to Plaintiff. [Amended Complaint, ¶ 17]. Lemon knew that failure to provide

timely treatment or medication would result in serious medical consequences, including

death. [Amended Complaint, ¶ 24]. Lemon had notice of inadequate custodial, medical,

and diagnostic care of Plaintiff [Amended Complaint, ¶ 25]. Lemon failed to establish or
20

implement policies to treat Plaintiff’s serious condition. [Amended Complaint, ¶ 25]. 

Lemon was deliberately indifferent to, and recklessly disregarded, Plaintiff’s medical

care. [Amended Complaint, ¶ 27]. Lemon deprived Plaintiff of the means of assisting in

his own health care. [Amended Complaint, ¶ 27]. Lemon failed to provide Plaintiff with

necessary health therapies. [Amended Complaint, ¶ 27]. Lemon failed to follow-up on

Plaintiff’s serious health problems. [Amended Complaint, ¶ 27]. Lemon failed to timely

respond to Plaintiff’s medical needs. [Amended Complaint, ¶ 27]. Lemon failed to

provide Plaintiff with timely and necessary medical care. [Amended Complaint, ¶ 27]. 

Lemon did not permit others to provide Plaintiff with timely and necessary medical care.

[Amended Complaint, ¶ 27]. Lemon recklessly deviated from reasonably acceptable

standards of medical care in failing to provide Plaintiff with necessary medical

interventions. [Amended Complaint, ¶ 27]. Lemon knew that failure to provide Plaintiff

adequate medical care would result in substantial risk to Plaintiff’s health, including the

risks of death and permanent injury. [Amended Complaint, ¶ 27]. The medical services

provide by Lemon to Plaintiff were so grossly substandard as to amount to no medical

care at all. [Amended Complaint, ¶ 27].

Additionally, Loeber’s rights were clearly established at the time of the denial of

care. Hepatitis is commonly known to be a serious medical need. Allen v. Burnside, 

2007 WL 2904018 (M.D. Ga. 2007). “Courts have defined a ‘serious medical need’ as

‘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
21

attention.’” Id. (quoting Brown v. Johnson, 387 F.3d 1344, 1351 (11th Cir.2004); see also

Hill v. DeKalb Regional Youth Development Center, 40 F.3d 1176, 1188 (11th

Cir.1994). The Eleventh Circuit has held that hepatitis specifically meets the definition

of a serious medical need that “if left unattended, poses a substantial risk of serious

harm.” Id.

Even where treatment is eventually provided, an inordinate delay in treatment can

constitute deliberate indifference. Whether a delay in treatment is constitutionally

tolerable “depends on the nature of the medical need and the reason for the delay.”

Farrow v. West, 320 F.3d 1235, 1247 (11th Cir.2003) (quoting Harris v. Coweta County,

21 F.3d 388, 393-94 (11th Cir.1994)). In Farrow, the defendant prescribed dentures for

the plaintiff, but the plaintiff did not receive the dentures for nearly eighteen months,

during which time the plaintiff suffered bleeding and sore gums, the inability to eat solid

food, and weight loss. Although the Plaintiff in the instant case is not at the point of

offering medical testimony about the effects of the denial of medical care by the

Defendants, his pleadings are nevertheless sufficient to show that the delay/denial

constituted deliberate indifference. Hepatitis is a more serious medical need than the

need for dentures, even in the absence of readily observable symptoms. Allen, 2007 WL

2904018, *4. When the seriousness of the medical condition is combined with the

“recognized need for . . . treatment, . . . the sheer length of the delay involved, and the

lack of any reasonable explanation for the inordinate delay”(see Farrow, 320 F.3d at
22

1247), it would be reasonable for a jury to conclude that the delay manifested deliberate

indifference to Plaintiff's serious medical needs. Allen, 2007 WL 2904018, *4. 

Given the holding of Brown v. Johnson, qualified immunity does not protect the

Defendants from liability. Qualified immunity protects public officials from civil liability

unless their actions violate “clearly established statutory or constitutional rights of which

a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).

A right is clearly established if there is existing law that would give the defendant “fair

warning” that his conduct would deprive the plaintiff of a constitutional right:

For a constitutional right to be clearly established, its contours must be

sufficiently clear that a reasonable official would understand that what he is doing

violates that right. This is not to say that an official action is protected by qualified

immunity unless the very action in question has previously been held unlawful,

but it is to say that in the light of pre-existing law the unlawfulness must be

apparent.

Hope v. Pelzer, 536 U.S. 730, 739 (2002). 

In this case, it is clearly established by Eleventh Circuit precedent that Hepatitis is

a serious medical condition and that delay in or denial of treatment can result in serious

harm. Brown was published in 2004, three to four years before the denial of medical care

in this case. If the individual defendants are responsible for the delays in and providing

no treatment, they had fair warning to know that this delay was in violation of clearly

established law.

These allegations meet the heightened pleading requirements as set forth in

Harper and show notice to each Defendant of the serious need for medical treatment, a
Significantly, Bender v. Regier, 385 F. 3d 1133 (8 Cir. 2004), was decided on a 2 th

summary judgment motion and not a motion to dismiss. Defendants have argued in the instant

case “facts”, like those that were argued in Bender, rather than considering whether Plaintiff has

met his pleading obligations as set forth in Harper. Arguing the “facts” at this stage is improper. 

23

substantial risk of serious harm to Loeber and the failure to take reasonable measures to

alleviate that risk and/or disregarded of the risk of serious harm to Loeber. Nothing more

is required at this stage. 

2

VI. PLAINTIFF’S ADA AND REHABILITATION ACT CLAIMS AGAINST

DOC SHOULD NOT BE DISMISSED

Defendants cite a litany of cases in their attempting to convince this Court that

neither the ADA nor the Rehabilitation Act are broad enough to cover the Plaintiff’s

claims in this case. Defendants are wrong. 

First as to the ADA, in Kruger v. Jenne, 164 F.Supp.2d 1330 (S.D.Fla. 2000), the

court specifically recognized a cognizable ADA claim by an inmate for disability

discrimination for failure to make reasonable accommodation. Kruger, 164 F.Supp.2d at

1337-1338. In his Amended Complaint, Plaintiff specifically articulates

accommodations he needed and requested due to his disability: while at WCI, “light duty

and frequent rest” in connection with the prison’s work detail [Amended Complaint, ¶

19]; at HCI, active monitoring of his dormitory area to protect him from other inmates,

due to his weakened condition arising out of the Hepatitis-C. [Amended Complaint, ¶

20].
24

And in a decision authored just two months ago, the court in Carter v. Georgia

Dept. of Corrections, 2010 WL 1931097 (M.D.Ga. 2010), held that the denial of medical

treatment to an inmate “‘by reason of’ his disabilities” constitutes a predicate for a

cognizable ADA claim. Carter, 2010 WL 2931097 at *1. Such an allegation is central to

the ADA claim pled by Plaintiff: “Defendant DOC’s intentional refusal to accommodate

the needs of Plaintiff by failing to provide him with the necessary medical care and

treatment for his condition and then, on one occasion referenced herein, demanding that

Plaintiff work when he was unable to do so, violated the act”. [Amended Complaint, ¶

40]. Plaintiff has further averred that “[i]nstead of accommodating Plaintiff’s needs, the

DOC denied him services and/or programs available to others that could have treated

him. . . Specifically, Plaintiff could have benefitted from therapies and medications to

address his serious health condition that rose to the level of a disability.” [Id., ¶ 42].

The ADA “unmistakably includes State prisons and prisoners within its

coverage.” Pennsylvania Dep't of Corr. v. Yeskey, 524 U.S. 206, 209, 118 S.Ct. 1952,

141 L.Ed.2d 215 (1998). The Supreme Court has also noted that “it is quite plausible that

the alleged deliberate refusal of prison officials to accommodate [an inmate's]

disability-related needs in such fundamentals as . . . medical care . . . constitute[s]

exclusion from participation in or ... denial of the benefits of the prison's services,

programs, or activities.” United States v. Georgia, 546 U.S. 151, 157 (2006) (alterations

and internal quotation marks omitted). The issue is under what circumstances does the

ADA afford a remedy when a plaintiff alleges denial of medical treatment.
25

Addressing this question, courts have distinguished between claims asserted under

the ADA that allege that the medical treatment that a plaintiff received or had access to

was inadequate, versus claims alleging that a plaintiff was discriminatorily precluded

from access to medical treatment altogether. See, e.g., Buchanan v. Maine, 469 F.3d 158,

174 (1st Cir.2006); Rashad v. Doughty, 4 Fed.Appx. 558, 560 (10th Cir. Jan.29, 2001)

(unpublished) (noting that allegations that a disabled prisoner has been denied

medical-related services that have been provided to other prisoners may state an ADA

claim); Moore v. Prison Health Servs., Inc., 1999 WL 1079848, *1 (10th Cir. 1999)

(unpublished table opinion)(holding that the ADA affords “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”).

Turning to the Amended Complaint filed by Loeber in this case, he alleges that 

DOC completely denied him access to medical treatment for his disability, Hepatitis-C,

and made him engage in activities that he could not perform. These allegations reveal

that Loeber has proffered facts that create a plausible inference of discriminatory denial of

access to medical care. Taken together, these allegations suffice to plead a claim that he

was discriminatorily denied access to medical care in contravention of Title II of the

ADA and the Rehabilitation Act by DOC. See Hughes v. Colorado Dept. of Corrections,

594 F.Supp.2d 1226, 1241-42 (D.Colo. 2009).
Had DOC removed this case to this Court, the outcome for this claim would likely 3

have been different.

26

Accordingly, both Plaintiff’s ADA claim and his Rehabilitation Act claims

against DOC state legally cognizable causes and should not be dismissed.

VII. PLAINTIFF’S STATE LAW NEGLIGENCE CLAIM IN COUNT IV

Plaintiff agrees that this claim should be dismissed based on sovereign immunity

under Chapter 768, Florida Statutes. Although Plaintiff can plead compliance with the

presuit notice requirements under §768.28, Florida Statutes, it appears that sovereign

immunity bars this claim in this Court.

3

VIII. PLAINTIFF’S REQUESTS FOR INJUNCTIVE 

AND EQUITABLE RELIEF ARE NOT MOOT

Regrettably, due to his recent repeat incarceration, Plaintiff’s requests for

injunctive and equitable relief are not moot.

XI. ELEVENTH AMENDMENT DAMAGES

Plaintiff does not seek damages against DOC or against Defendants in their

official capacities- he is seeking prospective injunctive relief against these Defendants on

his Eighth Amendment claims. There is no bar on damages under the ADA or the

Rehabilitation Act against the State, only on his claims brought under §1983. As such,

Plaintiff agrees with Defendants. 

X. CONCLUSION

Plaintiff respectfully requests that the Court deny Defendant’s Motion to Dismiss.
27

Respectfully submitted,

/s/ Marie A. Mattox

Marie A. Mattox [FBN 0739685]

MARIE A. MATTOX, P.A.

310 East Bradford Road

Tallahassee, FL 32303

Telephone: (850) 383-4800

 Facsimile: (850) 383-4801

ATTORNEY FOR PLAINTIFF

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and accurate copy of the foregoing has been

furnished to all counsel of record through CM/ECF this 15 day of July, 2010. th

/s/ Marie A. Mattox

Marie A. Mattox