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 ANDEM’S MOTION TO DISMISS

Defendant, DR. EFIONG ANDEM, through counsel, moves to

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

support, defendant submits 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 filed, plaintiff was still in the custody of the Department of

Corrections and was housed at Holmes Correctional Institution
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(“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

medications interferon and/or ribavirin, on multiple occasions to

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

dormitory. (Amended Complaint, Doc. 30 at 7, ¶20.)
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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
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 Nowhere in his grievances does plaintiff raise an issue

under the Americans With Disabilities Act or Section 504 of the

Rehabilitation Act of 1973. 

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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 its 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 Defendant Andem:

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. Defendant does 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). 

The complaint presents only 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 defendant of what actions taken by him support the

plaintiff’s claim that 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 made 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
3

 There is not a single factual allegation made in the

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

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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

implement policies to treat Plaintiff’s serious medical

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

does plaintiff state how defendant was 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 defendant in

this regard. Plaintiff further asserts through general and broad

allegations that defendant was 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
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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 The most that can be gleaned from the complaint is that

plaintiff wanted treatment with interferon and/or ribavirin and

that defendant (and presumably all four individually named

defendants of the Department of Corrections) denied that particular

course of 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
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was arrested and placed in county jail in April 2008 he was a

candidate for interferon treatment that does not necessarily

provide a basis for claiming that some nine months to a year later

in March 2009 when he was transferred into the custody of the

Department of Corrections his condition was 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

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
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

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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 defendant’s medical judgments in this

matter 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, 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 defendant Andem must be dismissed or

alternatively defendant should be entitled to qualified immunity.4
(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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C. 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

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.”). 
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D. The Eleventh Amendment Bars A Complaint for Damages

Against Defendant In His Official Capacities:

It is not clear whether plaintiff sues defendant in both

his 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 defendant in his

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

(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).
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Conclusion

For the foregoing reasons, defendant Andem is 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

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the

foregoing DEFENDANT ANDEM’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 12th day of

July, 2010.

/s/ Susan A. Maher 

Susan A. Maher