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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

BENJAMIN B. LITTLES,

Plaintiff,

vs. Case No. 3:10cv203/MCR/EMT

JOHN LILLY, et al.,

Defendants.

___________________________________/

REPORT AND RECOMMENDATION

This matter is before the court on Plaintiff’s amended complaint filed under 28 U.S.C. § 1331

and Bivens v. Six Unknown Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971)1 (Doc. 13). 

Leave to proceed in forma pauperis has been granted, and the initial partial filing fee has been paid

(Docs. 4, 7). 

Because Plaintiff is proceeding in forma pauperis, the court may dismiss the case if satisfied

that the action is “(i) frivolous or malicious; (ii) fails to state a claim on which relief may be

granted; or (iii) seeks monetary relief against a defendant who is immune from such relief.” 28

U.S.C. § 1915(e)(2)(B). A complaint is frivolous under section 1915(e) “where it lacks an arguable

basis either in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325, 109 S. Ct. 1827, 1833, 104

L. Ed. 2d 338 (1989). Dismissals on this ground should only be ordered when the legal theories are

“indisputably meritless,” id., 490 U.S. at 327, or when the claims rely on factual allegations that are

“clearly baseless.” Denton v. Hernandez, 504 U.S. 25, 31, 112 S. Ct. 1728, 1733, 118 L. Ed. 2d 340

(1992). Dismissals for failure to state a claim are governed by the same standard as Federal Rule

of Civil Procedure 12(b)(6). Mitchell v. Farcass, 112 F.3d 1483, 1485 (11th Cir. 1997). The

1

 Bivens recognized a private right of action for money damages against federal actors that engaged in alleged

violations of the Constitution or laws of the United States. 403 U.S. at 397.
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allegations of the complaint are taken as true and are construed in the light most favorable to the

plaintiff. Davis v. Monroe County Bd. Of Educ., 120 F.3d 1390, 1393 (11th Cir. 1997). However,

such acceptance should not be given blindly; only well-pleaded factual allegations are taken as true

and only reasonable inferences are drawn in favor of the plaintiff. See Oladeinde v. City of

Birmingham, 963 F.2d 1481, 1485 (11th Cir. 1992); Marrero v. City of Hialeah, 625 F.2d 499, 502

(5th Cir. 1980);2 see also Long v. Satz, 181 F.3d 1275, 1278 (11th Cir. 1999) (per curiam)

(“reasonable inferences” drawn); Associated Builders, Inc. v. Ala. Power Co., 505 F.2d 97, 100 (5th

Cir. 1974) (“unwarranted deductions of fact are not admitted as true”). A plaintiff must allege more

than mere “labels and conclusions”; the complaint must include “[f]actual allegations . . . [sufficient]

to raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127

S. Ct. 1955, 1964–65, 167 L. Ed. 2d 929 (2007) (citations and internal quotations omitted). Indeed,

“any conclusory allegations, unwarranted deductions of fact or legal conclusions masquerading as

facts do not prevent dismissal.” Weissman v. Nat’l Ass’n of Sec. Dealers, 500 F.3d 1293, 1305

(11th Cir. 2007) (en banc) (Tjoflat, J., dissenting) (citing Associated Builders, Inc., 505 F.2d at 99). 

The complaint may be dismissed if the facts as pleaded do not state a claim to relief that is plausible

on its face. See Bell Atl. Corp., supra (retiring the often-criticized “no set of facts” language

previously used to describe the motion to dismiss standard and determining that because plaintiffs

had “not nudged their claims across the line from conceivable to plausible, their complaint must be

dismissed” for failure to state a claim). 

Upon review of the Amended Complaint, the undersigned concludes Plaintiff’s claims

against John Lilly, Mr. Hutchinson, Derrick Yabui, Marcos Ramirez, James Thomas, Dr. Angel

Ortiz, Jaime Mejia, the “John Doe” Defendants at FPC-Pensacola, the “Jane Doe” Defendants at the

Escambia County Jail, and the “John Doe” Defendants at the Jackson County Jail should be

dismissed with prejudice. Additionally, the undersigned recommends that this action be transferred

to the United States District Court for the Western District of Texas for disposition of Plaintiff’s

claims against the remaining Defendants.

2

 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the Eleventh Circuit adopted

as precedent all of the decisions of the former Fifth Circuit decided prior to October 1, 1981.

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I. FACTS3

Plaintiff, an inmate of the Federal Correctional Institution-La Tuna, in Anthony, Texas, sues

twenty-five (25) Defendants in this action; twenty (20) of whom appear to be employees of the

federal Bureau of Prisons (BOP) at various BOP institutions in Florida, Oklahoma, and Texas, three

(3) of whom are employees of the sheriff’s department in Escambia County, Florida, and two of

whom are employees of the sheriff’s department in Jackson County, Florida (Doc. 13 at 1–4).4

Plaintiff states he is asserting seven claims in this lawsuit (id. at 5). 

Plaintiff first asserts he was subjected to cruel and unusual punishment and denied procedural

due process and equal protection by Defendants Lilly, Hutchinson, and Yabui because they changed

his job assignment from the FAM CAMP job site at Eglin Air Force Base to the SVS Youth Center

at Eglin without following proper BOP procedures or properly training him for the new job (Doc.

13 at 11–12, 18–21). Plaintiff alleges on March 2, 2009, while he was assigned to his new job, he

slipped and fell (id. at 12). He was transported to a local hospital and diagnosed as suffering a radial

head fracture to his right elbow (id.). Medical providers at the hospital recommended that he wear

a sling and a splint and apply ice to his elbow (id. at 12; see Doc. 1 at 36–40). They also prescribed

Mobic (15 mg) once a day for ten (10) days for inflammation, pain, and swelling, and Lortab (7.5

mg) as needed for pain but not more than once every four hours (Plaintiff was provided twenty (20)

tablets) (Doc. 1 at 36–40).

As Plaintiff’s second claim, he asserts that on March 2, 2009, upon his return to the Federal

Prison Camp-Pensacola (FPC-Pensacola), Defendant Ramirez (the Clinical Director) and Defendant

Thomas (a nurse) substituted Motrin (800 mg) and Acetaminophen (500 mg) for the Mobic and

Lortab (Doc. 13 at 13). He states he was not provided any medication at all from March 9–11, 2009

(id.). Plaintiff states on March 11, 2009, he received a consultation with an orthopedic surgeon, who

recommended an elbow brace and physical therapy three times per week for four weeks (id.). The

surgeon additionally prescribed Mobic and Lortab (id.). Plaintiff asserts the medical staff at FPC3

 The undersigned conveys as facts those facts alleged by Plaintiff in his Amended Complaint (Doc. 13).

4

 The page references used in this Report reflect the page numbers as enumerated in the court’s electronic

docketing system rather than those Plaintiff may have assigned.

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Pensacola again provided only Tylenol and Motrin (id.). Plaintiff contends Defendants Ramirez and

Thomas deprived him of adequate medical care in violation of the Eighth Amendment (id. at 22).

As Plaintiff’s third claim, he states he was transported from FPC-Pensacola to the Escambia

County Jail on March 14, 2009, and the Tylenol and Ibuprofen were sent with him (Doc. 13 at 13). 

Upon his arrival at the jail, he informed three unidentified nurses (Defendants “Jane Doe, Nurse”)

that the medications did not subdue his pain, and he was originally prescribed Mobic and Lortab,

an elbow brace, and physical therapy (id.). Plaintiff states he was not provided physical therapy or

Mobic or Lortab throughout his 12-day detention at the jail (March 14–26, 2009) (id.). Plaintiff

contends the nurses deprived him of adequate medical care in violation of the Eighth Amendment

(id. at 23). 

As Plaintiff’s fourth claim, he states he was returned to FPC-Pensacola on March 26, 2009,

and then transferred (later that day) to the Jackson County Jail (Doc. 13 at 13). Plaintiff states

Defendant Rickard, the Associate Warden at FPC-Pensacola, and three unidentified correctional

officers (Defendants “John Doe, Corrections Officer”) transported him to the jail (id.). Plaintiff

states he advised the four Defendants that the Tylenol and Ibuprofen did not subdue his pain, and

he had not been provided physical therapy (id.). He states he was housed at the jail until May 13,

2009, during which time he was not provided any medication by the unidentified doctor and nurse

(Defendants “Dr. John Doe” and “John Doe, Nurse”) even though he requested it (id. at 14). 

Plaintiff contends Defendant Rickard, the BOP correctional officers, and the medical staff at the

Jackson County Jail deprived him of adequate medical care in violation of the Eighth Amendment

(id. at 23).

As his fifth claim, Plaintiff states he was transported to FCI-Tallahassee on May 13, 2009

(Doc. 13 at 14). He advised Defendant Dr. Angel Ortiz and Jaime Mejia, MLP, of the prescribed

Mobic, Lortab, physical therapy, and elbow brace and requested that they provide them (id.). 

Plaintiff states they provided only Naproxen and Tylenol, even though he subsequently advised them

the medications did not subdue his pain (id.). Plaintiff contends Defendants Ortiz and Mejia’s

failure to provide the Mobic and Lortab deprived him of adequate medical care in violation of the

Eighth Amendment (id. at 23–24).

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As his sixth claim, Plaintiff asserts he was transported to the Federal Transfer Center in

Oklahoma on June 16, 2009 (Doc. 13 at 14). He states he advised Defendant Dr. Thomas Goforth

and “John Doe, PA/Pharmacist” that he had been prescribed Mobic and Lortab, a brace, and physical

therapy (id.). He also advised them he had been prescribed Tylenol, Ibuproen, and Naproxen, but

these medications did not subdue his pain (id.). Plaintiff states Defendant Goforth and “John

Doe/PA” failed to provide any medical treatment for his condition, in violation of the Eighth

Amendment (id. at 14, 22).

As his seventh and final claim, Plaintiff asserts he was transported to FCI-LaTuna on July

2, 2009, at which time he advised the medical staff that he had been prescribed Mobic and Lortab,

a brace, and physical therapy (Doc. 13 at 14–15). He also advised them he had been prescribed

Tylenol, Ibuproen, and Naproxen, but these medications did not subdue his pain (id.). Plaintiff

states that same day, he was prescribed Acetaminophen (500 mg) and Naproxen (500 mg) (id.). 

Plaintiff states his prescription expired on August 30, 2009 (id. at 15). He states that on September

8, 2009, he learned that he had been scheduled to see an orthopedic surgeon six weeks earlier, but

he did not receive the consultation until October 21, 2009 (id.). On September 22, 2009, he was

given a 7-day supply of Acetaminophen (500 mg) (id.). He was not provided any pain medication

from September 28 to November 8, 2009 (id.). On November 9, he was given a 15-day supply of

Acetaminophen (500 mg). He was not provided any pain medication from November 25 to

December 28, 2009 (id.), even though he continually complained to medical staff that he was in pain

(id.). When he met with the orthopedic surgeon on October 21, 2009, the surgeon recommended

an MRI of Plaintiff’s elbow and a post-MRI consultation (id. at 15; see Doc. 1 at 83). Plaintiff states

the MRI request was approved on January 20, 2010, by the Utilization Review Committee, but he

still has not received it (Doc. 13 at 15; Doc. 1 at 85). Plaintiff states Defendant R. Chavez, the

Health Services Administrator at FCI-La Tuna advised him in April of 2010 that he was aware that

the MRI was approved, but funds were not available (Doc. 13 at 15). Plaintiff states he has received

no pain medication from December 30, 2009, to the present (id. at 15–16). He states he requested

pain medication from Defendant Leticia Perez, PA, but she responded that the Acetaminophen was

causing heartburn, and Plaintiff had to choose between treatment for his elbow and treatment for his

heartburn (id. at 16). Plaintiff responded that his chest “felt like it was on fire” and the pain in his

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elbow was “unbearable,” and Perez chose to treat the heartburn instead of the pain in his elbow (id.). 

Plaintiff contends the Defendants at FCI-La Tuna (Leo Altenberg, Clinical Director; Kristina

Behrens, Nurse; Leticia Perez, PA; R. Chavez, Health Services Administrator; Carl Berry, PA; and

Rogelio Sanchez, PA) failed to provide adequate medical care for his elbow in violation of the

Eighth Amendment (id. at 24–25).

As relief, Plaintiff seeks an injunction requiring Defendants to provide an MRI (Doc. 13 at

17). He also seeks compensatory and punitive damages in the amount of $12,200,000.00 (id.).

II. ANALYSIS

A. Claims Against Florida Defendants: John Lilly, Mr. Hutchinson, Derrick Yabui,

Marcos Ramirez, James Thomas, Dr. Angel Ortiz, Jaime Mejia, the “John Doe” Defendants

at FPC-Pensacola, the “Jane Doe” Defendants at the Escambia County Jail, and the “John

Doe” Defendants at the Jackson County Jail

Initially, Plaintiff has failed to state a constitutional claim against Defendants Lilly,

Hutchinson, and Yabui regarding the change in his job assignment. The Due Process Clause

protects against deprivations of “life, liberty, or property, without due process of law . . . .” U.S.

Const. Amend. V. As Plaintiff was clearly not deprived of life, he is entitled to due process only if

he was deprived of a property interest or liberty interest within the meaning of the Fifth Amendment. 

In Sandin v. Conner, 515 U.S. 472, 484, 115 S. Ct. 2293, 132 L. Ed. 2d 418 (1995), the United

States Supreme Court identified two situations in which a prisoner, who has already been deprived

of his liberty in the ordinary sense of the word, can be further deprived of his liberty such that due

process protections are implicated. The first is “when a change in the prisoner’s conditions of

confinement is so severe that it essentially exceeds the sentence imposed by the court.” Kirby v.

Siegelman, 195 F.3d 1285, 1290–91 (11th Cir. 1999) (citing Sandin, 515 U.S. at 484). The second

is “when the [government] has consistently bestowed a certain benefit to prisoners, usually through

statute or administrative policy, and the deprivation of that benefit ‘imposes atypical and significant

hardship on the inmate in relation to the ordinary incidents of prison life.’” Id. at 1291 (quoting

Sandin, 515 U.S. at 484).

In the instant case, Plaintiff’s due process claim fails because his factual allegations do not

suggest that he had a liberty interest in a specific job assignment. Plaintiff’s allegations do not

suggest that the conditions imposed by the new job assignment exceeded the sentence he is serving;

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nor do they suggest that the informal job change created a hardship or caused a deprivation of

benefits that was atypical and more significant than experienced by other prisoners similarly

situated. Although Plaintiff alleges the informal job change caused him to be placed in a job for

which he was not qualified or properly trained (see Doc. 13 at 20), this does not suggest a restriction

or hardship of sufficient significance to invoke due process protections under Sandin. Indeed, courts

have held that changes in job assignments are not atypical. See Bulger v. U.S. Bureau of Prisons,

65 F.3d 48, 50 (5th Cir. 1995); see also, e.g., Powell v. Ellis, No. 3:07cv160/MCR/EMT, 2007 WL

2669432, at *4 (N.D. Fla. Sept.7, 2007) (holding that prisoner had no liberty interest in particular

job assignment). 

Additionally, although the Eleventh Circuit Court of Appeals has never addressed whether

a federal prisoner has a protected property interest in his job assignment, those circuit courts that

have considered the issue have held that there is no property interest in a federal prisoner’s job

assignment. See Johnson v. Rowley, 569 F.3d 40, 44 (2d Cir. 2009); Bulger v. U.S. Bureau of

Prisons, 65 F.3d 48, 50 & n.4 (5th Cir. 1995) (federal inmate has no liberty or property interest in

job assignment); James v. Quinlan, 866 F.2d 627, 629–30 (3d Cir. 1989); Garza v. Miller, 688 F.2d

480, 485–86 (7th Cir. 1982); see also, e.g., Woodworth v. United States, 44 Fed. Appx. 112 (9th Cir.

2002) (finding that an inmate “has neither a liberty nor a property interest in his prison job”)

(unpublished). The undersigned is persuaded by the reasoning provided by those courts and thus

concludes that a federal prisoner has no protected property interest in a job assignment. Because

Plaintiff’s allegations fail to state a due process claim that is plausible on its face, the undersigned

recommends dismissal of Plaintiff’s due process claims against Defendants Lilly, Hutchinson and

Yabui.

Plaintiff has also failed to state an equal protection claim with respect to the change in his

job assignment. The Equal Protection Clause requires that the government treat similarly situated

people in a similar manner. See City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439, 105

S. Ct. 3249, 3254, 87 L. Ed. 2d 313 (1985). In order to establish an equal protection claim, a

prisoner must demonstrate that (1) he is similarly situated with other prisoners who received more

favorable treatment; and (2) his less favorable treatment was the result of intentional or purposeful

discrimination. See Jones v. Ray, 279 F.3d 944, 946–47 (11th Cir. 2001) (internal quotation marks

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omitted). Thus, in order to assert a viable equal protection claim, Plaintiff must first make a

threshold showing that he was treated differently from others who were similarly situated to him. 

See Nordlinger v. Hahn, 505 U.S. 1, 112 S. Ct. 2326, 2331, 120 L. Ed. 2d 1 (1992); Hendking v.

Smith, 781 F.2d 850 (11th Cir. 1986). Plaintiff must also allege Defendants acted with the intent

to discriminate against him. See McClesky v. Kemp, 481 U.S. 279, 292, 107 S. Ct. 1756, 1767, 95

L. Ed. 2d 262 (1987); E&T Realty v. Strickland, 830 F.2d 1107, 1113 (11th Cir. 1987). Conclusory

allegations or assertions of personal belief of disparate treatment or discriminatory intent are

insufficient. GJR Inv., Inc. v. County of Escambia, Fla., 132 F.3d 1359, 1367–68 (11th Cir. 1998);

Coon v. Ga. Pac. Corp., 829 F.2d 1563, 1569 (11th Cir. 1987).

In the instant case, Plaintiff makes only the conclusory allegation that “These defendants

conduct [sic] was intentional and purposeful discrimination.” (Doc. 13 at 20). Plaintiff’s assertion

of personal belief of discriminatory intent by Defendants Lilly, Hutchinson and Yabui, devoid of

any factual allegations supporting his belief, is insufficient to state an equal protection claim. 

Therefore, the undersigned recommends dismissal of Plaintiff’s Equal Protection claims against

Defendants Lilly, Hutchinson, and Yabui.

Moreover, to the extent Plaintiff asserts an Eighth Amendment claim of deliberate

indifference to his safety with regard to the change in job assignment, the facts do not rise to the

level of a constitutional violation. The Eighth Amendment “does not authorize judicial

reconsideration of ‘every governmental action affecting the interests or well-being of a prisoner.’” 

Campbell v. Sikes, 169 F.3d 1353, 1362 (11th Cir. 1999) (quoting Whitley v. Albers, 475 U.S. 312,

319, 106 S. Ct. 1078, 1084, 89 L. Ed. 2d 251 (1988)). “If prison conditions are merely ‘restrictive

and even harsh, they are part of the penalty that criminal offenders pay for their offenses against

society.’” Chandler v. Crosby, 379 F.3d 1278, 1288–89 (11th Cir. 2004) (quoting Rhodes v.

Chapman, 452 U.S. 337, 347, 101 S. Ct. 2392, 2399, 69 L. Ed. 2d 59 (1981)). Prison conditions rise

to the level of an Eighth Amendment violation only when they involve the wanton and unnecessary

infliction of pain. Id.; Hope v. Pelzer, 536 U.S. 730, 737, 122 S. Ct. 2508, 2514, 153 L. Ed. 2d 666

(2002); Farrow v. West, 320 F.3d 1235, 1242 (11th Cir. 2003); Campbell, 169 F.3d at 1362. To

establish “unnecessary and wanton infliction of pain,” Plaintiff is required to show “that officials

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acted with specific intent.” Id. “[T]he exact nature of the specific intent required depends on the

type of claim at issue.” Id. at 1363.

To state an Eighth Amendment violation, a prisoner must satisfy both an objective and a

subjective inquiry. Chandler, 379 F.3d at 1289–90; Farrow, 320 F.3d at 1243. Under the objective

component, a prisoner must prove the condition he complains of is sufficiently serious to violate the

Eighth Amendment. Hudson v. McMillian, 503 U.S. 1, 8, 112 S. Ct. 995, 999, 117 L. Ed. 2d 156

(1992). Specifically, a prisoner must prove the denial of “the minimal civilized measure of life’s

necessities.” Chandler, 379 F.3d at 1289–90; Farrow, 320 F.3d at 1243; Rhodes, 452 U.S. at 347. 

“The challenged prison condition must be ‘extreme’” and must pose “an unreasonable risk of serious

damage to his future health or safety.” Chandler, 379 F.3d at 1289–90 (quoting Hudson, 503 U.S.

at 9) (other citation omitted). Under the subjective component, the prisoner must prove that the

prison official acted with “deliberate indifference.” Farmer v. Brennan, 511 U.S. 825, 837,114 S.

Ct. 1970, 1979, 128 L. Ed. 2d 811 (1994) (stating that an individual may be held liable under the

Eighth Amendment only if “the official knows of and disregards an excessive risk to inmate health

or safety; the official must both be aware of facts from which the inference could be drawn that a

substantial risk of serious harm exists, and he must also draw the inference”); Hudson, 503 U.S. at

8; Wilson v. Seiter, 501 U.S. 294, 303, 111 S. Ct. 2321, 2327, 115 L. Ed. 2d 271 (1991). To prove

deliberate indifference, the prisoner must show that the defendant prison official “‘acted with a

sufficiently culpable state of mind’” with regard to the serious prison condition or serious medical

need in issue. Chandler, 379 F.3d at 1289–90 (quoting Hudson, 503 U.S. at 8). Negligence or even

gross negligence does not satisfy this standard. Id.; Cottrell v. Caldwell, 85 F.3d 1480, 1490 (11th

Cir.1996).

In the instant case, Plaintiff’s allegations concerning the change in job assignment do not

suggest that change from the FAM CAMP job to the SVS Youth Center job constituted the denial

of “the minimal civilized measure of life’s necessities” or was otherwise sufficiently serious to

satisfy the objective component of the Eighth Amendment standard. Additionally, although Plaintiff

alleges Defendants were aware that changing his job assignment without following formal BOP

procedures could pose a risk of serious harm because he may not have been qualified to perform the

new job, and he had not been properly trained for it, these assertions do not suggest deliberate

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indifference as opposed to negligence. Moreover, the facts do not suggest a plausible causal

connection between the job change and Plaintiff’s injury. Plaintiff states his injury was caused by

his slipping on spilled oil, but it is implausible to suggest that he would not have slipped if he had

been more qualified for the job or received job training (although training may have made him more

alert to the presence of spilled oil, it is unreasonable to suggest that Defendants knew that changing

his job assignment without provided training created a substantial risk of Plaintiff’s slipping). 

Therefore, to the extent Plaintiff asserts an Eighth Amendment claim against Defendants Lilly,

Hutchinson, and Yabui based upon their changing his work assignment, the undersigned

recommends dismissal of the claim.

Additionally, the facts alleged by Plaintiff fail to show an unconstitutional deprivation of

medical treatment. It is well settled that the government has a constitutional duty to provide

minimally adequate medical care to prisoners. Harris v. Thigpen, 941 F.2d 1495, 1504 (11th Cir.

1991). Medical treatment violates the Eighth Amendment “only when it is ‘so grossly incompetent,

inadequate, or excessive as to shock the conscience or to be intolerable to fundamental fairness.’” 

Id. at 1505 (citing Rogers v. Evans, 792 F.2d 1052, 1058 (11th Cir. 1986)). Incidents of mere

negligence or malpractice do not rise to the level of constitutional violations. Id. (citing Estelle v.

Gamble, 429 U.S. 97, 106, 97 S. Ct. 285, 50 L. Ed. 2d 251 (1976)).

Stating an Eighth Amendment claim of denial of adequate medical care requires satisfying

both an objective and subjective component. Taylor v. Adams, 221 F.3d 1254, 1257 (11th Cir.

2000). First, there must be conduct by prison officials which, objectively speaking, is “sufficiently

serious” to constitute a deprivation “‘denying the minimal civilized measure of life’s necessities.’” 

Id. (quoting Wilson, 501 U.S. at, 298 (internal quotation omitted)). Second, the prison officials must

possess a subjective intent to use the medical deprivation as a means of punishment. Id. (citations

omitted). 

Both the objective and subjective components encompass two subsidiary requirements. 

Taylor, 221 F.3d at 1258. As to the objective prong, an objectively serious deprivation requires

showing an objectively “serious medical need.” Estelle, 429 U.S. at 104. A serious medical need

is “one that has been diagnosed by a physician as mandating treatment or one that is so obvious that

even a lay person would easily recognize the necessity for a doctor’s attention.” Hill v. DeKalb

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Regional Youth Detention Center, 40 F.3d 1176, 1186 (11th Cir. 1994), abrogated on other grounds

by Hope, 536 U.S. 730, 122 S. Ct. 2508, 153 L. Ed. 2d 666 (2002); see Farmer, 511 U.S. at 834,

(serious medical need is one that, if left unattended, “pos[es] a substantial risk of serious harm.”). 

In addition, an objectively serious deprivation requires showing the response made by the defendant

to that need was so deficient as to constitute “an unnecessary and wanton infliction of pain.” Estelle,

429 U.S. at 105–06 (internal quotation marks omitted); see Taylor, 221 F.3d at 1257; see also

Adams v. Poag, 61 F.3d 1537, 1543–44 (11th Cir. 1995). To show the required subjective intent to

punish, the plaintiff must demonstrate that the defendant acted with an attitude of “deliberate

indifference.” Estelle, 429 U.S. at 105. “Deliberate indifference has three components: (1)

subjective knowledge of a risk of serious harm; (2) disregard of that risk; (3) by conduct that is more

than mere negligence.” Farrow, 320 F.3d at 1245–46 (citing McElligott v. Foley, 182 F.3d 1248,

1255 (11th Cir. 1999) and Taylor, 221 F.3d at 1258 (stating that defendant must have subjective

awareness of an “objectively serious need” and that his response must constitute “an objectively

insufficient response to that need”)). 

A complete denial of readily available treatment for a serious medical condition constitutes

deliberate indifference. Harris v. Coweta County, 21 F.3d 388, 393 (11th Cir. 1994). However,

where the inmate has received medical treatment, and the dispute is over the adequacy of that

treatment, courts should be reluctant to question the accuracy or appropriateness of the medical

judgments that were made. Harris, 941 F.2d at 1507 (quoting Waldrop v. Evans, 871 F.2d 1030,

1035 (11th Cir. 1989)). To do otherwise would be “to constitutionalize claims that sound in tort

law.” Hamm v. DeKalb County, 774 F.2d 1567, 1575 (11th Cir. 1985) (quotation omitted).

A delay in providing medical treatment can constitute deliberate indifference. Estelle, 429

U.S. at 104–05. However, “[a]n inmate who complains that delay in medical treatment rose to a

constitutional violation must place verifying medical evidence in the record to establish the

detrimental effect of delay in medical treatment to succeed.” Townsend v. Jefferson County, 582

F.3d 1252, 1259 (11th Cir. 2009). 

In the instant case, with regard to the FPC-Pensacola Defendants, Plaintiff alleges they

substituted their own medical judgment for the judgment of the medical staff at the hospital by

substituting Motrin and Tylenol for Mobic and Lortab. The medical records submitted by Plaintiff

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with his complaint show that Defendants Dr. Ramirez and Nurse Thomas provided the following

treatment for Plaintiff.5 Upon Plaintiff’s return from the hospital, Dr. Ramirez ordered a sling and

continued the soft splint/cast provided by the hospital (see Doc. 1 at 41–44). Additionally, Dr.

Ramirez prescribed Motrin (ibuprofen), 800mg, to relieve pain and swelling, and Tylenol

(acetaminophen), 500 mg, to relieve pain (id.). Dr. Ramirez also requested an orthopedic

consultation (id. at 45). On March 9, 2009 (one week after the injury), Nurse Thomas examined

Plaintiff and advised him that he would be seen by an orthopedist later that week; he additionally

advised Plaintiff to continue following the care instructions of the hospital physician (id. at 46–47). 

Nurse Thomas noted that Plaintiff complained of pain, and that his prescriptions expired that day

(id.). Two days later, on March 11, 2009, Plaintiff received an orthopedic consultation (id. at

48–49). The orthopedist recommended physical range-of-motion therapy three times per week for

four weeks and an elbow brace (id.). The documents submitted by Plaintiff further show that the

gentle range-of-motion therapy was to be conducted by Plaintiff himself (id. at 26). The same day,

Plaintiff had a follow-up appointment with Dr. Ramirez (id.). Dr. Ramirez renewed Plaintiff’s

prescriptions for Tylenol, 500 mg, and Motrin, 800 mg (id.). He also requested that Plaintiff be

placed on “call-out” for physical therapy and a hinged elbow brace by March 16, 2009 (id.). In the

meantime (on March 14), Plaintiff was transported to the Escambia County Jail.

Based upon this evidence, Plaintiff cannot show that Dr. Ramirez’s or Nurse Thomas’

response to his medical need was so deficient as to constitute “an unnecessary and wanton infliction

of pain.” Therefore, he cannot satisfy the objective component of the Eighth Amendment standard. 

Furthermore, the facts fail to show that Dr. Ramirez and Nurse Thomas subjectively knew that their

substituting Motrin and Tylenol for Mobic and Lortab created an excessive risk to Plaintiff’s health,

or that they were aware of facts from which the inference could be drawn that a substantial risk of

serious harm existed, and they drew that inference. Indeed, the evidence submitted by Plaintiff with

5

 As previously noted, in conducting the statutorily required screening of Plaintiff’s complaint to determine

whether it fails to state a claim on which relief may be granted, the court employs the same standard as Rule 12(b)(6),

which governs motion to dismiss. In employing this standard , the court may, and does, consider the documents

submitted by Plaintiff with his initial complaint (see Doc. 1 at 24–86). The court is not required to disregard documents

that Plaintiff himself filed with his original complaint. See Gross v. White, 340 F. App’x 527, 534 (11th Cir. 2009)

(citing Grossman v. Nationsbank, N.A., 225 F.3d 1228, 1231 (11th Cir. 2000) (stating that court may consider “the

pleadings and exhibits attached thereto” when ruling on a motion to dismiss)). 

Case No. 3:10cv203/MCR/EMT
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his complaint indicate that Mobic and Lortab were not available to BOP medical staff because

neither of those medications is allowed on the BOP formulary (id. at 26). Additionally, although

Plaintiff states there was a two-day delay in renewing his prescriptions (from March 9–11), he does

not allege any facts suggesting that the delay was attributable to more than merely negligent

conduct. Therefore, the undersigned recommends that Plaintiff’s claims of deliberate indifference

against Dr. Ramirez and Nurse Thomas be dismissed for failure to state a claim.

The facts also fail to state a claim of deliberate indifference as to the three Escambia County

Jail Defendants, named as “Jane Doe, Nurse.” Plaintiff states he advised “medical staff” that the

Tylenol and Motrin (that were sent with him from the BOP facility to the jail) were not subduing

his pain, and he was prescribed physical therapy. However, the facts do not suggest that the nurses’

conduct in maintaining Plaintiff on the pain medications prescribed by Dr. Ramirez and failing to

ensure that Plaintiff performed the range-of-motion therapy during his temporary, twelve-day

detention at the jail, was so deficient as to constitute an unnecessary infliction of pain. Furthermore,

these allegations do not reasonably suggest that the nurses knew that their failure to provide pain

medication stronger than the medication prescribed by Dr. Ramirez, and their failure to ensure that

Plaintiff performed his physical therapy during his stay, created a substantial risk of serious harm

to his health. Moreover, the facts do not suggest that the nurses’ conduct rose beyond the level of

negligence to deliberate indifference. Therefore, the undersigned recommends that Plaintiff’s Eighth

Amendment claims against the nurses at the Escambia County Jail be dismissed for failure to state

a claim.

With regard to the Associate Warden and correctional officers from FPC-Pensacola who

transported Plaintiff from FPC-Pensacola to the Jackson County Jail on March 26, 2009, Plaintiff

cannot show that their failure to seek a change in Plaintiff’s prescriptions or request physical therapy

during the one-day transport to the jail posed a substantial risk of serious harm. Therefore, the

undersigned recommends that Plaintiff’s Eighth Amendment claims against Associate Warden

Rickard and the three “John Doe” correctional officers at the Jackson County Jail be dismissed.

Finally, Plaintiff has failed to state an Eighth Amendment claim with regard to the FCITallahassee Defendants. Plaintiff states that on May 13, 2009, he advised Defendant Dr. Angel

Ortiz and Jaime Mejia, MLP, that a doctor had prescribed Mobic, Lortab, physical therapy, and an

Case No. 3:10cv203/MCR/EMT
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elbow brace; and he requested that they provide this treatment, but his request was denied. 

However, Plaintiff’s medical records show that he received the elbow brace as well as prescriptions

for Naproxen, 500 mg, and Tylenol, 500 mg, from Defendant Meija (Doc. 1 at 50–54). Furthermore,

as previously noted, the documents submitted by Plaintiff further show that the gentle range-ofmotion therapy was to be conducted by Plaintiff himself (id. at 26). These facts do not suggest that

Defendant Meija’s response to Plaintiff’s medical condition was so deficient as to constitute an

unnecessary infliction of pain, or that he knew that his response posed a substantial risk of serious

harm to Plaintiff’s health. As to Dr. Ortiz, there is no indication in Plaintiff’s medical records that

he was ever seen by Dr. Ortiz. Therefore, Plaintiff’s factual allegations fail to state an Eighth

Amendment claim as to these Defendants. Accordingly, the undersigned recommends dismissal of

Plaintiff’s Eighth Amendment claims against Dr. Ortiz and Jaime Mejia.

B. Claims Against Remaining Defendants

In light of the recommendations of the undersigned that Plaintiff’s claims against John Lilly,

Mr. Hutchinson, Derrick Yabui, Marcos Ramirez, James Thomas, Dr. Angel Ortiz, Jaime Mejia, the

“John Doe” Defendants at FPC-Pensacola, the “Jane Doe” Defendants at the Escambia County Jail,

and the “John Doe” Defendants at the Jackson County Jail be dismissed, the undersigned

additionally recommends that this case be transferred to the Western District of Texas for disposition

of his claims against the remaining Defendants, pursuant to 28 U.S.C. § 1404(a).6

 A district court

may transfer any case to any other district where the case originally may have been brought. 28

U.S.C. § 1404(a). To transfer an action under section 1404(a) the following criteria must be met: 

(1) the action could have been brought in the transferee district court; (2) a transfer serves the

interest of justice; and (3) a transfer is in the convenience of the witnesses and parties. See Robinson

v. Giarmarco & Bill, P.C., 74 F.3d 253, 260 (11th Cir. 1996). The court’s consideration of the

§ 1404(a) factors may include such criteria as the plaintiff’s initial choice of forum, the convenience

of the parties, the convenience of the witnesses, the relative ease of access to sources of proof, the

6

 As explained in Dubin v. United States, 380 F.2d 813, 816 (5th Cir. 1967), “[i]n substance, § 1404 is the

statutory enactment of the doctrine of forum non conveniens tempered to allow transfer rather than dismissal. By

contrast, § 1406 operates in cases where the first forum chosen is improper in the sense that the litigation may not

proceed there.” 

Case No. 3:10cv203/MCR/EMT
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location of relevant documents, the availability of compulsory process for witnesses, the financial

ability to bear the cost of the change, and trial efficiency. See Tampa Bay Storm, Inc. v. Arena

Football League, Inc., 932 F. Supp. 281, 282 (M.D. Fla. 1996). Federal courts ordinarily accord

deference to a plaintiff’s choice of forum; however, in this case it is evident that the Western District

of Texas is more convenient for the parties and witnesses, and continuing this litigation there would

be in the interest of justice.

The decision to transfer an action pursuant to § 1404(a) is left to the “sound discretion of the

district court and [is] reviewable only for an abuse of that discretion.” Roofing & Sheeting Metal

Serv. v. La Quinta Motor Inns, 689 F.2d. 982, 985 (11th Cir. 1982); see also Brown v. Connecticut

Gen. Life Ins. Co., 934 F.2d 1193, 1197 (11th Cir. 1991). Such transfers may be made sua sponte

by the district court. Mills v. Beech Aircraft Corp., 886 F.2d 758, 761 (5th Cir. 1989); Robinson

v. Madison, 752 F. Supp. 842, 846 (N.D. Ill. 1990) (“A court’s authority to transfer cases under

§ 1404(a) does not depend upon the motion, stipulation or consent of the parties to the litigation.”);

Empire Gas Corp. v. True Value Gas of Florida, Inc., 702 F. Supp. 783, 784 (W.D. Mo. 1989);

accord Roofing & Sheeting, 689 F.2d at 991 n.14.

In this case, analysis of the relevant factors leads the undersigned to conclude that the

convenience of the parties and witnesses and the interest of justice favor transfer. The convenience

of the parties weighs in favor of transfer to Texas, since Plaintiff and the majority of the remaining

Defendants are located there. As to convenience of witnesses and the availability of compulsory

process for witnesses, it appears that most of the witnesses are party witnesses who reside and work

in Texas. Additionally, sources of proof, including relevant medical documents, would be more

readily accessible in Texas, since Plaintiff is located there and a substantial part of the events

underlying the remaining claims occurred there. Finally, transferring venue to Texas would result

in no additional financial cost to the parties. Therefore, consideration of the relevant factors leads

the undersigned to conclude that this action should be transferred to the United States District Court

for the Western District of Texas for disposition of Plaintiff’s claims against the remaining

Defendants.

III. CONCLUSION

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Based on the foregoing, the court concludes that Plaintiff’s allegations against the Florida

Defendants (including John Lilly, Mr. Hutchinson, Derrick Yabui, Marcos Ramirez, James Thomas,

Dr. Angel Ortiz, Jaime Mejia, the “John Doe” Defendants at FPC-Pensacola, the “Jane Doe”

Defendants at the Escambia County Jail, and the “John doe” Defendants at the Jackson County Jail)

do not rise to the level of a violation of the Due Process Clause, Equal Protection Clause, or the

Eighth Amendment. Therefore, Plaintiff’s claims against the Defendants listed supra should be

dismissed in accordance with 28 U.S.C. § 1915(e)(2)(B)(ii), and those persons should be dismissed

from this action. Furthermore, dismissal of Plaintiff’s claims against the Florida Defendants should

be with prejudice, since the court previously advised Plaintiff of the deficiencies in his constitutional

claims and provided him an opportunity to amend the complaint (see Doc. 9). See Welch v. Laney,

57 F.3d 1004, 1009 (11th Cir. 1995). In light of this recommendation, the undersigned additionally

recommends that this case be transferred to the Western District of Texas, pursuant to 28 U.S.C.

§ 1404(a), for disposition of Plaintiff’s claims against the remaining Defendants.

Accordingly, it is respectfully RECOMMENDED:

1. That Plaintiff’s claims against John Lilly, Mr. Hutchinson, Derrick Yabui, Marcos

Ramirez, James Thomas, Dr. Angel Ortiz, Jaime Mejia, the “John Doe” Defendants at FPCPensacola, the “Jane Doe” Defendants at the Escambia County Jail, and the “John Doe” Defendants

at the Jackson County Jail be DISMISSED with prejudice for failure to state a claim on which

relief may be granted, pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), and these Defendants be

DISMISSED from this action.

2. That the clerk TRANSFER this case to the United States District Court for the

Western District of Texas for disposition of Plaintiff’s claims against the remaining Defendants.

3. That the clerk close this case.

At Pensacola, Florida, this 23rd day of November 2010.

/s/ Elizabeth M. Timothy 

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ELIZABETH M. TIMOTHY

UNITED STATES MAGISTRATE JUDGE 

NOTICE TO THE PARTIES

Objections to these proposed findings and recommendations may be filed within

fourteen (14) days after being served a copy thereof. Any different deadline that may appear

on the electronic docket is for the court’s internal use only. A copy of objections shall be

served upon the magistrate judge and all other parties. Failure to object may limit the scope

of appellate review of factual findings. See 28 U.S.C. § 636; United States v. Roberts, 858 F.2d

698, 701 (11th Cir. 1988).

Case No. 3:10cv203/MCR/EMT