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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PANAMA CITY DIVISION

DONALD JAMES,

Plaintiff,

v. CASE NO. 5:10-cv-259-RS-GRJ

REYNALDO GEERKEN, et al,

Defendants.

_____________________________/

REPORT AND RECOMMENDATION

Plaintiff, an inmate in the custody of the Florida Department of Corrections,

initiated this case by filing a pro se civil rights complaint under 42 U.S.C. § 1983.

Plaintiff is proceeding pursuant to a third amended complaint. (Doc. 35.) The case is 1

presently before the Court on Doc. 43, Defendant Geerken’s motion to dismiss and

Doc. 49, Defendants Izuegbu and Salvador’s motion to dismiss. Defendants move the

Court to dismiss the complaint for failure to state a claim upon which relief may be

granted pursuant to Fed. R. Civ. P. 12(b)(6). Plaintiff filed a response in opposition to

the motion to dismiss, Doc. 67, and therefore this matter is ripe for review. For the

2

 Plaintiff has also filed three “declarations” as to events and facts he alleges 1

developed since his third amended complaint was filed. (Docs. 61, 72, 74.)

 According to the Florida Department of Corrections online offender database, 2

Plaintiff is deceased. It appears that Plaintiff died on or about November 1, 2011.

Plaintiff’s cause of action does not necessarily abate because of his death, and his

personal representative can be substituted in his place. See Hess v. Eddy, 689 F. 2d

977, 980 (11 Cir. 1982) (“Congress did not provide rules of survivorship for section th

1983 actions.”); Wilson v. Garcia, 471 U.S. 261, 280 (1985) (characterizing § 1983

claims as personal injury actions for the purposes of looking to state law to apply when

federal law is lacking in civil rights actions); Fla. Stat. § 46.021 (2011) (“No cause of

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following reasons, the undersigned recommends that the motions to dismiss be

granted. 

I. BACKGROUND

According to the allegations of the third amended complaint, Plaintiff suffers from

Hepatitis C, which he contracted in 1975. Plaintiff was diagnosed in 2004 with early

stage fibrosis and subsequently received a 48-week course of treatment with interferon

and ribavirin, with directions to repeat the treatment in 3-4 years. Plaintiff was

sentenced to 60 months imprisonment and began serving his sentence in March 2008.

Plaintiff alleges that during his incarceration with the Florida Department of Corrections

at Calhoun C.I., he has been denied treatment with interferon and ribavirin, and this

“has exasperated his medical condition causing further degeneration of his liver to a

serious stage of cirrhosis.” (Doc. 35, p. 6.) Plaintiff alleges that the periodic diagnostic

procedures, regular visits to a specialist, and treatment with diuretics and blood

pressure medications were insufficient. Plaintiff contends that the “only effective

treatment” currently accepted by the mainstream medical community is 48 weeks of

interferon and ribavirin. (Id. at 9.)

Plaintiff names as Defendants, in their official and individual capacities, Expedito

M. Salvador, clinician assistant at Calhoun C.I.; Dr. Moses Izuegbu, chief medical

action dies with the person. All causes of action survive and may be commenced,

prosecuted, and defended in the name of the person prescribed by law.”). Typically,

under Fed. R. Civ. P. 25(a), the undersigned would direct Defendants to file a notice of

death with the Court and Plaintiff’s personal representative would have 90 days to file a

motion for substitution. If no motion were filed, the case would be dismissed. However,

in the instant case, the action is due to be dismissed and to proceed with the Rule 25

procedures would be futile.

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officer at Calhoun C.I.; and Dr. Reynaldo Geerken, a physician at the Lake Butler

Reception and Medical Center working under contract with the DOC. (Id. at 2.) Plaintiff

alleges that Defendants violated his Eighth Amendment rights and the Americans with

Disabilities Act (“ADA”). (Doc. 35.) It is unclear whether Plaintiff intended to assert a

state law negligence claim as well. His Third Amended Complaint does not reference a

state law claim, yet Plaintiff has previously filed a “Certificate of Reasonable

Investigation” pursuant to Fla. Stat. § 766.104(1). (Doc. 10.) In Plaintiff’s response to

Defendants’ motions to dismiss, he states at one point that he “notified Defendants of

intent to litigate for medical malpractice” yet later notes that “he claims deliberate

indifference and not medical malpractice or neglect in his complaint.” (Id. at pp. 3, 9.) 

Plaintiff seeks declaratory relief, injunctive relief, medical costs, and

compensatory and punitive damages. Plaintiff asks the Court to order the Defendants

to provide testing to determine the stage of his liver disease and provide curative care,

including but not limited to interferon and ribavirin treatments. Plaintiff also requests

that the Court place Plaintiff on the liver transplant list, if medically indicated. (Id. at pp.

11-12.)

II. DEFENDANTS’ MOTIONS TO DISMISS

Defendants contend that dismissal of the third amended complaint is warranted

on the following grounds: (1) Plaintiff has failed to state a claim for a violation of the

Eighth Amendment; (2) Defendants are entitled to qualified immunity; (3) Plaintiff has

failed to state a claim under the Americans with Disabilities Act (ADA); (4) Plaintiff has

failed to state a state law negligence claim; and, (5) Plaintiff’s claim for damages

against Defendants in their official capacities is barred by the Eleventh Amendment. 

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(Docs. 43, 49.) 

III. STANDARD OF REVIEW

In passing on a motion to dismiss under Rule 12(b)(6), the Court is mindful that

“[d]ismissal of a claim on the basis of barebones pleadings is a precarious disposition

with a high mortality rate.” Int'l Erectors, Inc. v. Wilhoit Steel Erectors Rental Serv., 400

F.2d 465, 471 (5 Cir. 1968). For the purposes of a motion to dismiss, the Court must th

view the allegations of the complaint in the light most favorable to plaintiff, consider the

allegations of the complaint as true, and accept all reasonable inferences therefrom.

See, e.g., Jackson v. Okaloosa County, Fla., 21 F.3d 1532, 1534 (11 Cir.1994). th

Furthermore, the Court must limit its consideration to the complaint and written

instruments attached as exhibits. Fed R. Civ. P. 10(c); GSW, Inc. v. Long County, Ga.,

999 F.2d 1508, 1510 (11 Cir.1993). th

In Ashcroft v. Iqbal, . ___U.S. ___, 129 S.Ct. 1937, 1950 (2009), the Supreme

Court articulated a two-pronged approach for evaluating a motion to dismiss under Rule

12(b)(6): The court must first determine what factual allegations in the complaint are

entitled to a presumption of veracity, and then assess whether these facts give rise to

an entitlement for relief. In determining whether factual allegations are entitled to the

presumption of truth, the Court stated that it was not whether the facts are “unrealistic

or nonsensical” or even “extravagantly fanciful,” but rather it is their conclusory nature

that “disentitles them to the presumption of truth.” Iqbal, 129 S.Ct. at 1951. Once a

claim has been stated adequately, it may be supported by showing any set of facts

consistent with the allegations of the complaint. Bell Atlantic Corp. v. Twombly, 550

U.S. 544, 546 (2007). “While the pleadings of pro se litigants are ‘liberally construed,’

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they must still comply with procedural rules governing the proper form of pleadings.” 

Hopkins v. Saint Lucie County School Bd., 2010 WL 3995824, **1 (11 Cir. 2010) th

(unpublished) (citations omitted) (applying pleading standards of Iqbal and Twombly to

pro se complaint).3

IV. DISCUSSION

A. Eighth Amendment Claim

In Estelle v. Gamble, 429 U.S. 97 (1976), the Supreme Court held that deliberate

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

prohibition against cruel and unusual punishment. To establish an Eighth Amendment

violation stemming from the deprivation of medical attention, the prisoner must set forth

evidence of an objectively serious medical need and prove that the officials acted with

attitudes of deliberate indifference to his needs. Farrow v. West, 320 F.3d 1235, 1243

(11 Cir. 2003). A claim that a prisoner has been deprived of medical attention requires th

that the prisoner demonstrate (1) “an objectively serious medical need,” so grave that,

“if left unattended, poses a substantial risk of serious harm,” and (2) that the officials’

response was so inadequate as to “constitute an unnecessary and wanton infliction of

pain,” and was not “merely accidental inadequacy, negligence in diagnosis or treatment,

or even medical malpractice actionable under state law.” Taylor v. Adams, 221 F.3d

1254, 1258 (11 Cir. 2000). “It is obduracy and wantonness, not inadvertence or error th

in good faith, that characterize the conduct prohibited by the Cruel and Unusual

Punishments Clause[.]” Whitley v. Albers, 475 U.S. 312, 319 (1986). Generally, an

 Pursuant to Eleventh Circuit Rule 36-2, unpublished opinions are not 3

considered binding precedent, but may be cited as persuasive authority. 

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inmate who receives a medical diagnosis and care, but desires a different diagnosis or

treatment, cannot show deliberate indifference. Hamm v. DeKalb County, 774 f.2d

1567, 1575 (11 Cir. 1985); Harris v. Thigpen, 941 F.2d 1495, 1505 (11th Cir.1991);

th

see also Adams v. Poag, 61 F.3d 1537, 1545 (11 Cir. 1995) (“[A]s Estelle teaches, the th

question of whether governmental actors should have employed additional diagnostic

techniques or forms of treatment is a ‘classic example of a matter for medical judgment’

and therefore not an appropriate basis for grounding liability under the Eighth

Amendment.”) (quoting Estelle, 429 U.S. at 107)).

Plaintiff’s third amended complaint and response in opposition to the motions to

dismiss (Docs. 35, 67) indicate that he has received periodic diagnostic procedures

(blood and liver enzyme tests), regular visits to the chronic illness clinic, medications

(including but not limited to Dilantin, Lasix, Inderal, Lactulose, and Aldactone), access

to sick call at his institution, and several consultations with Dr. Geerken, a

gastroenterologist. Plaintiff has also received a CT scan of his abdomen and pelvis, a

hepatic ultrasound, genotype testing, and a liver biopsy. A hepatic diet was started but

discontinued because it was not recommended by Dr. Geerken. On March 8, 2010, Dr.

Izuegbu informed Plaintiff that interferon is not clinically indicated for patients such as

Plaintiff, who have genotype 1b. Dr. Izuegbu also opined that there was no medical

evidence that Plaintiff’s liver had progressed from stage one fibrosis to end stage

cirrhosis. (Doc. 35, p. 20.) 

Plaintiff indicates in his response in opposition that on February 10, 2011, Dr.

Geerken told him he had cirrhosis but that he was not a candidate for interferon therapy

because his disease was too far advanced and because he would be released before

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the 48-week course of treatment would end. (Doc. 67, p. 4.) In a September 6, 2011

“Declaration” as to continued events since the filing of his third amended complaint,

Plaintiff reported that after during an August 25, 2011 consultation with Dr. Geerken,

interferon and ribavarin treatment was denied because he had less than 18 months left

of his sentence, per DOC protocol; Plaintiff’s elevated iron levels restricts his candidacy;

and Plaintiff’s status as a non-veteran restricts his candidacy. (Doc. 72, p. 2.) 

Plaintiff believes that he is entitled to interferon and ribavarin treatment for his

Hepatitis C. His doctors have concluded that such treatments are not indicated by his

condition. Plaintiff’s claim regarding his course of treatment is not sufficient to

4

establish deliberate indifference. See Estelle, 429 U.S. at 107; Waldrop v. Evans, 871

F.2d 1030, 1033 (11 Cir. 1989) (“‘[W]e disavow any attempt to second-guess the th

propriety or adequacy of a particular course of treatment. Along with all other aspects

of health care, this remains a question of sound professional judgment.’”) (quoting

Bowring v. Godwin, 551 F.2d 44, 48 (4 Cir. 1977)); Chance v. Armstrong, 143 F.3d

th

698, 703 (2d Cir.1998) ( “[i]t is well-established that mere disagreement over the proper

treatment does not create a constitutional claim. So long as the treatment given is

See also Bender v. Regier, 385 F.3d 1133 (8 Cir. 2004) (“Interferon treatment 4 th

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

decomposition of the liver. Its success rate is relatively low – 15-30% for regular

interferon and 40-50% for pegylated interferon treatment. The selection of patients for

interferon treatment is highly individualized and depends upon many factors. 

Treatment is not appropriate for individuals with advanced liver problems such as

cirrhosis. Treatment for patients with mild liver problems may be safely deferred. 

Suitability for treatment is determined by measuring the degree of liver inflammation

and fibrosis through a liver biopsy. However, even if the appropriate threshold levels of

inflammation and fibrosis are present, treatment may be inappropriate if the patient is

too young or too old, had a previous organ transplant, or suffers from depression, other

mental health problems, heart disease, or untreated chemical dependency.”).

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adequate, the fact that a prisoner might prefer a different treatment does not give rise to

an Eighth Amendment violation.”); Jackson v. Fair, 846 F.2d 811, 817 (1 Cir.1988) st

(“Although the Constitution does require that prisoners be provided with a certain

minimum level of medical treatment, it does not guarantee to a prisoner the treatment

of his choice.”). 

When presented with similar factual scenarios to the instant case, this Court, and

others, have declined to find an Eighth Amendment violation. In Loeber v. Department

of Corrections, an inmate suffering from Hepatitis C alleged an Eighth Amendment

violation because he was treated with lactulose and denied interferon and/or ribavirin. 

The Court found that DOC Defendants were entitled to qualified immunity because the

inmate failed to allege facts showing a violation of a constitutional right. 2010 WL

3272611, *2-*3 (N.D. Fla. Aug. 19, 2010). In Baldwin v. Perron, the district court

dismissed an inmate’s claim of Eighth Amendment deliberate indifference due to denial

of interferon and ribavarin. 2011 WL 1059120 (M.D. Ga. Mar. 23, 2011); Baldwin v.

Perron, 2011 WL 1103340 (M.D. Ga. Feb. 11, 2011) (Report and Recommendation of

Magistrate Judge). The plaintiff in Baldwin received treatment similar to Plaintiff in the

instant case–periodic diagnostic procedures, clinic visits, treatment with

medication–and his “disagreement with a particular mode or method of treatment” was

not sufficient to establish deliberate indifference. Baldwin, 2011 WL 1103340 at *6-*7.

See also Bender v. Regier, 385 F.3d 1133 (8 Cir. 2004). th

Hepatitis C is an objectively serious medical need that poses a substantial risk of

serious harm. However, Plaintiff has not presented facts to demonstrate deliberate

indifference. Plaintiff has not shown that his treatment and monitoring equated to a

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disregard of the risk of Hepatitis C or was, if anything, more than negligence. Cf. Brown

v. Johnson, 387 F.3d 1344, 1351 (11 Cir. 2004) (finding deliberate indifference where th

there was a “complete withdrawal of treatment” for Hepatitis C). Accordingly, Plaintiff’s

Eighth Amendment claim is due to be dismissed.

B. ADA Claim

The ADA prohibits discrimination on the basis of disability and has been found to

apply to prisoners. Pa. Dep’t of Corr. v. Yeskey, 524 U.S. 206, 210 (1998). However,

“the failure to provide adequate medical care is not by itself an ADA violation.” Loeber,

2010 WL 3272611at *3 (quoting Scott v. Campbell, 2009 WL 3028306 (N.D. Fla. Sept.

17, 2009)). Accordingly, Plaintiff cannot maintain a claim under the ADA.

C. State Law Claim

It is arguable whether Plaintiff intended to assert a state law negligence claim. 

However, liberally construing his pleadings to include such an allegation, the Court

should decline to exercise supplemental jurisdiction over any state law claims. The

decision to exercise supplemental jurisdiction under 28 U.S.C. § 1367(a) over pendent

state law claims rests within the discretion of the district court. Mergens v. Dreyfoos,

166 F.3d 1114, 1119 (11 Cir. 1999). Pursuant to 28 U.S.C. § 1367(c)(3), the district th

court may decline to exercise supplemental jurisdiction over state law claims where the

district court has dismissed all claims over which it has original jurisdiction. Where, as

here, the federal claims are dismissed prior to trial – and only the state claims remain –

the Eleventh Circuit has “encouraged” district courts to dismiss the remaining state

claims, rather than exercising the Court’s supplemental jurisdiction to resolve only the

state claims. Raney v. Allstate Ins. Co., 370 F.3d 1086, 1089 (11 Cir. 2004). th

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Accordingly, with regard to Plaintiff’s state law claims negligence, these claims are not

appropriate for resolution in federal court and, therefore, the Court should exercise its

discretion under § 1367(c)(3) and decline to exercise supplemental jurisdiction.

VI. CONCLUSION

In light of the foregoing, it is respectfully RECOMMENDED that Defendants'

motions to dismiss (Docs. 43 & 49) be GRANTED and this case should be

DISMISSED.

IN CHAMBERS this 20 day of January 2012. th

s/Gary R. Jones 

GARY R. JONES

United States Magistrate Judge

 

NOTICE TO THE PARTIES

Pursuant to Fed. R. Civ. P. 72(b)(2), a party may file specific, written objections

to the proposed findings and recommendations within 14 days after being

served with a copy of this report and recommendation. A party may respond

to another party’s objections within 14 days after being served with a copy

thereof. Failure to file specific objections limits the scope of review of

proposed factual findings and recommendations.

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