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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

GAINESVILLE DIVISION

JOSEPH FRANK LEE,

Plaintiff,

v. CASE NO. 1:11-cv-27-MP-GRJ

ALACHUA COUNTY, et al.,

Defendants.

_____________________________/

REPORT AND RECOMMENDATION

Plaintiff, a prisoner presently incarcerated at Taylor Correctional Institution,

initiated this case by filing a complaint pursuant to 42 U.S.C. § 1983 (Doc. 1). Plaintiff

was granted leave to proceed as a pauper and has paid an initial partial filing fee. 

Plaintiff’s claims stem from a viral illness that he suffered while he was a pretrial

detainee at the Alachua County Jail. Upon careful consideration of Plaintiff's

Complaint, it is recommended that this case be dismissed pursuant to 28 U.S.C.

§ 1915(e)(2)(B)(ii) for failure to state a claim upon which relief can be granted. 

Plaintiff’s Allegations

The factual allegations of the Complaint may be summarized as follows. In

March 2009, an outbreak of a virus at the Alachua County Jail caused numerous

inmates and corrections officers to suffer from vomiting and diarrhea. Plaintiff began

experiencing symptoms around 4:15 a.m. on March 9. Plaintiff vomited and

experienced nausea, diarrhea, chest and stomach pain, and uncontrollable shaking. A

corrections officer approached Plaintiff, and Plaintiff requested medical treatment. The

officer stated “you’ve got that virus,” and told Plaintiff he would call the medical

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department and relay Plaintiff’s symptoms. Within 30 or 45 minutes, the officer told

Plaintiff that the nurse on duty said there was a virus going around and that Plaintiff

should stay in bed and drink plenty of water. Plaintiff was unable to eat due to nausea

and chest and stomach pain, and could not keep water down.

At around 8:00 a.m., Plaintiff approached an officer and requested to go to the

medical department. The officer told Plaintiff to go back to bed and continue drinking

water as the nurse had instructed. Plaintiff continued to experience severe viral

symptoms through the night of March 9.

On March 10, 2009, Plaintiff was unable to eat and continued to experience

symptoms including severe diarrhea and vomiting, and chest, stomach, and rectal pain. 

Plaintiff’s symptoms caused him to soil his clothes. While he was in the bathroom,

another inmate brought an officer to see him. Plaintiff asked to go to the medical

department, but the officer told Plaintiff that the nurse was not permitting inmates to go

to the medical department because all of the beds were occupied. The officer told

Plaintiff that a nurse was bringing Pepto-Bismol tablets to the sick inmates. At around

1:30 p.m. on March 10, Plaintiff received Pepto-Bismol. The nurse would not give

Plaintiff a sick-call slip because the medical department was not accepting sick call

requests from inmates who were complaining about viral symptoms. Plaintiff told the

nurse that drinking water made his symptoms worse and that he had high blood

pressure and wanted to have his blood pressure checked. The nurse told Plaintiff that

he was only on the pods to distribute Pepto-Bismol.

Plaintiff alleges that he fell asleep or passed out. He awoke on the night of

March 10 around 10:40 p.m. He was thirsty and shaking uncontrollably, and had

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severe stomach pain, shortness of breath, and dizziness. He alleges that he passed

out again, and awoke after falling out of bed and hitting his head. Other inmates helped

him back into bed, and he drank some more water and vomited. An officer came to his

bed, and Plaintiff requested medical treatment for his stomach. The officer told Plaintiff

he would have to “wait, like the nurses said, until the virus plays itself out.” Plaintiff

alleges that this response caused “outrage” among the inmates. A shift supervisor was

called, and Plaintiff told the supervisor that he had been sick with the virus for two days. 

He asked to see a doctor in order to receive medication for his stomach pain, but the

supervisor ordered him to go back to bed. Plaintiff asked for a grievance form, but the

supervisor said “there’s nothing to file a grievance for . . . the nurses know about the

virus and have told [Plaintiff] to stay in bed and drink plenty of water and wait for the

virus to play itself out.”

Plaintiff alleges that he fell asleep, or passed out, and was awakened on the

morning of March 11 by an officer who told Plaintiff that he had a court hearing. 

Plaintiff was still unable to eat or drink, and again asked to go to the medical

department. The officer did not take Plaintiff to the medical department. The officer

told Plaintiff to take a shower and brought Plaintiff clean clothing for the hearing. 

Although Plaintiff was in weak physical condition, he attended the hearing. The court

asked about his condition and the jail officers informed the court that there was an

outbreak of a virus at the jail, and that Plaintiff was one of the affected inmates. Plaintiff

told the court that he was able to proceed with the hearing, but Plaintiff’s counsel was

not prepared and obtained a continuance. Plaintiff alleges that he was helped from the

hearing by two officers and that he was “drifting in and out of consciousness.” Plaintiff

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alleges that he fell in the sally-port and hit his head. He was carried into the jail by

another inmate and placed in a wheelchair. Plaintiff was shaking uncontrollably from

chills, and was helped into his bed where he fell asleep or passed out. 

Plaintiff awoke gasping for air and very thirsty. He got out of bed to get water,

but fell and hit his head. He awoke in a wheelchair being pushed into the medical

department, where he was placed in a bed. Plaintiff alleges that the next thing he

recalls is being shaken awake by a nurse, who then ran from his bedside. Plaintiff

heard voices calling his name, and then saw firemen who yelled at Plaintiff to stay

awake. Plaintiff passed out again, and awoke in a bed at North Florida Regional

Medical Center.

Plaintiff was hospitalized for four days, from March 12-16, 2009. Plaintiff does

not describe the treatment he received at the hospital. Plaintiff alleges that following his

return to the Alachua County Jail the Defendants’ “deliberate indifference to my serious

or substantial medical needs continued,” in that Defendants “ignored or disregarded my

need for medical follow up care or the medical follow up care was inadequate.” Plaintiff

alleges that as a result he now suffers pain in his kidneys, stomach, intestines, groin,

and bladder, and shortness of breath, which Plaintiff attributes to damage or scarring

caused by “the delay in medical care.” 

Plaintiff names as Defendants “Alachua County, Alachua County

Commissioners, [Sheriff] Sadie Darnell, Robert Woody, Prison Health Services, Inc.,”

and unnamed John Doe officers and nurses. Plaintiff alleges that Defendants were

deliberately indifferent in diagnosing or failing to diagnose his illness, which he

describes as “clostridium difficile colitis, gastroenteritis, acute tubular necrosis versus

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prerenal, thrombocytopenia, dehydration and hyporolemia, including, renal or kidney

failure.” Plaintiff alleges that Defendants were deliberately indifferent in failing to

prevent the onset of his illness, and that a delay in treatment caused life-threatening

side effects. Plaintiff contends that Defendants had a “custom, policy, or practice” of

vesting complete medical authority in jail officers, but did not provided adequate training

to such officers in recognizing when medical treatment is required. Plaintiff seeks

compensatory and punitive damages. 

Standard of Review

Pursuant to 28 U.S.C. § 1915(e)(2), “notwithstanding any filing fee, or any

portion thereof, that may have been paid, the court shall dismiss the case at any time if

the court determines that . . . the action . . . fails to state a claim upon which relief may

be granted.” 

To state a claim for relief under 42 U.S.C. § 1983, a plaintiff must allege that an

act or omission committed by a person acting under color of state law deprived him of a

right, privilege, or immunity secured by the Constitution or laws of the United States. 

Hale v. Tallapoosa County, 50 F.3d 1579, 1582 (11th Cir.1995). If a litigant cannot

satisfy these requirements, or fails to provide factual allegations in support of the

claims, then the complaint is subject to dismissal. See Bell Atlantic Corp. v. Twombly,

550 U.S. 544, 555 (2007) (noting that “[f]actual allegations must be enough to raise a

right to relief above the speculative level,” and complaint “must contain something more

. . . than . . . a statement of facts that merely creates a suspicion [of] a legally

cognizable right of action”); Ashcroft v. Iqbal, ___ U.S. ___, 129 S.Ct. 1937, 1951-53

(2009) (Twombly “expounded the pleading standard for all civil actions,” and conclusory

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allegations that “amount to nothing more than a formulaic recitation of the elements of a

constitutional . . . claim” are “not entitled to be assumed true,” and, to escape dismissal,

complaint must allege facts sufficient to move claims “across the line from conceivable

to plausible.”). 

A pro se litigant's allegations are entitled to the benefit of liberal construction.

Haines v. Kerner, 404 U.S. 519, 520 (1972). However, a court does not have “license .

. . to rewrite an otherwise deficient pleading [by a pro se litigant] in order to sustain an

action.” GJR Investments v. County of Escambia, Fla., 132 F.3d 1359, 1369 (11th

Cir.1998) (overruled on other grounds by Iqbal).

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. Claims of deliberate indifference to

the serious medical needs of pretrial detainees are governed by the Fourteenth

Amendment's Due Process Clause, rather than by the Eighth Amendment's Cruel and

Unusual Punishment Clause. Andujar v. Rodriguez, 486 F.3d 1199, 1203 n. 3 (11th

Cir.2007). However, pretrial detainees are afforded the same protection as prisoners,

and cases analyzing deliberate indifference claims of pretrial detainees and prisoners

can be used interchangeably. Id.

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

th

has been deprived of medical attention requires that the prisoner demonstrate (1) “an

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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 (11th

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

(11th Cir.1991); see also Adams v. Poag, 61 F.3d 1537, 1545 (11 Cir. 1995) (“[A]s th

Estelle teaches, the 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)); 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

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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

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

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

(“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.”).

Discussion

Assuming that Plaintiff’s viral symptoms amount to an objectively serious medical

need, the facts alleged by Plaintiff do not support a conclusion that Defendants’

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

pain.” See Taylor, 221 F.3d at 1258. Plaintiff’s allegations reflect that he exhibited

severe viral symptoms beginning on the morning of March 9, 2011. Plaintiff’s

allegations further reflect that the jail was in the midst of a viral outbreak, and that many

inmates and officers were suffering from similar symptoms. Plaintiff’s allegations show

that jail officials immediately reported Plaintiff’s symptoms to the nurse on duty, who

recommended that Plaintiff stay in bed and drink plenty of water until the virus ran its

course. Affected inmates were provided with Pepto-Bismol tablets. The type and

duration of symptoms described by Plaintiff – though clearly unpleasant – are familiar to

anyone who has suffered from a severe stomach virus, as is the course of treatment

implemented by the nurse. Although Plaintiff contends that he should have been

treated within the medical department, in view of the fact that the jail was in the midst of

an outbreak and there were no available beds in the medical department, the decision

to have affected inmates remain in their pods reflects an exercise of medical judgment

that does not provide a basis for liability under the Eighth Amendment. See Waldrop,

871 F.2d at 1033. Outbreaks of contagious viruses are a normal incident of human life,

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and Plaintiff has alleged no facts suggesting that jail officials inflicted unnecessary and

wanton pain upon him by failing to prevent him from contracting a virus that afflicted

many other inmates. 

Plaintiff’s factual allegations show that his viral symptoms worsened on the night

of March 11 or early on March 12, 2009 (two to three days after the onset of

symptoms), when he got out of bed to get water and fell, hit his head, and passed out. 

His allegations show that he was taken to the medical department, and from there was

transported to a hospital where he received unspecified treatment for four days. There

is nothing in the sequence of events described by Plaintiff that suggests that

Defendants’ response to his needs was constitutionally inadequate; indeed the

allegations support a conclusion that Defendants’ actions, in the face of Plaintiff’s

worsening symptoms, were prompt and appropriate. 

Plaintiff contends that Defendants were deliberately indifferent to his serious

medical needs following his release from the hospital, but Plaintiff has alleged no facts

in support of that claim and such conclusional allegations do not support a basis for

relief under § 1983. Liberally construing the Complaint, Plaintiff alleges that as a result

of complications from his viral illness he now suffers from abdominal pains and

shortness of breath, but – as explained above – Plaintiff’s factual allegations do not

support a conclusion that any such remaining effects are the result of a violation of his

Eighth Amendment rights by Defendants. 

Conclusion

For the foregoing reasons, the Court concludes that the allegations of the

Complaint fail to state a claim upon which relief may be granted. It is respectfully

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RECOMMENDED that the Complaint, Doc. 1, be DISMISSED pursuant to 28 U.S.C

§ 1915(e)(2)(B)(ii) for failure to state a claim upon which relief may be granted..

IN CHAMBERS this 4 day of May 2011. 

th

s/Gary R. Jones 

GARY R. JONES

United States Magistrate Judge

NOTICE TO THE PARTIES

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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