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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

DAVID L. KING,

Plaintiff,

v. CASE NO. 4:11-cv-11-MP-GRJ

DR. GILO, et al.,

Defendants.

_____________________________/

REPORT AND RECOMMENDATION

Plaintiff, an inmate presently incarcerated at Northwest Florida Reception Center

(NFRC), initiated this case by filing a complaint pursuant to 42 U.S.C. § 1983 and has

been granted leave to proceed as a pauper. Plaintiff is proceeding pursuant to an

Amended Complaint (Doc. 4). Upon careful consideration of Plaintiff's Amended

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. The

Court’s previous order directing Plaintiff to submit service copies of the Amended

Complaint will be withdrawn.

Plaintiff’s Allegations

Plaintiff makes the following allegation: “I was [exposed] to a toxic chemical

when I was younger. A pesticide around my private part. . . . That’s what’s causing all

these symptoms, lower back pains[,] lower abdominal pain[,] and a severe pain and

numbness in my left leg.” Plaintiff states that the prison medical personnel “know[] all

about my symptoms.” Plaintiff alleges that he has experienced lower back pain since

April 2008 when he began seeking “proper” medical treatment. He states that in August
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2010 he began losing the feeling in his left leg and arm “to go along with the back

pains.” He then began “to get a severe pain in my left leg.” Plaintiff alleges that at that

point he went to sick call and was referred to see Dr. Gilo, one of the named

Defendants. Dr. Gilo scheduled Plaintiff for an x-ray. Plaintiff contends, however, that

his symptoms require a “MRI and a tissue sample and a urine sample.” Plaintiff alleges

that he asked Dr. Gilo if the x-ray would reveal “a pinched nerve or a sliped [sic] disc or

a blood clot or ripped muscles. Dr. Gilo said no.” Plaintiff alleges that he wrote a

request for an MRI and described his symptoms, and that Health Care Administrator E.

Hand advised him to sign up for sick call if he was experiencing abdominal pain

because his records do not reflect that Plaintiff has abdominal pain. Plaintiff states that

Hand’s response to his request was “true,” but that his request was for an MRI and a

“tissue sample,” and those tests were not provided. Plaintiff alleges that he has “been

back and forth to sick call for two and a half years now,” but his symptoms have not

been treated and the “chemical is spreading through my body.” For relief, Plaintiff

seeks damages in the amount of “one million dollars in U.S. currency[] tax free,” and

“proper medical treatment.” Doc. 4. 

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

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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

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. 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

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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 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

th

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

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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

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

Even if Plaintiff’s allegations, liberally construed, establish that childhood

exposure to a toxic chemical is causing symptoms that give rise to an objectively

serious medical need, he has not alleged a deprivation of that need that is cognizable

under the Eighth Amendment. Plaintiff alleges that he was referred to a doctor upon

presenting to sick call with his complaints, and that the doctor ordered a diagnostic xray. He alleges that he has “been back and forth to sick call for two and a half years

now,” an allegation that does not suggest any deprivation of medical attention. 

Although Plaintiff alleges that prison officials have done “nothing” to treat his symptoms,

it is apparent from his factual allegations that the gist of his complaint is that the

Defendants have not complied with his wishes to have an MRI and “tissue samples.” 

He complains that both Gilo and Hand refused his requests for such further diagnostic

testing. The decision as to the type of treatment that is provided is a “classic example

of a matter for medical judgment,” that does not provide a basis for Eighth Amendment

liability. Estelle 429 U.S. at 107 (“A medical decision not to order an x-ray, or like

measures, does not represent cruel and unusual punishment.”).

Accordingly, the Court concludes that the allegations of the Amended Complaint

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fail to state a claim upon which relief may be granted. The order directing Plaintiff to

submit service copies of the Amended Complaint, Doc. 12, is WITHDRAWN.

Conclusion

For the foregoing reasons, it is respectfully RECOMMENDED that the Amended

Complaint, Doc. 4, 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 14 day of April 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.

Case No: 4:11-cv-11-MP-GRJ