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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PANAMA CITY DIVISION

BERNARD PARKS,

Plaintiff,

v. CASE NO. 5:11-cv-117-SPM-GRJ

FRANK MCKEITHEN and

RICK ANGLIN,

Defendants.

_____________________________/

REPORT AND RECOMMENDATION

Plaintiff, a pretrial detainee at the Bay County Jail, initiated this case by filing a

complaint pursuant to 42 U.S.C. § 1983 and is proceeding pursuant to an amended

complaint, Doc. 7. Plaintiff seeks leave to proceed as a pauper (Doc. 2). The

Defendants are Bay County Sheriff Frank McKeithen and Bay County Jail Warden Rick

Anglin. Upon consideration of Plaintiff’s claims, it is recommended that leave to

proceed as a pauper be denied and that this case be dismissed pursuant to 28 U.S.C.

§ 1915A(b)(1) for failure to state a claim upon which relief can be granted. 

Plaintiff’s Allegations

Plaintiff’s claims may be summarized as follows. Upon being detained at the

Bay County Jail, Plaintiff was examined in the jail’s medical department. Plaintiff stated

that he had a “right ac joint seperation [sic]” and lower back pain; he requested a lower

bunk pass. Following his examination by the jail’s nurse, Plaintiff was denied a lower

bunk pass and was assigned to an upper bunk in his housing unit. After one and onehalf months, Plaintiff fell and injured his “right ac joint, left shoulder, and lower back.” 

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Plaintiff alleges that he filled out a request for a lower bunk, and that after he fell a

second time he filled out an inmate sick call request. Plaintiff was seen by K. Smith,

R.N., who again denied him a lower bunk pass. Plaintiff was scheduled to see jail

physician Dr. Lippman about receiving a lower bunk pass. Before seeing Dr. Lippmann,

Plaintiff spoke to Lt. Gresco and Lt. Sword about a pass, and both officers told Plaintiff

that they would move him to a lower bunk if Dr. Lippmann did not. Plaintiff requested to

be seen by an outside physician and requested an increase in pain medication. Plaintiff

was not seen by an outside physician, but he was scheduled for x-rays and he was

examined by Dr. Lippman, who prescribed pain medication and wrote Plaintiff a lower

bunk pass.

Plaintiff alleges that the denial of a lower bunk pass amounted to deliberate

indifference to his serious medical needs. Plaintiff alleges that Defendants’ failure to

install ladders on the jail’s bunks violates his right to a safe environment. Plaintiff

complains that he was denied access to an outside medical provider. For relief, Plaintiff

requests an injunction prohibiting inmates from being assigned to top bunks until

Defendants add ladders to the bunks, and an order that all inmates who are assigned to

top bunks be transferred to a facility with step ladders. 

Standard of Review

Pursuant to 28 U.S.C. § 1915A, the court “shall review . . . a complaint in a civil

action in which a prisoner seeks redress from a governmental entity or officer or

employee of a governmental entity,” and shall “dismiss the complaint . . . if the

complaint . . . 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

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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 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).

Discussion

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

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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 prevail on a deliberate indifference to serious medical need claim, [a plaintiff]

must show: (1) a serious medical need; (2) the defendants' deliberate indifference to

that need; and (3) causation between that indifference and the plaintiff's injury.” Mann v.

Taser Intern., Inc., 588 F.3d 1291, 1306–07 (11th Cir. 2009). To establish the second

element, deliberate indifference to the serious medical need, the plaintiff must show:

“(1) subjective knowledge of a risk of serious harm; (2) disregard of that risk; and (3) by

conduct that is more than mere negligence.” Brown v. Johnson, 387 F.3d 1344, 1351

(11th Cir.2004); see also Farmer v. Brennan, 511 U.S. 825, 837, 114 S.Ct. 1970, 1979,

128 L.Ed.2d 811 (1994) (explaining that the plaintiff must show that the defendant was

“both [ ] aware of facts from which the inference could be drawn that a substantial risk

of serious harm exist[ed], and he must also [have] draw[n] the inference”).

Even with a liberal construction, the allegations of the amended complaint fail to

state a claim against the named Defendants. Plaintiff’s factual allegations do not

implicate the named Defendants in any way. Supervisory officials are not liable under

§ 1983 for the unconstitutional acts of their subordinates on the basis of respondeat

superior or vicarious liability. In order to be liable, the claimant must show that the

official “personally participate[d]” in the act or there was “causal connection between the

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actions of [the] supervising official and the alleged constitutional deprivation.” Cottone v.

Jenne, 326 F.3d 1352, 1360 (11th Cir.2003). The complaint is devoid of such

allegations.

Further, even if Plaintiff’s asserted medical condition was objectively serious, his

factual allegations reflect that the jail medical personnel and staff responded to his

complaints by providing him with medical attention and a low bunk pass. To the extent

that Plaintiff argues he should have been given a low bunk pass when he was initially

detained and examined by the medical department, such argument reflects a mere

disagreement with the medical judgment of the nurse who initially decided that

Plaintiff’s medical condition did not warrant a low bunk pass. 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 (11th Cir.1991); see also th

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

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. th

1989) (“‘[W]e disavow any attempt to second-guess the 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 698, 703 (2d Cir.1998) (“It is th

well-established that mere disagreement over the proper treatment does not create a

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constitutional claim.”). For the same reason, the fact that jail medical personnel did not

refer Plaintiff to an outside physician does not provide a basis for Eighth Amendment

liability. See 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 complaint fail to state

a claim upon which relief may be granted. It is respectfully RECOMMENDED that leave

to proceed as a pauper, Doc. 2, be DENIED, and that this case be DISMISSED

pursuant to 28 U.S.C § 1915A(b)(1) for failure to state a claim upon which relief may be

granted.

IN CHAMBERS this 8 day of June 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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