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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PANAMA CITY DIVISION

KNOLLY EDWARDS,

Plaintiff,

v. CASE NO. 5:10-cv-286-RH-GRJ

UNKNOWN FEDERAL OFFICERS,

Defendants.

_____________________________/

REPORT AND RECOMMENDATION

Plaintiff, an inmate serving a sentence in the custody of the United States

Bureau of Prisons, initiated this case by filing a pro se complaint in the Middle District of

Florida on the Middle District of Florida’s civil rights complaint form for prisoners in

actions under 28 U.S.C. § 1331 or § 1346. (Doc. 1.) This case was transferred to this

Court on November 3, 2010. (Doc. 4.) Plaintiff is currently proceeding pursuant to a

Second Amended Complaint. (Doc. 18.) The case is presently before the Court on

Doc. 24, Defendants’ Motion to Dismiss, or in the Alternative, for Summary Judgment. 

Plaintiff filed a response to the motion to dismiss, Doc. 27, and therefore this matter is

ripe for review. For the following reasons, the undersigned recommends that the

motion to dismiss be granted, and that judgment be entered in Defendants’ favor. 

I. BACKGROUND

Plaintiff alleges that he was employed by Federal Prison Industries (“FPI”) at the

Federal Correctional Institute in Marianna, Florida (“FCI Marianna”). His position

included breaking-down, disassembling, and salvaging parts from computers,
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televisions, and other electronic items. Plaintiff alleges that during his employment, he

was exposed to thick clouds of dust that contained high levels of lead and cadmium. 

He alleges that Defendants did not provide him with any protective equipment to shield

him from exposure to this dust, and that while he complained of exposure to the dust,

Defendants led him to believe that the dust was safe. Plaintiff alleges that workers who

complained about exposure to the dust were fired or transferred to other penal

institutions, and that he was transferred to the Federal Correctional Complex in

Coleman, Florida (“FCC Coleman”). 

Plaintiff alleges that after being apprised of worker complaints, Federal Bureau of

Prisons’ Director Harley Lappin requested the Office of the Inspector General to

conduct a review of the FPI’s electronics recycling program in April 2006. He states

that the Occupational Safety and Health Administration (“OSHA”), the Federal

Occupational Health Service (“FOH”), and the National Institute for Occupational Safety

and Health (“NIOSH”) conducted this investigation, and that NIOSH released a

preliminary report in July 2008 that confirmed that glass breaking occurred in the

recycling program without the use of respiratory protection. Plaintiff alleges that during

his employment with FPI, there was no “sawdust collection system” nor “glass breaking

room” that would have minimized his exposure to heavy metal dust. Plaintiff alleges

that federal officers employed as foreman and forewomen in FPI threatened to

terminate his employment if he complained about the hazardous conditions. 

He alleges that he first learned about the affect on him of being exposed to

heavy metal dust in October 2008, when the Office of the Inspector General released a

report on the elements to which he was exposed. Plaintiff alleges that in 2009, he

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began experiencing digestive problems, acute respiratory symptoms, short-term

memory loss, muscle pain, headaches, problems urinating, and abnormal skin lesions. 

He alleges that when he sought medical treatment, he was advised that his health

problems were the result of his previous employment at FPI. He alleges that

immediately upon receiving this information, he began making administrative

complaints within the Federal Bureau of Prisons system. He alleges that Defendants

failed to address the working conditions he complained of, and considered his

administrative complaints “moot or improper.” (Doc. 18, at 7.) 

Plaintiff alleges that Defendants advised him to use aspirin, antibiotic cream,

water, fiber supplements, breathing exercises, and muscle rub for his health issues. He

alleges that Defendants have deprived him of adequate medical treatment in an effort

to conceal the severe injuries caused by the unsafe working conditions at FPI. 

Plaintiff’s second amended complaint enumerates four claims for relief. 

Plaintiff’s first claim is that Defendants exposed him to unsafe, hazardous, and

dangerous working conditions by depriving him of proper protective equipment. His

second claim is that Defendants subjected him to cruel and unusual punishment in

violation of the Eighth Amendment, by subjecting him to unsafe working conditions

without protective gear. Plaintiff’s third claim is that Defendants violated his First

Amendment rights by threatening to retaliate and actually retaliating against him for

complaining about the unsafe working conditions. Plaintiff’s fourth and final claim is

that Defendants violated his Eighth Amendment rights through deliberate indifference to

his medical needs. Plaintiff seeks the following forms of relief: $5,000,000 in “general

compensation,” $5,000,000 in punitive damages, and “immediate medical treatment by

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a specialized outside medical practitioner experienced in respiratory treatment,

dermatologist treatment, and other areas to which Plaintiff’s injuries are factored.” 

(Doc. 18, at 8.)

II. DEFENDANTS’ MOTION TO DISMISS

Defendants argue that to the extent that Plaintiff is seeking damages for injuries

that he received during his employment at FCI Marianna, the exclusive remedy is a

claim under the Inmate Accident Compensation Act (“IACA”), 18 U.S.C. § 4126(c)(4). 

Defendants argue that the IACA is also the exclusive remedy for claims of improper

medical treatment of a work-related injury. Accordingly, Defendants argue that

Plaintiff’s claims of work-related injury and deliberate indifference to medical needs

should be dismissed, because those claims are properly brought only under the IACA. 

Defendants assert that the Court has no jurisdiction to hear these work-related claims,

and in the alternative, that Plaintiff has failed to state a claim upon which relief can be

granted.

Defendants also argue that Plaintiff’s claims of work-related injury and deliberate

indifference to his medical needs should be dismissed because he has failed to

exhaust his administrative remedies. Defendants allege that Plaintiff filed only one

administrative complaint related to his instant claims, regarding exposure to toxic

substances during his employment at FPI. Defendants allege that Plaintiff never filed

any administrative complaints regarding insufficient medical care, and that those claims

should therefore be dismissed.

Finally, Defendants argue that Plaintiff has failed to state a claim of deliberate

indifference to his medical needs, because his complaint consists of only vague and

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conclusory allegations related to this issue. 

III. STANDARD OF REVIEW

 For the purposes of a motion to dismiss, the Court must 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 (11th Cir.1994). 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

(11th Cir.1993). 

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,’

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

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pro se complaint).1

IV. DISCUSSION

(1) Exposure to Unsafe Working Conditions

Plaintiff’s first and second claims pertain to his alleged exposure to toxic heavy

metal dust during his employment with FPI at FCI Marianna. He claims first that

Defendants exposed him to “unsafe, hazardous, and dangerous working conditions by

depriving Plaintiff of proper protective equipment,” and second, that this exposure

constituted cruel and unusual punishment. Plaintiff’s first claim – a tort claim – must be

analyzed under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 2674. His second

claim – based upon a violation of his Eighth Amendment rights – must be analyzed

under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403

U.S. 388 (1971). 

Defendants argue that the Court lacks subject matter jurisdiction to entertain

both of these claims, because the exclusive remedy for claims of work-related injury is

the IACA. Defendants argue in the alternative that Plaintiff fails to state a claim upon

which relief can be granted, because his claims are barred by the IACA. The Court

agrees in part, and for the following reasons, the undersigned recommends that

Plaintiff’s first and second claims be dismissed.

Plaintiff’s first claim is subject to dismissal because the Inmate Accident

Compensation Act is the exclusive remedy for tort claims brought as a result of workrelated injuries. 

Pursuant to Eleventh Circuit Rule 36-2, unpublished opinions are not considered 1

binding precedent, but may be cited as persuasive authority. 

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Congress created a scheme to compensate inmates for injuries

sustained in the course of their penal employment-the Inmate Accident

Compensation Act. Cooleen v. Lamanna, 2007 WL 2687319, *4 (3d Cir.

Sept. 14, 2007). By statute, the Federal Prison Industries Fund pays

“compensation to inmates or their dependents for injuries suffered in any

industry or in any work activity in connection with the maintenance or

operation of the institution in which the inmates are confined.” 18 U.S.C.

§ 4126(c)(4); see also 28 C.F.R. § 301.301 (regulating such claims).

Federal prisoners seeking compensation for injuries sustained during

penal employment are limited to the remedy provided by section 4126, as

there “is no indication of any congressional purpose to make . . . 18

U.S.C. § 4126 non-exclusive.” United States v. Demko, 385 U.S. 149, 152

(1966). This principle has been uniformly applied. See Pickens v.

Federal Bureau of Prisons, 113 F. 3d 1246 (10th Cir.1997) (Table) (noting

the magistrate judge properly found the IAC is an exclusive remedy);

Vaccaro v. Dobre, 81 F. 3d 854, 857 (9th Cir.1996) (recognizing that 18

U.S.C. § 4126(c)(4) is a prisoner's exclusive remedy against the

government for work-related injuries); Wooten v. United States, 825 F. 2d

1039, 1044 (6th Cir.1987) (explaining that section 4126 is the exclusive

remedy for a federal prisoner injured in the performance of an assigned

task while in a federal penitentiary and thus bars a prisoner's FTCA

claim); Aston v. United States, 625 F. 2d 1210, 1211 (5th Cir., Unit B

1980) (finding Demko made it clear that section 4126 is the sole remedy

against the government where an inmate's injury is work-related and that

the cause of the injury is irrelevant so long as the injury occurred while the

inmate was on the job).

Nettles v. United States, No. CV206-128, 2008 WL 356622, at *3 (S.D. Ga. Feb.

6, 2008). Here, it is undisputed that Plaintiff seeks compensation for injuries

allegedly sustained during the course of his employment with FPI at FCI

Marianna. In United States v. Demko, the Supreme Court expressly held that

the IACA was the “exclusive remedy” for such claims, and that an inmate could

not bring a “supplemental” claim under the Federal Tort Claims Act. Demko, 385

U.S. at 152. See also Smith v. United States, 561 F. 3d 1090, 1099 (10 Cir. th

2009); Cooleen v. Lamanna, 248 F. App’x 357, 362 (3d Cir. 2007); Ellis v. Fed.

Prison Indus., 95 F. 3d 54, 54 (5 Cir. 1996). Accordingly, Plaintiff’s first claim is th

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due to be dismissed.

Plaintiff’s second claim – that Defendants violated his Eighth Amendment

rights and subjected him to cruel and unusual punishment by subjecting him to

unsafe working conditions – arises under Bivens. Defendants do not distinguish

between Plaintiff’s tort claims and constitutional claims in their motion to dismiss,

and argue that all claims of exposure to unsafe working conditions are subject to

dismissal because IACA is Plaintiff’s exclusive remedy. The law, however, is not

settled on the question of whether IACA bars Bivens constitutional claims as well

as tort claims that arise from work-related injuries. See, e.g., Smith, 561 F. 3d at

1103 (holding that IACA only bars tort claims, not Bivens claims); Bagola v.

Kindt, 131 F. 3d 632, 645 (7 Cir. 1997) (same); Vaccaro v. Dobre, 81 F. 3d 854, th

857 (9 Cir. 1996) (same). Compare Springer v. United States, No. 99-6276,

th

2000 WL 1140767, at *1 (6 Cir. Aug. 8, 2000) (holding that IACA bars both tort th

claims and Bivens claims); Walls v. Holland, No. 98-6506, 1999 WL 993765, at

*1 (6 Cir. Oct. 18, 1999) (same); Fraley v. DOJ, No. 96-5666, 1997 WL 225495, th

at *1 (6 Cir. May 1, 1997) (same). While the law is unsettled on this issue the

th

Court need not address the issue of whether Plaintiff’s Bivens claim is barred by

the IACA, because Plaintiff’s claim of exposure to dangerous working conditions

does not rise to the level of a constitutional violation. 

Plaintiff’s Eighth Amendment claim essentially is a claim that prison

officials were deliberately indifferent to his safety when they subjected him to an

unsafe working environment. “[D]eliberate indifference has three components:

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

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by conduct that is more than mere negligence.” Richardson v. Johnson, 598 F.

3d 734, 737 (11 Cir. 2010) (quoting Farrow v. West, 320 F. 3d 1235, 1245 (11th

th

Cir.2003)). In the workplace safety context, “prison officials are deliberately

indifferent when they ‘knowingly compel convicts to perform physical labor which

is beyond their strength, or which constitutes a danger to their lives or health, or

which is unduly painful.’ Smalls, 2007 WL 1827465, at *7 (quoting Ray v. Mabry,

556 F. 2d 881, 882 (8th Cir.1977); citing Morgan v. Morgensen, 465 F. 3d

1041,1045 (9 Cir. 2006); Jackson v. Caine, 864 F. 2d 1235, 1246 (5th th

Cir.1989); Franklin v. Kansas Dep't of Corrections, 160 F. App’x 730, 736 (10th

Cir. 2005)). “[M]ere failure to provide proper instructions or safety devices for

use on prison work details does not constitute deliberate indifference.” Smalls,

2007 WL 1827465, at *7. Rather, such claims sound in negligence. Deliberate

indifference is found “when a prison official knowingly compels a prisoner to

perform work that involves an imminent threat of serious physical harm posing a

danger to the prisoner’s life or health.” Id. at *8.

In this case Plaintiff’s allegations – even liberally construed -- support a

claim of negligence, rather than a constitutional violation. Plaintiff alleges that

prison officials failed to provide him with adequate protective equipment in his

work with FPI, but he does not allege that the officials knew of a risk of serious

harm to Plaintiff or that they knowingly disregarded that risk. “To convert

conduct that does not even purport to be punishment into ‘cruel and unusual

punishment, defendants must demonstrate more than ordinary lack of due care

for the prisoner's interests or safety.” Arnold v. South Carolina Dep’t of Corr.,

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843 F. Supp. 110, 113 (D. S.C. 1994) (quoting Whitley v. Albers, 475 U.S. 312,

319 (1986)). The Court, therefore, concludes that Plaintiff has alleged, at best,

that the conduct of prison officials evidenced a lack of due care but that the claim

as alleged does not rise to the level of deliberate indifference. Accordingly, the

Plaintiff’s Bivens claim should be dismissed for failure to state a claim upon

which relief can be granted. 

(2) First Amendment claim

Plaintiff alleges that Defendants violated his First Amendment rights by

“threatening to and/or retaliating against Plaintiff for his complaints regarding the unsafe

and hazardous working conditions.” (Doc. 18, at 8.) This claim is due to be dismissed

because Plaintiff has failed to exhaust his administrative remedies.

The Prisoner Litigation Reform Act, 42 U.S.C. § 1997e(a), requires a prisoner to

exhaust all available administrative remedies before filing an action challenging prison

conditions. “This requirement is a ‘pre-condition to suit’ that must be enforced even if

the available administrative remedies are ‘futile or inadequate.’” Logue, v. Pearson,

2011 U.S. Dist. LEXIS 66950, *2-3 (S.D. Ga. 2011) (citing Harris v. Garner, 190 F.3d

1279, 1285-86 (11 Cir. 2005)). Exhaustion is mandatory under the PLRA, and

th

unexhausted claims are not permitted. See Jones v. Bock, 549 U.S. 199, 211 (2002). 

In the Eleventh Circuit, the defense of failure to exhaust under the PLRA is

considered a matter in abatement under Fed. R. Civ. P. 12(b) and, thus, is treated like a

defense of lack of jurisdiction. Bryant v. Rich, 530 F.3d 1368, 1374, 1376 (11 Cir. th

2008). Deciding a motion to dismiss for failure to exhaust administrative remedies

requires a two-step process as established in Turner v. Burnside, 541 F.3d 1077, 1082

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(11 Cir. 2008). The Court first “looks to the factual allegations in the defendant’s th

motion to dismiss and those in the plaintiff’s response, and if they conflict, takes

plaintiff’s version of the facts as true. If, in that light, the defendant is entitled to have

the complaint dismissed for failure to exhaust administrative remedies, it must be

dismissed.” Id. at 1082. If the complaint is not subject to dismissal through the first

step, the Court “proceeds to make specific findings in order to resolve the disputed

factual issues related to exhaustion.” Id. 

“Where exhaustion–like jurisdiction, venue, and service of process–is treated as

a matter in abatement and not an adjudication on the merits, it is proper for a judge to

consider facts outside of the pleadings and to resolve factual disputes so long as the

factual disputes do not decide the merits and the parties have sufficient opportunity to

develop the record.” Bryant, 530 F.3d at 1376. Affording the district court this

discretion advances the purposes of the PLRA: “Requiring jury trials to resolve factual

disputes over the preliminary issue of exhaustion would be a novel innovation for a

matter in abatement and would unnecessarily undermine Congress’s intent in enacting

the PLRA’s exhaustion requirement[.]” Id. at 1376-77 (internal citations omitted).

To exhaust his administrative remedies, the Plaintiff in this case was required to

file a form BP-9 with the warden of the institution within 20 days of the alleged

retaliation or threat or retaliation. 28 C.F.R. 542.14(a); Okpala v. Drew, 248 F. App’x 72

(11 Cir. 2007); Martin v. Zenk, 244 F. App’x 974 (11 Cir. 2007). An appeal to the

th th

director using the form BP-10 was also required following the warden’s decision. 28

C.F.R. 542.15(a). The final administrative step would have been an appeal to the

general counsel on a form BP-11. Id. 

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Plaintiff contends that he exhausted his administrative remedies. However,

Defendants’ motion and attached affidavit and exhibits set forth uncontroverted facts

showing that Plaintiff failed to fully exhaust his First Amendment claim. Plaintiff filed an

administrative remedy request pertaining to the exposure to toxic dust while working at

FPI. In that request, he claimed that Defendants subjected him to cruel and unusual

punishment by exposing him to toxic dust, but did not mention any threats of retaliation

or actual retaliation. It is thus clear that Defendants’ motion to dismiss Plaintiff’s First

Amendment claim for failure to exhaust administrative remedies is due to be granted. 

See Turner, 541 F.3d 1082.

Alternatively, even assuming arguendo that Plaintiff had exhausted his

administrative remedies, his First Amendment claim would be subject to dismissal for

failure to state a claim upon which relief can be granted. To establish an actionable

First Amendment retaliation claim, “the inmate must establish these elements: (1) his

speech was constitutionally protected; (2) the inmate suffered adverse action such that

the administrator's allegedly retaliatory conduct would likely deter a person of ordinary

firmness from engaging in such speech; and (3) there is a causal relationship between

the retaliatory action and the protected speech.” Smith v. Mosley 532 F. 3d 1270,

1276 (11 Cir. 2008) (citing Bennett v. Hendrix, 423 F. 3d 1247, 1250, 1254 (11th Cir. th

2005)). The Eleventh Circuit has held that a plaintiff suffers adverse action if the

defendant’s alleged retaliatory conduct would likely deter a person of ordinary firmness

from exercising his First Amendment rights. The plaintiff does not have to show that his

own exercise of First Amendment rights has been chilled. Bennett, 423 F. 3d at 1254.

Here, the only factual allegations related to Plaintiff’s First Amendment claims

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are as follows:

8. Workers who made consistent complaints about the lead and

cadmium exposures were either fired or transferred to another penal

institution.

9. Plaintiff was transferred to Federal Correctional Complex,

Medium, Coleman, Florida on or about. [sic]

18. Various unknown federal officers employed as foreman and/or

forewomen were ignorant to Plaintiff’s concerns and complaints regarding

the toxic exposures, and threatened to terminate Plaintiff’s employment if

Plaintiff had a problem working in the hazardous conditions.

(Doc. 18, at 5-6). These allegations are insufficient to state a First Amendment claim

for retaliation. At best, Plaintiff alleges that he was transferred to FCC Coleman as a

result of his complaints about the working conditions at FCI Marianna, though this is far

from clear in the complaint. 

2

Prison officials may not retaliate against inmates for filing lawsuits or

administrative grievances. Wright v. Newsome, 795 F.2d 964, 968 (11th

Cir.1986) (per curiam). While an inmate does not have a constitutionally

protected liberty interest against being transferred to a less agreeable

prison, Moody v. Daggett, 429 U.S. 78, 88 n. 9 (1976), prison officials may

not transfer an inmate in retaliation for exercising his right to file

grievances against prison officials. See Bridges v. Russell, 757 F.2d

1155, 1157 (11th Cir.1985). Such retaliatory transfers violate an inmate's

First Amendment rights. Wildberger v. Bracknell, 869 F.2d 1467, 1468

(11th Cir.1989) (per curiam).

Williams v. Brown, 347 F. App’x 429, 435 (11 Cir. 2009). In Williams, the Eleventh th

Circuit held that the Plaintiff failed to state a claim for retaliatory transfer against two

defendants when his only statement about their participation in his transfer was the

statement that the defendants “subjected [him] to a retaliatory negative transfer twice as

 While the Court is not converting Defendants’ motion to dismiss into a motion 2

for summary judgment, and therefore is not considering matters outside the pleadings

except as related to exhaustion of administrative remedies, the Court notes that

Defendants allege that Plaintiff was transferred to FCC Coleman at his own request. 

(Doc. 25, at 2.)

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far from [his] family.” Id. The court held that this statement did “not raise [Plaintiff’s]

right to relief against [the defendants] above the speculative level.” Id. (quoting Bell

Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Similarly, here Plaintiff’s

statements that workers who complained about working conditions were threatened or

transferred, and that he was transferred, are conclusory and do not bring his claim

above the speculative level. In the absence of any specific facts about his transfer,

Plaintiff fails to state a First Amendment claim for retaliatory transfer.

 (3) Deliberate indifference to serious medical needs claim

Plaintiff’s fourth and final claim is that Defendants violated his Eighth

Amendment rights “by being deliberately indifferent to Plaintiff’s needed specialized

‘outside’ medical treatment for his work-related injuries.” (Doc. 18, at 8.) In support of

this claim, Plaintiff alleges the following:

24. The Defendants, FCC Coleman Medium Medical Department,

has instructed Plaintiff to began [sic] using aspirin for his headaches,

antibiotic cream for his lesions, to drink excessive water for his urinary

problems, take fiber supplements for his digestive problems, breathing

exercises for his respiratory problems, and muscle rub for his muscle

pains, all because Plaintiff is financially capable of purchasing these

products from the commissary.

25. The Defendants, FCC Coleman Medical Department, has

deprived Plaintiff of adequate medical treatment for the foregoing injuries

in efforts of concealing the severe injuries caused by the Defendants’

subjecting Plaintiff to the foregoing unsafe and hazardous working

conditions.

26. The Defendants, FCC Coleman Medical Department, refuses to

allow the Plaintiff to be seen, observed, diagnosed, and/or treated by a

contractor medial specialist in efforts of concealing the severe injuries

caused by the Defendants’ subjecting Plaintiff to the foregoing unsafe and

hazardous working conditions.

(Doc. 18, at 7.) Defendants argue that this claim should be dismissed for failure

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to exhaust administrative remedies. As with his First Amendment claims, Plaintiff

contends that he exhausted his administrative remedies. However, Defendants’ motion

and attached affidavit and exhibits set forth uncontroverted facts showing that Plaintiff

failed to fully exhaust the deliberate indifference claim. Plaintiff filed an administrative

remedy request pertaining to the exposure to toxic dust while working at FPI. In that

request, he claimed that Defendants subjected him to cruel and unusual punishment by

exposing him to toxic dust, but did not mention that he had not received adequate

medical care for his injuries. It is thus clear that Defendants’ motion to dismiss

Plaintiff’s Eighth Amendment deliberate indifference claim for failure to exhaust

administrative remedies is due to be granted. See Turner, 541 F.3d 1082.

Even if Plaintiff had exhausted his administrative remedies, his deliberate

indifference claim would be subject to dismissal for failure to state a claim upon which

relief can be granted. 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 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,

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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”).

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) (“It is well-established that mere disagreement over the proper

treatment does not create a 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.”).

Here, Plaintiff alleged that the prison officials did provide him with treatment for

his medical problems, but complains that the particular treatments were prescribed

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“because Plaintiff is financially capable of purchasing these [treatments] from the

commissary.” (Doc. 18, at 8.) He further alleges that Defendants refuse to allow him to

be treated by an outside physician in order to conceal the severity of his injuries. 

Plaintiff’s conclusory statements are insufficient to state an Eighth Amendment claim for

deliberate indifference to serious medical needs. Plaintiff does not allege that prison

officials were aware that he had a serious medical need, nor does he provide any

specific facts to support his claim that prison officials deliberately disregarded such

medical needs. Indeed, Plaintiff alleges that he received medical treatment for his

various conditions, but claims that these treatments were inadequate for his needs. As

discussed above, a prisoner who receives treatment but wants a different type of care

generally cannot show deliberate indifference. Hamm 774 F. 2d at 1575. As such,

Plaintiff has not provided any specific facts that would support his claim of deliberate

indifference and, accordingly, Plaintiff’s deliberate indifference claim should be

dismissed.

V. RECOMMENDATION

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

motion to dismiss (Doc. 24) should be GRANTED, this case should be DISMISSED

and judgment should be entered in Defendants’ favor.

IN CHAMBERS this 24 day of October 2012. 

th

s/Gary R. Jones 

GARY R. JONES

United States Magistrate Judge

 

Case No. 5:10-cv-286-RH-GRJ
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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.

Case No. 5:10-cv-286-RH-GRJ