Case 3:18-cv-01332-BJD-PDB Document 49 Filed 03/28/19 Page 1 of 54 PageID 282

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
LORINE GAINES,
Plaintiff,
vs.
Case No. 3:18-cv-1332-J-39PDB
JULIE JONES,1 et al.,
Defendants.
ORDER
I.
Plaintiff
representative

Lorine
for

the

Introduction

Gaines

is

estate

of

proceeding

as

the

Vincent

Gaines

personal

(decedent),

Plaintiff's son, who was an inmate of the Florida penal system.
Plaintiff, represented by counsel, is proceeding on her First
Amended

Complaint

(Amended

Complaint)

(Doc.

24),

and

she

is

asserting claims on behalf of the decedent's estate and as the
survivor, the decedent's mother.

Plaintiff states she brings a

"civil rights, statutory, and simple negligence action" to redress
wrongs to the decedent pursuant to the Civil Rights Act (Eighth and
Fourteenth Amendments); the Americans with Disabilities Act (ADA);
and Section 504 of the Rehabilitation Act (RA).

Complaint at 1-2.2

1

Mark S. Inch, the Secretary of the Florida Department of
Corrections, is substituted as the proper party defendant for Julie
Jones, in her official capacity, pursuant to Rule 25(d)(1) of the
Federal Rules of Civil Procedure.
2

In this opinion, the Court references the document and page
numbers designated by the electronic filing system.

Case 3:18-cv-01332-BJD-PDB Document 49 Filed 03/28/19 Page 2 of 54 PageID 283

In support, Plaintiff submits Defendants denied and deprived her
son of adequate nutrition and treatment for basic and serious
mental health and medical needs, resulting in the decedent being
malnourished and ultimately starving to death.

Id. at 2.

Plaintiff names Julie Jones, the former Secretary of the
Florida Department of Corrections (FDOC), as a Defendant. Jones is
named in her individual and official capacities.

Id. at 3-4.

As

noted previously, Mark S. Inch, the current Secretary of the FDOC,
is substituted as the proper party defendant for Julie Jones in her
official capacity pursuant to Rule 25 (d)(1), Fed. R. Civ. P. ("The
officer's successor is automatically substituted as a party.").
Plaintiff also names Kevin D. Jordan, the former Warden of Union
Correctional Institution (UCI), as a Defendant in his individual
capacity.

Complaint at 4-5.

Finally, Plaintiff names Corizon

Health, Inc. (Corizon), a Tennessee Corporation registered in the
State of Florida, as a Defendant.

Id. at 5.

This cause is before the Court on two pending motions to
dismiss: Defendants, Julie Jones and Kevin D. Jordan's Motion to
Dismiss Counts I, II and IV of the Amended Complaint (Defendants'
Motion) (Doc. 34) and Defendant Corizon Health, Inc.'s Motion to
Dismiss the Plaintiff's Amended Complaint (Corizon's Motion) (Doc.
35).

Plaintiff filed responses to these motions.

See Plaintiff's

Response to Defendants Julie Jones and Kevin D. Jordan's Motion to
Dismiss Counts I, II and IV of the Amended Complaint (Response)

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Case 3:18-cv-01332-BJD-PDB Document 49 Filed 03/28/19 Page 3 of 54 PageID 284

(Doc.

41);

Plaintiff's

Amended

Response

to

Defendant

Corizon

Health, Inc.'s Motion to Dismiss the Plaintiff's Amended Complaint
(Response/Corizon) (Doc. 42).

With the Court's leave, Defendant

Corizon filed a Reply (Doc. 48).
II.

Motion to Dismiss

"To survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to 'state a claim to
relief that is plausible on its face.'"

Ashcroft v. Iqbal, 556

U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 570 (2007)).

"A claim has facial plausibility when the

plaintiff pleads factual content that allows the court to draw the
reasonable

inference

that

the

defendant

is

liable

for

the

misconduct alleged."

Id. (citing Twombly, 550 U.S. at 556).

"[T]he

court

tenet

that

a

must

accept

as

true

all

of

the

allegations contained in a complaint is inapplicable to legal
conclusions.

Threadbare recitals of the elements of a cause of

action, supported by mere conclusory statements, do not suffice."
Id. (citing Twombly, 550 U.S. at 555).

But, "[t]he denial of a

motion to dismiss is proper if the plaintiff's complaint, taking
the facts alleged therein as true, makes out a claim that is
plausible on its face."

Paez v. Mulvey, 915 F.3d 1276, 1292 (11th

Cir. 2019) (quotation and citation omitted).

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III.

Claims and Relief Requested

Four claims are raised in the Amended Complaint: (1) Count I:
a violation of 42 U.S.C. § 1983 and the Eighth Amendment against
Defendant Jones in her individual and official capacities (now
Defendant

Inch

in

his

official

capacity)

for

subjecting

the

decedent to cruel and unusual punishment; (2) Count II: a violation
of 42 U.S.C. § 1983 and the Eighth Amendment against Defendant
Jordan in his individual capacity for subjecting the decedent to
cruel and unusual punishment; (3) Count III: a violation of 42
U.S.C. § 1983 and the Eighth Amendment against Defendant Corizon
for directly and vicariously subjecting the decedent to cruel and
unusual punishment; and (4) Count IV: violations of Title II of the
ADA and § 504 of the RA against Defendant Jones in her official
capacity (now Defendant Inch in his official capacity).
For Counts I, II, and III, Plaintiff seeks the following
relief:

(1)

equitable

relief

against

Defendant

Jones

in

her

official capacity (now Defendant Inch), seeking the relinquishment
of the decedent's remains to Plaintiff; (2) compensatory and
punitive

damages

against

Defendant

Jones

in

her

individual

capacity, against Defendant Jordan in his individual capacity, and
against Defendant Corizon; (3) attorneys' fees, interest and costs
under 42 U.S.C. § 1988; and (4) all such other relief as the Court
deems just and proper.

Amended Complaint at 46-47.

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For Count IV, Plaintiff seeks the following relief against
Defendant Jones in her official capacity (now Defendant Inch in his
official capacity): (1) declaratory relief of a violation of the
ADA and RA; (2) equitable relief in the form of relinquishment of
the decedent's remains to Plaintiff; (3) compensatory and punitive
damages; (4) attorneys' fees, interest and costs; and (5) all other
such relief as the Court deems just and proper.

Amended Complaint

at 47-48.
IV.

Factual Allegations of Amended Complaint

Plaintiff presents supporting factual allegations of the
Amended

Complaint

in

three

parts:

(1)

Corizon's

history

of

mistreating mentally ill prisoners in Alabama, Oregon, and Florida;
(2) the FDOC and Corizon's substandard treatment of mentally ill
prisoners at UCI and awareness of that inadequate treatment; and
(3) the decedent's incarceration in the FDOC. Amended Complaint at
6-27.

Plaintiff first purports that there is a history of Corizon

mistreating mentally ill prisoners, as demonstrated through several
cases.

Initially, Plaintiff references a class action lawsuit, in

which seriously mentally ill inmates claimed the State of Alabama
provided constitutionally inadequate mental-health care in prison
facilities in violation of the Eighth Amendment, made applicable to
the states by the Fourteenth Amendment and as enforced through 42
U.S.C. § 1983, and the class sought injunctive and declaratory
relief.

Braggs v. Dunn, 257 F.Supp.3d 1171 (M.D. Ala. June 27,

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Case 3:18-cv-01332-BJD-PDB Document 49 Filed 03/28/19 Page 6 of 54 PageID 287

2017).

Although Plaintiff identifies Braggs as a class action

lawsuit against Corizon, Amended Complaint at 6, the defendants in
Braggs

are

the

Corrections
Services,

Commissioner

(ADOC)

named

in

F.Supp.3d at 1180.
corporation

and

the

their

of

the

Associate

official

Alabama

Department

Commissioner

capacities.

of

of

Health

Braggs,

257

MHM Correctional Services, Inc., a for-profit

providing

medical

and

mental

health

services

to

corrections facilities, is identified in Braggs as the ADOC's
contractor for mental-health care.
Without
references

a

providing
suit

a

against

Id. at 1183.

relevant
Corizon

case

citation,

concerning

a

Plaintiff

suicidal

and

paranoid schizophrenic jail inmate in Lane County, Oregon, Kelly
Conrad Green, who ran headfirst into a concrete wall fracturing his
neck.

Amended Complaint at 8-9.

Upon review, in Johnson v.

Corizon Health Inc., No. 6:13-cv-1855-TC, 2015 WL 1549257, at *8
(D. Or. April 6, 2015), the plaintiff, the personal representative
of decedent Green, claimed Corizon failed to screen Green during
intake on February 11, 2013, and failed to provide necessary care
post-injury.

The court granted in part and denied in part "the

Corizon defendants motion for partial summary judgment[.]" Id. at
*17.

Apparently, the case ended in settlement.

Amended Complaint

at 8 n.6.
Again

without

citation

to

a

pertinent

case,

Plaintiff

references a civil rights lawsuit against Corizon, filed by the

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representative of Darren Rainey's estate.
Rainey

was

a

Florida

inmate

confined

Id. at 9-12.
at

Dade

Darren

Correctional

Institution (DCI) of the FDOC and died after being scalded in a hot
shower.

Id. at 9-10.

The representative of his estate raised

alleged violations of the Eighth and Fourteenth Amendments and a
disability discrimination claim under the ADA, and this case too
ended in settlement. Chapman v. Fla. Dep't of Corr., Corizon, LLC,
et al., No. 14-23323-Civ-Scola (Orig. Case No. 14-24140-Civ-Scola),
2018 WL 5313881, at *3 (S.D. Fla. Oct. 26, 2018).
Finally, Plaintiff relies on a Middle District of Florida
case, Case No. 3:18-cv-179-J-20JRK, Disability Rights Florida, Inc.
v. Julie Jones and the Florida Department of Corrections.

The

plaintiff, on behalf of its clients and constituents,3 brought the
case pursuant to 42 U.S.C. § 1983, the ADA, and the RA, and named
Julie Jones, in her official capacity, and the FDOC, an agency of
the State of Florida, as defendants.
declaratory and injunctive relief.

The plaintiff sought only

See id., Settlement Agreement

(Doc. 10) at 1.
The parties settled the case. Id., Settlement Agreement (Doc.
10).

The Settlement Agreement provides a brief summary of the

case:

3

The client and constituents are the inmates within the FDOC
who are mentally ill and confined in a FDOC inpatient mental heath
unit or who may be transferred to a FDOC inpatient mental health
unit. See Case No. 3:18-cv-179-J-20JRK, Settlement Agreement (Doc.
10) at 1.
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In the Complaint, Plaintiff alleges
Defendants, by their actions and inactions,
have deliberately and chronically denied
mental health care to individuals with mental
illness who were and are confined in inpatient
mental health units operated and managed by
Defendants.
Plaintiff alleges that many of
these patients are confined in segregated,
isolated and harsh conditions which exacerbate
their illnesses.
As a result of their
segregation and isolation, Plaintiff claims
that these patients are denied the benefits of
many of the Defendants' programs, services and
activities.
On February 20-23, 2017, the FDC[4]
allowed Plaintiff's expert team access to
Union CI and Lake CI to view and tour the
physical plant, including the housing areas,
treatment
space,
staff
office
space,
recreation areas, indoor recreation space,
dayroom, medication and administration areas.
Plaintiff's experts were also permitted to
observe daily operations, group treatment,
individual treatment, treatment team meetings,
medication passes, meal time and disciplinary
or classification meetings. The experts were
permitted to interview FDC management staff
and health services staff and 4-5 patients per
inpatient level of care at each facility.
The Defendants state that prior to and
since the initiation of this litigation, the
FDC commenced significant initiatives to
improve recruiting and retention of qualified
security staff and enhance the delivery of
mental health services. This process has been
ongoing prior to and throughout the course of
this litigation.
To date, the FDC's
initiatives include, but are not limited to,
the following: Creation of a Central Office
Mental Health Ombudsman and Mental Health
Ombudsman four at (4) [sic] inpatient units;
Creation of a Behavior Risk Management Team
(BRMT) comprising one (1) psychologist, a

4

The Florida Department of Corrections.
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Case 3:18-cv-01332-BJD-PDB Document 49 Filed 03/28/19 Page 9 of 54 PageID 290

part-time
psychiatrist
and
a
part-time
psychiatric
nurse;
development
and
implementation of two (2) Quality Assurance
instruments (MHIMI - Mental Health Inpatient
Monitoring Instrument and STAMI - Structured
Therapeutic Activities Monitoring Instrument)
to monitor mental health services in inpatient
units; policy revisions; targeted training for
security staff; site visits conducted by OHS
leadership.
Id. at 2 (paragraph designation omitted).

Significantly, as part

of the agreement, the parties agreed the FDOC would discontinue
using the Transitional Care Unit (TCU) at UCI for inpatient mental
health care, with allowance to resume use of the dormitories if
adequate modifications are made to provide sufficient treatment
space.

Id. at 5.

In the second part of the factual allegations, Plaintiff
undertakes a review of what is characterized as the FDOC and
Corizon's substandard treatment of mentally ill prisoners at UCI
and awareness of that inadequate treatment.
12-18.

Amended Complaint at

Plaintiff describes the inception of the Correctional

Medical Authority (CMA), and the issuance of Corrective Action
Plans (CAPS). Amended Complaint at 13. Plaintiff explains: "[t]he
CMA's survey reports are monitored via [CAPS] for each facility
'until the facilities are in compliance with accepted community
standards.'" Amended Complaint at 13-14 (footnote omitted).
In this regard, Plaintiff states the surveys showed and CAP
assessments determined mental health care services at UCI were not
in compliance, as exhibited by staffing shortages and prisoners
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reporting

"ghost

trays"

being

served

during

confinement or inpatient mental health units.5
at 14-15.

The

mealtimes

in

Amended Complaint

Self Harm Observation Status (SHOS) admission cell

reportedly had dried blood on the walls and other cells had
standing water and black mold.

Id. at 15.

Plaintiff opines that

as Secretary, Defendant Jones received the CMA's survey, and
Defendant Jordan, as Warden of UCI, received the survey as well.
Id.
A subsequent CAP assessment for UCI indicated deficient postId. at 15-16.

discharge evaluation for former SHOS prisoners.

An

inspection team's report advised Jones of poor medical and mental
health care in the FDOC, and Jones promptly responded, insisting on
more staff, training, oversight and specialist appointments.
at 16-17.

Id.

A 2016 CAP assessment of UCI's 2015 inpatient mental

health records showed an overall non-compliance rate of 70 percent.
Id. at 17.

A follow-up audit also showed deficiencies in mental

health treatment. Id. Plaintiff submits that as head of the FDOC,
Defendant Jones was fully aware of the 2016 cap assessment and
findings of the follow-up audit. Id. at 18. Furthermore, Corizon,
as the contractor for medical services to FDOC, was aware of and
responsible

for

treatment at UCI.

the

reported

deficiencies

in

mental

health

Id.

5

"Ghost trays" are defined as empty,
containers. Amended Complaint at 15 n. 23.
10

Styrofoam

meal

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Finally, Plaintiff provides the following factual allegations
with respect to the decedent's incarceration in the FDOC. Notably,
when sentenced, the state trial court recommended the decedent be
housed close to his family in Palm Beach County and be placed in a
mental health program.

Id. at 18.

The FDOC received the decedent

in custody on or about June 24, 2013, and placed him in the South
Florida Reception Center (SFRC).

Id. at 18-19.

The decedent

weighed approximately 190 pounds and stood five feet nine inches
tall.

Id. at 19.

He had a Body Mass Index (BMI) of 28.1

(characterized as overweight).

Thereafter, he received a custody

assessment of close custody and the FDOC assigned him to South Bay
Correctional Facility.

Id.

The decedent received a mental health assessment on October 9,
2013.

Id.

Staff noted a history of auditory hallucinations, and

a history of twice being involuntary committed pursuant to the
"Baker Act." Id. The mental health staff diagnosed Plaintiff with
bipolar disorder, mania, with psychotic features and mild mental
retardation.
transferred

Id.
the

Pursuant to an emergency referral, the FDOC

decedent

to

DCI

on

March

21,

2014,

with

a

provisional diagnosis of bipolar disorder, mania, and borderline
intellectual functioning.

Id. at 20.

The decedent exhibited mood

swings, auditory hallucinations, paranoia, disorganized thinking,
and he talked to himself. Id. The decedent was non-compliant with
his medications, taking them sporadically.

11

Id.

Staff recognized

Case 3:18-cv-01332-BJD-PDB Document 49 Filed 03/28/19 Page 12 of 54 PageID 293

the

decedent's

risk

for

exploitation

hospitalizations due to psychosis.

and

Id.

noted

his

previous

On March 27, 2014, upon

being diagnosed as suffering form bipolar disorder and psychosis,
the decedent was admitted to the TCU at DCI.

Id.

On or about November 10, 2014, the decedent experienced
auditory hallucinations and delusions, was urinating and defecating
on the floor, and refused medication and treatment.

Id.

Staff at

the facility did not find he exhibited suicidal ideation.
20-21.

Id. at

On November 12, 2014, a doctor ordered the decedent's

transfer to the Crisis Stabilization United (CSU) of the SFRC and
that he be placed on suicide watch and fed a boneless diet in a
Styrofoam tray, without utensils. Id. at 21. The decedent refused
medication and treatment and slept only two to three hours a night.
Id.

At that point, approximately sixteen months after being

admitted to the FDOC, the decedent weighed 151 pounds, a loss of 39
pounds since incarceration in the FDOC.

Id.

The decedent received a disciplinary report on April 16, 2015,
for

failure

to

obey

a

verbal

or

written

order

when

he

was

reprimanded for attempting to enter the food service area, without
permission.

Id. at 21-22.

Staff transferred the decedent to

Florida State Prison (FSP), located in north Florida, 300 miles
away from his family.

Id. at 22.

Thereafter, staff transferred

the decedent to UCI in north Florida.

Id.

On May 15, 2015, staff

placed the decedent in Close Management (CM) custody.

12

Id.

Mental

Case 3:18-cv-01332-BJD-PDB Document 49 Filed 03/28/19 Page 13 of 54 PageID 294

health staff, on August 24, 2015, requested the decedent be
transferred from inpatient treatment at UCI's TCU to the CSU.
at 22-23.

Id.

Staff had observed the decedent having difficulty and

smearing feces on the floor, although he remained cooperative with
staff and security.

Id. at 23.

On September 29, 2015, mental health staff requested the
decedent be transferred back to the TCU, as he was no longer
demonstrating psychosis or bizarre behavior and had achieved a
level of stability appropriate for TCU.

Id.

In October 2015,

mental health staff recommended the decedent remain in the TCU.
Id.
On November 4, 2015, the decedent refused to come out for
individual and psychiatric mental health call-outs.

Id.

Corizon

employee, Bih Tambi, M.D., a psychiatrist, noted the decedent's
prescription
hyponatremia.6

for

Tegretol

Id. at 23-24.

had

been

discontinued

to

The decedent had been prescribed

Tegretol prior to and while in FDOC custody since 2013.

6

due

Plaintiff explains:
Hyponatremia is a condition that occurs
when the level of sodium in the blood is too
low.
It is a common side effect of taking
Tegretol, which is often prescribed to control
acute mania associated with manic depressive
disorder, also known as bipolar disorder. If
left uncorrected, hyponatremia can be fatal.

Amended Complaint at 24 n.33.
13

Id.

Case 3:18-cv-01332-BJD-PDB Document 49 Filed 03/28/19 Page 14 of 54 PageID 295

On November 24, 2015, the decedent refused to sign his
Individualized Service Plan for treatment. Id. at 24. On December
1, 2014, Eccles found the decedent alert, standing at the cell
door, looking through the window. Id. Eccles found the cell clean
and organized and the decedent's appearance clean, appropriate and
neat.

Id.

Eccles

considered

the

decedent's

speech

appropriate, and found the decedent calm and cooperative.

to

be

Id.

On December 2, 2015, Dr. Tambi noted that although the
decedent had been taken off Tegretol for hyponatremia, he had not
been provided an alternate psychotropic medication to replace
Tegretol. Id. Also, Dr. Tambi pointed out there were no follow-up
sodium level results and no indication of any medication being
prescribed to control the hyponatremia.

Id. at 24-25.

On that

date, at 8:00 a.m., F. Morrison, a Corizon employee and member of
the decedent's Multi-disciplinary Services Team (Team), recorded
that the decedent declined the opportunity for group recreation
activity but exhibited no behaviors or appearance of concern.

Id.

at 25. Around 11:00 a.m., Erika Biskie, a Corizon employee, Senior
Psychologist, and Team member, recorded that the Team met and
decided to maintain the decedent's current treatment in TCU.

Id.

On December 3, 2015, at 12:30 p.m., correctional officers
served the decedent lunch; however, when they returned to the cell
a short time later, the officers noticed the decedent had not moved
and had no eaten.

Id.

The officers contacted the prison nurse,

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Case 3:18-cv-01332-BJD-PDB Document 49 Filed 03/28/19 Page 15 of 54 PageID 296

and the nurse advised the officers to enter the cell.

Id.

At 1:26

p.m., the officers entered the decedent's cell and found him
unresponsive.

Id. at 25-26.

Efforts were made to revive the

decedent, including cardiopulmonary resuscitation, and he was taken
to UCI's Urgent Care Center.

Id. at 26.

These efforts were

unsuccessful, and the decedent was pronounced dead at 2:48 p.m.
Id.
The Medical Examiner conducted an autopsy on December 4, 2015,
and found probable cause of death: undetermined.

The examiner,

however, made these findings: (1) malnutrition (height 69 inches,
weight 115 pounds);7 (2) unwashed appearance and probable feces on
soles

of

feet;

(3)

coronary

artery

atherosclerosis,

mild

to

moderate; (4) heavy lungs (1865 g) with marked congestion and
edema; (5) minor skin injuries of variable age involving anterior
and posterior trunk and extremities; (6) King TL tube placement in
tracheal lumen; and, (7) negative toxicology.

Id. at 26-27.

The Medical Examiner noted the paramedic attributed difficulty
in using the tube during resuscitation efforts to trismus, or lock
jaw, but the examiner believed rigor mortis of the jaw had set in,
apparently before attempts at intubation.

Id. at 27.

After the

decedent's death, Defendants did not timely inform Plaintiff of the

7

Plaintiff points out the decedent's loss of 75 pounds during
the approximately two-and-a-half years of incarceration in the
FDOC. Amended Complaint at 26 n.34. Also noted is the decedent's
BMI at death, 17.0, well below underweight (a BMI of 18.5 is
underweight). Id.
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Case 3:18-cv-01332-BJD-PDB Document 49 Filed 03/28/19 Page 16 of 54 PageID 297

death, did not release the body to the decedent's family, and
buried the decedent on FDOC property against the wishes of his
family and without Plaintiff's consent.
V.

Id.

Negligence

At the outset of the Amended Complaint, Plaintiff mentions she
is raising a "simple negligence action[;]" however, upon a thorough
review of the Amended Complaint, Plaintiff has not raised any
negligence claims.

Amended Complaint at 1.

Therefore, one will

not be addressed by this Court.
VI. Eighth and Fourteenth Amendments
Plaintiff raises Eighth Amendment claims in Counts I, II, and
III of the Amended Complaint: (1) Count I: a violation of 42 U.S.C.
§ 1983 and the Eighth Amendment against Defendant Jones in her
individual

and

official

capacity

(now

Defendant

Inch

in

his

official capacity) for subjecting the decedent to cruel and unusual
punishment; (2) Count II: a violation of 42 U.S.C. § 1983 and the
Eighth

Amendment

capacity

for

against

subjecting

Defendant
the

Jordan

decedent

in

to

his

cruel

individual

and

unusual

punishment; (3) Count III: a violation of 42 U.S.C. § 1983 and the
Eighth

Amendment

against

Defendant

the

Corizon

decedent

cruel

directly
and

and

vicariously

subjecting

punishment.

For this review, the Court accepts the facts in the

16

to

for

unusual

Case 3:18-cv-01332-BJD-PDB Document 49 Filed 03/28/19 Page 17 of 54 PageID 298

Amended

Complaint

as

true

and

views

them

in

the

light

most

favorable to the Plaintiff.8
Plaintiff alleges the decedent was denied and deprived of
adequate nutrition and treatment for his serious mental health and
medical needs, which resulted in his malnutrition, starvation, and
death. Amended Complaint at 2. Plaintiff claims, in Counts I, II,
and III, the decedent received constitutionally inadequate mental
and medical care in the prison facilities of the FDOC, resulting in
a violation of the Eighth Amendment, made applicable to the states
by the Fourteenth Amendment, and as enforced through 42 U.S.C. §
1983.
Under

Count

I,

Plaintiff

alleges

Defendant

Jones

was

personally aware of the history and culture of widespread and
longstanding abuse and deliberately indifferent treatment by her
employees and agents and that of Defendant Corizon.
Complaint
indifferent

at
to

28.
the

Plaintiff
FDOC

and

claims
Corizon

Jones

was

policies,

Amended

deliberately
customs,

and

practices that increased the known risk of serious harm and death,
in violation of the Eighth Amendment.

8

Id.

In considering the motion, the Court must accept all factual
allegations in the Amended Complaint as true, consider the
allegations in the light most favorable to the plaintiff, and
accept all reasonable inferences that can be drawn from such
allegations.
Miljkovic v. Shafritz and Dinkin, P.A., 791 F.3d
1291, 1297 (11th Cir. 2015) (quotations and citations omitted). As
such, the recited facts are drawn from the Amended Complaint and
may differ from those that ultimately can be proved.
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Plaintiff alleges, once Jones became aware of the policies,
customs, or practices as documented in the CMA's CAP assessments,
relevant

surveys,

or

media

reports,

she

exhibited

deliberate

indifference when she: (1) failed to stop the FDOC policy, custom,
or practice of disciplining and punishing prisoners for behaviors
stemming from mental illness; (2) failed to stop the FDOC custom or
practice of serving mentally ill prisoners "ghost trays;" (3)
failed to stop the custom or practice of retaliatory conduct by
FDOC personnel against mentally ill prisoners; (4) failed to remedy
the policies, practices, or customs of FDOC and Corizon employees
resulting in insufficient evaluation of the decedent's mental
health history, including adequate consideration of his Baker Act
commitments; (5) failed to remedy the policies, practices, or
customs of FDOC and Corizon employees resulting in insufficient
evaluation of the decedent's mental illness to determine which
prison and at what level of confinement he should be housed,
particularly given the sentencing court's recommendation that the
decedent be confined close to his family; (6) failed to remedy the
policies, practices, or customs of FDOC and Corizon employees
resulting in insufficient evaluation of the decedent's mental
illness culminating in his being housed in an environment of
squalor

and

isolation,

an

environment

which

exacerbated

his

psychotic hallucinations and bipolar disorder; (7) failed to remedy
the policies, practices, or customs of FDOC and Corizon employees

18

Case 3:18-cv-01332-BJD-PDB Document 49 Filed 03/28/19 Page 19 of 54 PageID 300

resulting in not ensuring the decedent was kept clean, clothed, and
fed; (8) failed to remedy the policies, practices, or customs of
FDOC and Corizon employees resulting in not ensuring the decedent
received

adequate

nutrition

when

his

mental

health

disorders

prevented him from eating enough food, to the point of losing 75
pounds in approximately two and one-half years; and, (9) failed to
remedy the policies, practices, or customs of Corizon to ensure the
provider adequately treated mentally ill and malnourished prisoners
in FDOC custody.

Id. at 28-32.

Plaintiff contends Defendant Jones' policy, pattern, and
practice, as stated above, were the direct and proximate cause of
the decedent's harm, resulting in a violation of his Eighth
Amendment rights.
conduct

was

of

Id. at 32.
a

gross

and

Plaintiff further asserts that this
flagrant

character,

in

reckless

disregard of human life and safety, entitling Plaintiff to punitive
damages.

Id.

Plaintiff, in Count II, claims Defendant Jordan is personally
liable for violating Plaintiff's Eighth Amendment right to be free
from cruel and unusual punishment.

Id. at 33.

Plaintiff raises

comparable allegations against Defendant Jordan, with the exception
of the alleged retaliatory conduct outlined in item (3) above and
the alleged lack of sufficient evaluation for housing and location
outlined in item (5) above.

Id. at 33-37.

Plaintiff contends

Defendant Jordan's actions proximately caused the decedent's harm,

19

Case 3:18-cv-01332-BJD-PDB Document 49 Filed 03/28/19 Page 20 of 54 PageID 301

resulting in a violation of his Eighth Amendment rights.

Id. at

37. Plaintiff further asserts that this conduct was of a gross and
flagrant character, in reckless disregard of human life and safety,
entitling Plaintiff to punitive damages.

Id.

In Count III, Plaintiff claims Defendant Corizon is directly
and vicariously liable for violating Plaintiff's Eighth Amendment
right to be free from cruel and unusual punishment.

Id. at 37.

Plaintiff alleges Corizon, at all times pertinent to the action,
contracted with FDOC to provide mental health and medical care and
services to prisoners.

Id.

Moreover, Plaintiff alleges Corizon

was aware of the history of widespread and longstanding abuse and
deliberately indifferent treatment by its employees, agents, and
implied agents which resulted in unnecessary and avoidable prisoner
death and medical injuries.

Id. at 37-38.

More specifically, Plaintiff contends Corizon was deliberately
indifferent when its policy makers failed to stop their policy,
custom, or practice of understaffing; of disciplining and punishing
prisoners for behavior stemming from mental illness; of serving
"ghost trays;" of employing retaliatory conduct against mentally
ill inmates; of insufficient evaluation of mental history and
mental illness to assess the appropriate level and location of
confinement, resulting in housing the decedent in squalor and
isolation exacerbated by psychotic hallucinations and bipolar
disorder and failing to keep the decedent clean, clothed, and fed;

20

Case 3:18-cv-01332-BJD-PDB Document 49 Filed 03/28/19 Page 21 of 54 PageID 302

of providing inadequate nutrition to the decedent due to mental
health

disorders

preventing

him

from

eating

enough

food;

of

inadequately treating mentally ill and malnourished prisoners; and
of insufficient evaluation of serious medical needs, including the
need to correct the decedent's hyponatremia.

Id. at 38-43.

Plaintiff contends Defendant Corizon's actions proximately
caused the decedent's harm, resulting in a violation of his Eighth
Amendment rights.
conduct

was

of

Id. at 43.
a

gross

and

Plaintiff further asserts that this
flagrant

character,

in

reckless

disregard of human life and safety, entitling Plaintiff to punitive
damages.

Id.

Initially, in Defendants' Motion, Jones states her tenure as
Secretary

did

not

begin

until

2015,

and

transferred to UCI in the spring of 2015.9
3 n.3.

the

decedent

was

Defendants' Motion at

Thus, Defendant Jones contends many of the allegations in

the Amended Complaint are inapplicable to her as she had not
assumed the office of Secretary until 2015.

Id.

Also, she avers

that many of the allegations concern institutions other than UCI.
Id.
Defendants Jones and Jordan assert Plaintiff makes conclusory
allegations, without factual support, that these Defendants were
personally aware of a history of widespread and longstanding abuse

9

Former Governor Rick Scot appointed Julie Jones Secretary of
the FDOC, effective January 5, 2015.
Governor Ron DeSantis
appointed Mark S. Inch Secretary in January 2019.
21

Case 3:18-cv-01332-BJD-PDB Document 49 Filed 03/28/19 Page 22 of 54 PageID 303

and indifferent treatment of inmates with respect to mental health
and medical services.

Id. at 6.

Defendants Jones also points out

that, with respect to Count IV, the count concerning disability
discrimination,
services
services,

like

Plaintiff
out-of-cell

reading

is

complaining

activities,

materials,

and

the

about

programs

visitation,
provision

and

religious

of

adequate

nutrition and a clean and safe prison environment, but these
contentions

are

not

consistent

or

causally

related

to

the

allegations concerning the decedent's conditions of confinement at
UCI.

Id.

Finally, Defendants Jones and Jordan claim qualified

immunity in their individual capacities.
A.

Id.

Supervisory Liability

Defendants Jones (the former Secretary of the FDOC), and
Jordan (former Warden of UCI) assert Counts I and II should be
dismissed.10

Defendants' Motion at 13.

Plaintiff's

allegations

do

not

These Defendants contend

establish

the

subjective

and

objective components that a substantial risk of serious harm
existed, of the which Defendants Jones and Jordan were subjectively
aware, and they failed to respond reasonably to that risk.

Id.

Plaintiff counters that the Amended Complaint adequately
alleges Defendant Jones was aware of widespread problems with the
treatment of mentally ill prisoners in the FDOC through numerous

10

Defendant Jones is named in her individual and official
capacities, and Defendant Jordan is named in his individual
capacity.
22

Case 3:18-cv-01332-BJD-PDB Document 49 Filed 03/28/19 Page 23 of 54 PageID 304

reports from the CMA, through subsequent news reports, and based on
the

FDOC's

audit

of

the

CMA's

findings.

Response

at

3-4.

Plaintiff submits Defendants Jones was "aware of that history and
failed

to

practices"

remedy

unconstitutional

ultimately

led

to

the

policies,

customs,

decedent's

and

death,

and

exhibited this awareness by actually promising improvements.

Id.

at 4.

that

the

Admittedly, many of the alleged deficiencies began prior to

Jones' tenure, however, Plaintiff submits Jones was aware of these
problems and failed to remedy them, although she promised to do so.
Id.
Plaintiff argues the objective component is satisfied through
the content of the CMA reports, outlining the unconstitutional
policies, customs, and practices of the FDOC which resulted in the
mental

and

physical

abuse

of

mentally

ill

prisoners.

Id.

Furthermore, Plaintiff states the subjective component is properly
supported by showing Jones was aware of these issues through
numerous means, including historical litigation against the FDOC,
the findings of the CMA, FDOC's follow-up audit, and media reports
of deficiencies in the treatment of mentally ill inmates.

Id.

Thus, Plaintiff submits Jones drew the inference of a substantial
risk of harm to prisoners because she actually promised to take
corrective action after being advised of the deficiencies and
problems.

Id.

23

Case 3:18-cv-01332-BJD-PDB Document 49 Filed 03/28/19 Page 24 of 54 PageID 305

Plaintiff also names former Warden Jordan as a defendant,
claiming Jordan was aware of the substantial risk of harm to
mentally ill prisoners through his own superior's pronouncements,
yet failed to take corrective actions.

Response at 5.

Plaintiff

alleges Jordan was aware of CMA's findings and the history and
culture of widespread and longstanding abuse of mentally ill
inmates at UCI.

Id.

There is a rigorous standard for establishing supervisory
liability in a civil rights action:
"Supervisory officials are not liable under
section 1983 on the basis of respondeat
superior or vicarious liability." Belcher v.
City of Foley, Ala., 30 F.3d 1390, 1396 (11th
Cir. 1994) (internal quotation marks and
citation omitted). "The standard by which a
supervisor is held liable in her individual
capacity for the actions of a subordinate is
extremely rigorous." Gonzalez, 325 F.3d at
1234 (internal quotation marks and citation
omitted).[11] "Supervisory liability occurs
either
when
the
supervisor
personally
participates in the alleged constitutional
violation or when there is a causal connection
between actions of the supervising official
and the alleged constitutional deprivation."
Brown v. Crawford, 906 F.2d 667, 671 (11th
Cir. 1990).
"The necessary causal connection can be
established 'when a history of widespread
abuse puts the responsible supervisor on
notice of the need to correct the alleged
deprivation, and he fails to do so.'" Cottone,
326 F.3d at 1360 (citation omitted).[12] "The

11

Gonzalez v. Reno, 325 F.3d 1228 (11th Cir. 2003).

12

Cottone v. Jenne, 326 F.3d 1352 (11th Cir. 2003).
24

Case 3:18-cv-01332-BJD-PDB Document 49 Filed 03/28/19 Page 25 of 54 PageID 306

deprivations that constitute widespread abuse
sufficient to notify the supervising official
must be obvious, flagrant, rampant and of
continued duration, rather than isolated
occurrences." Brown, 906 F.2d at 671. A
plaintiff can also establish the necessary
causal connection by showing "facts which
support an inference that the supervisor
directed the subordinates to act unlawfully or
knew
that
the
subordinates
would
act
unlawfully and failed to stop them from doing
so," Gonzalez, 325 F.3d at 1235, or that a
supervisor's "custom or policy . . . resulted
in deliberate indifference to constitutional
rights," Rivas v. Freeman, 940 F.2d 1491, 1495
(11th Cir. 1991).
Danley v. Allen, 540 F.3d 1298, 1314 (11th Cir. 2008) (overruled on
other grounds); see Keith v. DeKalb Cty., Ga., 749 F.3d 1034, 104748 (11th Cir. 2014).

In sum,

To state a claim against a supervisory
defendant, the plaintiff must allege (1) the
supervisor's personal involvement in the
violation of his constitutional rights,[13] (2)
the existence of a custom or policy that
resulted in deliberate indifference to the
plaintiff's constitutional rights,[14] (3)
facts supporting an inference that the
supervisor directed the unlawful action or
knowingly failed to prevent it,[15] or (4) a

13

See Goebert v. Lee Cty., 510 F.3d 1312, 1327 (11th Cir.
2007) ("Causation, of course, can be shown by personal
participation in the constitutional violation.") (citation
omitted).
14

See Goebert, 510 F.3d at 1332 ("Our decisions establish that
supervisory liability for deliberate indifference based on the
implementation of a facially constitutional policy requires the
plaintiff to show that the defendant had actual or constructive
notice of a flagrant, persistent pattern of violations.").
15

See Douglas v. Yates, 535 F.3d 1316, 1322 (11th Cir. 2008)
("Douglas's complaint alleges that his family informed Yates [(an
25

Case 3:18-cv-01332-BJD-PDB Document 49 Filed 03/28/19 Page 26 of 54 PageID 307

history of widespread abuse that put the
supervisor on notice of an alleged deprivation
that he then failed to correct. See id. at
1328–29 (listing factors in context of summary
judgment).[16] A supervisor cannot be held
liable under § 1983 for mere negligence in the
training or supervision of his employees.
Greason v. Kemp, 891 F.2d 829, 836–37 (11th
Cir. 1990).
Barr v. Gee, 437 F. App'x 865, 875 (11th Cir. 2011) (per curiam),
cert. denied, 566 U.S. 996 (2012).
Plaintiff claims supervisory liability on the part of Jones,
and Jordan.

Keeping in mind this strict limitation on supervisory

liability, the Court recognizes Defendants may not be held liable
under a theory of respondeat superior. See Braddy v. Fla. Dep't of
Labor & Emp't Sec., 133 F.3d 797, 801 (11th Cir. 1998) (finding
supervisory liability requires something more than stating a claim
of liability under a theory of respondeat superior).
Plaintiff asserts there is a causal connection between the
Defendants'

actions

or

inactions

constitutional deprivation.

and

the

alleged

federal

The question is whether Plaintiff has

pled "enough facts to state a claim to relief that is plausible on

Assistant Warden)] of ongoing misconduct by Yates's subordinates
and Yates failed to stop the misconduct. These allegations allow a
reasonable inference that Yates knew that the subordinates would
continue to engage in unconstitutional misconduct but failed to
stop them from doing so.").
16

West v. Tillman, 496 F.3d 1321 (11th Cir. 2007) (per
curiam).
26

Case 3:18-cv-01332-BJD-PDB Document 49 Filed 03/28/19 Page 27 of 54 PageID 308

its face."

Twombly, 550 U.S. at 570.

In order to make this

determination, there are several factors to be considered.
First, "[a] policy is a decision that is officially adopted by
the [government entity], or created by an official of such rank
that he or she could be said to be acting on behalf of the
[government entity]."

Sewell v. Town of Lake Hamilton, 117 F.3d

488, 489 (11th Cir. 1997) (citation omitted), cert. denied, 522
U.S. 1075 (1998).

Liability arises under § 1983 only where "'a

deliberate choice to follow a course of action is made from among
various alternatives'" by governmental policymakers."

City of

Canton v. Harris, 489 U.S. 378, 389 (1989) (quoting Pembaur v. City
of Cincinnati, 475 U.S. 469, 483-84 (1986)).
A supervisor/policymaker might officially adopt a policy that
permits a particular constitutional violation, or, is some cases,
a plaintiff may demonstrate that there is a custom or practice of
permitting a constitutional violation.

See Grech v. Clayton Cty.,

Ga., 335 F.3d 1326, 1330 (11th Cir. 2003) (en banc); McDowell v.
Brown, 392 F.3d 1283, 1289 (11th Cir. 2004).
"that

has

not

been

formally

approved

A custom is an act
by

an

appropriate

decisionmaker," but that is "so widespread as to have the force of
law."

Bd. of Cty. Comm'rs of Bryan Cty., Okla. v. Brown, 520 U.S.

397, 404 (1997) (citation omitted).

The Eleventh Circuit defines

"custom" as "a practice that is so settled and permanent that it
takes on the force of law" or a "persistent and wide-spread

27

Case 3:18-cv-01332-BJD-PDB Document 49 Filed 03/28/19 Page 28 of 54 PageID 309

practice."

Sewell, 117 F.3d at 489.

In order to establish

liability, there must be a direct causal link between the policy or
custom and the alleged constitutional deprivation.

Snow ex rel.

Snow v. City of Citronelle, 420 F.3d 1262, 1271 (11th Cir. 2005)
(quotation omitted).
Second,

a

question

arises

as

to

whether

Plaintiff

has

sufficiently alleged a causal connection between the actions of
these

Defendants

and

the

alleged

constitutional

deprivation.

Hartley v. Parnell, 193 F.3d 1263, 1269 (11th Cir. 1999).
necessary

causal

connection

can

be

established

if:

(1)

A
the

supervisor knew about and failed to correct a widespread history of
abuse; or (2) the supervisor's custom or policy resulted in a
constitutional violation; or (3a) the supervisor directed the
subordinate to act unlawfully; or (3b) the supervisor knew that the
subordinate would act unlawfully and failed to stop him from acting
unlawfully.

Harrison v. Culliver, 746 F.3d 1288, 1298 (11th Cir.

2014); Cottone v. Jenne, 326 F.3d 1352, 1360 (11th Cir. 2003).
But, "[t]he standard by which a supervisor is held liable in [his]
individual capacity for the actions of a subordinate is extremely
rigorous."

Id. at 1360-61 (internal quotation marks omitted and

citation omitted).
Primarily,

Plaintiff

relies

on

allegations

that

these

Defendants were aware of the history and culture of widespread and
longstanding

practices

of

treating

28

mentally

ill

inmates

with

Case 3:18-cv-01332-BJD-PDB Document 49 Filed 03/28/19 Page 29 of 54 PageID 310

deliberate indifference to their serious medical and mental health
needs. Plaintiff alleges these Defendants failed to stop policies,
customs, or practices of disciplining and punishing inmates for
behaviors stemming from mental illness; of serving ghost trays; of
using retaliatory conduct (Jones only); of adopting deficient means
of evaluation of mentally ill inmates resulting in poor assessment
of their mental and physical health; and of making poor housing
decisions, resulting in mentally ill inmates living in squalor and
filth and being underfed to the point of malnourishment.
In essence, Plaintiff contends Defendants Jones and Jordan
knew or should have known, based on the CMA's, CAPS, previous
cases, and media reports (and for Jordan, based on his supervisor's
acknowledgment of the deficiencies and Jordan's awareness of same),
about the conditions the decedent had been subjected to and they
failed to remove him from these squalid and poor conditions or
change his medical and mental health treatment in order to address
his

serious

Plaintiff

medical

asserts

and

mental

these

health

Defendants

needs.
were

Additionally,

responsible

for

promulgating and implementing policies, practices, procedures, or
customs with regard to inmate classification and care, and they
promulgated

or

implemented

a

policy,

practice,

or

custom

of

depriving Plaintiff of the minimal measures of life's necessities.
It

is

important

to

recognize

that

"[a]

policy

may

be

deliberately indifferent if it is facially unconstitutional or

29

Case 3:18-cv-01332-BJD-PDB Document 49 Filed 03/28/19 Page 30 of 54 PageID 311

where the policy is implemented 'with deliberate indifference as to
its known or obvious consequences.'" Fields v. Corizon Health,
Inc., 490 F. App'x 174, 182 (11th Cir. 2012) (per curiam) (quoting
McDowell, 392 F.3d at 1291).

Here, Plaintiff alleges Defendants

adopted policies, practices, or customs that subjected the decedent
to unconstitutional conditions of confinement in violation of the
Eighth Amendment.
Jordan, as the former Warden of UCI, was "charged with
directing the governance, discipline, and policy of the prison and
enforcing its orders, rules, and regulations[.]"

Mathews v.

Crosby, 480 F.3d 1265, 1275 (11th Cir. 2007), cert. denied, 552
U.S. 1095 (2008).

Jones, the Secretary, is the head of the

corrections institution, and she is charged with setting Department
policy.

See id. at 1275-76.

Thus, in this case, Defendants Jones

and Jordan could face liability under section 1983 predicated on a
showing

of

the

adoption

of

customs

or

policies

deliberately

indifferent to a substantial risk of serious harm.
In this regard, Plaintiff has pled enough facts in the Amended
Complaint to state a claim to relief that is plausible on its face
against Defendants Jones and Jordan.

Plaintiff alleges facts

supporting his claim of a history of widespread deficiencies that
put these Defendants on notice that there was a need to correct the
deprivations, but they failed to do so.
stated

deficiencies

and

deprivations

30

Plaintiff contends the
were

obvious,

flagrant,

Case 3:18-cv-01332-BJD-PDB Document 49 Filed 03/28/19 Page 31 of 54 PageID 312

rampant and continued for an extensive period of time, without the
Defendants taking corrective action although they were fully aware
of the constitutional deficiencies that led to the decedent being
deprived of adequate nutrition and treatment for basic and serious
mental health and medical needs.
More particularly, Plaintiff has alleged Defendants Jones and
Jordan were aware of the failings and deficiencies in the care of
mentally

ill

inmates

in

the

FDOC,

and

they

failed

to

take

corrective action or adopt policies ensuring the delivery of
medical and mental health treatment to those unable to care for
themselves.

Plaintiff asserts there was a history and culture of

widespread and longstanding practices of treating mentally ill
inmates with deliberate indifference to their serious medical and
mental health needs and the Defendants failure to act in response
to these serious needs proximately caused the decedent's death.
Defendants Jones and Jordan argue there are no allegations
that they were aware of any specific danger to the decedent.
Defendants' Motion at 10.
accountable

for

the

Defendants contend they cannot be held

decedent's

death

because

there

was

no

indication that Plaintiff was in distress immediately prior to his
death, and they were not made aware of any specific danger to the
decedent prior to his death.

Id.

In fact, they submit, he

exhibited stability prior to his death, without any outward signs
of instability or behavioral issues.

31

Id. at 10-11.

Case 3:18-cv-01332-BJD-PDB Document 49 Filed 03/28/19 Page 32 of 54 PageID 313

It matters not that the Defendants may have been unaware of
the decedent's particular circumstances.17

Plaintiff relies on a

claim of widespread problems with the treatment of mentally ill
prisoners in FDOC, and the assertion that the Defendants knew about
these historical issues and failed to take remedial action to
remedy the unconstitutional policies, customs, and practices that
ultimately led to the decedent's death.
In Chandler v. Crosby, 379 F.3d 1278, 1288-89 (11th Cir.
2004), the Eleventh Circuit addressed a prison conditions complaint
and opined:
The Eighth Amendment to the United States
Constitution states: "Excessive bail shall not
be required, nor excessive fines imposed, nor
cruel and unusual punishments inflicted." The
"cruel and unusual punishments" standard
applies to the conditions of a prisoner's
confinement. Rhodes v. Chapman, 452 U.S. 337,
345-46, 101 S.Ct. 2392, 2398-99, 69 L.Ed.2d 59
(1981).
While "the primary concern of the
drafters was to proscribe tortures and other
barbarous methods of punishment," the Supreme
Court's "more recent cases [show that] [t]he
[Eighth]
Amendment
embodies
broad
and
idealistic concepts of dignity, civilized

17

Plaintiff alleges the decedent entered the FDOC on June 24,
2013, standing five feet nine inches tall and weighing 190 pounds,
exhibiting a stocky build. By November 12, 2014, he had lost 39
pounds. Just over a year later, on December 3, 2015, he weighed
115 pounds, a loss of another 36 pounds.
His body mass index
plummeted from 28.1, when he entered the FDOC, to 17.0, below what
is even considered underweight (18.5) for a male of his stature.
He was found in a deplorable state, unconscious (the medical
examiner surmised rigor mortis had set in prior to resuscitation
efforts), malnourished, disheveled and unclean (with probable feces
on the soles of his feet), with marked congestion and edema in
heavy lungs.
32

Case 3:18-cv-01332-BJD-PDB Document 49 Filed 03/28/19 Page 33 of 54 PageID 314

standards, humanity, and decency." Estelle v.
Gamble, 429 U.S. 97, 102, 97 S.Ct. 285, 290,
50 L.Ed.2d 251 (1976) (marks, citations, and
brackets omitted). "No static test can exist
by which courts determine whether conditions
of confinement are cruel and unusual, for the
Eighth Amendment must draw its meaning from
the evolving standards of decency that mark
the progress of a maturing society." Rhodes,
452 U.S. at 346, 101 S.Ct. at 2399 (marks and
citation omitted).
Even so, "the Constitution does not
mandate comfortable prisons." Id. at 349, 101
S.Ct. at 2400.
If prison conditions are
merely "restrictive and even harsh, they are
part of the penalty that criminal offenders
pay for their offenses against society." Id.
at 347, 101 S.Ct. at 2399.
Generally
speaking, prison conditions rise to the level
of an Eighth Amendment violation only when
they "involve the wanton and unnecessary
infliction of pain." Id.
Chandler, 379 F.3d at 1288-89 (footnote omitted).
In order to establish an Eighth Amendment conditions of
confinement claim, a plaintiff must demonstrate that a prison
official was deliberately indifferent to a substantial risk of
serious harm to the inmate. Bennett v. Chitwood, 519 F. App'x 569,
573 (11th Cir. 2013) (per curiam) (citing Farmer v. Brennan, 511
U.S. 825, 832–33 (1994)). To make this showing, both the objective
and subjective components to the deliberate-indifference test must
be met.

Id. (citing Farmer, 511 U.S. at 834).
To satisfy the objective, "substantial
risk of serious harm" component, a plaintiff
"must
show
a
deprivation
that
is,
'objectively, sufficiently serious,' which
means that the defendants' actions resulted in
the denial of the minimal civilized measure of
33

Case 3:18-cv-01332-BJD-PDB Document 49 Filed 03/28/19 Page 34 of 54 PageID 315

life's necessities." Cottrell v. Caldwell, 85
F.3d 1480, 1491 (11th Cir. 1996).
"The
challenged condition must be 'extreme'": the
prisoner must show that "society considers the
risk that the prisoner complains of to be so
grave that it violates contemporary standards
of decency to expose anyone unwillingly to
such a risk." Chandler v. Crosby, 379 F.3d
1278, 1289 (11th Cir. 2004). In evaluating an
Eighth Amendment claim, we consider both the
"severity"
and
the
"duration"
of
the
prisoner's exposure to extreme temperatures.
Id. at 1295.
Merely showing that prison
conditions are uncomfortable is not enough.
Id. at 1289.
For the subjective component, the prison
official must (1) have subjective knowledge of
the risk of serious harm, and (2) nevertheless
fail to respond reasonably to the risk.
Farmer, 511 U.S. at 837, 114 S.Ct. at 1979.
Subjective knowledge on the part of the prison
official requires that the official was aware
of the facts "from which the inference could
be drawn that a substantial risk of serious
harm exist[ed]," and that the official
actually drew that inference.
Burnette v.
Taylor, 533 F.3d 1325, 1330 (11th Cir. 2008).
A prison official must have a sufficiently
culpable state of mind to be deliberately
indifferent.
Carter v. Galloway, 352 F.3d
1346, 1349 (11th Cir. 2003). "[T]he evidence
must demonstrate that with knowledge of the
infirm conditions, the official knowingly or
recklessly declined to take actions that would
have improved the conditions."
Thomas v.
Bryant, 614 F.3d 1288, 1312 (11th Cir. 2010)
(alteration and quotation omitted). Mistakes
and even negligence on the part of prison
officials are not enough for a constitutional
violation. Crosby, 379 F.3d at 1289.
Id. at 574.

34

Case 3:18-cv-01332-BJD-PDB Document 49 Filed 03/28/19 Page 35 of 54 PageID 316

The conditions of an inmate's confinement should not inflict
unnecessary

pain

justification,"
suffering."

or

suffering,

resulting

"in

"totally
the

without

gratuitous

penological

infliction

Gregg v. Ga., 428 U.S. 153, 183 (1976).

of

Eighth

Amendment violations are not confined to that which would have been
considered to be cruel and unusual "by the framers."

Bass v.

Perrin, 170 F.3d 1312, 1316 (11th Cir. 1999). This Court must look
to "contemporary standards of decency."
U.S. 399, 406 (1986).

Ford v. Wainwright, 477

Moreover, there is "no static test."

Chandler, 926 F.2d at 1064 (citation and internal quotation marks
omitted). The standard in the prison context is whether the prison
officials violate the Eighth Amendment "through 'the unnecessary
and wanton infliction of pain.'" Bass, 170 F.3d at 1316 (quoting
Whitley v. Albers, 475 U.S. 312, 319 (1986)).

Notably, conditions

of confinement have been condemned as violative of the Eighth
Amendment when they are unsanitary, degrading, and lengthy. Id. at
1211-12.

See Braggs, No. 2:14cv601-MHT (WO), 2017 WL 2773833, at

*10 (addressing the profound impact of solitary confinement on
prisoners' mental health, particularly on those already deemed
mentally ill).
Defendants

ask

this

Court

to

analyze

Plaintiff's

Eighth

Amendment claim using the deliberate indifference test, referencing
the objective and subjective components set forth in Farmer;
however, this case is not yet at the trial state, nor is it even at

35

Case 3:18-cv-01332-BJD-PDB Document 49 Filed 03/28/19 Page 36 of 54 PageID 317

the summary judgment stage.

On the contrary, this case is before

the Court on a motion to dismiss.

Therefore, the only question

before the Court is whether the claims have facial plausibility.
In order to state a claim under 42 U.S.C. § 1983, a plaintiff
must allege that (1) the defendant deprived him of a right secured
under the United States Constitution or federal law, and (2) such
deprivation occurred under color of state law.

Salvato v. Miley,

790 F.3d 1286, 1295 (11th Cir. 2015); Bingham v. Thomas, 654 F.3d
1171, 1175 (11th Cir. 2011) (per curiam) (citation omitted);
Richardson v. Johnson, 598 F.3d 734, 737 (11th Cir. 2010) (per
curiam) (citations omitted).
"nudged

[the]

claims

Here, the Plaintiff has certainly

across

the

line

plausible[.]" Twombly, 550 U.S. at 570.

from

conceivable

to

Indeed, she has alleged

enough facts to state an Eighth Amendment claim to relief that is
plausible on its face against Defendants Jones and Jordan.
B.

Corizon

Corizon contracted with the FDOC to provide medical and mental
health services to inmates within the state of Florida.

Although

Corizon is not a governmental entity, "[w]here a function which is
traditionally

the

exclusive

prerogative

of

the

state

...

is

performed by a private entity, state action is present" for
purposes of § 1983. Ancata v. Prison Health Servs., Inc., 769 F.2d
700, 703 (11th Cir. 1985) (citations omitted). Indeed,
"when a private entity . . . contracts with a
county to provide medical services to inmates,
36

Case 3:18-cv-01332-BJD-PDB Document 49 Filed 03/28/19 Page 37 of 54 PageID 318

it performs a function traditionally within
the exclusive prerogative of the state" and
"becomes the functional equivalent of the
municipality" under section 1983. Buckner v.
Toro, 116 F.3d 450, 452 (11th Cir. 1997).
"[L]iability under § 1983 may not be based on
the doctrine of respondeat superior." Grech v.
Clayton Cnty., Ga., 335 F.3d 1326, 1329 (11th
Cir. 2003) (en banc).
Craig v. Floyd Cty., Ga., 643 F.3d 1306, 1310 (11th Cir. 2011); see
Denham v. Corizon Health, Inc., No. 15-12974, 2017 WL 129020, at *4
(11th Cir. Jan. 13, 2017) (per curiam) (when a government function
is performed by a private entity like Corizon, the private entity
is treated as the functional equivalent of the government for which
it works).
Liability for constitutional deprivations under § 1983 cannot
be based on the theory of respondeat superior.

Craig, 643 F.3d at

1310 (quoting Grech, 335 F.3d at 1329); see Denno v. Sch. Bd. of
Volusia Cty., 218 F.3d 1267, 1276 (11th Cir. 2000), cert. denied,
531 U.S. 958 (2000). Instead, a government entity may be liable in
a § 1983 action "only where the [government entity] itself causes
the constitutional violation at issue."

Cook ex. rel. Estate of

Tessier v. Sheriff of Monroe Cty., Fla., 402 F.3d 1092, 1116 (11th
Cir. 2005) (citations omitted).

It is a plaintiff's burden to

establish that an official policy or custom of the government
entity was the "moving force" behind the alleged constitutional
deprivation.

See Monell v. Dep't of Soc. Servs., 436 U.S. 658,

693-94 (1978).

37

Case 3:18-cv-01332-BJD-PDB Document 49 Filed 03/28/19 Page 38 of 54 PageID 319

In Monell, the Supreme Court held local governments can be
held liable for constitutional torts caused by official policies,
but this liability is limited to "acts which the [government
entity] has officially sanctioned or ordered."
Cincinnati, 475 U.S. 469, 480 (1986).

Pembaur v. City of

Under Monell, a plaintiff

also must allege that the constitutional deprivation was the result
of "an official government policy, the actions of an official
fairly deemed to represent government policy, or a custom or
practice so pervasive and well-settled that it assumes the force of
law." Denno, 218 F.3d at 1276 (citations omitted); see Hoefling v.
City of Miami, 811 F.3d 1271, 1279 (11th Cir. 2016) (stating Monell
"is meant to limit § 1983 liability to 'acts which the municipality
has officially sanctioned or ordered'"; adding that "[t]here are,
however, several different ways of establishing municipal liability
under § 1983").
"A policy is a decision that is officially adopted by the
[government entity], or created by an official of such rank that he
or she could be said to be acting on behalf of the [government
entity]." Sewell v. Town of Lake Hamilton, 117 F.3d 488, 489 (11th
Cir. 1997) (citation omitted), cert. denied, 522 U.S. 1075 (1998).
The policy requirement is designed to "'distinguish acts of the
[government entity] from acts of employees of the [government
entity], and thereby make clear that [governmental] liability is
limited to action for which the [government entity] is actually

38

Case 3:18-cv-01332-BJD-PDB Document 49 Filed 03/28/19 Page 39 of 54 PageID 320

responsible.'" Grech, 335 F.3d at 1329 n.5 (quotation and citation
omitted). As such, governmental liability arises under § 1983 only
where "'a deliberate choice to follow a course of action is made
from among various alternatives'" by governmental policymakers.
City of Canton v. Harris, 489 U.S. at 389 (quoting Pembaur, 475
U.S. at 483-84).
As a consequence, a government entity rarely will have an
officially-adopted policy that permits a particular constitutional
violation; therefore, in order to state a cause of action for
damages under § 1983, most plaintiffs must demonstrate that the
government

entity

has

a

custom

or

practice

of

permitting

a

constitutional violation. See Grech, 335 F.3d at 1330; McDowell v.
Brown, 392 F.3d at 1289.

In addressing whether the entity has an

adopted custom, it must be shown that, although not formally
approved by a decisionmaker, the act is "so widespread as to have
the force of law."

Bd. of Cty. Comm'rs of Bryan Cty., Okla. v.

Brown, 520 U.S. at 404 (citation omitted).

A "custom" is "a

practice that is so settled and permanent that it takes on the
force of law" or a "persistent and wide-spread practice."

Sewell,

117 F.3d at 489.
More must be shown; "[t]o hold the [government entity] liable,
there must be 'a direct causal link between [its] policy or custom
and the alleged constitutional deprivation.'" Snow ex rel. Snow v.
City of Citronelle, 420 F.3d at 1271 (quotation omitted).

39

Because

Case 3:18-cv-01332-BJD-PDB Document 49 Filed 03/28/19 Page 40 of 54 PageID 321

Corizon's

liability under § 1983 would be based on its functional

equivalence to the government entity responsible for providing
medical and mental health care and services to FDOC inmates,
Plaintiff must plead that an official policy or a custom or
practice of Corizon was the moving force behind the alleged federal
constitutional violation.
In the Amended Complaint, Plaintiff claims Defendant Corizon
is directly and vicariously liable for violating Plaintiff's Eighth
Amendment right to be free from cruel and unusual punishment as the
contract entity that contracted with FDOC to provide mental health
and medical care services to prisoners and failed in this regard.
In support, Plaintiff alleges Corizon was aware of the history of
widespread and longstanding abuse and deliberately indifferent
treatment by its employees, agents, and implied agents which
resulted in unnecessary and avoidable prisoner death and medical
injuries, particularly when its policy makers failed to stop their
policy, custom, or practice of understaffing; of disciplining and
punishing prisoners for behavior stemming from mental illness; of
serving "ghost trays;" of employing retaliatory conduct against
mentally ill inmates; of insufficient evaluation of mental history
and mental illness, resulting in housing the decedent away from his
family,

in

squalor

hallucinations

and

and
bipolar

isolation
disorder

exacerbated
and

failing

by
to

psychotic
keep

the

decedent clean, clothed, and fed; of providing inadequate nutrition

40

Case 3:18-cv-01332-BJD-PDB Document 49 Filed 03/28/19 Page 41 of 54 PageID 322

to the decedent due to mental health disorders preventing him from
eating enough food; of inadequately treating mentally ill and
malnourished prisoners; and of insufficient evaluation of serious
medical

needs,

including

the

need

to

correct

the

decedent's

hyponatremia.
Although

some

of

these

claimed

deficiencies

may

not

be

obviously related to the delivery of medical and mental health care
(seemingly more directly related to penological care: the custody,
care and control of the inmates by prison staff), several of the
policies,

customs

or

practices

are

certainly

related

to

the

provision

of medical and mental health care to inmates: (1) the

staffing needed to care for the mentally ill; (2) the appropriate
evaluation of the mentally ill to ensure proper housing, feeding
and care; (3) the treatment of the mentally ill; and (4) the
evaluation of serious medical needs, including the very serious
side effects caused by psychotropic drugs like Tegretol and the
consequences of taking the mentally ill off of psychotropic drugs
without replacing those drugs with other drugs or other appropriate
treatment or care.
It is not so clear, without more information, as to whether
Corizon

has

any

involvement

in

setting

policies,

customs

or

practices concerning the discipline of mentally ill inmates, or in
decision-making as to whether a mentally inmates may be disciplined
for behavior stemming from mental illness; the actual feeding of

41

Case 3:18-cv-01332-BJD-PDB Document 49 Filed 03/28/19 Page 42 of 54 PageID 323

mentally ill inmates or setting policies to ensure mentally inmates
are actually fed and not losing weight due to medication or mental
health issues and are receiving adequate nutrition generally; and,
the adoption of retaliatory measures against the mentally ill.
These are matters that would best be fleshed out at the summary
judgment stage.
The

Court

must

ask

whether

Plaintiff

has

identified

an

official Corizon policy of deliberate indifference or an unofficial
Corizon custom or practice that was "the moving force" behind any
alleged constitutional violation.

It is clear Corizon cannot be

held liable based on any alleged conduct of or decisions made by
its employees simply because they were working under contract for
Corizon to provide medical and mental health care to inmates
incarcerated in the FDOC.

Thus, Plaintiff's factual allegations

relating solely to alleged individual failures in the decedent's
medical and mental health care are insufficient to sustain a claim
that there is either a policy to deny medical and mental health
care to inmates or a practice or custom of denying adequate medical
and

mental

health

care,

much

less

that

the

practice

was

so

widespread that Corizon had notice of violations and made a

42

Case 3:18-cv-01332-BJD-PDB Document 49 Filed 03/28/19 Page 43 of 54 PageID 324

"conscious choice" to disregard them.18

Gold v. City of Miami, 151

F.3d 1346, 1350 (11th Cir. 1998).
The

question

remains

whether

Corizon

adopted

customs

or

policies deliberately indifferent to the medical and mental health
and safety of vulnerable, mentally ill inmates, like the decedent.
Plaintiff urges this Court to find that his Amended Complaint
adequately alleges that Corizon's customs and practices caused the
violations

of

the

Response/Corizon at 6.
direct

and

proximate

decedent's

constitutional

rights.

Upon review, Plaintiff alleges: "[a]s a
cause,

and

moving

force,

of

Defendant

Corizon's policy, pattern, practice, and deliberate indifference,
[the decedent] suffered from harm and violation of his Eighth
Amendment rights."

Amended Complaint at 43.

Here there is more than just a "[t]hreadbare recital[],"
Iqbal, 129 S.Ct. at 1949, of a persistent and widespread custom and
policy that led to death of the decedent.

The Plaintiff has

alleged the decedent had serious medical and mental health needs,
and

the

Plaintiff

has

adequately

alleged

Corizon

acted

with

deliberate indifference to the decedent's needs through its customs
and policies.

As alleged in the Amended Complaint, the decedent

18

For example, any failure of Dr. Bih
decedent's hyponatremia and any failure of
Morrison to address and appropriately assess
state will not sustain the requirement of
policy. More is needed.
43

Tambi to address the
employees Eccles and
the decedent's mental
showing a custom and

Case 3:18-cv-01332-BJD-PDB Document 49 Filed 03/28/19 Page 44 of 54 PageID 325

had serious, often alarming, mental health and medical needs.

He

suffered from hyponatremia, malnourishment, an inability to sleep,
the lack of medication to address his mental health needs after
being taken off of Tegretol, and was found, at the time of his
death, malnourished, unkept - with probable feces on his feet, and
with congested and heavy lungs.
Based on the allegations before the Court, the decedent
suffered drastic weight loss during his incarceration in the FDOC,
a matter that seemingly remained unaddressed until his death.

The

allegations concerning his malnourished condition combined with his
suffering from hyponatremia and a lack of substituted medication to
address his mental health needs, and Corizon's alleged customs and
policies that constituted deliberate indifference to the medical
and mental health needs of mentally ill inmates are more than just
general allegations of undue care.

"Here, Plaintiff identifies at

least an unofficial custom or practice that constituted the moving
force behind the alleged constitutional violation.

Plaintiff has

plausibly alleged, and a jury could reasonably infer, that one of
these

alleged

policies,

individually

or

in

combination,

were

directly or causally linked to [the decedent's] injuries [and
death] while [an inmate confined in the FDOC] under Corizon's
care."

Andrews v. Scott, No. 2:16-cv-814-FtM-99MRM, 2018 WL

4360623, at *5 (M.D. Fla. Sept. 13, 2018).

Plaintiff has pled

"enough facts to state a claim to relief that is plausible on its

44

Case 3:18-cv-01332-BJD-PDB Document 49 Filed 03/28/19 Page 45 of 54 PageID 326

face."

Twombly, 550 U.S. at 570.

Thus, Corizon's Motion is due to

be denied.
VII.

Qualified Immunity

Defendants Jones and Jordan contend they are immune from suit,
claiming qualified immunity.

Defendants' Motion at 13-15.

Under

the doctrine of qualified immunity, Defendants may claim they are
entitled to qualified immunity from monetary damages in their
individual capacities.

It is undisputed that Defendants were

engaged in discretionary functions during the events at issue.
defeat

qualified

immunity

with

respect

to

these

To

Defendants,

Plaintiff must show both that a constitutional violation occurred
and that the constitutional right violated was clearly established.
Recently, the Eleventh Circuit, in Sebastian v. Ortiz, No. 1714751, 2019 WL 1187012, at *3 (11th Cir. March 14, 2019), addressed
the denial of a motion to dismiss asserting qualified immunity, and
explained:
Qualified immunity shields government
officials "from liability for civil damages
insofar as their conduct does not violate
clearly
established
statutory
or
constitutional rights of which a reasonable
person
would
have
known."
Harlow
v.
Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727,
73 L.Ed.2d 396 (1982). It is designed to
permit
officials
to
perform
their
discretionary duties "without the fear of
personal liability or harassing litigation."
Lee v. Ferraro, 284 F.3d 1188, 1194 (11th Cir.
2002). The doctrine therefore "protect[s] from
suit 'all but the plainly incompetent or one
who is knowingly violating the federal law.'"
Id. (quoting Willingham v. Loughnan, 261 F.3d
45

Case 3:18-cv-01332-BJD-PDB Document 49 Filed 03/28/19 Page 46 of 54 PageID 327

1178, 1187 (11th Cir. 2001), vacated 537 U.S.
801, 123 S.Ct. 68, 154 L.Ed.2d 2 (2002)).
Because qualified immunity protects officials
from suit as well as liability, courts must
determine the validity of a claimed qualified
immunity defense at the earliest possible
time. Id.
To deny qualified immunity at the motion
to dismiss stage, we must conclude both that
the allegations in the complaint, accepted as
true, establish a constitutional violation and
that the constitutional violation was "clearly
established." Keating v. City of Miami, 598
F.3d 753, 762 (11th Cir. 2010). For these
purposes, clearly established law consists of
holdings of the Supreme Court, the Eleventh
Circuit, or the highest court of the relevant
state. See Jenkins v. Talladega City Bd. of
Educ., 115 F.3d 821, 826 n.4 (11th Cir. 1997).
A "public official 'must first prove that he
was
acting
within
the
scope
of
his
discretionary authority when the allegedly
wrongful acts occurred'" to receive the
benefit of qualified immunity. Lee, 284 F.3d
at 1194 (quoting Courson v. McMillian, 939
F.2d 1479, 1487 (11th Cir. 1991)). Here, no
one disputes that Ortiz was acting within the
scope of his discretionary authority when he
arrived at the scene and ultimately arrested
Sebastian. After the defendant makes this
showing, "the burden shifts to the plaintiff
to show that qualified immunity is not
appropriate." Id.
Upon review of the Amended Complaint, Plaintiff has presented
sufficient allegations to present Eighth Amendment claims that
withstand Defendants' Motion to Dismiss, and the constitutional
rights at issue were clearly established.

Given the undersigned's

conclusion that the Defendants' motion should be denied as to the
Eighth Amendment claims, and based on the state of the law on

46

Case 3:18-cv-01332-BJD-PDB Document 49 Filed 03/28/19 Page 47 of 54 PageID 328

qualified immunity in the Eleventh Circuit, qualified immunity
should be denied as to Defendants Jones and Jordan.
VIII.

ADA and RA

Finally, Defendant Jones contends Plaintiff fails to state a
claim upon which relief should be granted in Count IV, violations
of Title II of the ADA and § 504 of the RA against Defendant Jones
in her official capacity.

Under this count, Plaintiff seeks

declaratory relief, equitable relief (the relinquishment of the
decedent's

remains

to

Plaintiff),

compensatory

and

punitive

damages, attorneys' fees, interest and costs, and all other relief
as the Court deems just and proper.

Amended Complaint at 47-48.

Generally, Plaintiff claims this Court has subject matter
jurisdiction

over

Plaintiff's

claims

under

the

Eighth

and

Fourteenth Amendments to the United States Constitution and under
the ADA and the RA.

Amended Complaint at 2.

Defendant Jones

asserts the ADA and RA claim should fail because the allegations in
the Amended Complaint do not state the decedent was deprived or
denied any specific program or service, particularly at UCI.
Defendants' Motion at 16.

In addition, Defendant Jones contends

Plaintiff's claim for monetary damages is barred pursuant to the
Eleventh Amendment because there is no specific allegation of a
violation of rights under the Fourteenth Amendment.

Id.

"Section 504 of the RA states that '[n]o otherwise qualified
individual with a disability in the United States ... shall, solely

47

Case 3:18-cv-01332-BJD-PDB Document 49 Filed 03/28/19 Page 48 of 54 PageID 329

by

reason

of

her

or

his

disability,

be

excluded

from

the

participation in, be denied the benefits of, or be subjected to
discrimination under any program or activity receiving Federal
financial assistance....' 29 U.S.C. § 794(a)."

Crane v. Lifemark

Hosps., Inc., 898 F.3d 1130, 1134 (11th Cir. 2018).
"a

plaintiff

may

demonstrate

discriminatory

Under the RA,

intent

through

a

showing of deliberate indifference." Wilson v. Smith, 567 F. App'x
676, 679 (11th Cir. 2014) (per curiam) (quoting Liese v. Indian
River Cty. Hosp. Dist., 701 F.3d 334, 345 (11th Cir. 2012)).

In

order to satisfy the requirement of showing deliberate indifference
in this context, a plaintiff must demonstrate "the defendant knew
that harm to a federally protected right was substantially likely
and ... failed to act on that likelihood." Id. (quoting Liese, 701
F.3d at 344).
In Count IV, Plaintiff also relies on the ADA.

Of import:

Congress passed The Americans with
Disabilities Act of 1990 "to provide a clear
and comprehensive national mandate for the
elimination
of
discrimination
against
individuals with disabilities." 42 U.S.C. §
12101(b)(1) (1990). Under the ADA, "no
qualified individual with a disability shall,
by reason of such disability, be excluded from
participation in or be denied the benefits of
the services, programs, or activities of a
public
entity,
or
be
subjected
to
discrimination by any such entity." 42 U.S.C.
§ 12132 (1990).
The statutory language of the ADA
"unmistakably includes State prisons and
prisoners within its coverage." Pa. Dep't of
Corr. v. Yeskey, 524 U.S. 206, 209, 118 S.Ct.
48

Case 3:18-cv-01332-BJD-PDB Document 49 Filed 03/28/19 Page 49 of 54 PageID 330

1952, 141 L.Ed.2d 215 (1998). To bring a claim
under Title II of the ADA, the plaintiff must
allege: (1) he is a "qualified individual with
a disability"; (2) he was "excluded from
participation in or ... denied the benefits of
the services, programs, or activities of a
public entity" or otherwise "discriminated
[against] by such entity"; (3) "by reason of
such disability." Shotz v. Cates, 256 F.3d
1077, 1079 (11th Cir. 2001).
A
"qualified
individual
with
a
disability" is defined under the ADA as "an
individual with a disability who, with or
without reasonable modifications to rules,
policies, or practices, the removal of
architectural,
communication,
or
transportation barriers, or the provision of
auxiliary aids and services, meets the
essential eligibility requirements for the
receipt of services or the participation in
programs or activities provided by a public
entity." 42 U.S.C. § 12131(2) (1990). For
purposes of the ADA, a disability is:" [sic]
(A) a physical or mental impairment that
substantially limits one or more of the major
life activities of [an] individual; (B) a
record of such an impairment; or (C) being
regarded as having such an impairment. 42
U.S.C. § 12102(2) (1990).
When evaluating whether an impairment
substantially limits a major life activity,
courts consider: "(1) the nature and severity
of the impairment; (2) the duration or
expected duration of the impairment; and (3)
the permanent or long term impact, or the
expected permanent or long term impact of or
resulting from the impairment." Gordon v. E.L.
Hamm & Assoc., Inc., 100 F.3d 907, 911 (11th
Cir. 1996). However, "[a] physical impairment,
standing alone ... is not necessarily a
disability as contemplated by the ADA." Id.
Hodge v. McNeil, No. 08-23440-CIV, 2011 WL 3101781, at *2-3 (S.D.
Fla. July 25, 2011).

49

Case 3:18-cv-01332-BJD-PDB Document 49 Filed 03/28/19 Page 50 of 54 PageID 331

Plaintiff can seek monetary damages under Title II of the ADA.
A state prison is a public entity, and "Title II authorizes suits
by private citizens for money damages against public entities that
violate § 12132."

James v. Campbell, No. 2:05cv451-MHT (WO), 2007

WL 2083690, at *5 (M.D. Ala. July 19, 2007) (citations omitted)
(James raised claims concerning the unconstitutional conditions of
confinement at a state correctional facility and the deprivation of
adequate medical care under the Eighth Amendment as well as the
ADA).

"The Supreme Court has held that because the Fourteenth

Amendment grants Congress the power to enforce its provisions,
Title II of the ADA validly abrogates state sovereign immunity to
the extent that it creates a cause of action for damages against
states

for

conduct

that

violates

the

Fourteenth

Amendment."

Redding v. Georgia, 557 F. App'x 840, 844 (11th Cir. 2014) (per
curiam) (citing United States v. Georgia, 546 U.S. 151, 158–59
(2006)).
In the Amended Complaint, Plaintiff alleges the decedent had
a mental impairment, qualifying him as disabled. Amended Complaint
at 44.
that

Plaintiff states the decedent "suffered mental impairments
substantially

activities."

limited

one

or

Id. (footnote omitted).

more

of

his

major

life

Of course, Plaintiff will

have to show that the decedent was denied reasonable accommodation
by reason of his disability or was otherwise discriminated against
by Jones in her official capacity as Secretary of the FDOC.

50

See

Case 3:18-cv-01332-BJD-PDB Document 49 Filed 03/28/19 Page 51 of 54 PageID 332

James v. Campbell, No. 2:05cv451-MHT (WO), 2007 WL 2083690, at *6
(finding,

under

the

ADA,

the

inmate

must

establish

he

is

a

qualified individual with a disability under the ADA and has been
denied reasonable accommodation by reason of any disability or was
otherwise discriminated against).
Georgia,

546

U.S.

at

157

As noted in United States v.

(citations

omitted),

"it

is

quite

plausible that the alleged deliberate refusal of prison officials
to accommodate [an inmate's] disability-related needs in such
fundamentals as mobility, hygiene, medical care, and virtually all
other prison programs constituted 'exclu[sion] from participation
in or . . . den[ial of] the benefits of' the prison's 'services,
programs, or activities.'"
This sentiment is further addressed in the concurring opinion
in United States v. Georgia, 546 U.S. at 161 (Stephens, J., and
Ginsburg, J., concurring), recognizing Congress decided to extend
Title II's protection to prison inmates, and noting this extension
was "not limited to violations of the Eighth Amendment."

Although

cases involving inadequate medical care and inhumane conditions
have probably been the most numerous of ADA cases, other access and
accommodation claims have certainly been recognized.

Id. at 162.

To the extent Defendant Jones is asserting the Eleventh
Amendment bars Plaintiff's ADA claim because it relies on the
Eighth Amendment rather than the Fourteenth, such a contention is
without merit.

For example, in Mitchell v. Williams, No. 6:15-cv-

51

Case 3:18-cv-01332-BJD-PDB Document 49 Filed 03/28/19 Page 52 of 54 PageID 333

93, 2016 WL 723038, at *1 (S.D. Ga. Feb. 22, 2016), a Georgia
inmate who contracted Hepatitis C while in prison and complained of
lack of treatment, raised a claim pursuant to Title II of the ADA
against the Georgia Department of Corrections.

The district court

opined:
Unlike Section 1983, Title II of the ADA
abrogates state sovereign immunity insofar as
the Act creates a private cause of action
against the States for conduct that violates
both the ADA and the Fourteenth Amendment.
United States v. Georgia, 546 U.S. 151 (2006);
Black v. Wigington, No. 15-10848, 2016 WL
278918, at *8 (11th Cir. Jan. 22, 2016). The
Due Process Clause of the Fourteenth Amendment
incorporates the Eighth Amendment's guarantee
against
cruel
and
unusual
punishment.
Louisiana ex rel. Francis v. Resweber, 329
U.S. 459, 463 (1947). Accordingly, the
Department of Corrections is not immune from
Plaintiff's ADA claims.
Mitchell v. Williams, No. 6:15-CV-93, 2016 WL 723038, at *3.
Thus, Plaintiff, in this case, has plausibly raised a claim of
discriminatory medical and mental health care, claiming a denial of
departmental services, programs, and care to the decedent by reason
of his being mentally ill.
Title II of the ADA.

He may seek compensatory damages under

Notably, Plaintiff's request for punitive

damages for alleged violations of the ADA and RA is foreclosed by
law.
*10

Taylor v. Thomas, No. 2:14-cv-345-WHA, 2017 WL 2117030, at
(M.D.

Ala.

April

12,

2017)

(citation

omitted),

report

and recommendation adopted by No. 2:14-cv-345-WHA, 2017 WL 1758073
(M.D. Ala. May 4, 2017).

See Barnes v. Gorman, 536 U.S. 181, 189

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(2000) (finding punitive damages are unavailable under Title II of
the ADA or section 504 of the RA); Ortega v. Bibb Cnt'y School
Dist., 431 F.Supp.2d 1296, 1299 (M.D. Ga. 2006) (finding damage
remedies available, but not punitive damages).

Thus, Plaintiff's

claims for punitive damages under the ADA and RA are due to be
dismissed.
Accordingly, it is now
ORDERED:
1.

Defendants Julie Jones and Kevin D. Jordan's Motion to

Dismiss Counts I, II and IV of the Amended Complaint (Doc. 34) is
DENIED.
2.

Defendant Corizon Health, Inc.'s Motion to Dismiss the

Plaintiff's Amended Complaint (Doc. 35) is DENIED.
3.

The Court hereby dismisses Plaintiff's claim for punitive

damages under the ADA and RA.
4.

Defendants Julie Jones, Mark S. Inch (in his official

capacity), Defendant Kevin D. Jordan, and Corizon shall respond to
the Amended Complaint by April 30, 2019.
DONE AND ORDERED at Jacksonville, Florida, this 28th day of
March, 2019.

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sa 3/21
c:
Counsel of Record

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