Opinion
5:19-cv-00457-TES-MSH
02-11-2022
TEO A. JAMISON, Jamison, v. Sheriff GARY LONG, et al., Defendants.
REPORT AND RECOMMENDATION
STEPHEN HYLES UNITED STATES MAGISTRATE JUDGE
Pending before the Court are motions to dismiss filed by Defendants Long and Bell, (ECF No. 109), Wrobel and Younger (ECF No. 114), Kvistad (ECF No. 119), and White, Gandee, Weaver, Lee, and Blackmon (ECF No. 128). For the reasons explained below, it is recommended that Wrobel, Younger, and Kvistad's motions be granted and that Long, Bell, White, Gandee, Weaver, Lee, and Blackmon's motions be granted in part and denied in part.
BACKGROUND
The present action arises out of Plaintiff Teo Jamison's former confinement at the Butts County Detention Center (“BCDC”). Jamison asserts that the United States Marshal's Service (“USMS”) detained him on April 2, 2018. 2d Recast Compl. 7, ECF No. 21. Two weeks later, USMS contracted with BCDC to house Jamison, and he was detained there from April 16, 2018, until November 21, 2019. Id.; 3d Recast Compl. 4, ECF No. 99. Jamison states that when he arrived at BCDC in April 2018, he informed staff of his need for a cane based on his underlying health conditions, including recent surgery. 3d Recast Compl. 7. Jamison alleges generally that he made Defendants aware of his need for a cane and that he was a fall risk without such accommodation. Id. at 7-10. He further alleges that he fell in April 2019, resulting in a broken finger. Id. at 8-9. Jamison contends that even after his fall in April 2019, Defendants refused to provide him accommodation. Id. at 8-10.
After various amendments and screening pursuant to 28 U.S.C. § 1915A(a), three claims remain in this case. The first is Jamison's claim that Long, White, Gandee, Weaver, Lee, and Blackmon were deliberately indifferent to his safety and a serious medical need by depriving him of the use of a cane for his underlying health conditions, including recent surgery (“denial of a cane claim”). The second is Jamison's claim that Long, Bell, Wrobel, Younger, and Kvistad were deliberately indifferent to a serious medical need by failing to ensure prompt and adequate medical care for his broken finger following the April 2019 fall (“broken finger claim”). The third is Jamison's First Amendment retaliation claim against Lee and Blackmon, alleging that Lee would place Jamison in restricted housing if he complained about a lack of medical accommodation and that Blackmon would sometimes not file Jamison's complaints and would follow Lee's orders to punish him for complaining (“retaliation claim”).
For the sake of brevity, the Court has omitted the complex procedural history of this case.
Defendants have all moved to dismiss Jamison's claims in this case (ECF Nos. 109, 114, 119, 128). Jamison has filed a consolidated response (ECF No. 134), and Defendants filed reply briefs (ECF Nos. 135, 136). The Court held an evidentiary hearing on Defendants' exhaustion defense on January 27, 2022 (ECF No. 139). Defendants' motions are ripe for review.
DISCUSSION
Long and Bell moved to dismiss on September 7, 2021 (ECF No. 109). They raise three grounds. First, they argue that Jamison's complaint fails to state a claim. Long and Bell (“Long”) Br. in Supp. of 2d Mot. to Dismiss 3-4, ECF No. 109. Second, they assert that Jamison failed to exhaust his administrative remedies. Id. at 4-6. Third, they contend that qualified immunity bars Jamison's claims. Id. at 6-7. Wrobel and Younger moved to dismiss on September 14, 2021 (ECF No. 114). They also argue that Jamison failed to exhaust his administrative remedies. Wrobel and Younger (“Wrobel”) 2d Mot. to Dismiss 9-12, ECF No. 114. They further maintain that Jamison's action against them in their official capacity must be dismissed. Id. at 12. Kvistad filed her motion to dismiss on September 28, 2021 (ECF No. 119). She argues the claims against her should be dismissed based on failure to exhaust, absence of a Bivens remedy, and qualified immunity. Kvistad Br. in Supp. of 2d Mot. to Dismiss 7-20, ECF No. 119-1. Finally, White, Gandee, Weaver, Lee, and Blackmon filed their motion to dismiss on October 29, 2021, arguing lack of exhaustion, failure to state a claim, and qualified immunity. White, Gandee, Weaver, Lee, and Blackmon (“White”) Br. in Supp. of Mot. to Dismiss 2-9, ECF No. 128-1.
The Court agrees that Jamison did not exhaust his administrative remedies as it pertains to the broken finger and retaliation claims, and therefore, recommends that these claims be dismissed. It disagrees, however, as to the denial of a cane and recommends the motions be denied as to that claim.
I. Exhaustion
A. Exhaustion Standard
The Prison Litigation Reform Act (“PLRA”) provides that “[n]o action shall be brought with respect to prison conditions under section 1983 of this title . . . by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). When a grievance procedure is provided for prisoners, “an inmate alleging harm suffered from prison conditions must file a grievance and exhaust the remedies available under that procedure before pursuing a § 1983 lawsuit.” Brown v. Sikes, 212 F.3d 1205, 1207 (11th Cir. 2000) (emphasis added). “To exhaust administrative remedies in accordance with the PLRA, prisoners must properly take each step within the administrative process. If their initial grievance is denied, prisoners must then file a timely appeal.” Bryant v. Rich, 530 F.3d 1368, 1378 (11th Cir. 2008) (internal citation and quotation marks omitted). “Proper exhaustion demands compliance with an agency's deadlines and other critical procedural rules because no adjudicative system can function effectively without imposing some orderly structure on the course of its proceedings.” Woodford v. Ngo, 548 U.S. 81, 90-91 (2006).
“The level of detail necessary in a grievance to comply with the grievance procedures will vary from system to system and claim to claim, but it is the prison's requirements, and not the PLRA, that define the boundaries of proper exhaustion.” Jones v. Bock, 549 U.S. 199, 218 (2007). “The critical function of the grievance process is that it provides the institution with notice of a problem such that they have an opportunity to address the problem internally.” Toenniges v. Ga. Dep't of Corr., 600 Fed.Appx. 645, 649 (11th Cir. 2015) (per curiam).
The argument that a plaintiff has failed to satisfy section 1997e(a) is properly raised in a motion to dismiss. Bryant, 530 F.3d at 1375 (“[E]xhaustion should be decided on a Rule 12(b) motion to dismiss[.]”). Further, since dismissal for failure to exhaust is not an adjudication on the merits, the Court can resolve factual disputes using evidence from outside the pleadings. Id. at 1376. “[D]eciding a motion to dismiss for failure to exhaust administrative remedies is a two-step process.” Turner v. Burnside, 541 F.3d 1077, 1082 (11th Cir. 2008). “First, the court looks to the factual allegations in the defendant's motion to dismiss and those in the plaintiff's response, and if they conflict, takes the plaintiff's versions of the facts as true.” Id. If, taking plaintiff's facts as being true, the defendant is entitled to dismissal for failure to exhaust, then the complaint should be dismissed. Id. “If the complaint is not subject to dismissal at the first step . . . the court then proceeds to make specific findings in order to resolve the disputed factual issues related to exhaustion.” Id. The defendant bears the burden of proof during this second step. Id. In resolving the factual dispute, a Court is authorized to make credibility determinations. See Bryant, 530 F.3d at 1377-78 (finding that district court did not clearly err in determining that plaintiff's allegation that he was denied access to grievance forms was not credible); see also Whatley v. Smith, 898 F.3d 1072, 1082-83 (11th Cir. 2018) (upholding district court finding that one of inmate's grievances was not filed).
A prisoner need only exhaust administrative remedies that are available. Ross v. Blake, 578 U.S. 632, 642 (2016). In Ross, the Supreme Court held that an administrative procedure is unavailable under the PLRA when either (1) “it operates as a simple dead end-with officers unable or consistently unwilling to provide any relief to aggrieved inmates[, ]” (2) it is “so opaque that it becomes, practically speaking, incapable of use[, ]” or (3) “prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation.” Ross, 578 U.S. at 643-44. For a remedy to be available, it “must be capable of use for the accomplishment of its purpose.” Turner, 541 F.3d at 1084 (quotation marks omitted).
The burden is on the defendant to show that an administrative remedy is available. Geter v. Baldwin State Prison, 974 F.3d 1348, 1356 (11th Cir. 2020). However, “[i]n terms of a defendant's initial showing, Turner only requires a defendant to show a remedy is ‘generally available.'” Daker v. Owens, No. 6:14-cv-47, 2021 WL 725668, at *5 (S.D. Ga. Feb. 22, 2021) (quoting Wright v. Ga. Dep't of Corr., 820 Fed.Appx. 841, 845 (11th Cir. 2020)), recommendation adopted by 2021 WL 1175213 (S.D. Ga. Mar. 26, 2021). A defendant need not show that “a remedy was available to [a plaintiff] practically speaking.” Wright, 820 Fed.Appx. at 845. Once the defendant's burden is met, “the burden of going forward shifts to the plaintiff, who . . . must demonstrate that the grievance procedure was subjectively and objectively unavailable to him.” Geter, 974 F.3d at 1356 (internal quotation marks and citation omitted). District courts must use the two-step Turner analysis when addressing the availability of the grievance process. See Jenkins v. Sloan, 826 Fed.Appx. 833, 839 (11th Cir. 2020) (per curiam) (directing district courts to apply “the two-step Turner test when addressing the question of exhaustion and the availability of the grievance process”).
B. Weaver Affidavit
Defendant Captain Mary Weaver was the records custodian for BCDC during the relevant time period and oversaw personnel who handle inmate grievances. Weaver Decl. ¶ 2, ECF No. 40-1. She provided an affidavit as to BCDC's grievance procedures and the grievances Jamison submitted while at BCDC (ECF No. 40-1). According to Weaver, BCDC's grievance procedures are set forth in the inmate handbook which is provided to all inmates at BCDC. Id. ¶¶ 3-4. Under the procedures, an inmate may submit a grievance by requesting a form from the grievance officer and then submitting a completed form within five days of an incident. Weaver Decl. p. 5. An inmate “may only address one area of concern per Grievance Form” and grievances are “restricted to incidents which occur to the inmate while incarcerated” in BCDC. Id. If an inmate disagrees with a resolution of a grievance, the inmate may submit a written appeal within two days to the Security Commander. Id. The Security Commander's designee will then review the grievance. Id.
Weaver has attached an orientation form signed by Jamison indicating that he was issued an inmate handbook. Weaver Decl. pp. 6-7.
According to Weaver, Jamison filed six grievances at BCDC in 2019. Weaver Decl. pp. 9-14. Grievance Number 20951 was submitted on February 5, 2019, and involved his placement in disciplinary cell. Id. at p. 9. Jamison complained that Lee had placed him in the disciplinary cell without telling him what he was being charged with. Id. Grievance Number 201998 was filed on June 20, 2019, and concerned payment for a damaged dental bridge. Id. at p. 11. In Grievance Number 201917, which was filed on September 3, 2019, Jamison complained that the jail was not allowing him to use his cane. Id. at p. 10. He stated that he had undergone surgery for his finger and was worried he would fall and reinjure the finger if he did not have his cane to maintain balance. Id. Jamison submitted Grievance Number 201920 on September 11, 2019, again complaining about BCDC's refusal to allow him use of a cane. Id. at p. 12. Grievance Number 201923 was submitted on September 25, 2019, and also concerned Jamison's demand for a cane. Weaver Decl. p. 13. In this grievance, he again mentioned need of the cane in light of his previous fall and broken finger. Id. Finally, Jamison lodged Grievance Number 201944 on November 20, 2019-after filing this lawsuit-wherein he complained about a $5.00 charge for medical services. Id. at p. 14.
C. Findings of Fact as to Plaintiff's Failure to Exhaust
Defendants contend that Jamison failed to exhaust his administrative remedies. Specifically, they assert that Jamison filed no grievances related to the broken finger or retaliation claims. Long Br. in Supp. of 2d Mot. to Dismiss 5; Wrobel 2d Mot. to Dismiss 11; Kvistad Br. in Supp. of 2d Mot. to Dismiss 10; White Br. in Supp. of Mot. to Dismiss 4-5. They also argue that Jamison failed to appeal the denial of his grievances related to denial of a cane. Long Br. in Supp. of 2d Mot. to Dismiss 6; White Br. in Supp. of Mot. to Dismiss 3-4.
Jamison responds that he filed grievances as to each of his claims and suggests-at least generally-that he satisfied his obligation to exhaust his administrative remedies. Pl.'s Resp. to Mots. to Dismiss 3, 5, 8, 10-16, ECF No. 134; Pl.'s Br. in Resp. to Mots. to Dismiss 3, 5, 10, ECF No. 134-1. Because at the first stage of the exhaustion analysis the Court must take Jamison's version of the facts as being true, his claims cannot be dismissed for lack of exhaustion at this first step. Turner, 541 F.3d at 1082. Since Jamison's claims were not dismissed at the first step, the Court makes the following factual findings.
First, the Court finds that there were administrative remedies generally available to Jamison while he was incarcerated at BCDC as evidenced by Captain Weaver's declaration, attached exhibits, and her testimony at the evidentiary hearing. See generally Weaver Decl.
Second, the Court finds that the only grievances filed by Plaintiff are the six submitted by Defendants. To the extent Plaintiff claims otherwise, the Court finds the assertion not credible. He has attached no copies of other grievances he claims he filed or provided grievance numbers or dates for such other grievances to show that he exhausted his administrative remedies. In fact, the only grievances he specifically cites are those submitted by Defendants, and he states that he filed “six grievances all in connection to being punished, by not receiving cane and hardship accommodations.” Pl.'s Resp. to Mots. to Dismiss 3, 5, 8, 10-11; Pl.'s Br. in Resp. to Mots. to Dismiss 5.
Third, regarding the broken finger claim, the Court finds that none of the grievances Jamison submitted expressed concern with the treatment he was receiving for his injured finger. Jamison seems to suggest that Grievance Number 201998 was intended to address treatment of his broken finger. Pl.'s Resp. to Mots. to Dismiss 8. That contention, however, is contradicted by a plain reading of the grievance, which refers explicitly to damage to a dental bridge and makes no reference to Jamison's finger or hand. Weaver Decl. p. 11. As noted, a couple of grievances filed in September 2019 referenced his injured finger but only to explain why he needed a cane. These grievances were not sufficient to put Defendants on notice of a problem with the medical care Plaintiff was receiving for his finger. See Toenniges, 600 Fed.Appx. at 649. Thus, Plaintiff failed to exhaust his administrative remedies for the broken finger claim.
Fourth, regarding the retaliation claim against Lee and Blackmon, the Court finds that none of Jamison's grievances address such issue. Jamison asserts that Grievance Number 20951, which he submitted on February 5, 2019, concerned retaliation. Pl.'s Br. in Resp. to Mots. to Dismiss 5. This grievance states, “1-24-19 Lt. Lee sentenced me to 30 days in J-Block without telling me what I was being charged with or asking me if I would have preferred a hearing. I have been in J-Block 15 days and have as to yet to know what I've been charged with.” Weaver Decl. p. 9. Jamison asserts this grievance was in response to a conversation he had with Lee and Blackmon wherein he complained about a lack of medical accommodation. Pl.'s Br. in Resp. to Mots. to Dismiss 4-5. Jamison's grievance, however, does not mention retaliation or allege that Jamison's placement in a disciplinary cell was in response to his complaints about medical accommodation. If Jamison believed at the time that his placement was in retaliation for his complaints about medical accommodation, presumably he would have mentioned it. Moreover, Grievance Number 20951 was filed approximately seven months prior to his first grievance about denial of a cane, further undermining his contention that it related to retaliation. Jamison's contention is not credible, and the Court concludes that he failed to exhaust his administrative remedies for the retaliation claim.
In Grievance Number 201920, filed on September 11, 2019, Jamison complained that Blackmon “constantly harassed” him and asked that his grievance be handled by someone “without grudge of retaliation.” Weaver Decl. p 12. Jamison does not cite this grievance to show that he exhausted his retaliation claim, though he does reference it in regard to the denial of a cane claim. Pl.'s Resp. to Mots. to Dismiss 3. Moreover, the grievance is too vague to put BCDC on notice of actual retaliation. While his third recast complaint alleges that he was placed in restrictive housing for filing grievances, Grievance Number 201920 did not mention this or any other specific acts of retaliation. 3d Recast Compl. 8. At most, Grievance Number 201920 would place BCDC on notice that Jamison felt Blackmon was discriminating against him regarding his medical care.
Fifth, regarding the denial of a cane claim, the Court reaches a different conclusion.
There is no dispute that Jamison filed at least three grievances complaining about the denial of a cane. Weaver Decl. pp. 10, 12-13. The primary issue is whether he completed the administrative process by appealing. Defendants contend that Jamison did not. Long Br. in Supp. of 2d Mot. to Dismiss 6; White Br. in Supp. of Mot. to Dismiss 3-4. In support of their argument, they have submitted the inmate handbook. Weaver Decl. p. 5. The entirety of the handbook's discussion of the grievance appeal process states:
If the inmate disagrees with the solution, the inmate may submit a written appeal to the Security Commander within two (2) days. A review of each grievance will be conducted by a designee of the Security Section Commander.Id. The inmate handbook does not mention appeal forms, which is in contrast to its specific reference to “Grievance Forms.” Id. It also does not specify any particular format or content for a “written appeal” under the grievance procedures. Weaver averred in her affidavit and testified during the evidentiary hearing that Jamison never appealed a grievance denial. Weaver Decl. ¶ 7; Hr'g 11:28:30-11:28:46, 11:32:40-11:32:54.Blackmon testified that she was responsible for receiving and investigating grievances at BCDC in 2019. Hr'g 11:07:13-11:07:31. She also testified that Jamison never appealed a grievance. Hr'g 11:08:33-11:08:40.
All citations to the January 27, 2022, hearing refer to times logged contemporaneously by the Court's FTR Gold recording system on the dates of the proceedings.
Jamison contends that Grievance Number 201920, filed on September 11, 2019, was actually an appeal of Blackmon's denial of Grievance Number 201917, which was filed on September 3, 2019, and denied on September 11, 2019. Pl.'s Resp. to Mots. to Dismiss 3, 11. Jamison claims he asked for an appeal form, but Blackmon refused to give him one and told him to write his appeal on a regular grievance form. Id.; Hr'g 11:39:1311:39:35. Jamison also claims he appealed grievances by writing letters to Long, White, and Gandee. Pl.'s Resp. to Mots. to Dismiss 12. During the evidentiary hearing, Blackmon denied that she refused to give Jamison an appeals form and testified that Jamison never told her that the September 11 grievance was an appeal of the denial of the September 3 grievance. Hr'g 11:08:14-11:08:32, 11:08:55-11:09:09, 11:10-10-11:10:16, 11:10:2211:10:26. Grievance Number 201920 does not explicitly state that it is an appeal of the denial of Grievance Number 201917 or any other grievance. Weaver Decl. p. 12. If the requirements for a written appeal under the 2019 BCDC grievance procedures were clearly defined, then this omission might be determinative. However, such is not the case.
Jamison states this grievance asked that an “administrative staff” member handle his grievance, but Grievance Number 201920 does not say this. Pl.'s Resp. to Mots. to Dismiss 3, 11. Instead, Grievance Number 201923, which Jamison submitted on September 25, 2019, asks that his grievance be handled by an “administrative staff member.” Weaver Decl. p. 13. This grievance, however, was not submitted within two days of the denial of another grievance, so it would not be compliant with BCDC's written appeals procedures. Weaver Decl. p. 5.
As mentioned above, the inmate handbook does not specify a particular form or content for a “written appeal.” Weaver Decl. p. 5. Further, the evidentiary hearing did not add clarity. Defendants called Blackmon and Weaver to testify via video conference, and the quality of Weaver's connection was extremely poor. Portions of her testimony were unintelligible. Even when she could be understood, it was contradictory. At one point Weaver testified there was a special appeal form, but Jamison did not ask for one. Hr'g 11:37:32-11:38:29. At other points, though, Weaver testified that she never passed out appeal forms, and, in fact, there was no designated appeal form in 2019, but instead she used a “hearing sheet.” Hr'g 11:31:35-11:32:13, 11:41:31-11:42:47. No evidence was introduced, however, as to how an inmate would get a hearing sheet, to whom it was submitted, and when and how it was to be completed. Based on Weaver's testimony, the Court envisions a process where Weaver and a superior officer would sit down with the inmate and discuss his grievance. Hr'g 11:25:24-11:28:06. It is not clear if a hearing sheet was supposed to be completed at that time, but Weaver's testimony indicated some paperwork would be completed during the appeal hearing. Hr'g 11:26:49-11:28:05. Further, Weaver admitted that Jamison had written White following Blackmon's denial of a grievance and that she and White had met with Jamison. Hr'g 11:31:10-11:31:33. Why this would not constitute an appeal under the BCDC procedures she described is not clear.
In summary, the grievance appeals procedures at BCDC appear to have been an ad hoc affair. A grievance procedure is unavailable if it is “so opaque that it becomes, practically speaking, incapable of use.” Ross, 578 U.S. at 643. The Court concludes that BCDC's grievance appeals process fits this category and that Jamison, therefore, completed the grievance process when he submitted his grievances regarding denial of a cane.
Furthermore, the Court rejects Defendants arguments that Jamison failed to exhaust against Long, White, Gandee, Weaver, or Lee because he did not specifically identify them as the ones who denied him a cane. Long Br. in Supp. of 2d Mot. to Dismiss 5; White Br. in Supp. of Mot. to Dismiss 4. The “exhaustion requirement is designed to alert prison officials to a problem, not to provide personal notice to a particular official that he may be sued.” Parzyck v. Prison Health Servs., Inc., 627 F.3d 1215, 1219 (11th Cir. 2010) (internal quotation marks omitted). What is “critical, ” is that a grievance provide an “institution with notice of a problem such that they have an opportunity to address the problem internally.” Toenniges, 600 Fed.Appx. at 649. Jamison's grievances did that.
II. Failure to State a Claim
As the Court is recommending dismissal of the broken finger and retaliation claims, the only claim left to address is the denial of a cane claim against Long, White, Gandee, Weaver, Lee, and Blackmon. Defendants contend Jamison fails to state a claim. Long Br. in Supp. of 2d Mot. to Dismiss 3-4; White Br. in Supp. of Mot. to Dismiss 6-7.
A complaint is subject to dismissal under Rule 12(b)(6) of the Federal Rules of Civil Procedure if it fails “to state a claim upon which relief can be granted.” “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.
When considering a motion to dismiss for failure to state a claim, the Court must accept all allegations in the complaint as true, and the Court must construe the facts in the light most favorable to the plaintiff. Lopez v. Target Corp., 676 F.3d 1230, 1232 (11th Cir. 2012). The Court, however, is not bound to accept as true “a legal conclusion couched as a factual allegation.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555). It is well-established that “only a complaint that states a plausible claim for relief survives a motion to dismiss.” Id. at 679. “Ultimately, the issue to be decided when considering a motion to dismiss is not whether the claimant will ultimately prevail, but whether the claimant is entitled to offer evidence to support the claims.” Powell v. Ga. Dep't of Corr., No. 5:19-cv-00202-TES, 2019 WL 5088752, at *2 (M.D. Ga. Oct. 10, 2019). A complaint “must allege enough facts to raise a reasonable expectation that discovery will reveal evidence supporting a claim.” Id. (internal quotation marks omitted)
Additionally, “[p]ro se pleadings are held to a less stringent standard than pleadings drafted by attorneys and are liberally construed.” Bingham v. Thomas, 654 F.3d 1171, 1175 (11th Cir. 2011) (per curiam) (internal quotation marks omitted). Nevertheless, while “[c]ourts do and should show a leniency to pro se litigants not enjoyed by those with the benefit of a legal education, ” the Court is not permitted “to serve as de facto counsel for a party” by “rewrit[ing] an otherwise deficient pleading in order to sustain an action.” GJR Invs., Inc. v. Cnty. of Escambia, 132 F.3d 1359, 1369 (11th Cir. 1998) overruled on other grounds as recognized in Randall v. Scott, 610 F.3d 701, 709 (11th Cir. 2010).
Jamison's denial of a cane claim implicates both a deliberate indifference to safety and deliberate indifference to a serious medical need claim. To state a claim for exposure to unsafe conditions, a prisoner must allege facts to show the existence of a prison condition that is extreme and poses an unreasonable risk to the prisoner's health or safety. See Chandler v. Crosby, 379 F.3d 1278, 1289 (11th Cir. 2004). For a deliberate indifference to a serious medical need claim, a prisoner must allege facts to show that he had a medical need that was objectively serious and posed a risk to the plaintiff's health. Farrow v. West, 320 F.3d 1235, 1243 (11th Cir. 2003). In either case, the plaintiff must also allege facts showing that the defendant was deliberately indifferent to the risk of harm to the plaintiff. See Chandler, 379 F.3d at 1289-90; Farrow, 320 F.3d at 1243. “[T]o find deliberate indifference on the part of a prison official, a plaintiff inmate must show: (1) subjective knowledge of a risk of serious harm; (2) disregard of that risk; (3) by conduct that is more than gross negligence.” Thomas v. Bryant, 614 F.3d 1288 (11th Cir. 2010).
In his third recast complaint, Jamison states that when he arrived at BCDC in April 2018, he informed staff of his need for a cane based on his underlying health conditions, including recent surgery. 3d Recast Compl. 7. Jamison further alleges that the cane was physician-ordered. Id. at 8. He also contends that he complained directly to Weaver, Blackmon, Lee, White, and Gandee “about receiving medical accommodations to remedy the situation.” Id. at 8. Additionally, Jamison claims that Long, Weaver, White, and Gandee “saw [his] need for medical accommodation, but failed to resolve [the] problem while [he] was in their care.” Id. Moreover, Jamison asserts that he “alerted Defendants that he was a fall risk, that he needed medical accommodations, cane, and failure to accommodate condition [] could result in further significant injury or the unnecessary and wanton infliction of pain.” Id. at 10.
With respect to Lee, Jamison additionally alleges that Lee was in charge of BCDC and that he specifically denied Plaintiff the use of a cane despite the fact that it had been ordered by a doctor. 3d Recast Compl 8; Pl.'s Ex. P, at 1. As a result of not having a cane, Jamison alleges that he suffered continuous falls, including a fall resulting in a serious injury to his finger. 3d Recast Compl. 8-9. Construed liberally, Jamison's allegations are sufficient to state a claim. See Rodriguez v. Asencio, No. 3:17cv155-RV-HTC, 2019 WL 3916268, at *8 (N.D. Fla. July 29, 2019) (finding plaintiff stated a claim of deliberate indifference where he alleged the defendants deprived him of use of a cane despite a physician's orders), recommendation adopted by 2019 WL 3904224 (N.D. Fla. Aug. 19, 2019).
Defendants suggest that Jamison's denial of a cane claim fails as a matter of law because “[d]enial of such an item is common sense, not ‘deliberate indifference.'” White Br. in Supp. of Mot. to Dismiss 6. They cite no law to support this proposition, and the Court cannot say that denial of a physician-prescribed cane can never constitute deliberate indifference so as to warrant dismissal for failure to state a claim. Whether Jamison's claim will survive summary judgment may be another matter. See Rodriguez v. Asencio, No. 3:17cv155-RV-HTC, 2020 WL 5371517, at *9-10 (N.D. Fla. Aug. 6, 2020) (recommending summary judgment on claim alleging deliberate indifference for denial of a cane in prison), recommendation adopted by 2020 WL 5370548 (N.D. Fla. Sept. 8, 2020). Defendants also argue that “the record” shows that Jamison's finger was injured in a fight, not a fall. White Br. in Supp. of Mot. to Dismiss 7 n.1. This is also a matter best addressed in a summary judgment motion.
III. Qualified Immunity
Defendants also contend they are entitled to qualified immunity on the denial of a cane claim. Long Br. in Supp. of 2d Mot. to Dismiss 6-7; White Br. in Supp. of Mot. to Dismiss 8-9. “[Q]ualified immunity offers complete protection for government officials sued in their individual capacities as long as their conduct violates no clearly established statutory or constitutional rights of which a reasonable person would have known.” Oliver v. Fiorino, 586 F.3d 898, 904 (11th Cir. 2009) (internal quotation marks omitted). A defendant seeking qualified immunity must show that at the time of the alleged wrongful acts, “he was acting within the scope of his discretionary authority.” Id. at 905. Once this is established, “the burden then shifts to the plaintiff to show that the grant of qualified immunity is inappropriate.” Id. To do so, a plaintiff must “demonstrate: first, that the facts when viewed in a light most favorable to the plaintiff establish a constitutional violation; and, second, that the illegality of the officer's actions was clearly established at the time of the incident.” Id. (internal quotation marks omitted).
Jamison does not challenge Defendants' assertion that they were acting within the scope of their discretionary authority. See Pl.'s Resp. to Mots. to Dismiss 16. Thus, the only issue is whether the illegality of the Defendants' alleged conduct was clearly established at the time of the incident. “Under the clearly established prong, the dispositive question is whether the law at the time of the challenged conduct gave the government official fair warning that his conduct was unconstitutional.” Wade v. United States, 13 F.4th 1217, 1225 (11th Cir. 2021). A plaintiff can show this in three ways:
First, a plaintiff can point to a materially similar case that has already been decided. The case need not be directly on point, but the existing precedent must have placed the constitutional question beyond debate. Additionally, because judicial precedents are tied to particularized facts, minor variations between cases may prove critical[.] Second, a plaintiff can point to a broader, clearly established principle that should control the novel facts of the situation. But a broader principle must establish with obvious clarity that in the light of pre-existing law the unlawfulness of the official's conduct is apparent. And third, a plaintiff can show that the conduct involved in the case may so obviously violate the Constitution that prior case law is unnecessary. This narrow category encompasses those situations where the official's conduct lies so obviously at the very core of what the relevant constitutional provision prohibits that the unlawfulness of the conduct was readily apparent to the official, notwithstanding the lack of case law.Id. at 1226 (internal citations and quotation marks omitted). The Court can find no binding precedent addressing denial of a cane in a jail, and this is not a case that falls into the third category. Therefore, the issue is whether Jamison can rely on the broader-principle route to meet the clearly established prong.
Jamison alleges the cane was prescribed by a doctor and a medical need. “The knowledge of the need for medical care and intentional refusal to provide that care has consistently been held to surpass negligence and constitute deliberate indifference.” Patel v. Lanier Cnty., Ga., 969 F.3d 1173, 1190 (11th Cir. 2020). At this stage of the proceedings, without more information as to exactly what the physician ordered regarding a cane and what accommodation Defendants may have made to address Jamison's medical issues, the Court cannot say whether Defendants' conduct would fall into the broader-principle category. Again, whether Jamison's claim will survive a summary judgment motion remains to be seen. The Court, however, recommends that Defendants' motion to dismiss based on qualified immunity be denied.
CONCLUSION
For the reasons explained above, it is recommended that that Wrobel, Younger, and Kvistad's motions to dismiss (ECF Nos. 114, 119) be granted and that Long, Bell, White, Gandee, Weaver, Lee, and Blackmon's motions (ECF Nos. 109, 128) be granted in part and denied in part. If this recommendation is adopted, the only remaining claim would be Jamison's denial of a cane claim against Long, White, Gandee, Weaver, Lee, and Blackmon.
Pursuant to 28 U.S.C. § 636(b)(1), the parties may serve and file written objections to this Recommendation, or seek an extension of time to file objections, within fourteen (14) days after being served with a copy hereof. The district judge shall make a de novo determination of those portions of the Recommendation to which objection is made. All other portions of the Recommendation may be reviewed for clear error.
The parties are hereby notified that, pursuant to Eleventh Circuit Rule 3-1, “[a] party failing to object to a magistrate judge's findings or recommendations contained in a report and recommendation in accordance with the provisions of 28 U.S.C. § 636(b)(1) waives the right to challenge on appeal the district court's order based on unobjected-to factual and legal conclusions if the party was informed of the time period for objecting and the consequences on appeal for failing to object. In the absence of a proper objection, however, the court may review on appeal for plain error if necessary in the interests of justice.”
SO RECOMMENDED.