DUBERRY v. SCHMEZLIE et al

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF FLORIDA
PENSACOLA DIVISION
ERIC JUBAR DUBERRY,
Plaintiff,
v. 	Case No. 3:25cv1268-LC-HTC
MICHELLE SCHMELZLE, et al.,
Defendants.
____________________________/
REPORT AND RECOMMENDATION
Plaintiff Eric Duberry, a prisoner proceeding pro se and in forma pauperis,
alleges the Defendants violated the Eighth Amendment by using excessive force and
denying him medical treatment. Doc. 28. Defendants have filed motions to dismiss
(Docs. 34 & 47) and Duberry responded in opposition (Doc. 41). After reviewing
the parties’ submissions and the relevant law, the undersigned concludes the motions
should be DENIED, except that Duberry’s conspiracy claim against Defendant
Delarosa should be dismissed with prejudice.
I. 	Background
Duberry sues eight employees of Santa Rosa Correctional Institution: (1)
Lieutenant Michelle Schmelzle; (2) Sergeant Garrett Gonzalez; (3) Officer James
Harlan; (4) Nurse Terri Delarosa; (5) John Doe 1; (6) John Doe 2; (7) John Doe 3;
and (8) Jane Doe 1. 	The amended complaint sets forth the following factual
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allegations, 	which 	are 	accepted 	as 	true 	for 	purposes 	of 	this 	Report 	and
Recommendation.
On June 2, 2024, Officer O’Neil told Duberry that he was being placed on
property restriction. 	Duberry asked why, and O’Neil walked away. 	Captain Carr
then visited Duberry’s cell and asked, “What’s going on?” When Duberry told Carr
that O’Neil was going to place him on property restriction “for no reason,” Carr said,
“I got something for your fucking ass” and walked away.
Lieutenant Schmelzle arrived at Duberry’s cell with a cell extraction team
consisting of Sergeant Gonzalez, Officer Harlan, and the three John Doe Defendants.
Meanwhile, the Jane Doe Defendant operated a camera. Schmelzle asked Duberry
if he would submit to an unclothed search and hand restraints. Duberry agreed and
passed his boxers through the cell door flap. However, during the unclothed search,
one of the officers falsely stated that Duberry was not complying with commands.
Schmelzle then initiated a cell extraction.
When Duberry’s cell door opened, John Doe 1 grabbed Duberry and forced
him to the back of the cell. Duberry complied with an order to sit down on the floor,
but John Doe 1 and Gonzalez “started to deliver blows to [Duberry’s] head, neck,
back, and torso areas” while the extraction team screamed “stop resisting,” even
though Duberry was offering no resistance.
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John Doe 1 forced Duberry to lie face down and handcuffed him behind his
back while straddling him. Gonzalez stated, “block the door good, we’re about to
fuck him up!” The extraction team then delivered “more blows” while Duberry was
lying face down. John Doe 1, using a racial slur, stated he hated black people and
was “going to enjoy this.” He then grabbed Duberry’s head and repeatedly slammed
his face into the concrete floor, breaking his two front teeth out of his gums.
Eventually, John Doe 1 lifted Duberry up and escorted him to the nurse’s
station for a post-use-of-force physical. 	Duberry told Nurse Delarosa he had
“dizziness, blurry vision, severe headaches, back pain, neck pain, and mouth pain
from two front broken teeth and busted lips.” Delarosa stated, “You’ll be okay,” “I
don’t have time for all of that,” and, “Whatever you did to these officers, just don’t
do it again and you’ll be okay.” Delarosa conducted a partial physical and was told
by Captain Carr what injuries to document to cover up the use of excessive force.
When Duberry was placed back into his cell, he was “bleeding profusely from
[his] mouth” and in “a tremendous amount of pain from the two broken front teeth.”
Duberry contends he “still suffers” from the injuries he received during the incident
and he “still sees medical for ongoing issues.” 	He also “has been prescribed
medications for the ongoing issues the injuries caused.”
Based on the foregoing, Duberry alleges the Defendants who were part of the
extraction team violated the Eighth Amendment by either using excessive force or
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failing to intervene to stop the excessive force. He alleges Nurse Delarosa violated
the Eighth Amendment by failing to treat the injuries he sustained during the use of
force. As relief, Duberry seeks compensatory and punitive damages.
II. 	Failure to Exhaust
The Defendants argue Duberry’s claims should be dismissed because he failed
to allege he exhausted his administrative remedies in his amended complaint. Doc.
34 at 7; Doc. 37 at 4. However, while prisoners are required to exhaust all available
administrative remedies before filing suit, 42 U.S.C. § 1997e(a), they are not
required to plead exhaustion in their complaints. 	See Jones v. Bock, 549 U.S. 199,
216 (2007) (“We conclude that failure to exhaust is an affirmative defense under the
PLRA, and that inmates are not required to specially plead or demonstrate
exhaustion in their complaints.”). 	Thus, Duberry’s failure to include allegations
related to exhaustion in his complaint does not provide a basis for dismissal.
Furthermore, in his response to Delarosa’s motion to dismiss, Duberry alleges
that he completed the FDOC’s “multi step procedure for inmate grievances” and
cites the log numbers of the grievances he allegedly filed. 	Defendants have not
presented any evidence to dispute Duberry’s assertion that he exhausted his
administrative remedies regarding his claims. See Turner v. Burnside, 541 F.3d 1077
(11th Cir. 2008) (discussing the two-step process a court uses to decide a motion to
dismiss for failure to exhaust and noting “defendants bear the burden of proving that
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the plaintiff has failed to exhaust his available administrative remedies”). 	Thus,
Defendants have not shown Duberry failed to exhaust his administrative remedies.1
III. 	Failure to State a Claim
Defendant Delarosa also argues Duberry has failed to state a claim against her
for: (1) deliberate indifference; (2) punitive damages; and (3) conspiracy. Doc. 34.
The undersigned agrees Duberry has failed to state a claim for conspiracy but
concludes dismissal of the deliberate indifference and punitive damages claims is
not appropriate.
A. 	Legal Standard
“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 Atl. 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. 	The Court must liberally
construe Duberry’s pro se allegations, Haines v. Kerner, 404 U.S. 519, 520-21
(1972), 	but 	conclusory 	allegations 	and 	legal 	conclusions 	couched 	as 	factual
1 Delarosa’s motion to dismiss asserts she “does not have access to Plaintiff’s grievances” and
“requests a brief 60 day period of discovery solely as to grievances so that this dispositive issue
can be addressed expeditiously.” Doc. 34 at 7. If Defendants, through discovery or other means,
obtain evidence that demonstrates Duberry failed to exhaust his administrative remedies, they may
present that argument to the Court through an appropriate motion.
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allegations are not entitled to a presumption of truth. 	Iqbal, 556 U.S. at 681;
Papasan v. Allain, 478 U.S. 265, 286 (1986).
B. 	Deliberate Indifference
The Eighth Amendment prohibits government officials from exhibiting
deliberate indifference to the serious medical needs of prisoners. Wade v. McDade,
106 F.4th 1251, 1255 (11th Cir. 2024). 	“To prevail on a claim of deliberate
indifference, plaintiffs ‘must satisfy both an objective and a subjective inquiry’ and
must establish a ‘necessary causal link’ between the challenged conduct and their
injuries.” 	Stalley v. Cumbie, 124 F.4th 1273, 1283 (11th Cir. 2024) (citations
omitted).
To satisfy the objective inquiry, an inmate must establish he has an objectively
serious medical need—that is, one that has been diagnosed by a physician as
mandating treatment or one that is so obvious that even a lay person would easily
recognize the necessity for a doctor’s attention. 	Keohane v. Fla. Dep’t of Corr.
Sec’y, 952 F.3d 1257, 1266 (11th Cir. 2020). In either scenario, the medical need
must be one that, if left unattended, poses a substantial risk of serious harm. Id.
The subjective inquiry requires a plaintiff to demonstrate the defendant
exhibited deliberate indifference; to do so, the plaintiff must show the defendant:
“(1) had subjective knowledge of a risk of serious harm, (2) disregarded that risk,
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and (3) engaged in conduct that amounts to subjective recklessness” under criminal
law. Stalley, 124 F.4th at 1283.
Here, Duberry alleges John Doe 1 and Gonzalez repeatedly punched him in
the face and torso, and John Doe 1 slammed his face into the concrete floor multiple
times, which caused his two front teeth to break “out of [his] gums.” Duberry told
Delarosa he was suffering from “dizziness, blurry vision, severe headaches, back
pain, neck pain, and mouth pain from two front broken teeth and busted lips”; he
also indicates he was bleeding profusely from his mouth. 	Duberry’s allegations,
particularly those regarding his teeth and the bleeding from his mouth, are sufficient
to show both that he had a serious medical need and that Delarosa was aware of that
need. See Moretto v. Wexford Health Source, 2021 WL 12299063, at *2 (M.D. Fla.
Apr. 9, 2021) (“A lay person would easily recognize that broken teeth require dental
treatment.”). 	Indeed, Delarosa does not argue that Duberry’s medical needs were
not sufficiently serious or that she was unaware of those needs.
Instead, Delarosa argues Duberry’s allegations do not show she recklessly
disregarded his medical needs. 	Because Duberry alleges she “conducted a partial
physical,” Delarosa argues she did not ignore Duberry’s condition and he simply
disagrees with her “medical judgment on his condition.” 	However, Duberry’s
allegations indicate Delarosa provided him no treatment and simply stated: “You’ll
be okay,” “I don’t have time for all of that,” and “Whatever you did to these officers,
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just don’t do it again and you’ll be okay.” Duberry also alleges that when he was
placed back in his cell after his visit with Delarosa, he was still “bleeding profusely
from [his] mouth” and in a “tremendous amount of pain from the two broken front
teeth.” 	Furthermore, Duberry says he continues to suffer from the injuries he
sustained during the extraction, and he has received treatment for those injuries,
including medication. Thus, Delarosa’s alleged failure to provide any treatment for
Duberry’s pain or bleeding plausibly supports a claim of deliberate indifference. See
Lloyd v. Van Tassell, 318 F. App’x 755, 759 (11th Cir. 2009) (“[B]leeding cuts are
serious medical needs that require medical attention within hours.”); McElligott v.
Foley, 182 F.3d 1248, 1257 (11th Cir. 1999) (“[P]rison officials may violate the
Eighth Amendment’s commands by failing to treat an inmate’s pain.”).
C. 	Punitive Damages
Next, Delarosa argues that Duberry’s request for punitive damages against her
should be stricken because her alleged conduct is not sufficient to support an award
of punitive damages.2 Doc. 34 at 7-8. The undersigned disagrees.
“[A] jury may be permitted to assess punitive damages in an action under
§ 1983 when the defendant’s conduct is shown to be motivated by evil motive or
intent, or when it involves reckless or callous indifference to the federally protected
2 The cases cited in Delarosa’s motion address the availability of punitive damages under federal
maritime law, which does not apply to Duberry’s constitutional claims.
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rights of others.” 	Smith v. Wade, 461 U.S. 30, 56 (1983). Courts have previously
concluded that defendants who exhibit deliberate indifference may be liable for
punitive damages. See Christmas v. Corizon Health Servs., 2022 WL 5337649 (11th
Cir. 2022) (affirming award of punitive damages on deliberate indifference claim);
Moulton v. DeSue, 966 F. Supp. 2d 1298, 1310 (M.D. Fla. Oct. 16, 2012) (denying
motion for summary judgment as to punitive damages in action alleging deliberate
indifference). Thus, Delarosa’s request to strike the claim for punitive damages at
this stage should be denied.
D. 	Conspiracy
Duberry also claims the Defendants conspired to violate his constitutional
rights. Doc. 28 at 14. “To state a claim for civil conspiracy under § 1983, a plaintiff
must allege: (1) a violation of his federal rights under color of state law; (2) an
understanding among the defendants to violate those rights; and (3) a resultant
actionable harm.” N.R. by Ragan v. Sch. Bd. of Okaloosa Cnty., Fla., 418 F. Supp.
3d 957, 998 (N.D. Fla. Sept. 30, 2019).
Here, Duberry’s allegations do not support a conspiracy claim against Nurse
Delarosa. 	First, Duberry does not allege any facts suggesting Delarosa and other
prison officials had an agreement to violate his constitutional rights. 	See Bailey v.
Bd. of Cnty. Comm’rs of Alachua Cnty., Fla., 956 F.2d 1112, 1122 (11th Cir. 1992)
(“[T]he linchpin for conspiracy is agreement, which presupposes communication”).
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Nothing in the amended complaint indicates Delarosa had any involvement in the
use of force itself, or that Delarosa’s failure to treat Duberry was influenced by any
conspiracy.
Instead, Duberry alleges Captain Carr told Delarosa not to document all of
Duberry’s injuries to cover up the excessive use of force. 	However, even if true,
that allegation does not support a conspiracy claim because a failure to accurately
describe an inmate’s injuries in his medical records does not violate the constitution.
See Spence-Jones v. Rundle, 991 F. Supp. 2d 1221, 1240 (S.D. Fla. Dec. 20, 2013)
(“Fabrication or concealment of evidence during an investigation does not itself
violate the Constitution.”); see also Zahrey v. Coffey, 221 F.3d 342, 348 (2d Cir.
2000) (“The manufacture of false evidence, ‘in and of itself,’ … does not impair
anyone’s constitutional right.”). Thus, Delarosa and Carr did not have an agreement
to violate Duberry’s constitutional rights, and the conspiracy claim against Delarosa
should be dismissed. See Grider v. City of Auburn, Ala., 618 F.3d 1240, 1260 (11th
Cir. 2010) (“A plaintiff claiming a § 1983 conspiracy must prove the defendants
‘reached an understanding’ to violate the plaintiff’s constitutional rights.”) (citation
omitted).
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IV. 	Conclusion
Accordingly, it is RECOMMENDED:
1. 	That Defendant Delarosa’s motion to dismiss (Doc. 34) be DENIED,
except that Duberry’s conspiracy claim against Delarosa should be DISMISSED
with prejudice.
2. 	That Defendants Schmelzle, Gonzalez, and Harlan’s motion to dismiss
(Doc. 37) be DENIED.
3. 	That this case be referred to the undersigned for further proceedings.
At Pensacola, Florida, this 20 th day of February, 2026.
/s/ Hope Thai Cannon
HOPE THAI CANNON
UNITED STATES MAGISTRATE JUDGE
NOTICE TO THE PARTIES
Objections to these proposed findings and recommendations must be filed within
fourteen (14) days of the date of the Report and Recommendation. Any different
deadline that may appear on the electronic docket is for the court’s internal use only
and does not control. An objecting party must serve a copy of its objections upon
all other parties. A party who fails to object to the magistrate judge’s findings or
recommendations contained in a report and recommendation waives the right to
challenge on appeal the district court’s order based on the unobjected-to factual and
legal conclusions. See 11th Cir. Rule 3-1.
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