Estate of Glen Mitchell Hand v. Florida Department of Corrections, et al.

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-11542
____________________
ESTATE OF GLEN MITCHELL HAND,
by and through Phyllis A. Hand personal representative,
Plaintiff - Appellant,
versus
FLORIDA DEPARTMENT OF CORRECTIONS,
CENTURION OF FLORIDA,
MHM HEALTH PROFESSIONALS INC.,
DAVID E. RODRIGUEZ,
MD,
a.k.a. David Rodriguez,
JEAN MAX SAINT CHARLES,
MD, et al.,
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2 Opinion of the Court 21-11542
Defendants - Appellees.
____________________
Appeal from the United States District Court
for the Northern District of Florida
D.C. Docket No. 4:20-cv-66-AW-HTC
____________________
Before W ILLIAM PRYOR , Chief Judge, L UCK , Circuit Judge, and
MOORER ,* District Judge.
PER C URIAM:
We find the district court erred in denying the motion to
amend with regard to the federal claims against Defendant Dr. Juan
Santiago, but was correct in denying the request to amend as to
Defendant Centurion of Florida LLC. Therefore, the opinion of
the district court is affirmed in part and reversed in part.
I. FACTUAL AND PROCEDURAL BACKGROUND1
* The Honorable Terry F. Moorer, United States District Judge for the South-
ern District of Alabama, sitting by designation.
1 When this Court reviews a dismissal of a complaint, the facts set forth in the
plaintiff’s complaint “are to be accepted as true and the court limits its consid-
eration to the pleadings and exhibits attached thereto.”
Grossman v. Na-
tionsbank, N.A., 225 F.3d 1228, 1231 (11th Cir. 2000).
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Glenn Mitchell Hand (“Hand”) was a prisoner of the Florida
Department of Corrections (“FDOC”). At all times relevant to this
lawsuit, Centurion of Florida LLC (“Centurion”) was the health
care company contracted with FDOC to provide medical care and
treatment to prison inmates. MHM Health Professionals, Inc.
(“MHM”) also contracted with FDOC, Centurion, Dr. David E.
Rodriguez-Rivera (“Dr. Rodriguez-Rivera”), Dr. Jean Max Saint
Charles (“Dr. Saint Charles”), Dr. Juan Santiago (“Dr. Santiago”),
Dr. Peter Fabian Edemekong (“Dr. Edemekong”), and Drianna
Nishell Law (“Law”) to provide medical care and treatment to
prison inmates. In sum, Plaintiff alleges that either FDOC, Centu-
rion, and/or MHM employed or otherwise contracted with nurses,
nursing assistants, nurse practitioners, physicians, and correction
officers who care for and supervised Hand.
On December 6, 2016, Hand was admitted to Reception
Medical Center (“RMC”) to treat throat cancer through chemo-
therapy and radiation. Approximately five months later, doctors at
RMC determined Hand was now cancer-free and found no evi-
dence of recurrence. On April 13, 2017, Dr. Saint Charles dis-
charged Hand from the inpatient hospital and ordered he be re-
turned to general population. Dr. Saint Charles ordered a follow
up with an ENT, plastic surgeon, and oncologist in three months,
along with a follow-up with a primary-care physician in one week.
The discharge plan did not include information on a plan for infec-
tion risk or control, physical therapy, nursing, or deep vein throm-
bosis prevention. It also did not include any discussion of Hand’s
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4 Opinion of the Court 21-11542
ability to ambulate, care for himself, or maintain daily activities.
On April 19, 2017, Hand followed up with his primary care doctor
and presented normal vital signs and no complaints other than a
need for dentures.
As advised, on May 3, 2017, Hand followed up for a skin le-
sion on his left ear, and after review of Hand’s medical history and
examining the lesion, the plastic surgeon determined it needed to
be surgically removed. However, the surgeon had to submit a re-
quest for approval to perform the surgery, which he did the same
day. Hand otherwise presented with normal vital signs and no
complaints.
On Friday, May 5, 2017, Hand reported to Law, who is an
advanced registered nurse practitioner (“ARNP”). Hand com-
plained of nausea, vomiting, and diarrhea for the past 15 hours. He
also complained of a frontal lobe headache, and his vitals were
charted as blood pressure 105/80, pulse 114, oxygenation 95%, and
temperature 98.4 degrees Fahrenheit. Law noted some past medi-
cal history but failed to include his COPD or pneumonia. Law also
noted ongoing chemotherapy (despite the fact the treatment was
concluded) and the presence of a peripherally inserted central cath-
eter (“PICC line”) without a dressing but did not describe it further
other than it “fell out.” Law assessed Hand as having gastroenter-
itis but did not address the headache or source of potential infec-
tion. She prescribed a treatment plan to include Zofran and ibu-
profen, which is generally contraindicated in a patient with stom-
ach problems. Hand was discharged to the general compound.
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Law also did not write any orders until the following Monday, May
8, 2017.
On Monday, May 8, 2017, Hand was seen by Nurse K. Ginn
(“Nurse Ginn”), who completed an “Abdominal Pain Protocol”
and “Vomiting Diarrhea Protocol.” She also documented that
Hand stated he was experiencing crampy pain along with green,
watery, and acidic smelling stools. Nurse Ginn further noted that
Hand experienced hypoactive bowel sounds in all four quadrants
and that his vitals were listed as blood pressure 132/79, pulse 102,
respirations 16, oxygenation 96%, and temperature 98.4 degrees.
Hand was unable to stand for Nurse Ginn to take his blood pres-
sure, and she charted skin tenting and dry mouth, but no treatment
for dehydration. According to the “Abdominal Pain Protocol” and
the “Vomiting Diarrhea Protocol,” Hand’s complaints should have
been immediately relayed to a clinician. Hand was discharged back
to the compound without any further treatment plan beyond con-
tinued Zofran and Ibuprofen. Nursing staff notes state Dr. Edeme-
kong was notified, but they do not document what time. Further,
no physician ever reviewed the chart or provided a follow-up care
plan.
From May 8, 2017 through May 11, 2017, Hand further de-
teriorated such that he was unresponsive, unable to leave his bunk,
or request help. On Thursday, May 11, 2017 at approximately 9:26
p.m., Hand was admitted to the RMC inpatient facility by Dr. Ro-
driguez-Rivera. Hand arrived via wheelchair with an IV placed in
his wrist. Hand’s admitting vitals were blood pressure 109/70,
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pulse 100, respirations 17, and temperature 99.3 degrees. Hand
also disclosed he had been unable to eat for the last two days. Hand
was also unable to legibly sign his name, and his signature was also
markedly different than his prior signatures in the past week. At
11:45 p.m., Dr. Rodriguez-Rivera was notified that Hand’s temper-
ature had reached 101.9 degrees. Dr. Rodriguez-Rivera ordered
that Tylenol be administered as well as anti-nausea medication.
However, he ran no additional tests on that date, and Hand was
only seen once by a physician.
On Friday, May 12, 2017 at 5:30 a.m., Hand’s blood was col-
lected for a complete blood count (“CBC”) panel. Within the next
2.5 hours, the nursing staff noted on two separate occasions that
Hand’s medical condition worsened, that he remained incontinent
of the bowels, and that he was too weak to get out of bed. At 8:47
a.m., Dr. Saint Charles examined Hand and diagnosed him with
dehydration and possible gastroenteritis. Despite Hand’s worsen-
ing condition, Dr. Saint Charles continued with the prior course of
treatment. At approximately 3:38 p.m., Hand’s CBC panel results
were available for review, and they indicated an elevated white
blood cell count, elevated polys, and reduced lymphs which indi-
cated infection. No physician or ARNP reviewed the results until
Monday, May 15, 2017.
During the three days, Hand’s condition significantly wors-
ened, but there was no change to his treatment plan. Hand re-
mained incontinent for both his bladder and bowels, and his tem-
perature increased to 103 degrees. Additionally, nursing staff noted
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Hand needed assistance with all activities of daily living. Dr. San-
tiago, without reviewing the blood test results, ordered that the
same treatment protocol be continued. Though a PICC line had
been attempted, it was not properly placed, and no antibiotics were
administered. On Saturday, May 13, 2017, Hand was only seen
once by a physician who made no changes to the treatment plan.
On Sunday, May 14, 2017, the nursing staff noted that
Hand’s speech was slurred and that he remained incontinent in
both bowels and bladder. Dr. Santiago made a progress note at
1:40 p.m. to follow the current treatment plan but wrote no addi-
tional orders and failed to review the blood results.
On Monday, May 15, 2017, the nursing staff noted that Hand
was now disoriented, his speech remained slurred, he remained in-
continent, he had diminished breath sounds which required addi-
tional oxygen, and he had developed a wound on his right hip. At
9:00 a.m., Hand’s worsening condition was relayed to Dr. Santiago.
At 10:30 a.m., Dr. Santiago noted that he reviewed Hand’s blood
results from Friday but did not discuss the abnormalities or change
the treatment plan except to treat the newly developed sore on his
hip. Dr. Edemekong also included a handwritten note to file
Hand’s blood results and follow up with Law on Tuesday. A new
PICC line was established, but no change to Hand’s treatment pro-
tocol.
On Tuesday, May 16, 2017 at 8:30 a.m., nursing staff re-
ported that Hand was disoriented and unresponsive. His vital signs
worsened to 56% oxygenation, blood pressure 130/81, pulse 120,
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35 respirations, and temperature at 100 degrees. Hand also had an
abnormal heart rate and bilateral calf redness, tenderness, and
swelling. Hand was placed on a ventilator; the code team was
called; and he was sent by EMS to UF Health Shands Hospital
(“Shands”) in Gainesville, Florida with a stroke alert and seizure-
like activity.
From May 17, 2017 to May 31, 2017, Hand underwent sev-
eral diagnostic and laboratory tests at Shands which indicated he
was suffering from the bacterial infection pseudomonas and that
his heart, brain, liver, and other vital organs had been seeded with
septic emboli. Hand was also in respiratory failure and required
intubation. Hand was ultimately diagnosed with large middle cer-
ebral artery infarct on the left side with multiple bilateral infarcts,
endocarditis with mitral valve vegetation, pseudomonas, bacterial
meningitis, and sepsis with multiple organ dysfunction. The phy-
sicians determined that the PICC line was the source of the infec-
tion.
On May 31, 2017, in consultation with the medical team at
Shands, Hand’s family decided on the withdrawal of care given his
poor prognosis, so he was extubated and transferred back to RMC
for comfort care only. On June 1, 2017, Hand was pronounced
dead at 1:35 a.m. by Dr. Rodriguez-Rivera who determined the
cause of death was sepsis and respiratory failure.
The Estate of Hand (“the Estate”) filed suit on May 29, 2019
in Florida state court. After completion of the medical malpractice
pre-suit period, the Estate filed an amended complaint and served
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Defendants FDOC, Centurion, MHM, Dr. Francis D. Ong (“Dr.
Ong”), Dr. Rodriguez-Rivera, Dr. Saint Charles, Dr. Santiago, Dr.
Edemekong, and Law. The Estate brought claims pursuant to 42
U.S.C. § 1983 for violations of the Eighth Amendment – specifically
deliberate indifference and failure to treat claims. The Estate also
brought state law medical negligence claims.
Defendants timely removed the action to federal court, and
several defendants filed their initial motions to dismiss. The Estate
voluntarily dismissed the claims against Dr. Ong and opposed the
motions to dismiss with respect to the other defendants. On July
14, 2020, the district court granted the motions to dismiss as to the
federal law claims and dismissed them without prejudice while
denying the motions to dismiss as to the state law claims. The
court noted it found it unlikely that the Estate could plead a § 1983
against the individual defendants, but allowed an amendment.
As a result, the Estate filed the Second Amended Complaint
on July 28, 2020. Defendants FDOC and MHM filed their answers
and the remaining defendants filed their motions to dismiss. On
January 13, 2021, the district court issued its order granting the mo-
tions to dismiss as to the § 1983 claims, so only the state-law claims
remained.
On February 10, 2021, the Estate filed a motion to amend
and/or motion for reconsideration and attached the proposed
Third Amended Complaint, which incorporated additional details
from the depositions of the doctors. Of note, the Estate indicated
it intended to amend and assert § 1983 claims against only
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10 Opinion of the Court 21-11542
Centurion and Dr. Santiago and voluntarily dismissed all claims
against Dr. Edemekong.
The district court denied the motion to amend and con-
firmed the dismissal of the federal claims was with prejudice. On
April 28, 2021, the district court entered an order remanding the
remaining state law claims and entered final judgment on the
§ 1983 claims. The Estate filed its appeal on May 5, 2021.
The Estate appeals the district court’s denial of the motion
to permit it to file the Third Amended Complaint and dismissal of
the § 1983 claims against Centurion and Dr. Santiago.
II. STANDARD OF REVIEW
“[This Court] reviews
de novo the district court’s grant of a
motion to dismiss under [Federal Rule of Civil Procedure] 12(b)(6)
for failure to state a claim, accepting the allegations in the com-
plaint as true and construing them in the light most favorable to
the plaintiff.”
Griffin v. Coca-Cola Refreshments USA, Inc., 989
F.3d 923, 931 (11th Cir. 2021) (citation and internal quotation
marks omitted).
“Generally, we review the denial of a motion for leave to
amend a complaint for abuse of discretion. But where the lower
court denies leave to amend based on futility of the proposed
amendment, we review that decision
de novo because it is a con-
clusion that as a matter of law an amended complaint would nec-
essarily fail.”
SE Prop. Holdings, LLC v. Gaddy, 977 F.3d 1051,
1056 (11th Cir. 2020) (citation and modifications omitted).
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11 Opinion of the Court 21-11542
III. DISCUSSION AND ANALYSIS
Our analysis proceeds in three stages. First, we explain that
the Estate has abandoned any challenge to district court’s dismissal
of claims against defendants other than Centurion and Dr. Santi-
ago. Second, we explain that the district court correctly found the
motion to amend futile with respect to Centurion. And third, we
explain that the motion to amend the complaint was not futile with
respect to Dr. Santiago and that the district court’s alternate
ground for denying leave to amend was erroneous.
A. Abandonment of Claims Against Other Defendants
“We have long held that an appellant abandons a claim
when he either makes only passing references to it or raises it in a
perfunctory manner without supporting arguments and author-
ity.”
Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 681 (11th
Cir. 2014) (citations omitted). Moreover, “a party seeking to raise
a claim or issue on appeal must plainly and prominently so indicate,
i.e., in a section of his brief that is demarcated by a boldface heading
or by some equivalent notation. At the very least, he must devote
a discrete, substantial portion of his argumentation to that issue.
Otherwise, the issue . . . will be considered abandoned.”
United
States v. Jernigan, 341 F.3d 1273, 1283 n.8 (11th Cir. 2003),
abro-
gated on other grounds by Rehaif v. United States, 139 S. Ct. 2191,
2200 (2019).
In the case at hand, in its initial brief, the Estate identified
issues that solely pertain to the denial of the motion to amend and
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12 Opinion of the Court 21-11542
did not directly appeal the dismissal of the second amended com-
plaint. Further, the discussion is limited to § 1983 claims against
Dr. Santiago and Centurion. Therefore, as there is no argument as
to the § 1983 claims against Dr. Rodriguez-Rivera, Dr. Saint
Charles, and Law, those remain dismissed and any appellate issues
related to them are deemed waived.
See, e.g., Greenbriar, Ltd. v.
City of Alabaster, 881 F.2d 1570, 1573 n.6 (11th Cir. 1989) (“Alt-
hough Greenbriar refers to the district court’s dismissal of its
amendment in its Statement of the Case in its initial brief, it elabo-
rates no arguments on the merits as to this issue in its initial or reply
brief. Accordingly, the issue is deemed waived.”).
As to Centurion and Dr. Santiago, the appeal is limited to
the request to amend, as the Estate did not actually appeal the dis-
missal of the Second Amended Complaint. However, in making
that determination, the Court still looks to the claims made in both
the Second Amended Complaint and the proposed Third Amended
Complaint to determine whether the district court correctly deter-
mined futility and the failure to cure.
B. Motion to Amend
The district court denied the motion to amend because the
proposed Third Amended Complaint would not cure the pleading
deficiencies earlier identified by the district court’s orders. The dis-
trict court also stated that it denied leave to amend because the
plaintiff already had the opportunity to cure and had not done so.
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In expanding upon its analysis, the district court stated that
in the Second Amended Complaint, the Estate presented § 1983 de-
liberate-indifference claims against Centurion and the individual
doctors that the district court dismissed because the Estate had not
alleged enough to show a constitutional violation. In the proposed
Third Amended Complaint, the district court determined that the
claims still did not have sufficient factual allegations to allege a fed-
eral deliberate indifference claim against Dr. Santiago. As to Cen-
turion, the district court found that the factual allegations pertain-
ing to understaffing on nights and weekends and procedures that
made it difficult to obtain timely lab results were insufficient to
state a § 1983 claim because the Estate did not sufficiently allege
that these shortcomings caused Hand’s injuries.
Federal Rule of Civil Procedure 15 provides “[t]he court
should freely give leave [to amend] when justice so requires.” F ED .
R. C IV. P. 15(a)(2);
see also Spanish Broad. Sys.of Fla., Inc. v. Clear
Channel Commc’ns, Inc., 376 F.3d 1065, 1077 (11th Cir. 2004)
(“[L]eave to amend must be granted absent a specific, significant
reason for denial. . . .”).
In the absence of any apparent or declared reason –
such as undue delay, bad faith or dilatory motive on
the part of the movant, repeated failure to cure defi-
ciencies by amendments previously allowed, undue
prejudice to the opposing party by virtue of allow-
ance of the amendment, futility of amendment, etc. –
the leave sought should, as the rules require, be freely
given.
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14 Opinion of the Court 21-11542
McKinley v. Kaplan, 177 F.3d 1253, 1258 (11th Cir. 1999) (quoting
Foman v. Davis, 371 U.S. 178, 182 (1962)). Put another way, we
have set forth five factors for district courts to consider: (1) undue
delay, (2) bad faith or dilatory motive on the part of the movant,
(3) repeated failure to cure deficiencies by amendments previously
allowed, (4) undue prejudice to the opposing party by virtue of al-
lowance of the amendment, and (5) futility of amendment.
Equity
Lifestyle Props., Inc. v. Fla. Mowing & Landscape Serv., Inc., 556
F.3d 1232, 1241 (11th Cir. 2009).
The district court found that the amendment would be futile
and that plaintiff had repeatedly failed to cure deficiencies by
amendments previously allowed. We will address each in turn and
start with futility because that issue consumed the bulk of the anal-
ysis in the denial of the motion to amend.
“[D]enial of leave to amend is justified by futility when the
complaint as amended is still subject to dismissal.”
Burger King
Corp. v. Weaver, 169 F.3d 1310, 1320 (11th Cir. 1999) (internal quo-
tation marks and citations omitted);
see also St. Charles Foods, Inc.
v. America’s Favorite Chicken Co., 198 F.3d 815, 822-23 (11th Cir.
1999) (citations omitted) (“When a district court denies the plaintiff
leave to amend a complaint due to futility, the court is making the
legal conclusion that the complaint, as amended, would necessarily
fail.”);
Fla. Power & Light Co. v. Allis Chalmers Corp., 85 F.3d
1514, 1520 (11th Cir. 1996) (stating amendment is futile if cause of
action asserted therein could not withstand motion to dismiss).
Therefore, we look to and apply the standard for a motion to
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15 Opinion of the Court 21-11542
dismiss.Federal Rule of Civil Procedure 8(a)(2) requires “‘a short
and plain statement of the claim showing that the pleader is enti-
tled to relief,’ in order to ‘give the defendant fair notice of what the
. . . claim is and the grounds upon which it rests.’”
Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 555 (2007) (quoting
Conley v. Gibson,
355 U.S. 41, 47 (1957)). Although Rule 8 does not require detailed
factual allegations, it does demand “more than an unadorned, the-
defendant-unlawfully-harmed-me accusation.”
Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (citing
Twombly, 550 U.S. at 555). To sur-
vive a motion to dismiss, a complaint must state on its face a plau-
sible claim for relief, and “[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.
i. Claims against Centurion
We first look at the denial of the motion to amend as it per-
tains to Centurion, as that matter is simple. The district court cor-
rectly noted that the Estate did not allege facts to show Hand’s
treating physicians considered costs when making medical deci-
sions about his care. The Estate spends little time in its brief on its
claims against Centurion. It argues that Centurion took over from
its predecessor Corizon and made no changes when it adopted and
reenforced the policies and procedures previously determined to
be inadequate by the State of Florida, retained the same staff, and
“continued with business as usual.”
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To the extent liability is conditioned on the actions of the
healthcare providers, Centurion cannot be held liable under a the-
ory of
respondeat superior or vicarious liability alone.
See Hartley
ex rel. Hartley v. Parnell, 193 F.3d 1263, 1269 (11th Cir. 1999). As
a private entity, Centurion may only under certain circumstances
be held liable under § 1983.
Focus on the Family v. Pinellas Sun-
coast Transit Auth., 344 F.3d 1263, 1276-77 (11th Cir. 2003). The
Estate must establish that Centurion caused the violation of Hand’s
constitutional rights.
See Monell v. Dep’t of Soc. Servs. of New
York, 436 U.S. 658, 694 (1978). In sum, § 1983 liability against Cen-
turion must be conditioned on the existence of an official policy or
custom that constitutes deliberate indifference.
See Buckner v.
Toro, 116 F.3d 450, 453 (11th Cir. 1997) (“[T]he
Monell policy or
custom requirement applies in suits against private entities per-
forming functions traditionally within the exclusive prerogative of
the state, such as the provision of medical care to inmates.”). To
establish liability, “a plaintiff must show: (1) that his constitutional
rights were violated; (2) that the [entity] had a custom or policy
that constituted deliberate indifference to that constitutional right;
and (3) that the policy or custom caused the violation.”
McDowell
v. Brown, 392 F.3d 1283, 1289 (11th Cir. 2004) (citing
City of Can-
ton v. Harris, 489 U.S. 378, 388 (1989)).
For the purpose of determining whether the district court
erred in determining futility, we look to whether the Estate alleged
sufficient facts to meet those three elements. Assuming
arguendo
that the Estate properly alleges Hand’s constitutional rights were
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17 Opinion of the Court 21-11542
violated (i.e., he had a serious medical condition that required ele-
vated care and treatment which he did not receive), it fails on the
second and third requirements.
The second requirement is that Centurion had a custom or
policy that amounted to deliberate indifference to Hand’s medical
needs. The Estate alleges three Centurion policies or customs they
argue show deliberate indifference: (1) it routinely understaffs the
RMC on weekends and weeknights; (2) it does not have a policy or
procedure in place to ensure healthcare providers receive timely
lab results; and (3) it does not have a policy to ensure the doctors
had access to the recent medical chart of the inmate. The Estate
alleges these are simply carryovers from Corizon that the State of
Florida previously determined to be inadequate. However, none
of these allegations rise to the level required to show Centurion
had a custom or policy that constituted deliberate indifference to
Hand’s constitutional rights. “In order for a plaintiff to demon-
strate a policy or custom, it is generally necessary to show a persis-
tent and wide-spread practice.”
Id. at 1290 (internal quotation
marks and citation omitted). “Normally, random acts or isolated
incidents are insufficient to establish a custom or policy” but in-
stead “the incident must result from a demonstrated practice.”
Id.
(citations omitted). The Estate makes generalized assertions about
understaffing and failure to provide access to records, but conclu-
sory statements are insufficient to properly allege a policy or cus-
tom. “A pattern of similar constitutional violations is ordinarily
necessary.”
Craig v. Floyd County, 643 F.3d 1306, 1310 (11th Cir.
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18 Opinion of the Court 21-11542
2011) (citations omitted and alterations incorporated). The Estate
alleges no such pattern beyond conclusory statements that Centu-
rion merely took over from Corizon without making changes and
Corizon had not performed at the level required by their contract.
Most importantly, even if the Estate were to have alleged a
policy or custom, it certainly fails to establish causation. In fact, the
Estate’s allegations specifically state that Dr. Santiago failed to re-
view the blood results or to make changes despite Hand’s worsen-
ing condition. This is precisely contrary to its allegation that Cen-
turion failed to make test results and files available to the
healthcare providers. Instead, the Estate alleges that despite the
results being available and a marked worsening of Hand’s condi-
tion, Dr. Santiago did not change the treatment protocol or review
the available blood results. Therefore, the Estate fails to allege facts
that, even considered in the light most favorable to its claims, could
establish that a policy or custom caused Hand’s constitutional vio-
lation.
As a result, we find the amendment would be futile as to
Centurion and that the district court did not err when it denied
leave to amend the complaint with respect to Centurion.
ii. Claims against Dr. Santiago
We now turn to whether the district court erred in its denial
of the motion to amend as it pertains to Dr. Santiago. Contrary to
the determination as to Centurion, we find that it did.
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19 Opinion of the Court 21-11542
“A claim has facial plausibility when the plaintiff pleads fac-
tual content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.”
Iqbal, 556
U.S. at 678 (citing
Twombly, 550 U.S. at 556).
To prevail on a claim of deliberate indifference, a prisoner
must prove that his physician knew of and disregarded a risk of se-
rious harm to his health.
Farrow v. West, 320 F.3d 1235, 1243 (11th
Cir. 2003). “[D]eliberate indifference describes a state of mind
more blameworthy than negligence” and “requires more than or-
dinary lack of due care for the prisoner’s interests or safety.”
Farmer v. Brennan, 511 U.S. 825, 835 (1994) (internal quotation
marks and citation omitted). The physician “must both be aware
of facts from which the inference could be drawn that a substantial
risk of serious harm exists, and he must also draw the inference.”
Id. at 837.
In the situation here, the question is whether the proposed
amendment provides sufficient allegations of fact that would allow
for the case to proceed beyond the pleading stage. The facts must
be accepted as true for the purposes of a motion to dismiss. Most
of the cases relied upon by the Appellees pertain to cases that were
resolved on summary judgment which allows for the facts to be
supported by evidence including expert witness testimony. Yet,
that is not where we stand – we are deciding whether Plaintiff al-
leged enough to survive a motion to dismiss.
The proposed Third Amended Complaint alleges that Dr.
Santiago knew the signs and symptoms of sepsis, observed Hand,
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20 Opinion of the Court 21-11542
reviewed the nursing notes regarding Hand’s decline, knew the
RMC could not handle sepsis and that Hand should be transferred
to receive a higher level of care, and instead chose to make no
changes to the treatment.
These are fairly detailed allegations that would require some
evaluation of the evidence –
which takes us beyond the pleading
stage. “Whether a prison official had the requisite knowledge of a
substantial risk is a question of fact subject to demonstration in the
usual ways, including inference from circumstantial evidence. . . .”
Id. at 842. Medical treatment violates the Eighth Amendment’s
prohibition on cruel and unusual punishment “only when it is so
grossly incompetent, inadequate, or excessive as to shock the con-
science or to be intolerable to fundamental fairness.”
Nam Dang ex
rel. Vina Dang v. Sheriff, Seminole Cnty., 871 F.3d 1272, 1280 (11th
Cir. 2017) (internal quotation marks omitted). “An inmate who
complains that delay in medical treatment rose to a constitutional
violation must place verifying medical evidence in the record to
establish the detrimental effect of delay in medical treatment to
succeed.”
Hill v. DeKalb Reg’l Youth Det. Ctr., 40 F.3d 1176, 1188
(11th Cir. 1994) (footnote omitted),
overruled in part by Hope v.
Pelzer, 536 U.S. 730, 739 n.9 (2002). The common theme here is
evidence.
At play within these allegations are two matters that require
evidence: (1) treatment “so cursory as to amount to no treatment
at all,”
Ancata v. Prison Health Servs., Inc., 769 F.2d 700, 704 (11th
Cir. 1985), and (2) “delay of treatment for obviously serious
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21 Opinion of the Court 21-11542
conditions where ‘it is apparent that delay would detrimentally ex-
acerbate the medical problem,’ the delay does seriously exacerbate
the medical problem, and the delay is medically unjustified,”
Tay-
lor v. Adams, 221 F.3d 1254, 1259-60 (11th Cir. 2000) (quoting
Hill,
40 F.3d at 1187-89).
See also Rogers v. Evans, 792 F.2d 1052, 1058
(11th Cir. 1986) (“Whether an instance of medical misdiagnosis re-
sulted from deliberate indifference or negligence is a factual ques-
tion requiring exploration by expert witnesses.”).
The court is not in a position to make such a determination
on the face of the complaint alone. The court has no medical
knowledge to determine whether Dr. Santiago’s choices were the
equivalent of putting a band-aid on a gunshot wound. Further, a
plaintiff is not required to put expert testimony within a complaint
itself – that would raise the pleading standard well-beyond what is
required by Rule 8.
Based on the above, we find that the proposed amended
complaint is not futile as it clearly articulates a claim that survives
the standard applied to a motion to dismiss.
The district court also noted it would deny the proposed
Third Amended Complaint because the Estate previously had the
opportunity to cure after dismissal of the First Amended Complaint
and that it dismissed the Second Amended Complaint for substan-
tially the same reasons as the first. Repeated failures to cure defi-
ciencies can serve as an independent ground for denying leave to
amend a complaint.
See McKinley, 177 F.3d at 1258. But we find
that there were no repeated failures to cure any deficiencies with
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22 Opinion of the Court 21-11542
respect to Dr. Santiago. So the district court’s alternative basis for
denying leave to amend was an abuse of discretion.
Here, the first complaint addressed by the district court was
the “First Amended Complaint,” as that was the complaint upon
which the Defendants removed this matter to federal court. The
First Amended Complaint was dismissed, and the district court
provided its analysis as to the failures to articulate claims against
the individual defendants and noted that “it appears unlikely that it
will be able to plead a § 1983 claim against the individual defend-
ants” but would permit an amended complaint to be filed. That
permission resulted in the Second Amended Complaint. The dis-
trict court then found that the Second Amended Complaint also
failed to state a claim against the individual defendants and dis-
missed the § 1983 claims. As such, despite the defendants’ attempt
to couch this as a “fourth” attempt to state a § 1983 claim, it is clear
that this would only be a “third” attempt and only a “second” at-
tempt to fix a deficiency noted by the Court.
Moreover, even the district court and the Appellees noted
that the proposed Third Amended Complaint contained substan-
tially similar factual allegations to the Second Amended Complaint.
While a full appellate review of the Second Amended Complaint’s
dismissal falls outside the scope of this specific appeal, we can con-
sider whether the district court previously applied too high a stand-
ard in its prior dismissal of the Second Amended Complaint in con-
sidering whether it abused its discretion in the denial of the request
to amend. It is clear from our review of the Third Amended
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23 Opinion of the Court 21-11542
Complaint that the Estate has now fixed the prior deficiencies
noted by the district court. While we do not disturb the actual or-
der of dismissal for the Second Amended Complaint, it would ap-
pear that the Second Amended Complaint would have stated a
claim against Dr. Santiago. In its dismissal of the Second Amended
Complaint, the district court relied in part on the prior treatment
of Hand’s cancer in its determination of the quantity and quality of
care he received. However, there is no basis for the finding that if
a prisoner were treated successfully once, he would not have a
claim for inadequate treatment of another condition that comes up
afterwards. Further, case law upon which the district court relied
also related to decisions made on summary judgment as opposed
to those that pertained to a motion to dismiss for failure to state a
claim. And the district court itself did not see much difference be-
tween the Second and Third Amended Complaints. As such, any
deficiency in the Estate’s complaint was cured on only the second
attempt, and repeated failure was not a proper ground to deny
leave to file the Third Amended Complaint.
“A district court’s discretion to deny leave to amend a com-
plaint is ‘severely restricted’ by Fed. R. Civ. P. 15, which stresses
that courts should freely give leave to amend ‘when justice so re-
quires.’”
Woldeab v. Dekalb Cnty. Bd. Of Educ., 885 F.3d 1289,
1291 (11th Cir. 2018) (quoting
Thomas v. Town of Davie, 847 F.2d
771, 773 (11th Cir. 1988)). In the case at hand, we find that justice
requires permitting a Third Amended Complaint because it states
a § 1983 claim against Dr. Santiago. The district court erred in
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24 Opinion of the Court 21-11542
finding the amendment would be futile as to Dr. Santiago. Though
the district court made a cursory reference to failure to cure, the
bulk of the order clearly tailors its analysis to futility, and as we
have explained, the two issues are not readily separated in this ap-
peal because the district court dismissed the Second Amended
Complaint for largely the same reason that it found the Third
Amended Complaint to be futile. We make no finding as to
whether or not the claims will survive higher scrutiny once evi-
dence may be presented and considered. Rather, we merely find
that the pleading standard was satisfied and therefore, the amend-
ment should have been permitted.
IV. CONCLUSION
Based on the above, we find it appropriate to permit an ad-
ditional amended complaint as it pertains to the Estate’s § 1983
claims against Dr. Santiago. However, as to any claims against
Centurion, we find that the Estate had sufficient opportunity to
make a claim against them and still failed. Therefore, the judgment
of the district court is AFFIRMED in part as it pertains to the dis-
missal of Centurion and REVERSED AND REMANDED in part
with regard to Dr. Santiago and instructions to permit the amended
complaint against him as to the § 1983 claims.
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1 L UCK , J., Concurring in part and dissenting in part 21-1154
L UCK , Circuit Judge, concurring in part and dissenting in part:
On its way to partly affirming and partly reversing the dis-
trict court’s order denying leave to file the third amended com-
plaint, the majority opinion reaches three conclusions. First, it
finds that the Estate of Glenn Mitchell Hand abandoned its 42
U.S.C. section 1983 claims against Dr. David Rodriguez-Rivera, Dr.
Jean Max Saint Charles, and Nurse Drianna Nishell Law. Second,
the majority opinion affirms the denial of the estate’s motion for
leave to file the third amended complaint as to Centurion of Flor-
ida. And third, the majority opinion reverses the denial of the es-
tate’s motion for leave to file the third amended complaint as to
Dr. Juan Santiago. I concur in the first two conclusions, but I re-
spectfully dissent as to the third.
The district court denied leave to file the third amended
complaint as to Dr. Santiago on two independent grounds. First,
the district court denied leave because any amendment would have
been futile. And second, the district court denied leave because the
estate had repeatedly failed to cure defects in its earlier complaints.
See Corsello v. Lincare, Inc., 428 F.3d 1008, 1014 (11th Cir. 2005)
(“The district court . . . need not allow an amendment (1) where
there has been undue delay, bad faith, dilatory motive, or repeated
failure to cure deficiencies by amendments previously allowed; (2)
where allowing amendment would cause undue prejudice to the
opposing party; or (3) where amendment would be futile. . . . [The
plaintiff’s] repeated failure to cure deficiencies by [previous]
amendments is an explicitly permitted reason for which the district
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2 L UCK , J., Concurring in part and dissenting in part 21-1154
court was entitled to deny his motion to amend.” (quotations omit-
ted, second alteration in original)).
On appeal, the estate argues that amending the complaint
would not have been futile. But the estate forfeited any challenge
to the district court’s second ground for denying leave—that the
estate repeatedly failed to cure deficiencies. The estate’s initial
brief never mentioned this issue, not even in a passing or perfunc-
tory manner. Dr. Santiago’s response pointed this out but, in reply,
the estate continued to ignore the repeated-failure-to-cure issue.
The estate was asked during oral argument to identify where its
briefs raised the issue. The estate deferred the question to rebuttal
and then began rebuttal by conceding it was “unable to find an ex-
plicit reference” to the repeated-failure-to-cure issue in its briefs.
“To obtain reversal of a district court judgment that is based
on multiple, independent grounds, an appellant must convince us
that every stated ground for the judgment against him is incorrect.”
Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 680 (11th Cir.
2014). “When an appellant fails to challenge properly on appeal
one of the grounds on which the district court based its judgment,
he is deemed to have abandoned any challenge of that ground, and
it follows that the judgment is due to be affirmed.”
Id.
“That is the situation here.”
See id. The estate failed to ar-
gue on appeal—“plainly and prominently”—that the district court
erred in finding it repeatedly failed to cure deficiencies in its earlier
complaints.
See id. at 681 (quotation omitted). Thus, the estate
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21-11542 L UCK , J., Concurring in part and dissenting in part 3
abandoned this independent basis for denying leave to amend. I
would affirm the judgment across the board.
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