Balbin v. Concepcion

Full title: Manuel BALBIN, Plaintiff, v. L. CONCEPCION, et al., Defendants.

Court: United States District Court, S.D. Florida.

Date published: Sep 26, 2019

411 F. Supp. 3d 1340 (S.D. Fla. 2019)

Opinion

Case No. 1:18-cv-20875-KMM

2019-09-26

Manuel BALBIN, Plaintiff, v. L. CONCEPCION, et al., Defendants.

K. MICHAEL MOORE, UNITED STATES CHIEF DISTRICT JUDGE

ORDER ON REPORT AND RECOMMENDATION

THIS CAUSE came before the Court upon Defendants Dr. Luis Concepcion ("Dr. Concepcion"), Dr. Otis Egins ("Dr. Egins"), Jesus "Manny" Estrada ("Estrada"), Edith Wright ("Wright"), Dr. Carmelo Berrios ("Dr. Berrios"), Ramses "Randy" Perez ("Perez"), Daniel Junior ("Junior"), and Enrique Rodriguez's ("Rodriguez") Motion to Dismiss ("First Motion to Dismiss") (ECF No. 64)¹ and Defendants Dr. Loines Piña ("Dr. Piña") and Dr. Greta Barban-Rodriguez's ("Dr. Barban-Rodriguez") Motion to Dismiss ("Second Motion to Dismiss") (ECF No. 65) Plaintiff Michael Balbin's ("Plaintiff") Amended Complaint brought pursuant to 42 U.S.C. § 1983 ("Am. Compl.") (ECF No. 8). Plaintiff filed a response to the Motions to Dismiss (ECF Nos. 76, 77), and Defendants replied (ECF Nos. 78, 79). The Court referred the matter to the Honorable Lisette M. Reid, United States Magistrate Judge, who issued a Report and Recommendation recommending that the First Motion to Dismiss be GRANTED and the Second Motion to Dismiss be GRANTED IN PART AND DENIED IN PART. ("R&R") (ECF No. 95). Dr. Piña filed objections ("Piña Objections") (ECF No. 97), and Plaintiff filed objections ("Plaintiff's Objections") (ECF No. 98). Dr. Piña and Dr. Barban-Rodriguez filed a Response to Plaintiff's Objections ("Dentist Response") (ECF No. 99), and the County Defendants filed a Response to Plaintiff's Objections ("County Response") (ECF No. 100). The matter is now ripe for review. As set forth below, this Court ADOPTS IN PART the R&R except as replaced by the following supplemental analysis.²

1 These Defendants will be collectively referred to herein as the "County Defendants."

2 The Court adopts in part Magistrate Judge Reid's R&R with the following alterations: the pin cite in the citation on page six, line seven should be "1279" and omit citation to "n.2"; the pin cite in the citation on page seven, line seven should be "1223, n.2"; the case name on page seven, line nine should read: "Goebert v. Lee Cty. "; the quotation on page nine, line six should read: "[The] right must be ..."; the pin cite in the citation on page nine, line thirteen should be "1121"; the quotation on page thirteen, line eleven should read: "We do not require a case directly on point, but existing precedent ..."; the pin cite in the citations on page fourteen, lines one and six should be "589–90"; the quotation on page seventeen, line five should read: "Miami-Dade County and/or Public Health Trust"; the quotation on page eighteen, line nineteen should read: "[it] can rise to the level ..."; the pin cite in the citation on page twenty, line seventeen should be "589–90"; the parenthetical on page twenty-one, line nine should read: "offering extraction over a root canal is not a constitutional violation if an extraction is medically appropriate to remove tooth decay"; the citation on page twenty-seven, lines five to six should read: "219 F.3d 132, 137 (2d Cir. 2000)"; and the citation on page twenty-seven, line nine should read "219 F.3d at 132." Finally, the Court notes that it does not adopt citations in the R&R that do not conform to The Bluebook: A Uniform System of Citation (Columbia Law Review Ass'n et al. eds., 20th ed. 2015).

The Court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. 28 U.S.C. § 636(b)(1) ; Fed. R. Civ. P. 72(b)(3). The Court "must determine de novo any part of the magistrate judge's disposition that has been properly objected to." Fed. R. Civ. P. 72(b)(3). A de novo review is therefore required if a party files "a proper, specific objection" to a factual finding contained in the report. Macort v. Prem, Inc. , 208 F. App'x 781, 784 (11th Cir. 2006). "It is critical that the objection be sufficiently specific and not a general objection to the report" to warrant de novo review. Id. Here, the Court conducts a de novo review of the R&R as more fully set forth below.³

3 The Court notes that Plaintiff's Objections largely consist of copy and pasted portions of the Report and Recommendation (ECF No. 16) on the Amended Complaint pursuant to the screening provisions of 28 U.S.C. § 1915. See Pl.'s Objs at 1–33. Because this does not constitute a valid, specific objection, a de novo review of the corresponding portions of the R&R is not required. Additionally, Plaintiff argues in his Objections that this Court should reject Judge Reid's recommendation to dismiss certain claims because this Court already reviewed the Amended Complaint and did not dismiss those claims when screening the case under 28 U.S.C. § 1915. See Pl.'s Objs. at 42–43. However, as set forth in the R&R, a Court is not precluded from considering a motion to dismiss on the merits despite the complaint surviving initial § 1915 screening. R&R at 5 (citing Smith v. Courtney , No. 3:14CV231/MCR/CJK, 2016 WL 1554137, at *5 (N.D. Fla. Mar. 22, 2016), report and recommendation adopted , No. 3:14CV231-MCR/CJK, 2016 WL 1532246 (N.D. Fla. Apr. 15, 2016) ).

I. BACKGROUND

Plaintiff, a pretrial detainee, alleges that (1) the County Defendants and Defendant Barban-Rodriguez were deliberately indifferent to his serious medical needs when they prevented him from receiving root canal treatments, which were recommended by three dentists and an oral surgeon, and (2) Dr. Concepcion and Dr. Piña were deliberately indifferent to his serious medical needs when Dr. Piña refused to fill a cavity in Plaintiff's upper wisdom tooth and Dr. Concepcion denied Plaintiff's grievance about Dr. Piña's refusal to fill the cavity. See Am. Compl. Plaintiff alleges that because the County Defendants and Dr. Barban-Rodriguez have denied him root canal treatment, he has suffered significant pain for over eighteen months, a gum infection, and dangerous weight loss because he is unable to chew food. Id. at 6. Plaintiff also alleges that he suffered thirty-four days of tooth pain after Dr. Piña refused to fill a cavity in his upper wisdom tooth. Id.

In the First Motion to Dismiss, the County Defendants argue that Plaintiff has failed to state a claim against the County Defendants sued in their individual capacities because (1) Plaintiff has not plausibly alleged that these County Defendants acted with deliberate indifference to Plaintiff's serious medical needs and (2) these County Defendants are entitled to qualified immunity. See First Mot. to Dismiss at 4–18. Further, the County Defendants argue that Plaintiff's claims against the County Defendants in their official capacities fail because (1) Plaintiff has not identified an unlawful official policy or unofficial custom or practice, and (2) Plaintiff has not alleged that any of the County Defendants are final policymakers. Id. at 18–20.

In the Second Motion to Dismiss, Dr. Barban-Rodriguez and Dr. Piña argue that Plaintiff has failed to state a claim against either Dr. Barban-Rodriguez or Dr. Piña in their individual capacities because (1) Plaintiff has not plausibly alleged that either dentist acted with deliberate indifference to Plaintiff's serious medical needs and (2) they are entitled to qualified immunity. See Second Mot. to Dismiss at 11–19. Further, Dr. Barban-Rodriguez and Dr. Piña argue that Plaintiff's claims against them in their official capacities fail because (1) Plaintiff is barred from obtaining monetary relief by the Eleventh Amendment and injunctive relief in light of Plaintiff's transfer from Metro West Detention Center ("MWDC"), (2) Plaintiff has not identified an unlawful official policy or unofficial custom or practice, and (3) Plaintiff has not alleged that Dr. Barban-Rodriguez or Dr. Piña are final policymakers.⁴ Id. at 6–11.

4 As an initial matter, the Court notes that Judge Reid did not construe Defendants' Motions to Dismiss as Motions for Summary Judgment in the R&R. See R&R at 10–11. In Dr. Piña's Objections, Dr. Piña argues that Judge Reid should have considered Plaintiff's dental records and recommended dismissal of Plaintiff's individual capacity claim against Dr. Piña, or, in the alternative, granting summary judgment in Dr. Piña's favor. Piña Objs. at 10–11. Pursuant to Rule 12(d) of the Federal Rules of Civil Procedure, "[i]f on a motion under Rule 12(b)(6) or 12(c), matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56." Fed. R. Civ. P. 12(d). Rule 12(d) further states that "[a]ll parties must be given a reasonable opportunity to present all the material that is pertinent to the motion." Id. Here, although the Parties presented matters outside the pleadings and the Parties initially were provided notice in accordance with Rule 12(d) (ECF No. 68), Judge Reid excluded all matters outside the pleadings in issuing the R&R. See Harper v. Lawrence Cty. , 592 F.3d 1227, 1232 (11th Cir. 2010) ("A judge need not convert a motion to dismiss into a motion for summary judgment as long as he or she does not consider matters outside the pleadings. According to case law, ‘not considering’ such matters is the functional equivalent of ‘excluding’ them—there is no more formal step required.") (citations omitted). Accordingly, this Court has similarly not considered matters outside of the pleadings in conducting its review of the R&R.

II. DISCUSSION

A. Individual Capacity Claims

Plaintiff brings claims against Estrada, Dr. Berrios, Perez, Junior, Rodriguez, Dr. Concepcion, and Dr. Barban-Rodriguez in their individual capacities, arguing that they were deliberately indifferent to his serious medical needs when they prevented him from receiving root canal treatments. See Am. Compl. Plaintiff also brings claims against Dr. Concepcion and Dr. Piña, arguing that they were deliberately indifferent to his serious medical needs when Dr. Piña did not fill a cavity in Plaintiff's upper wisdom tooth and Dr. Concepcion denied Plaintiff's grievance about the cavity filling. See id. at 19–23, 31–32. Each of the Defendants argue that they are entitled to qualified immunity as to all claims brought against them in their individual capacities. See First Mot. to Dismiss at 16–18; Second Mot. to Dismiss at 17–19.

Judge Reid recommends dismissal of the individual capacity claims brought against Estrada, Dr. Berrios, Perez, Junior, Rodriguez, Dr. Concepcion, and Dr. Barban-Rodriguez in their individual capacities because they are each entitled to qualified immunity. R&R at 12–17, 20–22. However, Judge Reid recommends denying the Second Motion to Dismiss as it pertains to Dr. Piña, finding that Dr. Piña is not entitled to qualified immunity and that Plaintiff has plausibly alleged a deliberate indifference claim against Dr. Piña. R&R at 23–28.

To be entitled to qualified immunity, a public official must first establish that he or she was engaged in a "discretionary duty." Mercado v. City of Orlando , 407 F.3d 1152, 1156 (11th Cir. 2005). Once it has been established that the official was engaged in a discretionary duty, the burden shifts to the plaintiff to establish "both [1] that the defendant committed a constitutional violation and [2] that the law governing the circumstances was already clearly established at the time of the violation." Youmans v. Gagnon , 626 F.3d 557, 562 (11th Cir. 2010).

i. Root Canal Treatment: County Defendants and Dr. Barban-Rodriguez

As set forth in the R&R, it is undisputed that the County Defendants were acting within their discretionary authority when they denied Plaintiff's requests for root canals, did not make root canals available to Plaintiff, reviewed his medical treatment, and denied grievances related to Plaintiff's requested root canals. See R&R at 11–12. Therefore, the burden is on Plaintiff to demonstrate that these defendants violated a constitutional right that was "clearly established" under existing law. Youmans , 626 F.3d at 562.

Judge Reid does not explicitly address whether the County Defendants or Dr. Barban-Rodriguez's conduct violated Plaintiff's constitutional rights. See Maddox v. Stephens , 727 F.3d 1109, 1121 (11th Cir. 2013) (noting that courts "are afforded the flexibility to determine that the right allegedly violated was not clearly established without deciding whether a constitutional violation occurred at all"). Rather, Judge Reid focuses her analysis on the second inquiry and finds that Plaintiff has not cited to any authority to demonstrate that there is "well-settled" case law finding an Eighth Amendment violation under circumstances like those here. R&R at 13–17. This Court agrees.

To be clearly established, a rule must "have a sufficiently clear foundation in then-existing precedent" such that it would be "clear to a reasonable [official] that his conduct was unlawful in the situation he confronted." D.C. v. Wesby , ––– U.S. ––––, 138 S. Ct. 577, 589–90, 199 L.Ed.2d 453 (2018). To demonstrate that a constitutional right is "clearly established," the party opposing qualified immunity must identify "a controlling case or robust consensus of cases" finding a constitutional violation "under similar circumstances." Id. at 591 (citation omitted). The ultimate inquiry is "whether the state of the law gave the defendants fair warning that their alleged conduct was unconstitutional." Vaughan v. Cox , 343 F.3d 1323, 1332 (11th Cir. 2003) (citation and internal quotation marks omitted). Here, Plaintiff alleges that Defendants were deliberately indifferent to his medical needs because they offered only extraction of his teeth, rather than a root canal. See Am. Compl. However, as set forth in the R&R, Plaintiff has not identified case law to support the proposition that denying an inmate a root canal violates an inmate's constitutional rights. R&R at 13–16.

To the contrary, the Eleventh Circuit has held that it is not unconstitutional to offer an inmate an extraction over other dental procedures so long as an extraction is a minimally adequate treatment option. Lynch v. Jackson , 478 F. App'x 613, 618 (11th Cir. 2012) (finding that the plaintiff's refusal to undergo an extraction precluded a finding that the defendant's actions were unconstitutional, particularly where the plaintiff "fail[ed] to make a non-conclusory assertion that the tooth extraction was not only not adequate treatment, but not the best possible treatment").⁵ "Nor does a simple difference in medical opinion between the prison's medical staff and the inmate as to the latter's diagnosis or course of treatment support a claim of cruel and unusual punishment." Harris v. Thigpen , 941 F.2d 1495, 1505 (11th Cir. 1991). Here, Plaintiff does not allege that extraction of his teeth would be less than minimally adequate. See Am. Compl. Rather, Plaintiff alleges that extraction is a "last resort instead of the best solution for [his] health." Id. at 28. These allegations support the inference that Plaintiff disagrees with the course of treatment offered, but do not give rise to a cognizable claim. See Harris , 941 F.2d at 1505. Therefore, these defendants are entitled to qualified immunity. Accordingly, Plaintiff's claims against Estrada, Dr. Berrios, Perez, Junior, Rodriguez, Dr. Concepcion and Dr. Barban-Rodriguez in their individual capacities related to their failure to provide Plaintiff with root canal treatment are DISMISSED.⁶

5 Although Plaintiff does not have a constitutional right to a root canal over a tooth extraction, the Eleventh Circuit has recognized that "[t]here may be situations where tooth extraction does not constitute adequate treatment," such as where the facility has an extraction-only policy. See Lynch , 478 F. App'x at 619 n.8 (citing Stack v. McCotter , 79 F. App'x 383, 390 (10th Cir. 2003) ). However, this acknowledgment does not constitute "well-established" precedent that denial of a root canal, or even an extraction-only policy, violates an individual's constitutional rights.

6 In the R&R, Judge Reid separately finds that because Plaintiff did not respond to Dr. Berrios, Perez, Estrada, or Junior's claims of entitlement to qualified immunity, they are entitled to qualified immunity. R&R at 15–16. Indeed, in Plaintiff's Objections, he states that he "dropped [and] actually agreed to the dismissal of all claims against" Defendants Perez and Dr. Berrios. Pl.'s Objs. at 2 nn.3–4.

ii. Cavity Filling

a) Dr. Concepcion

As set forth in the R&R, it is undisputed that Dr. Concepcion was acting within his discretionary authority when he denied Plaintiff's grievance after Dr. Piña did not fill a cavity in his upper wisdom tooth. R&R at 11, 16. The burden is thus on Plaintiff to show that qualified immunity is inappropriate. See Youmans , 626 F.3d at 562. In the R&R, Judge Reid finds that Dr. Concepcion is entitled to qualified immunity because "Plaintiff provided no citations to support a claim that Dr. Concepcion's decision to deny his grievance, allegedly without meaningful review, violated clearly established law." R&R at 16. In the alternative, Judge Reid finds that Dr. Concepcion is entitled to qualified immunity because Plaintiff does not dispute this claim. Id. Therefore, Judge Reid recommends that the cavity-filling claim against Dr. Concepcion, in his individual capacity, be dismissed. R&R at 16–17.

Because the burden is on Plaintiff to come forward with settled case law demonstrating that it would be "clear to a reasonable officer that his conduct was unlawful in the situation he confronted," and Plaintiff has not done so, this Court agrees that Dr. Concepcion is entitled to qualified immunity. Wesby , 138 S. Ct. at 590 (citation omitted). Accordingly, Plaintiff's claims against Dr. Concepcion in his individual capacity related to his denial of a grievance regarding Plaintiff's failure to receive a cavity filling are DISMISSED.

b) Dr. Piña

In the Amended Complaint, Plaintiff alleges that he saw Dr. Piña on November 29, 2017⁷ specifically to have a cavity in his upper wisdom tooth filled, but that Dr. Piña did not fill his cavity during that visit because Dr. Piña "became very upset after [Plaintiff] complained about [Plaintiff's] [root canal] problem" and said that he was "out of time" to complete the dental work. Am. Compl. at 31. Plaintiff alleges that "it was clear [Dr. Piña] was refusing to do the [filling] out of spite not a lack of time because [Plaintiff's] [root canal] complaint lasted about 3 minutes." Id. Plaintiff alleges that, at the time, Dr. Piña instructed an assistant to schedule Plaintiff for an appointment on December 1, 2017, but that "was a lie because no appointment was made." Id. Plaintiff then received a filling from another dentist on January 2, 2018, thirty-four days later. Id. at 21. As a result, Plaintiff alleges that he suffered "34 days of great pain, etc." Id. at 6. In the Second Motion to Dismiss, Dr. Piña asserts that he is entitled to qualified immunity as to this claim. Second Mot. to Dismiss at 17–19. In the R&R, Judge Reid finds that Dr. Piña is not entitled to qualified immunity. R&R at 26–28.

7 With respect to Plaintiff's claim against Dr. Concepcion for denying his grievances related to the cavity filling, Plaintiff quotes his grievances in which he stated that he went to a sick call on November 15, 2017 complaining of pain from a cavity. Am. Compl. at 21. He also stated that "[Dr.] Piña himself documented the existence of the upper wisdom tooth cavity on about September 30, 2017." Id.

First, Judge Reid finds that Dr. Piña did not meet his burden to establish that he was acting within his discretionary authority. R&R at 26. In Dr. Piña's Objections, Dr. Piña argues that Judge Reid "conflated the ‘discretionary authority’ prong of qualified immunity with the violation of a ‘clearly established’ right prong," and that "[w]ith respect to dentists, all that is required to establish that one acted within his discretionary authority is to show that the deliberate indifference claim arises out of the rendering of, or failure to render, dental services, which Dr. Piña did in his motion to dismiss." Piña Objs. at 11–12.

"To establish that the challenged actions were within the scope of his discretionary authority, a defendant must show that those actions were (1) undertaken pursuant to the performance of his duties, and (2) within the scope of his authority." Estate of Cummings v. Davenport , 906 F.3d 934, 940 (11th Cir. 2018) (citation omitted), cert. denied , ––– U.S. ––––, 139 S. Ct. 2746, 204 L.Ed.2d 1134 (2019). Here, Plaintiff's allegations relate to Dr. Piña's administration of dental care—or lack thereof—and thus relate to Dr. Piña's actions while performing a job-related function within the scope of his authority. See Am. Compl. at 31–32. Therefore, the Court finds that Dr. Piña was acting within his discretionary authority when evaluating Plaintiff's dental condition and that Dr. Piña need not have "explained how his alleged refusal [to provide a filling] was within his discretionary authority," as the R&R finds was required. R&R at 26; see Walker v. Akridge , No. 1:15-CV-28-WTH-GRJ, 2018 WL 3245013, at *13 (N.D. Fla. Feb. 26, 2018) ("A duty of a prison dentist is to provide prisoners with the necessary dental care."), report and recommendation adopted , No. 1:15-CV-00028-WTH-GRJ, 2018 WL 3244087 (N.D. Fla. July 3, 2018).⁸

8 In the R&R, Judge Reid finds that Dr. Piña's statement in the Second Motion to Dismiss that he was acting within his discretionary authority amounted to a "bald assertion" and thus was insufficient to establish that he was acting within his discretionary authority. R&R at 26. Although the case cited in the R&R for this proposition does state that a "bald assertion" that one is acting within his discretionary authority is insufficient for purposes of qualified immunity, the case is otherwise distinguishable in that it addressed whether a prison warden's actions in entering a do-not-resuscitate order and an order regarding the withdrawal of artificial life support was an act within the prison warden's discretionary authority. See Davenport , 906 F.3d at 940–43 (looking to the Alabama Natural Death Act to determine whether the prison warden had discretionary authority). Unlike in Davenport , there is no real argument that Dr. Piña was acting outside the scope of his job duties and did not have the discretionary authority to determine whether an inmate may need a cavity filling. Therefore, the Court finds that Dr. Piña has adequately alleged that he was acting within his discretionary authority for purposes of asserting qualified immunity.

The burden thus shifts to Plaintiff to demonstrate that Dr. Piña violated a constitutional right that was clearly established at the time of the violation. Youmans , 626 F.3d at 562. In the R&R, Judge Reid finds that Plaintiff has cited case law to demonstrate that that it is well-settled law that refusal to provide, or delay in providing, medical care, including the filling of a cavity, can give rise to an Eighth Amendment violation and thus Dr. Piña is not entitled to qualified immunity. R&R at 27–28.

Plaintiff relies on three cases in his Response to the Motions to Dismiss, which Judge Reid discusses in turn. Id. First, Plaintiff cites the Second Circuit case Harrison v. Barkley , 219 F.3d 132, 140 (2d Cir. 2000). Resp. to Mots. to Dismiss at 17. For purposes of qualified immunity, only decisions of the United States Supreme Court, the Eleventh Circuit Court of Appeals, and the Supreme Court of Florida constitute "clearly established" law. See McClish v. Nugent , 483 F.3d 1231, 1237 (11th Cir. 2007). Accordingly, the Court will not consider this Second Circuit case in determining whether the law was "clearly established" at the time.

Second, Plaintiff cites two Eleventh Circuit cases. Resp. to Mots. to Dismiss at 17 (citing Farrow v. West , 320 F.3d 1235, 1246–48 (11th Cir. 2003) (finding that a delay in providing dentures to an inmate for fifteen months despite the doctor's awareness of the inmate's "pain, weight loss, bleeding gums, and soft diet" did not support granting summary judgment in the doctor's favor because "the evidence would support a jury finding that [the defendant] purposefully refused to treat or see [the plaintiff] for a considerable period of time"); Mandel v. Doe , 888 F.2d 783, 788-89 (11th Cir. 1989) (noting that "knowledge of the need for medical care and intentional refusal to provide that care constitute deliberate indifference" in evaluating a claim involving severe leg pain)). Farrow and Mandel , like other cases in this Circuit, stand for the well-established general proposition that "knowledge of the need for medical care and an intentional refusal to provide that care constitutes deliberate indifference." Adams v. Poag , 61 F.3d 1537, 1543 (11th Cir. 1995). However, this is a general principle that does not place the constitutionality of Dr. Piña's alleged conduct under these specific circumstances "beyond debate." Ashcroft v. al-Kidd , 563 U.S. 731, 741, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011) ("[E]xisting precedent must have placed the statutory or constitutional question beyond debate."). Indeed, "[m]ere incidents of negligence or malpractice do not rise to the level of constitutional violations." Harris , 941 F.2d at 1505.

Here, Plaintiff alleges that Dr. Piña "deprived [Plaintiff] of a cavity [filling] only because [Plaintiff] voiced his health concerns of not receiving [root canal treatment]." Am. Compl. at 31–32. However, the allegations related to Dr. Piña do not include facts to support this conclusory assertion. Further, there are no factual allegations that Dr. Piña was aware that Plaintiff was in "great pain" during the November 29, 2017 visit or thereafter, or that Dr. Piña intentionally refused to fill Plaintiff's cavity for a thirty-four-day period—not just on November 29, 2017. Rather, the Amended Complaint simply states that Dr. Piña refused to fill Plaintiff's cavity on November 29, 2017 and instructed his assistant to reschedule the filling for two days later. Id. at 31. Plaintiff then ultimately saw another dentist who filled his cavity on January 2, 2018. Id. at 21.

By contrast, in both Farrow and Mandel , there were allegations that the officials were aware of the plaintiffs' serious medical needs and related pain yet intentionally refused to provide necessary treatment. See Farrow , 320 F.3d at 1246–48 ; Mandel , 888 F.2d at 789. Further, in Farrow , the plaintiff was in pain and did not receive necessary medical treatment for fifteen months—much longer than the thirty-four days alleged to have elapsed here. See Farrow , 320 F.3d at 1246–47. Although there need not be a case on point, al-Kidd , 563 U.S. at 741, 131 S.Ct. 2074, the facts of the cases that make up the "clearly established" law must be materially similar. See Washington v. Rivera , 939 F.3d 1239, 1248 (11th Cir. 2019) (finding officers were entitled to qualified immunity where the facts of the case were "not materially similar" to the two Eleventh Circuit cases cited by the plaintiff to establish a clearly established right). The Court finds that the facts in Farrow and Mandel are not materially similar to the facts alleged in the Amended Complaint.

Dr. Piña objects to Judge Reid's framing of this inquiry as "whether 34 days of pain would have alerted Dr. Piña that his conduct was unconstitutional."⁹ Piña Objs. at 16–17 (citing R&R at 27). Rather, Dr. Piña argues that "the question should be whether the law was ‘clearly established’ that Dr. Piña's failure to fill Plaintiff's cavity on the day of his appointment and instead attempt to reschedule same for two days later was unlawful." Id. at 17. Because there are insufficient factual allegations in the Amended Complaint that the delay between the November 29, 2017 dentist appointment with Dr. Piña and the January 2, 2018 dentist appointment when the cavity was filled can be attributed to Dr. Piña, this Court agrees. And, the law does not "clearly establish" that rescheduling a procedure by two days was unlawful.

9 In the Eleventh Circuit, there is a second method used to evaluate a public official's entitlement to qualified immunity, which Judge Reid alludes to in framing the relevant inquiry in this way. R&R at 27. Under this method, absent controlling case law, courts look to the official's conduct and inquire whether that "conduct lies so obviously at the very core" of what the constitutional provision prohibits "that the unlawfulness of the conduct was readily apparent to the officer, notwithstanding the lack of fact-specific caselaw.' " Smith v. Mattox , 127 F.3d 1416, 1419 (11th Cir. 1997). Even under this method, however, Dr. Piña is entitled to qualified immunity, as there are no allegations in the Amended Complaint to suggest that Dr. Piña was aware that Plaintiff was in great pain. Nor is it obvious that thirty-four days of tooth pain is unlawful.

Therefore, this Court finds that Dr. Piña's alleged conduct did not violate clearly established law and thus Dr. Piña is entitled to qualified immunity. Accordingly, Plaintiff's claim against Dr. Piña in his individual capacity is DISMISSED.¹⁰

10 Because the Court finds that Dr. Piña is entitled to qualified immunity, the Court declines to adopt Part VI.B.i.b of the R&R, in which Judge Reid finds that Dr. Piña is not entitled to qualified immunity. R&R at 26–28. Additionally, the Court need not address whether Plaintiff has stated a deliberate indifference claim against Dr. Piña and similarly declines to adopt Part VI.B.i.a of the R&R, in which Judge Reid recommends that Plaintiff's deliberate indifference claim survive dismissal. R&R at 23–26.

B. Official Capacity Claims

Plaintiff also alleges that Defendants Dr. Egins, Wright, Dr. Berrios, Perez, Junior, Rodriguez, Dr. Barban-Rodriguez, and Dr. Piña are liable in their official capacities under § 1983 for enforcing a "no root canal" policy. See Am. Compl. Defendants Dr. Egins, Wright, Dr. Berrios, Perez, Junior, and Rodriguez argue that (1) Plaintiff has not identified an official policy or custom of violating constitutional rights and (2) even if there was an official "no root canal" policy, these defendants are not final policymakers with respect to dental care and treatment and thus cannot render Miami-Dade County or the Public Health Trust of Miami-Date County liable under § 1983. First Mot. to Dismiss at 18–19. Similarly, Defendants Dr. Piña and Dr. Barban-Rodriguez argue that Plaintiff's official capacity claims fail because Plaintiff has not identified a policy, custom, or practice (1) with respect to the performance of root canals at the Miami-Dade Corrections and Rehabilitation Department facilities as to Barban-Rodriguez and (2) with respect to the treatment of cavities as to Dr. Piña. Second Mot. to Dismiss at 6–11.

In the R&R, Judge Reid finds that Defendants are not final policymakers with respect to any official policy or unofficial practice or custom such that they can render the municipality liable under § 1983. R&R at 18, 22, 28. Specifically, Judge Reid finds that final policymaking authority lies with the Mayor or the Board of County Commissioners. Id. at 17–19. Because "[o]nly those officials who have final policymaking authority may render the municipality liable under § 1983," this Court agrees with Judge Reid that the claims against each Defendant sued in his or her official capacity must be dismissed.¹¹ Barnes , 2014 WL 12851971, at *6.

11 Further, Judge Reid notes that Plaintiff has also failed to state a § 1983 claim based on allegations of a widespread unofficial policy because the allegations in the Amended Complaint relate only to Plaintiff's experiences. R&R at 19. In his Objections, Plaintiff concedes that "[t]he official capacity claim [against Dr. Barban-Rodriguez] should be dismissed. Objs. at 33. Plaintiff's remaining objections to the R&R with respect to the dismissal of the official capacity claims are not sufficiently specific to warrant a de novo review.

Accordingly, Plaintiff's claims against Defendants Dr. Egins, Wright, Dr. Berrios, Perez, Junior, Rodriguez, Dr. Barban-Rodriguez, and Dr. Piña in their official capacities—which amount to claims that the state is liable for the enforcement of the alleged unconstitutional policy—are DISMISSED.

C. Injunctive Relief

In the Amended Complaint, Plaintiff requests that the Court issue injunctions (1) compelling certain Defendants to perform a root canal on two of his teeth and (2) requiring that the County take all steps necessary to provide inmates with root canals. Am. Compl. at 32–33. As to the request for the first injunction, Judge Reid finds that Plaintiff cannot show (1) a substantial likelihood of success on the merits or (2) a substantial threat that he will suffer irreparable harm absent the injunctions because Plaintiff has been offered tooth extractions.¹² R&R at 30. This Court agrees that because Plaintiff has been offered extractions of the two teeth for which he would like a root canal and has not alleged that extraction is less than a minimally adequate treatment option, there is no substantial threat that he will suffer irreparable injury if his request for an injunction is not granted. As to the request for the second injunction, Judge Reid finds that Plaintiff lacks standing to request that root canals be available to other inmates. Id. This Court agrees, as an inmate may not "seek an injunction on behalf of other unnamed inmates" and cannot represent other inmates in a class action. Jacoby v. Baldwin Cty. , Civil Action No. 12-0640-CG-N, 2014 WL 2641834, at *8 (S.D. Ala. June 13, 2014), aff'd , 835 F.3d 1338 (11th Cir. 2016) ; see also Johnson v. Brown , 581 F. App'x 777, 781 (11th Cir. 2014). Accordingly, Plaintiff's requests for injunctive relief are DENIED.

12 Judge Reid applies the standard used for evaluating a request for a preliminary injunction in the R&R, as Plaintiff requests the injunctions "immediately." R&R at 29; Am. Compl. at 32–33; see also Alabama v. U.S. Army Corps of Engineers , 424 F.3d 1117, 1128 (11th Cir. 2005) (listing the elements required for issuance of a preliminary injunction). Even if the Court applied the standard used for permanent injunctive relief, dismissal would be appropriate because the allegations in the Amended Complaint, taken as true, do not establish a constitutional violation and Plaintiff cannot demonstrate irreparable harm. See id. ("[T]o obtain a permanent injunction, a party must show: (1) that he has prevailed in establishing the violation of the right asserted in his complaint; (2) there is no adequate remedy at law for the violation of this right; and (3) irreparable harm will result if the court does not order injunctive relief.").

III. CONCLUSION

UPON CONSIDERATION of the Motions, the R&R, the pertinent portions of the record, and being otherwise fully advised in the premises, it is hereby ORDERED AND ADJUDGED that Magistrate Judge Reid's R&R (ECF No. 95) is ADOPTED IN PART and the Motions to Dismiss (ECF No. 64, 65) are GRANTED. The Clerk of Court is instructed CLOSE this case. All pending motions, if any, are DENIED AS MOOT.

DONE AND ORDERED in Chambers at Miami, Florida, this 26th day of September, 2019.

REPORT OF MAGISTRATE JUDGE

LISETTE REID, UNITED STATES MAGISTRATE JUDGE

I. Introduction

In this pro se action, Plaintiff raises claims of deliberate indifference to serious medical needs against multiple defendants in violation of 42 U.S.C. § 1983 due to events that allegedly transpired while in pretrial detention. [ECF 8]. Two motions to dismiss the action are now pending before the Court. The first is a Motion to Dismiss filed by several defendants, jail officials sued in their individual and official capacities. [ECF 64]. The second is a Motion to Dismiss filed by two defendants, dentists sued in their individual and official capacities. [ECF 65].

In both Motions, Defendants argue they are entitled to qualified immunity and dismissal for failure to state a claim. As discussed below, the first Motion should be GRANTED and the second motion should be GRANTED IN PART AND DENIED IN PART .¹

1 This case has been referred to the Undersigned for the issuance of all preliminary orders and any recommendations to the District Court regarding dispositive motions. See 28 U.S.C. § 636(b) ; Fed. R. Civ. P. 72(b), S.D. Fla. Loc. R. 1(f) governing Magistrate Judges; and S.D. Fla. Admin. Order 2019-2.

II. Factual and Procedural Background

A. The Amended Complaint

In his Amended Complaint, Plaintiff alleges that he endured significant dental issues while in pretrial detention, which reportedly resulted in him being unconstitutionally denied or received delayed dental treatment. [ECF 8]. Plaintiff has two sets of claims.

First, he claims that he was unconstitutionally denied a root canal on two lower molars because jail officials have a policy denying prisoners root canal dental treatment. [ECF 8, pp. 19-20, 22-31]. Plaintiff asserted two dentists within the jail system recommended a root canal, but extraction was the only procedure made available to him pursuant to the jail's alleged extraction-only policy. [ECF 8, pp. 19-20, 22-31]. Plaintiff admits that he was informed that extraction of his molars was an available treatment option as early as October 20, 2016. [ECF 8, p. 19]. Plaintiff declined the extraction and persisted in requesting a root canal instead. Approximately 17 months after being informed that an extraction was available and denying the option, Plaintiff filed the initial complaint. [ECF 1]. He alleges, as injuries, the an inability to chew food, weight loss, malnutrition, and a swollen jaw. [Id. p. 6].

Plaintiff's second set of claims involves Dr. Loines Piña's alleged refusal to fill a cavity in Plaintiff's wisdom tooth. [ECF 8, pp. 31-32]. Plaintiff also asserted that Dr. Luis Concepcion displayed deliberate indifference by denying his grievance regarding Dr. Piña's conduct, without meaningfully reviewing it. [ECF 8, pp. 20-21]. The Plaintiff's cavity was filled, however, as injuries, Plaintiff alleged enduring "great pain" during the 34-days that he was without a cavity filling. [ECF 8, p. 6].

After initial screening, the Court adopted in part the previously assigned Magistrate Judge's Report so that all of Plaintiff's claims could proceed in their individual and official capacities. [ECF 22].

B. The Two Motions to Dismiss

Defendants Dr. Luis Concepcion, individually; Dr. Otis Egins, in his official capacity as Medical Director of Corrections Health Services (CHS) (a division of the Public Health Trust of Miami-Dade County (the "Trust"));² Jesus "Manny" Estrada, individually; Edith Wright, in her official capacity as Director of CHS;³ Dr. Carmelo Berrios, individually and in his official capacity as Associate Director of CHS; Ramses "Randy" Perez, individually and in his official capacity as a CHS administrator; Daniel Junior, individually and in his official capacity as Director of the Miami-Dade Corrections and Rehabilitation Department (MDCR) (a department of Miami-Dade County (the "County")); and Enrique Rodriguez, individually and in his official capacity as a Division Chief of MDCR, who are all represented by Miami-Dade County Attorney's Office, filed a joint Motion to Dismiss. [ECF 64] [hereinafter "the County's Motion"].

2 As Dr. Egins is Dr. Concepcion's successor as CHS Medical Director, Dr. Egins is the proper defendant for all official capacity claims originally asserted against Dr. Concepcion. See Fed. R. Civ. P. 25(d).

3 Estrada no longer holds the position of CHS director, rendering Wright, who is the current occupant of that position, the proper defendant for all official capacity claims originally raised against Estrada. See Fed. R. Civ. P. 25(d).

Additionally, Defendants Dr. Loines Piña and Dr. Greta Barban-Rodriguez,⁴ who are both sued in their individual and official capacities, filed a separate Motion to Dismiss. [ECF 65].

4 This Defendant was previously identified as "Dr. Giera" in the Screening Report. [ECF 16, pp. 31-32].

All Defendants argued that qualified immunity shielded them from individual liability, and all argued the official capacity claims should be dismissed for failure to state a claim.

III. Standard of Review

To begin, the Court is not prohibited from considering a motion to dismiss on the merits merely because the Amended Complaint survived initial screening pursuant to 28 U.S.C. § 1915. See Smith v. Courtney , Case No. 3:14CV231/MCR/CJK, 2016 WL 1554137, at *5 (N.D. Fla. Mar. 22, 2016), report and recommendation adopted , Case No. 3:14CV231-MCR/CJK, 2016 WL 1532246 (N.D. Fla. Apr. 15, 2016). Initial screening does not screen every possible defect, and there are times that sua sponte dismissal is inappropriate without a defendant's position being fully heard. Heard v. Parker , Case No. 3:17CV-01248, 2018 WL 6435863, at *4 (M.D. Tenn. Dec. 6, 2018).

Under Fed. R. Civ. P. 12(b)(6), a defendant may move to dismiss a complaint where the plaintiff has failed to state a claim upon which relief may be granted. "To survive a motion to dismiss [for failure to state a claim], 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, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). Facial plausibility exists when there is factual content allowing the court to draw a reasonable inference that the defendant is liable for the misconduct alleged. Iqbal , 556 U.S. at 678, 129 S.Ct. 1937.

IV. Applicable Law

A. Deliberate Indifference to Serious Medical Needs

Deliberate indifference to a pretrial detainee's serious medical needs constitutes a Fourteenth Amendment violation. See Estelle v. Gamble , 429 U.S. 97, 104, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976) ; Cook ex rel. Estate of Tessier v. Sheriff of Monroe Cnty. , 402 F.3d 1092, 1115 (11th Cir. 2005). Nevertheless, a pretrial detainee's claims of inadequate medical care are evaluated under the same standard as a prisoner's claim under the Eighth Amendment's Cruel and Unusual Punishment Clause. See Nam Dang by & through Vina Dang v. Sheriff, Seminole Cnty. Fla. , 871 F.3d 1272, 1279 n.2 (11th Cir. 2017).

To prevail on a deliberate-indifference claim, a plaintiff must show: (1) a serious medical need; (2) deliberate indifference to that need; and (3) causation between that indifference and the injury. See Mann v. Taser Int'l, Inc. , 588 F.3d 1291, 1306-07 (11th Cir. 2009).

"[A] ‘serious’ medical need 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." Hill v. Dekalb Regional Youth Detention Center , 40 F.3d 1176, 1187 (1994) (citations omitted), overruled in part on other grounds , Hope v. Pelzer , 536 U.S. 730, 739 n.9, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002). See also Andujar v. Rodriguez , 486 F.3d 1199, 1203 (11th Cir. 2007). "[T]he medical need must be ‘one that, if left unattended, pos[es] a substantial risk of serious harm.’ " Farrow v. West , 320 F.3d 1235, 1243 (11th Cir. 2003) (quotation marks and citations omitted).

As for determining what conduct or lack of conduct qualifies under the deliberate indifference component, plaintiffs must satisfy three requirements: (1) subjective knowledge of a risk of serious harm; (2) disregard of that risk; and (3) conduct that is more than mere negligence. See Melton v. Abston , 841 F.3d 1207, 1223 n.2 (11th Cir. 2016).

Causation, the final requirement for a deliberate indifference claim, requires a link between the injury and the constitutional violation. Goebert v. Lee Cty. , 510 F.3d 1312, 1327 (11th Cir. 2007). In other words, the unconstitutional act must be a proximate cause of the injuries, see LaMarca v. Turner , 995 F.2d 1526, 1538-39 (11th Cir. 1993), or should otherwise show the defendant's personal participation in the constitutional violation. Goebert , 510 F.3d at 1327.

To illustrate the high bar of such a claim, "[m]ere incidents of negligence or malpractice do not rise to the level of constitutional violations." Harris v. Thigpen , 941 F.2d 1495, 1505 (11th Cir. 1991). Similarly, a simple difference in medical opinion between a prison's medical staff and the inmate as to the inmate's diagnosis or course of treatment cannot support a deliberate indifference claim. See id. Once an inmate receives medical care, courts are reluctant to question the adequacy of medical care provided to the inmate. See, e.g. , Harris , 941 F.2d at 1507. See also Lloyd v. Van Tassell , 318 F. App'x 755, 760 (11th Cir. 2009).

B. Qualified Immunity

Qualified immunity, if applicable, serves as a complete shield to liability for government officials when they are sued in their individual capacities for engaging in discretionary functions. See Pearson v. Callahan , 555 U.S. 223, 231, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) ; Cottone v. Jenne , 326 F.3d 1352, 1357 (11th Cir. 2003). Government officials, therefore, may either (1) seek summary judgment on qualified immunity grounds or (2) seek to have the complaint dismissed on qualified immunity grounds, prior to discovery, based solely on the allegations in the pleadings. Holloman ex rel. Holloman v. Harland , 370 F.3d 1252, 1263 n.6 (11th Cir. 2004).

To invoke qualified immunity, a public official must first demonstrate that they were acting within their discretionary authority. Hinson v. Bias , 927 F.3d 1103, 1116 (11th Cir. 2019). "The term discretionary authority covers all actions of a governmental official that (1) were undertaken pursuant to the performance of his duties, and (2) were within the scope of his authority." Id. 927 F.3d at 1116 (internal quotation marks omitted). A "bald assertion" by a defendant that "the complained-of actions were ... within the scope of his discretionary authority" will not suffice. Estate of Cummings v. Davenport , 906 F.3d 934, 940 (11th Cir. 2018) (quoting Barker v. Norman , 651 F.2d 1107, 1121 (5th Cir. Unit A July 1981) ).

If public officials have met this burden, then the burden shifts to the plaintiff to show that, with all allegations assumed as true, the allegations plausibly establish (1) the defendants violated plaintiff's constitutional rights and (2) that right was "clearly established." See Cottone , 326 F.3d at 1358 (citing Hope v. Pelzer , 536 U.S. 730, 736-37, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002) and Saucier v. Katz , 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001), overruled in part on other grounds by Pearson , 555 U.S. at 235-39, 129 S.Ct. 808 ). "The right must be clearly established in light of the specific context of the case, not as a broad general proposition, at the time of the [public official's] actions." Hinson , 927 F.3d at 1116 (internal quotation marks omitted).

Courts are afforded significant "flexibility," as they may answer those inquiries "in either order" and even "determine that the right allegedly violated was not clearly established without deciding whether a constitutional violation occurred at all." Maddox v. Stephens , 727 F.3d 1109, 1121-22 (11th Cir. 2013).

C. Official Capacity

"When suing local officials in their official capacities under § 1983, the plaintiff has the burden to show that a deprivation of constitutional rights occurred as a result of an official government policy or custom." Cooper v. Dillon , 403 F.3d 1208, 1221 (11th Cir. 2005) (footnote omitted). This sort of liability, which is imposed upon a municipality for the unconstitutional actions of its employees, is often referred to as a Monell claim or Monell liability. See, e.g. , Martin v. City of Macon, Georgia , 702 F. App'x 941 (11th Cir. 2017) (citing Monell v. Dep't of Soc. Servs. , 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978) ).

To establish Monell liability, a plaintiff must show that: (1) his constitutional rights were violated; (2) the municipality had a custom or policy that constituted deliberate indifference to his constitutional rights; and, (3) the policy or custom caused the violation of his constitutional rights. See McDowell v. Brown , 392 F.3d 1283, 1289 (11th Cir. 2004).

Additionally, only those officials who have final policymaking authority may render the municipality liable under § 1983 for Monell liability. Grech v. Clayton Cty., Ga. , 335 F.3d 1326, 1330 (11th Cir. 2003). Thus, plaintiffs must "identify either (1) an officially promulgated county policy or (2) an unofficial custom or practice of the county shown through the repeated acts of a final policymaker for the county." Grech , 335 F.3d at 1329.

V. The County's Motion to Dismiss the Amended Complaint [ECF 64]

In its Motion, the County relied upon certain grievances and medical records that were not attached to the Amended Complaint. This raised questions as to whether those materials converted the "Motion to Dismiss the Amended Complaint" into a motion for summary judgment pursuant to Fed. R. Civ. P. 12(d).

Ultimately, because the County's Motion makes a compelling argument that qualified immunity extends to these Defendants in their individual capacities, the Court need not construe its Motion as one for summary judgment. The County's legal arguments, and the four corners of the Amended Complaint are enough. In a similar vein, the County's Motion demonstrates, as a matter of law, that the Amended Complaint fails to state a claim on the issue of Monell liability (i.e. , the official capacity claims).

A. Qualified Immunity: Discretionary Authority

There is no real dispute that the County-represented Defendants met their initial burden to establish that they acted within their discretionary authority. See , e.g. , GolTV, Inc. v. Fox Sports Latin Am. Ltd. , 277 F. Supp. 3d 1301, 1311 n.7 (S.D. Fla. 2017) ("When a party fails to respond to an argument or address a claim in a responsive brief, such argument or claim can be deemed abandoned."). See also S.D. Fla. Loc. R. 7.1(c) ("Failure to respond to arguments in a motion to dismiss is a sufficient basis to dismiss such claims by default[.]").

The allegations against Dr. Concepcion relate to his denial of grievances for root canals and a cavity filling. [ECF 8, pp. 19-23]. The allegations against Estrada relate to him denying grievances or failing to make root canal treatment available. [Id. pp. 23-24]. Junior's alleged involvement relates to him delegating to a subordinate the responsibility to review Plaintiff's dental care and to Junior allegedly failing to make root canal treatment available. [ECF 8, pp. 26-27]. Rodriguez, who was the individual to whom Junior delegated the responsibility, denied Plaintiff a root canal relying upon Plaintiff's dental records. [ECF 8, pp. 25-26]. Perez allegedly denied Plaintiff's request for root canal treatment. [ECF 8, p. 28]. Finally, with respect to Dr. Berrios, he allegedly delayed the root canal by affirming that Plaintiff's molars were unsalvageable. [ECF 8, pp. 29-31].

The Plaintiff has either conceded or abandoned any challenges to the Defendants' claims that they were acting within their discretionary authority in refusing him a root canal. Plaintiff expressly did not contest that Dr. Concepcion acted within his discretionary authority as to his involvement in the root canal denials. [ECF 76, pp. 4-5]. Similarly, Plaintiff explicitly did not contest that Rodriguez also acted within his discretionary authority. [ECF 76, pp. 13, 14]. Although discussed within his Response in Opposition, Plaintiff did not address whether Junior [ECF 76, pp. 9-12] acted within his discretionary authority or whether Dr. Concepcion, as to his involvement with Plaintiff's cavity filling [ECF 76, pp. 18-19], acted within his discretionary authority. Lastly, Plaintiff's Response in Opposition does not reference Dr. Berrios or Perez at all.

Accordingly, any argument they have not met their initial burden under the test to establish qualified immunity has been waived or abandoned. See GolTV, Inc. , 277 F. Supp. 3d at 1311 n.7 (failing to respond or contest a defendant's argument in a motion to dismiss renders the point abandoned).

B. Qualified Immunity: No "Clearly Established Right" To A Root Canal

Next, under the qualified immunity test, the burden shifts to Plaintiff to demonstrate that, assuming his allegations are true, the Defendants (1) violated a constitutional right and (2) that right was "clearly established" under existing law. Hinson , 927 F.3d at 1116. Whether a right is clearly established turns on whether a reasonable official in the defendant's position would have known that their conduct was unlawful under the circumstances. Hernandez v. Mesa , ––– U.S. ––––, 137 S. Ct. 2003, 2007, 198 L.Ed.2d 625 (2017). Facts an officer learns after the incident ends are not relevant. Id.

To be "clearly established," a rule must be "settled law" under controlling authority or under a robust consensus of case law of persuasive authority. District of Columbia v. Wesby , ––– U.S. ––––, 138 S. Ct. 577, 589-90, 199 L.Ed.2d 453 (2018) (internal citations and quotations omitted). "A case need not be directly on point, but existing precedent must have placed the statutory or constitutional question beyond debate ." Ashcroft v. al-Kidd , 563 U.S. 731, 741, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011) (emphasis added). See also Mullenix v. Luna , ––– U.S. ––––, 136 S. Ct. 305, 308, 193 L.Ed.2d 255 (2015) (stating generalities are not enough). Only the "plainly incompetent or those who knowingly violate the law" shall not benefit from qualified immunity. Mullenix , 136 S. Ct. at 308 (quoting Malley v. Briggs , 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986) ).

In his Response in Opposition, Plaintiff stated "broader principles of constitutional law" may be relied upon to show the Defendants are not entitled to qualified immunity, see generally [ECF 76, pp. 4-5, 13-14]. The Supreme Court has recently clarified, however, that more specificity is required. See Wesby , 138 S. Ct. at 588-90. The Eleventh Circuit has also echoed that plaintiffs may not rely upon a "broad general proposition" to show the right was clearly established. See Hinson v. Bias , 927 F.3d at 1103.

Plaintiff has not met his burden. He does not point to controlling authority or to a robust consensus of persuasive authority as to his root canal claims. See Wesby , 138 S. Ct. at 588-90. Currently, there is no controlling case supporting Plaintiff's contention regarding the denial of a root canal is unconstitutional when an extraction remains an available treatment option to alleviate pain and remove infection. There is also no robust consensus among jurists.

To the contrary, as the County's Motion argued [ECF 64, pp. 8-10], a robust consensus of persuasive authority indicates responsible officials would have concluded an extraction was a medically adequate treatment option when the alternative is a root canal.

The most persuasive authority in the County's favor is Lynch v. Jackson , 478 F. App'x 613 (11th Cir. 2012). In Lynch , the prisoner, like Plaintiff, declined an extraction. Lynch , 478 F. App'x at 615. The Eleventh Circuit concluded that the prisoner, by persistently refusing the offered extraction, which was deemed a minimally adequate treatment option, caused his own delay in adequate treatment. Id. at 618-19. While the Eleventh Circuit noted that an extraction might not be adequate treatment in the right context, see id. at 619 n.8, this non-essential footnote would surely not have alerted responsible officials.

Among the numerous cases cited by the Defendants, they referenced: Davis v. Norris , 198 F.3d 249 (8th Cir. 1999) (granting summary judgment as the plaintiff was offered extraction even though some of the examining dentists recommended root canal); Mathews v. Raemisch , 513 F. App'x 605, 607 (7th Cir. 2013) (offering an extraction over a root canal is merely a dispute in the choice of one routine procedure over another); McQueen v. Karr , 54 F. App'x 406, 406 (5th Cir. 2002) (dismissing as frivolous a deliberate indifference claim for not giving a root canal and only offering an extraction); Baughman v. Garcia , 254 F. Supp 3d 848, 877-78 (S.D. Tex. 2017) (reasoning that extraction is medically appropriate over a root canal to remove decay); Brathwaite v. Corr. Med. Servs. , 630 F. Supp. 2d 413, 417 (D. Del. 2009) (offering the option of an extraction over a root canal does not resemble deliberate indifference). Together, this bolsters the conclusion that Plaintiff cannot point to "settled law" in his favor.

In addition, the Plaintiff did not respond to Dr. Berrios's and Perez's claims of entitlement to qualified immunity. See GolTV, Inc. , 277 F. Supp. 3d at 1311 n.7 (failing to address a point renders it abandoned). See also S.D. Fla. Loc. R. 7.1(c). Similarly, although they were mentioned within his Response in Opposition, Plaintiff did not address Estrada's or Junior's claims as well. [ECF 76, pp. 8-11]. Thus, Junior and Estrada are unquestionably entitled to qualified immunity. See GolTV, Inc. , 277 F. Supp. 3d at 1311 n.7.

Consequently, even if all of Plaintiff's allegations are assumed as true, all of the Defendants identified in the County's Motion, who were brought into this action under Plaintiff's root canal claims, should be dismissed. See Wesby , 138 S. Ct. at 588-90 (requiring plaintiffs to rely upon "settled law").

Finally, with respect to Dr. Concepcion's response to the incident involving Plaintiff's cavity filling, Plaintiff's Response in Opposition appears to suffer the same defect. [ECF 76, pp. 18-19]. Here, Plaintiff provided no citations to support a claim that Dr. Concepcion's decision to deny his grievance, allegedly without meaningful review, violated clearly established law.⁵ [ECF 76, pp. 18-19]. Thus, Plaintiff does not rely on "settled law" as defined by the Supreme Court. See Wesby , 138 S. Ct. at 588-90. Alternatively, because Plaintiff does not address Dr. Concepcion's qualified immunity with respect to this claim, any argument that Dr. Concepcion is not entitled to qualified immunity as to the cavity-filling claim has been abandoned. See GolTV, Inc. , 277 F. Supp. 3d at 1311 n.7. Therefore, the cavity-filling claim against Dr. Concepcion, in his individual capacity, should also be dismissed.

5 Plaintiff directed the Court to consider case law referenced in his objections to the Screening Report. [ECF 76, p. 19] (referencing [ECF 18, pp. 6-8] ). A review of those objections does not cite to a controlling case or a robust consensus of persuasive authority. There is no citation to case law at all on those pages.

C. Official Capacity Claims ( Monell liability)

Even if the County has an extraction-only policy, as Plaintiff contends, Dr. Egins, Wright, Dr. Berrios, Perez, Junior, and Rodriguez, who are sued in their official capacity, assert they are not the final policymakers who would have been responsible for creating the policy. [ECF 64, p. 19]. Axiomatically, if an official's decisions are subject to meaningful administrative review, they are not a final policymaker. See, e.g. , Carter v. City of Melbourne , 731 F.3d 1161, 1167 (11th Cir. 2013).

"[T]he Board of County Commissioners establishes the health care policies with which the Public Health Trust must comply." Rosario v. Miami-Dade Cnty. , 490 F. Supp. 2d 1213, 1223 (S.D. Fla. 2007). See also Barnes v. Miami-Dade Cnty. , Case No. 13-20778-CIV, 2014 WL 12851971-LENARD, at *6 (S.D. Fla. Mar. 12, 2014). As such, "any decision by a Miami-Dade County or Public Health Trust representative who may have had discretion with respect to decisions concerning the provision of medical care to inmates at the Dade County Pre-Trial Detention Center would necessarily be subject to administrative review by the Board of County Commissioners." Rosario , 490 F. Supp. 2d at 1223. As for the County, its final policymakers are the Board of County Commissioners and the Mayor. Whitaker v. Miami-Dade Cty. , 126 F. Supp. 3d 1313, 1319 n.2 (S.D. Fla. 2015).

Plaintiff has alleged the Defendants had the "last say" or the "highest authority" within his Amended Complaint [ECF 8, pp. 15-17], and he has mostly done the same within his Response to the County's Motion. [ECF 76, pp. 7-9, 11]. The identified officials, who supposedly had the "last say" or the "highest authority," lacked the necessary final policymaking authority as a matter of law, requiring dismissal with respect to any claim of an officially-promulgated policy. See, e.g. , Rosario 490 F. Supp. 2d at 1224.

Under Monell , a plaintiff can still pursue official capacity claims if there was an unofficial policy or custom that caused a constitutional violation. See Walker v. City of Calhoun, GA , 901 F.3d 1245, 1255 (11th Cir. 2018) (citing Monell , 436 U.S. at 690-91, 98 S.Ct. 2018 ). To show an unofficial policy or custom is at issue, plaintiffs must point to a widespread practice that is so well-settled as to constitute custom or usage with the force of law. Brown v. City of Ft. Lauderdale , 923 F.2d 1474, 1481 (11th Cir. 1991). "[A] longstanding and widespread practice is deemed authorized" if the policymaking officials "must have known about it but failed to stop it." Id. at 1481 (emphasis added). Alternatively, if the final policymakers failed "to correct the constitutionally offensive actions of its employees[,]" "it can rise to the level of a custom or policy." Griffin v. City of Opa-Locka , 261 F.3d 1295, 1308 (11th Cir. 2001).

Liberally construing the Amended Complaint, Plaintiff attempted to show multiple incidents of a widespread practice. For instance, he alleged there was a "no RCT culture" and that certain officials told him root canals are not an available treatment option because it might require costly root canals for others in MDCR custody. [ECF 8, pp. 23, 29]. The Defendants correctly note that Plaintiff only described his own interactions in the Amended Complaint. [ECF 64, p. 19 n.18].

Additionally, even assuming Plaintiff's conclusory allegations could plausibly show a widespread practice, Plaintiff has not plausibly established that the Mayor or the Board of County Commissioners, who are the actual final policymakers, were obviously aware of this alleged practice, and there are no allegations that either were aware of jail officials routinely violating rules. See Keith v. DeKalb Cnty., Georgia , 749 F.3d 1034, 1048-52 (11th Cir. 2014) (explaining "widespread abuse" must "notify the supervising official" of constitutional deprivations that are "obvious, flagrant, [and] rampant[.]"). Put succinctly, the County's Motion [ECF 64] should be GRANTED .⁶

6 The official capacity claim related to Dr. Concepcion's response to Plaintiff's cavity-filling grievance should also be dismissed for the same reasons that Dr. Pina's official capacity claim should not proceed, articulated later in this Report.

VI. Dr Piña and Dr. Barban-Rodriguez's Motion to Dismiss [ECF 65]

A. Claims Against Dr. Barban-Rodriguez

i. Qualified Immunity: Discretionary Authority

Dr. Barban-Rodriguez has claimed entitlement to qualified immunity. [ECF 65, p. 18]. She denied Plaintiff a root canal by finding the two molars were unsalvageable even though they were allegedly salvageable in light of a different doctor's findings. [ECF 8, pp. 29-30].

Plaintiff did not dispute that Dr. Barban-Rodriguez can meet her burden at showing her acts were within her discretionary authority. [ECF 76, pp. 22-23]. Thus, Dr. Barban-Rodriguez has met her initial burden. See GolTV, Inc. , 277 F. Supp. 3d at 1311 n.7 (failing to respond to a defendant's argument in a motion to dismiss renders the point abandoned).

ii. Qualified Immunity: No "Clearly Established Right" to a Root Canal

Turning to Plaintiff's burden with the assumed-as-true allegations, Plaintiff again relied upon "broader principles of federal law" [ECF 76, pp. 22-23], just as he did against other Defendants in this action. This does not meet the "settled law" standard as defined by the Supreme Court. See Wesby , 138 S. Ct. at 588-90.

Moreover, and as already stated, there is no "settled law" creating a constitutional right to a root canal or otherwise forbidding an extraction merely because a root canal might work. Plaintiff is not entitled to the best treatment option, only "minimally adequate" treatment. See Johnson v. Razdan , 564 F. App'x 481, 484 (11th Cir. 2014) (citing Harris , 941 F.2d at 1504-05 ).

Further, like the other Defendants in this action, Dr. Barban-Rodriguez could have responsibly concluded an extraction was a medically adequate treatment option under existing persuasive authority.⁷ See, e.g. , Baughman v. Garcia , 254 F. Supp 3d 848, 877-78 (S.D. Tex. 2017) (extraction is medically appropriate over a root canal to remove decay); Sutherland v. St. Lawrence , Case No. CV407-096, 2009 WL 2900270, at *6 (S.D. Ga. Aug. 17, 2009), report and recommendation adopted , Case No. CV407-096, 2009 WL 2914314 (S.D. Ga. Aug. 31, 2009) (refusal to undergo an extraction characterized as a "cosmetic" dispute).

7 The Undersigned considered that Plaintiff asserted he is missing two other teeth [ECF 76, p. 27] even though factual details may not be supplanted in a response to a motion to dismiss. See, e.g. , Bruhl v. Price Waterhousecoopers Int'l , No. 03-23044-CIV-MARRA, 2007 WL 997362, at *4 (S.D. Fla. Mar. 27, 2007). Plaintiff's new allegations of missing two other teeth were framed as part of his issues with the aesthetics of missing teeth, not as exigencies that could meaningfully lessen the adequacy of extraction as a treatment option. [ECF 76, pp. 24-29].

While Plaintiff alleges that some of the prior dentists recommended a root canal, and Plaintiff preferred a root canal over extraction of his two molars, a simple difference in medical opinion between medical staff and an inmate as to the course of treatment does not support a claim of deliberate indifference. See generally Harris , 941 F.2d at 1505. Consequently, Dr. Barban-Rodriguez is entitled to qualified immunity and should be dismissed from this action.

iii. Official Capacity (Monell liability)

Dr. Barban-Rodriguez raises several grounds to support her contention that she cannot be sued in her official capacity. [ECF 65, pp. 6-11]. Dr. Barban-Rodriguez asserts Plaintiff failed to allege that she was a final policymaker capable of rendering Miami-Dade County or the Public Health Trust of Miami-Dade County liable under § 1983. [ECF 65, p. 9]. The Undersigned agrees. The Amended Complaint contained no allegations suggesting Dr. Barban-Rodriguez was a final policymaker or otherwise developed the alleged policy.

More importantly, Dr. Barban-Rodriguez explains final policymaking authority for Miami-Dade County rests with the Board of County Commissioners or the Mayor, and her medical decisions were subject to administrative review. [Id. ]. As previously mentioned, the Amended Complaint contained no allegations to support a claim that the Mayor or the Board of County Commissioners, who are the final policymakers, established an extraction-only policy or otherwise endorsed an unofficial practice or custom. In sum, Dr. Barban-Rodriguez should be dismissed in her official capacity.

B. Claims Against Dr. Piña

i. Individual Capacity

a. The 34-day Delay in Providing a Cavity-Filling Can Be Unconstitutional

Plaintiff asserted that he went to a dental appointment to receive a cavity filling from Dr. Piña on November 29, 2017. [ECF 8, p. 31]. To show that Dr. Piña had sufficient time, Plaintiff alleges that a dental assistant was told to prepare the anesthesia for the procedure. [Id. ]. Plaintiff then "complained" about not receiving a root canal for three minutes, which resulted in Dr. Piña allegedly refusing to conduct the filling procedure. [Id. ]. Plaintiff asserted that Dr. Piña stated, "because you came complaining [and] now I'm out of time." [Id. ].

Dr. Piña argued the medical need was not particularly serious and that his alleged conduct does not amount to deliberate indifference. [ECF 65, p. 14]. In support, he relied upon the following language from the Second Circuit: "the treatment of a cavity (in or out of prison) can safely be delayed by the dentist's schedule or the patient's dread or neglect." [ECF 65, p. 14] (quoting Harrison v. Barkley , 219 F.3d 132, 137 (2d Cir. 2000) (parentheticals in original)).

While accurate, Dr. Piña's reliance is misplaced. He omitted that decision's unfavorable language, which provides such delays are safe "[a]bsent intense pain or other exigency" and that a "tooth cavity is a degenerative condition" capable of generating "agony," and—if untreated long enough—could require a root canal or extraction. Harrison , 219 F.3d at 137.

In his Amended Complaint, Plaintiff alleged he endured "great pain" for "34 days" "due to" not receiving a cavity-filling on his "upper wisdom tooth." [ECF 8, p. 6]. Together, this plausibly states enough to show a serious medical need existed. See Harrison , 219 F.3d at 137.

True, Dr. Piña cited to a case finding a genuine issue of material fact on a deliberate indifference claim when an inmate waited five and a half months for refilling a cavity. [ECF 65, p. 14] (citing Williams v. Scully , 552 F. Supp. 431, 432 (S.D.N.Y. 1982) ). He argues that this delay was significantly shorter. It is factually and procedurally distinguishable from this one, which at this stage of the case, involves an outright refusal to provide a filling resulting in 34 days of "great pain." [ECF 8, pp. 6, 31].

After all, the conduct necessary to support a deliberate indifference claim must be indicative that it was "more than mere negligence," not "gross negligence." Melton v. Abston , 841 F. 3d 1207, 1223 n.2 (11th Cir. 2016). In determining whether a delay in treatment is "tolerable[, it] depends on the nature of the medical need and the reason for the delay." Farrow v. West , 320 F.3d 1235, 1247 (11th Cir. 2003) (internal citations omitted). A delay in days or hours could be deliberate indifference when the medical condition is grave. See id.

Assuming Plaintiff's allegations as true, Plaintiff's allegations permit an inference that Dr. Piña cancelled the appointment for reasons unrelated to time concerns. The 34-day delay, Dr. Piña's alleged statement, and the allegations that another dentist performed the procedure support that allegation. Thus, while Dr. Piña asks this Court to consider that appointment availability resulted in the delay,⁸ at this point in the litigation, the Court must assume Plaintiff's allegations as true and draw inferences in his favor.

8 Delays in medical treatment for non-medical reasons may also exhibit deliberate indifference. Farrow v. West , 320 F.3d 1235, 1246 (11th Cir. 2003)

Here, Plaintiff's allegations of enduring "great pain" for 34 days until he received a filling plausibly established Dr. Piña's deliberate indifference at this stage. See, e.g. , Berry v. Peterman , 604 F.3d 435, 442 (7th Cir. 2010) (two months of pain with decaying tooth survived summary judgment); Boyd v. Knox , 47 F.3d 966, 969 (8th Cir. 1995) (three weeks of dental pain survived summary judgment). See also Melton , 841 F.3d at 1223 n.2 (requiring "more than mere negligence," not "gross negligence").

Finally, Plaintiff satisfied the causation element at this stage because he claimed that he endured 34 days of "great pain" on his upper wisdom tooth, which Dr. Piña supposedly refused to treat. Because Dr. Piña did not address causation, this element is met.

b. Qualified Immunity: Discretionary Authority

Alternatively, Dr. Piña invoked qualified immunity. [ECF 65, p. 18]. In his Response in Opposition, Plaintiff did not concede that Dr. Piña met his initial burden. [ECF 76, p. 18] ("Even assuming discretionary duties are at issue...").

In attempting to meet his burden, Dr. Piña asserts "there can be no question" that he acted "within the scope of [his] discretionary authority at all times material to this action." [ECF 65, p. 18]. As Dr. Piña puts it, he was operating in his capacity as "a dentist." [Id. ].

Dr. Piña did not carry his burden. See Holloman , 370 F.3d at 1266-67. Here, Dr. Piña assertions are conclusory. He has not explained how his alleged refusal was within his discretionary authority. See, e.g. , Davenport , 906 F.3d at 940 (requiring more than "bald assertions" to meet one's initial burden). Consequently, he has not demonstrated his entitlement to qualified immunity at this stage.

c. Qualified Immunity: A "Clearly Established Right" May Apply at this Juncture

Alternatively, even assuming Dr. Piña had adequately demonstrated that he acted within his discretionary authority, Plaintiff has met his burden at the pleading stage.

To meet his burden, Plaintiff had to rely upon controlling authority or a robust consensus of persuasive authority to answer whether 34 days of pain would have alerted Dr. Piña that his conduct was unconstitutional. See Wesby , 138 S. Ct. at 588-90.

In his Response in Opposition, Plaintiff cited Harrison v. Barkley , 219 F.3d 132, 137 (2d Cir. 2000), Farrow v. West , 320 F.3d 1235, 1244-46 (11th Cir. 2003), and Mandel v. Doe , 888 F.2d 783, 788 (11th Cir. 1989). [ECF 76, pp. 16-17].

With respect to Harrison , it persuasively supports that a cavity causing "great pain" is a serious medical need at this early juncture. See Harrison , 219 F.3d at 137.

In Farrow , the Eleventh Circuit determined a delay in providing dentures despite knowing of the inmate's "pain, weight loss, bleeding gums, and soft diet" did not entitle a doctor to summary judgment See Farrow , 320 F.3d at 1246. While not directly on point, it certainly factors into Plaintiff's argument that responsible officials would not have refused to perform a cavity filling, at least where the plaintiff has alleged "great pain." See al-Kidd , 563 U.S. at 741, 131 S.Ct. 2074 (stating case need not be directly on point).

As for Mandel , which does not involve dental issues, the Eleventh Circuit stated that "knowledge of the need for medical care and intentional refusal" amounts to deliberate indifference. Mandel , 888 F.2d at 788. Given the allegations detail an outright refusal when there was allegedly sufficient time to perform a cavity filling, this language is also persuasive. See al-Kidd , 563 U.S. at 741, 131 S.Ct. 2074 (stating case need not be directly on point).

Together, at least at this stage, Plaintiff has shown Dr. Piña is not entitled to qualified immunity. Perhaps, after the parties engage in discovery or once a proper motion for summary judgment is filed, Dr. Piña may prove Plaintiff is not actually entitled to relief. For now, based on Plaintiff's allegations and the arguments raised in his Response in Opposition, the Undersigned recommends that Dr. Piña's Motion, to the extent it relates to his individual liability, be denied.

ii. Official Capacity (Monell liability)

Dr. Piña raises several arguments in support that his conduct cannot render the County liable in his official capacity. [ECF 65, pp. 9-10]. In particular, Dr. Piña asserts the Amended Complaint lacks facts capable of showing the existence of an (1) officially promulgated policy or (2) unofficial custom or practice regarding his alleged refusal to provide a filling. See Cooper , 403 F.3d at 1221 (requiring a plaintiff to show a policy, custom, or practice caused a constitutional violation). The Undersigned agrees. Additionally, Plaintiff's Response to the Motion to Dismiss does not address whether there is such a pertinent policy, custom, or practice. See GolTV, Inc. , 277 F. Supp. 3d at 1311 n.7 (failing to respond to a defendant's argument in a motion to dismiss renders the point abandoned). Therefore, Dr. Piña's Motion to Dismiss, as it relates to his official capacity, should be granted.

VII. Injunctive Relief

Plaintiff claims entitlement to two injunctions. [ECF 8, pp. 32-33]. First, Plaintiff argues the Court should compel some of the Defendants to arrange an expert to perform a root canal with crowns on his molars, identified as tooth #30 and #31. [ECF 8, p. 32].

Second, Plaintiff argues the Court should order the County to purchase "all necessary [root canal treatment] tools for all MDCR Jails" and further instruct the dentists to provide root canals "to all detainees," "employ 3 oral surgeons," and amend the Inmate Handbook so that "inmates have a right to [a] root canal[.]" [Id. pp. 33]. The Plaintiff essentially requests root canals on demand.

When ruling on a motion for temporary restraining order or other injunctive relief, the party seeking relief must demonstrate the following four factors:

(1) a substantial likelihood that he will prevail on the merits;

(2) a substantial threat that he will suffer irreparable injury if the injunction is not granted;

(3) the threatened injury outweighs the potential harm the injunction may do to the defendant; and,

(4) the public interest will not be impaired if the injunction is granted.

See, e.g. , DeYoung v. Owens , 646 F.3d 1319, 1324 (11th Cir. 2011) (addressing the denial of a TRO for stay of execution); Alabama v. U.S. Army Corps of Engineers , 424 F.3d 1117, 1128 (11th Cir. 2005) (describing the general standards for injunctive relief). Injunctions are an extraordinary and drastic remedy that should not be granted unless the movant clearly establishes the burden of persuasion as to all four prerequisites. LSSI Data Corp. v. Comcast Phone, LLC , 696 F.3d 1114, 1119 (11th Cir. 2012).

As discussed within this Report, Plaintiff's root canal claims should be dismissed based on qualified immunity and failure to state a claim. Plaintiff, therefore, cannot show a substantial likelihood of success on the merits. Plaintiff also cannot show "a substantial threat" that he will suffer irreparable injury if the requested injunctions are not granted. To eliminate any threat, Plaintiff has an adequate, available treatment option, which is an extraction. Lynch , 478 F. App'x at 618-19.

Finally, as to his requests for root canals on behalf of his fellow detainees, Plaintiff lacks standing to make this request. See, e.g. , Jacoby v. Baldwin Cty. , Case No. 12-0640-CG-N, 2014 WL 2641834, at *8 (S.D. Ala. June 13, 2014) ("To the extent Plaintiff seeks an injunction on behalf of other unnamed inmates...[they] can assert their own constitutional rights[.]"). See also Johnson v. Brown , 581 F. App'x 777, 781 (11th Cir. 2014) (explaining pro se inmates cannot represent fellow inmates in a class action). Injunctive relief should be denied. See LSSI Data Corp. , 696 F.3d at 1119 (requiring all four prerequisites).

VIII. Conclusions and Recommendations

Based on the foregoing, and after careful consideration, it is recommended that:

(1) The request for injunctive relief be DENIED ;

(2) The County's Motion [ECF 64] be GRANTED ; and

(3) Dr. Piña and Dr. Barban-Rodriguez's Motion [ECF 65] should be GRANTED IN PART AND DENIED IN PART with the following results:

(a) Dr. Barban-Rodriguez, in her individual and official capacity, should be dismissed;

(b) Dr. Piña, in his individual capacity, should not be dismissed; and

(c) Dr. Piña, in his official capacity, should be dismissed.

Plaintiff is cautioned that arguments not raised before a Magistrate Judge cannot be raised for the first time in objections to this report. See Starks v. United States , Case No. 09-22352-CV-MIDDLEBROOKS, 2010 WL 4192875 at *3 (S.D. Fla. Oct. 19, 2010). Indeed, when a party raises an argument for the first time in an objection to a Report, the Court may exercise its discretion and decline to consider the argument. Daniel v. Chase Bank USA, N.A. , 650 F. Supp. 2d 1275, 1278 (N.D. Ga. 2009) (citing Williams v. McNeil , 557 F. 3d 1287 (11th Cir. 2009) ).

Objections to this Report may be filed with the District Court within fourteen days of receipt of a copy of the report. Failure to file timely objections shall bar plaintiff from a de novo determination by the District Court Judge of an issue covered in this Report and shall bar the parties from attacking on appeal factual findings accepted or adopted by the District Court Judge except upon grounds of plain error or manifest injustice. See 28 U.S.C. § 636(b)(1) ; Thomas v. Arn , 474 U.S. 140, 149, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985) ; RTC v. Hallmark Builders, Inc. , 996 F. 2d 1144, 1149 (11th Cir. 1993).

Signed this 24th day of July, 2019