USCA11 Case: 20-13694 Document: 61-1 Date Filed: 01/09/2023 Page: 1 of 24
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-13694
Non-Argument Calendar
____________________
NYKA TASSIANT O'CONNOR,
Plaintiff-Appellant,
versus
RMC, et al.
Defendants,
DR. SHAH,
JULIE JONES,
in her individual capacity,
SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,
USCA11 Case: 20-13694 Document: 61-1 Date Filed: 01/09/2023 Page: 2 of 24
2 Opinion of the Court 20-13694
Defendants-Appellees.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 3:15-cv-01387-TJC-JBT
____________________
Before LUCK, LAGOA, and ANDERSON, Circuit Judges.
PER CURIAM:
Nyka O’Connor, a Florida prisoner, filed a civil rights com-
plaint against the Reception and Medical Center, then-Secretary of
the Florida Department of Corrections Julie Jones, and two physi-
cians at the Reception and Medical Center: Dr. Osvaldo Contarini,
and Dr. Guarang Shah. O’Connor alleged that the Reception and
Medical Center, Secretary Jones, Dr. Contarini, and Dr. Shah were
deliberately indifferent to his serious medical needs; violated his
rights under the First Amendment, the Florida Constitution, the
Religious Land Use and Institutionalized Persons Act, the Ameri-
cans with Disabilities Act, and the Rehabilitation Act; and breached
their contractual duties to provide him with adequate care. The
district court dismissed without prejudice O’Connor’s claims
against the Reception and Medical Center for failure to state a
claim, dismissed with prejudice O’Connor’s claims against Secre-
tary Jones for failure to state a claim and on sovereign immunity
USCA11 Case: 20-13694 Document: 61-1 Date Filed: 01/09/2023 Page: 3 of 24
20-13694 Opinion of the Court 3
grounds, granted summary judgment for Dr. Contarini and Dr.
Shah, and denied O’Connor’s motions for summary judgment
against Dr. Contarini and Dr. Shah. We affirm.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
The Complaint
In his complaint, O’Connor alleged that he attempted sui-
cide in January 2010 by swallowing, among other “foreign bodies,”
a paperclip. In April, O’Connor saw Dr. Shah at the Reception and
Medical Center, and Dr. Shah “ordered O’Connor to be sent to
Jacksonville Memorial Hosp[ital] immediately” because “Dr. Shah
feared that the swallowed paperclip . . . [was] piercing and cutting
O’Connor’s inside [and] would kill O’Connor.” Dr. Shah per-
formed an endoscopy and colonoscopy and told O’Connor that the
paperclip was “stuck inside O’Connor” and that “Dr. Contarini
would have to do a more invasive surgery.”
In June, Dr. Contarini performed an “invasive” “gastro-sur-
gery” and removed the paperclip. Since the surgery, O’Connor
“has been experiencing severe gastro pains and cramps,” acid re-
flux, and constipation. O’Connor requested “adequate med[ica-
tions]” for his “pain, cramps, acid reflux, [and] heartburns” but the
Florida Department of Corrections, the Reception and Medical
Center, Dr. Contarini, and Dr. Shah denied O’Connor’s requests
for medications. O’Connor also requested an “adequate diet” that
did not include “beans” or “fatty foods that contribute[] to upset
stomach and gallstones.” But the Florida Department of
USCA11 Case: 20-13694 Document: 61-1 Date Filed: 01/09/2023 Page: 4 of 24
4 Opinion of the Court 20-13694
Corrections, the Reception and Medical Center, Dr. Contarini, and
Dr. Shah denied O’Connor’s dietary requests.
O’Connor also alleged that he holds “sincere Jewish [and]
Siddha beliefs” and that his “religion allows fruits[,] vegetables,
milk, cereal, peanut butter, bread, etc.” O’Connor’s religion pro-
hibits “certain foods,” including “fish, eggs, meat [and] cheese.”
But Dr. Contarini and Dr. Shah did “not recommend[] and/or pre-
scribe[] O’Connor a non-standard therapeutic diet for [his] . . . reli-
gion” and the Florida Department of Corrections and the Recep-
tion Medical Center denied his request for a diet that conformed to
his religious beliefs.
In March 2015, a different physician—“Dr. Quinones”—di-
agnosed O’Connor with “gallstones from fatty foods.” Because of
O’Connor’s “gastro issues,” Dr. Quinones “prescribed . . . a [l]ow
[r]esidue [d]iet . . . , which serves meat, eggs, fatty foods, inade-
quate calories [and] no supplements.” Dr. Quinones referred
O’Connor to Dr. Contarini to remove the gallstones.
O’Connor saw Dr. Contarini at the Reception and Medical
Center in May, June, July, and August 2015. During the May visit,
Dr. Contarini diagnosed O’Connor with appendicitis, recom-
mended another ultrasound “to verify gallstones,” and referred
O’Connor to Dr. Shah for another “endoscopy [and]/or colonos-
copy.” During the June visit, O’Connor told Dr. Contarini that he
hadn’t yet had an ultrasound, endoscopy, or colonoscopy, so Dr.
Contarini wrote another prescription for the procedures. Also dur-
ing the June visit, Dr. Contarini denied O’Connor’s request for “a
USCA11 Case: 20-13694 Document: 61-1 Date Filed: 01/09/2023 Page: 5 of 24
20-13694 Opinion of the Court 5
non-standard [t]herapeutic [d]iet for his health [and] religion” and
instead “simply advised O’Connor to stay away from fatty foods”
and to “just eat what he could.” A week after his June visit with
Dr. Contarini, prison medical staff performed an ultrasound.
During the July visit, O’Connor “complained to Dr. Con-
tarini . . . about his worsening gastro pain, cramps, acid reflux,
bloody stool, inadequate diet, etc.,” but Dr. Contarini “disregarded
O’Connor’s complaints [and] didn’t remedy [them].” And during
the August visit, Dr. Contarini “advised O’Connor it would be a
while before [O’Connor would] see[] Dr. Shah to do [the] endos-
copy [and] colonoscopy” and that O’Connor’s “gastro” problems
would worsen in the meantime. O’Connor “advised Dr. Contarini
to do [a] less intrusive gallstone removal,” but Dr. Contarini re-
fused.
In September, O’Connor saw Dr. Shah at the Reception and
Medical Center. By then, O’Connor had “bloody stool, sharp pains
[and] cramps from [his] stomach to [his] anus.” Dr. Shah told
O’Connor that “he was suffering from the surgical scar from 2010”
and “was constipated,” prescribed lactulose, and ordered a “hydas-
can” and a colonoscopy. 1 O’Connor requested a “non-standard
1
“Hydascan” appears to be a misspelling of “HIDA scan,” which is a hepato-
biliary iminodiacetic acid scan. See HIDA scan, Mayo Clinic,
https://www.mayoclinic.org/tests-procedures/hida-scan/about/pac-
20384701.
USCA11 Case: 20-13694 Document: 61-1 Date Filed: 01/09/2023 Page: 6 of 24
6 Opinion of the Court 20-13694
diet for his [h]ealth and [r]eligion,” but Dr. Shah refused O’Con-
nor’s request.
Despite Dr. Contarini and Dr. Shah’s orders, no HIDA scan
or colonoscopy was performed. In October, O’Connor saw Dr.
Shah at the Reception and Medical Center; told Dr. Shah that he
still hadn’t had a HIDA scan or colonoscopy; and “continued to
complain about his stomach pains, cramps[,] bloody stool, acid re-
flux, inadequate diet, [and] delaying inquiries.” Dr. Shah again pre-
scribed lactulose, which caused O’Connor to have “stomach/gas-
tro pains, cramps, pass gas, [and a] bubbling upset stomach.”
Along with his gastrointestinal problems, O’Connor alleged
that he has a “shoulder injury.” O’Connor’s shoulder injury causes
“pain, numbing[,] and tingly sensation[s]” while he sleeps and
while he is “handcuffed in the rear.” The shoulder injury also pre-
vents him from “lift[ing] heavy objects.” O’Connor requested a
“heavy lifting pass,” a “frontcuff pass,” and “side restraints” to ac-
commodate his shoulder injury, but the Florida Department of
Corrections and the Reception and Medical Center refused his re-
quests.
O’Connor sued in November 2015. He alleged that the Re-
ception and Medical Center, Dr. Contarini, and Dr. Shah were de-
liberately indifferent to his serious medical needs, including his gall-
stones, appendicitis, and “ongoing gastro issues,” in violation of the
Eighth Amendment and the Florida Constitution, and that Secre-
tary Jones “ha[d] a practice, custom, policy to subject inmates to
unnecessary delay to provide adequate care for serious needs.” He
USCA11 Case: 20-13694 Document: 61-1 Date Filed: 01/09/2023 Page: 7 of 24
20-13694 Opinion of the Court 7
alleged that the Reception and Medical Center and Secretary Jones
violated the Americans with Disabilities Act and the Rehabilitation
Act by failing to accommodate his “gastro disabilities” and “inter-
relate[d] . . . mental disabilities [and] shoulder disabilities.” He al-
leged that the Reception and Medical Center, Secretary Jones, Dr.
Contarini, and Dr. Shah violated the First Amendment, the Florida
Constitution, and the Religious Land Use and Institutionalized Per-
sons Act by not providing a “non-standard [d]iet for [h]ealth [and]
[r]eligion.” And he alleged that the Reception and Medical Center,
Secretary Jones, Dr. Contarini, and Dr. Shah breached their con-
tractual duties “to provide O’Connor adequate care.”
The District Court Dismissed O’Connor’s Claims Against the Re-
ception and Medical Center
The district court screened the complaint under the Prison
Litigation Reform Act and found that it failed to state a claim upon
which relief could be granted against the Reception and Medical
Center. O’Connor failed to state a claim against the Reception and
Medical Center, the district court explained, because “[p]enal facil-
ities are not persons subject to liability under 42 U.S.C. [sec-
tion] 1983.” 2 The district court therefore dismissed without
2
O’Connor’s complaint did not mention section 1983. But it is clear from
O’Connor’s allegations that he brought his federal constitutional claims under
section 1983, and O’Connor was not required “to invoke [section] 1983 ex-
pressly in order to state a claim.” See Johnson v. City of Shelby,
574 U.S. 10,
11 (2014). So we refer to O’Connor’s Eighth Amendment deliberate
USCA11 Case: 20-13694 Document: 61-1 Date Filed: 01/09/2023 Page: 8 of 24
8 Opinion of the Court 20-13694
prejudice all of O’Connor’s claims against the Reception and Med-
ical Center.
O’Connor moved to reinstate the Reception and Medical
Center as a defendant or to substitute the warden of the Reception
and Medical Center in its place. O’Connor maintained that he
could properly assert his Religious Land Use and Institutionalized
Persons Act, Americans with Disabilities Act, and Rehabilitation
Act claims against the Reception and Medical Center. And O’Con-
nor argued that he could assert his breach of contract claim against
the warden of the Reception and Medical Center in the warden’s
official capacity.
The district court construed O’Connor’s motion “as a mo-
tion for reconsideration” and denied it. The district court explained
that “[i]f [O’Connor] s[ought] to add a new defendant, he should
file an appropriate request to amend” his complaint.
But rather than move to amend his complaint to add a new
defendant, O’Connor filed a second motion to “re-instate [the Re-
ception and Medical Center] as [a] defendant.” He again argued
that the Reception and Medical Center “should be a defendant for
the purposes of [his Americans with Disabilities Act and Rehabili-
tation Act] claims” and for his “[b]reach of [c]ontract claims.”
indifference claim as his “section 1983 deliberate indifference claim” and his
First Amendment claim as his “section 1983 free exercise claim.”
USCA11 Case: 20-13694 Document: 61-1 Date Filed: 01/09/2023 Page: 9 of 24
20-13694 Opinion of the Court 9
The district court denied O’Connor’s second motion to re-
instate the Reception and Medical Center as a defendant.
The District Court Dismissed O’Connor’s Claims Against Secre-
tary Jones
The district court dismissed with prejudice O’Connor’s
claims against Secretary Jones. The district court dismissed for fail-
ure to state a claim all of O’Connor’s claims against Secretary Jones
that were based on “what occurred during his 2010 surgery or his
immediate post-surgery medical care” because Secretary Jones was
not appointed as the Secretary of the Florida Department of Cor-
rections until January 2015.
As to O’Connor’s section 1983 deliberate indifference claim,
the district court dismissed O’Connor’s claim with respect to the
delay of his gallbladder surgery because he “ha[d] not alleged suffi-
cient factual matter to even infer a causal connection between any
action or inaction of [Secretary] Jones and a violation of [his]
rights.” And the district court dismissed O’Connor’s section 1983
deliberate indifference claim with respect to his diet because he
“fail[ed] to allege a causal connection between [Secretary] Jones
and any alleged violation of his federally-protected rights” and
“d[id] not allege sufficient factual matter to infer that a[ Florida De-
partment of Corrections] policy, custom or practice . . . violate[d]
his rights.”
The district court dismissed for failure to state a claim
O’Connor’s Americans with Disabilities Act and Rehabilitation Act
USCA11 Case: 20-13694 Document: 61-1 Date Filed: 01/09/2023 Page: 10 of 24
10 Opinion of the Court 20-13694
claims against Secretary Jones in her individual capacity because
“only public entities may be liable under the [Americans with Dis-
abilities Act] and [Rehabilitation Act].” And O’Connor failed to
state an Americans with Disabilities Act claim or a Rehabilitation
Act claim against Secretary Jones in her official capacity, the district
court concluded, because O’Connor did not plausibly allege that
he “was discriminated against on the basis of some disability” but
“bas[ed] his claims on his perceived lack of adequate medical care.”
The district court dismissed for failure to state a claim
O’Connor’s Religious Land Use and Institutionalized Persons Act
claim against Secretary Jones based on his diet because he “fail[ed]
to allege a causal connection between [Secretary] Jones and any al-
leged violation of his federally-protected rights” and “d[id] not al-
lege sufficient factual matter to infer that a[ Florida Department of
Corrections’] policy, custom, or practice substantially burden[ed]
the exercise of his religion.”
The district court dismissed for failure to state a claim
O’Connor’s breach of contract claims against Secretary Jones be-
cause “his allegations [were] wholly deficient.” The district court
also dismissed O’Connor’s claims against Secretary Jones “to the
extent he was suing [her] in her official capacity under [sec-
tion] 1983 for monetary damages” because the claims were barred
by Florida’s sovereign immunity. And the district court “f[ound]
that any amendment [of O’Connor’s claims against Secretary
Jones] would be futile.”
USCA11 Case: 20-13694 Document: 61-1 Date Filed: 01/09/2023 Page: 11 of 24
20-13694 Opinion of the Court 11
The District Court Granted Summary Judgment for Dr. Contarini
The district court granted summary judgment for Dr. Con-
tarini on each of O’Connor’s claims. The district court granted
summary judgment on O’Connor’s section 1983 deliberate indif-
ference claim against Dr. Contarini because the claim was “un-
founded and refuted by [O’Connor’s] medical records.” Dr. Con-
tarini wasn’t deliberately indifferent to O’Connor’s serious medical
needs, the district court explained, because Dr. Contarini “pro-
vided [O’Connor] with medical treatment including examinations,
testing, and referrals” and Dr. Contarini’s refusal to “perform or
recommend the ‘less invasive’ [surgery] option that [O’Connor] re-
quested d[id] not render [Dr.] Contarini deliberately indifferent.”
The district court determined that Dr. Contarini wasn’t deliber-
ately indifferent to O’Connor’s appendicitis because “[O’Connor]’s
medical records and [Dr.] Contarini’s affidavit reflect[ed] that
[O’Connor] was never diagnosed with appendicitis.” Dr. Con-
tarini’s failure to recommend O’Connor’s requested diet wasn’t de-
liberately indifferent, the district court concluded, because O’Con-
nor’s medical records showed that Dr. Contarini “recommend a
‘low fat’ diet based on [O’Connor’s] medical presentation” and
“[O’Connor]’s disagreement with [Dr.] Contarini’s recommenda-
tion d[id] not amount to a constitutional violation.” And, the dis-
trict court concluded, O’Connor’s medical records “support[ed] a
finding that [Dr.] Contarini’s failure to provide [O’Connor] with
USCA11 Case: 20-13694 Document: 61-1 Date Filed: 01/09/2023 Page: 12 of 24
12 Opinion of the Court 20-13694
pain or other medications based on his medical presentation [was]
not deliberate indifference.”
The district court granted summary judgment for Dr. Con-
tarini on O’Connor’s Religious Land Use and Institutionalized Per-
sons Act claim because Dr. Contarini “could not prescribe the ‘re-
ligious diet’ [O’Connor] requested because that [was] determined
at the institutional level and [Dr.] Contarini was not employed by
the [Florida Department of Corrections].” And, on O’Connor’s
breach of contract claim, the district court granted summary judg-
ment for Dr. Contarini because O’Connor’s “allegations [were]
wholly insufficient.”
Because the district court granted summary judgment for
Dr. Contarini on all of O’Connor’s claims against him, the district
court denied O’Connor’s cross-motion for summary judgment.
The District Court Granted Summary Judgment for Dr. Shah
The district court granted summary judgment for Dr. Shah
on each of O’Connor’s claims. The district court granted summary
judgment for Dr. Shah on O’Connor’s section 1983 deliberate in-
difference claim because the summary judgment record showed
that “[Dr.] Shah ordered a HIDA scan and colonoscopy, and he pro-
vided [O’Connor] with lactulose and then recused himself from
[O’Connor]’s care when [O’Connor] sued him.” “Whether to refer
[O’Connor] for different tests or provide a different mode of treat-
ment,” the district court explained, “[was] a matter of medical judg-
ment that d[id] not amount to deliberate indifference.” And
USCA11 Case: 20-13694 Document: 61-1 Date Filed: 01/09/2023 Page: 13 of 24
20-13694 Opinion of the Court 13
“[O’Connor]’s disagreement with [Dr. Shah]’s course of treatment
d[id] not support a deliberate indifference claim.”
The district court granted summary judgment for Dr. Shah
on O’Connor’s Religious Land Use and Institutionalized Persons
Act claim for two reasons. First, the district court reasoned that,
because O’Connor “failed to state a claim regarding a custom, pol-
icy[,] or practice against [Secretary] Jones” with respect to his diet,
it necessarily followed that O’Connor “failed to state a claim that
that [Dr.] Shah upheld or ‘professed’ such a custom, policy, or prac-
tice.” Second, “the evidence d[id] not support [O’Connor]’s claim
that [Dr.] Shah violated his religion by not providing him with the
requested diet” because Dr. Shah “did not have authority to pre-
scribe it.”
Finally, the district court granted summary judgment for Dr.
Shah on O’Connor’s breach of contract claim because it was “defi-
cient.” And because the district court granted summary judgment
for Dr. Shah on all of O’Connor’s claims against him, the district
court denied O’Connor’s cross-motion for summary judgment.
The district court entered judgment: (1) dismissing without
prejudice O’Connor’s claims against the Reception and Medical
Center; (2) dismissing with prejudice “all claims” against Secretary
Jones; and (3) granting summary judgment for Dr. Contarini and
Dr. Shah. O’Connor appeals the district court’s judgment.
USCA11 Case: 20-13694 Document: 61-1 Date Filed: 01/09/2023 Page: 14 of 24
14 Opinion of the Court 20-13694
STANDARD OF REVIEW
We review the district court’s dismissal for failure to state a
claim and summary judgment de novo. Sun Life Assurance Co. of
Can. v. Imperial Premium Fin., LLC,
904 F.3d 1197, 1207 (11th Cir.
2018). To state a claim, a “complaint must include allegations plau-
sibly suggesting (not merely consistent with) the plaintiff’s entitle-
ment to relief.”
Id. (quotation omitted). We “accept all facts in the
complaint as true and view those facts in the light most favorable
to the plaintiff.”
Id. “However, conclusory allegations, unwar-
ranted factual deductions or legal conclusions masquerading as
facts will not prevent dismissal.” Taylor v. Polhill,
964 F.3d 975,
981 (11th Cir. 2020) (quotation omitted). We also review de novo
a district court’s conclusion that amendment would be futile.
Chang v. JPMorgan Chase Bank, N.A.,
845 F.3d 1087, 1093–94
(11th Cir. 2017).
For summary judgment, “the movant must demonstrate
that there is no genuine dispute as to any material fact and that it is
entitled to judgment as a matter of law.” Sun Life, 904 F.3d at 1207
(alterations adopted and quotation omitted). In reviewing the rec-
ord, we “view the submitted evidence in the light most favorable
to the non-moving party.” Id. (quotation omitted).
“We review dismissal under [section] 1915(e)(2)(B)(ii)
de novo and view the allegations in the complaint as true.” Alba v.
Montford,
517 F.3d 1249, 1252 (11th Cir. 2008). “The standards
governing dismissals under [r]ule 12(b)(6) apply to
USCA11 Case: 20-13694 Document: 61-1 Date Filed: 01/09/2023 Page: 15 of 24
20-13694 Opinion of the Court 15
[section] 1915(e)(2)(B)(ii).”
Id. “Finally, pro se pleadings are held
to a less strict standard than pleadings filed by lawyers and thus are
construed liberally.”
Id. (emphasis omitted).
DISCUSSION
O’Connor argues that the district court erred in dismissing
his claims against the Reception and Medical Center and Secretary
Jones, granting summary judgment for Dr. Contarini, denying his
cross-motion for summary judgment against Dr. Contarini, grant-
ing summary judgment for Dr. Shah, and denying his cross-motion
for summary judgment against Dr. Shah. The defendants urge us
to affirm across the board. And we do.
We first explain why the district court did not err in dismiss-
ing O’Connor’s claims against the Reception and Medical Center.
Next, we explain why the district court did not err in dismissing
O’Connor’s breach of contract claim against Secretary Jones and
why O’Connor has abandoned any challenge to the district court’s
dismissal of his other claims against Secretary Jones. 3 We then
3
Secretary Jones asserts that we lack jurisdiction to consider O’Connor’s ap-
peal of the district court’s orders dismissing the claims against her and the Re-
ception Medical Center because O’Connor’s notice of appeal “fail[ed] to spec-
ify the orders to be appealed” and “only specifically referenced” the district
court’s order granting summary judgment for Dr. Shah. Secretary Jones is
incorrect. O’Connor’s notice of appeal states that he “appeals the final judg-
ment.” The district court’s non-final orders dismissing O’Connor’s claims
against the Reception and Medical Center and the Secretary “merged into the
judgment and [are] subject to review on appeal.” See Akin v. PAFEC Ltd.,
991
F.2d 1550, 1563 (11th Cir. 1991) (“When a district court enters a final
USCA11 Case: 20-13694 Document: 61-1 Date Filed: 01/09/2023 Page: 16 of 24
16 Opinion of the Court 20-13694
explain why the district court did not err in granting summary
judgment on O’Connor’s breach of contract claim against Dr. Con-
tarini and Dr. Shah and why O’Connor has abandoned any chal-
lenge to the district court’s summary judgment for Dr. Contarini
and Dr. Shah on his other claims against them.
The District Court’s Dismissal of O’Connor’s Claims Against the
Reception and Medical Center
The district court screened O’Connor’s complaint under the
Prison Litigation and Reform Act, concluded that the Reception
and Medical Center was not subject to liability under section 1983,
and dismissed for failure to state a claim all of O’Connor’s claims
against the Reception and Medical Center. We affirm the district
court’s dismissal of each of O’Connor’s claims against the Recep-
tion and Medical Center.
The district court didn’t err in concluding that O’Connor’s
section 1983 deliberate indifference claim against the Reception
and Medical Center failed to state a claim. Whether a party has the
capacity to be sued is “determined by the law of the state in which
the district court is held.” Dean v. Barber,
951 F.2d 1210, 1214 (11th
Cir. 1992); see Fed. R. Civ. P. 17(b). Under Florida law, the
judgment, ‘all prior non-final orders and rulings which produced the judg-
ment’ are merged into the judgment and subject to review on appeal.”). In
other words, “[b]ecause [O’Connor] appeals a final judgment, jurisdiction ex-
ists under [28 U.S.C. section] 1291 regardless of whether the substance of
[O’Connor]’s appeal concerns an interlocutory order.” See OFS Fitel, LLC v.
Epstein, Becker & Green, P.C.,
549 F.3d 1344, 1356 (11th Cir. 2008).
USCA11 Case: 20-13694 Document: 61-1 Date Filed: 01/09/2023 Page: 17 of 24
20-13694 Opinion of the Court 17
Reception and Medical Center does not have an independent cor-
porate existence. Instead, it is part of the state correctional system
operated by the Florida Department of Corrections. See
Fla. Stat.
§ 944.02(2) (defining “[c]orrectional system” as “all prisons and
other state correctional institutions now existing or hereafter cre-
ated under the jurisdiction of the Department of Corrections”). Be-
cause the Reception and Medical Center is part of the Florida De-
partment of Corrections, it does not have the capacity to be sued.
See Maldonado v. Baker Cnty. Sheriff’s Office,
513 F. Supp. 3d
1339, 1348 (M.D. Fla. 2021) (“[A] sheriff’s office, jail, or detention
center is not an entity subject to suit under Florida law.”). The
district court therefore properly dismissed O’Connor’s sec-
tion 1983 deliberate indifference claim and his section 1983 free ex-
ercise claim against the Reception and Medical Center.
Although the district court did not explain its dismissal of
O’Connor’s non-section 1983 claims against the Reception and
Medical Center, “we may affirm on any ground supported by the
record, regardless of whether that ground was relied upon or even
considered below.” Aaron Priv. Clinic Mgmt. LLC v. Berry,
912
F.3d 1330, 1335 (11th Cir. 2019) (alteration adopted and quotation
omitted). The district court did not err by dismissing O’Connor’s
Americans with Disabilities Act, Rehabilitation Act, Religious Land
Use and Institutionalized Persons Act, breach of contract, and Flor-
ida Constitutional claims against the Reception and Medical Center
because the Reception and Medical Center does not have capacity
USCA11 Case: 20-13694 Document: 61-1 Date Filed: 01/09/2023 Page: 18 of 24
18 Opinion of the Court 20-13694
to be sued under Florida law. See Fed. R. Civ. P. 17(b)(3); Maldo-
nado, 513 F. Supp. 3d at 1348.
O’Connor argues that the district court erred by “fail[ing] to
allow [him] to amend his complaint to substitute” the warden of
the Reception and Medical Center as a defendant. O’Connor is
right that “[o]ur cases make clear that a pro se plaintiff must be
given at least one chance to amend the complaint before the district
court dismisses the action with prejudice.” Silberman v. Miami
Dade Transit,
927 F.3d 1123, 1132 (11th Cir. 2019) (cleaned up).
But “[t]he problem for [O’Connor] is that the district court did give
him the opportunity to amend his complaint, which—whether
willfully or otherwise—he squandered by refusing to do so.” See
id.
In denying O’Connor’s first motion for reconsideration of
the district court’s order dismissing the Reception and Medical
Center as a defendant, the district court advised O’Connor that “[i]f
[he] s[ought] to add a new defendant, he should file an appropriate
request to amend.” But O’Connor never moved for leave to
amend his complaint and instead filed a second motion for recon-
sideration. We therefore affirm the district court’s dismissal of
O’Connor’s claims against the Reception and Medical Center be-
cause his choice to file a second motion for reconsideration instead
of a motion for leave to amend his complaint “indicated that he
d[id] not wish to amend his complaint.” See id. at 1133 (“[A]mend-
ment is not warranted . . . where the plaintiff has indicated that he
does not wish to amend his complaint.” (cleaned up)).
USCA11 Case: 20-13694 Document: 61-1 Date Filed: 01/09/2023 Page: 19 of 24
20-13694 Opinion of the Court 19
The District Court’s Dismissal of O’Connor’s Claims Against Sec-
retary Jones
Except for his breach of contract claim, O’Connor’s opening
brief does not explain why the district court erred in dismissing his
claims against Secretary Jones. Rather, O’Connor lists two pages
of conclusory assertions, including that his claims “were all plausi-
ble” and “cognizable” and “should have proceeded beyond a
[m]otion to [d]ismiss.” He also asserts that the district court “failed
to abide by established precedents” without explaining which prec-
edents by which the district court “failed to abide.” “While we read
briefs filed by pro se litigants liberally, issues not briefed on appeal
by a pro se litigant are deemed abandoned.” Timson v. Sampson,
518 F.3d 870, 874 (11th Cir. 2008) (citations and emphasis omitted).
Even reading O’Connor’s brief liberally, he “makes no argument
and cites no authorities to support [his] conclusory assertions”
about why the district court erred in dismissing his non-contract
claims against Secretary Jones. See Sapuppo v. Allstate Floridian
Ins. Co.,
739 F.3d 678, 682 (11th Cir. 2014) (holding that appellants
abandoned an argument where their opening brief made only
“conclusory assertions that [the appellants] ha[d] made four claims
that [were] ‘actionable’” and where “[t]he brief ma[de] no argu-
ment and cite[d] no authorities to support those conclusory asser-
tions”); Gulisano v. Burlington, Inc.,
34 F.4th 935, 945 (11th Cir.
2022) (concluding that a pro se appellant abandoned his challenge
to a district court’s order because “[h]e failed to support the claim
with arguments and citations to authority”).
USCA11 Case: 20-13694 Document: 61-1 Date Filed: 01/09/2023 Page: 20 of 24
20 Opinion of the Court 20-13694
As to his breach of contract claim, O’Connor argues that the
district court erred because the lack of a “written contract” doesn’t
mean that “there’s no breach of contract claim” and because he
“outlined the 3-prongs of a contract law claim.” Under Florida law,
“[t]he elements of a breach of contract action are: (1) a valid con-
tract; (2) a material breach; and (3) damages.” Abbott Lab’ys, Inc.
v. Gen. Elec. Cap.,
765 So. 2d 737, 740 (Fla. Dist. Ct. App. 2000).
To allege the existence of a valid contract, O’Connor had to allege
“offer, acceptance, consideration, and sufficient specification of es-
sential terms.” Pier 1 Cruise Experts v. Revelex Corp.,
929 F.3d
1334, 1347 (11th Cir. 2019) (alteration omitted) (quoting St. Joe
Corp. v. McIver,
875 So. 2d 375, 381 (Fla. 2004)).
O’Connor didn’t allege the existence of a “valid contract.”
He alleged that Secretary Jones “entered into a contract to provide
O’Connor adequate care, custody, control[,] and confinement”
when she “accepted” the state sentencing court’s “offer[]” of “a
warrant of commitment to keep O’Connor ‘safely’” and that she
“breached [her] contract” by “denying [him] adequate diet, gastro,
[and] shoulder care for serious medical needs [and] not accommo-
dating[]” him. But there was no “contract” between Secretary
Jones and the state sentencing court: Florida law mandates that
“[e]ach prisoner sentenced to the state penitentiary shall be com-
mitted by the court to the custody of the department.”
Fla. Stat.
§ 944.17(1) (emphasis added). Secretary Jones’s “performance of a
pre-existing duty”—taking custody of O’Connor after he was sen-
tenced—“does not amount to the consideration necessary to
USCA11 Case: 20-13694 Document: 61-1 Date Filed: 01/09/2023 Page: 21 of 24
20-13694 Opinion of the Court 21
support a contract.” See Slattery v. Wells Fargo Armored Serv.
Corp.,
366 So. 2d 157, 159 (Fla. Dist. Ct. App. 1979); Schneir v.
State,
43 So. 3d 135, 137–38 (Fla. Dist. Ct. App. 2010) (“It is well
settled that a promise to perform what one is already required to
do by an existing contract or otherwise is not valid consideration.”).
Finally, O’Connor argues that the district court erred by not
granting him leave to amend his complaint because he had a “right
to amend” under Federal Rule of Civil Procedure 15 and Foman v.
Davis,
371 U.S. 178 (1962). But while “leave to amend shall be
freely given when justice so requires,” Foman,
371 U.S. at 182 (quo-
tation omitted), “amendment is not warranted . . . where further
amendment would be futile,” Silberman,
927 F.3d 1123, 1133 (11th
Cir. 2019). The district court determined that any amendment of
O’Connor’s claims against Secretary Jones would have been futile,
but O’Connor doesn’t challenge the district court’s ruling on futil-
ity or show how “a more carefully drafted complaint might state a
claim.” See id. at 1132. He has thus abandoned any argument that
the district court erred by denying him leave to amend. See
Sapuppo, 739 F.3d at 681 (explaining that a party abandons an ar-
gument where he “do[es] not devote even a small part of [his]
opening brief to arguing the merits of the district court’s . . . hold-
ings”). We therefore affirm the district court’s dismissal of O’Con-
nor’s claims against Secretary Jones.
USCA11 Case: 20-13694 Document: 61-1 Date Filed: 01/09/2023 Page: 22 of 24
22 Opinion of the Court 20-13694
The District Court’s Summary Judgment for Dr. Contarini and
Dr. Shah
O’Connor’s opening brief also fails to explain why the dis-
trict court erred in granting summary judgment for Dr. Contarini
and Dr. Shah on his non-contract claims. 4 O’Connor asserts that
he “presented genuine issues of material facts in dispute” through
“[a]ffidavits/[d]eclarations, various exhibits, grievances, etc.” and
that the district court “contraven[ed] stare decisis” by “t[aking]
[Dr.] Contarini’s [and Dr. Shah’s] words as the gospel[] over
O’Connor’s words.” But “[c]onclusory allegations and speculation
are insufficient to create a genuine issue of material fact,” Valder-
rama v. Rousseau,
780 F.3d 1108, 1112 (11th Cir. 2015), and O’Con-
nor does not point us to a single genuine issue of material fact. “Ap-
parently, he would like for us to dig through the record in an effort
to turn up facts that might make his case for him. But that is his
job, not ours.” Coleman v. Hillsborough County,
41 F.4th 1319,
1328 (11th Cir. 2022); see Brown v. Crawford,
906 F.2d 667, 670
(11th Cir. 1990) (“[W]e hold that a pro se litigant does not escape
the essential burden under summary judgment standards of estab-
lishing that there is a genuine issue as to a fact material to his case
in order to avert summary judgment.”). Thus, O’Connor has aban-
doned any argument that the record evidence creates a genuine is-
sue of material fact on his non-contract claims. See Sapuppo, 739
4
“[W]e do not address arguments raised for the first time in a pro se litigant’s
reply brief.” Timson,
518 F.3d at 874 (emphasis omitted).
USCA11 Case: 20-13694 Document: 61-1 Date Filed: 01/09/2023 Page: 23 of 24
20-13694 Opinion of the Court
23
F.3d 680 (“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.”).
On his breach of contract claims against Dr. Contarini and
Dr. Shah, O’Connor argues that he showed the existence of a valid
contract based on Dr. Contarini’s and Dr. Shah’s “Hippocratic
oath[s]” 5 and “the parameters of their license[s].” But O’Connor
doesn’t cite, and we haven’t found, any authority to support the
argument that the Hippocratic Oath or a medical license creates an
implied contract between a doctor and a patient for the provision
of the patients’ preferred medical treatment. To the contrary,
courts have held that there is no such implied contractual duty.
See, e.g., Gahl ex rel. Zingsheim v. Aurora Health Care, Inc.,
977
N.W.2d 756, 772 (Wis. Ct. App. 2022) (“No Wisconsin court has
held that the Hippocratic Oath creates an implied contract between
a doctor and a patient in this context . . . .”); Tex. Health Huguley,
Inc. v. Jones,
637 S.W.3d 202, 222–23 (Tex. Ct. App. 2021) (explain-
ing that “[a]lthough a doctor does owe his patient an implied duty
to ‘do no harm,’ this is merely an oversimplified way of referring
to the implied doctor-patient contract” and does not “mandate[]
the use of” particular treatments); Shah v. Intermountain
314 P.3d 10The Hippocratic Oath is “[a]n oath taken by physicians usually on
receiving the doctoral degree, whereby they promise to observe ethical prin-
ciples in the practice of medicine.” Hippocratic Oath, Stedman’s Medical Dic-
tionary (Nov. 2014).
USCA11 Case: 20-13694 Document: 61-1 Date Filed: 01/09/2023 Page: 24 of 24
24 Opinion of the Court 20-13694
Healthcare, Inc.,
314 P.3d 1079, 1087 (Utah Ct. App. 2013) (“To the
extent that the [plaintiffs’] claims allege that the [d]efendants
breached their contractual obligations to [the patient] ‘by failing to
provide professional health care services in accordance with gener-
ally accepted standards of professionalism and good faith,’ we
agree with the [d]efendants that the proposed amendment is
simply an effort to clothe the negligence claims in contractual lan-
guage.”).
We therefore affirm the district court’s summary judgment
for Dr. Contarini and Dr. Shah and the district court’s denial of
summary judgment for O’Connor on his claims against them.
AFFIRMED.
