Criner v. Hernandez et al
Filing
120
OPINION AND ORDER granting 106 Motion for summary judgment. The Clerk shall enter judgment accordingly, terminate all deadlines and motions (including the Final Pretrial Conference), and close the file. Signed by Judge John E. Steele on 9/12/2013. (MAB)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
JANE WRIGHT, Conservator for VERNON
CRINER,
Plaintiff,
vs.
Case No.
2:10-cv-336-FtM-29DNF
JOSE
HERNANDEZ,
PRISON
HEALTH
SERVICES, and INDIANA CRUZ
Defendants.
___________________________________
OPINION AND ORDER
This
matter
comes
before
the
Court
on
Defendants
Jose
Hernandez, Indiana Cruz, M.D., and Prison Health Services, Inc.’s
Motion for Summary Judgment (Doc. #106) filed on May 3, 2013.
Plaintiff filed a Response to Defendants’ Motion for Summary
Judgment
and
Brief
in
Support
(Doc.
#110)
on
June
3,
2013.
Defendants filed a Reply (Doc. #115) on June 20, 2013.
I.
Plaintiff Vernon Criner initiated this action on May 25, 2010,
by filing a Complaint (Doc. #1) asserting claims under 42 U.S.C. §
1983.
Plaintiff is proceeding on his Fourth Amended Complaint
(Doc. #102), filed March 4, 2013, against defendants Jose Hernandez
and Indiana Cruz, M.D., in their individual capacities, alleging
that they were deliberately indifferent to plaintiff’s serious
medical
condition
in
violation
of
the
Eighth
Amendment.
Specifically, plaintiff alleges that Hernandez and Dr. Cruz, having
knowledge
of
his
history
of
paroxysmal
atrial
fibrillation,
hypertension, and hyperlidemea, failed to respond to plaintiff’s
complaints and symptoms while he was incarcerated at the Collier
County Jail.
(Doc. #102, ¶¶ 5, 61, 78.)
As a result of their
deliberate indifference, plaintiff alleges that his conditions
caused
him
to
quadriplegia.
fall
in
his
jail
cell,
resulting
in
partial
(Id. at ¶¶ 47-51.)
In addition to his claims against Hernandez and Dr. Cruz,
plaintiff
alleges
that
Prison
Health
Services
(PHS)
had
an
unconstitutional custom or policy to withhold medical treatment
from jail detainees such as plaintiff.
(Id. at ¶ 85.)
Plaintiff
also identified the following alternative customs or policies: (1)
if PHS had a policy to provide medical treatment, PHS’s failure and
deliberate indifference to enforce the policy caused plaintiff’s
injury; (2) in the absence of a policy with regard to the medical
treatment of detainees, PHS was deliberately indifferent in its
failure to establish such a policy; and (3) PHS failed to supervise
its staff in their treatment of jail detainees.
(Id. at ¶¶ 88-93.)
Defendants argue that they are entitled to summary judgment
because the evidence does not support plaintiff’s constitutional
claims against Hernandez and Dr. Cruz, and that plaintiff has
failed to identify an official custom or policy that served as the
moving force behind the alleged violation.
-2-
(Doc. #106.)
II.
Summary
judgment
is
appropriate
only
when
the
Court
is
satisfied that “there is no genuine issue as to any material fact
and that the moving party is entitled to judgment as a matter of
law.”
Fed. R. Civ. P. 56(c).
“An issue of fact is ‘genuine’’ if
the record taken as a whole could lead a rational trier of fact to
find for the nonmoving party.”
Baby Buddies, Inc. v. Toys “R” Us,
Inc., 611 F.3d 1308, 1314 (11th Cir. 2010).
A fact is ““material”
if it may affect the outcome of the suit under governing law.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
The
moving party bears the burden of identifying those portions of the
pleadings, depositions, answers to interrogatories, admissions,
and/or affidavits which it believes demonstrate the absence of a
genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S.
317, 323 (1986); Hickson Corp. v. N. Crossarm Co., Inc., 357 F.3d
1256, 1259-60 (11th Cir. 2004).
To avoid the entry of summary
judgment, a party faced with a properly supported summary judgment
motion must come forward with extrinsic evidence, i.e., affidavits,
depositions, answers to interrogatories, and/or admissions, which
are sufficient to establish the existence of the essential elements
to that party’s case, and the elements on which that party will
bear the burden of proof at trial.
Celotex, 477 U.S. at 322;
Hilburn v. Murata Elecs. N. Am., Inc., 181 F.3d 1220, 1225 (11th
Cir. 1999).
-3-
In ruling on a motion for summary judgment, the Court views
all evidence and draws all reasonable inferences in favor of the
non-moving party.
Scott v. Harris, 550 U.S. 372, 380 (2007); Tana
v. Dantanna’s, 611 F.3d 767, 772 (11th Cir. 2010).
However, “if
reasonable minds might differ on the inferences arising from
undisputed facts, then the court should deny summary judgment.”
St. Charles Foods, Inc. v. America’s Favorite Chicken Co., 198 F.3d
815, 819 (11th Cir. 1999) (quoting Warrior Tombigbee Transp. Co. v.
M/V Nan Fung, 695 F.2d 1294, 1296-97 (11th Cir. 1983)(finding
summary judgment “may be inappropriate where the parties agree on
the basic facts, but disagree about the factual inferences that
should be drawn from these facts”)).
“If a reasonable fact finder
evaluating the evidence could draw more than one inference from the
facts, and if that inference introduces a genuine issue of material
fact, then the court should not grant summary judgment.”
Allen v.
Bd. of Pub. Educ., 495 F.3d 1306, 1315 (11th Cir. 2007).
III.
The following facts are undisputed and taken in the light most
favorable to the non-moving party, plaintiff:
On
January
18,
2008,
Vernon
Criner
(plaintiff)
was
incarcerated at the Collier County Jail following a conviction for
driving under the influence.
Upon his arrival at the jail, an
employee of PHS, the company responsible for the medical care of
inmates at the Collier County Jail, inquired as to plaintiff’s
-4-
current medical conditions and medications. Plaintiff informed the
staff member that he was suffering from a cardiac condition known
as atrial fibrillation,1 a common form of arrhythmia, he had a
history of heart attack and stroke, and he was scheduled to have a
pacemaker installed that day.
(Doc. #74, Exh. #5, pp. 13-14.)
Prison records also indicate that plaintiff had been diagnosed with
hypertension and was taking a number of medications to treat his
conditions.
(Id.)
After receiving this information, a nurse
verified plaintiff’s medications by contacting his pharmacy in
Michigan.
During his incarceration at the Collier County Jail, plaintiff
submitted a myriad of sick call requests, the first being submitted
on January 19, 2008. Among his first requests, plaintiff indicated
that he was experiencing shortness of breath and pains in his arms
and chest.
(Doc. #74, Exh. #5.)
Following these requests,
plaintiff visited the hypertension clinic at the jail on February
6, 2008, and was evaluated by defendant Jose Hernandez (Hernandez),
a
physician’s
assistant
employed
by
PHS.
After
learning
of
plaintiff’s medical conditions, Hernandez decided to continue the
treatment plaintiff was receiving prior to his incarceration with
a management goal of controlling plaintiff’s hypertension and
atrial fibrillation, and prevention of complications.
1
(Doc. #110,
Atrial fibrillation is condition where the upper chambers of
the heart are beating rapidly and irregularly, generally causing an
overall fast heart rate. (Doc. #74, Exh. #12, p. 19.)
-5-
Exh. #2, p. 2.)
off
on
the
Defendant Indiana Cruz, M.D. (Dr. Cruz), signed
treatment
plan
plaintiff’s medical records.
The
medical
records
that
plaintiff
confirmed
and
entered
an
order
to
obtain
(Doc. #74, Exh. #3, p. 23.)
were
received
had
been
in
late
diagnosed
February
with
and
atrial
fibrillation and stated that plaintiff was scheduled to begin antiarrhythmic therapy with Betapace2 on January 18, 2008.3 (Doc. #110,
Exh. 1, p. 4.)
The medical records, however, made no mention of
plaintiff’s alleged need for a pacemaker, nor did they confirm his
history of heart attack and stroke.
Over the next couple of months, plaintiff submitted sick call
requests complaining of chest pain, shortness of breath, and atrial
fibrillation.
The
nursing
staff
responded to
most
of these
requests, but plaintiff was also evaluated by Hernandez during this
period. No changes in plaintiff’s treatment plan were made. (Doc.
#74, Exh. #1, pp. 8-13.)
In early May, plaintiff made numerous
complaints of severe dizziness, fainting, and a metallic taste in
his mouth.
In response to these complaints, plaintiff was seen by
2
Betapace is an antiarrhythmic agent
fibrillation. (Doc. #111, p. 5.) Because
threatening side effects, the drug must
impatient setting lasting for two to three
#1, p. 4.)
3
used to prevent atrial
of its potentially life
be administered in an
days. (Doc. #110, Exh.
Although plaintiff was ultimately scheduled to begin the
Betapace trial on January 18, 2008, the record indicates that he
cancelled two prior appointments for the treatment. (Doc. #110,
Exh. #1, pp. 4, 7.)
-6-
Hernandez on May 8, 2008, and stated that he was “feeling fine.”
(Doc. #74, Exh. #1, p. 14.)
Hernandez evaluated plaintiff’s
condition and determined that he was experiencing bradycardia,
which is a slow resting heart rate.
Consequently, Hernandez
lowered the dose of plaintiff’s hypertension medication because it
causes the heart rate to slow.
Hernandez also ordered laboratory
tests, an EKG, and a follow-up appointment for the next day.
The follow-up did not occur until May 12, 2008.
(Id.)
At that time,
plaintiff informed Hernandez that he felt okay and was not having
any chest pains or shortness of breath, but occasionally suffered
from dizziness.
The lab results revealed that plaintiff was
suffering from mild to moderate renal failure.
plaintiff
was
observation.
ordered
to
stay
in
the
Consequently,
infirmary
for
further
The following day, Dr. William Schmith, a physician
at the jail, noted that plaintiff complained of a headache and had
a
droopy
face,
and
subsequently
referred
him
to
the
Naples
Community Hospital for further evaluation and treatment.
The
referral stated that plaintiff had a low heart rate and questioned
the need of a pacemaker to treat plaintiff’s condition. (Doc. #74,
Ex. #6, p. 19.)
Plaintiff was evaluated in the emergency room and
diagnosed with postural hypotension (low blood pressure related to
standing up) secondary to dehydration and well controlled cardiac
arrhythmia. The emergency room medical staff did not indicate that
plaintiff needed a pacemaker or a referral to cardiologist.
-7-
Following his return to the jail, plaintiff remained in the
infirmary until May 26, 2008, for further monitoring.
During this
period, there were no major complications, but plaintiff did
complain of nose and gum bleeding.
(Doc. #74, Exh. #1, p. 23.)
Hernandez evaluated these conditions, but called Dr. Kennedy,
another physician at the jail, to discuss these conditions before
altering plaintiff’s treatment.
(Id.)
On May 28, 2008, plaintiff
submitted a couple sick call requests stating that he was dizzy and
that his right leg was extremely swollen and hurt to walk on.
He
was seen the following day by Hernandez, who ordered plaintiff to
take the medication Lasix, a diuretic, to address the swelling.
(Id. at p. 31.)
Plaintiff returned to the care of Hernandez on
June 2, 2008, following complaints of dizziness and an increased
heart rate. At this appointment, plaintiff informed Hernandez that
he
was
“feeling
much,
much
better”
and
Hernandez
swelling in his legs had greatly decreased.
noted
that
(Id. at p. 32.)
Hernandez did not alter plaintiff’s treatment plan, but did order
his blood pressure and pulse be monitored over the next five days.
(Id.)
Over the next six days, plaintiff submitted sick call
requests noting that he was suffering from atrial fibrillation,
dizziness, and stated that he had been falling.
Nurses responded
to most of the requests, but plaintiff was also evaluated by
Hernandez on July 9, 2008.
plaintiff’s
hypertension
The notes from this visit state that
was
under
-8-
control,
Lasix
was
to
be
continued to address the swelling in plaintiff’s lower extremities,
and that plaintiff was to be referred to a nephrologist (a kidney
specialist) because an ultrasound of plaintiff’s kidneys had been
abnormal.
(Id. at p. 33.)
Prior to his appointment with the nephrologist, the medical
staff, including Hernandez, responded to plaintiff’s sick call
requests, but no significant changes were made to his treatment
plan.
On June 23, 2008, plaintiff was evaluated by Dr. Joji
Urlanda, a nephrologist, who determined that the continuation of
Lasix was the appropriate form of treatment. (Doc. # 74, Exh. #17,
p. 9.) Shortly after plaintiff returned to the jail, deputies were
notified that plaintiff was in need of medical attention.
The
medical staff was informed by plaintiff that he became dizzy after
standing up and fell, hitting his head on the wall and floor.
The
staff also noted that he was semi-responsive and was unable to feel
his arms or legs.
(Doc. #74, Exh. #1, p. 38.)
An ambulance was
subsequently summoned by the medical staff to transport plaintiff
to the Naples Community Hospital.
Emergency room personnel determined that plaintiff had a
compressed spinal cord and immediately performed a laminectomy.
Plaintiff remained at the hospital for further monitoring, during
which time he was no longer receiving his medication.
Hospital
personnel noted that plaintiff had both low blood pressure and a
slow heart rate.
Plaintiff was diagnosed with sick sinus syndrome
-9-
on July 7, 2008, and it was determined that he was in need of a
pacemaker.
A pacemaker was implanted on July 10, 2008.
(Doc.
#110, Exh. #6, p. 6.)
IV.
In order to establish liability under 42 U.S.C. § 1983, the
plaintiff must prove that the defendants deprived him of a right
secured under the United States Constitution or federal law and
that such deprivation occurred under the color of state law.
U.S.
Steel, LLC v. Tieco, Inc., 261 F.3d 1275, 1288 (11th Cir. 2001).
Plaintiff’s constitutional claims concerning his medical treatment
invokes the protections of the Eighth Amendment. Thomas v. Bryant,
614 F.3d 1288, 1303 (11th Cir. 2010) (citations omitted).
To
prevail on a claim of deliberate indifference to a serious medical
need, plaintiff must show: (1) an objectively serious medical need;
(2) defendants’ deliberate indifference to that need; and (3)
causation between that indifference and the plaintiff’s injury.
Goebert v. Lee County, 510 F.3d 1312, 1326 (11th Cir. 2007).
1.
Objectively Serious Medical Need
“Because society does not expect that prisoners will have
unqualified access to health care, deliberate indifference to
medical needs amounts to an Eighth Amendment violation only if
those needs are ‘serious.’”
Hill v. Dekalb Reg’l Youth Det. Ctr.,
40 F.3d 1176, 1186 (11th Cir. 1994), overruled in part on other
grounds by Hope v. Pelzer, 536 U.S. 730, 739 (2002) (quoting Hudson
-10-
v. McMillian, 503 U.S. 1, 9 (1992).
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.”
at 1187.
Hill, 40 F.3d
Generally, serious medical needs are those “requiring
immediate medical attention.” Youmans v. Gagnon, 626 F.3d 557, 564
(11th Cir. 2010) (citing Hill v. Dekalb Reg’l Youth Det. Ctr., 40
F.3d 1176, 1187 (11th Cir. 1994)).
Furthermore, “[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) (citing Taylor v. Adams, 221 F.3d 1254, 1257 (11th Cir.
2000)).
In plaintiff’s response to defendants’ motion for summary
judgment, he identifies the serious medical condition that caused
his injury as sick sinus syndrome, and has provided expert opinion
stating that it was the cause of his injury.
(Doc. #110, p. 19.)
Although this condition may have caused his injury, it was not
diagnosed until after the injury occurred.
Therefore, it cannot
qualify a serious medical need that has been diagnosed by a
physician as mandating treatment.
Plaintiff attempts to overcome this hurdle by arguing that a
lay person could easily recognize his need for medical attention.
(Doc. #110, p. 19.)
The evidence in the record shows that
plaintiff made numerous complaints of dizziness, shortness of
-11-
breath, chest pains, and falling while in custody at the Collier
County Jail.
Dr. James Schafer’s entry into plaintiff’s medical
records on December 12, 2007, states that plaintiff was informed of
the importance of seeking emergency medical care if he experiences
intense or prolonged chest pain.
(Doc. #110, Exh. #1, p. 4.)
These complaints, in conjunction with plaintiff’s known cardiac
condition, is sufficient to raise a genuine issue of material fact
as to the existence of a serious medical need.
A reasonable trier
of fact could find that a lay person could easily recognize the
need for medical attention and the substantial risk of serious harm
if the condition is not treated.
Accordingly, plaintiff has
pointed to sufficient evidence to survive summary judgment as to
this issue.
2.
Deliberate Indifference
In addition to establishing an objectively serious medical
need, the plaintiff must establish that a defendant acted with
“deliberate indifference” by showing a: (1) subjective knowledge of
a risk of serious harm (i.e., both awareness of facts from which
the inference could be drawn that a substantial risk of serious
harm exists and the actual drawing of the inference); (2) disregard
of that risk; and (3) conduct that is more than gross negligence.
Bozeman v. Orum, 422 F.3d 1265, 1272 (11th Cir. 2005).
Deliberate
indifference may be established by a showing of grossly inadequate
care, by a decision to take an easier but less efficacious course
-12-
of treatment, or by proving that the medical care provided for an
obvious condition is so cursory as to amount to no treatment at
all.
See Steele v. Shah, 87 F.3d 1266, 1269–70 (11th Cir. 1996);
Waldrop v. Evans, 871 F.2d 1030, 1035 (11th Cir. 1989); Mandel v.
Doe, 888 F.2d 783, 789 (11th Cir. 1989); Ancata v. Prison Health
Servs., Inc., 769 F.2d 700, 704 (11th Cir. 1985).
“When the claim
turns on the quality of the treatment provided, there is no
constitutional violation as long as the medical care provided to
the inmate is ‘minimally adequate.’”
Blanchard v. White Co. Pet.
Ctr. Staff, 262 F. App'x 959, 964 (11th Cir. 2008) (quoting Harris
v. Thigpen, 941 F.2d 1495, 1504 (11th Cir. 1991))).
Where it is
shown that an inmate has received significant medical attention and
has not been ignored, federal courts are reluctant to second guess
the medical judgments of those providing care.
1575.
Hamm, 774 F.2d at
Consequently, “[d]eliberate indifference is not established
where an inmate received care but desired different modes of
treatment.”
Id.
Plaintiff claims that Hernandez and Dr. Cruz were aware of his
serious medical condition, but “turned a cold shoulder to his very
real, very legitimate complaints and requests for a medical or
cardiology referral.”
(Doc. #110, p. 22.)
The evidence, however,
establishes that plaintiff received a significant amount of medical
care, including treatment for his cardiac conditions.
-13-
During the period between plaintiff’s arrival at the Collier
County Jail on January 18, 2008, and his injury on June 23, 2008,
plaintiff visited Hernandez and Dr. Cruz for medical care on more
than fifty different occasions.
After learning of plaintiff’s
medical conditions, Hernandez and Dr. Cruz continued the treatment
prescribed by plaintiff’s cardiologist prior to his incarceration
and addressed many of plaintiff’s complaints.
In early May,
plaintiff was diagnosed with a slow heart rate following complaints
of severe dizziness and fainting.
Hernandez responded to these
complaints by adjusting plaintiff’s medications and by ordering
blood tests and an EKG.
Based on the test results, plaintiff was
transferred to the infirmary for further monitoring and when his
condition began to worsen, he was immediately sent to the emergency
room.
The
hospital
records
stated
that
plaintiff’s
atrial
fibrillation was well controlled and made no mention of the need
for a pacemaker or a follow-up appointment with a cardiologist.
Plaintiff’s
medical
needs
were
also
addressed
following
his
complaints dizziness, increased heart rate, and swollen legs in
early June.
Hernandez ordered that plaintiff’s blood pressure and
heart rate be monitored and ultimately referred him to a kidney
specialist
to
address
the
abnormal
results
of
an
ultrasound
performed on his kidneys.
Even when viewing the facts in a light most favorable to
plaintiff, the undisputed evidence shows that plaintiff received a
-14-
significant amount of medical care during his incarceration at the
Collier County Jail.
Despite this significant amount of care,
plaintiff second guesses the medical judgments of those providing
care.
See Hamm, 774 F.2d at 1575.
Plaintiff submitted an expert
disclosure from Dr. Joe Goldenson, who opined that Hernandez and
Dr. Cruz did not adequately evaluate plaintiff’s symptoms and
should have sent him to a cardiologist for further evaluation.
(Doc. #111, Exh. #2, p. 14.)
However, evidence of potential error
in the medical judgment of Hernandez or Dr. Cruz does not create a
genuine issue of material fact because it does not demonstrate
action or inaction beyond gross negligence.
See Fischer v. Fed.
Bureau of Prisons, 349 F. App’x 372, 375 (11th Cir. 2009).
result, this
Court
finds
that
summary
judgment
on
As a
behalf
of
Hernandez and Dr. Cruz is appropriate.
V.
PHS contends that summary judgment should be granted in its
favor because plaintiff has failed to identify an official policy
or custom behind the alleged violation of his constitutional
rights.
(Doc. #106, p. 11.)
In response, plaintiff argues that
Hernandez and Dr. Cruz’s implemented a policy attributable to the
county when they allegedly refused to provide medical care based on
its cost.
(Doc. #110, p. 24.)
-15-
A plaintiff seeking to impose liability on a municipality4
under § 1983 must identify a municipal “policy” or “custom” that
was the “moving force” behind the constitutional deprivation.
Sewell v. Town of Lake Hamilton, 117 F.3d 488, 489 (11th Cir. 1997)
(citing Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690-94
(1978)).
The government entity “must be found to have itself
caused the constitutional violation at issue; it cannot be found
liable on a vicarious liability theory.”
Skop v. City of Atlanta,
485 F.3d 1130, 1145 (11th Cir. 2007) (emphasis in original) (citing
Monell, 436 U.S. at 694-95).
“A policy is a decision that is
officially adopted by the municipality, or created by an official
of such rank that he or she could be said to be acting on behalf of
the [entity]. . . . A custom is a practice that is so settled and
permanent that it takes on the force of law.”
Cooper v. Dillon,
403 F.3d 1208, 1221 (11th Cir. 2005) (quoting Sewell, 117 F.3d at
489).
not
“Proof of a single incident of unconstitutional activity is
sufficient
to
impose
liability”
against
a
municipality.
Oklahoma City v. Tuttle, 471 U.S. 808, 823-824 (1985); see also
Craig v. Floyd Cnty., 643 F.3d 1306, 1310-11 (11th Cir. 2011).
The
Court
has
determined
that
4
plaintiff’s
constitutional
Because the provision of medical services to inmates is a
function traditionally within the exclusive prerogative of the
state, a private entity that contracts to provide these services,
such as PHS, becomes the functional equivalent of a municipality
under § 1983. Craig, 643 F.3d at 1310 (citing Buckner v. Toro, 116
F.3d 450, 452 (11th Cir. 1997)).
-16-
rights were not violated.
policy or custom.
Therefore, there is no need to consider
Rooney v. Watson, 101 F.3d 1378, 1381-82 (11th
Cir. 1996).
Alternatively, to survive PHS’s motion for summary judgment,
plaintiff must point to a custom or policy that caused his alleged
constitutional violation.
Plaintiff’s only argument in support of
his claim against PHS is that Hernandez and Dr. Cruz created an
official policy when they refused to provide the required care. In
support of this argument, plaintiff submitted an affidavit stating
that Hernandez told him that the jail would not pay for his
requested treatment.
(Doc. #112, Exh. #2, p. 3.)
The record,
however, is void of any evidence indicating that Hernandez or Dr.
Cruz had policy making authority or refused to provide treatment to
any
other
inmates.
Accordingly,
plaintiff
has
failed
to
demonstrate a “persistent and wide-spread practice” sufficient to
demonstrate a policy or custom.
See McDowell v. Brown, 392 F.3d
1283, 1290.
The alternative customs and policies identified in the Fourth
Amended Complaint are based on the failure to enforce a policy, the
failure to create a policy, and the failure to supervise the staff
at the jail.
To prevail on any of these alternatives, plaintiff
must show that the defendant knew of the need to take action and
that it made a deliberate choice not to take any action.
Gold v.
City of Miami, 151 F.3d 1346, 1351 (11th Cir. 1998). Plaintiff has
-17-
not presented any evidence showing that PHS knew of the need to
take action or that it deliberately chose not to. Therefore, PHS’s
motion for summary judgment is granted.
Accordingly, it is now
ORDERED:
1.
Defendants Jose Hernandez, Indiana Cruz, M.D., and Prison
Health Services, Inc.’s Motion for Summary Judgment (Doc. #106) is
GRANTED.
2.
The Clerk is directed to enter judgment accordingly,
terminate all pending motions and deadlines, including the Final
Pretrial Conference scheduled for Monday, September 16, 2013, and
to close the file.
DONE AND ORDERED at Fort Myers, Florida, this
September, 2013.
Copies:
Counsel of record
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12th
day of
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