Peacock v. Tucker et al
Filing
102
OPINION AND ORDER denying 66 Motion for summary judgment; granting 85 Motion for summary judgment. With no remaining defendants or claims, the Clerk shall enter judgment accordingly and close the case. Signed by Judge John E. Steele on 6/9/2014. (RKR)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
JAMES C. PEACOCK,
Plaintiff,
v.
Case No:
2:12-cv-63-FtM-29DNF
NICOLAS O. CABREO-MUNIZ,
Defendant.
/
OPINION AND ORDER
This case is before the Court on the following:
Plaintiff James C. Peacock’s (“Plaintiff’s”)
Motion for Summary Judgment (Doc. 66, filed
December 11, 2013);
Defendant
Nicolas
O.
Cabreo-Muniz’
(“Defendant’s”) Response in Opposition to
Plaintiff's Motion for Summary Judgment (Doc.
73, filed February 3, 2014);
Defendant Nicolas O. Cabreo-Muniz’ Motion for
Summary Judgment (Doc. 85, filed February 27,
2014); and
Plaintiff's
Response
in
Opposition
to
Defendant’s Motion for Summary Judgment (Doc.
91, filed March 20, 2014).
The claims raised in the instant civil rights action stem
from Defendant Cabreo-Muniz’ alleged failure to promptly provide
Plaintiff with surgery on a fractured finger on his right hand.
As discussed below, the Court concludes that Defendant CabreoMuniz is entitled to judgment as a matter of law on each of
Plaintiff's claims.
I.
Procedural History
Plaintiff initiated this action by filing a civil rights
complaint against Defendants Nicolas Cabreo-Muniz, D. Strodahl, J.
Tate, and Kenneth Tucker on February 6, 2012 (Doc. 1).
In the
complaint, Plaintiff raised both constitutional claims and pendant
state law negligence claims relating to the defendants’ allegedly
deficient treatment of a broken finger on Plaintiff's right hand.
Id.
Defendant Tucker filed a motion to dismiss the case as
frivolous on December 10, 2012 (Doc. 32).
The other defendants
filed a motion to dismiss on February 1, 2013 (Doc. 41).
This
Court entered an order dismissing Defendants Tucker and Tate from
the
action
(Doc.
47).
The
Eighth
Amendment
Defendant Stordahl were also dismissed. Id.
the
remaining
state
law
negligence
claims
against
On December 20, 2013,
claims
against
Defendant
Stordahl were dismissed with prejudice because of Plaintiff's
failure to comply with Florida’s pre-suit notice requirements for
claims of medical malpractice (Doc. 71).
Defendant Cabre-Muniz is
the only remaining defendant in this action.
II.
Complaint
On November 17, 2011, Plaintiff was injured after falling on
a wet floor and sought medical attention (Doc. 1 at 3).
That same
day, Plaintiff was seen by a nurse and “was given a splint and a
no use of right hand pass” effective November 17, 2011 through
November 22, 2011. Id.
Plaintiff returned to medical when the
2
pass
expired,
and
the
nurse
issued
a
new
pass
to
Plaintiff
effective November 22, 2011 through November 29, 2011. Id.
On
November 29, 2011, Plaintiff returned to the medical department
and was referred by the nurse to see a nurse practitioner. Id. at
4.
That
same
day,
Plaintiff
was
examined
by
the
nurse
practitioner, who told him “that he should have been scheduled to
see her from the beginning.” Id.
“At this point [an] infection
had set in” and the nurse practitioner prescribed Plaintiff a 10day supply of “Doxycycline Hyclate and Sulfameth.” Id.
The nurse
practitioner also scheduled Plaintiff for an x-ray. Id.
On December 2, 2011, Plaintiff had x-rays taken and was sent
to the “Hand Center of Florida in Charlotte County” where he was
told
his
index
finger
was
broken
and
would
require
surgery
“immediately,” which needed to be scheduled by the chief medical
officer at his institution. Id.
Plaintiff was also provided with
a “proper splint” by medical staff at the Hand Center and was
informed that he had been given an “incorrect splint for [his]
injury.” Id. at 5.
On December 9, 2011, Plaintiff advised the
warden that he had not yet been scheduled for surgery and had not
been issued “effective pain medication for his pain in his right
hand.” Id. The warden, after consulting with Defendant Dr. CabreoMuniz, told Plaintiff he was “receiving appropriate medical care
for his problem and appropriate medical passes and work assignment
restrictions have been granted.” Id.
3
Plaintiff claims that, as of
the date that he signed his complaint (January 25, 2012), he still
had not been provided with the recommended surgery and that he had
not been prescribed “effective” pain medication. Id.1
Based
on
the
alleged
actions
of
Defendant
Cabreo-Miniz,
Plaintiff states that he was denied adequate medical care in
violation of the Eighth Amendment (Doc. 1 at 7).
He asserts that
as a result of the inadequate care he received, he has lost much
use of his right hand, which has affected his everyday living. Id.
As relief, Plaintiff seeks a declaratory judgment declaring
Defendants’
acts
to
be
unconstitutional;
various
forms
of
injunctive relief, including an order directing Defendants to
provide surgery for Plaintiff; and monetary damages (Doc. 1 at 79).
III. Motions for Summary Judgment
Plaintiff filed a motion for summary judgment in which he
asserts that he is entitled to relief as a matter of law (Doc.
66).
In support of his motion for summary judgment, Plaintiff
filed numerous medical records and other documents relating to his
medical care (Doc. 65-2 at 2-8; Doc. 65-3 at 2-6; Doc. 65-4 at 221; Doc. 65-6 at 2-5; Doc. 65-8 at 2-11); Grievances regarding his
medical care (Doc. 65-5 at 2-7); Defendant Cabreo-Muniz’ answers
to
1
Plaintiff's
interrogatories
(Doc.
65-7
at
2-8);
Defendant
It is undisputed that on January 26, 2012, Plaintiff had surgery
to repair his broken finger (Doc. 65-7 at 3).
4
Cabreo-Muniz’
amended
response
to
Plaintiff's
request
for
admissions (Doc. 65-7 at 9-13); Defendant Cabreo-Muniz’ response
to Plaintiff's fourth request for production of documents (Doc.
65-7 at 14-23); Defendant Cabreo-Muniz’ request for admissions to
Plaintiff (Doc. 65-7 at 24-28); and documents regarding the Florida
Department of Corrections’ utilization management procedures and
the job description of a prison’s chief healthcare officer (Doc.
65-9 at 2-20).
In
response
to
Plaintiff's
motion
for
summary
judgment,
Defendant Cabreo-Muniz filed the Declaration of Administrative
Assistant Gerri Carlucci; Declaration of Utilization Management
Contract Manager Donna Graham; Plaintiff's Formal Grievance 1112564-017;
Plaintiff's
Plaintiff's
Grievance
Informal
Appeal
Grievance
12-16-00443;
dated
1/20/2012;
excerpts
from
Plaintiff's deposition; Declaration of Department of Corrections
Human Resources Analyst Vanessa Rodriguez; documents outlining
procedures at Utilization Management; and Declaration of Defendant
Cabreo-Muniz (Doc. 73-1 at 1-37).
Defendant Cabreo-Muniz filed a motion for summary judgment on
February 27, 2014 in which he asserts that Plaintiff's claims are
based solely upon his own opinion and dissatisfaction over his
care rather than upon the Eighth Amendment (Doc. 85 at 2).
He
also asserts that he is entitled to qualified immunity on these
claims
because
the
facts
in
this
5
case
do
not
establish
a
constitutional violation. Id. at 21. In support of his motion for
summary judgment, Defendant Cabreo-Muniz filed the same documents
as he filed in opposition to Plaintiff's motion for summary
judgment.
No.
Defendant Cabreo-Muniz also filed Technical Instruction
15.09.04,
Utilization
Management
Procedures;
Technical
Instruction No. 15.02.16, Inmate Medical Passes, and Technical
Instruction No. 15.14.92, Prescription Orders (Doc. 85-1 at 1).
In his response to Defendant Cabreo-Muniz’ motion for summary
judgment, Plaintiff filed the same documents he filed in support
of his own motion for summary judgment as well as a Declaration of
James Peacock (Doc. 91-2).
IV.
Legal Standards
Summary judgment is appropriate only if it is shown “that
there is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
The Supreme Court has explained the summary judgment standard as
follows:
[T]he plain language of Rule 56(c) mandates the
entry of summary judgment, after adequate time
for discovery and upon motion, against a party
who fails to make a showing sufficient to
establish the existence of an element essential
to that party's case, and on which that party
will bear the burden of proof at trial. In such
a situation, there can be no genuine issue as to
any material fact, since a complete failure of
proof concerning an essential element of the nonmoving party's case necessarily renders all
other facts immaterial.
6
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).
may
meet
this
burden
by
presenting
evidence
that
The movant
would
be
admissible at trial indicating there is no dispute of material
fact or by showing that the nonmoving party has failed to present
evidence in support of some elements of its case on which it bears
the ultimate burden of proof.
Celotex, 477 U.S. at 322–324.
If the party seeking summary judgment meets the initial burden
of demonstrating the absence of a genuine issue of material fact,
the burden then shifts to the nonmoving party to come forward with
sufficient evidence to rebut this showing with affidavits or other
relevant and admissible evidence. Avirgan v. Hull, 932 F.2d 1572,
1577 (11th Cir. 1991).
Summary judgment is mandated “against a
party who fails to make a showing sufficient to establish the
existence of an element essential to that party's case, and on
which that party will bear the burden of proof at trial.” Celotex,
477 U.S. at 322, (1986).
V.
Analysis
Plaintiff's Eighth Amendment claims against Defendant Cabreo-
Muniz appear to be predicated upon three theories: (1) Defendant
Cabreo-Muniz' failure to provide Plaintiff with effective pain
medication; (2) Defendant Cabreo-Muniz' failure to ensure that
Plaintiff received a “no work” pass instead of a “no use of right
hand” pass after his injury; and (3) the delay between Plaintiff's
injury and his surgery (Doc. 1; Doc. 66).
7
Prison officials violate the Eighth Amendment when they act
with deliberate indifference to a plaintiff’s health or safety.
Estelle v. Gamble, 429 U.S. 97, 97 (1976).
To state a claim of
deliberate indifference for the deprivation or denial of medical
attention, a prisoner must allege: (1) a serious medical need; (2)
deliberate indifference to that need by the defendant; and (3)
causation between the defendant's indifference and the plaintiff's
injury. Youmans v. Gagnon, 626 F.3d 557, 563 (11th Cir. 2010).
The Supreme Court has cautioned that not every allegation of
inadequate medical treatment states a constitutional violation.
Estelle, 429 U.S. at 105, 106. “[I]n the medical context, an
inadvertent failure to provide adequate medical care cannot be
said to constitute ‘an unnecessary and wanton infliction of pain’
or to be ‘repugnant to the conscience of mankind.’” Id. at 106–
07.
Only acts or omissions sufficiently harmful to evidence
deliberate indifference to a serious medical need can offend
“evolving
standards
of
decency”
in
violation
of
the
Eighth
Amendment. Id.
a.
The Court will assume that Plaintiff has demonstrated an
objectively serious medical need
“[A] serious medical need is considered 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
8
for a doctor's attention.” Farrow v West, 320 F.3d 1235, 1243 (11th
Cir. 2003)(internal quotation marks and citation omitted).
Although evidence of recent traumatic injury has generally
been sufficient to demonstrate a serious medical need, a broken
bone does not per se constitute a serious medical need. Compare
Webb v. Langly, 267 F. App’x 910 (11th Cir. 2008) (affirming
district court's conclusions that substantial delay in providing
surgery for fractured nose did not pose a serious medical need)
(unpublished) with Brown v. Hughes, 894 F.2d 1533, 1538 (11th Cir.
1990) (defendants did not dispute that broken foot can be a serious
and painful injury).
However, Defendant Cabreo-Muniz does not
argue that the injury to Plaintiff's finger was not an objectively
serious medical need for Eighth Amendment purposes.
Accordingly,
for
assume
the
Plaintiff
purposes
has
of
this
Order,
demonstrated
a
the
Court
sufficiently
will
serious
that
medical
condition in connection with his fractured finger.
b.
To
Plaintiff has not demonstrated that Defendant CabreoMuniz was deliberately indifferent to his serious
medical need
demonstrate
subjective
deliberate
indifference,
the
prisoner must show that the defendant: (1) knew of the risk of
serious harm; (2) disregarded that risk; and (3) acted with more
than just mere negligence. Farrow, 320 F.3d at 1245.
In other
words, the prisoner must allege that the defendant’s response was
so
inadequate
as
to
constitute
9
an
“unnecessary
and
wanton
infliction of pain” and was not “merely accidental inadequacy,
negligence in diagnosis or treatment, or even medical malpractice
actionable under state law[.]” Taylor v. Adams, 221 F.3d 1254,
1258 (11th Cir. 2000) (internal quotation marks, alterations and
citations omitted).
1.
Pain medication
In his complaint, Plaintiff asserts that Defendant CabreoMuniz had not provided him with “any pain killers.” (Doc. 1 at 6).
In his motion for summary judgment, Plaintiff modified this claim
by asserting that Defendant failed to provide him with “effective”
prescription pain medication (Doc. 66 at 4).
The Eleventh Circuit has recognized that prison officials may
violate the Eighth Amendment by failing to treat an inmate’s pain.
See McElligott v. Foley, 182 F.3d 1248, 1257 (11th Cir. 1999);
Washington
v.
Dugger,
(reversing
grant
of
860
F.2d
summary
1018,
judgment
1021
to
(11th
prison
Cir.
1988)
officials
on
inmate's claim that delay in providing treatments that “eliminated
pain and suffering at least temporarily” constituted deliberate
indifference); Aldridge v. Montgomery, 753 F.2d 970, 972–73 (11th
Cir. 1985) (reversing directed verdict to officers who failed to
provide ice pack and aspirin for pain caused by bleeding cut).
Defendant
demonstrate
Cabreo-Muniz
deliberate
argues
indifference
that
on
the
Plaintiff
issue
cannot
of
pain
medication because he was given pain medication (Doc. 85 at 14).
10
Defendant Cabreo-Muniz also argues that Plaintiff cannot satisfy
the
subjective
component
of
a
deliberate
indifference
claim
because Plaintiff never advised him that the pain medication he
received was not effective. Id.
The evidence filed by both Plaintiff and Defendant CabreoMuniz indicates that Plaintiff was given ibuprofen for treatment
of his pain (Doc 65-7 at 4).
Plaintiff was also given a splint to
immobilize his fractured finger and a medical pass exempting him
from using his right hand (Doc. 1 at 3-4).
Defendant Cabreo-Muniz
attests that ibuprofen would be the appropriate pain medication to
prescribe to an inmate in an institutional setting to address the
pain of a fractured finger (Doc. 85-1 at 4).2
Defendant Cabreo-Muniz has presented evidence in his sworn
affidavit and other supporting documents that Plaintiff received
ibuprofen, a splint, and a work exemption to address his pain. See
Fed. R. Civ. P. 56(c)(1)(A) (“A party asserting that a fact cannot
be or is genuinely disputed must support the assertion by [] citing
to
particular
depositions,
parts
of
documents,
materials
in
electronically
the
record,
stored
including
information,
affidavits or declarations, stipulations (including those made for
purposes of the motion only), admissions, interrogatory answers,
2
Defendant Cabreo-Muniz attests that because of the “large
population of inmates with addiction issues and the potential for
abuse and/or dealing of narcotics among inmates, there is
significant concern concerning dispensing narcotics, which have a
high abuse potential.” (Doc. 85-1 at 45).
11
or other materials [.]”).
Plaintiff has not presented evidence to
refute these assertions.
Accordingly, Defendant Cabreo-Muniz is
entitled to summary judgment on Plaintiff's claim that he “failed
to prescribe plaintiff any pain killer’s [sic].” (Doc. 1 at 6).
See In re Royal Caribbean Cruises Ltd., 403 F.Supp.2d 1168, 1173
(S.D. Fla. 2005) (granting summary judgment where nonmoving party
“failed to put forth any evidence” to refute affidavit submitted
by moving party).
Likewise, to the extent that Plaintiff's motion
for summary judgment is based upon Defendant's failure to provide
any treatment for his pain, plaintiff is not entitled to summary
judgment on this issue.
Plaintiff also argues that he did not receive “effective”
pain medication (Doc. 66 at 4).
Plaintiff filed a grievance on
December 9, 2011 in which he expressed concern that his no-work
pass was expiring and that he was “made to go to work 5 days a
week in pain.” (Doc. 85-1 at 11).
However, the grievance made no
reference to ibuprofen and did not ask for “more effective” pain
medication.
Id.
Plaintiff
asserts
that
in
response
to
the
grievance he was “called to medical and issued a renewed no use of
right hand pass dated 12/12/11 to 3/12/12 with Defendant CabreoMuniz’ approval signature stamp.” (Doc. 66 at 8).
In his
deposition, Plaintiff admitted that he did not recall informing
Defendant Cabreo-Muniz or any other medical provider that the
ibuprofen he was given was not working or that he needed narcotic
12
pain relievers (Doc. 85-1 at 19, 21, 22, 23, 24, 26, 28).
At most,
Plaintiff has shown that various medical providers were negligent
for failing to interpret his grievances as a request for stronger
pain medication. Negligence however, even if it rises to the level
of
medical
malpractice,
does
not
constitute
deliberate
indifference. McElligott, 182 F.3d at 1254; see also Adams v. Poag,
61 F.3d 1537, 1547 (11th Cir. 1995) (concluding that the medical
provider's
prisoner
“failure
who
to
administer
subsequently
died
was
stronger
“a
medication”
medical
to
judgment
a
and,
therefore, an inappropriate basis for imposing liability under
section 1983”).
The record reveals no genuine dispute as to any material fact
regarding
Plaintiff's
requests
for
pain
medication,
and
the
evidence could not enable a reasonable jury to conclude that
Defendant Cabreo-Muniz subjectively knew of an obvious need for
stronger pain medication and disregarded that need by conduct that
was more than gross negligence.
Accordingly, Plaintiff is not
entitled to summary judgment on his claim that Defendant CabreoMuniz exhibited deliberate indifference by failing to prescribe a
stronger pain medication. For the same reason, Defendant CabreoMuniz is entitled to summary judgment on this issue.
McElligott,
182 F.3d at 1255 (“since a finding of deliberate indifference
requires a finding of the defendant’s subjective awareness of the
relevant risk, a genuine issue of material fact exists only if the
13
record
contains
evidence,
albeit
circumstantial,
of
such
subjective awareness.”)(citing Campbell v. Sikes, 169 F.3d 1353,
1364 (11th Cir. 1999)).
2.
Plaintiff
No work pass
asserts
that
Defendant
Cabreo-Muniz
was
deliberately indifferent to his serious medical needs because he
failed to issue Plaintiff a “no work” pass instead of a “no use of
right hand” pass during the period between his injury and his
surgery (Doc. 1 at 5).
Defendant Cabreo-Muniz attests that he
issued the “no use of right hand pass” pursuant to Department of
Corrections Technical Instruction No. 15.02.16 which provides that
a “no work” pass should be issued “only where the inmate cannot
perform any work activity either on the facility grounds or off
the correctional facility property.” (Doc. 85-1 at 44).3 Defendant
Cabreo-Muniz attests that there was no reason that Plaintiff's
fractured finger prevented him from doing any work. Id.
In his
deposition, Plaintiff admitted that he was able to ladle food with
his left hand during the time period at issue, and that nobody
made him use his right hand for work purposes (Doc. 85-1 at 24).
3
Defendant Cabreo-Muniz has attached a copy of Technical
Instruction No. 15.02.16 to his motion for summary judgment (Doc.
85-1 at 53-57).
The instruction provides that a “No Work
Permitted” pass should issue if “[d]ue to medical condition, the
inmate cannot perform any work activity on the facility grounds or
off the correctional facility property.” Id. at 55.
14
Defendant has presented evidence showing that Plaintiff was
capable of performing some work, so that a “no work” pass would
not have been in compliance with department regulations. Plaintiff
has not offered any evidence in response.
This is not a situation
where Plaintiff's request for accommodation was ignored. Rather,
Plaintiff was issued a pass exempting him from using his right
hand.
That Plaintiff may have preferred a no work pass to the
pass he received does not show that his injury was not given
appropriate
medical
treatment
unnecessary pain and suffering.
or
that
he
was
subjected
to
A “difference in medical opinion
between the prison's medical staff and the inmate as to the
latter's diagnosis or course of treatment [cannot] support a claim
of cruel and unusual punishment.” Harris v. Thigpen, 941 F.2d 1495,
1505 (11th Cir. 1991)(citing Waldrop v. Evans, 871 F.2d 1030, 1033
(11th Cir. 1989)).4
As Plaintiff has not come forward with evidence to show that
Defendant was deliberately indifferent to his medical needs for
failing to issue a “no work” pass instead of a “no use of right
hand” pass, summary judgment is granted in Defendant Cabreo-Muniz’
favor.
Likewise, Plaintiff is not entitled to summary judgment on
this issue.
4
In support of his motion for summary judgment, Plaintiff filed
the consultation notes of Nurse Practitioner Carolyn L. Hoffman,
who recommended that Plaintiff receive surgery on his hand “asap.”
Hoffman also recommended that Plaintiff be issued a “no use of
right hand” pass (Doc. 65-4 at 5).
15
3.
Delay in scheduling surgery
Plaintiff asserts that Defendant Cabreo-Muniz acted with
deliberate indifference when he did not schedule the recommended
surgery on his hand “ASAP” as was written on the order from Nurse
Practitioner Hoffman from the Florida Hand Center in Charlotte
County (Doc. 66 at 7).
A
delay
in
circumstances
and
medical
length
treatment
of
the
can,
delay,
depending
constitute
on
the
deliberate
indifference. Hinson v. Edmond, 192 F.3d 1342, 1348 (11th Cir.
1999).
Any claim that specific medical procedures have been
impermissibly delayed requires an inmate to put verifying medical
evidence in the record to establish the detrimental effect of the
delay. Hill v. DeKalb Reg'l Youth Det. Ctr., 40 F.3d 1176, 1188
(11th Cir. 1994) (not followed as dicta in Marsh v. Butler County,
Ala., 268 F.3d 1014, 1031 (11th Cir. 2001)(“a finding of deliberate
indifference
necessarily
precludes
a
finding
of
qualified
immunity”)).
Plaintiff points to Hoffman’s December 2, 2011 consultation
report
in
support
of
his
claim
that
his
surgery
unconstitutionally delayed:
Surgery – closed pinning vs. ORIF Right middle
finger prox. Phalanx fracture, should be
arranged asap.
Weds 12/7 (CRMC) or Thurs.
12/8 (MASC.) preferred or Fri 12/9 (MASC) or
Mon 12/12 - Latest
16
was
(Doc. 65-4 at 5) (emphasis in original).
although
Hoffman
made
the
Plaintiff argues that
recommendation
that
Plaintiff
be
scheduled for surgery “asap” on December 2, 2011, Defendant CabreoMuniz did not actually request authorization for the surgery from
utilization management until December 8, 2011, after “Plaintiff
brought to the attention of medical staff that Plaintiff have [sic]
not had the ‘immediate’ surgery recommend by Hand Specialist’s
ARNP[.]” (Doc. 66 at 7).
Defendant
Cabreo-Muniz
attests
that
he
did
not
become
involved in Plaintiff's medical issue involving his fractured
finger until December 2, 2014 (Doc. 85-1 at 42).
Upon reviewing
an x-ray of the fracture on that date, Defendant referred Plaintiff
to an outside hand specialist for consultation. Id. at 43.
He
reviewed Hoffman’s consultation report on December 8, 2011, the
same day it was presented to him by medical staff. Id.
That same
day, he completed the necessary paperwork to request utilization
management approval for Plaintiff's surgery. Id.
Defendant Cabreo-Muniz filed the affidavit of Gerri Carlucci,
an
administrative
assistant
at
the
Florida
Department
of
Corrections, who attests that on December 9, 2011, she uploaded to
utilization management the documentation requesting Plaintiff's
surgery that was signed by Defendant Cabreo-Muniz on December 8,
2011 (Doc. 85-1 at 3-4).
She attests that she checked the
utilization management database every other day for updates on
17
requests, and scheduled Plaintiff's surgery on January 11, 2012.
Id.
Defendant Cabreo-Muniz filed the affidavit of Donna Graham,
a
utilization
management
contract
monitor
Department of Corrections (Doc. 85-1 at 6).
for
the
Florida
Graham attests that
utilization management approval must be obtained before outside
surgeries can be scheduled unless the condition is designated as
an emergency (Doc. 85-1 at 7).
Graham attests that even when a
consultant recommends a surgery date, as was done in Plaintiff's
situation, utilization management approval is required before a
surgery may be scheduled. Id.
Plaintiff has not filed any evidence to rebut Defendant
Cabreo-Muniz’ declaration that he requested utilization management
authorization for Plaintiff's surgery on the same day that he
became aware that surgery was required.
Plaintiff attests that
“the Hand Center gave the officers that transported me on 12-2-11
my medical chart, x-rays, and recommendations to be taken to
medical department on return to institution.” (Doc. 91-2 at 10).
Plaintiff argues that Defendant Cabreo-Muniz should have reviewed
the medical reports from the Hand Center before 12-8-2011 because
as the chief health officer, he had oversight of daily operations
of the health services delivery system. Id.
However, Plaintiff
does not present evidence showing that the consultation records
were actually given to Defendant Cabreo-Muniz before December 8,
18
2012 nor does Plaintiff assert that he alerted Defendant CabreoMuniz to the records’ contents prior to that date.
In fact, the
Plaintiff asserts that he wrote a grievance on the issue on
December 9, 2011, which was after Defendant Cabreo-Muniz had
already requested authorization for Plaintiff's surgery (Doc. 1 at
5).
With no evidence that Defendant Cabreo-Muniz subjectively
knew about Hoffman’s recommendation for surgery and deliberately
disregarded it, his failure to review Plaintiff's chart as soon as
Plaintiff would have preferred is at most negligence, which is
insufficient to establish deliberate indifference. See Stewart v.
Murphy, 174 F.3d 530, 534 (5th Cir. 1999) (“At worst, any failure
by [the doctor] to ... read the nurses' notes .... might constitute
negligence, not the requisite deliberate indifference.”); Williams
v. Guzman, 346 F. App’x 102 (7th Cir. 2009) (Defendant doctors not
deliberately indifferent for failing to act on nurse’s note for
medical follow-up because plaintiff could not point to evidence
showing that the doctors’ disregard of the note reflected the
requisite culpable state of mind); Gillespie v. Hogan, 182 F. App’x
103, 105 (3d Cir. 2006) (a physician’s failure to review or take
a patient’s medical history may be negligence, but it is not
deliberate indifference).
Defendant Cabreo-Muniz is entitled to summary judgment on
Plaintiff's claim that he did not request utilization management
approval of Plaintiff's surgery in a timely manner.
19
Likewise,
summary judgment is denied on Plaintiff's claim that Defendant
Cabreo-Muniz was deliberately indifferent for failing to timely
request utilization management approval for Plaintiff's surgery.
4.
Defendant's
failure
to
condition as an emergency
classify
Plaintiff's
Although Plaintiff has presented no evidence that Defendant
Cabreo-Muniz had the authority to bypass utilization management
requirements and schedule his surgery prior to getting their
approval, he argues that Defendant Cabreo-Muniz was deliberately
indifferent to his serious medical needs because he classified
Plaintiff's broken finger as “urgent” instead of “emergent.” (Doc.
66 at 16).
Plaintiff asserts that, had Defendant Cabreo-Muniz
classified Plaintiff's broken finger as an emergency, he would
have received surgery sooner. Id. at 17.
Defendant Cabreo-Muniz has filed evidence showing that an
emergency
is
defined
by
utilization
management
as
conditions
“which are life or function threatening and/or which may cause the
person to deteriorate rapidly.” (Doc. 85-1 at 7, 43; Doc. 85-1 at
49 (Technical Instruction No. 15.09.04, Utilization Management
Procedures)).
Urgent conditions are those that do not require
immediate resolutions, “but must be treated within several days to
several weeks or the condition will deteriorate and possibly become
an emergency condition.” (Doc. 85-1 at 43; Doc. 85-1 at 49).
Defendant Cabreo-Muniz attests that Plaintiff's broken finger was
20
not an emergency because it was not life threatening and would not
cause him to deteriorate rapidly (Doc. 85-1 at 44).
Plaintiff does not disagree with utilization management’s
definitions of “urgent” or “emergency.”
Rather, he argues that
Hoffman’s recommendation that Plaintiff be scheduled for surgery
“asap” mandated that Defendant Cabreo-Muniz classify his broken
finger as an emergency and that his failure to recognize such
constituted deliberate indifference (Doc. 66 at 16; Doc. 91-2 at
11).
Plaintiff has filed Hoffman’s consultation notes in support
of his motion for summary judgment (Doc. 65-4 at 5).
Upon review,
the Court notes that Hoffman’s consultation notes do not indicate
that Plaintiff's condition was “life or function threatening” or
would cause Plaintiff to “deteriorate rapidly.”
Rather, the
consultation notes indicate only that Plaintiff's surgery should
be arranged “asap.” (Doc. 65-4 at 5).
Plaintiff's
assertion
that
his
condition
necessitated
“emergency” classification rather than “urgent” classification is
merely a disagreement with Defendant Cabreo-Muniz’ professional
judgment.
Disagreement about the course of one’s treatment is “a
classic example of a matter for medical judgment” that does not
give rise to an actionable claim of deliberate indifference.
Estelle, 429 U.S. at 107.
medical
decision
on
The evidence demonstrates a considered
Defendant
Cabreo-Muniz’
Plaintiff's finger in a particular manner.
21
part
to
treat
Such a decision, while
possibly
incorrect
indifference.
or
even
Plaintiff
negligent,
has
alleged,
is
not
at
most,
deliberate
a
medical
malpractice claim. See Barnes v. Martin City Sheriff’s Dep’t, 326
F. App’x 533, 535 (11th Cir. 2009) (recognizing that a complaint
that a physician has been negligent in diagnosing or treating a
medical
condition
does
not
state
a
valid
claim
of
medical
mistreatment under the Eighth Amendment); Cain v. Baden, Case 1:10CV109,
2012
WL
629156,
at
*5
(M.D.
Ga.
2012)
(recommending
dismissal as frivolous plaintiff's claim that doctors identified
his serious medical problem as “light” instead of “serious” and by
giving him antibiotics to treat a bone infection rather than
surgery,
because
negligence
or
those
medical
allegations
malpractice
essentially
rather
than
constitute
deliberate
indifference), report and recommendation adopted by, No. 1:10–CV–
109 WLS, 2012 WL 629144 (M.D. Ga. Feb.24, 2012).
Because there is no medical evidence to support Plaintiff's
claim that Defendant Cabreo-Muniz was deliberately indifferent
when
he
failed
to
classify
Plaintiff's
broken
finger
as
an
emergency, Defendant Cabreo-Muniz is entitled to summary judgment
on this claim.
Likewise, Plaintiff's motion for summary judgment
on this issue is denied.
c.
Summary judgment is granted in favor of Defendant
Cabreo-Muniz on Plaintiff's claims for injunctive relief
In his complaint, Plaintiff seeks orders from the Court
enjoining
the
Department
of
Corrections
22
from
providing
legal
representation
to
Defendant
Cabreo-Muniz;
ordering
Defendant
Cabreo-Muniz to immediately arrange surgery, physical therapy, and
treatment for Plaintiff's hand; and enjoining Defendant CabreoMuniz from “retaliating” against him for filing the instant lawsuit
(Doc. 1 at 7-8).5
1.
Representation
Plaintiff asks this Court to enter an injunction prohibiting
the Department of Corrections, the Attorney General, or any other
state agency from providing legal assistance to Defendant (Doc. 1
at 8).
Florida Statute § 111.07 authorizes any agency of the state
to provide an attorney to defend a civil action against its
employees. Id.
As the Supreme Court stated in Allen v. Wright,
468 U.S. 737 (1984), “[w]hen a plaintiff seeks to enjoin the
activity of a government agency, even within a unitary court
system, his case must contend with the well-established rule that
the Government has traditionally been granted the widest latitude
in the ‘dispatch of its own internal affairs.’” Id. at 761 (quoting
Rizzo v. Goode, 423 U.S. 362, 378-79 (1976)).
5
Plaintiff appears to have abandoned his requests for injunctive
relief in that he has not responded to the discussion of such in
Defendant Cabreo-Muniz’ motion for summary judgment. Likewise, in
his own motion for summary judgment (Doc. 66) and his response to
Defendant Cabreo-Muniz’ motion for summary judgment (Doc. 91),
Plaintiff seeks only monetary relief. However, in the absence of
an express statement from Plaintiff that he has abandoned his
requests for injunctive relief, the Court will briefly address
these claims.
23
Plaintiff’s attempt to prevent the Attorney General from
representing
Defendant
Cabre-Muniz
essentially discretionary decision.
is
a
challenge
to
an
Allen recognized that the
separation of powers doctrine counsels against finding standing
where
a
plaintiff
“seek[s]
a
restructuring
of
the
apparatus
established by the Executive Branch to fulfill its legal duties.”
468 U.S. at 761.
Thus, Plaintiff lacks standing to challenge the
Attorney General's representation of a state employee.
Defendant
Cabreo-Muniz is entitled to judgment as a matter of law on this
claim.
2.
Medical Treatment
Under Article III of the Constitution, federal courts may
only
hear
“cases
or
controversies.”
Lujan
v.
Defenders
of
Wildlife, 504 U.S. 555, 559–60 (1992). “A [claim] is moot when it
no longer presents a live controversy with respect to which the
court can give meaningful relief.” Ethredge v. Hail, 996 F.2d 1173,
1175 (11th Cir. 1993).
A claim can still be considered if a court
lacks “assurance that there is no reasonable expectation that the
alleged violation will recur,” or, as it is commonly stated, the
situation is “capable of repetition, yet evading review[.]” DiMaio
v. Democratic Nat'l Comm., 555 F.3d 1343, 1345 (11th Cir. 2009).
Evidence has been presented that Plaintiff received surgery
on his right hand on January 26, 2012 and is currently undergoing
physical therapy (Doc. 85-1 at 45; Doc. 65-7 at 5).
24
There is no
reasonable expectation that Plaintiff will be denied surgery on
his hand in the future.
Accordingly, Plaintiff's requests that he
receive medical treatment for his broken finger are moot.
3.
Plaintiff
Retaliation
seeks
injunctive
relief
prohibiting
Defendant
Cabreo-Muniz from retaliating against him for filing this action.6
Plaintiff must satisfy four prerequisites before a preliminary
injunction is warranted: (1) a substantial likelihood of success
on the merits; (2) a substantial threat of irreparable injury
without the injunction; (3) that the harm to Plaintiff outweighs
the harm to the non-moving parties; and (4) that an injunction
would be in the interest of the public. Palmer v. Braun, 287 F.3d
1325, 1329 (11th Cir. 2002).
Injunctive relief will not issue
unless the alleged misconduct is imminent and no other relief or
compensation is available. Cunningham v. Adams, 808 F.2d 815, 821
(11th Cir. 1987).
“[A] preliminary injunction is an extraordinary
and drastic remedy not to be granted unless the movant clearly
established the burden of persuasion” as to each of the four
prerequisites. McDonald's Corp. v. Robertson, 147 F.3d 1301, 1306
6
Plaintiff speculates that Defendant Cabreo-Muniz will initiate
“‘set-ups’ such as planting shanks or other contraband in
Plaintiff's locker, on his locker, on his bunk or anywhere in his
living area for which he is held responsible.” (Doc. 1 at 8).
Plaintiff also speculates that Defendant Cabreo-Muniz may harass
his family members, give him unreasonable job assignments, or have
him transferred to an institution farther away from home. Id. at
8-9.
25
(11th Cir. 1998) (internal citations and quotations omitted); see
also Texas v. Seatrain Int'l, S.A., 518 F.2d 175, 179 (5th Cir.
1975) (grant of preliminary injunction “is the exception rather
than the rule,” and movant must clearly carry the burden of
persuasion).
The
moving
party's
failure
to
demonstrate
a
“substantial likelihood of success on the merits” may defeat the
party's claim, regardless of the party's ability to establish any
of the other elements. Church v. City of Huntsville, 30 F.3d 1332,
1342 (11th Cir. 1994); see also Siegel v. Lepore, 234 F.3d 1163,
1176 (11th Cir. 2000) (noting that “the absence of a substantial
likelihood
of
irreparable
injury
would,
standing
alone,
make
preliminary injunctive relief improper”).
Plaintiff has not alleged any specific act of retaliation on
the part of Defendant Cabreo-Muniz.
Plaintiff's subjective belief
that correctional officials may retaliate against him for his
litigation
activities
is
insufficient
to
demonstrate
a
constitutional violation. See Laird v. Tatum, 408 U.S. 1 (1972)
(subjective allegations are not an adequate substitute for claims
of specific, present harm or threat of a specific, future harm).
Plaintiff likewise fails to demonstrate that he will suffer
the requisite irreparable injury absent issuance of a preliminary
injunction.
Defendant
His speculative allegations concerning the conduct of
Cabreo-Muniz
is
not
the
type
justifying the issuance of an injunction.
26
of
irreparable
harm
Any problems Plaintiff
may encounter as a result of filing grievances, complaints, and/or
lawsuits can be accomplished through the filing of a complaint in
federal court. See Sampson v. Murray, 415 U.S. 61, 90 (1974)
(internal quotation omitted) (this “possibility that adequate
compensatory or other corrective relief will be available at a
later date, in the ordinary course of litigation, [also] weighs
heavily against a claim of irreparable harm.”).
Finally,
with
regard
to
the
third
and
fourth
factors,
Plaintiff fails to show that the harm to Plaintiff outweighs the
harm to the defendant, and the pleadings before the court are
devoid of any evidence showing that issuance of an injunction would
serve the public interest.
In light of the foregoing, the court finds that Plaintiff has
failed to meet the requisite burden for injunctive relief. He has
not
demonstrated
a
likelihood
of
success
on
the
merits.
Additionally, Plaintiff has not demonstrated that any threatened
injury he faces outweighs the potential harm caused to Defendant
Cabreo-Muniz by injunctive relief.
Finally, it would not serve
the public interest to grant him injunctive relief.
Defendant
Cabreo-Muniz is granted summary judgment on all of Plaintiff's
claims for injunctive relief.
VI.
Conclusion
Plaintiff has failed to show that there is a genuine issue of
material
fact
regarding
whether
27
Defendant
Cabreo-Muniz
was
deliberately indifferent to his serious medical condition.
In
addition, Plaintiff has not demonstrated that he is entitled to
injunctive relief.
Because all claims against Defendant Cabreo-
Muniz are dismissed, this Court will not address his argument that
he is entitled to qualified immunity.
Accordingly, it is hereby ORDERED:
1.
Plaintiff's motion for summary judgment (Doc. 66) is
DENIED;
2.
Defendant
Cabreo-Muniz’
motion
for
summary
judgment
(Doc. 85) is GRANTED;
3.
With no remaining defendants or claims, the Clerk of
Court is directed to terminate all pending motions, enter judgment
accordingly, and close this case.
DONE and ORDERED in Fort Myers, Florida on this
of June, 2014.
SA: OrlP-4
Copies to: James C. Peacock
Counsel of Record
28
9th
day
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