Whitehead v. Sheldon et al
Filing
86
OPINION AND ORDER denying 74 Motion for Partial Summary Judgment; granting 76 Motion for summary judgment by defendants Smart, Easter, Walker, and Lamour. With no remaining claims or defendants, the Clerk shall enter judgment accordingly and close the case. Signed by Judge John E. Steele on 11/12/2014. (RKR)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
BRUCE WHITEHEAD,
Plaintiff,
v.
Case No: 2:12-cv-197-FtM-29DNF
JACQUES LAMOUR, Dr., HUBERT
SMART, Lieutenant, HOWARD
EASTER, C.O., and E. WALKER,
TST,
Defendants.
OPINION AND ORDER
This matter comes before the Court upon the following:
The motion for partial summary judgment filed
Plaintiff Bruce Whitehead against Defendant
Jacques Lamour (Doc. 74, filed May 12, 2014);
Defendant
Jacques
Lamour’s
response
in
opposition to Plaintiff's motion for partial
summary judgment (Doc. 80, filed June 17,
2014);
The motion for summary judgment filed by
Defendants Howard Easter, Jacques Lamour,
Hubert Smart, and E. Walker (Doc. 76, filed
May 16, 2014); and
Plaintiff's
response
in
opposition
to
Defendants’ motion for summary judgment (Doc.
84, filed August 1, 2014).
Plaintiff Bruce Whitehead (“Plaintiff”) initiated this action
by filing a civil rights complaint pursuant to 42 U.S.C. § 1983
(Doc. 1).
Plaintiff's amended complaint is currently before the
Court (Doc. 17).
The claims raised in Plaintiff's amended complaint stem from
events that occurred on March 12, 2009 at the Florida Civil
Commitment Center (“FCCC”) in Arcadia, Florida.
As discussed
below, the Court concludes that Plaintiff's motion for partial
summary judgment against Defendant Lamour is due to be denied.
The motion for summary judgment filed by Defendants Smart, Easter,
Walker, and Lamour is due to be granted.
I.
Procedural History
Plaintiff 1 initiated this case on April 5, 2012 by filing a
complaint against Udayan Agrawal, Craig Beloff, Timothy Budz,
1
Plaintiff is civilly detained at the Florida Civil
Commitment Center pursuant to Florida’s Involuntary Civil
Commitment of Sexually Violent Predator’s Act and is proceeding
pro se.
The Florida legislature enacted the Sexually Violent
Predators Act, Fla. Stat. §§ 394.910-.913, by which a person
determined to be a sexually violent predator is required to be
housed in a secure facility “for control, care, and treatment until
such time as the person’s mental abnormality or personality
disorder has so changed that it is safe for the person to be at
large.” Fla. Stat. § 394.917(2). The Act was promulgated for the
dual purpose “of providing mental health treatment to sexually
violent
predators
and
protecting
the
public
from
these
individuals.”
Westerheide v. State, 831 So. 2d 93, 112 (Fla.
2002); Kansas v. Hendricks, 521 U.S. 346 (1997) (holding that the
Kansas Sexually Violent Predator Act did not establish criminal
proceedings, and involuntary confinement pursuant to the Act was
not punitive).
Civil commitment under the Act involves several steps.
First, the Act requires a mental evaluation of any person who has
committed a sexually violent offense and is scheduled for release
from prison or involuntary confinement. See Fla. Stat. § 394.913.
The evaluation is conducted by a multi-disciplinary team of mental
health professionals who must determine whether the individual
meets the definition of a “sexually violent predator.” After the
evaluation, the state attorney may file a petition with the circuit
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Jorge Deminicus, Howard Easter, George Emanoilidis, Angel Garrido,
Geo Group, Inc., Michael P. Hancock, Suzonne Kline, Jacques Lamour,
Moiere Landais, Ron Lawrenz, Rex Richie, George Sheldon, Hubert
Smart, FNU Walker, and Robin Wilson (Doc. 1).
Because Plaintiff
raised unrelated claims in the complaint and failed to adequately
state claims against some of the defendants, he was ordered to
file an amended complaint if he wished to proceed (Doc. 14, filed
October 31, 2012).
Plaintiff filed an amended complaint on December 26, 2012 in
which he sued defendants Dr. Angel Garrido, Dr. Jacques Lamour,
Hubert Smart, Howard Easter, Earl Walker, Dr. Michael P. Hancock,
Dr. Udayan Agrawal, and Moliere Landais (Doc. 17).
Defendants
Garrido, Hancock, Agrawal, and Landais were dismissed from this
case due to Plaintiff's failure to state a claim against them. See
court alleging that the individual is a sexually violent predator
subject to civil commitment under the Act.
Id.
If the judge
determines the existence of probable cause that the individual is
a sexually violent predator, then he or she will order the
individual to remain in custody. Id. at § 394.915.
Thereafter,
a jury trial, or a bench trial if neither party requests a jury
trial, will commence. Id. If the jury finds the individual to
be a sexually violent predator by clear and convincing evidence,
then the individual will be committed to the custody of the
Department of Children and Family Services for “control, care, and
treatment until such time as the person’s mental abnormality or
personality disorder has so changed that it is safe for the person
to be at large.” Id. at § 394.917.
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Orders
at
Doc.
20,
Doc.
66.
In
this
Order,
the
remaining
Defendants shall be referred to collectively as “Defendants.”
On December 17, 2013, Defendants were ordered to conduct
discovery (Doc. 69).
Thereafter, Plaintiff filed a motion seeking
partial summary judgment on all of his claims against Defendant
Lamour (Doc. 74).
Defendants filed a motion seeking summary
judgment in their favor on all of Plaintiff's claims (Doc. 76).
II.
Pleadings
A.
Plaintiff’s Amended Complaint
All of Plaintiff's allegations in his amended complaint stem
from an event that occurred on March 12, 2009 in which Plaintiff
claims that excessive force was used against him and that the
excessive force resulted in Plaintiff's broken hip.
The facts,
as alleged in Plaintiff's amended complaint, are as follows:
Each defendant in this action knew, “or should have known by
review of Plaintiff's Clinical File” that he suffers from PostTraumatic
Stress
(Doc. 17 at ¶ 3).
Disorder
and
Borderline
Personality
Disorder
On March 12, 2009, he was on suicide watch
status which involved confinement in an 8.5 foot by 5.5 foot cell.
Plaintiff asserts that his psychiatrist ordered that Plaintiff was
allowed to leave the cell for bathroom breaks only, and then only
when escorted by three security guards (Doc. 17 at ¶ 4; Doc. 17-4
at 2, 3).
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On March 12, 2009, Plaintiff told Defendant Walker that he
needed to use the restroom.
Plaintiff was escorted to the restroom
by Defendant Walker, Defendant Easter, and Defendant Smart (Doc.
17 at ¶ 5).
While in the restroom, Plaintiff broke a towel rack
from the wall, used the towel rack to smash a glass mirror, held
a portion of the broken mirror to his throat, and threatened to
cut himself if he was not taken outside for fresh air and a smoking
break. Id.
Plaintiff was escorted outside, and after smoking
approximately half a cigarette, he dropped the broken mirror to
the
sidewalk.
Id.
Defendant
Smart
approached
Plaintiff
who
“assertively requested Defendant Smart to respect him and that he
be given his personal space.” Id.
Defendants Smart and Easter
then walked towards Plaintiff “in an aggressive and threatening
manner.” Id. ¶ 6.
Plaintiff felt threatened and ran away which
involved climbing over the handrail surrounding the sidewalk. Id.
He was pursued by Defendants Smart and Easter. Id.
Defendant
Smart “grabbed the Plaintiff from behind by the top of Plaintiff's
shoulders with two hands, forcibly driving his right knee upwards,
striking Plaintiff in the right lower back and hip area.” Id.
Plaintiff's and Smart’s forward momentum caused Plaintiff to fall
forward about 2.5 feet from a concrete ledge and caused Defendant
Smart to land on top of Plaintiff. Id. at ¶¶ 6-7.
Defendant Smart
then forced Plaintiff's face into the dirt and screamed obscenities
at him. Id.
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Defendant Easter grabbed Plaintiff’s right arm and forced it
behind Plaintiff's back while Defendant Smart forced Plaintiff's
left arm behind Plaintiff's back (Doc. 17 at ¶ 7).
Plaintiff
screamed in pain that his leg was broken, but Defendants Smart and
Walker “picked up Plaintiff by his arms and forced him to his feet
while continuing to disregard [his] screams” that his leg was
broken.” Id. at ¶ 8.
Plaintiff was escorted to the medical
building with his right foot and leg dragging the ground. Id.
Subsequent
to
his
altercation
with
Defendants
Smart
and
Easter, Defendant Lamour examined Plaintiff and ordered that he be
taken to Desoto Memorial Hospital for further examination (Doc. 17
at ¶ 9).
Plaintiff was taken to Desoto Memorial Hospital on the
same day (March 12, 2009) (Doc. 17 at ¶ 11).
At the hospital,
Plaintiff's right hip was x-rayed, and he was told that the only
injuries he had received were bruises even though he told the
doctors at the hospital that he believed his leg to be broken (Doc.
17 at ¶ 11).
Plaintiff was given medication for pain and was
discharged from the hospital (Doc. 17 at ¶ 11).
The next morning,
Plaintiff was returned to his suicide watch isolation cell (Doc.
17 at ¶ 12).
On March 13, 2009, Desoto Memorial Hospital contacted the
FCCC to advise of an “acute fracture of the right Ischium and
likely the Acetabulum of the Plaintiff's right hip.” (Doc. 17 at
13).
Defendant Lamour “did not seek emergency medical care until
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the evening of March 14, 2009[.]” (Doc. 17 at 13).
Plaintiff was
admitted to the Tampa General Hospital on March 14, 2009 (Doc. 17
at 13).
Plaintiff seeks compensatory damages of $100,000 from each
defendant and punitive damages “in amounts to be proven at trial”
and all future medical expenses associated with any future injuries
that may be associated with his hip injuries (Doc. 1 at 11).
Plaintiff has attached numerous documents in support of his
amended complaint.
The documents relate generally to Plaintiff's
classification as a sexually violent predator and his detention in
a suicide watch cell.
He also attached the medical records
relating to his broken hip (Doc. 17-6; Doc. 17-7; Doc. 17-8; Doc.
17-9) and sworn affidavits of FCCC residents William M. Vogt (Doc.
17-5 at 2-3) and Elwood Wise (Doc. 17-5 at 4-5).
B.
Plaintiff's Motion for Partial Summary Judgment
In Plaintiff's motion for partial summary judgment against
Defendant Lamour he generally asserts that it not disputed that he
(Plaintiff) suffered fractures to his right hip and that Defendant
Lamour did not provide immediate emergency care after he learned
of the extent of Plaintiff's injuries (Doc. 74).
Therefore,
Plaintiff asserts, he has shown that “Defendant Lamour is liable
for damages for deliberate indifference to a serious medical need
and unnecessary wanton infection of pain[.]” (Doc. 74 at 5).
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In support of his motion, Plaintiff relies on and cites to
opinions from the Fourth, Fifth, Seven, Tenth, and Eleventh Courts
of Appeal as well as a district court opinion from the Middle
District of Alabama and a Massachusetts state court case (Doc. 74
at 9-10).
answers
Plaintiff also attaches as exhibits Defendant Lamour’s
to
interrogatories
(Doc.
74-2,
“Lamour’s
Interrog.”);
Plaintiff's affidavit (Doc. 74-3; “Plaintiff's First Aff.”); and
a number of Plaintiff's medical records regarding his hip injury
(Doc. 74-3). 2
In
response
to
Plaintiff's
motion
for
partial
summary
judgment, Defendant Lamour argues that the facts of this case
demonstrate
that
summary
judgment
(Lamour’s) favor (Doc. 80 at 2).
should
be
granted
in
his
Defendant Lamour also addresses
and distinguishes each of the cases cited by Plaintiff in support
of his claims. Id. at 2-8.
In the interests of brevity, Defendant
Lamour “adopts the arguments, case law and his own affidavit which
were encompassed in the Defendants’ Motion for Summary Judgment”
(Doc. 80 at 2).
C.
Defendants’ Motion for Summary Judgment
Defendants filed a motion for summary judgment in which they
assert that Defendants Smart, Easter, and Walker used only the
2
Plaintiff's medical records are also attached to his amended
complaint (Doc. 17) and to Defendants’ motion for summary judgment
(Doc. 76).
- 8 -
amount of force necessary to control Plaintiff who posed a security
threat to the FCCC (Doc. 76).
Defendant Lamour asserts that
Plaintiff was provided with adequate and sound medical care while
at the FCCC and that Plaintiff has failed to demonstrate that he
(Lamour) acted with deliberate indifference to Plaintiff's serious
medical needs. Id.
In support of their motion for summary judgment, Defendants
attach to the motion: Affidavit of Defendant Smart (Doc. 76-1,
“Smart Affidavit”); Affidavit of Howard Easter (Doc. 72-2, “Easter
Affidavit”);
Affidavit
of
Eddie
Walker
(Doc.
76-3,
“Walker
Affidavit”); Affidavit of Jacques Lamour, M.D. (Doc. 76-4, “Lamour
Affidavit”); and Plaintiff's medical records from the FCCC, Tampa
General Hospital, and Desoto Memorial Hospital (Doc. 76-5).
Plaintiff has responded to Defendants’ motion for summary
judgment by pointing out specific factual disputes and by attaching
another of his own affidavits (Doc. 84-1, “Plaintiff's Second
Affidavit”).
III. Legal Standards
A.
Summary Judgment Standard
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).
- 9 -
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 non-moving party's
case necessarily renders all other facts
immaterial.
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).
The
movant may meet this burden by presenting evidence that 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.
Id. 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
- 10 -
which that party will bear the burden of proof at trial.” Celotex,
477 U.S. at 322, (1986).
The standard for creating a genuine dispute of fact requires
courts to make all reasonable inferences in favor of the party
opposing summary judgment, but it does not require the courts to
make all possible inferences in the non-moving party’s favor.
Chapman v. Al Transp., 229 F.3d 1012, 1013 (11th Cir. 2000).
Moreover, a factual dispute alone is not sufficient to defeat a
properly pleaded motion for summary judgment.
Instead, “[o]nly
factual disputes that are material under the substantive law
governing the case will preclude entry of summary judgment.” Lofton
v. Sec’y Dep’t of Children & Family Servs., 358 F.3d 804, 809 (11th
Cir. 2004) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
247-48 (1986)).
Finally, in the summary judgment context, the Court must
construe pro se pleadings more liberally than those of a party
represented by an attorney. Loren v. Sasser, 309 F.3d 1296 (11th
Cir. 2002).
B.
Excessive Force Standard
Plaintiff is civilly committed, the FCCC is not a prison, and
Plaintiff is not a prisoner. Troville v. Venz, 303 F.3d 1256, 1260
(11th
Cir.
2002).
The
Supreme
Court
has
recognized
that
an
individual who has been involuntarily civilly confined has liberty
- 11 -
interests under the Due Process Clause of the Fourteenth Amendment
that “require the State to provide minimally adequate or reasonable
training to ensure safety and freedom from undue restraint.”
Youngberg v. Romeo, 457 U.S. 307, 319 (1982). Thus, the Supreme
Court has opined that, at least in regards to certain aspects of
civil detainees' confinement, they are afforded a higher standard
of care than those who are criminally committed. 3
Id. at 321–322;
Dolihite v. Maughon, 74 F.3d 1027, 1041 (11th Cir. 1996) (holding
that
“persons
entitled
to
subjected
more
to
involuntary
considerate
civil
treatment
and
commitment
conditions
are
of
confinement than criminals whose conditions of confinement are
designed to punish.”)(quoting Youngberg, 457 U.S. at 322 (internal
quotation omitted)); see also Lavender v. Kearney, 206 F. App'x
860, 863 (11th Cir. 2006).
This, however, does not mean that civil detainees are free to
live within the FCCC without any restrictions or limitations. The
FCCC residents, like pretrial detainees who are facing criminal
charges or detainees confined in mental hospitals, are not entitled
to the same unrestricted liberties as persons in the outside world.
While residents may object to having to comply with the FCCC's
rules
and
restrictions,
or
orders
3
given
by
staff
at
the
In Youngberg, the issue was whether a severely retarded
young man had received proper treatment in a state facility. Id.
at 309.
- 12 -
institution,
neither
the
fact
of
their
existence
nor
their
imposition gives rise to a constitutional violation because such
does
not
constitute
punishment.
Indeed,
the
Supreme
Court
observed this point, opining in pertinent part, as follows:
Once the Government has exercised its conceded
authority to detain a person . . . it obviously
is entitled to employ devices that are
calculated to effectuate this detention.
Traditionally, this has meant confinement in
a facility which, no matter how modern or how
antiquated,
results
in
restricting
the
movement of a detainee in a manner in which he
would not be restricted if he simply were free
to walk the streets pending trial.
Whether
it be called a jail, a prison, or a custodial
center, the purpose of the facility is to
detain. Loss of freedom of choice and privacy
are inherent incidents of confinement in such
a facility. And the fact that such detention
interferes with the detainee's understandable
desire to live as comfortably as possible and
with as little restraint as possible during
confinement does not convert the conditions or
restrictions of detention into “punishment.”
Bell v. Wolfish, 441 U.S. 520, 537 (1979).
The
need
to
curtail
potentially
violent
conduct
“obligation” incumbent upon the operators of the FCCC.
is
an
Washington
v. Harper, 494 U.S. 210, 225 (1990) (stressing that the state has
not only an interest, but an obligation, to combat any danger posed
by a person to himself or others, especially in an environment,
which by definition is made up of persons with a demonstrated
proclivity for antisocial criminal, and often violent, conduct).
Consequently,
staff
at
the
FCCC
are
- 13 -
tasked
with
the
arduous
responsibility of rendering treatment consistent with the goals of
the SVP Act while ensuring the safety of not only themselves and
other administrative personnel, but of all residents who are
confined at the FCCC. The Supreme Court has recognized that the
“interest in institutional security” and “internal security” is
paramount. Hudson v. Palmer, 468 U.S. 517, 528 (1984).
Under the Eighth Amendment, 4 to establish an excessive use of
force claim, a plaintiff must satisfy both an “objective” and a
“subjective” prong. Smith, 373 F. App'x at 966 (citing Campbell v.
Sikes,
169
F.3d
1353,
1374
(11th
Cir.
1999).
To
meet
the
“objective” prong, the amount of force must be more than de
minimis, provided that the type of force is not of the kind that
4
The Eleventh Circuit recognizes that the Fourteenth
Amendment protects pretrial detainees from the use of excessive
force; however, because the Eighth Amendment standard is the same,
“decisional law involving prison inmates applies equally to cases
involving arrestees or pretrial detainees.” Cottrell v. Caldwell,
85 F.3d 1480, 1490 (11th Cir. 1996); see also Smith v. Vavoulis,
373 F. App'x 965, 966 (11th Cir. 2010); Williams v. Scott, 433 F.
App’x 801 (11th Cir. 2011) (applying Cottrell in case involving
FCCC resident alleging excessive use of force); but compare
Enriquez v. Kearney, 694 F. Supp. 2d 1282, 1291–1292 (S.D. Fla.
2010) (recognizing that the Eighth Amendment's “malicious or
sadistic” intent is at odds with the Fourteenth Amendment's
punishment benchmark and evaluating claim under the “revised” test
adopted in Telfair v. Gilbert, 868 F. Supp. 1396, 1404 (S.D. Ga.
1994), which requires a lesser showing of intent than that set
forth by the Eighth Amendment. Namely, whether there is direct
evidence that the use of force was intended to punish the detainee.
If not, (1) whether a legitimate use of force is evident from the
circumstances, and (2) if so, whether the force was necessary to
further that interest. Telfair, 868 F. Supp. at 1412).
- 14 -
is “repugnant to the conscience of mankind.” Hudson v. MacMillian,
503 U.S. 1, 10 (1992). To fulfill the “subjective” prong the
plaintiff must demonstrate that the force was applied maliciously
and sadistically for the purpose of causing harm. Smith, 373 F.
App'x at 966.
evaluating
The court examines the following five factors when
whether
sadistically:
(1)
the
the
force
extent
was
of
applied
injury;
maliciously
(2)
the
and
need
for
application of force; (3) the relationship between that need and
the amount of force used; (4) any efforts made to temper the
severity of a forceful response; and (5) the extent of the threat
to the safety of staff and inmates, as reasonably perceived by the
responsible officials on the basis of facts known to them. Id.
C.
Eighth Amendment Deliberate Indifference Standard
Deliberate indifference to the serious medical needs of a
prisoner “constitutes the unnecessary and wanton infliction of
pain . . . proscribed by the Eighth Amendment.” Farrow v. West,
320 F.3d 1235, 1243 (11th Cir. 2003) (quoting Estelle v. Gamble,
429 U.S. 97, 104 (1976)); see also Campbell v. Sikes, 169 F.3d
1353 (11th Cir. 1999).
In order to state a claim for a violation
under the Eighth Amendment, a plaintiff must allege “acts or
omissions sufficiently harmful to evidence deliberate indifference
to serious medical needs.” Estelle, 429 U.S. at 106. This showing
requires a plaintiff to satisfy both an objective and a subjective
- 15 -
inquiry. Farrow, 320 F.3d at 1243 (citing Taylor v. Adams, 221
F.3d 1254, 1257 (11th Cir. 2000)).
A plaintiff must first show that he had an “objectively
serious
medical
need.”
Id.
“[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 for a doctor's attention.’” Farrow,
320 F.3d at 1243 (citing Hill v. Dekalb Reg'l Youth Det. Ctr., 40
F.3d 1176, 1187 (11th Cir. 1994), abrogated in part on other
grounds, Hope v. Pelzer, 536 U.S. 730, 739 n.9 (2002)).
In either
situation, “the medical need must be ‘one that, if left unattended,
pos[es] a substantial risk of serious harm.” Id. (citing Taylor,
221 F.3d at 1258) (alteration in original); see also Andujar v.
Rodriquez, 486 F.3d 1199, 1203 (11th Cir. 2007) (finding that a
condition
involving
more
than
“superficial”
wounds,
affecting
ability to walk, and pain that caused crying was objectively,
sufficiently serious).
Second, a plaintiff must establish that a defendant acted
with
“deliberate
indifference”
by
showing:
(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).
- 16 -
Inadvertence or mere negligence in failing to provide adequate
medical care does not rise to a constitutional violation. Farrow,
320 F.3d at 1243.
eighth
amendment
Rather, “[m]edical treatment violates the
only
when
it
is
‘so
grossly
incompetent,
inadequate, or excessive as to shock the conscience or to be
intolerable to fundamental fairness.’” Harris v. Thigpen, 941 F.2d
1495, 1505 (11th Cir. 1991) (quoting Rogers v. Evans, 792 F.2d
1052, 1058 (11th Cir. 1986)).
Mere incidents of negligence or
malpractice do not rise to the level of constitutional violations.
Id.
The Supreme Court has stated that decisions such as whether
an x-ray, additional diagnostic techniques, or other forms of
treatment are indicated are “[c]lassic example[s] of matters for
medical judgment.” Estelle, 429 U.S. at 107.
The course of
treatment chosen by a medical official would appear to be such “a
classic example of a matter for medical judgment.” Id.
denial
of
readily
available
treatment
for
a
A complete
serious
medical
condition obviously constitutes deliberate indifference. Harris v.
Coweta County, 21 F.3d 388, 393 (11th Cir. 1994).
However, no
constitutional violation exists where an inmate and a prison
medical official merely disagree as to the proper course of medical
treatment. Harris, 941 F.2d at 1505.
IV.
Findings of Facts and Conclusions of Law
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Plaintiff
alleges
that
Defendant
Smart
used
unnecessary
excessive force to subdue him and that Defendants’ Easter and
Walker helped him do so in violation of the Eighth and Fourteenth
Amendments to the United States Constitution (Doc. 17 at 4).
Plaintiff also alleges that Defendant Lamour, having knowledge of
Plaintiff's injuries failed to expediently seek medical attention,
demonstrating
deliberate
medical needs. Id. at 5.
A.
indifference
to
Plaintiff's
serious
Each claim will be addressed separately.
Defendants Smart, Easter, and Walker are entitled to
summary judgment as a matter of law on Plaintiff’s
excessive force claims
1.
Material Facts
Most of the material facts surrounding the incident that led
to Plaintiff's fractured hip are not in dispute.
On March 12,
2009, Plaintiff was on suicide watch, which meant that he was on
“continuous uninterrupted observation.” (Doc. 17 at 8; Doc. 76 at
¶ 2).
Plaintiff notified Defendant Walker that he needed to use
the restroom, and he was escorted to the restroom by Defendants
Walker, Easter, and Smart (Doc. 17 at 7).
While Plaintiff was in the restroom, he broke a towel rack
from the wall and used the rack to smash a glass mirror (Doc. 17
at ¶ 5; Easter Aff. at ¶¶ 7-9; Walker Aff. at ¶ 7).
Plaintiff
held a piece of the broken mirror to his own throat and threatened
to cut himself if he was not taken outside (Doc. 17 at ¶ 5; Smart
Aff. At ¶ 15; Easter Aff. At ¶ 14; Walker Aff. At ¶ 14).
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Plaintiff
was escorted outside by Defendants Smart, Easter, and Walker (Doc.
17 at ¶ 5; Smart Aff. at ¶¶ 17-18; Easter Aff. at ¶ 17; Walker
Aff. at ¶ 12).
Easter
and
Plaintiff felt threatened by Defendants Smart and
crossed
the
handrail
enclosing
the
sidewalk
and
attempted to run from the area (Doc. 17 at ¶ 6; Smart Aff. at ¶¶
21-22; Easter Aff. at ¶¶ 19-20; Walker Aff. at ¶ 15-16).
Plaintiff
was pursued by Defendant Smart who subdued Plaintiff by tackling
him to the ground (Doc. 17 at ¶ 6-7; Smart Aff. at ¶ 22).
Afterwards,
Plaintiff
was
handcuffed
by
Defendants
Smart
and
Easter (Doc. 17 at ¶ 7; Smart Aff. at ¶ 23; Easter Aff. at ¶ 22).
Plaintiff
was
then
escorted
to
the
medical
building
for
an
assessment (Doc. 17 at ¶ 9; Smart Aff. at ¶ 24; Easter Aff. at ¶
23; Walker Aff. at ¶ 23).
The areas of factual dispute in this case generally go to the
necessity of force used by Defendant Smart in his tackle of
Plaintiff and to whether or not the Plaintiff screamed in pain
after he was taken to the ground.
The Plaintiff and Defendants
Smart, Easter, and Walker also disagree as to whether Plaintiff
was still holding broken glass in his hand at the time he jumped
over the sidewalk railing and fled from them.
Plaintiff asserts that he dropped the glass in his hand after
he was taken outside and after he had smoked half a cigarette, and
when he did so, Defendant Smart approached him in an intimidating
manner (Doc. 17 at ¶ 5).
Afterwards, Plaintiff “assertively
- 19 -
requested” that Defendant Smart “respect him” and give him his
“personal space.” Id.
Plaintiff’s version of his flight and the
ensuing tackle is as follows:
At this time Lt. Smart and C.O. Easter walked
stridently towards Plaintiff in an aggressive
and threatening manner.
The Plaintiff,
feeling threatened with physical harm by the
Defendants,
stepped
over
the
handrail
enclosing the sidewalk, and ran.
Lt. Smart
and C.O. Easter pursued the Plaintiff a short
distance.
Lt. Smart forcibly grabbed the
Plaintiff
from
behind
by
the
top
of
Plaintiff's shoulders with two hands, forcibly
driving his right knee upwards, striking
Plaintiff in the right lower back and hip
area.
Lt. Smart continued through with his
momentum and bodyweight causing Plaintiff to
pitch face-forward from the top of a concrete
ledge (approximately 2.5 ft. in height)
slamming the Plaintiff to the ground (a dirt
and grass area).
Lt. Smart landed on top of the Plaintiff,
still gripping the Plaintiff by the top of his
shoulders, Lt. Smart’s right knee still in the
Plaintiff's lower right back and hip area.
The type of hold, knee strike, and momentum
combined with the body weight of Lt. Smart,
forced Plaintiff into a backward bowed
position
subsequently
fracturing
the
Plaintiff's right hip.
(Doc. 17 at ¶¶ 6-7).
Plaintiff asserts that he began to scream
that his leg was broken after the tackle and that the defendants
“dragged” him into the medical building thereafter (Doc. 17 at ¶
8). 5
5
As discussed below, the Court concludes that Plaintiff has
not stated an excessive force claim against any defendant based
- 20 -
Defendants
Smart,
Easter,
and
Walker
each
attest
that
Plaintiff was still holding broken glass in his hand when he began
to run away.
They also attest that Plaintiff did not scream that
his leg was broken and that Plaintiff was able to walk into the
medical building (Smart Aff. at ¶¶ 21, 26-27; Easter Aff. at ¶¶
25-26; Walker Aff. at ¶ 12, 24-25).
Finally, Defendants Smart,
Easter, and Walker describe Plaintiff's actions and attempted
flight as posing a serious security threat because he refused to
obey orders and had held broken glass to his own throat (Smart.
Aff. at ¶ 31; Easter Aff. at ¶ 29; Walker Aff. at ¶ 31).
2.
Application of law to facts
Neither the undisputed evidence nor the facts as alleged by
Plaintiff
show
that
any
defendant
acted
maliciously
and
sadistically, or with the type of force that shocks the conscious
such that it gives rise to a constitutional violation when they
subdued Plaintiff after his outburst in the restroom.
373
F.
App'x
at
966.
Rather,
the
evidence
shows
See Smith,
that
the
defendants’ actions were applied in a good faith effort to maintain
upon Plaintiff's tackle by Defendant Smart as he attempted to flee.
See discussion infra Part IV(A)(2). Likewise, although Plaintiff
has labeled it as such, the facts regarding Plaintiff's escort to
the medical building do not indicate that excessive force was used.
Accordingly, reading Plaintiff's pro se amended complaint
liberally and applying an abundance of caution, the Court will
address Plaintiff's claim that Defendants Smart, Easter, and
Walker ignored his cries of pain when they escorted him to the
medical building as a claim for deliberate indifference rather
than as a claim of excessive force.
- 21 -
or restore discipline after Plaintiff threatened to cut himself
with a piece of broken glass and attempted to flee.
Although Plaintiff certainly suffered a significant injury
from
Defendant
undisputed
Smart’s
evidence
tackle
shows
after
that
Plaintiff
Plaintiff
ran
away,
initiated
the
the
confrontation by ripping a towel bar from the wall, using the bar
to break a mirror, and threatening to cut himself with the mirror
glass if he was not taken outside.
Plaintiff was told several
times by the defendants to stop his aggressive behavior.
Instead,
Plaintiff attempted to flee after he was taken outside.
The
defendants were justified in believing that Plaintiff's actions
posed a security threat.
Even if Plaintiff had indeed dropped the
broken glass before he ran from the guards as he asserts in his
amended
complaint,
6
he
has
not
presented
evidence
that
the
defendants were aware that he had done so or evidence that he no
longer presented a security risk simply because he was no longer
carrying glass.
In fact, Plaintiff’s outburst in the restroom is
evidence that he posed a serious risk of harm to himself if not
restrained.
6
The medical documents presented by both Plaintiff and
Defendants show that Plaintiff was discovered by the medical staff
holding glass in his hand in the infirmary after the incident (Doc.
76-5).
- 22 -
Defendants have presented evidence showing that Defendant
Smart’s purpose in applying force was to stop Plaintiff's flight
and to prevent him from harming himself, staff members, or other
FCCC residents.
In other words, Defendant Smart applied force in
an attempt to prevent harm to Plaintiff, not to cause harm to
Plaintiff. 7
Thus, the fact that Defendant Smart’s forward momentum
after he grabbed Plaintiff's shoulders caused both Plaintiff and
Defendant Smart to fall forward to the ground, breaking Plaintiff’s
hip, while unfortunate, does not show that Defendant Smart used
excessive force or that Defendant Smart intended to harm Plaintiff.
See Wilkins v. Gaddy, 559 U.S. 34, 34 (2010) (recognizing that
excessive force claims are decided based upon the nature of the
force rather than the extent of the injury) (citing Hudson v.
McMillian, 503 U.S. at 1); see also Fennell v. Gilstrap, 559 F.3d
1212, 1219 (11th Cir. 2009) (finding that officer did not use
7
In his amended complaint, Plaintiff alleges that his
clinical file indicates that he suffers from Post-Traumatic Stress
Disorder and Borderline Personality Disorder (Doc. 17 at ¶ 3).
Plaintiff urges that the defendants should have been familiar
enough with his medical record to know of this diagnosis, and
Plaintiff attaches documents to his complaint in support of this
diagnosis (Doc. 17-4).
Upon review of Plaintiff's amended
complaint, the Court notes that the medical records attached
thereto include progress notes from Psychiatrist Garrido,
indicating that “[t]his patient is a security risk. He has had a
prior history of violence.” (Doc. 17-4 at 8). If any defendant
was familiar with Plaintiff's case history, as Plaintiff asserts
they should have been, it would be further undisputed evidence
that the defendants believed Plaintiff posed a security risk.
- 23 -
excessive force when he kicked the plaintiff in the face, despite
the
plaintiff’s
significant
injuries
because
the
undisputed
evidence revealed that the officer intended to kick the plaintiff
in the arm and did not foresee that his kick would land on the
plaintiff’s face); Cockrell v. Sparks, 510 F.3d 1307 (11th Cir.
2007) (guard who shoved inmate, causing him to fall and break his
hip and wrist, was not liable for excessive force because the use
of force was not applied in a malicious and sadistic fashion, but
was a “good faith effort to maintain or restore discipline in a
difficult situation.”).
Likewise, that Defendant Easter assisted Defendant Smart by
putting handcuffs on Plaintiff after he was tackled does not
subject him to liability for excessive force.
The need for
handcuffing Plaintiff is evidenced by Plaintiff's own admission
that he ripped a towel bar from the wall, used the bar to break a
mirror, threatened to cut himself with the broken mirror glass,
and then fled when his guards approached him.
Plaintiff does not
assert that Defendant Easter’s actions in cuffing him caused or
exacerbated his hip injuries. Rather, Plaintiff merely states that
Defendant Smart “forcibly twisted the left arm of the Plaintiff
behind Plaintiff's back.” (Doc. 17 at 9).
“[N]ot every malevolent
touch by a prison guard gives rise to a federal cause of action.”
Wilkins, 559 U.S. at 37 (citing Hudson v. McMillian, 503 U.S. at
- 24 -
9).
Plaintiff has failed to produce any evidence that Defendant
Easter acted maliciously and sadistically in cuffing him.
Finally, Plaintiff's amended complaint makes no allegation
that Defendant Walker used force against him at all, much less
excessive force, during Plaintiff's outburst, suicide threat, or
flight.
Consequently, based upon the record before the Court, the
undisputed material facts, and the applicable law, the Court
concludes that Defendants Smart, Easter, and Walker are entitled
to summary judgment on Plaintiff's excessive force claims as a
matter of law.
B.
Defendants Smart, Easter, and Walker are entitled to
summary judgment as a matter of law on Plaintiff’s
deliberate indifference claims
1.
Material facts
Plaintiff and the defendants agree that immediately after
Plaintiff
was
tackled
by
Defendant
Smart
and
handcuffed
by
Defendants Smart and Easter, he was pulled to his feet and escorted
to
the
medical
department
by
Defendants
Smart
and
Walker.
Plaintiff asserts that Defendants Smart and Walker “picked up the
Plaintiff by his arms and forced him to his feet” and took him to
the medical building even though he was screaming that his leg was
broken. Plaintiff asserts that his right foot and leg dragged the
ground behind him during the escort (Doc. 17 at ¶ 8).
In their affidavits, Defendants Smart, Easter, and Walker
attest that: Plaintiff walked into the medical department; they
- 25 -
did not “drag” Plaintiff to medical; and Plaintiff did not scream
that his leg was broken (Smart Aff. at ¶¶ 24-27; Easter Aff. at ¶¶
24-26; Walker Aff. at ¶¶ 24-25).
Plaintiff has attached the
affidavit of FCCC resident Elwood Wise who attests that Plaintiff
was escorted to the medical building “with his right foot and leg
dragging the ground.” (Doc. 17-5).
He also attached the affidavit
of FCCC resident William M. Vogt who attests that Plaintiff was
screaming in pain after he was tackled by Defendant Smart. Id.
2.
Application of law to facts
Because Plaintiff has submitted admissible evidence refuting
the defendants’ statements that Plaintiff never screamed that his
leg was broken or that his foot dragged the ground, for the purpose
of this Order, the Court will assume that Plaintiff began screaming
after he was tackled by Defendant Smart and that he dragged his
right foot as he was escorted to the medical building.
Even so,
the record does not show that any defendant subjectively knew that
Plaintiff had a fractured hip and disregarded a risk to Plaintiff
when they immediately escorted Plaintiff to the medical building
after he was tackled.
Plaintiff admits that he was on his feet
as he was taken to the medical department (Doc. 17 at ¶ 8).
In
fact, the immediate escort of Plaintiff to the medical department
indicates that Defendants Smart, Easter, and Walker attempted to
- 26 -
temper the severity of their use of force when Plaintiff was
tackled.
Plaintiff does not assert that dragging his right leg
behind him during the escort to the medical building exacerbated
or caused the injury to his hip.
Likewise, although he does assert
that he screamed that his leg was broken, he has not demonstrated
that any defendant was actually aware that Plaintiff had fractured
his hip when he was tackled by Defendant Smart. See Farmer v.
Brennan, 511 U.S. 825, 838 (1994) (“[A]n official’s failure to
alleviate a significant risk that he should have perceived but did
not, while no cause for commendation, cannot under our cases be
condemned as [a constitutional violation].”); John v. Berry, 469
F.Supp.2d 922 (W.D. Wash. 2006) (no deliberate indifference when
policeman
made
Plaintiff
walk
to
his
patrol
car
instead
of
providing him with a stretcher when it was later discovered that
the plaintiff's knee was fractured because there was no evidence
of the defendant’s intent to delay, deny or interfere with the
plaintiff’s medical treatment); Walker v. Butler, 967 F.2d 176
(5th Cir. 1992) (no deliberate indifference when prison guard had
prisoner walk between 150 and 440 yards to the hospital on broken
ankle because the defendant did not know that the ankle was broken
and defendant escorted the plaintiff to the hospital).
Consequently, based upon the record before the Court, the
undisputed material facts, and the applicable law, the Court
concludes that Defendants Smart, Easter, and Walker are entitled
- 27 -
to summary judgment on Plaintiff's deliberate indifference claim
as a matter of law.
C.
Defendant Lamour is entitled to summary judgment as a
matter of law on Plaintiff's deliberate indifference
claim
1.
The
Material Facts
facts
indifference
undisputed.
surrounding
claim
against
Plaintiff's
Defendant
medical
Lamour
deliberate
are
largely
Plaintiff admits that he was examined by Defendant
Lamour shortly after the use of force incident on March 12, 2009
and that Dr. Lamour ordered that Plaintiff to be taken to Desoto
Memorial Hospital for examination of his hip (Doc 76 at 8; Doc. 84
at 4).
Plaintiff was examined at Desoto Memorial Hospital where
x-rays were taken. Id.
The staff at Desoto Memorial Hospital
diagnosed Plaintiff with hip contusions, and because he did not
have the x-ray film for review, the diagnosis was relied upon by
Defendant Lamour. Id.
Upon Plaintiff's return to the FCCC at approximately 12:10
a.m. on March 13, 2009, he was seen in the infirmary, and Defendant
Lamour was called at home and advised of the situation (Doc. 76 at
8; Doc. 84 at 4).
Defendant Lamour approved the use of pain
relievers, and Plaintiff was given a second mattress for sleeping.
Id.
Plaintiff refused to let the nurse at the FCCC examine his
injured hip and refused to answer questions posed by the nurse at
that time. Id.
At 2:15 a.m. on March 13, 2009, Plaintiff asked
- 28 -
for a pain reliever, but refused to take it when told by staff
that any pain medication would be crushed. Id.
The next afternoon, at approximately 3:00 p.m., the FCCC
received a call from Desoto Memorial Hospital whereby the facility
was advised that a mistake had been made regarding the hospital’s
interpretation of the x-ray and that Plaintiff had a fractured hip
(Doc. 76 at 9; Doc. 84 at 4).
However, the hospital did not
provide the FCCC with the written radiological report at that time.
Id.
Plaintiff requested pain relief at 1:15 a.m. on March 14,
2009, and Tylenol with Codeine was provided to Plaintiff at 1:30
a.m. whereby Plaintiff slept for the remainder of the nurse’s
shift. Id.
The written report from Desoto Memorial Hospital confirming
the diagnosis of the fractured hip was received via facsimile by
the FCCC on March 14, 2009 at 4:43 p.m. (Doc. 76 at 9, Doc. 84 at
5).
Thereafter,
Plaintiff
was
transported
Hospital at 7:00 p.m. on March 14, 2009. Id.
to
Tampa
General
Plaintiff underwent
surgery to his right hip four days later on March 18, 2009. Id.
The surgery was successful, and Plaintiff does not walk with a
limp. Id.
Plaintiff attests that he suffered adversely from Defendant
Lamour’s failure to seek Plaintiff's timely transport to Tampa
General Hospital because he was forced to have a stent put in his
- 29 -
leg to “catch any blood clots” caused by the delay. (Plaintiff's
Second Aff. at ¶ 4).
2.
Application of law to facts
A review of the undisputed facts and the medical records
submitted by both Plaintiff and the defendants fails to reveal any
deliberate
Plaintiff's
indifference
hip
injury,
on
the
part
Plaintiff's
Plaintiff's complaints of pain.
of
Defendant
need
for
Lamour
to
treatment,
or
Plaintiff does not deny that he
initially received immediate attention to his hip injury or that
his complaints of pain were ignored.
Plaintiff acknowledges that
he was examined immediately after the use of force incident and
that he was sent to Desoto Memorial Hospital the same day.
In
addition, Defendant Lamour approved, and Plaintiff received, pain
medication and an additional mattress while he was at the FCCC.
Accordingly, Plaintiff's constitutional claim against Defendant
Lamour appears to be based solely upon the delay between Desoto
Memorial
Hospital’s
telephone
call
to
the
FCCC
informing
of
Plaintiff's fracture and Plaintiff's transfer to Tampa General
Hospital.
Where, as here, medical care is ultimately provided to a
plaintiff, a prison official may nonetheless act with deliberate
indifference by delaying the treatment of serious medical needs,
even for a period of hours, though the reason for the delay and
the nature of the medical need is relevant in determining whether
- 30 -
the delay is constitutionally intolerable. See Brown v. Hughes,
894 F.2d 1533, 1537–39 (11th Cir. 1990).
A plaintiff seeking to
show that a delay in medical treatment rose to a constitutional
violation “must place verifying medical evidence in the record to
establish the detrimental effect of the delay in medical treatment
to succeed.” Hill, 40 F.3d at 1188.
In this case, Defendant Lamour has submitted an affidavit in
which he attests that Plaintiff received his surgery four days
after he was transported to Tampa General Hospital; that Plaintiff
does not walk with a limp; and that he (Defendant Lamour) has not
been informed by anyone that a delay in transporting Plaintiff to
Tampa General Hospital worsened Plaintiff's condition (Lamour Aff.
at ¶¶ 33, 34, 41, 44).
Plaintiff attests that his condition was
worsened by the delay in transportation to Tampa General Hospital
because “Tampa General surgeons place [sic] a stent in plaintiff
to catch any blood clots that may have been present do [sic] to
Lamour’s delay in seeking medical treatment, and plaintiff was put
into traction.” (Plaintiff's Second Aff. at ¶ 4).
In his motion
for partial summary judgment, Plaintiff has included an October
18,
2009
“Operative
Note”
from
Tampa
General
Hospital
which
describes Plaintiff's successful surgery and notes that “[t]he
patient received an IVC filter for DVT prophylaxis because of
delayed initiation of anticoagulation.” (Doc. 74-3).
- 31 -
Despite
Plaintiff's
assertion
otherwise,
nothing
in
the
record suggests that the delay from Defendant Lamour’s decision to
wait for written confirmation of Plaintiff's injuries “caused” the
necessity of an IVC filter – indeed, the Operative Note from Tampa
General was written four days after Plaintiff was sent to Tampa
General Hospital with no indication of the date on which the filter
was placed or any statement as to the operative time period for
anticoagulation treatment.
The note does not state that the four
day delay in Plaintiff's surgery after his transport to Tampa
General was related to Defendant Lamour’s delay in arranging
transport to Tampa General.
In addition, there is no “verifying
medical evidence” in the record establishing that the use of the
IVC filter could have been avoided if Defendant Lamour had sent
Plaintiff to Tampa General Hospital immediately upon learning of
Desoto Memorial Hospital’s misdiagnosis.
Moreover, Plaintiff's
medical records indicate that the surgery on his hip was a success.
Therefore, Plaintiff has failed to establish by “verifying medical
evidence” that any detrimental effect was caused by the delay in
his transport to Tampa General Hospital. Hill, 40 F.3d at 1188.
Because Plaintiff has failed to place evidence in the record
showing the detrimental effect of the delay in medical treatment,
his
claims
that
his
constitutional
rights
were
violated
by
Defendant Lamour’s decision to await a verifying written report
- 32 -
from Desoto Memorial Hospital before sending him to Tampa General
Hospital is without merit.
Finally,
“[t]he
tolerable
length
of
delay
in
providing
medical attention” also depends on the reason for the delay. Hill,
40 F.3d at 1188.
Defendant Lamour has submitted an affidavit in
which he attests:
In my professional judgment, it is sound to
rely on a written report rather than an oral
rendition of a finding in order to assure the
accuracy of what may have been told to FCCC
staff by Desoto Memorial in a telephone
conversation.
In
my
experience,
the
possibility exists for the parties in a verbal
conference to have mis-communication or a
misunderstanding as to a medical finding which
is a reason to confirm the actual finding with
the written report.
(Lamour Aff. at ¶ 26-27).
Plaintiff argues that Defendant Lamour
did not need the written report before sending Plaintiff to Tampa
General Hospital for surgery, and therefore, the delay between the
phone call from Desoto Memorial Hospital and Plaintiff's transport
to Tampa demonstrates deliberate indifference on the part of
Defendant Lamour (Doc. 84 at 5).
However, Plaintiff has presented
no evidence that the delay was intended to cause him suffering or
to exacerbate his injury.
To the contrary, Dr. Lamour has attested
that the delay was to ensure accuracy of the verbal communication,
an assertion that Plaintiff has not been able to refute.
Consequently, based upon the record before the Court, the
undisputed material facts, and the applicable law, the Court
- 33 -
concludes that Defendant Lamour is entitled to summary judgment on
Plaintiff's deliberate indifference claims as a matter of law.
ACCORDINGLY, it is hereby
ORDERED:
1.
Plaintiff's motion for partial summary judgment against
Defendant Lamour (Doc. 74) is DENIED;
2.
The motion for summary judgment filed by Defendants
Smart, Easter, Walker, and Lamour (Doc. 76) is GRANTED; and
3.
With no remaining claims or defendants, the Clerk of
Court is directed to terminate any pending motions, close this
case, and enter judgment accordingly.
DONE and ORDERED in Fort Myers, Florida on this
of November, 2014.
SA: OrlP-4
Copies: All Parties of Record
- 34 -
12th
day
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