Romano v. Rambosk
Filing
179
OPINION AND ORDER granting 155 Motion for summary judgment; granting 161 Motion for summary judgment; granting 162 Motion for summary judgment; granting 177 Motion incorporating all grievances and notary letters into evidence in the form of exhibits to the extent that it asks the Court to consider certain arguments and evidence and is otherwise denied. The Clerk shall enter judgment accordingly, terminate all pending matters, and close the case. Signed by Judge John E. Steele on 2/18/2015. (RKR)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
TONY ROMANO,
Plaintiff,
v.
Case No: 2:12-cv-313-FtM-29CM
PRISON
HEALTH
SERVICES,
INC., a foreign corporation,
INDIANA CRUZ, individually,
as those persons providing
health services to prisoners
at Collier County Jail, as
employees of Prison Health
Services
and/or
Corizon
Health
Services,
MARYAM
NABAVI,
individually,
as
those
persons
providing
health services to prisoners
at Collier County Jail, as
employees of Prison Health
Services
and/or
Corizon
Health
Services,
TRINITY
SERVICES
GROUP,
INC.,
a
Florida
corporation,
TOM
BOWMAN,
individually,
as
those
persons
providing
nutritional
services
to
prisoners at Collier County
Jail as employees of Trinity
Services Group, and SANDRA
STERNAL, individually, as
those
persons
providing
nutritional
services
to
prisoners at Collier County
Jail as employees of Trinity
Services Group,
Defendants.
OPINION AND ORDER
This matter comes before the Court upon the following:
The motion for summary judgment on Plaintiff's
civil rights claims filed by Defendants Tom
Bowman and Sandra Sternal (Doc. 161, filed
July 24, 2013);
The motion for summary judgment on Plaintiff's
negligence claims filed by Tom Bowman, Sandra
Sternal, and Trinity Services Group, Inc.
(Doc. 162, filed July 24, 2014);
The motion for summary judgment filed by
Defendants Alan Crooks, Kevin McGowan, and
Kevin J. Rambosk (Doc. 155, filed July 10,
2014);
The affidavit and statement of undisputed
facts
filed
by
Plaintiff
Tony
Romano
(“Plaintiff”) (Doc. 176, filed December 8,
2014);
The “Motion Incorporating all Grievances and
Notary Letters into Evidence in the Form of
Exhibits Filed in Support of Summary Judgment”
filed by Plaintiff (Doc. 177, filed December
18, 2014); and
The “Supplement/Plaintiff's Third Amendment
and Response to Defendants’ Motions for
Summary Judgment” filed by Plaintiff (Doc.
178, filed December 18, 2014).
For the reasons set forth in this Order, the motions for
summary judgment filed by the defendants (Doc. Nos. 155, 161, 162)
are GRANTED.
Plaintiff’s motion to incorporate all grievances and
notary letters into evidence (Doc. 177) is GRANTED to the extent
that the Court will consider the arguments and evidence set forth
in Plaintiff's pleadings.
I.
Background
Plaintiff initiated this action on June 5, 2012 by filing a
pro se complaint and several “supplements” to the complaint against
Defendants Kevin J. Rambosk, Richard P. Gibbons, Prison Health
Services, Inc., Corizon Health, Inc., Indiana Cruz, Maryam Nabavi,
- 2 -
Jannette
Valentine,
Marcia
Eckloff,
Priscilla
Upton,
Trinity
Services Group, Inc., Tom Bowman, Sandra Sternal, Richard Daniels,
David
Dellinger,
Alan
Crooks,
Beth
Richards,
Kevin
McGowan,
Patricia Gifford, Lynni O’Haver, Nelson P. Ray, Nino Armino,
Virginia Wilson, and Elizabeth Alfieri (Doc. Nos. 1, 5, 6, 8, 10,
11, 12, 14, 19).
Because Plaintiff had submitted a voluminous
amount of exhibits to the Court, and had done so in a piecemeal
fashion, the Court rejected the exhibits and instructed Plaintiff
to compile the exhibits into one filing with each exhibit clearly
marked and indexed (Doc. 16 at 2; Doc. 22).
Plaintiff was also
instructed that “a table of contents or index (with a title,
description, and date of each document) shall be included to aid
the Court in the location of each exhibit” (Doc. 16).
Plaintiff
did not re-submit the exhibits.
On November 15, 2012, Attorney Joseph A. Davidow entered an
appearance on Plaintiff’s behalf and filed a motion to amend the
complaint (Doc. Nos. 29, 31).
January 9, 2013 (Doc. 33).
An amended complaint was filed on
Several defendants filed motions to
dismiss (Doc. Nos. 69, 77, 91, 92).
Plaintiff filed a second
amended complaint on July 19, 2013 (Doc. 113).
In the second
amended complaint, Plaintiff raised thirty-two separate claims
against various defendants. Id.
Again, motions to dismiss were
filed (Doc. Nos. 114, 115, 119, 122).
On January 9, 2013, this Court entered an opinion dismissing
Plaintiff's claims for injunctive and declaratory relief because
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Plaintiff was no longer incarcerated at the Collier County Jail
(Doc. 132).
The Court also noted that Plaintiff’s second amended
complaint made no specific allegations against Alan Crooks, David
Dellinger, Richard Daniels, Virginia Wilson, Nino Armino, Nelson
Ray,
Lynni
O’Haver,
Richard
Gibbons,
Patricia
Gifford,
Beth
Richards, Kevin McGowan, Indiana Cruz, Maryam Nabavi, Jannette
Valentin, Marcia Eckloff, Priscilla Upton, or Elizabeth Alfieri
and
dismissed
the
individual-capacity
claim
against
defendants without prejudice (Doc. 132 at 15-20).
these
Plaintiff's
claim that every individual defendant caused Plaintiff “to suffer
because of disability” due to “an official policy, procedure,
ordinance or directive of the Collier County Sheriff’s Office to
refuses to accommodate in any manner, detainees with specific needs
due to their disabilities” was dismissed because Plaintiff failed
to name any specific “official capacity” defendant so as to provide
notice to the entity being sued. Id. at 20-21.
Plaintiff's
negligence claims against the medical staff at the Collier County
jail were dismissed due to Plaintiff's failure to comply with
Florida’s pre-suit notice requirements. Id. at 21. Plaintiff's
claims against Defendant Tom Bowman, Sandra Sternal, and Trinity
Services Group were allowed to proceed “to the limited extent that
they are based solely upon Defendants Bowman’s and Sternal’s
alleged failure to provide Plaintiff with an appropriate renal
diet.” (Doc. 132 at 27).
Plaintiff's negligence claims against
these defendants and against Trinity Services Group, Inc. were
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also
allowed
to
proceed.
Id.
Plaintiff's
First
Amendment
retaliation claims were allowed to proceed against Defendants
McGowan, Crooks, Rambosk, and Bowman. Id.
Plaintiff was directed
to file a third amended complaint should he wish to proceed on any
of the dismissed claims (Doc. 132 at 31).
Counsel for Plaintiff sought, and was granted, an extension
of time to file a third amended complaint (Doc. Nos. 133, 135).
No third amended complaint was filed, and the remaining parties
were ordered to conduct discovery (Doc. 139).
Because no third
amended complaint was filed, Elzabeth Alfieri, Corizon Health,
Inc., Marcia Eckloff, Priscila Upton, Jannette Valentine, Nino
Armino, Richard Daniels, David Dellinger, Richard P. Gibbons,
Patricia Gifford, Lynni O’Haver, Nelson P. Ray, Beth Richards, and
Virginia Wilson were dismissed from this case (Doc. Nos. 141, 144).
Two weeks after the time to file a third amended complaint
expired,
Joseph
A.
Davidow
filed
Plaintiff's attorney (Doc. 146).
a
motion
to
withdraw
as
In the motion, Davidow asserted
that he had spoken with Plaintiff about his decision to withdraw
and that Plaintiff did not object. Id.
Neither Plaintiff nor any
party filed a response to the motion to withdraw, and the motion
was granted (Doc. 147).
II.
Plaintiff's Second Amended Complaint
The
concern
allegations
conditions
in
at
Plaintiff's
the
Collier
second
County
amended
Jail
complaint
(“CCJ”)
from
September 30, 2011 until July 28, 2012 and from January 3, 2013
- 5 -
until July 19, 2013, the date on which Plaintiff filed his second
amended complaint (Doc. 113 at ¶¶ 13, 19). 1
Plaintiff
asserts
that
he
suffers
from
intermittent
quadriplegia and permanent paraplegia (Doc. 113 at ¶ 12).
As a
result of his condition, Plaintiff cannot urinate normally and
must use a catheter or stent for elimination. Id. at ¶ 12.
order
to
have
normal
bowel
movements,
Plaintiff
medically prescribed diet. Id. at ¶¶ 12, 24.
must
eat
In
a
Plaintiff uses long
leg braces for short ambulation and an electric wheelchair for
longer ambulation. Id. at ¶ 15.
During the material times,
Plaintiff suffered from carpal tunnel disorder in both wrists which
proscribed the use of a manual wheelchair for ambulation.
Id. at
¶ 16.
Plaintiff alleged that the cells in which Plaintiff was housed
at the Collier County Jail lacked the necessary modifications to
accommodate his disabilities (Doc. 113 at ¶ 19).
Specifically,
the cells lacked sufficient room to turn Plaintiff's wheelchair
1
Notably, the majority of Plaintiff's second amended
complaint is taken verbatim from Plaintiff's fourth amended
complaint, filed on January 6, 2011 in case number 2:06-cv-375JES-DNF (Doc. 383), in which Plaintiff sued most of the same
defendants. The parties in Plaintiff's prior case reached a
settlement agreement, and that case was dismissed on October 3,
2011 (Doc. Nos. 514, 516). Even though the 2006 case involved
conduct that occurred prior to 2007, Plaintiff repeats the same
allegations in the instant case. Only the allegations involving
conduct that occurred from September 30, 2011 until July 28, 2012
and from January 3, 2013 until July 19, 2013 will be addressed in
this Order. Likewise, because many defendants have already been
dismissed from this case (Doc. 132), only the allegations involving
the remaining defendants will be addressed in this Order.
- 6 -
and did not have transfer mechanisms to allow him to safely move
between the bed, toilet, and sink.
Id. at ¶ 19.
Plaintiff's
cells also lacked adequate access to water, soap, and means to
clean himself after urinating through the use of a catheter and
after defecating.
Id. at ¶¶ 1, 299.
Because of the lack of
accommodation, Plaintiff was often left with feces and urine on
his hands with no way to avoid contaminating his wheelchair and
clothing. Id. at ¶ 29.
Defendants refused to provide Plaintiff
with an electric wheelchair and required Plaintiff to use a manual
wheelchair to ambulate. Id. at ¶ 20.
Plaintiff was not provided with an adequate number of stents
or latex gloves to maintain healthy sterile procedures during
urination and defecation (Doc. 113 at ¶ 29).
Defendants refused
to provide Plaintiff with an appropriate brace for short movements
and transfers. Id. at ¶ 29.
Plaintiff filed numerous grievances regarding the lack of ADA
accommodations at the Collier County Jail (Doc. 113 at ¶ 21).
In
response to the grievances, Plaintiff was subjected to discipline
in the form of restraints, administrative confinements, the denial
of medically necessary supplies, the denial of access to shower
facilities, and the denial of an electric wheelchair.
Id. at ¶¶
23, 32.
Plaintiff further asserts that the defendants failed to meet
his medically required dietary needs and refused to correct the
violations (Doc. 113 at ¶ 27).
Plaintiff was served meals that
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did not comply with his established dietary requirements, and he
received meals that directly conflicted with his medical orders
and prescriptions. Id. at ¶ 35.
Plaintiff asserts that as a result
of the number of grievances filed, Defendant Bowman “refused to
make
reasonable
accommodations
to
provide
Plaintiff
with
his
medically order[ed] renal diet.” (Doc. 115 at ¶ 172).
III. Motions for Summary Judgment
A.
Defendants Tom Bowman, Sandra Sternal,
Services, Inc. (“Trinity defendants”)
and
Trinity
Defendants Bowman and Sternal assert that Plaintiff's claims
for compensatory or punitive damages are barred by 42 U.S.C. §
1997e(e); that Plaintiff's food service claims are improperly
premised
on
a
dissatisfaction
theory
with
of
his
respondeat
diet
does
superior;
not
give
Plaintiff's
rise
to
a
constitutional violation; and that Plaintiff cannot establish a
causal relationship between the submission of his grievances and
Defendant
Bowman’s
allegedly
retaliatory
conduct
(Doc.
161).
Defendants Bowman and Sternal further assert that, even if the
Court were to conclude that a constitutional violation occurred,
they are entitled to qualified immunity because it is not well
established
that
they
acted
in
a
manner
inconsistent
with
Plaintiff's constitutional rights “by endeavoring to ensure that
the
prisoner
plaintiff
received
meals
that
were
prepared
in
accordance with the Renal Diet prescribed for him by the CCJ
medical department.” Id. at 24.
- 8 -
As for the negligence claims filed against Defendant Bowman,
Sternal, and Trinity Services Group, Inc., these defendants assert
that they are immune from negligence claims pursuant to Florida
statute § 768.28(9)(A); they had no duty to provide Plaintiff with
the diet of his choice; they provided Plaintiff with a medically
prescribed renal diet; they did not cause any of Plaintiff's
alleged injuries; and Plaintiff's claims for compensatory and
punitive damages are barred by 42 U.S.C. § 1997e(e) (Doc. 162).
The defendants also argue that Plaintiff has alleged no reasonable
basis for punitive damages. Id. at 162.
In support of their motions, the Trinity Defendants filed: a
statement
of
facts
(Doc.
163,
“Trinity
SOF”);
Plaintiff's
Deposition (Doc. 163-1, “Plaintiff's Depo.”); Deposition of Macia
Eckloff (Doc. 163-2; Doc. 163-3, “Eckloff Depo.”); Affidavit of
Jannette
Valentin
Gonzalez
(Doc.
163-4,
“Valentin
Gonzalex
Depo.”); Deposition of Maryam Nabavi (Doc. 163-5, “Nabavi Depo.”);
Deposition of Indiana Cruz (Doc. 163-6, “Cruz Depo.”); Affidavit
of Thomas Bowman (Doc. 117, “Bowman Aff.”); and Affidavit of Sandra
Sternal (Doc. 118, “Sternal Aff.”).
B. Defendants Crooks, McGowan, and Rambosk (“CCJ defendants”)
Defendants Crooks, McGowan, and Rambosk assert that they are
entitled to summary judgment on Plaintiff's retaliation claims
(Doc. 155).
Specifically, the defendants assert that: Plaintiff's
claims against Defendant Crooks are both conclusory and predicated
solely upon alleged verbal abuse; Plaintiff's assertions against
- 9 -
Defendant McGowan are clearly refuted by the record; and Plaintiff
has
not
established
Rambosk’s
“custom
violation.
or
a
causal
policy”
connection
and
any
between
alleged
Defendant
constitutional
The CCJ defendants also assert that Plaintiff's claims
for compensatory and punitive damages are barred by 42 U.S.C. §
1997e(e).
In
Id. at 10-17.
support
of
their
motion
for
summary
judgment,
these
defendants attach Plaintiff’s August 20, 2013 deposition (Doc.
155-1, “Plaintiff's Depo.”) and a July 7, 2014 affidavit from
Defendant McGowan (Doc. 155-2, “McGowan Aff.”).
C.
Plaintiff's Responses
After seeking three extensions of time in which to do so,
Plaintiff filed responses to the defendants’ motions for summary
judgment.
Plaintiff
filed
a
pleading
titled
“Affidavit
and
Statements of Undisputed Fact(s)” in which he reiterated his
version of events and provided arguments in favor of his positions
(Doc. 176).
In support of his “statement,” Plaintiff attached
numerous grievances and portions of Marcia Eckloff’s deposition
(Doc. 176 at 1). 2
Plaintiff has also filed a large box containing
three bundles of hundreds of grievances (each) and a compact disc
2
Plaintiff does not appear to understand that the medical
defendants have been dismissed from this case, and he continues to
state allegations against them as statements of “undisputed fact.”
(Doc. 176 at ¶ 19, 20, 37, 48, 51, 77, 102, 103, 109, 112; Doc.
178).
In addition, Plaintiff does not recognize that the only
remaining claims against the CCJ defendants are claims of
retaliation. Plaintiff states, and restates, his claim that all
the defendants violated the ADA while plaintiff was at the CCJ.
- 10 -
containing more than five hundred pages of Plaintiff's medical
records along with a 70-page “Motion Incorporating all Grievances
and Notary Letters in to Evidence in the Form of Exhibit’s Filed
in Support of [Summary Judgment] as if Fully set forth Herein.”
(Doc. 177).
Finally, Plaintiff has filed a pleading entitled
“Plaintiff's Third Amendment and response to Bowman and Sternal’s
and Rambosk, McGowan and Croks, et.al., Trinity Motion for Summary
Judgment and Negligence Claim and Memorandum of Law and Retaliation
Claims and (PLRA) Claims for Compensatory and Punitive Damages and
Civil Rights Claims.” (Doc. 178).
IV.
Standards of Review
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.
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).
may
meet
this
burden
by
presenting
- 11 -
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
A.
Trinity Defendants
In his second amended complaint, Plaintiff asserts that while
incarcerated at the CCJ, he did not receive the medically ordered
renal diet to which he was entitled (Doc. 113 at ¶¶ 25, 27, 29,
35, 37, 150).
Specifically, in the “General Allegations” section
of his second amended complaint, Plaintiff states:
Defendants Trinity, Bowman, and Sternal were
well aware of these dietary needs, both
through medical prescriptions and grievances
filed by Plaintiff. Defendants consistently
failed to meet the medically required dietary
needs of Plaintiff and habitually refused to
correct the violations.
Plaintiff notified
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all relevant Defendants of the dietary
violation and the danger of conditions caused
by deviations from those dietary needs on
numerous occasions.
All of Plaintiff's
requests were ignored.
(Doc. 113 at ¶ 27).
Plaintiff
was
deposed
“Plaintiff's Depo.”).
on
August
20,
2013
(Doc.
155-1,
During his deposition, Plaintiff stated
that his issues with his diet concerned the Trinity defendant's
provision
of
occasionally
ground
cold
turkey
meals
which
meatballs,
caused
him
boiled
severe
eggs,
and
constipation
(Plaintiff's Depo. at 91, 94, 95, 97, 98, 105, 113).
Plaintiff
asserted that when he ate boiled eggs or turkey meatballs, he would
get cramps and constipation and would need to take laxatives. Id.
at 108, 115-16.
Plaintiff stated that he was constipated five
times between January and May of 2013 and every thirty days between
September of 2011 and July of 2012. Id. at 119-20.
At
the
deposition,
Plaintiff
was
asked
by
the
Trinity
defendants’ defense counsel to clarify the nature of his claims
against each of the Trinity defendants.
Plaintiff asserted that
Defendant Sternal wrote an email stating that in her (Sternal’s)
opinion, Plaintiff should not receive food from the commissary
because Plaintiff was on a prescribed renal diet.
Therefore,
“[Sternal] was involved in violating [his] rights for – to receive
commissary.” Id. at 110.
Plaintiff also claimed that Defendant
Sternal would not allow anyone “to make any changes to correct”
his diet. Id. at 111.
As to Defendant Bowman, Plaintiff asserted
- 13 -
that Defendant Bowman “put[] something” in Plaintiff’s turkey
meatball that made it difficult for Plaintiff to digest. Id. at
108.
As to Defendant Trinity Services, Inc., Plaintiff asserted
that this defendant was negligent for not ensuring that he receive
an adequate diet. Id. at 115.
1.
Defendant Sternal is entitled to summary judgment
on Plaintiff's deliberate indifference claim
The Supreme Court has interpreted the Eighth Amendment to
prohibit deliberate indifference to an inmate's health or safety.
See Hope v. Pelzer, 536 U.S. 730, 737–38 (2002).
A prison official
acts with deliberate indifference when he consciously disregards
an excessive risk to a prisoner's health or safety. Farmer v.
Brennan, 511 U.S. 825, 835–37 (1994).
As
noted,
Plaintiff's
deliberate
indifference
against
Defendant Sternal is predicated upon this defendant’s alleged
“refusal” to allow him to purchase food items from the commissary
or to “allow” the medical staff to make changes to his medically
prescribed renal diet (Plaintiff's Depo. at 110).
The denial of
a medically prescribed diet may constitute an Eighth Amendment
violation under certain circumstances. See Robles v. Coughlin, 725
F.2d 12, 15–16 (2d Cir. 1983); Johnson v. Harris, 479 F. Supp.
333, 336–37 (S.D.N.Y. 1979) (finding violation of Eighth Amendment
where there was a continued failure to provide a diabetic inmate
with a medically appropriate diet, resulting in a decline in his
health).
Mere negligence or inadvertent failure to provide a
- 14 -
medically
however.
necessary
diet
is
not
a
constitutional
violation,
“Deliberate indifference” must be demonstrated by proof
that corrections personnel intentionally denied, delayed access
to, or interfered with the prescribed treatment. Estelle v. Gamble,
429 U.S. 97, 104–05 (1976).
It is undisputed that Plaintiff was on a restricted renal
diet while he was incarcerated at the Collier County Jail; that
Plaintiff was restricted from purchasing food items from the
commissary
because
these
items
did
not
comport
with
the
restrictions of a renal diet; and that Defendant Sternal did not
make changes to Plaintiff's renal diet even though Plaintiff
instructed her to do so. See discussion infra Part V(A)(1)-(3).
However, Defendant Sternal has placed evidence in the record
showing that she did not prescribe Plaintiff's renal diet; did not
control whether Plaintiff was allowed to purchase food items from
the commissary; and was not permitted to alter or deviate from an
inmate’s prescribed renal diet, even if such inmate demanded that
she do so.
Defendant Sternal filed an affidavit in which she attested
that she is a licensed dietician registered with the Academy of
Nutrition
and
Dietetics
and
the
Registration (Sternal Aff. at ¶ 2).
Commission
on
Dietetic
Sternal described the “renal
diet” prescribed for Plaintiff as a diet that “emphasizes the
controlled intake of protein, sodium and potassium for the purpose
of reducing the production of wastes that must be excreted by the
- 15 -
kidneys.” Id. at ¶ 7.
She attested that when she learned of
Plaintiff's
regarding
complaints
his
diet,
she
spoke
with
Trinity’s CCJ Food Services Director, Defendant Bowman, to confirm
that Plaintiff was receiving meals that were prepared in accordance
with a renal diet’s specifications. Id. at ¶ 11.
She also
periodically consulted with the CCJ medical department to confirm
that the specifications for Plaintiff's diet remained unchanged
“and that the CCJ medical department did not wish to modify the
diet in response to the prisoner plaintiff’s complaints.” Id. at
¶ 12.
She attached to her affidavit a December 13, 2011 “Menu
Review & Visit Summary” in which she summarized a December 7, 2011
meeting with medical staff at the CCJ where Plaintiff's medical
diet order was discussed and reviewed (Doc. 95-6).
The summary
stated that Plaintiff's renal diet was reviewed “and found to be
supportive of the current diet order.” Id.
As
to
Plaintiff's
assertion
that
Defendant
Sternal
was
responsible for Plaintiff's restriction from purchasing snacks at
the commissary, Defendant Sternal attested:
On
another
occasion,
the
CCSO/CCJ
administration asked my opinion, via a request
relayed through Tom Bowman, about whether
commissary items like honey buns and/or peanut
butter and cheese crackers were consistent
with the prisoner plaintiff’s Renal Diet
prescription.
In my response, I explained
that commissary items of that nature were
inconsistent with the Renal Diet because the
prisoner plaintiff’s consumption of such items
would effectively nullify the Renal Diet’s
controlled intake of protein, sodium and
potassium.
Contrary to the mistaken belief
- 16 -
expressed by the prisoner plaintiff . . ., I
did not restrict his commissary privileges and
do not possess the authority to exempt him
from the CCSO/CCJ policy that restricts
commissary privileges for inmates with medical
dietary restrictions.
Id. at ¶ 14.
Defendant Sternal stated that each of the meals
prepared for Plaintiff during his confinement at the CCJ complied
with the renal diet menu. Id. at ¶ 15.
She attached to her
affidavit menus of the meals served to Plaintiff while he was at
the CCJ (Doc. 118-1; Doc. 118-2).
The
declarations
in
Defendant
Sternal’s
affidavit
are
supported by the deposition testimony of Marcia Eckloff, the health
services administrator for Corizon Health Care (Eckloff Depo. at
4-5).
Eckloff testified that she had received a letter from
Plaintiff's outside health provider instructing that Plaintiff
needed a renal diet to protect his kidney function. Id. at 57-58.
She stated that a doctor is responsible for determining which diet
an inmate is prescribed. Id. at 53.
Once an inmate is prescribed
a restricted diet, he is not allowed to purchase food from the
commissary because there would be “no way that the dietitian or
the doctor would be able to determine whether he was within his
renal diet requirements depending on how much of his commissary
that he ate every day.” Id. at 57.
In her deposition, Dr. Indiana Cruz, one of Plaintiff's
treating physicians, testified that only a doctor, physician’s
assistant, or nurse practitioner is allowed to choose an inmate’s
diet (Cruz Depo. at 21).
Dr. Cruz noted that Plaintiff suffered
- 17 -
from frequent urinary tract infections and that a renal diet was
ordered in 2006 to protect Plaintiff's kidneys “in advance.” (Cruz
Depo.
at
28).
Dr.
Cruz
explained
that
Plaintiff's
chronic
constipation was possibly secondary to the narcotics he was taking.
Id. at 11.
When deposed, another of Plaintiff's treating physicians, Dr.
Maryam Nabavi, testified that Plaintiff was prescribed a renal
diet that consists of low salt, low potassium, no processed meats,
cheese, milk, or anything that could cause worsening of the kidney
function (Nabavi Depo. at 26).
She believed the renal diet was
appropriate for Plaintiff. Id. at 33.
Plaintiff
purchased
commissary
Dr. Nabavi testified that
food
items
that
were
contraindicated with a renal diet such as cold cut meats, beef
jerky, salt crackers, sweets, and Honey Buns, “all with salt
content greater than 300 milligrams per serving.” Id. at 34.
Dr.
Nabavi stated that “[i]n order to be able to follow our medical
and health care properly and to have him on the food that he needs
to be, he couldn’t have commissary.” Id. at 42.
–
not
Defendant
Sternal
–
ordered
that
all
Accordingly, she
of
Plaintiff's
commissary food purchases be discontinued. Id. at 34, 40, 41.
When asked whether Plaintiff's alleged constipation could have
been caused by his use of Vicoden, Hydrocodone, and Oxycodone, Dr.
Nabivi confirmed that these medications could cause constipation.
Id. at 46-47.
Dr. Nabavi testified that Plaintiff's underlying
spinal cord injury could also lead to constipation. Id. at 47.
- 18 -
Another
of
Plaintiff's
treating
physicians,
Dr.
Jannette
Valentin Gonzalez, attested that during the time she treated
Plaintiff, he was prescribed a renal diet which is “generally
prescribed for the purpose of limiting the production of wastes
excreted
by
the
kidneys.”
(Valentin
Gonzalez
Aff.
at
¶
4).
Valentin Gonzalez attested that restricted diets are based on
medical necessity, not inmate food preference, and that “only a
Corizon physician can prescribe a restricted medical diet for a
CCJ inmate and only a Corizon physician can modify or alter a CCJ
inmate’s diet prescription.” Id. at ¶ 3.
Valentin Gonzalez stated
that when Plaintiff would complain about constipation from his
food, she explained to him “that the constipation he experienced
was more likely attributable to his paraplegia and the side effects
of the medications he received as part of his medical treatment,
like Vicodin, than to the items served in his Renal Diet meals.”
Id. at ¶ 6.
She directed the CCJ food service to blend his renal
diet meals “into a creamy mixture” for seven days to determine
whether doing so would help with Plaintiff's digestive issues. Id.
However, Plaintiff refused those meals, so the directive was
rescinded. Id.
Dr. Valentin Gonzalez also inspected the meat
items that Plaintiff received and confirmed with Trinity staff
that Plaintiff did not receive processed meat in his meals, “but
instead received fresh ground chicken, beef and turkey and fresh
boneless turkey and chicken breasts.” Id. at ¶ 7.
- 19 -
Dr. Valentin
Gonzalez refused to authorize Plaintiff to receive foods that were
inconsistent with the renal diet specifications. Id. at ¶ 8.
In
his
affidavit,
Defendant
Tom
Bowman,
Trinity’s
Food
Services Director for the CCJ, attested that the Collier County
Sheriff’s Office and CCJ administration maintains strict control
and supervision over Trinity’s operations (Bowman Aff. at ¶ 3).
Bowman
attested
that
“[o]nce
a
restricted
medical
diet
is
prescribed for an inmate, Trinity is not permitted to modify or
alter the diet prescription absent specific authorization by the
CCSO/CCJ administration and/or the CCJ medical department.” Id. at
¶ 6.
Bowman attested that Plaintiff did not receive any processed
meat in his meals; rather Plaintiff received “fresh, sodium free
ground chicken, beef and turkey and fresh, sodium free boneless
turkey and chicken breasts.
The items consist of 100% meat and
do not contain preservatives, artificial ingredients or fillers,
like soy, but are lightly seasoned with pepper and/or garlic.” Id.
at
¶
20.
Bowman
attached
copies
of
Plaintiff's
diet
to
his
affidavit (Doc. Nos. 117-2, 117-3, 117-4).
Defendant Sternal has presented admissible evidence to refute
Plaintiff's claims that she was responsible for the rescission of
Plaintiff's commissary privileges and that she refused to allow
Plaintiff’s physicians to alter Plaintiff's medically prescribed
diet.
treating
The deposition testimony and affidavits of Plaintiff's
physicians
is
admissible
evidence
showing
that
they
collectively thought the renal diet appropriate for Plaintiff to
- 20 -
protect his kidneys and that only a treating physician is allowed
to alter a CCJ prisoner’s prescribed medical diet.
of
Dr.
Nabavi
Defendant
is
admissible
Sternal,
ordered
evidence
that
showing
Plaintiff's
The testimony
that
she,
commissary
not
food
privileges be discontinued because the commissary items Plaintiff
wished to consume were inconsistent with a renal diet.
Plaintiff
has
offered
Sternal’s evidence.
his
treating
nothing
to
contradict
Defendant
Rather, Plaintiff argues that, contrary to
physicians’
assertions
otherwise,
Plaintiff
was
placed on the renal diet solely to ensure that he did not receive
processed meats in his meals, and that Defendant Sternal was
“negligent for not discussing reason why Plaintiff was prescribed
renal
diet
before
emailing
Tom
Bowman
back
that
an
inmate
prescribed renal diet should not receive any commissary foods due
to sodium and potassium intake knowing fullwell [sic] Plaintiff
can eat all the sodium or potassium obtained while prescribed renal
diet to avoid any processed meats is the only restriction.” (Doc.
176).
Plaintiff misses the point; because only a CCJ physician
had authority to alter Plaintiff's diet or to order the suspension
of Plaintiff's commissary privileges, Defendant Sternal was not
negligent and did not violate Plaintiff's constitutional rights
when she advised Defendant Bowman that commissary privileges are
inconsistent
with
a
renal
diet.
Whether
Sternal
knew
of
Plaintiff's self-described reason for being prescribed a renal
diet is irrelevant.
- 21 -
To impose liability under § 1983 on an individual defendant,
the defendant's act or omission must cause the deprivation of the
plaintiff’s constitutional rights. Porter v. White, 483 F.3d 1294,
1306 n. 10 (11th Cir. 2007)(“Congress did not intend for § 1983
liability to attach where causation is absent,” and as such “[a]
§ 1983 claim requires proof of an affirmative causal connection
between
the
defendant's
acts
or
omissions
and
the
alleged
constitutional deprivation.”); Zatler v. Wainwright, 802 F.2d 397,
401
(11th
Cir.
affirmative
1986)
causal
(“[S]ection
connection
1983
between
requires
the
proof
official’s
of
an
acts
or
omissions and the alleged constitutional deprivation.”).
Here,
Plaintiff has not shown that Defendant Sternal was responsible for
prescribing Plaintiff's renal diet or that she had the authority
to change it.
The evidence before this Court shows the opposite.
Therefore, Plaintiff has failed to show a causal connection between
Defendant
Sternal’s
actions
and
any
alleged
constitutional
violation.
Based on the evidence on the record before the Court, the
Court concludes that no rational jury could find that Defendant
Sternal acted with the requisite deliberate indifference necessary
to support a 42 U.S.C. § 1983 claim.
Defendant Sternal is entitled
to summary judgment on Plaintiff's deliberate indifference claim.
2.
Defendant Bowman is entitled to summary judgment on
Plaintiff's deliberate indifference claim
- 22 -
Plaintiff testified in his deposition that his deliberate
indifference
claim
against
Defendant
Bowman
is
based
upon
Plaintiff's belief that Defendant Bowman put something in his
turkey meatball that caused Plaintiff to have difficulty digesting
it, resulting in chronic constipation (Plaintiff's Depo. at 10708).
Evidence has been presented that the meat in Plaintiff's renal
diet consisted of ground chicken, beef, and turkey, boneless
turkey, and chicken breasts (Valentin Gonzalez Aff. at ¶ 7; Bowman
Aff. at ¶ 20; Doc. 94-2; Doc. 94-3; Doc. 94-4; Sternal Aff. at ¶
9, Ex. A). Plaintiff does not assert that he is allergic to these
meats
or
that
consumption
of
such
medically prescribed renal diet.
is
contraindicated
by
his
To the contrary, Plaintiff
admitted that when not incarcerated, he regularly consumes turkey,
although not ground turkey (Plaintiff's Depo. at 124).
Other than
Plaintiff's assertion that the turkey meatballs he was served
“must”
have
contained
“processed
meat”
because
they
caused
constipation, he has presented no evidence to show that there is
a
genuine
meatballs.
give
rise
affirmative
issue
of
fact
as
to
the
substance
of
the
turkey
That Plaintiff did not like the meatballs does not
to
a
duty
constitutional
to
provide
violation.
their
inmates
Prisons
with
have
an
nutritionally
adequate food. See French v. Owens, 777 F.2d 1250, 1255 (7th Cir.
1985).
However, assuming a diet's nutritional adequacy, prison
officials, not the inmates, have the discretion to control its
- 23 -
contents. See Divers v. Dep’t of Corr., 921 F.2d 191, 194 (8th
Cir. 1990); see also Palmenta v. Arnone, Case No. TTDCV125005609S,
2012 WL 2335307, at *4–5 (Conn. Super. May 24, 2012) (prisoner's
desire for a “gluten-free diet with adequate fiber” failed to state
a claim); Collado v. Sposato, Case No. 12-cv-2151, 2012 WL 3113837,
at *4 (E.D.N.Y. July 24, 2012)(“Preference for certain foods and
dislike of others cannot be equated with a constitutional guarantee
to a custom-tailored menu.”).
Likewise, to survive summary judgment, Plaintiff must raise
a
factual
question
deliberate
as
to
indifference
whether
actually
Defendant
caused
the
Bowman’s
harm
alleged
alleged
by
Plaintiff. See Hale v. Tallapoosa County, 50 F.3d 1579, 1582 (11th
Cir. 1995).
The Trinity defendants have presented evidence from
Plaintiff's doctors that Plaintiff's constipation was not caused
by the food he was served, but was likely caused by Plaintiff's
medical condition and the narcotic medications he used (Nabavi
Depo. at 45-47; Cruz Depo. at 11).
that
the
doctors
at
the
CCJ
Evidence was also presented
prescribed
medication
and
other
treatment for Plaintiff's constipation, but that Plaintiff refused
to take advantage of it (Cruz Depo. at 38; Valentin Gonzalez Aff.
at ¶ 6).
This is not a situation in which Defendant Bowman violated
Plaintiff's constitutional rights by providing a diet that was
contrary to Plaintiff's medical needs.
involved
in
Plaintiff's
food
To the extent Bowman was
choices,
- 24 -
he
merely
restricted
Plaintiff's diet in a manner that was reasonably consistent with
Plaintiff's documented medical concerns.
The evidence does not
establish any medical reason for the restriction of ground turkey
or boiled eggs other than Plaintiff's speculation that eating these
foods caused constipation.
Accordingly, Defendant Bowman is entitled to summary judgment
on Plaintiff's deliberate indifference claim.
3.
Defendant Bowman is entitled to summary judgment on
Plaintiff's retaliation claim
In his response to the motion for summary judgment, Plaintiff
asserts that Tom Bowman retaliated against him because he continued
to receive turkey meatballs and boiled eggs in his meals even after
he filed grievances complaining about the turkey meatballs and
boiled eggs in his meals (Doc. 176 at ¶ 40).
Inmates do not have a constitutionally protected interest in
having
grievances
resolved
to
their
satisfaction.
Geiger
v.
Jowers, 404 F.3d 371, 373-74 (5th Cir. 2005); Adams v. Rice, 40
F.3d 72, 75 (4th Cir. 1994) (the fact that the defendants did not
respond to an inmate’s grievance in the manner that he would have
preferred does not state a constitutionally significant claim).
Therefore,
a
defendant
is
not
automatically
constitutionally
liable merely because he refuses to provide an inmate with the
preferred response to his grievances.
However, an inmate may
maintain a cause of action for retaliation under 42 U.S.C. § 1983
by showing that a prison official's actions were “the result of
- 25 -
[the inmate's] having filed a grievance concerning the conditions
of his imprisonment.” Farrow v. West, 320 F.3d 1235, 1248 (11th
Cir. 2003).
To prevail on a retaliation claim, the inmate must establish
that: (1) his speech was constitutionally protected; (2) the inmate
suffered
adverse
retaliatory
action
conduct
would
such
that
likely
the
deter
official's
allegedly
person
ordinary
a
of
firmness from engaging in such speech; and (3) there is a causal
relationship between the retaliatory action and the protected
speech. Smith v. Mosley, 532 F.3d 1270, 1276 (11th Cir. 2008).
With respect to the causal element, the inmate must demonstrate
that the correctional officials intended to retaliate against him
because of his exercise of his First Amendment rights, and that
but for the retaliatory motive, the adverse act complained of would
not have occurred. Woods v. Smith, 60 F.3d 1161, 1166 (5th Cir.
1995); Smith, 532 F.3d at 1278.
A plaintiff is required to do
more than make “general attacks” upon a defendant’s motivations
and must articulate “affirmative evidence” of retaliation to prove
the requisite motive. Crawford-el v. Britton, 523 U.S. 574, 600
(1998).
“In
other
words,
the
prisoner
must
show
that,
as
a
subjective matter, a motivation for the defendant’s adverse action
was the prisoner’s grievance or lawsuit.” Jemison v. Wise, 386 F.
App’x 961, 965 (11th Cir. 2010).
An inmate has a First Amendment right to file grievances
against
prison
officials.
Smith,
- 26 -
532
F.3d
at
1276.
Indeed,
Plaintiff testified at his deposition that he filed 2266 such
grievances between September 2011 and July 2012 (Plaintiff's Depo.
at 126).
Moreover, Plaintiff has sent to this Court thousands of
unlabeled, bundled grievances which appear to be primarily aimed
towards Plaintiff's dissatisfaction with the meals he received
while incarcerated at the CCJ (Doc. 177).
Given the inordinate
number of grievances filed by Plaintiff regarding the quality and
composition of the meals he received at the CCJ, it cannot be said
that he, or an inmate of ordinary firmness, would be chilled from
filing
such
grievances
merely
meatballs in their meals.
because
they
received
turkey
Accordingly, Plaintiff has failed to
satisfy the second prong of the test set forth in Smith v. Mosely.
Most notably, Plaintiff does not show that, but for Defendant
Bowman’s alleged retaliatory conduct, he would not have continued
to receive turkey meatballs in his meals.
It has been established
through admissible evidence that only Plaintiff's physicians were
authorized
to
change
Plaintiff's
medically
prescribed
diet
(Eckloff Depo. at 51, 53, 55, 90; Valentin Gonzalez Aff. at ¶ 8;
Nabavi Depo. at 29, 33; Cruz Depo. at 20, 24).
Plaintiff admitted
that Defendant Bowman told him that he would serve different items
upon receiving written instructions from Plaintiff's doctors that
he do so (Plaintiff's Depo. at 90, 107).
treating
physicians
did
not
see
any
However, Plaintiff's
medical
reason
to
alter
Plaintiff's diet (Valentin Gonzalez Aff. at ¶ 8; Nabavi Depo. at
33; Cruz Depo. at 30).
- 27 -
In
response,
Plaintiff
has
not
articulated
affirmative
evidence showing that his grievances were denied based on anything
other
than
the
physicians.
medical
judgment
of
Plaintiff's
treating
In other words, Plaintiff has failed to provide
documentary evidence demonstrating that a motivation for Defendant
Bowman’s failure to address his grievances in a manner satisfactory
to Plaintiff was based on Plaintiff's history or pattern of filing
grievances and complaints.
Plaintiff simply assumes that he did
not receive different items on his food tray in retaliation for
filing grievances complaining about the items on his food tray.
Plaintiff's conclusory allegations based upon his own subjective
beliefs are insufficient to create a genuine issue of material
fact. Leigh v. Warner Bros., Inc., 212 F.3d 1210, 1217 (11th Cir.
2000).
Plaintiff
has
not
presented
a
genuine
issue
for
trial;
therefore, Defendant Bowman is entitled to summary judgment on
Plaintiff's First Amendment retaliation claim.
4.
3
The Trinity defendants are entitled to summary
judgment on Plaintiff's negligence claims 3
It is not clear to the Court why Plaintiff believes
Defendants Sternal, Bowman, or Trinity Services Group, Inc. were
negligent in their provision of food to Plaintiff.
Much of
Plaintiff's handwritten pleadings are indecipherable, and he does
not appear to differentiate his deliberate indifference claims
from his negligence claims against the Trinity defendants; nor
does he separate his ADA claims against other defendants from his
food-provision claims. Likewise, Plaintiff does not express his
arguments in a logical or a sequential manner.
To the extent
Plaintiff intended to raise additional negligence claims against
the Trinity defendants not addressed in this Order, such claims
are dismissed pursuant to 28 U.S.C. § 1915A(b)(1).
- 28 -
In his second amended complaint, Plaintiff asserted that
“Defendants
Trinity,
Bowman,
and
Sternal
were
well
aware
of
{Plaintiff's} dietary needs, both through medical prescriptions
and grievances filed by Plaintiff.
Defendants consistently failed
to meet the medically required dietary needs of Plaintiff and
habitually refused to correct the violations.” (Doc 113 at ¶ 27).
At his deposition, Plaintiff asserted that Trinity was negligent
for not ensuring that he receive a proper diet (Plaintiff's Depo.
at 115).
In his response to the motions for summary judgment,
Plaintiff asserts:
And Trinity Serves Group, Inc, were sent
notary letters, must review filed grievances
were all negligent because Trinity, Tom Bowman
and even Sandra Sternal Exhibits 11-B-11-c
ment [sic] with medical Defendant’s Valentins,
Upton,
Marcia,
and
Bowman
and
McGowan
regrading [sic] Romanos receiving lunch and
dinner processed meats were never stop serving
knowingly caused adbominal [sic] disability,
ether permanent OR continued disabilities.
(Doc. 176 at ¶ 100).
To the extent that Plaintiff asserts that
the Trinity defendants were negligent for failing to provide him
with a medically prescribed renal diet, the claim must fail.
To maintain an action for negligence against the Trinity
defendants for failing to alter his medically prescribed diet upon
his request, Plaintiff must establish that the defendants owed a
duty, that the defendants breached that duty, and that this breach
- 29 -
caused Plaintiff damages. Florida Dep’t of Corr. v. Abril, 969 So.
2d 201, 204 (Fla. 2007).
It is not disputed that the Trinity defendants had a duty to
provide Plaintiff with the renal diet prescribed by his doctors.
However, the Trinity defendants had no duty to provide Plaintiff
with the food of his choice. “A well-balanced meal, containing
sufficient nutritional value to preserve health, is all that is
required.” Hamm v. DeKalb County, 774 F.2d 1567, 1575 (11th Cir.
1985) (citing Smith v. Sullivan, 553 F.2d 373, 380 (5th Cir.
1977)).
The Trinity defendants have offered admissible evidence
showing that they did not breach the duty to provide Plaintiff
with his prescribed renal diet. See Sternal Aff. at ¶ 5; Bowman
Aff. at ¶ 12; Valentin Gonzalez Aff. at ¶ 9 (attesting that
Plaintiff
received
meals
that
were
prepared
and
served
in
accordance with Plaintiff's medically prescribed diet); Bowman
Aff. at Ex. B, Ex. C (showing menu served to Plaintiff during his
stay at the CCJ).
The defendants have also presented evidence
showing that the meatballs served to Plaintiff did not contain
“processed” meat as Plaintiff alleges. See Valentin Aff. at ¶ 7;
Bowman Aff. at ¶ 20; Doc. 94-2; Doc. 94-3; Doc. 94-4; Sternal Aff.
at ¶ 9, Ex. A (stating that the meat in Plaintiff's renal diet
consisted of ground chicken, beef, and turkey, boneless turkey,
and chicken breasts and that Plaintiff did not receive processed
meats in his meals).
- 30 -
The Trinity defendants have also presented evidence showing
that
the
turkey
constipation.
meatballs
were
not
Nabavi
Depo.
at
See
the
cause
45-47;
of
Cruz
Plaintiff's
Depo.
at
11
(attesting that Plaintiff's constipation was likely caused by his
medical
condition
and
the
narcotic
medication
he
used);
Plaintiff's Depo. at 124 (admitting that he regularly consumes
turkey when not incarcerated).
Plaintiff
has
not
refuted,
The defendants have shown, and
that
Plaintiff
was
prescribed
medication and other treatment for his constipation and that he
refused to use it (Cruz Depo. at 38; Valentin Gonzalez Aff. at ¶
6).
Finally,
evidence
was
presented
that
only
Plaintiff's
physicians, not the Trinity defendants, had authority to change
Plaintiff's diet. See Cruz Depo. at 21, 24; Nabavi Depo. at 29;
Valentin Gonzalez Aff. at ¶¶ 3, 9; Eckloff Depo. at 53, 57.
Accordingly, Plaintiff has failed to show that his constipation
was caused by the Trinity defendants’ alleged refusal to eliminate
turkey meatballs from his diet or otherwise alter his renal diet.
The Court finds, based on the evidence in the record, that no
rational jury could find that the Trinity defendants were negligent
in their provision of meals to Plaintiff.
Summary judgment is
granted in favor of these defendants on Plaintiff's negligence
claims.
B.
Defendants Crooks, McGowan, and Rambosk are entitled to
summary
judgment
on
Plaintiff's
First
Amendment
retaliation claims
- 31 -
In his second amended complaint, Plaintiff asserted that from
September 30, 2011 until July 28, 2012 and from January 3, 2013
until July 19, 2013 he was housed at the CCJ in “cells that lacked
the necessary modification to accommodate Plaintiff's disability.
These cells lacked adequate area to turn in his wheelchair and did
not have transfer mechanisms to allow Plaintiff to safely move
between the bed, toilet and sink.” (Doc. 113 at ¶ 119).
further
asserted
that
“[d]espite
having
direct
Plaintiff
knowledge
of
Plaintiff's disabilities, Defendants refused to provide Plaintiff
with his medically prescribed automatic wheel chair and instead
required Plaintiff to use manual wheel chair to ambulate which
caused damage to Plaintiff's health, safety, and overall wellbeing.” Id. at ¶ 20.
Plaintiff asserted that he filed “numerous
grievances” regarding the lack of ADA accommodations and “[i]n
response
to
these
complaints
and
grievances,
Plaintiff
was
subjected to increase use of unwarranted restraints, unnecessary
isolation and confinement, refusal of medical care and denied
access to shower facilities; and Plaintiff was unable to properly
navigate the facility because a functioning electric wheelchair
was withheld from him.” Id. at ¶ 32.
Plaintiff also asserted that
he was “forced to take meals in the jail cafeteria setting which
ultimately caused him to miss his breakfast meal on a repeated
basis due to his inability to transfer him within his cell and
inability to properly clean himself to be in a presentable state
for cafeteria meals.
Moreover, the cafeteria facilities lacked
- 32 -
accommodation for Plaintiff's disabilities in that he was not
permitted
to
eat
his
meals
while
in
his
wheelchair
thereby
restricting his access to basic nourishment.” Id. at ¶ 34.
1.
Plaintiff's claims for compensatory and punitive
damages on his retaliation claims are barred by 42
U.S.C. § 1997e(e)
In their motion for summary judgment, the CCJ defendants
assert that they are entitled to summary judgment on Plaintiff's
retaliation claims under 42 U.S.C. § 1997e(e) because Plaintiff
did not allege that he suffered the requisite “physical injuries”
to support an award for compensatory or punitive damages (Doc. 155
at 19-20).
nominal
The CCJ defendants note that Plaintiff does not seek
damages
in
his
second
amended
complaint.
Id.
at
20.
However, in his response to the motions for summary judgment,
Plaintiff asks this Court to “add nominal and punitive damage to
this 1983 case.” (Doc. 176 at ¶ 57).
No 42 U.S.C. § 1983 action “may be brought by a prisoner
confined in a jail, prison, or other correctional facility, for
mental or emotional injury suffered while in custody without a
prior showing of physical injury[.]” 42 U.S.C. § 1997e(e); Mitchell
v. Brown & Williamson Tobacco Corp., 294 F.3d 1309, 1312-13 (11th
Cir. 2002) (stating that “to avoid dismissal under § 1997e(e), a
prisoner's
claims
for
emotional
or
mental
injury
must
be
accompanied by allegations of physical injuries that are greater
than de minimis”); Harris v. Garner, 190 F.3d 1279, 1288 (11th
Cir. 1999) (finding that the Constitution does not “mandate[] a
- 33 -
tort damages remedy for every claimed constitutional violation”),
opinion vacated by 197 F.3d 1059, opinion reinstated in part by,
216 F.3d 970 (11th Cir. 2000).
The statute's clear and broad
language encompasses all claims, including constitutional claims,
and provides for no exceptions. Al–Amin v. Smith, 637 F.3d 1192,
1197 (11th Cir. 2011). Moreover, no distinction is made between
“constitutional claims frequently accompanied by physical injury
(e.g., Eighth Amendment violations) and those rarely accompanied
by
physical
injury
(e.g.,
First
Amendment
violations).”
Id.
Rather, all constitutional claims are treated equally. Id.
The facts as alleged by Plaintiff in his second amended
complaint show that he did not suffer a physical injury from
Defendant
McGowan’s
refusal
to
allow
him
to
use
an
electric
wheelchair outside his medical cell or from Defendant Crooks’
alleged
verbal
(describing
abuse.
See
Plaintiff's
discussion
allegations
Defendants Crooks and Rambosk).
infra
of
Part
V(B)(2)(3)
retaliation
against
Even a liberal construction of
Plaintiff's second amended complaint does not satisfy the “more
than de
minimums
injury”
requirement
compensatory or punitive damages. 4
4
to
sustain
a
claim
for
Therefore, the CCJ Defendants
Plaintiff does not avoid the statutory bar of § 1997e(e)
merely because he didn’t specifically allege an “emotional”
injury.
The words “mental” and “emotional” do not have
“talismanic significance in prisoner pleadings” and Plaintiff
cannot avoid § 1997e(e)’s bar merely by remaining silent on the
nature of his injury. Al-Amin, 637 F.3d at 1197 n.5.
- 34 -
are
entitled
to
summary
judgment
on
Plaintiff's
claims
for
compensatory or punitive damages, and any request for relief on
Plaintiff's retaliation claims against the CCJ defendants would
necessarily be limited to nominal damages. See Hughes v. Lott, 350
F.3d 1157, 1162 (11th Cir. 2003)(concluding that § 1997e(e) does
not bar suits by prisoners who have not alleged a physical injury
if they seek only nominal damages).
However, as discussed in this
Order, because the CCJ defendants are entitled to summary judgment
on Plaintiff's retaliation claims, Plaintiff's request that he be
allowed to add a claim for nominal damages will be denied.
2.
Defendant Crooks is entitled to summary judgment on
Plaintiff's retaliation claim
In his second amended complaint, Plaintiff asserted that
Defendant
Crooks
retaliated
against
him
for
the
use
of
the
grievance process by “antagonistically” yelling “meal calls into
Plaintiff's
audio
box
knowing
that
Plaintiff's
disability
prevented him from physical [sic] being able to go to the meal
location.
In addition, defendant Alan Crooks would intentionally
kick Plaintiff's cell door and slam the metal flap on the door in
retaliation against Plaintiff for filing grievances in regards to
Plaintiff's food and digestive related issues.
This continued
pattern of retaliatory behavior cause Plaintiff to suffer both
physical and emotional damage.” (Doc. 113 at 36).
In his motion
for summary judgment, Defendant Crooks asserts that Plaintiff's
- 35 -
allegation of verbal abuse “simply does not give rise to a cause
of action under 1983.” (Doc. 155 at 10).
argues
that
Plaintiff's
retaliation
Defendant Crooks also
claim
fails
because
his
allegations are merely conclusory. Id. at 11.
Although
not
described
in
Plaintiff's
second
amended
complaint, from later pleadings filed with this Court, it appears
that Plaintiff believes Defendant Crooks “retaliated” against him
for filing grievances with Defendant McGowan and Marcia Eckloff in
which Plaintiff insisted that his breakfast tray be delivered to
his bedside because he (Plaintiff) suffered from uncontrollable
morning muscle spasms, making it difficult for him to get out of
bed to retrieve his breakfast tray. See Doc. 178 at 115-121. 5
In
November and December of 2011, Plaintiff filed numerous grievances
in which he complained that the deputies placed his breakfast tray
on his door flap and that “uncontrollable muscle spasms” prevented
him from retrieving the tray. Id.
In response to these grievances,
it
that
was
explained
to
Plaintiff
CCJ
nurses
would
assist
Plaintiff out of bed and into his wheelchair in the morning so
that he could retrieve and eat his breakfast (Doc. 163-3 at 38,
39, 40).
5
Plaintiff refused the nurses’ help. Id.
Plaintiff was informed by Marcia Eckloff that no medical
order had been written for Plaintiff to receive breakfast in bed
(Eckloff Depo. at 29).
In her deposition testimony, Dr. Cruz
stated that, despite Plaintiff's assertions otherwise, she never
ordered that Plaintiff receive breakfast in bed (Cruz Depo. at 5051).
- 36 -
Defendant Crooks’ assertion that any alleged verbal abuse did
not rise to the level of an independent constitutional violation
is unavailing.
If proven, Defendant Crooks’ alleged verbal abuse
need not independently rise to the level of a constitutional
violation to state a First Amendment retaliation claim. See Thomas
v. Evans, 880 F.2d 1235, 1242 (11th Cir. 1989)(“To state a first
amendment
claim
for
retaliation,
a
prisoner
need
not
allege
violation of a separate and distinct constitutional right.”).
Rather, the core of a retaliation claim is that the prisoner is
being retaliated against for exercising his right to free speech.
Farrow,
320
F.3d
at
1248.
However,
Plaintiff's
conclusory
assertion that Defendant Crooks engaged in retaliatory behavior by
“antagonistically” informing Plaintiff of his mealtime (presumably
without bringing the tray to Plaintiff in bed) is without record
support and does not state a First Amendment retaliation claim.
The record evidence shows that Plaintiff complained to both
Defendant McGowan and Marcia Eckloff that he could not get out of
bed early enough to retrieve his breakfast from the door flap.
Plaintiff was offered the assistance of nurses to get out of bed
and into his wheelchair in the mornings so that he could eat
breakfast; Plaintiff refused such aid – preferring instead that
his breakfast tray be brought to his bedside (Eckloff Depo. at 38,
39, 40).
In his responses to Plaintiff's grievances regarding
Plaintiff's complaints that he was being awakened too early,
Defendant McGowan stated that “we wake you up so you can get up
- 37 -
without harm.
If one hour is not enough, we will accommodate you
by waking you up earlier[.]” (Doc. 178 at 117).
McGowan also
informed Plaintiff that he (Plaintiff) would be given three notices
that breakfast was coming so that he could accept his meal. Id. at
177.
Nothing in the record supports a conclusion that Defendant
Crooks’ actions were based upon a retaliatory motive.
To the
contrary, the record evidence suggests that Defendant Crooks’
conduct was predicated upon a desire to wake Plaintiff in time to
retrieve his breakfast tray.
Plaintiff also fails to indicate
what, if any, deterrence Defendant Crooks’ “verbal abuse” had on
the exercise of his First Amendment rights. See Bennett v. Hendrix,
423 F.3d 1247, 1250 (11th Cir. 2005) (holding that “a plaintiff
suffers adverse action if the defendant's allegedly retaliatory
conduct would likely deter a person of ordinary firmness from
exercise of First Amendment rights”)(internal citations omitted).
Negative statements in general made by a defendant without threat
of physical violence or any other consequence would not likely
deter a person of “ordinary firmness” from exercising his rights.
Woods v. Valentino, 511 F. Supp. 2dd 1263 (M.D. Fla. May 14, 2007).
Instead, Plaintiff merely offers general, conclusory allegations
that Defendant Crooks was unpleasant towards him because he filed
the
instant
support
a
action.
First
Without
Amendment
more,
these
retaliation
allegations
claim.
See
cannot
Fullman
v.
Graddick, 739 F.2d 553, 556-57 (11th Cir. 1984) (“In civil rights
- 38 -
.
.
.
actions,
courts
have
recognized
that
more
than
mere
conclusory notice pleading is required. In civil rights actions,
it has been held that a complaint will be dismissed as insufficient
where the allegations it contains are vague and conclusory”);
Larken v. Perkins, 22 F. App’x 114, at *1, n.1 (4th Cir. 2001)
(the district court properly found a party's “own, self-serving
affidavit[s] containing conclusory assertions and unsubstantiated
speculation” insufficient to stave off summary judgment.).
Defendant Crooks has submitted admissible evidence showing
that his actions towards Plaintiff were not predicated upon a
retaliatory motive, and Plaintiff has not countered that evidence
with
anything
other
than
his
own
unsupported
allegations.
Plaintiff's allegations against Defendant Crooks, standing alone,
do not state a viable retaliation claim.
therefore,
entitled
to
summary
judgment
Defendant Crooks is,
on
Plaintiff's
First
Amendment retaliation claim. See Ross v. Commc’ns Satellite Corp.,
759 F.2d 355, at 365 (4th Cir. 1985) (holding that unsupported
allegations “do not confer talismanic immunity from Rule 56.”),
overruled on other grounds, Price Waterhouse v. Hopkins, 490 U.S.
228 (1989).
3.
Defendant McGowan is entitled to summary judgment
on Plaintiff's retaliation claim
In his second amended complaint, Plaintiff asserted that
Defendant McGowan retaliated against him for filing grievances
(Doc. 113 at 35).
Specifically, Plaintiff asserted that Defendant
- 39 -
McGowan placed him on administrative lock-down, refused to provide
adequate accommodation “to ambulate in a safe manner,” denied
Plaintiff access to his medically ordered renal diet, and refused
to provide Plaintiff with sufficient medical supplies. Id.
At his
deposition, Plaintiff explained that Defendant McGowan told him
that he must get out of bed for breakfast, required that he shower
in the morning instead of the evening, and forced him to stay in
an ADA compliant cell which did not have television or unlimited
access to a telephone (Plaintiff's Depo. at 16, 28, 61, 72, 78,
83).
Plaintiff complained that the other jails he’s been in “went
out of their way to accommodate” him, but that the Collier County
Jail did not do so. Id. at 81-82.
In the motion for summary
judgment, Defendant McGowan states that the record evidence shows
that “there is no causal connection between the alleged writing of
grievances
and
Plaintiff's
previous
federal
lawsuit
and
Plaintiff's housing in the medical unit by Defendant McGowan.”
(Doc. 155 at 11).
At his deposition, Plaintiff admitted that, contrary to his
allegations in his second amended complaint, he has had an electric
wheelchair at the Collier County Jail since 2007 (Plaintiff's Depo.
at 16, 45, 48).
He admitted that during the time period at issue
in this lawsuit, he generally had no difficulty receiving his
catheters (Plaintiff's Depo. at 18).
He admitted that his ADA
compliant cell had enough space to turn his wheelchair around, he
had no difficulty entering or exiting his cell with his wheelchair,
- 40 -
he had an electric hospital bed and the cell was equipped with a
trapeze
bar
and
transfer
bars
(Plaintiff's
Depo.
at
61-65).
Plaintiff admitted he was not placed in the medical unit as a
disciplinary measure (Plaintiff's Depo. at 73).
It has also been
established that Plaintiff received a medically prescribed renal
diet while at the Collier County Jail. See discussion supra Part
IV(A)(1)-(2).
Therefore, the only remaining issue of material
fact is whether Defendant McGowan’s decision that Plaintiff could
not use his electric wheelchair in area 2B 6 of the Collier County
Jail was motivated by a desire to retaliate against Plaintiff for
writing grievances or filing lawsuits. 7
In his affidavit, Defendant McGowan attested that Plaintiff
was allowed to go to 2B while he was incarcerated at the CCJ, but
that he refused to go unless the jail secured someone to push his
6
Plaintiff appears to assert that 2B is common area.
However, in her deposition, Marcia Eckloff described 2B as a unit
housing inmates with limited mobility or skin infections (Eckloff
Depo. at 24). Eckloff testified that inmates in medical, such as
Plaintiff, are generally housed in their cells. Id.
7
At his deposition, Plaintiff admitted that he was given
daily opportunities to shower and was allowed to use the telephone
in the medical unit where he was held (Plaintiff's Depo. at 78,
83). Plaintiff asserts that in contrast to the prisoners in the
medical cells, prisoners in 2B are allowed to shower whenever they
want (instead of only in the morning) and are allowed unlimited
access to the telephone.
Accordingly, the crux of the instant
retaliation claim against Defendant McGowan is that Plaintiff is
not allowed access to 2B. Therefore, Plaintiff's assertions that
McGowan retaliated against him by restricting his access to
unlimited showers, telephone use, and television viewing was a
result of Plaintiff's inability to access 2B and will not be
separately addressed.
- 41 -
manual wheelchair (McGowan Aff. at ¶ 10).
Plaintiff admitted that
he had initially been allowed to visit 2B and that the jail had
provided someone to push the chair to and from 2B, but Plaintiff
had to use the manual wheelchair to navigate 2B while he was there
(Plaintiff's Depo. at 75-76).
Plaintiff
that
he
should
However, a doctor subsequently told
never
use
a
manual
wheelchair, 8 so
Plaintiff was no longer taken to 2B, presumably because the jail
refused to provide Plaintiff with someone to push his manual
wheelchair while there. Id. at 77; Doc. 197 at ¶ 5.
Plaintiff
argued at his deposition that he should have been allowed to use
his electric wheelchair in 2B. Id. at 77-84.
It is undisputed that McGowan refused to allow Plaintiff to
use his electric wheelchair in 2B.
Defendant McGowan attested
that he and other jail administrators decided that Plaintiff could
not
use
a
battery
operated
electric
wheelchair
in
the
open
population due to security concerns of having a battery containing
lead and sulfuric acid around inmates who could use the battery to
cause harm to staff members or other inmates (McGowan Aff. at ¶
6).
Defendant McGowan attested:
The decision to house Mr. Romano in cell 20 of
the jail’s medical unit was not in retaliation
to Mr. Romano filing the previous civil rights
lawsuit,
or
for
filing
thousands
of
grievances.
Rather, it was triggered by
security reasons posed by the use of the
electric
wheelchair
in
open
population.
Further, I had checked with other Jail
8
It is undisputed that Plaintiff suffers from carpel tunnel
syndrome. See Eckloff Depo. at 20.
- 42 -
commanders in Florida, and none allow electric
wheelchairs in general population.
Id. at ¶ 11.
Defendant McGowan also attested that Plaintiff would
not be able to recharge the battery to his electric wheelchair in
the general population. Id. at ¶ 5.
Plaintiff has failed to establish a causal connection between
his constitutionally protected activity (the filing of lawsuits
and grievances) and the adverse actions of Defendant McGowan
(McGowan’s
refusal
wheelchair in 2B).
to
allow
Plaintiff
to
use
his
electric
The Second District Court of Appeals has noted
that any adverse action taken against a prisoner by a prison
official - even those otherwise not rising to the level of a
constitutional violation - can be characterized by the prisoner as
a constitutionally proscribed retaliatory act. Dawes v. Walker,
239 F.3d 489, 491 (2d Cir. 2001), overruled on other grounds,
Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002).
courts
must
approach
prisoner
claims
of
Therefore,
retaliation
with
skepticism and particular care. See Flaherty v. Coughlin, 713 F.2d
10, 13 (2d Cir. 1983).
This is necessary because prisoners' claims
of retaliation are “easily fabricated” and “pose a substantial
risk of unwarranted judicial intrusion into matters of general
prison administration.” Dawes, 239 F.3d at 491.
The record is devoid of evidence, other than Plaintiff's own
conclusory assertions, that Plaintiff was denied the right to use
his electric wheelchair in the general population in retaliation
for filing lawsuits and grievances. Rather, the record indicates
- 43 -
that the denial was due to Defendant McGowan’s legitimate concerns
about the security and the safety of others since the substances
in the wheelchair’s battery could be used as weapons.
Plaintiff
has not refuted Defendant McGowan’s statement that no other jail
in Florida allows electric wheelchairs in the general population.
The
security
concerns
of
the
jail
commanders
in
Florida
are
entitled to deference because prison policies concerning security
“are peculiarly within the province and professional expertise of
corrections officials, and, in the absence of substantial evidence
in the record to indicate that the officials have exaggerated their
response to these considerations, courts should ordinarily defer
to their expert judgment in such matters.” Turner v. Safley, 482
U.S. 78, 86 (1987); Defreitas v. Montgomery County Corr. Facility,
525 F. App’x 170 (3d Cir. 2013) (prison’s decision to restrict
prisoner from bringing crutches to general population based on
legitimate security concerns).
There is no genuine dispute of material fact on this claim.
Plaintiff
offers
restricted
grievances.
to
only
the
the
medical
Plaintiff
has
conclusory
unit
not
in
shown
allegation
retaliation
any
that
for
connection
he
was
filing
to
his
engagement in protected First Amendment activities and the conduct
of Defendant McGowan.
The record before the court is devoid of
evidence, direct or otherwise, from which a reasonable fact finder
could infer the requisite motivating factor.
- 44 -
Additionally, the
circumstances, when taken as a whole, do not support making such
an inference.
Defendant
Plaintiff’s
McGowan
First
is
Amendment
entitled
claim
to
summary
because
judgment
Plaintiff
fails
on
to
establish a causal relationship between the alleged protected
activity and any adverse action taken against him.
4.
Defendant Rambosk is entitled to summary judgment
on Plaintiff's retaliation claim
In his second amended complaint, Plaintiff asserted that
“[t]he acts of the individual defendants in retaliating against
Plaintiff because of his utilization of the grievances, appeals
and court process was the result of a policy and/or custom of
encouraging, tolerating, permitting or ratifying a pattern of such
behavior which has been known to the Collier County Sheriff’s
Office prior to this incident and because of the failure to
properly address and correct this activity.” (Doc. 113 at 37).
It is well established that supervisory officials are not
liable for the alleged unconstitutional acts of their subordinates
on the basis of respondeat superior or vicarious liability. Hartley
v. Parnell, 193 F.3d 1263, 1269 (11th Cir. 1999). Supervisory
liability can only be established “when the supervisor personally
participates in the alleged constitutional violation or when there
is a causal connection between the actions of the supervising
official and the alleged constitutional deprivation.” Williams v.
- 45 -
Santana, 340 F. App’x 614, 617 (11th Cir. 2009).
A plaintiff can
establish a causal connection when:
1) a ‘history of widespread abuse’ puts the
responsible supervisor on notice of the need
to correct the alleged deprivation, and he or
she fails to do so; 2) a supervisor's custom
or
policy
result[ed]
in
deliberate
indifference to constitutional rights; or 3)
facts support an inference that the supervisor
directed the subordinates to act unlawfully or
knew that subordinates would act unlawfully
and failed to stop them from doing so.
Matthews v. Crosby, 480 F.3d 1265, 1270 (11th Cir. 2007) (citing
Cottone v. Jenne, 326 F.3d 1352, 1360 (11th Cir. 2003)). The
standard by which a supervisor is held liable for the actions of
a subordinate is extremely rigorous. Gonzalez v. Reno, 325 F.3d
1228, 1234 (11th Cir. 2003).
Plaintiff did not allege that Defendant Rambosk personally
retaliated against him or that a history of widespread abuse should
have put Defendant Rambosk on notice of the need to correct
retaliatory actions by Collier County Jail staff.
allege
that
Defendant
Rambosk
had
a
policy
Plaintiff did
or
custom
of
“encouraging, tolerating, permitting or ratifying a pattern of
such behavior.” (Doc. 113 at 37).
In order to demonstrate a policy
or custom, a plaintiff must show a “persistent and wide-spread
practice” of abuse. Depew v. City of St. Mary's Ga., 787 F.2d 1496,
1499 (11th Cir. 1986).
Plaintiff has not identified any particular policy or custom
with specificity.
Moreover, as discussed in this Opinion and
Order, Plaintiff has demonstrated no instances of retaliatory
- 46 -
behavior by the Collier County Jail staff from which a policy or
custom of toleration could be inferred. See discussion supra Part
V(B)(2)-(3).
As
such,
Plaintiff
has
failed
to
show
a
causal
connection between the actions of Defendant Rambosk and any alleged
constitutional
violation.
Defendant
Rambosk
is
entitled
to
summary judgment on Plaintiff's retaliation claim.
C.
Plaintiff's Responses to the Motions for Summary
Judgment and “Motion Incorporating all Grievances and
Notary Letters In To Evidence in the Form of Exhibit’s
Filed in Support of [Summary] Judgment as if Fully Set
Forth Herein”
Plaintiff has filed three lengthy pleadings that appear to be
in response to the defendants’ motions for summary judgment (Doc.
176; Doc. 177; Doc. 178).
sixty-three
pages
of
The second of these pleadings contains
handwritten
notes
describing
grievances
Plaintiff filed while at the Collier County Jail (Doc. 177).
Plaintiff also filed with this pleading a box containing hundreds
of
bundled
handwritten
grievance
forms
and
a
compact
disc
containing over five hundred pages of Plaintiff's medical records
(Doc. 177-1).
These documents appear to be a subset of those
submitted with Plaintiff's original complaint that were rejected
by this Court on July 25, 2012 (Doc. 16).
In re-submitting the
documents, Plaintiff has not provided “a table of contents or index
(with a title, description, and date of each document)” as was
directed by this Court two and a half years ago. Id. at 2.
If the pleading at docket entry 177 is an attempt to describe
the relevant grievances at issue in his second amended complaint,
- 47 -
the motion is granted to the extent that the Court will consider
the arguments and evidence described by Plaintiff in docket entries
176, 177, and 178.
However, the Court will not independently
examine each of the thousands of bundled documents in an attempt
to discover evidence to support Plaintiff’s constitutional claims.
Docket entry 178 appears to contain Plaintiff's attempt to
file a third amended complaint raising additional claims against
the Trinity and CCJ defendants and also raising claims against
additional defendants, many of whom have already been dismissed
from this action (Doc. 178).
Plaintiff has not filed a motion
seeking leave to file a third amended complaint, and to the extent
the pleading at docket entry 177 seeks such permission, it is
denied.
This case was filed more than two and a half years ago and
involves conduct that is four years old.
Plaintiff was given an
opportunity to file a third amended complaint, but did not do so,
even though he sought, and was granted, an extension of time to
amend (Doc. Nos. 133, 135).
Plaintiff did not object when his
counsel sought permission to withdraw from this case without filing
a third amended complaint (Doc. 146), and Plaintiff did not seek
permission to file a third amended complaint until weeks after the
close of discovery (Doc. 148).
When a motion to amend is filed after the deadline imposed by
the scheduling order, the moving party must show good cause to
amend. Saewitz v. Lexington Ins. Co., 133 F. App’x 695, 699 (11th
- 48 -
Cir. 2005) (“Because [defendant] moved to amend after the deadline
in the scheduling order, Federal Rule of Civil Procedure 16, which
requires a showing of good cause to modify a scheduling order, is
also relevant[.]”); see also Sosa v. Airprint Sys., Inc., 133 F.3d
1417, 1419 (11th Cir. 1998) (“If we considered only Rule 15(a)
without regard to Rule 16(b), we would render scheduling orders
meaningless and effectively would read Rule 16(b) and its good
cause requirement out of the Federal Rules of Civil Procedure.”).
The relief now sought by Plaintiff would delay adjudication
of this case and prejudice the remaining defendants and those who
have
been
dismissed
–
both
in
terms
of
undue
delay
to
the
disposition of this case and the costs and fees already expended
on discovery.
See Keeler v. Fla. Dep’t of Health, 324 F. App’x
850, 858 (11th Cir. 2009) (“[Plaintiff] filed her motion for an
extension of time to amend her complaint after the close of
discovery and filed her motion to amend over a month after the
deadline for such motions had passed. . . . [Plaintiff's] proposed
amended complaint . . . would have resulted in additional discovery
and delayed disposition of the case.
that
the
district
court
abused
Accordingly, we cannot say
its
discretion
in
denying
[Plaintiffs] motion for an extension of time, motion to reconsider,
or motion to amend the complaint.”); Systems Unlimited, Inc. v.
Cisco Sys., Inc., 228 F. App'x 854, 857 (11th Cir. 2007) (affirming
district court's denial of leave to amend, responding to movant's
claim that district court could have re-opened discovery to cure
- 49 -
prejudice, “a district court has wide latitude in refereeing
discovery, and we will not question the limits set by the court
unless they are clearly erroneous or not rationally supported by
the evidence.”); Watkins v. Farmers & Merchants Bank, 237 F. App'x
591, 592 (11th Cir. 2007) (affirming district court's denial of
leave to amend because the plaintiff moved for leave to amend after
the deadline for amendments; the proposed amendment included new
parties and new claims; and granting the motion after the close of
discovery would have resulted in considerable prejudice to the
defendants.
To the extent Plaintiff intended to request leave to file a
third amended complaint in docket entry 177, the motion is denied.
VI.
Conclusion
Because summary judgment is granted in favor of the defendants
on each of Plaintiff's claims, this Court will not address the
defendants’
assertions
that
they
are
entitled
to
qualified
immunity; the Trinity defendants’ assertion that they are entitled
to immunity on Plaintiff's negligence claims under Florida Statute
§
768.28(9)(a);
or
the
Trinity
defendants’
argument
that
Plaintiff's claims for compensatory damages are barred by 42 U.S.C.
§ 1997e(3).
In accordance with the foregoing, it is hereby
ORDERED:
- 50 -
1.
The motion for summary judgment on Plaintiff's civil
rights claims filed by Defendants Tom Bowman and Sandra Sternal
(Doc. 161) is GRANTED.
2.
The
motion
for
summary
judgment
on
Plaintiff's
negligence claims filed by Defendants Tom Bowman, Sandra Sternal,
and Trinity Services Group, Inc. (Doc. 162) is GRANTED.
3.
The motion for summary judgment filed by Defendants Alan
Crooks, Kevin McGowan, and Kevin J. Rambosk (Doc. 155) is GRANTED.
4.
The
“Motion
Incorporating
all
Grievances
and
Notary
Letters into Evidence in the Form of Exhibits Filed in Support of
Summary Judgment” (Doc. 177) filed by Plaintiff is GRANTED to the
extent the motion asks the Court to consider the arguments and
evidence described by Plaintiff in docket entries 176, 177, and
178.
The motion is DENIED to the extent Plaintiff seeks leave to
file a third amended complaint.
5.
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 February, 2015.
SA: OrlP-4
Copies: All Parties of Record
- 51 -
18th
day
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