Smith v. Lamour et al

Filing 38

OPINION AND ORDER granting 33 Motion for summary judgment. The Clerk shall enter judgment accordingly, terminate all deadlines, and close the case. Signed by Judge John E. Steele on 3/16/2016. (RKR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
KEITH N. SMITH,
Plaintiff,
v.

Case No: 2:14-cv-90-FtM-29MRM

JACQUES LAMOUR, Dr., MR.
PRICE, and GEO CARE, LLC,
Defendants.
/
ORDER AND OPINION
This matter comes before the Court on defendants’ Motion for
Summary Judgment (Doc. #33) filed on June 3, 2015.

After being

directed by the Court, plaintiff filed a response in opposition
(Doc. 37).

This matter is ripe for review.
I.

Plaintiff Keith N. Smith initiated this action by filing a
complaint pursuant to 42 U.S.C. § 1983 (Doc. #1) against defendants
Jaques Lamour and Mr. Price in both their individual and official
capacities, and GEO Care, LLC.

Plaintiff is a resident at the

Florida Civil Commitment Center (“FCCC”) in Arcadia, Florida.

The

Complaint

law

alleges

Fourteenth

Amendment

and

pendent

state

claims against defendants in connection with plaintiff’s medical
care at the FCCC.
were

deliberately

Specifically, plaintiff claims that defendants
indifferent

and

grossly

negligent

in

not

providing him with adequate and proper medical care for an injury
to his Achilles tendon.
Defendants

assert

they

are

entitled

to

summary

judgment

because plaintiff has failed to present evidence establishing
defendants were aware of a risk of serious harm to plaintiff and
that risk was ignored.

(Doc. #33, p. 12-13.)

Defendants also

assert there is no evidence that the defendants conduct rose to
the level of gross negligence.

(Id.)

In support of their motion

for summary judgment, defendants submit the following exhibits:
(1) plaintiff’s medical records (Doc. #33-1); (2) Affidavit of
Jacques Lamour (Doc. #33-2); and (3) Affidavit of William Price
(Doc. #33-3).

Plaintiff responds opposing defendants’ motion

asserting that issues of material fact exist.
To the extent plaintiff alleges more discovery is necessary,
the

Court

rejects

this

argument.

The

Court

entered

a

Case

Management and Scheduling Order on December 17, 2014 which stated
discovery closed on April 1, 2015 and any motions related to
discovery were due seven days thereafter.

(Doc. #28.)

Plaintiff

failed to request an extension of time to complete discovery or
file any additional discovery motions with the Court.

Therefore,

the Court finds that discovery is closed and plaintiff’s request
for more discovery is untimely.

2

II.
Summary

judgment

is

appropriate

only

when

the

Court

is

satisfied that “there is no genuine issue as to any material fact
and that the moving party is entitled to judgment as a matter of
law.”

Fed. R. Civ. P. 56(a).

“An issue of fact is ‘genuine’ if

the record taken as a whole could lead a rational trier of fact to
find for the nonmoving party.”

Baby Buddies, Inc. v. Toys “R” Us,

Inc., 611 F.3d 1308, 1314 (11th Cir. 2010).

A fact is “material”

if it may affect the outcome of the suit under governing law.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

“A

court must decide ‘whether the evidence presents a sufficient
disagreement to require submission to a jury or whether it is so
one-sided that one party must prevail as a matter of law.’”
Hickson Corp. v. N. Crossarm Co., Inc., 357 F.3d 1256, 1260 (11th
Cir. 2004) (citing Anderson, 477 U.S. at 251).
In ruling on a motion for summary judgment, the Court views all
evidence and draws all reasonable inferences in favor of the nonmoving party.

Scott v. Harris, 550 U.S. 372, 380 (2007); Tana v.

Dantanna’s, 611 F.3d 767, 772 (11th Cir. 2010).

However, “if

reasonable minds might differ on the inferences arising from
undisputed facts, then the court should deny summary judgment.”
St. Charles Foods, Inc. v. America’s Favorite Chicken Co., 198
F.3d 815, 819 (11th Cir. 1999) (quoting Warrior Tombigbee Transp.

3

Co.

v.

M/V

Nan

Fung,

695

F.2d

1294,

1296-97

(11th

Cir.

1983)(finding summary judgment “may be inappropriate where the
parties agree on the basic facts, but disagree about the factual
inferences that should be drawn from these facts”)).

“If a

reasonable fact finder evaluating the evidence could draw more
than one inference from the facts, and if that inference introduces
a genuine issue of material fact, then the court should not grant
summary judgment.”

Allen v. Bd. of Pub. Educ., 495 F.3d 1306,

1315 (11th Cir. 2007).
III.
The

following

is

a

chronological

history

of

plaintiff’s

request for medical care and the medical care rendered to plaintiff
at the FCCC as supported by the record.
On May 28, 2013, plaintiff was seen by Physician’s Assistant
Baker (PA Baker) in sick call for “sudden” pain in his right ankle.
(Doc. #33-1, p. 31.)

Plaintiff stated the pain began four days

prior and adamantly denied injury due to sports or exercise. (Id.)
It was noted the plaintiff had either a sprain or pathological
fracture.

(Id.)

X-rays were ordered to rule out a fracture and

plaintiff was given a right ankle split and directed to not put
weight on the right ankle.

(Id. at p. 86.)

The x-rays were

completed on the same day and the results were negative except for

4

a planter spur.

(Id. at p. 104.)

up on June 4, 2013.

Plaintiff was seen for a follow

(Id. at p. 29.)

Defendant Lamour is a licensed physician practicing medicine
at FCCC and board certified in internal medicine.
1.)

(Doc. #33-2, p.

On June 11, 2013, plaintiff was seen by Dr. Lamour who

conducted a physical exam and found bruising in the area of the
right ankle.

(Doc. #33-1, p. 31.)

Dr. Lamour ordered blood

testing of plaintiff’s Coumadin level to see if it contributed to
the bruising.

(Id. at p. 83.)

On June 24, 2013, plaintiff was

seen by PA Baker for right ankle pain.
saw Dr. Lamour again on July 2, 2013.

(Id. at p. 28.)
(Id. at p. 27.)

Plaintiff
Dr. Lamour

conducted a physical examination which revealed pain and swelling
localized in the Achilles area.

(Id.)

Dr. Lamour diagnosed

plaintiff with Achilles tendonitis and scheduled plaintiff for a
Kenalog injection in the right ankle area.

(Id.)

Plaintiff did

not seek medical care for right ankle/Achilles complaints again
until October 17, 2013, when plaintiff was seen by PA Baker for
issues with the second and fourth toes on his left foot.

(Id. at

p. 19-20.)
On October 28, 2013, Dr. Lamour completed another physical
examination of plaintiff and noted that the swelling had decreased
and now noticed there was an indentation in the Achilles tendon.
(Id.)

Dr. Lamour ordered an MRI.

5

(Id. at p. 16.)

Dr. Lamour saw

plaintiff again on November 4, 2013 for his right ankle pain.
at p.

19.)

(Id.

The MRI completed on November 25, 2013 of the right

ankle revealed complete Achilles tear with superior retraction.
(Id. at p. 105-107.)

Based on the MRI findings, on December 3,

2014, Dr. Lamour referred plaintiff to an outside orthopedic
surgeon for the Achilles tear.

(Id. at p. 3.)

On January 3, 2014, plaintiff saw Dr. Connolly, an orthopedic
surgeon.

(Id. at p. 1-2.)

During this appointment, plaintiff

stated for the first time in the medical record that he felt a
pain in the back of his leg and that another resident may have
kicked him.

(Id.)

Dr. Connolly noted a surgical option for

plaintiff would be for an Achilles reconstruction with tendon graft
but plaintiff declined the reconstruction surgery.

(Id.)

Dr.

Connolly noted plaintiff was doing quite well and able to ambulate
fairly well.
was

not

(Id.)

interested

intervention.

Dr. Connelly further stated that plaintiff
in

a

Cam

Walker

boot

or

any

surgical

(Id.)

On February 17, 2014, Dr. Lamour referred plaintiff for
another consultation with Dr. Connolly but plaintiff declined to
see Dr. Connolly a second time.
reflects

that

plaintiff

including Vicodin.

was

(Id. at p. 75.)

provided

with

pain

The record
medications

(Doc. #33-1, pp. 62, 68, 73, 74; Doc. #33-2,

¶ 25.)

6

IV.
To establish a claim under 42 U.S.C. § 1983, a plaintiff must
prove: (1) defendants deprived him of a right secured under the
United States Constitution or federal law, and (2) such deprivation
occurred under color of state law.

Arrington v. Cobb County, 139

F.3d 865, 872 (11th Cir. 1998); U.S. Steel, LLC v. Tieco, Inc.,
261 F.3d 1275, 1288 (11th Cir. 2001).
must

establish

an

affirmative

In addition, a plaintiff

causal

connection

between

defendant’s conduct and the constitutional deprivation.

the

Marsh,

268 F.3d at 1059; Swint v. City of Wadley, 51 F.3d 988 (11th Cir.
1995); Tittle v. Jefferson County Comm’n, 10 F.3d 1535, 1541 n.1
(11th Cir. 1994).
The Court recognizes that the FCCC is not a prison and
plaintiff is not a prisoner.
1260 (11th Cir. 2002).
Fourteenth

Amendment,

Troville v. Venz, 303 F.3d 1256,

Under the Due Process Clause of the
involuntarily

committed

persons

retain

substantive liberty interests, which include at least the right to
adequate food, shelter, clothing and medical care; safe conditions
of confinement; and freedom from unnecessary bodily restraint.
Youngberg v. Romeo, 457 U.S. 307, 315-316 (1982).

To determine

whether the nature and extent of an infringement of one of these
liberty interests rises to the level of a due process violation,

7

a court must balance the individual’s liberty interest against the
relevant state interests.

Id. at 320-321.

As the rights of the involuntarily civilly committed are “at
least

as

extensive

institutionalized,”
Amendment

rights

of

as

actions
a

the

rights

which

prisoner

of

would
would

the

criminally

violate

likewise

the

Eighth

constitute

a

violation of the due process rights of an individual who was been
involuntarily civilly committed.

See Dolihite v. Maughon By and

Through Videon, 74 F.3d 1027, 1041 (11th Cir. 1996).

Indeed, the

Eleventh Circuit has recognized that “relevant case law in the
Eighth Amendment context also serves to set forth the contours of
the due process rights of the civilly committed.”

Id.

Therefore,

while recognizing that plaintiff is not a prisoner, this Court
will

utilize

relevant

Eighth

Amendment

case

law

in

its

consideration of this case.
Prison officials violate the Eighth Amendment when they act
with deliberate indifference to a plaintiff’s health or safety.
Estelle v. Gamble, 429 U.S. 97, 97 (1976). To establish an Eighth
Amendment claim for deliberate indifference to a serious medical
need, a plaintiff must prove: (1) a serious medical need; (2)
deliberate indifference to that need by the defendants; and (3)
causation between the defendants’ indifference and the plaintiff’s
injury.

Youmans v. Gagnon, 626 F.3d 557, 563 (11th Cir. 2010).

8

In order to establish deliberate indifference to a serious medical
need on the part of a defendant, a plaintiff must show subjective
knowledge of a risk of serious harm and disregard of that risk by
conduct that is more than gross negligence.

Townsend v. Jefferson

County, 601 F.3d 1152, 1158 (11th Cir. 2010).
“A

difference

in

medical

opinion

does

not

constitute

deliberate indifference so long as the treatment is minimally
adequate.”

Whitehead v. Burnside, 403 F. App’x 401, 403 (11th

Cir. 2010) (citing Harris v. Thigpen, 941 F.2d 1495, 1504-05 (11th
Cir. 1991)).

A doctor’s decision about the type of medicine that

should be prescribed is generally “a medical judgment” that is “an
inappropriate basis for imposing liability under section 1983.”
Adams v. Poag, 61 F.3d 1537, 1547 (11th Cir. 1995); see also
Waldrop v. Evans, 871 F.2d 1030, 1033 (11th Cir. 1989) (stating
that “[m]ere medical malpractice, however, does not constitute
deliberate indifference.
opinion.”).

Nor does a simple difference in medical

“When the claim turns on the quality of the treatment

provided, there is no constitutional violation as long as the
medical care provided to the inmate is ‘minimally adequate.’”
Blanchard v. White Co. Pet. Ctr. Staff, 262 F. App’x 959, 964 (11th
Cir. 2008) (quoting Harris, 941 F.2d at 1504).

Consequently,

“[d]eliberate indifference is not established where an inmate
received care but desired different modes of treatment.”

9

Id.

“Deliberate indifference” includes “the delay of treatment
for obviously serious conditions where it is apparent that delay
would detrimentally exacerbate the medical problem,” where “the
delay does seriously exacerbate the medical problem,” and where
“the delay is medically unjustified.”

Harper v. Lawrence Cnty.,

592 F.3d 1227, 1235 (11th Cir. 2010) (quoting Taylor, 221 F.3d
1254, at 1259 (11th Cir. 2000).

See also McElligott v. Foley, 182

F.3d 1248, 1255 (11th Cir. 1999); Harris v. Coweta County, 21 F.3d
388, 393-394 (11th Cir. 1994); Brown v.
1537-39 (11th Cir. 1990).

Hughes, 894 F.2d 1533,

A delay of even hours may be deliberate

indifference given the “reason for the delay and the nature of the
medical need.”

McElligott, 182 F.3d at 1255.

However, “[a]n

inmate who complains that delay in medical treatment [rises] to a
constitutional violation must place verifying medical evidence in
the record to establish the detrimental effect of the delay.” Hill
v. Dekalb Regional Youth Detention Center, 40 F.3d 1176, 1187 (11th
Cir. 1994), abrogated on other grounds Hope v. Pelzar, 536 U.S.
730 (2002).

“Self-serving statements by a plaintiff do not create

a question of fact in the face of contradictory, contemporaneously
created medical records.”

Whitehead, 403 F. App’x at 403.

1. Defendant Dr. Lamour
a. Fourteenth Amendment

10

Plaintiff alleges a violation of his Fourteenth Amendment
rights against Dr. Lamour for misdiagnosing his Achilles injury
and not properly referring him to an outside provider for a proper
diagnosis.
suggests

(Doc. #1, p. 9.)

plaintiff’s

There is nothing in the record that

medical

condition

was

not

serious,

defendants do not argue that the condition was not serious.

and

Thus,

the Court concludes that plaintiff had a sufficiently serious
medical condition to satisfy the first element of a deliberate
indifference claim.
With regard to the deliberate indifference element, plaintiff
alleges he suffered a permanent injury due to the deliberate
indifference

of

Dr.

Lamour.

Plaintiff

asserts

there

was

an

unreasonable delay in Dr. Lamour referring him to an outside
provider.
2014,

(Id.)

eight

(8)

Plaintiff was seen by Dr. Connelly on January 3,
months

after

his

injury.

According

to

the

Complaint, Dr. Connelly advised plaintiff that “since so much time
had elapsed since the injury that nothing could be done to repair
the injury.”

(Id. at p. 8.)

Plaintiff alleges Dr. Connelly told

him he should have been either hospitalized immediately, or should
have been seen by a specialist within forty-eight (48) hours after
the injury.

(Id.)

Had this occurred, “there would have been a

distinct possibility that plaintiff could have received corrective
surgery and regained full use of his leg and tendons.”

11

(Id.)

Plaintiff claims that, because he was not seen in a timely fashion,
his injury is permanent.

(Id.)

Defendants assert plaintiff received timely and appropriate
medical treatment based on the information that plaintiff provided
them at the time.

(Doc. #33, pp. 11-12.)

In his affidavit, Dr.

Lamour states that when plaintiff was initially seen on May 28,
2013, he did not describe an injury or traumatic event to the ankle
and it was thought he had a sprain or a pathologic fracture.
#33-2, p. 2.)

(Doc.

Based on Dr. Lamour’s experience, torn or ruptured

Achilles tendons can only result from a traumatic even or blunt
force.

(Id.)

Dr. Lamour attests that as a result of plaintiff’s

failure to describe a traumatic event or any type of blunt force
to the Achilles area, an Achilles tear was not considered as a
diagnosis. (Id.) Dr. Lamour states there was no unnecessary delay
on the part of himself or FCCC in treating plaintiff (Id. at p.
5); plaintiff has received competent and quality medical care at
the FCCC (Id.); and that plaintiff appears to be doing well and
the medical records reveal no complaints involving ankle/Achilles
since January 3, 2014.

(Id.)

In the Complaint plaintiff stated that he “spontaneously felt
a sharp pain in his right lower leg, and fell to the floor.”
#1, p. 7.)

(Doc.

Plaintiff does not allege the injury was caused by him

being kicked by another inmate. According to the record, plaintiff

12

received immediate medical care after his injury and x-rays were
taken of plaintiff’s ankle to ensure no fracture was present.
(Doc. #33-1, pp. 31, 86, 104.)

Plaintiff was instructed not to

put weight on the right ankle and given an ankle split.
p. 86.)

Plaintiff was provided further treatment for his injury

including blood testing and a Kenalog injection.
83.)

(Id. at

(Id. at pp. 27,

Once the swelling had gone down, Dr. Lamour could see that

an indentation was present on plaintiff’s Achilles tendon and
ordered an MRI.

(Id. at p. 16.)

Based on the MRI findings,

plaintiff was referred to Dr. Connelly, an outside orthopedic
surgeon.

(Id. at p. 3.)

According to Dr. Connelly’s report, after

the initial injury, plaintiff’s pain “gradually got better” and
plaintiff “was able to walk throughout this period of time.” (Doc.
#33-1, p. 1.)

“[T]he patient is doing quite well overall and is

still able to ambulate fairly well.”

(Id. at p. 2.)

Plaintiff has not presented any evidence that he received
inadequate medical care for his ankle injury.

The record does not

support plaintiff’s allegations that Dr. Connelly stated plaintiff
should have been hospitalized immediately or seen by a specialist
within forty-eight (48) hours after the injury (Doc. #1, p. 8.)
Even

assuming

arguendo

that

there

was

an

improper

delay

in

plaintiff’s medical care, there is no verifiable evidence that a
delay worsened plaintiff’s medical condition.

13

Nothing in Dr.

Connelly’s report indicates he was concerned with the amount of
time that had lapsed before seeing plaintiff, and there is no
evidence

that

Dr.

Connelly

considered

plaintiff’s

injury

“permanent and life-long” because he was not seen in a timely
fashion.

To the contrary, Dr. Connelly noted a surgical option

for plaintiff would be for an Achilles reconstruction with tendon
graft but plaintiff declined the reconstruction surgery.

(Doc.

#33-1, p. 2.)
“[A] plaintiff does not establish deliberate indifference
merely because, although he received medical attention, he desired
different modes of treatment than what he received.” Bell v. Sec’y
of Florida Dep’t of Corr., 491 F. App’x 57, 59 (11th Cir. 2012).
Plaintiff’s personal belief that he should have been referred to
an outside provider earlier and his disagreement with the treatment
prescribed by medical staff are not sufficient to demonstrate a
claim of deliberate indifference.

See Jackson v. Jackson, 456 F.

App’x 813, 815 (11th Cir. 2012) (citing Adams, 61 F.3d at 1545).
Accordingly, the Court finds that the record demonstrates that, at
a minimum, the medical care provided to plaintiff was adequate.
The care plaintiff received was not “so grossly incompetent,
inadequate, or excessive as to shock the conscience or to be
intolerable to fundamental fairness.”

Harris, 941 F.2d at 1505.

Therefore, based on the record and applicable law, the Court finds

14

that defendant Dr. Lamour is entitled to the entry of summary
judgment on plaintiff’s Fourteenth Amendment medical indifference
claim.
b. State Law Claims
Pursuant to 28 U.S.C. § 1367, plaintiff also brings pendent
state law claims of gross negligence and medical malpractice
against Dr. Lamour.

In Chapter 766 of the Florida Statutes, the

Florida legislature has codified the tort of medical malpractice.
Under chapter 766, a “health care provider” may be liable for the
death or personal injury of a person, if that death or injury
resulted from the health care provider's negligence.
Ch. 766.102(1).

Fla. Stat.

It is not disputed that Dr. Lamour is a “health

care provider” for purposes of the statute, and so the question is
whether

“prevailing professional standard of care” to be the

“level of care, skill, and treatment which, in light of all
relevant surrounding circumstances, is recognized as acceptable
and

appropriate

providers.”

by

reasonably

prudent

similar

health

care

Auster v. Strax Breast Cancer Institute, 649 So.2d

883 (Fla. App. 1995).
As discussed above, plaintiff has not presented evidence that
he received inadequate medical care for his ankle injury and there
is no evidence that the alleged delay in being referred to an
outside provider worsened plaintiff’s medical condition. In fact,

15

the record show plaintiff received timely and appropriate medical
treatment for his ankle injury.

The Court finds defendant Dr.

Lamour is entitled to summary judgment on plaintiff’s medical
malpractice

claim

because

plaintiff

has

failed

to

provide

sufficient evidence that Dr. Lamour’s medical care represented a
breach of the prevailing professional standard of care.
To the extent plaintiff alleges a claim against Dr. Lamour
for gross negligence that does not constitute medical malpractice,
Dr. Lamour is entitled to summary judgment.

Plaintiff has not

presented evidence of negligence involving his medical care or of
a causal connection between any such negligence and his injury.
In other words, not only has plaintiff failed to present evidence
of deliberate indifference; he has failed to present evidence even
of negligence.

Therefore, based on the record, the Court finds

that defendant Dr. Lamour is entitled to the entry of summary
judgment on plaintiff’s state law claims.
2. Defendant Price
A defendant cannot be held liable under § 1983 based solely
on the theory of respondeat superior or vicarious liability.
Hyland v. Kolhage, 267 F. App’x 836, 841 (11th Cir. 2008); Brown
v. Crawford, 906 F.2d 667, 671 (11th Cir. 1990).

Supervisory

liability can be established only “when the supervisor personally
participates in the alleged constitutional violation or when there

16

is a causal connection between the actions of the supervising
official and the alleged constitutional deprivation.”

Mathews v.

Crosby, 480 F.3d 1265, 1270 (11th Cir. 2007) (internal quotations
omitted).

When determining whether there is a causal connection

between a defendant’s action and the alleged deprivation of a
constitutional right, mere knowledge of a potential deprivation is
not sufficient to impose liability on a supervisor.
U.S. at 677.

Iqbal, 556

Rather, in order to state a claim against the

supervisor, the plaintiff must allege purposeful action by the
supervisor to deprive plaintiff of a constitutional right.
Plaintiff

asserts

claims

against

Mr.

Price

Id.

under

the

principle of respondent superior because he is the head of FCCC
Medical.

(Doc. #1, p. 6.)

Plaintiff asserts Price is a party to

his claims because Price makes suggestions and decisions based on
the type of care that residents receive at the FCCC.
Defendant Price is the Health Service Administrator (HSA) at
FCCC.

(Doc. #33-3, p. 1.)

Price

administratively

Pursuant to his responsibility as HSA,

manages

and

evaluates

Health

Service

activities and ensure compliance with DCF contractual guidelines.
(Id. at p. 2.)

Price does not practice medicine at FCCC and relies

on physicians, physician’s assistants, and nurses to treat the
patients/residents at FCCC.

(Id. at p. 1.)

Price attests that

the medical staff at FCCC did not discuss with him and he did not

17

offer medical advice concerning plaintiff’s ankle/Achilles issues.
(Id. at p. 2.)
The Complaint does not allege defendant Price was personally
involved in any incident of misdiagnosis or inadequate medical
care and the record provides no evidence of personal involvement.
Plaintiff also fails to allege or establish a causal connection
between the actions of defendant Price and plaintiff’s allegations
of

medical

indifference.

See

Mathews,

480

F.3d

at

1270.

Consequently, defendant Price is entitled to the entry of summary
judgment on plaintiff’s claims against him.
3. Defendant GEO Care, LLC 1
Notably, GEO Care is not a governmental entity, but a private
corporation in contract with Florida’s Department of Children and
Families to operate the FCCC.

“Where the function which is

traditionally the exclusive prerogative of the state is performed
by a private entity,” that private entity, like a municipality,

1

Section 1983 claims against the defendants in their official
capacities is properly understood as a cause of action against the
government entity they represent. See Cook v. Sheriff of Monroe
County, 402 F.3d 1092, 1115 (11th Cir. 2005) Where the entity may
be sued, there is no need to allow an official-capacity action.
Busby v. City of Orlando, 931 F.2d 764, 776 (11th Cir. 1991).
Plaintiff alleges a claim against the entity that the defendants
Dr. Lamour and Price represent, which is GEO Care, LLC.
Accordingly, the Court will dismiss plaintiff’s claims against
defendants Dr. Lamour and Price in their official capacities as
duplicative.

18

may be held liable under § 1983.

Ancata v. Prison Health Servs.,

769 F.2d 700, 703 (11th Cir. 1985).

To prevail on a Section 1983

claim against a municipality, “a plaintiff must show (1) that his
constitutional rights were violated; (2) that the municipality had
a policy or custom that constituted deliberate indifference to
that constitutional right; and (3) that the policy or custom caused
the violation.”
918,

921

(11th

Whittington v. Town of Surfside, 269 F. App’x
Cir.

2008).

Under

Monell,

a

plaintiff

must

establish that an official policy or custom of the municipality
was

the

“moving

deprivation.

force”

behind

the

alleged

constitutional

Monell v. Dep't of Soc. Serv., 436 U.S. 658, 693–

694, 98 S. Ct. 2018, 56 L.Ed.2d 611 (1978). “A policy is a decision
that is officially adopted by the municipality, or created by an
official of such rank that he or she could be said to be acting on
behalf of the municipality.” Goebert v. Lee County, 510 F.3d 1312,
1332 (11th Cir. 2007) (citing Sewell v. Town of Lake Hamilton, 117
F.3d 488, 489 (11th Cir. 1997)).

“A custom is an unwritten

practice that is applied consistently enough to have the same
effect as a policy with the force of law.”

Goebert, 510 F.3d at

1332 (citing St. Louis v. Praprotnik, 485 U.S. 112, 127, 108 S.
Ct. 915, 99 L. Ed. 2d 107 (1998)).

19

“Demonstrating a policy or

custom requires “show[ing] a persistent and wide-spread practice.”
Depew v. St. Marys, 787 F.2d 1496, 1499 (11th Cir. 1986).
According to the Complaint, GEO Care was aware, or should
have

been

aware,

of

the

gross

negligence

and

deliberate

indifference that plaintiff and other similar situated residents
of FCCC were subject to.

(Doc. #1, p. 10.)

Plaintiff alleges

that there is a pervasive custom promulgated by GEO Care to forego
medical treatment by outside providers due to the cost incurred.
Plaintiff attributes a number of recent deaths to misdiagnosis of
certain types of cancers and other injuries by FCCC residents that
were not properly treated.

(Id.)

Plaintiff claims that the

inadequate

to

Care

treatment

is

due

GEO

pressuring

the

FCCC

administration not to spend any money on medical needs of the
residents.

(Id.)

Plaintiff states that any resident who seeks

outside medical care for legitimate medical need is put off because
of cost concerns.

(Id. p. 12-13.)

Defendants assert there is no evidence that GEO Care has a
pattern of delaying medical care or administering cheaper care to
the detriment of residents at FCCC.

(Doc. #33, p. 13.)

of the record support this position.

A review

Nothing in the record

suggests GEO Care, as the result of a custom or policy, was
deliberately

indifferent

to

plaintiff’s

medical

needs.

Specifically, plaintiff’s assertion that GEO Care, pursuant to

20

policy, deprived him of medical treatment based on cost, is wholly
conclusory and insufficient to establish a “custom or policy.”
Plaintiff was not told he was being denied medical treatment based
upon an official policy to contain costs, and plaintiff does not
provide any facts or evidence to support the allegation that
defendant GEO Care has a history of refusing to provide medical
treatment

or

refer

Furthermore,

the

constitutional

to

Court

rights

outside
has

were

providers

already
not

found

violated

based
that

because

on

costs.

plaintiff’s
he

received

adequate medical treatment for the injury to his Achilles tendon.
Accordingly,

GEO

Care

is

entitled

to

summary

judgment

as

to

#33)

is

plaintiff’s claims against it.
Accordingly, it is now
ORDERED:
Defendants’
GRANTED.

Motion

for

Summary

Judgment

(Doc.

The Clerk of Court shall terminate any pending motions,

enter judgment accordingly, and close this case.
DONE and ORDERED in Fort Myers, Florida this
March, 2016.

SA: ftmp-2
Copies: All Parties of Record

21

16th

day of