Repp v. Corrections Corporation of America/C.C.A et al
Filing
101
OPINION AND ORDER granting re: 99 MOTION for Summary Judgment. Defendant KanKam is DISMISSED with prejudice. The Clerk is DIRECTED to enter judgment, terminate any pending motions and deadlines, and close the file. Signed by Judge Sheri Polster Chappell on 10/26/2020. (SLU)
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UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
TERRY L. REPP,
Plaintiff,
v.
Case No.: 2:15-cv-220-FtM-38MRM
E-JZ KANKAM,
Defendant.
/
OPINION AND ORDER1
Before the Court is Defendant Dr. E-JZ KanKam’s (“Dr. KanKam”) Motion
for Summary Judgment and Incorporated Memorandum of Law filed on July 22,
2020. (Doc. 99). The Court instructed Plaintiff how to respond to a summary
judgment motion and duly warned him that his failure to respond would signify he
did not oppose the motion and all supported material facts submitted by Dr.
KanKam would be deemed admitted. (Doc. 100). Plaintiff, nonetheless, failed to
heed the Court’s warning and respond to Dr. KanKam’s Motion. For the following
reasons, the motion for summary judgment is granted.
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BACKGROUND
Repp initiated this civil rights action under 42 U.S.C. § 1983 on February 4,
2015. (Doc. 1). The Complaint named as defendants: Corrections Corporation of
America, Laura Bedard, Dr. KanKam, Elaine Denise Kata McGrory and Sandra Dee
Dunivent. (Id.). In 2018, the Court entered summary judgment in favor of
Defendants McGrory, Corrections Corporation of America, and Bedard. (Docs. 72;
81). That same year, the Court dismissed Defendant Dunivent under 28 U.S.C. §
1915(e)(2) for failure to state a claim. (Doc. 84).
Since September 27, 2019, this case has been stayed against Dr. KanKam
because he was outside the United States in military service. (Doc. 85). After Dr.
KanKam returned, the Court lifted the stay and directed service upon him. (Doc.
90). Dr. KanKam filed an Answer and Affirmative Defenses on October 7, 2019.
(Doc. 96). The Court permitted further discovery. (Doc. 97). Dr. KanKam, the
sole remaining defendant, now moves for summary judgment. (Doc. 99).
According to the Complaint, Dr. KanKam showed deliberate indifference to
Repp’s serious medical need caused by a detached retina in his right eye while he
was incarcerated in the Moore Haven Correctional Institution in 2013. (Doc. 1).
Repp is no longer housed at Moore Haven, but has been transferred to another
facility. (Doc. 66-1). Dr. KanKam was employed by CoreCivic at Moore Haven.
(Doc. 1 at 4). Repp alleges that on the morning of April 7, 2013, he submitted a
sick call request to address a vision problem with his right eye and was examined
by Nurse Dunivent that same day in the afternoon. (Id. at 3). After her
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examination, Nurse Dunivent referred Repp to a doctor. Dr. Kankam examined
Repp on April 9, 2013. At that appointment, Repp reported a total loss of vision in
his right eye. (Id. at 4). Following his examination, Dr. Kankam referred Repp to
an eye specialist. (Id.). Repp was taken to medical to see the eye specialist on April
24, 2013. However, once he arrived at medical, he was informed that his
appointment with the eye specialist would have to be rescheduled. (Id.). Repp
admits he does not know why his appointment with the eye specialist was
cancelled. (Id.). Repp subsequently submitted an informal grievance/inmate
request form about his eye condition and need for medical attention. McGrory
responded to the grievance and noted in her response that Repp’s vision was the
same on April 7, 2013, as it was on October 26, 2010. (Doc. 66-3). McGrory told
Repp to follow up with a sick call request if he required further attention. (Docs. 1
at 5; 66-3).
On May 28, 2013, an eye doctor examined Repp and diagnosed him with a
detached retina. (Doc. 1 at 5). On May 30, 2013, Repp was taken to the Visual
Health and Surgery Center and examined by Dr. Baalhaness. (Id. at 6). Dr.
Baalhaness referred Repp to Dr. Fortun at the Bascom Palmer Eye Institute. (Id.
at 5). On June 4, 2013, Repp was examined at the Bascom Palmer Eye Institute
where it was determined that he would need eye surgery to reattach his retina.
(Doc. 1 at 6; 66-5). Repp’s surgery was scheduled for June 24, 2013 by Dr. Fortun.
(Doc. 1 at 6). Nothing in the record shows that Dr. KanKam had anything to do
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with Repp’s surgery schedule. Repp was taken for several follow up visits after his
eye surgery. (Doc. 66-2).
On July 28, 2013, Repp submitted a sick call request complaining about his
left eye. (Doc. 1 at 7). Repp was seen by the Moore Haven medical department on
July 29, 2013. (Id.). Repp was taken to the Bascom Palmer Eye Institute and, on
July 30, 2013, he underwent surgery for his left eye to repair a detached retina.
(Id.). Repp has gone to several follow-up appointments for both eye procedures.
(Id.).
LEGAL STANDARD
Summary judgment is appropriate only when “there is no genuine issue as
to any material fact” and the moving party is entitled to judgment as a matter of
law. See Fed. R. Civ. P. 56(c). An issue is genuine if there is sufficient evidence
such that a reasonable jury could return a verdict for either party. See Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Similarly, an issue is material if
it may affect the outcome of the suit under governing law. See id. The moving party
bears the burden of showing the absence of any genuine issue of material fact. See
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). In deciding whether the moving
party has met this initial burden, the Court must review the record and all
reasonable inferences drawn from the record in the light most favorable to the nonmoving party. See Whatley v. CNA Ins. Co., 189 F.3d 1310, 1313 (11th Cir. 1999)
(citation omitted).
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DISCUSSION
It is well established that “deliberate indifference to serious medical needs
of prisoners constitutes the ‘unnecessary and wanton infliction of pain’ . . .
proscribed by the Eighth Amendment.” Brown v. Johnson, 387 F.3d 1344, 1351
(11th Cir. 2004) (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). A prisoner
states a valid claim, under 42 U.S.C. § 1983, “whether the indifference is
manifested by prison doctors in their response to the prisoner's needs . . . or by
prison guards in intentionally denying or delaying access to medical care . . . or
intentionally interfering with treatment once proscribed.” Estelle, 429 U.S. 97 at
104-105.
“To show that a prison official acted with deliberate indifference to serious
medical needs, a plaintiff must satisfy both an objective and a subjective inquiry.”
Brown, 387 F.3d at 1351 (quoting Farrow v. West, 320 F.3d 1235, 1243 (11th Cir.
2003)). First, the plaintiff must prove an objectively serious medical need. Id.
Second, the plaintiff must prove that the prison official acted with deliberate
indifference to that need. Id. at 1351. “A serious medical need is considered ‘one
that has been diagnosed by a physician as mandating treatment or one that is so
obvious that even a lay person would easily recognize the necessity for a doctor's
attention.’” Id. (citing Hill v. Dekalb Reg'l Youth Det. Ctr., 40 F.3d 1176, 1187 (11th
Cir.1994)). In either case, “the medical need must be one that, if left unattended,
pos[es] a substantial risk of serious harm.” Id.
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Defendant KanKam does not dispute that Repp’s diagnosis of a detached
retina constitutes a serious medical need. Thus, the Court limits its determination
to whether Dr. KanKam acted with deliberate indifference to Repp’s need for
medical care. To establish the second element, deliberate indifference to the
serious medical need, Repp “must prove three facts: (1) subjective knowledge of a
risk of serious harm; (2) disregard of that risk; and (3) by conduct that is more than
mere negligence.” Id. (citation omitted); see Goebert v. Lee County, 510 F.3d 1312,
1326 (11th Cir. 2007) (holding that the conduct must be more than gross
negligence). “For medical treatment to rise to the level of a constitutional violation,
the care must be so grossly incompetent, inadequate, or excessive as to shock the
conscience or to be intolerable to fundamental fairness.” Nimmons v. Aviles, 409
F. App'x 295, 297 (11th Cir. 2011) (internal quotation marks and citation omitted).
Liberally construing Plaintiff’s Complaint, Plaintiff argues Dr. KanKam
acted with deliberate indifference because he failed to diagnose him with a
detached retina and provide him with immediate, emergency care on April 9, 2013.
Repp contends this delay in treatment and failure to diagnose him caused him
further injury. The Court finds no evidence to support an Eighth Amendment
claim against Dr. KanKam.
Delayed medical treatment rises to the level of deliberate indifference when
“it is apparent that delay would detrimentally exacerbate the medical problem, the
delay actually seriously exacerbates the problem, and the delay is medically
unjustified.” Taylor v. Adams, 221 F.3d 1254, 1259–60 (11th Cir. 2000) (internal
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quotation marks and citation omitted).
A prisoner must provide “verif[ied]
medical evidence . . . to establish the detrimental effect of delay in medical
treatment.” Hill, 40 F.3d at 1188 (overruled on other grounds).
Here, Repp introduces no verified medical evidence that Dr. KanKam’s
action in referring Plaintiff to an eye specialist resulted in Plaintiff’s decreased
vision in his right eye. Crucial here, upon evaluation by the referred eye specialist,
Dr. Baalhaness, he opted not to conduct emergency surgery but, rather, refer
Plaintiff to Dr. Fortun due to the “severity of the case.” (Doc. 66-4). Even after Dr.
Fortun determined Plaintiff’s eye required surgery, the surgery was not scheduled
until twenty days later. (Doc. 1 at ¶ 6). The evidence thus does not establish that
Dr. KanKam knew of or disregarded an excessive risk to Plaintiff’s health. Instead,
Dr. KanKam examined Repp and immediately referred Repp to the eye specialist.
Although this appointment was postponed, there is no evidence to demonstrate
Dr. KanKam was responsible for this delay. (Doc. 66-2 at 63). Dr. KanKam cannot
be held responsible for either the period before he examined Plaintiff or the period
after April 9, 2013 and when the surgery was performed. The record lacks any
evidence showing the delay attributable to Dr. KanKam and/or that the delay
further was detrimental to Plaintiff.
To the extent Repp alleges Dr. KanKam acted with deliberate indifference
when he failed to diagnose Plaintiff with a detached retina, this claims likewise
fails. “A complaint that a physician has been negligent in diagnosing or treating a
medical condition does not state a valid claim of medical mistreatment under the
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Eighth Amendment.” Bingham v. Thomas, 654 F.3d 1171, 1176 (11th Cir. 2011)
(internal quotation marks and citation omitted). While Plaintiff's allegations may
suggest medical malpractice, “[a]ccidents, mistakes, negligence, and medical
malpractice are not constitutional violation[s] merely because the victim is a
prisoner.” Harris v. Coweta Cty., 21 F.3d 388, 393 (11th Cir. 1994) (internal
quotation marks and citation omitted).
Further, “the question of whether
governmental actors should have employed additional diagnostic techniques or
forms of treatment ‘is a classic example of a matter for medical judgment’ and
therefore not an appropriate basis for grounding liability under the Eighth
Amendment.” Adams v. Poag, 61 F.3d 1537, 1545 (11th Cir. 1995) (citation
omitted).
This is not the case in which Plaintiff was altogether denied treatment.
Instead, Dr. KanKam examined Plaintiff and exercised professional judgment by
referring him to an eye specialist. There is nothing in the record to suggest Dr.
KanKam was subjectively aware that Plaintiff had a detached retina. The record
demonstrates Dr. KanKam examined Plaintiff and then referred Plaintiff to the eye
specialist. At best, Dr. KanKam’s failure to diagnose Plaintiff with a detached
retina was mere negligence and, at most, malpractice. Yet a misdiagnoses or even
medical malpractice is not grounds for establishing deliberate indifference. See
Estelle, 429 U.S. at 105-06. Based upon the uncontroverted evidence in the record,
the Court finds Dr. KanKam is entitled to summary judgment.
Accordingly, it is now
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ORDERED:
1. Defendant Dr. E-JZ KanKam’s Motion for Summary Judgment (Doc.
99) is GRANTED.
Defendant KanKam is DISMISSED with
prejudice.
2. The Clerk is DIRECTED to enter judgment, terminate any pending
motions and deadlines, and close the file.
DONE and ORDERED in Fort Myers, Florida on October 26, 2020.
Copies: All Parties of Record
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