Mendez v. Hemphill et al
Filing
78
OPINION AND ORDER granting 65 Motion for summary judgment. The Clerk shall enter judgment in favor of Dr. Robert Hemphill and Wexford Health Sources, Inc. on Plaintiff's Third Amended Complaint, and plaintiff shall take nothing. The Clerk is further directed to terminate all pending motions and to close the file. Signed by Judge John E. Steele on 9/20/2018. (RKR)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
TRAVIS CHRISTOPHER MENDEZ,
Plaintiff,
v.
Case No:
ROBERT HEMPHILL,
WEXFORD
HEALTH
INC.,
2:15-cv-510-FtM-29MRM
Dr. and
SOURCES,
Defendants.
OPINION AND ORDER
This matter comes before the Court on Defendants Dr. Robert
Hemphill’s
(Dr.
Hemphill)
and
Wexford
Health
Sources,
Inc.’s
(Wexford) Motion for Summary Judgment (Doc. #65) filed on March 6,
2018.
Plaintiff filed his response in opposition (Doc. #75) on
May 2, 2018.
For the reasons set forth below, the motion for
summary judgment is granted.
I.
STANDARD 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
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).
II.
This
matter
is
BACKGROUND
before
the
Court
on
plaintiff
Travis
Christopher Mendez’s (Plaintiff or Mendez) Third Amended Complaint
- 2 -
(Doc. #34) alleging violations of 42 U.S.C. § 1983.
Plaintiff
alleges Defendants showed deliberate indifference to his cystic
acne and keloid scaring by not prescribing Accutane, causing
Plaintiff to suffer debilitating pain, in violation of his Eighth
Amendment rights.
Plaintiff admits that he received treatments for his cystic
acne while in the custody of the DOC.
Since plaintiff was first
incarcerated
given
in
2010,
he
has
been
short
courses
of
antibiotics, E.E.S., washes, creams and gel acne treatments. (Doc.
#19
at
8).
Plaintiff
was
also
seen
on
two
occasions
by
a
dermatologist, once in 2011 and again in 2013.
Plaintiff was first seen by the Defendant Dr. Hemphill on
August 26, 2014, pertaining to an unidentified mass on his throat.
(Doc. #19 at 11).
lymph
node
Dr. Hemphill opined that the mass was likely a
filled
with
acne
entering the blood stream.
toxin
preventing
the
toxin
from
Dr. Hemphill treated Plaintiff with a
Benzoyl Peroxide wash and referred Plaintiff to a specialist, Dr.
Galliano. Id.
Dr. Galliano first ordered an ultra sound of the
lymph node mass and then ordered a biopsy procedure to remove the
mass. Id.
Plaintiff
necessary
if
argues
Dr.
that
the
Hemphill
had
surgery
treated
would
his
not
have
been
cystic
acne
with
Isotretinoin (Accutane), as had previously been recommended by two
dermatologists.
Pursuant to Department of Correction policy, Dr.
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Hemphill’s request to use Accutane was denied, and so Dr. Hemphill
pursued alternative treatment.
Plaintiff seeks injunctive relief directing Dr. Hemphill and
Wexford to follow the specialists’ treatment plan, compensatory
damages,
and
punitive
damages.
Defendants
move
for
summary
judgment as to the Eighth Amendment claim for cruel and unusual
punishment, arguing that there was no deliberate indifference to
Plaintiff’s medical condition.
Plaintiff replies that there are
genuine issues of fact regarding the treatment he received.
A. Injunctive Relief
Plaintiff moves for injunctive relief, asking the Court to
order Dr. Hemphill and Wexford to treat him with Accutane, the
medication recommended by the specialists he saw in 2011 and 2013.
Even if there had been a violation of the Eighth Amendment in the
treatment course (which, as discussed below, did not occur), the
undisputed facts establish plaintiff is not entitled to such
injunctive relief.
Where
plaintiff
seeks
injunctive
relief,
plaintiff
is
required to establish “facts from which it appears there is a
substantial likelihood that he will suffer injury in the future.”
Strickland
v.
Alexander,
772
F.3d
876,
883
(11th
Cir.
2014)
(quoting Malowney v. Fed. Collection Deposit Grp., 193 F.3d 1342,
1346 (11th Cir. 1999) (citations omitted)).
Injunctions regulate
future conduct only, and do not provide relief for past injuries
- 4 -
already incurred and over with.
See Church v. City of Huntsville,
30 F.3d 1332, 1337 (11th Cir. 1994).
In this case, Plaintiff was released from custody on April
24, 2018. (Doc. #76).
Since Plaintiff is no longer incarcerated
at the facility, he is no longer under Dr. Hemphill’s and Wexford’s
care. (Doc. #76).
The risk that plaintiff will suffer a future
medical issue for which these defendants are responsible is too
remote to support injunctive relief.
Accordingly, even if there
was a past Eighth Amendment violation, summary judgment is granted
to the Defendants as to Plaintiff’s requested injunctive relief
remedy.
B. Eighth Amendment Violation
Plaintiff
alleges
that
Defendants
were
deliberately
indifferent to the pain and suffering caused by his cystic acne
because they would not prescribe Accutane.
Defendants move for
summary judgment, asserting that Plaintiff has not established the
subjective prong of deliberate indifference or presented any facts
showing that Wexford has a procedure, policy, or custom that denies
inmates access to Accutane.
Prison officials violate the Eighth Amendment when they act
with deliberate indifference to an inmate’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 establish: (1) a serious medical need; (2)
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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).
To
establish deliberate indifference to a serious medical need, 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).
With these principles in mind, the Court considers
each Defendant’s position in the motion for summary judgment.
(1)
Dr. Hemphill
Dr. Hemphill argues that he was not deliberately indifferent
to Plaintiff’s medical issue, but that Plaintiff simply disagrees
with his treatment regimen.
material
facts
fail
to
The Court finds that the undisputed
establish
deliberate
indifference
in
violation of the Eighth Amendment by Dr. Hemphill.
(a)
Whether Plaintiff had a Serious Medical Condition
Plaintiff claims that he was diagnosed with cystic acne during
his initial entry into the Department of Corrections (DOC) in 2010.
(Doc.
#19
at
dermatologists
recommended
7).
From
diagnosed
Accutane
as
2011
through
Plaintiff
the
2013,
with
treatment.
Id.
at
cystic
at
8.
least
two
acne
and
Plaintiff
describes this condition as “large cysts or boils, w[h]ich vary in
size and are sometimes an inch around (or long), rising up a
quarter of an inch or more and at least a quarter inch deep.” Id.
- 6 -
at 8.
The acne covers Plaintiff’s chest, back, shoulders, neck,
and head. Id.
Plaintiff states that the “acne cysts rise up and
fester for weeks until they burst and drain a large amount of puss,
blood, and little white acne nodules.” Id. at 8.
cystic
acne
causes
him
serious
pain
when
Plaintiff’s
eating,
showering,
shaving, sleeping, exercising, and even when turning his head. Id.
at 9. Plaintiff states that the acne causes Keloid scaring on his
skin and baldness on his scalp. Id. at 10. Plaintiff further states
that his cystic acne caused him to get a lymph node mass caused by
“acne toxin,” which required surgical intervention. Id. at 12-13.
The Court finds that Plaintiff has established the existence
of a serious medical condition.
Therefore, the first requirement
is satisfied.
(b) Deliberate Indifference
Plaintiff
asserts
that
at
least
two
dermatologists
recommended Accutane as the necessary treatment for his cystic
acne,
but
Defendants
refused
to
provide
him
with
Accutane.
Plaintiff acknowledges that Defendants did provide treatment for
his cystic acne, but asserts the treatment was so deficient as to
amount
to
Plaintiff’s
no
treatment
disagreement
at
all.
with
the
Defendants
method
of
respond
treatment
that
is
insufficient to support an Eighth Amendment claim.
The Court finds that the undisputed evidence establishes that
no reasonable person could find that the care afforded by Dr.
- 7 -
Hemphill
constitutes
deliberate
indifference.
At
most,
Plaintiff’s claim is merely a disagreement with a course of medical
treatment which was not unreasonable under the circumstances.
Dr. Hemphill did not begin to treat Plaintiff until August
26, 2014, when Plaintiff presented with a mass on his neck near
his lymph node. (Doc. #19 at 10-11).
Plaintiff does not assert
that Dr. Hemphill refused him treatment, only that Dr. Hemphill’s
treatment was not as effective as his preferred treatment with
Accutane.
Plaintiff admits in his Complaint that Dr. Hemphill
added a treatment regimen of washes and creams akin to the regimen
plaintiff had previously been prescribed since he was incarcerated
in 2010.
Plaintiff also acknowledges that Dr. Hemphill referred
him to a specialist for treatment of his lymph node mass.
The
specialist completed an ultrasound on Plaintiff’s neck, and then
on March 19, 2015, performed biopsy procedure to remove the toxic
mass. (Doc. #19 at 12).
While Plaintiff complains that the biopsy
caused him pain and permanent scaring, Dr. Hemphill did not perform
the biopsy and there is no evidence the biopsy was inappropriate.
Thus,
Dr.
Hemphill
added
reasonable
treatment
of
cystic acne, and was not deliberately indifferent.
Plaintiff’s
As a result,
plaintiff cannot establish an Eighth Amendment claim against Dr.
Hemphill, and the motion for summary judgment is granted as to Dr.
Hemphill.
- 8 -
(2)
Wexford
Wexford is a private corporation contracted by the DOC to
provide medical services to inmates.
When a private entity like
Wexford contracts with the state to provide medical services to
inmates, it performs a function traditionally within the exclusive
prerogative of the state and becomes the functional equivalent of
the state under section 1983. Buckner v. Toro, 116 F.3d 450, 452
(11th Cir. 1997); Ancata v. Prison Health Servs., Inc., 769 F.2d
700, 703 (11th Cir. 1985).
Liability under § 1983, however, may not be based on the
doctrine of respondeat superior.
Grech v. Clayton Cnty., Ga., 335
F.3d 1326, 1329 (11th Cir. 2003) (en banc); Craig v. Floyd Cty.,
Ga., 643 F.3d 1306, 1310 (11th Cir. 2011); see Denham v. Corizon
Health, Inc., No. 15–12974, 2017 WL 129020, at *4 (11th Cir. Jan.
13, 2017) (stating that when a government function is performed by
a private entity like Corizon, the private entity is treated as
the functional equivalent of the government for which it works)
(citation omitted).
Liability in a § 1983 action only attaches
where the entity itself causes the constitutional violation at
issue. Cook ex. rel. Estate of Tessier v. Sheriff of Monroe Cty.,
Fla., 402 F.3d 1092, 1116 (11th Cir. 2005) (citations omitted).
Thus, a plaintiff must establish that an official policy or custom
of
the
entity
was
the
“moving
force”
behind
the
alleged
constitutional deprivation. See Monell v. Dep't of Soc. Servs.,
- 9 -
436 U.S. 658, 693–94 (1978).
The policy or custom requirement is
designed to “distinguish acts of the [government entity] from acts
of employees of the [government entity], and thereby make clear
that [governmental] liability is limited to action for which the
[government entity] is actually responsible.” Grech, 335 F.3d at
1329 n.5 (quotation and citation omitted) (emphasis in original).
The Department of Corrections limited Dr. Hemphill’s ability
to
prescribe
drugs
to
those
listed
in
the
Services’ Formulary (Formulary). (Doc. #65-3).
listed in the Formulary.
Id.
Office
of
Health
Accutane is not
According to the Department of
Corrections, it is their policy that “prescribing be limited to
the Formulary unless an exception request is approved by the
Regional Medical Executive Director (RMED) or the designee and
filed with the Director of Pharmacy Services for each exceptional
request.” (Doc. #65-6 at 1).
Accutane is specifically listed as
a restricted drug that requires central office approval by the
deputy assistant of secretary of health services before it can be
prescribed. (Doc. #65-6 at 2).
Dr. Hemphill stated that he filed
a request for Accutane, but the request was denied.
Thus, Dr.
Hemphill was prohibited from prescribing Accutane by the DOC’s
Formulary.
Despite the existence of such a policy, Dr. Hemphill provided
reasonable medical treatment to Plaintiff, and that treatment was
not so grossly inadequate as to rise to the level of deliberate
- 10 -
indifference to Plaintiff’s medical condition.
See Whitehead v.
Burnside, 403 F. App’x 401, 403 (11th Cir. 2010) (“A difference in
medical opinion does not constitute deliberate indifference so
long
as
the
treatment
is
minimally
adequate.”).
At
most,
Plaintiff establishes a difference of opinion as to the best
treatment course and a resulting medical malpractice claim, which
is insufficient under the Eighth Amendment.
See Barnes v. Martin
City Sheriff's Dep't, 326 F. App'x 533, 535 (11th Cir. 2009)
(recognizing that a complaint that a physician has been negligent
in diagnosing or treating a medical condition does not state a
valid claim of medical mistreatment under the Eighth Amendment).
“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.” Id.
As discussed above,
plaintiff received such reasonable care, even if he disagreed with
the treatment plan.
Therefore, Wexford’s motion for summary
judgment is due to be granted.
Accordingly, it is hereby
ORDERED:
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(1)
Defendants
Dr.
Robert
Hemphill
and
Wexford
Health
Sources, Inc.’s (Wexford) Motion for Summary Judgment
(Doc. #65) is GRANTED.
(2)
Judgment is entered in favor of Dr. Robert Hemphill and
Wexford
Health
Sources,
Inc.
on
Plaintiff’s
Third
Amended Complaint, and plaintiff shall take nothing.
(3)
The
Clerk
of
Court
is
directed
to
enter
judgment
accordingly, terminate all pending motions and close the
file.
DONE and ORDERED at Fort Myers, Florida, this
of September, 2018.
Copies:
Counsel of Record
SA: FTMP-2
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20th
day
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