Lind v. Florida Civil Commitment Center

Filing 40

OPINION AND ORDER granting 29 Motion for summary judgment; denying 33 Motion for summary judgment; granting 34 Motion for summary judgment; denying 37 Motion for summary judgment. The Clerk shall enter judgment in favor of defendant, terminate all pending matters, and close the file. Signed by Judge John E. Steele on 5/16/2017. (RKR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
EDWARD LIND,
Plaintiff,
v.

Case No: 2:16-cv-3-FtM-29MRM

DIRECTOR,
FLORIDA
CIVIL
COMMITMENT CENTER, sue in
official capacity,
Defendant.
OPINION AND ORDER
This matter comes before the Court upon the following:
Defendant Director, Florida Civil Commitment
Center’s
(“Defendant
Director’s”
or
“Defendant’s”) motion for summary judgment
(Doc. 1, filed January 9, 2017);
Plaintiff
Edward
Lind’s
(“Plaintiff’s”)
motion for summary judgment (Doc. 33, filed
January 9, 2017);
Defendant
Director’s
amended
motion
for
summary judgment (Doc. 34, filed January 10,
2017);
Defendant Director’s response in opposition to
Plaintiff’s motion for summary judgment (Doc.
36, filed February 15, 2017);
Plaintiff Edward Lind’s second motion for
summary judgment, construed as a response in
opposition to Defendant’s motion for summary
judgment (Doc. 37, filed February 16, 2017);
and
Defendant Director’s response in opposition to
Plaintiff’s second motion for summary judgment
(Doc. 39, filed March 21, 2017).

For the reasons given in this Opinion and Order, Defendant
Director’s motions for summary judgment are granted.

Plaintiff’s

motions for summary judgment are denied, and judgment will be
entered in favor of defendant.
I.

Background and Procedural History

Plaintiff, an involuntarily civilly committed resident of the
Florida Civil Commitment Center (“FCCC”) in Arcadia, Florida, 1
initiated this action on January 4, 2016 by filing a complaint
pursuant to 42 U.S.C. § 1983 against the Director of the Florida
Civil Commitment Center (Doc. 1).

Plaintiff’s original complaint

is the operative complaint before the Court.
On April 29, 2016, Defendant Director filed a motion to
dismiss, arguing that Plaintiff’s complaint was moot because he
(Plaintiff) had received the only relief requested in the complaint
(Doc. 11). 2

In response, Plaintiff agreed that he had received

1

Florida’s Involuntary Civil Commitment for Sexually
Violent Predators Act was enacted in Florida “to create a civil
commitment procedure for the long-term care and treatment of
sexually violent predators.” Fla. Stat. § 394.910, et seq. A person
who is found, after a hearing, to be a “sexually violent predator”
is “committed to the custody of the Department of Children and
Family Services for control, care, and treatment until such time
as the person’s mental abnormality or personality disorder has so
changed that it is safe for the person to be at large.” Id. at §
394.917.
2

Defendant Director also argued that Plaintiff had sued the
incorrect defendant because the director of the FCCC could not be
held liable for monetary damages under a theory of respondeat
superior (Doc. 11 at 5).
However Defendant later withdrew his
challenge to the propriety of naming the FCCC director as a

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surgery for his groin hernia, but had not yet received surgery to
correct his abdominal hernia (Doc. 22).

Defendant Director filed an answer and affirmative defenses
to the complaint (Doc. 25), and on September 21, 2016, the parties
were directed to conduct discovery (Doc. 26).

Thereafter, both

parties filed motions for summary judgment on September 9, 2017
and attached documents in support of their motions (Doc. 29; Doc.
33).

The following day, Defendant Director filed an amended

motion for summary judgment (Doc. 34).
to respond to the motions (Doc. 35).
that:

The parties were directed
The parties were cautioned

(1) failure to respond to a motion for summary judgment

indicates that the motion is unopposed; (2) all material facts
asserted

in

the

motions

would

be

considered

admitted

unless

controverted by proper evidentiary materials; and (3) Plaintiff
could not rely solely on the allegations of his pleadings to oppose
the motions (Doc. 35) (citing Griffith v. Wainwright, 772 F.2d
822, 825 (11th Cir. 1985)).

Despite the warnings, Plaintiff did

not respond to Defendant Director’s motions for summary judgment.
However, the Court will liberally construe Plaintiff’s second
motion for summary judgment as his response to Defendant Director’s
motions.

See Tannenbaum v. United States, 148 F.3d 1262, 1263

(11th Cir. 1998) (“Pro se pleadings are held to a less stringent

defendant since Plaintiff sought only injunctive relief in his
complaint (Doc. 20).

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standard than pleadings drafter by attorneys and will, therefore,
be liberally construed.”).
II.

Pleadings

Complaint
In his complaint, Plaintiff alleges that he suffers from one
abdominal and one groin hernia (Doc. 1 at ¶ 4).
him great pain.

Id. at ¶ 5.

The hernias cause

He has sought surgery from medical

professionals at the FCCC, but they refuse to provide surgery.
Id. at ¶¶ 6-7.
indifference

Plaintiff asserts that the defendant’s deliberate

to

his

medical

need

violates

his

constitutional

rights under the Due Process Clause of the Fourteenth Amendment.
Id. at ¶ 8.
Plaintiff seeks only an order from this Court compelling
Defendant Director to provide hernia surgery (Doc. 1 at ¶ 9).
Defendant Director’s Motion for Summary Judgment
In

his

motion

for

summary

judgment,

Defendant

Director

alleges that Plaintiff has received ample care for his hernias and
that

his

§

1983

complaint

is

based

merely

upon

disagreement with the treatment provided (Doc. 34).

Plaintiff’s
Defendant

asserts that the proper treatment for a hernia is a “classic”
example

of

a

matter

for

medical

judgment

and

that

“[n]o

constitutional violation exists where an inmate and a prison
medical official merely disagree as to the proper course of medical
treatment.” Id. at 11.

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To

support

his

motion

for

summary

judgment,

Defendant

Director attaches Plaintiff’s medical records (Doc. 34-1; Doc. 342); an affidavit of Jacques Lamour, M.D. (Doc. 34-3, “Lamour
Aff.”); and an affidavit from Donald Sawyer (Doc. 34-4, “Sawyer
Aff.”).
In Plaintiff’s construed response to Defendant's motion for
summary

judgment,

grievances

he

Plaintiff

filed

urges

regarding

that
his

the

responses

hernia

to

treatment

the
were

“frivolous” because they merely advised him to speak with the
medical

department,

which

presumably,

was

treatment Plaintiff desired (Doc. 37 at 1).

not

providing

the

Plaintiff urges, for

the first time in this response, that nothing has been done about
his hemorrhoid problem; that he is seeking pain relief; and that
he is now seeking monetary damages for pain and suffering and
mental anguish.

Id. at ¶¶ 5-9. 3

3

It is well-settled that a plaintiff cannot argue a new
theory of relief for the first time in response to a motion for
summary judgment.
See Gilmour v. Gates, McDonald and Co., 382
F.3d 1312, 1315 (11th Cir. 2004) (“A plaintiff may not amend her
complaint
through
argument
in
a
brief
opposing
summary
judgment.”)(citing Shanahan v. City of Chicago, 82 F.3d 776, 781
(7th Cir. 1996)); Cruz v. Advance Stores Co., Inc., 842 F. Supp.
2d 1356, 1360 (S.D. Fla. 2012) (“[A] party may not raise a new
theory for the first time in response to a summary judgment
motion.”). Accordingly, the Court will not address Plaintiff’s new
arguments that Defendant Director has not adequately treated his
hemorrhoids or that he is entitled to monetary damages. Moreover,
as argued by Defendant Director in his original motion to dismiss
(Doc. 11), unless Defendant Director was personally involved in
denying Plaintiff proper medical care or encouraged a policy of
denying medical treatment for hernia issues (and there are no

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In support, Plaintiff attaches numerous grievances relating
to Plaintiff’s hernias and hemorrhoids, and a printout from an
unidentified source defining “hernia” and suggesting that surgery
is an appropriate treatment (Doc. 37-2).
Plaintiff’s Motion for Summary Judgment
In his motion for summary judgment, Plaintiff asserts that,
although he received surgery on his groin hernia after this suit
was filed, he still suffers from an abdominal hernia (Doc. 33 at
¶ 10).

He asserts that his hernia first appeared in 2010, but

that Dr. Lamour has done nothing to fix the problem, despite
numerous grievances filed. Id. at ¶¶ 1-8.

In support of his

motion, Plaintiff attaches copies of seven grievances he has filed
with the administration of the FCCC regarding his hernias (Doc.
33-1; Doc. 33-2; Doc. 33-3; Doc. 33-4; Doc. 33-5).
In

response

to

Plaintiff’s

motion

for

summary

judgment,

Defendant Director references the arguments and evidence filed in
his own motion for summary judgment (Doc. 36).

Defendant urges

that Plaintiff’s complaints and medical issues were not ignored;
rather, Plaintiff merely did not receive the precise treatment he
wanted.

Id.

allegations that this is the case), he cannot be held liable for
monetary damages under 42 U.S.C. § 1983. See Matthews v. Crosby,
F.3d 1265, 1270 (11th Cir. 2007).

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III. Standards of Review
Summary Judgment Standard
Summary judgment is appropriate only if it is shown “that
there is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
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

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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).
Deliberate Indifference Standard 4
Deliberate indifference to the serious medical needs of a
prisoner “constitutes the unnecessary and wanton infliction of
pain . . . proscribed by the Eighth Amendment.” Farrow v. West,
320 F.3d 1235, 1243 (11th Cir. 2003) (quoting Estelle v. Gamble,
429 U.S. 97, 104 (1976)); see also Campbell v. Sikes, 169 F.3d
1353 (11th Cir. 1999).

To state an Eighth Amendment claim for

deliberate indifference to a serious medical need, a plaintiff

4

Plaintiff is not a prisoner. Therefore, his 42 U.S.C. §
1983 claims rest upon his contention that the defendants violated
his rights under the due process clause of the Fourteenth Amendment
as set forth in Youngberg v. Romeo, 457 U.S. 307 (1982), rather
than on the Eighth Amendment’s “cruel and unusual” clause. Under
Youngberg, the involuntarily civilly committed have liberty
interests under the due process clause of the Fourteenth Amendment
to reasonably safe conditions of confinement, freedom from
unreasonable bodily restraints, and such minimally adequate
training as might be required to ensure safety and freedom from
restraint.
Id. at 322.
The Eleventh Circuit has held that
Youngberg establishes that the due process rights of the
involuntarily civilly committed are “at least as extensive” as the
Eighth Amendment “rights of the criminally institutionalized,” and
therefore, “relevant case law in the Eighth Amendment context also
serves to set forth the contours of the due process rights of the
civilly committed.” Dolihite v. Maughon, 74 F.3d 1027, 1041 (11th
Cir. 1996).

- 8 -

must

allege:

(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).
“[A] serious medical need is ‘one that has been diagnosed by
a physician as mandating treatment or one that is so obvious that
even a lay person would easily recognize the necessity for a
doctor’s attention.’” Farrow, 320 F.3d at 1243 (citing Hill v.
Dekalb Reg’l Youth Det. Ctr., 40 F.3d 1176, 1187 (11th Cir. 1994),
abrogated in part on other grounds by Hope v. Pelzer, 536 U.S.
730, 739 n.9 (2002)).

In either situation, “the medical need must

be ‘one that, if left unattended, pos[es] a substantial risk of
serious harm.”

Id. (citing Taylor v. Adams, 221 F.3d 1254, 1258

(11th Cir. 2000) (alteration in original); see also Andujar v.
Rodriquez, 486 F.3d 1199, 1203 (11th Cir. 2007) (finding that a
condition

involving

more

than

“superficial”

wounds,

affecting

ability to walk, and pain that caused crying was objectively,
sufficiently serious).
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).

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IV.

Analysis

Based upon the pleadings and the evidence before this Court,
the following facts regarding Plaintiff’s hernia treatments are
undisputed:
Plaintiff filed three sick call requests in
2012 regarding his hernias (Doc. 37-2 at 35). Plaintiff was examined by non-defendant
Dr. Lamour, but the issue was not resolved
(Doc. 33 at ¶ 7).
On August 10, 2015 Plaintiff was examined by
non-defendant Nurse Aikman for inguinal pain
and back pain (Doc. 34-1 at 69-70; Lamour Aff.
at ¶ 5).
Plaintiff was provided a hernia
belt, and advised to stop lifting weights.
Id.
He was examined again on August 28, 2015.
Plaintiff told the nurse that he refused to
wear the hernia belt because it was not
holding the hernia in place. At the time, the
hernia was easily reducible (Doc. 34-1 at 78;
Lamour Aff. at ¶ 7-8).
Dr. Lamour examined Plaintiff on October 8,
2015 for an issue unrelated to the hernia.
Plaintiff again requested hernia surgery, but
Dr. Lamour determined that there was no
indication for hernia surgery because the
hernia was still reducible (Doc. 34-1 at 63;
Lamour Aff. at ¶ 11-12).
On November 11, 2015, Plaintiff requested
hernia surgery and narcotic pain medication
(Doc. 34-2 at 19; Lamour Aff. at ¶ 16).
Plaintiff has been receiving Motrin for pain
relief since at least 2014. Id. at ¶ 45.
On November 20, 2015, Plaintiff saw Dr. Lamour
for follow-up care related to a colonoscopy
and again requested hernia surgery.
Dr.
Lamour determined that Plaintiff’s hernia was
still easily reducible at this time (Doc. 341 at 61; Ex. B at ¶ 18).
Thereafter, Dr.

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Lamour discussed Plaintiff’s hernia with Dr.
Kennedy, the corporate physician, and they
decided to continue monitoring Plaintiff’s
hernia to ensure that it remained reducible
(Lamour Aff. at ¶ 19).
On December 15, 2015, Plaintiff requested
hernia surgery via sick call, and Dr. Lamour
determined that Plaintiff’s left inguinal
hernia was no longer easily reducible (Doc.
34-1 at 55; Doc. 34-2 at 18; Lamour Aff. at ¶¶
20-21). Thereafter, Dr. Kennedy approved an
outside consultation with a surgeon (Doc. 342 at 40; Lamour Aff. at ¶ 22).
On February 17, 2016, Plaintiff was examined
by the surgeon who recommended surgery due to
the fact that Plaintiff’s inguinal hernia was
reducible, but not easily reducible, at the
time.
The surgeon did not consider it an
emergency (Doc. 34-1 at 13-15; Lamour Aff. at
¶ 23). Dr. Lamour approved the surgery which
was scheduled for April 7, 2016. Lamour Aff.
at ¶ 24.
On April 7, 2016, Plaintiff received surgery
on his inguinal surgery (Doc. 34-1 at 41-51;
Lamour Aff. at 25-27).
On May 12, 2016, Plaintiff completed a sick
call request regarding an umbilical hernia
(Doc. 34-2 at 10; Lamour Aff. at ¶ 33).
On May 18, 2016, Plaintiff was examined, and
Dr. Lamour determined that the umbilical
hernia was very small and easily reducible.
Lamour Aff. at ¶¶ 34-36.
Plaintiff has not sought treatment for his
umbilical hernia since May 18, 2016. Lamour
Aff. at ¶ 39.
Even

assuming

that

Plaintiff

has

demonstrated

a

serious

medical need under the first element of a deliberate indifference
claim,

given

reasonable

the

person

undisputed
could

find

evidence
that

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the

before

this

medical

Court,

care

no

afforded

Plaintiff

at

indifference.

the

FCCC

rises

to

the

level

of

deliberate

The care provided to Plaintiff is similar to that

provided the plaintiff in Palazon v. Sec’y, Fla. Dep’t of Corr.,
361 F. App’x 99 (11th Cir. 2010), where the Eleventh Circuit
affirmed a grant of summary judgment against a prisoner who claimed
that the prison’s delay in performing surgery on his inguinal
hernia

constituted

deliberate

indifference

caused him greater pain than necessary.

because

Id. at 89.

the

delay

Instead of

receiving surgery, the plaintiff received a hernia truss, pain
medication,

and

a

wheelchair

to

help

him

move

around.

Id.

Specifically, the “doctors did not want to operate on the hernia
as long as it remained reducible.”

Id.

The Eleventh Circuit

reasoned that the care the plaintiff received was not so grossly
incompetent, inadequate, or excessive as to shock the conscience
or be intolerable to fundamental fairness. Id.
Based on his experience and training, Dr. Lamour believed
there was no surgical urgency in Plaintiff’s case as long as the
hernia remained easily reducible (Lamour Aff. at ¶ 9).

Dr. Lamour

also believed that surgery involved a number of risks.

Id.

Plaintiff received surgery on his inguinal hernia soon after Dr.
Lamour determined that it was no longer easily reducible.

To that

point, Plaintiff received care in the form of a hernia belt, pain
medication, and activity limitation.

Likewise, Plaintiff’s small

easily reducible umbilical hernia is currently being monitored,

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and Plaintiff has been advised that he should return to the medical
department if he has issues related to the umbilical hernia.
Although Plaintiff clearly prefers different treatment than
he

is

currently

receiving,

he

does

not

state

a

deliberate

indifference claim. See Hamm v. DeKalb County, 774 F.2d 1567, 1575
(11th Cir. 1985) (“Although Hamm may have desired different modes
of

treatment,

the

care

the

jail

provided

did

not

amount

to

deliberate indifference.”); Jackson v. Fair, 846 F.2d 811, 817
(1st Cir. 1988) (“Although the Constitution does require that
prisoners be provided with a certain minimum level of medical
treatment, it does not guarantee to a prisoner the treatment of
his choice.”).

That Plaintiff prefers surgery on his umbilical

hernia is merely a disagreement with the care he is receiving.
In an attempt to prove that surgery is required to treat his
umbilical hernia, Plaintiff appears to rely on an unidentified
printout, presumably photocopied from a medical manual, which
states that “[s]urgery is often necessary for the permanent relief
of reducible hernia, and it is the only safe treatment for more
advanced forms.” (Doc. 37-2 at 7).

The document is not signed by

a doctor and appears to contain mere boilerplate language because
it notes that “[a] hernia may be present at birth as the result of
defective development of the abdominal wall, or it may occur later
in life as the result of an injury.” Id.

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Even if this document

is an admissible piece of evidence, which it is not 5, it merely
offers a generic opinion about customary hernia treatment options
without any consideration of the Eighth or Fourteenth Amendments
or Plaintiff’s specific medical condition.

In fact, the document

actually refutes Plaintiff’s claim because it says only that
surgery is “often” necessary for a reducible hernia, not definitely
required.

Thus, this document does not rebut the undisputed

medical opinion of Dr. Lamour that Plaintiff’s remaining umbilical
hernia

is

small

and

easily

reducible,

the

current

course

of

treatment (monitoring) is sufficient, and surgery is not medically
necessary.

Because the undisputed facts in this case show that

surgery is merely elective given the minimal nature of Plaintiff’s
remaining hernia, Plaintiff does not raise a genuine issue of
material fact as to his claim of deliberate indifference, and
Defendant Director is entitled to summary judgment.
Moreover, in support of his own motion for summary judgment
(Doc. 33), Plaintiff offers only assertions that he has sought
different treatment from Dr. Lamour than has been offered at the
FCCC for his hernias.

As discussed, mere disagreement with the

care provided does not state a deliberate indifference claim, and
Plaintiff is not entitled to summary judgment.

5

See Fed. R. Civ. P. 56(e); Fed. R. Evid. 801, 803, 804;
Macuba v. Deboer, 193 F.3d 1316, 1323 (11th Cir. 1999) (“The
general rule is that inadmissible hearsay cannot be considered on
a motion for summary judgment.”).

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V.
1.

Conclusion

For the reasons given above, Defendant’s motions for

summary judgment (Doc. 29; Doc. 34) are GRANTED.
2.

Plaintiff’s motions for summary judgment (Doc. 33; Doc.

37) are DENIED.
3.

The Clerk of Court is directed to terminate any pending

motions, close this case, and enter judgment in favor of the
defendant.
DONE and ORDERED in Fort Myers, Florida on this
of May, 2017.

SA: OrlP-4
Copies: All Parties of Record

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16th

day