West v. Secretary, DOC et al
Filing
38
OPINION AND ORDER re: denying 24 MOTION for Hearing. Signed by Judge Sheri Polster Chappell on 11/15/2017. (SLU)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
JAMES DARYL WEST,
Plaintiff,
v.
Case No: 2:16-cv-694-FtM-38CM
RONALD HEMPHILL, CARMELLO
BERRIOS, KAREN BLANKENSHIP,
H. WETTERER, B. LAROSA,
ROBERT GILBREATH, FNU
SCHULTZ, DIANN SPRATT, JULIE
JONES, WEXFORD HEALTH
SOURCES, KATHY CONNER, K.
WILLIAMS and JAMES LICATA,
Defendants.
/
OPINION AND ORDER 1
This matter comes before the Court on Plaintiff James Daryl West's Motion for
Emergency Telephonic Hearing Construed as a Motion for a Preliminary Injunction (Doc.
#24), filed on July 18, 2017.
BACKGROUND
West filed an Amended Complaint (Doc. #21) on May 15, 2017, alleging violations
of his Eighth Amendment rights to be free from cruel and unusual punishment due to
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deliberate indifference of his medical needs. West alleges that Defendants’ deliberate
indifference to his medical needs has caused damage to his lower back, right knee, and
right foot.
West alleges that he was in a bus accident while being transferred by the FDOC.
Since that accident, West alleges that he has suffered from chronic pain in his lower back,
right knee and right ankle. (Doc. #21 at ¶ 46-47). On October 14, 2014, Defendant Dr.
Ronald Hemphill, chief medical officer at Charlotte Correctional Institution (CCI)
diagnosed West with chronic pain. However, Dr. Hemphill refused West’s requests for a
consultation with a specialist and further testing.
On June 11, 2015, at 6:00am West utilized a sick call due to the pain in his lower
back, right knee, and right foot. West was immediately seen by Nurse Campbell who,
after examining him, placed him on morning call out so he could be seen by Dr. Carmello
Berrios, Chief Medical Officer at CCI at that time. Nurse Campbell issued West a cane
and gave him a bedrest pass.
After seeing Dr. Berrios, West was given medical passes restricting his activities
to light duty. West asked Dr. Berrios to call Mr. Gilbreath, food services director, to excuse
him from food services duty. Dr. Berrios refused West’s request. West then asked Dr.
Berrios to call his medical grade officer, Mr. Brock, and have his medical grade changed.
Again, Dr. Berrios refused. Dr. Berrios further refused to order any more x-rays or
recommend West to an orthopedic specialist. Dr. Berrios informed West that further care
was out of the question.
On June 25, 2015, West was seen by ARPN Karen Blankenship.
ARNP
Blankenship confirmed Dr. Berrios’ diagnosis of osteoarthritis, degenerative joint disease,
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and chronic pain.
However, ARNP Blankenship refused to recommend West to a
specialist or order additional testing. ARNP Blankenship refused to write West a no food
service pass and gave him Motrin for his pain. On June 27, 2015, West says he was
injured working food service and was again seen by ARNP Blankenship on June 29, 2015.
After examining West, Blankenship said there was nothing wrong with him and could find
no documentation of any injury to West on June 27, 2015. ARNP Blankenship directed
West to return to work or she would recommend confinement for his lying to the staff.
On August 13, 2015, West was on sick call for chronic pain and having trouble
walking. West was seen by Dr. H. Wetter at CCI. Dr. Wetter told West he could hear
cracking and popping in his right knee and noticed his right leg was smaller than his left
leg. Dr. Wetter reviewed the three radiologists’ reports and found there was no change
in the right knee. Dr. Wetter told West that people live every day without a meniscus and
even commented that he did not have one. Dr. Wetter also denied West’s request to see
a specialist.
On June 27, 2015, West saw Registered Nurse (RN) LaRosa after he claims he
was injured while working food service. RN LaRosa wrote West a bedrest pass until he
could see Dr. Berrios on the following Monday, June 29, 2015. On August 13, 2015, West
again saw RN LaRosa alleging chronic pain and complaining that he was having trouble
walking. RN LaRosa removed West’s ace bandage and examined his right knee. She
told West she could not hear any popping in the knee and advised the Ace bandage was
wound too tight and removed it. RN LaRosa told West there was nothing wrong with him
and refused to order an MRI.
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On Friday June 2, 2017, West says that he slipped and fell on a slippery sidewalk
as he walked to get lunch. West says the soles of his orthopedic shoes have been worn
thin by age and caused him to slip and fall. West says he spoke to the warden about the
shoes who told him he would send an e-mail about the shoes. West fell again on June
12, 2017. West requested a sick call but alleges it took nine days before he saw Nurse
Raquel Santos. West told Nurse Santos that his shoes were worn out and that caused
him to slip and fall. Nurse Santos refused to examine West’s knee noting there was no
redness. Nurse Santos told West there was nothing wrong with him.
West is currently housed in the Everglades Correctional Institution (ECI). Jance
Hill, the Health Services Administrator, at ECI, Dr. Oscar Ortega, the chief medical officer
at ECI, and Nurse Santos, the sick call nurse at ECI, have all denied West’s request for
orthopedic shoes. All three of the above ECI medical personnel have opined nothing is
wrong with West and that he does not medically qualify for orthopedic shoes. West moves
the Court for an order directing the DOC to provide him with a new pair of orthopedic
shoes.
DISCUSSION
West argues Defendants are violating his Eighth Amendment rights by deliberate
and calloused indifference to his medical needs. West moves the Court to issue a
preliminary injunction directing Defendants to buy him a pair of orthopedic shoes.
The decision to grant or deny a preliminary injunction is within the discretion of the
district court. Advance Produce, Inc. v. Isadore A. Rapasadi & Sons, Inc., No. 8:13-CV00242-T-30, 2013 WL 593845, at *1 (M.D. Fla. Feb. 14, 2013). Rule 65 of the Federal
Rules of Civil Procedure governs the entry of a preliminary injunction. A preliminary
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injunction maintains the status quo until the court can enter a final decision on the merits.
Jordan v. Def. Fin. & Accounting Servs., No. 8:15-CV-391-T-36TBM, 2015 WL 6166578,
at *5 (M.D. Fla. Oct. 20, 2015) (citing Bloedorn v. Grube, 631 F.3d 1218, 1229 (11th
Cir.2011)). A party seeking entry of a preliminary injunction must establish: (1) a
substantial likelihood of success on the merits; (2) a substantial threat of irreparable injury
if the injunction is not granted; (3) the threatened injury to the moving party outweighs
whatever damage the proposed injunction may cause the opposing party; and (4) if
issued, the injunction would not be adverse to the public interest.
The entry of a
preliminary injunction is “the exception rather than the rule, and plaintiff must clearly carry
the burden of persuasion.” Siegel v. LePore, 234 F.3d 1163, 1179 (11th Cir.2000)
(quoting Texas v. Seatrain Int'l, S.A., 518 F.2d 175, 179 (5th Cir.1975)); Four Seasons
Hotels & Resorts, B.V. v. Consorcio Barr, S.A., 320 F.3d 1205, 1210 (11th Cir.2003)
(citations omitted) (holding since a preliminary injunction is an extraordinary and drastic
remedy, a district court should not issue a preliminary injunction unless the movant clearly
establishes the burden of persuasion as to each of the four prerequisites). A plaintiff may
support its motion for a preliminary injunction by setting forth allegations of specific facts
in affidavits. M.D. Fla. R. 4.06(b)(2), 4.06(b)(3). In considering a motion for preliminary
injunctive relief, a district court may rely on affidavits and hearsay materials that would
not be admissible as evidence for entry of a permanent injunction. Jordan, 2015 WL
6166578, at *5 (citing Levi Strauss & Co. v. Sunrise Int'l Trading Inc., 51 F.3d 982, 985
(11th Cir.1995)). With these standards in mind, the Court will address West’s Motion.
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(1) Substantial Likelihood of Success on the Merits
West claims he has demonstrated a consistent pattern of deliberate indifference,
and willful and wanton abuse of authority to his serious medical needs. West’s position
lacks merit. 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.” Palazon v. Sec'y for Dep't of Corr., 361 F.
App'x 88, 89 (11th Cir. 2010) (quoting Harris v. Thigpen, 941 F.2d 1495, 1505 (11th
Cir.1991) (citations omitted). A medical need may be considered serious if a delay in
treating it makes it worse. Danley v. Allen, 540 F.3d 1298, 1310 (11th Cir.2008). To show
deliberate indifference to a serious medical need, a plaintiff must demonstrate that
defendants' response to the need was more than “merely accidental inadequacy,
negligence in diagnosis or treatment, or even medical malpractice actionable under state
law.” Palazon, 361 F. App'x at 89 (quoting Taylor v. Adams, 221 F.3d 1254, 1258 (11th
Cir.2000) (citation and internal quotations omitted).
West made clear in his Amended Complaint and the instant Motion that he has
seen numerous doctors and nurses regarding the pain in his knee and right foot. He has
been given Motrin or similar pain killers and provided bedrest passes and reduced activity
passes to reduce his work load. Doctors and nurses at more than one correctional
institution have also opined nothing is wrong with West. Staff members have even
threatened to place West in confinement because he has been untruthful to medical staff
regarding his knee and foot pain.
The record demonstrates that anytime West
complained of discomfort or pain he was provided with prompt access to medical care.
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Further, while West argues that a new pair of orthopedic shoes is the best
treatment, a difference of opinion with medical staff about the proper course of treatment
does not support a claim for deliberate indifference. Price v. Cameron, No. 2:10-CV-578FTM-99, 2012 WL 3536795, at *6 (M.D. Fla. Aug. 14, 2012); (citing Palazon v. Sec'y Dep't
of Corr., 361 F. App'x 88, 89 (11th Cir.2010) (quoting Adams v. Poaq, 61 F.3d 1537, 1545
(11th Cir.1995)(whether defendants “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” constitutional liability); Harris, 941
F.2d at 1505 (a difference of medical opinion between the prison's medical staff and the
inmate about the latter's course of treatment will not support a claim of cruel and unusual
punishment).
In this instance, the care West received at three correctional institutions was
adequate and not so grossly incompetent, inadequate, or excessive as to shock the
conscience or to be intolerable to fundamental fairness. Thus, West has failed to establish
a substantial likelihood of success on the merits of his claim.
(2) Substantial Threat of Irreparable Injury
West argues he must receive additional testing and orthopedic shoes to avoid
additional injuries. A showing of irreparable injury is “‘the sine qua non of injunctive relief.’
” Siegel v. LePore, 234 F.3d 1163, 1176 (11th Cir. 2000) (Northeastern Fla. Chapter of
the Ass'n of Gen. Contractors v. City of Jacksonville, 896 F.2d 1283, 1285 (11th Cir.1990)
(quoting Frejlach v. Butler, 573 F.2d 1026, 1027 (8th Cir.1978)); see also Doran v. Salem
Inn, Inc., 422 U.S. 922, 931, 95 S.Ct. 2561, 2568, 45 L.Ed.2d 648 (1975) (“The traditional
standard for granting a preliminary injunction requires the plaintiff to show that in the
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absence of its issuance he will suffer irreparable injury.”); Robertson, 147 F.3d at 1306
(plaintiff must show “irreparable injury will be suffered”); Harris Corp., 691 F.2d at 1356–
57 (concluding that district court “did not abuse its discretion in finding a substantial
likelihood of irreparable injury to [the plaintiff] absent an injunction”); Deerfield Med. Ctr.
v. City of Deerfield Beach, 661 F.2d 328, 338 (5th Cir.1981) (to be granted a preliminary
injunction plaintiffs must show “a substantial likelihood that they would suffer irreparable
injury”).
West does not argue the injuries he received will be permanent or irreparable.
Further, if his knee pain becomes so severe that the medical personal finds he needs
orthopedic shoes then Defendants can purchase him orthopedic shoes. Therefore, West
cannot show he has a substantial likelihood of irreparable damages.
CONCLUSION
“A preliminary injunction is an extraordinary and drastic remedy not to be granted
unless the movant clearly establishes the burden of persuasion as to the four requisites.”
Forsyth Cnty. v. U.S. Army Corps of Eng'rs, 633 F.3d 1032, 1039 (11th Cir.2011) (quoting
ACLU of Fla., Inc. v. Miami–Dade Cnty. Sch. Bd., 557 F.3d 1177, 1198 (11th Cir.2009)).
West has failed to establish a substantial likelihood he would prevail on the merits nor
has he set forth he will suffer irreparable harm should he not receive orthopedic shoes.
The Court need go no further in its analysis as West has failed on two of the four
perquisites to obtain a preliminary injunction. Therefore, West’s Motion for a Hearing
Construed as a Motion for a Preliminary Injunction is due to be denied.
Accordingly, it is now
ORDERED:
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James Daryl West's Motion for Emergency Telephonic Hearing Construed as a
Motion for a Preliminary Injunction (Doc. #24) is DENIED.
DONE and ORDERED in Fort Myers, Florida this 15th day of November, 2017.
Copies:
James Daryl West
All Parties of Record
SA: FTMP-2
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