Bell v. McDonough et al

Filing 107

ORDER granting 86 Defendants' Motion for Summary Judgment, with directions to the Clerk. Signed by Judge Marcia Morales Howard on 2/7/2012. (BL)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION

GREGORY V. BELL,
Plaintiff,
v.

Case No. 3:09-cv-202-J-34MCR

E. MADAN, etc.;
et al.,
Defendants.
ORDER
I. Status
Plaintiff

Gregory

V.

Bell,

who

is

proceeding

in

forma

pauperis, initiated this action by filing a pro se Civil Rights
Complaint (Doc. #1) under 42 U.S.C. § 1983 on March 5, 2009.
Plaintiff is now proceeding on his September 23, 2010 Third Amended
Complaint (Complaint) (Doc. #52) with exhibits (P. Ex.).

In the

Complaint, he names the following individuals as Defendants: (1)
Dr. Elio Madan, M.D., Chief Health Officer at Florida State Prison
(FSP); (2) Dr. Victor Selyutin, M.D., a physician at FSP; and (3)
William Mathews, a physician's assistant at FSP. Plaintiff asserts
that the Defendants' actions violated his federal constitutional
rights when they were deliberately indifferent to his serious

medical needs relating to a cyst on his testicle.

As relief,

Plaintiff requests compensatory and punitive damages.
This cause is before the Court on Defendants Motion for
Summary Judgment (Doc. #86) with exhibits (Def. Ex.).

Since

Plaintiff is appearing pro se, the Court advised him of the
provisions of Fed. R. Civ. P. 56 and gave him an opportunity to
respond to the motion.

See Order of Special Appointment; Service

of Process Upon Defendants; Notice to Plaintiff (Doc. #21) (setting
forth the provisions of Rule 56 of the Federal Rules of Civil
Procedure), filed October 5, 2009; Summary Judgment Notice (Doc.
#87), filed July 12, 2011.

On January 17, 2012, Plaintiff filed a

Response in Opposition to the Defendants' Motion for Summary
Judgment (Plaintiff's Response) (Doc. #103) with exhibits (P. SJ
Ex.)

(Doc.

#104),

Declaration).

including

a

supporting

declaration

(Bell's

This case is now ripe for review.
II.

Summary Judgment Standard

Under Rule 56, Federal Rules of Civil Procedure, "[t]he court
shall grant summary judgment if the movant shows 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

record to be considered on a motion for summary judgment may
include "depositions, documents, electronically stored information,
affidavits or declarations, stipulations (including those made for
purposes of the motion only), admissions, interrogatory answers, or

- 2 -

other materials."

Rule 56(c)(1)(A).1

An issue is genuine when the

evidence is such that a reasonable jury could return a verdict in
favor of the nonmovant.

See Mize v. Jefferson City Bd. of Educ.,

93 F.3d 739, 742 (11th Cir. 1996) (quoting Hairston v. Gainesville
Sun Publ'g Co., 9 F.3d 913, 919 (11th Cir. 1993)).

"[A] mere

scintilla of evidence in support of the non-moving party's position
is insufficient to defeat a motion for summary judgment." Kesinger
ex rel. Estate of Kesinger v. Herrington, 381 F.3d 1243, 1247 (11th
Cir. 2004).

The party seeking summary judgment bears the initial

burden of demonstrating to the court, by reference to the record,
that there are no genuine issues of material fact to be determined
at trial.

See Clark v. Coats & Clark, Inc., 929 F.2d 604, 608

(11th Cir. 1991).
"When a moving party has discharged its burden, the non-moving
party must then go beyond the pleadings, and by its own affidavits,
or by depositions, answers to interrogatories, and admissions on

1

Rule 56 was revised in 2010 "to improve the procedures for
presenting and deciding summary-judgment motions."
Rule 56
advisory committee's note 2010 Amendments.
The standard for granting summary judgment
remains unchanged. The language of subdivision
(a) continues to require that there be no
genuine dispute as to any material fact and
that the movant be entitled to judgment as a
matter of law. The amendments will not affect
continuing development of the decisional law
construing and applying these phrases.
Id.
Thus, case law construing the former Rule 56 standard of
review remains viable and is applicable here.
- 3 -

file, designate specific facts showing that there is a genuine
issue for trial."

Jeffery v. Sarasota White Sox, Inc., 64 F.3d

590, 593-94 (11th Cir. 1995) (internal citations and quotation
marks omitted).

Substantive law determines the materiality of

facts, and "[o]nly disputes over facts that might affect the
outcome of the suit under the governing law will properly preclude
the entry of summary judgment."
477 U.S. 242, 248 (1986).

Anderson v. Liberty Lobby, Inc.,

In determining whether summary judgment

is appropriate, a court "must view all evidence and make all
reasonable inferences in favor of the party opposing summary
judgment."

Haves v. City of Miami, 52 F.3d 918, 921 (11th Cir.

1995) (citing Dibrell Bros. Int'l, S.A. v. Banca Nazionale Del
Lavoro, 38 F.3d 1571, 1578 (11th Cir. 1994)).
III. Plaintiff's Allegations and Claims
According to Plaintiff, the following incidents relating to a
cyst on his right testicle transpired while he was incarcerated at
FSP from 2006 through 2007.2

Bell began to experience testicular

pain in early September 2006, see P. Exs. C; O; X; MM, and on
September 12, 2006, submitted a sick call request to the medical
department at FSP relating to a painful cyst on his right testicle,
see Complaint at 9B; P. Ex. C.

When Defendant Selyutin saw Bell on

2

According to the Florida Department of Corrections's
website, Gregory V. Bell was released on September 15, 2007, and
detained at the Florida Civil Commitment Center in Arcadia,
Florida. See http://www.dc.state.fl.us/InmateReleases.
- 4 -

September 18, 2006, Bell informed Selyutin of the extreme pain
caused by the cyst.

Complaint at 9B.

During the examination,

Selyutin "touched the bottom of the Plaintiff's testicle sac" and
stated, "there is nothing wrong with your testicles."

Id.

When

Bell tried to explain the pain caused by the cyst, Selyutin failed
to listen to Bell's complaints, failed to properly examine Bell,
failed to refer Bell to a urologist, and refused to provide readily
available pain medications.

Id.

On October 18, 2006, Bell submitted a sick call request to the
FSP medical department relating to the cyst on his right testicle
that had grown to the size of a pea.

Id. at 9C.

repeated complaints, Bell did not see a physician.

Even after
Bell

Id.

submitted another sick call request to the FSP medical department
on January 30, 2007. Id.

According to Plaintiff, as retaliation

for Bell's filing of grievances, the Defendants denied him medical
treatment for the cyst on his right testicle and thereby caused him
to

suffer

unnecessary

pain

for

approximately

eleven

months

(September 2006 through August 2007). Id. at 9C-9D; see P. Ex. MM,
Inmate Sick Call Request (stating he had experienced pain for ten
months from September 2006 through July 2007), dated July 23, 2007.
Again, on June 2, 2007, Bell submitted a sick call request to
the FSP medical department regarding the painful cyst.

Complaint

at 9E.

When Defendant Mathews examined Bell on July 5, 2007,

Mathews

stated,

"there

is

no

cure

- 5 -

for

the

cyst[s]

on

your

testicles, and we cannot treat the cysts."

Id.

In denying Bell

readily available pain medications, Mathews told Bell that he could
see a physician when he was released from prison.

Id.

On July 23,

2007, Bell submitted a sick call request to the FSP medical
department.

Id. at 9F; P. Ex. MM.

Bell claims that he was not

seen by a physician and that the Defendants falsely stated that
Defendant Mathews saw him on August 2, 2007.

Complaint at 9F; see

P. Ex. NN.
IV. Defendants' Motion for Summary Judgment
Defendants argue that there is no genuine issue as to any
material fact and that each Defendant is entitled to summary
judgment as a matter of law based on the record before the Court.
They

contend

that

Plaintiff

failed

to

state

a

federal

constitutional claim against them. Moreover, Defendants argue that
they are entitled to qualified immunity, that Plaintiff is not
entitled to compensatory and punitive damages, and that this Court
should decline to exercise supplemental jurisdiction over Bell's
state law negligence and medical malpractice claims. In support of
their

summary

judgment

motion,

Defendants

submitted

their

declarations. See Def. Exs. B (Madan's Declaration); C (Selyutin's
Declaration); D (Mathews' Declaration).

- 6 -

V. Law and Conclusions
A. Eighth Amendment Claim of Deliberate
Indifference to Serious Medical Needs
As previously noted, Plaintiff asserts that the Defendants
violated

his

federal

constitutional

rights

when

they

were

deliberately indifferent to his serious medical needs relating to
a cyst on his right testicle.

However, the record reflects that

Defendants were not deliberately indifferent to Plaintiff's serious
medical needs.
"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 v. Johnson, 387
F.3d 1344, 1351 (11th Cir. 2004) (quoting Farrow v. West, 320 F.3d
1235, 1243 (11th Cir. 2003)).

First, the plaintiff must satisfy

the objective component by showing that he had a serious medical
need. Goebert v. Lee County, 510 F.3d 1312, 1326 (11th Cir. 2007).
"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.
(citation and internal quotations marks
omitted).
Brown, 387 F.3d at 1351.

Next, the plaintiff must satisfy the

subjective component, which requires the plaintiff to "allege that

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the prison official, at a minimum, acted with a state of mind that
constituted deliberate indifference."

Richardson v. Johnson, 598

F.3d 734, 737 (11th Cir. 2010) (per curiam) (setting forth the
three components of deliberate indifference as "(1) subjective
knowledge of a risk of serious harm; (2) disregard of that risk;
(3) by conduct that is more than mere negligence.") (citing Farrow
v. West, 320 F.3d at 1245)).
In
Estelle[3],
the
Supreme
Court
established that "deliberate indifference"
entails more than mere negligence. Estelle,
429 U.S. at 106, 97 S.Ct. 285; Farmer,[4] 511
U.S. at 835, 114 S.Ct. 1970.
The Supreme
Court clarified the "deliberate indifference"
standard in Farmer by holding that a prison
official
cannot
be
found
deliberately
indifferent under the Eighth Amendment "unless
the official knows of and disregards an
excessive risk to inmate health or safety; the
official must both be aware of facts from
which the inference could be drawn that a
substantial risk of serious harm exists, and
he must also draw the inference." Farmer, 511
U.S. at 837, 114 S.Ct. 1970 (emphasis added).
In interpreting Farmer and Estelle, this Court
explained in McElligott[5] that "deliberate
indifference
has
three
components:
(1)
subjective knowledge of a risk of serious
harm; (2) disregard of that risk; (3) by
conduct that is more than mere negligence."
McElligott, 182 F.3d at 1255; Taylor,[6] 221
F.3d at 1258 (stating that defendant must have
subjective awareness of an "objectively

3

Estelle v. Gamble, 429 U.S. 97 (1976).

4

Farmer v. Brennan, 511 U.S. 825 (1994).

5

McElligott v. Foley, 182 F.3d 1248 (11th Cir. 1999).

6

Taylor v. Adams, 221 F.3d 1254 (11th Cir. 2000).
- 8 -

serious need" and that his response must
constitute
"an
objectively
insufficient
response to that need").
Farrow v. West, 320 F.3d 1235, 1245-46 (11th Cir. 2003).
The United States Supreme Court has stated:
[T]he question whether an X-ray or additional
diagnostic techniques or forms of treatment is
indicated is a classic example of a matter for
medical judgment. A medical decision not to
order an X-ray, or like measures, does not
represent cruel and unusual punishment.
At
most[,] it is medical malpractice, and as such
the proper forum is the state court . . . .
Estelle, 429 U.S. at 107; Adams v. Poag, 61 F.3d 1537, 1545 (11th
Cir. 1995) ("[T]he question of 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 liability under the Eighth
Amendment."); Harris v. Thigpen, 941 F.2d 1495, 1505 (11th Cir.
1991) ("Nor does a simple difference in medical opinion between the
prison's

medical

staff

and

the

inmate

as

to

the

[inmate's]

diagnosis or course of treatment support a claim of cruel and
unusual punishment.").
This Court finds that the Defendants have met their initial
burden of showing this Court that there are no genuine issues of
material fact that should be decided at trial (with respect to
Plaintiff's claim that the Defendants were deliberately indifferent
to Plaintiff's serious medical needs).

Defendant Madan, in his

Declaration, avers that the medical providers under his supervision
- 9 -

provided proper medical care to Bell for the treatment of a cyst on
his right testicle.
My name is Elio Madan. I am a licensed
medical physician practicing in the State of
Florida. I have been employed by the Florida
Department of Corrections ("FDOC") as a
physician and was employed as the Chief
Medical Officer ("CHO") at Florida State
Prison ("FSP") of the FDOC during the times
discussed here, 2006-2007. I have been
licensed as a physician by the State of
Florida since the early 1990's and am Board
Certified in Anatomic and Clinical Pathology.
In this declaration, I reference and
incorporate true and correct copies of Mr.
Bell's medical records from the FDOC and the
Florida Civil Commitment Center ("FCCC") which
are attached as exhibits to Defendants' Motion
for Summary Judgment.
I have read the civil rights complaint
filed by ex-inmate Gregory Bell (FDOC# 330519)
and I am aware of the claims he alleges
against me. His claim that I was deliberately
indifferent and negligent to his medical care
is untrue. Specifically, Mr. Bell alleges in
the complaint that, when I was the CHO at FSP,
I failed to execute my obligations and duties
as a medical physician and the CHO at FSP, I
failed to ensure that Mr. Bell received the
necessary medical care and treatments for a
cyst, I retaliated against Mr. Bell in
response to when he filed grievances, and my
actions injured Mr. Bell. These claims are
absolutely untrue.
All of Mr. Bell's allegations in the
complaint pertain to whether he received
proper care and treatment to an epididymis
cyst on his right testicle, while he was
incarcerated at FSP.
However, a review of Mr. Bell's medical
records from the FDOC regarding the claims
associated with a cyst on his right testicle
- 10 -

demonstrate that there is no factual basis to
support Mr. Bell's allegations. The records
span nine (9) years where Mr. Bell's cyst was
monitored by several medical practitioners
with no change to his condition.
As background information, an epididymis
cyst
is
also
known
as
("a.k.a.")
a
spermatocele.
An
epididymis
cyst
is
a
retention cyst and is not considered life
threatening, unless there is an observable
increase in size. The cyst may fluctuate
slightly as the fluid within the cyst is
spermatozoa, but this is not the cause of the
patient's symptoms. The types of symptoms to
observe are redness, pain, and swelling in the
scrotum. Small cysts are best left alone as
are larger cysts that are an asymptomatic
condition, and only when they are causing
discomfort and increasing in size should
additional treatment be considered, such as
surgery (spermatocelectomy).
On September 11, 1998, Dr. H. Mach at
Union Correctional Institution ("CI") of the
FDOC evaluated Mr. Bell's complaints regarding
a lump on his testicles and if the lump could
be cancerous. (Def. Exhibit E-F.) Dr. Mach
ordered a testicular ultrasound (a.k.a.
sonogram) and a urological consult. (Id.) The
ultrasound indicated a small epididymal cyst
measuring 8 mm in size. (Id.) On October 1,
1998, Mr. Bell had a consult with the urology
specialist, Dr. G. Miguel[7], who documented
that he found no serious pathology, no
asymptomatic growth, no testicular masses, and
that the cyst was benign. (Id.) Examples of
pathology would be hernia or tumor. Dr. Miguel
recommended to discontinue the urology clinic.
(Id.)
On September 18, 2006, Dr. V. Selyutin at
FSP evaluated Mr. Bell's complaints by
examining his testicle. (Id.) Dr. Selyutin

7

The medical records reflect the name as "Dr. George G.
Miquel, Jr." See Def. Ex. F at 2, Consultant's Report.
- 11 -

found no evidence of abnormal enlargement of
the vein that is in the scrotum (varicocele),
no
testicular
mass,
and
no
testicle
abnormality. (Id.)
On April 24, 2007, Dr. J. Aviles at Union
CI evaluated Mr. Bell's complaints of pain on
his right testicle. (Id.) Dr. Aviles noted
no testicular masses and ordered a sonogram to
verify the lack of pathology. (Id.) The
sonogram was performed on June 5, 2007, and
showed an epididymis cyst on the right
testicle that measured about 7-8 mm in size
and reflected no evidence of any testicle
abnormalities. (Id.)
On July 2, 2007, Mr. W. Mathews, a
physician's assistant ("PA"), evaluated Mr.
Bell's complaints of intermittent soreness in
his testicles. (Id.)
During the times discussed here, PA's had
authority to provide medical care to a patient
while under appropriate supervision. The
supervising physician would be responsible for
reviewing the PA's clinical notations within
72 hours of the clinical consultation to
ensure that the PA's findings conformed with
the acceptable standards of medical care and
treatment, and would co-sign the notations
once the review is completed. The supervising
physician would not be personally required to
examine the patient.
At that time, I was Mr. Mathews'
supervising physician, and I reviewed the
findings recorded in Mr. Bell's medical
records, co-signing, the clinical notations.
On July 2, 2007, after an examine [sic], Mr.
Mathews found a small non-tender cyst, no
testicular mass, no pathology, and no new
treatment necessary. (Def. Ex. E.)
Mr.
Mathews instructed Mr. Bell that Tylenol for
pain relief was available as needed upon
request, discussed his findings, and discussed
the risks, benefits, adverse effect, and
Mr.
alternatives to treatments.
(Id.)

- 12 -

Mathews' clinical notations conformed with the
acceptable standards of medicine.
In the Complaint, Mr. Bell claims I
deprived him of treatment due to grievances
where he complains of medical mistreatment.
However, this is absolutely untrue.
At no
time have I deprived Mr. Bell of medical care,
or directed anyone to deprive him of care, in
response to his filing of any grievance or
appeal. I have not retaliated against Mr. Bell
in any way.
I am diligent in documenting my contacts,
diagnoses, and orders regarding patients under
my care and in reviewing the health care of
the medical providers I supervised. Proper
care was provided to Mr. Bell to the best of
my
medical
training,
knowledge,
and
experience.
After Mr. Bell was released from the FDOC
in
September
2007,
he
was
immediately
transferred to the FCCC (Resident No. 991049).
On September 20, 2007, he underwent a medical
history and physical examination where he
provided no noted complaints regarding the
aforementioned cyst. (Def. Ex. L.) The FCCC
records also reflect that he also did not
discuss any issue relating to the cyst or his
testicles for the following nine (9) months
until he complained of a laceration on his
testicle. (Def. Ex. M.)
In this federal action, Mr. Bell has
attached claims for negligence and medical
malpractice under the laws of the State of
Florida. However, to date, I have not received
any notice by mail of Mr. Bell's claim by Mr.
Bell or by anybody representing him (i) of his
intent to initiate litigation for medical
negligence, (ii) with a list of health care
providers who treated Mr. Bell before or after
the times relevant to this action, and (iii)
with
an
affidavit
with
supporting
documentation from any medical health care
provider who has provided any opinion on Mr.
Bell's behalf that specifies how in his/her
- 13 -

opinion my actions were allegedly negligent
resulting in injury to Mr. Bell.
Madan's Declaration at 1-3, paragraphs 1-16.
Consistent

with

Defendant

Madan's

chronology,

Defendant

Selyutin, in his Declaration, avers that he provided proper medical
care to Bell and never retaliated against him.

Selyutin opines

that the medical records show that "there is no factual basis to
support Mr. Bell's allegations."
paragraph 5.

Selyutin's Declaration at 2,

Selyutin states that, on September 18, 2006, he

reviewed Bell's medical history, evaluated Bell's complaints of
testicular pain, and examined Bell's testicle. Id. at 2, paragraph
8.

As a result of that September 18th exam, Selyutin found "no

evidence of abnormal enlargement of the vein that is in the scrotum
(variococele), no testicular mass, and no testicle abnormality."
Id.
Moreover, Defendant Mathews avers that he provided proper
medical

care

knowledge,

to

and

Bell

to

the

experience

and

best

of

never

Mathews' Declaration at 3, paragraph 16.

his

medical

retaliated

against

him.

He states, in pertinent

part:
On July 2, 2007, I reviewed his medical
history, conducted an exam of his testicles,
and evaluated Mr. Bell's complaints of
intermittent soreness in his testicles.
I
found a small non-tender cyst, no testicular
mass, no pathology, and no new treatment
necessary. (Id.) Consequently, I determined
that no new treatment was necessary. (Id.) I
then instructed Mr. Bell that Tylenol for pain
- 14 -

training,

relief was available as needed upon request,
discussed my findings, and discussed the
risks,
benefits,
adverse
effect,
and
alternatives to treatments. (Id.)
During the times discussed here, PA's had
authority to provide medical care to a patient
while under appropriate supervision.
The
supervising physician would be responsible for
reviewing the PA's clinical notations within
72 hours of the clinical consultation to
ensure that the PA's findings conformed with
the acceptable standards of medical care and
treatment, and would co-sign the notations
once the review is completed. The supervising
physician would not be personally required to
examine the patient.
During the July 2007
consult, Dr. E. Madan was my supervising
physician.
Shortly after the July 2007 examination,
the results of Mr. Bell's June 2007 sonogram
became available to me. (Def. Ex. F.) This
sonogram, as well as, the prior medical
consults confirm my July 2007 assessment.
Mr. Bell also alleges that, during the
July 2007 exam, I stated, "There is no cure
for the cyst on your testicles; and we cannot
treat the cysts" and "You will be going home
soon and can see a doctor when you get out of
prison." However, these alleged 'quotations'
are untrue.
At absolutely no time would I
state that there is no hope, no cure, or no
treatment for a medical condition, or any
similar negative statements. Instead, I would
inform the patient that treatment is not
indicated at present.
Regarding the second
alleged 'quotation,' if a[n] inmate patient is
about to be released from FDOC custody, I
would instruct him to visit a physician if the
problem continues.
In the Complaint, Mr. Bell claims I
deprived him of treatment due to grievances
where he complains of medical mistreatment.
However, this is absolutely untrue.
At no
time have I deprived Mr. Bell of medical care
- 15 -

in response to his filing of any grievance or
appeal.
I have not retaliated against Mr.
Bell in any way.
Mathews' Declaration at 2-3, paragraphs 10-15.
While Bell disagrees with the treatment provided to him by the
Defendants, he nevertheless fails to state a federal constitutional
claim of deliberate indifference.

See Estelle, 429 U.S. at 107.

Bell opines that proper medical treatment would have been a
referral to a urologist and "readily available pain medications."
Complaint at 9B, 9E.

The record, however, reflects that the

Defendants provided proper medical care to Bell relating to the
cyst on his right testicle.
While Bell's allegations pertaining to the Defendants in this
case concern a time span of approximately eleven months from
September 12, 2006, through August 2007, see Complaint at 9B, 9D,
9F; P. Exs. C; O; X; MM, his complaints about his right testicle
started eight years earlier in 1998.

On September 11, 1998, while

incarcerated at Union Correctional Institution, Bell requested to
be tested for testicular cancer; Dr. H. Mach, M.D., saw Bell
regarding his complaints of a pea size mass on his right testicle.
Def. Ex. E at 2.

In response, Dr. Mach ordered a testicular

ultrasound (sonogram) and referred Bell to Dr. George Miquel, Jr.,
M.D., a urologist for a consultation.

Def. Ex. F at 1-3.

The

ultrasound, dated September 17, 1998, indicated: "On the right
side, there is a small anechoic structure adjacent to the upper

- 16 -

part of the testicle measuring 8 mm in size which is consistent
with a small epididymal cyst."
"small right epididymal cyst."

The conclusory impression was a
Id. at 3.

An epididymal cyst (spermatocele) is a retention cyst that is
not considered life threatening unless there is an observable
increase in size.

See Madan, Selyutin, and Mathews' Declarations

at 2, paragraph 6.
The [epididymal] cyst may fluctuate slightly
as the fluid within the cyst is spermatozoa,
but this is not the cause of the patient's
symptoms. The types of symptoms to observe are
redness, pain, and swelling in the scrotum.
Small cysts are best left alone as are larger
cysts that are an asymptomatic condition, and
only when they are causing discomfort and
increasing in size should additional [medical]
treatment be considered, such as surgery
(spermatocelectomy).
Id.
On October 1, 1998, Dr. Miquel consulted with Bell and
documented that he had found no serious pathology, no asymptomatic
growth, no testicular masses, and that the cyst was benign.

Def.

Ex. F at 2; Madan, Selyutin, and Mathews' Declarations at 2,
paragraph 7.

With such findings, Dr. Miquel recommended to

discontinue the urology clinic.
Almost

eight

years

later,

Id.
on

September

12,

2006,

while

incarcerated at FSP, Bell submitted a sick call request to the
medical department with concerns relating to a cyst on his right
testicle.

Complaint at 9B; P. Ex. C.

- 17 -

In the sick call request, he

stated that the problem or symptoms "[s]tarted about a week ago"
and that it "hurts" and is "painful."

P. Ex. C.

In response to

that request, Defendant Selyutin examined Bell on September 18,
2006.

Complaint at 9B; Def. Exs. E at 5; F at 5.

Selyutin

reviewed Bell's medical history, evaluated his complaints of pain,
and then examined his testicles.
paragraph 8.

Selyutin's Declaration at 2,

As a result of the examination, Selyutin found no

evidence of varicocele (the abnormal enlargement of the vein in the
scrotum), no testicular mass, and no testicle abnormality.

Id.;

Def. Ex. E at 5.
On October 18, 2006, Bell submitted another sick call request
to the FSP medical department regarding the cyst on his right
testicle.

Complaint at 9C.

20, 2006.

Bell was seen in sick call on October

Def. Ex. G at 3.

When he was not referred to a

physician, Bell filed a grievance, alleging that he was not
properly examined.

Def. Ex. G at 1-2.

In response to that

grievance, Defendant Madan stated that Bell had been seen by Dr.
Selyutin

on

"appropriately

September
assessed

18th,
and

abnormality had been found.

at

which

evaluated"

time

and

he

that

Def. Ex. G at 3.

no

had

been

testicle

Moreover, Madan

noted that "[w]hen you were again seen through sick call on 10-2006 you as well offered no new findings and as such there was no
justification for any further physician referral.

- 18 -

It will remain

your current institutional physician who decides all courses of
treatment."

Id.

In response to another grievance submitted by Bell, dated
March 1, 2007, see Def. Ex. H at 1-2, Defendant Selyutin stated:
[T]he information you provided has been
reviewed. Review shows you were seen through
sick call on 10-20-06 regarding your testicle
pain and have not presented through sick call
since that time. You were seen on 09-18-06
and the physician had no findings to your
claim of any cyst on your testicle. You have
the option of taking your concern through sick
call. You will be treated based on verified
medical symptoms, and it will be your current
institutional physician who will decide all
courses of treatment.
Def. Ex. H at 3.
On April 24, 2007, Bell had a consultation with Dr. J. Aviles,
M.D., for complaints of pain in his right testicle.
6.

Def. Ex. F at

Dr. Aviles found no masses and ordered an ultrasound to verify

the lack of pathology. Id.; Madan's Declaration at 2, paragraph 9.
The ultrasound, dated June 5, 2007, indicated an epididymis cyst on
the right testicle, measuring approximately 7-8 millimeters in
diameter, and also indicated that there was no evidence of any
testicle abnormalities.

Id.; Def. Ex. H at 5.

On June 28, 2007,

Dr. Aviles responded to Bell's grievance, stating that Bell's
medical call-out was rescheduled for July.

Def. Ex. I at 3.

Defendant Mathews saw Bell on July 2, 2007, for Bell's
complaints of intermittent soreness in his testicles.
Declaration at 2, paragraph 10; Def. Ex. E at 6.
- 19 -

Mathews'

Mathews examined

Bell's testicles and found a small non-tender cyst, no testicular
mass, and no pathology.
evaluation,

Mathews

Id.

As a result of the examination and

determined

that

"no

new

treatment

was

necessary," instructed Bell that Tylenol for pain relief was
available as needed upon request, and discussed his findings with
Bell.

Id.

After the consultation, Defendant Madan, who was

Mathews' supervising physician, reviewed the clinical notations and
determined that Mathews' findings "conformed with the acceptable
standards of medicine."
Def. Ex. E at 6.
examination,

the

Madan's Declaration at 3, paragraph 12;

Moreover, shortly after Mathews' July 2nd
results

of

Bells'

June

5th

sonogram

became

available to Mathews, see Def. Ex. F at 6, and confirmed Mathews'
assessment of Bell's complaints, see Mathews' Declaration at 3,
paragraph 13.
Mathews, in his Declaration, stated that he neither stated
that "there is no hope, no cure, or no treatment" for Bell's
medical condition nor made any other "similar negative statements."
Mathews' Declaration at 2, paragraph 14.

Instead, Mathews averred

that he would have informed Bell "that treatment is not indicated"
at the present time, and that, if an inmate patient was scheduled
for release, he would have instructed that patient to visit a
physician if the medical problem continued.

Id.

On July 12, 2007, Bell filed another grievance, stating that
Mathews had examined his testicles on July 2nd and had concluded

- 20 -

that there was no cure or treatment for the cyst on Bell's right
testicle.

Def. Ex. J at 1-3.

Defendant Selyutin denied the

grievance, stating in pertinent part:
Review shows that on 7-2-07 you were seen,
assessed, evaluated, and educated by Mr.
Mathews regarding your testicle concern. You
admitted to him that you had mild soreness
intermittently only and that you would be
going home in a few days and no limitations
were described.
You were in no acute
distress. Examination showed your testicles
descended, cords okay, small non-tender cyst
palpated, testicles without masses/tenderness,
rings tight no express[i]ble discharge or skin
lesions.
There was no treatment indicated.
Your allegations of recklessness, causing
serious harm, risk to your well-being and
being in danger, depriving [you] of medical
treatment is unfounded. It will remain your
current institutional physician who will
decide all courses of treatment. Your wanting
something does not medically justify your
receiving it.
Def. Ex. J at 4, dated July 26, 2007.
Bell had a sick call consultation with D. Johnson, a clinical
associate,

on

July

24,

2007.

Def.

Ex.

F

at

7.

At

that

examination, Johnson determined that Bell had been seen by Mathews
on July 2nd and that no further treatment was required.

Id.

Bell

submitted additional grievances concerning the cyst on his right
testicle, see Def. Exs. J at 5-8; K at 1, 3, and the department
responded that medical personnel had provided appropriate medical
care, see Def. Exs. J at 9; K at 2, 4.
On September 15, 2007, Bell was released from the custody of
the Florida Department of Corrections (FDOC). Def. Ex. A at 3; see
- 21 -

http://www.dc.state.fl.us/InmateReleases (showing a release date of
September 15, 2007).

Thereafter, Bell was admitted to the Florida

Civil Commitment Center (FCCC), and his medical condition was
assessed on September 20, 2007.

Def. Ex. L.

At that examination,

the history of present illness (HPI) on the medical history and
physical form stated:
This is a 44-year old new admission to the
facility with no chronic medical conditions.
He has no chronic complaints other than not
being able to receive Seroquel, which he was
on for sleep.
Id. at 1.

Bell denied any testicular disorders.

Id. at 2.

After

the physical examination, which included the genitalia, the finding
was: "[n]ormal history and physical examination."

Id. at 3.

The

medical records reflect that Bell did not discuss any medical issue
relating to his testicles with the medical staff until June 26,
2008, when he complained about a laceration on his testicle.

Id.

at 3; Madan's Declaration at 3, paragraph 15.
While detained at FCCC, Bell submitted several sick call
requests to the FCCC officials concerning the pain caused by the
cyst.

Bell's Declaration at 7; P. SJ Exs. C-1; C-2; D-1.

Bell's

FCCC medical records reflect that Howard Pinsky, an Advanced
Registered Nurse Practitioner,8 examined Bell on June 26, 2008, at
which time he diagnosed the condition as an epididymitis cyst and
treated the condition with Ciprofloxacin. Bell's Declaration at 7;

8

See P. SJ Ex. D-15 (showing Pinsky's signature and title).
- 22 -

P. SJ Ex. D-3.
cyst.

Thereafter, Bell was treated for the epididymal

P. SJ Exs. D-5 through D-10.

On September 2, 2008, Dr.

Lamour, the Chief Officer at FCCC, saw Bell and ordered follow-up
sonograms to monitor the cyst.

P. SJ Exs. D-11; D-12; D-14; D-21.

Defendants contend that Bell has not demonstrated that his
condition constituted a serious medical need.
Motion for Summary Judgment at 10-11.

See Defendants'

The medical records for the

relevant time period (September 2006 through August 2007) reflect
that Bell's condition did not worsen or deteriorate, did not
constitute a condition that required a second consultation with a
urologist, and was not life threatening.

First, Bell received an

ultrasound in September 1998 and another one again in June 2007.
See

Def.

Ex.

F

at

3,

6.

Both

ultrasounds

were

conducted

approximately nine years apart and showed no increase in the size
of the cyst, which measured approximately 8 millimeters in both
ultrasounds.

Id.

Second, in October 1998, a physician sent Bell

to a urologist, and after that consultation, the urologist found
nothing serious enough to justify another urological consultation.
Id. at 1-2.

Moreover, the type of cyst in this circumstance is not

considered life threatening unless the cyst increases in size and
results in the following symptoms in the scrotum: redness, pain,
and swelling.

Madan, Selyutin, and Mathews' Declarations at 2,

paragraph 6.

- 23 -

Over a span of nine years (1998-2007), the FDOC medical
providers agreed that Bell did not suffer from a serious condition
that

justified

additional

specialized

medical

treatment.

Additionally, while Bell alleges that the Defendants ignored a
painful condition that he continued to endure, once Bell was
released from FDOC custody, he did not report any testicular pain
upon his admission to FCCC.

See Def. Exs. L; M.

Nevertheless,

even assuming that Bell has satisfied the objective component by
showing that he had a serious medical need, he has not shown
deliberate indifference on the part of the Defendants.

And, while

Bell disagrees with the course of treatment chosen by the medical
providers, Defendants' medical decisions were in accordance with
acceptable

standards

of

medicine.

See

Madan,

Selyutin,

and

Mathews' Declarations.
Because the Defendants have met their initial burden of
showing that there is no genuine dispute as to any material fact
and that they are entitled to judgment as a matter of law,
Plaintiff is required to present his own documentation (affidavits,
depositions, answers to interrogatories, admissions on file, etc.)
to show that there is a genuine issue for trial.

Plaintiff has

failed to provide any medical evidence to support his claim that
the Defendants were deliberately indifferent to his serious medical
needs during the relevant time period.

In the Complaint and

opposition to the summary judgment, Plaintiff acknowledges that he

- 24 -

received medical attention from the Defendants, but yet opines that
they should have provided a different course of treatment, such as
referral to a urologist and prescription strength medications.
Bell has not provided any competent evidence to rebut the
Defendants' evidence, which establishes that Defendants Madan,
Selyutin and Mathews' actions do not constitute an Eighth Amendment
violation.

Given Bell's symptoms from September 2006 through

August 2007, Defendants Madan, Selyutin, and Mathews followed the
proper medical protocols and procedures for the treatment of the
cyst on Bell's right testicle.

Indeed, Bell's "disagreement with

the course of treatment" chosen by the medical providers "does not
'support a claim of cruel and unusual punishment.'"

See Moots v.

Sec'y, Dep't of Corr., 425 Fed.Appx. 857, 858 (11th Cir. 2011) (per
curiam) (quoting Harris, 941 F.2d at 1505) (not selected for
publication in the Federal Reporter). Accordingly, this Court will
grant Defendants' Motion for Summary Judgment with respect to
Plaintiff's Eighth Amendment claim of deliberate indifference to
his serious medical needs.
B. Retaliation
Plaintiff claims that the Defendants refused to provide proper
medical care and treatment for the cyst as retaliation against him
for his filing of grievances.

See Complaint at 8C, 9C-9D.

"The First Amendment forbids prison
officials from retaliating against prisoners
for exercising the right of free speech."
Farrow v. West, 320 F.3d 1235, 1248 (11th Cir.
- 25 -

2003). "It is an established principle of
constitutional
law
that
an
inmate
is
considered
to
be
exercising
his
First
Amendment right of freedom of speech when he
complains to the prison's administrators about
the conditions of his confinement." Smith v.
Mosley, 532 F.3d 1270, 1276 (11th Cir. 2008)
(citing Farrow, 320 F.3d at 1248).
An inmate may maintain a cause of action
for retaliation under 42 U.S.C. § 1983 by
showing that a prison official's actions were
"the result of [the inmate's] having filed a
grievance concerning the conditions of his
imprisonment."
Farrow, 320 F.3d at 1248
(quotation marks omitted and emphasis added).
To establish a First Amendment retaliation
claim, a prisoner need not allege the
violation of an additional separate and
distinct constitutional right; instead, the
core of the claim is that the prisoner is
being retaliated against for exercising his
right to free speech. Id. To prevail on a
retaliation claim, the inmate must establish
that: "(1) his speech was constitutionally
protected; (2) the inmate suffered adverse
action such that the [official's] allegedly
retaliatory conduct would likely deter a
person of ordinary firmness from engaging in
such speech; and (3) there is a causal
relationship between the retaliatory action
[the refusal to provide proper medical care]
and the protected speech [the grievance]."
Mosley, 532 F.3d at 1276.
O'Bryant v. Finch, 637 F.3d 1207, 1212 (11th Cir. 2011) (per
curiam) (footnote omitted).
In Defendants' declarations supporting the summary judgment
motion, they aver that they "have not retaliated against Mr. Bell
in any way."

Madan's Declaration at 3, paragraph 13; Selyutin's

Declaration at 2, paragraph 9; Mathews' Declaration at 3, paragraph
15.

Specifically, they state that they did not deprive Bell of
- 26 -

medical care or direct anyone to deny him medical care in response
to Bell's filing of any grievance or appeal.

Id.

In response to

Defendants' declarations, Plaintiff relies upon his declaration, in
which he avers that the Defendants deprived him of proper medical
care as retaliation for his filing of grievances and for filing a
prior civil rights action that was settled out of court in June
2006 (Case No. 3:03-cv-596-J-32HTS).

See Bell's Declaration at 2,

paragraph 7.
Even assuming arguendo that Plaintiff has established the
first two prongs, he has failed to allege sufficient facts to
support the third prong.

In Williams v. Brown, 347 Fed.Appx. 429,

435 (11th Cir. 2009) (per curiam) (not selected for publication in
the Federal Reporter), the Eleventh Circuit upheld the district
court's dismissal of a retaliation claim as vague and conclusory,
noting the following:
Although Williams's complaint alleges
that a constitutional violation occurred, the
complaint fails to allege facts that associate
Johnson or Tompkins with that violation.
Williams simply asserts that "Brown, Johnson,
and Tompkins subjected [him] to a retaliatory
negative transfer twice as far from [his]
family. . . ." This assertion does not raise
his right to relief against Johnson and
Tompkins above the speculative level. Twombly,
550 U.S. at 555, 127 S.Ct. at 1965.[9]
Accordingly, the district court correctly
dismissed Williams's complaint against Johnson
and Tompkins.

9

Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007).
- 27 -

Summary judgment is proper on Plaintiff's retaliation claim
since he "has not established a causal relationship" between his
filing of grievances (and a prior civil rights action) and the
Defendants' alleged actions.

Farrow, 320 F.3d at 1249 (citing

Avirgan v. Hull, 932 F.2d 1572, 1577 (11th Cir. 1991) ("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.")).

"The evidence presented

cannot consist of conclusory allegations or legal conclusions."
Avirgan, 932 F.2d at 1577 (citation omitted).

Plaintiff's mere

assertion that he was a known writ-writer at FSP is insufficient to
establish a causal connection between his filing of grievances and
a prior civil rights action and the Defendants' alleged refusal to
provide medical treatment for the cyst on his right testicle.
Declaration at 2, paragraph 7.

See

Indeed, Defendants have met their

initial burden of showing the absence of a genuine issue of
material fact, and Plaintiff has not come forward with sufficient
evidence to rebut this showing with affidavits or other relevant
and admissible evidence. Therefore, Defendants' Motion for Summary
Judgment will be granted with respect to the retaliation claim.

- 28 -

C. Qualified Immunity
Defendants
immunity.

contend

that

they

are

entitled

to

qualified

Defendants' Motion for Summary Judgment at 21-22.
To receive qualified immunity, [a] public
official must establish that he was engaged in
a "discretionary function" at the time he
committed
the
allegedly
unlawful
act.
Holloman ex. rel. Holloman v. Harland, 370
F.3d 1252, 1263-64 (11th Cir. 2004) . . . .
If the official demonstrates that he was
engaged in a discretionary function, the
burden shifts to the plaintiff to prove that
the official is not entitled to qualified
immunity.
Cottone v. Jenne, 326 F.3d 1352,
1358 (11th Cir. 2003).
This requires
plaintiff to satisfy the two-part test
prescribed by the Supreme Court in Saucier v.
Katz, 533 U.S. 194, 121 S.Ct. 2151, 150
L.Ed.2d 272 (2001).
Under Saucier, a
plaintiff must first show that the defendant
violated a constitutional right and then
demonstrate that the constitutional right was
clearly established at the time of the alleged
wrongful act. 533 U.S. at 201, 121 S.Ct. at
2156.
If a court, after viewing all the
evidence in the light most favorable to the
plaintiff and drawing all inferences in his
favor, determines that the plaintiff has
satisfied
these
two
requirements,
the
defendant may not obtain qualified immunity.
Holloman, 370 F.3d at 1264.

Bryant v. Jones, 575 F.3d 1281, 1295 (11th Cir. 2009), cert.
denied, 130 S.Ct. 1536 (2010). Following the United States Supreme
Court's decision in Pearson v. Callahan, 129 S.Ct. 808, 815-16
(2009), this Court is "free to consider these elements in either
sequence and to decide the case on the basis of either element that
is not demonstrated."

Youmans v. Gagnon, 626 F.3d 557, 562 (11th

Cir. 2010).
- 29 -

It is undisputed that Defendants were engaged in discretionary
functions during the events in question.

Defendants did not

violate

and

Plaintiff's

constitutional

rights

are

therefore

entitled to qualified immunity.
D. Pendent State Law Claims
Under 28 U.S.C. § 1367(a), a district court may exercise
supplemental jurisdiction over state law claims related to the
federal court action.

Defendants contend that since Bell has

failed to state a claim under the Eighth Amendment or First
Amendment, then accordingly, the Court should decline to exercise
supplemental jurisdiction over his state law claims.
Motion for Summary Judgment at 23-24.

Defendants'

Since Plaintiff's Eighth

Amendment and First Amendment claims have not survived the summary
judgment

stage,

this

Court

will

not

exercise

supplemental

jurisdiction over Plaintiff's state law claims.

See 28 U.S.C. §

1367(c)(3)

may

(stating

that

the

district

courts

decline

to

exercise supplemental jurisdiction over a claim under § 1367(a)
when the court has dismissed all claims over which it has original
jurisdiction).
E. Conclusion
This Court finds that Defendants have met their initial burden
of showing, by reference to affidavits and other documentary
evidence, that there are no genuine issues of material fact that
should be decided at trial with respect to Plaintiff's claims

- 30 -

against

them.

appropriately

Defendants
addressed

have

presented

Plaintiff's

evidence

medical

needs,

that
were

they
not

deliberately indifferent to those needs, and did not retaliate
against Plaintiff.

Given the strong and consistent statements of

the Defendants and the lack of any other factual evidence to
support Plaintiff's claims, this is the type of case as to which
summary judgment is appropriate.

See Kesinger v. Herrington, 381

F.3d 1243, 1247 (11th Cir. 2004) (stating "a mere scintilla of
evidence

in

support

of

the

nonmoving

party's

position

is

insufficient to defeat a motion for summary judgment"). Thus, this
Court concludes that no reasonable jury could believe, based upon
the evidence of record, that the Defendants were deliberately
indifferent to Plaintiff's serious medical needs or that they
retaliated against him.
Under these circumstances, the undersigned concludes that
there are no disputed facts to be tried by a jury and that summary
judgment

in

favor

of

the

Defendants

is

due

to

be

entered.

Accordingly, Defendants' Motion for Summary Judgment (Doc. #86)
will be granted, and judgment will be entered in their favor.
Therefore, it is now
ORDERED AND ADJUDGED:
1.

Defendants' Motion for Summary Judgment (Doc. #86) is

GRANTED.

- 31 -

2.

The Clerk shall enter final judgment in favor of the

Defendants.
3.

This Court will not exercise supplemental jurisdiction

over Plaintiff's state law claims, and therefore those state law
claims are DISMISSED without prejudice.
4.

The Clerk of Court shall close this case.

DONE AND ORDERED at Jacksonville, Florida this 7th day of
February, 2012.

sc 2/7
c:
Gregory V. Bell
Counsel of Record

- 32 -