Epperson v. Smith et al
Filing
97
ORDER granting 83 Motion for summary judgment; granting 85 Motion for summary judgment; granting 92 Motion for summary judgment, Defendant Edwin G. Buss is dismissed with prejudice; Secretary Michael D. Crews is substituted for the official cap acity claims for Secretary Kenneth Tucker; Defendant Jane Doe, LPN, a fictitious party, is dismissed with prejudice; Defendant D. Hall, LPN, is dismissed with prejudice as the claims against her are frivolous; any claims for injunctive relief are dismissed as moot; instructions to the Clerk. Signed by Judge Roy B. Dalton, Jr. on 1/11/2013. (LDO)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
RODNEY C. EPPERSON,
Plaintiff,
v.
Case No. 3:11-cv-182-J-37MCR
PAGE A. SMITH, M.D., et al.,
Defendants.
ORDER
I.
Status
Plaintiff, a pro se former inmate, is proceeding on an Amended
Complaint (Amended Complaint) (Doc. #28), filed on August 11, 2011,
pursuant to the mailbox rule.1
Defendant Jorge Delgado, MD's July
9, 2012, Motion for Summary Judgment (Doc. #83), Defendant's, Dr.
Francisca Ledesma's July 20, 2012, Motion for Summary Judgment (Doc.
#85), and the August 3, 2012, Corrected Motion for Summary Judgment
by Defendants Smith, Isra, Gonzalez, Gaxiola, Willis, Davis, and
Tucker (Corrected Motion) (Doc. #92) are pending before the Court.
Although Defendant Buss is not mentioned in the title of the
Corrected Motion, he is listed as one of the Defendants in the body
1
The original Complaint (Doc. #1) was filed on February 23,
2011, pursuant to the mailbox rule.
of the Corrected Motion and is referenced as the former Secretary
of the Florida Department of Corrections (FDOC) as well. Plaintiff,
on October 1, 2012, filed an Opposition to Defendant Gorge Delgado,
M.D.'s Motion for Summary Judgment (Doc. #96).2
He did not file any
responses to the other motions for summary judgment.3
With regard to Defendant Buss, he was served in his official
capacity as the Secretary of the FDOC.
#38).
Return of Service (Doc.
Since Defendant Buss is no longer the Secretary of the FDOC,
Defendant Secretary Michael D. Crews is automatically substituted
as the Defendant Secretary for the official capacity claims in this
action pursuant to Rule 25(d), Fed. R. Civ. P. Therefore, Defendant
Buss, who remained in the case only in his official capacity,4 is
due to be dismissed from this action with prejudice.
In
addition,
Defendant
Kenneth
Tucker
was
automatically
substituted for Edwin Buss for the official capacity claims in this
action against the Secretary of the FDOC.
Since Defendant Tucker
2
Plaintiff was made aware of the provisions for responding to
a motion for summary judgment in the Court's Order (Doc. #8), filed
May 2, 2011, and given an opportunity to respond to the Defendants'
motions for summary judgment.
3
Plaintiff Epperson filed an Opposition to Defendants Buss,
Davis, Gaxiola, Gonzalez, Smith, Willis, and Isra's Motion to
Dismiss (Doc. #71) on May 2, 2012, and attached Medical Records, an
Affidavit of Rodney C. Epperson, and Pain Management Records. The
Court will liberally consider this to be a response to the motions
for summary judgment.
4
Defendant Buss was dismissed from this action, in his
individual capacity, on August 2, 2012. See Order (Doc. #91).
- 2 -
is no longer the Secretary of the FDOC, Defendant Secretary Michael
D. Crews is automatically substituted as the Defendant Secretary for
the official capacity claims in this action pursuant to Rule 25(d),
Fed. R. Civ. P.
Upon review, the Court will dismiss Defendant Jane Doe, LPN.
As a general matter, fictitious-party pleading is not permitted in
federal court; particularly, when the description is insufficient
to identify the defendant among the many other nurses employed by
the FDOC. See New v. Sports & Recreation, Inc., 114 F.3d 1092, 1094
n.1 (11th Cir. 1997).
To date, Plaintiff has not identified nurse
Jane Doe, the fictitious party.
Therefore, she is due to be
dismissed from the case.
Defendant D. Hall, LPN, was served with the Amended Complaint.
See Doc. #43.
She requested an extension of time to respond (Doc.
#55), and was granted that request; however, she never submitted a
response to the Amended Complaint. With regard to the claims raised
against her, a review pursuant to 28 U.S.C. § 1915(e)(2)(B) will be
undertaken.
The remaining Defendants are Dr. Page A. Smith; Dr. Francisca
Ledesma; Dr. Jorge Delgado; Dr. Paiboon Isra; Warden Don Davis;
Assistant Warden Michael L. Willis; Dr. Dora Gaxiola; Dr. M.
Gonzalez; D. Hall, LPN; and Michael D. Crews, the Secretary of the
Florida Department of Corrections, in his official capacity only.
The remaining claims are: (1) Claim 1, in which Plaintiff raises an
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Eighth Amendment claim against Defendants Smith, Ledesma, Delgado,
Isra,
Davis,
Willis,
Gaxiola,
Gonzalez,
and
Hall
for
being
deliberately indifferent to Plaintiff's serious medical needs; (2)
Claim 2, in which Plaintiff raises an Eighth Amendment claim against
Defendants Smith, Ledesma, Delgado, Isra, Davis, Willis, Gaxiola,
Gonzalez, and Hall for being deliberately indifferent to his serious
medical needs, and raises a claim against Defendant Davis for
creating or enforcing a policy that is deliberately indifferent to
Plaintiff's serious medical needs; and (3) Claim 3, in which
Plaintiff raises a First Amendment claim that Defendants Smith,
Ledesma, Delgado, Isra, Davis, Willis, Gaxiola, and Gonzalez have
retaliated against Plaintiff for using the administrative grievance
process.
As relief, Plaintiff seeks an award of compensatory and
punitive
damages.
He
also
seeks
unspecified
declaratory
and
injunctive relief.
II.
Standard of Review
"Summary judgment is appropriate if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with
the affidavits, if any, show there is no genuine issue as to any
material fact and that the moving party is entitled to judgment as
a matter of law."
Cir.
2008)
Crawford v. Carroll, 529 F.3d 961, 964 (11th.
(citing
Fed.
R.
Civ.
P.
56(c)
and
Wilson
B/E/Aerospace, Inc., 376 F.3d 1079, 1085 (11th Cir. 2004)).
- 4 -
v.
"The moving party bears the initial burden of showing the
court, by reference to materials on file, that there are no genuine
issues of material fact that should be decided at trial."
Allen v.
Bd. of Pub. Educ. for Bibb Co., 495 F.3d 1306, 1313 (11th Cir. 2007)
(citations omitted).
"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 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) (citing Celotex, 477 U.S. at
324, 106 S.Ct. 2548).[5]
Id. at 1314.
III.
The Amended Complaint
The following factual allegations in the Amended Complaint are
relevant to the remaining claims against the remaining Defendants.
On June 10, 2010, Plaintiff was received into the FDOC at Central
Florida Reception Center and advised the medical staff that he had
been paralyzed in his lower extremities and underwent surgery for
decompression of the spinal cord, fusion with plating, and had
severe neurological damage.
He advised them he was in constant,
severe pain, and he had not has been provided with his prescribed
medications for pain and spasms since May 24, 2010. He was referred
to a physician who issued medical passes for a personal wheelchair
5
Celotex Corp. v. Catrett, 477 U.S. 317 (1986).
- 5 -
and a low bunk.
On June 11, 2010, Plaintiff completed a health
appraisal form, listing spinal cord damage, chronic pain, and severe
nerve damage.
On June 18, 2010, Plaintiff was examined by Mercede Cabaliero,
M.D., and she informed Plaintiff that there was no documentation of
his diagnosed medical conditions or medications prescribed by the
Florida Avenue Pain Center or U-Care Clinic.
She advised that the
medical records staff would call out to obtain the records.
Dr.
Cabaliero prescribed Baclofen and issued medical passes for one year
for a personal wheelchair, a low bunk, low tier housing, and shoes
and a hat.
Medical records staff failed to make the call out to
obtain the outside medical records.
On July 6, 2010, Plaintiff was transferred to the Reception and
Medical Center (RMC) for a consultation with a cardiologist. During
the screening process, Plaintiff informed medical staff of his preexisting medical condition, including suffering from constant severe
pain and spasms, stress and depression, loss of appetite, lack of
sleep, and anxiety attacks.
He explained that his condition was
aggravated by the lack of prescribed medications.
Plaintiff was
told to access sick-call.
On July 12, 2010, Plaintiff went to the RMC Emergency Room,
complaining of severe chest pains, asthma attacks, and severe pain
in his neck, back, legs, hands and feet.
Plaintiff informed
Defendant Smith of his medical condition and that he had been on
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pain management medication since 2003 due to his spinal cord injury.
Defendant Smith informed Plaintiff he was opiate dependant, and then
prescribed nitroglycerin and advised Plaintiff to access sick-call.
On July 13, 2010, Plaintiff re-injured his left shoulder trying
to wheel his wheelchair up the steep sidewalk to J-dorm.
Plaintiff
advised Ms. Eberhard in Mental Health that he had re-injured his
shoulder and that he was in pain from his daily activities.
Ms.
Eberhard advised Plaintiff to ask the medical records department to
obtain his pain management records.
She advised that she could not
assist Plaintiff with medical issues.
Plaintiff, on July 19, 2010, accessed sick-call and told Nurse
Johnson about his pain and spasms, his shoulder injury, and his need
for a refill of Baclofen for spasms.
Plaintiff was referred to a
physician and charged a medical co-payment of $5.00.
On July 21,
2010, Plaintiff discussed his issues with Defendant Dr. Ledesma.
She moved Plaintiff's left arm around to the point of pain, listened
to
Plaintiff's
records.
lungs,
and
looked
through
Plaintiff's
medical
She told Plaintiff that his records reflected that he was
opiate dependant, and now that he was in the FDOC, he was cured of
his dependancy.
A friend of Plaintiff's contacted the Central
Office to complain about Plaintiff's medical treatment.
On July 22, 2010, Plaintiff requested that Ms. Bielling obtain
his medical records from archives.
Ms. Bielling advised Plaintiff
he would be called out when the medical records arrived.
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Plaintiff
filed a medical grievance and an ADA complaint on August 1, 2010.
On August 4, 2010, Plaintiff was called to the medical records
department to review his records from 2000 to 2009.
He was advised
that the records would be kept in the medical records department for
physicians to review in treating Plaintiff.
When Plaintiff asked
Ms. Bielling for assistance in obtaining treatment, she told him she
would see if K. Herriott, ARPN, would evaluate Plaintiff.
Plaintiff declined to attend an appointment with Dr. Ledesma
on August 12, 2010, because Plaintiff believed she refused to
acknowledge his medical condition and refused to render treatment.
Plaintiff grieved his medical care, and the grievances were denied
by Defendant Smith and Secretary McNeil.
On August 18, 2010,
Plaintiff attended an appointment with K. Herriott, ARPN.
She
prescribed a 2800 calorie diet and ordered an x-ray for his shoulder
injury.
She sought to diagnose the cause of pain upon movement, to
obtain a consultation for the brace clinic, and to set up physical
therapy at the orthopedic clinic so Plaintiff could learn to walk.
On September 14, 2010, Plaintiff was escorted to Dr. Ledesma's
examination room for a wheelchair re-evaluation.
Dr. Ledesma
directed Plaintiff to get on the examination table, and Plaintiff
was able to get on the table.
She tapped his left knee with a
rubber instrument, and both legs responded spastically.
told her his medical condition.
Plaintiff
She decided to discontinue his
wheelchair. Plaintiff told her about his records from 2003-2009 and
- 8 -
the need for a wheelchair.
He said the neurologist recommended a
wheelchair because if Plaintiff kept falling down attempting to
walk, he might end up being paralyzed for life. Plaintiff explained
that his legs collapsed without cause because of severe neurological
damage from spinal cord compression, and that he could not walk up
and down RMC's huge compound.
Dr. Ledesma determined that a walker
with a seat for when Plaintiff got tired was advisable.
commented
that
Plaintiff
was
in
the
FDOC,
so
he
was
She
cured.
Plaintiff asserts that she denied requested medical treatment in
retaliation
for
complaints
grievances.
Dr. Ledesma ordered medical staff to seize Plaintiff's
wheelchair.
Plaintiff was transferred to a bench when both lower
extremities went spastic.
to
Central
Office
staff
and
other
The medical staff refused Dr. Ledesma's
directive to take Plaintiff's wheelchair and issue a walker with a
seat fearing liability for Plaintiff falling and injuring himself.
The medical staff informed Dr. Husseini of Dr. Ledesma's decision
to discontinue the wheelchair.
Plaintiff filed grievances about his medical care, which were
denied by Defendant Smith in retaliation for Plaintiff's complaints
to Central Office concerning Defendant Smith and Dr. Ledesma. These
grievances were denied by Secretary McNeil as well.
On September 16, 2010, Plaintiff was taken, by transport
wheelchair, to the RMC Emergency Room due to chest pains and severe
spasms.
Plaintiff complained about his medical care and Dr.
- 9 -
Ledesma's decision to discontinue his wheelchair.
Defendant Smith
said he was writing a consult for a cardiologist.
Defendant Smith
told Nurse Summerall to get Plaintiff out of the ER wheelchair,
which she did.
Plaintiff told her he could not walk to the dorm,
and she responded that was Plaintiff's problem.
Another inmate
attempted to assist Plaintiff to his dorm, but Plaintiff's leg went
spastic.
A sergeant ordered an inmate to transport Plaintiff in a
wheelchair to E-dorm, where Plaintiff's wheelchair was located.
Plaintiff was in severe pain with spasms and chest pains. Plaintiff
told the Mental Health Staff about the denial of medical treatment.
He continued to file grievances concerning the actions of Defendant
Smith
and
Nurse
Summerall.
These
grievances
were
denied
by
Defendant Smith and Secretary McNeil in retaliation for Plaintiff's
complaints.
On
a
call
out
to
Dr.
Husseini
on
September
Plaintiff's wheelchair medical pass was reinstated.
24,
2010,
Plaintiff
refused a medical call-out with Dr. Ledesma on September 28, 2010.
Plaintiff was seen by Dr. Vivas.
Plaintiff informed Dr. Vivas he
would be refusing to attend any scheduled appointments with Dr.
Ledesma due to her decision to discontinue Plaintiff's wheelchair
pass and her expressed belief that he was cured.
Dr. Vivas said he
would review Plaintiff's medical records from the Family Health Care
Florida Avenue Pain Center when they were received and would assess
- 10 -
Plaintiff's need for pain and spasm medications.
Dr. Vivas issued
medical passes for long johns and an extra cotton blanket.
On September 29, 2010, Plaintiff reviewed his pain management
records
received
from
the
Florida
Avenue
Pain
Center,
Plaintiff was a patient from February 2009 to May 2010.
where
Ms.
Bielling placed these records in Plaintiff's medical records for
physicians to be able to review when addressing Plaintiff's medical
condition.
Plaintiff's grievances were denied by Defendant
Smith in
retaliation for Plaintiff's complaints. Secretary McNeil denied the
grievance appeals.
Plaintiff
submitted an ADA Discrimination
Complaint to the United States Department of Justice.
Plaintiff saw Dr. Delgado on October 20, 2010. Plaintiff began
to describe his varied medical complaints, but Dr. Delgado told him
he was there to discuss why Plaintiff was not complying with the
2800 calorie diet. Plaintiff told Dr. Delgado that he went to every
meal, but he did not eat much because of his medical condition.
Plaintiff also told the doctor that his medical records from 2003
to 2009 were available.
Dr. Delgado said he was not concerned with
the medical records and other complaints, and he issued Plaintiff
a medical diet pass. On October 26, 2010, Plaintiff filed a medical
grievance concerning his shoulder injury and denial of medical
treatment.
- 11 -
Plaintiff attended
November 1, 2010.
his first physical therapy session on
It caused him severe pain and spasms, and
aggravated his shoulder injury, neuralgia, neck and back pain.
On
November 2, 2010, Plaintiff woke up in his wheelchair, screaming and
crying in pain and suffering from spasms.
On November 2, 2010,
Plaintiff was seen by the orthopedic surgeon to evaluate his
shoulder injury. Plaintiff described his medical condition and told
the surgeon he was not on any pain medication.
He was discharged
from the clinic with a recommendation for a neurology consultation.
On November 3, 2010, Plaintiff refused physical therapy because
he was in constant, severe pain and suffered from spasms.
On
November 19, 2010, Dr. Delgado conducted a wheelchair re-evaluation,
retaliating against Plaintiff for his complaints and undermining Dr.
Husseini's authority in reinstating the medical wheelchair pass on
September 24, 2010.
Dr. Delgado directed Plaintiff to sit in a
chair by his desk. Plaintiff transferred from his wheelchair to the
chair.
Dr. Delgado tapped Plaintiff's left knee with a rubber
instrument and both legs went spastic.
Dr. Delgado requested that
Plaintiff discontinue the use of the wheelchair.
Plaintiff tried
to present him with his medical and pain management records.
Plaintiff described being in constant severe pain with spasms,
suffering from a shoulder injury, and losing weight from not eating
and sleeping due to stress and anxiety attacks. Plaintiff requested
medication
and
medical
treatment.
- 12 -
Dr.
Delgado
said
he
was
submitting a neurology consultation request so that a determination
could be made as to whether Plaintiff should remain in a wheelchair.
He advised Plaintiff that he was not issuing a wheelchair medical
pass until the results of the neurology consultation were received.
Plaintiff told him that there was no medical procedure to correct
his severe neurological damage from the spinal cord compression, and
that he had seen neurologists in the past.
Plaintiff complained
about the RMC medical staff trying to cause him injury rather than
taking the time to review the medical records.
Dr. Delgado ordered
Plaintiff out of the examination room.
Plaintiff made a sick call request on December 13, 2010.
He
complained about his medical condition and the need for a wheelchair
assistant and presented a copy of his medical and pain management
records to Nurse Jane Doe.
She advised Plaintiff that he had an
upcoming neurology appointment and he could address his concerns at
that appointment.
request was denied.
Plaintiff requested to see Dr. Vivas, and that
Plaintiff was charged $5.00 as a medical co-
payment and given no medical treatment.
On December 16, 2010,
Plaintiff
Columbia
was
transferred
Institution Annex (CCI).
from
RMC
to
Correctional
During his medical screening, Plaintiff
related his medical condition and requested a wheelchair assistant.
He was advised to access sick call and to have his medical passes
converted from RMC to CCI passes.
- 13 -
Plaintiff accessed sick call on December 18, 2010.
Defendant
Allen told Plaintiff he had a neurology appointment scheduled and
an upcoming Chronic Clinic to address Plaintiff's medical concerns
with a doctor.
Plaintiff was charged a $5.00 co-payment and not
provided with medical treatment.
On December 30, 2010, Plaintiff attended the Chronic Clinic and
was seen by Defendant Dr. Isra.
medical
and
pain
acknowledge.
management
Plaintiff presented her with his
records,
which
she
refused
to
He also told her about his pain and spasms and the
medications he wanted her to prescribe.
She said, "he no hear,
don't talk, RMC no prescribe medications, I not, don't talk."
Plaintiff became irate and told her he was tired of being denied
medical treatment.
Dr. Isra responded: "don't talk."
Plaintiff
mentioned that his medical passes, including his diet pass, would
not be honored.
the office.
Dr. Isra told Plaintiff not to talk and to leave
She denied any medical treatment.
Plaintiff accessed sick call on January 5, 2011, and advised
Defendant Allen that he had not received converted medical passes.
She said she would have
the
doctor sign the medical passes.
Plaintiff presented his medical records and requested pain medicine
and treatment.
Defendant Allen did not provide medical treatment,
and Plaintiff was charged $5.00 medical co-payment. Defendant Allen
said she would write the medical passes.
- 14 -
On January 13 and January 14, 2011, food services denied
Plaintiff his 2800 calorie diet.
Dr. Isra directed Defendant
Gaxiola to review the medical records, and it was determined that
Plaintiff
did
not
meet
the
FDOC
standard) for the 2800 calorie diet.
criteria
(height
and
weight
Plaintiff said this was done
in retaliation for Plaintiff's use of the grievance procedure
against Defendant Isra.
Defendant Isra responded to Plaintiff's
medical grievances, along with Defendants Davis and Willis, denying
Plaintiff's requested medical treatment in retaliation for the use
of the grievance system.
Plaintiff told the Mental Health Staff that he was not sleeping
and eating, he was suffering from anxiety attacks and depression,
and his condition was due to constant pain and spasms and being
denied medical treatment.
Plaintiff's medical grievances were
denied by Defendants Isra, Davis, and Willis in retaliation for his
use of the grievance system.
Secretary Buss denied requested
treatment.
On February 25, 2011, Plaintiff accessed sick call seeking
treatment for pain and spasms, a medical diet, the repair of his
wheelchair foot pad, and a doctor's appointment.
Nurse Marshall
told Plaintiff that Defendant Davis required that Plaintiff had to
access sick call three times before a doctor's appointment could be
scheduled. A medical co-payment was charged, and Nurse Marshall did
not provide medical treatment.
- 15 -
On March 14, 2011, Plaintiff told the Mental Health Staff about
being denied medical treatment.
On March 21, 2011, Plaintiff was
transported to RMC for a neurology consultation per Dr. Delgado's
request.
Dr.
Gama,
a
neurologist,
examined
Plaintiff
and
recommended Baclofen for spasms, Tylenol #3 for pain and spasticity,
referral to pain management and return to the neurology clinic as
needed.
On March 23, 2011, Defendant Dr. Gonzalez prescribed
Baclofen and Tylenol #3, but placed a hold on Tylenol #3 until the
Baclofen was completed.
He noted the pain management referral.
On
March 23, 2011, Defendant Gonzalez requested authorization for
Baclofen for 180 days, which was approved.
It was issued in a
single dose format on March 25, 2011.
On April 8, 2011, Plaintiff accessed sick call requesting
medical treatment for pain and spasms, and complaining about nausea
and vomiting since taking Baclofen.
He complained about pain when
moving his left arm due to the shoulder injury.
Nurse Marshall
advised Plaintiff to discontinue the Baclofen.
Plaintiff was
charged the co-payment.
Plaintiff reported to the medical window
and refused the Baclofen based on the advice of Nurse Marshall.
Plaintiff
filed
medical
grievances
which
were
denied
by
Defendants Gaxiola and Davis in retaliation for his use of the
grievance procedure. Secretary Buss also denied Plaintiff's request
for
medical
treatment.
Defendant
Gaxiola
directed
Defendant
Gonzalez to prescribe an alternative pain medication for Tylenol #3.
- 16 -
Without consulting Plaintiff's medical records, Defendant Gonzalez
prescribed Motrin 600 mg. (Ibuprofen), which Plaintiff is allergic
to and the allergy is documented in Plaintiff's medical records.
When Plaintiff went to the medical window, he was issued Ibuprofen,
and Plaintiff advised the staff that he was allergic to Ibuprofen.
The
medication
was
taken
back,
but
Plaintiff
was
denied
the
opportunity to sign a refusal form.
Plaintiff filed grievances complaining that Secretary Buss
refused to respond to his medical grievance appeals within thirty
days, pursuant to the rules.
On May 27, 2011, Plaintiff accessed sick call to request a
referral to a doctor, as directed by Nurse Marshall.
Plaintiff
asked Nurse Allen to schedule an appointment with a doctor to represcribe pain medication since he was allergic to Motrin.
He
requested a referral to pain management and neurology clinic and
medical treatment for his shoulder injury and pain and spasms.
Nurse Allen said she was going to take Plaintiff's medical records
to Dr. Gonzalez, and she would schedule an appointment for the
following week.
She provided Plaintiff with eight packs of Tylenol
and a $5.00 medical co-payment was charged.
On June 2, 2011, Plaintiff filed a medical grievance, which was
denied
by
Defendants
Gaxiola
and
Davis
Plaintiff's use of the grievance system.
retaliation
for
Secretary Buss failed to
respond to the medical grievance appeals.
- 17 -
in
On June 16, 2011,
Plaintiff accessed sick call requesting treatment, pass renewal,
referral to pain management and neurology clinic, and medication for
his pain and spasms.
Nurse Hall told Plaintiff she was taking
Plaintiff's medical record to Dr. Gonzalez for his review.
Dr.
Gonzalez failed to provide medical treatment.
Plaintiff was seen on June 24, 2011, by Dr. Gonzalez in the
Chronic Clinic.
Gonzalez
and
Plaintiff presented multiple complaints to Dr.
attempted
management records.
to
provide
him
with
medical
and
pain
Epperson requested medical passes, sun block,
a straw hat, and pain medication.
Dr. Gonzalez responded that
Plaintiff should not tell him what to do as he is the doctor.
Dr.
Gonzalez did issue a medical pass for a straw hat.
Numerous prisoners at CCI received medical treatment from and
were prescribed narcotic pain medication by Dr. Gaxiola and Dr.
Gonzalez.
Plaintiff submitted a medical grievance to Defendant
Davis on June 27, 2011, asking for medical treatment.
Defendant
Gaxiola responded, stating that Plaintiff refused to take Baclofen,
without re-prescribing a medication or following the neurologist's
recommendations.
Defendants Gaxiola, Gonzalez, and Willis denied
Plaintiff medical treatment, and former Secretary Buss failed to
respond to medical grievance appeals.
On June 27, 2011, Plaintiff accessed sick call. Defendant Hall
informed Plaintiff that Secretary Buss had no money for special
doctors due to budget cuts.
On July 11, 2011, Plaintiff accessed
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sick call requesting medical treatment, including referral to pain
management and neurology clinics, and requesting the issuance of sun
block and a straw hat. Nurse Allen informed Plaintiff that the FDOC
no longer had speciality doctors at RMC, and RMC was being converted
to
medical
needs
housing.
Nurse
Burke
confirmed
that
the
institution could no longer purchase sun block and straw hats.
On July 14, 2011, Plaintiff informed Mental Health Staff that
he was not receiving medical treatment for his ailments.
On July
24, 2011, Plaintiff forwarded a request form to Nurse Everett asking
for an inmate assistant.
Supervisor Travis Rhoden.
This request was put on hold by RN
Plaintiff forwarded another request form
to Defendant Warden Davis and Travis Rhoden asking for medical
treatment.
Plaintiff has not received assistance from them.
IV.
A.
Findings of Fact and Conclusions of Law
Eighth Amendment Claims Against Defendant Jorge Delgado, M.D.
In order to prevail in a 42 U.S.C. § 1983 action, Plaintiff
Epperson must demonstrate: "(1) that the defendant deprived [him]
of a right secured under the Constitution or federal law and (2)
that such a deprivation occurred under color of state law." Bingham
v. Thomas, 654 F.3d 1171, 1175 (11th Cir. 2011) (per curiam) (citing
Arrington v. Cobb Co., 139 F.3d 865, 872 (11th Cir. 1998)).
Here,
Plaintiff claims he was subjected to an Eighth Amendment violation
by the actions of Defendant Delgado.
"The Eighth Amendment of the
United States Constitution forbids 'cruel and unusual punishments.'
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U.S. Const. amend. VIII.
The Eighth Amendment is applicable to the
states through the Fourteenth Amendment."
Id. (citation omitted).
The Eighth Amendment's prohibitions against cruel and unusual
punishments includes "deliberate indifference to serious medical
needs of prisoners."
Estelle v. Gamble, 429 U.S. 97, 104 (1976).
A serous medical need is defined as "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 v. West, 320 F.3d 1235, 1243
(11th Cir. 2003) (quotations omitted).
There are two components
which must be satisfied, an objective one and a subjective one.
Bingham, 654 F.3d at 1175.
"Initially, a plaintiff must make an
'objective' showing that the deprivation was 'sufficiently serious,'
or that the result of the defendant's denial was sufficiently
serious.
Additionally, the plaintiff must make a 'subjective'
showing that the defendant acted with 'a sufficiently culpable state
of mind.'" Quirindongo v. Martinez, No. 1:CV-10-01742, 2012 WL
2923996, at *16 (M.D. Pa. July 18, 2012) (quoting Wilson v. Seiter,
501 U.S. 294, 298 (1991)).
To demonstrate that the official had the subjective intent to
punish, the prisoner is required to show: "(1) subjective knowledge
of a risk of serious harm; (2) disregard of that risk; and (3) by
conduct that is more than mere negligence."
Bingham, 654 F.3d at
1176 (quoting Brown v. Johnson, 387 F.3d 1344, 1351 (11th Cir.
- 20 -
2004)).
If pain is intentionally inflicted on an inmate or if the
inmate is subjected to undue suffering or the threat of tangible
residual injury, a deliberate indifference to a serious medical need
is demonstrated.
Quirindongo, 2012 WL 2923996, at *16 n.6.
For purposes of this decision, the Court will assume that
Plaintiff has presented operative facts showing a serious medical
need and satisfied the objective component of the Eighth Amendment
by showing that his medical condition was sufficiently serious to
warrant medical attention and consideration.
With regard to the
subjective component of an Eighth Amendment violation, Plaintiff
must establish that Defendant Delgado had subjective knowledge of
a risk of serious harm to Plaintiff and that Defendant Delgado
disregarded that risk.
Indeed, "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 v. Brennan, 511 U.S. 825, 837 (1994).
Plaintiff was seen by Dr. Delgado on two occasions: on October
20, 2010 for a diet pass re-evaluation, and on November 19, 2010,
for a wheelchair pass re-evaluation.
In the Affidavit of Jorge
Delgado, M.D. (Dr. Delgado's Affidavit) (Exhibit 2) (Doc. #83-2),
he
attests
that
prior
to
and/or
during
each
encounter
Plaintiff, he would have reviewed Plaintiff's medical records.
with
Dr.
Delgado explains that on October 20, 2010, Plaintiff was presented
to him for a diet pass evaluation.
Id.
- 21 -
And, although the visit was
designated for this limited purpose, when Plaintiff made subjective
complaints of pain and spasticity in the lumbar spine and lower
extremities, Dr. Delgado performed a physical examination and noted
his findings.
Id.
Additionally, he renewed Plaintiff's 2800
calorie diet pass.
The Chronological Record of Health Care (Exhibit 3) (Doc. #833) for October 20, 2010, shows that Dr. Delgado evaluated Plaintiff
for a diet pass renewal.
Plaintiff medical history and current
medical condition were noted.
Id.
Dr. Delgado recorded that
Plaintiff was wheezing and overweight.
documented, and a diet pass was renewed.
Id.
A BMI of 26 was
Id.
With respect to his second encounter with Plaintiff, which
occurred on November 19, 2010, Dr. Delgado attests that Plaintiff
was presented to him for the limited purpose of a wheelchair
evaluation. Dr. Delgado's Affidavit.
However, when Plaintiff made
subjective complaints about pain, Dr. Delgado evaluated Plaintiff
and noted
his findings.
Id.
He recommended that Plaintiff
discontinue use of a wheelchair and to return to physical therapy
in order to alleviate his pain and to prevent blood clots.
Plaintiff refused this recommendation.
Id.
Id.
"For that reason, [Dr.
Delgado] referred Plaintiff to a neurologist and ordered no changes
to his wheelchair pass pending the results of the neurologic
consultation."
Id.
- 22 -
The Chronological Record of Health Care (Exhibit 5) (Doc. #835) contains Dr. Delgado's notes from November 19, 2010.
Therein
Plaintiff's physical condition is noted, and it is also stated that
Plaintiff refused to continue with physical therapy.
Id.
Dr.
Delgado's physical examination is recorded, along with Plaintiff's
ability to transfer himself from a chair.
Id.
recommended
physical
that
Plaintiff
continue
with
Dr. Delgado
therapy,
discontinue use of a wheelchair, and begin utilizing a walker.
Id.
Dr. Delgado advised that physical therapy would help prevent clots
and reduce pain.
medical advice.
Id.
Id.
Plaintiff refused to accept Dr. Delgado's
Dr. Delgado decided to make no changes on the
wheelchair pass until a neurological consult could be obtained. Id.
Matters of medical judgment do not rise to the level of
deliberate indifference. Estelle v. Gamble, 429 U.S. at 107. Based
on a review of the doctor's notes on the Chronological Record of
Health Care, Defendant Delgado was obviously aware of Plaintiff's
medical condition and history.
complaints,
Dr.
Delgado
When Plaintiff presented medical
considered
those
complaints,
examined
Plaintiff, and made objective findings. He renewed Plaintiff's diet
pass, expressing his concern about Plaintiff's obesity and wheezing.
Dr.
Delgado
also
recommended
pain
management
and
a
walker.
Plaintiff cannot establish deliberate indifference by stating that
although he received medical attention, he wanted different modes
of treatment (pain medication) rather than reporting to physical
- 23 -
therapy and attempting to use a walker to relieve his pain and
spasms.
See Hamm v. DeKalb Co., 774 F.2d 1567, 1575 (11th Cir.
1985), cert. denied, 475 U.S. 1096 (1986).
Of great import, when
Plaintiff refused to accept Dr. Delgado's medical advice to continue
with physical therapy to prevent clots and pain and to discontinue
using a wheelchair and to use a walker, Dr. Delgado, in the
alternative,
requested
a
neurological
consultation
to
assess
Plaintiff's medical needs.
Plaintiff has not satisfied the subjective component of his
claim of deliberate indifference to a serious medical need.
He has
presented no substantial evidence to rebut Dr. Delgado's statements
that he never refused to treat Plaintiff and he used sound medical
judgment when treating Plaintiff.
Additionally, Plaintiff has
failed to present operative facts to rebut Dr. Delgado's statements
that Plaintiff's requests for medical care were carefully reviewed
and considered.6
In sum, Plaintiff has not shown that Defendant
Delgado acted with deliberate indifference to a serious medical
need.
6
Although Plaintiff contends that Defendant Delgado, on
October 20, 2010, failed to review his pain management records from
the Florida Avenue Pain Clinic, those records were not submitted to
the Florida Department of Corrections until October 29, 2010, per
the facsimile transmittal date.
Florida Avenue Pain Center
Records, Exhibit 4 (Doc. #83-4).
Additionally, based on the
notations in the FDOC Chronological Record of Health Care, Dr.
Delgado was fully aware of Plaintiff's medical history and made his
recommendations after considering that history.
- 24 -
The Court finds that Defendant Delgado has met his initial
burden of showing the Court that there are no genuine issues of
material fact that should be decided at trial.
presented
evidence
that,
during
the
pertinent
Defendant has
time
frame,
he
responded appropriately to Plaintiff's medical needs. Plaintiff has
not demonstrated that Defendant Delgado's responses to Plaintiff's
medical needs were poor enough to constitute an unnecessary and
wanton infliction of pain, and not merely accidental inadequacy,
negligence in treatment, or even medical malpractice actionable
under state law.
Taylor v. Adams, 221 F.3d 1254, 1258 (11th Cir.
2000) (citing Estelle v. Gamble, 429 U.S. 97, 105-06 (1976)), cert.
denied, 531 U.S. 1077 (2001). Indeed, Epperson's "disagreement with
the course of treatment" chosen by Dr. Delgado "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) (not
selected for publication in the Federal Reporter) (quoting Harris
v. Thigpen, 941 F.2d 1495, 1505 (11th Cir. 1991)).
B. Eighth Amendment Claims Against Defendant Francisca Ledesma, M.D.
Plaintiff was seen by Dr. Ledesma on two occasions: on July 21,
2010 for a shoulder injury, and on September 14, 2010, for a
wheelchair pass re-evaluation.
In the Affidavit of Francisca
Ledesma, M.D. (Dr. Ledesma's Affidavit) (Doc. #90), she attests that
on July 21, 2010, Plaintiff complained of shoulder pain.
She
performed a physical examination of Plaintiff and determined that
- 25 -
there were "no skeletal findings that correlated with Plaintiff's
subjective complaints.
Id.
Although Plaintiff requested pain
medication, she determined that a prescription was not necessary.
Id.
She planned a follow-up visit with Plaintiff on August 12,
2010, to assess Plaintiff's shoulder condition; however, Plaintiff
refused the visit.7
Id.
Dr. Ledesma also attests that she saw Plaintiff on September
14, 2010, with respect to a wheelchair re-evaluation.
states
that
based
on
her
review
of
Plaintiff's
Id.
She
chart,
his
description of the symptoms, and on the examination of Plaintiff,
she decided to discontinue Plaintiff's wheelchair pass. Id. In the
alternative,
she
prescribed
a
walker
with
a
seat.
Id.
Additionally, she submitted a consultation request to the brace
clinic and to physical therapy.
Id.
The Chronological Record of Health Care shows that on July 21,
2010,
Plaintiff
requested
hydrocodone
for
his
shoulder
pain.
Medical Records, Exhibit A1 (Doc. #90). After conducting a physical
examination, Dr. Ledesma determined there were no objective findings
to support Plaintiff's request for hydrocodone for pain.
Id.
Defendant Ledesma did not simply discontinue Plaintiff's wheelchair
pass.
Id.
Instead, she recommended he use a walker with a seat,
7
Since Plaintiff refused to see Dr. Ledesma for his shoulder
injury, she was not given the opportunity to re-assess Plaintiff's
medical needs, nor was she given the opportunity to determine
whether his shoulder condition had worsened.
- 26 -
and she made two consultation requests: one for orthotics, seeking
aid in ambulation and measures to address his gait disorder; and one
for physical therapy, to evaluate Mr. Epperson for gait improvement.
Medical
Records,
Exhibit
A1
(Doc.
#90),
Consultation
Request/Consultant's Report to Orthotics and to Physical Therapy.
Assuming Plaintiff has demonstrated a sufficiently serious
medical need, Defendant Ledesma was not deliberately indifferent to
any "serious" medical needs.
Quite to the contrary, the chronology
of his medical evaluations and treatments reflect that Dr. Ledesma
examined Plaintiff, evaluated his medical condition, and made her
considered recommendations.
Of note, pain medication was readily
available on the wing.8
The fact that Plaintiff was dissatisfied with the type of
treatment he received does not mean he was subjected to cruel and
unusual punishment. At most Plaintiff has shown a disagreement with
the course of treatment:
"[A] difference of opinion over matters
of medical judgment does not give rise to a constitutional claim."
Tedesco v. Johnson, 119 F.Supp.2d 1320, 1327 (M.D. Fla. 2000)
(citing Massey v. Hutto, 545 F.2d 45 (8th Cir. 1976)).
It is quite
apparent that the prison doctors did not want to place Plaintiff
back on a cycle of opiate pain medications and were attempting to
put him on a regimen of care to help him walk again.
8
The doctors
Plaintiff was advised that Tylenol was available in the
dormitory, and he could request Tylenol (Acetaminophen) from the
dorm officer. Exhibit C, Response (Doc. #85-3).
- 27 -
made varied recommendations, including consultations, to attempt to
provide Plaintiff with physical therapy and exercise and to promote
alternative devices, like braces and a walker, to allow him to gain
strength and coordination and walk again.
Of significance, Plaintiff, three weeks after being released
from prison, stopped using a wheelchair.
at 27).
although
Exhibit B12 (Doc. #85-2
He currently walks with a cane.
he
rejected
physical
therapy
Id.
in
exercising after his release from prison.
Additionally,
prison,
Id.
he
started
He admitted that
"it's never been that I actually can't walk, it's the fact that my
legs, because of the neurological damage, without reason just
collapse."
Id.
Plaintiff
recommendations,
rejected
refusing
considered
physical
medical
therapy
and
opinions
refusing
and
to
relinquish the wheelchair and convert to the use of a walker with
a
seat.
Even
assuming
Plaintiff
Epperson
has
satisfied
the
objective component by showing that he had a serious medical need,
he has not shown deliberate indifference on the part of Dr. Ledesma.
And, while Plaintiff disagrees with the course of treatment chosen
by the medical providers, the medical decisions were in accordance
with acceptable standards of medicine and did not constitute wanton
conduct.
Plaintiff has failed to provide any competent medical
evidence to support his claim that the Defendants were deliberately
indifferent to his serious medical needs.
- 28 -
He opines that they
should have provided him with pain medication and other treatment,
but
this
disagreement
with
the
course
of
treatment
does
not
establish that he was subjected to cruel and unusual punishment.
C.
Eighth Amendment Claims Against Defendant D. Hall, LPN
With respect to the claims raised against Defendant Hall, a
review pursuant to 28 U.S.C. § 1915(e)(2)(B) will be undertaken.
The Prison Litigation Reform Act requires this Court to dismiss this
case at any time if the Court determines that the allegation of
poverty is untrue, 28 U.S.C. § 1915(e)(2)(A), or the action is
frivolous, malicious, fails to state a claim upon which relief can
be granted or seeks monetary relief against a defendant who is
immune from such relief.
See 28 U.S.C. § 1915(e)(2)(B)(i)-(iii).
Additionally, the Court must read Plaintiff's pro se allegations in
a liberal fashion.
Haines v. Kerner, 404 U.S. 519 (1972) (per
curiam).
"A claim is frivolous if it is without arguable merit either
in law or fact."
Bilal v. Driver, 251 F.3d 1346, 1349 (11th Cir.)
(citing Battle v. Central State Hospital, 898 F.2d 126, 129 (11th
Cir. 1990)), cert. denied, 534 U.S. 1044 (2001).
A complaint filed
in forma pauperis which fails to state a claim under Fed.R.Civ.P.
12(b)(6) is not automatically frivolous.
U.S. 319, 328 (1989).
only
be
ordered
meritless,"
id.
Section 1915(e)(2)(B)(i) dismissals should
when
at
Neitzke v. Williams, 490
the
327,
or
legal
when
- 29 -
theories
the
claims
are
"indisputably
rely
on
factual
allegations which are "clearly baseless."
U.S. 25, 32 (1992).
Denton v. Hernandez, 504
Additionally, a claim may be dismissed as
frivolous when it appears that a plaintiff has little or no chance
of success.
Bilal v. Driver, 251 F.3d at 1349.
In reviewing the Amended Complaint, the initial inquiry must
focus on whether the two essential elements to a § l983 action are
present:
(1) whether the person engaged in the conduct complained
of was acting under color of state law; and (2) whether the alleged
conduct deprived a person of rights, privileges or immunities
guaranteed under the Constitution or laws of the United States.
Houston v. Williams, 547 F.3d 1357, 1360-61 (11th Cir. 2008) (citing
42 U.S.C. § 1983).
Regardless of whether Plaintiff satisfies the
first element, in the absence of allegations of a constitutional
deprivation or a violation of a federal right, Plaintiff cannot
sustain a cause of action against a Defendant under § 1983.
Plaintiff was seen by Defendant Hall on two occasions: on June
16, 2011 for sick call, and on June 27, 2011 for sick call.
In the
Amended Complaint, Plaintiff states that on June 16, 2011, he
accessed sick call requesting treatment, pass renewals, referrals,
and medication, and in response to his request, Defendant Hall told
him she was taking Plaintiff's medical record to Dr. Gonzalez for
his review.
medical
Plaintiff claims that Dr. Gonzalez failed to provide
treatment.
Plaintiff
states
- 30 -
that
on
June
27,
2011,
Defendant Hall told him that due to budget cuts, speciality doctors
were no longer employed by the FDOC.
Plaintiff's allegations against Defendant Hall do not support
a claim of deliberate indifference.
Nurse Hall's action of taking
Plaintiff's medical complaints and record to Dr. Gonzalez does not
support a plausible deliberate indifference claim pursuant to the
Eighth Amendment of the United States Constitution.
Nurse Hall's
comment that the FDOC no longer had money in its budget for
employing in-house speciality doctors is not an act or omission
sufficiently harmful to evidence deliberate indifference to serious
medical needs.
This Court is convinced that Plaintiff has little
or
of
no
chance
success
on
an
Eighth
Amendment
claim
of
constitutional deprivation against Defendant Hall, and his Eighth
Amendment claims against her should be dismissed as frivolous.
D.
Eighth Amendment Claims Against Defendants Smith, Isra,
Gonzalez, Gaxiola, Willis, Davis, and Crews9
In the Amended Complaint, Plaintiff complains about the medical
care he received from Defendants Smith, Isra, Gonzalez and Gaxiola.
Defendant Dr. Page Smith, in the Declaration of Page Smith, Exhibit
C
(Doc.
#87-3),
states
that
she
provided
consultations in July and September 2010.
9
two
Emergency
Room
She explains:
When the Corrected Motion for Summary Judgment (Doc. #92)
was filed, Kenneth Tucker was the Secretary of the FDOC. Michael
D. Crews, in his official capacity as the Secretary of the FDOC,
has been substituted as the proper Defendant.
- 31 -
The ER is for medical conditions that are
serious and must be addressed immediately. For
medical conditions that are not such an
emergency, the inmate patient should have his
medical condition or complaints evaluated
through sick-call. In the ER, the nurse first
takes/records the patient's vital signs and
assesses the patient's complaints, and then
refers the complaints that the nurse determines
need to be immediately addressed to the on-duty
physician.
Id. at 2 (enumeration omitted).
She described the treatment Plaintiff received in the Emergency
Room:
Epperson was first referred to me as the
on-duty physician in the ER on July 12, 2010,
at approximately 6:45 p.m. (1845 hours). The
ER
nurse
noted
the
following
emergent
complaints; on going asthma attacks and pace
maker flutter. The recorded vital signs were
normal.
She noted a 98% oxygen saturation
level which is also normal. I noted that he
had a few chronic complaints, but had no
acute/emergency issues associated with his
asthma or his coronary heart disease ("CHD").
Still, even though he did not demonstrate any
emergent conditions, I prescribed nitroglycerin
("NTG") as needed, if he developed any chest
pain later.
Id. (enumeration omitted).
She described her second encounter with the Plaintiff in the
Emergency Room:
Epperson was referred to me as the on-duty
physician in the ER the second time on
September 16, 2010, at 4:00 a.m. (0400 hours).
The ER nurse noted that he arrived alert and
oriented, that he had chief complaints of mid
sternal chest pain, a heavy weight on chest,
neck pain, tingling in his left arm, and mild
shortness of breath ("SOB"). The nurse also
- 32 -
noted that inmate had two stints and pacemaker
placed in 2007 after a myocardial infarction
("MI"), which is a heart attack. The recorded
vital signs were normal.
At that time, I noted that Epperson
complained of chest pain ("CP") which started
the day before which was initially midsternal
but now radiates down his left arm, and that he
had shortness of breath/tingling but had no
nausea or vomiting symptoms. I evaluated his
symptoms, noting that his head, ears, eyes,
nose, throat ("HEENT") were fine, his lungs
were clear, heart beat was normal, and that he
had an abnormal EKG. I ordered blood tests to
be taken.
The initial lab results were
reported at 5:39 a.m. Thereafter, as a result
of my physical assessment of Epperson along
with the initial lab results, I determined that
the complaints were not consistent with a heart
attack. I prescribed aspirin ("ASA") daily to
prevent platelets from forming in his blood and
rescheduled his pacemaker clinic to September
2010. Epperson was then released to security
at 7:55 a.m. at which time I was most likely no
longer there because, between 7:30 and 8:00
a.m., I typically prepared for my daytime
duties as the MED.
Id.
(enumeration omitted).
Dr. Smith further attests that she did not direct anyone to
remove Epperson from his wheelchair, as "[a]ccording to procedure,
inmates
who
come
wheelchair[.]"
Id.
to
the
ER
in
a
wheelchair,
leave
in
a
This policy holds true even if the inmate does
not have a pass for the wheelchair.
Id.
In the Amended Complaint, Plaintiff complains that he arrived
at the Emergency Room on July 12, 2010, with severe chest pains and
asthma attacks, along with other pain, and he was seeking pain
medication.
He claims that Dr. Smith told him he was opiate
- 33 -
dependant, she prescribed nitroglycerin, and she advised Plaintiff
to access sick-call for his routine medical needs.
He also states
that he was taken by transport wheelchair to the Emergency Room on
September 16, 2010, with chest pains and severe spasms.
Dr. Smith
told Plaintiff she was writing a consult for a cardiologist.
Plaintiff states that Dr. Page told Nurse Summerall to remove
Plaintiff
from
the
ER
wheelchair,
he
was
removed
from
the
wheelchair, and eventually was transported by wheelchair to E-dorm,
where his personal wheelchair was located.
The Emergency Room Record for July 12, 2010 shows no acute
emergency issues with a few chronic complaints.
#87-2 at 3).
Id.
Exhibit B (Doc.
It also reflects that nitroglycerine was prescribed.
The Emergency Room Record for September 16, 2010 reflects that
there was an abnormal EKG, and Dr. Page decided to reschedule
Plaintiff's pacemaker clinic to September and to prescribe daily
aspirin.
Plaintiff
Exhibit B (Doc. #87-2 at 15).
was
seen
by
Dr.
Page,
she
This record shows that
considered
Epperson's
complaints, examined him, ordered blood tests, reviewed the blood
test results, found the EKG to be abnormal, directed that he take
aspirin daily, and rescheduled the pacemaker clinic.
The
only
personal
involvement
Dr.
Paiboon
Id.
Isra
had
with
Plaintiff was one consultation at the Chronic Clinic on December 30,
2010.
Ex. B (Doc. #87-2 at 32)
It was noted that Plaintiff had
respiratory, cardiovascular, and gastrointestinal illnesses.
- 34 -
Id.
Plaintiff complained that his left leg shakes and sometimes his left
arm, that he has left leg weakness, and that he had a spinal cord
injury in 2003.
Id.
Dr. Isra reviewed Plaintiff's record.
results were considered, and medications were noted.
signs were taken.
Id.
Id.
Lab
Vital
Plaintiff's BMI was found to be normal. Id.
Dr. Isra noted that Plaintiff had seen a specialist, a neurosurgeon,
who determined that nothing much could be done to relieve the
symptoms in his extremities.
Id.
Dr. Isra made her assessment of
Plaintiff's condition, including cervical cord compression and
myelopathy, COPD, and heart problems aided by a pacemaker. Id. She
renewed Plaintiff's medications and scheduled a follow-up visit.
Id.
Dr. Isra, in the Declaration of Paiboon Isra, attests:
On December 30, 2010, I had the chronic
clinic
consultation
with
Epperson
for
respiratory,
cardiovascular,
and
gastrointestinal conditions.
Epperson had
regular checkups at the chronic clinic for his
asthma, COPD which is related to his cigarette
smoking, pacemaker, and Hepititis [sic].
At
that time, Epperson indicated that his left leg
shakes, sometimes his left arm, that he had
left leg weakness, and that he had a spinal
cord injury in 2003.
I then reviewed
Epperson's record, renewed his medications, and
noted that his body mass index ("BMI") was
normal,
his
complaints
regarding
his
extremities, and that he was seen by a
neurosurgeon specialist where nothing more can
be done.
At a chronic clinic, the inmate is
scheduled for a regular check-up where a
limited examination is conducted for the type
of conditions that the inmate is specifically
- 35 -
at
the
clinic
for
(i.e.,
respiratory,
cardiovascular, gastrointestinal). Regarding
issues associated with other conditions, the
inmate should raises [sic] those complaints
through sick-call where a full examination can
be conducted.
Epperson
indicates
in
the
Amended
Complaint that I did not allow him to talk at
the chronic clinic. This claim is untrue. All
inmates are permitted to voice their concerns
during a consultation. However, if the inmate
does not cease talking during my examination,
his talking interferes with my ability to
listen to his lungs and heart. The only time
that I would ask an inmate to cease talking is
when I cannot complete the examination due to
the inability to listen to his body's
functions.
Exhibit F (Doc. #87-6 at 2) (enumeration omitted).
Plaintiff was seen by Dr. Gonzalez on March 23, 2011, May 16,
2011, June 16, 2011, and June 24, 2011.
Prior to being seen by Dr.
Gonzalez, Plaintiff was seen by Dr. Gama, a neurology specialist on
March 21, 2011.
Exhibit E, Consultant's Report (Doc. #87-5 at 7).
Dr. Gama recommended Baclofen for spasms and pain, referral to pain
management, and Plaintiff's return to the clinic as needed.
Id.
Dr. Gonzalez adopted the specialist's recommendation for Baclofen,
and prescribed a regimen of the narcotic on March 23, 2011. Exhibit
B (Doc. #87-2 at 37).
management.
Id.
He also prescribed Tylenol #3 for pain
On April 8, 2011, Plaintiff declined to continue
taking the Baclofen after he became nauseous.
Id. at 40.
Dr.
Gonzalez discontinued the Baclofen after Plaintiff refused to take
it.
Id.
On April 27, 2011, Dr. Gonzalez prescribed Motrin, noting
- 36 -
that Plaintiff had refused the Baclofen.
Id. at 41.
Due to an
allergy to Motrin, Plaintiff was provided with a supply of Tylenol.
Id. at 42.
On June 16, 2011, Plaintiff accessed sick call requesting
renewal of passes for an extra pillow, an extra blanket and a straw
hat.
Id. at 43.
some passes.
Dr. Gonzalez denied the request for renewal of
Id.
He did, however, approve passes for a low bunk
and a straw hat on June 24, 2011.
Id. at 45-46.
Also, on June 24,
2011, Plaintiff was seen in the Chronic Clinic for respiratory,
cardiovascular
and
Plaintiff complained
gastrointestinal
of
pain.
Id.
conditions.
Id.
at
44.
Vital signs were taken,
medications were noted, and blood tests were ordered.
Id.
Dr.
Gonzalez recommended Plaintiff continue previous treatments.
Id.
It was noted that Plaintiff refused the specialist's recommendation
that he take Baclofen. Id. Dr. Gonzalez discontinued the GI Clinic
and provided Plaintiff with chronic illness education.
Dr. Gonzalez, attests to the following:
Epperson was first referred to me after he
had a consultation on March 21, 2011, with Dr.
Gama, a neurologist.
Dr. Gama recommended
Baclofen for Epperson's spasms and pain,
referral to pain management, and to return to
the clinic as needed.
As Epperson's physician at Columbia C.I.
Annex, on March 23, 2011, I adopted the
recommendation for Baclofen, a narcotic drug,
and decided to prescribe Tylenol #3, another
narcotic drug which contains Codeine, after the
Baclofen regimen was completed. I prescribed
Baclofen for a three week regimen.
- 37 -
Id.
Then, on April 8, 2011, before the regimen
was complete, Epperson indicated through sickcall that he wanted to refuse the Baclofen
prescription due to complaints of nausea. To
replace the Baclofen, on May 16, 2011, I
ordered Motrin, which was an appropriate
substitute
for
pain
but
which
appeared
thereafter that Epperson was allergic to. I
did not prescribe Motrin to purposefully injure
Epperson or retaliated [sic] against him. I
merely was attempting to address his need at
that time with a substitute for Baclofen.
Still, on May 27, 2011, Epperson sought a sickcall consultation where Tylenol was provided to
him.
Epperson was next referred to me on June
16, 2011, for pass renewals for a straw hat, an
extra blanket, and an extra pillow. At that
time, I denied the requested passes because
there was no skin condition indicated for the
straw hat, and medical did not prescribe an
extra pillow or blanket unless there was a
condition specified for such a need. At that
time, there was no indicated condition to
justify issuing the requested passes.
Lastly, Epperson was referred to me on
June 24, 2011. I had a consultation with him
at
the
chronic
clinic
for
respiratory,
cardiovascular, and gastrointestinal issues.
Epperson had regular check-ups at the chronic
clinic for his asthma, COPD which is related to
his cigarette smoking, pacemaker, and Hepititis
[sic].
At that time, I did not note any
complaints regarding pain/spasms. However, I
did
note
that
he
refused
Baclofen
as
recommended by the neurologist, Dr. Gama,
ordered a blood test panel, and instructed him
on
disease
process,
medication
compliance/instructions,
side
effects,
diet/exercise,
treatment
compliance,
and
smoking cessation. The blood panel test came
back normal, so I decided to discontinue the
gastrointestinal aspect of the clinic. I also
approved the renewal of a low bunk pass and
straw hat for Epperson.
- 38 -
Exhibit H (Doc. #87-8 at 1-2) (enumeration omitted).
Plaintiff alleges that Dr. Gaxiola, in January 2011, denied
Plaintiff's diet pass or directed the denial of Plaintiff's diet
pass.
Upon review of the medical records, however, Dr. Gurney
considered Plaintiff's BMI of 24 and Plaintiff's laboratory tests,
and determined there was "no indication for special diet found in
records."
Exhibit B (Doc. #87-2 at 33).
Dr. Gurney, not a named
Defendant in this action, denied Plaintiff's diet pass on January
11, 2011.
Plaintiff also alleges that Dr. Gaxiola directed Dr. Gonzalez
to prescribe Motrin in May 2011. The medical records do not support
this contention.
Dr. Gonzalez prescribed Motrin.
Dr. Gaxiola
attests, in the Declaration of Dora Gaxiola, to the following:
"[s]pecifically, Epperson alleges that as retaliation, I denied him
a diet pass in January 2011, and that I directed Dr. Gonzalez to
prescribe him Motrin in May 2011.
untrue.
These allegations are completely
Further, in January, I was not working at Columbia C.I."
Exhibit I (Doc. #87-9 at 1) (enumeration omitted).
The Court has thoroughly reviewed the medical records and the
declarations
of
the
parties
and
concludes
that
there
was
no
deliberate indifference to Plaintiff's medical needs by Defendants
Smith, Isra, Gonzalez and Gaxiola.
Plaintiff was seen by medical
professionals on a regular basis and was not been deprived of
adequate medical care.
Apparently in an attempt to avoid medical
- 39 -
co-pay charges for sick call visits, Plaintiff sought routine
medical care during emergency room consultations.
Dr. Smith, on
July 12, 2010, did not find any emergent condition, but she also did
not
ignore
Plaintiff's
nitroglycerin as needed.
complaints.
In
fact,
she
prescribed
Plaintiff was examined in the emergency
room on September 16, 2010, and was found to have an abnormal EKG.
Dr. Smith ordered blood work and determined that Plaintiff had not
suffered a heart attack.
Again, although Plaintiff did not present
an emergent condition, she prescribed daily aspirin and rescheduled
his pacemaker clinic.10
While Plaintiff disagrees with the treatment he received from
Dr. Isra, Plaintiff has failed to provide any medical evidence to
support his claim that she was deliberately indifferent to his
serious medical needs.
Plaintiff received medical attention from
Dr.
chronic
Isra
during
cardiovascular
and
his
clinic
gastrointestinal
visit
for
conditions.
respiratory,
She
reviewed
medical records, considered lab results, considered his vital signs
10
Although Plaintiff alleges that Dr. Smith told Nurse
Summerall to get Plaintiff out of the wheelchair, and Dr. Smith
denies ordering Plaintiff be removed from the wheelchair, this
disputed issue of fact will not prevent the Court from granting
summary judgment as the disputed fact is not material. Plaintiff
was not subjected to cruel and unusual punishment by Defendant
Smith. Plaintiff claims he told the nurse that he could not walk
all the way to the dorm, and the nurse, not the doctor, responded
that this was Plaintiff's problem. When Plaintiff struggled in
walking to the dormitory, a sergeant ordered Plaintiff to be
transported in a wheelchair. Thus, Plaintiff was not required to
walk to his dormitory unaided.
- 40 -
and normal BMI, and noted that the neurosurgeon determined that
there was not much that could be done with the symptoms in his
extremities.
She recorded his multiple medical problems, renewed
his medications, and scheduled a follow-up visit.
Although Plaintiff contends that Dr. Isra would not allow him
to talk, this
assertion is belied by the record.
Plaintiff
presented a litany of complaints, which were recorded, and objective
measures were undertaken and assessments made by Dr. Isra. Dr. Isra
explains that at some point in the examination she would ask the
patient to cease talking so that a proper examination may be
undertaken, including listening to the patient's lungs and heart.
The directive to stop talking during a medical examination does not
amount to an Eighth Amendment violation.
In this particular
instance, Plaintiff was examined and his medications were renewed.
Plaintiff has not demonstrated that this response to his medical
needs was poor enough to constitute an unnecessary and wanton
infliction of pain.
With respect to the allegations against Dr. Gonzalez, upon
review, Dr. Gonzalez adopted the recommendations of the specialist
by prescribing Baclofen and pain medication.
Although Plaintiff
turned out to be allergic to Motrin and reacted badly to Baclofen,
Dr. Gonzalez's actions do not constitute deliberate indifference.
Dr. Gonzalez prescribed medication to help relieve Plaintiff's pain
and spasms.
Apparently it was documented that Plaintiff was
- 41 -
allergic to Ibuprofen, but Dr. Gonzalez's action of prescribing
Motrin, at most, would amount to negligence or medical malpractice.
Dr. Gonzalez was attempting to follow the specialist's advice while
offering a comparable substitute for Baclofen, which Plaintiff
refused to take due to nausea.11
Moreover, Plaintiff does not
assert that he was allergic to Baclofen or that Dr. Gonzalez was
aware that Plaintiff could not tolerate Baclofen when he prescribed
it.
Plaintiff simply became nauseous when he took Baclofen, and he
declined to take any further doses.
Also, the fact that Dr. Gonzalez denied Plaintiff's request for
an extra pillow and an extra blanket does not amount to cruel and
unusual punishment.
The Court also notes that this decision was
made in the summer, not during the cold, winter months. These items
may have given Plaintiff some extra comfort, but the lack of these
items did not subject Plaintiff to wanton pain and discomfort.
Finally, Dr. Gonzalez's decision to discontinue the gastrointestinal
aspect of the chronic clinic was based on Plaintiff's blood panel
coming back as normal.
Defendant Gaxiola has met his initial burden, but Plaintiff has
failed to present documentation to show that there is a genuine
issue for trial.
Dr. Gaxiola has shown that Dr. Gurney denied
Plaintiff's diet pass in January 2011.
11
Plaintiff's contention that
Plaintiff was provided with Tylenol for pain relief after
reporting to medical personnel that he was allergic to Motrin.
- 42 -
Dr. Gaxiola directed Dr. Gonzalez to prescribe Motrin is entirely
unsupported.
Dr. Gonzalez prescribed Motrin as an alternative to
Baclofen, which Plaintiff declined to take as it made him nauseous.
With respect to Defendants Davis and Willis, Plaintiff has
asserted that they were deliberately indifferent to his serious
medical needs, however, these allegations will be addressed under
the portion of the opinion addressing Plaintiff's Eighth Amendment
claim with regard to the denial of, or lack of responses to,
grievances. Plaintiff has also claimed that Defendant Davis created
or enforced a policy that is deliberately indifferent to serious
medical needs.
Apparently, Plaintiff is contending that Defendant
Davis had a policy that limited Plaintiff's access to physicians.
This assertion is certainly belied by the record before the Court.
Plaintiff was referred to and seen by a physician when he arrived
at an institution; he was transferred to see specialists, including
a cardiologist, an orthopedic surgeon, and a neurologist; he was
seen by physicians in the Emergency Room and in chronic clinics; he
was seen by doctors for re-evaluations of medical passes; and he was
placed on frequent medical call-outs. Plaintiff received extensive
medical care and treatment while he was confined in the FDOC.
Plaintiff has not presented evidence that Defendants Davis and
Willis deprived him of access to medical care.
As a matter of law, none of the actions of these Defendants
would constitute deliberate indifference to a serious medical need.
- 43 -
Plaintiff received prompt, frequent, and thorough medical attention.
Indeed, the medical attention he received was rather exhaustive
under the circumstances.
The Court recognizes that Plaintiff has
a multitude of medical needs, and he was in extensive pain and
discomfort over the years.
This, however, was not due to the
deliberate indifference of the Defendants, but rather was due to his
medical condition.
The fact that Plaintiff was dissatisfied with
the type of treatment he received does not mean he was subjected to
cruel and unusual punishment.
At most he has shown a disagreement
with the course of treatment; however, he has failed to support his
contention that he was provided with wanton and constitutionally
deficient medical care.
Assuming
Plaintiff
has,
at
most,
supported
a
claim
of
negligence or medical malpractice, such a claim does not amount to
a constitutional violation under the Eighth Amendment of the United
States Constitution.
Indeed, "[a]ccidents, mistakes, negligence,
and medical malpractice are not 'constitutional violation[s] merely
because the victim is a prisoner.'"
Harris v. Coweta County, 21
F.3d 388, 393 (11th Cir. 1994) (citing Estelle v. Gamble, 429 U.S.
97, 106 (1976)); Rooney v. Watson, 101 F.3d 1378, 1380-81 (11th Cir.
1996) (stating that the alleged negligence does not transform a
state tort claim into a constitutional deprivation), cert. denied,
522 U.S. 966 (1997); Cannon v. Taylor, 782 F.2d 947, 949-50 (11th
Cir.
1986).
Plaintiff
must
demonstrate
- 44 -
that
the
Defendants'
responses to his medical needs were poor enough to constitute an
unnecessary and wanton infliction of pain, and not merely accidental
inadequacy, negligence in treatment, or even medical malpractice
actionable under state law.
Taylor v. Adams, 221 F.3d at 1258
(citing Estelle v. Gamble, 429 U.S. at 105-06), cert. denied, 531
U.S.
1077
(2001).
Plaintiff
has
failed
to
make
such
a
demonstration, and the Defendants' Corrected Motion for Summary
Judgment is due to be granted.
E.
Eighth Amendment Claim Concerning Grievances
Plaintiff complains that he was subjected to cruel and unusual
punishment by the Defendants [Smith, Isra, Gonzalez, Gaxiola,
Willis, Davis, and the Secretary of the FDOC] through their denial
of or failure to respond to medical grievances.
Even assuming the
Defendants directed that the grievances be denied, that action is
insufficient to impose liability. See Larson v. Meek, 240 Fed.Appx.
777, 780 (10th Cir. 2007) (not selected for publication in the
Federal
Reporter)
(finding
that
a
defendant's
"denial
of
the
grievances alone is insufficient to establish personal participation
in the alleged constitutional violations"); Baker v. Rexroad, 159
Fed.Appx. 61, 62 (11th Cir. 2005) (per curiam) (not selected for
publication in the Federal Reporter) ("Because the failure of [the
defendant] to take corrective action upon the filing of [the
plaintiff]'s administrative appeal at the institutional level did
not amount to a violation of due process, the district court
- 45 -
properly determined that [the plaintiff] failed to state a claim
under § 1983"), cert. denied, 549 U.S. 840 (2006); Shehee v.
Luttrell, 199 F.3d 295, 300 (6th Cir. 1999) (finding that prison
officials who were not involved in an inmate's termination from his
commissary
job,
and
whose
only
roles
involved
the
denial
of
administrative grievances or the failure to act, were not liable
under § 1983 on a theory that the failure to act constituted an
acquiescence in the unconstitutional conduct), cert. denied, 530
U.S. 1264 (2000).
F.
First Amendment Retaliation Claim
In Claim 3, Plaintiff presents his First Amendment claim that
Defendants Smith, Ledesma, Delgado, Isra, Davis, Willis, Gaxiola,
and Gonzalez have retaliated against Plaintiff for utilizing the
grievance process.
Defendants assert that Plaintiff has failed to
show that any adverse action was taken against him that would deter
a person of ordinary firmness from continuing to engage in conduct
or speech protected under the First Amendment, and that he has
failed to show a causal connection existed between the protected
conduct and any adverse action taken by the Defendants.
Corrected
Motion for Summary Judgment at 18. See Bennett v. Hendrix, 423 F.3d
1247, 1250, 1254 (11th Cir. 2005), cert. denied, 549 U.S. 809
(2006).
This Circuit has said that First Amendment rights to free
speech and to petition the government for a redress of grievances
- 46 -
are violated when a prisoner is punished for filing a grievance
concerning the conditions of his imprisonment.
Moulds v. Bullard,
345 Fed.Appx. 387, 393 (11th Cir. 2009) (per curiam) (not selected
for publication in the Federal Reporter) (quotations and citation
omitted).
With respect to a retaliation claim, an inmate must
establish three elements in order to prevail on his First Amendment
claim.
"The inmate must prove that: (1) "his speech or
act was constitutionally protected"; (2) "the
defendant's
retaliatory
conduct
adversely
affected the protected speech"; and (3) "there
is a causal connection between the retaliatory
actions and the adverse effect on speech." Id.
To establish causation, the plaintiff must show
that the defendant was "subjectively motivated
to discipline" the plaintiff for exercising his
First Amendment rights. Smith v. Mosley, 532
F.3d 1270, 1278 (11th Cir. 2008). "[O]nce the
plaintiff ... establish[es] that his protected
conduct was a motivating factor behind any
harm, the burden of production shifts to the
defendant. If the defendant can show that he
would have taken the same action in the absence
of the protected activity, he ... prevail[s] on
... summary judgment." Id. (quotation marks
omitted).
Moton v. Cowart, 631 F.3d 1337, 1341-42 (11th Cir. 2011).
Assuming arguendo, Plaintiff established the first two prongs,
he has not created an issue of fact to support the third prong,
which
requires
a
showing
of
a
causal
connection
between
Plaintiff's protected speech and the Defendants' actions.
the
Jemison
v. Wise, 386 Fed.Appx. 961, 964-65 (11th Cir. 2010) (per curiam)
(not selected for publication in the Federal Reporter) (citation
- 47 -
omitted).
to
do
To establish this third prong, a plaintiff is required
more
motivations
than
and
make
must
"general
attacks"
articulate
upon
"affirmative
retaliation to prove the requisite motive.
a
defendant's
evidence"
of
Crawford-el v. Britton,
523 U.S. 574, 600 (1998) (citations omitted).
"In other words, the
prisoner must show that, as a subjective matter, a motivation for
the defendant's adverse action was the prisoner's grievance or
lawsuit."
Jemison, 386 Fed.Appx. at 965 (citation omitted).
Plaintiff was certainly not deterred from filing grievances,
as exhibited by the extensive record of grievances submitted by him
through
the
institutional
administrative
grievance
process.
Plaintiff freely exercised his First Amendment rights by filing
numerous
complaints
confined in the FDOC.
(Doc. #87-14).
about
the
medical
care
he
received
while
See Exhibit N, Declaration of Ashley Stokes
Defendants have met their burden of showing that
Plaintiff's grievances were denied based on sound medical judgment,
and not due to any retaliatory motive.
See Dr. Ledesma's Affidavit
(Doc. #90);12 Dr. Delgado's Affidavit (Doc. #83-2 at 2); Exhibit C,
Declaration
of
Page
Smith
Declaration
of
Paiboon
Isra
(Doc.
(Doc.
#87-3
#87-6
at
at
3-4);
Exhibit
F,
2-3);
Exhibit
H,
Declaration of Miguel Gonzalez (Doc. #87-8 at 1-2); Exhibit I,
12
Defendant Ledesma attests that her decision to discontinue
Plaintiff's wheelchair pass was done without considering any
grievances filed against her. Affidavit of Francisca Ledesma, M.D.
(Doc. #90). Other than conclusory allegations, Plaintiff has not
shown otherwise.
- 48 -
Declaration
of
Dora
Gaxiola
(Doc.
#87-9
at
1-2);
Exhibit
K,
Declaration of Michael Willis (Doc. #87-11 at 1-2); and Exhibit L,
Declaration of Donald Davis (Doc. #87-12 at 1-2).13
In response, Plaintiff has not articulated affirmative evidence
of retaliation.
Plaintiff simply surmises that his grievances were
denied in retaliation for his filings complaints and grievances.
Plaintiff
has
failed
to
provide
documentary
evidence
that
demonstrates that, as a subjective matter, a motivation for the
Defendants'
decision-making
in
denying
or
failing
to
address
grievances was based on Plaintiff's history or pattern of filing
medical grievances and complaints.
Plaintiff has not presented a
genuine issue for trial; therefore, summary judgment will be entered
in favor of the Defendants.
G.
Qualified Immunity
Defendants [Ledesma, Smith, Isra, Gonzalez, Gaxiola, Willis,
and Davis] contend that they are entitled to qualified immunity.
The Eleventh Circuit has said:
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
13
Of note, Michael Willis and Donald Davis are not medical
professionals and are not qualified to make medical judgments and
decisions. They defer to the judgment of the medical professionals
when responding to medical grievances.
- 49 -
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, 555 U.S. 223, 236 (2009), this
Court is "free to consider these elements in either sequence and to
decide
the
case
demonstrated."
on
the
basis
of
either
element
that
is
not
Youmans v. Gagnon, 626 F.3d 557, 562 (11th Cir.
2010) (per curiam).
It
is
undisputed
that
the
Defendants
were
engaged
discretionary functions during the events in question.
in
These
Defendants did not violate Plaintiff's constitutional rights and are
therefore entitled to qualified immunity.
H.
Injunctive Relief
Plaintiff is no longer confined in the FDOC; therefore, as the
Court cannot effectuate any relief regarding the Defendants' medical
- 50 -
treatment of Plaintiff, his claims for injunctive relief are due to
be dismissed as moot.
I.
Equal Protection and Due Process
To the extent Plaintiff is attempting to raise equal protection
or due process claims, his allegations are too vague and conclusory
to support such claims.14
Therefore, any claim of denial of equal
protection of the law or any claim of denial of due process of law
are due to be dismissed.
V. Summary Judgment
Based on all of the above, the Defendants are entitled to
summary judgment or dismissal from the action, and judgment shall
be entered for the Defendants and against the Plaintiff.
Therefore, it is now
ORDERED:
14
Plaintiff alleges that other inmates received different
medical treatment and narcotic pain medication from some of the
Defendants. He has failed to show that these unnamed inmates had
the same or similar medical complaints, injuries, physical
constitution and medical condition, and he has not shown that there
was no rational basis for the dissimilar treatment given to those
other prisoners similarly situated. Significantly, Plaintiff was
prescribed Baclofen, see Exhibit H (Doc. #87-8 at 2), a narcotic
drug that he requested to relieve his pain and spasms, however, the
medication upset his stomach, so he declined any further doses.
- 51 -
1.
Defendant Edwin G. Buss, who remained in the case only in
his official capacity, is DISMISSED WITH PREJUDICE.
2.
Secretary Michael D. Crews is automatically substituted
for the official capacity claims for former Secretary Kenneth
Tucker.
3.
Defendant Jane Doe, LPN, a fictitious party, is hereby
DISMISSED from this action with prejudice.
4.
Defendant D. Hall, LPN, is DISMISSED WITH PREJUDICE, as
the claims against her are frivolous pursuant to 28 U.S.C. §
1915(e)(2)(B).
5.
Defendant, Jorge Delgado, MD's Motion for Summary Judgment
(Doc. #83) is GRANTED, and the Clerk shall enter judgment for
Defendant Delgado and against Plaintiff Epperson.
6.
Defendant's, Dr. Francisca Ledesma's Motion for Summary
Judgment (Doc. #85) is GRANTED, and the Clerk shall enter judgment
for Defendant Ledesma and against Plaintiff Epperson.
7.
The Corrected Motion for Summary Judgment by Defendants
Smith, Isra, Gonzalez, Gaxiola, Willis, Davis, and [Crews] (Doc.
#92) is GRANTED, and the Clerk shall enter judgment for Defendants
Smith, Isra, Gonzalez, Gaxiola, Willis, Davis, and Crews and against
Plaintiff Epperson.
8.
Any claims for injunctive relief are DISMISSED AS MOOT.
- 52 -
9.
The Clerk shall enter judgment accordingly and close this
case.
DONE AND ORDERED at Jacksonville, Florida, this 11th day of
January, 2013.
sa 1/9
c:
Rodney C. Epperson
Counsel of Record
- 53 -
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