Belton v. Rice et al
Filing
73
ORDER granting 57 Motion for summary judgment; granting 68 Motion for Extension of Time to File Response/Reply with directions to the Clerk. Signed by Senior Judge Harvey E. Schlesinger on 3/29/2016. (RH)
FILED
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
CLEHl\. US DlSEIST COUI-:i.
~1100LF. O!STRICT Or F~ORIDA
JACKSONVILLE DIS I HiCT
JAMES BELTON,
Plaintiff,
v.
Case No. 3:12-cv-885-J-20MCR
NURSE R. FOWLER,
Defendant.
O:RDER
I. Status
Plaintiff James Belton
(Belton),
an inmate of the Florida
penal system who is proceeding in forma pauperis, initiated this
action on August 6, 2012, by filing a pro se Civil Rights Complaint
(Doc.
1)
under 42 U.S.C.
1983.
§
Complaint for Money Damages
Belton filed a
First Amended
(AC; Doc. 16) on August 11, 2014. In
the Amended Complaint, Belton names_the following individuals as
Defendants in the action:
Miguel Gonzalez, M.D.; and
(1)
Dr. Long Duy Hoang, M.D.;
(3)
Nurse R.
(2)
Dr.
Fowler, Senior Licensed
Practical Nurse. 1 He asserts that Defendants Gonzalez and Hoang
violated his Eighth Amendment right to be free
unusual
punishment
Tuberculosis
(TB),
when
they
delayed
and
that
Defendant
from cruel and
proper
Fowler
treatment
for
"negligently
permittedu him to be housed in general population in a particular
1
On April 22, 2015, the Court dismissed Defendants Dr. Long
Duy Hoang, M.D. and Dr. Miguel Gonzalez,.M.D. See Order (Doc. 36)
dormitory where other inmates were infected with the TB virus. See
AC at 4.
As relief,
Bel ton requests compensatory and punitive
damages.
This cause is before the Court on Defendant Fowler's Motion
for Summary Judgment (Motion; Doc. 57), filed September 30, 2015. 2
The Court advised Plaintiff of the provisions of Federal Rule of
Civil Procedure 56, notified him that the granting of a motion to
dismiss or a motion for summary judgment would represent a final
adjudication of this case which may foreclose subsequent litigation
on the matter,
and gave him an opportunity to respond to the
Motion. See Order of Special Appointment;
Directing Service of
Process Upon Defendants; Notice to Plaintiff {Doc.
17) ; Orders
(Docs. 52, 65, 67). Plaintiff has responded. See Plaintiff's Motion
in Opposition to Defendant's Summary Judgment {Response; Doc. 60);
Sworn Memorandum of Law in Opposition to Defendant's Motion for
Summary Judgment (Doc. 69). Thus, Defendant's Motion is ripe for
judicial review.
I I . Summary Judament Standard
Under Rule 56 {a), "[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." The record to be considered on a motion for summary judgment
may
include
"depositions,
documents,
electronically
stored
information, affidavits or declarations, stipulations {including
2
The Court will refer to the exhibits appended to Defendant's
Motion as Def. Ex.
2
those
made
for
purposes
of
the
motion
only},
admissions,
interrogatory answers, or other materials[.]n Rule 56(c) (1} (A} . 3
~An
issue of fact is material if, under the applicable substantive
law, it might affect the outcome of the case[,] and "[a]n issue of
fact is genuine if the record taken as a whole could lead a
rational trier of fact to find for the nonmoving party.n Harrison
v. Culliver, 746 F.3d 1288, 1298 (11th Cir. 2014)
(citations and
internal quotation marks omitted).
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 that should be decided at
trial. Hickson Corp. v. N. Crossarm Co., 357 F.3d 1256, 1260 (11th
Cir. 2004)
(1986)).
(citing Celotex Corp. v. Catrett,
477 U.S.
317,
323
"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.n Jeffery v. Sarasota White Sox, Inc., 64
3
Rule 56 was revised in 2010 "to improve the procedures for
presenting and deciding summary-judgment motions. n 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
F.3d 590,
593-94
(11th Cir.
1995)
(per curiam)
(citations and
internal quotation marks omitted). "[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).
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." Anderson v.
Liberty Lobby.
Inc.,
477 U.S.
242,
248
(1986). 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)
(per curiam)) .
i i i . Plaintiff's Allegations
According to Plaintiff, the following facts support his Eighth
Amendment claim of deliberate indifference to his serious medical
needs. He asserts that the Florida Department of Corrections (FDOC)
housed him in C dormitory at Columbia Correctional Institution
(CCI) for twelve to fifteen months. See AC at 5,
~
1. 4 On April 16,
2009, the FDOC moved him from C dormitory to an administrative
confinement
dormitory.
See
id.
The
confinement
orderly
told
Plaintiff that C dormitory where he had been housed was infected
4
The Court will refer to the page number in the upper right
hand corner of the document that was assigned through the Court's
electronic filing system.
4
with the TB virus, and that all inmates in C dormitory were being
inoculated. See id.
at~
2. Plaintiff immediately wrote the medical
clinic to request that testing and inoculation for the TB virus,
but received no response. See id. at
~
3. When Plaintiff saw the
confinement nurse, he explained that he wanted to be tested and
inoculated since he had been housed inC dormitory. See id. Shortly
thereafter, he was given a skin test with negative results. See id.
at~
4. On May 8, 2009, Dr. Nguyen ordered a chest X-ray (performed
on May 11, 2009), which was also negative for the TB virus. See id.
Despite these
findings,
Plaintiff complained of symptoms,
but
medical personnel advised him to visit sick call if his symptoms
continued. See id. at
~
5.
Upon Plaintiff's release from administrative confinement on
May 18, 2009, his symptoms continued, including loss of appetite
and weight,
chills,
vomiting,
night
sweats,
fatigue,
fever,
stomach
chest pains,
cramps,
shortness
pale skin,
of
dizziness, black-outs, and coughing up blood. See id. at 5,
May 26,
2009,
breath,
~
6. On
Plaintiff sought medical assistance through sick
call. See id. at
~
7. He reported that he was unable to eat the
food served in the chow hall;
he found that most foods
were
basically intolerable with the exception of Ramen noodle soups in
the canteen since he was able to drink them. See id.
Dr.
Gonzalez placed Plaintiff on a high-caloric diet and
advised him to consume more food. See id. at
~
8. According to
Plaintiff, his condition worsened and was readily apparent due to
his dramatic weight loss. See id. at
5
~
9. On several occasions, he
visited the infirmary with a high fever, was given Tylenol, and
then released back into general population. _See id. at
~
10. On one
occasion, when he passed out, he was placed under observation for
twenty minutes, and then sent back to general population. See id.
On June 16, 2009, 5 Dr. Hoang transferred Plaintiff, who was in
the CCI infirmary, to the Reception and Medical Center (RMC) for an
upper abdominal sonogram. See id. at 6,
(which was negative),
infirmary.
See id.
~
12. After the sonogram
the FDOC returned Plaintiff to the CCI
at en 13. On June 17,
2009,
the nurse was
instructed to contact RMC and arrange to transfer Plaintiff if his
condition did not improve.
improve,
See id. When his condition did not
the FDOC transferred him to a specialist at RMC and
admitted him to the RMC infirmary. See id. at en 14.
On June 25, 2009, after a computerized axial tomography (CAT)
scan of Plaintiff's chest at RMC,
Plaintiff was diagnosed with
Miliary Tuberculosis. See id. at en 15. On July 8 and 13, 2009, at
Memorial Hospital Jacksonville, Plaintiff underwent two surgical
procedures in order to remove the TB virus from his system. See id.
at 7, en 17. Thereafter, Plaintiff completed a lengthy medication
regimen,
which
extremities.
See
caused
id.
some
at
~
discomfort
18.
and
According
tingling
to
in
his
Plaintiff,
the
Defendant(s) knew that all of the inmates, including Plaintiff, who
had been housed in C dormitory had been exposed to the TB virus by
being housed with the alleged infected inmate.
5
Id.
at en 19.
Belton refers to the year 2007; however, given the
chronology of events, it appears that the year was 2009. See AC at
6, en 12.
6
However, the Defendant(s) "chose to merely monitor or even ignore
at
times"
Plaintiff's
"worsening
and
deteriorating
condition"
before finally transferring him to a specialist at RMC. Id.
IV. Defendant Fowler's Motion for Summary Judgment
Defendant Fowler asserts that there are no genuine issues of
material
fact
in dispute,
and therefore
judgment be entered in her favor.
summary
judgment
is
appropriate
requests
that
summary
Defendant Fowler argues that
because
none
of
Plaintiff's
assertions show that Fowler subjected him to cruel and unusual
punishment in that:
( 1)
Plaintiff fails to establish an Eighth
Amendment violation against Defendant Fowler for failure to protect
Plaintiff from contracting TB, see Motion at 9-14;
(2) a 42 U.S.C.
§ 1983 claim for failure to protect cannot be based on hearsay,
rumor,
and
innuendo,
see
id.
at
15-17;
(3)
since
Plaintiff
contracted an atypical TB strain found generally in the everyday
environment,
Plaintiff
cannot
state
a
claim
of
deliberate
indifference for failure to protect under § 1983 because of a lack
of
causation,
Plaintiff
~
alleges
id.
at
that
17-19;
Defendant
delaying his TB diagnosis,
(4)
even
Fowler
to
was
the
extent
responsible
that
for
Plaintiff does not state a sufficient
claim for § 1983 relief, see id. at 19-20; and (5) Defendant Fowler
is entitled to immunity pursuant to Florida Statutes§ 768.28(9) to
the extent that Plaintiff asserts a state law claim for negligence.
In support of Fowler's Motion,
exhibits:
Def.
Exs.
A,
she submitted the following
Declaration
of
Nurse
Raycendia
Oden
(formally Fowler) (Fowler's Declaration); A-1, excerpts of Belton's
7
medical records (filed under seal, see Order, Doc. 61); B, excerpt
of Plaintiff's Deposition {Belton's Deposition), dated June 30,
2015;
C,
Declaration of Dr.
Albert Carl Maier,
M.D.
(Maier's
Declaration), dated September 29, 2015; D, excerpts of Belton's
medical records (filed under seal,
~
Doc. 61).
V. Plaintiff's Responses
In Plaintiff's Response (Doc. 60), he asserted that he needed
more time for discovery. On January 13, 2016, the Court denied
Plaintiff's request to reopen discovery,
but granted him until
February 17, 2016, to file a supplemental response to Defendant
Fowler's
(granting
Motion.
him
See Order
until
March
{Doc.
9,
65)
2016,
at
to
5;
Order
file
a
(Doc.
67)
supplemental
response). On March 10, 2016, Plaintiff requested an additional
fifteen days or until March 23,
2016,
to file a supplemental
response. See Plaintiff's Motion for Extension of Time {Doc. 68).
On March 25, 2016, Plaintiff filed a Sworn Memorandum of Law in
Opposition to Defendant's Motion for Summary Judgment {Doc. 69);
Declaration of James Belton (B'elton' s Declaration; Doc. 70), dated
March 2, 2016; Declaration of Percival Charles Ferris, Jr., Inmate
No. 142336 (Ferris's Declaration; Doc. 71), dated March 11, 2016;
and Declaration of Herman Wallace, Inmate No. 476821 (Wallace's
Declaration; Doc. 72), dated March 20, 2016.
VI. Law and Conclusions
To state a claim under 42 U.S.C.
§
1983, a plaintiff must
allege that (1) the defendant deprived him of a right secured under
the
United States Constitution or federal
8
law,
and
(2)
such
deprivation occurred under color of state law. Salvato v. Miley,
790 F.3d 1286, 1295 {11th Cir. 2015); Bingham v. Thomas, 654 F.3d
1171,
1175
{11th
Richardson v.
curiam)
Cir.
Johnson,
{citations
2011)
{per
curiam)
598 F. 3d 7 34,
omitted).
737
Moreover,
{citation
{11th Cir.
the
omitted);
2010)
Eleventh
{per
Circuit
"'requires proof of an affirmative causal connection between the
official's
acts
or
omissions
and
the
alleged
constitutional
deprivation' in§ 1983 cases." Rodriguez v. Sec'y, Dep't of Corr.,
508 F.3d 611, 625 {11th Cir. 2007)
{quoting Zatler v. Wainwright,
802 F.2d 397, 401 {11th Cir. 1986)). More than conclusory and vague
allegations are required to state a cause of action under 42 U.S.C.
§ 1983. See L.S.T.,
Inc.,
v. Crow,
49 F. 3d 679,
684
{11th Cir.
1995) {per curiam); Fullman, 739 F.2d 553, 556-57 {11th Cir. 1984).
"Moreover,
'conclusory
allegations,
unwarranted
deductions
of
facts, or legal conclusions masquerading as facts will not prevent
dismissal.'" Rehberger v. Henry Cty., Ga.,
577 F. App'x 937, 938
(11th Cir. 2014} (per curiam} (citation omitted). In the absence of
a
federal
constitutional deprivation or violation of a
federal
right, Plaintiff cannot sustain a cause of action against Defendant
Fowler.
The Eleventh Circuit has explained the requirements for an
Eighth Amendment violation.
"The
Constitution
does
not
mandate
comfortable prisons, but neither does it
permit inhumane ones . . . . " Farmer, 511 U.S.
at 832, 114 S.Ct. at 1976 (internal quotation
and
citation
omitted}. [ 6 ]
Thus,
in
its
6
Farmer v. Brennan, 511 U.S. 825 (1994).
9
prcihibition
of
"cruel
and
unusual
punishments, " the Eighth Amendment requires
that
prison
officials
provide
humane
conditions of confinement. I d. However, as
noted above 1 · only those conditions which
objectively amount to an "extreme deprivation"
violating contemporary standards of decency
are subject to Eighth Amendment scrutiny.
Hudson, 503 U.S. at 8-9, 112 S.Ct. at 1000. [ 7 )
Furthermore, it is only a prison official's
subjective deliberate indifference to the
substantial risk of serious harm caused by
such conditions that gives rise to an Eighth
Amendment violation. Farmer, 511 U.S. at 828,
114 s.ct. at 1974 (quotation and citation
omitted); Wilson, 501 u.s. at 303, 111 s.ct.
at 2327. [ 8 ]
Thomas v. Bryant, 614 F. 3d 1288, 1306-07 (11th Cir. 2010).
"To
show
that
a
prison
official
indifference to serious medical needs,
acted
with
deliberate
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 Cty., 510 F.3d 1312, 1326 {11th Cir. 2007). Next,
the plaintiff must satisfy the subjective component, which requires
the plaintiff to "allege that the prison official, at a minimum,
acted
with
a
state
of
mind
that
constituted
deliberate
indifference." Richardson, 598 F. 3d at 737; Valderrama v. Rousseau,
780 F.3d 1108, 1116 (11th Cir. 2015)
(setting forth the components
of deliberate indifference as (1) the official "was aware of facts
from which the inference could be drawn that a substantial risk of
7
Hudson v. McMillian, 503 U.S. 1 (1992).
8
Wilson v. Seiter, 501 U.S. 294 (1991).
10
serious
harm
inference,"
exists,"
(3)
(2)
the
official
"actually
drew
that
the official "disregarded the risk of serious
harm," and (4) the official's "conduct amounted to more than gross
negligence.")
(citation omitted).
The following material facts are undisputed. On April 15,
2009,
the FDOC provided Plaintiff with a "Tuberculosis Symptom
Questionnaire for Inmates" prior to his pre-confinement medical
examination the following day, April 16th. See Maier's Declaration
'll 3
at 1,
(citing Def. Ex.
D at 1-2). According to Dr. Maier,
"Belton reported having no TB symptoms on the form."
See id.
However, according to Nurse K. Grega, Plaintiff reported only one
symptom related to his stamina. Def. Ex. D at 1-2. On April 16,
2009,
Plaintiff
was
provided
a
pre-special
housing
health
assessment before he was placed in administrative confinement. See
Maier's Declaration at 1, 'll 3 (citing Def. Ex. D at 3).
On April 30, 2009, a nurse saw Plaintiff in the medical clinic
for loss of weight and appetite. See id. at 2,
~
4 {citing Def. Ex.
D at 6). On May 8, 2009, Plaintiff underwent an x-ray, which gave
negative results. See id. (citing Def. Ex. D at 9). That same day,
Plaintiff provided a sputum sample,
which tested negative for
Mycobacterium TB on May 11, 2009. See id. (citing Def. Ex. D at 8).
On May 26, 2009, Dr. Hoang saw Plaintiff in the medical clinic
for complaints of weight loss and difficulty swallowing solid
foods.
See id. at
~
5
{citing Def. Ex.
D at 12-13). Dr. Hoang
treated Plaintiff for indigestion with abdominal pain and gave him
Colace and Zantac.
See id.
According to Dr.
11
Maier,
difficulty
swallowing is not a symptom of TB, and weight loss alone would be
an
insufficient
basis
for
a
consideration
of
TB
clinically,
"although if accompanied by other complaints might rise to the
level of suspicion." See id.
On May 29, 2009, Dr. Gonzalez saw Plaintiff in the medical
clinic for
complaints of a 101-degree temperature,
weight loss, and shortness of breath. See id. at
~
dizziness,
6 {citing Def.
Ex. D at 15-16). Dr. Gonzalez treated Plaintiff for dizziness,
weight loss, and mild shortness of breath and gave him Colace,
Zantac,
and
antibiotics
for
an
H.
Pylori 9
gastrointestinal
infection and instructed Plaintiff to return to the clinic if his
symptoms persisted. See id.
On June 1, 2009, Plaintiff returned to the medical clinic for
laboratory tests due to complaints of weight loss. See id. at
~
7
{citing Def. Ex. D at 16). Dr. Gonzalez diagnosed Plaintiff with
anemia and placed him on a 4,000-calorie diet and prescribed Folic
Acid to be taken twice a day for ninety days. See id. On June 3,
2009, the medical staff admitted Plaintiff to the infirmary for
observation for two to three hours for complaints of a low grade
fever and weakness; the attending nurse gave him Tylenol and Milk
of Magnesium and instructed him about the necessity of fluids. See
id. at
~
8 (citing Def. Ex. D at 17-19). Nurse K. Grega noted that
Plaintiff had a negative TB test one month before on May 8, 2009.
See id. (citing Def. Ex. D at 18-19). After observation, the staff
9
An H. pylori infection occurs when a type of bacteria called
Helicobacter
pylori
infects
the
stomach.
See
http://www.mayoclinic.org/diseases.
12
released him. See id. The next day, on June 4, 2009, Dr. Hoang saw
Plaintiff for his complaints of weakness and a low grade fever. See
at~
id.
9 (citing Def. Ex. D at 20-22). Plaintiff was provided
Tylenol and fluid administration, and Nurse K. Grega assisted with
the abdominal pain assessment. See id.
On June 11, 2009, Dr. Hoang saw Plaintiff again for a fever,
abdominal pain, weight loss, and some cramping. See id. at
~
10
(citing Def. Ex. D at 24-25). The medical staff admitted Plaintiff
to
the
infirmary
provided Tylenol,
for
observation
for
twenty-three
hours
medication for a bacterial infection,
liquid diet. See id.
and
and a
(citing Def. Ex. D at 25). The next day, on
June 12, 2009, Dr. Hoang noted that Plaintiff was "doing fine and
eating well." See id. at
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