Dausch, Jr. v. Corizon Corporation et al

Filing 76

ORDER granting 59 Defendant Gonzalo Espino's Motion for summary judgment. Plaintiff's Eighth Amendment and medical malpractice claims against Defendant G. A. Espino are DISMISSED with prejudice. Defendant G. A. Espino is DISMISSED from this action. Signed by Judge Brian J. Davis on 8/15/2017. (HMJ)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
CARL E. DAUSCH, JR.,
Plaintiff,
v.

Case No. 3:15-cv-421-J-39JBT

CORIZON CORPORATION, et al.,
Defendants.
________________________________

ORDER
I. Status
Plaintiff, a former inmate of the Florida penal system, 1 is proceeding in this action
on a pro se Amended Civil Rights Complaint (Amended Complaint) (Doc. 6) with exhibits
(P. Ex.). Plaintiff names Corizon Corporation (Corizon); Sergio Lagman, M.D.; Olugbenga
Ogunsanwo, M.D.; Isabel Rodriguez, M.D.; 2 and G. A. Espino (Dr. Espino) as defendants.
In the Amended Complaint, Plaintiff asserts Defendants were deliberately indifferent to
his shoulder injuries and pain, and Hepatitis C condition by failing to provide adequate
medical treatment in violation of the Eighth Amendment and Florida’s medical malpractice
law. Plaintiff seeks loss of future earnings, as well as compensatory and punitive
damages.
Before the Court is Defendant Gonzalo Espino’s Motion for Final Summary
Judgment (Espino Motion) (Doc. 59), including Dr. Chad Jeremy Zawitz’s Affidavit (Zawitz
Aff.) and Plaintiff’s deposition transcript (P. Depo.). Plaintiff filed his response to the

1
2

Plaintiff is currently an inmate confined in the Indiana state prison system.
On July 7, 2015, Isabel Rodriguez, M.D. was dismissed from this action (Doc. 10).

Espino Motion. See Plaintiff’s Brief in Opposition to Defendant Dr. Espino’s for Summary
Judgment Motion (Response) (Doc. 69) with exhibits (Resp. Ex.).
II. Summary Judgment Standard of Review
The Eleventh Circuit set forth the summary judgment standard.
Summary judgment is proper when “there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a). The
substantive law controls which facts are material and which
are irrelevant. Raney v. Vinson Guard Service, Inc., 120 F.3d
1192, 1196 (11th Cir. 1997). Typically, the nonmoving party
may not rest upon only the allegations of his pleadings, but
must set forth specific facts showing there is a genuine issue
for trial. Eberhardt v. Waters, 901 F.2d 1578, 1580 (11th Cir.
1990). A pro se plaintiff's complaint, however, if verified under
28 U.S.C. § 1746, is equivalent to an affidavit, and thus may
be viewed as evidence. See Murrell v. Bennett, 615 F.2d 306,
310 n.5 (5th Cir. 1980). Nevertheless, “[a]n affidavit or
declaration used to support or oppose a motion must be made
on personal knowledge.” Fed. R. Civ. P. 56(c)(4). “[A]ffidavits
based, in part, upon information and belief, rather than
personal knowledge, are insufficient to withstand
a motion for summary judgment.” Ellis v. England, 432 F.3d
1321, 1327 (11th Cir. 2005).
As we've emphasized, “[w]hen the moving party has carried
its burden under Rule 56[ ], its opponent must do more than
simply show that there is some metaphysical doubt as to the
material facts...Where the record taken as a whole could not
lead a rational trier of fact to find for the non-moving party,
there is no ‘genuine issue for trial.’ ” Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 586–87, 106 S.Ct.
1348, 89 L.Ed.2d 538 (1986). “[T]he mere existence
of some alleged factual dispute between the parties will not
defeat
an
otherwise
properly
supported motion for
summary judgment; the requirement is that there be
no genuine issue of material fact.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 247–48, 106 S.Ct. 2505, 91 L.Ed.2d 202
(1986). Unsupported, conclusory allegations that a plaintiff
suffered a constitutionally cognizant injury are insufficient to
withstand a motion for summary judgment. See Bennett v.
Parker, 898 F.2d 1530, 1532–34 (11th Cir. 1990) (discounting
inmate's claim as a conclusory allegation of serious injury that
2

was unsupported by any physical evidence, medical records,
or the corroborating testimony of witnesses). Moreover,
“[w]hen opposing parties tell two different stories, one of which
is blatantly contradicted by the record, so that no reasonable
jury could believe it, a court should not adopt that version of
the
facts
for
purposes
of
ruling
on
a motion for summary judgment.” Scott v. Harris, 550 U.S.
372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007).
Howard v. Memnon, 572 F. App’x 692, 694-95 (11th Cir. 2014) (per curiam) (footnote
omitted).
III. Statement of Facts 3
On May 30, 2012, Plaintiff was placed on death row 4 at the Florida State Prison
(FSP), and underwent an initial medical intake screening. Amended Complaint at 4;
Zawitz Aff. Ex. B-1 at 232-33. At the screening, Plaintiff informed two nurses that (1) he
had Hepatitis C and wanted to be treated for the disease and (2) he had reconstructive
right shoulder surgery and a “full thickening tear in his left shoulder that needed repair[].”
Amended Complaint at 4-5. Further, Plaintiff “explained that he had Acromioclavicle
Degenerative Joints in both shoulders and then requested a medical front cuff pass.” Id.
at 5. The nurses told Plaintiff that he would not be given a front cuff pass, but that he
would be “black box cuffed” 5 behind his back until his execution. Id. Dr. Lagman examined
Plaintiff and prescribed the same medications Plaintiff took at the time he entered FSP,
including a thirty-day supply of Excedrin for pain. Zawitz Aff. Ex. B-1 at 334, 356.

3

The Court assumes all the facts in the light most favorable to Plaintiff and draws all inferences in Plaintiff's
favor. See McKinney v. Sheriff, 520 F. App’x 903, 905 (11th Cir. 2013) (per curiam). The Court presents
the facts that are relevant to Plaintiff’s claims against Dr. Espino.
4
On June 12, 2014, the Florida Supreme Court vacated Plaintiff’s convictions and sentences. See Dausch
v. State, 141 So. 3d 513 (Fla. 2014).
5 A black box is a rectangular device that fits over a pair of handcuffs in order to limit hand movements and
prevent access to the handcuff's key holes. See Wean v. Budz, 589 F. App'x 488, 489 n.1 (11th Cir. 2014).
3

On July 11, 2012, Dr. Espino assessed Plaintiff on a follow-up to Plaintiff’s labwork
and to check Plaintiff’s hypertension medication. Id. at 329. Dr. Espino noted Plaintiff’s
chronic right shoulder pain and the right shoulder surgery performed in 2009. Id. On July
13, 2012, in response to Plaintiff’s sick call request for a front cuff pass, S. D. Tollick,
CMTC (Correctional Medical Technician Certified) examined Plaintiff. Id. at 327. Plaintiff
provided Tollick with an MRI from his previous shoulder injury and stated “it’s tore again.”
Id. During the examination, Tollick found negative “edema, discoloration, crepidus to bilat
shoulders,” a “well healed scar from previous surgery,” and that Plaintiff was “able to raise
arm to should[er] height without difficulty or grimace.” Id. Plaintiff’s “[c]hart [was
forwarded] to clinician for review of front cuff pass request.” Id. Dr. Espino reviewed
Plaintiff’s medical records and denied Plaintiff’s request for a front cuff pass on July 16,
2012. Id.
On July 27, 2012, in response to Plaintiff’s sick call request, J. Slominski, SLPN
(Senior Licensed Practical Nurse) assessed Plaintiff who complained of right shoulder
pain. Id. at 325. Slominski indicated that Plaintiff had a limited range of motion in the right
shoulder, but there was no swelling or deformity present. Id. Further, Plaintiff did not
experience any extremity numbness or extremity tingling. Id. Slominski gave Plaintiff two
to three tablets of 200 mg Ibuprofen by mouth for the pain, and instructed Plaintiff to report
any skin discoloration, coolness, tingling, numbness, or increase in pain in the affected
extremity immediately. Id. Slominski saw Plaintiff again on August 16, 2012, regarding
Plaintiff’s complaints of extreme pain to the right shoulder. Id. at 322. Plaintiff stated that
“the black box caused new damage to [his] shoulder” and his shoulder would “dislocate
throughout [the] day.” Id. Plaintiff indicated that he had experienced extremity numbness

4

and extremity tingling, though Slominski observed no swelling or deformity. Id. Slominski
gave Plaintiff two to three tablets of 200mg Ibuprofen and submitted a “routine referral to
MD.” Id.
On August 22, 2012, Dr. Lagman saw Plaintiff. Id. at 320. Plaintiff complained that
he was in pain for three weeks, felt “like screws [were] tearing away,” that his shoulder
“dislocate[d] often with as much as lifting a food tray,” and that it was “hard to sleep.” Id.
According to Plaintiff, he again requested a front cuff pass. Amended Complaint at 5. Dr.
Lagman noted the scars from Plaintiff’s previous endoscopic procedure of the right
shoulder, but observed no swelling, deformity, or dislocation. Id. Dr. Lagman prescribed
Excedrin for Plaintiff’s pain, ordered an x-ray of Plaintiff’s right shoulder, and denied
Plaintiff’s request for a front cuff pass. Id. at 320, 355, 407; Amended Complaint at 5. The
x-ray of Plaintiff’s right shoulder was performed on August 30, 2012, 6 and Dr. Lagman
reviewed the x-ray on September 5, 2012, notating “post-surgical change. No acute
process.” Id. at 319, 406. On September 10, 2012, Dr. Espino reviewed Plaintiff’s medical
records and agreed with Dr. Lagman’s assessment that a front cuff pass was not
necessary. Id. at 319.
On September 24, 2012, in response to Plaintiff’s sick call request, M. Bell, LPN
(Licensed Practical Nurse) saw Plaintiff who complained of extreme right shoulder pain
and the fact that Ibuprofen “work[ed] very little.” Id. at 317. Bell notes there was no
swelling or deformity present, and that Plaintiff did not experience any extremity
numbness or extremity tingling. Id. Plaintiff did not received any treatment or medication
on this visit, however Bell advised Plaintiff to limit his activities until the symptoms

6

Plaintiff’s right shoulder x-ray report states “There are surgical sutures in the humeral head. No fracture
or significant osseous lesion is identified.” Zawitz Aff. Ex. B-1 at 406.
5

improved. Id. On September 28, 2012, Slominski saw Plaintiff for his complaints of right
shoulder pain from “being cuffed behind the back with black box.” Id. at 316. Slominski
noted that an x-ray of Plaintiff’s right shoulder was performed on August 30, 2012,
indicating no fracture or significant osseous lesion was identified. Id. Slominski gave
Plaintiff Ibuprofen and advised Plaintiff to limit his activities to the right shoulder. Id.
On October 3, 2012, Bell saw Plaintiff regarding Plaintiff’s complaints of left
shoulder pain and upper chest pain. Id. at 315. Bell forwarded Plaintiff’s “chart to a
clinician for [a] routine referral.” Id. Thereafter, Dr. Lagman evaluated Plaintiff for an MRI
scan and a front cuff pass on October 17, 2012. Id. at 314. Dr. Lagman noted that on
August 30, 2012, Plaintiff had an x-ray that revealed no significant osseous lesion, and
therefore, no MRI was needed. Id. Further, Dr. Lagman assessed Plaintiff’s shoulder pain
with and without cuffs, and concluded a front cuff pass was not needed. Id.
On June 11, 2013, Dr. Espino prescribed 400mg Ibuprofen for Plaintiff’s shoulder
pain. Id. at 311, 352. On October 2, 2013, Dr. Espino examined Plaintiff for a “possible
[left] bicep muscle separation.”7 Id. at 306. Dr. Espino gave Plaintiff a Toradol injection,
increased Plaintiff’s dosage of Ibuprofen to 600mg, and wrapped Plaintiff’s left arm in an
ace bandage. Id. at 306, 350, 352. Further, Dr. Espino submitted a referral seeking an
urgent orthopedic consultation. Id. at 306, 372; P. Ex. G at 2. Dr. Espino performed a
follow-up assessment of Plaintiff and approved a front cuff pass for Plaintiff on October
9, 2013. Zawitx Aff. Ex. B-1 at 305, 369; Resp. Ex. N. The front cuff pass expired on

7 Dr. Espino notes that Plaintiff was “doing push ups” when Plaintiff experienced “sudden pain.” Zawitz Aff.
Ex. B-1 at 306. Plaintiff denies that he told Dr. Espino that he was doing push-ups at the time he injured his
left shoulder. Resp. Ex. A. at 2. Plaintiff states that his shoulder injuries would not allow him to do “push
ups, pull ups, or dips.” Id. Viewing the evidence in the light most favorable to Plaintiff, the Court does not
consider Dr. Espino’s explanation for the cause of Plaintiff’s left shoulder injury and pain.
6

December 9, 2013. Zawitx Aff. Ex. B-1 at 369; Resp. Ex. N. Dr. Espino re-wrapped
Plaintiff’s left arm and called “RNC” regarding the orthopedic referral. Zawitx Aff. Ex. B-1
at 305. On October 15, 2013, Dr. Espino prescribed Excedrin for Plaintiff’s left bicep pain
and again inquired about the orthopedic referral. Id. at 305, 350. On October 16, 2013,
Dr. Espino saw Plaintiff and told him the orthopedic referral was not approved because
“surgery was not indicated” instead, “symptomatic care” was recommended. Id. at 304,
372-73. Dr. Espino re-examined Plaintiff on November 6, 2013, noting limited range of
motion of the left arm with weak flexion and increasing numbness of both upper
extremities. Id. at 303. Dr. Espino prescribed Excedrin and ordered a physical therapy
evaluation for strengthening exercises. Id. at 303, 370-71. The physical therapy
evaluation was completed on January 29, 2014, and it was determined that Plaintiff
should receive physical therapy two times per week for four weeks. Id. at 301, 370-71.
Dr. Espino submitted a request for Plaintiff’s physical therapy on February 4, 2014. Id. at
300, 349. Dr. Espino renewed Plaintiff’s prescription for Excedrin on February 13, 2014.
Id. at 299, 349. D. Varghese, ARNP (Advanced Registered Nurse Practitioner) renewed
Plaintiff’s prescription for Excedrin on March 3, 2014. Id. at 348.
Plaintiff received physical therapy from February 2014 through March 14, 2014. Id.
at 291-98. On March 14, 2014, Connie Sauls, PTA (Physical Therapist Assistant) noted
that Plaintiff had met the current goals set by the primary physical therapist, and while
Plaintiff continued to experience discomfort in his left upper extremity, his range of motion
and strength had improved. Id. at 291. On April 2, 2014, Plaintiff submitted a request for
the renewal of his front cuff pass. Id. at 290. Dr. Espino denied Plaintiff’s request to renew
his front cuff pass due to security reasons on April 3, 2014. Id. Plaintiff submitted another

7

request for a front cuff pass on May 2, 2014. Id. at 288. Dr. R. Vivas denied the request
for security reasons. Id. Plaintiff was transferred to an Indiana state prison in July 2014.
IV. Summary of Arguments and Evidence
Dr. Espino argues that Plaintiff fails to “meet the standard of reckless indifference
to the federally protected rights of others required” for an Eighth Amendment claim.
Espino Motion at 2 (quotations and citations omitted). Dr. Espino submits an affidavit from
Dr. Chad Zawitz, who opined that after review of Plaintiff’s medical records, he “saw no
evidence of any deliberate indifference or deviation from any standard of care by Dr.
Espino at any time during Mr. Dausch’s incarceration in the Florida Department of
Corrections.” Zawitz Aff. Ex. C. Dr. Espino also argues that Plaintiff’s medical malpractice
claim fails because Plaintiff did not comply with the pre-suit notice requirement. Lastly,
Dr. Espino asserts that Plaintiff fails to demonstrate a reasonable basis for entitlement to
punitive damages.
In response, Plaintiff contends there are disputed issues of material fact that
preclude summary judgment of his Eighth Amendment claim. Further, Plaintiff asserts he
is entitled to compensatory and punitive damages because there is evidence that his
Eighth Amendment rights were violated. See Response at 8. Plaintiff does not present
any argument or evidence in defense of his medical malpractice claim against Dr. Espino.
V. Law and Conclusions
A. Deliberate Indifference to Plaintiff’s Serious Medical Needs
The Eighth Amendment prohibits “deliberate indifference to a prisoner’s serious
illness or injury.” Estelle v. Gamble, 429 U.S. 97, 105 (1976). To state a § 1983 claim for
deliberate indifference, a plaintiff must show “(1) a serious medical need; (2) the health

8

care providers' deliberate indifference to that need; and (3) causation between the health
care providers' indifference and [the plaintiff’s] injury.” Dang by & through Dang v. Sheriff,
Seminole Cty. Florida, 856 F.3d 842, 850 (11th Cir. 2017). This analysis contains both an
objective and a subjective component.
First, a plaintiff must show an objectively serious medical need. “A serious medical
need is 'one that has been diagnosed by a physician as mandating treatment or one that
is so obvious that even a lay person would easily recognize the necessity for a doctor's
attention.' In the alternative, a serious medical need is determined by whether a delay in
treating the need worsens the condition.” Mann v. Taser Int'l, Inc., 588 F.3d 1291, 1307
(11th Cir. 2009) (quoting Hill v. Dekalb Reg'l Youth Det. Ctr., 40 F.3d 1176, 1187 (11th
Cir. 1994)).
For the subjective component, a plaintiff must show that the health care providers
acted with deliberate indifference. To establish deliberate indifference, the plaintiff must
prove “(1) subjective knowledge of a risk of serious harm; and (2) disregard of that risk
(3) by conduct that is more than mere negligence.” Dang by & through Dang, 856 F.3d at
850 (citing McElligott v. Foley, 182 F.3d 1248, 1255 (11th Cir. 1999)). “Subjective
knowledge of the risk requires that the defendant 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.’” Id. (quoting Caldwell v. Warden, FCI Talladega, 748 F.3d 1090,
1099–100 (11th Cir. 2014)). Thus, “[t]he plaintiff must prove that the defendant ‘actually
knew’ of the risk -‘[p]roof that the defendant should have perceived the risk, but did not,
is insufficient.’” Kruse v. Williams, 592 F. App'x 848, 856 (11th Cir. 2014) (quoting
Campbell v. Sikes, 169 F.3d 1353, 1364 (11th Cir. 1999) (brackets in original)). In

9

addition, health care providers “who actually knew of a substantial risk to [an] inmate[‘s]
health or safety may be found free from liability if they responded reasonably to the risk,
even if the harm ultimately was not averted.” Farmer v. Brennan, 511 U.S. 825, 844
(1994). Now, “[c]onduct that is more than mere negligence includes: (1) knowledge of a
serious medical need and a failure or refusal to provide care; (2) delaying treatment for
non-medical reasons; (3) grossly inadequate care; (4) a decision to take an easier but
less efficacious course of treatment; or (5) medical care that is so cursory as to amount
to no treatment at all.” McKeithen v. Jackson, 606 F. App’x 937, 939 (11th Cir. 2015)
(citing McElligott, 182 F.3d at 1255).
In this case, Dr. Espino presents no argument regarding whether Plaintiff had a
serious medical need. Therefore, the Court assumes for purposes of summary judgment
that Plaintiff has demonstrated a serious medical need. Instead, Dr. Espino argues that
there is no evidence that he was aware of Plaintiff’s serious medical need and failed to
treat it. The Court agrees.
The evidence reveals that Plaintiff was regularly and consistently being seen by
health care providers, including Dr. Espino to deal with his shoulder conditions. In
particular, Dr. Espino examined Plaintiff on July 11, 2012, October 2, 2013, October 9,
2013, October 16, 2013, and November 6, 2013. Dr. Espino also prescribed medication
for Plaintiff’s shoulder pain when necessary. After Plaintiff was denied an orthopedic
consultation, Dr. Espino continued to provide medical services to Plaintiff and was able
to get Plaintiff into physical therapy. The evidence reveals that Plaintiff experienced
benefits from the physical therapy. Now, with respect to the times Dr. Espino denied

10

Plaintiff a front cuff pass, there is no evidence that a front cuff pass was medically
necessary or that Dr. Espino disregarded a risk of serious harm to Plaintiff.
Given the evidence viewed in the light most favorable to Plaintiff, it does not
demonstrate that Dr. Espino’s medical treatment was “so grossly incompetent,
inadequate, or excessive as to shock the conscience or to be intolerable to fundamental
fairness” to constitute a violation of the Eighth Amendment. Dang by & through Dang, 856
F.3d at 850. Therefore, the Court grants the Espino Motion as it relates to Plaintiff’s
Eighth Amendment claim against Dr. Espino.
B. Medical Malpractice
Before claims for medical negligence or medical malpractice may be initiated in a
lawsuit, a plaintiff must comply with certain pre-suit requirements set forth in Chapter 766,
Florida Statutes, commonly known as Florida’s Medical Malpractice Reform Act of 1985.
Under Chapter 766, a plaintiff must give a ninety-day notice of “intent to initiate litigation
for medical negligence” or medical malpractice. Fla. Stat. § 766.106(2)(a)-(3)(a). This presuit requirement applies to incarcerated plaintiffs, see O'Hanrahan v. Moore, 731 So. 2d
95 (Fla. 4th DCA 1999), and to cases filed in federal court. See Johnson v. McNeil, 278
F. App’x 866 (11th Cir. 2008); Clark v. Sarasota Cty. Public Hosp. Bd., 65 F. Supp. 2d
1308 (M.D. Fla. 1998). Thus, a medical negligence or medical malpractice claim must be
dismissed if the plaintiff fails to comply with the pre-suit requirement. See, e.g., Gross v.
White, 340 F. App’x 527, 532 (11th Cir. 2009) (finding inmate plaintiff in a civil rights action
filed in federal court did not meet the procedural requirements necessary to pursue a
medical negligence claim under Florida law); Johnson, 278 F. App’x at 872 (affirming the
federal district court finding that Florida law mandates the dismissal of a medical

11

malpractice claim when the claimant, the personal representative for the estate of the
deceased inmate, had not fulfilled the pre-suit requirements under Florida law). However,
the plaintiff may cure the default and proceed with the suit as long as the pre-suit
requirement is fulfilled within the applicable statute of limitations. Johnson, 278 F. App’x
at 871 (citing Kukral v. Mekras, 679 So. 2d 278, 283 (Fla. 1996)).
Dr. Espino argues that Plaintiff’s medical malpractice claim should be dismissed
because Plaintiff did not send him the required pre-suit notice and the statute of limitations
to do so has expired. Plaintiff does not address this issue in his Response or allege in his
Complaint that he complied with the pre-suit notice requirement.
Based on Plaintiff’s lack of response, the Court can only conclude that Plaintiff
failed to provide Dr. Espino with a pre-suit notice. Moreover, Plaintiff cannot cure this
deficiency now because the statute of limitations period has passed. See Fla. Stat. §
95.11(4)(b)(“an action for medical malpractice shall be commenced within 2 years from
the time the incident giving rise to the action or within 2 years from the time the incident
is discovered, or should have been discovered with the exercise of due diligence;
however, in no event shall the action be commenced later than 4 years from the date of
the incident or occurrence out of which the cause of action accrued.”). For these reasons,
Plaintiff’s medical malpractice claim against Dr. Espino is due to be dismissed. Therefore,
the Court grants the Espino Motion as it relates to Plaintiff’s medical malpractice claim
against Dr. Espino. Based on the foregoing, it is now
ORDERED:
1. Defendant Gonzalo Espino’s Motion for Summary Judgment (Doc. 59) is
GRANTED.

12

2. Plaintiff’s Eighth Amendment and medical malpractice claims against
Defendant G. A. Espino are DISMISSED with prejudice.
3. Defendant G. A. Espino is DISMISSED from this action.
DONE AND ORDERED at Jacksonville, Florida, this 15th day of August, 2017.

sflc
c:

Carl E. Dausch, Jr.
Counsel of Record

13