O'Connor v. RMC et al
Filing
243
ORDER granting 136 Defendant Jones' Motion to Dismiss; denying 170 Plaintiff's Motion Requesting Permission to Conduct Discovery regarding the claims against Defendant Contarini and to Appoint Counsel; granting 25 Defendant Contar ini's Motion for Summary Judgment; denying 153 Plaintiff's Motion for Partial Summary Judgment against Defendant Contarini; granting to the extent stated 126 Plaintiff's Motion to Proceed with Discovery; ruling remains deferred o n 220 Plaintiff's Motion for Summary Judgment against Defendant Shah; denying 209 Defendant Shah's Motion for Sanctions, adopted by Defendant Contarini 225 ; denying as moot 212 and 217 Plaintiff's Motions; denying 226 Def endant Contarini's Motion to Strike; denying 227 , 229 , 233 Plaintiff's Motions; granting to the extent stated and otherwise denying 237 Plaintiff's Motion. Parties to serve discovery by 2/5/2019; Dispositive motions due by 4/29/2019; Responses to dispositive motions due by 6/13/2019. SEE ORDER FOR DETAILS. Signed by Judge Timothy J. Corrigan on 12/21/2018. (JLD)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
NYKA O’CONNOR,
Plaintiff,
v.
Case No. 3:15-cv-1387-J-32JBT
JULIE JONES, et al.,
Defendants.
________________________
ORDER1
I. Status
Plaintiff, an inmate of the Florida penal system, is proceeding on a pro se Civil Rights
Complaint pursuant to 42 U.S.C. § 1983 (Doc. 1).2 Throughout the pendency of this case,
Plaintiff has filed several supplemental documents to support his assertions. See, e.g., Docs.
83, 90, 96, 100, 102, 111, 175, 194, 200, 201. In the Complaint, Plaintiff names as
Defendants Julie Jones, the Secretary of the Florida Department of Corrections (FDOC); Dr.
Shah, a “Gastro Specialist” at the Reception and Medical Center (RMC); and Dr. Contarini,
1
On March 13, 2018, Plaintiff filed a notice of interlocutory appeal (Doc. 211) of the
Court’s February 21, 2018 Order (Doc. 203), and on April 30, 2018, Plaintiff filed a notice of
interlocutory appeal (Doc. 218) of the Court’s April 3, 2018 Order (Doc. 215). This Court
waited to enter this dispositive Order until the appeals were resolved. See USCA Orders
(Docs. 235, 242).
2
Citations to all filings will be to the document and page numbers as assigned by the
Court’s electronic case filing system.
a “General Surgeon” at RMC.3 Doc. 1 at 3-4. He alleges that since he had stomach surgery
in 2010, he has complained about “severe gastro pains and cramps[] that prohibit [him] from
walking, eating, sleeping, etc.” Id. at 9. He provides additional details about his other medical
and mental health ailments, and claims that Defendants have been deliberately indifferent
to his serious medical needs. Plaintiff also asserts that the Secretary of the FDOC has a
custom, practice, or policy to unnecessarily delay providing adequate care to inmates’
serious medical needs. Id. at 5. Additionally, Plaintiff relates problems with his diet and
contends that the diet he is provided is insufficient and infringes on his “sincere Jewish &
Siddha beliefs.” Id. at 9.4 He also alleges violations of the Americans with Disabilities Act
(ADA) and the Rehabilitation Act (RA), as well as breach of contract claims. Attached to the
Complaint are several grievances submitted by Plaintiff and the institutional responses
thereto, as well as various other exhibits in support of Plaintiff’s claims.
Before the Court are dispositive motions regarding the claims against Defendants
Jones and Contarini. Specifically, Defendant Jones filed a Motion to Dismiss (Doc. 136), to
which Plaintiff filed an Affidavit and Response in opposition (Doc. 176). Defendant Contarini
and Plaintiff filed cross-motions for summary judgment. See Defendant Contarini’s Motion
3
Plaintiff also named RMC as a Defendant, but the Court dismissed those claims on
December 2, 2015. See Order (Doc. 6).
4
Plaintiff explains in his Response to Defendant Jones’ Motion to Dismiss that his religion
is “Vegetarian Judaism, which incorporates Siddha/SYDA Science” and that “Siddha
Yoga/Kundalini Yoga is not a religion, but can be considered part of [his] belief system.” Doc.
176 at 5 (capitalization and emphasis omitted).
2
for Summary Judgment (Docs. 25, 1575) and Plaintiff’s opposition (Docs. 54, 55); Plaintiff’s
Motion for Partial Summary Judgment against Defendant Contarini and supporting
documents (Docs. 153, 154, 171)6 and Defendant Contarini’s opposition (Doc. 159). The
motions are now ripe for review.
II. Defendant Jones’ Motion to Dismiss
Plaintiff lists his claims against Defendant Jones as follows: (1) “denying O’Connor
adequate diet [and] salt for his gastro health [and] religion” in violation of the First and Eighth
Amendments, ADA, RA, and the Religious Land Use and Institutionalized Persons Act
(RLUIPA); (2) “denying O’Connor adequate care for his serious gastro [and] shoulder needs”
in violation of the Eighth Amendment, ADA, and RA; and (3) “denying O’Connor adequate
diet, gastro [and] shoulder care for serious medical needs [and] not accommodating
constitute breach of contract under Federal Common Laws [and] Fl[orida] contract laws.”
Doc. 1 at 8 (capitalization omitted). He alleges that Defendant Jones “has a practice, custom,
[or] policy to subject inmates to unnecessary delay to provide adequate care for serious
[medical] needs, even self injuries.” Id. at 5 (capitalization omitted). He asserts that the
“FDOC . . . [was] well aware” of his complaints based on his “verbal disclosure, written
records, past history, e-mails, etc.” Id. at 13.
5
Certain exhibits to Defendant Contarini’s Motion were filed under seal. See Doc. 157.
The redacted versions of the exhibits are attached to Doc. 132. The Court will cite to the
redacted exhibits.
6
It appears that Plaintiff entitled this a “partial” motion because he requests that his
damages be determined at a trial. Doc. 153 at 24.
3
Defendant Jones argues that (1) Plaintiff’s claims which accrued before November 17,
2011 are time-barred; (2) Plaintiff fails to state a claim under the ADA or the RA; (3) Plaintiff
fails to state a claim regarding his medical treatment, and the claims regarding his diet are
frivolous and/or he has failed to allege sufficient factual matter to state a claim; (4) Plaintiff
should not be permitted to bootstrap unrelated claims to the claims which he used to satisfy
the imminent danger exception to dismissal under 28 U.S.C. § 1915(g); and (5) Defendant
Jones is entitled to qualified immunity and Eleventh Amendment immunity. See Doc. 136.7
“To survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim
has facial plausibility when the plaintiff pleads factual content that allows the court to draw
the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing
Twombly, 550 U.S. at 556). “Labels and conclusions” or “a formulaic recitation of the
elements of a cause of action” that amount to “naked assertions” will not do. Id. (quotations,
alteration, and citation omitted). Moreover, a complaint must “contain either direct or
inferential allegations respecting all the material elements necessary to sustain a recovery
under some viable legal theory.” Roe v. Aware Woman Ctr. for Choice, Inc., 253 F.3d 678,
683 (11th Cir. 2001) (quotations and citations omitted). The Court liberally construes the pro
se Plaintiff’s allegations. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Bingham v.
Thomas, 654 F.3d 1171, 1175 (11th Cir. 2011).
7
Plaintiff states that his RLUIPA and breach of contract claims “were evaded,” because
Defendant Jones did not directly address them in her Motion. Doc. 176 at 29. Regardless,
the Court can review these claims under 28 U.S.C. § 1915(e)(2)(B).
4
A. Claims Relating to 2010 Surgery
Plaintiff has failed to allege sufficient factual allegations to maintain a cause of action
against Defendant Jones for what occurred during his 2010 surgery or his immediate postsurgery medical care.8 Insofar as Plaintiff is attempting to raise any claims against Defendant
Jones in that regard, the claims are due to be dismissed.
B. ADA and RA Claims
Under Title II of the ADA, public entities are prohibited from
discriminating against individuals with disabilities or denying
them services because of their disabilities. See 42 U.S.C. §
12132. “Only public entities are liable for violations of Title II of
the ADA.” Edison v. Douberly, 604 F.3d 1307, 1308 (11th Cir.
2010). State prisons are public entities for purposes of the
ADA. Pa. Dep’t of Corr. v. Yeskey, 524 U.S. 206, 210 (1998).
The standard for determining liability under the [RA] is the
same as the standard under the ADA. Ellis v. England, 432
F.3d 1321, 1326 (11th Cir. 2005) (per curiam).[9]
To state a claim of discrimination under Title II, a claimant must
prove:
(1) that he is a qualified individual with a
disability; and (2) that he was either excluded
from participation in or denied the benefits of a
public entity’s services, programs, or activities, or
8
Defendant Jones was appointed as the Secretary of the FDOC in January 2015. See
Florida Department of Corrections, Office of the Secretary, available at
http://www.dc.state.fl.us/secretary.html (last visited Dec. 12, 2018).
9
“With the exception of its federal funding requirement, the RA uses the same standards
as the ADA, and therefore, cases interpreting either are applicable and interchangeable.”
Badillo v. Thorpe, 158 F. App’x 208, 214 (11th Cir. 2005) (citing Cash v. Smith, 231 F.3d
1301, 1305 & n. 2 (11th Cir. 2000)); see J.S., III by & through J.S. Jr. v. Houston Cty. Bd. of
Educ., 877 F.3d 979, 985 (11th Cir. 2017) (“Discrimination claims under the ADA and the
[RA] are governed by the same standards, and the two claims are generally discussed
together.”).
5
was otherwise discriminated against by the
public entity; and (3) that the exclusion, denial of
benefit, or discrimination was by reason of the
plaintiff’s disability.
Bircoll v. Miami-Dade Cty., 480 F.3d 1072, 1083 (11th Cir.
2007). Public entities must make reasonable modifications to
their policies, practices, or procedures when necessary to
avoid discrimination on the basis of a disability unless making
the modifications would “fundamentally alter the nature of the
service[s], program[s], or activit[ies].” 28 C.F.R. § 35.130(b)(7).
A disability is “a physical or mental impairment that
substantially limits one or more major life activities,” such as
caring for oneself, concentrating, or thinking. 42 U.S.C. §
12102(1)(A), (2)(A). A qualified individual with a disability is
someone who has a disability and “meets the essential
eligibility requirements for the receipt of services or the
participation in programs or activities provided by a public
entity,” with or without reasonable modifications. Id. §
12131(2).
Owens v. Sec’y, Fla. Dep’t of Corr., 602 F. App’x 475, 477-78 (11th Cir. 2015) (some internal
citations modified); see Shotz v Cates, 256 F.3d 1077, 1079 (11th Cir. 2001).
Because only public entities may be liable under the ADA and RA, Plaintiff fails to
state a claim against Defendant Jones in her individual capacity. See, e.g., Owens, 602 F.
App’x at 477, 478; Edison v. Douberly, 604 F.3d 1307, 1308 (11th Cir. 2010) (“Only public
entities are liable for violations of Title II of the ADA.”); Badillo v. Thorpe, 158 F. App’x 208,
211 (11th Cir. 2005) (“[T]here is no individual capacity liability under Title II of the ADA or
RA.”). Therefore, the Court will grant Defendant Jones’ Motion to the extent that any claims
raised against her in her individual capacity under the ADA and RA are due to be dismissed.
6
Even assuming Plaintiff has sufficiently alleged that he is a qualified individual with a
disability,10 he has failed to sufficiently allege an ADA or RA claim against Defendant Jones
in her official capacity as the Secretary of the FDOC. Plaintiff does not provide factual
allegations that would even lead to an inference that he was discriminated against on the
basis of some disability. Plaintiff’s complaint is that he was not given special
accommodations as he requested; specifically, his requested diet, a no heavy lifting pass,
a front cuff pass, and adequate medical care for his complex regional pain syndrome and
gastro disabilities. To the extent he is basing his claims on his perceived lack of adequate
medical care, claims under the ADA and RA cannot be used as a means to pursue medical
malpractice claims. Indeed, the ADA was not designed to subsume medical malpractice
claims, and ADA claims do not arise from a defendant’s failure to provide medical care to a
disabled inmate. See Jones v. Rutherford, 546 F. App’x 808, 811-12 (11th Cir. 2013); Finn
v. Haddock, 459 F. App’x 833, 837-38 (11th Cir. 2012) (stating that “failure to provide
adequate medical treatment . . . does not violate the ADA or [RA]” (citations omitted)). In
sum, Plaintiff’s conclusory allegations fail to state a claim against Defendant Jones under
either the ADA or RA, and her Motion is due to be granted in that regard.
C. Medical Treatment
To state a claim under § 1983, a plaintiff must allege that (1) the defendant deprived
him of a right secured under the United States Constitution or federal law, and (2) such
deprivation occurred under color of state law. Salvato v. Miley, 790 F.3d 1286, 1295 (11th
10
Plaintiff states that he “is a qualified individual with Gastrointestinal Disabilities that
interrelate[] to [his] Mental Disabilities [and] Shoulder Disabilities (CRPS).” Doc. 1 at 14.
7
Cir. 2015). The Eleventh Circuit has rejected the theory of respondeat superior in § 1983
cases. See Keith v. DeKalb Cty., Ga., 749 F.3d 1034, 1047 (11th Cir. 2014) (citing Cottone
v. Jenne, 326 F.3d 1352, 1360 (11th Cir. 2003)); see also Richardson v. Johnson, 598 F.3d
734, 738 (11th Cir. 2010) (affirming the district court’s dismissal of the secretary of the FDOC
because the plaintiff failed to allege that the secretary personally participated in an action that
caused the plaintiff injury or that the plaintiff’s “injuries were the result of an official policy that
[the secretary] established”).
It is well established in this Circuit that supervisory officials are
not liable under § 1983 for the unconstitutional acts of their
subordinates on the basis of respondeat superior or vicarious
liability. Instead, supervisory liability under § 1983 occurs either
when the supervisor personally participates in the alleged
unconstitutional conduct or when there is a causal connection
between the actions of a supervising official and the alleged
constitutional deprivation. The necessary causal connection
can be established when a history of widespread abuse puts
the responsible supervisor on notice of the need to correct the
alleged deprivation, and he fails to do so. Alternatively, the
causal connection may be established when a supervisor’s
custom or policy . . . result[s] in deliberate indifference to
constitutional rights or when facts support an inference that the
supervisor directed the subordinates to act unlawfully or knew
that the subordinates would act unlawfully and failed to stop
them from doing so. The standard by which a supervisor is
held liable in [his] individual capacity for the actions of a
subordinate is extremely rigorous.
Cottone v. Jenne, 326 F.3d 1352, 1360-61 (11th Cir. 2003) (internal quotations and citations
omitted).
There is no suggestion here that Defendant Jones personally participated in Plaintiff’s
medical care or alleged lack thereof. Rather, Plaintiff alleges that Defendant Jones is liable
based on “a practice, custom, [or] policy to subject inmates to unnecessary delay to provide
8
adequate care for serious needs, even self injuries.” Doc. 1 at 5. Plaintiff further claims that
there was an actual delay in his medical care with respect to a surgery for which he was
approved but never received. To support his claim, he attaches grievances and the
institutional responses to support his assertions.
•
On June 1, 2015, the Chief Health Officer (E. Perez)
advised Plaintiff that he was “approved for surgery” and
they were awaiting “a surgical date.” Doc. 1-3 at 11.
•
On June 22, 2015, Perez advised Plaintiff that he “will
be seen as soon as an appointment is available.” Doc.
1-3 at 17.
•
On June 23, 2015, Plaintiff was advised that he had “a
scheduled appointment with the general surgeon in the
near future.” Doc. 1-9 at 1.
•
Perez advised Plaintiff on July 12, 2015: “There is not a
procedure where Gallstones can be broken up and
passed via your urine. That can be done for some
kidney stones. Gallstones need to be removed.” Doc. 13 at 21.
•
On July 27, 2015, Plaintiff was told that he had an
“appointment with the general surgeon in the near
future.” Doc. 1-3 at 7.
•
In a response dated September 4, 2015, Plaintiff was
advised that he had “been approved to be seen by the
gastroenterologist and the general surgeon.” Doc. 1-3
at 15, 19.
As of the date the Complaint was filed (November 17, 2015), Plaintiff had not had the
surgery.11
11
The Court initially expedited review of this case in light of Plaintiff’s allegations that he
was approved for a surgery but never received it. See Orders (Docs. 6, 7). The Court
directed the Department to provide updates on the status of Plaintiff’s medical care, including
whether he was provided with the approved surgery. See Orders (Docs. 7, 92, 121).
9
Even liberally construing Plaintiff’s allegations, however, his conclusory allegation that
a policy, custom, or practice exists to delay inmates’ medical care, and the example of what
appears to be an actual delay in his care with respect to the gallbladder surgery, is
insufficient to state a claim against Defendant Jones. Plaintiff provides no factual support or
any detail regarding this alleged policy, custom, or practice. And his experience alone is not
enough. “A single incident of a constitutional violation is insufficient to prove a policy or
custom even when the incident involves several employees.” Craig v. Floyd Cty., Ga., 643
F.3d 1306, 1311 (11th Cir. 2011); see Rankin v. Bd. of Regents of the Univ. Sys. of Ga., 732
F. App’x 779, 783 (11th Cir. 2018) (affirming a district court’s dismissal of a supervisory
liability claim, reasoning that the “claim fails because most of the allegations supporting it are
conclusory, and to the extent some are based on facts, they are limited to [the plaintiff’s] own
experience and as a result do not suggest a policy or custom of deliberate indifference to
constitutional rights”). Plaintiff cannot hold Defendant Jones liable simply because she
oversees the FDOC. Simply put, Plaintiff has not alleged sufficient factual matter to even
infer a causal connection between any action or inaction of Defendant Jones and a violation
of Plaintiff’s rights. Thus, Plaintiff has failed to state a claim against Defendant Jones in this
regard.
D. Diet
Plaintiff complains that Defendants have a policy to deny him an adequate diet for his
health and religious beliefs. In 2014, Plaintiff requested that the Department amend or adopt
Defendant Jones filed an Affidavit of Albert Carl Maier, M.D., J.D., on July 27, 2017, with
attached medical records showing that the surgery is no longer medically necessary (Doc.
135); see also Docs. 127 (notice by Defendant Contarini), 128 (notice by Defendant Shah).
10
a rule to allow the combination of two or more therapeutic diets. The Secretary of the FDOC
(then, Michael Crews) denied Plaintiff’s request:
Rulemaking is unnecessary because pursuant to Rule 33204.003(5), Florida Administrative Code, therapeutic diets for
medical or dental reasons shall be provided as ordered by a
Department of Corrections credentialed physician, clinical
associate or dentist. Non-standard therapeutic diets shall be
approved by the public health nutrition program manager and
the regional medical executive director. This existing provision
in Rule 33-204.003(5), Florida Administrative Code, already
allows for non-standard therapeutic diets. Therefore [Plaintiff’s]
issue is one of compliance with existing Department rule or
policy and the issue should be addressed through the inmate
grievance process.
Doc. 1-8 at 1-2.
Plaintiff’s complaints about his diet in this case boil down to his desire to dictate every
detail of his own diet. Indeed, he is requesting a handpicked combination of diets that are
offered by the FDOC. In his Response, he argues that Defendant “Jones et al, have [and]
continue to deny O’Connor a Low Residue, Fat Intolerance, Vegetarian Diet Combined; i.e.,
Non-standard Therapeutic Diet for his serious health needs [and] gastro disability . . . with
sincere Vegetarian Jewish Beliefs [and] SYDA Tenets, forming his belief system.” Doc. 176
at 7-8 (some capitalization omitted). Plaintiff acknowledges there is a procedure in place for
inmates to request a particular diet, but apparently desires to make the request verbally
rather than in writing. See Doc. 1 at 17 (noting that FDOC has a policy where inmates may
verbally request an alternate or vegan diet upon entering a unit, but FDOC exercises a
custom to subject inmates to put their requests in writing). Plaintiff fails to allege a causal
connection between Defendant Jones and any alleged violation of his federally-protected
rights with respect to his diet. His conclusory allegations that FDOC has a policy to deny him
11
an adequate diet are insufficient to state a claim. And he does not allege sufficient factual
matter to infer that an FDOC policy, custom, or practice substantially burdens the exercise
of his religion or otherwise violates his rights. See Smith v. Owens, 848 F.3d 975, 979-80
(11th Cir. 2017) (discussing the elements of a RLUIPA claim); see also Holt v. Hobbs, 135
S. Ct. 853, 862 (2015) (recognzing that “RLUIPA protects ‘any exercise of religion, whether
or not compelled by, or central to, a system of religious belief,’ § 2000cc-5(7)(A), but, of
course, a prisoner’s request for an accommodation must be sincerely based on a religious
belief and not some other motivation”). The claims against Defendant Jones with respect to
Plaintiff’s diet will be dismissed.
E. Eleventh Amendment Immunity
Absent a waiver or action by Congress, the Eleventh Amendment bars a damages suit
against a state or a state official in his or her official capacity. Kentucky v. Graham, 473 U.S.
159, 169 (1985); see Zatler v. Wainwright, 802 F.2d 397, 399-400 (11th Cir. 1986) (per
curiam). “Congress has not abrogated the states’ sovereign immunity for purposes of section
1983 suits for damages, and Florida has not waived its immunity with regard to such suits.”
Wusiya v. City of Miami Beach, 614 F. App’x 389, 393 (11th Cir. 2015) (citing Gamble v. Fla.
Dep’t of Health & Rehab. Servs., 779 F.2d 1509, 1512, 1520 (11th Cir. 1986)). Therefore,
to the extent Plaintiff is suing Defendant Jones in her official capacity under § 1983 for
monetary damages, such claims are dismissed.
F. Contract Claims
In conclusory fashion, Plaintiff contends that Defendant Jones has violated state and
federal contract laws. He attached to his Complaint random pages of a contract purportedly
12
between the FDOC and Corizon, but his allegations are wholly deficient. They will be
dismissed.
G. Conclusion on Defendant Jones’ Motion to Dismiss
The Court has reviewed the pertinent filings with respect to the claims raised against
Defendant Jones, and finds that Plaintiff has failed to state a claim against her. The Court
further finds that any amendment would be futile. This, all claims against Defendant Jones
will be dismissed.12
III. Cross-Motions for Summary Judgment - Claims Against Defendant Contarini
“‘Summary judgment is appropriate where there is no genuine issue as to any material
fact and the moving party is entitled to judgment as a matter of law.’” Hinkle v. Midland Credit
Mgmt., Inc., 827 F.3d 1295, 1300 (11th Cir. 2016) (quoting Jurich v. Compass Marine, Inc.,
764 F.3d 1302, 1304 (11th Cir. 2014)); see Fed. R. Civ. P. 56(a). “A genuine issue of
material fact exists when the evidence is such that a reasonable jury could return a verdict
for the nonmoving party.” Bowen v. Manheim Remarketing, Inc., 882 F.3d 1358, 1362 (11th
Cir. 2018) (quotations and citation omitted).
If the movant satisfies the burden of production showing
that there is no genuine issue of fact, “the nonmoving party
must present evidence beyond the pleadings showing that a
reasonable jury could find in its favor.” Shiver v. Chertoff, 549
F.3d 1342, 1343 (11th Cir. 2008) (quotation omitted). [The
Court] draw[s] “all factual inferences in a light most favorable
to the non-moving party.” Id.
Winborn v. Supreme Beverage Co. Inc., 572 F. App’x 672, 674 (11th Cir. 2014) (per curiam).
12
Given the Court’s findings, there is no need to address Defendant Jones’
“bootstrapping” or qualified immunity arguments.
13
“[W]hen the moving party has carried its burden under Rule 56(c), its opponent must
do more than simply show that there is some metaphysical doubt as to the material facts.”
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (footnote and
citation omitted). “‘A mere scintilla of evidence supporting the opposing party’s position will
not suffice; there must be enough of a showing that the jury could reasonably find for that
party.’” Loren v. Sasser, 309 F.3d 1296, 1302 (11th Cir. 2002) (quoting Walker v. Darby, 911
F.2d 1573, 1577 (11th Cir.1990) (internal quotations omitted)). “The principles governing
summary judgment do not change when the parties file cross-motions for summary
judgment. When faced with cross-motions, the Court must determine whether either of the
parties deserves judgment as a matter of law on the undisputed facts.” T-Mobile S. LLC v.
City of Jacksonville, Fla., 564 F. Supp. 2d 1337, 1340 (M.D. Fla. 2008).13
In his Complaint, Plaintiff lists his claims against Defendant Contarini as follows: (1)
Defendant Contarini was deliberately indifferent to Plaintiff’s serious medical needs; (2) he
denied Plaintiff an adequate diet to comply with Plaintiff’s religion; and (3) his failure to
13
This Court typically does not decide a motion for summary judgment before the end of
discovery. See, e.g., Smith v. Fla. Dep’t of Corr., 713 F.3d 1059, 1064 (11th Cir. 2013)
(“Summary judgment is premature when a party is not provided a reasonable opportunity to
discover information essential to his opposition.”); Snook v. Trust Co. of Ga. Bank of
Savannah, N.A., 859 F.2d 865, 870 (11th Cir. 1988). However, the Court finds that the
record is adequately developed and that it is appropriate to grant Defendant Contarini’s
Motion at this time. The Court previously advised Plaintiff of summary judgment procedures
(Doc. 7) and further advised him that the claims against Defendant Contarini would be
addressed on summary judgment (Doc. 160). Additionally, Plaintiff and Defendant Contarini
filed cross-motions for summary judgment with voluminous supporting exhibits and affidavits.
The Court afforded Plaintiff an opportunity to state exactly what discovery was necessary
before resolving the cross-motions for summary judgment. See Order (Doc. 160). Plaintiff’s
request to conduct discovery (Doc. 170) fails to set forth any relevant discovery that is
necessary to resolve the summary judgment motions. Thus, his request to conduct discovery
on the claims raised against Defendant Contarini will be denied.
14
provide adequate medical treatment and a religious diet constitutes a breach of contract
under federal common law and Florida contract laws. Doc. 1 at 5.
Defendant Contarini filed a Motion for Summary Judgment (Doc. 25), in which he
argues that (1) he was not deliberately indifferent to Plaintiff’s serious medical needs; (2)
Plaintiff did not comply with the legal procedures before bringing a medical negligence
claim;14 and (3) Plaintiff’s breach of contract claims should be dismissed. In an affidavit
attached to the Motion, Defendant Contarini explains his treatment history with Plaintiff.
I am a physician, board certified in general surgery, that
has for a period of time maintained a contract with the [FDOC]
and then Corizon Correctional Healthcare to provide certain
limited medical treatment to inmates referred to my
attention. I am not an employee of the [FDOC].
I first treated Plaintiff on April 8, 2010, one day after he
was admitted to Memorial Hospital in Jacksonville. Plaintiff’s
admission was necessitated by the fact that he swallowed a
paperclip three months prior and an []x-ray completed indicated
the foreign body was still present in the left lower quadrant of
his abdomen.
The next day, April 9, 2010, I performed a simple and
short laparotomy with removal of the paper clip from the
omentum. No complications were experienced during the
completion of this procedure and Plaintiff was discharged from
Memorial Hospital on April 12, 2010.
I did not have involvement with Plaintiff again until
approximately five years later when he was scheduled to
14
Plaintiff states in his Response to Defendant Contarini’s Motion that he did not raise a
claim for negligence, but the Court should find Dr. Contarini was negligent. Doc. 54 at 11.
Because Plaintiff did not raise a negligence claim in his Complaint, and “[a] plaintiff may not
amend [a] complaint through argument in a brief opposing summary judgment,” the Court
will not address the arguments with respect to a state law negligence claim. Dukes v.
Deaton, 852 F.3d 1035, 1046 (11th Cir. 2017) (quoting Gilmour v. Gates, McDonald & Co.,
382 F.3d 1312, 1315 (11th Cir. 2004)), cert. denied, 138 S. Ct. 72 (2017).
15
appear at my clinic . . . on April 20, 2015 and May 11, 2015.
Plaintiff did not present for either visit.
On May 12, 2015, Plaintiff reported to my clinic due to
a referral by a physician at Union Correctional Institution.
Plaintiff presented with left upper quadrant abdominal pain and
his physical examination revealed only mild tenderness on the
left side of his abdomen. A previously completed abdominal
ultrasound indicated “possible gallbladder polyps[.]”
Due to Plaintiff’s multiple dyspeptic complaints aside
and apart from the abdominal pain, I explained that further
testing and treatment needed to be completed including an
additional abdominal ultrasound, laboratory tests, and a
consultation with Dr. Gaurang N. Shah, a gastroenterologist.
Specifically, a consultation with Dr. Shah was recommended in
order to obtain a second non-surgical opinion as to whether Dr.
Shah would be in agreement that a cholecystectomy[15] would
be needed due to Plaintiff’s suspected gallbladder polyps.
Accordingly, I ordered an additional gallbladder ultrasound with
twelve hours of fasting, the consultation with Dr. Shah, and
requested to see Plaintiff back in one month.
At no time before, during or since this May 12, 2015,
visit with the Plaintiff did I diagnose him with appendicitis.
Plaintiff next presented to my clinic on June 9, 2015.
The previously ordered ultrasound and laboratory tests had not
yet been performed. I again ordered that these tests be
completed.
At this visit, Plaintiff made a complaint that he would
prefer a “religious” diet. I explained that I did not, and could not,
prescribe the “religious” diet he requested as that is something
that is determined at an institutional level and is out of my
scope of control.
15
A cholecystectomy is a surgical procedure to remove the gallbladder. See
Cholecystectomy (gallbladder removal), Mayo Clinic, available at
https://www.mayoclinic.org/tests-procedures/cholecystectomy/about/pac-20384818 (last
visited Dec. 12, 2018).
16
While Plaintiff was scheduled to present to my clinic on
July 7, 2015, he did not appear. He was next seen on July 14,
2015. Again Plaintiff complained of left abdominal pain. Each
laboratory test that was performed was within normal limits and
the second ultrasound showed cholesterol stones in his
gallbladder. I performed a physical examination on this date
and found mild tenderness in the left upper quadrant of
Plaintiff’s abdomen. I scheduled a follow up for one month with
the hope that the consultation with Dr. Shah would be
completed by that time.
Plaintiff returned to the clinic on August 20, 2015 and
there were no changes to his complaints and physical findings.
While an upper endoscopy was pending with Dr. Shah, I
explained to Plaintiff that we could move forward with the
cholecystectomy without first having that diagnostic procedure
performed. Plaintiff commented that he would rather have the
polyps themselves removed rather than the gallbladder itself,
I explained that his recommendation would not be the
proper course of treatment for his problems. I also told him
that at the next visit, slated for approximately a month later, I
would schedule the cholecystectomy even if the endoscopy
was not completed.
Plaintiff never returned to my clinic. Accordingly, I
personally never requested approval for the surgery, nor
do I know whether any subsequent request was made or
approval was granted.
In my medical opinion, Plaintiff was never in any
imminent medical danger during the time he treated with my
clinic from May until August of 2015. While I provided
consultations and treatment to Plaintiff during this time period,
the treatment provided was limited to my expertise,
general surgery. Treatment outside of this scope of
expertise and things such as Plaintiff’s request for a
“religious” diet are out of my control and the purview of
my care for the Plaintiff.
Doc. 25-1 (paragraph numbering omitted and emphasis added). Defendant Contarini also
filed Plaintiff’s pertinent medical records (Doc. 132).
17
Plaintiff filed a sworn Response (Doc. 54) and an Affidavit (Doc. 55). He insists that
Defendant Contarini was deliberately indifferent based on his “bad judg[]ment” with respect
to Plaintiff’s gallbladder issues. Doc. 54 at 6. He states that Defendant Contarini “verbally”
diagnosed him with appendicitis on May 12, 2015. Id. at 2. He further states that on June 9,
2015, Defendant Contarini “recommended a low fat diet, over [Plaintiff’s] objections.” Id. at
3 (capitalization omitted). He indicates that he “requested a non-standard therapeutic diet for
his health [and] religion,” but he never requested a “religious diet.” Id. (capitalization and
emphasis omitted). Plaintiff avers that Defendant Contarini “never prescribed [an] adequate
diet” and “never recommended or prescribed [Plaintiff] any meds.” Doc. 55 at 3.
“To prevail on [a] § 1983 claim for inadequate medical treatment, [the plaintiff] must
show (1) a serious medical need; (2) the health care providers’ deliberate indifference to that
need; and (3) causation between the health care providers’ indifference and [the plaintiff’s]
injury.” Nam Dang by & through Vina Dang v. Sheriff, Seminole Cty. Fla., 871 F.3d 1272,
1279 (11th Cir. 2017) (citation omitted).16
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. In either case, the medical need must be one
that, if left unattended, poses a substantial risk of serious harm.
Mann v. Taser Int'l, Inc., 588 F.3d 1291, 1307 (11th Cir. 2009) (quotations and citation
omitted).
16
Claims with respect to inadequate medical care for prisoners (Eighth Amendment) and
pretrial detainees (Fourteenth Amendment) are subject to the same scrutiny. See, e.g.,
Melton v. Abston, 841 F.3d 1207, 1220 (11th Cir. 2016).
18
“Deliberate indifference must be more than an inadvertent failure to provide adequate
medical care, negligence in diagnosis or treatment, or medical malpractice.” McLeod v.
Sec’y, Fla. Dep’t of Corr., 679 F. App’x 840, 843 (11th Cir. 2017) (citing Estelle v. Gamble,
429 U.S. 97, 105-06 (1976)). Indeed, deliberate indifference to a serious medical need
requires “three components: (1) subjective knowledge of a risk of serious harm; (2) disregard
of that risk; (3) by conduct that is more than mere negligence.”17 Farrow v. West, 320 F.3d
1235, 1245 (11th Cir. 2003) (citations omitted); see Dang, 871 F.3d at 1280; Melton, 841
F.3d at 1223 & n.2. “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.’” Dang, 871 F.3d at 1280 (quoting Caldwell v.
Warden, FCI Talladega, 784 F.3d 1090, 1099-1100 (11th Cir. 2014)).
An official disregards a serious risk by more than mere
negligence “when he [or she] knows that an inmate is in
serious need of medical care, but he [or she] fails or refuses to
obtain medical treatment for the inmate.” Lancaster v. Monroe
Cty., Ala., 116 F.3d 1419, 1425 (11th Cir. 1997), overruled on
other grounds by LeFrere v. Quezada, 588 F.3d 1317, 1318
(11th Cir. 2009). Even when medical care is ultimately
provided, a prison official may nonetheless act with deliberate
indifference by delaying the treatment of serious medical
needs. See Harris v. Coweta Cty., 21 F.3d 388, 393-94 (11th
Cir. 1994) (citing Brown v. Hughes, 894 F.2d 1533, 1537-39
(11th Cir. 1990)).[18] Further, “medical care which is so cursory
17
“Accidents, mistakes, negligence, and medical malpractice are not ‘constitutional
violation[s] merely because the victim is a prisoner.’” Harris v. Coweta Cnty., 21 F.3d 388,
393 (11th Cir. 1994) (quoting Estelle, 429 U.S. at 106).
18
“Even where medical care is ultimately provided, a prison official may nonetheless act
with deliberate indifference by delaying the treatment of serious medical needs, even for a
period of hours, though the reason for the delay and the nature of the medical need is
relevant in determining what type of delay is constitutionally intolerable.” McElligott v. Foley,
19
as to amount to no treatment at all may amount to deliberate
indifference.” Mandel v. Doe, 888 F.2d 783, 789 (11th Cir.
1989) (citations omitted). However, medical treatment violates
the Constitution only when it is “so grossly incompetent,
inadequate, or excessive as to shock the conscience or to be
intolerable to fundamental fairness.” Rogers v. Evans, 792 F.2d
1052, 1058 (11th Cir. 1986) (citation omitted).
Dang, 871 F.3d at 1280. “‘[I]mputed or collective knowledge cannot serve as the basis for a
claim of deliberate indifference. Each individual defendant must be judged separately and
on the basis of what that person kn[ew].’” Id. (quoting Burnette v. Taylor, 533 F.3d 1325,
1331 (11th Cir. 2008)).
Even viewing the facts in the light most favorable to Plaintiff, his claim that Defendant
Contarini was deliberately indifferent to his serious medical needs is unfounded and refuted
by the medical records. Plaintiff was referred to Defendant Contarini, a general surgeon, for
evaluation for “probable cholesterol stones within the gallbladder.” Doc. 132-4 at 3
(capitalization omitted). Defendant Contarini provided Plaintiff with medical treatment
including examinations, testing, and referrals. He offered to perform a cholecystectomy, but
Plaintiff requested a different course of treatment. Defendant Contarini, in his medical
opinion, did not agree with the course of treatment suggested by Plaintiff. Defendant
Contarini indicated that he would request approval for the cholecystectomy at Plaintiff’s next
visit, but Plaintiff never returned to the clinic. See Doc. 132-7 at 2. That Defendant Contarini
would not perform or recommend the “less-invasive” option that Plaintiff requested does not
182 F.3d 1248, 1255 (11th Cir. 1999) (citation omitted). However, “[i]t is also true that when
a prison inmate has received medical care, courts hesitate to find an Eighth Amendment
violation.” Waldrop v. Evans, 871 F.2d 1030, 1035 (11th Cir. 1989) (citing Hamm v. DeKalb
County, 774 F.2d 1567, 1575 (11th Cir.1985)); see Boone v. Gaxiola, 665 F. App’x 772, 774
(11th Cir. 2016).
20
render Defendant Contarini deliberately indifferent. See Melton, 841 F.3d at 1224 (“[A] simple
difference in medical opinion between the prison’s medical staff and the inmate as to the
latter’s diagnosis or course of treatment does not support a claim of deliberate indifference.”
(quotations and citation omitted)). Additionally, Plaintiff’s medical records and Defendant
Contarini’s affidavit reflect that Plaintiff was never diagnosed with appendicitis. Plaintiff
cannot create an issue of fact by stating he was verbally diagnosed with appendicitis when
the records show otherwise. Defendant Contarini was not deliberately indifferent in failing to
treat a condition that was never diagnosed.
As to Plaintiff’s diet, Defendant Contarini explained that he could not prescribe the
“religious diet” Plaintiff requested because that is determined at the institutional level and
Defendant Contarini was not employed by the FDOC. See Doc. 25-1 at 4. In June and
August 2015, Defendant Contarini recommended a “low fat” diet based on Plaintiff’s medical
presentation. See Doc. 132-5 at 2; Doc. at 132-7 at 2. Indeed, the medical records show that
Plaintiff complained of constipation and a fatty-food intolerance. See Doc. 132-4 at 2, 3; Doc.
132-5 at 3; 132-6 at 3; 132-7 at 3. But what Plaintiff wanted was his own combination of the
fat intolerance, low residue, and vegetarian diets. Again, while Defendant Contarini did not
order the combination-diet requested by Plaintiff, Plaintiff’s disagreement with Defendant
Contarini’s recommendation does not amount to a constitutional violation. Likewise, the
records support a finding that Defendant Contarini’s failure to provide Plaintiff with pain or
other medications based on his medical presentation is not deliberate indifference.
Plaintiff also contends that Defendant Contarini condoned Defendant Shah’s alleged
delay in treating Plaintiff. As noted, Defendant Contarini provided Plaintiff with medical care
21
and treatment and referred him to Dr. Shah. Defendant Contarini’s plan was to request
approval for the cholecystectomy at Plaintiff’s next visit, even if Plaintiff had not consulted
with Dr. Shah by that time, but Plaintiff never returned to the clinic. Plaintiff makes much of
the fact that he relies on the FDOC to transport him to Defendant Contarini’s clinic. See Doc.
54 at 5, 7, 8, 12; Doc. 55 at 2. However, he does not allege that Defendant Contarini in any
way interfered with Plaintiff’s transportation on the dates Plaintiff did not make it to the clinic.
Finally, Plaintiff attempts to raise a claim for “breach of contract” by alleging that
Defendant Contarini contracted with the FDOC to provide him with medical care, and
Defendant Contarini breached this contract. He attached to his Complaint random pages of
a contract purportedly between the FDOC and Corizon, but his allegations are wholly
deficient. They will be dismissed.
In sum, the Court has reviewed in detail the parties’ filings and finds that Defendant
Contarini’s summary judgment motion is due to be granted. Plaintiff simply disagrees with
the course of treatment recommended by and provided by Defendant Contarini. The medical
records refute Plaintiff’s allegations against this Defendant. Thus, because there are no
genuine issues as to any material facts and Defendant Contarini is entitled to summary
judgment as a matter of law, his Motion is due to be granted and Plaintiff’s Motion will be
denied.
Accordingly, it is
ORDERED:
1.
Defendant Jones’ Motion to Dismiss (Doc. 136) is GRANTED. All claims
against Defendant Jones are DISMISSED with prejudice. Judgment to that effect will be
22
withheld pending adjudication of the action as a whole. See Fed. R. Civ. P. 54. The Clerk
shall terminate Defendant Jones as a party in this case.
2.
Plaintiff’s Motion Requesting Permission to Conduct Discovery regarding the
claims against Defendant Contarini and to Appoint Counsel (Doc. 170) is DENIED.
3.
Defendant Contarini’s Motion for Summary Judgment (Doc. 25) is GRANTED.
Judgment to that effect will be withheld pending adjudication of the action as a whole. See
Fed. R. Civ. P. 54. The Clerk shall terminate Defendant Contarini as a party in this case.
4.
Plaintiff’s Motion for Partial Summary Judgment against Defendant Contarini
(Doc. 153) is DENIED. Dr. Shah is the only remaining Defendant.
5.
Plaintiff’s Motion to Proceed with Discovery (Doc. 126) is GRANTED to the
extent that the following case management deadlines are set:
A.
The parties shall serve all discovery requests no later than February 5,
2019. A party to whom a discovery request is directed must respond
within the time permitted by the Federal Rules of Civil Procedure. Any
motions relating to discovery shall be filed by March 25, 2019.
B.
Pursuant to Federal Rule of Civil Procedure 30(a)(2)(B), Defendant
Shah is granted leave to depose Plaintiff if he so chooses. Defendant
shall contact the penal institution at which Plaintiff is housed to schedule
the deposition.
C.
All motions to dismiss and/or for summary judgment shall be filed by
April 29, 2019. This deadline is also applicable to the filing of any
23
motions or the raising of any affirmative defenses based on qualified
immunity.
D.
Responses to any motions to dismiss and/or for summary judgment
shall be filed by June 13, 2019.
6.
Ruling on Plaintiff’s Motion for Summary Judgment against Defendant Shah
(Doc. 220) remains DEFERRED. Defendant Shah shall file a response to Plaintiff’s Motion
by the deadline set for responses to dispositive motions.
7.
Defendant Shah’s Motion for Sanctions (Doc. 209), which is joined by
Defendant Contarini (Doc. 225), is DENIED. This case is now limited solely to the claims
raised in the Complaint against Defendant Shah. Plaintiff should focus his efforts on the
claims against Defendant Shah. Any filings that do not relate to the claims against Defendant
Shah will be stricken. Plaintiff’s Motion to Redact (Doc. 212) and Motion to Defer Ruling
Adversely (Doc. 217), which relate to Defendant Shah’s sanctions motion, are DENIED as
moot.
8.
Defendant Contarini’s Motion to Strike (Doc. 226) is DENIED.
9.
Plaintiff’s Motion for Sanctions (Doc. 227), to which Defendant Shah responded
(Doc. 230), is DENIED.
10.
Plaintiff’s Motion to Clarify, Strike, and Issue Sanctions (Doc. 229), to which
Defendant Contarini responded (Doc. 231), is DENIED.
11.
Plaintiff’s Motion and Notice of Clarification (Doc. 233) is DENIED.
24
12.
Insofar as Plaintiff requests sanctions due to fraud (Doc. 237), his request is
DENIED, and his Request to Initiate Discovery (Doc. 237) is GRANTED to the extent stated
herein and otherwise DENIED.
DONE AND ORDERED at Jacksonville, Florida, this 21st day of December, 2018.
JAX-3 12/12
c:
Nyka O’Connor, #199579
Counsel of Record
25
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