O'Connor v. RMC et al

Filing 272

ORDER granting 257 Defendant Shah's Motion for Summary Judgment; denying 220 Plaintiff's Motion for Summary Judgment Against Shah; denying 247, 250, 252 Plaintiff's request for reconsideration; directions to the Clerk. Signed by Judge Timothy J. Corrigan on 9/11/2020. (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.
ORDER
I.

Status

Plaintiff, an inmate of the Florida penal system, is proceeding on a pro se
Civil Rights Complaint (Doc. 1). Throughout the pendency of this case, he has
filed several supplemental documents in support of his assertions. See, e.g.,
Docs. 83, 90, 96, 100, 102, 111, 175, 194, 200, 201. The Court has already
adjudicated the claims against the Reception and Medical Center, Julie
Jones/Mark Inch (as the Secretary of the Florida Department of Corrections),
and Dr. Contarini. See Orders (Docs. 6, 243). The only remaining Defendant is
Dr. Shah, a “Gastro Specialist” at the Reception and Medical Center. Plaintiff
claims that Defendant Shah was deliberately indifferent to his serious medical
needs; he denied Plaintiff an adequate diet to comply with Plaintiff’s religion;

and he breached his contractual duties to Plaintiff by denying Plaintiff
adequate medical care and a religious diet. See Doc. 1 at 8.
Before the Court are Plaintiff’s and Defendant Shah’s cross-motions for
summary judgment.1 See Plaintiff’s Motion for Summary Judgment Against
Shah (Doc. 220), supported by a Declaration (Doc. 221) and Exhibits (Doc. 222);
Defendant Shah’s Motion for Summary Judgment (Doc. 257). Plaintiff filed a
response in opposition to Defendant Shah’s Motion. See “O’Connor’s Motion
Opposing Defendant[’]s Motion for Summary Judgment Re: Shah” (Doc. 264);
Appendix in Support (Doc. 265). Defendant Shah did not file a response to
Plaintiff’s Summary Judgment Motion. However, considering the file, the Court
deems the parties’ Motions ripe for review.
Also before the Court is Plaintiff’s request for reconsideration of the
Court’s Order (Doc. 243). See Plaintiff’s Notice/Motion, Supplement, and Second
Supplement (Docs. 247, 250, 252). Defendants Contarini, Shah, and Jones/Inch2
filed responses. See Defendant Contarini’s Response in Opposition to Plaintiff’s
Notice/Motion, Supplement and Second Supplement (Doc. 254); Defendant

The Court previously advised Plaintiff of the provisions regarding summary
judgment motions and gave him an opportunity to respond. See Order (Doc. 7).
1

In the Complaint, Plaintiff sued Julie Jones in her individual and official
capacities. During the pendency of this case, a new Secretary of the Florida
Department of Corrections was appointed. Thus, on April 23, 2019, the Court
directed that Mark S. Inch, current Secretary of the FDOC, be substituted for
Julie Jones in her official capacity only. See Order (Doc. 253).
2

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Shah’s Response to Plaintiff’s Notice/Motion, Supplement, and Second
Supplement (Doc. 255); and Defendant Jones/Inch Response to Plaintiff’s
Filings (Doc. 256). Plaintiff’s request for reconsideration is ripe for review.
II.

Cross-Motions for Summary Judgment
a. Parties’ Positions

Plaintiff contends that since his April 9, 2010 surgery, he has been
requesting “adequate med[ication]s for severe pains, cramps, acid reflux,
heartburns, etc,” but Defendant Shah, along with the other Defendants, has
denied his requests “to save money.” Doc. 220 at 3.3 He generally asserts that
he has been “denied adequate care [and] reasonable accommodations for his
gastro-health-disability [and] sincere religious belief system,” and that he has
lost weight and been “denied adequate diet.” Id. He asserts that he presented
his issues to Defendant Shah, but Defendant Shah failed to prescribe or
recommend “a non-standard therapeutic diet to comply with [Plaintiff’s] gastrodisability-health needs [and] religious belief system.” Id. at 3-4.
Further, Plaintiff contends that there was a several-month delay before
he actually saw Defendant Shah on September 23, 2015. See id. at 6. He
acknowledges that Defendant Shah ordered a HIDA scan and colonoscopy, but

Plaintiff’s Motion does not focus solely on Defendant Shah. Given that
Defendant Shah is the only Defendant remaining, the Court focuses its analysis
on the claims raised against him.

3

3

Plaintiff claims that Defendant Shah failed to provide any medication for his
constipation. See id. at 6-7. During the September 23, 2015 visit, Plaintiff “tried
requesting a non-standard therapeutic diet” but through deliberate indifference
and in violation of Plaintiff’s religion, “Dr. Shah didn’t prescribe/recommend.”
Id. at 7; id. at 10 (arguing that Defendant Shah “had no reasonable, valid,
rational legitimate penological justification(s) to deny O’Connor an adequate
diet for his health [and] religious belief system”). Plaintiff further acknowledges
that he saw Defendant Shah again on October 21, 2015, but the HIDA scan and
colonoscopy had not yet been performed. Id. at 7. Plaintiff complained during
this visit “about his severe stomach pains, cramps, bloody stools, acid reflux,
inadequate diet, delayed inquires needed to adequately diagnose, treat [and]
proceed with Dr. Contarini’s prospective surgery, but O’Connor[’]s[] complaints
to Dr. Shah aforesaid were to no avail.” Id. While Defendant Shah prescribed
lactulose for Plaintiff’s constipation, Plaintiff argues this was “inadequate.” Id.
Plaintiff lists his “serious medical needs,” id. at 7-8, and argues that
Defendant Shah was “deliberately indifferent by unnecessarily delaying [and]
denying the performance of adequate [and] timely inquiries [and] tests, [and]
delaying [and] denying adequate med[ication]s [and] diet compliant with
O’Connor[’]s[] health-gastro-disabilities [and] sincere religious belief system.”
Id. at 8; see also id. at 14-27. Plaintiff lists his injuries allegedly resulting from
Defendant Shah’s (and others’) acts and omissions. Id. at 8-10, 16-17, 20-21.
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Plaintiff also claims that by denying his diet, Defendant Shah violated
Plaintiff’s First Amendment rights (and corresponding rights under the Florida
Constitution). See id. at 27-30. Additionally, Plaintiff claims that Defendant
Shah “entered into a contract to provide O’Connor adequate care, custody,
control [and] confinement,” and he breached that duty. Id. at 13-14; see id. at
30-31. Plaintiff asserts that there are no material factual disputes and he is
entitled to entry of summary judgment. See id. at 32.
Plaintiff’s Declaration largely reiterates his factual allegations and
addresses the exhibits he submitted, which include other inmates’ affidavits,
his medical records, and other information. See Docs. 221, 222.
Defendant Shah seeks entry of summary judgment in his favor, arguing
that the record shows he was not deliberately indifferent to any serious medical
need of Plaintiff’s, and that Plaintiff simply disagrees with his course of
treatment. See Doc. 257 at 9-12. In support of his position, Defendant Shah
submitted copies of Plaintiff’s pertinent medical records (Docs. 257-1, 257-2,
257-3, 257-5, 257-6) and a Declaration (Doc. 257-4), in which he avers in
pertinent part:
My first encounter with Nyka O’Connor was in
2010 at Memorial Hospital Jacksonville. I evaluated
Mr. O’Connor on April 7, 2010 and then performed his
colonoscopy on April 8, 2010 based on complaints of
rectal bleeding after he swallowed a paper clip. The
colonoscopy was unremarkable at that time.

5

The following day, on April 9, 2010, Mr.
O’Connor underwent a laparotomy to remove the
paper clip from his abdomen. Dr. Osvaldo Contarini
performed the surgery.
I did not provide care or treatment to Mr.
O’Connor again until I was consulted regarding his
care in late 2015. At that time, I saw inmate O’Connor
at the Reception Medical Center on September 23,
2015.
During the relevant time period, I reported to
the Reception Medical Center for 2-3 Wednesdays a
month. Dr. Radi was another gastroenterologist who
held his clinic at the Reception Medical Center every
Tuesday of the month. During my time at the
Reception Medical Center, I performed procedures
during the first half of every day and used the
afternoons to see inmates on consultation in the clinic.
It was during my time at the clinic that I evaluated
Mr. O’Connor.
On September 23, 2015, Mr. O’Connor presented
to me at the clinic with complaints of constipation and
abdominal pain. For constipation, I would not have
recommended a low-residue diet because he needed
more fiber, not less. For abdomen pain, I recommended
a HIDA scan. Based on my evaluation of inmate
O’Connor and based on the fact that it had been five
years since his previous colonoscopy, I recommended
another colonoscopy. I created pre-op orders on that
date.
There was nothing that I saw during my
evaluation of Mr. O’Connor that led me to believe his
condition was life threatening or that a colonoscopy or
other treatment needed to be performed on an urgent
basis. If I had believed Mr. O’Connor was at a risk for
serious injury or death, I could have and would have
contacted the medical director at the Reception
Medical Center. Nothing in my work-up of Mr.
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O’Connor indicated his condition required immediate
attention in order to prevent serious pain or additional
harm.
When Mr. O’Connor was seen by me on October
21, 2015, I noted that his colonoscopy and HIDA scan
had not been done and I again put in orders for the
colonoscopy and the HIDA scan.
Before I saw inmate O’Connor for any sort of
follow up, I was served with a lawsuit in which inmate
O’Connor alleged I had not provided appropriate care.
Once served with the lawsuit, I informed the medical
director at the Reception Medical Center that I did not
feel comfortable treating the inmate any further and
asked that the management of his case be handled by
another physician.
For this reason, the last time I saw Nyka
O’Connor was October 21, 2015. I have no knowledge
of what care he received after that date and therefore
I do not know whether he had surgery for his
gallbladder at any point in time after October 21, 2015.
Doc. 257-4 at 2-3 (paragraph enumeration omitted).
In response, Plaintiff claims that Defendant Shah’s Motion and Affidavit
include “known falsified statements intended to mislead this honorable Court.”
Doc. 264 at 1 (capitalization omitted). Plaintiff contends that he raised the
following claims against Defendant Shah:
O’Connor[’]s[] 1983 Complaint encompassed claims of
Dr. Shah being deliberately indifferent by failing to:
perform timely tests [and] inquires; failing to provide
adequate medications; failing to provide a nonstandard therapeutic diet for his health [and] sincere
religious belief system; Dr. Shah denying O’Connor
the right to religion by denying a non-standard
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therapeutic diet for O’Connor’s health [and] religion
aforesaid; and Dr. Shah breaching a contractual duty
to provide the above timely tests [and] inquires
adequate med[ication]s, and adequate diet for his
health [and] religion.
Id. at 1-2 (capitalization omitted). Plaintiff asserts that contrary to Defendant
Shah’s argument, Plaintiff did not seek simply a low-residue diet; rather, he
sought a non-standard therapeutic diet for his health and religion. Id. at 2. He
argues that Defendant Contarini repeatedly referred Plaintiff to Defendant
Shah for an endoscopy and/or colonoscopy between May 12, 2015 and August
2015, but Plaintiff did not see Defendant Shah until September 23, 2015. Id. at
3-4. He contends that Defendant Shah was deliberately indifferent and
unnecessarily

denied

and

delayed

necessary

medical

treatment.

He

acknowledges that he has not seen Defendant Shah since October 21, 2015. Id.
at 6. He argues in opposition to each of Defendant Shah’s points, and requests
entry of summary judgment in his favor. See id. at 9-18; see also Doc. 265.
b. Summary Judgment Standard
“‘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
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nonmoving party.” Bowen v. Manheim Remarketing, Inc., 882 F.3d 1358, 1362
(11th Cir. 2018) (quotations and citation omitted); see Hornsby-Culpepper v.
Ware, 906 F.3d 1302, 1311 (11th Cir. 2018) (“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.” (quotations and citation omitted)). In considering a
summary judgment motion, the Court views “the evidence and all reasonable
inferences drawn from it in the light most favorable to the nonmoving party.”
Hornsby-Culpepper, 906 F.3d at 1311 (quotations and citation omitted).
“[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); see Winborn v.
Supreme Beverage Co. Inc., 572 F. App’x 672, 674 (11th Cir. 2014) (per curiam)
(“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.’” (quoting
Shiver v. Chertoff, 549 F.3d 1342, 1343 (11th Cir. 2008)). “‘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)).
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“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).
c. Deliberate Indifference
“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).
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).
Deliberate indifference to a serious medical need requires “three
components: (1) subjective knowledge of a risk of serious harm; (2) disregard of
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that risk; (3) by conduct that is more than mere negligence.” Farrow v. West,
320 F.3d 1235, 1245 (11th Cir. 2003) (citations omitted); see Patel v. Lanier Cty.
Georgia, No. 19-11253, 2020 WL 4591270, at *9 n.10 (11th Cir. Aug. 11, 2020)
(recognizing “a tension within [Eleventh Circuit] precedent regarding the
minimum standard for culpability under the deliberate-indifference standard,”
as some cases have used “more than gross negligence” while others have used
“more than mere negligence”; finding, however, that it may be “a distinction
without a difference” because “no matter how serious the negligence, conduct
that can’t fairly be characterized as reckless won’t meet the Supreme Court’s
standard” (citations omitted)). “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

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F.2d 1533, 1537-39 (11th Cir. 1990)).[4] Further,
“medical care which is so cursory 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)).
Insofar as Plaintiff claims that Defendant Shah was deliberately
indifferent for failing to provide timely tests and inquiries, adequate
medications, and a non-standard therapeutic diet, the Court finds his claims
are refuted by the uncontradicted evidence. Whether to refer Plaintiff for
different tests or provide a different mode of treatment is a matter of medical

“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, 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 Cty., 774 F.2d 1567, 1575 (11th Cir. 1985)); see Boone v.
Gaxiola, 665 F. App’x 772, 774 (11th Cir. 2016).
4

12

judgment that does not amount to deliberate indifference. See Boone v. Gaxiola,
665 F. App’x 772, 774 (11th Cir. 2016) (“A medical decision not to pursue a
particular course of diagnosis or treatment is a classic example of a matter for
medical judgment, an exercise of which does not represent cruel and unusual
punishment.” (citing Estelle, 429 U.S. at 107-08). Likewise, Plaintiff’s
disagreement with Defendant’s course of treatment does not support a
deliberate indifference claim. 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.” (quoting Harris v. Thigpen, 941 F.2d 1495, 1505 (11th
Cir. 1991)). Defendant Shah ordered a HIDA scan and colonoscopy, and he
provided Plaintiff with lactulose and then recused himself from Plaintiff’s
medical care when Plaintiff sued him. The evidence shows that Defendant’s
treatment was not “‘so grossly incompetent, inadequate, or excessive as to shock
the conscience or to be intolerable to fundamental fairness.’” Brennan v.
Headley, 807 F. App’x 927, 935 (11th Cir. 2020) (quoting Thigpen, 941 F.2d at
1505). Even taking all facts and inferences in the light most favorable to
Plaintiff, Defendant is entitled to entry of summary judgment in his favor as to
Plaintiff’s deliberate indifference claims.
d. Right to Religion and Breach of Contract
Plaintiff uses the same factual allegations to claim that, not only was
13

Defendant Shah deliberately indifferent to his serious medical needs, but
Defendant Shah also violated Plaintiff’s right to religion by denying his
requested diet and Defendant Shah breached his contractual duties to provide
timely tests and inquires, along with adequate medications and adequate diet.5
In Plaintiff’s Motion, he argues that “[t]he practice, custom, policy [and]
systematic deficiencies by [Defendant] Jones, professed by Dr. Shah to deny”
him his requested non-standard therapeutic diet violates his rights under the
First Amendment and Florida Constitution. However, the Court has already
found that Plaintiff failed to state a claim against Defendant Jones with respect
to his diet (Doc. 243 at 10-12), and thus, by extension, if he failed to state a
claim regarding a custom, policy or practice against Defendant Jones, then he
has failed to state a claim that Defendant Shah upheld or “professed” such a
custom, policy, or practice. Moreover, the evidence does not support Plaintiff’s
claim that Defendant Shah violated his religion by not providing him with the
requested diet. Notably, Plaintiff acknowledges that, at most, Defendant Shah
may have been able to recommend Plaintiff’s requested diet, but he did not have
authority to prescribe it. See Doc. 220 at 10-12. Plaintiff was referred to

Defendant Shah did not address these claims in his Motion for Summary
Judgment. Plaintiff addresses these claims in his Motion, and the Court is
under an obligation to dismiss a case at any time if it fails to state a claim. See
28 U.S.C. § 1915(e)(2)(B). Regardless of the avenue, Plaintiff’s claims against
Defendant Shah fail.
5

14

Defendant Shah to address his medical concerns, not to address how the
institution should handle Plaintiff’s diet requests to accommodate his religion.
Finally, as with the “contract” claims Plaintiff raised against Defendants Jones
and Contarini, the Court finds the breach-of-contract claims against Defendant
Shah are due to be dismissed as deficient. See Order (Doc. 243) at 12-13, 22.
Simply put, Plaintiff’s claims against Defendant Shah fail as a matter of law.
III.

Plaintiff’s Request for Reconsideration

Plaintiff requests the Court reconsider its Order dismissing the claims
against Defendant Jones and granting summary judgment in favor of
Defendant Contarini (Doc. 243). See Docs. 247, 250, 252. Plaintiff argues that
the Court’s Order “was erroneous” in light of the Eleventh Circuit’s decision in
O’Connor v. Backman, 743 F. App’x 373 (11th Cir. 2018). He further argues that
this Court failed to review his Complaint as a whole and the Order “should be
amended, altered, reheard, reconsidered, vacated, [and] voided, FRCP Rules
52(b), 59 [and] 60, due to matters overlooked, misapprehended, inadvertence,
excusable neglect, fraud, failing to apply the right law, mis[]ap[p]lying [and]
bad application of law.” Doc. 247 at 1. Upon review of the file, the Court finds
Plaintiff’s request is due to be denied. The record clearly shows that the claims
against all of the Defendants are either deficient in pleading or refuted by the
undisputed evidence.
Accordingly, it is
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ORDERED:
1.

Defendant Shah’s Motion for Summary Judgment (Doc. 257) is

GRANTED.
2.

Plaintiff’s Motion for Summary Judgment Against Shah (Doc. 220)

is DENIED.
3.

Plaintiff’s request for reconsideration in his Notice/Motion,

Supplement, and Second Supplement (Docs. 247, 250, 252) is DENIED.
4.

The Clerk shall enter judgment dismissing without prejudice all

claims against the Reception and Medical Center in accordance with the Court’s
Order (Doc. 6); dismissing with prejudice all claims against Defendants Jones
and Inch in accordance with the Court’s Order (Doc. 243); in favor of Defendant
Contarini and against Plaintiff in accordance with the Court’s Order (Doc. 243);
and in favor of Defendant Shah and against Plaintiff in accordance with this
Order.
5.

The Clerk shall terminate any pending motions and close the file.

DONE AND ORDERED in Jacksonville, Florida, this 11th day of
September, 2020.

TIMOTHY J. CORRIGAN
United States District Judge
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JAX-3 9/4
c:
Nyka O’Connor, #199579
Counsel of Record 

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