Jones v. Berrios-Valez et al
Filing
89
ORDER granting 82 Motion for summary judgment, with instructions to the Clerk. Signed by Judge Brian J. Davis on 11/28/2018. (LDO)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
JIMMIE L. JONES, JR.,
Plaintiff,
vs.
Case No. 3:15-cv-1482-J-39JBT
DR. SCHLOFMAN,1
Defendant.
ORDER
I.
Status
Plaintiff Jimmy L. Jones, Jr., an inmate of the Florida
Department of Corrections (FDOC), filed a civil rights Complaint
(Doc. 1) on December 11, 2015, pursuant to the mailbox rule.2
In
its February 9, 2018 Order (Doc. 61), the Court denied Defendant
Schlofman's Motion to Dismiss Plaintiff's Complaint (Doc. 35).
In
its March 20, 2018 Order (Doc. 63), the Court granted Defendants
Dr. Berrios Velez, Janet Carpenter, and Dr. Vilchez's Motion for
Summary Judgment (Defendants' Motion) (Doc. 39) with respect to
Plaintiff's deliberate indifference claims based on his complaints
of nausea, stomach and back pain, vomiting, headaches, anxiety, and
sudden
episodes
of
anger
and
confusion,
his
Prednisone
1
The Clerk shall correct Defendant Dr. Schlofman's surname
from Dr. Schloffman to Dr. Schlofman.
2
The Court references the page numbers assigned by the
electronic filing system.
prescription, and the denial of replacement glasses.3
The
Court
also
granted
Defendants'
Motion
with
Id. at 28.
respect
Plaintiff's supervisor liability claim against Dr. Vilchez.
to
Id.
The Court dismissed these deliberate indifference and supervisor
liability claims with prejudice and directed the Clerk to terminate
Defendants Dr. Berrios Velez, Janet Carpenter, and Dr. Vilchez from
the action.
Id. at 28-29.
Defendant Howard Schlofman, M.D.'s Motion for Summary Judgment
(Motion) (Doc. 82) is pending before the Court.4
Plaintiff filed
a Brief in Opposition to Defendant's Summary Judgment Motion
(Response) (Doc. 87) and a Declaration (Doc. 88).
Judgment
Notice
(Docs.
83).
Plaintiff
names
See Summary
Defendant
Dr.
Schlofman in his individual and official capacity. Complaint at 7.
Plaintiff raises one claim against Defendant Dr. Schlofman, a claim
of deliberate indifference to a serious medical need through the
doctor's failure or refusal to complete an eye examination to
3
The Court, construing Defendants' Motion as a motion to
dismiss for failure to exhaust administrative remedies, dismissed
without prejudice Plaintiff's deliberate indifference claims based
on his "infectious skin disease," Juvenile Rheumatoid Arthritis,
and "denied access to an orthopedic specialist." (Doc. 63 at 28).
With respect to the deliberate indifference claims based on
Plaintiff's complaints of nausea, stomach and back pain, vomiting,
headaches, anxiety, sudden episodes of anger and confusion, his
Prednisone prescription, and the denial of replacement glasses, the
Court, construing Defendants' Motion as a motion to dismiss for
failure to exhaust administrative remedies, denied Defendants'
Motion. Id.
4
The supporting exhibits are found in documents 39 and 40.
2
determine the extent of Plaintiff's visual impairment, make a
diagnosis, and prescribe proper eyeglasses.
Id. at 20.
He raises
this claim pursuant to the Eighth and Fourteenth Amendments.
at 5.
Id.
As relief, Plaintiff seeks declaratory and injunctive
relief, as well as compensatory and punitive damages.
Id. at 23.
He also seeks costs and any additional relief that the Court deems
just, proper, and equitable.
II.
Id.
The Complaint
Plaintiff alleges that while confined at Suwannee Correctional
Institution, he accessed the sick call procedure on August 27,
2014, concerning his incurable, degenerative eye disease which had
already rendered him blind in his right eye.
Complaint at 5, 7.5
He informed the nurse he was seeing flashes of light in his left
eye, a sure indication of his losing his sight in his left eye.
Id.
On August 27, 2014, Plaintiff informed the sick call nurse he
was on eye drops.
Id. at 7-8.
On or about May 21, 2015, Plaintiff
accessed sick call, and after making various medical complaints,
informed the three nurses that he was blind in his right eye, with
poor vision in his left eye due to a degenerative eye disease, and
5
See Stallworth v. Tyson, 578 F. App'x 948, 950 (11th Cir.
2014) (per curiam) (citations omitted) ("The factual assertions
that [Plaintiff] made in his amended complaint should have been
given the same weight as an affidavit, because [Plaintiff] verified
his complaint with an unsworn written declaration, made under
penalty of perjury, and his complaint meets Rule 56's requirements
for affidavits and sworn declarations."). See Complaint at 23.
3
he needed a new pair of eyeglasses because his pair had been stolen
almost a week prior.
Id. at 10.
A sick call nurse told Plaintiff
he would not get new prescription glasses for another year. Id. at
11.
Plaintiff
states
he
cannot
properly
eyeglasses, and he experienced many problems.
function
without
Id. at 11.
On July 30, 2015, Plaintiff wrote a medical request to Mrs.
Carpenter referencing his May 21, 2015 sick-call request for
prescription glasses and seeking for her to arrange for Plaintiff
to be provided with glasses. Id. Mrs. Carpenter responded on July
31, 2015, stating that Plaintiff has an appointment with the eye
doctor, but to be patient with scheduling.
Plaintiff
that
readers
were
available
in
Id.
She also advised
the
canteen.
Id.
Plaintiff wrote a grievance of medical nature to the Secretary of
the FDOC, raising various medical complaints, including his efforts
to obtain eyeglasses.
grievance.
Id. at 13-14.
The Secretary denied the
Id. at 14.
On September 16, 2015, Plaintiff received a medical call out.
Id. at 16.
Defendant Dr. Schlofman dilated Plaintiff's eyes with
eye drops, but upon checking the file, Dr. Schlofman discovered
Plaintiff
had
not
completed
the
request
form
prior
to
the
appointment to have money withdrawn from his inmate account to pay
for glasses.
Id.
Since Plaintiff had not complied with Corizon's
policy, Dr. Schlofman informed Plaintiff that he could not give
Plaintiff an eye examination for glasses without the form.
4
Id.
Dr. Schlofman told Plaintiff to wait until October, and Corizon's
contract
may
not
be
renewed.
Id.
Dr.
Schlofman
suggested
Plaintiff return in a month, and if Corizon were no longer the
contract provider, Plaintiff would not have to pay for glasses.
Id.
III.
Count Four
In Count Four of the Complaint, Plaintiff raises a claim of
deliberate indifference against Defendant Dr. Schlofman, claiming
the doctor refused to complete an eye examination to determine the
extent of Plaintiff's visual impairment, make a diagnosis, and
prescribe proper eyeglasses.
Complaint at 20.
Plaintiff contends
his medical care was delayed and denied because he did not pay for
the glasses prior to the eye appointment.
Id.
suffered visual damage and permanent impairment.
He asserts he
Id.
He also
states he made daily mistakes because he could not accurately
determine distance, and the lack of eyeglasses hindered him from
reading, watching television, and participating in social and
recreational activities.
Id. at 20-21.
suffered mental distress.
Id. at 21.
IV.
Finally, he claims he
Summary Judgment Standard
"Summary judgment is appropriate only if 'the movant shows
that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.'"
Moton v.
Cowart, 631 F.3d 1337, 1341 (11th Cir. 2011) (quoting Fed. R. Civ.
5
P. 56(a)).
"If the moving party meets this burden, 'the nonmoving
party must present evidence beyond the pleadings showing that a
reasonable jury could find in its favor.'" Ekokotu v. Federal Exp.
Corp., 408 F. App'x 331, 333 (11th Cir.) (per curiam) (quoting
Fickling v. United States, 507 F.3d 1302, 1304 (11th Cir. 2007)),
cert. denied, 565 U.S. 944 (2011).
V.
Defendant Dr. Schlofman's Motion
Defendant Dr. Schlofman submits he is entitled to summary
judgment with respect to Plaintiff's Eighth Amendment claim of
deliberate indifference to a serious medical need.
Motion at 1.
Defendant Dr. Schlofman contends Plaintiff's claim is governed
solely by the Eighth Amendment, not the Fourteenth Amendment.
at 7-8.
Id.
Finally, Defendant Dr. Schlofman asserts Plaintiff has
failed to establish an Eighth Amendment violation.
VI.
Id. at 5.
Plaintiff's Response
Plaintiff, in his Response, argues Defendant Schlofman should
have provided an eye examination for Plaintiff's serious medical
need because Plaintiff requested a necessary eye examination as his
vision
had
become
worse
and
his
visual
acuity
needed
to
be
reassessed. Response at 3. Plaintiff states he was suffering from
a degenerative disease and needed a new evaluation.
Id. at 3-4.
Although Plaintiff submitted a Declaration (Doc. 88), it is
not dated and does not meet the requirements of 28 U.S.C. ยง 1746
(Unsworn declarations under penalty of perjury) and will not be
6
considered by the Court; however, as noted previously, Plaintiff's
Complaint meets Rule 56's requirements for affidavits and sworn
declarations.
VII. The Eighth Amendment
The Eighth Amendment is interpreted as prohibiting deliberate
indifference to serious medical needs of prisoners.
Gamble, 429 U.S. 97, 102 (1976).
incident, was a convicted prisoner.
Estelle v.
Plaintiff, at the time of the
Thus, his rights arise under
the Eighth Amendment, not the Fourteenth Amendment.
As such,
The
Eighth
Amendment's
prohibition
against "cruel and unusual punishments"
protects
a
prisoner
from
"deliberate
indifference to serious medical needs."
Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct.
285, 50 L.Ed.2d 251 (1976). To state a claim
of
unconstitutionally
inadequate
medical
treatment, a prisoner must establish "an
objectively
serious
[medical]
need,
an
objectively insufficient response to that
need, subjective awareness of facts signaling
the need, and an actual inference of required
action from those facts."
Taylor v. Adams,
221 F.3d 1254, 1258 (11th Cir. 2000).
Kuhne v. Fla. Dep't of Corr., 745 F.3d 1091, 1094 (11th Cir. 2014).
"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
7
1176,
1187
(11th
Cir.
1994),
overruled
in
part
on
other
grounds by Hope v. Pelzer, 536 U.S. 730 (2002)).
To demonstrate deliberate indifference to serious medical
needs, a plaintiff must satisfy both an objective and a subjective
inquiry.
See Brown v. Johnson, 387 F.3d 1344, 1351 (11th Cir.
2004) (citation omitted).
To establish deliberate indifference to
a serious medical need, Plaintiff must shoulder three burdens; he
must satisfy the objective component (showing he had a serious
medical need), the subjective component (showing the official acted
with deliberate indifference to his serious medical need), and
causation
(showing
wrongful conduct).
the
injury
was
caused
by
Mann, 588 F.3d at 1306-07.
the
Defendant's
In order to prove
the subjective component, a plaintiff is required to demonstrate:
(1) the official's subjective knowledge of a risk of serious harm;
(2) the official's disregard of that risk; (3) by conduct that is
more than mere negligence.6
Daniels v. Jacobs, No. 17-14429, 2018
6
Defendant Dr. Schlofman maintains the third burden of the
subjective component requires a showing of conduct that is more
than gross negligence. See Motion at 5, 7-8. Based on Farmer v.
Brennan, 511 U.S. 825, 847 (1994) and its progeny, the standard is
one of more than mere negligence. Although the Eleventh Circuit
has, at times, referred to the standard as being one of more than
gross negligence, the Eleventh Circuit recently clarified its
position that the standard in McElligott v. Foley, 182 F.3d 1248,
1255-59 (11th Cir. 1999) (employing the "more than mere negligence"
standard) is the appropriate one, as it is more consistent with
Farmer, and McElligott is the first Eleventh Circuit case,
following Farmer, to address the question of degree of culpability
pursuant to Farmer, and consequently must be followed. Melton v.
Abston, 841 F.3d 1207, 1223 n.2 (11th Cir. 2016) (per curiam).
Recognizing the authority of Farmer, and relying on the standard
8
WL 4998130, at *8 (11th Cir. Oct. 16, 2018) (per curiam) (emphasis
added).
See Nam Dang, by and through Vina Dang v. Sheriff,
Seminole Cty. Fla., 871 F.3d 1272, 1280 (11th Cir. 2017) (finding
a pretrial detainee must prove these three factors to establish
deliberate indifference); McLeod v. Sec'y, Fla. Dep't of Corr., 679
F. App'x 840, 843 (11th Cir. 2017) (per curiam) (same for a state
prisoner).
A plaintiff must demonstrate that a defendant's responses to
his medical needs were poor enough to constitute an unnecessary and
wanton infliction of pain, and not merely accidental inadequacy,
negligence in treatment, or even medical malpractice actionable
under state law.
Taylor v. Adams, 221 F.3d 1254, 1258 (11th Cir.
2000) (citing Estelle, 429 U.S. at 105-106), cert. denied, 531 U.S.
1077 (2001).
It is important to recognize,
"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).
Nam Dang, by and through Vina Dang, 871 F.3d at 1280.
subsequently employed in McElligott, the Court, in this opinion,
heeds the Eleventh Circuit's repeated admonitions to follow
McElligott and employ the "more than mere negligence" standard.
9
In the prison context, the Court has to distinguish between
matters of professional medical judgment and evidence of disputed
facts.
Beard v. Banks, 548 U.S. 521, 530 (2006).
If it is a
matter of professional judgment, for example a decision not to
pursue a particular course of diagnosis or treatment, it does not
represent cruel and unusual punishment.
Estelle, 429 U.S. at 107-
108. Moreover, a dispute over adequacy of treatment sounds in tort
law, not constitutional law.
In order to show a deprivation of a
constitutional dimension based on any delay in providing medical
treatment, the plaintiff "must place verifying medical evidence in
the record to establish the detrimental effect of delay in medical
treatment to succeed."
VIII.
Hill, 40 F.3d at 1187-88.
Findings of Fact and Conclusions of Law
In his Complaint, Plaintiff alleges he has an "uncurable [sic]
active eye degenerating disease."
Complaint at 7.
It is quite
clear that Plaintiff is not claiming deliberate indifference for
Defendant Dr. Schlofman's failure to treat or cure him of this
degenerative disease.7
Instead, Plaintiff is complaining that
Defendant Dr. Schlofman failed to complete an eye examination and
prescribe eyeglasses because Plaintiff had not completed a form and
pre-paid for replacement glasses.
7
The record shows Dr. Velez was treating Plaintiff for the
degenerative disease. (Doc. 40-1 at 3-4).
10
In his Motion, Defendant Dr. Schlofman contests Plaintiff's
assertion of deliberate indifference to a serious medical need
based on the doctor's failure to complete an eye examination for
eyeglasses on September 16, 2015.
Complaint at 16.
The record
shows, less than six months before that date, Dr. Schlofman
evaluated Plaintiff's eyes on March 27, 2015, finding Plaintiff did
not need a change in his prescription.
Plaintiff
desired
to
obtain
(Doc. 40-2 at 97).
replacement
eyeglasses
for
eyeglasses he claimed were stolen, as he was having difficulty
seeing without his eyeglasses.
Plaintiff was told that he had to
follow a procedure to pre-pay for replacement eyeglasses, as he was
not due to receive new eyeglasses in September, 2015.
In order to
obtain new eyeglasses prior to the routine replacement date,
Plaintiff had to complete a request form and pay for the glasses
out-of-pocket. (Doc. 39-9 at 5). When Plaintiff saw Dr. Schlofman
on September 16, 2015, Plaintiff had not completed and submitted
the appropriate form.
The record shows that once Plaintiff
completed the form and complied with the request process, he
obtained replacement eyeglasses.
Significantly, Plaintiff has failed to demonstrate any delay
in
receiving
eyeglasses
worsened
8
his
degenerative
condition.8
Dr. Velez attests Plaintiff has a history of sarcoidosis, an
incurable, inflammatory disease involving growth of inflammatory
cells in his body, including the eyes.
Affidavit of Carmelo
Berrios Velez, M.D. (Doc. 40-1 at 3).
The disease caused
Plaintiff's blindness in his right eye and damage to his left eye.
11
Plaintiff has offered no supporting medical evidence showing a
failure to prescribe eyeglasses would lead to or led to visual
damage.
Thus, Plaintiff has not shown a serious medical need by
showing
that
condition.
failure
to
prescribe
eyeglasses
See Mann, 588 F.3d at 1307.
worsened
his
He has failed to satisfy
the objective component, showing he had a serious medical need that
Defendant Dr. Schlofman disregarded with deliberate indifference.9
Additionally, Plaintiff has failed to show Dr. Schlofman acted with
deliberate indifference to a serious medical need, the subjective
component.
As Plaintiff had an eye evaluation for eyeglasses less
Id.
Dr. Velez prescribed
inflammation. Id. at 3-4.
Prednisone,
9
a
steroid,
to
reduce
The Court finds Plaintiff has not shown a serious medical
need. Although he states in his Complaint he had lack of depth
perception and made mistakes performing daily tasks, he has not
provided any operative facts that he experienced events due to lack
of depth perception that actually resulted in injury. (Doc. 1 at
21) (Doc. 39-8 at 3) (Doc. 40-2 at 17). See Logue v. Johnson, No.
CV410-240, 2012 WL 2863450, at *2 (S.D. Ga. July 11, 2012) (finding
failure to state a claim for lack of eyeglasses based on a bare
allegation
that
eyeglasses
were
withheld),
report
and
recommendation adopted by 2012 WL 3096051 (S.D. Ga. July 30, 2012).
Assuming arguendo Plaintiff has satisfied the objective component,
he has not satisfied the subjective component.
Moreover, Dr.
Schlofman did not inflict punishment by any failure to perceive a
risk or alleviate a significant risk that he should have perceived
but did not. Farmer, 511 U.S. at 837-38; Campbell v. Sikes, 169
F.3d 1353, 1364 (11th Cir. 1999) (citation omitted) (same);
Cottrell v. Caldwell, 85 F.3d 1480, 1491 (11th Cir. 1996) (same).
Dr. Schlofman's actions did not exhibit obduracy and wantonness.
At most, Plaintiff has shown poor exercise of medical judgment in
Dr. Schlofman's failure to complete the examination, make a
diagnosis, and prescribe eyeglasses. Daniels v. Williams, 474 U.S.
at 330-33.
Inadequate treatment is nothing more than medical
negligence and does not rise to the level of a constitutional
violation.
12
than six months prior to the September 16, 2015 appointment, Dr.
Schlofman's
decision
to
terminate
the
September
16,
2015
appointment for an eye evaluation for eyeglasses does not shock the
conscience and is not intolerable to fundamental fairness.10
See
Nam Dang, by and through Vina Dang, 871 F.3d at 1280.
Indeed, the decision to terminate an evaluation is a matter of
professional judgment.
Here, Dr. Schlofman made the decision to
terminate an evaluation or pursue a particular course of diagnosis
because Plaintiff had not completed the required form to obtain an
evaluation prior to the routine replacement date. See Estelle, 429
U.S. at 107-108. Here, at most, Plaintiff is complaining about the
adequacy and frequency of treatment, a matter which sounds in tort
law, not constitutional law.
Upon review of the medical records, it shows Plaintiff is
blind in his right eye and was seeing floaters in his left eye, was
sensitive to light, and had cloudy vision.
(Doc. 40-2 at 96). Dr.
Berrios requested an optometry evaluation on November 7, 2014. Id.
Plaintiff was scheduled for an appointment on March 18, 2015.
Id.
On March 27, 2015, Dr. Schlofman saw Plaintiff for the optometry
10
It is significant Plaintiff was advised readers were
available in the canteen, an inexpensive option to aid in reading,
watching television, and other activities requiring near visual
acuity. Additionally, Plaintiff has not shown he did not have the
money to purchase either readers or replacement glasses at the time
his glasses were stolen.
Of import, Plaintiff purchased
replacement glasses after completing the appropriate request form.
13
consultation
and
concluded
no
change
was
needed
in
his
prescription. Id. at 97. The doctor advised Plaintiff to cut down
on contraband.
Id.
On May 19, 2015, in a sick-call request, Plaintiff complained
of his glasses being stolen and needing a replacement pair. Id. at
66.
An administrative assistant promptly advised Plaintiff to
write a request to Mrs. Carpenter for replacement glasses at a cost
to Plaintiff.
Id. at 64.
The nurse saw Plaintiff on June 15, 2015
and discussed his request for glasses.
Id. at 60.
On June 16,
2015, Plaintiff wrote a sick-call request asking for a visual test
for replacement glasses.
Id. at 63.
On June 23, 2015, a doctor
requested an optometry appointment for Plaintiff.
17).
(Doc. 40-3 at
On July 8, 2015 and October 14, 2015, Mrs. Carpenter, the
inventory coordinator, noted Plaintiff's optometry consult had been
scheduled.
(Doc. 40-2 at 54, 59).
Plaintiff saw Dr. Schlofman on September 16, 2015, and the
doctor noted Plaintiff was not eligible for an eye examination
until May, 2016, and directed Plaintiff be rescheduled to see the
doctor in seven months.
(Doc. 40-2 at 92).
On September 21, 2015,
Dr. Figueroa ordered a follow-up appointment.
October
14,
2015,
staff
scheduled
appointment on May 18, 2016.
Plaintiff
Id. at 98.
for
a
On
follow-up
Id.
When Plaintiff grieved the matter, Dr. Vilchez, on October 20,
2015, explained in a grievance response:
14
You have not been denied eye glasses.
The eye doctor was correct in that you were
not eligible for an exam for new glasses until
May 2016.
You are allowed a new pair of
glasses every 3 years. Your glasses are part
of your personal property and are your
responsibility to maintain and protect the
custody of the glasses in your property.
Glasses being lost or stolen does not make you
eligible for another free pair. You can order
replacement glasses at a cost to you of $29.50
or in May 2016 you can request a new exam and
new pair of free ones. Access sick call and
request a replacement form for glasses, sign
and return the copy, or you can send in
another request and one will be attached and
returned to you for signature. This will be
turned into the appropriate staff and ordered.
(Doc. 39-9 at 5).
Thereafter, on November 30, 2015, Plaintiff wrote a request to
Mrs. Carpenter asking that she schedule an eye examination for
glasses and file necessary forms, and she responded that Plaintiff
was scheduled for May 2016.
(Doc. 40-2 at 21).
On December 3,
2015, Plaintiff wrote Mrs. Carpenter a request for a consent form
to have money removed from his inmate account to pay for the
glasses.
Id. at 17.
glasses request form.
On December 8, 2015, Plaintiff signed a
Id. at 53.
Mrs. Carpenter responded to
Plaintiff's December 3, 2015 request on December 17, 2015, noting
she had submitted the signed form and advising Plaintiff that it
would take approximately three weeks to receive the glasses.
at 17.
Plaintiff received eyeglasses on January 8, 2016.
40-2 at 46).
15
Id.
(Doc.
Plaintiff
establish
the
eyeglasses.
scheduling
has
not
placed
detrimental
verifying
effect
of
any
See Hill, 40 F.3d at 1187-88.
of
an
optometry
medical
delay
evidence
in
to
receiving
Plaintiff received the
consultation
a
month
after
the
termination of his September appointment. Plaintiff was repeatedly
advised that he needed to sign a form to release the funds from his
inmate account to obtain replacement glasses.
signing
a
glasses
request
consent
form,
Within a month of
Plaintiff
received
eyeglasses.
Although Plaintiff may believe that a visual acuity test or
other examination should have been done at an earlier date, the
decision to terminate an appointment, or like measures, does not
constitute cruel and unusual punishment under the Eighth Amendment.
Estelle,
429
U.S.
at
104;
Belford
v.
Gonzalez,
No.
3:15-CV-878-J-34PDB, 2016 WL 1732632, at *2 (M.D. Fla. May 2, 2016)
(recognizing the question as to whether a doctor should have
employed additional diagnostic techniques or treatment is a classic
example of a matter of medical judgment and not an Eighth Amendment
violation). See Adams v. Poag, 61 F.3d 1537, 1545 (11th Cir. 1995)
(same).
Notably, Plaintiff had an eye examination less than six
months prior to the September appointment with Dr. Schlofman, and
Plaintiff has failed to show any detrimental effect on his eye
condition
by
the
delay
in
receiving
an
examination
and
new
prescription in September; "[he] has failed to present any evidence
16
showing Dr. [Schlofman] knew that the manner in which he provided
treatment created a substantial risk to [Plaintiff's] health and
with this knowledge consciously disregarded the risk."
Clegg v.
Doctor Bradford, No. 2:16-CV-232-WC, 2018 WL 6004675, at *7 (M.D.
Ala. Nov. 15, 2018) (addressing a claim of a doctor's failure to
provide a new pair of prescription eyeglasses in violation of the
Eighth Amendment).
At most, Plaintiff has presented a claim of negligence or
medical malpractice.
See Granda v. Schulman, 372 F. App'x 79, 83
(11th Cir. 2010) (per curiam) (discussing Estelle and its holding,
and distinguishing medical malpractice from an Eighth Amendment
violation). Even assuming Plaintiff's treatment is considered less
than adequate or medical malpractice, "[a]ccidents, mistakes,
negligence,
and
medical
malpractice
are
not
'constitutional
violation[s] merely because the victim is a prisoner.'"
Harris v.
Coweta Cty., 21 F.3d 388, 393 (11th Cir. 1994) (citing Estelle, 429
U.S. at 106).
To the extent Plaintiff is claiming he should have
received an earlier eye examination and a new prescription for
eyeglasses, the record shows the treatment he received does not
amount to deliberate indifference to a serious medical need. Here,
the record is devoid of evidence showing Dr. Schlofman acted with
deliberate indifference to a serious medical need experienced by
Plaintiff.
Defendant
Dr.
Schlofman,
through
the
documentary
evidence, has met his burden of showing there is no genuine issue
17
of fact concerning whether he was deliberately indifferent to
Plaintiff's serious medical needs.
In conclusion, Plaintiff has failed to shoulder the burden of
the objective and subjective components of deliberate indifference
through his failure to show he had a serious medical need that was
not addressed by Dr. Schlofman and Dr. Schlofman acted with
deliberate indifference to a serious medical need, or satisfy the
causation component, as Plaintiff has not shown any injury was
caused by any wrongful conduct of Dr. Schlofman.
Plaintiff has
failed to demonstrate the responses to his need for replacement
eyeglasses was poor enough to constitute an unnecessary and wanton
infliction of pain. Dr. Schlofman's treatment of Plaintiff was not
so grossly incompetent, inadequate, or excessive as to shock the
conscience or to be considered intolerable to fundamental fairness
and Dr. Schlofman's Motion is due to be granted.
Therefore, it is now
ORDERED:
1.
Defendant Howard Schlofman, M.D.'s Motion for Summary
Judgment (Doc. 82) is GRANTED, and the Clerk shall enter judgment
for Defendant Howard Schlofman, M.D., and against Plaintiff Jimmie
L. Jones, Jr.
2.
The Clerk shall enter judgment for Defendants Dr. C.
Berrios Velez, Janet Carpenter, and Dr. Denis A. Vilchez, and
against Plaintiff Jimmie L. Jones, Jr.
18
See Order (Doc. 63).
3.
The Clerk shall terminate all pending motions, enter
judgment accordingly, and close this case.
DONE AND ORDERED at Jacksonville, Florida, this 28th day of
November, 2018.
sa 11/28
c:
Jimmie L. Jones, Jr.
Counsel of Record
19
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