O'Connor v. Reddish et al

Filing 159

ORDER granting 145 Espino's Amended Motion for Summary Judgment; finding moot 149 Espino's Objections; denying Plaintiff's Motion for Leave to File Belated Motion for Summary Judgment against Nurse Robinson; dismissing claims against Robinson; directions to the Clerk. Signed by Judge Brian J. Davis on 3/23/2023. (JLD)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
NYKA O’CONNOR,
Plaintiff,
v.

Case No. 3:17-cv-1007-BJD-JBT

DR. GANZALO ESPINO and
NURSE ROBINSON,
Defendants.
_______________________________
ORDER
I.

Status

Before the Court is Defendant Espino’s Amended Motion for Summary
Judgment (Doc. 145) with exhibits (Docs. 116-5 to 116-6, 145-1 to 145-4).
Plaintiff filed a Response (Doc. 146) with exhibits (Docs. 146-1 to 146-17).
Espino filed a Reply (Doc. 150), and Plaintiff filed a Sur-Reply (Doc. 158).
Espino also filed Objections to Plaintiff’s Summary Judgment Evidence (Doc.
149), to which Plaintiff filed a Response (Doc. 157). Finally, Plaintiff filed a
Motion for Leave to File Belated Motion for Summary Judgment against Nurse
Robinson (Doc. 137) and attached thereto his proposed motion for summary

judgment and exhibits (Doc. 137-2). Nurse Robinson did not respond. The
motions are ripe for review.1
II.

Plaintiff’s Allegations in Amended Complaint2

According to Plaintiff, on April 23, 2017, he “had a serious health need
to be referred to a [medical doctor] by Nurse Robinson for his complaints of
gastro pains [and] cramps, bloody toilet tissue with stools, [and] large quantity
of blood in the toilet [that] she saw.” Doc. 57 at 12. Nurse Robinson, however,
advised Plaintiff “that nothing [wa]s wrong with him because [he] ‘waited until
the weekend when nobody [wa]s here to complain,’” gave Plaintiff a sick-call
form and “nothing more.” Id. Plaintiff claims Robinson was deliberately
indifferent for failing to refer him to a medical doctor and because of her
actions, he suffered “continuous pains, cramps, def[e]cating bloody stools, etc,
she witnessed; [and] stress, anxiety, agitation of the chemical imbalance in
[his] brain, depression, etc.” Id.
Plaintiff further alleges that he had “a serious health [and] life need for
a non-standard therapeutic diet” to meet his “sincere SYDA-Jewish Vegetarian
Belief System [and] health issues.” Id. He claims that this “Belief System

For ease of reference, the Court cites the document and page numbers as assigned
by the Court’s electronic case filing system.

1

2

The Court summarizes the allegations as to the remaining Defendants only.
2

requires peanut butter, bread, cereal, milk, whole fruits, vegetables, etc,
(which was [and] is being denied); while prohibiting meat, fish, eggs [and] sour
foods e.g., cheese.” Id. at 13. On May 8, 2017, Plaintiff told Dr. Espino that “he
was on a hunger strike due to the deficient meals served, contrary to his health
[and] religious needs.”3 Id. at 18. Plaintiff explained that he needs a
combination of three diets: (1) “a low residue (low fiber) diet for his inability to
adequately breakdown certain indigestible carbohydrates, which cause acid
reflux that leads to esophageal cancer [and] tumors, heartburns, indigestion,
sour stomach [and] sour belch, etc.”; (2) “a fat intolerance (low fat) diet for his
nausea [and] cholesterol gallstones [and] gallbladder walls thickening, for
which UCI doctors approved surgery in 2015 but wasn’t done, [and] gallstones
can clog gallbladder opening, impair flow, cause infection [and] er[]uption,
spread infection [and] kill him”; and (3) a “vegetarian diet for his sincere
SYDA-Jewish Tenets . . . which require peanut butter, bread, cereal, milk,
whole fruits, vegetables, etc. [and] which prohibit[] meat, fish, eggs, sour foods
like cheese, etc., which [Plaintiff] is [and] was subjected to eat.” Id. Espino

Plaintiff was on the hunger strike from May 4, 2017 to May 8, 2017. Plaintiff wrote,
“From 3-4-17 when O’Connor announced his hunger strike until 5-8-17, when he came
off hunger strike . . . .” Doc. 57 at 17. Based on the totality of Plaintiff’s allegations
and evidence submitted, Plaintiff clearly meant May 4, 2017, not March 4, 2017. See,
e.g., id. at 5 (listing dates of events giving rise to his claims as April to August 2017);
id. at 15 (“Said day 5-4-17, O’Connor advised Nurse Clarkson at am, noon [and] pm
med rounds, that he’s going on a hunger strike . . . .”).
3

3

advised Plaintiff that he needed to choose one diet, so Plaintiff “involuntarily
asked for a low-residue – alternate – no eggs – no cheese” diet. Id. “Dr Espino
had food service staff Ms. Graham present, who stated all therapeutic diets
have an alternate [and] that eggs, etc., could be replaced with peanut butter
for his religion.” Id. Plaintiff claims that “Dr. Espino was deliberately
indifferent by writing a low residue alternate no eggs, no meat diet instead of
initiating the protocol for a non-standard therapeutic diet.” Id. Plaintiff claims
that he was forced to choose between his health and religion when Espino told
him he could choose only one diet, and that such action violates his rights
because a dietician could simply formulate an adequate non-standard
therapeutic diet for him. Id. at 18-19. Moreover, Plaintiff claims Espino was
“deliberately indifferent by failing to re-write [his] medical gastro
med[ication]s sought 5-8-17 that were discontinued on [5]-4-17 when [Plaintiff]
declared a hunger strike, where Dr. Espino advised [Plaintiff] to resume eating
before he renewed said gastro med[ication]s.” Id. at 18.
On May 30, 2017, Plaintiff submitted “an inmate request, sick-call [and]
SYDA correspondence about vegetarian diet to Nurse Johnson” regarding the
need to correct his diet. Id. at 19. He did not receive a response, so he filed a
formal grievance regarding his “deficient diet.” Id. “As reprisal for said formal
grievance, Dr. Espino on about 6-13-17 was deliberately indifferent [and]
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discontinued said diet [that] he wrote [on] 5-8-17, and stated [Plaintiff] should
get on a Vegan or [Religious Diet Plan (RDP)]” diet, which, according to
Plaintiff, “are both insufficient for [his] health [and] religion.” Id. Plaintiff
asserts that he was exercising his rights when he filed the grievance, and “Dr.
Espino took adverse action as a result by invalidating said diet pass.” Id.
On June 14, 2017, Plaintiff saw Dr. Espino and “inquired why the low
res. alt. no eggs – no meat [diet] pass of 5-8-17 wasn’t corrected but invalidated
with directions to eat Vegan or RDP.” Id. at 20. Plaintiff claims that “Dr.
Espino was deliberately indifferent by falsely advising said pass was still
valid.” Id. Plaintiff asked for “adequate meds (Tums, Nexium, etc.) for his
gastro issues . . . to no avail, when Dr. Espino was deliberately indifferent by
advising him that Tums is just candy [and] Nexium is too costly and denied
same.” Id. Dr. Espino continued his deliberate indifference by stating it is only
Plaintiff’s “‘perception’ of pain [and] cramps,” and he told Plaintiff to “‘shut
up.’” Id. Dr. Espino was further deliberately indifferent when he told Plaintiff
that, based on a 2016 colonoscopy, Plaintiff “had no gallstones [and] isn’t
def[e]cating blood.” Id. Plaintiff requested another ultrasound, which Dr.
Espino refused to order. Id. at 21. Dr. Espino harassed Plaintiff and told him
that because he was “‘suing us,’” he would not provide Plaintiff with any care

5

until he sees the Court order to which Plaintiff kept referring.4 Id. at 21.
Plaintiff states that “Dr. Espino took adverse action to hinder” his lawsuit and
grievance about his gastro and religious issues, and had it not been for
Plaintiff’s June 14, 2017 grievance with the Court’s June 2, 2017 order
attached, “Dr. Espino probably would have provided some treatment for his
health issues.” Id.
As relief, Plaintiff seeks a declaratory judgment that the acts and
omissions of all Defendants violated his rights, “[d]amages allowed by the
laws,” appointment of counsel, and “other relief proper.” Id. at 5.
III.

Parties’ Summary Judgment Positions
a. Defendant Espino’s Motion and Exhibits

Defendant Espino argues that Plaintiff’s Eighth Amendment claims
about his diet and medications are “refuted by the indisputable record
evidence.” Doc. 145 at 11. He argues that Plaintiff “cannot demonstrate the
existence of an objectively serious medical need” with respect to the requested
medications, and “there is no evidence Dr. Espino was subjectively aware of
any such need.” Id. at 15. Espino contends that he “exercise[d] his medical

Plaintiff was referring to an order in one of his prior cases. See Doc. 57 at 21. The
order was entered on June 2, 2017, directing the defendants to file a notice advising
whether Plaintiff had gallbladder surgery. See Order (Doc. 121), No. 3:15-cv-1387TJC-JBT (M.D. Fla.).
4

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judgment in determining how to treat [Plaintiff]’s complaints.” Id. at 16. As to
Plaintiff’s diet request, Espino contends that Plaintiff never requested that
Espino prescribe him the specific diet Plaintiff requests in the Amended
Complaint. Id. at 17. Even if he had, Espino asserts that pursuant to the
Florida Department of Corrections (FDOC) procedures, “Espino could only
prescribe diets for medical reasons”—not based on an inmate’s religious beliefs.
Id. at 18. He also argues that Plaintiff’s requested therapeutic diets “conflicted
with his religious dietary preferences,” and Espino determined that Plaintiff
“was not entitled to a therapeutic diet because no such diet was medically
necessary.” Id. Moreover, Espino was not responsible for creating menus or
diets. Id. at 19.
As for Plaintiff’s Free Exercise claim regarding his diet, Espino contends
that “[t]here is no evidence Dr. Espino substantially burdened [Plaintiff]’s
sincerely held religious beliefs by denying his request for a diet that met his
religious dietary preferences.” Id. at 20. He claims that he “attempted to
accommodate [Plaintiff]’s religious beliefs within the confines of his authority,”
but per FDOC policy, he “could not prescribe a diet based on [Plaintiff]’s
religious dietary preferences.” Id. He asserts that he initially “prescribed the
exact diet requested by [Plaintiff] . . . to end his hunger strike,” but then
Plaintiff requested a change (no cheese) to accommodate his religion. Id.
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“Espino could not prescribe this change . . . because he did not believe it was
medically necessary, . . . [so] he discontinued the unnecessary therapeutic diet
so [Plaintiff] could get on an RDP.” Id. at 20-21. “Had Dr. Espino not
discontinued the therapeutic diet, [Plaintiff] would not have qualified for a
vegan or [Certified Food Option (CFO)] RDP to accommodate his religious
dietary preferences.” Id. at 21. According to Espino, Plaintiff “was not entitled
to a therapeutic diet,” so all Plaintiff “had to do was choose between a vegan
diet to accommodate his religious beliefs or request a CFO—neither of which
implicated Dr. Espino.” Id. at 21.
Finally, Espino argues that Plaintiff cannot “produce[] any evidence
beyond his own conclusory allegations” that Espino retaliated against him. Id.
at 23 (quotations and citation omitted). Instead, Espino “acted based on the
exercise of his medical judgment—not in retaliation.” Id.
In support of his position, Espino submitted Plaintiff’s medical and
mental health records; the Declaration of Brenda Patterson, a Public Health
Nutrition Consultant for the FDOC; and Espino’s Declaration. Ms. Patterson
declares as follows:
I am employed by the [FDOC] as a Public Health
Nutrition Consultant. I have been employed in this
role since May 2016. I am also a licensed dietician and
have held my license since 1990.

8

As a Public Health Nutrition Consultant, I and
my colleagues are responsible for devising diets for
inmates in the custody of the [FDOC] that meet
federal and state nutrition guidelines.
This includes devising meals for inmates with
standard diets, as well as meals for inmates with
special dietary needs or preferences. For instance, I
and my colleagues devise certain alternative diets,
such as non-meat and vegan diets, to make sure they
meet nutritional guidelines. I and my colleagues also
devise standard and non-standard therapeutic diets
for inmates with certain medical requirements, such
as a low-fat diet, low-residue (or low-fiber) diet, etc.
While I devise meals to meet various dietary
needs and preferences, I am not responsible for
prescribing therapeutic diets or ensuring inmates get
diets that meet their preferences. Instead, [FDOC]
policies govern how various non-standard diets may be
accessed by an inmate.
One category of non-standard diets that an
inmate may receive are therapeutic diets. Therapeutic
diets are prescribed [by] physicians, clinical
associates, or dentists for medical reasons and are
designed to meet the requirements of a given medical
condition. This is explained in [FDOC] Procedure
401.009, attached as Exhibit 1.
Therapeutic diets can be standard, meaning
prescribed from an approved list of therapeutic diets,
or can be non-standard or specialized. Exhibit 1 at
(1)(f), (2), (4)(b), and (4)(k). A specialized therapeutic
diet may be prescribed for medical purposes not
addressed by standard therapeutic diets, such as
addressing the need for a combination of therapeutic
diets. Exhibit 1 at (1)(f). Before a prescription can be
written, though, the need for the diet must be
discussed with the Chief Health Officer/Institutional
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Medical Director and a Public Health Nutrition
Consultant, and the prescription must be approved by
a regional medical director o[r] the statewide medical
director. Exhibit 1 at (4)(k).
Standard therapeutic diets must be served
according to the therapeutic diet menu without
additions or deletions. For example, a standard
therapeutic diet cannot require fruit be served at all
meals. Exhibit 1 at (2).
While therapeutic diets can be prescribed by
medical providers, the medical providers do not devise
the meals an inmate receives. Instead, the inmate
would receive the meals devised by myself and my
colleagues for the prescribed therapeutic diet.
While specified medical providers can prescribe
therapeutic diets to meet medical needs, therapeutic
diets cannot be prescribed to meet religious dietary
preferences, as [RDPs] are handled separately.
As it pertains to [RDPs], there are three
subcategories, as explained in [FDOC] Procedure
503.006, attached as Exhibit 2.
First, there is a meat alternative provided with
every meal that can be requested by any inmate at any
time. Exhibit 2 at (2)(a).
Second, an inmate may request a vegan meal
plan from the Food Service Director at the facility
where the inmate is housed. Exhibit 2 at (2)(b).
Third, an inmate may request a [CFO] from a
[FDOC] chaplain. Exhibit 2 at (2)(c). An inmate is not
eligible to receive a CFO diet if the inmate “has a
medical or mental health condition that requires a
prescribed therapeutic diet.” Exhibit 2 at § (3)(e)(2). In
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this sense, therapeutic diets to address medical needs
trump an inmate’s request for an RDP.
If an inmate is prescribed a therapeutic diet, the
inmate may still request the alternate, non-meat
entrée being offered for a particular meal. As such, an
inmate with a therapeutic diet for which a meal
contains meat can still receive a meal with a meat
substitute if their religious beliefs prohibit eating
meat. Or an inmate can request a vegan diet from the
Food Service Director if they want the vegan diet
instead of the prescribed therapeutic diet.
For purposes of this lawsuit, I have been asked
to review Plaintiff Nyka O’Connor’s requests for
specific diets.
The diet requested by inmate O’Connor was not
authorized under the [FDOC] policies and procedures.
Mr. O’Connor’s request for a religious diet would have
been classified as a CFO request since he rejected the
meat alternative entrée and vegan diets as options
that met his religious dietary needs.
As explained in [FDOC] Procedure 503.006,
inmate O’Connor’s request for a CFO plan was
subordinated to his medical needs pursuant to the
therapeutic diets he requested and that were
prescribed by Dr. Espino. Inmate O’Connor could have
requested the meat alternative entrée with his
therapeutic diet to accommodate his religious beliefs.
If the therapeutic diet with meat alternative entrée
option did not meet inmate O’Connor’s medical needs
and religious preferences, inmate O’Connor would
have had to choose between being prescribed a
therapeutic diet or requesting a vegan or CFO RDP,
pursuant to [FDOC] policy. Put simply, Dr. Espino had
no ability to prescribe a non-standard therapeutic diet
tailored to inmate O’Connor’s religious dietary
preferences.
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Further, the specific diet inmate O’Connor
wanted—a combination of two standard therapeutic
diets (low-residue and low-fat diets) coupled with a
vegetarian diet that complied with his SYDA-Jewish
beliefs—could not be provided.
As it pertains to his request for both a low-fat
and low-residue therapeutic diet, it would be difficult
to devise a diet satisfying the nutritional requirements
of both therapeutic diets. However, such a diet could
be devised if it was medically necessary.
But although possible to devise a nutritionally
sound diet based on a combination of therapeutic diets,
it is not possible for the [FDOC] to have devised such
a combination that also meets inmate O’Connor’s
purported religious dietary restrictions. According to
inmate O’Connor, his SYDA-Jewish beliefs require a
diet consisting of “peanut butter, bread, cereal, milk,
whole fruits, vegetables, etc.,” and prohibits eating
“meat, fish, eggs, sour foods like cheese, etc.” The
SYDA-Jewish diet described by inmate O’Connor is
high in fiber, and, therefore, conflicts with the
requirements of a therapeutic low-residue (i.e. lowfiber) diet. As such, a diet meeting all the
preferences expressed by Mr. O’Connor could
not be devised and meet the required nutritional
guidelines.
Lastly, as to inmate O’Connor’s allegation that
the diets he was provided were nutritionally
inadequate, that is a mischaracterization of the nature
of the diets he requested. As explained above, there is
a standard diet that meets federal and state
nutritional guidelines. Alternative entrée options,
vegan options, and CFOs also meet these federal and
state guidelines.

12

Therapeutic diets, though, necessarily differ
from the nutritional guidelines by their very nature.
For instance, a low-residue therapeutic diet has less
fiber than recommended by nutritional guidelines
because an inmate prescribed a low-residue diet needs
less fiber for medical reasons. But a low-residue diet
meets the nutritional guideless in all other respects.
As such, therapeutic diets differ from nutritional
guidelines pursuant to the medical needs they are
intended to address. So although true that therapeutic
diets do not satisfy every part of the nutritional
guidelines, the reason for the departure is to meet the
special nutritional requirements of the inmate
prescribed the therapeutic diet. That does not mean,
however, that a therapeutic diet is nutritionally
inadequate for the inmates receiving it.
To the extent inmate O’Connor faults Dr. Espino
for his meals failing to meet nutritional guidelines in
other ways, such allegations incorrectly presume Dr.
Espino played a role in devising or preparing meals.
Medical providers are not responsible for ensuring
meals meet nutritional guidelines; rather, they are
only permitted to prescribe therapeutic diets based on
the [FDOC] procedures and have no say in what the
actual meals will be.
Doc. 116-6 at 2-7 (paragraph enumeration omitted and emphasis added).
Patterson attached Procedure Number 401.009, Prescribed Therapeutic Diets,
id. at 9-17; and Procedure Number 503.006, Religious Diet Program, id. at 1926, to her Declaration.
Additionally, Espino avers as follows:
I was employed as medical director at Florida
State Prison in 2017, working pursuant to Centurion
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of Florida, LLC’s contract with the [FDOC]. I no longer
work with Centurion.
As medical director, I oversaw the medical
doctors, physician assistants, and nurse practitioners
who worked at Florida State Prison (“FSP”), excluding
mental health professionals. I also saw patients and
provided medical care to them.
In my role as medical director and as a treating
physician, I reviewed and was responsible for making
medical records regarding patients.
For purposes of this litigation, I have reviewed
medical records related to patient Nyka O’Connor
(DC# 199579) from the period when he was
transferred to FSP in December 2016 until December
2017.
When Mr. O’Connor was transferred to FSP, he
was seen by Dr. Chuong Thanh Le for gastrointestinal
complaints. Dr. Le prescribed medications and a
therapeutic diet pass to Mr. O’Connor for a low-fat
(“fat intolerance”) diet. Mr. O’Connor, though,
continued to complain despite the treatment and
therapeutic diet prescribed to him.
On May 4, 2017, Mr. O’Connor declared a
hunger strike and was placed in [self-harm
observation status (SHOS)] for observation. At this
point, Mr. O’Connor was placed under the care of
mental health doctors. According to those records, Mr.
O’Connor did not take his prescribed medications
while on the hunger strike because some of the
medications were to be taken with food.
On May 8, 2017, Mr. O’Connor’s mental health
records indicate he told his providers that he “refused
to eat until he’s given [‘]medical diet.[’]” At that point,
I was asked to see Mr. O’Connor in SHOS.
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I evaluated Mr. O’Connor on May 8, 2017. This
was the first time I interacted with Mr. O’Connor since
his transfer to FSP. Mr. O’Connor told me he wanted
to eat what was in his religious beliefs. He also
detailed his gastrointestinal issues. He agreed to end
his hunger strike if I changed his diet to a low residue
(“low fiber”) alternate with no eggs or meat. Based on
this evaluation and in an effort to end his hunger
strike, I wrote Mr. O’Connor the therapeutic diet he
requested.
Mr. O’Connor was released from SHOS a few
days later and had no medical complaints of any kind
until June 6, 2017.
On June 6, 2017, Mr. O’Connor submitted a sick
call requesting that his diet pass be changed. In
addition to a therapeutic low residue alternate with no
eggs or meat, Mr. O’Connor also wanted a diet pass
that did not include cheese.
Pursuant to FD[O]C’s policies, I was unable to
prescribe the diet requested by Mr. O’Connor for
several reasons. First, as a medical doctor, I was
limited to prescribing therapeutic diets. While I could
prescribe a therapeutic diet, I had no say in what meal
would be provided; FD[O]C dietitians were responsible
for devising the specific meals to meet the nutritional
guidelines of the therapeutic diet prescribed.
Second, therapeutic diets are used to address
medical needs, not religious dietary preferences. As
such, I could not prescribe a diet based on Mr.
O’Connor’s religious dietary preferences when there
was no medical need for doing so. Mr. O’Connor’s
request for a diet that did not include cheese was not,
in my opinion, medically necessary.

15

Third, while I could prescribe a therapeutic diet
with an “alternate,” FD[O]C’s policies regarding
[RDPs] indicated that an “alternate” diet meant a
meat substitute would be provided. There is no
“alternate” diet that includes a cheese substitute.
For these reasons, I could not prescribe a
therapeutic diet that met Mr. O’Connor’s medical
needs and religious preferences.
Since Mr. O’Connor had not complained of
gastrointestinal issues since ending his hunger strike,
I believed his gastrointestinal issues to have resolved.
As such, I discontinued his diet pass on June 12, 2017,
and advised Mr. O’Connor that he should either
request a vegan meal from Food Services or contact the
chaplain about getting on an RDP to get a meal that
met his religious preferences.
On June 14, 2017, Mr. O’Connor came to medical
and accused me of not taking care of him because his
therapeutic diet had been discontinued and his
prescription for Tums had not been renewed.
I conducted a more thorough review of Mr.
O’Connor’s gastrointestinal history, including his
complaints of gallstones and history of swallowing
paper clips. I reviewed a recent colonoscopy as well a
scan of his gall bladder. Based on my evaluation, Mr.
O’Connor did not have any significant clinical
indication for a therapeutic diet.
This was the last appointment I had with Mr.
O’Connor through August 2017.
From April through August 2017, I only saw Mr.
O’Connor twice—on May 8 and June 14.
Based on my evaluation and in my medical
opinion, Mr. O’Connor did not suffer from any
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gastrointestinal issues that required a therapeutic
diet or medication. More specifically, although Mr.
O’Connor requested a low residue diet, there was no
medical need for such a diet.
Despite Mr. O’Connor’s allegations, and as
confirmed in the medical records, Mr. O’Connor never
requested I prescribe him a low-fat diet. Mr. O’Connor
had a low-fat diet pass prescribed by Dr. Le when he
went on the hunger strike, and requested that I
prescribe a low fiber diet with no eggs or meat.
Regardless, nothing in my evaluation of Mr. O’Connor
indicated that a low-fat diet was medically necessary.
Because neither the low-fat nor low fiber diet
was medically necessary, there was also no indication
that a non-standard combination diet consisting of
low-fat and low fiber therapeutic diets was medically
necessary.
I provided all treatment to Mr. O’Connor that, in
my opinion, was medically necessary. And I did not
base any of my treatment decisions on anything except
my evaluations of Mr. O’Connor and the exercise of my
medical judgment.
Doc. 116-5 at 2-6 (paragraph enumeration omitted).
Plaintiff’s medical and mental health records reflect as follows. Plaintiff
was transferred to FSP on December 27, 2016. Doc. 145-1 at 1-2. On December
30, 2016, Dr. Le saw Plaintiff and prescribed Plaintiff a fat intolerance diet. Id.
at 3; see also Doc. 116-5 at 3. On January 2, 2017, Plaintiff wrote a sick-call
request that included several unrelated complaints, one of which related to his
“gastro” issues and his “entitle[ment] to a non-standard therapeutic diet, e.g.
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Low Res – Fat Intolerance – 4000 – Vegetarian combined.” Doc. 145-1 at 4. On
January 6, 2017, the sick-call was returned to Plaintiff because he wrote it “in
the tiniest writing that filled the entire form.” Id. at 5. He was advised to
resubmit the request in legible handwriting so that medical could accurately
assess his complaints. Id. Plaintiff was “in no acute distress” and did not voice
“any complaints that required immediate medical attention.” Id.
On February 6, 2017, Dr. Le saw Plaintiff, and Plaintiff was complaining
about abdominal pain after eating. Id. at 9. Dr. Le provided Plaintiff with
medication and ordered tests. Id. at 9, 14. On March 10, 2017, Plaintiff refused
to undergo the ordered tests. Id. at 15, 50. Plaintiff returned to medical on
March 17, 2017. Id. at 17. The medical note indicates that Plaintiff was
“continually refusing labs” but he apparently agreed to do the tests and Dr. Le
scheduled a follow-up appointment for April 5, 2017. Id. Plaintiff, however,
refused the follow-up appointment on April 5, 2017, indicating that he was “no
longer waiting in restraints in cage for hours.” Id. at 51.
On April 7, 2017, Plaintiff reported to mental health staff that he was
“stressed out about everything” and “upset about receiving the wrong diet.”
Doc. 145-4 at 33. He apparently reported that his low residue diet had been
changed. Id.

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On April 23, 2017, and May 4, 2017, Plaintiff wrote three sick-call
requests. Doc. 145-1 at 19-21. On the April 23 request, Plaintiff complained
about Defendant Robinson ignoring his complaints the day before (April 22,
2017) during the morning medication rounds. Id. at 19. A note dated April 23,
2017, reflects that Plaintiff’s sick-call request was triaged as “routine” and he
was not showing any signs or symptoms of distress. Id. On one of the May 4
requests, he stated that his “diet pass [wa]s not compliant with [his] health
[and] religion,” so he was going on a hunger strike and refusing all medications
because he cannot take medications on an empty stomach. Id. at 20. He further
noted that he saw Dr. Asevera on May 3, 2017, and specifically advised him
not to write a fat intolerance diet pass. Id. Instead, Plaintiff requested a “nonstandard therapeutic diet which combines Low Res – Fat Intol – Vegan in one.”
Id. Dr. Asevera advised that he would “look into” it, but he still wrote Plaintiff
a fat intolerance diet pass. Id. In the second sick-call request, Plaintiff advised
that he feared for his life because “staff [was] trying to kill [him] via deficient
food [and] threats to abuse.” Id. at 21. He reiterated that he would refuse all
medications while on the hunger strike. Id. Nurse Burgin noted on all three
requests that Plaintiff refused an assessment on May 4, 2017. Id. at 19-21.
That same day (May 4, 2017), Plaintiff was placed on SHOS due to “suicidal
ideations, hunger strike, [and] paranoia.” Doc. 145-2 at 1, 3. At that time, his
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medications were prazosin, Cogentin, Risperdal, Zoloft, Colace, Zantac, Fibertab, and Protonix. Id. at 4. On May 8, 2017, Plaintiff advised mental health
staff that he “refused to eat until he’s given ‘medical diet.’” Id. at 37. Mental
health staff referred Plaintiff to medical for his gastrointestinal complaints
and diet request. Id. at 38.
Defendant Espino became involved in Plaintiff’s care on May 8, 2017. Id.
at 42. Espino’s note reflects that Plaintiff “just want[s] to eat what is in his
religious beliefs like – no eggs / no meat” and Plaintiff “agrees to eat if [Espino]
change[s] his diet to Low Res/alternate with NO eggs/meat.” Id. Thus, Espino
changed Plaintiff’s diet to “Lo-Res/Alternate NO eggs/meat.” Id.; see Doc. 1453 at 1.
On May 15, 2017, Plaintiff complained to mental health staff that his
diet was “still not right.” Doc. 145-4 at 44. He advised that he was thinking of
going on another hunger strike because his meal trays still contained meat. Id.
at 47.
On June 6, 2017, Plaintiff submitted a sick-call request indicating that
his “diet pass need[s] correction” to add “no cheese” or a new pass for a “low
residue alternate – no dairy” because “alternate covers no meat [and] no dairy
covers no eggs [and] no cheese.” Doc. 145-1 at 26. He asserted that cheese
violates his religious beliefs and “contribute[s] to [his] sour stomach, acid
20

reflux, heartburns, etc.” Id. He also requested that his pass to keep Tums on
his person be renewed. Id. A FDOC stamp on the sick-call request dated June
6, 2017 at 0700 hours reflects that Plaintiff’s request was triaged as “routine.”
Id.5
In response to his sick-call request, on June 12, 2017, Espino
discontinued Plaintiff’s “Low Res Diet due to [Plaintiff’s] Religion,” and he
advised Plaintiff that he can speak to a chaplain about an RDP or ask the
kitchen for a Vegan diet. Id. at 27; Doc. 145-3 at 1. On June 14, 2017, Espino
saw Plaintiff and noted that Plaintiff was accusing him of “‘not taking care of
him.’” Doc. 145-1 at 28. Espino further noted that Plaintiff had a negative
colonoscopy in May 2016, and a normal HIDA scan for his gallbladder. Id.
Plaintiff was “argumentative [about] his diet [and] Tums,” but Espino found
“no clinical significant indication for treatment.” Id.
On October 2, 2017, Plaintiff submitted a sick-call request unrelated to
his diet, but refused his sick-call assessment on October 12, 2017, advising the

On June 7, 2017, Plaintiff submitted a formal grievance complaining about his diet.
Doc. 146-7 at 2. He attached to the grievance a sick-call request dated May 30, 2017,
complaining about his diet pass. Id. at 3. Plaintiff contends in the June 7, 2017
grievance that he submitted the May 30, 2017 sick-call request to Nurse Johnson in
a sealed envelope, and he asked “Nurse C” on June 6, 2017 about the sick-call “to no
avail.” Id. at 2. Thus, Plaintiff submitted the June 6, 2017 sick-call request raising
the same issues. He also acknowledges that nurses, not doctors, are responsible for
assessing inmates in response to sick-call requests. Doc. 146 at 6-7.
5

21

nurse that he was okay. Id. at 35-36. He submitted another sick-call request
on October 22, 2017, advising that “[f]or years, FSP has had problems with the
plumbing/pipes,” which causes “black oily particles” in the water. Id. at 37. He
asserted that when he drinks the water, it causes his throat to burn which
“aggravate[s] [his] burning throat from acid reflux from gastro disability of
gallstones, pains/cramp, indigestion, heartburns, etc.” Id. He also noted that
he receives “deficient meals,” and he requested “adequate gastro care” and
drinking water. Id. On November 2, 2017, Espino saw Plaintiff in response to
his sick-call requests and again concluded that no treatment was indicated. Id.
at 40.
b. Plaintiff’s Response and Exhibits
In Plaintiff’s Response, he argues that he “is suing Dr. Espino [for]
fail[ing] to prescribe a non-standard therapeutic diet that complies with [his]
health [and] religious needs, [and] not renewing medications previously
prescribed.” Doc. 146 at 1. He further claims that Espino “retaliated against
[him] twice [and] denied additional care sought.” Id. In support of his position,
Plaintiff submitted several exhibits. In his Declaration, Plaintiff avers in
pertinent part as follows:
On 5-3-17, I was assessed by FSP’s Dr. Asevero
for chronic gastro clinic who then prescribed Zanta[c],
Protonix [and] Fat Intolerance Diet for 90 days, for
O’Connor’s gastrointestinal issues of gallstones and
22

gallbladder walls thickening, nausea, indigestion, and
inability to breakdown fatty foods. No Tums was
prescribed for O’Connor’s acid reflux, heartburns, and
the like which comes from indigestible carbohydrates
such as beans, warranting a Low Residue / Low Fiber
Diet, disclosed to Dr. Asevero. Likewise, O’Connor
advised Dr. Asevero that his Vegetarian Diet for his
religious sincere SYDA Jewish Beliefs require cereal,
peanut butter, bread, fruits, vegetables, milk, etc.
[and] prohibits meats, fish, eggs [and] sour foods, like
cheese. O’Connor sought a non-standard therapeutic
diet combining Low Residue – Fat Intolerance [and]
Vegetarian Diets in one, to no avail. . . .
On 5-4-2017, O’Connor went on a hunger strike
due to meat, eggs, etc., which was served on the Fat
Intolerance Tray at breakfast, served to O’Connor.
O’Connor refused all meals [and] meds until an
adequate non-standard therapeutic diet was provided
for his health [and] religious needs. O’Connor was
eventually placed in a suicide cell on SHOS . . . .
On 5-8-17, while on SHOS and hunger strike,
O’Connor saw Dr. Espino [and] Ms. Graham Food
Service Supervisor, in Dr. Espino’s office. O’Connor
explained to Dr. Espino that he was on hunger strike
[due to] meals served, which was contrary to
O’Connor’s health [and] religious needs, and sought a
non-standard therapeutic diet combining a Low
Residue, Fat Intolerance [and] Vegetarian diets in one.
O’Connor explained to Dr. Espino that he
needed a Low Residue Diet for his inability to
adequately
breakdown
certain
indigestible
carbohydrates, which cause acid reflux that leads to
esophageal cancer [and] tumors, heartburns,
indigestion, sour stomach [and] sour belch, etc.
O’Connor explained to Dr. Espino that he
needed a Fat Intolerance Diet for his nausea,
23

cholesterol gallstones [and] gallbladder walls
thickening, for which prior Doctors approved surgery
in 2015, but surgery was not done, and also advised
Dr. Espino that gallstones can clog the gallbladder
opening, impair flow, cause infection [and] eruption,
spread infection [and] kill O’Connor.
O’Connor explained to Dr. Espino that he
needed a Vegetarian Diet for his sincere SYDA-Jewish
Vegetarian Belief System which require peanut
butter, bread, cereal, milk, whole fruits, vegetables,
etc. [and] which prohibit meat, fish, eggs, sour foods
like cheese, etc., which O’Connor was subjected to eat.
Dr. Espino advised O’Connor that he could
choose and get only ONE diet, and could not get all the
3 above diets combined; so, O’Connor under duress,
involuntarily asked for a Low Residue Alternate No
Eggs – No Cheese [and] the 2016 colonoscopy [and]
HIDA scan weren’t issues.
Ms. Graham stated that all Therapeutic Diets
have an Alternate [and] that eggs could be replaced
with peanut butter. Dr. Espino then wrote a Low
residue Alternate No Eggs No Meat Diet pass from 58-17 to 8-8-17, instead of initiating the protocol for a
non-standard therapeutic diet aforesaid.
At that time, Dr. Espino refused to re-write
O’Connor’s gastro meds he was taking before the 5-417 hunger strike. When O’Connor asked Dr. Espino to
re-write said meds Dr. Asevero previously prescribed,
Dr. Espino advise[d] O’Connor to start eating before
he . . . renews said gastro meds.
On 5-9-17, O’Connor saw Dr. Espino briefly
while walking by and again asked Dr. Espino to renew
said gastro meds to no avail. Dr. Espino refused to rewrite said gastro meds, and O’Connor didn’t get any
gastro meds while on SHOS 5-4-17 to 5-9-17.
24

On about 5-11-17, Nurse Johnson renewed the
deficient gastro meds that Dr. Asevero prescribed on
5-3-17, but still didn’t prescribe Tums O’Connor
sought. Said renewed meds were valid through 6-141[7] when O’Connor saw Dr. Espino again.
On 5-30-17, O’Connor sought to correct said 5-817 Diet Pass to exclude cheese served thereon,
contrary to O’Connor’s Religion, and cheese
contribute[s] to O’Connor’s sour stomach, acid reflux
[and] heartburns etc. O’Connor sought a Low Residue
Alternate No Eggs No Cheese Diet, to no avail, by
submitting an Inmate Request with a sick-call [and]
SYDA correspondence about Vegetarian Diet needed,
sent to Nurse Johnson, to no avail. After receiving no
response, O’Connor wrote a sick-call dated 6-6-17
which he submitted to the sick-call nurse. O’Connor
then wrote a formal grievance and attached a pink
copy of the 5-30-17 [and] 6-6-17 sick-call requests, and
submitted same in the grievance box. Said grievance
[and] 2 sick-call exhibits were received by Dr. Espino
on 6-7-17, according to the Chronological Record of
Health Care (Ex. G). As a reprisal for O’Connor
writing said 6-7-17 grievance log #1706-205-064 with
2 sick-call exhibits, Dr. Espino discontinued said 5-817 diet pass and directed O’Connor to seek an RDP
Diet from the chapel or Vegan from Food Service,
knowing neither RDP (serves fish [and] beans) nor
Vegan (serves animal gelatin in apple sauce, pastanoodles with eggs [and] beans) would comply with
O’Connor’s health and religious needs. However, on
said chronological health record, Dr. Espino did
acknowledge O’Connor was entitled to a diet for his
religion [and] fat intolerance. Had O’Connor not
written said 6-7-17 grievance [and] 2 sick-calls
exhibits, . . . said 5-3-17 diet pass would not have been
discontinued [and] voided. Though Dr. Espino
acknowledged O’Connor’s entitled to a religious diet
[and] Fat Intolerance, Dr. Espino never sought to
25

ensure O’Connor received a non-standard therapeutic
diet combining said Vegetarian [and] Fat Intolerance
which are allegedly both high fiber diets.
On 6-14-1[7], O’Connor again wrote another
grievance log #1706-205-194 with Doc. 121 from . . .
case # 3:15-cv-1387-J-32JBT, complaining about his
ongoing gastro issues above, being litigated.
On 6-14-1[7], after submitting said grievance,
O’Connor was taken to medical to see Dr. Espino
again. Coincidentally, another staff member had a
video-audio-portable-hand-held camera recording
another inmate close to Dr. Espino’s office where
O’Connor was. Said audio-video camera recorded Dr.
Espino falsely advising O’Connor that it’s only
O’Connor’s “perception” of pain [and] cramps etc., that
he . . . was experiencing regarding O’Connor’s gastro
issues. Dr. Espino advised O’Connor that he doesn’t
have bloody stools in 2017, due to negative results of a
colonoscopy [and] HIDA scan results from 2016.
O’Connor advised Dr. Espino that blood comes from
his hemorrhoids due to straining to defecate hard
stools because of no colace (stool softener) O’Connor
sought from Dr. Espino, which was denied, and due to
deficient meals, hard to digest. O’Connor advised
gallstones he has are not in the colon, but in the
gallbladder, which colonoscopy doesn’t detect. Dr.
Espino then advised O’Connor to “shut-up” and calling
O’Connor a “smart guy.” O’Connor even suggested that
Dr. Espino do another order for ultrasound to see if he
still had gallstones [and] gallbladder walls thickening
like the 2015 ultrasound, since neither colonoscopy nor
HIDA scan can detect [and] tell whether O’Connor has
gallstones [and] gallbladder walls thickening.
O’Connor saw the word “VOID” on said 5-8-17 diet
pass in his folder that Dr. Espino was going through,
and O’Connor asked Dr. Espino the reason . . . but Dr.
Espino did not / could not tell O’Connor any valid
reason(s) for said 5-8-17 diet pass being voided.
26

O’Connor advised Dr. Espino that he had just written
a formal grievance with Doc. 121 from a pending civil
suit about said gastro issues [and] submitted same in
the grievance box prior to seeing him. Dr. Espino then
got furious, saying O’Connor is suing “us,” though
O’Connor was suing FDOC Sec and two doctors from
RMC . . . at the time. Dr. Espino then said he would
provide O’Connor no treatment until he sees the 6[14]-1[7] grievance and court order (Doc. 121) attached
thereto.[6]
During said encounter, O’Connor tried to
explain . . . his other health issues to no avail, which
Dr. Espino disregarded [and] failed to provide
adequate care. . . .
In Dr. Espino’s falsified response to grievance
log #1707-205-094 (Ex. H), Dr. Espino falsely alleged
“there was no such diet as a low residue/alternative
therefore the diet (5-8-17 diet) that was written was
invalid.” However, kindly see Ex-A Therapeutic
Master Menu with low residue alternate. This is Dr.
Espino’s falsified reason for invaliding the 5-8-17 diet.
However, Dr. Espino abandoned said reason for the
colonoscopy and HIDA scan reason for invaliding said
5-8-17 diet in his Motion for Summary Judgment.
Which is it???
Turning to Ms. Brenda Patterson. She failed to
explain by what authority Dr. Espino used to write a
diet pass for O’Connor on 5-8-17, since Dr. Espino
allegedly has no authority to write a diet for
O’Connor’s health [and] religious needs as falsely
alleged.
Brenda Patterson said a Low Residue (Low
Fiber) and Fat Intolerance (High Fiber) can be

Earlier in his Declaration, Plaintiff stated that he wrote this grievance with the
Court’s order attached to it on June 14, 2017.

6

27

combined, but not with a Vegetarian diet (High Fiber).
This makes no sense. See O’Connor’s Exhibits D [and]
I where Dr. Contarini in 2015 prescribed Low Fat (Fat
Intolerance) due to O’Connor needing more Fiber per
Dr. Shah in 2015.
Proc. 503.006, where Brenda Patterson said
Medical Diets “trump” RDP-Religious Diet. It should
be noted that neither Brenda Patterson’s, Dr. Espino’s,
nor any FDOC Procedures words trump FAC 33204.003(5) [and] see FDOC Michael D. Crews words on
11-5-14 (Ex. B) that O’Connor[] is entitled to a Low
Residue – 4000 calorie – Vegan combined. Further, no
state law(s) can trump federal law that stated that
O’Connor is entitled to a non-standard therapeutic
diet in O’Connor v. Backman, et al., 743 F. App’x 373
(11th Cir. 2018).
....
Due to Dr. Espino’s delinquencies, unlawful acts
[and/or] omissions, denial of adequate health care,
denial of right to religion [and] retaliation, O’Connor
suffered agitation [and] aggravation of the chemical
imbalance in his brain, stress, anxiety, denial of
adequate nutrition per USDA standards, weight loss,
heartburns, nausea, . . . indigestion, denial of adequate
nourishment per USDA, which makes him weak,
fatigued, hard to think, caused severe hunger pains,
etc. . . .
Doc. 146-14 at 2-10 (some capitalization and punctuation modified).
Plaintiff also submitted some of his grievances and responses thereto. In
a July 7, 2017 grievance, Plaintiff complained that Espino failed to
appropriately handle his prior grievance. Doc. 146-8 at 6. Espino denied
Plaintiff’s grievance, noting as follows:
28

Review of your medical file shows that you were seen
by physician on 5/8/17 at 0930; when being seen by
medical physician you stated you were on a hunger
strike and wanted your diet as you want to eat what is
in [your] religious belief, no eggs/no meat. You
informed the medical physician that you would agree
to eat if your diet was changed to “Low
Residue/alternative with no eggs/meat[”] due to
religious beliefs. There is no such diet as a low
residue/alternative therefore the diet that was written
was invalid.
There is no documentation showing that you are
allergic to eggs and/or meat therefore the provider can
write a low residue diet if it is medically indicated.
The court papers submitted do[] not state[] you are to
be issued a low residue diet, as it is inquiring about a
medical condition to why you state you need the diet.
If you are experiencing medical issues and/or concerns
you can access sick call to be evaluated and if
medically indicated you will be referred for further
evaluation.
Id. at 7.
IV.

Summary Judgment Standard

Under Rule 56, “[t]he court shall grant summary judgment if the movant
shows that there is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The record to
be considered on a motion for summary judgment may include “depositions,
documents, electronically stored information, affidavits or declarations,
stipulations (including those made for purposes of the motion only),
29

admissions, interrogatory answers, or other materials.” Fed. R. Civ. P.
56(c)(1)(A). An issue is genuine when the evidence is such that a reasonable
jury could return a verdict in favor of the non-moving party. Mize v. Jefferson
City Bd. of Educ., 93 F.3d 739, 742 (11th Cir. 1996) (quoting Hairston v.
Gainesville Sun Publ’g Co., 9 F.3d 913, 919 (11th Cir. 1993)). However, “a mere
scintilla of evidence in support of the non-moving party’s position is insufficient
to defeat a motion for summary judgment.” Kesinger ex rel. Est. of Kesinger v.
Herrington, 381 F.3d 1243, 1247 (11th Cir. 2004) (citing Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 252 (1986)).
The party seeking summary judgment bears the initial burden of
demonstrating to the court, by reference to the record, that there are no
genuine issues of material fact to be determined at trial. See Clark v. Coats &
Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991). “When a moving party has
discharged its burden, the non-moving party must then go beyond the
pleadings, and by its own affidavits, or by depositions, answers to
interrogatories, and admissions on file, designate specific facts showing that
there is a genuine issue for trial.” Jeffery v. Sarasota White Sox, Inc., 64 F.3d
590, 593-94 (11th Cir. 1995) (internal citations and quotation marks omitted).
Substantive law determines the materiality of facts, and “[o]nly disputes over
facts that might affect the outcome of the suit under the governing law will
30

properly preclude the entry of summary judgment.” Anderson, 477 U.S. at 248.
In determining whether summary judgment is appropriate, a court “must view
all evidence and make all reasonable inferences in favor of the party opposing
summary judgment.” Haves v. City of Miami, 52 F.3d 918, 921 (11th Cir. 1995)
(citing Dibrell Bros. Int’l, S.A. v. Banca Nazionale Del Lavoro, 38 F.3d 1571,
1578 (11th Cir. 1994)). “Summary judgment is improper, however, if the
evidence is such that a reasonable jury could return a verdict for the
nonmoving party.” Guevara v. NCL (Bahamas) Ltd., 920 F.3d 710, 720 (11th
Cir. 2019) (quotation marks and citation omitted).
V.

Analysis
a. Eighth Amendment Claim - Medications

The Eighth Amendment prohibits the infliction of “cruel and unusual
punishments.” U.S. Const. amend. VIII. As it relates to medical care, “[t]he
Supreme Court has interpreted the Eighth Amendment to prohibit ‘deliberate
indifference to serious medical needs of prisoners.’” Melton v. Abston, 841 F.3d
1207, 1220 (11th Cir. 2016) (quoting Estelle v. Gamble, 429 U.S. 97, 102
(1976)). “To establish a deliberate indifference claim, a plaintiff must show: (1)
a serious medical need; (2) the defendant’s deliberate indifference to that need;
and (3) causation between the defendant’s indifference and the plaintiff’s
injury. Roy v. Ivy, 53 F.4th 1338, 1346-47 (11th Cir. 2022) (citing Goebert v.
31

Lee Cnty., 510 F.3d 1312, 1326 (11th Cir. 2007)). As to the first prong, “a
serious medical need is considered 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.” Farrow v. West, 320
F.3d 1235, 1243 (11th Cir. 2003) (internal quotations and citation omitted). In
either case, “the medical need must be one that, if left unattended, pos[es] a
substantial risk of serious harm.” Id. (internal quotations and citation
omitted). As to the second prong:
[The Eleventh Circuit has] synthesized th[e]
“deliberate indifference” inquiry into four elements: (1)
the official “was aware of facts from which the
inference could be drawn that a substantial risk of
serious harm exists,” (2) the official “actually drew
that inference,” (3) the official “disregarded the risk of
serious harm,” and (4) the official’s “conduct amounted
to more than gross negligence.” [Valderrama v.
Rousseau, 780 F.3d 1108, 1116 (11th Cir. 2015)]. The
mere fact that medical care is eventually provided is
insufficient to defeat a claim for deliberate
indifference. Id. An official may still act with
deliberate indifference “by delaying the treatment of
serious medical needs.” McElligott v. Foley, 182 F.3d
1248, 1255 (11th Cir. 1999). But in making the
determination of whether any particular delay is
unconstitutional, the applicable court must consider
“the reason for the delay and the nature of the medical
need.” Id.
Ireland v. Prummell, 53 F.4th 1274, 1287-88 (11th Cir. 2022) (footnote
omitted); see also Patel v. Lanier Cnty. Ga., 969 F.3d 1173, 1188-89 & n.10
32

(11th Cir. 2020) (recognizing “a tension within [Eleventh Circuit] precedent
regarding the minimum standard for culpability under the deliberateindifference 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)).
“For medical treatment to rise to the level of a constitutional violation,
the care must be ‘so grossly incompetent, inadequate, or excessive as to shock
the conscience or to be intolerable to fundamental fairness.’” Nimmons v.
Aviles, 409 F. App’x 295, 297 (11th Cir. 2011)7 (quoting Harris v. Thigpen, 941
F.2d 1495, 1505 (11th Cir.1991)); see also Waldrop v. Evans, 871 F.2d 1030,
1033 (11th Cir. 1989) (“Grossly incompetent or inadequate care can constitute
deliberate indifference, as can a doctor’s decision to take an easier and less
efficacious course of treatment” or fail to respond to a known medical problem).
Notably, the law is well settled that the Constitution is not implicated by the
negligent acts of corrections officials and medical personnel. Daniels v.

The Court does not rely on unpublished opinions as binding precedent; however,
they may be cited in this Order when the Court finds them persuasive on a particular
point. See McNamara v. GEICO, 30 F.4th 1055, 1060-61 (11th Cir. 2022); see
generally Fed. R. App. P. 32.1; 11th Cir. R. 36-2 (“Unpublished opinions are not
considered binding precedent, but they may be cited as persuasive authority.”).
7

33

Williams, 474 U.S. 327, 330-31 (1986); Davidson v. Cannon, 474 U.S. 344, 348
(1986) (“As we held in Daniels, the protections of the Due Process Clause,
whether procedural or substantive, are just not triggered by lack of due care
by prison officials.”). As such, a complaint that a physician has been negligent
“in diagnosing or treating a medical condition does not state a valid claim of
medical mistreatment under the Eighth Amendment.” Bingham v. Thomas,
654 F.3d 1171, 1176 (11th Cir. 2011) (quotation marks and citation omitted).
Similarly, disagreement over the mode of treatment does not constitute
deliberate indifference under the Eighth Amendment. See Hamm v. Dekalb
Cnty., 774 F.2d 1567, 1575 (11th Cir. 1985). And “the question of whether
governmental actors should have employed additional diagnostic techniques or
forms of treatment ‘is a classic example of a matter for medical judgment’ and
therefore not an appropriate basis for grounding liability under the Eighth
Amendment.” Adams v. Poag, 61 F.3d 1537, 1545 (11th Cir. 1995) (citation
omitted).
Espino contends that he is entitled to summary judgment on Plaintiff’s
claim that Espino denied him medications. During the relevant timeframe,
Espino evaluated Plaintiff twice. During both of the evaluations, Plaintiff
contends that Espino failed to provide him with the medications he requested
for his gastrointestinal issues.
34

When Plaintiff was placed on SHOS on May 4, 2017, he thereafter
refused to take his medications because he was on a hunger strike and his
medications needed to be taken with food. According to Plaintiff’s own
allegations, when he saw Dr. Espino on May 8, 2017, Espino advised Plaintiff
to resume eating before Espino would prescribe him medications. Plaintiff
apparently started eating again on May 9 or 10, 2017. See Doc. 145-2 at 49
(noting Plaintiff told staff that he would “start eating all [his] meals today”);
id. at 59 (form dated May 10, 2017, indicating Plaintiff stated he was eating all
his meals); see also Doc. 146-7 at 2 (grievance written by Plaintiff explaining
that his hunger strike lasted from May 4, 2017 through May 10, 2017). Plaintiff
began receiving his medications (Zantac, Fiber tab, Ducolax, and Protonix)
again on May 11, 2017. See Doc. 146-6 at 2. Thus, Plaintiff was without his
“gastro” medications for only one or two days after seeing Espino and resuming
eating. Espino’s decision to ensure Plaintiff resumed eating before considering
whether he needed the “gastro” medications does not rise to the level of
deliberate indifference. Nor has Plaintiff shown any harm caused by this brief
delay in receiving his medications after he resumed eating.
The next time Espino evaluated Plaintiff was on June 14, 2017. At the
conclusion of the evaluation, Espino determined that Plaintiff had “no clinical
significant indication for treatment.” That Plaintiff disagreed with Espino’s
35

medical judgment does not render Espino 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)). Nevertheless, Plaintiff recognizes that at that time, he “was taking
Zantac, Fiber Tab, . . . Ducolax [and] Protonix.” Doc. 146 at 13; see also Doc.
146-6 at 3-4 (medication and treatment records for June 2017 showing that
Plaintiff was receiving each day Fiber-Lax and Ranitidine (Zantac8), along
with other medications). According to the records Plaintiff submitted, he
continued to receive such medications after June 14, 2017. See Doc. 146-6 at 34.
Apparently, Plaintiff’s main complaint is that he did not receive Tums.
See Doc. 145-1 at 28. But Espino’s failure to provide Plaintiff with Tums does
not, by itself, amount to deliberate indifference. Additionally, despite
Plaintiff’s insistence that Espino “stated on 6-14-17 [that Plaintiff] had no
health issues,” Doc. 146 at 13, Espino’s finding was directed specifically to
Plaintiff’s request for Tums and his diet. And, contrary to Plaintiff’s contention,
the record does not indicate that Espino said Plaintiff needed a particular diet

“Zantac is a brand name of ranitidine.” See Drugs.com, available at
https://www.drugs.com/availability/generic-zantac.html.
8

36

or Tums. Instead, the handwritten note that says “Low res diet, Tums renew”
beside the stamp, “Diagnosis,” is not written in Espino’s handwriting, is clearly
contradictory to Espino’s finding written underneath that note, and appears to
be the reason for Plaintiff’s evaluation that day instead of a “diagnosis.” See
Doc. 145-1 at 28.
Upon due consideration, the Court finds that Espino is entitled to
summary judgment on Plaintiff’s Eighth Amendment claim regarding his
medications.
b. Eighth Amendment Claim - Diet
Prisons must provide basic life necessities, including adequate food. See,
e.g., Farmer v. Brennan, 511 U.S. 825, 832 (1994). To plead an Eighth
Amendment claim, “a prisoner must allege facts that meet both an objective
and a subjective standard.” Robbins, 782 F. App’x at 803.
In an imprisonment context, when the
“punishment” at issue is alleged to be abusive
conditions of confinement, the objective standard looks
to whether those conditions were severe enough to rise
to the level of cruel and unusual punishment. . . . But
only “extreme” deprivations of those basic life
necessities constitute Eighth Amendment violations.
Hudson v. McMillian, 503 U.S. 1, 8-9 (1992). Thus, a
prisoner must plead facts showing that the condition
in question was objectively “extreme,” meaning that it
“poses an unreasonable risk of serious damage to his
future health or safety” that “society considers . . . to
be so grave that it violates contemporary standards of
decency to expose anyone unwillingly to such a risk.”
37

Chandler, 379 F.3d at 1289 (alteration accepted)
(emphasis in original) (quotation marks omitted).
As to the subjective standard, the prisoner must
demonstrate that the government actor accused of the
abusive conduct was aware that he was acting cruelly.
Thus, to satisfy this component, the prisoner must
plead facts showing that the defendant prison official
acted with deliberate indifference, meaning that “the
official kn[ew] of and disregard[ed] an excessive risk to
inmate health or safety.” Id. at 1289-90 (quotation
marks omitted).
Robbins, 782 F. App’x at 803-04 (internal quotations modified).
“Neither [the Eleventh Circuit] nor the Supreme Court have ever held
that the Eighth Amendment requires prison officials to indulge inmates’
dietary preferences—regardless of whether those preferences are dictated by
religious, as opposed to non-religious, reasons.” Id. at 805. Rather, all that is
required is “[a] well-balanced meal, containing sufficient nutritional value to
preserve health.” Hamm v. DeKalb Cnty., 774 F.2d 1567, 1572 (11th Cir. 1985);
see LaFevers v. Saffle, 936 F.2d 1117, 1120 (10th Cir. 1991) (“[T]he mere denial
of a [Seventh Day Adventist’s] requested vegetarian diet is insufficient to
establish a cognizable Eighth Amendment claim” because he was not entitled
“to obtain the diet of his choice” (quotation marks omitted)); McEachin v.
McGuinnis, 357 F.3d 197, 199-201 (2d Cir. 2004) (affirming dismissal of
inmate’s Eighth Amendment claim that the prison served him a non-religious

38

diet for one week, where the district court found, inter alia, that the plaintiff
failed to allege that the food provided was nutritionally inadequate).
Espino seeks summary judgment on Plaintiff’s claim that Espino failed
to provide him with a nutritionally adequate diet that meets his health needs.
However, as shown through Patterson’s and Espino’s Declarations, Espino had
no control over the composition of the foods in the various diet plans; thus, he
could not control the “balance” or “nutritional value” of FDOC’s diets. Thus,
insofar as Plaintiff blames Espino for any nutritional deficiency within the
FDOC diets, his blame is misplaced.
Moreover, Espino was not deliberately indifferent for concluding that
Plaintiff’s requested diet was not medically necessary. On May 8, 2017, Espino
provided the diet that he believed Plaintiff requested. Even if the diet was not
exactly what Plaintiff desired, it cannot be said that Espino was acting with
deliberate indifference.9 He provided Plaintiff with at least some care in an
effort to address Plaintiff’s concerns and end Plaintiff’s hunger strike. And on
June 14, 2017, Espino specifically found that Plaintiff did not medically require

Notably, in a June 7, 2017 formal grievance, Plaintiff claimed that the diet pass
issued by Espino on May 8, 2017 “was MISTAKENLY written as a Low Residue
Alternate No Eggs, No Meat, which should have been a Low Residue Alternate No
Eggs – No Cheese or Low Residue Alternate – No Dairy. . . It’s plain on the face of
the Diet Pass that Alternate (no meat) [and] no meat were written, which is
duplicative [and] was a MISTAKE.” Doc. 146-7 at 2. Based on his assertions, at the
time, Plaintiff believed the pass was simply a mistake.
9

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a certain diet. Again, Plaintiff’s disagreement with Espino’s findings does not
mean Espino acted with deliberate indifference.10
Insofar as Plaintiff contends that Espino was deliberately indifferent for
failing to provide him with his requested diet when other physicians allegedly
found Plaintiff was entitled to a specific diet, Plaintiff’s contentions are
misplaced. Simply because Espino disagreed with another physician does not
mean Espino acted with deliberate indifference. See Keohane v. Fla. Dep’t of
Corr. Sec’y, 952 F.3d 1257, 1274 (11th Cir. 2020). More importantly, however,
it appears that Plaintiff misinterprets and/or draws his own conclusions from
the other physician’s findings. On August 20, 2015, Dr. Contarini ordered
Plaintiff a low fat diet. See Doc. 146-4 at 7. On September 23, 2015, Dr. Shah
examined Plaintiff due to his complaints of constipation and abdominal pain,
and averred that “[f]or constipation, I [(Dr. Shah)] would not have
recommended a low-reside diet because [Plaintiff] needed more fiber, not less.”
See Doc. 146-9 at 2-3. Neither doctor ordered Plaintiff the diet that he now
requests nor did they find that specific diets could or could not be combined.

Plaintiff also repeatedly asserts that his gallbladder walls are thickening and refers
to ultrasound reports from 2015. The February 20, 2015 ultrasound found that “[t]he
gallbladder has a wall thickness of 3.3 mm.” Doc. 146-4 at 5. The June 16, 2015
ultrasound found that his “gallbladder wall measure[d] 1 mm in thickness.” Id. at 6.
Neither report includes an impression that Plaintiff’s gallbladder walls are
thickening.
10

40

Moreover, contrary to Plaintiff’s assertions, nowhere in the Eleventh Circuit’s
opinion does it state that he is entitled to a non-standard therapeutic diet. See
O’Connor, 743 F. App’x 373 (finding that, taking O’Connor’s allegations in the
complaint as true, his allegations about his gastrointestinal problems and the
prison’s handling of those problems met the imminent danger standard and
that the district court should have allowed O’Connor to proceed in forma
pauperis). Similarly, Plaintiff contends that former FDOC Secretary Crews
stated that Plaintiff was “entitled to a Low Residue – 4000 calorie – Vegan
combined” diet; however, a review of Secretary Crews’ November 5, 2014 final
order denying Plaintiff’s petition for rulemaking makes no such finding. See
Doc. 146-2 at 2-3 (denying Plaintiff’s petition for rulemaking as unnecessary
because the administrative code “already allows for non-standard therapeutic
diets”).11
To the extent that Plaintiff argues Espino failed to comply with the
FDOC’s policies or procedures for non-standard therapeutic diets, a violation
of prison policy, alone, is insufficient to state a claim. See Sandin v. Conner,

Plaintiff argues that in response to one of his grievances, Espino advised that his
May 8, 2017 diet pass was invalidated because there is no such diet as a low residue
alternate. To support his position, Plaintiff submitted the FDOC’s Master Menu that
was revised in August 2015, and he asserts that it contains a low residue alternate
diet. In reviewing the menu, the low residue diet does have an alternate entrée listed
for some meals, but on other meals, it specifically states “no alternate entrée.” See
Doc. 146-1 at 2-29.
11

41

515 U.S. 472, 481-82 (1995) (recognizing that prison regulations are “not
designed to confer rights on inmates”); see also Taylor v. Adams, 221 F.3d 1254,
1259 (11th Cir. 2000) (“[F]ailure to follow procedures does not, by itself, rise to
the level of deliberate indifference because doing so is at most a form of
negligence.”).
Additionally, Ms. Patterson, one of the individuals responsible for
creating the FDOC diets to ensure compliance with nutritional guidelines,
opined that while it is “possible to devise a nutritionally sound diet based on a
combination of therapeutic diets, it is not possible for the [FDOC] to have
devised such a combination that also meets [Plaintiff]’s purported religious
dietary restrictions.” She also concluded that “a diet meeting all the
preferences expressed by [Plaintiff] could not be devised and meet the required
nutritional guidelines.” Thus, even assuming Espino could prescribe the
specific diet Plaintiff requested,12 it could not have been created to meet the
required nutritional guidelines.
Therefore, considering the record, the Court finds that Espino is entitled
to summary judgment on Plaintiff’s Eighth Amendment claim regarding his
diet.

To the extent Plaintiff argues that Espino cannot rely on any FDOC policies or
procedures because the claims against Defendants Inch and Jones have been
dismissed, he is mistaken.
12

42

c. First Amendment Claim - Religious Diet
To establish a First Amendment claim under the Free Exercise Clause,
a plaintiff must establish that the defendant imposed a “substantial burden”
on his sincerely held religious beliefs. See Hoever v. Belleis, 703 F. App’x 908,
912 (11th Cir. 2017); see also Wilkinson v. GEO Grp., Inc., 617 F. App’x 915,
917 (11th Cir. 2015); Hernandez v. Comm’r, 490 U.S. 680, 699 (1989) (“The free
exercise inquiry asks whether government has placed a substantial burden on
the observation of a central religious belief or practice[.]”)). “[T]he Supreme
Court [has] held that a policy substantially burdens a prisoner’s religious
exercise if it forces him to choose between engaging in conduct that seriously
violates his religious beliefs or facing a serious penalty.” Robbins v. Robertson,
782 F. App’x 794, 802 (11th Cir. 2019); see Hoever, 703 F. App’x at 912 (“[A]
substantial burden occurs if the conduct complained of completely prevents the
individual from engaging in religiously mandated activity, or . . . requires
participation in an activity prohibited by religion and, at a minimum, must
have something more than an incidental effect on religious exercise.” (internal
quotations and citation omitted)).
Assuming Plaintiff requested that Espino prescribe him the nonstandard therapeutic diet referenced in his Amended Complaint, according to
FDOC policy, Espino lacked authority to prescribe Plaintiff a diet based on
43

Plaintiff’s religious beliefs. Instead, Espino only had authority to prescribe a
diet based on Plaintiff’s medical needs. Notably, Espino attempted to
accommodate Plaintiff’s request on May 8, 2017, in an effort to appease
Plaintiff’s concerns and end his hunger strike. But when Plaintiff complained
about the diet Espino prescribed because it included cheese in violation of his
religion and Plaintiff’s belief that cheese contributed to his gastro issues,
Espino canceled it so Plaintiff could seek a diet compliant with his religion from
either the chaplain or kitchen staff. Thus, Espino did not substantially burden
Plaintiff’s sincerely held religious beliefs. Instead, Espino, after finding that
Plaintiff did not medically require a specific diet, took action to allow Plaintiff
to seek a diet compliant with his religion. And no evidence shows that the
meals provided to Plaintiff were nutritionally inadequate. Plaintiff’s
comparison to the USDA charts is unpersuasive in light of Patterson’s
Declaration averring that certain FDOC diets may not meet such standards
because the diets are meant to address a particular medical need of an inmate.
Espino did not place Plaintiff in a position of choosing between complying
with his religious beliefs or facing harm with respect to his health. Accordingly,
Espino is entitled to summary judgment on Plaintiff’s First Amendment claim
about his diet.

44

d. Retaliation
“The core of [a retaliation claim brought pursuant to 42 U.S.C. § 1983] is
that the prisoner is being retaliated against for exercising his right to free
speech.” O’Bryant v. Finch, 637 F.3d 1207, 1212 (11th Cir. 2011) (per curiam)
(citation omitted). It is firmly established that “an inmate is considered to be
exercising his First Amendment right of freedom of speech when he complains
to the prison’s administrators about the conditions of his confinement.” Smith
v. Mosley, 532 F.3d 1270, 1276 (11th Cir. 2008). Further, it is firmly
established that an inmate may pursue a cause of action against a prison
official who retaliated against him for engaging in that protected speech. Id.
Three elements are involved in these retaliation claims:
(1) [the inmate’s] speech was constitutionally
protected; (2) the inmate suffered adverse action such
that the [official’s] allegedly retaliatory conduct would
likely deter a person of ordinary firmness from
engaging in such speech; and (3) there is a causal
relationship between the retaliatory action and the
protected speech.
Id.
Plaintiff contends that Espino retaliated against him by voiding his May
8, 2017 diet pass in response to Plaintiff’s June 7, 2017 formal grievance. In
that formal grievance, Plaintiff acknowledged that the diet pass issued by
Espino on May 8, 2017 “was MISTAKENLY written as a Low Residue
45

Alternate No Eggs, No Meat, which should have been a Low Residue Alternate
No Eggs – No Cheese or Low Residue Alternate – No Dairy. . . It’s plain on the
face of the Diet Pass that Alternate (no meat) [and] no meat were written,
which is duplicative [and] was a MISTAKE.” Doc. 146-7 at 2. He also
complained in that formal grievance about the nurses not responding to his
sick-call and verbal requests. Id. He attached to the grievance a sick-call
request dated May 30, 2017, complaining about his diet pass. Id. at 3. Plaintiff
contends in the grievance that he submitted the May 30, 2017 sick-call request
to Nurse Johnson in a sealed envelope, and he asked “Nurse C” on June 6, 2017
about the sick-call “to no avail.” Id. at 2. He also attached a sick-call request
dated June 6, 2017, complaining about his diet and requesting Tums. Id. at 4.
Plaintiff’s formal grievance was returned without processing because an
earlier decision had been rendered on another grievance in which Plaintiff
raised the same issues. Id. at 6.
In apparent response to Plaintiff’s grievance, on June 12, 2017, Espino
wrote an incidental note in Plaintiff’s medical record that he was discontinuing
Plaintiff’s diet “due to [Plaintiff’s] Religion.” Doc. 146-7 at 5. He explained that
Plaintiff should speak to a chaplain about an RDP or ask the kitchen for a
Vegan diet. Id. Then, Espino examined Plaintiff on June 14, 2017, and

46

concluded that Plaintiff did not have any medical need for a particular diet.13
Doc. 145-1 at 28. Thus, insofar as Plaintiff wanted a diet compliant with his
religion, he was free to speak to a chaplain or kitchen staff to request such a
diet.
Simply because Espino took action in response to Plaintiff’s grievance
does not mean that Espino acted in retaliation. See Glenn v. Gillis, No. 5:12CV-260-RS-GRJ, 2013 WL 4096206, at *6 (N.D. Fla. Aug. 13, 2013) (“A prison
may appropriately respond to the content of an inmate’s grievance without
violating the inmate’s constitutional rights.”). Indeed, prison officials are
required to take appropriate action in response to an inmate’s grievances and
requests. Plaintiff was complaining about his current diet pass being deficient,
and Espino acted to correct that. That Espino did not do exactly what Plaintiff
wanted does not mean Espino acted in retaliation. Instead, Espino avers that

To the extent that Plaintiff argues Espino retaliated against him for a grievance
Plaintiff filed on June 14, 2017, to which he attached this Court’s order from another
case, Doc. 146-14 at 6, his claim likewise fails. Given that Plaintiff submitted the
grievance before seeing Espino that same day, Espino would have only known about
the grievance with the Court’s order attached to it if Plaintiff had told him about it
during the examination. And if Plaintiff told Espino that there was an existing Court
order directing FDOC’s compliance with treating Plaintiff’s alleged gastro issues,
then Espino reasonably declined providing any care until he could see what the
Court’s order mandated. If he had done something different, he could have potentially
violated the Court order. But as previously noted, the Court’s order simply asked the
FDOC to provide a status update on whether Plaintiff had received surgery. It did
not mandate any treatment or make any findings about Plaintiff’s condition.

13

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based on his medical judgment, Plaintiff did not medically require a special
diet, so Espino canceled Plaintiff’s diet pass so that Plaintiff could seek a diet
compliant with his religion—over which Espino had no control. Plaintiff has
not shown that Espino’s actions in response to Plaintiff’s grievance would
“deter a person of ordinary firmness from engaging in such speech.”
Considering the record, the Court finds that Espino is entitled to summary
judgment on Plaintiff’s retaliation claim.
VI.

Espino’s Objections to Plaintiff’s Evidence

In light of the Court’s findings, the Court need not address Defendant
Espino’s Objections (Doc. 149). Thus, the Court finds the Objections moot.
VII. Claim Against Defendant Robinson
a. Plaintiff’s Motion
On May 4, 2022 (mailbox rule), Plaintiff filed a Motion for Leave to File
Belated Motion for Summary Judgment against Defendant Robinson (Doc.
137). The deadline to file dispositive motions was January 7, 2022. See Order
(Doc. 103). The Court previously denied Plaintiff’s requests to extend this
deadline. See Orders (Docs. 125, 127). Plaintiff argues that he lacked access to
his grievances, and because the Court granted his request to extend his
deadline to respond to Espino’s Motion for Summary Judgment based on the
same reasoning, the Court should likewise grant his request to file a belated
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motion against Defendant Robinson. Upon review of Plaintiff’s Motion and the
file, the Court denies Plaintiff’s request.
b. Court’s Review
After due consideration, the Court finds that Plaintiff’s claim against
Robinson is due to be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii)
(requiring the Court to dismiss a case at any time if the action “fails to state a
claim on which relief may be granted”).
According to Plaintiff, on April 23, 2017, he “had a serious health need
to be referred to a [medical doctor] by Nurse Robinson for his complaints of
gastro pains [and] cramps, bloody toilet tissue with stools, [and] large quantity
of blood in the toilet [that] she saw.” Doc. 57 at 12. Robinson, however, advised
Plaintiff “that nothing [wa]s wrong with him because [he] ‘waited until the
weekend when nobody [wa]s here to complain,’” gave Plaintiff a sick-call form
and “nothing more.” Id. Plaintiff claims Robinson was deliberately indifferent
for failing to refer him to a medical doctor. Id. He further alleges that her
“deliberate indifference . . . caused [Plaintiff] injuries of continuous pains,
cramps, def[e]cating bloody stools, etc, she witnessed; [and] stress, anxiety,
agitation of the chemical imbalance in [his] brain, depression, etc.” Id.
Assuming Plaintiff had a serious medical need, Plaintiff’s allegations,
taken as true, do not suggest that Robinson acted with deliberate indifference.
49

Plaintiff voiced his concerns to Robinson, and Robinson provided him with a
sick-call slip. Plaintiff completed the sick-call slip, but according to Plaintiff’s
own allegations, he refused the sick-call assessment that Nurse Burgin tried
to perform on May 4, 2017, in response to the sick-call slip because Plaintiff
was “paranoid.” Doc. 57 at 15. Moreover, the day before, May 3, 2017, Plaintiff
was examined by Dr. Asevero, who provided him with certain medications and
a diet pass. Id. at 12.
Robinson did not ignore Plaintiff’s complaints, and her actions, as
alleged by Plaintiff, do not amount to care that is “‘so grossly incompetent,
inadequate, or excessive as to shock the conscience or to be intolerable to
fundamental fairness.’” Nimmons, 409 F. App’x at 297 (internal quotations and
citation omitted). Additionally, Plaintiff has failed to allege facts showing a
causal connection between Robinson’s actions and his alleged injuries.
Although Plaintiff blames Robinson for his “continuous pains, cramps,
def[e]cating bloody stools, etc, she witnessed; [and] stress, anxiety, agitation of
the chemical imbalance in [his] brain, depression, etc.,” he refused his sick-call
assessment when another nurse tried to address his concerns, and he
acknowledges that he was seen by a medical doctor who provided him with
medications and a diet pass. His allegations do not suggest a causal connection
between Robinson’s “refusal” to refer him immediately to a doctor and any
50

injury. Nor do they suggest the alleged delay in treatment caused him harm.
Accordingly, Plaintiff’s claim against Robinson is due to be dismissed.14
Accordingly, it is
ORDERED:
1.

Espino’s Amended Motion for Summary Judgment (Doc. 145) is

GRANTED.
2.

Espino’s Objections to Plaintiff’s Summary Judgment Evidence

(Doc. 149) is MOOT.
3.

Plaintiff’s Motion for Leave to File Belated Motion for Summary

Judgment against Nurse Robinson (Doc. 137) is DENIED.
4.

All claims against Defendant Nurse Robinson are DISMISSED

for failure to state a claim.

Plaintiff included similar allegations against Robinson in his initial Complaint,
although he did not name her as a Defendant. See Doc. 1 at 6. After the Court directed
him to file an amended complaint (Doc. 43), he included Robinson as a Defendant
with similar allegations. The Court finds any further amendment would be futile. See
Silberman v. Miami Dade Transit, 927 F.3d 1123, 1132 (11th Cir. 2019) (“Our cases
make clear that a [pro se] plaintiff must be given at least one chance to amend the
complaint before the district court dismisses the action with prejudice—at least, that
is, where a more carefully drafted complaint might state a claim.” (internal
quotations and citation omitted)).
14

51

5.

The Clerk shall enter judgment in favor of Defendant Espino and

against Plaintiff, terminate any pending motions, and close the file.
DONE AND ORDERED at Jacksonville, Florida, this 23rd day of
March, 2023.

JAX-3 3/23
c:
Nyka O’Connor, #199579
Counsel of Record
Nurse Deshika Robinson

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