Cooper, Jr. v. Florida Department of Corrections, et al.,

Filing 121

ORDER granting 105 Corizon's Motion for Summary Judgment; denying as moot 107 Defendants Massee, Sailee, Saylor, Bickerstaff, Burnett, Guitherman, Phillips, Stephen, and Powell's Motion for Summary Judgment; granting 113 joint Mot ion for Extension of Time to Complete Discovery to the extent the Court vacates 94 the amended case management and scheduling order; directing Plaintiff to file a proper motion to withdraw or file a joint proposed case management report by August 16, 2021; see Order for details. Signed by Judge Brian J. Davis on 7/14/2021. (KLC)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
KEITH LAVON COOPER, JR.,
Plaintiff,
v.

Case No. 3:19-cv-309-BJD-MCR

FLORIDA DEPARTMENT OF
CORRECTIONS, et al.
Defendants.
_______________________________
ORDER
I. Background & Status
Before the Court are the following motions: (1) Corizon Health, Inc.’s
motion for summary judgment (Doc. 105; Corizon Motion); (2) Defendants
Massee, Sailee, Saylor, Bickerstaff, Burnett, Guitherman, Phillips, Stephen,
and Powell’s motion for summary judgment (Doc. 107); and (3) Plaintiff’s
motion to extend the deadlines, joined by Defendants Freeman, Massee, Sailee,
Saylor, Bickerstaff, Burnett, Guitherman, Phillips, Stephen, and Powell (Doc.
113).
The Court previously directed Plaintiff to respond to Defendants’
motions for summary judgment by May 20, 2021. See Order (Doc. 111). The
Court warned Plaintiff his failure to do so would result in the Court treating

the motions as unopposed. See Order (Doc. 111) (citing M.D. Fla. R. 3.01(c)).
Plaintiff’s counsel, Rodney Gregory, thereafter filed two documents in which
he requests more time for discovery and to file motions for summary
judgment.1 See Motions (Docs. 113, 114). Mr. Gregory asserts he is still
awaiting discovery responses from all Defendants, which he needs to properly
respond to any dispositive motions. All Defendants except Corizon join the
motion to extend the deadlines (Doc. 113).
On June 23, 2021, the Court held a status conference because Mr.
Gregory failed to respond to the pending motions for summary judgment as
directed and instead requested an extension of the deadlines (most of which
have already passed); all parties except Corizon indicate they need more time
to complete discovery, but dispositive motions have been filed and the case is
set for trial on November 1, 2021; and Mr. Gregory indicates he intends to
withdraw as Plaintiff’s counsel.
At the status conference, counsel for Defendant Warden Freeman agreed
to an extension of the deadlines in part because counsel wants to retain an
expert. Counsel for the officers represented the officers do not need to retain
an expert and are ready to proceed to trial if the Court denies their motion for

Mr. Gregory represents by title of the second filing (Doc. 114) that it is also
meant to be a response to Corizon’s motion for summary judgment. It is not.
1

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summary judgment. However, counsel clarified the officers do not oppose
extending the deadlines. Corizon’s attorney, on the other hand, represented
Corizon has responded to all Plaintiff’s discovery requests and met all case
management deadlines and contends extending the deadlines at this point
would prejudice Corizon.
Mr. Gregory conceded the case has been mis-managed. He explained
there was a delay scheduling depositions because Plaintiff sustained a serious
injury in October or November; he (Mr. Gregory) was suspended from the
practice of law for sixty days in late 2020; the law firm primarily responsible
for the case withdrew during Mr. Gregory’s suspension; and the assigned
mediator was unable to schedule a mediation within the deadline set by the
Court. During Mr. Gregory’s sixty-day suspension, another attorney, Gerald
Bernard Stewart, agreed to serve as counsel of record for appearances only.
According to Mr. Gregory, Mr. Stewart’s sole role was that of a placeholder;
Mr. Stewart was not responsible for the case.
The circumstances Mr. Gregory describes are concerning. Mr. Gregory
essentially allowed the case to remain dormant while he was suspended, which
undoubtedly played a role in his failure to meet case management deadlines,
including disclosing expert reports and taking depositions. Additionally, Mr.
Gregory’s unfamiliarity with the Court’s Local Rules impeded him from timely
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and properly seeking extensions of the deadlines.2 Corizon should not have to
suffer the consequences of Mr. Gregory’s professional missteps, especially after
the Court cautioned all parties in November 2020, that it expected them to
“adhere to the amended deadlines,” see Order (Doc. 87), and recently cautioned
Mr. Gregory that his continued failure to comply with the Court’s Local Rules
may result in sanctions, see Order (Doc. 111).
Accordingly, upon due consideration of the parties’ positions, the
procedural posture of the case, and Mr. Gregory’s failure to meet case
management deadlines even after they had been extended, the Court deems
Corizon’s motion for summary judgment unopposed and ripe for consideration.
Given the remaining Defendants do not oppose an extension of the deadlines,
the Court will vacate the amended case management and scheduling order
(Doc. 94) and deny the officers’ motion for summary judgment (Doc. 107) as
moot.
II. Plaintiff’s Allegations
Plaintiff is proceeding on a fourth amended complaint (Doc. 75; FAC).
His claims arise out of an incident that occurred on April 30, 2015, at the work

Mr. Gregory consistently has failed to comply with applicable Rules and
Court Orders, and some of his motions have been stricken for that reason. See Orders
(Docs. 97, 100, 103, 111, 119). As of the date of the status conference, Mr. Gregory
admittedly still had not familiarized himself with the Court’s Local Rules, despite
having been ordered to do so in February 2021. See Order (Doc. 97).
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camp at Baker Correctional Center (Baker CI). See FAC ¶¶ 32, 72. According
to Plaintiff, up to twenty-two other inmates who were associated with a prison
gang called the “Cutthroats” were impermissibly granted access to Plaintiff’s
housing unit where they beat Plaintiff unconscious in retribution for falling
behind on extortion payments demanded by the head of the Cutthroats, “the
Terrorizer.” Id. ¶¶ 43-45, 48, 62, 65-67, 72-74. Plaintiff alleges corrections
officers and the warden could see the attack but did nothing to stop it. Id. ¶¶
75-78. He asserts Corizon was deliberately indifferent to his need for medical
care, not only while he was housed at Baker CI but at other correctional
institutions as well. Id. ¶¶ 105-15. Plaintiff alleges Corizon has a custom or
policy of “provid[ing] [in]adequate treatment and services to prisoners” in the
care and custody of the Florida Department of Corrections (FDOC). Id. ¶ 132,
173.
III. Motion for Summary Judgment Standard
Rule 56 of the Federal Rules of Civil Procedure provides, “[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). An issue is genuine when the evidence is
such that a reasonable jury could return a verdict in favor of the nonmovant.
Mize v. Jefferson City Bd. of Educ., 93 F.3d 739, 742 (11th Cir. 1996) (quoting
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Hairston v. Gainesville Sun Publ’g Co., 9 F.3d 913, 919 (11th Cir. 1993)). “[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. Estate
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). 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), admissions,
interrogatory answers, or other materials.” Fed. R. Civ. P. 56(c)(1)(A).
“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 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
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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
[the motion].” 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)).
IV. Analysis
Plaintiff’s sole claim against Corizon is for deliberate indifference to his
serious medical needs under the Eighth Amendment (count three of the FAC).
Deliberate indifference to an inmate’s serious medical needs constitutes the
unnecessary and wanton infliction of pain, which the Eighth Amendment
proscribes. Estelle v. Gamble, 429 U.S. 97, 104 (1976). See also Ancata v.
Prison Health Servs., Inc., 769 F.2d 700, 704 (11th Cir. 1985) (“The knowledge
of the need for medical care and intentional refusal to provide that care has
consistently been held to surpass negligence and constitute deliberate
indifference.”).
However, disputes regarding the adequacy of medical care a prisoner has
received, including diagnostic testing, sound in tort law. Hamm v. DeKalb Cty.,
774 F.2d 1567, 1575 (11th Cir. 1985). Consequently, “federal courts are
generally reluctant to second guess medical judgments and to constitutionalize
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[tort] claims.” Id. (quoting Westlake v. Lucas, 537 F.2d 857, 860 n.5 (1st Cir.
1981) (alteration in original)). “[T]he 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) (quoting Estelle, 429 U.S.
at 107).
When a prisoner complains the medical treatment he received
constitutes cruel and unusual punishment, he must demonstrate the
treatment was “so grossly incompetent, inadequate, or excessive as to shock
the conscience or to be intolerable to fundamental fairness.” Harris v. Thigpen,
941 F.2d 1495, 1505 (11th Cir. 1991) (quoting Rogers v. Evans, 792 F.2d 1052,
1058 (11th Cir. 1986)). See also Owens v. Sec’y of Fla. Dep’t of Corr., 812 F.
App’x 861, 869 (11th Cir. 2020) (per curiam) (affirming the district court’s
grant of summary judgment in favor of a prison doctor who declined to order
an x-ray, because the doctor’s medical judgment, “even if it were incorrect or
in conflict with another doctor’s medical judgment,” was not a constitutional
violation).
Corizon documents in its motion for summary judgment that Plaintiff
received medical attention on the day of the incident—he was transferred to
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Shands by helicopter—and extensive follow-up care, both at Baker CI and
other FDOC institutions. See Corizon Motion at 26-27. Corizon’s expert, Dr.
Alfred Joshua, offers an affidavit (Doc. 105-1) and a report (Doc. 105-14; Expert
Report) in which he comprehensively summarizes the medical treatment
Plaintiff received on the day of the incident and in the weeks and months
following. See Expert Report at 7-18.3
Dr. Joshua concludes Plaintiff “was afforded extensive clinical oversight,
delivery

of

various

healthcare

services,

multiple

routine

specialist

appointments, surgical repair, medications, and orthotics which would likely
not have been coordinated to the extent in the community as it was done in the
[FDOC] under Corizon’s medical oversight.” Id. at 19. He explains that after
Plaintiff was released from the hospital the day after the incident, he received
extensive routine and specialized treatment:
Over the course of the next several months, Mr.
Cooper received the attention of various specialists
which included a Neurologist, Neurosurgeon, Physical
Therapist, Ophthalmologist, Optometrist, and Head
and Neck Specialists for his various injuries. These
specialists do not include the routine care he received
Corizon submitted over 2,000 pages of medical records with its motion for
summary judgment (Docs. 105-3 through 105-13; Motion Exs. 3-13). Some of the
medical records document a prior injury to Plaintiff’s lower extremities. Plaintiff has
a history of multiple gunshot wounds to his left leg, which caused balance issues and
weakness. See Motion Ex. 3 at 7; Motion Ex. 12 at 121. Because of the length of the
records, the Court cites primarily Dr. Joshua’s summary and report, but the Court
has reviewed all records submitted.
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from the medical providers, admissions to the medical
infirmary unit, and nursing staff services while he was
at Baker [CI] and Taylor Correctional facility. The
care was extended out for many years in the case of
the Neurologist and Physical Therapist.
Id. In addition to seeing specialists and receiving routine care, Plaintiff
underwent numerous diagnostic tests including CT scans, x-rays, MRIs and
EMGs. Id. Additionally, Plaintiff received surgery to repair a nasal fracture
and was prescribed multiple medications. Id. at 20. Dr. Joshua states his
opinion as follows: “Based on the extensive medical records and level of clinical
attention Mr. Cooper received, it is my opinion that there is no basis for any
allegations of Corizon for failing to deliver adequate medical care for Mr.
Cooper.” Id. at 19.
When deposed, Plaintiff conceded he had “gotten all sorts of medical care
while [he was] in the custody of the [FDOC],” including hospital visits, prison
infirmary stays, physical therapy, surgery, medications (Neurontin, Tylenol,
Ibuprofen, Naproxen, Decadron, Toradol, and Baclofen), devices to assist with
walking,4 and appointments with specialists, such as eye doctors and

Shortly after the incident, Plaintiff started complaining of numbness in his
legs and an inability to walk. See Expert Report at 9, 11, 13. On September 14, 2015,
a neurosurgeon at Memorial Hospital Jacksonville diagnosed Plaintiff with
paraplegia but concluded “no surgical intervention . . . could help him.” Id. at 17.
Prison nurses suggested Plaintiff may have been exaggerating the extent of the
weakness in his legs. For instance, a nurse noted Plaintiff was seen changing
positions in his bed with his legs following independently in a fluid motion, and he
positioned his “legs independently in bent knee position” six times. See Expert Report
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neurosurgeons. See Pl. Dep. at 109-14. He also acknowledged he was
“immediately sent out to the hospital for medical care” when prison doctors
were not able to care for him at the facility. Id. at 116.
The only deficiency in medical care Plaintiff attributed to Corizon
providers was that he was forced to wait “a whole 24 hours to see a doctor”
when he was released from Shands the day after the incident. Id. at 115.
During that 24 hours, Plaintiff experienced an inability to control his bladder,
but he admitted he was in the prison infirmary and nurses helped clean him.
Id. He was not ignored.
Upon review and viewing the evidence in the light most favorable to
Plaintiff, the Court finds Corizon has carried its burden on summary judgment.
More specifically, Corizon demonstrates by reference to the record that there
are no genuine issues of material fact to be determined at trial. See Clark, 929
F.2d at 608. The evidence shows, and Plaintiff acknowledged at deposition,
that Plaintiff received immediate and continuing medical care for the injuries
he sustained at the hands of other inmates on April 30, 2015.

at 17-18; Motion Ex. 3 at 163. A few days later, a different nurse saw Plaintiff “move
his left leg without using his hands.” See Expert Report at 18; Motion Ex. 3 at 164.
Plaintiff was released from prison on March 2, 2018. See FDOC offender information
search, available at http://www.dc.state.fl.us/OffenderSearch/Search.aspx (last
visited July 12, 2021). Plaintiff testified at his deposition (Doc. 108-1; Pl. Dep.) that
he can now walk, and he drives. See Pl. Dep. at 109.
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Stated differently, there is no evidence showing Corizon knew Plaintiff
needed medical care but refused to provide or delayed providing it. See Ancata,
769 F.2d at 704 (summarizing the ways in which a medical provider exhibits
deliberate indifference). On the contrary, the records show Plaintiff received
extensive medical care for the injuries he sustained on April 30, 2015, and
there is no evidence suggesting that care was “so grossly incompetent,
inadequate, or excessive as to shock the conscience or to be intolerable to
fundamental fairness.” Harris, 941 F.2d at 1505. Plaintiff’s subjective belief
that prison doctors should have evaluated him at designated intervals or
prescribed different or more medications “is not an appropriate basis for
grounding liability under the Eighth Amendment.” See Adams, 61 F.3d at
1545.
Plaintiff offers no evidence in opposition to the motion, and he may not
rely on the unsubstantiated allegations in his complaint.5 See Celotex Corp. v.

The Court reiterates that Plaintiff was afforded ample opportunity to respond
to Corizon’s motion. Not only do the Local Rules provide a motion for summary
judgment may be treated as unopposed if the non-movant does not respond, see M.D.
Fla. R. 3.01(c), the Court explicitly informed Plaintiff’s counsel that, absent
agreement from all parties that the deadlines should be extended, his failure to
respond by May 20, 2021, will result in the motions for summary judgment being
treated as unopposed, see Order (Doc. 111). Additionally, the Court’s summary
judgment notice (Doc. 106) provides the same caution. That notice provides as follows,
as to any filed motions for summary judgment:
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(1) failing to respond to these motion(s) will indicate that
the motion(s) are not opposed; (2) all material facts
asserted by the movant in the motion(s) will be considered
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Catrett, 477 U.S. 317, 324 (“Rule 56(e) permits a proper summary judgment
motion to be opposed by any of the kinds of evidentiary materials listed in Rule
56(c), except the mere pleadings themselves.”). “[M]ere conclusions and
unsupported factual allegations are legally insufficient to defeat a summary
judgment motion.” Ellis v. England, 432 F.3d 1321, 1326 (11th Cir. 2005). As
such, Corizon’s motion for summary judgment is due to be granted.
Accordingly, it is now
ORDERED:
1.

Corizon’s motion for summary judgment (Doc. 105) is GRANTED.

Judgment in favor of Corizon will be withheld pending adjudication of the
action as a whole. See Fed. R. Civ. P. 54.
2.

Defendants

Massee,

Sailee,

Saylor,

Bickerstaff,

Burnett,

Guitherman, Phillips, Stephen, and Powell’s motion for summary judgment
(Doc. 107) is DENIED as moot.
3.

Plaintiff’s motion to extend the deadlines, joined by all Defendants

except Corizon (Doc. 113), is GRANTED to the extent the Court vacates the
amended case management and scheduling order (Doc. 94).

to be admitted by you unless controverted by proper
evidentiary materials (counter-affidavits, depositions,
exhibits, etc.) filed by you; and (3) you may not rely solely
on the allegations of the issue pleadings (e.g., complaint,
answer, etc.) in opposing these motion(s).
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4.

If Plaintiff’s counsel intends to withdraw, he must file a proper

motion no later than August 16, 2021.
5.

If Plaintiff’s counsel does not move to withdraw from the case, he

and counsel for the remaining Defendants shall submit a joint proposed case
management report by August 16, 2021, with reasonable deadlines for the
completion of discovery, disclosure of expert reports, mediation, and the filing
of dispositive motions, such that this case can be tried by February 2022.
DONE AND ORDERED at Jacksonville, Florida, this 14th day of July
2021.

Jax-6
c:
Counsel of Record

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