Bryant v. Orange County, Florida et al

Filing 103

ORDER denying as moot 82 Motion for summary judgment; denying 85 Motion for summary judgment; granting in part and denying in part 88 Motion for summary judgment. The Defendants' Motion for Summary Judgment (Doc. 88) is GRANTED as t o Defendants Harter and Gonzalez and DENIED as to Defendant Buck. Defendant Clairmont's Motion for Summary Judgment (Doc. 85) is DENIED. Defendant Evans's Motion for Summary Judgment (Doc. 82) is DENIED as MOOT. Signed by Judge Gregory A. Presnell on 4/24/2019. (MAF)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
WILLINE BRYANT and MAX GRACIA,
SR.,
Plaintiffs,
v.

Case No: 6:17-cv-1423-Orl-31LRH

ORANGE COUNTY, FLORIDA,
ROBERT J. BUCK, III , KAREN
CLAIRMONT, ELSA GALLOZAGONZALEZ and LYNN MARIE
HARTER,
Defendants.

ORDER
This Matter comes before the Court without a hearing on Defendant Buck’s Motion for
Summary Judgment (Doc. 88), Defendant Clairmont’s Motion for Summary Judgment (Doc. 85),
the Plaintiff’s Response (Doc. 100) and the Defendants’ Replies (Docs. 101 and 102). 1
I.

Background
A. Facts as Alleged in the Complaint 2
During his arrest on August 6, 2015, Max Gracia, Jr. suffered dog bite wounds to his hands

and legs. Second Amend. Compl., Doc. 47, ¶ 21. Although Gracia suffered multiple dog bites on

1

Although other Defendants also moved for summary judgment, the Plaintiffs do not
oppose summary judgment for Defendants Gonzalez and Harter. (Doc. 100 at 2).
2

Of course, the Court does not take the Plaintiffs’ allegations as true at this stage. The Court
uses allegations from the Complaint solely to provide context for later discussion. Because the
questions at hand are narrow, the Complaint provides more comprehensive background information
than does the evidence cited by the parties for purposes of the instant motions.

both his hands and legs, at least some of which were severe, the Plaintiffs do not seek any relief with
respect to the initial dog bite injuries themselves. 3 After receiving some treatment for those wounds
at Orange County Regional Medical Center, Gracia was admitted to the Health Services Department,
also known as Corrections Health Services (“CHS”) of Orange County Corrections (“OCC”). Id.
Gracia’s injuries resulted in an assignment to the Infirmary at OCC. Id. ¶ 22. Around the
time of Gracia’s admission to the Infirmary, Defendant Robert Buck III, M.D. (“Buck”) evaluated
him and noted that he “had multiple dog bites with severe flesh involvement.” Id. Buck put Gracia
back on his seizure medication, prescribed antibiotics and pain medication, including ibuprofen and
Tylenol #3, 4 and noted that, upon verification that Gracia “had been compliant in the community,”
Atripla 5 should be ordered. Id. ¶ 22-23. Buck did not order Atripla for Gracia, and “Buck never saw
or inquired about [Gracia] again.” Id. ¶ 23.
On August 7, 2015, Gracia’s “wounds were cleaned and dressed” by Elsa Galloza-Gonzalez
(“Gonzalez”). 6 Id. ¶ 25. At that time, at least one of his wounds was “reddened with scant
serosanguineous drainage present.” Id. Later, Defendant Karen Clairmont (“Clairmont”) allegedly
saw Gracia but did not obtain his vital signs or perform any physical assessment. 7 Id. ¶ 26.

3

The Plaintiffs filed suit as co-personal representatives of the estate of Gracia.

4

Tylenol #3 contains acetaminophen and codeine. Acetaminophen and Codeine, MAYO
CLINIC, https://www.mayoclinic.org/drugs-supplements/acetaminophen-and-codeine-oralroute/description/drg-20074117 (last accessed April 18, 2019).
5

Atripla is an antiviral medication used to treat HIV infections. (Doc. 95-1 at 28).

6

This was recorded in a Nursing Treatment Note, completed at 5:20 p.m. on August 7,

2015.
7

This was recorded in a Nursing Progress Note, completed retroactively at 7:07 a.m. on
August 8, 2015.

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On August 8, 2015, Gracia was educated about the risk of infection and was told to increase
his fluid intake. 8 Id. ¶ 27. Gracia’s wound dressing was changed, and Gonzalez again noted that the
wound on his left leg was “reddened with scant serosanguineous drainage.” 9 Id. ¶ 28. That
afternoon, Gracia vomited twice, but his vital signs were not taken. Gracia was later given
odansetron, an anti-nausea drug. 10 Although the wound was reddened and Gracia complained of
vomiting, Gonzalez recorded that he showed “no signs or symptoms of infection.” Id. ¶ 28, 29; see
also Doc. 83-1 at 42.
On August 9, 2015, at 6:35 a.m., the dressing on Gracia’s left leg wound was changed. The
wound was reddened and had “a large amount of bloody drainage.” 11 Id. ¶ 30. Gracia complained
of dizziness and weakness, and at some point that morning his vital signs were recorded (for the
first time in fifty-five hours), revealing tachycardia 12 of 131 and a respiratory rate of 22. Id. ¶ 32.
In response to this abnormality, Evans ordered an increased fluid intake. 13 Id. Gracia’s vital signs

8

This was recorded by Gonzalez in a Nursing Progress Note, completed at 11:38 a.m. on
August 8, 2015.
9

This was recorded in a Nursing Treatment Note, completed at 4:59 p.m. on August 8,

2015.
10

This was recorded by Gonzalez at 5:13 p.m. on August 8, 2015. Maryanne Evans
(“Evans”) co-signed the order for odansetron at 5:00 p.m. on August 9, 2015. It is unclear whether
Gracia was given odansetron before or after the order was co-signed.
11

This was recorded by Clairmont in a Nursing Progress Note, completed at 6:38 a.m. on
August 9, 2015. The Note had the exact same language as the one recorded by Clairmont on the
previous day. Id. ¶ 31.
12

“Tachycardia occurs when an abnormality in the heart produces rapid electrical signals
that quicken the heart rate, which is normally about 60 to 100 beats a minute at rest.” Tachycardia,
MAYO CLINIC, https://www.mayoclinic.org/diseases-conditions/tachycardia/symptoms-causes/syc20355127 (accessed April 17, 2019).
13

This was recorded by Gonzalez in a Nursing Progress Note, completed at 10:29 a.m. on
August 9, 2015. Thus, it appears that Evans ordered the increased fluid intake prior to co-signing
the odansetron order. See supra n.10 and accompanying text. There is no indication that the

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were never taken again. Id. At 9:00 p.m., Gracia twisted and moaned loudly in bed, said that he
“can’t do it,” and fell to the ground. 14 Id. ¶ 37. At some point prior to 9:54 p.m., Gracia allegedly
“refused to get up for his evening medications.” 15 Id. ¶ 33.
At around 11:16 p.m. on August 9, 2015, an officer and two supervisors came to transfer
Gracia to a camera-monitored cell. 16 Id. ¶ 35. At the time, Gracia was unresponsive, groaning
lethargically, and laying on the floor. Id. Clairmont was present and, although she disputes this, the
Plaintiffs claim she told the officers that he was “faking or exaggerating his medical condition and
inability to get up.” 17 Id. The officer and two inmate workers physically moved Gracia to a cell with
a recording camera. Id. Gracia was documented as compliant. Id. However, a disciplinary report
was filed against Gracia because he “refus[ed]” to follow orders in connection with the transfer;
instead, Gracia lay on his back on the floor and “refus[ed] all treatment.” 18 See id. ¶ 38.
On August 10, 2015, at 2:58 a.m., a corrections investigator allegedly tried to “interrogate”
Gracia with respect to the disciplinary report. Id. ¶ 36. According to the Plaintiffs, Gracia was unable
to reply to the corrections investigator. Id.

nursing staff ever checked to see if Gracia had increased his fluid intake.
14

This was recorded by Clairmont at 3:13 a.m. on August 10, 2015.

15

This was recorded by Lynn Marie Harter (“Harter”) in a Nursing Note, completed at
9:54 p.m. on August 9, 2015.
16

Clairmont testified that she decided to move Gracia in order to keep an eye on him.

17

In support of this, the Plaintiffs mention reports by Officer Vargas and his tour supervisor
without including them or citing to them more specifically.
18

This was recorded by Clairmont in a Nursing Progress Note, completed at 3:35 a.m. on
August 10, 2015.

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At approximately 5:15 a.m., an officer informed Clairmont that Gracia was not breathing. 19
Id. ¶ 39. Clairmont observed Gracia on his back in bed, with no pulse or respirations. Efforts to
revive Gracia began and continued until EMS arrived and transported Gracia at 5:48 a.m. Id. At
6:09 a.m., Gracia was pronounced deceased at Orlando Regional Medical Center. Id. ¶ 40. An
autopsy report concluded that the manner of his death was homicide, due to his incarceration, and
that the cause of death was “septic shock complicating infected dog bite wounds” with HIV as a
contributory factor. Id. ¶ 41.
B. Procedural History
On September 18, 2017, the Plaintiffs filed the Amended Complaint (Doc. 29). Count I
alleged a § 1983 claim against Orange County, Count II alleged a § 1983 claim against Buck, Count
III alleged a § 1983 claim against Evans, Count IV alleged a § 1983 claim against Clairmont, Count
V alleged a § 1983 claim against Gonzalez, Count VI alleged a § 1983 claim against Harter, and
Count VII alleged a medical malpractice claim against Orange County.
Clairmont and Evans each filed motions to dismiss on October 2, 2017. Docs. 31, 32. That
same day, Orange County, Buck, Gonzalez, and Harter filed a collective motion to dismiss. Doc.
33. The Court granted Orange County’s motion but denied the others. Doc. 44. On January 18, 2018,
the Plaintiffs filed the Second Amended Complaint. Doc. 47. Orange County filed a Motion to
Dismiss Count I of the Second Amended Complaint on February 8, 2018. Doc. 54. The Court
granted Orange County’s motion and dismissed Count I of the Second Amended Complaint with
prejudice.

19

This was recorded by Clairmont in a Nursing Progress Note, completed at 8:02 a.m. on
August 10, 2015.

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Evans, Buck, Clairmont, Gonzalez, and Harter later filed motions for summary judgment.
(Docs. 82, 85, and 88). In their Consolidated Response, the Plaintiffs indicate that they do not oppose
summary judgment as to Defendants Gonzalez and Harter. 20 (Doc. 100). Accordingly, only
Defendants Buck and Clairmont remain at issue for purposes of summary judgment.
II.

Legal Standards
A. Summary Judgment
A party is entitled to summary judgment when the party can show that there is no genuine

issue as to any material fact and that the movant is entitled to judgment as a matter of law. Fed. R.
Civ. P. 56. Which facts are material depends on the substantive law applicable to the case. Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The moving party bears the burden of showing
that no genuine issue of material fact exists. Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th
Cir. 1991). A court “must draw all reasonable inferences in favor of the non-moving party, and it
may not make credibility determinations or weigh the evidence.” Hinson v. Clinch County, Ga. Bd.
Of Educ., 231 F.3d 821, 826-27 (11th Cir. 2000) (quoting Reeves v. Sanderson Plumbing Prods.,
Inc., 530 U.S. 133, 150-51 (2000)).
When a party moving for summary judgment points out an absence of evidence on a
dispositive issue for which the nonmoving party bears the burden of proof at trial, the nonmoving
party must “go beyond the pleadings and by [his] own affidavits, or by the depositions, answers to
interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue
for trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 324-25 (1986) (internal quotations and citation
omitted). Thereafter, summary judgment is mandated against the nonmoving party who fails to make

20

The Plaintiffs’ claims against Evans were voluntarily dismissed on February 19, 2019.
(Doc. 90). Evans’s Motion for Summary Judgment (Doc. 82) is therefore moot.

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a showing sufficient to establish a genuine issue of fact for trial. Id. at 322, 324-25. The party
opposing a motion for summary judgment must rely on more than conclusory statements or
allegations unsupported by facts. Evers v. Gen. Motors Corp., 770 F.2d 984, 986 (11th Cir. 1985)
(“conclusory allegations without specific supporting facts have no probative value”). The Court
must consider all inferences drawn from the underlying facts in the light most favorable to the party
opposing the motion and resolve all reasonable doubts against the moving party. Anderson, 477 U.S.
at 255.
B. Qualified Immunity and Section 1983
“Qualified immunity shields ‘government officials from liability for civil damages insofar
as their conduct does not violate clearly established statutory or constitutional rights of which a
reasonable person would have known.’” Taylor v. Hughes, No. 17-14772, 2019 WL 1461316, at *2
(11th Cir. Apr. 3, 2019) (internal quotation marks omitted). Relief under § 1983 requires the
“deprivation of an actual constitutional right.” McElligott v. Foley, 182 F.3d 1248, 1254 (11th Cir.
1999). It is well settled that the deliberate indifference to serious medical needs of prisoners
constitutes a violation of the Eighth Amendment. Id. To succeed on a claim in this context under §
1983, the Plaintiff must show (1) a serious medical need, (2) deliberate indifference to that need by
the Defendants, and (3) a causal connection between Defendant’s deliberate indifference and
Plaintiff’s injuries. See Hatten v. Prison Health Services, Inc., 2006 WL 4792785 (M. D. Fla. Sept.
13, 2006).
While § 1983 does not permit respondeat superior liability, a supervisor can be held liable
where a plaintiff shows that the supervisor “either directly participated in the unconstitutional
conduct or that a causal connection exists between the supervisor’s actions and the alleged
constitutional violation.” Keith v. DeKalb Cty., 749 F.3d 1034, 1047-48 (11th Cir. 2014). The

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Plaintiffs can show a causal connection by showing that “the supervisor’s policy or custom resulted
in deliberate indifference.” Franklin v. Curry, 738 F.3d 1246, 1249 (11th Cir. 2013) (internal
quotation marks omitted).
Because, in this particular case, the analyses for whether the Defendants are entitled to
qualified immunity and whether the Plaintiffs have failed to state a claim for relief under § 1983
both turn on whether the Plaintiffs have properly alleged the violation of a constitutional right, the
Court combines its discussion of the two issues.
III.

Analysis
A. Defendant Buck
As a threshold matter, deliberate indifference requires subjective knowledge. Buck argues

that he did not have subjective knowledge of Gracia’s problems. In support of this, he points to the
conclusions reached by the Plaintiffs’ expert, Dr. Thomas Fowlkes. 21 However, based on his initial
interaction with Gracia, Buck knew that he was at risk for infection (sepsis) and that “if no action
[was] taken, the detainee face[d] a ‘substantial risk of serious harm.’” Taylor v. Hughes, No. 1714772, 2019 WL 1461316, at *3 (11th Cir. Apr. 3, 2019) (quoting Farmer v. Brennan, 511 U.S.
825, 837 (1994)).

21

Fowlkes did state that he did not see evidence from which he could reach a conclusion
that Buck was deliberately indifferent. Doc. 88-2 at 4. However, deliberate indifference is a legal
conclusion – one that Fowlkes is not qualified to reach. See Doc. 95-1 at 24,61. Even in the portion
of the Fowlkes deposition attached to the instant motion, Fowlkes expressed discomfort with the
Defendants’ repeated requests for him to make a determination of whether the medical staff acted
with deliberate indifference, stating that it “is more a legal conclusion rather than a medical
opinion,” and that he “usually describe[s] it in terms of . . . the degree to which they breached the
standard of care.” Doc. 88-2 at 5-6. Fowlkes describes the collective action taken by the OCC
medical staff as “far below the acceptable standard of care for healthcare within a detention facility.”
Doc. 95-1 at 182.

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Buck’s Motion emphasizes the brevity of his interaction with Gracia, theorizing that,
because he never again saw Gracia after intake, he could not have acted in deliberate indifference
to his serious medical need. But his failure to follow up is itself evidence of indifference. Writing
off his role as direct medical provider to a “single, brief evaluation,” Buck attempts to recharacterize
the issue as one of supervisory liability. Doc. 88 at 8-9. That characterization, however, simply
illuminates Buck’s indifference: He viewed his role as that of a mere supervisor 22 of the nursing
staff rather than as the sole treating physician of Gracia. The Court will not disregard Buck’s
indifference as a medical provider simply because he was also a medical director.
The motion goes so far as to state that “[a]t no time after this interaction did Buck have a
direct treatment relationship with Mr. Gracia. Rather, his treatment was overseen and provided by
various other medical providers.” Id. at 8 (emphasis added). However, none of the “various other
medical providers” who were “overseeing” Gracia were his treating physician; Buck was. 23 Buck
acknowledged that the only reason he ever saw this patient – who was obviously unable to see any
other doctor due to his incarceration – was because a nurse had called in sick. Buck knew that the
infirmary had a burdensome nurse-to-patient ratio, 24 and he knew that the environment of a
corrections infirmary was demanding. 25 Nevertheless, Buck examined an HIV positive patient

22

At least, he acted as a supervisor to the extent that being on call 24/7 in order to potentially
advise a nurse to have a patient taken to the emergency room can be called supervising. See 88-3 at
41-42 (acknowledging that Buck had never returned to the jail to perform an examination after being
called by a nurse and instead had only instructed nurses to send patients to the ER on occasion).
23

All of the other providers were nurses of varying levels and not medical doctors.

24

See Doc. 85-1 at 101-102 (Clairmont describes chronic understaffing and unique
challenges of corrections infirmaries). When asked, Buck stated that there was no nurse-patient ratio
standard that was followed, or that if there was one, he did not remember. Doc. 88-3 at 42.
25

Buck “served at corrections from 2011-2015.” Doc. 88-3 at 45.

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with a severe dog-bite wound and deliberately declined to play any active role in his subsequent
treatment. Viewing the facts in the light most favorable to the Plaintiffs, that behavior is the very
essence of deliberate indifference.
Furthermore, there remain material questions of fact as to whether, as a supervisor, Buck’s
policies and customs resulted in deliberate indifference. In his deposition, Buck indicated that as
medical director, he (along with others, although it is not clear who else) reviewed “policy every
year on a month-to-month basis.” Doc. 99 at 9. Despite Buck’s claim that he was on call 24/7 (Id.
at 18-19), Clairmont testified that she was not taught that she could call a doctor and have them
come in, and she never saw a doctor examine an inmate during the night shifts, which were the shifts
that she worked. Doc. 85-1 at 58-59. Other evidence indicates that there was little to no distinction
made between medical doctors and nurses for purposes of treatment policy. For example, GallozaGonzalez refers to Evans as a “doctor,” and she reached out to Evans rather than Buck when Gracia
showed early signs of sepsis. Doc. 83-2 at 57-58. Buck testified that it was typical for a nurse
practitioner, rather than a medical doctor, to admit patients to the infirmary. Doc. 99 at 15.
Clairmont also testified that she would only have been able to handle half of the twenty-three
patients for whom she was responsible in the infirmary. Doc. 85-1 at 101. She explained that putting
only one registered nurse with the especially sick patients that would likely be in a corrections
department infirmary – citing examples of a beaten-up patient who had lost an eye, and a patient
“with wired jaws that you may have to snip” – “just doesn’t make any sense.” Id. at 102. She further
noted that in an emergency department, a ratio of even one registered nurse to six patients would be
considered “ridiculous.” Id. Based on policy, which Buck regularly reviewed and approved, one
registered nurse could have been responsible for as many as forty patients. Id. at 104. Clairmont
acknowledged that she never expressed concerns to Buck about the understaffing, but she also stated

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that she did not have an opportunity to do so. Id. at 108. She further noted that no one from Orange
County had ever checked with her to see if there was sufficient staff to treat the patients in the
infirmary. Id. at 111. While understaffing alone may not be sufficient to show a custom or policy
resulting in deliberate indifference, a jury could conclude that persistent, extreme understaffing,
when coupled with the failure to involve doctors, would be. The Plaintiffs have met their burden of
showing genuine issues of material fact as to deliberate indifference by Defendant Buck both as a
medical provider and director.
B. Defendant Clairmont
The Plaintiffs assert that Clairmont failed to treat Gracia because she believed without
justification that he was faking his condition, and there is credible evidence to support this assertion.
Clairmont’s own Progress Note described Gracia as “refus[ing] all assistance and refus[ing] all care
from nursing staff.” Doc. 85-7. As stated in Clairmont’s Motion, when she observed Gracia, who
had a wound dressing she described as “heavily soiled with dried bloody drainage,” “twisting
himself and moaning loudly,” crying “I can’t do it,” and sliding to the floor when offered his nightly
medication, she wrote that he “refused all assistance.” See Doc. 102 at 5. Refusing assistance would
only be a reasonable description of what Gracia did if she believed he was malingering. Ignoring an
apparently serious medical condition because of an unfounded belief that the patient is malingering
can certainly constitute deliberate indifference. See, e.g., Walker v. Benjamin, 293 F.3d 1030, 1040
(7th Cir. 2002) (in § 1983 case involving prisoner, reversing entry of summary judgment on
qualified immunity grounds and stating, “[t]he fact that Nurse Dunbar and Dr. Benjamin may have
based their refusal to treat Walker’s pain on a good-faith belief that he was malingering, that he was
not in pain but merely trying to get high with the narcotic painkiller, is an issue for the jury.”).

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Assuming Clairmont did believe Gracia’s suffering was real, as she claims in her motion,
the Plaintiffs’ case is even stronger. Clairmont was an experienced nurse with specific knowledge
of Gracia’s injury and HIV positive status. There is evidence that indicates Gracia’s condition
worsened steadily, giving numerous opportunities for Clairmont to act. Dr. Fowlkes explained that
“[Gracia’s] tissue had started to die, and that doesn’t happen in a matter of minutes or even a couple
of hours; that means it’s been going on for a while.” Doc. 95-1 at 56. According to Fowlkes, the
kidney failure and adrenal hemorrhage suffered by Gracia also would have taken multiple hours to
occur. Id. at 57-58. Not only did Gracia’s worsening condition allow time for a proper response; it
also produced some readily visible evidence. “[L]ots of coffee ground materials” were found on
Gracia’s towels and sheets, which Fowlkes said indicated that he was vomiting blood due to the
disintegration of his esophagus. Id. at 57. After Gracia was transferred to the cell for observation,
Clairmont never physically entered his cell to look at him, although she did testify that she looked
at him on the camera monitor. 26 Doc. 85-1 at 88. She never saw him moving around the cell,
although that is apparently why she was watching the monitor: to see if he was moving. Id. at 8889.
If Clairmont believed what she put in her Progress Note, she knew that Gracia was suffering
with a serious medical condition and her refusal to provide any intervention would be classic
indifference. Conversely, if she decided to ignore his complaints as malingering, that too could
amount to deliberate indifference. Either way, the Plaintiffs have met their burden of showing that
a reasonable jury could render a verdict against Clairmont under Section 1983 for deliberate
indifference to a serious medical need. Clairmont is not entitled to summary judgment.

26

Defendant Clairmont also testified that the monitors for Gracia’s cell were not located
inside the nurses’ station, although they could be seen from the window. Doc. 85-1 at 98.

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IV.

Conclusion
For the foregoing reasons, the Defendants’ Motion for Summary Judgment (Doc. 88) is

GRANTED as to Defendants Harter and Gonzalez and DENIED as to Defendant Buck. Defendant
Clairmont’s Motion for Summary Judgment (Doc. 85) is DENIED. Defendant Evans’s Motion for
Summary Judgment (Doc. 82) is DENIED as MOOT.
DONE and ORDERED in Chambers, Orlando, Florida on April 24, 2019.

Copies furnished to:
Counsel of Record
Unrepresented Party

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