Opinion
Case No. 3:14-cv-1311-J-39PDB
06-16-2016
DENNIS ROSS, Plaintiff, v. CORIZON, LLC, etc., Defendants.
ORDER
I. Status
On October 27, 2014, Plaintiff Dennis Ross filed a civil rights Complaint (Doc. 1) pursuant to 42 U.S.C. § 1983. He is proceeding on an Amended Complaint (Amended Complaint) (Doc. 10). Defendants Corizon, LLC, Rudolphe Lafontant, MD, and Linda Melendez-Torres, MD's Motion for Summary Judgment (Motion) (Doc. 52) is pending before the Court. Dr. Melendez' Declaration with Medical Records (Declaration) (Doc. S-62) is filed in camera. Plaintiff filed an Opposition to Motion for Summary Judgment (Response) (Doc. 57). See Summary Judgment Notice (Doc. 54) and Order (Doc. 5). He also filed an Index of Incorporated Medical Care Grievances (Doc. 58), an Appendix in Support of Opposition to Summary Judgment (Doc. 59), and Plaintiff's Declaration as to Opposition to Motion for Summary Judgment When Facts are Unavailable Rule 56(d) (Plaintiff's Declaration) (Doc. 60).
The Court references the page numbers assigned by the electronic filing system. The Court hereinafter refers to Plaintiff's Appendix (Doc. 21) as "P. App."
The Court refers to Dr. Melendez-Torres as Dr. Melendez. See Motion at 1.
The Court hereinafter refers to Plaintiff's Appendices that are attached to the Response (Doc. 57) as "App." The Court notes that the Appendices were not attached to the Appendix in Support of Opposition to Summary Judgment, and although Plaintiff mentions articles from the Palm Beach Post in his Appendix (Doc. 59), referred to as "Exh. #9," it is not among the Appendices attached to the Response. Also, Plaintiff's request for an extension of time to complete discovery, contained in Plaintiff's Declaration, is due to be denied. See Docs. 61, 48, and 40.
Plaintiff raises two counts: (1) Count One - Defendant Corizon: deliberate indifference to serious medical and mental health needs, an Eighth Amendment claim contending that Corizon's policy and custom to save money, as acted out through its agents Dr. LaFontant and Dr. Melendez, caused Plaintiff substantial pain and suffering and irrevocable damage; and (2) Count Two - Dr. Lafontant and Dr. Melendez: deliberate indifference to Plaintiff's pain and suffering, an Eighth Amendment claim contending that these Defendants, working on behalf of Corizon, advanced the policy and custom of saving money, which caused Plaintiff pain and suffering.
As relief, Plaintiff seeks an injunction requiring the Defendants to take all such action necessary to treat Plaintiff for his serious medical needs and to provide suitable pain medication for his ailments. Additionally, Plaintiff seeks compensatory and punitive damages.
The alleged facts supporting the Amended Complaint are set forth at pages 6-11. Plaintiff states that he is a sixty-year-old, white male, serving a prison sentence of 153 and 1/2 years. Id. at 6. He states that he has been in the custody of the Florida Department of Corrections (FDOC) since 1992. Id. Plaintiff claims to have a documented medical history of rheumatoid arthritis exhibited by swollen joints causing him great pain. Id. He states he has other infirmities, ranging from moderate to severe, including, osteoarthritis, bursitis, tendonitis, fibromyalgia posterior, a dislocated shoulder, ruptured discs in his back, neuropathy, sinus, seizures, bone spurs in his feet, asthma, severe migraines, a hernia, herniated discs, ulcers, coughing up blood, spots on his lungs, cancer, a kidney problem, rashes, gout, pronounced hemorrhoids, and bipolar disorder with anxiousness and hallucinations. Id.
Plaintiff alleges that over the years, the most effective prescriptions have been Neurontin, a drug to used to treat neuropathic pain, to treat his nerve pain, and Tramadol, an opioid analgesic, used to treat pain. Id. at 6 n.1. Plaintiff states that these two medications suffice to treat his diagnosed and undefined disorders and his host of ailments. Id. at 6. He notes that he has been prescribed these medications for approximately fourteen years, and the Neurontin prescription was increased and used as a pain management medication, along with cortisone injections. Id.
Plaintiff alleges that Corizon contracted with FDOC to provide more cost efficient and cost effective health care, but Corizon soon discovered that there was a large number of offenders over fifty suffering from severe health problems. Id. at 7. In response to rising health care costs, Plaintiff states that Corizon engaged in a policy and custom, through theirs physicians and employees, to reduce expenditures, causing Plaintiff extreme physical pain and emotional trauma. Id. More specifically, Plaintiff describes the cost cutting measure as the slashing of his prescriptions for Neurontin and Tramadol. Id.
More specifically, Plaintiff alleges the following. On December 26, 2013, Dr. Lafontant wrote Plaintiff a prescription for 900 mg. of Neurontin, an anti-convulsant, and 100 mg. of Tramadol, a pain medication, to be taken three times a day. Id. On April 10, 2014. Dr. Vivas examined Plaintiff, told Plaintiff that he wanted to write a prescription for Neurontin and Tramadol, but advised him that there was a notice in Plaintiff's medical file stating that only Dr. Lafontant is allowed to prescribe Neurontin and Tramadol for Plaintiff. Id. On April 17, 2014, Dr. Vivas referred Plaintiff to Dr. Lafontant, but Dr. Lafontant would not see Plaintiff. Id. at 8.
On May 23, 2014, Corizon's agent, Dr. Lafontant, stopped all "pain medications" used to treat Plaintiff's ailments. Id. Dr. Lafontant and Dr. Melendez substituted in-stock medications, Elavil and Pain-Off, to save Corizon money, without consideration as to the suitability of the medication, as both contain aspirin, to which Plaintiff is highly allergic. Id.
Plaintiff grieved the matter, attempting to have the medication of Neurontin and Tramadol reinstated, or suitable substitutes provided. Id. at 9. Defendants denied these grievances. Id. In addition, Corizon refused to allow follow-up evaluations to specialists, including an orthopedist, neurologist, pulmonary specialist, and the Jacksonville Spine Center. Id. Corizon disapproved and denied all previously approved consultations and surgeries as well. Id. at 10. Plaintiff grieved these matters, but Defendants denied his grievances. Id. Plaintiff states that he received no care, pain medications, and treatment for a "his host of ailments by specialists." Id. Plaintiff alleges he continued to deteriorate because he was not provided alternative treatment. Id.
On June 13, 2014, Warden Andrews met with Plaintiff, Dr. Aviles and other administrators in an attempt to resolve Plaintiff's health issues. Id. at 11. Plaintiff states that he was advised that his prescriptions for Neurontin and Tramadol would be reinstated, as well as his treatment regimen. Id. Instead, Corizon, through Dr. Lafontant and Dr. Melendez, denied Plaintiff pain medications and previously approved treatment by specialists, the Jacksonville Spine Center, an orthopedist, and a neurologist. Id. Plaintiff states that the Defendants knew that he was not receiving medication for pain due to his allergies to in-stock medication prescribed by Dr. Lafontant. Id. Plaintiff complains that he had no pain management and treatment to address his host of ailments. Id. Plaintiff states that as a result of severe debilitating pain, he is unable to attend or participate in service programs and activities offered by the FDOC, including law library, chapel, and AA. Id. He also states that he is often unable to participate in daily activities like showering. Id.
Although Plaintiff refers to June 13, 2013, apparently he intended to refer to June 13, 2014.
II. Summary Judgment Standard
"Summary judgment is appropriate only if 'the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.'" Moton v. Cowart, 631 F.3d 1337, 1341 (11th Cir. 2011) (quoting Fed. R. Civ. P. 56(a)). "If the moving party meets this burden, 'the nonmoving party must present evidence beyond the pleadings showing that a reasonable jury could find in its favor.'" Ekokotu v. Federal Exp. Corp., 408 F. App'x 331, 333 (11th Cir.) (per curiam) (quoting Fickling v. United States, 507 F.3d 1302, 1304 (11th Cir. 2007)), cert. denied, 132 S.Ct. 420 (2011).
III. Defendants' Motion
Dr. Lafontant and Dr. Melendez state that they are former medical providers at Union Correctional Institution (UCI). Motion at 1. Dr. Melendez reviewed Plaintiff's medical records, especially with regard to Plaintiff's complaints of neuropathic pain. Id. at 3. She states that there are numerous referrals to specialists in the records. Id. She also notes that although Plaintiff repeatedly requested specific drugs such as Neurontin and Tramadal, the FDOC physicians concluded that he should be tapered off of these drugs "because he did not exhibit objective signs or symptoms of pain sufficient to warrant these medications." Id. The doctors prescribed alternative pain relief medications, and although Plaintiff complained of allergies to "virtually every other pain medication other than the ones he wants, he does not suffer any documented allergies [ ]." Id.
Defendants state these two particular drugs are drugs of abuse in prisons. Motion at 2 n.1.
Dr. Melendez reports that Plaintiff is a documented "drug-seeker and drug-hoarder." Id. at 4. She notes that he never showed signs of an allergic reaction to the alternative medication offered. Id. Dr. Melendez notes that Plaintiff never had a documented seizure while in prison. Id.
In their Motion, Defendants assert that Plaintiff must demonstrate that he suffered an objectively serious health deprivation and that the Defendants were deliberately indifferent to his serious medical needs in order to establish an Eighth Amendment constitutional violation. Id. at 7. They urge the Court to conclude that Plaintiff is merely complaining that medical providers are not prescribing the drugs of his choice, a claim short of constitutional dimension. Id. at 9. In addition, Defendants assert that the medical providers have not found objective signs and symptoms of pain that would substantiate Plaintiff's requests for Neurontin and Tramadol. Id. In support of this contention, they reference the fact that Plaintiff has never exhibited elevated vital signs, spinal swelling or discoloration, gait disturbance, muscle atrophy, difficulty ambulating, weakness in his extremities, focal neurological deficits or unresponsiveness to pin picks. Id. at 9-10. Finally, they reference Plaintiff's recorded history of abusing and hoarding drugs in prison, supporting the physicians' decision to wean him off of narcotic medications and provide him with alternative medication. Id. at 10.
Defendants Dr. Melendez, Dr. Lafontant, and Corizon assert that Plaintiff has been provided with extensive care. Id. Relying on the medical record, Dr. Melendez, in her Declaration, "completely disclaims any Corizon policy to avoid providing medically-necessary medications based on cost [ ]." To create the required causal connection between Corizon's actions or inactions and Plaintiff's claim of an Eighth Amendment violation, Plaintiff must demonstrate that Corizon's custom or policy resulted in deliberate indifference to constitutional rights. In his Amended Complaint, Plaintiff is claiming a custom or policy of refusing medical treatment based on cost saving measures which resulted in deliberate indifference to his serious medical needs. Plaintiff contends that Defendants Dr. Lafontant and Dr. Melendez, in advancing Corizon's custom and policy of saving money, have caused him needless pain and suffering.
Defendants rely on Dr. Melendez's Declaration and the records attached thereto to support their position. Dr. Melendez first states that she is a medical doctor licensed by the State of Florida, and she was formerly employed by Corizon as a treating physician at UCI. Declaration at 1. She notes that Plaintiff alleges that she failed to adequately treat his complaints of neuropathic pain, she denied him Neurontin and other pain medications, and she placed him on medications for pain to which he was allergic. Id. Dr. Melendez attests that she assessed Plaintiff's medical conditions on multiple occasions but found no clinical need for him to be prescribed Neurontin. Id. at 2. In support of her conclusion, she attests that she found "no objective signs or symptoms of pain, such as spinal swelling or discoloration, gait disturbance, muscle atrophy or difficulties of activities of daily living." Id. Also of import, she attests that Plaintiff "had full strength and extension in his extremities, no gross focal deficits (focal neurologic deficits are problems with nerve, spinal cord, or brain function), and his extremities were responsive to pin pricks." Id. She further attests that Plaintiff did not have any documented seizures during her period of care. Id.
Dr. Melendez also attests that Neurontin is a drug of abuse in prisons that is highly diverted. Id. Based on documentation in Plaintiff's medical records, Plaintiff had been "cheeking" and hoarding medications and repeatedly asking for Neurontin. Id. at 1-2. Dr. Melendez also noted that Plaintiff repeatedly requested medications he desired, while claiming to be allergic to other medications; however, the medical records do not document any observation of actual signs and symptoms of these self-reported allergic reactions such as tongue swelling. Id. at 2. To counter Plaintiff's complaint that he was deprived of pain medication, she attests that she prescribed Sulindac for neuropathic pain. Id. She also notes that Plaintiff had prescriptions for Tegretol and Dilantin to treat seizures and nerve pain, and Pamelor to treat nerve pain. Id.
To further address Plaintiff's complaints, Dr. Melendez explains that Neurontin is on Corizon's non-formulary drug list, as such, in order to obtain the drug for a patient, the doctor had to submit a Drug Exception Request (DER) showing the clinical indication for prescribing the non-formulary drug. Id. at 3. Dr. Melendez attests that she did not submit a DER for Neurontin for Plaintiff because she did not find a medical need to prescribe the drug. Id. She states "there was no policy or practice of Corizon not to prescribe medically necessary medications to inmates while I was employed at UCI." Id.
Plaintiff aggressively demanded certain drugs, especially Neurontin, and his disciplinary reports included, possession of narcotics, unauthorized use of drugs, refusing substance abuse tests, lying to staff, and others. Id. at 4. Dr. Melendez reports that Plaintiff was seen in a neurology clinic for a reported seizure disorder every three to six months, however no seizures were recorded. Id. Plaintiff was regularly seen in a respiratory clinic for bronchial asthma, and his condition was recorded as good since December 2012. Id. Plaintiff was also seen regularly in a clinic for a benign enlarged prostate. Id. His condition has been controlled through medication. Id. at 5. Plaintiff is also seen regularly for hypertension since December 2014. Again, this condition is controlled through medication. Id.
Dr. Melendez references an April 2, 2013 record that a neurologist found Plaintiff's polyarthralgia (multiple joint pain) is not controlled with Neurontin, Ultram or Indocid. Id. at 5. The neurologist diagnosed neuropathy and polyarthralgia and recommended Pamelor for nerve pain. At that time, the dosage of Neurontin was increased. Id. The neurologist noted that Plaintiff "exhibited drug seeking behavior." Id. Medical staff found that Plaintiff repeatedly complained that he was not allowed to keep all of his medications on his person. Id.
Dr. Melendez, in reviewing the medical records, noted that in September 2013, Plaintiff was found to be cheeking medication, hoarding dozens of medications in his cell. Id. at 6. The record shows that on December 6, 2013, Plaintiff was seen by Dr. Vincenty, who noted that Plaintiff's last seizure had been four months prior and Plaintiff was on Neurontin. Id. In addition, Plaintiff received a steroid injection for his spine. Id. On December 10, 2013, Plaintiff was seen by the DOH for an HIV follow-up. Id. On December 14, 2013, Dr. Melendez discontinued Pamelor due to a possible allergy. Id.
Dr. Melendez reports that the record shows that on December 20, 2013, Dr. Lafontant prescribed Pain Off and Elavil. His DER for Elavil, an anti-depressant that can be used to treat nerve pain, was denied and a possible allergy to Pain Off noted. Id. On January 7, 2014, Dr. Lafontant discontinued Tramadol. Id. Also of note, on January 9, 2014, Dr. Aviles prescribed Neurontin, but also ordered the tapering of the drug. Id. He recorded that Plaintiff claimed to be allergic to Pain Off. Id. On January 23, 2014, the nurse noted that Elavil was not on Plaintiff's allergy list. Id. Also, the nurse referred the chart for review of alternate pain medication. Id.
With respect to allergies, on January 25, 2014, Dr. Melendez states that Plaintiff was listed as having allergies to Pamelor (for nerve pain), Tegretol (prescribed for neuralgia), ASA (analgesic pain reliever), and Motrin (pain reliever). Id. at 6-7. On February 14, 2014, Plaintiff's chart was sent to Dr. Lafontant for review. Id. at 7. On February 25, 2014, Plaintiff complained to the nurse of pain in his feet, and requested Tramadol. Id. Dr. Lafontant discontinued Tramadol. Id. Dr. Lafontant ordered Neurontin on March 6, 2014. Id. On March 7, 2014, Plaintiff complained to a nurse of pain in his feet from neuropathy. Id. His chart was sent to a doctor for advisement on pain medication other than Tramadol and Elavil. Id. Dr. Vivas saw Plaintiff on March 24, 2014 for dizziness and nerve pain, and the doctor ordered Tramadol and Neurontin. Id. Two days later, on March 26, 2014, Dr. Lafontant discontinued Tramadol and approved a lower dose of Neurontin for thirty days. Id.
Dr. Lafontant, on April 1, 2014, informed Plaintiff of an alternate treatment plan for other medications, but Plaintiff refused any other medications. Id. On April 15, 2014, Dr. Lafontant directed Plaintiff to continue in chronic care. Id. at 8. Dr. Melendez, on April 21, 2014 and April 23, 2014, approved Sulindac for pain. Id. On April 25, 2014, she ordered tapering of Neurontin, with Neurontin 200 mg for fourteen days, then 100 mg for fourteen days, then directions to discontinue Neurontin. Id. Dr. Melendez saw Plaintiff again on April 30, 2014, when he complained that he was allergic to Elavil and his tongue swelled. Id. She noted elevated blood pressure and ordered that he be evaluated and monitored for cardiac monitoring and treatment. Id. He was on Sulindac at that time for pain. Id.
Dr. Melendez performed a chart review on May 2, 2014, assessed Plaintiff with hypertension, directed daily blood pressure checks, an EKG, and ordered the start of Enalapril to treat the high blood pressure. Id. Plaintiff saw Dr. Lafontant in the clinic for medication renewals for pain on May 5, 2014, and Dr. Lafontant found Plaintiff in no apparent distress, continued the previously prescribed medications, except for one ointment. Id.
Plaintiff continued to be seen in May, 2014 for a variety of ailments, and Dr. Melendez noted on May 16, 2014, Plaintiff's continued requests for stronger pain medication. Id. at 9. When Plaintiff complained to a nurse of pain in his feet on May 30, 2014, the nurse recorded no edema, bilateral palpable pulses in his extremities, and clean, dry, and intact skin, with no apparent distress. Id. Dr. Lafontant, on June 2, 2014, noted that Plaintiff was found cheeking/hoarding Oxybutynin (for urinary incontinence), Topamax (which can be used for neuropathy), and Bentyl (for abdominal discomfort). Id.
On June 4, 204, Plaintiff told Dr. Melendez that a technician had seen a spot on Plaintiff's lung, and Plaintiff believed he had cancer. Dr. Melendez reviewed the MRI results, noted Plaintiff had not been diagnosed with cancer, and found no record of a spot matching his concern, but that Plaintiff did have a 1.6 cm lesion of the kidney that was most likely a renal cyst. Id. Plaintiff continued to be seen in June 2014, and Dr. Melendez did not discontinue any medications in June. Id. At that time, she found the "pulse in his extremities were palpable, he had no focal neurological deficit, and his presentation was otherwise unremarkable." Id. at 9-10. Along with ordering various tests for a variety of ailments, Dr. Melendez ordered increased Sulindac for pain. Id. at 10. She also provided Plaintiff with information about his cervical and lumbar MRI results that showed osteoarthritis, no lumbar disc herniation or cervical disc herniation. Id. The MRI showed no masses or lesions that could be malignant. Id.
Dr. Melendez, on June 18, 2014, increased Plaintiff's prescription of Sulindac for pain. Id. On July 8, 2014, when Plaintiff was seen by the DOH for an HIV follow-up, he related that his feet hurt due to neuropathy and Neurontin had been discontinued on May 23, 2014. Id. Dr. Lamadrid, a general practitioner, recommended restarting Neurontin; however, Dr. Melendez noted that Neurontin had not been approved for Plaintiff and she did not find it to be clinically indicated based on his objective signs and symptoms. Id. When Dr. Melendez saw Plaintiff on July 17, 2014, she ordered various labs, work-ups, clinic visits, and medications, and she discontinued an HIV medication with negative side effects. Id. On August 11, 2014, she prescribed Sulindac for pain. Id. at 11. On August 27, 2014, the nurse noted that Plaintiff was on Sulindac for pain and treatment of neuropathy and he was taking various other medications for a variety of ailments. Id.
Plaintiff requested Tramadol and Neurontin from a DOH nurse on September 4, 2014. Id. He was advised that they had not been approved, but the nurse recommended that the FDOC providers consider prescribing Neurontin. Id. On December 4, 2014, Plaintiff against requested Neurontin from the DOH provider. Id. at 12. He was told to discuss this issue with FDOC providers. Id.
On January 8, 2015, at sick call, Plaintiff complained about his neuropathy and was informed that Sulindac had been discontinued due to high creatine levels. Id. Plaintiff again requested Neurontin, and the nurse referred him to a medical provider. Id. On January 8, 2015, Plaintiff asked a nurse for Neurontin, complaining of pain and numbness in his feet for the past fourteen to fifteen years. Id. She noted no symptoms requiring immediate clinician notification (no swelling, no discoloration or gait disturbance, no severe pain, and no back pain radiating downward). Id. Plaintiff was scheduled for a provider visit on January 20, 2015. Id.
Plaintiff complained at sick call on January 15, 2015 of burning in his feet and legs and not seeing a doctor after seeing the nurse. Id. Plaintiff was told that Dr. Melendez co-signed the sick call visit. Id. Plaintiff saw a provider on January 20, 2015, and requested Neurontin. Id. at 13. The provider noted a steady gait with unimpaired ambulation and recorded that Plaintiff refused multiple medications due to allergies and desiring Neurontin. Id. The provider noted a plan to confirm neuropathy and to consider medication options upon review. Id. Plaintiff complained to a nurse of his feet burning on February 4, 2015, and the nurse sent his chart to the provider. Id. Plaintiff was seen in the clinic on February 12, 2015, for multiple complaints including neuropathy, shoulder pain, and back pain. Id. He again stated he wanted Neurontin. Id. Upon examination, the doctor noted Plaintiff had no signs of muscle atrophy, he had full strength and extension in his extremities, he was responsive to pin pricks from the bottom of his feet up to the calves, he had no gross focal deficits, he had mild positive sensation on the bottom of his feet, his feet were cold and red, and he had no sign of poor circulation (zero cyanosis). Id. This doctor suggested Cymbalta for neuropathy, as it is the only FDA approved drug for neuropathy. Id. The doctor said he would discuss the matter with psychiatry. Id.
In February and March, Plaintiff requested renewal of medications and requested Neurontin. Id. at 13-14. Plaintiff was seen by a doctor in the clinic on March 12, 2015, and the doctor recorded Plaintiff's conditions as neuropathy, hemorrhoids, and HIV. Id. at 14. The doctor decided to submit a request for a neurology appointment and ordered hemorrhoid cream. Id. The doctor noted that Plaintiff claimed allergies to Tegretol, Dilantin, and Pamelor. Id.
Thereafter, on March 16, 2015, Plaintiff complained to a nurse of pain in the neck, dizziness, and swelling of his feet. Id. He said the swelling came and went and he had neuropathy. Id. The nurse found normal skin tone, no swelling, slight pitting, and zero pain with palpation. Id. Thereafter, Plaintiff was seen in neurology on March 18, 2015. Id. At that appointment, he was given a provisional diagnosis of neuropathy and paresthesia of both legs. Id. Dr. Whalen ordered an alternative treatment plan recognizing that there are studies that can be obtained to determine the extent of any neuropathies. Id.
Dr. Melendez left her position as a physician at UCI on March 20, 2015. Id. In April, Plaintiff continued to complain about nerve pain, requested Neurontin, and requested a referral to a neurologist. Id. at 15. Dr. Quinones saw Plaintiff for neuropathy on April 15, 2015. Dr. Quoinones determined that a new EMG (electromyography) was needed to determine the extent of the neuropathy. Id. Plaintiff agreed to obtaining the new EMG. Id.
On May 8, 2015, Plaintiff complained that he had been denied a consult with neurology, and Dr. Quinones told him they were waiting for an EMG nerve conduction velocity study to assess Plaintiff's nerve conduction before deciding whether Neurontin could be prescribed. Id. On May 14, 2015, the DOH nurse noted the recommendation by general practitioner Dr. Lamadrid for Neurontin. Id. On May 20, 2015, Plaintiff saw a nurse for neck and back pain, she assessed Plaintiff with a normal gait, no swelling, and no bruising or discoloration. Id.
In July, Plaintiff complained of neck pain, but the nurses found a normal gait, no swelling, and no discoloration or bruising. Id. at 18. The nurse instructed Plaintiff to take Tylenol, perform other actions to ease his symptoms, and to use an analgesic balm. Id. The nerve conduction velocity test was scheduled to take place on August 6, 2015. Id.
Plaintiff filed his Amended Complaint on May 28, 2015.
IV. Injunctive Relief
Plaintiff seeks an injunction to obtain treatment for his alleged serious medical needs and to provide suitable pain medication for his ailments. Defendants assert that Plaintiff cannot satisfy the elements required for permanent injunctive relief. They not only assert that Plaintiff received appropriate care, they urge this Court to find that he did not suffer an irreparable injury. Motion at 12. Furthermore, they contend no equitable remedy is warranted, particularly when balancing the hardships, which would require physicians to prescribe non-medically indicated medication. Id. Finally, they contend the public interest is not served by forcing physicians to act outside their professional medical judgment. Id.
V. Plaintiff's Response
Plaintiff, in his Response, states:
Corizon LLC without justification cancelled Plaintiff's pain medications and refused to issue DER (Drug Exception Request) as recommended by specialist Neurologist, MD Gama and MD Vincenty, Jacksonville Spine Center, as well as DOH medical doctors and Florida DOC and Corizon LLC, psychiatrists. Secondly, that Corizon LLC., by and through medical Defendants, cancelled and refused to schedule consultations for Ross in defiance of the 8th Amendment; to save money.Response at 1 (footnote omitted).
Plaintiff, in his statement of facts not in dispute, claims there are three medications that suffice to treat his host of ailments, taking into consideration his multiple allergies: Neurontin, Tramadol, and Indomethacin (an anti-inflammatory drug). Id. at 2. The Court notes that in the Amended Complaint, Neurontin and Tramadol are described as the drugs that suffice to treat Plaintiff's ailments, and Indomethacin is not mentioned. Plaintiff explains that he received these medications for approximately fourteen years, and doctors prescribed Neurontin, along with cortisone injections, as suitable pain management medication. Id. at 3. Plaintiff complains that since Corizon began management of the medical care at UCI, he has received only one consultation, arranged prior to Corizon's "take-over of UCI[.]" Id.
Plaintiff asserts that there is a necessity for trial, claiming material facts are in dispute: (1) no medical justification exists to deprive him of pain medication; (2) no medical exception can exempt Corizon from providing him necessary medical treatment by consultants; (3) Corizon has a practice of cost cutting by slashing medications and consultations, despite medical protocol; and (4) Plaintiff has suffered needless pain and anguish due to these deprivations. Response at 3.
Plaintiff's references Defendants' medical exhibits as support for his claims. Id. Plaintiff states these exhibits show that essential medical services and medications have been slashed, resulting in indifference to his serious medical needs. Id. at 4.
Plaintiff challenges the Defendants' assessment that Neurontin is medically unnecessary for Plaintiff's ailments. Id. He contends that Dr. Vincenty, on October 4, 2013, diagnosed "cervical spondylosis, degenerative cervical, cervic disc disease, cervicalgia," and once the Defendants decided to stop prescribing Neurontin and Tramadol, Plaintiff received no alternative pain medication. Id. at 4-5. In conclusion, Plaintiff states that the Defendants' assertion that Plaintiff does not meet the medical profile for these prescriptions is false. Id. at 5.
Plaintiff counters Defendants' claim that doctors ordered numerous specialist referrals by asserting that the neurology consultation with the Jacksonville Spine Center was arranged pre-Corizon, and no follow-up appointments occurred. Id. at 15. He adds that Defendants did not approve Plaintiff's request for a consultation with a neurologist, back and neck surgery, and medications. Id. Plaintiff counters the claim that he does not have numerous allergies by asserting that he is allergic to Elavil and Pain Off. Id. He also states that it is a matter of record that he is allergic to Tegretol, Pamelor, Dilantin, ASA, Motrin, Aspirin, Phenobarbital, and Elavil. Id. at 16. Plaintiff challenges Defendants contention that he is a drug addict and hoarder as a "useless contention." Id. Plaintiff notes that after he received the disciplinary report for hoarding medication, doctors still prescribed his medication. Id. He claims that on May 23, 2014, Corizon decided to stop prescribing Neurontin for Florida inmates, and his prescription was not renewed. Id.
Plaintiff submits a number of affidavits of inmates; however, upon review, they simply do not concern the allegations of deliberate indifference to Plaintiff's serious medical needs with regard to his pain medication and the treatment for his ailments.
With regard to his claim that Corizon has a policy, practice and custom to deny consultations by experts as well as DER required medications, Plaintiff states this is evidenced by serious medical needs being treated with Tylenol, Aspirin, and Ibuprofen. Id. at 18.
VI. The Eighth Amendment
The requirements to establish an Eighth Amendment claim with respect to medical care are:
The Eighth Amendment's prohibition against "cruel and unusual punishments" protects a prisoner from "deliberate indifference to serious medical needs." Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). To state a claim of unconstitutionally inadequate medical treatment, a prisoner must establish "an objectively serious [medical] need, an objectively insufficient response to that need, subjective awareness of facts signaling the need, and an actual inference of required action from those facts." Taylor v. Adams, 221 F.3d 1254, 1258 (11th Cir. 2000).Kuhne v. Fla. Dep't of Corr., 745 F.3d 1091, 1094 (11th Cir. 2014).
"A serious medical need is 'one that has been diagnosed by a physician as mandating treatment or one that is so obvious that even a lay person would easily recognize the necessity for a doctor's attention.' In the alternative, a serious medical need is determined by whether a delay in treating the need worsens the condition." Mann v. Taser Int'l, Inc., 588 F.3d 1291, 1307 (11th Cir. 2009) (quoting Hill v. Dekalb Reg'l Youth Det. Ctr., 40 F.3d 1176, 1187 (11th Cir. 1994)). Apparently, the Defendants do not dispute that Plaintiff has serious medical needs. Instead, they claim that he is receiving treatment and medication and cannot show deliberate indifference.
To satisfy the subjective component, a plaintiff must prove the following:
"(1) subjective knowledge of a risk of serious harm; (2) disregard of that risk; (3) by conduct that is more than [gross] negligence." Bozeman v. Orum, 422 F.3d 1265, 1272 (11th Cir. 2005) (alteration in original) (internal quotation marks omitted). Although we have occasionally stated, in dicta, that a claim of deliberate indifference requires proof of "more than mere negligence," McElligott v. Foley, 182 F.3d 1248, 1255 (11th Cir. 1999), our earlier holding in Cottrell, 85 F.3d at 1490[], made clear that, after Farmer v. Brennan, 511 U.S. 825, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994), a claim of deliberate indifference requires proof of more than gross negligence.Townsend v. Jefferson County, 601 F.3d 1152, 1158 (11th Cir. 2010).
Cottrell v. Caldwell, 85 F.3d 1480 (11th Cir. 1996).
A plaintiff must demonstrate that a defendant's responses to his medical needs were poor enough to constitute an unnecessary and wanton infliction of pain, and not merely accidental inadequacy, negligence in treatment, or even medical malpractice actionable under state law. Taylor v. Adams, 221 F.3d 1254, 1258 (11th Cir. 2000) (citing Estelle v. Gamble, 429 U.S. 97, 105-106 (1976)), cert. denied, 531 U.S. 1077 (2001). Again, Plaintiff complains that he has not been treated for his serious medical needs and he has not received pain medication. Of course, "failing to treat an [sic] prisoner's pain can support a claim of deliberate indifference." O'Brien v. Seay, No. 5:04cv228-SPM/EMT, 2007 WL 788457, at *3 (N.D. Fla. Mar. 3, 2007) (citing McElligot v. Foley, 182 F.3d 1248, 1257 (11th Cir. 1999)).
As such, Plaintiff must have had an objectively serious need, an objectively insufficient response to that need, subjective awareness of facts signaling the need and an actual inference of required action from the facts presented. Taylor v. Adams, 221 F.3d at 1258.
With regard to the question of a Corizon policy,
"[a] policy is a decision that is officially adopted by the municipality, or created by an official of such rank that he or she could be said to be acting on behalf of the municipality." Sewell v. Town of Lake Hamilton, 117 F.3d 488, 489 (11th Cir. 1997). A custom is an unwritten practice that is applied consistently enough to have the same effect as a policy with the force of law. City of St. Louis v. Praprotnik, 485 U.S. 112, 127, 108 S.Ct. 915, 926, 99 L.Ed.2d 107 (1988). Demonstrating a policy or custom requires "show[ing] a persistent and wide-spread practice." Depew v. City of St. Mary's, Ga., 787 F.2d 1496, 1499 (11th Cir. 1986).Goebert v. Lee Cnty., 510 F.3d 1312, 1332 (11th Cir. 2007). Also with respect to causation, if a defendant is the final authority on policy, "then a causal link would exist sufficient for potential liability under section 1983." Howell v. Evans, 922 F.2d 712, 724 (11th Cir. 1991), opinion reinstated by Howell v. Burden, 12 F.3d 190 (11th Cir. 1994).
VI. Conclusions
The Defendants do not contend that Plaintiff has not presented a serious medical need. The Court assumes for the purposes of this opinion that he has a serious medical need. Dr. Melendez, Medical Director at UCI, responded to Plaintiff's request for an Administrative Remedy or Appeal, finding that the doctor, from an assessment on January 20, 2015, found unimpaired ambulation, and although Plaintiff requested Neurontin, this type of drug request requires a DER and that was denied because of "no medical indications, not monetary reasons." P. App. (Doc. 21-7 at 50). In reviewing the medical records and the Declaration, it is quite apparent that, over the years, FDOC doctors have reassessed Plaintiff's condition and adopted alternative treatment plans. The record shows that Plaintiff is being regularly, almost constantly, seen by medical professionals for a large number of ailments. Medical assessments have been undertaken, his symptoms are being treated with medication, and he has been prescribed alternative pain medication, referred to specialists, and has been seen by the DOH medical providers.
Of note, when Plaintiff complained of allergic reactions, the doctors have reassessed the prescribed medications and attempted to find alternative medications and treatments for his ailments and pain. Although Plaintiff has not recently been prescribed Neurontin and Tramadol, as he desires, he has been prescribed other medications, including pain medication.
The Court first notes that the narcotic Tramadol is a habit-forming opioid pain medication. Neurontin or Gabapentin is an anti-epileptic medication, sometimes prescribed for the off-label use to treat nerve pain; however, it produces a euphoric high, making it a much sought after and misused drug in correctional facilities and often the product of cheeking (retaining it in the mouth for later misuse, such as being crushed and snorted to produce a methamphetamine-like or cocaine-like high). See Ramirez v. Tilton, No. C 07-04681 SBA (PR), 2010 WL 3835688, at *8 (N.D. Cal. Sept. 29, 2010). It is also a matter of record that Plaintiff has been caught hoarding or cheeking medication.
Neurontin is a drug noted to be frequently abused by inmates. Ruley v. Corr. Corp. of Am., No. 11-36-ART, 2013 WL 1815039, at *3 (E.D. Ky. Apr. 29, 2013).
The FDOC doctors decided it was time to taper Plaintiff off of Neurontin and stop prescribing Tramadol, but this does not mean that they abandoned his treatment plan without providing him with alternative medication. The record shows that Plaintiff was provided Sulindac for pain and treatment for neuropathy, and the dosage was increased over time. He also received steroid injections for pain. Dr. Lafontant prescribed Elavil and Pain Off. When Plaintiff complained of allergic reactions, medications were discontinued and alternative medications provided. Additionally, Plaintiff was seen in neurology for his complaints of pain and was scheduled for additional tests and assessments. Plaintiff "cannot establish the subjective component of his deliberate indifference claim" because there is "no evidence that [the doctors] disregarded [Plaintiff's] severe pain." Ruley v. Corr. Corp. of Am., No. 11-36-ART, 2013 WL 1815039, at *3 (E.D. Ky. Apr. 29, 2013). Upon review of the record, his treatment was not so cursory as to constitute no treatment.
Eventually, the doctors discontinued Sulindac for medical reasons (high creatine levels).
With regard to Neurontin, the pain reliever Plaintiff has most-often requested for his neuropathy, "it is undisputed that Neurontin has not been approved by the FDA for the treatment of neuropathic pain. Indeed, published medical studies showed that it was no more effective than a placebo for neuropathic pain." Monteleone v. Corizon, No. 5:14cv65-WS, 2015 WL 1458283, at *14 (N.D. Fla. Mar. 27, 2015) (emphasis added). Thus, "failure to provide a medication for which there was no medical evidence of its efficacy for pain relief, and instead providing a medication for which there was medical evidence showing its efficacy for pain relief, was not deliberately indifferent." Id. (footnote omitted).
As such, the fact that Plaintiff has not been prescribed the particular drugs he desired or requested does not amount to a constitutional violation. Sears v. Thomas, No. 7:11-cv-03176-VEH-JHE, 2014 WL 4092305, at *9-10 (N.D. Ala. Aug. 7, 2014) (finding the disagreement with the efficacy of the recommended treatment or his preference for a different course of treatment does not state a constitutional claim); Ruley v. Corr. Corp. of Am., 2013 WL 1815039, at *3 (finding a physician's failure to prescribe specific medications does not constitute deliberate indifference). At most, he has presented a claim of negligence or medical malpractice in this regard.
In Granda v. Schulman, 372 F. App'x 79, 83 (11th Cir. 2010) (per curiam), the Eleventh Circuit clarified whether a course of treatment would state a claim under the Eighth Amendment:
Nevertheless, "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." Estelle, 429 U.S. at 106, 97 S.Ct. at 292; see Hamm v. DeKalb County, 774 F.2d 1567, 1575 (11th Cir.1985) ("Although [the prisoner] may have desired different modes of treatment, the care the jail provided did not amount to deliberate indifference."). In Estelle, the Supreme Court held that a prisoner failed to state a claim of deliberate indifference by alleging that medical personnel failed to diagnose and treat his back injury properly, which caused him to suffer pain for a three-month period, because he admitted to receiving treatment, including painkillers and muscle relaxants, on multiple occasions. 429 U.S. at 99-101, 106-07, 97 S.Ct. at 288-89, 292-93.
Plaintiff's dissatisfaction with his medical treatment is insufficient to sustain a claim for an Eighth Amendment violation. Here, it is quite apparent that Plaintiff is receiving extensive and frequent medical treatment for a variety of ailments and diseases. The record demonstrates that he is provided with constant and regular medical care, prescribed medications, and is seen in a number of chronic care clinics. With regard to prisoner's complaint that he is not receiving his preferred medication, it has been said:
"[W]hen a prison inmate has received medical care, courts hesitate to find an Eighth Amendment violation." Waldrop v. Evans, 871 F.2d 1030, 1033 (11th Cir. 1999). "Whether and how pain associated with medical treatment should be mitigated is for doctors to decide free from judicial interference, except in the most extreme situations." Snipes v. DeTella, 95 F.3d 586, 592 (7th Cir. 1996). Ordinarily, the "failure to administer stronger medication" is a "medical judgment" that is not an appropriate basis for imposing liability. Adams v. Poag, 61 F.3d 1537, 1547 (11th Cir. 1995)O'Brien v. Seay, 2007 WL 788457, at *4.
Under the circumstances at issue, even if Plaintiff's treatment were to be considered less than adequate or medical malpractice, "[a]ccidents, mistakes, negligence, and medical malpractice are not 'constitutional violation[s] merely because the victim is a prisoner.'" Harris v. Coweta Cnty., 21 F.3d 388, 393 (11th Cir. 1994) (citing Estelle v. Gamble, 429 U.S. at 106). In this case, Plaintiff may desire different modes of treatment and different medication, but the treatment and medication he has received does not amount to deliberate indifference. Defendants, through the Declaration and documentary evidence, have met their burden of showing that there is no genuine issue of fact concerning whether Defendants were deliberately indifferent to Plaintiff's serious medical needs.
Also of import, Plaintiff has failed to demonstrate that Corizon had a custom or policy of refusing medical treatment based on cost saving measures which resulted in deliberate indifference to his serious medical needs. Based on the record, there is not a persistent and widespread practice of denying medications based on cost. The record demonstrates that Plaintiff has been provided medication, just not the medication he prefers. Furthermore, he has been treated for his ailments and has not demonstrated irreparable injury caused by the medical decisions of the Defendants. Indeed, Plaintiff has not established the required causal connection between Corizon's actions or inactions and the deprivation of his constitutional rights. Additionally, Defendants Dr. Lafontant and Dr. Melendez did not advance a custom and policy of saving money over providing medical treatment that does not cause needless pain and suffering. No equitable remedy is warranted under these circumstances, particularly when balancing the hardships, which would require the doctors to prescribe non-medically indicated medication or medication of abuse and addiction over alternative medication. Finally, the public interest is not served by forcing physicians to act outside their professional medical judgment. Thus, the Defendants' Motion is due to be granted.
Therefore, it is now
ORDERED:
1. Plaintiff's request for an extension of time to complete discovery, contained in Plaintiff's Declaration (Doc. 60), is DENIED.
2. Defendants Corizon, LLC, Rudolphe Lafontant, MD., and Linda Melendez-Torres, MD's Motion for Summary Judgment (Doc. 52) is GRANTED, and the Clerk shall enter judgment for Defendants Corizon, LLC, Rudolphe Lafontant, M.D., and Linda Melendez-Torres, M.D., and against Plaintiff Ross.
3. The Clerk shall terminate all pending motions, enter judgment accordingly, and close this case.
DONE AND ORDERED at Jacksonville, Florida, this 16th day of June, 2016.
/s/_________
BRIAN J. DAVIS
United States District Judge sa 6/8
c:
Dennis Ross
Counsel of Record