Opinion
CIVIL ACTION 15-68-WS-M
09-08-2015
ROOSEVELT THOMAS, JR., AIS #115280 Plaintiff, v. CORIZON, INC., Defendant.
REPORT AND RECOMMENDATION
This § 1983 action, filed by Roosevelt Thomas, Jr., an Alabama prison inmate, proceeding pro se, was referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 72.2(c)(4), and is now before the Court on Plaintiff's Complaint (Doc. 1), Defendant Corizon, Inc.'s Answer and Special Report (Docs. 14, 15), which the Court has converted into a Motion for Summary Judgment (Doc. 17), and to which Plaintiff has responded. (Doc. 24). After consideration of the pleadings, Motion, and Response, and for the reasons set out below, it is recommended that Defendant's Motion for Summary Judgment be granted and that Plaintiff's action be dismissed with prejudice.
I. Facts and Proceedings
Plaintiff is an Alabama prison inmate serving a 25-year sentence at J.O Davis/Fountain Correctional Facility for robbery and theft of property. (Doc. 1 at 6). Though Plaintiff only officially names Corizon, Inc., as a defendant, his Response "blames" Nurse Craft and "Kenneth Dovey, Vice President of Operating, Corizon Health Inc.," for his alleged constitutionally violative medical care. (Doc. 24). Corizon, Inc., is the entity that provides medical care to inmates on behalf of the Alabama Department of Corrections ("ADOC"); Nurse Craft treated Plaintiff for his alleged injury. Despite not being officially named defendants, the Court will liberally construe Plaintiff's Complaint and Response as though Nurse Craft and Vice President Dovey are officially named defendants. Plaintiff's Complaint is written in a day-by-day, play-by-play format, which the Court summarizes as follows.
A cursory review of Corizon's website does not indicate that there is a Kenneth Dovey acting as vice president of operations; regardless, the Court will treat Plaintiff's Complaint as having named the proper vice president of Corizon.
On December 22, 2014, Plaintiff was working in the kitchen when he slipped and fell twisting his ankle causing swelling and a fracture. Plaintiff's broad-brush complaint is that he was delayed adequate medical care after fracturing his ankle; however, he does state that he was treated in the Infirmary, where he received ibuprofen and an analgesic balm for his ankle, but he does not specify on what date this treatment was given. (Doc. 1 at 8). On December 24, 2014, Plaintiff visited the health care unit where he was seen by Nurse Craft. (Doc. 15-1 at 3). Nurse Craft evaluated Plaintiff; his vitals were normal except for slightly elevated blood pressure. Nurse Craft provided Plaintiff with temporary work restrictions until he could be seen by the nurse practitioner on December 29, 2014. (Id.). When Plaintiff asked for a wheelchair, crutches, or a cane, he alleges he was told there were none available and he would have to find them himself if he wanted to use them. (Doc. 1 at 9). Plaintiff states that all he could do was "suffer and mourn until Monday," and his suffering was such that his "chest and head feels funny . . . I hope I don't die. I need to be rushed to a hospital this very moment." (Id.).
Plaintiff's work restrictions included no standing for more than five minutes, no team sports, no running, no jumping or jogging and no weight lifting. Plaintiff was also given a bottom bunk profile. --------
On December 29, 2014, Plaintiff was seen by nurse practitioner Shawn Geohagan, who ordered an x-ray of his ankle. (Doc. 15-1 at 4). Geohagan also prescribed Naproxen for thirty days, and crutches for fourteen days. (Doc. 15-1 at 5).
The x-ray was taken, and the radiology report reflected a "fracture of the lateral malleolus. There is mild displacement of the distal fragment. There is no apparent callus formation. There are no gross lytic or blastic lesion in the bones. There is no dislocation. . . . [and] no radiographic evidence of acute disease in the left foot." (Doc. 15-1 at 4). Dr. Timothy Iliff, who is a licensed doctor of medicine, viewed Plaintiff's radiology report and placed a fiberglass cast on his left ankle, which remained in place for 7 weeks until February 17, 2015, when it was removed by Dr. Iliff. (Id. at 5). A follow-up x-ray was then ordered and taken on February 19, 2015. It indicated "a healing fracture involving the lateral malleolus with no displacement. The joint alignment is maintained. There is associated soft tissue swelling. . . . Improved from December 29, 2014." (Id.).
On March 16, 2015, Plaintiff complained again to Nurse Practitioner Shawn Geohagan that he was experiencing swelling and discomfort in his left ankle. (Id.). Another x-ray was ordered and Plaintiff was prescribed anti-inflammatory medications and a renewed crutches profile. (Id. at 6). This third x-ray reflected that "ossification is normal for the left foot, including the tarsal bones seen. There is no fracture, dislocation or soft tissue swelling. . . . Ankle swelling but no acute fracture." (Id.). On March 30, 2015, Plaintiff had a follow-up visit with the nurse practitioner who told him that only slight swelling was present, and that he no longer needed to use the crutches. (Id.). This was the last time Plaintiff sought medical care for his left ankle.
Plaintiff contends that the five days between his initial visit with the nurse on December 24, 2015, and his visit with the nurse practitioner and doctor on December 29, 2015, constitute a constitutionally unacceptable delay in medical care. (Doc. 1 at 10). He states that the "staff here in the infirmary don't [sic] seem to care or just can't do anything until I see the person as for as [sic] being x-rayed. . . I guess my pain don't [sic] deserve any type of urgency to be taken care of. It don't [sic] seem to be an urgent matter. The state should have people on-call to handle these type [sic] of situations because an injury like this could worsen and cost [sic] me to lose my leg." (Id. at 9-10).
Plaintiff also alleges "the administration here at J.O. Davis . . . might retaliate against me due to my complaints." (Id. at 12). Plaintiff presents no facts or circumstances in which he has already been retaliated against by any staff member at J.O. Davis; therefore, these allegations are purely speculative and do not warrant any analysis by the Court.
For relief, Plaintiff requests to be "reward[ed] n money for my suffering and to try and make things better for the treatment of inmates as for as [sic] medical situations are concerned . . . . Alabama denies claims that it fails to give prisoners adequate medical care." (Doc. 1 at 7).
Defendants answer Plaintiff's Complaint by raising the defenses of, including, but not limited to, waiver, immunity, and failure to state a claim upon which relief can be granted. (Doc. 14). Defendant further responds to Plaintiff's allegations by providing a sworn affidavit from the treating physician, Dr. Timothy Iliff, and medical records evidencing the extent and frequency of care that Plaintiff received. (Doc. 15-1).
Dr. Iliff, via sworn affidavit, and based on the December 29, 2014, x-ray taken, asserts his medical opinion that the mild fracture in Plaintiff's left ankle was not worsened or accentuated by the five-day delay that Plaintiff contends is unconstitutional. (Doc. 15-1 at 4-5). Dr. Iliff also states that Plaintiff's fracture would have healed uneventfully, which it did, after he wore the provided fiberglass cast for three months. (Id. at 7). In conclusion, Dr. Iliff attests that in his professional opinion, based on his review of the medical records and personal knowledge of Plaintiff, and through his education, training and experience, that Plaintiff's care and treatment by him, as well as by the medical staff at J.O. Davis Correctional Facility, was always within the standard of care prescribed by physicians practicing medicine in the state of Alabama. (Id.).
Plaintiff replied to Defendant's Motion by "blaming" Nurse Craft and the Vice President of Corizon, Kenneth Dovey. Against Nurse Craft, Plaintiff claims she failed to do a body chart on his injured leg, made him find his own crutches, caused him to suffer great pain because of the delay, and treated with him deliberate indifference because she knew about his serious medical need and failed to respond reasonably to it. (Doc. 24).
Against Corizon Vice President Kenneth Dovey, Plaintiff states that he "failed to operate [Corizon] with proper health care, (Id. at 4), and that Dovey's supervision essentially allowed Plaintiff to be "delayed medical care that could have eased a lot of the pain if there had of [sic] been a physician on duty during the Christmas holidays I suffered. Everything else as for as [sic] being treated was after the delay, pain, emotional and mental pain and tears I cried out for help."
II. Discussion
a. Summary Judgment Standard
In analyzing the propriety of a motion for summary judgment, the Court begins with the following basic principles. The Federal Rules of Civil Procedure grant this Court authority under Rule 56 to render "judgment as a matter of law" to the party who moves for summary judgment. FED.R.CIV.P. 56(a). Summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact. . . ." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The Court must view the evidence produced by "the nonmoving party, and all factual inferences arising from it, in the light most favorable to" that party. Barfield v. Brierton, 883 F.2d 923, 934 (11th Cir. 1989). However, Rule 56(e) states that:
If a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact as required by Rule 56(c), the court may:FED.R.CIV.P. 56(e). "[T]here is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. . . . If the evidence is merely colorable, . . . or is not significantly probative, . . . summary judgment may be granted." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986) (internal citations omitted). "Summary judgment is mandated where a party fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Custom Mfg. and Eng'g, Inc. v. Midway Servs., Inc., 508 F.3d 641, 647 (11th Cir. 2007). "A mere 'scintilla' of evidence supporting the opposing party's position will not suffice; there must be enough of a showing that the [trier of fact] could reasonably find for that party." Id.
(1) give an opportunity to properly support or address the fact;
(2) consider the fact undisputed for purposes of the motion;
(3) grant summary judgment if the motion and supporting materials—including the facts considered undisputed—show that the movant is entitled to it; or
(4) issue any other appropriate order.
Additionally, it is well settled that a conclusion cannot be taken as true. Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009). Conclusory allegations based on subjective beliefs are likewise insufficient to create a genuine dispute of material fact and, therefore, do not suffice to oppose a motion for summary judgment. Holifield v. Reno, 115 F.3d 1555, 1564 n. 6 (11th Cir.1997); see also Leigh v. Warner Bros., Inc., 212 F.3d 1210, 1217 (11th Cir. 2000)("[t]his court has consistently held that conclusory allegations without specific supporting facts have no probative value"); Fullman v. Graddick, 739 F.2d 553, 556-57 (11th Cir. 1984)(a plaintiff's mere verification of conclusory allegations is not sufficient to oppose a motion for summary judgment). Therefore, "[s]ummary judgment is mandated where a party fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Custom Mfg. and Eng'g, Inc. v. Midway Servs., Inc., 508 F.3d 641, 647 (11th Cir. 2007).
Although factual inferences must be viewed in a light most favorable to the nonmoving party and pro se complaints are entitled to liberal interpretation by the courts, a pro se litigant does not escape the burden of establishing by sufficient evidence a genuine dispute of material fact. Brown v. Quality Corr. Healthcare, Inc. 2014 WL 2916747, at *2-*3 (M.D.Ala. June 26, 2014)(citing Beard v. Banks, 548 U.S. 521, 525 (2006)(citation omitted). Thus, the plaintiff's pro se status alone does not mandate this court's disregard of elementary principles of production and proof in a civil case. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
b. 42 U.S.C § 1983
As stated above, Plaintiff seeks redress pursuant to 42 U.S.C. § 1983 for the alleged delay in medical care regarding his fractured left ankle. (Doc. 1). Section 1983 provides in pertinent part:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . . .
42 U.S.C. § 1983 (1994).
c. Delayed, Denied or Inadequate Medical Care
Treating Nurse Craft as though officially named in Plaintiff's Complaint, and construing the Complaint in the light most favorable to Plaintiff, the Court concludes that Plaintiff fails to state a claim against Nurse Craft for delayed, denied or inadequate medical care under the Eighth Amendment.
To prevail on a claim for inadequate medical care, an inmate must show that the defendant acted with deliberate indifference to his serious medical needs. Estelle v. Gamble, 429 U.S. 97 (1976). In Estelle, the Supreme Court held that a prison official's deliberate indifference to the serious medical needs of a prisoner constitutes the unnecessary and wanton infliction of pain proscribed by the Eighth Amendment. Estelle at 104; see also Campbell v. Sikes, 169 F.3d 1353, 1363 (11th Cir. 1999)(stating "[t]he Eighth Amendment prohibits prison officials from exhibiting deliberate indifference to prisoners' serious medical needs"). "However, not every claim by a prisoner that he has not received adequate medical treatment states a violation of the Eighth Amendment." McElligot v. Foley, 182 F.3d 1248, 1254 (11th Cir. 1999)(citation omitted). The inadvertent or negligent failure to provide adequate medical care cannot be said to constitute an unnecessary and wanton infliction of pain. . . . Medical malpractice does not become a constitutional violation merely because the victim is a prisoner." Estelle, 429 U.S. 97, 105-06.
Thus, a prisoner must allege acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs. Id. at 106. The provided care must be "so grossly incompetent, inadequate or excessive as to shock the conscience of be intolerable to fundamental fairness." Harris v. Thigpen, 941 F.2d 1495, 1505 (11th Cir. 1991). In fact, "once an inmate has received medical care, courts are hesitant to find that a constitutional violation has occurred." Bell v. Bhadja, 2009 WL 464083 (S.D.Fla. Feb. 24, 2009)(citing Hamm v. DeKalb Cnty., 774 F.2d 1567 (11th Cir. 1986).
The Eleventh Circuit delineated the objective and subjective portions of an Eighth Amendment claim, which must be met in order to prove an Eighth Amendment violation:
An Eighth Amendment claim is said to have two components, an objective component, which inquires whether the alleged wrongdoing was objectively harmful enough to establish a constitutional violation, and a subjective component, which inquires whether the officials acted with a sufficiently culpable state of mind.Sims v. Mashburn, 25 F.3d 980, 983 (11th Cir. 1994)(citing Hudson v. McMillian, 503 U.S. 1, 8 (1992)). The objective component of the Eighth Amendment requires a plaintiff to demonstrate that an "objectively serious medical need" exists. Farrow v. West, 320 F.3d 1235, 1243 (11th Cir. 2003). A serious medical need is "considered one that has been diagnosed by a physician as mandating treatment or one that is so obvious that even a lay person would easily recognize the necessity for a doctor's attention." Id. (citing Hill v. DeKalb Reg'l Youth Det. Ctr., 40 F.3d 1176, 1187 (11th Cir. 1994) overruled on other grounds in Marsh v. Butler Cnty., Ala., 268 F.3d 1014, 1031 n. 8 (11th Cir. 2001)(quotation marks omitted)). "In either of these situations, the medical need must be one that, if left unattended, pos[es] a substantial risk of serious harm." Id. (citations and quotation marks omitted).
In order to meet the subjective requirement of an Eighth Amendment denial of medical care claim, Plaintiff must demonstrate "deliberate indifference" to a serious medical need. Farrow, 320 F.3d at 1243. "Deliberate indifference entails more than mere negligence. Estelle, 429 U.S. at 106; Farmer v. Brennan, 511 U.S. 825, 835 (1994).
The Supreme Court held that a prison official cannot be found deliberately indifferent under the Eighth Amendment "unless the official knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference." Farmer, 511 U.S., 825, 837-38 (emphasis added). However, "an official's failure to alleviate a significant risk that he should have perceived but did not, while no cause for commendation, cannot under our cases be condemned as the infliction of punishment." Id. at 838. Therefore, "under Estelle and Farmer, deliberate indifference has three components: (1) subjective knowledge of a risk of serious harm; (2) disregard of that risk; (3) by conduct that is more than mere negligence." Farrow, 320 F.3d 1235, 1246 (citing McElligot, 182 F.3d 1248, 1255)(stating that defendant must have subjective awareness of an "objectively serious need" and that his response must constitute "an objectively insufficient response to that need")).
Assuming without concluding that Plaintiff's fractured ankle was a serious medical need, the Court turns to the second, subjective element of deliberate indifference. Plaintiff fails to demonstrate that any named defendant actually perceived a substantial risk of serious harm and disregarded that risk to the point that it worsened Plaintiff's fracture. In fact, the record demonstrates just the opposite. Plaintiff's injury occurred on December 22, 2014. On December 24, 2014, within 2 days of his injury (and notably, on Christmas Eve), Plaintiff was treated by Nurse Craft in the health care unit. Nurse Craft thoroughly evaluated Plaintiff taking his vital signs, all of which were normal, and provided him with temporary work restrictions until he could be seen by the nurse practitioner on December 29, 2014.
Plaintiff was then treated by the nurse practitioner on December 29, 2014. An x-ray of the left ankle was taken, a cast was placed on Plaintiff's ankle and he was given crutches. Plaintiff wore the cast and used the crutches until Dr. Iliff removed the cast on February 17, 2015. Dr. Iliff asserts his professional and medical opinion that Plaintiff's ankle would have healed uneventfully regardless of the fact that Plaintiff had to wait one week to see the nurse practitioner. Dr. Iliff also states, based on his medical judgment, that the time Plaintiff had to wait to receive an x-ray and cast "did not accentuate his ankle problem of case any long-term pain or problem for him." (Doc. 15-1 at 4-5). Based on this evidence, the Court concludes that Plaintiff's injury was not disregarded under any circumstances, and the care he received was not so egregious that it shocks the conscience of the Court. The Court further concludes that Plaintiff carries this burden of proof at trial, and he fails to allege with significantly probative evidence that the care provided was unconstitutional.
Furthermore, though Plaintiff disagrees with the timeliness and quality of care he received, it is well established that a difference in opinion, or a disagreement between an inmate and prison officials as to what medical care is appropriate for his particular condition does not state a claim for deliberate indifference to medical needs. See Waldrop v. Evans, 871 F.2d 1030, 1033 (11th Cir. 1989); accord Bowring v. Godwin, 551 F.2d 44, 48 (4th Cir. 1977)(disavowing any attempts to second-guess the propriety or adequacy of a particular course of treatment, as this, along with all other aspects of health care, remains a question of sound professional judgment).
Likewise, the medical malpractice or negligence by a physician allegation is insufficient to form the basis of a claim for deliberate indifference. See Estelle, 429 U.S. at 105-07; Adams v. Poag, 61 F.3d 1537, 1543 (11th Cir. 1995). Instead, something more must be shown. Evidence must support a conclusion that a prison physician's harmful acts were intentional or reckless. See Farmer, 511 U.S. 825, 833-38; Cottrell v. Caldwell, 85 F.3d 1480, 1491 (11th Cir. 1996)(stating that deliberate indifference is equivalent of recklessly disregarding substantial risk of serious harm to inmate)(Adams at 1543)(stating that plaintiff must show more than mere negligence to assert an Eighth Amendment violation); Hill, 40 F.3d 1176, 1191 n. 28 (11th Cir. 1994)(recognizing that Supreme Court has defined "deliberate indifference" as requiring more than mere negligence).
The fact that Plaintiff had to wait a few days to be seen by the nurse practitioner does not satisfy his burden of demonstrating conduct worthy of shocking the conscience. The five or so days that Plaintiff waited to be seen by the nurse practitioner is not an unreasonable or unheard of amount of time. Even in the free world where a person is able to choose when they want to receive treatment, many opt to wait that amount of time or more before choosing to go to the doctor on a holiday. Furthermore, many free-world private doctors do not work at all during the Christmas holidays forcing even unincarcerated persons to wait that amount of time or longer before they can see their doctor.
Based on the forgoing, the Court concludes that at no point during the week that Plaintiff waited for care was he treated with complete disregard to the point that it worsened his fractured ankle. Therefore, Defendants' Motion for Summary Judgment is due to be granted, and any claim for deliberate difference regarding Plaintiff's medical care against any defendant is ripe for dismissal.
III. Supervisory Liability as to Vice President Dovey
It is well established in this Circuit that supervisory officials are not liable [] for the unconstitutional acts of their subordinates on the basis of respondeat superior or vicarious liability." Gonzalez v. Reno, 325 F.3d 1228, 1234 (11th Cir. 2003)(citations omitted). "The standard by which a supervisor is held liable in [his or] her individual capacity for the actions of a subordinate is extremely rigorous." Id. To establish supervisory liability in this Circuit, a plaintiff must show that either the supervisor personally participated in the alleged unconstitutional conduct or that there is a "causal connection between the actions of a supervising official and the alleged constitutional deprivation." Cottone v. Jenne, 326 F.3d 1352, 1360 (11th Cir. 2003). To establish a causal connection, a plaintiff must plead facts that plausibly show a causal relationship in one of three ways: (1) the supervisor had notice of a widespread history of abuse which he neglected to correct, (2) the supervisor implemented a custom or policy that resulted in deliberate indifference to constitutional rights, or (3) the facts support the inference that the supervisor directed subordinates to act unlawfully or knew that the subordinates would act unlawfully and failed to stop them from doing so. Gonzalez 325 F.3d at 1234-35 (citations omitted).
"While we do not require technical niceties in pleading, we must demand that the complaint state with some minimal particularity how overt acts of the defendant caused a legal wrong." Harris, 2014 WL 4215576, at *4 (citing Douglas v. Yates, 535 F.3d 1316, 1322 (11th Cir. 2008)(citation omitted)(emphasis added). Because Plaintiff offers no proof causally connecting Dovey to the alleged deliberate indifference, and because Plaintiff fails to show how Dovey directed Corizon or Nurse Craft to act unlawfully, or knew that she would, any claim for supervisory liability is due to be dismissed with prejudice.
IV. Liability pertaining to Corizon, Inc.
Even if Plaintiff's Complaint had stated a valid Eighth Amendment claim for inadequate medical care against individual defendants, he cannot maintain an action against Corizon as the corporate medical provider on any basis of alleged wrongdoing. "For § 1983 liability to attach to a private corporation providing prison medical care to prisoners, it must be shown that a prisoner's constitutional rights were violated as a result of an established policy or custom of that corporation." Green v. Preemptive Forensic Health Solutions, 2015 WL 1826191, at *3 (N.D. Ala. April 21, 2015 (citing Buckner v. Toro, 116 F.3d 450 (11th Cir. 1997). In this instance, Plaintiff names Corizon as a defendant, but makes no allegations specific enough to satisfy the requirement that he demonstrate a corporate policy or custom as the cause of a constitutional violation.
V. Conclusion
Accordingly, for the reasons set out above, the Court concludes that Defendants' Motion for Summary Judgment should be granted, and Plaintiff's Complaint be dismissed with prejudice on all claims alleged therein, against all Defendants.
NOTICE OF RIGHT TO FILE OBJECTIONS
A copy of this report and recommendation shall be served on all parties in the manner provided by law. Any party who objects to this recommendation or anything in it must, within fourteen (14) days of the date of service of this document, file specific written objections with the Clerk of this Court. See 28 U.S.C. § 636(b)(1); FED.R.CIV.P. 72(b); S.D. ALA. L.R. 72.4. The parties should note that under Eleventh Circuit Rule 3-1, "[a] party failing to object to a magistrate judge's findings or recommendations contained in a report and recommendation in accordance with the provisions of 28 U.S.C. § 636(b)(1) waives the right to challenge on appeal the district court's order based on unobjected-to factual and legal conclusions if the party was informed of the time period for objecting and the consequences on appeal for failing to object. In the absence of a proper objection, however, the court may review on appeal for plain error if necessary in the interests of justice." 11th Cir. R. 3-1. In order to be specific, an objection must identify the specific finding or recommendation to which objection is made, state the basis for the objection, and specify the place in the Magistrate Judge's report and recommendation where the disputed determination is found. An objection that merely incorporates by reference or refers to the briefing before the Magistrate Judge is not specific.
DONE this 8th day of September, 2015.
s/ BERT W. MILLING, JR
UNITED STATES MAGISTRATE JUDGE