Opinion
7:22-CV-12 (WLS)
06-14-2023
DEMITRIUS DEMARION WALDEN, Plaintiff, v. Capt. STEVE JONES, Defendant.
RECOMMENDATION
THOMAS Q. LANGSTAFF, UNITED STATES MAGISTRATE JUDGE
Pending is a Motion for Summary Judgment filed by Defendant Jones. (Doc. 31). Plaintiff was notified of the filing of Defendant's Motion for Summary Judgment, advised of his obligations under the law, and directed to respond thereto within thirty (30) days. (Doc. 32). Plaintiff has not responded to Defendant's motion.
Plaintiff effectively filed this action in January 2022, and the Court directed him to file a recast Complaint. (Docs. 1, 12). Plaintiff's recast Complaint was filed with the Court on May 31, 2022. (Doc. 13). By Order dated June 30, 2022, the Court allowed Plaintiff's claim of deliberate indifference to a serious medical need to proceed against Defendant Jones. (Doc. 16).
BACKGROUND
Plaintiff's claims arise out of events occurring during his confinement at the Thomas County Detention Center, beginning on January 9, 2022. Id. Plaintiff alleges that on that date he was attacked by an inmate who was a mental health patient, resulting in injury to Plaintiff's left eye, left hand, left cheekbone, and right forearm. Id. Plaintiff was taken to the medical department, but was told he needed to go the hospital. Id. Defendant Jones decided to have a deputy take Plaintiff to the hospital rather than have an ambulance come to pick him up, telling Plaintiff that transport by ambulance would be too expensive. Id.
Plaintiff maintains that he was rapidly losing blood during the twenty (20) minute wait for transport to the hospital. Id. Defendant Jones stayed with Plaintiff at the hospital, but was later relieved by another officer. Id. Plaintiff was told he had a broken cheekbone and needed to see a specialist for his eye and his cheek right away. Id. After receiving prescriptions for medication and discharge papers, Plaintiff was taken back to the Thomas County Detention Center. Id.
After the incident, Plaintiff states that he continued to experience bleeding from his eye and nose, and was not given any medical care for his injuries. Id. He was told that no specialist would accept him to provide an x-ray of his cheek, and that Defendant Jones did not want to pay for a specialist, and was waiting for Plaintiff's injuries to heal. Id.
According to Plaintiff's recast Complaint, Plaintiff was taken to the Thomasville Eye Center on February 22, 2022, and was prescribed eye drops for an infection. Id. On February 25, 2022, Plaintiff's cheek was x-rayed and Plaintiff was told it had healed. Id. Plaintiff maintains Jones thereafter delayed the provision of Plaintiff's prescription medications in an attempt to save money. Id. Plaintiff alleges that his eye is still sensitive to bright light. Id.
ANALYSIS
Pursuant to Rule 56 of the Federal Rules of Civil Procedure, the “court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a).
A party asserting that a fact cannot be or is genuinely disputed must support the assertion by:
(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or
(B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.Fed. R. Civ. P. 56(c)(1).
As the party moving for summary judgment, Defendant Jones has the initial burden to demonstrate that no genuine issue of material fact remains in the case. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986); Clark v. Coats & Clark, Inc., 929 F.2d 604 (11th Cir. 1991). The movant “always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the record, including pleadings, discovery materials, and affidavits, which it believes demonstrate the absence of a genuine issue of material fact.” Celotex, 477 U.S. at 323. “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 . . . grant summary judgment if the motion and supporting materials - including the facts considered undisputed - show that the movant is entitled to it.” Fed.R.Civ.P. 56(e)(3). Defendant Jones has supported his motion with the affidavit of Nurse Juarez, portions of Plaintiff's medical records, and Plaintiff's deposition. (Docs. 31-3, 31-4, 31-6).
In her affidavit, Nurse Juarez states that she is a licensed practical nurse employed by Genesys, a company that provides third-party medical treatment at the Thomas County Jail in Thomasville, Georgia. (Doc. 31-3, ¶ 2). Juarez states that she is “familiar” with Plaintiff as a former inmate at the jail, and that she reviewed Plaintiff's medical records. Id. at ¶¶ 3-4. Juarez then outlines Plaintiff's medical treatment at the Thomas County Jail as set out in Plaintiff's medical records. Id. at ¶¶ 5-56.
Juarez testifies that the medical records were made and kept in the ordinary course of business at or near the time of the events in question. Id. at ¶ 4. However, Nurse Juarez does not set out specific cites to any of Plaintiff's medical records in her affidavit. The Court notes that Juarez's affidavit does not contain an affirmation that the affidavit was made on her personal knowledge, nor does it appear from the substance of the affidavit that all of Juarez's statements were based on her personal knowledge. “The Rules are clear: ‘Supporting and opposing affidavits shall be made on personal knowledge.' Fed.R.Civ.P. 56(e) (emphasis added). Rule 56(e)'s personal knowledge requirement prevents statements in affidavits that are based, in part, ‘upon information and belief' -instead of only knowledge - from raising genuine issues of fact sufficient to defeat summary judgment.” Pace v. Capobianco, 283 F.3d 1275, 1278 (11th Cir. 2002). Accordingly, Nurse Juarez's affidavit testimony will not be considered beyond her verification of Plaintiff's medical records as business records.
Plaintiff's medical records
Plaintiff's medical records reflect that Plaintiff was seen and treated by jail medical staff during the period January through June 2022. (Doc. 31-4, pp. 4-6). His treatment included eye drops and repeated treatment by an eye doctor. Id.
Specifically, Plaintiff was seen in the Emergency Department at Archbold Memorial Hospital on January 9, 2022 after the altercation with another inmate, and was diagnosed with an orbital blowout fracture and eyelid laceration. Id. at pp. 72, 85. Plaintiff was instructed to follow up with a doctor at the Thomasville Eye Center. Id. at p. 72. Plaintiff was seen in the jail medical department on January 11, 2022 for eye and facial pain. Id. at pp. 6, 109. Treatment notes show that Plaintiff was seen and treated at the Thomasville Eye Center on January 12, 2022, and was diagnosed with a fracture of the orbital floor, left side, iridocyclitis in the left eye, a subconjunctival hemorrhage, and suspected glaucoma. Id. at p. 42. The examining ophthalmologist concluded that the orbital fracture was stable and recommended follow up from an ENT or facial specialist, that the iridocyclitis required administration of the prescribed eye drops, that the hemorrhage should resolve on its own, and that Plaintiff should be rechecked for glaucoma. Id.
Plaintiff was seen again at the Thomasville Eye Center on January 19, 2022, Id. at pp. 6, 55. The examining physician noted that Plaintiff's conditions were stable, with the hemorrhage noted as “better”, and that Plaintiff needed to start on the prescribed medications. Id. at p. 57. Upon Plaintiff's return to the jail, a nurse noted that she “emailed the on call provider to inform them of the meds that were ordered from the outside appts. Provider approved for him to take them PA completed as one of them was not on the formulary and sent for approval.” Id. at p. 6.
Plaintiff was seen again in the jail medical department on January 25, 2022, complaining of eye pain, blurred vision, cheek and facial pain. Id. at pp. 111-115. Treatment notes show that “ENT has refused to see patient”. Id. at p. 113. On January 28, 2022, treatment notes for the jail show that Plaintiff was escorted out of the medical department after interrupting and cursing at staff. Id. at p. 116.
A medical note dated February 9, 2022 reflects that Plaintiff returned from an eye appointment with a prescription for Durezol, which was substituted with Prenisolone eye drops after the jail could not obtain Durezol. Id. at 6. On February 15, 2022, Plaintiff was to be referred back to ophthalmology per “Captain request”, as the ENT had refused to see Plaintiff. Id.
Plaintiff was seen again in the jail medical department on February 17, 2022, with treatment notes reflecting that Plaintiff said he did not need to be seen in sick call, but he was putting in requests for purposes of his ongoing lawsuit. Id. at p. 117. The examiner noted that Plaintiff's left eye had only a small area of blood remaining, with no swelling of his eye socket. Id.
Plaintiff's face was x-rayed on February 25, 2022, and the reviewing physician found “no radiographic evidence of an acute fracture”. Id. at pp. 35-36. The physician did note that “[p]lain film radiographs are not sensitive for traumatic maxillofacial injuries. If a radiographically occult facial fracture is clinically suspected, thin-section orbital/maxillofacial CT scanning is a more sensitive study for evaluation of maxillofacial trauma.” Id. at pp. 35-36.
A March 3, 2022 medical note reflects that Plaintiff was issued eyedrops on February 28, 2022, and was told by the nurse that they were to be administered four (4) times per day. Id. at p. 5. Plaintiff, however, had returned an empty bottle to the medical department on March 3, 2022. Id. Further medical notes show that medical department staff administered eye drops to Plaintiff on March 4 and 9, 2022. Id.
On March 16, 2022, treatment notes show that following Plaintiff's visit that day to the Thomasville Eye Center and his receipt of new prescriptions, “[t]he Captain has chosen to bypass IHS' involvement and taken the RX straight to the local pharmacy and have [Plaintiff's eye drop prescriptions] filled.” Id. at pp. 4-5. Plaintiff was seen in the jail medical department for eye issues on April 4, May 19, and June 20, 2022, and was seen at the Thomasville Eye Center on June 16, 2022. Id. at p. 4. New prescription orders were to follow, but as of June 27, 2022, no new orders had been received by the jail. Id. A subsequent medication release form shows that the prescriptions were received on July 5, 2022. Id. at p. 9.
The exhibits submitted by Defendant Jones reflect that Plaintiff submitted multiple grievances and requests for medical attention concerning his eye and his cheek between January 10, 2022 and June 2022. Id. at pp. 67, 70, 119, 125-133, 138, 140-142, 145, 148, 151, 155, 157, 164, 165, 168, 170, 178-181, 186, 192, 194, 207, 219, 231, 234, 235, 236239, 256-261, 263-266, 268, 270-217, 274, 278, 281, 284-288, 291, 293-295. Many of these requests were for treatment of his cheek by a specialist, for eyedrops or other medications for his eye that were allegedly delayed, and reflect reports of ongoing pain in Plaintiff's eye and cheek. Id. at pp. 67, 70, 126, 131, 138, 178-181, 186, 194. Plaintiff's grievances and requests for medical treatment reflect that a significant number of his requests were forwarded to Defendant Jones, but do not reflect Jones' responses to Plaintiff. See, e.g., Doc. 31-4 at pp. 119, 125, 138, 178, 231.
Plaintiff's deposition testimony
Plaintiff's deposition was taken on November 14, 2022. (Doc. 31-6). In his deposition testimony, Plaintiff testified that Defendant Jones was not physically present in the Thomas County Jail medical department when Plaintiff initially arrived on January 9, 2022, following Plaintiff's altercation with another inmate. Id. at pp. 48-49. Officers escorted Plaintiff to the medical department after the altercation, and when the nurse saw Plaintiff's eye she said, “it's bleeding too bad for her to do something to it, and she told Captain Jones that I needed to be seen by emergency at the hospital”. Id. at p. 48.
When notified of the need for Plaintiff to be seen at the hospital, “Captain Jones asked for a sheriff officer --- sheriff to escort me, for me not to ride in an ambulance, that was going to take too long.” Id. at pp. 49-50. Plaintiff testified to having to wait fifteen (15) minutes at the jail before being taken to the hospital. Id. at p. 50.
At the hospital, the examining doctor told Plaintiff that he had a left orbital fracture and a left eyelid laceration, gave Plaintiff a prescription for an antibiotic and pain medication, and referred Plaintiff to the Thomasville Eye Clinic. Id. at pp. 50-51. Plaintiff recounted that he thought he was seen at the Thomasville Eye Clinic over ten (10) times during his incarceration(s) at the Thomas County Jail. Id. at p. 52.
Plaintiff testified that based on a concern about a delay between the issuance of Plaintiff's eyedrop prescription and his receipt of the eyedrops, Captain Jones ordered the eyedrops from a local pharmacy. Plaintiff testified that he received all of the eyedrops that were prescribed for him, within a day or two after they were prescribed. Id. at p. 53. An x-ray was taken of Plaintiff's left cheek on February 25, 2022, and the administering physician told Plaintiff that his cheek had healed. Id. Plaintiff testified that he continued to have “floaters” in the affected eye, which were relieved by his eyedrops, and his cheek sometimes hurt. Id. at pp. 55-56.
It is well established that prison personnel may not subject inmates to "acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs." Estelle v. Gamble, 429 U.S. 97, 106 (1976). “To show that a prison official acted with deliberate indifference to serious medical needs, a plaintiff must satisfy both an objective and a subjective inquiry. First, a plaintiff must set forth evidence of an objectively serious medical need. Second, a plaintiff must prove that the prison official acted with an attitude of ‘deliberate indifference' to that serious medical need.” Farrow v. West, 320 F.3d 1235, 1243 (11th Cir. 2003) (internal citations omitted). “To make out the subjective component of an Eighth Amendment deliberate indifference claim, a plaintiff must establish that the defendant (1) had subjective knowledge of a risk of serious harm; (2) disregarded that risk; (3) acted with more than gross negligence.” Wade v. McDade, 2023 WL (11th Cir. 2023) emphasis in original.
“Mere incidents of negligence or malpractice do not rise to the level of constitutional violations. Nor does a simple difference in medical opinion between the prison's medical staff and the inmate as to the latter's diagnosis or course of treatment support a claim of cruel and unusual punishment." Harris v. Thigpen, 941 F.2d 1495, 1505 (11th Cir. 1991) (citations omitted).
Viewing the facts in the light most favorable to Plaintiff as the nonmoving party, Plaintiff was injured during an altercation with another inmate on January 9, 2022. Plaintiff suffered a left orbital fracture and inflammation of his left eye. Plaintiff was taken to the emergency room by jail personnel, and was taken on multiple occasions to see an eye doctor for continued treatment and monitoring of the injuries. Plaintiff was also seen and treated in the jail medical department on multiple occasions for his eye and cheek complaints, and received prescribed medications for his conditions.
"Prison officials must have been deliberately indifferent to a known danger before we can say that their failure to intervene offended 'evolving standards of decency', thereby rising to the level of a constitutional tort. The known risk of injury must be 'a strong likelihood, rather than a mere possibility'". Brown v. Hughes, 894 F.2d 1533, 1537 (11th Cir. 1990) (quoting Estelle, 429 U.S. 97 and Edwards v. Gilbert, 867 F.2d 1271, 1276 (11th Cir. 1989)).
As the Court found in its initial service Order, Plaintiff alleges that Defendant Jones violated his constitutional rights by failing to get him proper care in a reasonable time and letting him suffer in pain and bleeding for days before getting Plaintiff to a specialist, alleging that Jones made all of the decisions about getting Plaintiff treatment. (Doc. 16, p. 8).
However, Plaintiff has failed to establish that Defendant Jones disregarded a serious medical condition or worsening of Plaintiff's conditions. To the contrary, viewing the facts in the light most favorable to the Plaintiff, Plaintiff waited fifteen to twenty minutes before being transported to the hospital emergency room by Jones, and he was taken to see an eye specialist for further treatment within two (2) days of being injured. Furthermore, Plaintiff testified in his deposition that he received all of his eye drop medications within a couple of days of the medications being prescribed. Plaintiff's medical records show that attempts were made to have Plaintiff examined by an ENT, but these attempts were not successful, and Plaintiff was returned to see the eye specialist. Plaintiff's medical records further show that his cheek injury healed, and Plaintiff has not refuted this evidence.
The Court notes as well that Plaintiff's medical records show that although his eye continued to drain fluid after the injury, profuse, ongoing bleeding was not noted. (Doc. 31-4, pp. 47, 54, 109). Additionally, staff tried to get an ENT appointment for Plaintiff, as recommended by the Thomasville Eye Center, but the ENT office refused, saying Plaintiff needed to see an opthamalogist. Id. at pp. 6, 42. Rather than being deliberately indifferent to Plaintiff's ongoing condition, Defendant Jones directed that Plaintiff be seen again by the eye doctor. There is no evidence of deliberate indifference by Defendant Jones, other than Plaintiff's initial conclusory allegations.
Finally, Plaintiff has failed to establish that any delay in treatment exacerbated his condition. “[D]elay in medical treatment must be interpreted in the context of the seriousness of the medical need, deciding whether the delay worsened the medical condition, and considering the reason for the delay.” Hill v. DeKalb RYDC, 40 F.3d 1176, 1189 (11th Cir. 1994), overruled in part on other grounds, Hope v. Pelzer, 536 U.S. 730 (2002). “An inmate who complains that delay in medical treatment rose to a constitutional violation must place verifying medical evidence in the record to establish the detrimental effect of delay in medical treatment to succeed.” Id. at 1188.
Although Plaintiff alleged in his recast Complaint that Defendant Jones deliberately delayed Plaintiff's transport to the hospital and his subsequent treatment, including prescription medications, Plaintiff's deposition testimony and the Plaintiff's medical records establish that his emergency room transport was arranged by Defendant Jones to expedite Plaintiff's transfer and Plaintiff received his eye drop medications within a day or two of the medications being prescribed. Although there was some level of delay in obtaining prescriptions for Plaintiff, Defendant Jones ultimately acted to work around the impediments to obtain the prescriptions faster, and jail staff set up multiple eye appointments and an x-ray appointment for Plaintiff.
Plaintiff has failed to respond to Defendant Jones' summary judgment motion and has failed to create a genuine issue of material fact regarding his medical treatment. Conclusion
Based on Plaintiff's failure to create a genuine issue of material fact as to whether Defendant Jones acted with deliberate indifference to a serious medical condition, it is the recommendation of the undersigned that Defendant's Motion for Summary Judgment be GRANTED. (Doc. 31).
Objections
Pursuant to 28 U.S.C. § 636(b)(1), the parties may serve and file written objections to the recommendations herein, or seek an extension of time to file objections, WITHIN FOURTEEN (14) DAYS after being served with a copy thereof. The District Judge shall make a de novo determination as to those portions of the Recommendation to which objection is made; all other portions of the Recommendation may be reviewed by the District Judge for clear error. Any objection is limited in length to TWENTY (20) PAGES. See M.D. Ga. L.R. 7.4.
The parties are hereby notified that, pursuant to 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.”
SO RECOMMENDED.