The opinion of the court was delivered by: Daniel T. K. Hurley United States District Judge
ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
The pro se plaintiff, Stuart Duane Aurich ("Aurich"), brings this §1983 action against defendant Leia Sanchez, LPN ("Sanchez") alleging that Sanchez was deliberately indifferent to his serious medical needs in violation of his constitutional rights during his twelve-day detention at the Palm Beach County Jail in March, 2006.*fn1
The case is currently before the court upon the parties' cross- motions for summary judgment [DE# 101, 127]. For reasons which follow, the court has determined to grant the defendant's motion, deny the plaintiff's motion, and enter final summary judgment in favor of the defendant.
Summary judgment is appropriate if no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). The moving party bears the burden of proving that no genuine issue of material fact exists. Celotex v Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 91 L. Ed.2d 265 (1986). In deciding whether the moving party has satisfied its burden, the court draws all available inferences from the underlying facts in the light most favorable to the party opposing the motion and resolves all reasonable doubts against the moving party.
Anderson v Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The court may not weigh conflicting evidence or weigh the credibility of the parties. Hairston v Gainesville Sun Publishing Co., 9 F.3d 913 (11th Cir. 1993). If a reasonable fact finder could draw more than one inference from the facts, and that inference creates an issue of material fact, then the court must not grant summary judgment. Id.
When the moving party meets its Rule 56(a) burden, the nonmoving party cannot survive a summary judgment motion by resting on the mere allegations of its pleadings. Rather, the nonmoving party must identify specific evidence in the record and articulate how that evidence supports its claim. Baranowski v Hart, 486 F.3d 112, 119 (5th Cir. 2007). This burden will not be satisfied by "some metaphysical doubt" as to the material facts, by conclusory allegations, by unsubstantiated assertions, or by a "mere scintilla" of evidence. Earley v Champion Int'l Corp., 907 F.2d 1077, 1081 (11th Cir. 1990); Boudreaux v Swift Transp. Co., 402 F.3d 536, 540 (5th Cir. 2005). Rather, there must be competent evidence upon which a reasonable jury could return a verdict in favor of the non-moving party. Walker v Darby, 911 F.2d 1573 (11th Cir. 1990), citing Anderson v Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S. Ct. 2505, 2512 (1986).
Thus, to successfully resist a motion for summary judgment, the party against whom summary judgment is sought must demonstrate, by affidavits or other relevant and competent evidence, that a genuine issue of fact exists. United States v. Spitzer, 245 Fed. Appx. 908 (11th Cir. 2007), citing Avirgan v. Hull, 932 F.2d 1572 (11th Cir. 1991); Fed. R. Civ. P. 56(e)["[s]supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence and shall show affirmatively that the affiant is competent to testify to the matters stated therein"].
While the court may not weigh conflicting evidence or make credibility determinations in ruling on a motion for summary judgment, FindWhat Investor Group v. FindWhat.com, 658 F.3d 1282 (11th Cir. 2011); State Farm Mutual Auto Ins. Co. v. Duckworth, 648 F.3d 1216 (11th Cir. 2011), where an affidavit is proffered to resist summary judgment and flatly contradicts earlier sworn testimony without valid explanation, the court has discretion to disregard the inconsistent affidavit or strike it as a sham. See Latimer v. Roaring Toyz, Inc., 601 F.3d 1224 (11th Cir. 2010); Van T. Junkins and Assocociates, Inc. v. United States Industries, Inc., 736 F.2d 656 (11th Cir. 1984). Cf. Croom v Balkwill, 645 F.3d 1240 (11th Cir. 2011)(district court did not abuse discretion in treating inconsistencies between affidavit and prior deposition testimony as "variations of testimony" or "instances of failed memory" going to weight and credibility of evidence as opposed to falsehoods rendering the affidavit a sham); McCormick v. City of Fort Lauderdale, 333 F.3d 1234 (11th Cir. 2003)(allowing affidavit where plaintiff offered some plausible explanation for inconsistencies between opposing affidavit and prior sworn statement to police).
On February 7, 2006, Aurich suffered a work- related shoulder injury at a Florida job site. Through the oversight of the relevant workers' compensation insurance carrier, he was ultimately scheduled to undergo shoulder surgery in a Florida hospital on March 6, 2006.
However, on February 28, 2006, deputies from the Palm Beach County Sheriff's Office arrested Aurich on an extradition warrant issued by the State of Michigan and delivered him to the Palm Beach County Jail. On March 1, 2006, Aurich first presented to the jail intake nurse, defendant Leia Sanchez, who took a medical history and documented Aurich's reported broken left shoulder, torn tendons, and ongoing prescription pain regime consisting of Naprosyn, Oxycodone and Darvocet. In course of eliciting his mental health history, Sanchez noted Aurich was at risk for substance abuse withdrawal, and implemented a withdrawal protocol. She offered him a Motrin for immediate pain relief (which Aurich declined due to allergy) and ordered a physician referral for follow up on his physical complaints. Sanchez evaluated Aurich on only two other occasions for purposes of monitoring for potential withdrawal complications (March 4th and March 8th), and otherwise had no other responsibility for his care during his 12-day detention at the Palm Beach County jail.
As the LPN intake nurse, Sanchez did not have authority to order prescriptions or provide medications to Aurich or any inmates at the jail. Prison protocol specifically required a doctor's prescription for dispensation of any medication at the jail, and generally prohibited the prescription or dispensation of any narcotic pain medications to any inmate. As the LPN intake nurse, Sanchez did not participate in the decision as to whether Aurich would be allowed to undergo surgery on March 6th as previously scheduled, or whether he would be allowed to undergo surgery in Florida prior to extradition to Michigan.
On March 2, 2006, Aurich submitted a "health service request" form, reporting a broken left shoulder, a previously scheduled surgery date and constant related pain.
On March 3, 2006, Aurich was examined by Nurse Sharon Linder, who documented his expressed interest in continued use of Naprosyn for his pain and referred his request to a physician's assistant to initiate treatment. On that same day, Nurse Helen DiCaro issued an order for Naprosyn 50 mg by mouth, twice a day for seven days, and the order was approved by prison physician Gary Beauzile. Aurich received his first dose of Naprosyn later that afternoon, and continued to ...