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Dausch v. Corizon Corp.

United States District Court, M.D. Florida, Jacksonville Division

August 15, 2017

CARL E. DAUSCH, JR., Plaintiff,
v.
CORIZON CORPORATION, ET AL., Defendants.

          ORDER

          BRIAN J. DAVIS UNITED STATES DISTRICT JUDGE

         I. Status

         Plaintiff, a former inmate of the Florida penal system, [1] is proceeding in this action on a pro se Amended Civil Rights Complaint (Amended Complaint) (Doc. 6) with exhibits (P. Ex.). Plaintiff names Corizon Corporation (Corizon); Sergio Lagman, M.D.; Olugbenga Ogunsanwo, M.D.; Isabel Rodriguez, M.D.;[2] and G. A. Espino (Dr. Espino) as defendants. In the Amended Complaint, Plaintiff asserts Defendants were deliberately indifferent to his shoulder injuries and pain, and Hepatitis C condition by failing to provide adequate medical treatment in violation of the Eighth Amendment and Florida's medical malpractice law. Plaintiff seeks loss of future earnings, as well as compensatory and punitive damages.

         Before the Court is Defendant Gonzalo Espino's Motion for Final Summary Judgment (Espino Motion) (Doc. 59), including Dr. Chad Jeremy Zawitz's Affidavit (Zawitz Aff.) and Plaintiff's deposition transcript (P. Depo.). Plaintiff filed his response to the Espino Motion. See Plaintiff's Brief in Opposition to Defendant Dr. Espino's for Summary Judgment Motion (Response) (Doc. 69) with exhibits (Resp. Ex.).

         II. Summary Judgment Standard of Review

         The Eleventh Circuit set forth the summary judgment standard.

Summary judgment is proper when “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). The substantive law controls which facts are material and which are irrelevant. Raney v. Vinson Guard Service, Inc., 120 F.3d 1192, 1196 (11th Cir. 1997). Typically, the nonmoving party may not rest upon only the allegations of his pleadings, but must set forth specific facts showing there is a genuine issue for trial. Eberhardt v. Waters, 901 F.2d 1578, 1580 (11th Cir. 1990). A pro se plaintiff's complaint, however, if verified under 28 U.S.C. § 1746, is equivalent to an affidavit, and thus may be viewed as evidence. See Murrell v. Bennett, 615 F.2d 306, 310 n.5 (5th Cir. 1980). Nevertheless, “[a]n affidavit or declaration used to support or oppose a motion must be made on personal knowledge.” Fed.R.Civ.P. 56(c)(4). “[A]ffidavits based, in part, upon information and belief, rather than personal knowledge, are insufficient to withstand a motion for summary judgment.” Ellis v. England, 432 F.3d 1321, 1327 (11th Cir. 2005).
As we've emphasized, “[w]hen the moving party has carried its burden under Rule 56[ ], its opponent must do more than simply show that there is some metaphysical doubt as to the material facts...Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no ‘genuine issue for trial.' ” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). “[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Unsupported, conclusory allegations that a plaintiff suffered a constitutionally cognizant injury are insufficient to withstand a motion for summary judgment. See Bennett v. Parker, 898 F.2d 1530, 1532-34 (11th Cir. 1990) (discounting inmate's claim as a conclusory allegation of serious injury that was unsupported by any physical evidence, medical records, or the corroborating testimony of witnesses). Moreover, “[w]hen opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment.” Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007).

Howard v. Memnon, 572 F. App'x 692, 694-95 (11th Cir. 2014) (per curiam) (footnote omitted).

         III. Statement of Facts [3]

         On May 30, 2012, Plaintiff was placed on death row[4] at the Florida State Prison (FSP), and underwent an initial medical intake screening. Amended Complaint at 4; Zawitz Aff. Ex. B-1 at 232-33. At the screening, Plaintiff informed two nurses that (1) he had Hepatitis C and wanted to be treated for the disease and (2) he had reconstructive right shoulder surgery and a “full thickening tear in his left shoulder that needed repair[].” Amended Complaint at 4-5. Further, Plaintiff “explained that he had Acromioclavicle Degenerative Joints in both shoulders and then requested a medical front cuff pass.” Id. at 5. The nurses told Plaintiff that he would not be given a front cuff pass, but that he would be “black box cuffed”[5] behind his back until his execution. Id. Dr. Lagman examined Plaintiff and prescribed the same medications Plaintiff took at the time he entered FSP, including a thirty-day supply of Excedrin for pain. Zawitz Aff. Ex. B-1 at 334, 356.

         On July 11, 2012, Dr. Espino assessed Plaintiff on a follow-up to Plaintiff's labwork and to check Plaintiff's hypertension medication. Id. at 329. Dr. Espino noted Plaintiff's chronic right shoulder pain and the right shoulder surgery performed in 2009. Id. On July 13, 2012, in response to Plaintiff's sick call request for a front cuff pass, S. D. Tollick, CMTC (Correctional Medical Technician Certified) examined Plaintiff. Id. at 327. Plaintiff provided Tollick with an MRI from his previous shoulder injury and stated “it's tore again.” Id. During the examination, Tollick found negative “edema, discoloration, crepidus to bilat shoulders, ” a “well healed scar from previous surgery, ” and that Plaintiff was “able to raise arm to should[er] height without difficulty or grimace.” Id. Plaintiff's “[c]hart [was forwarded] to clinician for review of front cuff pass request.” Id. Dr. Espino reviewed Plaintiff's medical records and denied Plaintiff's request for a front cuff pass on July 16, 2012. Id.

         On July 27, 2012, in response to Plaintiff's sick call request, J. Slominski, SLPN (Senior Licensed Practical Nurse) assessed Plaintiff who complained of right shoulder pain. Id. at 325. Slominski indicated that Plaintiff had a limited range of motion in the right shoulder, but there was no swelling or deformity present. Id. Further, Plaintiff did not experience any extremity numbness or extremity tingling. Id. Slominski gave Plaintiff two to three tablets of 200 mg Ibuprofen by mouth for the pain, and instructed Plaintiff to report any skin discoloration, coolness, tingling, numbness, or increase in pain in the affected extremity immediately. Id. Slominski saw Plaintiff again on August 16, 2012, regarding Plaintiff's complaints of extreme pain to the right shoulder. Id. at 322. Plaintiff stated that “the black box caused new damage to [his] shoulder” and his shoulder would “dislocate throughout [the] day.” Id. Plaintiff indicated that he had experienced extremity numbness and extremity tingling, though Slominski observed no swelling or deformity. Id. Slominski gave Plaintiff two to three tablets of 200mg Ibuprofen and submitted a “routine referral to MD.” Id.

         On August 22, 2012, Dr. Lagman saw Plaintiff. Id. at 320. Plaintiff complained that he was in pain for three weeks, felt “like screws [were] tearing away, ” that his shoulder “dislocate[d] often with as much as lifting a food tray, ” and that it was “hard to sleep.” Id. According to Plaintiff, he again requested a front cuff pass. Amended Complaint at 5. Dr. Lagman noted the scars from Plaintiff's previous endoscopic procedure of the right shoulder, but observed no swelling, deformity, or dislocation. Id. Dr. Lagman prescribed Excedrin for Plaintiff's pain, ordered an x-ray of Plaintiff's right shoulder, and denied Plaintiff's request for a front cuff pass. Id. at 320, 355, 407; Amended Complaint at 5. The x-ray of Plaintiff's right shoulder was performed on August 30, 2012, [6] and Dr. Lagman reviewed the x-ray on September 5, 2012, notating ...


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