United States District Court, M.D. Florida, Jacksonville Division
CARL E. DAUSCH, JR., Plaintiff,
CORIZON CORPORATION, ET AL., Defendants.
J. DAVIS UNITED STATES DISTRICT JUDGE
a former inmate of the Florida penal system,  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.; 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.
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.).
Summary Judgment Standard of Review
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).
Statement of Facts 
30, 2012, Plaintiff was placed on death row 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” 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.
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.
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.”
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,  and Dr. Lagman reviewed the x-ray on
September 5, 2012, notating ...