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West v. Hemphill

United States District Court, M.D. Florida, Fort Myers Division

November 15, 2017


          OPINION AND ORDER [1]


          This matter comes before the Court on Plaintiff James Daryl West's Motion for Emergency Telephonic Hearing Construed as a Motion for a Preliminary Injunction (Doc. #24), filed on July 18, 2017.


         West filed an Amended Complaint (Doc. #21) on May 15, 2017, alleging violations of his Eighth Amendment rights to be free from cruel and unusual punishment due to deliberate indifference of his medical needs. West alleges that Defendants' deliberate indifference to his medical needs has caused damage to his lower back, right knee, and right foot.

         West alleges that he was in a bus accident while being transferred by the FDOC. Since that accident, West alleges that he has suffered from chronic pain in his lower back, right knee and right ankle. (Doc. #21 at ¶ 46-47). On October 14, 2014, Defendant Dr. Ronald Hemphill, chief medical officer at Charlotte Correctional Institution (CCI) diagnosed West with chronic pain. However, Dr. Hemphill refused West's requests for a consultation with a specialist and further testing.

         On June 11, 2015, at 6:00am West utilized a sick call due to the pain in his lower back, right knee, and right foot. West was immediately seen by Nurse Campbell who, after examining him, placed him on morning call out so he could be seen by Dr. Carmello Berrios, Chief Medical Officer at CCI at that time. Nurse Campbell issued West a cane and gave him a bedrest pass.

         After seeing Dr. Berrios, West was given medical passes restricting his activities to light duty. West asked Dr. Berrios to call Mr. Gilbreath, food services director, to excuse him from food services duty. Dr. Berrios refused West's request. West then asked Dr. Berrios to call his medical grade officer, Mr. Brock, and have his medical grade changed. Again, Dr. Berrios refused. Dr. Berrios further refused to order any more x-rays or recommend West to an orthopedic specialist. Dr. Berrios informed West that further care was out of the question.

         On June 25, 2015, West was seen by ARPN Karen Blankenship. ARNP Blankenship confirmed Dr. Berrios' diagnosis of osteoarthritis, degenerative joint disease, and chronic pain. However, ARNP Blankenship refused to recommend West to a specialist or order additional testing. ARNP Blankenship refused to write West a no food service pass and gave him Motrin for his pain. On June 27, 2015, West says he was injured working food service and was again seen by ARNP Blankenship on June 29, 2015. After examining West, Blankenship said there was nothing wrong with him and could find no documentation of any injury to West on June 27, 2015. ARNP Blankenship directed West to return to work or she would recommend confinement for his lying to the staff.

         On August 13, 2015, West was on sick call for chronic pain and having trouble walking. West was seen by Dr. H. Wetter at CCI. Dr. Wetter told West he could hear cracking and popping in his right knee and noticed his right leg was smaller than his left leg. Dr. Wetter reviewed the three radiologists' reports and found there was no change in the right knee. Dr. Wetter told West that people live every day without a meniscus and even commented that he did not have one. Dr. Wetter also denied West's request to see a specialist.

         On June 27, 2015, West saw Registered Nurse (RN) LaRosa after he claims he was injured while working food service. RN LaRosa wrote West a bedrest pass until he could see Dr. Berrios on the following Monday, June 29, 2015. On August 13, 2015, West again saw RN LaRosa alleging chronic pain and complaining that he was having trouble walking. RN LaRosa removed West's ace bandage and examined his right knee. She told West she could not hear any popping in the knee and advised the Ace bandage was wound too tight and removed it. RN LaRosa told West there was nothing wrong with him and refused to order an MRI.

         On Friday June 2, 2017, West says that he slipped and fell on a slippery sidewalk as he walked to get lunch. West says the soles of his orthopedic shoes have been worn thin by age and caused him to slip and fall. West says he spoke to the warden about the shoes who told him he would send an e-mail about the shoes. West fell again on June 12, 2017. West requested a sick call but alleges it took nine days before he saw Nurse Raquel Santos. West told Nurse Santos that his shoes were worn out and that caused him to slip and fall. Nurse Santos refused to examine West's knee noting there was no redness. Nurse Santos told West there was nothing wrong with him.

         West is currently housed in the Everglades Correctional Institution (ECI). Jance Hill, the Health Services Administrator, at ECI, Dr. Oscar Ortega, the chief medical officer at ECI, and Nurse Santos, the sick call nurse at ECI, have all denied West's request for orthopedic shoes. All three of the above ECI medical personnel have opined nothing is wrong with West and that he does not medically qualify for orthopedic shoes. West moves the Court for an order directing the DOC to provide him with a new pair of orthopedic shoes.


         West argues Defendants are violating his Eighth Amendment rights by deliberate and calloused indifference to his medical needs. West moves the Court to issue a preliminary injunction ...

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