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Wheeler v. Bayolo

United States District Court, N.D. Florida, Pensacola Division

February 5, 2018

JIMMY LEE WHEELER, Plaintiff,
v.
J. BAYOLO, M.D., Defendant.

          REPORT AND RECOMMENDATION

          ELIZABETH M. TIMOTHY CHIEF UNITED STATES MAGISTRATE JUDGE

         Plaintiff Jimmy Lee Wheeler, an inmate of the Florida Department of Corrections (“FDOC”), proceeds pro se and in forma pauperis in this action brought under 42 U.S.C. § 1983. Presently before the court is Defendant Dr. Jay Bayolo's Motion for Summary Judgment (ECF No. 41), to which Plaintiff filed a response (ECF No. 48). Defendant also filed a reply (ECF No. 49), to which Plaintiff also responded (ECF No. 50). Also pending is Plaintiff's “Motion for a Judgment on Pending Motion for Recovery; For Summary Judgment” (ECF No. 39), to which Defendant has responded (ECF No. 43), as well as Plaintiff's Motion to Invoke Intervention . . .” (ECF No. 51), Proposed Order for Evaluation by a Qualified Medical Person (ECF No. 55), and “Proposed Order and Enforcement for Motion to Disclose Medical Information for Proof or Prior Related Incident” (ECF No. 56).

         This case was referred to the undersigned for the issuance of all preliminary orders and any recommendations to the district court regarding dispositive matters. See N.D. Fla. Loc. R. 72.2(C); see also 28 U.S.C. § 636(b)(1)(B)(C); Fed.R.Civ.P. 72(b). After careful consideration of all issues raised by the parties, it is the opinion of the undersigned that Defendant's motion for summary judgment should be granted.

         I. BACKGROUND AND INTRODUCTION

         At all times relevant to this action, Plaintiff was incarcerated at the Northwest Florida Reception Center (“NWFRC”). Plaintiff's claim is one of medical indifference under the Eighth Amendment proscription against cruel and unusual punishment. At the root of his medical claim is a February 15, 2014, incident in which Plaintiff states he was subjected to food poisoning from the food service at NWFRC, which caused life-threatening illness for the following days and weeks (ECF No. 9 at ¶¶6-13). Plaintiff describes the illness as a deadly disease that caused him to discharge blood to the point that he nearly bled to death (id.). In the longer term, Plaintiff alleges that the food poisoning has continued to exist in or influence his biological system and has resulted in painful side effects and nervous system illness (id. at ¶17).

         In a separate lawsuit filed earlier in this court, Plaintiff claimed that he received insufficient medical treatment for the problems described above, which worsened his condition in violation of his rights under the Eighth Amendment. See Wheeler v. Crews, Case No. 5:14cv271/WS/CJK. The Defendant in the current case at bar, Dr. Bayolo, was not a defendant in the prior suit. The current case seems to represent a continuation of the previous case, and evidently it marks the first time that Defendant Bayolo became involved in Plaintiff's treatment.

         In the instant complaint, Plaintiff alleges that Defendant Dr. Bayolo saw Plaintiff, evidently for the first time, at an April 5, 2016, medical appointment, more than two years after the food poisoning incident (ECF No. 9 at 9). According to Plaintiff, Defendant performed an “eyesight form of pre-evaluation” on him, and “confirmed degenerative, severe joint disease, type OA, where it eats the flesh from the joints and causes a nerve joint-related illness that gradually deteriorates the muscles of the joints” (id. at 9-10) (spelling and grammatical errors corrected). Plaintiff also relates that Defendant prescribed him an unspecified medication which caused “black spots” and “white pus headed bumps” to break out all over his body (id. at 10). Plaintiff further alleges that both of his feet were blackened on top of his big toes, which to Plaintiff was an indication of lack of blood flow to the toes (id. ). While Plaintiff does not state whether he informed Defendant of this symptom, he does allege that Defendant failed to provide any treatment for it (id.). Plaintiff asserts that the condition of his toes is attributable to the food poisoning incident and the fact that his blood was never “purified or cleansed” (id. at 11). Instead, Plaintiff has been treated with topical medications such as foot powder (ECF No. 51 at 6). He states that the toes are now “subject to amputation” due to the failure of medical staff at NWFRC to essentially replace all the blood in his circulatory system.[1] Plaintiff also alleges he has experienced symptoms (or that he “lives with in fear” of those symptoms) such as “moving pains, ” blurred vision, dry mouth, sleepiness, abnormal involuntary movements, constipation, weight loss, lowered ability to fight off infections, increased risk of seizure, “increased risk of prolactin levels” and increased levels of glucose, cholesterol, and triglycerides (id. at 12). Plaintiff alleges that the only medication prescribed for him was “Pantoprazole, ” called “Protonic” or “Aurobindo” (ECF No. 9 at 13). Plaintiff states that this medication was designed to build muscle tissue for his joints, but he adds that they have not been effective (id.).[2]

Plaintiff states that he requested a neck brace and also a referral to a neurologist because he “knows that there's something far more seriously wrong with him than what Medical has revealed” (id.). Plaintiff relates that Doctor Nancy Ortiz, who evidently is employed at NWFRC as well, examined a lump on his back or spine that causes him sharp pains, and she told him not to fall or make any sudden movements with his neck as it may cause him to become paralyzed. Defendant Bayolo, however, diagnosed the lump as “nothing but fat tissue which just happens to be on my spine the size of a golf ball, which . . . is nothing to worry about” (id. at 14) (spelling errors corrected).

         Defendant acknowledges that he saw Plaintiff on April 5, 2016. According to medical records submitted by Defendant, the reason for the appointment was the lump on Plaintiff's back and also general joint pain (ECF No. 40-1 at 59). Defendant noted atrophy on the lower cervical spine and some limited range of motion with pain in Plaintiff's cervical spine, shoulders, and lower extremities (id.). Defendant diagnosed Plaintiff with degenerative joint disease and polyarthralgia. Defendant reviewed a recent x-ray taken of Plaintiff, which he described as normal (id. at 123), prescribed Flexeril, [3] ordered blood work, and requested an MRI (id. at 59). According to Plaintiff, however, the MRI appointment was subsequently cancelled or continuously rescheduled for longer than a year (ECF No. 48 at 10).[4]

         As submitted by Plaintiff, medical records from August 12 and 26, 2014, and from February 2, 2015, show that Plaintiff was diagnosed with athlete's foot, for which he was provided with antifungal ointments and powders (ECF No. 51 at 22, 2425). Plaintiff also submitted medical records showing that on March 9, 2015, it was noted in Plaintiff's medical log book that he complained of pain in his jaw and neck and that his “TMJ pops” on the left side. Also noted was a small lump on his back. Plaintiff was provided with Protonix and Excedrin (id. at 26). Notes from a June 16, 2015, “Periodic Screening Encounter” show that Plaintiff reported that he felt “good” other than the fact that his neck hurt (id. at 27). None of these notes were signed by Defendant or indicated any involvement on his part.

         After Plaintiff's lone appointment with Defendant, he filed a prison grievance regarding his medical care, which Defendant responded to on June 24, 2016, stating the following:

         Review finds evaluation of the neck well documented in the medical record. Five licensed clinicians by the State of Florida have evaluated this medical condition and determined appropriate treatment plan. Unless you have the privilege of a medical license conclusion will have to rely on the competence of the physicians. Further treatment or referral is not indicated at this time and previous x-rays have been normal. The complaint made regarding food poisoning in 2014 is vague with no facts presented. Medical treatment is found appropriate. Sick call is available for further evaluation or questions.

         (ECF No. 51 at 35). On July 18, 2016, Defendant responded to another grievance Plaintiff had filed, stating:

A review of your record reveals that your complaints have been addressed appropriately. You have been issued Flexeril on numerous occasions and have been referred for further evaluation with an MRI that is ...


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