United States District Court, N.D. Florida, Tallahassee Division
TERRANCE L. KIMBROUGH, Plaintiff,
CORIZON HEALTH, INC., M. TANNER, and V. HAMLET, Defendants.
SECOND REPORT AND RECOMMENDATION
CHARLES A. STAMPELOS UNITED STATES MAGISTRATE JUDGE
proceeding pro se, filed an amended complaint, ECF No. 8,
alleging that his Eighth Amendment rights were violated when
he was not provided timely and appropriate medical care after
suffering a tendon tear in his right knee. Defendants filed a
motion to dismiss in January 2018, ECF No. 24, which was
denied. ECF Nos. 29-30. Thereafter, Defendants filed an
answer, ECF No. 32, and the parties engaged in discovery. ECF
No. 33. On January 28, 2019, Defendants filed a motion for
summary judgment, ECF No. 37, and Plaintiff was advised of
his obligation to respond to that motion. ECF No. 40.
Plaintiff filed his opposition, ECF No. 44, and Defendants
filed a reply. ECF No. 45. The motion for summary judgment,
ECF No. 37, as supported by exhibits previously filed with
the motion to dismiss, see ECF No. 23-1, is ready
for a ruling.
court shall grant summary judgment if the movant shows that
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). Thus, summary judgment is proper
“after adequate time for discovery and upon motion,
against a party who fails to make a showing sufficient to
establish the existence of an element essential to that
party's case, and on which that party will bear the
burden of proof at trial.” Celotex Corp. v.
Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91
L.Ed.2d 265 (1986). The “party seeking summary judgment
always bears the initial responsibility of informing the
district court of the basis for its motion, and identifying
those portions of ‘the pleadings, depositions, answers
to interrogatories, and admissions on file, together with the
affidavits, if any,' which it believes demonstrate the
absence of a genuine issue of material fact.”
Celotex Corp., 477 U.S. at 323, 106 S.Ct. at 2553.
The non-moving party must then show though affidavits or other
Rule 56 evidence “that there is a genuine issue for
trial” or “an absence of evidence to support the
nonmoving party's case.” Id. at 325, 106
S.Ct. at 2554; Beard v. Banks, 548 U.S. 521, 529,
126 S.Ct. 2572, 2578, 165 L.Ed.2d 697 (2006).
issue of fact is “material” if it could affect
the outcome of the case. Hickson Corp. v. Northern
Crossarm Co., Inc., 357 F.3d 1256, 1259 (11th Cir. 2004)
(citations omitted). Additionally, “the issue of fact
must be ‘genuine'” and the non-moving party
“must do more than simply show that there is some
metaphysical doubt as to the material facts.”
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538
(1986) (other citations omitted). “The mere existence
of some factual dispute will not defeat summary judgment
unless that factual dispute is material to an issue affecting
the outcome of the case.” McCormick v. City of Fort
Lauderdale, 333 F.3d 1234, 1243 (11th Cir. 2003)
(quoting Chapman v. AI Transp., 229 F.3d 1012, 1023
(11th Cir. 2000)).
ruling on summary judgment motions, a judge is not to
“weigh the evidence and determine the truth of the
matter but to determine whether there is a genuine issue for
trial.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 249, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986).
“[T]here is no issue for trial unless there is
sufficient evidence favoring the nonmoving party for a jury
to return a verdict for that party.” Anderson,
477 U.S. at 249, 106 S.Ct. at 2511 (noting that a
“scintilla of evidence” is not enough to refer
the matter to a jury). The Court must decide “whether
the evidence presents a sufficient disagreement to require
submission to a jury or whether it is so one-sided that one
party must prevail as a matter of law.” Hickson
Corp., 357 F.3d at 1260 (quoting Anderson v. Liberty
Lobby, 477 U.S. 242, 252, 106 S.Ct. 2505, 2505, 91
L.Ed.2d 202 (1986)). All “justifiable inferences”
must be resolved in the light most favorable to the nonmoving
party, Beard, 548 U.S. at 529, 126 S.Ct. at 2578,
but “only if there is a ‘genuine' dispute as
to those facts.” Scott v. Harris, 550 U.S.
372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) (quoted in
Ricci v. DeStefano, 557 U.S. 557, 586, 129 S.Ct.
2658, 2677, 174 L.Ed. 2D 490 (2009)). “Where the record
taken as a whole could not lead a rational trier of fact to
find for the nonmoving party, there is no ‘genuine
issue for trial.'” Matsushita Elec. Indus.
Co., 475 U.S. at 587, 106 S.Ct. at 1356 (other citation
relevant Rule 56(e) evidence
February 1, 2016, Plaintiff went to the prison medical clinic
complaining of pain in his right knee. ECF No. 23-1 at
Plaintiff said he injured himself while playing basketball.
Id. at 3; ECF No. 8 at 5. Plaintiff alleged that
Defendant Tanner “refused to examine [him] or provide
any medical treatment” even though he was limping and
“in visible pain.” ECF No. 8 at 5.
medical record,  however, shows that although Defendant
Tanner, a licensed practical nurse, did not arguably provide
treatment, she did examine Plaintiff. ECF No. 23-1 at 1-2.
Defendant Tanner completed a “fracture/dislocation/
sprain protocol” form which noted that Plaintiff's
injury was “mild, ” he was “ambulatory to
medical clinic, ” and he reported his pain level as a 4
on a scale of 1-10. Id. at 1. Defendant Tanner noted
that Plaintiff was unable to move his knee, but she found
there was no deformity, only mild swelling, and the
temperature around the injury site was “warm” to
the touch. Id. Defendant Tanner found a “pulse
distal to injury” was present and she took
Plaintiff's vital signs. Id. Defendant Tanner
directed Plaintiff to follow up in sick call as his injury
was not deemed “a medical emergency.”
Id. The form also shows that Plaintiff was given
Ibuprofen, instructed to “apply warm, moist towel to
injury site, ” and instructed “on the use of
crutches or other assistive devices when applicable, ”
although it does not appear that Plaintiff was provided any
crutches or other devices. Id. at 1-2.
following day, February 2nd, Plaintiff said that he submitted
an inmate sick-call request form. ECF No. 8 at 5. He said
that he sat in the medical clinic for the entire day without
being seen. Id. An officer suggested he submit
another sick-call request form, which Plaintiff said he did.
Id. On February 3, 2016, Plaintiff “returned
to sick call and was examined” by Nurse Hamlet.
Id. at 5. Defendant Hamlet, a licensed practical
nurse, told Plaintiff the inflammation would subside and he
would be fine. Id. at 6. She gave him a tube of
analgesic balm and 10 packets of Ibuprofen. Id. at
documentary evidence provided by Defendants reveals only one
sick call request form which was dated February 3, 2016, 6:35
a.m. ECF No. 23-1 at 3. Plaintiff wrote on the
that he injured his right leg playing basketball on February
1, 2016. Id. The form indicates it was received on
February 3rd and Plaintiff was “triaged” on that
same day. Id.
was examined by Defendant Hamlet at 8:00 a.m. Id. at
4. Another “fracture/dislocation/ sprain
protocol” form was completed, noting that Plaintiff was
complaining of right knee pain and edema. Id.
Plaintiff reported his pain was on the lateral side of his
kneed and he again said it was a 4 on a 1-10 scale.
Id. There was no deformity or numbness noted, only
mild swelling, and no abrasion or laceration. Id.
Nurse Hamlet advised Plaintiff to elevate the leg and he was
given Ibuprofen. Id.
alleged that on March 21, 2016, he “declared a medical
emergency after falling from pushing a lawn mower.” ECF
No. 8 at 6. He said that after arriving in the medical
clinic, he was refused treatment and no one examined him.
Id. He was “told to sign up for sick
medical records reveal Plaintiff submitted a sick-call
request form on March 21, 2016, at 2:45 p.m. ECF No. 23-1 at
6. Plaintiff wrote that he had originally injured himself on
February 1, 2016, while playing basketball, and said the
injury was “treated” on February 3rd.
Id. He reported that while “pushing ...