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Shaw v. Scoggins

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

July 19, 2019

DAVID WILLIAM SHAW, Plaintiff,
v.
MR. SCOGGINS, P.A., MRS. C. GLAVEY, R.N., and MRS. C. PRICE, R.N., Defendants.

          THIRD REPORT AND RECOMMENDATION [1]

          CHARLES A. STAMPELOS UNITED STATES MAGISTRATE JUDGE.

         Plaintiff filed a pro se civil rights complaint pursuant to 42 U.S.C. § 1983 claiming that the Defendants failed to provide him with timely and appropriate medical care. ECF No. 1. After the discovery period closed, Defendants filed a motion for summary judgment, ECF No. 92, supported by copies of Plaintiff's medical records, ECF No. 91. Plaintiff was advised of his obligation to respond to the motion, ECF No. 96, and his opposition was timely filed. ECF No. 99. Thereafter, Defendants filed a reply, ECF No. 101.

         Standard of Review

         “The 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[2] 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).

         An 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)).

         “[A]t the summary judgment stage the judge's function is not himself 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 (noting the distinction “between evidence of disputed facts and disputed matters of professional judgment.”), [3] 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 omitted).

         The relevant Rule 56(e) evidence

         Plaintiff's evidence is that while incarcerated at Wakulla Correctional Institution, he was involved in an altercation with another inmate on March 11, 2016, at approximately 10 a.m. ECF No. 1 at 5.[4] Before placing Plaintiff in administrative confinement, he was escorted to medical for a pre-confinement physical. Id. at 5-6. There, Plaintiff saw Defendant Glavey who took his vitals. Id. at 6. Plaintiff said he began to sweat profusely, his injured arm became “very numb, ” he felt “very nauseous and began to vomit.” Id. Defendant Glavey informed the “acting doctor on duty” (Defendant Scoggins, a P.A.) about Plaintiff's symptoms and asked if he would examine Plaintiff. Id. Defendant Scoggins said that Plaintiff should not have gotten into a fight “and proceeded to ignore” the Plaintiff. Id. Defendant Glavey told Plaintiff, “I'm sorry, I tried.” Id. Defendant Glavey advised Plaintiff to sign up for sick-call, [5] and gave him some Ibuprofen, although Plaintiff said no examination was made. Id. Plaintiff was sent to administrative confinement. Id.

         At around 9 p.m. that same day, Plaintiff saw Defendant Price passing out medication in the confinement housing unit. ECF No. 1 at 6. Plaintiff, who had made a sling for his arm out of a t-shirt, stopped Defendant Price and asked her “for help.” Id. He said that it was “so highly swollen and bruised that a lay person would easily conclude” that he “needed a doctors attention.” Id. at 7. He told Defendant Price that he thought his arm was broken and advised her that he could not move his arm. Id.; see also ECF No. 99 at 2. Plaintiff also requested pain medication from Defendant Price. ECF No. 1 at 7. Plaintiff states that she denied the request for medication because “according to her log [he] had been provided Ibuprofen earlier in the day.” Id. Plaintiff said that Defendant Price did not examine his arm and told him that he “had probably just pulled a muscle” and walked away from his cell. Id. Plaintiff said the only thing Defendant Price did was check his vitals, failing to even give him a proper sling. ECF No. 99 at 2-3.

         The next afternoon, Plaintiff “declared a medical emergency due to the excruciating pain” he was experiencing. ECF No. 1 at 7. He was taken to medical and once again saw Defendant Glavey. Id. Plaintiff said he thought his “arm was broken and showed her how grotessely [sic] the injury had swollen and bruised” and his “inability to move the arm.” Id. Defendant Glavey gave him a proper medical sling for his arm instead of the t-shirt he was using, but placed him back in his cell without examining his arm and only put him on a “call-out to see a doctor” on Monday, which was two days away. Id.

         Although Defendant Glavey sent Plaintiff to his cell, she went to his cell about three hours later and told Plaintiff she had contacted the doctor at home and he authorized her to “administer two injections, one for the pain [and] the other for the swelling.” Id. at 7-8. Plaintiff reports that the pain and swelling was so great, the injections had no effect. Id. at 8.

         Two days later, on Monday, March 14, 2016, at approximately 11 a.m., Plaintiff was examined by Defendant Scoggins, the same person Plaintiff said refused to see him on Friday. ECF No. 99 at 4. Plaintiff states that after “a simple 30 second examination, ” Defendant Scoggins “was quite certain” that Plaintiff's arm was broken. Id. Defendant Scoggins directed that Plaintiff be immediately transported to the hospital for x-rays. ECF No. 1 at 8; see also ECF No. 99 at 4. Plaintiff submitted a copy of a facsimile sent by Nurse Powell at Wakulla C.I. which stated Plaintiff was “being transfered [sic] to TMH via van for unstable FX of Rt. Humerous [sic] that occured [sic] 3/11/16.” ECF No. 99 at 8.

         At the hospital, x-rays were taken which revealed Plaintiff's “arm just below the right shoulder was in fact broken.” ECF No. 1 at 8. The medical record reveals Plaintiff had a “humerus fracture” and he was to follow up with Tallahassee Orthopedic Clinic [TOC] “as soon as possible, ” but return to the emergency room if his symptoms worsened. ECF No. 99 at 10. Surgery was eventually performed and a 7 inch steel rod with 16 screws were used to keep the broken bone securely in place. ECF No. 1 at 8; see also ECF No. 99 at 12.

         Defendants acknowledge that Plaintiff was examined by Defendant Glavey at approximately 10:45 a.m. on Friday, March 11, 2016. ECF No. 91-1 at 2. Plaintiff was complaining of right shoulder pain. Id. Defendant Glavey noted a one-inch “superficial abrasion above [the] right elbow, ” but she saw “no discoloration or swelling.” Id. at 3. Defendant Glavey contacted Defendant Scoggins, a physicians assistant, and notified him of Plaintiff's injury. Id. The form indicates no orders were given by Defendant Scoggins. Id. Nurse Glavey completed a “fracture/ dislocation/sprain protocol” form indicating Plaintiff reported his pain level as a 7 on a scale of 1-10. Id. Defendant Glavey noted on the form that Plaintiff had “extremity tingling, ” but it is unclear from her notation whether Plaintiff had extremity numbness. Id.[6] She also provided Plaintiff with 10 packs of Ibuprofen, along with instructions for dosing, and instructed him to immediately report any change in his condition. Id. at 3-4. Finally, she issued Plaintiff a pass for no pushing, pulling or lifting with his right arm. Id. at 3.

         Later that same day, Defendant Price saw Plaintiff while in the J-Dorm. ECF No. 91-1 at 8. Defendant Price noted there was a “strong” and “regular” pulse in the right arm, he could move his arm at the elbow, but not at the shoulder. Id. She noted in the medical record that Plaintiff's arm “did not look swollen - looked same as” his left arm. Id. Defendant Price noted Plaintiff was using a t-shirt as a sling and Plaintiff said he had already consumed all of the Ibuprofen previously given to him. Id. She explained the limits to Plaintiff about that medication[7] and told Plaintiff “to fill out a sick call [request] for Monday morning, ” March 14th. Id.

         On the next day, March 12th, Plaintiff saw Defendant Glavey and he was again complaining of right shoulder pain. Id. Upon examining him, she noted there was “moderate” swelling and bruising from the “armpit area down halfway upper arm” with moderate edema. Id. at 6, 8. Plaintiff reported his pain level at ¶ 8, and said he could not lift his arm but could “move arm from elbow down.” Id. at 6, 8. Defendant Glavey noted that Plaintiff was able to wiggle his fingers.[8] Id. at 8. The medical record indicates there was no deformity, no tingling or numbness. Id. at 6. She contacted the physician, Dr. Acosta, who ordered a sling, injections of Solu Medrol (a synthetic steroid) and Toradol (a non-steroidal pain medication), along with Tylenol. Id. at 6, 10. There is also a notation in the “fracture/dislocation/sprain protocol” form which states to x-ray the shoulder on Monday. Id. at 6. Similarly, the “physician's order sheet” listed medications to be given to Plaintiff and directed an x-ray be taken on Monday. Id. at 10.

         Two days later, on March 14th, Plaintiff was examined by Defendant Scoggins. ECF No. 91-1 at 12. Defendant Scoggins wrote an order for Plaintiff to be transferred to an “outside facility for further evaluation of Rt. Arm.” Id. at 12. The “Summary for Emergency Transfer” form notes that Defendant Scoggins diagnosed Plaintiff with an unstable fracture of the right humerus. Id.; see also at 9, 10.

         Plaintiff was taken to Tallahassee Memorial Hospital for treatment and x-rays on March 14, 2016. ECF No. 91-1 at 12. The emergency room record indicates Plaintiff reported suffering the injury three days prior. Id. at 15. Plaintiff said he had “nausea, one episode of vomiting and diaphoresis.” Id. Plaintiff described his “pain as a sharp 10/10 constant pain that is only minimally improved with rest.” Id. He said the pain “begins about midway up the upper right arm and goes to the shoulder.” Id. He said he could not move his arm without pain. Id. That E.R. treatment record noted that Plaintiff's pain was “moderate” and the “degree of swelling [was] minimal.” Id. Plaintiff denied having tingling, numbness, or a fever. Id.

         Four x-rays were taken which revealed a fracture of the humerus[9]with displacement, “bone fragments present, ” and “soft tissue swelling present.” Id. at 17. A “long arm splint” was placed on Plaintiff's right arm and Plaintiff ...


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