United States District Court, N.D. Florida, Tallahassee Division
THIRD REPORT AND RECOMMENDATION
CHARLES A. STAMPELOS UNITED STATES MAGISTRATE JUDGE.
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.
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)).
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.”),
“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
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. 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,  and gave him some Ibuprofen, although
Plaintiff said no examination was made. Id.
Plaintiff was sent to administrative confinement.
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.
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.
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.
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.
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.
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. 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.
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 and told Plaintiff “to fill out a
sick call [request] for Monday morning, ” March 14th.
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. 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.
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.
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.
x-rays were taken which revealed a fracture of the
humeruswith displacement, “bone fragments
present, ” and “soft tissue swelling
present.” Id. at 17. A “long arm
splint” was placed on Plaintiff's right arm and