United States District Court, N.D. Florida, Tallahassee Division
THIRD REPORT AND RECOMMENDATION
CHARLES A. STAMPELOS UNITED STATES MAGISTRATE JUDGE.
the denial of Defendants' motions to dismiss,
see ECF No. 72, the parties were provided an
opportunity to conduct discovery. Near the conclusion of the
discovery period, the pro se Plaintiff filed motions for
summary judgment, see ECF Nos. 107, 108, and 112.
Because Plaintiff referenced exhibits which were not
provided, he was given additional time in which to submit the
referenced exhibits, ECF No. 132, and the exhibits to support
his motion have been filed as document 135. Defendants timely
filed responses to Plaintiff's motions, ECF Nos. 141 and
addition, Defendant Chopp filed a motion for summary
judgment, ECF No. 136, supported by several exhibits, and
Plaintiff filed opposition to that motion, ECF No. 145.
Defendant Chopp filed a reply to Plaintiff's response.
ECF No. 147.
Lopez and Colombani filed their own motion for summary
judgment, ECF No. 140, supported by two declarations, ECF No.
140-1 and ECF No. 142. Because the second declaration, ECF
No. 142, is identical to the first and also included
Plaintiff's medical records, only the second declaration
has been reviewed and referenced in this Report and
has filed timely responses to both motions. ECF Nos. 145,
148. Plaintiff also filed a motion to supplement his
opposition with additional “belated exhibits.”
ECF No. 153. That motion has been granted in a separate Order
and the exhibits attached thereto have been considered.
Issues Regarding Two Defendants
Griffin was served with process and filed an answer to
Plaintiff's second amended complaint on March 20, 2018,
ECF No. 42, and a notice of appearance of counsel was filed
in February 2018. ECF No. 34. A second notice of appearance
was filed on June 29, 2018. ECF No. 58. However, in August
2018, a suggestion of death was filed for Defendant Griffin.
ECF No. 64. Plaintiff then filed a motion to substitute a
party, ECF No. 76, which was denied, ECF No. 79,
part because a proper suggestion of death had not yet been
recently, Defendant Chopp filed a second Notice of Suggestion
of Death for Defendant Griffin, ECF No. 146, on June 3, 2019.
Plaintiff then filed another motion to substitute party, ECF
No. 150, requesting that Defendant Griffin's widow be
named as a successor Defendant.
Order was entered on July 9, 2019, which deferred ruling on
Plaintiff's motion, ECF No. 150. ECF No. 151. The Order
explained that the basis for Plaintiff's claim against
Defendant Griffin was the same as his claim against Defendant
Chopp, that is - Defendants did not permit Plaintiff to
retrieve his “splintcast” on July 19, 2016. ECF
No. 13 at 6. Because Defendant Chopp's motion for summary
judgment, ECF No. 136, was ready for a ruling,
Plaintiff's motion to substitute was deferred. ECF No.
151. Prior to serving the widow of a deceased correctional
officer with a civil rights complaint, the evidence should be
reviewed to determine whether or Plaintiff's claim is
sufficient to survive summary judgment. Id.
addition to Plaintiff's claim against Defendant Griffin,
Plaintiff's second amended complaint also alleged claims
against three doctors: Le, Colombani, and Lopez. ECF No. 13.
Service of process was never carried out on Defendant Le,
despite several efforts made by the Marshals Service.
See ECF Nos. 27, 32, 36, 51-52, and 54. An Order
entered on June 4, 2018, advised Plaintiff that because the
Defendant's whereabouts were unknown, he should use the
tools of discovery to locate Dr. Le. ECF No. 54 at 3.
Approximately one month later, Plaintiff filed a motion
requesting that the Marshals Service be required to make
another attempt to serve Defendant Le. ECF No. 59. That
motion was denied without prejudice because Plaintiff had not
provided an address for Defendant Le. ECF No. 62. Plaintiff
was advised that after locating Defendant Le, he must
“file a motion requesting that additional service
efforts be made on his behalf and he must provide an address
or specific location where service could be directed.”
Id. at 2. Discovery closed on April 18, 2019,
see ECF No. 139, but nothing further has been filed
by Plaintiff concerning Defendant Le. Therefore, because
Defendant has not been served with process, and because
Plaintiff appears to have abandoned his claim against that
Defendant, it is recommended that Plaintiff's claim
against Defendant Le be dismissed.
Second Amended Complaint
alleged that Defendants were deliberately indifferent to his
serious medical needs after having “multiple
surgeries” on his left arm. ECF No. 13 at 5. Plaintiff
contends that Defendant Colombani “deliberately
ignored” a recommendation for physical therapy and
Defendant Lopez refused to send Plaintiff “to an
outside facility for therapy.” Id. at 5-6. He
further claims that Defendants Chopp and Griffin refused to
let Plaintiff “retrieve [his] splintcast” for his
left arm. Id. at 6. As relief, Plaintiff seeks one
hundred thousand dollars from each Defendant. Id. at
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). 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). An “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)
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.”),
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
motions for summary judgment do not change the
standard.” Latin Am. Music Co. v. Archdiocese of
San Juan of the Roman Catholic & Apostolic Church,
499 F.3d 32, 38 (1st Cir. 2007) (quoted in Ernie Haire
Ford, Inc. v. Universal Underwriters Ins. Co., 541
F.Supp.2d 1295, 1297 (M.D. Fla. 2008). “‘Cross
motions for summary judgment are to be treated separately;
the denial of one does not require the grant of
another.'” Christian Heritage Acad. v. Okla.
Secondary Sch. Activities Ass'n, 483 F.3d 1025, 1030
(10th Cir. 2007) (quoting Buell Cabinet Co. v.
Sudduth, 608 F.2d 431, 433 (10th Cir. 1979)) (quoted in
Ernie Haire Ford, Inc., 541 F.Supp.2d at 1297-98)).
Because Plaintiff (as the party with the burden of proof) has
a heavier burden on summary judgment, the Court will consider
the Defendant's motion first. If Defendant's motion
is denied, the Court will consider whether Plaintiff is
entitled to judgment as a matter of law.
September 14, 2014, Plaintiff fractured the ulnar bone in his
left forearm during an altercation with another
inmate. ECF No. 142 at 4, 10. His arm was placed
in a cast. Id.
December, a consultation request was submitted for Plaintiff
to be evaluated by an Orthopedic specialist for a “non
healing” fracture of the ulnar bone. Id. at
10. The request noted that Plaintiff “was going to
have” surgery before being transferred to Wakulla C.I.
and the fracture was “not healing.” Id.
The request pointed out that the transfer reports supported
“planned surgical intervention.” Id. The
request was approved on January 2, 2015, by ARNP Kirkland.
were taken of Plaintiff's arm on January 27, 2015, which
revealed the “proximal ulnar fracture [was] unchanged
in position.” ECF No. 142 at 11. Follow up was
recommended and Plaintiff was examined by Dr. Gonzalez.
Id. at 11-12. Dr. Gonzalez submitted an
“urgent” request for Plaintiff to be evaluated by
a trauma specialist. Id. at 12.
was taken to Shands Hospital to be evaluated by Dr. Spiegel.
Id. at 13. The medical records reveal Plaintiff had
been in a cast for more than 3 or 4 months. Id. It
was recommended that the cast be removed, that Plaintiff be
referred to physical therapy for range of motion, weight
bearing as tolerated “[WBAT”], a ...