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Costoso v. Le

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

July 25, 2019

WILLIAM PEREZ COSTOSO, Plaintiff,
v.
DR. C. LE, DR. LUIS LOPEZ, DR. COLOMBANI, SERGEANT CHOPP, and CAPTAIN GRIFFIN, Defendants.

          THIRD REPORT AND RECOMMENDATION [1]

          CHARLES A. STAMPELOS UNITED STATES MAGISTRATE JUDGE.

         After 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 144.

         In 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.

         Defendants 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 Recommendation.

         Plaintiff 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.

         Procedural Issues Regarding Two Defendants

         Defendant 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, [2] in part because a proper suggestion of death had not yet been filed. Id.

         More 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.[3]

         An 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.

         In 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.

         Plaintiff's Second Amended Complaint

         Plaintiff 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 7.

         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). 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[4] 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). 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) (quotation omitted).

         “[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.”), 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).

         “Cross 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.

         Relevant Evidence

         On September 14, 2014, Plaintiff fractured the ulnar bone in his left forearm during an altercation with another inmate.[5] ECF No. 142 at 4, 10. His arm was placed in a cast. Id.

         In late 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. Id.

         X-rays 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.

         Plaintiff 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 ...


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