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Baxter v. Lang

United States District Court, M.D. Florida, Jacksonville Division

August 5, 2019




         I. Status

         Plaintiff, an inmate of the Florida penal system, is proceeding on an Amended Complaint (Doc. 11); see also First Amended Memorandum of Law (Doc. 12). Plaintiff claims that Defendant was deliberately indifferent to his serious medical needs with respect to his orthopedic boots and prosthetic insert. After this case was filed, at the Court's direction, Defendant and the Florida Department of Corrections ensured that Plaintiff received the prosthetic, and Plaintiff confirmed that it was working properly. However, Plaintiff maintains that Defendant's delay injured him.

         Before the Court is Defendant's Motion for Summary Judgment (Doc. 64). The Court advised Plaintiff of the provisions of Federal Rule of Civil Procedure 56, notified him that the granting of a motion for summary judgment would be an adjudication of the claim that could foreclose any subsequent litigation of the matter, and gave him an opportunity to respond. See Order (Doc. 15). Plaintiff has responded. See Plaintiff's Objections to Defendant's Motion for Summary Judgment (Doc. 66). The Motion is ripe for review.

         II. Plaintiff's Amended Complaint

         Plaintiff alleges that in July 2016, he spoke with a nurse about the need to replace his orthopedic boots and prosthetic inserts due to normal wear and tear. Doc. 11 at 7. Plaintiff was referred to the doctor. Id. On August 3, 2016, Plaintiff was seen by Dr. Carrion, who assessed Plaintiff's needs and completed a consult report form. Id. at 8. He recommended a “new style ‘softer boot, '' which was approved by Dr. Llorens, the Chief Health Officer at Cross City Correctional Institution (CCCI). Id. On September 15, 2016, Plaintiff was seen by Defendant in the advanced brace clinic at the Reception and Medical Center, where Defendant assessed Plaintiff's foot and “health care appliances.” Id. “Plaintiff gave Defendant a copy of the new boot style which had been approved at the Institution . . . to send with his recommendation to Centurion . . . for approval.” Id. Defendant advised Plaintiff that if it was approved, “‘Plaintiff would return for impressions to build a new prosthetic in a few weeks.'” Id.

         On November 10, 2016, Defendant saw Plaintiff in the advanced brace clinic. Id. Defendant advised that everything had been approved, “he took impressions of Plaintiff's feet and asked to keep Plaintiff's prosthetic and inserts to make sure the new ones would be built correctly.” Id. Defendant further advised Plaintiff that it would be “2-3 weeks at the longest that Plaintiff would be without prosthetics.” Id. On December 15, 2016, Defendant again saw Plaintiff in the advanced brace clinic and “advised that Defendant forgot Plaintiff's orthotic boots and prosthetic inserts at the shop and would have to reschedule in a few weeks.” Id. From November 10, 2016 to December 29, 2016, Plaintiff was without a prosthetic, which resulted in “a lot of back, neck, and foot pain.” Doc. 11 at 9. On December 29, 2016, Defendant provided Plaintiff with a pair of boots that were the wrong style, and “prosthetic inserts that were cheaply built by []Dr. Comfort Laboratory.” Id. “Plaintiff advised Defendant that it was the wrong style boot, and the prosthetic was totally insufficient for Plaintiff's medical need.” Id. Defendant told Plaintiff that he could not do anything during that appointment, but he provided Plaintiff with his “old prosthetics back and Plaintiff showed Defendant the difference.” Id. at 8-9. “Defendant told Plaintiff to keep the new ones, and Defendant would again reschedule Plaintiff to come back in 1 month to fix them.” Id. at 9. Within 10 minutes of Plaintiff wearing the new ones, he “had an open wound on [his] skin graft that lasted 6 weeks.” Id.

         On January 4, 2017, Plaintiff was called to medical and Dr. Llorens completed a new consult request, “stating that the orthopedic boots were not the ones approved and that the prosthetic needed correction.” Id. Then, on February 22, 2017, Dr. Llorens saw Plaintiff at the clinic and “ordered a walking cane, back brace, and shots of Dextamethasone in [his] back as well as Flexirill muscle relaxers due to the intense amount of pain Plaintiff was in.” Id. The next time Plaintiff saw Defendant was on March 9, 2017. Id. At that time, “Defendant said he was ordering the new style boot and again took old inserts so he could build a new set exactly as the old prosthetic and inserts were and advised he would schedule Plaintiff in a few weeks to pick up [his] new health care appliances.” Id. Plaintiff was seen by Defendant for the seventh time in 10 months on June 14, 2017. Id. “The Defendant had not rebuilt Plaintiff's prosthetic or ordered boots . . . . Defendant had patched Plaintiff's prosthetic poorly and had done the same to the prosthetic that he tried to pass off on 12/29/16 that Plaintiff had advised him would never work for his medical needs as it was built wrong.” Id. Defendant told Plaintiff that his company “would not allow him to purchase Timberland pro boots.” Id. at 10.

[Plaintiff] showed Defendant medical records which proved that statement to be a lie. In fact he had purchased a pair and brought them on 12/29/16 they were just the wrong style. [Plaintiff] advise[d] the Defendant that the new style had been approved by the State, the Chief Health Officer Dr. Llorens at Cross City, and the medical provider “Centurion” and that he had already been paid on 10/17/16 to build prosthetic and purchase these boots. Plaintiff advised the Defendant that he would be filing a 1983 Civil Rights violation with an American with Disability claim against him[, ] as the 10 month delay had cause[d] unjustifiable pain and suffering[, ]irreversible permanent damage to the skin graft on Plaintiff's left foot[, ] and serious nerve damage to Plaintiff's back and neck from the unbalanced, twisted posture necessitated by not having any prosthetic. The Defendant made a big scene of having his assistant B. Tetstone call Dr. Haddid, the Chief Health Officer at R.M.C. to come to the clinic to view the damage being caused to Plaintiff's skin grant and to approve the new style boot. After visual a[ss]essment of the damage to Plaintiff's skin graft Dr. Haddid stated he would purchase the boots and have them ready for delivery in 3 weeks. The Defendant then took new molds of Plaintiff's feet and advised Plaintiff that he would personally build the new prosthetic and would re-schedule an appointment for fitting in exactly 4 weeks. . . . The Defendant kept Plaintiff's old prosthetic and ripped the prosthetic apart that was built incorrectly after Plaintiff requested to keep it to show the courts.

Id. at 10 (record citation omitted).

         On June 15, 2017, Plaintiff was referred to Dr. Llorens for renewal of his pain-relieving shots, which he began receiving on July 14, 2017. Id. at 11. Defendant and Dr. Haddid saw Plaintiff again on July 20, 2017. Id. Dr. Haddid advised that “he had turned in the requisition order” for the boots, but the Department “was refusing to purchase them.” Id. Defendant stated that his company was also refusing to purchase them despite Defendant's recommendation, but if Plaintiff wanted those boots, his institution would have to pay for them. Id. Defendant had built the new prosthetic, but refused to provide it to Plaintiff because he did not have a boot to fit it in. Id. So, Plaintiff requested his old prosthetic be returned to him, and Defendant stated he would mail it to Plaintiff's institution. Id. “Plaintiff informed Defendant that he was in great pain and that his skin graft was being permanently damaged, and he is having foot, back, and neck pain from not having his prosthetic.” Id.

         As a result of these actions and the delay in getting new boots and inserts, Plaintiff claims that Defendant, in his individual and official capacities, has violated Plaintiff's Eighth Amendment rights, as well as his rights under the Americans with Disabilities Act. Id. at 12. As relief, he requests a declaratory judgment against Defendant; an injunction compelling Defendant to provide the boots and prosthetic inserts;[1] an injunction compelling Defendant to pay for an MRI of Plaintiff's spine, back, neck, and any resulting treatment; and monetary damages. Id. at 12-13.

         III. Defendant's Motion

         Defendant argues that Plaintiff has failed to establish he acted with deliberate indifference. See Doc. 64 at 12-17. Defendant does not contest that Plaintiff had a serious medical need. But he argues that even assuming Plaintiff could establish that Defendant had the requisite subjective awareness of a substantial risk of harm, he “has failed to establish that [Defendant] disregarded that risk by failing to take reasonable measures to abate it by conduct that constituted ‘more than gross negligence.'” Id. at 12-13.[2] Defendant contends that he provided Plaintiff with appropriate and timely medical care: “he evaluated Plaintiff; he took measurements and made impressions of Plaintiff's feet; he ordered boots and replacement inserts, he provided the same to Plaintiff and fitted the prosthetic to his satisfaction; when Plaintiff later complained the prosthetic didn't fit, he endeavored to create a new one; he took new measurements and impressions; he refurbished Plaintiff's old prosthetic; and he created an entirely new prosthetic.” Id. at 14. According to Defendant, “[a]t the very worst, Defendant failed to construct a properly-fitting prosthetic, requiring follow-up appointments to achieve a better fit.” Id. at 15. He further submits that there is no evidence that he “willfully endeavored to prevent [Plaintiff] from obtaining the right type of orthopedic boot, ” “was personally responsible for the delay in scheduling Plaintiff to be seen or provided with his prosthetic, ” or “was personally responsible for denying Plaintiff's requests to be transported to Hanger's Gainesville office to have the prosthetic fitted.” Id. at 16.

         IV. Plaintiff's Response

         Plaintiff argues that Defendant was deliberately indifferent to his serious medical needs by denying Plaintiff his prosthetic from March 9, 2017 to December 14, 2017. Doc. 66 at 1. He further argues that Defendant had “substandard prosthetic inlays built by Dr. Comfort Laboratories that he knew were built wrong and would not be sufficient for Plaintiff's needs.” Id. at 2. He asserts that Defendant had Comfort Laboratories build the prosthetic instead of doing it himself because it was cheaper and quicker. Id. at 11. And, despite knowing that the prosthetic was built incorrectly, Defendant “insisted that Plaintiff either accept and try [the] prosthetic (for 30 days) or sign a medical refusal.” Id. at 8; see also id. at 12. “Defendant forced Plaintiff to ‘try it out for 1 month' and he would have Plaintiff return to brace clinic for a follow up appointment [] at which time he would bring tools to adjust the prosthetic.” Id. at 8. “Had Defendant Lang not forced Plaintiff Baxter to try the incorrectly built prosthetic inlay, ” Plaintiff's skin graft would not have been irreparably damaged. Id. at 9. He also claims that despite being provided with information on the correct style of boots on multiple occasions, Defendant “purposefully order[ed the] wrong style of boots, thereby adding another delay in treatment.” Id. at 2; see also id. at 11.

         Plaintiff asserts that Defendant had subjective knowledge of his actual pain and suffering, because Plaintiff told Defendant at numerous appointments and “literally begged Defendant Lang to return his prosthetic to him.” Id. at 2. He contends that Defendant lied in his treatment notes and to him, id. at 2, 3, 8, and that “[f]or some deliberate unknown reason [Defendant] did everything he could to delay and deny the Plaintiff of his old prosthetics and the new ones he was contracted to provide.” Id. at 4. According to Plaintiff, Defendant's deliberate indifference subjected Plaintiff to chronic pain and suffering for nine months, damaged his skin graft, caused him to be removed from a vocational training program, [3] and required him to use a back brace, walking cane, and regular insoles.[4] Id. at 4-5, 10.

         V. Standard of Review

         “‘Summary judgment is appropriate where there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.'” Hinkle v. Midland Credit Mgmt., Inc., 827 F.3d 1295, 1300 (11th Cir. 2016) (quoting Jurich v. Compass Marine, Inc., 764 F.3d 1302, 1304 (11th Cir. 2014)); see Fed.R.Civ.P. 56(a). “A genuine issue of material fact exists when the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Bowen v. Manheim Remarketing, Inc., 882 F.3d 1358, 1362 (11th Cir. 2018) (quotations and citation omitted); see Hornsby-Culpepper v. Ware, 906 F.3d 1302, 1311 (11th Cir. 2018) (“Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial.” (quotations and citation omitted)). In considering a ...

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