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Barcelona v. Jones

United States District Court, S.D. Florida

September 10, 2019

JOEL BARCELONA, Plaintiff,
v.
JULIE L. JONES, et al., Defendants.

          ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

          ROBIN L. ROSENBERG UNITED STATES DISTRICT JUDGE

         This matter is before the Court on Defendants Raymond Herr, MD, Julie L. Jones, and D.L. Stine's (collectively, the “Defendants”) Motion for Summary Judgment (the “Motion”).[1] The Motion is fully briefed and ripe for review.

         Plaintiff Joel Barcelona brought this pro se case pursuant to 42 U.S.C. § 1983 after he was denied a hearing aid by prison officials in 2014. See Am. Compl., DE 36. Plaintiff's Amended Complaint alleges that the Defendants violated Plaintiff's Eighth Amendment right to be free from cruel and unusual punishment through Defendants' deliberate indifference to his serious medical need for a hearing aid. See id.

         In considering this Motion, the Court has reviewed the following briefing: Defendants filed a Statement of Facts in support of their Motion (“SOF”). DE 146. Plaintiff responded to the Motion. Pl. Resp., DE 153. With his Response, Plaintiff also filed exhibits, including his medical records, grievances, and relevant Department of Corrections policies. See DE 153-1, 153-2. However, Plaintiff did not respond to Defendants' SOF, in violation of Federal Rule of Civil Procedure 56(c) and Local Rule 56.1, despite being apprised of Rule 56's requirements in Judge Reid's Order Instructing Pro Se Plaintiff to Respond, which quoted the language of Rule 56(e). DE 115. Defendants filed a Reply in support of their Motion. See Reply, DE 154.

         In light of Plaintiff's pro se status and failure to file a responsive SOF, the Court has carefully reviewed all of the attachments to Plaintiff's Response at ¶ 153, pursuant to Federal Rule of Civil Procedure 56(e). The Court has also reviewed Plaintiff's filings that were submitted in briefing the first Motion for Summary Judgment in this case, because Plaintiff's Response to the instant Motion references the documents he submitted with his prior Response.[2] See Pl. Resp., DE 153; see also Pl. 1st Resp., DE 120. Almost all of Plaintiff's filed evidence has also been submitted by Defendants and is cited to in Defendants' SOF. See DE 112; Def. SOF, DE 146. The parties' understanding of the facts and the relevant medical records are substantially consistent, as evidenced by their production, during the course of briefing two summary judgment motions, of the same records. The exception is Plaintiff's sworn affidavit which was filed in response to the first summary judgment motion at ¶ 120 and Plaintiff's deposition testimony. See DE 120, DE 24; Pl. Dep., DE 144-1. While Plaintiff's arguments in his responses are not evidence, his sworn affidavit and his deposition testimony are. See Sears v. Roberts, 922 F.3d 1199, 1206 (11th Cir. 2019) (finding a plaintiff's sworn affidavit “should have been treated as testimony by the district court”).

         Finally, the Court held a pretrial Calendar Call with defense counsel and Plaintiff Barcelona physically present in the courtroom on August 14, 2019. DE 149.

         I. Facts

         Plaintiff has been in the custody of the Florida Department of Corrections (“FDOC”) since March 21, 2005. Def. SOF., DE 146 ¶ 1. Plaintiff suffers from asymmetrical hearing loss, and he brought this case against various prison officials after he was denied a hearing aid in 2014. See Am. Compl., DE 35; see also 6/6/14 Letter, DE 112-1, 11 (identifying Plaintiff's hearing impairment).

         On June 6, 2014, Plaintiff was seen by Dr. Arthur G. Zinaman, an audiologist with his doctorate in audiology and who has been in practice since 1988. Def. SOF, DE 146 ¶ 3; see also 6/6/14 Report, DE 112-1, 11; Zinaman Dep., DE 139, 24. Dr. Zinaman reported that Plaintiff had “profound” hearing loss in the right ear and “mild” hearing loss in the left ear. See 6/6/14 Report, DE 112-1, 11. Based on this diagnosis, Dr. Zinaman reported that “[a]mplification is not specifically recommended on the right side due to the severity of the hearing loss and poor word discrimination exhibited. However, the left ear is a candidate for a hearing aid to improve overall hearing due to the lack of such in the right ear.” Id., see also Def. SOF, DE 146 ¶ 3. Accordingly, “[u]pon medical clearance and (South Bay Correctional) facility authorization, a hearing aid for the left ear would be beneficial.” Id.; see also Def. SOF ¶ 3. Dr. Zinaman also recommended an MRI to better understand the source of Plaintiff's right ear hearing loss. See Id. The MRI was completed at Lakeside Medical Center, and the reviewing physician concluded that the results were “unremarkable.” MRI Report, DE 112-1, 22.

         Plaintiff in his affidavit swears that “Dr. J. Heller ordered that Plaintiff transport [sic] to Lakeside M.C. to get a mold for a hearing aid by Dr. Zinaman. The hearing aid was ordered.” Pl. Aff., DE 120, 24. Plaintiff repeats in his November grievance that an unnamed doctor at Palm West Hospital ordered a hearing aid mold to be made for Plaintiff and that he was transported outside of the prison for the same. Nov. Grievance, DE 112-2, 7 (“On July 11, 2014, I was taken to Palm West Hospital to get an MRI. The doctor there ordered that I be scheduled to get a mold for a ‘hearing aid.' On August 5, 2014, I was taken to Lakeside Hospital to get a mold for a hearing aid.”). See also Pl. Dep., DE 144-1, 9, 11. Defendants do not address whether Plaintiff was transported for a hearing aid mold, and none of the submitted medical records from either party supports Plaintiff's assertion that a mold was ordered. See Def. SOF, DE 146; DE 153; DE 112.

         On August 12, 2014, Dr. Zinaman issued a second report. See 8/12/14 Report, DE 112-1, 26. The Report states that a “mild gain device for the left ear may be beneficial, but this is declined by patient. Alternatively, a power instrument for the right ear may provide speech and environmental awareness with possible transcranial effect. Mr. Barcelona is agreeable to this plan.” Id.; see also Def. SOF., DE 146 ¶ 5. At his deposition, Plaintiff did not recall being offered a device for his left ear. Pl. Dep., DE 144, 11 (“Q: Did [Dr. Zinaman] offer you a device for your left ear? A: No. Q: Was there any discussion regarding your left ear? A: No.”).[3]

         On August 18, 2014, there is a notation in Plaintiff's Chronological Record of Health Care (the “Health Record”), by Dr. J. Heller (South Bay's Medical Director), which appears to indicate “Await [illegible] status of hearing aid approval.” 8/18/14 Health Record Note, DE 112-1, 25. By August 22, 2014, the Health Record indicates that “Audiology referral deferred by UM [Utilization Management]. Due to adequate hearing in one ear, not a candidate for hearing aid.” Id. See also Def. SOF, DE 146 ¶ 6. The same was indicated in October 2014. See 10/2/14 Health Record Note, DE 112-1, 29 (“UM denied based on [Health Services Bulletin] 15.03.27. Must have bilateral hearing loss.”).

         Health Services Bulletin No. 15.03.27 was issued on April 9, 2014 for the purpose of establishing “uniform procedures for the provision of auditory care to inmates.” Bulletin, DE 112-3, 1-3. The Bulletin specifies that “A recipient [of a hearing aid] who has a unilateral (one ear) hearing loss is not eligible for services. Exceptions to this policy may be granted on a case-by-case basis as recommended by an otolaryngologist or otologist, with approval of the regional medical director.” Id. See also Def. SOF, DE 146 ¶ 8.

         On August 22, 2014, “Dr. Herr, the Chief Medical Officer for Correction Healthcare Companies in Utilization Management, reviewed the request for hearing aid along with the June 2, 2014 audiometry results.” Def. SOF, DE 146 ¶ 6. According to Dr. Herr, “[b]ased on the audiometry results and the adequacy of the hearing level in Mr. Barcelona's left ear, he did not meet the medical criteria guidelines for bilateral hearing loss under [Health Services Bulletin] 15.03.27(G)(2)(a)-(b) and therefore Mr. Barcelona was not a candidate for a hearing aid. Additionally, based upon the audiometry results for the right ear, and the profound hearing loss, it was not medically probable that a power instrument device for the right ear could have remedied Mr. Barcelona's condition. Based on the foregoing, I deferred further audiology consultation and did not authorize a hearing aid for Mr. Barcelona at that time.” Herr Aff., DE 145-1 ¶ 15; see also Def. SOF ¶¶ 11-14.

         Plaintiff formally grieved this determination on September 24, 2014; October 21, 2014; November 16, 2014; and December 8, 2014. DE 112-2. In his September grievance, Plaintiff claims that his “condition could have easily been treated with a hearing aid. A hearing aid was ordered by not one but two separate doctors.” Id. at 1-2. In response to Plaintiff's September grievance, Dr. Heller and Warden Stine signed a response stating, “Records indicate you only have hearing loss in your right ear, per policies and procedures, in order to be eligible for services, the recipient must have a bilateral (both ears) hearing loss. A referral was submitted but denied because you do not meet this criteria.” Id. at 3. Plaintiff's October, November, and December grievances repeated the arguments he raised in his September grievance. See Id. at 4-6, 7-8, 10-12. In response to the November grievance, Dr. Heller and a different warden signed a response stating:

Records indicate you were seen by audiologist on 8/12/14 and it was determined your hearing loss in the right ear. [sic] A referral request for hearing aid was ordered on 8/19/14. The referral was submitted to the Utilization Department for a decision and the consult was deferred by utilization management. Per Florida Department of Corrections Guidelines a recipient for hearing aids must have a bilateral (both ears) hearing loss. A person who has unilateral (one ear) hearing loss is not eligible for services. Based on the above information, your grievance is denied.

Id. at 9.

         Plaintiff then initiated this § 1983 action in January of 2015. Compl., DE 1.

         In November 2018, while this action was still pending, Plaintiff was fitted for a hearing aid for his left ear by Ariana Wascher, a licensed hearing aid specialist. Def. SOF, DE 146 ¶ 42, 46. Although his hearing in both ears had remained stable in the intervening years, the Health Services Guidelines had changed as of November 1, 2018, so that Plaintiff qualified for a left ear hearing aid. See Id. ¶¶ 47-51. See also Wascher Dep., DE 139, 8 (characterizing both ears' hearing loss as “stable” between 2014 and 2018 tests in spite of “very slight” or “slight” changes in the left ear). Contra Pl. Dep., DE 144, 14 (“Q: Was your hearing different in 2018 when you saw Dr. Arian? A: Yes, it's different. . . . I had a hard time hearing about it. Q: It had gotten worse over the last four years? A: Yes, yes, That's why I said it's almost damaged, so- Q: Is it worse than it was in 2016 when you were transferred? A: Yes.”).

         In her deposition, Ms. Wascher stated that Plaintiff's hearing in the left ear improved with the hearing aid. See Id. at 14 (“[U]pon fitting it and testing it and programming it I determined that it was a good fit for his ear and that he was hearing speech crisp and clear, hearing better.”). However, even with his hearing aid, Plaintiff states that as of August of 2019, he “cannot hear T.V., loud speaker, mail calls, meal calls, or [if] somebody is calling behind me where the voice came from.” Pl. Resp., DE 153, 13. He states that the left ear hearing aid “is only for face to face, close and quite [sic] room.” Id.

         II. Summary Judgment Standard

         Under Rule 56, the summary judgment movant must demonstrate that “there is no genuine issue of material fact and that the moving party is entitled to summary judgment as a matter of law.” Fed.R.Civ.P. 56(c). The moving party bears the initial burden of demonstrating the absence of a genuine dispute of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Summary judgment is proper “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Grayson v. Warden, Comm'r, Ala. Dep't of Corr., 869 F.3d 1204, 1220 (11th Cir. 2017) (quoting Celotex, 477 U.S. at 322)..The existence of a factual dispute is not by itself sufficient grounds to defeat a motion for summary judgment; rather, “the requirement is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). A dispute is genuine if “a reasonable trier of fact could return judgment for the non-moving party.” Miccosukee Tribe of Indians of Fla. v. United States, 516 F.3d 1235, 1243 (11th Cir. 2008) (citing Anderson, 477 U.S. at 247-48). A fact is material if “it would affect the outcome of the suit under the governing law.” Id. (citing Anderson, 477 U.S. at 247-48).

         In deciding a summary judgment motion, the Court views the facts in the light most favorable to the non-moving party and draws all reasonable inferences in that party's favor. See Davis v. Williams, 451 F.3d 759, 763 (11th Cir. 2006). The Court does not weigh conflicting evidence. See Skop v. City of Atlanta, 485 F.3d 1130, 1140 (11th Cir. 2007). Thus, upon discovering a genuine dispute of material fact, the Court must deny summary judgment. See id.

         The moving party bears the initial burden of showing the absence of a genuine dispute of material fact. See Shiver v. Chertoff, 549 F.3d 1342, 1343 (11th Cir. 2008). However, once the moving party satisfies this burden, “the nonmoving party ‘must do more than simply show that there is some metaphysical doubt as to the material facts.'” Ray v. Equifax Info. Servs., LLC, 327 Fed.Appx. 819, 825 (11th Cir. 2009) (quoting Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)). Instead, “[t]he non-moving party must make a sufficient showing on each essential element of the case for which he has the burden of proof.” Id. (citing Celotex, 477 U.S. at 322). Accordingly, the non-moving party must produce evidence, going beyond the pleadings, to show that a reasonable jury could find in favor of that party. See Shiver, 549 F.3d at 1343.

         III. Plaintiff's Eighth Amendment Claim

         “The Eighth Amendment's prohibition against cruel and unusual punishment, applicable to the State of Florida through the Due Process Clause of the Fourteenth Amendment, prohibits the ‘unnecessary and wanton infliction of pain.'” Thomas v. Bryant, 614 F.3d 1288, 1303 (11th Cir. 2010) (citing Robinson v. California, 370 U.S. 660 (1962); quoting Hudson v. McMillian, 503 U.S. 1, 5 (1992). In the prison context, the “Eighth Amendment can give rise to claims challenging the specific ...


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