United States District Court, S.D. Florida
ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY
L. ROSENBERG UNITED STATES DISTRICT JUDGE
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”). The Motion is fully briefed and ripe for
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.
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.
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. 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”).
the Court held a pretrial Calendar Call with defense counsel
and Plaintiff Barcelona physically present in the courtroom
on August 14, 2019. DE 149.
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
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.
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.
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:
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.”).
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.
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.
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
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.
then initiated this § 1983 action in January of 2015.
Compl., DE 1.
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.”).
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.
Summary Judgment Standard
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).
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.
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.
Plaintiff's Eighth Amendment Claim
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 ...