United States District Court, N.D. Florida, Pensacola Division
KELLY L. HUTTO, Plaintiff,
DR. NICHOLAS DELGADO et al., Defendants.
REPORT AND RECOMMENDATION
ELIZABETH M. TIMOTHY CHIEF UNITED STATES MAGISTRATE JUDGE
Kelly L. Hutto (“Hutto”), a pre-trial inmate of
the Okaloosa County Department of Corrections housed at the
County jail (“Jail”), is proceeding pro se and in
forma pauperis in this civil rights action under 42 U.S.C.
§ 1983. Hutto is suing the Okaloosa County Board of
County Commissioners (“County”) (the municipality
which operates the Jail), Corizon Health, Inc.
(“Corizon”) (the private entity which contracts
with the County to provide medical services to inmates), and
Dr. Nicholas Delgado (a doctor employed by Corizon as a
physician at the Jail). Hutto brings Eighth Amendment claims
against Defendants. He claims Corizon and Dr. Delgado were
deliberately indifferent to his need for treatment of
Hepatitis A. Hutto claims the County's alleged policy or
custom of failing to provide adequate shower, restroom, and
other cleaning supplies to inmates exposes him to a
substantial risk of serious harm. In his Complaint, Hutto
requests declaratory relief and monetary damages.
before the court is Hutto's “Motion for a Temporary
Restraining Order and a Preliminary Injunction, ” with
an attached supporting Memorandum and Declaration (ECF No.
18). Hutto seeks a preliminary injunction requiring
Defendants to “arrange for an examination and plan of
treatment by a qualified specialist, ” and “carry
out that plan of treatment” (id. at 1).
Corizon and Dr. Delgado filed a Response in opposition to
Hutto's motion, with supporting materials (ECF Nos. 20,
21). The County joined the Response filed by Corizon and Dr.
Delgado (ECF No. 22).
case was referred to the undersigned for the issuance of all
preliminary orders and any recommendations to the district
court regarding dispositive matters. See N.D. Fla.
Loc. R. 72.2(C); see also 28 U.S.C. §
636(b)(1)(B), (C); Fed.R.Civ.P. 72(b). After careful
consideration of the parties' submissions, it is the
opinion of the undersigned that Hutto is not entitled to a
GOVERNING LEGAL STANDARDS
Preliminary Injunction Standard
plaintiff seeking a preliminary injunction must establish
four prerequisites: (1) he has a substantial likelihood of
success on the merits of his claim; (2) he faces a
substantial threat of irreparable injury if an injunction is
not issued; (3) the threatened injury to the plaintiff
outweighs the potential harm to the defendants; and (4) an
injunction will not disserve the public interest. See
Wreal, LLC v. Amazon.com, Inc., 840 F.3d 1244, 1247
(11th Cir. 2016). A preliminary injunction is an
extraordinary and drastic remedy not to be granted unless the
plaintiff clearly establishes the burden of persuasion as to
each of the four requisites. See Siegel v.
LePore, 234 F.3d 1163, 1176 (11th Cir. 2000) (en banc)
brought by convicted prisoners, claims of deliberate
indifference to serious medical needs proceed under the Cruel
and Unusual Punishment Clause of the Eighth Amendment.
See Gilmore v. Hodges, 738 F.3d 266, 271 (11th Cir.
2013). Pretrial detainees, however, must proceed under the
Due Process Clause of the Fourteenth Amendment. See Dang
by and through Dang v. Sheriff, Seminole Cnty. Fla., 871
F.3d 1272, 1279 (11th Cir. 2017) (citations omitted).
Nevertheless, the minimum standard for providing medical care
to a pretrial detainee is identical to the minimum standard
required by the Eighth Amendment for a convicted prisoner;
therefore, the claim is analyzed under the decisional law of
both Amendments. Id. (citation omitted).
a claim of inadequate medical treatment requires satisfying
two minima (from which the case law has ultimately derived
four requirements). First, there must be, objectively
speaking, conduct by public officials “sufficiently
serious” to constitute a cruel or unusual
deprivation-one “denying ‘the minimal civilized
measure of life's necessities.'” Wilson v.
Seiter, 501 U.S. 294, 298, 111 S.Ct. 2321, 115 L.Ed.2d
271 (1991) (quoting Rhodes v. Chapman, 452 U.S. 337,
347, 101 S.Ct. 2392, 69 L.Ed.2d 59 (1981)). Second, there
must be a subjective intent by the public officials involved
to use the sufficiently serious deprivation in order to
punish. See Wilson, 501 U.S. at 300 (“The
source of the intent requirement is not the predilections of
this Court, but the Eighth Amendment itself, which bans only
cruel and unusual punishment. If the pain inflicted is not
formally meted out as punishment by the statute or the
sentencing judge, some mental element must be attributed to
the inflicting officer before it can qualify.”
(emphases in original)).
context of denial of medical treatment, each of these minima
has been more specifically described as encompassing two
subsidiary requirements. To show an objectively serious
deprivation, it is necessary to demonstrate, first, an
objectively “serious medical need[ ], ”
Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285,
50 L.Ed.2d 251 (1976), one that, if left unattended,
“pos[es] a substantial risk of serious harm, ”
Farmer v. Brennan, 511 U.S. 825, 834, 114 S.Ct.
1970, 128 L.Ed.2d 811 (1994). A serious medical need is
“one that has been diagnosed by a physician as
mandating treatment or one that is so obvious that even a lay
person would easily recognize the necessity for a
doctor's attention.” Farrow v. West, 320
F.3d 1235, 1243 (11th Cir. 2003). Second, it is necessary to
demonstrate that the response made by the public official to
that need was poor enough to constitute “an unnecessary
and wanton infliction of pain, ” and not merely
accidental inadequacy, “negligen[ce] in diagnosi[s] or
treat[ment], ” or even “[m]edical
malpractice” actionable under state law,
Estelle, 429 U.S. at 105-06. Conduct that is more
than merely negligent includes: “(1) grossly inadequate
care; (2) a decision to take an easier but less efficacious
course of treatment; and (3) medical care that is so cursory
as to amount to no treatment at all.” Bingham v.
Thomas, 654 F.3d 1171, 1176 (11th Cir. 2011).
plaintiff may also establish deliberate indifference by
showing “[a] complete denial of readily available
treatment, ” or that the defendants “delay[ed]
necessary treatment for non-medical reasons.”
Bingham, 654 F.3d at 1176. To show the
required subjective intent to punish, a plaintiff must
demonstrate that the public official acted with an attitude
of “deliberate indifference, ” Estelle,
429 U.S. at 105, which is in turn defined as requiring two
separate things: “aware[ness] of facts from which the
inference could be drawn that a substantial risk of serious
harm exists [ ] and . . . draw[ing of] the inference, ”
Farmer, 511 U.S. at 837.
prison context, the court must “distinguish between
evidence of disputed facts and disputed matters of
professional judgment.” Beard v. Banks, 548
U.S. 521, 530, 126 S.Ct. 2572, 165 L.Ed.2d 697 (2006). A
medical decision not to pursue a particular course of
diagnosis or treatment is a classic example of a matter for
medical judgment, an exercise of which does not represent
cruel and unusual punishment. See Estelle, 429 U.S.
at 107-08. Further, a mere disagreement between an inmate and
the prison's medical staff as to the course of treatment
does not establish deliberate indifference. See Harris v.
Thigpen, 941 F.2d 1495, 1505 (11th Cir. 1991) (citations
omitted). Moreover, “[w]here a prisoner has received .
. . medical attention and the dispute is over the adequacy of
the treatment, federal courts are generally reluctant to
second guess medical judgments and to constitutionalize
claims that sound in tort law.” Hamm v. Dekalb
Cnty., 774 F.2d 1567, 1575 (11th Cir. 1985) (quotation
municipality, or functional equivalent thereof, is not liable
under section 1983 for injuries caused solely by its
employees, McDowell v. Brown, 392 F.3d 1283, 1289
(11th Cir. 2004), and may be held liable only when the
execution of a government policy or custom causes the
injury.City of Canton v. Harris, 489
U.S. 378, 385, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989). There
are several different ways of establishing municipal
liability under § 1983. A municipality may be liable for
an official policy enacted by its legislative body (e.g., an
ordinance or resolution passed by a city council). See
Monell v. Dep't of Soc. Servs. of N.Y., 436 U.S.
658, 661, 694-95, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978);
McCusik v. City of Melbourne, 96 F.3d 478, 483 (11th
Cir. 1996). Municipal liability may also attach if final
policymakers have acquiesced in a longstanding practice that
constitutes the entity's standard operating procedure.
See Bd. of Cnty. Comm'rs of Bryan Cnty. v.
Brown, 520 U.S. 397, 403-04, 117 S.Ct. 1382, 137 L.Ed.2d
626 (1997); Brown v. City of Ft. Lauderdale, 923
F.2d 1474, 1481 n.11 (11th Cir. 1991). And a municipality may
be held liable “on the basis of ratification when a
subordinate public official makes an unconstitutional
decision and when that ...