Ireland v. Prummell

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

FORT MYERS DIVISION

Thomas B. Ireland, as Civ. No. 2:17-468-FtM-PAM-MRM

personal representative of

the estate of Gregg T. Ireland,

Plaintiff,

v. MEMORANDUM AND ORDER

Bill Prummell, Corizon LLC,

Tabbatha Carter, Brandon

Swartzentruber, Michael Wiles,

Robert Sledzindski, Alan Swocho

William Garlick, Michael Burnette,

Albert L. Burrows, Adamar

Gonzalez-Figueroa, Margaret

Bracy, and Zackary Heavener,

Defendants.

This matter is before the Court on Defendants’ Motions for Summary Judgment.

For the following reasons, the Motions are granted.

BACKGROUND

On August 22, 2015, Gregg Ireland was arrested for driving under the influence.

(Am. Compl. (Docket No. 27) ¶ 21.) Because Ireland’s breath test revealed an alarmingly

high level of alcohol, the arresting deputies took him to the hospital. (Id. ¶ 23.) Two hours

later, the hospital released him with a prescription for potassium chloride due to a diagnosis

of hypokalemia, which is a low blood potassium level associated with alcohol withdrawal.

(Id. ¶¶ 24-26.) The deputies then took Ireland to the Charlotte County Jail. Ireland was

never given the prescribed potassium chloride. (Heavener Dep. (Docket No. 86-5) at 15.)

The jail did not perform a medical intake or screening of Ireland until more than 5

hours after he arrived at the facility. (Jail Intake Form (Docket No. 83-2) at 1.) The nurse

performing the screening did not have Ireland’s hospital records, and thus did not see the

prescription or that Ireland had been diagnosed as a chronic alcoholic. (Id.) Ireland was

assigned to the medical unit so staff could monitor him for alcohol withdrawal. (See id. at

8-9.) And he was in fact monitored, with jail medical staff noting no withdrawal symptoms

through 9:00 pm on August 23. (Id. at 9.)

On August 23, a nurse informed the on-call physician, Defendant Gonzalez, of the

hospital’s recommendation that Ireland take potassium. (Gonzalez Dep. (Docket No. 83-

2) at 52-53; Heavener Dep. at 22.) Gonzalez ordered a blood test to determine whether

potassium was necessary. (Gonzalez Dep. at 52-53.) That test was scheduled for August

24.

In the early morning hours of August 24, however, Ireland became agitated and he

and his cellmate got into an altercation of sorts. Corrections officers responding to the

altercation ultimately tased Ireland multiple times, and punched and kicked him in an effort

to force compliance with handcuffing. (Swartzentruber Rep. (Docket No. 86-3) at 1.) He

was then moved to another cell for observation, but the camera in the cell did not work, so

he was moved to another cell. (Sledzinski Rep. (Docket No. 86-9) at 2.) Plaintiff alleges

that Ireland was unconscious at this point and was dragged to these various cells.

Because Ireland had been so agitated, the nurses on duty, Defendants Heavener and

Bracy, attempted to contact Gonzalez but were unable to reach her. (Bracy Dep (Docket

No. 86-2) at 35-36.) Eventually, they contacted another Corizon physician, who prescribed

valium. (Corizon’s Supp. Mem. (Docket No. 84) at 4.) But shortly after Ireland was put

into the second cell, he became unconscious, and the valium was never administered. Jail

staff performed CPR and used an AED on him, and he was transported to the hospital.

(Heavener Rep. (Docket No. 86-16).)

Doctors at the hospital discovered that Ireland had suffered cardiac arrest, and that

he also had septic shock and multi-organ failure. (See Autopsy Rep. (Docket No. 86-13)

at 1.) Ireland was removed from life support on August 25. Plaintiff contends that the

failure to give Ireland potassium, combined with the tasings and beatings, led to the cardiac

arrest. Defendants contend that Ireland suffered from severe liver and heart disease and

was morbidly obese, and that these conditions led to Ireland’s cardiac arrest.

Plaintiff Thomas Ireland is Gregg Ireland’s father and personal representative of his

estate. Named as Defendants here are Corizon, LLC, the jail’s private healthcare provider,

Adamar Gonzalez-Figueroa, the jail’s physician, Margaret Bracy and Zackary Heavener,

nurses at the jail, Bill Prummell, the Charlotte County Sheriff, Tabbatha Carter, the jail’s

Watch Commander, and six corrections officers, Brandon Swarzentruber, Michael Wiles,

Robert Sledzinski, Alan Schwocho, William Garlick, and Albert Burrows.1 Plaintiff

Amended Complaint raises seven causes of action: three claims of a violation of 42 U.S.C.

§ 1983 for failure to treat against Corizon (Count I), Gonzalez (Count II), and Bracy and

Heavener (Count III); a § 1983 deliberate-indifference claim against Sheriff Prummell

(Count IV); a multifaceted § 1983 claim against the corrections officers (Count V); and

1 Ireland’s claims against another corrections officer, Michael Burnette, were dismissed by

stipulation in October 2019. (Docket No. 80.)

two state-law claims for wrongful death against the Sheriff (Count VI) and Corizon (Count

VII).

DISCUSSION

Summary judgment is proper only if there are no disputed issues of material fact

and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a);

Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The Court must view the evidence

and the inferences that may be reasonably drawn from the evidence in the light most

favorable to the nonmoving party. Burton v. City of Belle Glade, 178 F.3d 1175, 1187

(11th Cir. 1999) (citation omitted).

The moving party bears the burden of showing that there is no genuine issue of

material fact and that it is entitled to judgment as a matter of law. O’Ferrell v. United

States, 253 F.3d 1257, 1265 (11th Cir. 2001). When opposing a motion for summary

judgment, the nonmoving party must demonstrate the existence of specific facts in the

record that create a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

256 (1986). A party opposing a properly supported motion for summary judgment may

not rest on mere allegations or denials and “must do more than simply show that there is

some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. Ltd. v.

Zenith Radio Corp., 475 U.S. 574, 586 (1986) (citation omitted).

A. Corrections Officers’ Motion

Ireland’s § 1983 claim against the individual corrections officers alleges that they

used excessive force on him, failed to intervene to prevent the excessive use of force, and

interfered with Ireland’s medical care.

Corrections officers, like police officers, are protected from suit for damages arising

out of their discretionary duties “‘as long as their actions could reasonably have been

thought consistent with the rights they are alleged to have violated.’” Douglas Asphalt Co.

v. Qore, Inc., 541 F.3d 1269, 1273 (11th Cir. 2008) (quoting Anderson v. Creighton, 483

U.S. 635, 638 (1987)). The purpose of this qualified immunity “is to allow government

officials to carry out their discretionary duties without the fear of personal liability or

harassing litigation, protecting from suit all but the plainly incompetent or one who is

knowingly violating the federal law.” Lee v. Ferraro, 284 F.3d 1188, 1194 (11th Cir. 2002)

(internal quotation marks and citations omitted). To benefit from qualified immunity, the

public official must first prove that he was acting pursuant to his discretionary authority.

Vinyard v. Wilson, 311 F.3d 1340, 1346 (11th Cir. 2002). The burden then shifts to the

plaintiff to establish that a constitutional violation occurred and that the constitutional right

alleged was clearly established at the time of the violation. Id. There seems to be no

dispute that the Defendant officers were acting pursuant to their discretionary authority.

Defendants argue that they did not violate Ireland’s constitutional rights and that, in any

event, the right alleged was not clearly established at the time of the incident.

1. Excessive Force

“The Due Process Clause of the Fourteenth Amendment protects pretrial

detainees . . . from the use of force that ‘shocks the conscience,’” Skelly v. Okaloosa Cnty.

Bd. of Cnty. Comm’rs, 456 F. App’x 845, 847 (11th Cir. 2012) (quoting Danley v. Allen,

540 F.3d 1298, 1306-07 (11th Cir. 2008)). As the Supreme Court has framed it, the inquiry

is “whether force was applied in a good-faith effort to maintain or restore discipline, or

maliciously and sadistically to cause harm.” Wilkins v. Gaddy, 130 S. Ct. 1175, 1178

(2010). Indeed, qualified immunity will not protect an officer from liability for a proven

claim of excessive force, because excessive force requires a showing of maliciousness that

is “‘so extreme that every conceivable set of circumstances in which this constitutional

violation occurs is clearly established to be a violation of the Constitution.’” Skelly, 456

F. App’x at 847 (quoting Johnson v. Breeden, 280 F.3d 1308, 1321-22 (11th Cir. 2002)).

The inquiry is whether the use of force was objectively reasonable under the

circumstances.

[P]roper application [of the objective reasonableness standard] requires

careful attention to the facts and circumstances of each particular case,

including the severity of the [situation] at issue, whether the [individual]

poses an immediate threat to the safety of the officers or others, and whether

he is actively resisting . . . .

Graham v. Connor, 490 U.S. 386, 396 (1989) (citation omitted). These considerations

should be made without regard for the officer’s subjective intent or motivation. Id. at 397.

Swarzentruber was the first corrections officer to enter Ireland’s cell on August 24.

He did so in an attempt to retrieve Ireland’s cellmate’s belongings, including a plastic

“boat” in which detainees sleep. He testified that Ireland refused repeated orders to sit

down, and eventually “tensed up” and took a step towards Swarzentruber. (Heavener Dep.

at 41.) In response, Swarzentruber deployed his taser. (Swarzentruber Report at 1.) When

Ireland then failed to comply with commands to lie flat and put his hands behind his back,

Swarzentruber tased him again. (Id.) Ireland removed one of the taser prongs and sat up

into a kneeling position. (Id.) Other officers arrived in the cell, attempting to force Ireland

to the floor. (Id.) Swarzentruber tased him again, allowing the officers to get one of

Ireland’s hands in a handcuff. When he continued to prevent the officers from gaining

control of his other arm, Swarzentruber tased him another time. (Id.)

Defendant Wiles sat on Ireland’s back in an attempt to get him into restraints.

Ireland lifted Wiles off the ground, and Wiles struck Ireland twice in the lower back.

(Wiles Rep. (Docket No. 86-10) at 1.) Defendants assert that Ireland attempted to spit on

Defendant Burrows and to bite Defendant Schwocho, who used an under-the-jaw pressure

point to prevent Ireland from biting. (Sledzinski Rep. at 1.) Ireland continued fighting as

the officers got his legs into shackles. (Id.) Defendant Sledzinski twice used the drive-

stun function of his taser against Ireland during the shackling. (Id.)

Shortly before officers arrived in the cell with an emergency restraint belt, Ireland

became unresponsive. (Id.) Defendant Bracy, the Corizon nurse, then attempted to get

Ireland’s vital signs, but he came to and kicked at and tried to strike the officers, preventing

Bracy from examining him. (Bracy Dep. at 38.) Ireland then again attempted to spit on

the officers, and they placed him in a spit mask. (Wiles Rep. at 1.) After securing the

emergency restraint belt, the officers carried Ireland to a direct-observation cell. (Id. at 1-

2.) Very soon thereafter, Ireland became unresponsive again, and CPR was performed

until an ambulance arrived. (Id. at 2.)

Plaintiff’s expert opined that all of Ireland’s “resisting” can be explained by the fact

that he was suffering severe alcohol withdrawal, which can include hallucinations and

delirium tremens (DT) seizures.2 (Docket No. 83-4 at 32-33, 43.) Plaintiff cites the May

2019 statement of another inmate, who claims she heard the officers saying that Ireland

was having a seizure,3 and one of the officers, who stated that Ireland was not hitting

anyone but was “flailing” around “like a fish flopping.” (Schwocho Rep. (Docket No. 94-

3) at 4, 5, 10.) Moreover, Plaintiff points out that there were nine or ten officers in Ireland’s

cell, so that any seizure movement he made would have resulted in him touching at least

one of the officers. Finally, Plaintiff alleges that Ireland was unresponsive before the

officers moved him to the direct-observation cell, and he contends that the officers dropped

Ireland several times while moving him to the direct-observation cell.

Plaintiff’s claim is that the officers should have been trained to recognize the

symptoms of severe alcohol withdrawal, specifically DT seizures and hallucinations. Had

the officers been so trained, he contends, they would have known that Ireland was not

resisting or trying to fight them, but was experiencing DT seizures, and they would not

have used force on him.

But this is a failure-to-train claim, not a claim of excessive force. Plaintiff does not

dispute the officers’ accounts that Ireland was kicking and spitting and biting. Rather,

2 Plaintiff contends that the autopsy report confirmed that Ireland was suffering from

delirium, implying that the report states that Ireland was having DT seizures. But at most,

the medical examiner interpreted incident reports as showing that the events began with

Ireland experiencing “increasing agitation and delirium.” (Autopsy Rep. at 9.) This is far

from a finding that Ireland was suffering from DT seizures.

3 Defendants ask the Court to strike the evidence for Plaintiff’s alleged failure to disclose

it during discovery. Because this evidence does not change the Court’s conclusion that

Defendants are entitled to qualified immunity, the Court declines to strike the evidence.

Plaintiff contends that these actions were involuntary on Ireland’s part because of the DT

seizures and hallucinations and that the officers should have known that. In support,

Plaintiff cites Lancaster v. Monroe Cty., 116 F.3d 1419 (1997), overruled on other grounds

by LeFrere v. Quezada, 588 F.3d 1317 (11th Cir. 2009). In Lancaster, a detainee who was

an alcoholic experienced DT seizures and ultimately died from an injury suffered while

seizing. Id. at 1423. The Eleventh Circuit found that the officers on duty at the jail could

be liable under § 1983 because they knew of the detainee’s serious medical needs and were

deliberately indifferent to those needs. Id. at 1425-26. But in Lancaster, the detainee’s

wife and father repeatedly warned jail staff that the detainee was a chronic alcoholic who

would suffer a seizure as he withdrew from alcohol; indeed, they went to the jail to discuss

the detainee’s likely imminent seizures with staff. Id. at 1421-22. Because the officers

knew of the detainee’s serious medical needs and failed to provide for those needs, they

were not entitled to qualified immunity. Id. at 1426-28.

Here, there is no evidence that any of the officers knew or even should have known

of Ireland’s chronic alcoholism, much less that he might suffer from DT seizures. The

Court must review the situation initially from the perspective of a reasonable officer on the

scene, and then individually, to determine whether any officer “had the requisite

knowledge of the seriousness of [Ireland’s] medical needs.” Lancaster, 116 F.3d at 1426.

A reasonable officer is not medically trained and would have viewed Ireland’s undisputed

actions as attempting to attack Swartzentruber, and then resisting the other officers’

attempts to restrain him. Plaintiff has not established that the Defendant officers used

constitutionally excessive force on Ireland.

Moreover, even if Swartzentruber and Schwocho, both of whom were on duty in the

medical unit that evening, knew or should have known that Ireland was an alcoholic who

was experiencing DT seizures, that knowledge cannot be imputed to the remaining

Defendants, who arrived from other units after Swartzentruber reported the first use of his

taser. Plaintiff’s excessive-force claim against the officers is dismissed.

Plaintiff’s claim that the Defendant officers failed to intervene to stop the allegedly

excessive use of force fares no better. “[I]f a[n] [] officer, whether supervisory or not, fails

or refuses to intervene when a constitutional violation such as an unprovoked beating takes

place in his presence, the officer is directly liable under Section 1983.” Ensley v. Soper,

142 F.3d 1402, 1407 (11th Cir. 1998) (quoting Byrd v. Clark, 783 F.2d 1002, 1007 (11th

Cir. 1986)). But such a claim requires proof of excessive force in the first instance, and

there was no such excessive force here. Sebastian v. Ortiz, 918 F.3d 1301, 1312 (11th Cir.

2019). Plaintiff’s failure-to-intervene claim fails.

Plaintiff also bases his § 1983 claim on the officers’ alleged interference with

Ireland’s medical care. This is akin to a deliberate-indifference claim: Plaintiff asserts that

Defendant officers should have known of Ireland’s serious medical needs but either did not

allow him to be treated or delayed his treatment. According to Plaintiff’s version of the

events, Ireland was unresponsive at the time he was taken out of his original cell and moved

to the direct-observation cell. Moreover, Plaintiff contends that Schwocho heard Ireland

make “obnoxiously weird statements” at 11 p.m. and should have known then that Ireland

needed medical care because he was beginning to experience DT.

But Plaintiff has no evidence that a reasonable officer in Schwocho’s position, or in

the position of the other officers, would have known that Ireland needed medical care.

Plaintiff offers only speculation: the officers allegedly knew that Corizon ostensibly

understaffed the jail and performed ineffective intake, so they should have known that the

intake form, which did not allude to Ireland’s chronic alcoholism, was incorrect. Thus,

they should have realized that Ireland was a chronic alcoholic who would likely experience

DT. But the officers were far from deliberately indifferent to Ireland’s medical needs, nor

did they interfere in any way with his medical care. Indeed, they attempted to involve

medical staff from the beginning of the incident. Nurse Heavener went to Ireland’s cell

with Swartzentruber and witnessed Ireland’s aggressive stance toward Swartzentruber.

Although it is understandable that Plaintiff would like to change the circumstances

surrounding his son’s death, there is simply no evidence to support all of the speculative

leaps his claim requires. Plaintiff’s interference-with-medical-care claim fails.

B. Sheriff’s Motion

1. § 1983 Claim

Plaintiff’s § 1983 claim against Sheriff Prummell are brought against him in his

official capacity only. (Am. Compl. ¶ 11.) Thus, it is as if Plaintiff is bringing suit against

the municipal entity, Charlotte County. See Kentucky v. Graham, 473 U.S. 159, 165

(1985) (a suit against government officer in his official capacity is the same as a suit

“against [the] entity of which [the] officer is an agent” (quoting Monell v. Dep’t of Social

Servs., 436 U.S. 658, 690 n.55 (1978))). A public entity cannot be held liable under

theories of respondeat superior or vicarious liability for violations of § 1983. Woody v.

Cronic, 401 F. App’x 509, at *2 (11th Cir. 2010). Rather, a public entity may be sued

under § 1983 only where the allegedly unconstitutional action “implements or executes a

policy statement, ordinance, regulation, or decision officially adopted and promulgated by

that body’s officers” or where the alleged action is “pursuant to governmental ‘custom.’”

Monell, 436 U.S. at 690-91.

Plaintiff raises multiple instances of alleged deliberate indifference against the

Sheriff. (Am. Compl. ¶¶ 148-57.) He alleges that the Sheriff: knew that Corizon had a

pattern of abuse at the jail; failed to train, supervise, or discipline corrections officers to

ensure they did not violate inmates’ constitutional rights; employed corrections officers

who were unfit and “endorse[d] a code of silence at the Jail” (id. ¶ 150); knew that some

corrections officers responded to inmates with medical issues using violence, resulting in

a history of inmate injury and death; short-staffed the jail “so that jail officers were over-

stressed and more likely to act violently and were less fully supervised” (id. ¶ 154); “turned

a blind eye toward unqualified or marginally [] qualified officers who pick fights with

inmates or use disturbances as training opportunities or opportunities to take out work-

related frustrations” (id. ¶ 155); and ignored “acts of gratuitous violence” by corrections

officers; and failed to train corrections officers that “long, repeated Taser shocks were

associated with inmate deaths, . . . or were not supervised to care about such dangers.” (Id.

¶ 157.)

Again, however, Plaintiff has no evidence to support the majority of these

contentions. There is no evidence, for example, that officers at the jail had previously

responded with violence to inmates with medical issues, and no evidence that these officers

caused inmates injury or that the violence resulted in death. And Plaintiff’s claim against

the Sheriff requires him to establish a policy or custom.

A policy is a decision that is officially adopted by the municipality, or created

by an official of such rank that he or she could be said to be acting on behalf

of the municipality. A custom is a practice that is so settled and permanent

that it takes on the force of law.

Sewell v. Town of Lake Hamilton, 117 F.3d 488, 489 (11th Cir. 1997). Plaintiff has no

evidence whatsoever of any policy or custom to support his allegations. At most, he points

to isolated incidents either long-removed from the incident in question, involving other

officers, or involving facilities other than the Charlotte County Jail. His evidence is

insufficient to establish any policy or custom.

Plaintiff also contends that the Sheriff may be liable for failure to train corrections

officers to respond to a detainee experiencing DT. A claim of inadequate training will lie

under § 1983 “where a municipality’s failure to train its employees in a relevant respect

evidences a ‘deliberate indifference’ to the rights of its inhabitants [such that the failure to

train] can be properly thought of as a city ‘policy or custom’ that is actionable under

§ 1983.” Sewell, 117 F.3d at 489-90 (quoting City of Canton v. Harris, 489 U.S. 378, 389

(1989)). To establish deliberate indifference on the part of a policy-maker such as the

Sheriff, “a plaintiff must present some evidence that the municipality knew of a need to

train and/or supervise in a particular area and the municipality made a deliberate choice

not to take any action.” Gold v. City of Miami, 151 F.3d 1346, 1350 (11th Cir. 1998).

There can be no municipal liability when no pattern of incidents has put the municipal

authorities on notice of a need to train. Popham v. City of Talladega, 908 F.2d 1561, 1564-

65 (11th Cir. 1990).

Plaintiff has no evidence of prior incidents similar to Ireland’s situation. Thus, there

was no deliberate indifference, and Plaintiff’s failure-to-train claim against the Sheriff must

be dismissed.

2. Wrongful Death

Plaintiff also seeks to hold the Sheriff liable under state law for wrongful death.

This is a negligence claim, contending that the Sheriff negligently trained, supervised,

hired, retained, and disciplined corrections officers, resulting in Ireland’s death. Plaintiff

also asserts that the Sheriff “did not ensure that there was a comprehensive plan for

prisoners suffering substance withdrawal” or a plan “for timely emergency transport of

medically needy prisoners to a hospital.” (Am. Compl. ¶¶ 178-79.)

But as noted above, Plaintiff has no evidence regarding any negligent failure to train

and offers no additional evidence of the other alleged failures. Other than arguing that the

Sheriff did not have appropriate plans in place, he offers no evidence regarding the

procedures the jail actually had in place, how those procedures were inadequate, and most

importantly, how any such allegedly deficient procedure caused Ireland’s death. Indeed,

no expert has testified that any delay in getting Ireland to the hospital caused his death.

Plaintiff’s state-law claim against the Sheriff fails.

C. Corizon’s Motion

1. § 1983

A claim against Corizon and the individual Corizon Defendants (Gonzalez-

Figueroa, Bracy, and Heavener) under § 1983 requires Plaintiff to establish that these

Defendants were deliberately indifferent to Ireland’s serious medical needs. Thus, he

“must show an objectively serious medical need and show that ‘the prison official’s

response to that need was poor enough to constitute an unnecessary and wanton infliction

of pain.’” Fields v. Corizon Health, Inc., 490 F. App’x 174, 182 (M.D. Fla. 2012) (quoting

Bingham v. Thomas, 654 F.3d 1171, 1176 (11th Cir. 2011)). Under the principles espoused

in Monell, Corizon can be liable for deliberate indifference only if its custom or policy

caused the constitutional injury. Id. “A policy may be deliberately indifferent if it is

facially unconstitutional or where the policy is implemented ‘with deliberate indifference

as to its known or obvious consequences.’” Id. (quoting McDowell v. Brown, 392 F.3d

1283, 1291 (11th Cir. 2004) (quotations omitted)).

Plaintiff raises several policies or practices that he contends constitute deliberate

indifference as to Corizon. He claims that inmate screening and intake were

constitutionally inadequate, that Corizon staff at the jail routinely failed to give inmates

required medication, that medical records were inadequate or routinely falsified, that

Corizon failed to have a full-time physician on staff at any of its jails, that Corizon routinely

short-staffs its jails, and that Corizon knew or should have known that all of its cost-cutting

measures—short-staffing, not having a physician on staff, and using LPNs rather than

RNs—would lead to adverse outcomes such as Ireland’s death.

But as Corizon points out, Plaintiff has little evidence of these supposed policies or

practices. Indeed, he has no evidence that there was a policy or practice of inadequate

intake screening at the jail, or that medical records were inadequate or falsified. He notes

that Defendant Heavener changed the time in a progress note on Ireland’s chart from 4:00

am to 3:20 am. But this change reflected the actual time of the incident, rather than the

time Heavener filled out the chart. And even if the time change was improper, a single

instance does not evidence a policy or practice so widespread as to give rise to Monell

liability. Nor does Plaintiff have evidence of a policy of short-staffing the Charlotte County

Jail in particular, or that there was cost-cutting at the jail. His evidence in this regard

consists solely of criticisms of Corizon’s policies in other prison systems, not in the

Charlotte County Jail. His § 1983 claims based on these alleged policies must be

dismissed.

Plaintiff’s contention that Corizon did not give inmates medication relies almost

solely on a newspaper investigative series regarding medical complaints at the jail. (Pl.’s

Opp’n Mem. (Docket No. 94) at 11 n.9.) This investigative series included an article

contending that jail medical staff, and specifically two physicians not involved in this case,

did not give several inmates their prescription mental health medication. Inmates say they

were denied medical care, Port Charlotte Sun, July 8, 2019, https://www.yoursun.com/

charlotte/news/inmates-say-they-were-denied-medicine/article_90b7f5ce-66c4-11e9-acc9

-ff8aa6e6dcd6.html (last visited Dec. 30, 2019). Another article in the series noted that

Ireland died after allegedly not receiving required medication.

But even if a newspaper article was admissible evidence, it does not establish any

custom or practice sufficient to impose liability under Monell. This is a purposely high

bar. Gold, 151 F.3d at 1351 n.10. Thus, a claim that a policy or custom is unconstitutional

must show that the custom or policy is “a practice . . . so settled and permanent that it takes

on the force of law.” Sewell, 117 F.3d at 489. An allegedly unconstitutional policy or

custom must be “a persistent and wide-spread practice” that may be “attributed to the

governing body of the [corporation].” Depew v. City of St. Marys, 787 F.2d 1496, 1499

(11th Cir. 1986). And a § 1983 plaintiff must have “proof that a specific policy caused a

particular [constitutional] violation.” Gold, 151 F.3d at 1351 n.10. Plaintiff does not have

the requisite proof here: he can point to no other instance where the failure to give an inmate

a medication such as potassium caused the inmate to experience a medical emergency.

Corizon’s Motion as to Plaintiff’s § 1983 claims is granted.

Similarly, Plaintiff has no evidence that any of the individual Corizon Defendants

ignored Ireland’s objectively serious medical need. He argues that intake and screening

were inadequate, but none of the individual Defendants was involved with the intake and

screening, so these Defendants were not on notice of any issue regarding Ireland’s health.

And Gonzalez’s decision to do a blood test before giving Ireland the prescribed potassium

was based on her medical opinion and does not constitute deliberate indifference.

Plaintiff is correct that Ireland had an objectively serious medical need on August

24, when Defendants Heavener and Bracy became involved. He contends that their failure

to have Ireland transported to the hospital for more than an hour after the altercation began

was deliberate indifference. But he acknowledges that, during that hour, Heavener and

Bracy were attempting to reach Gonzalez on the phone. This is not deliberate indifference.

The fact that Gonzalez did not answer the phone cannot make Heavener and Bracy liable.

Plaintiff’s § 1983 claims against the individual Corizon Defendants must be dismissed.

2. Wrongful Death

Corizon argues that Plaintiff’s claim against it for alleged negligence is a medical

negligence claim that, under Florida law, requires pre-suit notice, among other

prerequisites. Fla. Stat. § 766.106(2). Plaintiff did not provide the required pre-suit notice.

He argues that the claim is one for simple negligence, but the cases he cites do not support

this argument. Rather, it is clear that a negligence claim against a medical provider for

either failing to provide medical care or providing inadequate care is a medical negligence

claim that falls within the ambit of Florida’s medical-malpractice statute. See id.

§ 766.106(1)(a) (The presuit screening requirements apply to any claim “arising out of the

rendering of, or the failure to render, medical care or services.”) Because Plaintiff did not

comply with the statute’s requirements, his negligence claim against Corizon must be

dismissed.

CONCLUSION

Plaintiff has failed to come forward with evidence sufficient to raise a genuine issue

of material fact on any of his claims. Accordingly, IT IS HEREBY ORDERED that:

1. The Corizon Defendants’ Motion for Summary Judgment (Docket No. 84) is

GRANTED;

2. The Sheriff’s Motion for Summary Judgment (Docket No. 85) is

GRANTED; and

3. Defendant Deputies’ Motion for Summary Judgment (Docket No. 86) is

GRANTED.

The Clerk shall enter judgment accordingly, terminate all remaining deadlines as

moot, and close the file.

Dated: January 23, 2020

s/Paul A. Magnuson

Paul A. Magnuson

United States District Court Judge