Santiesteban v. M. Delalamon, MLP

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

OCALA DIVISION

DARVIS SANTIESTEBAN,

Plaintiff,

v. Case No. 5:18-cv-15-Oc-32PRL

MR. MONTALVO and

MR. M. OCASIO,

Defendants.

ORDER

I. Status

Plaintiff is a federal prisoner proceeding on a Second Amended Complaint

(Doc. 32). He sues Mr. Montalvo, an Assistant Health Services Administrator;

and M. Ocasio, now-former Warden of Coleman Correctional Complex.1 Plaintiff

alleges that he was injured while playing softball on the recreation yard, and

Defendants were deliberately indifferent to his resulting serious medical needs.

He seeks monetary damages as relief, and requests that he receive no

“repercussions for filing this suit.”

1 The Court previously dismissed the claims against M. Delalamon and all

official capacity claims against Defendants Montalvo and Ocasio. See Order

(Doc. 37).

Before the Court are the parties’ cross-motions for summary judgment

and respective responses. See Plaintiff’s Motion for Summary Judgment (Doc.

45); Defendants’ Opposition to Plaintiff’s Motion for Summary Judgment and

Cross-Motion for Summary Judgment (Doc. 49); Plaintiff’s Reply and Response

to Defendants’ Opposition and Cross-Motion for Summary Judgment (Doc. 52).2

The Motions are ripe for review.

II. 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

summary judgment motion, the Court views “the evidence and all reasonable

2 The Court advised Plaintiff of the provisions of Federal Rule of Civil Procedure

56 and the consequences of granting such a motion. See Order (Doc. 20).

inferences drawn from it in the light most favorable to the nonmoving party.”

Hornsby-Culpepper, 906 F.3d at 1311 (quotations and citation omitted).

“[W]hen the moving party has carried its burden under Rule 56(c), its

opponent must do more than simply show that there is some metaphysical

doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio

Corp., 475 U.S. 574, 586 (1986) (footnote and citation omitted); see Winborn v.

Supreme Beverage Co. Inc., 572 F. App’x 672, 674 (11th Cir. 2014) (per curiam)

(“If the movant satisfies the burden of production showing that there is no

genuine issue of fact, ‘the nonmoving party must present evidence beyond the

pleadings showing that a reasonable jury could find in its favor.’” (quoting

Shiver v. Chertoff, 549 F.3d 1342, 1343 (11th Cir. 2008)). “‘A mere scintilla of

evidence supporting the opposing party’s position will not suffice; there must be

enough of a showing that the jury could reasonably find for that party.’” Loren

v. Sasser, 309 F.3d 1296, 1302 (11th Cir. 2002) (quoting Walker v. Darby, 911

F.2d 1573, 1577 (11th Cir. 1990) (internal quotations omitted)).

“The principles governing summary judgment do not change when the

parties file cross-motions for summary judgment. When faced with

cross-motions, the Court must determine whether either of the parties deserves

judgment as a matter of law on the undisputed facts.” T-Mobile S. LLC v. City

of Jacksonville, Fla., 564 F. Supp. 2d 1337, 1340 (M.D. Fla. 2008).

III. Plaintiff’s Second Amended Complaint3

Plaintiff was playing softball on the recreation yard at Coleman Federal

Correctional Complex on August 30, 2015, when he fell and injured his right

knee and left upper arm. He was sent to the health clinic and seen by F. Dudas,

EMT. His injury was initially diagnosed as an upper arm contusion by

Delalamon. After multiple sick-call visits, “the correct diagnos[is] was

uncovered by another physician[’s] assistant.” Plaintiff claims that his “injury

initially required adequate medicine and a simple surgery.” He states that on

November 30, 2015, an “[o]rthopedic doctor informed [him] . . . that[] due to the

length of time that had passed since the injury, his injury had escalated from

‘normal’ to ‘chronic,’ and he would now need two surgeries to repair his injury

resulting with handicap, pain and discomfort.” On December 7, 2015,

“[P]laintiff was approved for the surgeries,” but “the surgeries were not done

until February 27, 2017. Due to the delay, [ P]laintiff had to endure excruciating

pain and discomfort.” Plaintiff claims that “[Defendant] Montalvo and

[Defendant] Ocasio both played a part in the deficient medical treatment

[P]laintiff received by failing to arrange and administrate surgery for [ P]laintiff

in a timely manner.”

3 The Court primarily focuses on the allegations against Defendants Ocasio and

Montalvo.

Plaintiff claims that Defendants Montalvo and Ocasio “failed to take

reasonable measures to send [ P]laintiff to get the surgeries he needed after

they were approved . . . causing [ P]laintiff to endure prolong[ed] excruciating

pain and discomfort, which was also substantially harmful to [ P]laintiff’s

health.” He also “continues to experie[nc]e residual weakness in the strength of

his tricep[] tendon, numbness and lack of mobility as well.” Plaintiff alleges that

Defendants Montalvo and Ocasio “both sat on the committee that approves and

determine[s] ‘when’ and ‘where’ such treatments . . . are performed,” and that

“[t]hey were both made aware of the circumstances of the case in order to

approve the procedure[.]” He states that he “shared the complaint regarding the

medical treatment he was receiving with both[ Defendant] Montalvo and

[Defendant] Ocasio separately numerous times, and each time they would

spin[4] [P]laintiff.”

IV. Parties’ Summary Judgment Positions

Plaintiff reiterates his factual allegations and argues that the record

shows he needed surgery, but he did not timely receive the surgery and thus

suffered severe pain for 417 days. See Doc. 45 at 1-3. During that time, he

asserts that he “communicated to Defendants Montalvo and Ocasio about his

severe pain and the delay in receiving his surgery,” but they failed to take any

4 Plaintiff defines “spin” as: “avo[i]ding issue, misdirecting, fail to address, or

fail to deal with.”

action. Id. at 5. In support of his contention that he communicated his situation

to Defendants, he cites to two emails he sent. Id. at 6 (citing id. at 29-30). The

first email is dated January 3, 2016, and it was sent to “Health Services LOW.”

Id. at 29. Plaintiff addressed the email to Defendant Montalvo and stated:

I went to sick call because the medication I was taking

was not doing me any good because I was still in pain

because of my ruptured triceps. Medical staff changed

my medication from Naproxen to Meloxicam 15 mg

one a day and these medication is also not working for

the extreme pain I have in my arm. Please help me

with these issue[.] Sir I cant take these pain anymore.

I have been dealing with these issue seen [sic] my

accident acured [sic] in August 2015. Please help me.

Thank you.

Id. The second email, dated April 29, 2016,5 was sent to the Warden and states:

Sir I have a big issue and I don’t know who to go to

anymore. I have gone to everybody and nobody can

help me or nobody want to give me answers. I had an

accident here on the softball field August 30 2015. I

fell and after the MRI we realized I had ruptured my

tricep. Ok after time had passed by I had to file a BP-

8, 9, 10 and 11 because I was not being taken care of[]

and the situation worsened because of the time that

has passed by and the lack of medical attention. I now

am designated to a different institution for my

operation. Well I have been designated for 2 months

now and I am still here. I went today to medical to find

answers in why I am still here and not transferred yet.

I was told [b]y the medical staff today that a hold was

put on me and it was by mistake but these mistake has

delayed the time for my operation. Please sir I need for

5 Plaintiff states in the Motion that he sent the email on May 9, 2016. Doc. 45

at 3. However, the exhibit shows that Plaintiff sent the email on April 29, 2016,

and he received the response on May 9, 2016.

you to take action on these situation because this is

to[o] much. If I hadn’t gone today to sick call 4-29-2016

I would have never none [sic] why I am not being

transfer[r]ed and taken care of[]. The medical staff

told me that the person who takes care of my issue is

not here exc. On my BP-10 I was told by Regions that

if the issue wasn’t taken care of[], to appeal to you the

Warden of the institution. But before I take those

measures I write to you to see if you can resolve the

problem. Thank you for your time.

Id. at 30 (some internal formatting modified). As a result, Plaintiff asserts that

he now has “permanent loss of range of motion and quality of life[] and recurring

pain.” Id. at 5. Plaintiff requests summary judgment in his favor and an award

of $300,000 along with costs in the amount of $500. Id. at 7.

Defendants counter Plaintiff’s assertions, arguing that “the

comprehensive medical records, the submitted pleadings, and supporting

affidavits clearly establish that neither Defendant is a medical professional and

neither Defendant was directly involved in Plaintiff’s medical care.” Doc. 49 at

10.6 Defendants further assert that their duties were unrelated to medical care

6 Defendants also argue that they are entitled to judgment as a matter of law

because Plaintiff asserts claims against them in their official capacities only.

Doc. 49 at 14-15. Defendants’ request in this regard is denied as moot, because

the Court already dismissed those claims. See Order (Doc. 37). Although

Plaintiff only checked “official capacity” on the complaint form, considering his

pro se status and his allegations, it is clear he intended to sue Defendants in

their individual capacities. See Doc. 52 at 5, 11-12; see also Young Apartments,

Inc. v. Town of Jupiter, FL, 529 F.3d 1027, 1047 (11th Cir. 2008) (explaining

that “[w]hen it is not clear in which capacity the defendants are sued, the course

of proceedings typically indicates the nature of the liability sought to be

imposed,” and in considering the “course of proceedings,” courts look to “the

and treatment of inmates. Id. at 11. Defendant Ocasio avers that he did not

participate in or have any authority over the Utilization Review Committee;

Defendant Montalvo avers that he “does not recall being involved in any

Utilization Review Committee decisions regarding Plaintiff’s care, but the final

authority of the committee rests with the Clinical Director and Defendant

Montalvo could not have overruled any such decision.” Id. at 11-12. In support,

each Defendant submitted a declaration. They also submitted a declaration by

Hector Lopez, M.D., and a declaration by Captain Damien Avery, DPT, OCS,

both of which include medical records from before and after Plaintiff’s surgery.

In his Declaration, Defendant Ocasio states that, as the Warden of

Coleman FCC, his “responsibilities included administrative and organization

control of the institution.” Doc. 49-1 at 2. He avers that his “job consisted of

supervisory and managerial related responsibilities of personnel in order to

maintain the safety and security of the institution, staff, and the inmates,” but

he did “not have any input or decision making power when it c[a]me[] to patient

care and other medical decisions.” Id. Rather, such decisions were “left to the

Clinical Director and other medical personnel.” Id. He further asserts that he

did “not participate in the Utilization Review Committee,” and the Clinical

nature of plaintiff’s claims, requests for compensatory or punitive damages, and

the nature of any defenses raised in response to the complaint, particularly

claims of qualified immunity which serve as an indicator that the defendant

had actual knowledge of the potential for individual liability”).

Director has “final authority for all URC decisions,” which Defendant Ocasio

could not overrule. Id. Defendant Ocasio avers that “[w]hen and how the Inmate

receives the care from outside consults that have been approved[] is also

handled by the medical professionals” and that he did “not participate in the

medical care of an inmate.” Id. at 3. He asserts that if he were contacted by an

inmate or their families regarding the inmate’s medical care, he would “inform

them that [he is] not a medical professional, and that they should address this

concern with the medical personnel or their primary care physician as soon as

possible.” Id. He additionally would “forward their requests to the appropriate

medical staff, but [he could not] control how an inmate is triaged, or how and

what type of medical treatment they receive, as [he is] not a medical

professional.” Id. He states that he “do[es] not recall speaking with [Plaintiff]

in person about his medical treatment,” but even if he did, he “would have

referred him to the appropriate medical staff.” Id. Finally, Defendant Ocasio

affirms that the response to Plaintiff’s administrative remedy, in which

Plaintiff advised that he was experiencing pain and raised a concern about a

delay in receiving surgery, was not signed by him but by another warden in his

absence. Id. (referring to Doc. 49-1 at 5).

According to Defendant Montalvo, he served “as an Assistant Health

Services Administrator (AHSA) at FCC Coleman, Low from approximately

June 2012 to October 31, 2017,” and was responsible for “overseeing the day-to-

day operations of the Health Services Department, which involved managing

and directing the activities of a multi-disciplinary team of health care

professionals responsible for medical, dental, and allied health services to the

inmate population, in collaboration with the Assistant Health Administrator

and the Clinical Director.” Doc. 49-2 at 2. He asserts that his “responsibilities

were primarily administrative in nature” and he “did not participate in inmate

medical care” or “have input as to the type and timing of treatment inmates

received.” Id. “These decision[s] are the sole responsibility of the medical

providers, to include Nurses, Emergency Medical Technicians (EMT), Mid-

Level Practitioners (MLP), and Physicians. Each of these medical personnel

were directly supervised by the Clinical Director.” Id. If an inmate asked him

“about their non-emergency medical care, [his] custom and practice was to

explain to them that [he is] not a medical provider and that they should follow

up during sick call or with their primary care physician as soon as possible.” Id.

He states that “[t]he URC is chaired by the Clinical Director, and the Clinical

Director is the final authority for all URC decisions,” which “cannot be

overturned by the Warden, Associate Warden, HSA, AHSA, or primary care

physician.” Id. at 3. Defendant Montalvo “do[es] not recall being involved in a

URC decision regarding the medical treatment of [Plaintiff],” but regardless, he

“would not have any power to make a clinical decision as to [Plaintiff’s] medical

care and/or actual treatment.” Id. As to Plaintiff’s January 3, 2016, email

addressed to Defendant Montalvo, he states:

I have reviewed the January 3, 2016, email Inmate

Santiesteban attached to his Motion for Summary

Judgment as Exhibit 14. It appears he sent this email

to the general inmate to staff Health Service email box

and addressed this to Health Services LOW as a

Request to Staff. He added my name to the body of the

email expressing concern about a change of his pain

medication. At that time inmates did not have direct

access to individual staff members via email. I did not

manage this general email account. My recollection is

that emails sent to this address were checked by

administrative staff, who would forward the emails to

health services or the individual for possible

resolution.

I do not remember receiving the January 3, 2016

email. In the email he is seeking a change in

medication. In instances such as this, I would refer the

inmate to his primary care physician, as well as

referring them to sick call so that they could speak

with a health care provider. I did this in these

instances because I did not provide or participate in

medical care or medical decisions, and the prescribing

of medication is a health care decision. Reviewing his

medical records, he saw a medical provider several

times after this email. There were many opportunities

for him to have requested a change in medication from

qualified personnel.

Id. Finally, Defendant Montalvo avers that he “was not personally involved in

the medical care of [Plaintiff],” nor did he “direct medical staff regarding

[Plaintiff’s] medical treatment.” Id.

Dr. Lopez, who served as the Clinical Director at FCC Coleman from 2014

to 2016 submitted the following Declaration:

1. I am currently employed by the Federal Bureau of

Prisons as the Southeast Regional Physician and

have been since August 2016. My duties and

responsibilities include providing medical care to

inmates at institutions in the Southeast Region

that may need additional medical assistance. In

addition, I frequently review the treatment

provided by other medical staff within the region

and also in some cases review requests for certain

procedures to be performed. From 2014 to 2016, I

served as Clinical Director at the Coleman Federal

Correctional Complex (FCC Coleman). I have been

employed by the Federal Bureau of Prisons for

approximately 14 years.

2. As part of my duties, I provide medical care to the

inmate population at various institutions within

the Southeast Region. I have access to documents

and electronic data created and/or maintained by

the Federal Bureau of Prisons (“Bureau” or “BOP”).

These records are made at or near the time of the

occurrence of the matters set forth by, or from

information transmitted by, a person with

knowledge of the relevant matters.

3. I have reviewed the Complaint filed by Inmate

Darvis Santiesteban, Register Number 34129-379,

as well as his medical records. The medical records

indicate that since he transferred to FCC Coleman,

the inmate was seen by on-site medical staff for

evaluation of a pre-existing pain in his elbows as

well as a torn left triceps.

4. In addition to the treatment of symptoms and pain

management, Inmate Santiesteban’s left elbow was

imaged on multiple occasions, to include an x-ray

on September 4, 2015, revealing no acute injury,

and another on September 25, 2015 following a fall

on his left elbow that day. The Utilization Review

Committee (URC) approved an MRI, which

occurred on approximately October 10, 2015, that

revealed a rupture of the distal triceps.

5. In September 2015, the URC approved a request for

an orthopedic consult. After examining Inmate

Santiesteban on November 30, 2015, the consulting

specialist declined to perform the recommended

surgery as outside her area of expertise and

suggested the inmate see a shoulder/elbow sub-

specialist. In December 2015, the URC referred the

request for Inmate Santiesteban’s consult with a

sub-specialist to Region Review. When the

requested consult had not been approved, I referred

Plaintiff to a BOP orthopedic surgeon and physical

therapist for consult in February 2016. In May

2016, a second specialist declined to perform the

recommended surgery as outside her scope of

expertise.

6. During this time, medical staff submitted requests

to have Inmate Santiesteban transferred to Federal

Medical Center Butner (FMC Butner) to address

his medical needs. The transfer was approved on

March 2, 2016. Inmate Santiesteban’s surgical

classification was designated as a routine-urgent,

meaning inmates with more serious concerns would

be given bed space before him.

7. On June 10, 2016, a clinical note indicates bed

space is available at FMC Butner, and the inmate

transfer was approved.

8. Inmate Santiesteban’s medical records reveal that

his triceps injury was properly evaluated and he

received medically appropriate care. The records

also indicate Inmate Santiesteban received

diagnostic imaging when necessary and his injury

was appropriately diagnosed. As well, he was

appropriately sent to two outside specialists for

evaluation; although, as previously stated, the

specialists were unable to perform the surgery.

9. In addition to the medical treatment he received,

Inmate Santiesteban’s subjective complaints of

pain were appropriately managed. He was

primarily given Naproxen for his pain

management, but when he let staff know the

Naproxen was not effective, he was provided a

different medication to alleviate his pain.

10. Although the surgery did not occur as quickly as

Inmate Santiesteban wanted, a successful surgical

intervention was performed. There is no

documented medical evidence indicating that

medical staff ignored his medical needs or that they

intentionally or unnecessarily delayed his surgery.

The medical records indicate that Inmate

Santiesteban made a full recovery following

surgery to repair his left triceps and follow-up

physical therapy.

11. The URC is chaired by the Clinical Director and all

final medical decisions are approved by the Clinical

Director. In this instance, the URC approved

Inmate Santiesteban’s visits to the outside

specialists and requested his transfer to FMC

Butner. Each of these actions were done in

accordance with approved policies and procedures.

Doc. 49-3 at 1-3.

The final Declaration submitted by Defendants is the Declaration of

Captain Damien Avery, DPT, OCS. He avers as follows:

1. I am currently employed by the United States

Government, Federal Bureau of Prisons, as a

Physical Therapist Orthopedic Specialist at the

Federal Medical Center (FMC) Butner, in Butner,

North Carolina. As a Physical Therapist

Orthopedic Specialist, my responsibilities include

assisting the orthopedic surgeon in managing case

load, providing patient care, and acting as liaison

between rehabilitation & orthopedics. I have been

employed by BOP since 1998 as a physical

therapist, with the exception of 2003-2005, when I

attended seminary school. I worked at FMC

Carswell, Texas from 1998-2003, FMC Butner for

almost the remainder of my current employment

with BOP; from March 2007 to September 2008, I

left FMC Butner briefly to open a physical therapy

clinic at the Federal Correctional Center- Tucson.

2. I have a master’s and a doctorate from the US

Army-Baylor University Program for Physical

Therapy, awarded in 1998 & 2007 respectively. I

am board certified in orthopedic physical therapy

since 2002.

3. As part of my duties, I have access to documents

and electronic data created and/or maintained by

the Federal Bureau of Prisons. These records are

made at or near the time of the occurrence of the

matters set forth by, or from information

transmitted by, a person with knowledge of the

relevant matters.

4. Inmate Darvis Santiesteban, Registration Number

34129-379, arrived at FMC Butner on August 2,

2016. As part of the orthopedic medical team, I

personally participated in Inmate Santiesteban’s

medical care and am familiar with the treatment

provided. I saw him on a regular basis prior to the

February 27, 2017 surgery of his left triceps and

followed him after the surgery to ensure he followed

medical recommendations and was progressing in

his recovery. I have also re-reviewed Inmate

Santiesteban’s medical records with specific regard

to the medical treatment provided with respect to

his left triceps at Butner FMC.

5. The medical staff monitored Inmate Santiesteban’s

condition from the time of his arrival until the date

of his scheduled surgery. He was provided pain

medication when requested and medically

necessary.

6. FMC initially scheduled his left triceps surgery for

December 5, 2016. [Plaintiff] initially presented

with a complex picture not entirely consistent with

a simple tricep tendon rupture. Consequently,

repeat plain films, MRI, nerve conduction studies,

and a second opinion from a Hand Surgeon were

necessary before surgical scheduling could be

completed. The surgery then had to be postponed

when the Inmate was placed in the Special Housing

Unit after he was involved in an altercation with

another inmate on November 30, 2016.

7. His surgery was rescheduled for February 27, 2017,

and performed with no complications.

8. Inmate Santiesteban’s post operation care

consisted of regular follow-up appointments with

the orthopedic team (one physician, two physician

assistants & one physical therapist), and

physical/occupational therapy appointments in

order to improve the overall functionality and

strength of the left arm.

9. Medical records indicate Inmate Santiesteban

received timely and appropriate medical care to

include pain medication for pain management. His

records indicate that he was a participant in these

medical decisions as he specifically requested to

discontinue narcotics for pain management, and

instead was provided Tylenol to manage his pain.

10. His cast was removed on April 14, 2017, and his

physical/occupational therapy appointments were

scheduled.

11. His recovery plan consisted of the initial casting,

then splinting of his surgically repaired arm. Once

the cast was removed he started his physical

therapy program. This program consisted of

progressive range of motion exercises (passive,

active and active assisted), strengthening exercises

(isometric and isotonic resistive), and stretching

with heat.

12. Inmate Santiesteban’s medical records reveal that

on May 26, 2017, during an orthopedic follow-up, he

reported to the orthopedic surgeon that he was not

feeling any pain and he was not experiencing any

problems.

13. Medical records indicate that approximately a

month later on June 30, 2017, he informed clinical

staff that he did not have any functional limitations

and demonstrated for staff that he had strength in

his arm by doing body weight exercises with no

pain. He asked staff if he could have stronger

therabands to continue to strengthen his arm.

14. Inmate Santiesteban successfully completed his

physical therapy for []his left triceps. He was able

to achieve, what can be best described as, a full

recovery. He has attained full function of his arm

with no deficits in his range of motion, no pain, no

lack of functionality; and no deficits in strength.

15. Any delay alleged in Inmate Santiesteban’s surgery

on his left triceps did not have an effect on the

result of the surgery and did not impair the

successful recovery of functionality and strength in

Inmate Santiesteban’s arm. Additionally, Inmate

Santiesteban has stated he was so pleased with the

surgery and recovery that he requested to have

surgery of his right elbow and right knee.

Doc. 49-4 at 2-4.

In Plaintiff’s response, he asserts that he “communicated with both

Defendants Ocasio and Montalvo by email and in person, during mainline.” Doc.

52 at 2. He claims that “[a]ll electronic messages sent to Health Services go to

the AHSA,” which at the relevant time was Defendant Montalvo. Id. He further

states he “communicated with Defendant Ocasio on several occasions, by email

or in person, regarding his medically necessi[t]ated transfer and his severe

pain.” Id. He additionally asserts that “[t]he delay in receiving medically

necessi[t]ated surgery and the severe pain Plaintiff suffered caused him to

suffer severe depression and was seen by Psychology Services.” Id. at 3. He

argues that because he brought his concerns regarding the lack of adequate

medical treatment to Defendants’ attention, they were under a “duty to

investigate and/or ensure Plaintiff was receiving mandated adequate medical

care.” Id. at 9; see id. at 10-11.

Moreover, Plaintiff attacks the authenticity and accuracy of some of the

documents submitted in support of Defendants’ position, and he claims that

Defendants may have violated his right to privacy by filing medical records that

are not relevant to the issues in this case. See Doc. 52 at 3, 4, 5-8.7 Plaintiff

7 One document Plaintiff takes issue with is a Utilization Consult Review Case

Review Decision dated December 7, 2015. One copy shows that his request for

an elbow and shoulder surgeon was approved (Doc. 52 at 25) while another copy

has a handwritten note saying “error” and “referred to Region. New letter

resent” (id. at 26). It appears that the first copy was sent in error, and the second

requests entry of summary judgment in his favor, but also “renew[s] his request

for appointment of counsel.” Id. at 13.8

V. Analysis

“To prevail on [a] § 1983 claim for inadequate medical treatment, [the

plaintiff] must show (1) a serious medical need; (2) the health care providers’

deliberate indifference to that need; and (3) causation between the health care

providers’ indifference and [the plaintiff’s] injury.” Nam Dang by & through

Vina Dang v. Sheriff, Seminole Cty. Fla., 871 F.3d 1272, 1279 (11th Cir. 2017)

(citation omitted).

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. In the

alternative, a serious medical need is determined by

whether a delay in treating the need worsens the

condition. In either case, the medical need must be one

that, if left unattended, poses a substantial risk of

serious harm.

Mann v. Taser Int’l, Inc., 588 F.3d 1291, 1307 (11th Cir. 2009) (quotations and

citation omitted).

copy marked “error” was resent to Plaintiff. Regardless, this does not make a

distinction in the Court’s analysis.

8 Plaintiff’s request for counsel is denied. See Order (Doc. 53) (denying Plaintiff’s

request for counsel for the same reasons previously stated in Docs. 22, 47).

Deliberate indifference to a serious medical need requires “three

components: (1) subjective knowledge of a risk of serious harm; (2) disregard of

that risk; (3) by conduct that is more than mere negligence.” Farrow v. West,

320 F.3d 1235, 1245 (11th Cir. 2003) (citations omitted); see Patel v. Lanier Cty.

Georgia, No. 19-11253, 2020 WL 4591270, at *9 n.10 (11th Cir. Aug. 11, 2020)

(recognizing “a tension within [Eleventh Circuit] precedent regarding the

minimum standard for culpability under the deliberate-indifference standard,”

as some cases have used “more than gross negligence” while others have used

“more than mere negligence”; finding, however, that it may be “a distinction

without a difference” because “no matter how serious the negligence, conduct

that can’t fairly be characterized as reckless won’t meet the Supreme Court’s

standard” (citations omitted)). “Subjective knowledge of the risk requires that

the defendant be ‘aware of facts from which the inference could be drawn that

a substantial risk of serious harm exists, and he must also draw the inference.’”

Dang, 871 F.3d at 1280 (quoting Caldwell v. Warden, FCI Talladega, 784 F.3d

1090, 1099-1100 (11th Cir. 2014)).

An official disregards a serious risk by more than mere

negligence “when he [or she] knows that an inmate is

in serious need of medical care, but he [or she] fails or

refuses to obtain medical treatment for the inmate.”

Lancaster v. Monroe Cty., Ala., 116 F.3d 1419, 1425

(11th Cir. 1997), overruled on other grounds by

LeFrere v. Quezada, 588 F.3d 1317, 1318 (11th Cir.

2009). Even when medical care is ultimately provided,

a prison official may nonetheless act with deliberate

indifference by delaying the treatment of serious

medical needs. See Harris v. Coweta Cty., 21 F.3d 388,

393-94 (11th Cir. 1994) (citing Brown v. Hughes, 894

F.2d 1533, 1537-39 (11th Cir. 1990)).[9] Further,

“medical care which is so cursory as to amount to no

treatment at all may amount to deliberate

indifference.” Mandel v. Doe, 888 F.2d 783, 789 (11th

Cir. 1989) (citations omitted). However, medical

treatment violates the Constitution only when it is “so

grossly incompetent, inadequate, or excessive as to

shock the conscience or to be intolerable to

fundamental fairness.” Rogers v. Evans, 792 F.2d

1052, 1058 (11th Cir. 1986) (citation omitted).

Dang, 871 F.3d at 1280. “‘[I]mputed or collective knowledge cannot serve as the

basis for a claim of deliberate indifference. Each individual defendant must be

judged separately and on the basis of what that person kn[ew].’” Id. (quoting

Burnette v. Taylor, 533 F.3d 1325, 1331 (11th Cir. 2008)).

Upon review of the parties’ filings and consideration of the evidence

submitted, the Court finds that, viewing the evidence in the light most favorable

to Plaintiff, Defendants are entitled to entry of summary judgment in their

9 “Even where medical care is ultimately provided, a prison official may

nonetheless act with deliberate indifference by delaying the treatment of

serious medical needs, even for a period of hours, though the reason for the

delay and the nature of the medical need is relevant in determining what type

of delay is constitutionally intolerable.” McElligott v. Foley, 182 F.3d 1248, 1255

(11th Cir. 1999) (citation omitted). However, “[i]t is also true that when a prison

inmate has received medical care, courts hesitate to find an Eighth Amendment

violation.” Waldrop v. Evans, 871 F.2d 1030, 1035 (11th Cir. 1989) (citing

Hamm v. DeKalb Cty., 774 F.2d 1567, 1575 (11th Cir. 1985)); see Boone v.

Gaxiola, 665 F. App’x 772, 774 (11th Cir. 2016).

favor. It is undisputed that Defendants are not medical professionals and were

not involved in Plaintiff’s medical care or treatment. Even if Plaintiff advised

these Defendants about his issues, they did not have the authority to provide or

govern the type of treatment he received and would have directed him to

medical and/or forwarded his complaints to medical personnel. Indeed, Plaintiff

received the following response to his April 29, 2016, email addressed to the

Warden: “See the Medical Representative at mainline.” Doc. 45 at 30. There is

no evidence suggesting that Defendants were deliberately indifferent.

Moreover, the medical records from Coleman FCC show that Plaintiff was

seen by several health care providers for his injury, his elbow was imaged on

multiple occasions, and he saw two outside specialists for consultations. Less

than two months after Plaintiff sent his April 29, 2016, email to the Warden,

his transfer to Butner FMC was approved.10 When a bed became available,

Plaintiff was transferred to Butner on about July 21, 2016. See Doc. 49-3 at

167.11 His surgery was initially scheduled for December 2016, but Plaintiff got

into an altercation with another inmate and was moved to the Special Housing

10 Dr. Lopez provides two different dates in his declaration for when Plaintiff’s

transfer was approved. He first states that it was approved on March 2, 2016,

and subsequently avers that bed space was available and Plaintiff’s transfer

was approved on June 10, 2016.

11 Plaintiff was seen at Butner for his “14-day physician evaluation after recent

arrival” from Coleman on August 5, 2016. See Doc. 49-4 at 38.

Unit; thus, his surgery was postponed. See Doc. 49-4 at 7. Although Plaintiff

did not receive the surgery as timely as perhaps he should have, there is no

evidence to suggest that Defendants either personally or through a policy

denied or delayed any medical treatment to Plaintiff. Neither has Plaintiff

presented any “verifying medical evidence” showing that he suffered any

“detrimental effect” as result of the alleged delay. See Hill v. Dekalb Reg’l Youth

Det. Ctr., 40 F.3d 1176, 1188 (11th Cir. 1994), overruled on other grounds by

Hope v. Pelzer, 536 U.S. 730 (2002) (“An inmate who complains that delay in

medical treatment rose to a constitutional violation must place verifying

medical evidence in the record to establish the detrimental effect of delay in

medical treatment to succeed.”). And Defendants cannot be found liable simply

because they hold supervisory positions. Accordingly, it is

ORDERED:

1. Plaintiff’s Motion for Summary Judgment (Doc. 45) is DENIED.

2. Defendants’ Cross-Motion for Summary Judgment (Doc. 49) is

GRANTED.

3. The Clerk shall enter judgment in favor of Defendants Montalvo

and Ocasio and against Plaintiff, terminate any pending motions, and close the

file.

4, As to Plaintiff's concerns about his medical records, should he seek

to have any of the records filed under seal, he may file a motion in accordance

with this Court’s Local Rule 1.09.

DONE AND ORDERED in Jacksonville, Florida, this 1st day of

September, 2020.

TIMOTHY J. CORRIGAN

United States District Judge

JAX-3 8/31

C:

Darvis Santiesteban

Counsel of record

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