Hannah v. Armor Correctional Health Services, Inc.

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

PATRICIA HANNAH,

Plaintiff,

v. Case No. 8:19-cv-596-T-60SPF

ARMOR CORRECTIONAL

HEALTH SERVICES, INC., et al.,

Defendants.

/

ORDER DENYING “LEILA POLANCO’S MOTION FOR SUMMARY

JUDGMENT AND INCORPORATED MEMORANDUM OF LAW”

This matter is before the Court on “Leila Polanco’s Motion for Summary

Judgment and Incorporated Memorandum of Law” and supporting exhibits, filed on

July 6, 2020. (Docs. 271; 284). On August 19, 2020, Plaintiff Patricia Hannah

filed her response in opposition. (Doc. 365). Upon review of the motion, response,

court file, and record, the Court finds as follows:

Background1

Plaintiff Patricia Hannah is the plenary guardian for Darryl Vaughn Hanna,

Jr., who is in a persistent vegetative state after suffering four syncopal episodes

while he was a pretrial detainee at the Manatee County Jail.2 The crux of the

amended complaint is that Defendants, including Defendant Nurse Leila Polanco,

were medically negligent and deliberately indifferent to Hanna, Jr.’s medical needs.

1 The Court construes the facts and evidence in light most favorable to Plaintiff for the purpose of

ruling on the motion for summary judgment.

2 Hanna, Jr. was awaiting trial on murder charges related to a double homicide.

During intake, Hanna, Jr. indicated that he did not have any mental,

physical, or developmental disabilities or limitations that the jail needed to be

aware of during his incarceration. His appearance was noted as unremarkable, he

had no visible signs of injuries, and he appeared alert and oriented. Hanna, Jr.

indicated that he was not currently ill or injured, had not experienced a head injury

in the last 72 hours, and had not been to a hospital in the last three months. He

indicated that he had active asthma and used his inhaler in 2016.

On August 23, 2017, Deputy Thomas McGuire received a phone call

informing him that Hanna, Jr. had passed out in the exercise yard. McGuire went

out and asked Hanna, Jr. what had happened. Hanna, Jr. said that he was playing

basketball, blacked out, and that his head hurt. Hanna, Jr. appeared disoriented.

Medical staff were called and Defendant Leila Polanco, a nurse, responded. She

was told by other jail residents that Hanna, Jr. had a seizure, it was too hot outside,

and another resident may have hit Hanna, Jr. on the head. Polanco concluded that

the warm temperature outside caused Hanna, Jr. to faint and that he may have hit

his head when he fell and sustained a concussion. On the assessment form, she

selected the box associated with “Unintentional (e.g. sports, fall, etc.)” rather than

the “Acute Medical Condition (e.g. loss of consciousness, seizure, etc.)” box.

Polanco requested to view video surveillance of the incident. Deputy

McGuire notified Defendant Sergeant Ronald Laughlin and informed him of the

incident, Polanco’s observations and evaluations, and her desire to view video.

Laughlin permitted Polanco to view the video recording and watched it with her.

There was no audio. The video showed Hanna, Jr. and other residents playing

basketball outside in the courtyard when, all of a sudden, Hanna, Jr. collapsed and

his head hit the ground. Laughlin’s notes indicate that Hanna, Jr. remained on the

ground for around 41 seconds.

Polanco and Laughlin did not request, contact, initiate, or recommend

emergency medical services or fire rescue to respond to the jail to evaluate Hanna,

Jr. They also did not request that Hanna, Jr. be evaluated by a licensed physician

or medical doctor. They never requested or recommended that Hanna, Jr. be

transported to an outside medical facility, such as a hospital or emergency room.

Instead of being seen by a physician, physician’s assistant or medical doctor,

Hanna, Jr. was ordered to return to housing, where he resided in a cell alone.

On September 8, 2017, Hanna, Jr. fainted in his cell. Again, although

nurses responded to evaluate him, Hanna, Jr. was never seen or evaluated by a

doctor, physician, or physician’s assistant. The next day, a deputy found Hanna,

Jr. lying face up on the floor underneath the toilet. The deputy entered the cell to

check on him – although Hanna, Jr. was breathing, he was unresponsive to verbal

or tactile stimulation. Deputies attempted to perform CPR on Hanna, Jr. Then,

emergency medical services arrived and transported him to a nearby hospital.

Hanna, Jr. has not regained consciousness and remains in a persistent vegetative

state.

Legal Standard

Summary judgment is appropriate “if the movant shows that there is no

genuine dispute as to any material fact and the movant is entitled to judgment as a

matter of law.” Fed. R. Civ. P. 56(a). A properly supported motion for summary

judgment is not defeated by the existence of a factual dispute. Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 249 (1986). Only the existence of a genuine issue of

material fact will preclude summary judgment. Id.

The moving party bears the initial burden of showing that there are no

genuine issues of material fact. Hickson Corp. v. N. Crossarm Co., 357 F.3d 1256,

1260 (11th Cir. 2004). When the moving party has discharged its burden, the

nonmoving party must then designate specific facts showing the existence of

genuine issues of material fact. Jeffery v. Sarasota White Sox, Inc., 64 F.3d 590,

593-94 (11th Cir. 1995). If there is a conflict between the parties’ allegations or

evidence, the nonmoving party’s evidence is presumed to be true and all reasonable

inferences must be drawn in the nonmoving party’s favor. Shotz v. City of

Plantation, 344 F.3d 1161, 1164 (11th Cir. 2003).

Analysis

Count XII – Medical Indifference

Plaintiff alleges a deliberate medical indifference claim against Polanco. In

her motion, Polanco argues that the undisputed facts show that her acts or

omissions did not rise to the level of deliberate indifference, and that Plaintiff

cannot establish causation.

Under Plaintiff’s version of events, Polanco thought that Hanna, Jr. might

have a concussion. Polanco reviewed a surveillance tape and observed that Hanna,

Jr. fell to the ground and remained there for nearly a minute. Despite this

knowledge, Polanco did not refer Hanna, Jr. to the prison doctor or activate

emergency medical services. Instead, she allowed him to return to his cell.

Based on these facts, a reasonable jury could find that Hanna, Jr.’s medical

condition was so serious that he obviously required medical attention on August 23,

2017, and that Polanco was aware of the risk of harm given that Hanna, Jr. blacked

out. See Hannah v. Armor Correctional Health Services, Inc., 792 F. App’x 742, 745

(11th Cir. 2019) (holding that a reasonable jury could find that Hanna, Jr.’s medical

condition was so serious that he obviously needed medical attention, and that

deputy was subjectively aware of the risk of harm, given that Hanna, Jr. had

blacked out). The jury could also find that Polanco disregarded this risk by more

than mere negligence when Polanco failed to, among other things, refer Hanna, Jr.

for further medical evaluation and treatment. See id. The motion for summary

judgment is denied as to this ground.

Polanco also argues that because Plaintiff cannot establish causation, her

medical indifference claim fails. The Court finds that Polanco’s argument

concerning causation – that this one fainting episode did not cause the brain injury

in this case – is conclusory and not supported by the evidence. Plaintiff argues

that Polanco’s inaction played a role in Hanna, Jr.’s future episodes and current

vegetative state and cites to record evidence to demonstrate causation. Clearly,

there are factual issues for a jury to consider, including whether Polanco’s actions

contributed to or caused Hanna, Jr.’s injuries. The motion is denied as to this

ground.

Count XIII – Medical Negligence

Polanco argues that she cannot be sued for negligence or medical malpractice

because she is entitled to immunity under § 768.28(9), F.S. Specifically, Polanco

contends that she was working as a nurse for the benefit of the Manatee County

Jail and is immune from claims of negligence.

When determining whether an independent contractor is entitled to qualified

immunity as an “officer, employee, or agent of the state” under § 768.28(9)(a), courts

must look to the degree of control retained or exercised by the state entity

contracting with the private company. Bean v. University of Miami, 215 So. 3d

810, 816 (Fla. 3d DCA 2018). Although Polanco alleges that she was working as a

nurse for the benefit of Manatee County, she has failed to point to record evidence

to demonstrate the degree of control over her work retained or exercised by

Manatee County, such as any contracts between Armor and Manatee County. See

Obremski v. Armor Correctional Health Services, Inc., No. 18-61798-CIV-

ALTMAN/Hunt, 2020 WL 5224329, at *10-11 (S.D. Fla. Apr. 7, 2020) (denying

summary judgment after finding that Armor had not established entitlement to

sovereign immunity based on contract between Sheriff’s Office and Armor).

Plaintiff, on the other hand, has pointed to record evidence to argue that Armor had

control over Polanco’s work, not Manatee County.

“Agency status is a question of fact, except in those cases where the party

opposing summary judgment is unable to point to any conflicting facts or inferences

to be drawn from the facts.” Id. at *9 (quoting M.S. v. Nova Southeastern

University Inc., 881 So. 2d 614, 617 (Fla. 4th DCA 2004)). Based on the record

before the Court, it is unclear what degree of control Manatee County or the Sheriff

exercised over Armor or Polanco. Because Polanco has failed to point to record

evidence to support her immunity claim, and Plaintiff has identified conflicting

facts and inferences to be drawn as to Polanco’s status, the motion is denied as to

this ground.

Qualified Immunity or Good Faith Immunity

Polanco also argues that she should be entitled to qualified immunity or

“good faith” immunity. Courts have declined to extend the doctrine of qualified

immunity to privately employed prison physicians. See, e.g., Hinson v. Edmond,

192 F.3d 1342, 1345 (11th Cir. 1999). However, the Supreme Court has not

foreclosed the possibility that an affirmative defense of “good faith” is something

that could possibly be raised in certain circumstances. See Richardson v McKnight,

521 U.S. 399, 413-14 (1997). In this case, it does not appear that Polanco

specifically raised this good faith defense until now. In her Answer, Polanco only

mentions qualified immunity. (Doc. 62). Moreover, if a jury believes Plaintiff’s

version of events, Polanco did not act in good faith when she was subjectively aware

of the risk of harm to Hanna, Jr. but disregarded that risk by more than mere

negligence. The motion for summary judgment is denied as to this ground.

It is therefore

ORDERED, ADJUDGED, and DECREED:

(1) “Leila Polanco’s Motion for Summary Judgment and Incorporated

Memorandum of Law” (Doc. 271) is DENIED.

DONE and ORDERED in Chambers, in Tampa, Florida, this 16th day of

October, 2020.

-TOMBARBER i asss—(‘“‘:s~™S

UNITED STATES DISTRICT JUDGE

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