Bowen v. Gee

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

JIMMY DELL BOWEN,

Plaintiff,

v. Case No. 8:17-cv-1242-T-35JSS

DAVID A. GEE,

NAPHCARE MEDICAL,

KATHERINE TARICA,

DR. BALL,

DR. KALLMAN,

DR. TOOTLE, and

SERGEANT HAZEL,

Defendants.

/

ORDER

This cause comes before the Court on a Motion for Final Summary Judgment filed by

the remaining defendants in this case: NaphCare Medical, Dr. Frederico Kallman, Dr. Kristin

Ball, and Dr. Karen Tootle (“the medical defendants”).1 (Docs. 88 and 89) Plaintiff Jimmy

Dell Bowen, who is proceeding pro se, responded in opposition to the motion, and the medical

defendants replied. (Docs. 100 and 103)

Preliminarily, Bowen moves the Court to construe his response in opposition to the

summary judgment motion as a collective response that “appl[ies] equally to all defendants.”

(Doc. 101) The medical defendants jointly moved for summary judgment in a single motion,

and they have not opposed Bowen’s request. Accordingly, Bowen’s “Motion for Joinder”

1 No claims remain pending against Defendant Katherine Tarica because she was not a named

defendant in the Amended Complaint on which this case now proceeds. (Doc. 8) In prior orders,

the Court dismissed Defendant David A. Gee from this case, and ruled that Defendant Sergeant

Kim Hazel was entitled to summary judgment in her favor. (Docs. 28 and 90)

(Doc. 101) is GRANTED IN PART as to the medical defendants. The motion is DENIED

IN PART as to Defendants Gee and Hazel because the claims against them have already

been resolved.

I. Background

Bowen initiated this 42 U.S.C. § 1983 suit, alleging that the medical care he received

while confined at the Hillsborough County Jail violated his Sixth, Eighth, and Fourteenth

Amendments. Bowen proceeds on his Amended Complaint. The basis for Bowen’s action

is the alleged deliberate indifference to his serious medical need, specifically, the need for

surgery to repair a hernia, and the alleged conditions inside an isolation cell. Bowen alleges

that NaphCare, the entity that provides health care in the Hillsborough County Jail, refused

for 22 months (from when he was incarcerated to the filing of the lawsuit) to schedule hernia

repair surgery “due to cost to NaphCare.” (Doc. 8 at 7) Bowen further alleges that he was

placed in an isolation cell without a bed for seven days, during which time he had to sleep on

a “boat” six inches off the floor. (Id. at 8) He alleges that the strain of getting up from the

“boat” caused his hernia to tear further, “enlarging it to twice [its] original size causing

continued extreme pain.” (Id.)

Bowen began his incarceration at the Hillsborough County Jail on August 26, 2015,

at which time NaphCare was the provider of medical services and Dr. Kallman was the

Medical Director. On that date, a NaphCare medical provider examined Bowen and noted

that he had a large, right inguinal hernia and was wearing a hernia belt. (Doc. 72-1 at 30)2

Bowen reported that he had a hernia repair surgery two years prior. (Id. at 6) Bowen’s

2 For consistency, the Court cites to the pagination shown on the electronic docket, rather than the

varying pagination the parties used in their filings.

medical records show that, in August and September of 2015, Bowen received routine medical

care unrelated to this suit from NaphCare medical providers. (Id. at 25–30)

On September 29, 2015, NaphCare medical providers evaluated Bowen’s hernia.

(Doc. 72-1 at 32) During this examination, Bowen reported his previous, unsuccessful hernia

surgery, but did not voice any hernia-related pain. Upon examination, the medical providers

found the hernia to be approximately “4 x 4 inch[es]” and “reducible.” (Id. at 32, 34) Bowen

was instructed to continue wearing the hernia belt for support as tolerated. (Id. at 38) After

this evaluation, Bowen continued to receive routine medical care for reasons unrelated to this

litigation.

On October 29, 2015, Bowen completed a Sick Call Request form, complaining “the

hernia belt you gave me is too small.” (Doc. 72-1 at 40) On November 4, 2015, Bowen

presented to NaphCare medical providers requesting a larger hernia belt. (Id. at 25 and 43)

Bowen was advised that a larger belt would be ordered. (Id.)

On February 3, 2016, Bowen was seen by NaphCare providers for a routine three-

month follow up and test results. (Doc. 72-1 at 50) Bowen did not complain of hernia pain

or enlargement, but he requested “help to obtain a bond reduction so he can go out and fix

his hernia through his Humana insurance.” (Id.) Bowen informed the medical provider that

“there was nothing wrong with the hernia support belt” and he was able to “keep [his] hernia

reduced while wearing the support [belt].” (Id.) Upon examination, the hernia was “stable.”

(Id. at 54) Bowen was “reassur[ed]” that hernia surgery was “not an emergency at this point,”

but that it would continue to be monitored. (Id. at 56) He was advised to “avoid straining,

pulling, pushing, etc.,” was encouraged to use the hernia belt daily, and was “advised to

discuss bond reduction issues with his attorney.” (Id.)

On February 16, 2016, Bowen submitted a “Health Care Grievance” in which he

wrote “consider this my second grievance to repair abdominal hernia.” (Doc. 8 at 14) On

March 3, 2016, Bowen submitted another grievance in which he wrote “this complaint

concerns your failure to schedule me for surgery to repair abdominal hernia. Your failure to

address this serious medical need can only result in my filing a civil rights complaint against

you and NaphCare.” (Id. at 15)

On May 2, 2016, during a medical examination, Bowen reported that his hernia was

unchanged, and upon examination, the hernia was found to be “reducible” and “unchanged

since [his] last evaluation.” (Doc. 72-1 at 59 and 61) On May 25, 2016, Bowen completed

another Sick Call Request, complaining of a possible stomach virus and persistent diarrhea.

(Id. at 66) He was evaluated and treated by Dr. Kristin Ball. (Doc. 71-2 at 3) Bowen was

placed in an isolation cell in order to rule out the possibility that he was contagious from a

bacterial infection. (Id. and Doc. 72-1 at 68)

From May 25th until at least May 31st, Bowen remained in the isolation cell and was

continually monitored, approximately 18 times. (Doc. 72-1 at 17–22 and 70) Bowen’s

medical records show that, while in isolation, he was found to be in no acute distress and was

resting comfortably. (Id. at 17–22) On one occasion, Bowen complained of “back discomfort

due to ‘uncomfortable bunk.’” (Id. at 21) On May 28th, Bowen told a NaphCare medical

provider the “long story about having hernia surgery when in prison at Jackson Memorial

and ‘got gangrene and 3 strains of alpha beta hemolytic strep into [his] scrotum[,]’” but made

no complaints of hernia-related pain at that time. (Id. at 19)

On May 31, 2016, Bowen complained his hernia was causing him “a lot of pain.” The

medical provider noted that, upon examination, the hernia showed “no signs of incarceration

or strangulation.” (Doc 72-1 at 17–18) The medical provider determined that it was “highly

unlikely” that Bowen had a bacterial infection and could be released from isolation. (Id.)

The record is unclear whether Bowen was, in fact, released from isolation on that date.

The record contains a “Medical Change of Status Form” dated May 31, 2016, which states

“d/c” (presumably, “discontinue”) contact isolation. (Doc. 72-1 at 70) However, NaphCare

medical providers noted as late as June 9th that Bowen was “was cleared” from isolation and

that it was “okay to transfer” to the medical pod. (Id. at 15)

On June 6, 2016, Bowen, who was visibly angry, complained to a NaphCare provider

about a “hiatal hernia in [his] esophagus that he needs surgery for and he has insurance to

pay for this.” (Doc. 72-1 at 16) He also recounted his “extensive surgical history with this

issue,” including that he had “gangrene in [his] scrotum.” (Id.) The record is unclear whether

Bowen was referring to his right abdominal hernia or a different hernia located in his

esophagus.

On June 8, 2016, Bowen was examined again by a NaphCare provider along with Dr.

Frederico Kallman. (Doc. 72-1 at 15–16) Bowen again recounted his surgical history,

reported that the “hernia was never fixed,” and “request[ed] immediate surgical intervention

due to increase[d] discomfort.” (Id.) Bowen reported “increased pain around his right groin”

but that he was “not [in] any acute distress.” (Id.) Dr. Kallman’s notes confirmed that Bowen

“[did] not present with any signs of acute distress.” The plan, as reflected in the progress

notes, was to “explore the possibility of surgical intervention.” (Id.)

Progress notes entered the following day (June 9th) confirm that, during the June 8th

examination, Bowen complained of “increased pain around his right groin.” (Doc. 72-1 at

14) The notes state that the “hernia is reducible with signs of incaceration [sic] or

strangulation.”3 It was also noted that Bowen was able to transfer himself in and out his

wheelchair without assistance and that he “denies any other complaints besides hernia

discomfort.” (Id.)

On July 19, 2016, Bowen was examined by Dr. Tootle. The purpose of the visit was

to update Bowen’s medical records before an upcoming court date. Dr. Tootle noted the

following (Doc. 72-1 at 13–14):

[Bowen]’s primary medical issue is a large, painful recurrent right

inguinal hernia. He says he was in prison with DOC at Lake Butler in

late 2012 when he developed an incarcerated inguinal hernia on the

right. He had bilateral inguinal hernias, that he feels came from a very

bad cough he got after a flu shot in 2008. The right had gotten much

larger than the left, and when the right became strangulated he was

initially sent to the hospital at Lake Butler. He had bilateral hernia

repair “where the [sic] sewed the inside and glued the outside.” The

left healed fine and remains no problem. The right didn’t hold well,

bulged out almost right after the surgery, and then became infected.

He went back into the hospital with a large abscess, which ruptured

and which caused sepsis. He was septic by the time he was sent to the

Shand’s hospital at Lake City, then transferred to Memorial Hospital

in Jacksonville. He doesn’t remember much of the first few days, but

he had surgery by a midline abdominal incision to drain the abscess

and resect a portion of bowel. They put a drain in the inguinal incision,

did not do any further repair of the hernia itself. During that

hospitalization, he developed renal failure, had “a heart attack from

stress,” and was on a ventilator for 9 days and a total hospital stay of

36 days.

Since that time, the right inguinal hernia has gotten progressively

worse. It hurts all the time, especially when he tries to walk. He has

developed a balance problem and was walking with a cane for a while,

but now primarily uses wheelchair because of the discomfort. He can

stand, to shower or move to bed, but avoids walking more than few

steps.

His primary issue is that he would like to use his private insurance to

get the hernia repaired. He knows that the repair is elective, but he has

3 These medical notes appear to contain typographical errors. The word “incarceration” is misspelled.

Additionally, it is unclear whether the author intended to write that the hernia was “without

incarceration or strangulation” or “with incarceration and strangulation.” The Court construes these

notes in the light most favorable to Bowen. Nevertheless, these notes do not raise a genuine issue of

material fact because, as explained in section III.A., Bowen’s hernia was monitored regularly, and no

medical provider determined that hernia repair surgery was medically necessary.

Medicare and Humana and would like to petition the judge to have his

surgery done with his own coverage, rather than continue wheelchair

bound and in discomfort until release. He is quite concerned this could

become strangulated again. He can’t use hernia belt because it hurts

his hips, and because it just doesn’t hold in the hernia any longer. He

says his bond is $212K, and he is going to ask the judge for bond

reduction but, short of that, would like the judge to consider letting

him get the hernia repair done with his own coverage.

[T]he right inguinal hernia is photographed in this record, is about five

inches and requires I stretch my hand as far as possible to encompass

it, and still doesn’t fit. Is [sic] mostly reducible, but not completely

secondary to it’s [sic] size.

Dr. Tootle noted that he explained to Bowen he would document the issue and his current

findings, “but the remainder will be up to the judge.” (Id.)

On July 20, 2016, Bowen was present in criminal court. (Doc. 71-1 at 2) Besides a

handwritten note on a docket sheet that states “check defendant medically,” the record is

silent regarding the events of Bowen’s court appearance that day (Id.)

On August 1, 2016, Bowen was seen by NaphCare medical providers for a Chronic

Care Visit. (Doc. 72-1 at 72–77) The medical notes reflect that Bowen voiced no hernia-

related complaints and denied abdominal pain. (Id. at 72)

On November 7, 2016, Bowen was examined again at a follow up Chronic Care Visit.

(Doc. 72-1 at 79–85) At this visit, Bowen complained about his hernia, but reported that his

hernia was “unchanged” and that he had “no pain.” (Id. at 79–80) Upon examination, the

hernia was “protruded, soft, non-tender to palpation, reducible” and “unchanged” since the

last evaluation. (Id. at 81)

On December 11, 2016, Bowen submitted the following “Health Care Grievance”

(Doc. 8 at 16):

This is my third grievance concerning your failure to schedule me for

a hernia operation (2-16-16 – 3-3-16). Dr. Kallman promised me that

he would do this on or about May 25, 2016. He later quit or was fired.

He was replaced by Dr. Tootle who also assured me that this would be

done. She even e-mailed Judge Tharp who ordered her to do so. She

too is now gone, quit/fired I don’t know and don’t care. I know that

I have a serious medical condition that NaphCare has shown

deliberate indifference to which said condition has reached [a] critical

stage. Fourteen months is long enough to wait on NaphCare to

perform their medical duties. Therefore, if I am not scheduled for

surgery at Tpa. General/St. Joseph within 15 days, I shall cause to be

filed in federal court a million dollar civil rights complaint against you.

On December 22, 2016, Bowen was examined again at a follow up Chronic Care Visit.

(Doc. 72-1 at 87–91) The medical provider noted that Bowen presented with “no sign of acute

distress” and that the hernia, upon examination was “easily reducible.” (Id. at 87 and 89)

On February 13, 2017, Bowen was examined again. At this visit, Bowen requested

hernia repair surgery and stated that the hernia belt was “no longer helping.” (Doc. 72-1 at

94) The medical provider noted that Bowen showed “no sign of acute distress,” and upon

examination, the hernia was “mostly reducible, but not completely secondary to it’s [sic]

size.” (Id. at 94 and 96) The provider also noted, “will place order for offsite general surgery

for inguinal hernia repair” and “continue current plan of care.” (Id. at 98)

On May 14, 2017, Bowen’s medical chart was reviewed at the request of a Health

Service Administrator. (Doc. 72-1 at 11) It was noted that, at Bowen’s February 13, 2017

examination, the “[p]rovider recommended offsite general surgery for inguinal hernia

repair—but did not submit.” (Id.) It was further noted, “will initiate offsite request for

General Surgery today, this will be reviewed and approved by Corporate.” (Id.) Notes

entered in Bowen’s medical records on July 3, 2017 state “[o]ffsite referral initiated.” (Id.)

On May 25, 2017, Bowen initiated this lawsuit. (Doc. 1) Approximately one month

later, on June 29, 2017, Bowen began a preoperative evaluation and testing at Tampa General

Hospital related to his hernia. (Doc. 72-1 at 103) At the initial preoperative evaluation, the

surgeon diagnosed Bowen with a “ventral hernia without obstruction or gangrene.” (Id. at

110) The surgeon ordered Bowen to “return for results after diagnostic testing” and “further

surgical planning.” (Id.)

On July 21, 2017, Bowen submitted to a CT scan of his abdomen at Tampa General

Hospital. (Doc. 72-1 at 117) The CT scan showed a “right-sided fat and bowel containing

inguinal hernia with no evidence of strangulation or bowel obstruction.” (Id.) On July 31,

2017, a NaphCare medical provider reviewed the CT scan results and noted that Bowen was

directed “to follow up with surgery to review CT abd (presumably, “abdominal”)

results/preop work up and cardiac clearance appt pending.” (Id. at 9)

On July 28, 2017, Bowen was seen by a University of South Florida (“USF”)

cardiologist for a preoperative evaluation. (Doc. 72-1 at 119–25) The cardiologist noted the

hernia was “reducible.” (Id. at 123) It was further noted that Bowen “may proceed to planned

procedure/surgery without further cardiac testing.” (Id. at 124)

On September 14, 2017, Bowen was seen by a USF pulmonologist for a preoperative

evaluation. (Doc. 72-1 at 127–30) The pulmonologist noted that the findings were

“consistent with emphysema with pulmonary fibrosis,” but there was “no absolute

contraindication to proceed with planned surgery from a pulmonary standpoint.” (Id. at 129)

On September 29, 2017, a NaphCare medical provider reviewed the pulmonologist’s findings.

(Id. at 8)

On October 12, 2017, Bowen was again seen by the surgeon who noted that Bowen

reported that the hernia “continue[d] to cause pain” and was “intermittently self-reducible.”

(Doc. 72-1 at 134) He advised Bowen that “given his past medical history, newly diagnosed

emphysema/pulmonary fibrosis, increased DOE with cough and intermittent L chest pain

the risks of undergoing elective hernia repair outweigh any benefits.” (Id. at 134) The surgeon

noted there was “no evidence of bowel compromise, so repair of this complex hernia is purely

elective.” (Id. at 132) He further noted he “would not offer [surgery] given other comorbid

conditions.” (Id.)

Publicly available records from the Florida Department of Corrections show that

Bowen was released from custody on July 27, 2019.

II. Standard of Review

Summary judgment is appropriate when the movant can show that “there is no

genuine issue of material fact and the movant is entitled to judgment as a matter of law.”

Fennell v. Gilstrap, 559 F.3d 1212, 1216 (11th Cir. 2009). Which facts are material depends on

the substantive law applicable to the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

(1986). The moving party bears the burden of showing that no genuine issue of material fact

exists. Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991).

Evidence is reviewed in the light most favorable to the non-moving party. Fennell, 559

F.3d at 1216. A moving party discharges its burden on a motion for summary judgment by

showing or pointing out to the Court that there is an absence of evidence to support the non-

moving party’s case. Denney v. City of Albany, 247 F.3d 1172, 1181 (11th Cir. 2001) (citation

omitted).

When a moving party has discharged its burden, the non-moving party must then

designate specific facts (by its own affidavits, depositions, answers to interrogatories, or

admissions on file) that demonstrate there is a genuine issue for trial. Porter v. Ray, 461 F.3d

1315, 1320–21 (11th Cir. 2006) (citation omitted). The party opposing a motion for summary

judgment must rely on more than conclusory statements or allegations unsupported by facts.

Evers v. Gen. Motors Corp., 770 F.2d 984, 986 (11th Cir. 1985) (“conclusory allegations without

specific supporting facts have no probative value”). “If a party fails to properly support an

assertion of fact or fails to properly address another party’s assertion of fact . . . the court may

grant summary judgment if the motion and supporting materials . . . show that the movant is

entitled to it.” Fed. R. Civ. P. 56(e)(3).

“Pro se pleadings are held to a less stringent standard than pleadings drafted by

attorneys and will, therefore, be liberally construed.” Tannenbaum v. United States, 148 F.3d

1262, 1263 (11th Cir. 1998). However, “[t]he mere existence of a scintilla of evidence in

support of the plaintiff’s position will be insufficient; there must be evidence on which the jury

could reasonably find for the plaintiff.” Burger King Corp. v. Weaver, 169 F.3d 1310, 1321 (11th

Cir. 1999).

III. Discussion

After the Court’s prior rulings in this case (Docs. 5, 15, 28, and 90), these claims

remain: (1) that the medical defendants were deliberately indifferent to Bowen’s serious

medical need for hernia repair surgery; (2) that Defendant NaphCare had a policy or custom

of not approving his hernia surgery due to the cost; and (3) that the defendant physicians

implemented the alleged policy. (Doc. 28 at 12–13)

A. Deliberate Indifference to a Serious Medical Need

A state has the constitutional obligation to provide adequate medical care—not

mistake-free medical care—to those in confinement. Adams v. Poag, 61 F.3d 1537 (11th Cir.

1995); Mandel v. Doe, 888 F.2d 783 (11th Cir. 1989). “Accidents, mistakes, negligence, and

medical malpractice are not ‘constitutional violations merely because the victim is a

prisoner.’” Harris v. Coweta County, 21 F.3d 388, 393 (11th Cir. 1994) (citing Estelle v. Gamble,

429 U.S. 97, 106 (1976)). “Claims concerning the doctor’s medical judgment, such as whether

the doctor should have used another form of medical treatment or a different diagnostic test,

are inappropriate claims” in a civil rights action. Wallace v. Hammontree, 615 F. App’x 666,

667 (11th Cir. 2015).4

Instead, an inmate is protected from deliberate indifference to a serious medical need.

“To prevail on a deliberate indifference to a serious medical need claim, Plaintiffs must show:

(1) a serious medical need; (2) the defendants’ deliberate indifference to that need; and (3)

causation between that indifference and the plaintiff’s injury.” Mann v. Taser Int’l, Inc., 588

F.3d 1291, 1306–07 (11th Cir. 2009).

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.” Hill v. Dekalb Regional Youth Detention Ctr., 40 F.3d 1176, 1187 (11th

Cir. 1994). The medical need must be one that, if left unattended, poses a substantial risk of

serious harm. Farrow v. West., 320 F.3d 1235, 1243 (11th Cir. 2003).

If the plaintiff can establish that he had a serious medical need, he must then show that

prison official acted with deliberate indifference to that need. Brown v. Hughes, 894 F.2d 1533,

1538 (11th Cir. 1990). Deliberate indifference requires: "(1) subjective knowledge of a risk of

serious harm; (2) disregard of that risk; (3) by conduct that is more than mere negligence."

Lane v. Philbin, 835 F.3d 1302, 1308 (11th Cir. 2016).

The medical defendants argue that this case represents a “classic case” of a

disagreement about appropriate treatment because, although Bowen requested hernia repair

surgery and intermittently complained of hernia pain, such surgery was not medically

4 “Unpublished opinions are not considered binding precedent, but they may be cited as persuasive

authority.” 11th Cir. Rule 36-2.

necessary. The defendants contend that the medical records show they did not ignore

Bowen’s complaints, but rather, provided appropriate medical care and treatment

commensurate with Bowen’s complaints and symptoms. They contend that Bowen’s

allegations, at most, state a claim for medical negligence, which is insufficient to establish

deliberate indifference to a serious medical condition.

In response, Bowen emphasizes that this case “turns on the delay in providing medical

care, not the types provided.” He argues that the medical defendants deliberately delayed in

providing him hernia repair surgery so long that, by the time he was examined by a surgeon

his “emphysema [and] C.O.P.D. deteriorated to [the] point where surgery at [his] expense

could be dangerous.” (Doc. 100 at 7) He disputes the authenticity of their reason for not

sending him to surgery, noting that although they stated his hernia was non-emergent, they

also repeatedly warned him of the risks of strangulation of his hernia. He contends that he

should not have to await a “tragic event” before seeking relief, particularly in light of his prior

history of hernia strangulation. He argues that the medical defendants placed their own

financial interests ahead of his medical needs.

This record reveals no genuine issue of material fact concerning whether the medical

defendants’ care constituted deliberate indifference to Bowen’s serious medical needs. Upon

Bowen’s arrival at the Hillsborough County Jail, Bowen was examined and his hernia was

identified. When he was examined again a month later, his hernia was found to be reducible

and he was instructed to continue wearing his hernia belt. In February 2016, when Bowen

first requested hernia repair surgery, he was reassured that hernia surgery was non-emergent

and was encouraged to continue wearing the hernia belt and to avoid straining. In May 2016,

when Bowen first complained of hernia pain, his hernia showed no signs of incarceration or

strangulation. In July 2016, Bowen continued to complain of hernia pain but, upon

examination, it was mostly reducible, and Bowen acknowledged that he knew surgery was

elective. By the end of 2016, Bowen continued to complain of hernia pain, but it was still

found to be reducible. In February 2017, Bowen’s hernia remained mostly reducible, but an

offsite pre-operative evaluation for hernia repair surgery was ordered. Ultimately, the surgeon

determined (albeit, after Bowen initiated this lawsuit) that, although the hernia continued to

cause pain, there was no evidence of bowel compromise, so the surgery remained “purely

elective.”

There is no instance in the record in which a medical provider determined that hernia

repair surgery was medically necessary. Bowen’s hernia was monitored and evaluated

regularly, and although he intermittently complained of hernia pain, the medical providers

consistently determined that it remained reducible or intermittently reducible and non-

emergent. This conclusion was consistent with the opinion of the surgeon who determined

that the risks of undergoing “purely elective” hernia repair surgery outweighed the benefits of

the surgery. Bowen’s assertion that the defendants delayed so long that, by the time he was

examined by a surgeon, his pulmonary health deteriorated to the point where surgery was too

risky, lacks merit. Regardless of Bowen’s pulmonary health, the surgeon found “no evidence

of bowel compromise, so repair of this complex hernia is purely elective.” On this record, the

care Bowen received was certainly not “so grossly incompetent, inadequate, or excessive as

to shock the conscience or to be intolerable to fundamental fairness.” Harris v. Thigpen, 941

F.2d 1495, 1505 (11th Cir. 1991); see also Williams v. Young, 695 F. App’x 503 (11th Cir. 2017)

(affirming the district court’s finding of no deliberate indifference to the prisoner’s need for

hernia repair surgery, when the hernia remained treatable without immediate surgery).

The fact that Bowen believed he should have had surgery, or that he should have been

sent for a preoperative evaluation earlier, is insufficient to support a deliberate indifference

claim. This case is similar to Palazon v. Sec’y, Fla. Dep’t of Corr., 361 F. App’x 88 (11th Cir.

2010), in which a panel of the Eleventh Circuit affirmed summary judgment against a prisoner

who claimed that the prison’s delay in performing surgery on his inguinal hernia constituted

deliberate indifference because the delay caused him greater pain than necessary. The

medical records showed that the prisoner “saw doctors regularly and that his hernia remained

reducible; and doctors did not want to operate on the hernia so long as it remained reducible.”

Id. at 89. The appellate court found that the care the prisoner received was “adequate and

certainly not so grossly incompetent, inadequate, or excessive as to shock the conscience or

be intolerable to fundamental fairness.” Id. (citations omitted). The fact that the prisoner

“felt he should have had surgery earlier than he did [was] insufficient to support a deliberate

indifference claim.” Id.

Bowen also argues that the strain of getting up from the “boat” he was forced to sleep

on while in an isolation cell caused his hernia to tear further, enlarging it from four inches to

five inches. In a prior order, the Court found the following with regard to Bowen’s placement

in the isolation cell (Doc. 90 at 4) (citations omitted):

[T]he evidence demonstrates that on May 25, 2016, Plaintiff

completed a sick call request, complaining that he had suffered from

diarrhea for approximately two weeks. Plaintiff was examined by Dr.

Ball, who diagnosed persisted diarrhea and dehydration. Plaintiff was

placed in medical isolation due to the possibility that he had contracted

a contagious bacterial infection known as “c-diff.”

Therefore, Plaintiff was placed in isolation for medical reasons, not for

punishment, and he was placed there by Dr. Ball, not Sgt. Hazel.

The record shows that during the time Bowen remained in medical isolation he was

continually monitored, was in no acute distress, and was resting comfortably. Bowen

complained on May 31, 2016, that his hernia was causing him a lot of pain; but, upon

examination, the hernia showed no signs of incarceration or strangulation. Bowen again

reported increased pain in his right groin on June 8, 2016, but he did not show any signs of

acute distress.

The record does not support Bowen’s contention that the strain of getting up from the

“boat” he was forced to sleep on while in an isolation cell caused his hernia to tear further.

Although Bowen’s hernia was measured at four inches on September 29, 2015 (before he was

held in the isolation cell), and was measured at “about five inches” on July 19, 2016 (after he

was held in the isolation cell), the record is devoid of any evidence that the change in size was

caused by the strain of getting up from the “boat” in the isolation cell or that the increased

sized was a result of isolation, which had long ended before the subsequent measurement was

taken. To the contrary, the medical records show that Bowen was in no acute distress and

was resting comfortably while in isolation. On one occasion, Bowen complained of back

discomfort due to an “uncomfortable bunk,” but there is no evidence of straining that caused

his hernia to tear or enlarge. Bowen relies entirely on his own speculation and points to no

evidence, medical or otherwise, on which a jury could reasonably find for him on this claim.

Accordingly, summary judgment is appropriate.

B. Policy or Custom of Delaying Medical Care Due to Cost

Bowen also alleges that (1) that Defendant NaphCare had a policy or custom of not

approving his hernia surgery due to the cost and (2) that the defendant physicians

implemented the alleged policy. Liability of an administrator attaches if budgetary concerns

dictate whether to provide necessary medical care. Howell v. Evans, 922 F.2d 712, 723 (11th

Cir. 1991) (The administrator “knew of the urgent need for proper personnel to treat Howell.

His apparent decision not to pursue such personnel and allow the ‘budgetary process’ to

determine whether Howell would receive necessary treatment could be found to be deliberate

indifference under Estelle’s prohibition of delays in obtaining treatment.”) Moreover, the

existence of a policy or custom can attach liability to the entity responsible for creating the

policy or custom, as Goebert v. Lee Cnty., 510 F.3d 1312, 1332 (11th Cir. 2007), explains:

“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.” Sewell v. Town of Lake Hamilton,

117 F.3d 488, 489 (11th Cir. 1997). A custom is an unwritten practice

that is applied consistently enough to have the same effect as a policy

with the force of law. City of St. Louis v. Praprotnik, 485 U.S. 112, 127

(1988). Demonstrating a policy or custom requires “show[ing] a

persistent and wide-spread practice.” Depew v. City of St. Mary’s, Ga.,

787 F.2d 1496, 1499 (11th Cir. 1986).

See also Buckner v. Toro, 116 F.3d 450, 452–53 (11th Cir. 1997) (concluding that a private entity

providing medical care to inmates may be directly liable under § 1983 if the action alleged to

be unconstitutional is undertaken pursuant to that entity’s policy or custom).

No evidence in the record supports Bowen’s assertion that NaphCare had a policy or

custom of not approving surgery due to cost, or that the medical providers implemented such

policy. NaphCare’s Utilization Management Manual states that medical reasons may exist

for not approving hernia repair in the jail setting but that, when there are medical signs that

surgery may be indicated, a referral can be submitted. The Manual states the following

regarding hernia repair surgery (Doc. 80-14 at 11):

Routine hernia repair surgery is not typically approved in a jail setting.

Because of the risk of infection, length of recovery, and rehabilitation

time needed, this type of routine elective surgery is better reserved until

after release. Most hernias are reducible and can be managed onsite

with a simple hernia belt. Educate patients on the importance of

limiting or avoiding activities that aggravate the affected area such as

straining and heavy lifting. If the patient is experiencing bladder or

bowel issues, or there is concern for incarceration or strangulation,

surgery may be indicated and a referral can be submitted.

Nothing in the Manual—or anything else in the record—raises a genuine issue of material

fact concerning whether NaphCare had a policy or custom of considering cost when

determining the manner and type of care to be provided.

In regard to his assertion that NaphCare delayed in providing him hernia repair

surgery due to cost, Bowen points to no evidence, and instead relies only on his speculation,

that cost played a role in his medical care. “[U]nsupported speculation does not meet a party’s

burden of producing some defense to a summary judgment motion. Speculation does not

create a genuine issue of fact; instead, it creates a false issue, the demolition of which is a

primary goal of summary judgment.” Cordoba v. Dillard’s, Inc., 419 F.3d 1169, 1181 (11th Cir.

2005) (citations and alterations omitted). Accordingly, summary judgment is appropriate on

this claim.

IV. Bowen’s Motion to Strike

Also before the Court is Bowen’s “Motion to Strike Defendants’ Response to

Plaintiff’s Opposition to All Defendants’ Motions for Final Summary Judgment and or

Dismissal.” (Doc. 102) The title and the timing of the motion suggest that Bowen is moving

to strike Defendants’ reply (Doc. 84) to his response (Doc. 81) to their previously-filed

summary judgment motion (Doc. 70).5 However, Defendants’ previously-filed summary

judgment motion was denied without prejudice (Doc. 87), and that reply is no longer at issue.

Therefore, to the extent that Bowen moves to strike Defendants’ inoperative reply (Doc. 84),

the motion is DENIED AS MOOT.

5 Bowen is not moving to strike the reply to the summary judgment motion now before the Court

because he moved to strike on December 10, 2020, before—not after—Defendants replied on

December 23, 2020.

In the body of his motion to strike, Bowen contends that the medical defendants failed

to produce all contracts between NaphCare Medical and the Hillsborough County Sheriff’s

Office, despite his repeated requests. Nevertheless, Bowen admits that he “finally obtained a

copy of said contract on or about 10-5-2020.” He argues that Defendants’ discovery violation

was intentional, prejudicial, deceptive, and wasted the Court’s resources.

Defendants respond that Bowen never requested such contracts. They further state

that they “did not provide any discovery to [Bowen] as the discovery cut off . . . was January

6, 2020.” (Doc. 104 at 3) The Court interprets this statement to mean that Bowen obtained

the contract not from Defendants, but from some other unidentified source.

To the extent that Bowen moves to strike the contract as a penalty for Defendants’

failure to produce it, the motion is denied. Bowen was not prejudiced because, regardless of

the source of the contract, he admittedly obtained it on or about October 5, 2020—two

months before he filed his opposition to the summary judgment motion on December 10,

2020. And, Bowen did, in fact, file the “Health Services Agreement” between NaphCare

Medical and the Hillsborough County Sheriff’s Office as an exhibit to his opposition to the

summary judgment motion, which the Court has considered. (Doc. 100-2 at 1–13) Nothing

in that contract raises a genuine issue of material fact concerning Bowen’s allegations.

Furthermore, Defendants did not file, and do not rely on, the contract in their summary

judgment motion or reply. Therefore, Bowen’s Motion to Strike (Doc. 102) is DENIED.

V. Conclusion

Defendants’ Motion for Summary Judgment (Doc. 88) is GRANTED. The Clerk is

directed to enter final judgment in favor of the medical defendants, including Defendants

NaphCare Medical, Dr. Frederico Kallman, Dr. Kristin Ball, and Dr. Karen Tootle. The

Clerk is also directed to enter final judgment in favor of Defendant Sergeant Kim Hazel,

pursuant to the Court’s prior order granting summary judgment in her favor. (Doc. 90) All

of Bowen's claims against all defendants have been resolved; therefore, the Clerk is directed

to CLOSE this case.

Done and ordered in Tampa, this 16" day of February, 2021.

Ly if. f /

SH fL AS

MARYS. SORIVEN

UNITED STATES DISTRICT JUDGE

20