Derks v. Centurion Medical

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

LARKIN L. DERKS,

Plaintiff,

v. Case No. 3:20-cv-289-BJD-PDB

CENTURION MEDICAL, et al.,

Defendants.

ORDER

I. Status

Plaintiff, Larkin L. Derks, an inmate in the custody of the Florida

Department of Corrections (FDOC), initiated this action on March 23, 2020, by

filing a pro se Civil Rights Complaint (Doc. 1) under 42 U.S.C. § 1983. He is

proceeding on an Amended Complaint (Docs. 7 and 7-1), filed on July 23, 2020.1

One Defendant remains – Dr. Alexis Figueroa.2 See Doc. 36. The only claim

before the Court is Plaintiff’s claim that Figueroa violated his Eighth

1 Plaintiff’s claims and allegations are set out in Doc. 7-1, which Plaintiff has

filed as an exhibit to Doc. 7. As such, Docs. 7 and 7-1 are collectively called the

Amended Complaint, and the Court will cite each respective Doc. when necessary.

2 The Court dismissed with prejudice all claims against Defendants Bassa,

Cruz, and Centurion. Doc. 36 at 45.

Amendment rights by failing to provide adequate medical care following a

surgical procedure. He seeks injunctive relief and monetary damages.3

Before the Court is Defendant Figueroa’s Motion for Summary Judgment

(Doc. 44), with exhibits (Docs. 44-1 through 44-3). Plaintiff responded (Docs.

47, 47-1, 48, 49); Figueroa replied (Doc. 52); and Plaintiff filed a brief in

opposition to Figueroa’s reply (Doc. 53). Also before the Court is Plaintiff’s

Motion for Temporary Restraining Order and Preliminary Injunction (Doc. 59),

with exhibits (Docs. 59-1 through 59-3, 60); and Figueroa’s response to

Plaintiff’s Motion for Temporary Restraining Order and Preliminary

Injunction (Doc. 63). These Motions are ripe for review.

II. Plaintiff’s Amended Complaint4

In his Amended Complaint, Plaintiff alleges that in 2008, before his

incarceration, he was in a severe automobile accident resulting in injuries to

his shoulders and back.5 Doc. 7-1 at 6, 7. He asserts that following the accident,

he was treated by orthopedic specialists who recommended surgery. Id. He

states he was waiting approval for funds to have the surgery when he entered

3 The Court dismissed with prejudice Plaintiff’s claims against Figueroa under

the Americans with Disabilities Act, Rehabilitation Act, Fourteenth Amendment, and

Chapters 458 and 456, Florida Statutes. See Doc. 36 at 45.

4 The Court only summarizes the relevant allegations pertaining to Figueroa.

5 According to the FDOC’s website, Plaintiff entered FDOC custody on

November 4, 2009.

prison. Id. Plaintiff admits that before filing this action, he filed two other

actions “concerning the same injuries with different facts and respondents.”

See id. at 9-10; see also Derks v. Corizon, No. 5:15-cv-51-MW-GRJ (N.D. Fla.);

Derks v. Centurion, No. 6:18-cv-451-PGB-EJK (M.D. Fla.).6 Here, Plaintiff

sues Figueroa for denial of medical care from August 31, 2018, to the present,

while housed at Suwannee Correctional Institution (Suwannee C.I.). Doc. 7 at

5.

Although not a picture of clarity, a review of the Amended Complaint’s

exhibits appears to show that on August 31, 2018, Plaintiff underwent left

shoulder surgery at Reception and Medical Center (R.M.C.) to repair a

“[m]assive tear of rotator cuff with significant impingement, changes of

acromioclavicular joint region, tear of the long head of the biceps and some

tearing of the labrum.” Doc. 7-1 at 11. Plaintiff alleges that following that

surgery, he was transferred to Suwannee C.I. where Figueroa oversees

inmates’ medical care. Id. at 6-7. According to Plaintiff, upon his transfer,

Figueroa refused to follow specialist surgeons’ instructions when treating

6 In Derks v. Corizon, LLC, et al., No. 5:15-cv-51-MW-GRJ (N.D. Fla.), Plaintiff

sued medical providers at Northwest Florida Reception Center for failing to provide

recommended specialized neurological and orthopedic care for chronic shoulder, back,

and neck injuries stemming from the auto accident that occurred before his

incarceration. That case settled. In Derks v. Centurion, LLC, et al., No. 6:18-cv-451-

PGB-EJK, Plaintiff sued medical providers at Central Florida Reception Center for

failing to provide adequate medical care for the same injuries alleged in No. 5:15-cv-

51-MW-GRJ and this action. That case was dismissed. Id.

Plaintiff for his post-surgical trauma. Id. at 7. He alleges that specialist doctors

at R.M.C. had issued medical passes, but when Plaintiff arrived at Suwannee

C.I., Figueroa refused to acknowledge or continue the medical passes, “with no

examination, no consult, stating these medically needy passes were not

permitted at this institution according to policy . . . .” Id. Plaintiff also asserts

that Figueroa believed Plaintiff had a fractured elbow and recommended that

he receive an x-ray, but Figueroa failed to conduct the x-ray or follow-up with

the elbow injury despite Plaintiff’s sick-call requests. Id. Plaintiff also states

that Figueroa has not seen or treated Plaintiff for injuries to his right shoulder

or serious back injury despite orthopedic and neurological specialist

recommendations. Id.

Plaintiff alleges Figueroa’s failure to treat him amounts to deliberate

indifference to his serious medical needs in violation of his rights under the

Eighth Amendment. Doc. 7 at 3. Plaintiff asserts that because of Figueroa’s

prolonged denial of medical care, Plaintiff will need more painful and extensive

procedures to correct the post-surgical damage and now suffers from increased

pain and permanent disability. Id. at 5. He contends that he is confined to a

wheelchair and requires an assistant to help him because basic tasks are

increasingly painful. Id. Plaintiff sues Figueroa in his individual and official

capacities. Id. at 3.

III. Standard of Review for Summary Judgment

Rule 56 instructs that “[t]he court shall grant summary judgment 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.” Rule 56(a). The record to

be considered on a motion for summary judgment may include “depositions,

documents, electronically stored information, affidavits or declarations,

stipulations (including those made for purposes of the motion only),

admissions, interrogatory answers, or other materials.” Rule 56(c)(1)(A). An

issue is genuine when the evidence is such that a reasonable jury could return

a verdict for the nonmovant. Mize v. Jefferson City Bd. of Educ., 93 F.3d 739,

742 (11th Cir. 1996) (quoting Hairston v. Gainesville Sun Publ’g Co., 9 F.3d

913, 919 (11th Cir. 1993)). “[A] mere scintilla of evidence in support of the non-

moving party’s position is insufficient to defeat a motion for summary

judgment.” Kesinger ex rel. Est. of Kesinger v. Herrington, 381 F.3d 1243, 1247

(11th Cir. 2004) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252

(1986)).

The party seeking summary judgment bears the initial burden of proving

to the court, by reference to the record, that there are no genuine issues of

material fact to be determined at trial. See Clark v. Coats & Clark, Inc., 929

F.2d 604, 608 (11th Cir. 1991). “When the non-moving party bears the burden

of proof on an issue at trial, the moving party need not ‘support its motion with

affidavits or other similar material negating the opponent’s claim,’ Celotex

Corp. v. Catrett, 477 U.S. 317, 323 (1986), in order to discharge this initial

responsibility.” Gonzalez v. Lee Cnty. Hous. Auth., 161 F.3d 1290, 1294 (11th

Cir. 1998). Instead, the moving party simply may show “that there is an

absence of evidence to support the nonmoving party’s case.” Id.

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

must then go beyond the pleadings, and by its own affidavits, or by depositions,

answers to interrogatories, and admissions on file, designate specific facts

showing that there is a genuine issue for trial.” Jeffery v. Sarasota White Sox,

Inc., 64 F.3d 590, 593-94 (11th Cir. 1995) (internal citations and quotation

marks omitted). Substantive law determines the materiality of facts, and

“[o]nly disputes over facts that might affect the outcome of the suit under the

governing law will properly preclude the entry of summary judgment.”

Anderson, 477 U.S. at 248. In determining whether summary judgment is

appropriate, a court “must view all evidence and make all reasonable

inferences in favor of the party opposing summary judgment.” Haves v. City of

Miami, 52 F.3d 918, 921 (11th Cir. 1995) (citing Dibrell Bros. Int’l, S.A. v.

Banca Nazionale Del Lavoro, 38 F.3d 1571, 1578 (11th Cir. 1994)).

IV. Eighth Amendment

“To establish an Eighth Amendment violation, a prisoner must satisfy

both an objective and subjective inquiry regarding a prison official’s conduct.”

Oliver v. Fuhrman, 739 F. App’x 968, 969 (11th Cir. 2018) (citing Chandler v.

Crosby, 379 F.3d 1278, 1289 (11th Cir. 2004)).7 The Eleventh Circuit has

explained:

Under the objective component, a prisoner must

allege a condition that is sufficiently serious to violate

the Eighth Amendment. Id. The challenged condition

must be extreme and must pose an unreasonable risk

of serious damage to the prisoner’s future health or

safety. Id. The Eighth Amendment guarantees that

prisoners are provided with a minimal civilized level

of life’s basic necessities. Id.

Under the subjective component, a prisoner

must allege that the prison official, at a minimum,

acted with a state of mind that constituted deliberate

indifference. Id. This means the prisoner must show

that the prison officials: (1) had subjective knowledge

of a risk of serious harm; (2) disregarded that risk; and

(3) displayed conduct that is more than mere

negligence. Farrow v. West, 320 F.3d 1235, 1245 (11th

Cir. 2003).

Id. at 969-70. “To be cruel and unusual punishment, conduct that does not

purport to be punishment at all must involve more than ordinary lack of due

care for the prisoner’s interests or safety.” Whitley v. Albers, 475 U.S. 312, 319

(1986).

7 The Court does not rely on unpublished opinions as binding precedent;

however, they may be cited in this Order when the Court finds them persuasive on a

particular point. See McNamara v. GEICO, 30 F.4th 1055, 1060–61 (11th Cir. 2022);

see generally Fed. R. App. P. 32.1; 11th Cir. R. 36–2 (“Unpublished opinions are not

considered binding precedent, but they may be cited as persuasive authority.”).

As it relates to medical care, “[t]he Supreme Court has interpreted the

Eighth Amendment to prohibit ‘deliberate indifference to serious medical

needs of prisoners.’” Melton v. Abston, 841 F.3d 1207, 1220 (11th Cir. 2016)

(quoting Estelle v. Gamble, 429 U.S. 97, 102 (1976)). The Eleventh Circuit has

explained that

To prevail on a deliberate indifference claim, [a

plaintiff] 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). To establish deliberate

indifference, [a plaintiff] must prove “(1) subjective

knowledge of a risk of serious harm; (2) disregard of

that risk; (3) by conduct that is more than [gross]

negligence.” Townsend v. Jefferson Cnty., 601 F.3d

1152, 1158 (11th Cir.2010) (alteration in original). The

defendants must have been “aware of facts from which

the inference could be drawn that a substantial risk of

serious harm exist[ed]” and then actually draw that

inference. Farrow v. West, 320 F.3d 1235, 1245 (11th

Cir.2003) (quotation omitted).

Easley v. Dep’t of Corr., 590 F. App’x 860, 868 (11th Cir. 2014); see also Patel

v. Lanier Cnty. Ga., 969 F.3d 1173, 1188-89 & n.10 (11th Cir. 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)).

“For medical treatment to rise to the level of a constitutional violation,

the care must be ‘so grossly incompetent, inadequate, or excessive as to shock

the conscience or to be intolerable to fundamental fairness.’” Nimmons v.

Aviles, 409 F. App’x 295, 297 (11th Cir. 2011) (quoting Harris v. Thigpen, 941

F.2d 1495, 1505 (11th Cir.1991)); see also Waldrop v. Evans, 871 F.2d 1030,

1033 (11th Cir. 1989) (“Grossly incompetent or inadequate care can constitute

deliberate indifference, as can a doctor’s decision to take an easier and less

efficacious course of treatment” or fail to respond to a known medical problem).

The law is well settled that the Constitution is not implicated by the

negligent acts of corrections officials and medical personnel. Daniels v.

Williams, 474 U.S. 327, 330-31 (1986); Davidson v. Cannon, 474 U.S. 344, 348

(1986) (“As we held in Daniels, the protections of the Due Process Clause,

whether procedural or substantive, are just not triggered by lack of due care

by prison officials.”). As such, a complaint that a physician has been negligent

“in diagnosing or treating a medical condition does not state a valid claim of

medical mistreatment under the Eighth Amendment.” Bingham v. Thomas,

654 F.3d 1171, 1176 (11th Cir. 2011) (quotation marks and citation omitted).

Moreover, the Eleventh Circuit has stated that “[n]othing in our case law

would derive a constitutional deprivation from a prison physician’s failure to

subordinate his own professional judgment to that of another doctor; to the

contrary, it is well established that ‘a simple difference in medical opinion’ does

not constitute deliberate indifference.” Bismark v. Fisher, 213 F. App’x 892,

897 (11th Cir. 2007) (quoting Waldrop, 871 F.2d at 1033). Similarly, “the

question of whether governmental actors should have employed additional

diagnostic techniques or forms of treatment ‘is a classic example of a matter

for medical judgment’ and therefore not an appropriate basis for grounding

liability under the Eighth Amendment.” Adams v. Poag, 61 F.3d 1537, 1545

(11th Cir. 1995) (citation omitted).

V. Figueroa’s Motion for Summary Judgment

In his Motion, Figueroa argues that he was not deliberately indifferent

to Plaintiff’s serious medical needs. Doc. 44 at 2. He asserts he treated

Plaintiff’s shoulders and back several times; he continued to issue medical

passes first prescribed by R.M.C.; and “there are no medical records prepared

by any providers at any point diagnosing a left elbow fracture or

recommendation for an x-ray to the left elbow.” Id. Figueroa argues he is

entitled to summary judgment on Plaintiff’s Eighth Amendment claim. Id. In

support of this argument, Figueroa provides Plaintiff’s medical records from

June 2018 to September 2020 (Doc. 44-1); Plaintiff’s December 2018 transfer

order (Doc. 44-2); and several of Plaintiff’s inmate grievances (Doc. 44-3). The

Court chronologically summarizes the evidence Figueroa filed.

a. Medical Care at R.M.C.8

In June 2018, Plaintiff was transferred from Central Florida Reception

Center to R.M.C. Doc. 44-1 at 90. Once at R.M.C., medical evaluated Plaintiff,

during which Plaintiff advised medical that he suffered a left shoulder rotator

cuff tear ten years prior, his scheduled surgical repair never occurred because

he went to prison before the operation, and he suffers from weakness and loss

of mobility. Id. at 53. The physician recommended Plaintiff undergo an M.R.I.

for his left shoulder and issued a medical pass for a button-up shirt. Id.

On July 10, 2018, medical conducted an exam, during which Plaintiff

complained of left shoulder pain and requested renewal of his Ibuprofen

prescription. Id. at 87. Medical provided Plaintiff with 400mg Ibuprofen and

noted he had a pending appointment with his primary care provider.9 Id. at 88.

A few days later, Plaintiff underwent an M.R.I. of his left shoulder, which

showed a “large, full-thickness partial-width rotator cuff tear.” Id. at 94.

On July 27, 2018, orthopedic physician Dr. T. Winters evaluated

Plaintiff, reviewed the M.R.I. results, and noted Plaintiff had pain and

weakness in his right and left shoulders and that his left shoulder ailments

8 The Court dismissed with prejudice all Defendants and claims related to the

medical care Plaintiff received at R.M.C., so the Court only summarizes relevant facts

about Plaintiff’s medical treatment at R.M.C. for context.

9 Plaintiff also underwent a separate exam for ongoing acid reflux. Doc. 44-1

at 85-86.

were worse than his right shoulder. Id. at 51. Winters also reported that

M.R.I.s of both Plaintiff’s right and left shoulders were conducted in 2008,

which presented small rotator cuff tears in both shoulders. Id. Winters and

Plaintiff discussed surgery and Plaintiff conveyed his desire that doctors

attempt a surgical repair of the large tear in his left rotator cuff. Id.

On August 31, 2018, Winters conducted surgery on Plaintiff’s left

shoulder. Id. at 5. During the operation, Winters found a massive tear to the

left rotator cuff, a complete tear of the long head of the bicep, tearing of the

labrum, and significant impingement and changes of the acromioclavicular

joint area. Id. According to the operative report, doctors successfully got “the

rotator cuff mobilized after repairing it with excellent repair.” Id. According to

Winters’s post-surgery instructions, Plaintiff was prescribed pain medication

and was issued medical passes for low bunk, no pushing/pulling/lifting over

eighteen pounds, wheelchair, and left arm sling. Id. at 7-8. Winters also

ordered that Plaintiff undergo an orthopedic follow-up in two weeks. Id. at 50.

On September 7, 2018, Plaintiff was discharged with a diagnosis of,

among other things, rotator cuff surgery repair, low back pain at level of L4-5,

and multilevel disc degenerative disease. Id. at 57. Plaintiff was instructed to

undergo suture removal when skin heals, wear left arm sling for eight weeks,

wear a button shirt for eight weeks, not raise shoulder over thirty degrees, use

wheelchair for ambulation, and front cuff for eight weeks. Id. at 57-58.

On September 14, 2018, Plaintiff had his two-week follow-up

appointment with the orthopedic physician who noted Plaintiff’s passive range

of motion was good, removed his sutures, and recommended a single bunk pass

and a four-week follow-up. Id. at 49, 84. The doctor also conducted an x-ray

that revealed mild degenerative joint disease in the left shoulder. Id. at 93. On

September 17, 2018, Plaintiff underwent another follow-up and was issued a

single bunk medical pass for four weeks, prescribed Meloxicam 15mg for thirty

days, and asked to return in three weeks for possible physical therapy. Id. at

83. Three days later, medical evaluated Plaintiff and recommended skilled

physical therapy two times per week for six weeks. Id. at 47-48.

On October 10, 2018, the disabled inmate committee evaluated Plaintiff

and listed his medical passes as permanent wheelchair and low bunk. Id. at

16. That same day, radiologist Elliott Wagner took another x-ray of Plaintiff’s

left shoulder, which again showed mild degenerative joint disease but

otherwise no fracture or dislocation. Id. at 96. Plaintiff began physical therapy

on October 15, 2018, and three days later, upon his request, Plaintiff signed a

refusal form declining all physical therapy services “due to constant pain at a

level 8 or higher.” Id. at 81, 59. On October 22, 2018, Plaintiff submitted a sick-

call request complaining about severe shoulder pain. Id. at 80. In response,

medical examined Plaintiff and noted mild swelling and pain upon palpitation

and movement of the left shoulder. Id. at 78. Medical provided him with a

sixteen-pack of 400mg Ibuprofen and scheduled a follow-up x-ray. Id. at 78-79.

On October 31, 2018, medical examined Plaintiff and instructed him to do daily

left shoulder exercises. Id. at 77. On or about November 20, 2018, Plaintiff filed

a formal grievance complaining that he received inappropriate postoperative

care. Id. at 76. The grievance coordinator denied the grievance after conducting

a records review that confirmed Plaintiff refused all physical therapy

encounters. Id.

b. Medical Care at Suwannee C.I.

On December 5, 2018, Plaintiff was transferred from R.M.C. to

Suwannee C.I. Doc. 44-2. The next day, medical received Plaintiff’s sick-call

request stating he was experiencing severe pain and “post-surgical trauma

from shoulder surgery,” as well as “injuries in RT shoulder and back hurting.”

Doc. 44-1 at 75. Plaintiff requested medical pass and medication renewal. Id.

On December 11, 2018, nurse S. Kemp conducted a sick-call exam and noted

that Plaintiff “needs renewal of passes – button down shirt pass . . . impaired

[inmate] asst., [wheelchair], wheelchair cushion, . . . [and] single bunk.” Id. at

74. Kemp noted “chart to MD for review.” Id. at 74.

On January 22, 2019, Figueroa wrote on Plaintiff’s chronological record

of health care that “passes renewed according to policy.” Id. That same day,

disabled inmate committee member D. Parrish filled out Plaintiff’s disabled

inmate management and service plan, which listed Plaintiff as having a

medical pass for wheelchair. Id. at 17. Plaintiff was present when D. Parrish

conducted the evaluation, Plaintiff specified on the form that he was not

making any A.D.A. requests, and Plaintiff signed the form upon completion.

Id.

On February 11, 2019, Figueroa examined Plaintiff, during which

Plaintiff complained of “joint pain” and “muscle tenderness.” Id. at 37. Figueroa

found Plaintiff had mild left shoulder atrophy and mild degenerative joint

disease of the left shoulder. Id. Figueroa ordered “muscle rub,” renewed low

bunk medical pass, and noted “passes were renewed on Jan. 2019.” Id.

Figueroa also prescribed a thirty-day supply of 600mg Ibuprofen. Id. at 41.

On February 20, 2019, Plaintiff submitted a sick-call request stating, “I

would like to know what happened to the passes Dr. Figueroa said he was

issuing one 2-10-19 or 2-11-19.” Id. at 73. Seven days later, nurse Kemp

conducted a sick-call evaluation, documenting “per MD note date 1/22/19 all

passes [ ] renewed per policy. No pass for button down shirt issued.” Id. at 72.

Kemp also noted that Plaintiff “voiced understanding after stating he would

add MD to current lawsuit.” Id.

On March 1, 2019, Figueroa wrote on Plaintiff’s chronological record of

health care that “passes [ ] renew[ed].” Id. at 72. Four days later,

administrative assistant R. Corbin noted Plaintiff’s informal grievance about

“passes [and] analgesic balm” was denied because “balm can be [requested] in

[sick-call] [and] passes written per policy.” Id.

On April 17, 2019, Plaintiff submitted a grievance requesting a new

wheelchair. Doc. 44-3 at 1. Medical provided Plaintiff with a new wheelchair

on April 24, 2019, and thus his grievance was returned on April 24, 2019. Id.

On May 9, 2019, Plaintiff submitted a grievance stating, among other things,

that since his transfer to Suwannee C.I., Figueroa has only examined him once;

Figueroa never issued Plaintiff medical passes corresponding with the passes

issued at R.M.C.; and that Dr. Winters was not contacted about post-surgical

trauma before his transfer to Suwannee C.I. Id. at 3. Dr. F. Cruz denied the

grievance, explaining that on “1/22/19 the MD issued passes for Low Bunk,

Restricted Activity (No push/pull > 20lbs & no stand > 20 min.) and Wheel

Chair w/ cushion.” Id. at 2. Cruz asserted “[i]t is a clinical decision, if an inmate,

will be issued a pass for medically necessary items.” Id. A few days later,

Plaintiff submitted a grievance complaining about a change in the dosage of

his blood pressure medication without receiving a physician consultation. Id.

at 5. Cruz denied the grievance, advising Plaintiff that his dosage was changed

during his visit to the chronic illness clinic on February 11, 2019. Id. at 4.

According to Cruz, however, Plaintiff did not deliver his refill slip for the new

dosage until May, which explains Plaintiff’s delayed recognition of the dosage

increase. Id. Cruz then stated “inmates do not have the authority to dictate

which medications or how a medication is prescribed by the clinician.” Id.

On July 18, 2019, Plaintiff submitted a sick-call request asking for a

medication renewal for Ibuprofen and muscle rub. Doc. 44-1 at 70. A few days

later, physician assistant L. Henderson prescribed Plaintiff a thirty-day supply

of 600mg Ibuprofen. Id. at 69. On July 23, 2019, nurse B. Cannon completed a

disabled inmate management and service plan for Plaintiff. Id. at 15. Cannon

listed Plaintiff’s passes as wheelchair, low bunk, no push/pull more than

twenty pounds, and no standing more than twenty minutes Id. Plaintiff,

refused to participate in Cannon’s assessment and did not sign the plan. Id.

On August 4, 2019, Plaintiff submitted an accommodation request to

exchange his combination lock for a key lock because his left-arm injury made

it difficult to open his combination lock. Id. at 21. Nurse A.K. Shaw evaluated

the request and advised officials that Plaintiff suffers from mobility

impairment and would benefit from device accommodation. Id. at 22. Based on

that recommendation, officials approved Plaintiff’s request. Id.

On August 19, 2019, Figueroa again examined Plaintiff, during which

Plaintiff complained of right shoulder pain. Id. at 36. Figueroa observed that

Plaintiff’s left elbow was bruised and yellowish and noted that he would review

Plaintiff’s previous left shoulder x-ray. Id. Figueroa then ordered a chest x-ray,

prescribed 15mg Mobic, and said that he “will be following [right] shoulder

complaint.” Id. That same day, Figueroa authorized Plaintiff’s one-year

medical passes for low bunk; wheelchair pusher; reduced activity – no

prolonged standing, no push/pull/lift more than twenty pounds; and attendant.

Id. at 43. And he authorized a permanent wheelchair pass. Id. Eight days later,

radiologist Steven Picerne conducted Plaintiff’s chest x-ray and found “no acute

pulmonary process.” Id. at 92.

On September 3, 2019, Plaintiff submitted a sick-call request

complaining of pain and stating that two weeks prior, Figueroa prescribed a

new medication and ordered x-rays for Plaintiff’s “left elbow believed to be

fractured and [right] shoulder,” but he has not received the medication or x-

rays. Id. at 68. According to Plaintiff, “all [he] was given [were] passes for

wheelchair, impaired asst., etc.” Id. Three days later, nurse S. Hancock

examined Plaintiff and advised him that Figueroa ordered an x-ray of only

Plaintiff’s chest, prescribed only one medication – Mobic, and documented that

he would be following Plaintiff’s right shoulder complaint. Id. at 67. Hancock

advised Plaintiff to “watch for call-out,” and noted that Plaintiff understood.

Id. On September 9, 2019, Plaintiff submitted an accommodation request

stating he has a medical pass for a mobility assistant, but no one has been

assigned. Id. at 42. That same day, officials approved his request for an

assistant and explained one would be provided when the next group of inmates

finish their mobility assistant training. Id.

On October 3, 2019, nurse B. Cannon completed Plaintiff’s quarterly

disabled inmate management and service plan. Id. at 14. Cannon reported that

Plaintiff did not show up for the meeting nor did he participate in the plan or

sign a refusal. Id. B. Cannon listed Plaintiff’s medical passes as “wheelchair,

attendant, pusher, low bunk, no ppl >20lbs, no stand >20 min.” Id.

On November 18, 2019, Plaintiff submitted an urgent sick-call request

complaining that “spinal impingement getting worse, to point of severe pain

and loss of feeling.”10 Id. at 64. According to Plaintiff, the injury was “ongoing

since . . . fall 2012 but sometimes better sometimes worse, now is much worse.”

Id. Two days later, nurse S. Hancock conducted a back pain protocol exam and

recorded that Plaintiff was suffering from severe back pain, prescribed 200mg

Ibuprofen with instructions to take the medication two-to-three times a day,

advised him to limit activity until discomfort improves, and sent his chart to

the doctor to change his pain medication from Mobic to “something else.” Id. at

61-62. Figueroa reviewed the chart on November 25, 2019, and wrote that

Plaintiff’s chronic back pain was addressed in the clinic every six months and

that Plaintiff “by protocol and policy knows the medication available as well as

passes.” Id. at 60. Figueroa also noted Plaintiff has Ibuprofen available in his

dorm and Naproxen would be ordered. Id.

10 Plaintiff also complained of “rectal leakage and severe acid reflux.” Doc. 44-

1 at 64.

On January 15, 2020, Plaintiff participated in his quarterly disabled

inmate management service plan conducted by nurse B. Cannon. Id. at 13.

Cannon listed Plaintiff’s medical passes as low bunk; no pushing, pulling,

lifting more than twenty pounds; no standing more than twenty minutes;

wheelchair; pusher; and assistant. Id. On January 24, 2020, Plaintiff

submitted a sick-call request about needing pass renewal for

“wheelchair/cushion/int. ass’t/low bunk, etc.” Id. at 32. Plaintiff also

complained about ongoing gastrointestinal issues and stated he did not have

problems with a low residue diet. Id. Medical conducted a sick-call exam and

recorded that during the exam, Plaintiff requested a low residue diet because

of diarrhea. Id. at 33. Medical charted the request for a doctor review, and

Figueroa responded by advising staff to discuss the diet policy with Plaintiff,

so he understands that diet passes must be approved by the Regional Medical

Director under special conditions. Id.

On February 10, 2020, Figueroa examined Plaintiff, during which he

complained of gastrointestinal issues and advised Figueroa he managed those

issues when he was on a low residue diet. Id. at 35. Figueroa found Plaintiff

had limited range of motion in both his left and right shoulders, pain in his left

shoulder, and chronic back pain. Id. Figueroa assessed Plaintiff for left

shoulder degenerative joint disease and renewed Plaintiff’s medical passes for

a wheelchair and cushion. Id. Figueroa planned for Plaintiff to undergo a right

shoulder x-ray and continue his medication regimen but noted Plaintiff did not

qualify for the requested low residue diet pass. Id. Four days later, Plaintiff

submitted a sick-call request stating Figueroa “said [Plaintiff] would receive a

pass for either diet [ ] to fix problem or pull-up pass . . . but [he] ha[s] not

received []either.” Id. at 30. Before he was seen for his sick-call request,

radiologist Santiago Jimenez conducted Plaintiff’s right shoulder x-ray, which

showed chronic rotator cuff arthropathy changes and no acute fracture. Id. at

55. On February 20, 2020, nurse B. Bodley conducted a sick-call exam of

Plaintiff, during which Bodley advised Plaintiff he did not meet diet pass

requirements. Id. at 29. Plaintiff submitted a grievance asserting that medical

advised he would receive either a low-fat diet pass or a pass for pull-ups for

“issue of diarrhetic leakage,” but Plaintiff had not received either. Id. at 23.

Officials denied the grievance, advising that medical examined Plaintiff on

February 10, 2020, and February 20, 2020, and determined Plaintiff did not

meet the requirements for a diet pass and that “[t]here was no mention of pull

ups by either clinician.” Id.

On April 25, 2020, Plaintiff submitted a sick-call request for renewal of

600mg Ibuprofen and complained of “loose bowls causing leakage,” which he

claimed was fixed with a diet pass that he no longer has. Id. at 28. Three days

later, Figueroa recorded in Plaintiff’s chronological record of health care that

Plaintiff has no history of fecal incontinence. Id. at 27. Figueroa also

documented that he discussed Plaintiff’s case with the Regional Medical

Director and there was no diagnosis to justify the use of pull-ups or diapers.

Id.

On July 13, 2020, Figueroa examined Plaintiff, during which Plaintiff

complained of “problems with [his] back and shoulder.” Id. at 34. Figueroa

renewed all Plaintiff’s medications, including muscle rub and 15mg Mobic, and

ordered x-rays of Plaintiff’s shoulders and back. Id. at 34. Figueroa also issued

one-year medical passes for low/bottom bunk; restricted activity – no prolonged

standing more than 20 minutes and no pushing, pulling or lifting more than

twenty pounds; wheelchair; cushion; button-up shirt; and wheelchair

pusher/assistant. Id. at 44. On July 21, 2020, Dr. Mark W. Cooper conducted

an x-ray on Plaintiff’s back and found “L4-S1 spondylytic disease and spinal

stenosis” and “negative sacrum and coccyx.” Id. at 54.

On September 24, 2020, Figueroa examined Plaintiff who requested a

button-up shirt pass. Id. at 26. Figueroa noted he would “get with A.D.A. for

assistance.” Id. Figueroa also documented that Plaintiff’s case was reviewed

and referred to the Regional Medical Director about Plaintiff’s shoulder

concern, and recorded that Plaintiff’s prior shoulder surgery resulted in a “poor

outcome,” so another surgery was not “a wise option” and Plaintiff recognized

this medical advice. Id. at 25. Figueroa instead concluded that a home exercise

plan and assistance with daily living activities was “more reasonable” for

Plaintiff, and Figueroa did not recommend an orthopedic consult. Id. Figueroa

also reissued Plaintiff’s medical passes for button-up shirt, wheelchair,

cushion, pusher or assistant, and no prolonged standing. Id. at 44. And he

prescribed muscle rub. Id. at 38.

VI. Plaintiff’s Response

In response, Plaintiff largely restates the allegations in his Amended

Complaint. Doc. 47. He asserts he was transferred to Suwannee C.I. “after

declaration of post[-]surgical trauma after left shoulder surgery,” and that the

trauma “was declared as a result of forced physical therapy in disregard to

orthopedic doctors treatment plan.” Id. at 2. According to Plaintiff, Figueroa

waited over a month to examine Plaintiff after his transfer, and during

Figueroa’s exam, Plaintiff gave Figueroa copies of his medical records outlining

his need for medical care. Id. Plaintiff argues that despite his review of

Plaintiff’s medical history, Figueroa failed to properly treat his left shoulder,

failed to reissue medical passes, and failed to conduct a previously ordered left

elbow x-ray. Id. According to Plaintiff, orthopedic specialists recommended

Plaintiff undergo right shoulder surgery and other specialists recommended

Plaintiff receive a neurological consult for his back injury, but Figueroa failed

to follow those recommendations and his “decision to take an easier and less

efficacious course of treatment [ ] constitutes deliberate indifference.” Id. at 7.

He asserts that because of Figueroa’s conduct, Plaintiff’s right shoulder and

back injuries have progressively deteriorated, resulting in declined right-arm

mobility and severe pain. Id. at 4-5. As such, he asks the Court to deny

Figueroa’s Motion for Summary Judgment. In support of his position, Plaintiff

provides several medical records and grievances (Doc. 47-1); a Declaration

(Doc. 48); and a Statement of Disputed Factual Issues (Doc. 49).

A chronological review of Plaintiff’s exhibits shows that on August 1,

2008, the Florida Institute for Advanced Diagnostic Imaging conducted an

M.R.I on Plaintiff’s right and left shoulders. Doc. 47-1 at 12-13. The M.R.I.s

revealed full thickness tears of each shoulder’s rotator cuff and degenerative

joint disease in each shoulder. Doc. 47-1 at 12-14. On August 26, 2008, medical

personnel reviewed the M.R.I. results with Plaintiff and discussed conducting

a “sh[oulder] scope” to fix Plaintiff’s left shoulder injury and administering

injections for Plaintiff’s right shoulder injury. Id. at 1. The doctor wrote, “for

now – [Plaintiff] rec. injecti[ons] [in] both shoulders to help” and Plaintiff

“agree[d] to ice/rest.” Id. at 2. That same day, doctors issued a surgery schedule

slip scheduling a left shoulder scope surgery for rotator cuff repair. Id. at 8.

The next chronological medical record Plaintiff offers shows that on

November 15, 2010, Dr. Nalini Anadjiwala, a physician at R.M.C., ordered that

Plaintiff undergo “flex/extend c-spine x[-]rays for neurosurgeon.” Id. at 10. On

November 19, 2010, radiologist E. E. Franco conducted Plaintiff’s spine x-ray,

which revealed “evidence of instability at the C4-5 level with flexion and

extension maneuvers. The degree of anterolisthesis is corrected with extension

maneuver.” Id. at 10. The last chronological medical record Plaintiff provides

is a September 23, 2013, consult report from an exam by Dr. Carlos Gama, a

neurologist at R.M.C. Id. at 11. Under Plaintiff’s medical history, Gama noted

a history of low back pain and mentioned a prior M.R.I. of Plaintiff’s spine

showed abnormal disc bulges at L4-5, L2-3, and L3-4. Id. Gama recommended

“neurosurgical consult[;] Robaxin 500mg [ ] [;] [and] RTC as needed.” Id. at 11.

Plaintiff provides a copy of the May 9, 2019, grievance about medical

pass renewals, which the Court previously discussed. Id. at 16. And he filed

the May 22, 2019, grievance appeal, in which Plaintiff again complained that

he came to Suwannee C.I. with specialist-issued medical passes and Figueroa

verbally advised him on January 1, 2019, that he would receive passes for a

button-up shirt and a single bunk, but Plaintiff was told at sick-call that

Suwannee C.I. “does not honor those types of passes.” Id. at 18. Plaintiff

attaches the Secretary’s denial of that appeal. Id. at 17.

In his Declaration, Plaintiff states the following, in relevant part:

On December 05, 2018, Plaintiff was transferred

to Suwannee C.I. Annex, where during intake medical

person[n]el were informed of post-surgical trauma

relating to surgery on left shoulder at R.M.C. . . . .

On December 05, 2018, Medical person[n]el

were informed of right shoulder rotator cu[ff] injury

and prescription scheduling and recommending

surgery on right shoulder by orthopedic specialists.

On December 05, 2018, During intake, medical

person[n]el were informed of back injury and

recommendation by neurologist to neurosurgeon for

treatment by doctor at R.M.C. [ ].

On January 22, 2019, Dr. Figueroa issued

medical passes while informing Plaintiff that medical

passes recommended by orthopedic specialist Dr.

Winters would not be given for button-up shirt and

single bunk pass as they were not given at this

institution according to policy.

On January 22, 2019, Dr. Figueroa was asked by

Plaintiff as to Plaintiff’s need for orthopedic consult

and subsequent need for surgery on right shoulder as

prescribed by orthopedic specialists of Palm Harbor,

Inc. Plaintiff was told by Dr. Figueroa that he had not

reviewed Plaintiff’s medical file but would do so. Dr.

Figueroa was also informed of Plaintiff’s back injury

and recommendation by Dr. Catrero, a neurologic

specialist at Lake Butler Medical Center and his

recommendation for consult by neurosurgeon for

treatment.

On February 11, 2019, Plaintiff was seen in

chronic illness clinic [ ] at which time Plaintiff gave Dr.

Figueroa copies of his medical file detailing Plaintiff’s

medical needs, such as, copy of M.R.I. scans of

Plaintiff’s left and right rotator cu[ff] injuries,

prescription and treatment plans for surgery on left

shoulder rotator cu[ff] by orthopedic specialists, as

well as the neurologist consult by doctor at R.M.C.

Lake Butler recommending Plaintiff to neurosurgeon

for prescription and treatment of back injury along

with M.R.I. scans of spinal column.

Plaintiff believes that Dr. Figueroa’s continued

deliberate indifference to Plaintiff’s serious medical

need for surgery on right shoulder as recommended by

orthopedic specialist is causing further extensive

damage as has been seen in left shoulder surgery,

causing unnecessary pain and suffering.

Plaintiff whose medical passes from orthopedic

doctor had expired due to refusal of Dr. Bassa at

R.M.C. to allow follow-up consult, explained to Dr.

Figueroa the need for passes and the reason passes

were expired [but Figueroa] refused to write passes for

button-up shirt and single bunk, stating those passes

were not allowed according to policy.

Two years after Dr. Figueroa’s refusal to follow

recommendation of orthopedic doctor concerning

button-up shirt for mobility issues, Dr. Figueroa

issued button-up shirt pass one month after service of

§ 1983 complaint [o]n his person.

Plaintiff has repeatedly declared the need for

medical care pr[e]scribed by specialist doctors and the

fear of permanent disability if not treated, as was seen

in left shoulder.

Dr. Figueroa stated to Plaintiff that he would

put the Plaintiff in for x-ray of left elbow believed to be

fractured due to Plaintiff’s statement of elbow

grinding and pains, but then refused to do so.

Plaintiff went to sick-call to ask why he did not

receive x-ray and wrote grievances denoting need for

treatment of left elbow fracture to no avail.

To date, Plaintiff has had no x-ray of left elbow.

. . . .

Doc. 48 (paragraph numbering omitted).

VII. Analysis and Conclusion

Neither party disputes that Plaintiff had a serious medical need. The

only question then is whether Figueroa acted deliberately indifferent to that

need. Liberally construed, Plaintiff describes four circumstances of Figueroa’s

alleged deliberate indifference: (1) Figueroa failed to reissue the same medical

passes that R.M.C. doctors issued; (2) he failed to follow orthopedic specialist’s

recommendation for surgery to repair a tear in Plaintiff’s right shoulder rotator

cuff; (3) he failed to follow neurology specialist’s recommendation for

neurological treatment of Plaintiff’s back injury; and (4) Figueroa never

conducted a left elbow x-ray after telling Plaintiff that an x-ray was needed.

The Court considers each allegation in turn.

a. Medical passes

As to the issuance of medical passes, Plaintiff primarily argues that

Figueroa’s failure to reissue medical passes for button-up shirt and single bunk

violated his Eighth Amendment rights. See Doc. 48. But those passes expired

before his transfer to Suwannee C.I., and Plaintiff admits in his Declaration

that those passes expired because doctors at R.M.C. refused to renew them.

Indeed, on September 7, 2018, medical personnel at R.M.C. specifically issued

an eight-week button-up shirt pass, which consequently expired on November

2, 2018. On September 17, 2018, R.M.C. issued its four-week single bunk pass,

which subsequently expired on October 15, 2018. Thus, Plaintiff had neither a

button-up shirt pass nor a single bunk pass in effect at the time of his

December 2018 transfer to Suwannee C.I.

Further, after his transfer, Figueroa’s decision about which passes to

issue were matters of medical judgment that do not rise to the level of

deliberate indifference. Estelle, 429 U.S. at 107. In January 2019, Figueroa

renewed Plaintiff’s medical passes “according to policy.” When Plaintiff filed a

grievance complaining that Figueroa did not issue all the passes he had at

R.M.C., Dr. Cruz clarified that the passes Figueroa issued in January 2019

were for low bunk, restricted activity (no push/pull over twenty pounds and no

standing over twenty minutes), wheelchair, and wheelchair cushion. Cruz also

advised Plaintiff that “[i]t is a clinical decision, if an inmate, will be issued a

pass for medically necessary items.” Doc. 44-3 at 2. By August 2019, Figueroa

made the clinical decision to issue Plaintiff a permanent wheelchair pass and

year-long passes for low bunk; wheelchair pusher; reduced activity – no

prolonged standing, no push/pull/lift over twenty pounds; and attendant. Id. at

43. The record shows that Plaintiff still had those medical passes in January

2020, and Figueroa, upon Plaintiff’s request, renewed a cushion pass in

February 2020.

Although Figueroa did not issue a button-up shirt pass until after

Plaintiff initiated this action, Plaintiff has presented no “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.”).

Likewise, Plaintiff has presented no evidence showing he suffered any

detrimental effect from Figueroa’s decision to not reissue a single bunk medical

pass.

Instead, a chronological review of Plaintiff’s medical records shows

Figueroa was aware of Plaintiff’s medical condition and history. When Plaintiff

presented medical complaints, Figueroa considered those complaints,

examined Plaintiff, and made objective findings about which medical passes to

issue. Thus, Figueroa did not act deliberately indifferent when issuing

Plaintiff’s medical passes.

b. Right shoulder

As to his contention that Figueroa refused to follow specialist’s

recommendation for right shoulder surgery, Plaintiff relies on the 2008 M.R.I.

he received before his incarceration. See Doc. 47-1 at 13-14. The 2008 M.R.I.

revealed a severe full thickness tear in the right rotator cuff, much like the

tear discovered in his left shoulder rotator cuff the same day. Id. at 12, 13.

After the M.R.I.s, however, doctors scheduled a surgical repair for only the left

shoulder rotator cuff tear and discussed treating Plaintiff’s right shoulder with

injections as well as ice and rest.

Plaintiff was incarcerated before the left shoulder surgery could take

place, and that surgery was not discussed again until ten years later when

Plaintiff was housed at R.M.C. Doc. 44-1 at 51. Notably, at R.M.C., orthopedist

Dr. Winters examined Plaintiff in 2018 and noted that the 2008 M.R.I.s showed

tears in Plaintiff’s right and left rotator cuffs, but that Plaintiff complained

that his left shoulder was weaker than his right shoulder. Id. According to Dr.

Winters’s notes, Plaintiff asked doctors to attempt a surgical repair of his left

shoulder injury. Id. The document never mentions a surgical repair of his right

shoulder.

The evidence also shows that once at Suwannee C.I., Plaintiff only

complained to Figueroa about right shoulder pain twice between December

2018 and March 2020, when Plaintiff filed this action. Although Figueroa

conducted his first clinical exam of Plaintiff on February 11, 2019, the evidence

reveals that Plaintiff complained to Figueroa about right shoulder pain for the

first time on August 19, 2019. Doc. 44-1 at 36. On that date, Figueroa noted

that Plaintiff’s current complaint was right shoulder pain, stated he “will be

following [right] shoulder complaint,” and prescribed 15mg Mobic. Id. at 36.

The second time Figueroa documented an issue with Plaintiff’s right shoulder

was on February 10, 2020, during an exam to address Plaintiff’s continuing

request for a low residue diet pass. It was during Figueroa’s objective findings

that he recorded a limited range of motion in Plaintiff’s right shoulder and

made the decision to order a right shoulder x-ray. Id. at 35. Then, at Figueroa’s

request, Plaintiff underwent his right shoulder x-ray eight days later, which

showed chronic rotator cuff arthropathy changes and no acute fracture. Id. at

55.

In July 2020, three months after Plaintiff filed this action, he made his

third complaint about right shoulder pain to Figueroa. Following that

complaint, Figueroa renewed Plaintiff’s pain medications, including 15mg

Mobic and muscle rub, and ordered that a second x-ray be conducted of both

shoulders. In September 2020, Figueroa advised Plaintiff that he discussed

Plaintiff’s right shoulder concern with the Regional Medical Director and

determined that surgery was not a “wise option” for Plaintiff considering the

complications Plaintiff experienced following his left shoulder surgery. The

record shows Plaintiff acknowledged that medical advice.

In sum, there is no evidence that any doctor, either before Plaintiff’s

incarceration or during his incarceration, recommended that Plaintiff receive

right shoulder surgery. Instead, the record shows that since 2008, doctors and

Plaintiff only discussed left shoulder surgery and a more conservative

approach to treat his right shoulder injury. The fact that Plaintiff was

dissatisfied with Figueroa’s conservative approach does not mean he was

subjected to cruel and unusual punishment. At most Plaintiff has shown a

disagreement with the course of treatment. Indeed, after the 2018 surgical

repair of his left shoulder, Plaintiff refused to participate in the recommended

physical therapy, and he argues that he now suffers from “permanent

disability” in his left shoulder. Plaintiff contends that Figueroa’s failure to

provide right shoulder surgery will result in the same outcome. But Plaintiff’s

logic is flawed. Plaintiff cannot rely on his left shoulder post-surgical

complications to show Figueroa disregarded a risk of serious harm by failing

to conduct the same surgery on Plaintiff’s right shoulder. It is apparent that

Figueroa did not want to subject Plaintiff to another invasive surgical

procedure that could potentially result in the same poor outcome. Rather,

Figueroa continually monitored Plaintiff’s right shoulder pain and Plaintiff

has not shown that his course of treatment amounted to deliberate

indifference. See Harris, 941 F.2d at 1505 (“Nor does a simple difference in

medical opinion between the prison’s medical staff and the inmate as to the

latter’s diagnosis or course of treatment support a claim of cruel and unusual

punishment.”).

c. Back

As to Plaintiff’s allegation that Figueroa refused to follow specialist’s

recommendations that Plaintiff see a neurosurgeon for his back injury, he

relies on Dr. Gama’s September 23, 2013, evaluation noting Plaintiff had

severe back pain and recommending Plaintiff receive a “neurosurgical consult.”

Doc. 47-1 at 11. But Gama made that recommendation when Plaintiff was

housed at Northwest Florida Reception Center, which was five years before

Plaintiff’s transfer to Suwannee C.I. And when doctors at NFRC allegedly

failed to send Plaintiff to a neurosurgeon for the back consult, Plaintiff filed

the § 1983 action in Derks, No. 5:15-cv-51-MW-GRJ.11

But of more import, while Plaintiff states in his Declaration that he

advised Figueroa about Gama’s 2013 recommendation during Figueroa’s

February 11, 2019, exam, Figueroa’s notes from that exam show Plaintiff only

complained of “joint pain” and “muscle tenderness.” Doc. 44-1 at 37. Notably,

other than his own statement, Plaintiff does not point to any record evidence

showing Figueroa knew about Gama’s 2013 recommendation for a neurological

consult.

But the record does show that when Plaintiff complained to Figueroa

about back pain, Figueroa recorded those complaints and treated Plaintiff

accordingly. Indeed, upon his transfer to Suwannee C.I., Figueroa regularly

11 The Court may take judicial notice of public records filed on another court.

Navarro v. City of Riviera Beach, 192 F. Supp. 3d 1353, 1364 (S.D. Fla. 2016) (“Courts

may take judicial notice of public records, such as a pleading filed in another court,

because such documents are ‘capable of accurate and ready determination by resort

to sources whose accuracy cannot reasonably be questioned.’”). Notably, “judicial

notice may be taken only to establish what those documents contain, not the veracity

of their contents.” Id. (citing Bryant v. Avado Brands, Inc., 187 F.3d 1271,1278 (11th

Cir. 1999)).

prescribed “muscle rub,” Ibuprofen, or Mobic. Plaintiff submitted his first sick-

call request specifically about back pain in November 2019, almost a year after

his transfer, in which he complained that he had been suffering from back pain

since 2012 “but sometimes [the pain] is better [and] sometimes [it is] worse.”

Doc. 44-1 at 64. Upon receipt of the complaint, nurse S. Hancock examined

Plaintiff, provided him with more Ibuprofen and recommended a change in

Plaintiff’s pain medication. Figueroa responded that Plaintiff’s chronic back

pain is addressed every six months, and Plaintiff knew the medical passes and

medications available to him. Figueroa then prescribed Naproxen as another

option for pain medication accessible to Plaintiff. Id. at 60. Figueroa again

documented Plaintiff’s complaint of “chronic back pain” during his February

2020 exam and renewed all medication. Id. at 35.

The sick-call requests Plaintiff submitted after February 2020 contained

no complaints about back pain, but instead asked for diet passes and medical

care for gastrointestinal issues. In July 2020, after Plaintiff filed this case, he

again complained of back issues and Figueroa immediately renewed his pain

medication and ordered a back x-ray. Id. at 34. Although the back x-ray

revealed spondylytic disease and spinal stenosis, id. at 54, Figueroa did not

find it medically necessary to recommend an orthopedic consult and told

Plaintiff to start an exercise routine, id. at 25.

On this record, none of Figueroa’s responses to Plaintiff’s back injury

amounted to deliberate indifference. Plaintiff has failed to demonstrate that

Figueroa had subjective knowledge of Gama’s 2013 recommendation for a

neurological consult. But even if Figueroa did have knowledge, viewing the

evidence and making all reasonable inferences in favor of Plaintiff, at most,

the evidence shows a difference of opinion between a medical professional who

recommended a neurological consult in 2013 and Figueroa who found it

unnecessary to recommend a specialist consult in 2020. This difference of

opinion cannot support an Eighth Amendment deliberate indifference claim.

Likewise, “the question of whether governmental actors should have employed

additional diagnostic techniques or forms of treatment ‘is a classic example of

a matter for medical judgment’ and therefore not an appropriate basis for

grounding liability under the Eighth Amendment.” Adams, 61 F.3d at 1545.

Further, while Figueroa’s decision to order an x-ray of Plaintiff’s back

may have been delayed, Plaintiff has presented no “verifying medical evidence”

showing that he suffered any “detrimental effect” as result of the alleged delay.

See Hill, 40 F.3d at 1188, overruled on other grounds by Hope, 536 U.S. at 730

(“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.”).

Thus, Figueroa did not act deliberately indifferent when treating Plaintiff’s

back injury.

d. Left Elbow

Finally, as to Plaintiff’s allegation that Figueroa failed to order an x-ray

of Plaintiff’s left elbow, he relies on his September 6, 2019, sick-call request

stating Figueroa examined him two weeks prior and told Plaintiff he “would

be given x-ray[] for left elbow believed to be fractured . . . .” See Doc. 47 at 3

(citing Doc. 44-1 at 68). But during Figueroa’s August 19, 2019, exam, when

Figueroa noted Plaintiff’s left elbow was yellowish and bruised, Figueroa only

ordered x-rays of Plaintiff’s left shoulder and chest. Doc. 44-1 at 36. There is

no evidence that Figueroa ever ordered an x-ray for Plaintiff’s left elbow, nor

is there evidence that Plaintiff had a valid medical need for a left-elbow x-ray.

Thus, Plaintiff has not shown an Eighth Amendment violation.

e. Conclusion

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, Figueroa is entitled to summary judgment in his favor.

The medical records show that Plaintiff received consistent and adequate

medical evaluations and treatments. His complaints about specific alleged

inadequacies do not amount to constitutional violations by themselves.

Plaintiff was not only being treated by Figueroa. Rather, the records show that

Plaintiff received medical care and treatment from several providers at the

prison.

The Constitution does not require that Plaintiff be afforded the exact

medical care and treatment he requests. He is only entitled to “minimally

adequate medical care.” Harris, 941 F.2d at 1504 (citation omitted). And

although he “may personally believe that he should have been treated

differently, his personal disagreement with the treatment administered by

[Figueroa] is ‘a classic example of a matter for medical judgment’—not a

constitutional violation.” Rutledge v. Alabama, 724 F. App’x 731, 736 (11th Cir.

2018) (quoting Adams, 61 F.3d at 1545). Figueroa’s Motion for Summary

Judgment (Doc. 44) is due to be granted.

VIII. Plaintiff’s Motion for Temporary Restraining Order

and Preliminary Injunction

A temporary restraining order (TRO) or preliminary injunction is

appropriate where the movant shows that:

(a) there is a substantial likelihood of success on the

merits;

(b) the TRO or preliminary injunction is necessary to

prevent irreparable injury12;

12 The Eleventh Circuit has “emphasized on many occasions, the asserted

irreparable injury ‘must be neither remote nor speculative, but actual and

imminent.’” Siegel v. LePore, 234 F.3d 1163, 1176-77 (11th Cir. 2000) (per curiam)

(quoting Northeastern Fla. Chapter of the Ass’n of Gen. Contractors v. City of

Jacksonville, 896 F.2d 1283, 1285 (11th Cir. 1990)).]

(c) the threatened injury outweighs the harm that the

TRO or preliminary injunction would cause to the non-

movant; and

(d) the TRO or preliminary injunction would not be

a[d]verse to the public interest.

Parker v. State Bd. of Pardons & Paroles, 275 F.3d 1032, 1034-35 (11th Cir.

2001) (per curiam) (citation and footnote omitted); see Keister v. Bell, 879 F.3d

1282, 1287-88 (11th Cir. 2018). Such injunctive relief “is an extraordinary and

drastic remedy that should not be granted unless the movant clearly carries

[his] burden of persuasion on each of these prerequisites.” GeorgiaCarry.Org,

Inc. v. U.S. Army Corps of Engineers, 788 F.3d 1318, 1322 (11th Cir. 2015)

(quotations and citation omitted).

Plaintiff seeks a temporary restraining order ostensibly to prevent

further damage to his right shoulder and back. Doc. 60; see also Doc. 59.

Mainly, he asserts that he has not yet been assigned an impaired assistant

even though Figueroa issued a medical pass for assistant, and he seeks an

injunction requiring Figueroa to provide the assistant. Doc. 59-3 at 1-3. But

Plaintiff does not allege facts or point to evidence showing Figueroa assigns

the assistant. Notably, in response to a July 2020 grievance in which Plaintiff

asserted he had an impaired assistant medical pass but had no assistant,

officials advised him that an assistant will be assigned “when the Annex

Medical Impaired Nurse has completed training of the new assistants.” Doc. 7-

1 at 21-22. Considering that evidence and for the reasons articulated above in

eranting summary judgment for Figueroa, Plaintiff's request is denied.

Accordingly, it is

ORDERED AND ADJUDGED:

1. Defendant Dr. Figueroa’s Dil[s]positive Motion for Summary

Judgment (Doc. 44) is GRANTED.

2. Plaintiffs Motion for Temporary Restraining Order and

Preliminary Injunction (Doc. 59) is DENIED.

3. The Clerk is DIRECTED to enter judgment for Defendant

Figueroa and against Plaintiff and CLOSE the case.

DONE AND ORDERED at Jacksonville, Florida, this 29> day of June,

2022.

K- OO:

Po frer—| |.

. BRIAN/J. DAVIS

United Statés District Judge

Jax-7

C: Larkin Derks, #849475

counsel of record

40