The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
MARLON BROWN,
Plaintiff,
v. Case No: 2:21-cv-545-JES-KCD
MAUREEN RICEWICK, MICHAELA
BEARD, ANIECE THERMIDOR, and
JENICE JACKSON,
Defendants.
OPINION AND ORDER
This matter comes before the Court on Defendants’ Motion for
Summary Judgment (Doc. #69), Plaintiff Marlon Brown’s Response
(Doc. #78) and Amended Response (Doc. #80), and Defendants’ Reply
(Doc. #79). Brown also filed two sur-replies (Docs. #81 & #82),
and a motion for leave to file a sur-reply (Doc. #83). The Court
grants Brown’s motion for leave to file a sur-reply.
Background
Marlon Brown (Brown or plaintiff)—a prisoner of the Florida
Department of Corrections (“FDOC”)—filed this suit pro se,
alleging Defendants were deliberately indifferent to his serious
medical need. Each Defendant works as a nurse at DeSoto
Correctional Institution, where Brown is incarcerated. The
following facts are undisputed unless otherwise noted.1
1 In some instances, Brown ostensibly disputes Defendant’s
Brown had a medical appointment on September 26, 2020, for an
issue unrelated to this action. While getting ready for the
appointment, Brown injured his hand on his locker. Brown states
in an affidavit that he showed his swollen fingers to Jane Doe at
the appointment, and that Doe told him to submit a sick call
request. Brown claims he submitted sick call requests for
treatment of his fingers on the following dates: September 28,
October 9, October 20, November 23, and December 18, 2020. The
custodian of inmate medical records at DeSoto C.I. testified that
Brown’s records include only the December 18 request. Defendants’
unrefuted testimony establishes they were unaware of the first
four sick call requests.
Brown did not receive medical treatment for his fingers until
after the December 18, 2020 sick call request. Brown claims,
however, that he showed his hand to each Defendant during medical
appointments for unrelated issues on the following dates in 2020:
Aniece Thermidor on October 1, Maureen Ricewick on October 19,
Michaela Beard and Jenice Jackson on October 30, Ricewick again on
November 2, and Jackson again on November 24. Brown claims that
on each occasion the Defendant(s) refused to treat his fingers
factual statements but fails to cite to a particular part of the
record to support those disputes. In accordance with Federal Rule
of Civil Procedure 56(c)(1), the Court accepts as undisputed all
facts established by Defendants’ proper evidence and not disputed
with a citation to the record.
during that appointment and instructed him to submit a sick call
request. Defendants mostly deny seeing Brown on those dates,
however Jackson and Ricewick acknowledge they saw Brown on October
30 and November 2, respectively, but they deny that Brown
complained about his fingers.
Brown first received treatment for his hand on December 24,
2020. Ricewick evaluated Brown’s fingers, noted they were swollen
and deformed, and sent Brown’s chart to a clinician to determine
whether an x-ray is appropriate. The clinician ordered x-rays,
which showed soft tissue swelling with acute dorsal plate fractures
of the distal phalanxes of the fourth and fifth fingers. Thermidor
ordered Motrin 600 mg for Brown for two weeks and requested an
appointment to stabilize the fracture. Brown was scheduled for an
appointment to splint his fingers on January 19, 2021, but he was
a no-show. The appointment was rescheduled to January 26, 2021.
During the January 26, 2021 appointment, a clinician
recommended a consultation with an orthopedic specialist. Brown
refused. Brown’s hand was x-rayed again three days later. A
follow-up appointment was scheduled for February 19, 2021, but
Brown did not show for the appointment. In a rescheduled
appointment on March 1, 2021, a physician instructed Brown to
continue the treatment plan and gave him a low-bunk pass. Brown
did not show for a follow-up appointment on March 22, 2021, and a
rescheduled appointment took place on March 29, 2021. Brown did
not thereafter request additional treatment for his fingers until
August 17, 2021, about a month after he filed this suit. A
clinician saw Brown on August 23, 2021, and prescribed Ibuprofen
600mg. Brown did not request care for his fingers for the next
seven months.
On March 21, 2022, Brown submitted a sick call request
regarding finger pain, and a nurse saw him on March 30, 2022. The
nurse evaluated Brown and ordered a follow-up with a clinician.
The clinician diagnosed Brown with mallet fingers and requested a
consultation by an orthopedic specialist. The request was
approved, and Brown was transferred to the Reception and Medical
Center (“RMC”) for the orthopedic consultation. On April 28, 2022,
Brown submitted a written refusal of any treatment at RMC for his
fingers. Nonetheless, Brown’s fingers were x-rayed on May 6, 2022.
The x-rays showed healed fractures with no new fractures or
dislocations. Later that day, an orthopedic specialist evaluated
Brown’s fingers and discussed a possible surgical procedure, but
Brown refused to consider surgery. Brown explained he feared for
his life at RMC and wanted to be transferred out as soon as
possible.
Brown next requested care for his fingers (and headaches) on
September 4, 2022. A nurse practitioner saw Brown on September
14, 2022, and referred him to a clinician. The clinician
prescribed a three-month supply of Ibuprofen 600mg the next day.
Brown states Dr. Thomas Winters evaluated him on November 26, 2022,
gave him a Cortisone shot in his hand, and scheduled Brown for
surgery.
Legal Standard
A district court must grant summary judgment when the moving
party “shows that there is no genuine dispute as to any material
fact and the movant party is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a). The initial burden falls on the
movant, who must identify the portions of the record “which it
believes demonstrate the absence of a genuine issue of material
fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). A
genuine issue of material fact exists if “the evidence is such
that a reasonable jury could return a verdict for the nonmoving
party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
To defeat summary judgment, the non-movant must “go beyond the
pleadings, and present affirmative evidence to show that a genuine
issue of material facts exists.” Porter v. Ray, 461 F.3d 1315,
1320 (11th Cir. 2006).
In reviewing a motion for summary judgment, the Court views
the evidence and all reasonable inferences drawn from it in the
light most favorable to the non-movant. See Battle v. Bd. of
Regents, 468 F.3d 755, 759 (11th Cir. 2006). But “[a] court need
not permit a case to go to a jury…when the inferences that are
drawn from the evidence, and upon which the non-movant relies, are
‘implausible.’” Mize v. Jefferson City Bd. of Educ., 93 F.3d 739,
743 (11th Cir. 1996).
Brown filed his Complaint under 42 U.S.C. § 1983. To state
a § 1983 claim, a plaintiff must allege that (1) the defendant
deprived him of a right secured under the Constitution or federal
law, and (2) the deprivation occurred under color of state law.
Bingham v. Thomas, 654 F.3d 1171, 1175 (11th Cir. 2011) (citing
Arrington v. Cobb Cnty., 139 F.3d 865, 872 (11th Cir. 1998)). In
addition, a plaintiff must allege and establish an affirmative
causal connection between the defendant’s conduct and the
constitutional deprivation. Marsh v. Butler Cty., Ala., 268 F.3d
1014, 1059 (11th Cir. 2001).
Discussion
In Estelle v. Gamble, the Supreme Court established that
“deliberate indifference to serious medical needs of prisoners
constitutes the ‘unnecessary and wanton infliction of pain,’
proscribed by the Eighth Amendment.” 429 U.S. 97, 104 (1976).
But not every claim of inadequate medical treatment gives rise to
an Eighth Amendment violation. Id. at 105. Negligence in
diagnosis or treatment—even if it constitutes medical malpractice—
does not necessarily violate the constitution. Id. at 106.
“To prevail on a claim of deliberate indifference to serious
medical need in violation of the [Eighth] Amendment, a plaintiff
must show: ‘(1) a serious medical need; (2) the defendant['s]
deliberate indifference to that need; and (3) causation between
that indifference and the plaintiff's injury.’” Youmans v. Gagnon,
626 F.3d 557, 563 (11th Cir.2010) (quoting Mann v. Taser Int'l,
Inc., 588 F.3d 1291, 1306–07 (11th Cir. 2009)). In the Eleventh
Circuit, “[a] serious medical need is ‘one that has been diagnosed
by a physician as mandating treatment or one that is so obvious
that a lay person would easily recognize the necessity for a
doctor’s attention.’” Shaw v. Allen, 701 F. App’x 891, 893 (11th
Cir. 2017) (quoting Farrow v. West, 320 F.3d 1235, 1243 (11th Cir.
2003)).
Deliberate indifference has three components: “(1) subjective
knowledge of a risk of serious harm; (2) disregard of that risk;
(3) by conduct that is more than mere negligence.” Bingham v.
Thomas, 654 F.3d 1171, 1176 (11th Cir. 2011) (internal quotation
marks omitted). “Conduct that is more than mere negligence
includes: (1) grossly inadequate care; (2) a decision to take an
easier but less efficacious course of treatment; and (3) medical
care that is so cursory as to amount to no treatment at all.” Id.
But “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 does not support a claim of deliberate indifference.”
Wilson v. Smith, 567 F. App’x 676, 678 (11th Cir. 2014) (internal
citation and quotation marks omitted). “Moreover, matters of
medical judgment do not constitute deliberate indifference.” Id.
(citing Estelle, 429 U.S. at 107).
Defendants challenge several elements of Brown’s deliberate-
indifference claims. They argue that: (1) each Defendant provided
constitutionally adequate care during each encounter with Brown;
(2) Defendants were unaware of Brown’s hand injury before December
18, 2020; (3) directing Brown to submit a sick call request
regarding his fingers was a reasonable response to Brown’s
complaints; and (4) Brown presented no expert testimony to
establish causation.
Defendants’ first three arguments hinge on whether Brown
notified each Defendant of his hand injury, how each Defendant
responded, and the reasonableness of those responses. These issues
clearly involve factual disputes. Defendants satisfied their
initial burden by demonstrating through affidavit and medical
records that Brown did not notify any of them of his broken fingers
before December 18, 2021. The burden shifted to Brown, and he
carried it by testifying (via affidavit) that he showed his swollen
and deformed fingers to each Defendant before December 18, 2021,
and each declined to provide any treatment.
But Brown’s claims do not survive Defendants’ fourth
challenge. Defendants assert that Brown failed to produce
competent evidence that a delay in treatment attributable to
Defendants caused Brown harm. The delay potentially attributable
to each Defendant varies. The longest alleged period of delay
began when Brown claims he showed Doe his fingers on September 28,
2020, and ended on December 24, 2020, when Ricewick referred Brown
to a provider for x-rays. While there were subsequent delays in
Brown’s treatment, none were attributable to any Defendant. And
while Brown is not entirely satisfied with the care he continues
to receive, there is no evidence suggesting any Defendant was
deliberately indifferent to his fingers after December 24, 2020.
Thus, Brown must at least show that the approximately three-
month delay in treatment from September 28, 2020, to December 24,
2020, worsened his hand injury. “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.” Hill
v. Dekalb Reg. Youth Detention Ctr., 40 F.3d 1176, 1188 (11th Cir.
1994), overruled in part on other grounds by Hope v. Pelzer, 536
U.S. 730 (2002). Brown blames his mallet-finger diagnosis on a
delay in treatment, but he has provided no medical evidence to
verify that claim.
The closest Brown comes to establishing causation is his
account of the follow-up appointment for his x-ray results. Nurse
practitioner N. Wishon recommended referral to an orthopedic
specialist, and Brown refused. (Doc. #69-1 at 25). Brown
explained why in his affidavit: “51. I was also informed by Ms. C.
Cannon LPN and Ms. N. Wishon APRN that the damage to my hand was
already done because I had gone to [sic] long without treatment
and the healing process had already started.” (Doc. #78-3 at 5).
That is not enough to defeat summary judgment. Courts
generally must disregard inadmissible hearsay when considering
summary judgment. Fed. R. Civ. P. 56(c)(4); see also Fed. R. Evid.
801(c). While “a hearsay statement can be considered at summary
judgment if it can be reduced to admissible evidence at trial,”
Brown does not argue he could present the alleged statement in an
admissible form. Carrizosa v. Chiquita Brands Int’l, 47 F. 4th
1278, 1303 (11th Cir. 2022).
The Eleventh Circuit Court of Appeals considered similar
facts in Hines v. Parker, 725 F. App’x 801, 807 (11th Cir. 2018).
It found that an alleged hearsay statement from a treating
physician did not satisfy the need for verifying medical evidence:
“Hines averred that Dr. Sedaros said Hines would not ‘use his arm
the same again’ because of the delay, but the district court
correctly disregarded the statement as inadmissible hearsay.” And
even assuming Cannon or Wishon would testify that “the damage to
[Brown’s] hand was already done[,]” that statement is too vague to
establish the effect of the three-month delay in treatment. The
medical records refute any implication that Wishon considered
Brown’s injury untreatable because she recommended referral to a
specialist, which Brown refused.
No other evidence in the record suggests the initial three-
month delay in treatment worsened Brown’s condition. And even
assuming Brown’s injury worsened over time, he cannot distinguish
damage caused by the initial three-month delay from damage caused
by the three-year delay of orthopedic care resulting from his
repeated refusals to see a specialist. Because Brown cannot
produce evidence to satisfy the causation element of his claims,
a reasonable jury could not return a verdict in his favor.
Defendants are entitled to summary judgment.
Accordingly, it is hereby
ORDERED :
Defendants’ Motion for Summary Judgment (Doc. 69) is GRANTED.
Judgment will be entered in favor of defendants Maureen Ricewick,
Michaela Beard, Aniece Thermidor, and Jenice Jackson and Marlon
Brown shall take nothing. The Clerk is DIRECTED to terminate all
pending motions and deadlines, enter judgment accordingly for
Defendants and against Plaintiff, and close this case.
DONE and ORDERED at Fort Myers, Florida, this 19th day
of July 2023.
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JGHN E. STEELE
SHNIOR UNITED STATES DISTRICT JUDGE
SA: FTMP-1
Copies:
Counsel of Record