Barcelona v. Secretary of D.O.C.

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 9:15-CV-80102-ROSENBERG/REID

JOEL BARCELONA,

Plaintiff,

v.

JULIE L. JONES, et al.,

Defendants.

/

ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

This matter is before the Court on Defendants Raymond Herr, MD, Julie L. Jones, and D.L.

Stine’s (collectively, the “Defendants”) Motion for Summary Judgment (the “Motion”).1 The

Motion is fully briefed and ripe for review.

Plaintiff Joel Barcelona brought this pro se case pursuant to 42 U.S.C. § 1983 after he was

denied a hearing aid by prison officials in 2014. See Am. Compl., DE 36. Plaintiff’s Amended

Complaint alleges that the Defendants violated Plaintiff’s Eighth Amendment right to be free from

cruel and unusual punishment through Defendants’ deliberate indifference to his serious medical

need for a hearing aid. See id.

In considering this Motion, the Court has reviewed the following briefing: Defendants filed

a Statement of Facts in support of their Motion (“SOF”). DE 146. Plaintiff responded to the

Motion. Pl. Resp., DE 153. With his Response, Plaintiff also filed exhibits, including his medical

1 This case was previously referred to Magistrate Judge Reid for a Report and Recommendation on all dispositive

matters. See DE 2; DE 102. The Court vacates that referral for the limited purpose of considering the Motion for

Summary Judgment, consistent with the Court’s dialogue with the parties at the Calendar Call held before the

undersigned on August 14, 2019. See DE 149.

records, grievances, and relevant Department of Corrections policies. See DE 153-1, 153-2.

However, Plaintiff did not respond to Defendants’ SOF, in violation of Federal Rule of Civil

Procedure 56(c) and Local Rule 56.1, despite being apprised of Rule 56’s requirements in Judge

Reid’s Order Instructing Pro Se Plaintiff to Respond, which quoted the language of Rule 56(e).

DE 115. Defendants filed a Reply in support of their Motion. See Reply, DE 154.

In light of Plaintiff’s pro se status and failure to file a responsive SOF, the Court has

carefully reviewed all of the attachments to Plaintiff’s Response at DE 153, pursuant to Federal

Rule of Civil Procedure 56(e). The Court has also reviewed Plaintiff’s filings that were submitted

in briefing the first Motion for Summary Judgment in this case, because Plaintiff’s Response to

the instant Motion references the documents he submitted with his prior Response.2 See Pl. Resp.,

DE 153; see also Pl. 1st Resp., DE 120. Almost all of Plaintiff’s filed evidence has also been

submitted by Defendants and is cited to in Defendants’ SOF. See DE 112; Def. SOF, DE 146. The

parties’ understanding of the facts and the relevant medical records are substantially consistent, as

evidenced by their production, during the course of briefing two summary judgment motions, of

the same records. The exception is Plaintiff’s sworn affidavit which was filed in response to the

first summary judgment motion at DE 120 and Plaintiff’s deposition testimony. See DE 120, DE

24; Pl. Dep., DE 144-1. While Plaintiff’s arguments in his responses are not evidence, his sworn

affidavit and his deposition testimony are. See Sears v. Roberts, 922 F.3d 1199, 1206 (11th Cir.

2019) (finding a plaintiff’s sworn affidavit “should have been treated as testimony by the district

court”).

2 This is the second Motion for Summary Judgment briefed in this case. The first Motion resulted in a Report and

Recommendations issued by Magistrate Judge Reid, which was ultimately vacated to allow for additional discovery

and rebriefing of the motion for summary judgment. See Mot., DE 114; Report, DE 125; Order Vacating, DE 131;

Order allowing discovery and rebriefing, DE 133.

Finally, the Court held a pretrial Calendar Call with defense counsel and Plaintiff

Barcelona physically present in the courtroom on August 14, 2019. DE 149.

I. FACTS

Plaintiff has been in the custody of the Florida Department of Corrections (“FDOC”) since

March 21, 2005. Def. SOF., DE 146 ¶ 1. Plaintiff suffers from asymmetrical hearing loss, and he

brought this case against various prison officials after he was denied a hearing aid in 2014. See

Am. Compl., DE 35; see also 6/6/14 Letter, DE 112-1, 11 (identifying Plaintiff’s hearing

impairment).

On June 6, 2014, Plaintiff was seen by Dr. Arthur G. Zinaman, an audiologist with his

doctorate in audiology and who has been in practice since 1988. Def. SOF, DE 146 ¶ 3; see also

6/6/14 Report, DE 112-1, 11; Zinaman Dep., DE 139, 24. Dr. Zinaman reported that Plaintiff had

“profound” hearing loss in the right ear and “mild” hearing loss in the left ear. See 6/6/14 Report,

DE 112-1, 11. Based on this diagnosis, Dr. Zinaman reported that “[a]mplification is not

specifically recommended on the right side due to the severity of the hearing loss and poor word

discrimination exhibited. However, the left ear is a candidate for a hearing aid to improve overall

hearing due to the lack of such in the right ear.” Id., see also Def. SOF, DE 146 ¶ 3. Accordingly,

“[u]pon medical clearance and (South Bay Correctional) facility authorization, a hearing aid for

the left ear would be beneficial.” Id.; see also Def. SOF ¶ 3. Dr. Zinaman also recommended an

MRI to better understand the source of Plaintiff’s right ear hearing loss. See id. The MRI was

completed at Lakeside Medical Center, and the reviewing physician concluded that the results

were “unremarkable.” MRI Report, DE 112-1, 22.

Plaintiff in his affidavit swears that “Dr. J. Heller ordered that Plaintiff transport [sic] to

Lakeside M.C. to get a mold for a hearing aid by Dr. Zinaman. The hearing aid was ordered.” Pl.

Aff., DE 120, 24. Plaintiff repeats in his November grievance that an unnamed doctor at Palm

West Hospital ordered a hearing aid mold to be made for Plaintiff and that he was transported

outside of the prison for the same. Nov. Grievance, DE 112-2, 7 (“On July 11, 2014, I was taken

to Palm West Hospital to get an MRI. The doctor there ordered that I be scheduled to get a mold

for a ‘hearing aid.’ On August 5, 2014, I was taken to Lakeside Hospital to get a mold for a hearing

aid.”). See also Pl. Dep., DE 144-1, 9, 11. Defendants do not address whether Plaintiff was

transported for a hearing aid mold, and none of the submitted medical records from either party

supports Plaintiff’s assertion that a mold was ordered. See Def. SOF, DE 146; DE 153; DE 112.

On August 12, 2014, Dr. Zinaman issued a second report. See 8/12/14 Report, DE 112-1,

26. The Report states that a “mild gain device for the left ear may be beneficial, but this is declined

by patient. Alternatively, a power instrument for the right ear may provide speech and

environmental awareness with possible transcranial effect. Mr. Barcelona is agreeable to this

plan.” Id.; see also Def. SOF., DE 146 ¶ 5. At his deposition, Plaintiff did not recall being offered

a device for his left ear. Pl. Dep., DE 144, 11 (“Q: Did [Dr. Zinaman] offer you a device for your

left ear? A: No. Q: Was there any discussion regarding your left ear? A: No.”).3

On August 18, 2014, there is a notation in Plaintiff’s Chronological Record of Health Care

(the “Health Record”), by Dr. J. Heller (South Bay’s Medical Director), which appears to indicate

“Await [illegible] status of hearing aid approval.” 8/18/14 Health Record Note, DE 112-1, 25. By

August 22, 2014, the Health Record indicates that “Audiology referral deferred by UM [Utilization

Management]. Due to adequate hearing in one ear, not a candidate for hearing aid.” Id. See also

Def. SOF, DE 146 ¶ 6. The same was indicated in October 2014. See 10/2/14 Health Record Note,

3 In addition, in his unsworn responses, Plaintiff contests whether he was seen a second time by Dr. Zinaman after his

MRI was completed. See Pl. Resp., DE 153, 3. See also Zinaman Dep., DE 139, 27. Plaintiff further denies that he

ever declined the left ear gain device suggested by Dr. Zinaman. See Pl. Resp., DE 154, 9.

DE 112-1, 29 (“UM denied based on [Health Services Bulletin] 15.03.27. Must have bilateral

hearing loss.”).

Health Services Bulletin No. 15.03.27 was issued on April 9, 2014 for the purpose of

establishing “uniform procedures for the provision of auditory care to inmates.” Bulletin, DE 112-

3, 1-3. The Bulletin specifies that “A recipient [of a hearing aid] who has a unilateral (one ear)

hearing loss is not eligible for services. Exceptions to this policy may be granted on a case-by-case

basis as recommended by an otolaryngologist or otologist, with approval of the regional medical

director.” Id. See also Def. SOF, DE 146 ¶ 8.

On August 22, 2014, “Dr. Herr, the Chief Medical Officer for Correction Healthcare

Companies in Utilization Management, reviewed the request for hearing aid along with the June

2, 2014 audiometry results.” Def. SOF, DE 146 ¶ 6. According to Dr. Herr, “[b]ased on the

audiometry results and the adequacy of the hearing level in Mr. Barcelona’s left ear, he did not

meet the medical criteria guidelines for bilateral hearing loss under [Health Services Bulletin]

15.03.27(G)(2)(a)-(b) and therefore Mr. Barcelona was not a candidate for a hearing aid.

Additionally, based upon the audiometry results for the right ear, and the profound hearing loss, it

was not medically probable that a power instrument device for the right ear could have remedied

Mr. Barcelona’s condition. Based on the foregoing, I deferred further audiology consultation and

did not authorize a hearing aid for Mr. Barcelona at that time.” Herr Aff., DE 145-1 ¶ 15; see also

Def. SOF ¶¶ 11-14.

Plaintiff formally grieved this determination on September 24, 2014; October 21, 2014;

November 16, 2014; and December 8, 2014. DE 112-2. In his September grievance, Plaintiff

claims that his “condition could have easily been treated with a hearing aid. A hearing aid was

ordered by not one but two separate doctors.” Id. at 1-2. In response to Plaintiff’s September

grievance, Dr. Heller and Warden Stine signed a response stating, “Records indicate you only have

hearing loss in your right ear, per policies and procedures, in order to be eligible for services, the

recipient must have a bilateral (both ears) hearing loss. A referral was submitted but denied because

you do not meet this criteria.” Id. at 3. Plaintiff’s October, November, and December grievances

repeated the arguments he raised in his September grievance. See id. at 4-6, 7-8, 10-12. In response

to the November grievance, Dr. Heller and a different warden signed a response stating:

Records indicate you were seen by audiologist on 8/12/14 and it was determined

your hearing loss in the right ear. [sic] A referral request for hearing aid was ordered

on 8/19/14. The referral was submitted to the Utilization Department for a decision

and the consult was deferred by utilization management. Per Florida Department of

Corrections Guidelines a recipient for hearing aids must have a bilateral (both ears)

hearing loss. A person who has unilateral (one ear) hearing loss is not eligible for

services. Based on the above information, your grievance is denied.

Id. at 9.

Plaintiff then initiated this § 1983 action in January of 2015. Compl., DE 1.

In November 2018, while this action was still pending, Plaintiff was fitted for a hearing aid

for his left ear by Ariana Wascher, a licensed hearing aid specialist. Def. SOF, DE 146 ¶ 42, 46.

Although his hearing in both ears had remained stable in the intervening years, the Health Services

Guidelines had changed as of November 1, 2018, so that Plaintiff qualified for a left ear hearing

aid. See id. ¶¶ 47-51. See also Wascher Dep., DE 139, 8 (characterizing both ears’ hearing loss as

“stable” between 2014 and 2018 tests in spite of “very slight” or “slight” changes in the left ear).

Contra Pl. Dep., DE 144, 14 (“Q: Was your hearing different in 2018 when you saw Dr. Arian?

A: Yes, it’s different. . . . I had a hard time hearing about it. Q: It had gotten worse over the last

four years? A: Yes, yes, That’s why I said it’s almost damaged, so— Q: Is it worse than it was in

2016 when you were transferred? A: Yes.”).

In her deposition, Ms. Wascher stated that Plaintiff’s hearing in the left ear improved with

the hearing aid. See id. at 14 (“[U]pon fitting it and testing it and programming it I determined that

it was a good fit for his ear and that he was hearing speech crisp and clear, hearing better.”).

However, even with his hearing aid, Plaintiff states that as of August of 2019, he “cannot hear

T.V., loud speaker, mail calls, meal calls, or [if] somebody is calling behind me where the voice

came from.” Pl. Resp., DE 153, 13. He states that the left ear hearing aid “is only for face to face,

close and quite [sic] room.” Id.

II. SUMMARY JUDGMENT STANDARD

Under Rule 56, the summary judgment movant must demonstrate that “there is no genuine

issue of material fact and that the moving party is entitled to summary judgment as a matter of

law.” Fed. R. Civ. P. 56(c). The moving party bears the initial burden of demonstrating the absence

of a genuine dispute of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Summary

judgment is proper “if the pleadings, depositions, answers to interrogatories, and admissions on

file, together with the affidavits, if any, show that there is no genuine issue as to any material fact

and that the moving party is entitled to judgment as a matter of law.” Grayson v. Warden, Comm’r,

Ala. Dep’t of Corr., 869 F.3d 1204, 1220 (11th Cir. 2017) (quoting Celotex, 477 U.S. at 322)..The

existence of a factual dispute is not by itself sufficient grounds to defeat a motion for summary

judgment; rather, “the requirement is that there be no genuine issue of material fact.” Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 247–48 (1986). A dispute is genuine if “a reasonable trier of

fact could return judgment for the non-moving party.” Miccosukee Tribe of Indians of Fla. v.

United States, 516 F.3d 1235, 1243 (11th Cir. 2008) (citing Anderson, 477 U.S. at 247–48). A

fact is material if “it would affect the outcome of the suit under the governing law.” Id. (citing

Anderson, 477 U.S. at 247–48).

In deciding a summary judgment motion, the Court views the facts in the light most

favorable to the non-moving party and draws all reasonable inferences in that party’s favor. See

Davis v. Williams, 451 F.3d 759, 763 (11th Cir. 2006). The Court does not weigh conflicting

evidence. See Skop v. City of Atlanta, 485 F.3d 1130, 1140 (11th Cir. 2007). Thus, upon

discovering a genuine dispute of material fact, the Court must deny summary judgment. See id.

The moving party bears the initial burden of showing the absence of a genuine dispute of

material fact. See Shiver v. Chertoff, 549 F.3d 1342, 1343 (11th Cir. 2008). However, once the

moving party satisfies this burden, “the nonmoving party ‘must do more than simply show that

there is some metaphysical doubt as to the material facts.’” Ray v. Equifax Info. Servs., LLC,

327 F. App’x 819, 825 (11th Cir. 2009) (quoting Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio

Corp., 475 U.S. 574, 586 (1986)). Instead, “[t]he non-moving party must make a sufficient

showing on each essential element of the case for which he has the burden of proof.” Id. (citing

Celotex, 477 U.S. at 322). Accordingly, the non-moving party must produce evidence, going

beyond the pleadings, to show that a reasonable jury could find in favor of that party. See Shiver,

549 F.3d at 1343.

III. PLAINTIFF’S EIGHTH AMENDMENT CLAIM

“The Eighth Amendment’s prohibition against cruel and unusual punishment, applicable

to the State of Florida through the Due Process Clause of the Fourteenth Amendment, prohibits

the ‘unnecessary and wanton infliction of pain.’” Thomas v. Bryant, 614 F.3d 1288, 1303 (11th

Cir. 2010) (citing Robinson v. California, 370 U.S. 660 (1962); quoting Hudson v. McMillian, 503

U.S. 1, 5 (1992). In the prison context, the “Eighth Amendment can give rise to claims challenging

the specific conditions of confinement, excessive use of force, and the deliberate indifference to a

prisoner’s serious medical needs.” Id. at 1303-04.

“To prevail on a claim of deliberate indifference to [a] serious medical need in violation

of the Fourteenth 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)).

This analysis contains both an objective and a subjective component. A plaintiff

must first show an objectively serious medical need that, if unattended, posed a

substantial risk of serious harm, and that the official’s response to that need was

objectively insufficient. Second, the plaintiff must establish that the official acted

with deliberate indifference, i.e., the official subjectively knew of and disregarded

the risk of serious harm, and acted with more than mere negligence.

Gilmore v. Hodges, 738 F.3d 266, 274 (11th Cir. 2013) (citing Thomas, 614 F.3d at 1304 (11th

Cir. 2010); Taylor v. Adams, 221 F.3d 1254, 1258 (11th Cir.2000)).

A. Serious Medical Need

“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.” Youmans v. Gagnon, 626 F.3d 557, 564 (11th Cir. 2010) (emphasis added)

(citations omitted). “Medical treatment violates the Eighth Amendment only when it is so grossly

incompetent, inadequate, or excessive as to shock the conscience or to be intolerable to

fundamental fairness.” Hernandez v. Sec'y Fla. Dep’t of Corr., 611 F. App’x 582, 584 (11th Cir.

2015) (citing Estelle v. Gamble, 429 U.S. 97, 108 (1976)). “[N]either a difference in medical

opinion between the inmate and the care provider, nor the exercise of medical judgment by the

care provider, constitutes deliberate indifference.” Id.

In Gilmore v. Hodges, the Eleventh Circuit considered for the first time “whether a

substantial hearing impairment that can be remedied by a hearing aid may amount to a serious

medical need for purposes of the Eighth or Fourteenth Amendments.” 738 F.3d 266, 273 (11th

Cir. 2013). Prior to Gilmore, there was “precious little case law addressing an official’s failure to

supply a severely hearing impaired inmate with hearing aids.” Id. at 275. The Gilmore court

concluded that “[S]ubstantial hearing loss that can be remedied by a hearing aid can present an

objectively serious medical need.” Id. at 276. The court emphasized two elements for a deliberate

indifference claim based on an official’s failure to provide hearing aids: First, the prisoner must

suffer from significant, substantial or severe hearing loss and (2) the hearing loss must be able to

be remedied by a hearing aid. Id. at 274 (“whether severe, treatable hearing loss amounts to an

objectively serious medical need”); 276 (“Substantial hearing loss that can be remedied”); 277

(“not all hearing loss that amounts to a serious medical condition can be remedied”). Importantly,

the Gilmore court “caution[ed] … that not all hearing loss amounts to a serious medical condition.”

Id. at 276. And, “not all hearing loss that amounts to a serious medical condition can be remedied

with a hearing aid, and thus an official could hardly be faulted for failing to provide an inmate with

a hearing aid in that circumstance.” Id. at 277.

Here, the record makes clear that Plaintiff suffers from severe hearing loss in his right ear.

Every medical professional who has examined Plaintiff determined that Plaintiff’s right ear had

“profound” hearing loss, the most extreme classification of hearing loss. See, e.g., 6/6/14 Report,

DE 112-1, 11; 6/25/14 Health Record, DE 112-1, 16; 11/26/18 Consultation Report, DE 144-3.

See also Zinaman Dep., DE 139, 25 (“The profession recognizes different levels of hearing loss

going from normal, mild, moderate, severe and profound. Profound is the worst hearing loss

scenario.”). Plaintiff does not refute this evidence. See Pl. Dep., DE 144-12 (“I lost my hearing in

my right ear in 2014.”). However, it is not clear from the record that a hearing aid, or any other

device, could have remedied Plaintiff’s right ear hearing loss. In June of 2014, Dr. Zinaman

reported that “[A]mplification is not specifically recommended on the right side due to the severity

of the hearing loss and poor word discrimination exhibited.” 6/6/14 Report, DE 112-1, 11

(emphasis added). In August of 2014, Dr. Zinaman stated that “a power instrument for the right

ear may provide speech and environmental awareness with possible transcranial effect.” See

8/12/14 Report, DE 112-1, 26. Dr. Zinaman made this recommendation after, he understood4

Plaintiff to have declined a hearing aid for his left ear. See 8/12/14 Report, DE 112-1, 26. In his

sworn affidavit, Dr. Herr stated that “based upon the audiometry results for the right ear, and the

profound hearing loss, it was not medically probable that a power instrument device for the right

ear could have remedied Mr. Barcelona’s condition.” Herr Aff., DE 145-1 ¶ 15. Plaintiff has not

refuted Dr. Herr’s medical opinion.

As to Plaintiff’s left ear hearing loss, the record is undisputed that Plaintiff’s hearing loss

was “mild.” See 6/6/14 Report, DE 112-1, 11 (“mild in left ear”); see also Pl. Dep., DE 144, 13

(“Q: Have you ever had a complete hearing loss in both ears? A: No.”). This remained true in

2018. See Wascher Dep., DE 139, 7-8. Based on the undisputed record evidence from Plaintiff’s

medical providers, Plaintiff’s left ear hearing loss fails the test articulated in Gilmore because his

left ear hearing loss was only mild, which by definition, is not severe, substantial, or significant.

Nevertheless, when considering Plaintiff’s overall hearing capacity, the Court’s analysis of

the plaintiff’s hearing loss under the Gilbert framework changes. With regard to the magnitude of

his hearing loss, the medical records and Plaintiff’s subjective experiences are consistent with a

finding of substantial hearing loss. See, e.g., Pl. Dep., DE 144-1, 7. See also Pl. Resp., DE 153, 13

(“I cannot hear T.V., loud speaker, mail calls, meal calls, or somebody is calling behind me where

4 In his Response, which is not a sworn statement, Plaintiff disputes that he declined the left ear hearing aid. Pl. Resp.,

DE 153, 20. In his sworn deposition testimony, Plaintiff could not remember whether Dr. Zinaman made the

recommendation for a mild gain device for his left ear. Pl. Dep., DE 144-1, 11. Even if Plaintiff did not decline the

left ear hearing aid in August of 2014, this dispute is immaterial to the Court’s conclusion that the Defendants did not

act with deliberate indifference. See infra Section III.B.

the voice came from.”); Am. Compl., DE 36, 5 (same). Plaintiff identifies verbatim the kind of

hearing difficulties that the Gilmore court recognized as potentially leading to serious harm to

physical and mental health. Cf. Gilmore, 738 F.3d at 275-76 (describing that the plaintiff was

unable to hear the TV and “could have had trouble hearing a fire or other alarm, responding to

commands issued by guards, and reacting to a fight behind him or to prisoners threatening his

safety.”). The Court finds that due to the total loss of hearing in his right ear, coupled with even

mild hearing loss in his left ear, a reasonable jury could conclude that Plaintiff has severe,

substantial, or significant hearing loss.

However, it is less clear whether or not Plaintiff’s overall hearing loss could be remedied

by hearing aids. In 2014, Dr. Zinaman suggested various devices that might be able to help him.

See 6/6/14 Report, DE 112-1, 11 (“[T]he left ear is a candidate for a hearing aid to improve overall

hearing due to the lack of such in the right ear.”); 8/12/14 Report, DE 112-1, 26 (“A mild gain

device for the left ear may be beneficial, but this is declined by the patient. Alternatively, a power

instrument for the right ear may provide speech and environmental awareness.”) (emphasis added).

See also Herr Aff., DE 145-1 ¶ 15 (“Additionally, based upon the audiometry results for the right

ear, and the profound hearing loss, it was not medically probable that a power instrument device

for the right ear could have remedied Mr. Barcelona’s condition.”).5 Considering this evidence in

the light most favorable to Plaintiff, the Court finds that there is a genuine issue of fact regarding

whether any kind of hearing assistance device could have remedied his substantial hearing loss in

5 The Court notes that although Plaintiff’s claim must be analyzed based on the facts known at the time he was denied

a hearing aid in 2014, Plaintiff struggled with the same hearing problems in 2018 after he had been given a hearing

aid for his left ear as he had before he received his left ear hearing aid. See Pl. Resp., DE 153 (“The hearing aid on my

left ear is only for face to face, close and quite [sic] room. At present, I cannot hear T.V., loud speaker, mail calls,

meal calls, or somebody is calling behind me where the voice came from.”).

2014. Based on the doctors’ suggestions of a hearing aid or power instrument, a reasonable jury

could conclude that Plaintiff’s hearing loss could be remedied with one of these devices.

B. Deliberate Indifference

“To establish deliberate indifference, [a plaintiff] must prove (1) subjective knowledge of

a risk of serious harm; and (2) disregard of that risk (3) by conduct that is more than mere

negligence.” Nam Dang by & through Vina Dang v. Sheriff, Seminole Cty. Fla., 871 F.3d 1272,

1280 (11th Cir. 2017) (citing McElligott v. Foley, 182 F.3d 1248, 1255 (11th Cir. 1999)).

“Deliberate indifference must be more than an inadvertent failure to provide adequate medical

care, negligence in diagnosis or treatment, or medical malpractice.” Sifford v. Ford, 701 F. App’x

794, 795 (11th Cir. 2017). “[A] ‘simple difference in medical opinion’ does not constitute

deliberate indifference.” Ciccone v. Sapp, 238 F. App’x 487, 489 (11th Cir. 2007) (quoting

Waldrop v. Evans, 871 F.2d 1030, 1033 (11th Cir. 1989)). “[N]either a difference in medical

opinion between the inmate and the care provider, nor the exercise of medical judgment by the

care provider, constitutes deliberate indifference.” Hernandez v. Sec’y Fla. Dep't of Corr., 611 F.

App’x 582, 584 (11th Cir. 2015). See also West v. Higgins, 346 F. App’x 423, 427 (11th Cir. 2009)

(“[Plaintiff’s] claims rest on a difference of opinion regarding the care that he needed and received,

and the evidence does not establish deliberate indifference to a serious medical need.”).

Importantly, “[m]edical treatment violates the [E]ighth [A]mendment only when it is ‘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) (quoting Rogers

v. Evans, 792 F.2d 1052, 1058 (11th Cir. 1986). Thus, “[w]hether governmental actors should have

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

for medical judgment’ and, therefore, is not an appropriate basis for liability under the Eighth

Amendment.” Sifford, 701 F. App’x at 796 (citing Estelle v. Gamble, 429 U.S. 97, 107 (1976)).

See also Hamm v. DeKalb Cty., 774 F.2d 1567, 1575 (11th Cir. 1985) (citing Westlake v. Lucas,

537 F.2d 857, 860 n.5 (1st Cir. 1981) (“Where a prisoner has received ... medical attention and the

dispute is over the adequacy of the treatment, federal courts are generally reluctant to second guess

medical judgments and to constitutionalize claims that sound in tort law.”)).

Here, Plaintiff has sued three prison officials: Dr. Raymond Herr, the Utilization

Management director who denied Plaintiff’s request for a hearing aid; D.L. Stine, the prison

warden; and Julie Jones, the Secretary of the Florida Department of Corrections. See Am. Compl.,

DE 36; see also Order, DE 141 (“Therefore, the operative Amended Complaint is amended by

interlineation to identify Dr. Raymond Herr, as the individual in Utilization Management who

denied authorization for the Plaintiff's hearing aid.”).

1. Dr. Herr

As the Chief Medical Officer for Corrections Healthcare Companies in Utilization

Management, Dr. Herr “reviewed the request for hearing aid” with Plaintiff’s 2014 audiometry

results. Def. SOF, DE 146 ¶ 6. Throughout this litigation, Plaintiff has maintained that a “non

medical officer” denied his request for a hearing aid. See, e.g., Am. Compl., DE 36. And, the Court

and the parties struggled to identify exactly who that individual was. See, e.g., DE 47, DE 48, DE

76, DE 77, DE 109, DE 117. However, after many inquiries, defense counsel identified the

individual as Dr. Raymond Herr, M.D., CCHP. Notice, DE 140. As a result, Plaintiff’s Amended

Complaint was amended by interlineation to include Dr. Herr. Order, DE 141. Plaintiff did not

object to this procedure.

Once Dr. Herr was identified as the individual official who denied Plaintiff’s hearing aid

request, Dr. Herr provided an affidavit regarding that decision. “Based on the audiometry results

and the adequacy of the hearing levels in Barcelona’s left ear, he did not meet the medical criteria

guidelines for bilateral hearing loss… and therefore Barcelona was not a candidate for a hearing

aid. It was not medically probable that a power instrument for the right ear could have remedied

Barcelona’s condition.” Def. SOF, DE 146, ¶ 11 (emphasis added); see also Herr Aff., DE 145-1.

Plaintiff has not refuted this evidence. In his Response, he continues to refer to his sworn affidavit

at DE 120, which assumed, based on the information available to him at the time, that a “non-

medical official” denied his hearing aid request. In his Response, Plaintiff repeats that he was told

that Dr. Herr “refused to authorize payment for hearing aid because the plaintiff could hear from

one ear.” Resp., DE 153, 25. Indeed, Plaintiff appears plainly aware that the hearing aid request

was denied because he had sufficient hearing in his left ear. See Pl. Aff., DE 120, 24. Plaintiff’s

insistence that Dr. Herr was deliberately indifferent to his need for a hearing aid amounts to a

disagreement in Dr. Herr’s medical judgment, which is not sufficient for a deliberate indifference

claim. Cf. Sifford, 701 F. App’x at 796; Waldrop, 871 F.2d at 1033.

Here, it is not disputed that Dr. Herr denied Plaintiff’s hearing aid request, and that he did

so based on Plaintiff’s ability to hear in his left ear and his medical opinion that “it was not

medically probable that a power instrument device for the right ear could have remedied”

Plaintiff’s condition. See Herr Aff., DE 145-1, 4. This decision does not amount to deliberate

indifference by Dr. Herr, nor was it “so grossly incompetent, inadequate, or excessive as to shock

the conscience.” Harris v. Thigpen, 941 F.2d at 1505. And, Plaintiff’s disagreement with Dr.

Herr’s medical judgment is insufficient to create a genuine issue of material fact as to whether Dr.

Herr was deliberately indifferent to his medical condition. To the contrary, the record is clear that

Dr. Herr concluded that, in his medical judgment, a hearing aid was not appropriate or necessary

for Plaintiff. See Def. SOF, DE 146, ¶ 11-15; see also Herr Aff., DE 145-1.

Furthermore, to the extent Dr. Heller may have disagreed with Dr. Herr’s denial of the

hearing aid, see Def. SOF, DE 146 ¶ 17, such a disagreement between doctors does not provide

evidence of deliberate indifference to a serious medical need. See Whitehead v. Burnside, 403 F.

App’x 401, 403-404 (11th Cir. 2010) (affirming summary judgment in favor of prison officials

where plaintiff’s physician disagreed with prison medical staff regarding appropriate treatment:

“[plaintiff] has established, at best, a difference of medical opinion as to the appropriate treatment

for his injured knee. His personal belief regarding the severity of his injury is not sufficient to

overcome the medical opinions of [prison medical officials].”); see also Waldrop, 871 F.2d at

1033.

Accordingly, Dr. Herr is entitled to summary judgment, because Defendants have shown

that there is no genuine dispute of material fact that Dr. Herr denied Plaintiff’s hearing aid request

based on his medical judgment, which is insufficient to support Plaintiff’s claim for deliberate

indifference.

2. Warden Stine and Secretary Jones

Plaintiff has also sued Warden Stine and Secretary Jones for deliberate indifference to his

serious medical need. Warden Stine was only involved in Plaintiff’s medical treatment to the extent

that he signed off on Dr. Heller’s October 2014 response to Plaintiff’s grievance. See Def. SOF,

DE 146 ¶¶ 22-24; October Resp., DE 112-2, 3. Similarly, Secretary Jones was only involved in

Plaintiff’s treatment to the extent that her representative responded to Plaintiff’s grievances. See

Def. SOF, DE 146, ¶¶ 24-31. In this circumstance, where the Warden and Secretary are “not []

medical professional[s], nor [] directly involved in [plaintiff’s] medical care,” the plaintiff “must

establish that [the defendants were] responsible for his constitutional deprivation in a supervisory

capacity.” Sealey v. Pastrana, 399 F. App’x 548, 552 (11th Cir. 2010)

“[S]upervisors can be held liable for subordinates’ constitutional violations on the basis of

supervisory liability under” Section 1983. Mathews v. Crosby, 480 F.3d 1265, 1270 (11th Cir.

2007). “Supervisory liability under § 1983 occurs ‘when the supervisor personally participates in

the alleged constitutional violation or when there is a causal connection between the actions of the

supervising official and the alleged constitutional deprivation.’” Id. (quoting Cottone v. Jenne, 326

F.3d 1352, 1360 (11th Cir.2003)).

A causal connection may be established when: 1) a “history of widespread abuse”

puts the responsible supervisor on notice of the need to correct the alleged

deprivation, and he or she fails to do so; 2) a supervisor’s custom or policy results

in deliberate indifference to constitutional rights; or 3) facts support an inference

that the supervisor directed subordinates to act unlawfully or knew that

subordinates would act unlawfully and failed to stop them from doing so.

Id.

Nonetheless, “supervisory officials are entitled to rely on medical judgments made by

medical professionals responsible for prisoner care.” Williams v. Limestone Cty., Ala., 198 F.

App’x 893, 897 (11th Cir. 2006) (citing Durmer v. O’Carroll, 991 F.2d 64, 69 (3d Cir. 1993);

White v. Farrier, 849 F.2d 322, 327 (8th Cir. 1988)).

Here, there are no allegations of widespread abuse that would put Warden Stine or

Secretary Jones on notice of the need to correct the deprivation of hearing aids, and the facts do

not support an inference that they directed subordinates to act unlawfully. The record is clear that

Plaintiff was denied a hearing aid based on Dr. Herr’s medical judgment and on the Health Services

bulletin in effect in 2014, which made Plaintiff ineligible for a hearing aid. Indeed, Plaintiff has

not disputed that the only reason a hearing aid was not authorized was because of the policy – he

repeats throughout his pleadings, responses, sworn affidavit, and deposition that he was denied a

hearing aid because “one ear is good enough to hear” based on the Health Services bulletin. See,

e.g., Pl. Dep., DE 144, 12 (“Q: It wasn’t that folks weren’t going to buy you a hearing aid because

of some kind of discipline issue or some kind of retaliation? A: No. The only reason that they

refused to pay for that is because what they are saying is one ear is enough to hear. That’s what

they are saying.”).

As non-medical supervisors, both Warden Stine and Secretary Jones were entitled to rely

on Dr. Herr’s medical judgment. Accordingly, they are entitled to summary judgment, because

Defendants have shown that there is no genuine dispute of material fact that they were not

deliberately indifferent to Plaintiff’s serious medical need.

IV. DEFENDANTS’ IMMUNITY

Alternatively, even if Defendants were deliberately indifferent to Plaintiff’s serious

medical need, the Court finds that all three Defendants are immune from suit.

A. Official Capacity Claims

Defendants argue that to the extent Plaintiff attempted to sue the three defendants in their

official capacities as prison officials, they are immune from suit pursuant to the Eleventh

Amendment to the Constitution. See Def. Mot., DE 147, 21.

Plaintiff’s Amended Complaint alleges that he is suing Defendants in their “official

capacity.” See Am. Compl., DE 36, 4, 14. Plaintiff seeks monetary damages for relief against these

Defendants. Id. at 6.

The Eleventh Amendment absolutely bars suits for damages against state actors. See, e.g.,

Gamble v. Florida Dep’t of Health & Rehab. Servs., 779 F.2d 1509, 1511 (11th Cir. 1986). Here,

there is no dispute that the Florida Department of Correction, and its employees, are state actors.

Accordingly, Defendants are entitled to sovereign immunity for monetary damages that Plaintiff

seeks from Defendants in their official capacity.

B. Individual Capacity Claims

To the extent the Amended Complaint seeks monetary damages against Defendants in their

individual capacities, “qualified immunity shields government officials from individual-capacity

suits for actions taken while performing a discretionary function so long as their conduct does not

violate a ‘clearly established’ constitutional right.” Montanez v. Carvajal, 889 F.3d 1202, 1207

(11th Cir. 2018). This shield allows officials to carry out their discretionary duties without the

fear of personal liability or harassing litigation. Manners v. Cannella, 891 F.3d 959, 967 (11th

Cir. 2018). Qualified immunity protects from suit “all but the plainly incompetent or one who is

knowingly violating the federal law.” Lee v. Ferraro, 284 F.3d 1188, 1194 (11th Cir. 2002)

(quotation marks omitted). The applicability of qualified immunity presents a question of law for

a court to decide. Sims v. Metro. Dade Cty., 972 F.2d 1230, 1234 (11th Cir. 1992).

To be entitled to qualified immunity, an officer must establish that he was acting within his

discretionary authority during the incident. Manners, 891 F.3d at 967. The officer proves that he

acted within his discretionary authority “by showing objective circumstances which would compel

the conclusion that his actions were undertaken pursuant to the performance of his duties and

within the scope of his authority.” Roberts v. Spielman, 643 F.3d 899, 903 (11th Cir. 2011)

(quotation marks omitted). Here, Plaintiff does not dispute that the Defendants were acting within

their discretionary authority in declining to authorize a hearing aid.

If an officer establishes that he was acting within his discretionary authority, the burden

shifts to the plaintiff to show that the officer violated a constitutional right, and that the

constitutional right was clearly established at the time of the alleged deprivation of the right.

Montanez, 889 F.3d at 1207.

The Eleventh Circuit employs two methods for determining whether a reasonable officer

would know that his conduct is unconstitutional. Id. at 1291. First, a right is clearly established

if, under the relevant caselaw at the time of the violation, “a concrete factual context exists so as

to make it obvious to a reasonable government actor that his actions violate federal law.” Id.

(quotation marks omitted). Relevant caselaw is limited to the case law Supreme Court of the

United States, published case law by the Eleventh Circuit Court of Appeals, and the highest court

of the state under which the claim arose. Coffin v. Brandau, 642 F.3d 999, 1013 (11th Cir. 2011).

Alternatively, the Court may examine the officer’s conduct to determine “whether that conduct

lies so obviously at the very core of what the [Constitution] prohibits that the unlawfulness of the

conduct was readily apparent to the officer, notwithstanding the lack of fact-specific case law.”

Fils, 647 F.3d at 1291 (quotation marks omitted). This second method, known as obvious clarity,

is a narrow exception to the general rule that only caselaw and specific factual scenarios can clearly

establish a constitutional violation. Id.; see also Coffin, 642 F.3d at 1015 (stating that obvious

clarity cases are rare).

Clearly established law “should not be defined at a high level of generality” and “must be

particularized to the facts of the case.” White v. Pauly, 137 S. Ct. 548, 552 (2017) (quotation

marks omitted). Although there need not be a case directly on point for a right to be clearly

established, “existing precedent must have placed the statutory or constitutional question beyond

debate.” Id. at 551 (quotation marks omitted). While “general statements of the law are not

inherently incapable of giving fair and clear warning to officers,” the unlawfulness must be

apparent in the light of pre-existing law. Id. at 552 (quotation marks omitted); see also Vaughan

v. Cox, 343 F.3d 1323, 1332 (11th Cir. 2003) (stating that the “salient question . . . is whether the

state of the law gave the defendants fair warning that their alleged conduct was unconstitutional”)

(quotation marks omitted)). “[I]f case law, in factual terms, has not staked out a bright line,

qualified immunity almost always protects the defendant.” Oliver v. Fiorino, 586 F.3d 898, 907

(11th Cir. 2009). The Eleventh Circuit “has often been reluctant to reject qualified immunity for

deliberate indifference to medical need claims that ‘are highly fact-specific.’” Gilmore v. Hodges,

738 F.3d 266, 280 (11th Cir. 2013).

In 2013, the Eleventh Circuit acknowledged that “there was precious little case law

addressing an official’s failure to supply a severely hearing impaired inmate with hearing aids.”

Gilmore, 738 F.3d at 275 (11th Cir. 2013) (citing three unpublished circuit opinions and one

district court opinion). Other cases had addressed deprivations of dentures, eyeglasses, and

prostheses, but “these cases stopped short of stating a general principle applicable to all medical

devices, including hearing aids.” Id. at 279. Accordingly, the Court determined that there was no

clearly established law regarding the provision of hearing aid batteries where the plaintiff had

clearly been prescribed a hearing aid for severe, bilateral hearing loss. See id. at 269-70.

Here, the Court has the benefit of the Eleventh Circuit’s guidance in this case, in the form

of the appellate review of the Court’s initial dismissal of this case. In the Eleventh Circuit’s order

vacating the dismissal of Plaintiff’s Complaint, the court observed:

We deem the allegations in Barcelona’s complaint as falling between the two sets

of circumstances described in Gilmore—substantial hearing loss that can be

remedied by a hearing aid, and hearing loss that does not prevent a prisoner from

carrying on a conversation or hearing directions from correctional officers without

a hearing aid – and this court has not yet addressed whether a prisoner’s loss of

hearing in one ear, which leads a doctor to prescribe a hearing aid, is insufficient

to constitute a serious medical need where the prisoner retains some level of

hearing in his other ear.

Barcelona v. Sec’y, Fla. Dep’t of Corr., 657 F. App’x 896, 898–99 (11th Cir. 2016) (emphasis

added). The Eleventh Circuit opinion unambiguously recognized that its court has not addressed

whether the Gilmore standard extends to asymmetrical hearing loss. As a result, this Court cannot

conclude that Plaintiff had a “clearly established” right to a hearing aid, when he suffered

asymmetrical hearing loss with only mild hearing loss in one ear (as opposed to the plaintiff’s

severe, bilateral hearing loss as in Gilmore).

In addition, at the time of the Eleventh Circuit’s opinion, the parties were under the

erroneous impression that Plaintiff’s hearing aid request had been denied by a non-medical officer,

which the Eleventh Circuit assumed to be true at that stage of litigation. See id. at 898. However,

the record is now clear that it was not a non-medical officer, but a medical doctor, Dr. Herr, who

denied Plaintiff’s request. See discussion supra, Section III.B.1. This fact is critical to assessing

whether any of the defendants were on notice that their conduct was unconstitutional.

This Court concludes that even if the Eleventh Circuit had not explicitly stated in its opinion

in this case that it had not addressed this question presented by this case, the Defendants here still

were not on notice that their conduct was unconstitutional in 2014. Gilmore did not give the

Defendants fair warning that their alleged conduct was unconstitutional, based on the facts of this

case, where: (a) the prisoner has asymmetrical hearing loss, (b) an outside doctor suggested

treatment options, (c) the prison-employed medical doctor did not ultimately agree with the outside

doctor’s treatment recommendation, and (d) the prison doctor’s determination was based on the

likelihood that such treatments would produce medically significant mitigation of the prisoner’s

hearing loss. This is a very different situation from the facts in Gilmore, where: (1) the prisoner

had already been prescribed hearing aids, (2) the prisoner suffered from bilateral hearing loss, (3)

the prisoner’s doctor “noted that binaural amplification is strongly recommended,” but (4) prison

officials, who were not medical doctors, had failed to provide the prisoner with batteries for his

hearing aids. See Gilmore, 738 F.3d at 269 (emphasis in opinion). Contra 6/6/14 Report, DE 112-

11 (“Amplification is not specifically recommended…However, the left ear is a candidate for a

hearing aid…”); 8/12/14 Report, DE 112-1, 26 (“Amplification is an option…A mild gain device

for the left ear may be beneficial.”).

Put simply, the constitutional question of whether Plaintiff’s asymmetrical hearing loss

constituted a serious medical need was not beyond debate in 2014 when Plaintiff’s hearing aid

request was denied. Therefore, Defendants are entitled to qualified immunity from this suit and

summary judgment must be entered in their favor.

V. CONCLUSIONS

The Court concludes that Defendants are entitled to summary judgment. The Court finds

that as a matter of law, Defendants were not deliberately indifferent to Plaintiff’s alleged serious

medical need. Dr. Herr made a medical judgment about Plaintiff’s suitability for, and the

appropriateness of, a hearing aid, and determined that Plaintiff was not eligible for one. Medical

judgments, even those that prisoners and other medical professionals disagree with, do not rise to

the level of a constitutional violation. Warden Stine and Secretary Jones were then entitled to rely

on the medical judgment of the doctors charged with the medical care of prisoners in their care.

Additionally, the Defendants are immune from this suit. The Defendants, in their official

capacities, are absolutely immune from suits for damages under the Eleventh Amendment. The

Defendants, in their individual capacities, are protected by qualified immunity because the alleged

unconstitutionality of their conduct was not clearly established at the time of the events giving rise

to this suit.

Accordingly it is hereby ORDERED AND ADJUDGED as follows:

1. Defendants’ Motion for Summary Judgment [DE 147] is hereby GRANTED.

2. The Clerk of the Court is directed to CLOSE this case.

3. All pending motions are hereby DENIED AS MOOT. All deadlines are TERMINATED.

All hearings are CANCELLED.

4. Defendant is ORDERED to file and email to the Court (Rosenberg @flsd.uscourts.gov) a

proposed Final Judgment Order within three business days of the rendition of this Order.

DONE AND ORDERED in Chambers at West Palm Beach, Florida, this 10th day of

September, 2019. _ oo

| Dob A ep 2

BIN L. ROSENBERG /

UNITED STATES DISTRICT J UDGE

Copies to:

Counsel of Record, Clerk of Court, and

Joel Barcelona

M50331

Martin Correctional Institution

Inmate Mail/Parcels

1150 SW Allapattah Road

Indiantown, FL 34956

PRO SE

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