Baxter v. Wexford Health Sources, Inc.

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

FORT MYERS DIVISION

SADIK BAXTER,

Plaintiff,

v. Case No. 2:18-cv-479-JLB-NPM

WEXFORD HEALTH SOURCES,

INC., ROBERT HEMPHILL,

KAREN BLANKENSHIP,

CARMELLO BERRIOS, and

DENISE JENKS,

Defendants.

/

ORDER

This cause is before the Court on consideration of a motion for summary

judgment filed by Defendants Wexford Health Sources, Inc., Dr. Robert Hemphill,

Nurse Practitioner Karen Blankenship, Dr. Carmello Berrios, and Nurse Denise

Jenks. (Doc. 128.) After careful consideration of the pleadings and exhibits

offered by all parties and the entire record before the Court, the Court grants in

part and denies in part the defendants’ motion.

I. Background and Pleadings

Plaintiff, a Florida state prisoner, initiated this action on July 6, 2018, by

mailing a 42 U.S.C. § 1983 civil rights complaint to the Court raising eight claims

against Wexford Health Sources, Inc. (Wexford) and four individual medical

providers relating to the medical care he received while incarcerated at Charlotte

Correctional Institution (CCI). (Doc. 1.) Plaintiff generally alleged that the

defendants, in direct contradiction to orders from his urologist, limited the number

of single-use catheters provided to him, ultimately causing discomfort, pain, and

urinary tract infections (UTIs). (Id.) Plaintiff filed a second amended complaint

(SAC)—the operative pleading before the Court—on August 13, 2019. (Doc. 48.)

In the SAC, Plaintiff raised counts of medical deliberate indifference, discrimination

under the Americans with Disabilities Act, 42 U.S.C. §§ 12101, et seq. (ADA),

retaliation, intentional infliction of emotional distress, concert of action, aiding and

abetting, negligent infliction of emotional distress, negligent supervision, and

general negligence against the same defendants. (Id. at 9–21.) The defendants

filed three separate motions to dismiss the SAC. (Doc. 49; Doc. 50; Doc. 61.)

Upon consideration of the SAC and the defendants’ motions, the Court issued

a consolidated order dismissing the retaliation claims against all the defendants

except Wexford and Dr. Berrios and dismissing all claims for intentional infliction of

emotional distress. (Doc. 75 at 5–19.) The Court denied without prejudice the

defendants’ motion to dismiss Plaintiff’s claims for general negligence and negligent

supervision, construing them as medical malpractice claims subject to a two-year

statute of limitations. (Id. at 13, 15.) The Court noted that “[d]iscovery is needed

to develop the facts necessary for the Court to conduct the necessary, fact-intensive

analysis to discern whether the statute of limitations ran under section 95.11(7)(b)

[on Plaintiff’s negligence-based claims].” (Id. at 13.) The Court directed the

defendants to answer the SAC’s remaining counts. (Id. at 19.)

The defendants filed their answers and affirmative defenses on April 14,

2021. (Doc. 76.) They raised an affirmative defense that Plaintiff’s claims for

damages were barred by the Prison Litigation Reform Act’s (“PLRA’s”) exhaustion

requirement. (Id. at 2.) They also asserted that Plaintiff’s medical malpractice,

negligence, and First Amendment claims were barred by the applicable statute of

limitations and subject to dismissal for failure to comply with Florida’s pre-suit

notice and investigation requirements under Florida Statutes Chapter 766. (Id. at

2–4.) Because success on those affirmative defenses would be dispositive to some

or all of Plaintiff’s claims, the Court allowed the parties to undertake limited

discovery on these issues. (Doc. 77)

Thereafter, the defendants filed a motion for partial summary judgment,

asserting that Plaintiff’s general negligence claims were barred by a two-year

statute of limitations and subject to dismissal for non-compliance with Florida’s pre-

suit notification requirement. (Doc. 80 at 6.)1 Based on the pleadings and

exhibits, the Court concluded that Plaintiff’s claims of negligent infliction of

emotional distress, negligent supervision, and general negligence (Counts Eleven,

Twelve, and Thirteen) were medical negligence claims, that Plaintiff did not comply

with Florida’s pre-suit notification requirements for medical negligence claims, and

that Plaintiff could not cure the defect because the statute of limitations had

already expired (Doc. 87 at 7–11.) Thus, these claims were dismissed without

leave to amend. (Id. at 11–12.)

1 The defendants conceded that Plaintiff’s claims were exhausted and that

the constitutional (retaliation and deliberate indifference) claims were not time-

barred. (Doc. 80 at 3.)

On June 7, 2022, the Court entered a case management and scheduling order

(CMSO) setting deadlines for discovery. (Doc. 89.) The Court stayed the case

pending the completion of discovery and the filing of dispositive motions. (Doc. 95.)

The defendants filed this motion for summary judgment on May 8, 2023. (Doc.

128.) Plaintiff has filed a response (Doc. 151), and the defendants have filed a

reply. (Doc. 152.) The parties have supported their pleadings with exhibits.

(Doc. 128-1–128-5; Doc. 150-1–150-4.)

II. Legal Standards

Summary judgment is appropriate only if it is shown “that there is no

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

matter of law.” Fed. R. Civ. P. 56(a). The Supreme Court explains the summary

judgment standard as follows:

[T]he plain language of Rule 56(c) mandates the entry of

summary judgment, after adequate time for discovery and

upon motion, against a party who fails to make a showing

sufficient to establish the existence of an element essential to

that party’s case, and on which that party will bear the

burden of proof at trial. In such a situation, there can be no

genuine issue as to any material fact, since a complete failure

of proof concerning an essential element of the nonmoving

party’s case necessarily renders all other facts immaterial.

Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986) (internal quotation marks

omitted). The movant may meet this burden by presenting evidence that would be

admissible at trial, indicating there is no dispute of material fact, or by showing

that the nonmoving party has failed to present evidence supporting some elements

of its case on which it bears the ultimate burden of proof. Id. at 322–24.

“If the party seeking summary judgment meets the initial burden of

demonstrating the absence of a genuine issue of material fact, the burden then

shifts to the nonmoving party to come forward with sufficient evidence to rebut this

showing with affidavits or other relevant and admissible evidence.” Avirgan v.

Hull, 932 F.2d 1572, 1577 (11th Cir. 1991). Summary judgment is mandated

“against a party who fails to make a showing sufficient to establish the existence of

an element essential to that party’s case, and on which that party will bear the

burden of proof at trial.” Celotex, 477 U.S. at 322.

III. Discussion

The Court liberally construes the SAC as raising four remaining counts: (1)

individual Eighth Amendment deliberate indifference claims against Dr. Hemphill,

ARNP Blankenship, Dr. Berrios, and Nurse Jenks; (2) an ADA claim against

Wexford; (3) two First Amendment retaliation claims against Dr. Berrios; and (4)

state-law concert of action and aiding and abetting claims against Dr. Hemphill,

ARNP Blankenship, Dr. Berrios, Nurse Jenks, and Wexford. (See Doc. 128 at 3.)

Each cause of action will be addressed separately.2

2 The defendants have provided a 63-page record to support their motion for

summary judgment. (Doc. 128-1–Doc. 128-5.) In response, Plaintiff has provided

99 pages of exhibits. (Doc. 150-1–150-5.) While most of the facts are generally

helpful for offering context and background for the claims, not every fact offered by

the parties is material to the remaining counts. Therefore, the Court will not

separately discuss each factual allegation. Rather, it will set out and consider the

relevant material facts (disputed and undisputed) as it addresses each of Plaintiff’s

counts.

A. The individual medical defendants are not entitled to summary

judgment on Plaintiff’s Eighth Amendment deliberate

indifference claims.3

Plaintiff asserts that Defendants Hemphill, Blankenship, Berrios, and Jenks

(collectively, “medical defendants”) were each deliberately indifferent to his serious

medical needs by providing only three single-use catheters per week (and requiring

him to wash and re-use them) instead of the six-per-day prescribed by his prior

physician. He asserts that this caused him pain and led to several urinary tract

infections.

The following facts are relevant to this claim and, unless indicated otherwise,

are either undisputed, supported by record evidence, or both: Due to a 2009

gunshot injury, Plaintiff must self-catheterize (self-cath). (Doc. 48 at 3, ¶ 11.) In

the summer of 2013, while Plaintiff was incarcerated at the Broward County Jail,

Urologist Dr. Reda F. Sorial prescribed single-use catheters for Plaintiff. (Doc128-

3 at 3.)4 On July 10, 2014, while Plaintiff was incarcerated at Martin Correctional

3 The Court is aware that in a deliberate indifference count, “[e]ach

individual Defendant must be judged separately and on the basis of what that

person knows.” Burnette v. Taylor, 533 F.3d 1325, 1331 (11th Cir. 2008).

However, in their motion, the medical defendants collectively assert their

entitlement to summary judgment on the deliberate indifference claims, and they

do not allege that any specific defendant is less (or more) culpable than any other.

(Doc. 128 at 9–13). Likewise, Plaintiff asserts that all the medical defendants were

aware of, and disregarded, his need for more catheters. (Doc. 48.) Accordingly,

the Court collectively addresses the deliberate indifference claims, but recognizes

that Plaintiff has the burden at trial of proving deliberate indifference against each

separate defendant.

4 Plaintiff alleges that Dr. Sorial prescribed six catheters per day. The

defendants argue that Dr. Sorial did not specify the number of catheters Plaintiff

needed per day.

Institution, non-defendant ARNP T. Patten wrote a physician’s order for Plaintiff to

receive six non-latex catheters per day. (Doc. 150-1 at 5.)5 Plaintiff was

transferred to CCI on January 20, 2015. (Doc. 48 at 3, ¶ 13.) Dr. Hemphill

examined Plaintiff on January 22, 2015. (Id. at ¶ 16; Doc. 128-3 at 4.) Plaintiff

gave Dr. Hemphill the pass from Martin Correctional but Dr. Hemphill consulted

with a nurse6 who told Plaintiff that CCI could not afford to provide him with six

catheters per day, and would instead provide only three per week. (Doc. 48 at 4, ¶

21.) Dr. Hemphill wrote in his notes that he provided Plaintiff with the supplies

recommended by the nurse. (Doc. 128-3 at 4.) The nurse gave Plaintiff three

disposable single-use catheters, three pairs of gloves, and three packets of lubricant

and informed Plaintiff that they must last a week. (Doc. 48 at 5, ¶ 24.) Both the

nurse and Dr. Hemphill told Plaintiff that the catheters would be suitable for re-use

if washed. (Id. ¶ 25.) On February 5, 2015, ARNP Blankenship and Nurse Jenks

examined Plaintiff and diagnosed him with a suspected urinary tract infection

5 This document appears to be the “pass” that Plaintiff references in the SAC.

(Doc. 48 at 3, 4 at ¶¶ 15–17, 19.) The document is tilted “Florida Department of

Corrections Physician’s Order Sheet,” is stamped by Nurse Practitioner (ARNP) T.

Patten, and orders six non-latex fourteen-inch straight catheters and six packs of

cleaning wipes per day, as well as seven packs of lubricant per week. (Doc. 150-1

at 5.) In his response (Doc. 151), Plaintiff directs the Court to his medical record

showing that ARNP Patten reviewed the record from Dr. Sorial on November 19,

2014. (Doc. 150-1 at 6.)

6 Plaintiff asserts in his amended complaint that Dr. Hemphill consulted

with Nurse Jenks. (Doc. 48 at 4, ¶¶ 19, 21.) However, Dr. Hemphill’s notes states

that he consulted with Nurse Durand during this visit, not Nurse Jenks. (Doc.

128-3 at 4.) However, Plaintiff has offered a declaration that Dr. Hemphill

consulted with Nurse Jenks at the initial visit. (Doc. 150-4 at 3.) To the extent

the identity of the nurse with whom Dr. Hemphill consulted at this visit is material,

the Court finds it disputed.

(UTI). (Doc. 128-3 at 8; Doc. 48 at 6, ¶ 29–30.) Plaintiff informed ARNP

Blankenship that he self-cathed four or five times daily and was concerned about

reusing the catheters. (Doc. 128-3 at 8.) Plaintiff asserts that ARNP Blankenship

requested that Plaintiff be provided more catheters, but Nurse Jenks refused, and

ARNP Blankenship complied. (Doc. 151 at 4.) Plaintiff was instructed about the

importance of proper water intake, a healthy diet, and good hygiene to ensure that

he understood how to properly self-cath. (Doc. 128-3 at 8.) ARNP Blankenship

prescribed an antibiotic to treat the suspected UTI. (Id. at 9–10.) On March 27,

2015, Dr. Hemphill wrote a note in Plaintiff’s chart: "We received a call from Dr.

Sorial. I cannot return the call because I do not have a signed release of

information form. IM apparently wants more urinary catheters. Discussed with

[undecipherable].” (Doc. 150-1 at 9.)

There is another disputed issue of material fact that may be relevant to

Plaintiff’s deliberate indifference claims. The defendants assert that “[s]ubsequent

to February 23, 2015, the only other time that Plaintiff tested positive for a

suspected urinary tract infection at CCI was nearly one and a half years later, on

June 17, 2016.” (Doc. 128 at 6, ¶ 20.) However, Plaintiff asserts in his response to

the motion for summary judgment that the record shows he “tested positive for

[UTI] and treated with antibiotics on different dates other than the one defendants

stated.” (Doc. 151 at 15.) Plaintiff directs the Court to medical records from May

15, 2015, June 30, 2015, June 1, 2015, February 5, 2015, December 16, 2015, June

2, 2015, June 9, 2015, and May 2, 2015. (Doc. 150-1 at 1, 6, 8, 10, 14, 17, 22, and

26.) The defendants argue that the records “do not say [what he claims they do]”

and assert that Plaintiff has not attached anything “to corroborate that his Exhibit

‘A’ evidences additional instances of urinary tract infection.” (Doc. 152 at 3.)

However, the records do appear to show that Plaintiff was prescribed antibiotics on

those dates. Further, Plaintiff (who presumably knows what he was diagnosed

with and the reason for the antibiotic prescriptions) has filed a sworn statement

asserting that he was diagnosed with UTIs on at least one occasion other than those

listed by the defendants. (Doc. 150-4 at 6–7.) Therefore, the Court considers the

number of UTIs experienced by Plaintiff during the 17 months he was incarcerated

at CCI to be disputed.

As it relates to medical care, “the Supreme Court has held that prison

officials violate the bar on cruel and unusual punishments when they display

‘deliberate indifference to serious medical needs of prisoners.’ ” Keohane v. Fla.

Dep’t of Corr. Sec’y, 952 F.3d 1257, 1265 (11th Cir. 2020) (quoting Estelle v.

Gamble, 429 U.S. 97, 104 (1976)).7 For decades, the Eleventh Circuit has described

a “more than mere negligence” or “more than gross negligence standard” in

determining whether an official acted with deliberate indifference to that serious

medical need. See Hoffer v. Sec’y, Fla. Dep’t of Corr., 973 F.3d 1263, 1270 (11th

Cir. 2020) (“To establish deliberate indifference, a plaintiff must demonstrate that

the prison officials (1) had subjective knowledge of a risk of serious harm; (2)

disregarded that risk; and (3) acted with more than gross negligence.”) (internal

quotations omitted); see also Wade v. McDade, 106 F. 4th 1251, 1255 (11th Cir.

7 The parties do not dispute that Plaintiff’s need to self-cath is a serious

medical need.

2024)-. Recently, however, the Eleventh Circuit determined that those standards

conflicted with the Supreme Court’s decision in Farmer v. Brennan, 511 U.S. 825

(1994) and clarified that courts in this circuit should apply the “subjective

recklessness standard” as used in criminal law. See Wade, 106 F.4th at 1253.

Specifically, the Eleventh Circuit has instructed that to establish liability on an

Eighth Amendment deliberate indifference claim, the plaintiff must show:

First...as a threshold matter, that he suffered a

deprivation that was, “objectively, ‘sufficiently serious.’ ”

[Farmer, 511 U.S. at 834].

Second, . . . that the defendant acted with “subjective

recklessness as used in the criminal law,” id. at 839, and

to do so, he must show that the defendant was actually,

subjectively aware that his own conduct caused a

substantial risk of serious harm to the plaintiff – with the

caveat, again, that even if the defendant “actually knew of

a substantial risk to inmate health or safety,” he “cannot

be found liable under the Cruel and Unusual

Punishments Clause” if he “responded reasonably to the

risk.” Id. at 844-45.

Id. at 1262.8 The Wade court provided guidance about the type of actions (or

inactions) that could amount to subjective recklessness, noting that the Supreme

Court has “underscored that criminal recklessness denotes a state of mind marked

by one’s subjective awareness of a risk that results from his own conduct.” Id. at

*6. Citing and quoting Justice Kagan’s plurality opinion in Borden v. United

States, 593 U.S. 420, 427 (2021), the Eleventh Circuit explained that “[a] person

8 In his concurring opinion, the Honorable Alberto Jordan found that to the

extent prior Eleventh Circuit deliberate indifference cases or not inconsistent with

Wade, “they should continue to be cited as binding precedent.” Wade, 106 F.4th at

1265 (Jordan, J., concurring).

acts recklessly, in the most common formulation, when he consciously disregards a

substantial and unjustifiable risk attached to his conduct, in gross deviation from

accepted standards.” Wade, 106 F.4th at 1261.(emphasis in Wade)(citations and

quotation marks omitted). It is under this standard of review that the Court

evaluates the medical defendants’ conduct.

The medical defendants argue that Plaintiff has not provided any evidence

“that could lead a reasonable trier of fact to conclude that violations under the

Eighth Amendment have occurred.” (Doc. 128 at 12.) The Court disagrees. In

addition to his medical records, Plaintiff obtained from the manufacturer the

literature provided with Cololast Self-Cath single-use catheters. (Doc. 150-2.)

The literature contains a clear warning stating:

Reusing this single-use product may create a potential

harm to the user. Reprocessing, washing,

disinfection, and/or sterilization may compromise

product characteristics, causing additional risk of

physical harm to or infection of the user.

(Id. at 4.) The two-page pamphlet contains at least four warnings against reusing

the single-use catheters. (Id. at 4–5.) And the Court notes that the medical

evidence shows (and the defendants do not dispute) that Plaintiff reported the need

to self-cath about four or five times per day. Therefore, because he received only

three single-use catheters per week, Plaintiff was required to wash and reuse each

catheter at least ten times. In addition, Dr. Hemphill received a telephone call

from Dr. Sorial, Plaintiff’s former urologist, regarding the catheters, which Dr.

Hemphill did not return for lack of a release form from Plaintiff. Instead of

seeking a release from Plaintiff so that he could return Dr. Sorial’s call, Dr.

Hemphill consulted with a nurse (the results of the consultation are not

transcribed). The medical records do not indicate whether Dr. Hemphill ever

returned Dr. Sorial’s call.

“Whether a particular defendant has subjective knowledge of the risk of

serious harm is a question of fact ‘subject to demonstration in the usual ways,

including inference from circumstantial evidence, and a factfinder may conclude

that a prison official knew of a substantial risk from the very fact that the risk was

obvious.’ ” Goebert v. Lee County, 510 F.3d 1312, 1327 (11th Cir. 2007) (quoting

Farmer, 511 U.S. at 842). And whether the defendants disregarded that

“substantial risk” is “also a question of fact that can be shown by standard

methods.” Goebert, 510 F.3d at 1327. Here, a jury could well find that the

medical defendants rejected Plaintiff’s requests for additional catheters, not because

they were in any way indifferent to his needs, but because they believed that the

reduction in the number of catheters provided was medically justifiable. But a jury

could also reasonably conclude that each of the medical defendants subjectively

knew of and unreasonably disregarded an excessive risk to Plaintiff’s health “in

gross deviation” from accepted standards. Wade, 106 F.4th at 1261. There is

conflicting evidence about whether the decision to reduce the number of single-use

catheters provided to Plaintiff from six-per-day to three-per-week was medically

justifiable, and there is no evidence suggesting that the defendants returned Dr.

Sorial’s call, read the literature from the catheter’s manufacturer, or took any other

steps to investigate or verify whether it was medically appropriate for Plaintiff to

reuse each single-use catheter at least ten times. In Goebert, the Eleventh Circuit

noted that “ ‘[a] party that willfully blinds itself to a fact . . .can be charged with

constructive knowledge of that fact.’ ” 510 F.3d at 1328 (quoting United States v.

Baxtr Int’s, Inc., 345 F.3d 866, 902 (11th Cir. 2003)).

The defendants also argue that summary judgment is warranted because,

without an expert witness to testify to such, Plaintiff cannot show that the

defendants’ misconduct was the proximate cause of his UTIs. (Doc. 128 at 12–13.)

But the causation element of a section 1983 claim requires a plaintiff only to show

“that a defendant [has] a causal connection to the constitutional harm.” Goebert,

510 F.3d at 1327 (emphasis added); Zatler v. Wainwright, 802 F.2d 397, 401 (11th

Cir. 1986) (“A causal connection may be established by proving that the official was

personally involved in the acts that resulted in the constitutional deprivation.”).

And this “constitutional harm” can be the wanton infliction of unnecessary pain.

See Estelle v. Gamble, 429 U.S. 97, 104 (1972) (finding it well settled that the

deliberate indifference to a prisoner’s serious medical need constitutes the

unnecessary and wanton infliction of pain proscribed by the Eighth Amendment);

Mandel v. Doe, 888 F.2d 783, 788, 789 (11th Cir. 1989) (“This court has consistently

held that knowledge of the need for medical care and intentional refusal to provide

that care constitute deliberate indifference[,and] medical care which is so cursory as

to amount to no treatment at all may amount to deliberate indifference.”); McEligott

v. Foley, 182 F.3d 1248, 1257 (11th Cir. 1999) (“A core principle of Eighth

Amendment jurisprudence in the area of medical care is that prison officials with

knowledge of the need for care may not, by failing to provide care, delaying care, or

providing grossly inadequate care, cause a prisoner to needlessly suffer the pain

resulting from his or her illness.”); see also Boretti v. Wiscomb, 930 F.2d 1150,

1154–55 (6th Cir. 1991) (recognizing that “a prisoner who suffers pain needlessly

when relief is readily available has a cause of action against those whose deliberate

indifference is the cause of his suffering.”).

Here, Plaintiff alleges harm other than an actual UTI. He has offered record

evidence showing that he repeatedly visited the medical department complaining

about the pain or discomfort he experienced from reusing single-use catheters.

There is a question of fact as to whether it was reasonable for the defendants to

require Plaintiff to reuse each single-use catheter at least ten times and there is a

question of fact as to whether Plaintiff experienced pain from doing so.9 Moreover,

Plaintiff has provided evidence from the catheter manufacturer stating that

washing and reusing the single-use catheters (even once) could result in infection to

the user. A reasonable jury could find that the defendants’ refusal to provide any

care (or greatly reduced care) for Plaintiff’s complaints amounted to the wanton

infliction of pain— a stand-alone constitutional violation. Thus, the lack of an

expert to specifically tether the re-use of the single-use catheters to actual infections

may limit the amount of Plaintiff’s damages, but does not spell the end of his

9 Plaintiff does not raise a deliberate indifference claim against Wexford but

does assert that the defendants did not provide adequate catheters because of

“Wexford’s Custom and Policy of saving money at the expense of the patient.” (Doc.

48 at 6.) The defendants assert that Plaintiff has not supported his allegation of

the existence of a “Custom and Policy of putting profit over people.” (Doc. 128 at

10.) However, Plaintiff has offered Defendant Jenks’s alleged statement that

Charlotte Correctional Institution could not afford to provide him six catheters.

(Doc. 150-4 at 3.) Accordingly, a material issue of fact remains as to the reasons for

the medical defendants’ reluctance to provide more single-use catheters.

deliberate indifference claims against the individual medical defendants. The

defendants’ motion for summary judgment is denied as to the deliberate

indifference claims against Dr. Hemphill, ARNP Blankenship, Dr. Berrios, and

Nurse Jenks.

B. Dr. Berrios is entitled to summary judgment on Plaintiff’s

retaliation claims.

Plaintiff alleges retaliation in Count Seven of the SAC, but the facts

underlying the claim, as well as the identity of the specific defendants against

whom the claim is raised are unclear. (Doc. 48 at 5–16.) The defendants assert

(and Plaintiff does not argue otherwise in his response) that the retaliation claim is

raised against Dr. Berrios and based on two separate incidents of retaliation: (1) a

two-month revocation of Plaintiff’s cane pass; and (2) Dr. Berrios’ unsatisfactory

responses to Plaintiff’s grievances. (Doc. 128 at 15.)10

To support his claims, Plaintiff asserts that he was seen by Dr. Berrios on

June 2, 2015. (Doc. 48 at 8, ¶ 39.) Plaintiff asserts that Dr Berrios told him that

he could not provide the number of catheters sought and that “he would

intentionally ignore the urologist’s prescribed treatment.” (Id.) Plaintiff told Dr.

10 The defendants assert that this claim is also raised against Wexford.

(Doc. 128 at 3.) A review of the SAC does not support such a conclusion.

Moreover—given that respondeat superior liability is not usually cognizable under

section 1983—it is unclear how a corporation could engage in retaliation—especially

since Plaintiff asserts that his harm was caused by Wexford’s pre-existing policy of

not paying for an adequate number of catheters. Thus, even if Plaintiff intended to

raise a First Amendment retaliation claim against Wexford, the claim would be

dismissed under Rules 8 and 10 of the Federal Rules of Civil Procedure and for

failure to state a claim on which relief may be granted. 28 U.S.C. §

1915(e)(2)(B)(ii).

Berrios that he “was in pain and could barely walk or function on a daily basis.”

(Id. ¶ 40) Plaintiff alleges that Dr. Berrios told him that the medical department

was tired of his grievances and “things would change if he continued.” (Id. ¶ 43.)

Plaintiff asserts that “Defendant Berrios then retaliated against Plaintiff by

depriving him access to his cane stick and did not follow up on the urologist order of

treatment.” (Id. ¶ 44.)

Under the First Amendment, a prison official may not retaliate against a

prisoner for exercising his right to free speech. Farrow v. West, 320 F.3d 1235,

1248 (11th Cir. 2003). And “[a] prisoner can establish retaliation by demonstrating

that the prison official’s actions were the result of his having filed a grievance

concerning the conditions of his imprisonment.” Id. (internal quotation omitted).

“To prevail on a retaliation claim, the inmate must establish that: (1) his speech

was constitutionally protected; (2) the inmate suffered adverse action such that the

official’s allegedly retaliatory conduct would likely deter a person of ordinary

firmness from engaging in such speech; and (3) there is a causal relationship

between the retaliatory action . . . and the protected speech.” O’Bryant v. Finch,

637 F.3d 1207, 1212 (11th Cir. 2011) (internal quotations and alterations omitted).

While mindful that a plaintiff may not be held to a heightened burden of proof on a

retaliation claim, see Crawford-El v. Britton, 523 U.S. 574, 580–86 (1998) (holding

that the prisoner is not required to show “clear and convincing” evidence of a

defendant’s unconstitutional motives in a retaliation claim), courts approach

prisoner claims of retaliation “with skepticism and particular care” due to the near

inevitability that prisoners will take exception with the decisions of prison officials

and the ease with which claims of retaliation may be fabricated. Dawes v. Walker,

239 F.3d 489, 491 (2nd Cir. 2001), impliedly overruled in part on other grounds by

Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002).

Plaintiff has satisfied his burden of proof on the first element of a First

Amendment claim. It is well settled law that the First Amendment protects

inmates from retaliation by prison officials for filing administrative grievances and

lawsuits. Green v. Mowery, 212 F. App’x 918, 919 (11th Cir. 2006); Redd v.

Conway, 160 F. App’x 858, 862 (11th Cir. 2005). However, showing whether he

actually suffered an adverse action as a result of his grievances is problematic for

Plaintiff.

Dr. Berrios points out that Plaintiff’s cane was taken away on April 19,

2015—long before he (Dr. Berrios) allegedly threatened Plaintiff with retaliation on

June 2, 2015. (Doc. 128 at 16.) Plaintiff now argues that the defense states “false

and very much misleading facts,” and that “the reasons WHY the cane was

confiscated from Plaintiff did not become apparent until Plaintiff was being seen on

June 2, 2015.” (Doc. 151 at 13.) A review of Plaintiff’s SAC does not support a

conclusion that Dr. Berrios is being misleading in the motion for summary

judgment or has “misstated the facts of Plaintiff’s claim.” (Doc. 151 at 13.)

Plaintiff clearly states (or clearly suggests) in his SAC that his cane was taken away

after his June 2, 2014 appointment with Dr. Berrios and after Dr. Berrios

threatened him about filing grievances. (Doc. 48 at 8, ¶ 44.) Plaintiff cannot now

amend the facts in his SAC in his response to the defendants’ motion for summary

judgment. Gilmour v. Gates, McDonald and Co., 382 F.3d 1312, 1315 (11th Cir.

2004) (“A plaintiff may not amend her complaint through argument in a brief

opposing summary judgment.”). Moreover, Plaintiff’s medical records contain two

notations from non-defendant Nurse Donegan stating that Plaintiff was seen

“walking very briskly with a steady gait to [the] lunch and canteen line without

cane.” (Doc. 128-3 at 13.) As a result, the “cane [was] confiscated from [Plaintiff]

for non-use/misuse of cane.” (Id.) Thus, as it appeared to staff members,

Plaintiff’s possession of the cane was unnecessary and violated prison rules. In

short, even if some impermissible reason had entered into the unidentified staff

member’s decision to confiscate Plaintiff’s claim (a finding not made by this Court),

the cane would still have been taken away. Therefore, any inference of a causal

connection between Plaintiff’s grievances about catheters and the confiscation of his

cane is broken because the adverse action suffered by Plaintiff was a direct response

to Plaintiff’s ability to walk without it. See e.g. Smith v. Mosley, 532 F.3d 1270

(11th Cir. 2008) (finding that if a prisoner would have been subject to the same

discipline in the absence of protected speech, the retaliation claim will fail);

O’Bryant v. Finch, 637 F.3d 1207, 1220 (11th Cir. 2011) (recognizing that “[a]ny

possible causal connection between the protected activity (the grievances) and the

harm . . . is severed since the harm is not in reaction to any protected activity, but

directly due to an improper activity”); Graham v. Henderson, 89 F.3d 75, 79 (2d Cir.

1996) (addressing a prisoner’s retaliation claim, and explaining that, “if taken for

both proper and improper reasons, state action may be upheld if the action would

have been taken based on the proper reasons alone”); Smart v. England, 93 F.4th

1283, 1289–90 (11th Cir. 2024) (“[A] prisoner’s violation of a prison regulation is

unprotected by the First Amendment.”). Moreover, when Plaintiff grieved the

confiscation of his cane—on the basis that his need for it was intermittent—Dr.

Berrios reviewed the grievance and ordered a new cane pass. (Doc. 128 at 20.)

Based on the record before the Court, no reasonable jury could find that Plaintiff

satisfied the second or third elements of a retaliation claim against Dr. Berrios

based upon the confiscation of Plaintiff’s cane, and Dr. Berrios is entitled to

summary judgment on this claim.

Likewise, Plaintiff’s retaliation claim against Dr. Berrios regarding the

number of catheters he received is illogical. Plaintiff appears to allege that Dr.

Berrios’s denied his grievance in retaliation for filing it in the first place. But there

is no standalone cause of action for denial of a grievance. See Buckley v. Barlow,

997 F.2d 494, 495 (8th Cir. 1993) (recognizing that a prison grievance procedure

“does not confer any substantive right upon the inmates”). And it is axiomatic that

the mere risk that a grievance will be denied is not the type of retaliation that

“would likely deter a person of ordinary firmness from engaging in such speech” in

the first place. Smith v. Mosley, 532 F.3d 1270, 1276 (11th Cir. 2008). In short, to

the extent Plaintiff alleges that Dr. Berrios improperly limited the number of

single-use catheters provided each week, the cause of action lies in the Eighth—not

the First—Amendment. Summary judgment is granted in favor of Dr. Berrios on

this First Amendment retaliation claim as well.

C. Wexford is not entitled to summary judgment on Plaintiff’s

ADA Claims.

When Wexford moved to dismiss Plaintiff’s ADA claim, the Court discussed

and denied the motion as follows:

In Count VI, Mr. Baxter asserts a discrimination claim for

violating Title II of the ADA. 42 U.S.C. §§ 12131–12165.[FN]

To establish a prima facie case under the ADA, Mr. Baxter must

show: “(1) that he is a qualified individual with a disability; (2)

that he was either excluded from participation in or denied the

benefits of a public entity’s services, programs, or activities, or

was otherwise discriminated against by a public entity; and (3)

that the exclusion, denial of benefit, or discrimination was by

reason of his disability.” Lonergan v. Fla. Dep’t of Corrections,

623 F. App’x 990, 992 (11th Cir. 2015) (citing Bircoll v. Miami-

Dade Cnty., 480 F.3d 1072, 1083 (11th Cir. 2007)). A plaintiff

may bring an ADA claim based on a theory that a defendant did

not reasonably accommodate the plaintiff’s disability. Id. at

992, 994 (citing Schwarz v. City of Treasure Isl., 544 F.3d 1201,

1212 n.6 (11th Cir. 2008) (finding the failure of a correctional

institution to provide the plaintiff treatment prescribed by his

dermatologist was sufficient to plead a prima facie ADA

discrimination claim)).

[FN] Count VI also includes allegations that

Wexford was deliberately indifferent to Mr. Baxter’s

serious medical needs, potentially to set up a

separate deliberate indifference claim. (Doc. 48 at

¶¶ 84–85.) Despite these conflated allegations, Mr.

Baxter does not assert a discrete deliberate

indifference claim in Count VI. Wexford has

apparently moved to dismiss a deliberate

indifference claim in an abundance of caution.

After careful review, the Court does not interpret

the complaint as intending to assert a cause of

action for deliberate indifference against Wexford

(in Count VI or elsewhere). Therefore, there is

nothing to dismiss. The Court’s analysis here is

therefore limited to the ADA discrimination claim,

in accordance with Mr. Baxter’s labeling of Count

VI.11

11 Once again, the Court does not interpret the SAC as asserting a

Wexford argues that medical treatment decisions cannot serve

as the basis for claims under the ADA. (Doc. 49 at 13.) While

mere disagreement with medical treatment decisions may not

support claims under the ADA, the failure of prison medical

personnel to provide a prisoner with prescribed accommodations

in favor of an alternative remedy that does not provide sufficient

treatment may be enough for a plaintiff to plead a prima facie

case. See Lonergan, 623 F. App’x at 994 (reversing dismissal of

complaint where plaintiff pleaded that a prison’s medical

personnel provided an insufficient alternative remedy to that

prescribed by his dermatologist).

According to the complaint, a urologist prescribed Mr. Baxter a

specific regimen of self-catheterization. (Doc. 48 at ¶ 12.) Mr.

Baxter alleges that Wexford personnel did not honor his

previously received medical passes based on a urologist’s

prescription and only provided him with half his weekly supply

of catheters based on the institution’s alleged cost-savings

policy. (Id. at ¶¶ 37–38.) Thus, Mr. Baxter successfully

alleges more than mere disagreement with his medical

treatment—he alleges a failure to provide treatment ordered by

a urologist. There is no allegation of a new diagnosis that

would cause Mr. Baxter’s recommended treatment regimen to

change. Thus, Mr. Baxter has met his burden of pleading

Count VI.

(Doc. 75 at 5–7.) The defense now argues that—contrary to the Court’s findings in

its order on the motion to dismiss—Plaintiff merely disagrees with the medical

treatment rendered by the defendants. (Doc. 128 at 14.) They assert that the

facts show that the defendants followed the treatment ordered by urologist Dr.

standalone cause of action for deliberate indifference against Defendant Wexford.

However, the Court notes that Plaintiff is no longer being held at Charlotte

Correctional Institution, rendering moot any claims for injunctive relief under the

ADA. And proof of an ADA violation generally entitles a plaintiff to only injunctive

relief. See Silva v. Baptist Health S. Fla., Inc., 856 F.3d 824, 831 (11th Cir. 2017).

To get damages, Plaintiff must “prove that the entity that he has sued engaged in

intentional discrimination, which requires a showing of ‘deliberate indifference.’ ”

Silberman v. Miami Dade Transit, 927 F.3d 1123, 1134 (11th Cir. 2019).

Therefore, to the extent he seeks damages, Plaintiff’s burden is not lessened by

raising this claim under the ADA instead of the Eighth Amendment.

Sorial and that Plaintiff has not provided evidence of any cost-savings policy. (Id.)

However, the number of catheters initially prescribed by Dr. Sorial is a disputed

issue of material fact. And Plaintiff offers a sworn statement that he was told by

Nurse Jenks and other medical providers that the budget would not allow for six

catheters per day. (Doc. 150-4 at 3.) Moreover, it is undisputed that the

defendants provided Plaintiff only three single-use catheters per week, even though

Plaintiff told staff members that he self-cathed four or five times per day. This

Court must view all the evidence— and all factual inferences reasonably drawn

from the evidence—in the light most favorable to the nonmoving party. Hairston v.

Gainesville Sun Publ’g Co., 9 F.3d 913, 918 (11th Cir. 1993), The defendants offer

absolutely no reason for rationing single-use catheters, and therefore, it can be

reasonably inferred from the evidence before the Court that the denials were based

upon budgetary concerns. And after drawing that inference, the Court must deny

the defendants’ motion for summary judgment as it relates to Plaintiff’s ADA

claims.

D. Plaintiff’s state-law claims are dismissed as time-barred.

The defendants argue that they are entitled to summary judgment on

Plaintiff’s claims for concert of action and aiding and abetting because there is

simply “no evidence [of] underlying tortious conduct or assistance in the commission

of a tort.” (Doc. 128 at 17.) The defense further argues that “[t]he alleged

underlying tort in both the concert of action and abetting counts appears to be that

all Defendants worked in concert to implement Wexford’s cost-savings policy in a

manner that caused harm to Plaintiff.” (Doc. 128 at 18.) Indeed, Plaintiff does not

identify the underlying tort to support these state law tort claims, arguing only that

the defendants conspired to deprive him of adequate catheters and alleging that the

Court has “already found that Defendants provided Plaintiff with only three (3)

catheters per week,” which he alleges proves his point. (Doc. 151 at 14.)12 In

short, by arguing that it was medically unjustifiable for the defendants to order him

to wash and reuse single-use catheters, Plaintiff questions their medical judgment.

But to the extent Plaintiff bases these claims on medical negligence or malpractice,

they must be dismissed for the same reasons explained in the Court’s June 7, 2022

order. (Doc. 87.) See Paulk v. National Medical Enterprises, Inc., 679 So. 2d

1289, 1290 n.3 (Fla 4th DCA 1996) (“It seems to us that the intent expressed in [the

text of chapter 766] is to extend the statute whenever the medical judgment of the

provider is being challenged.”). In short, Plaintiff may not use these state causes of

actions as a back door to raise untimely and unexhausted medical malpractice

claims in state court, which is precisely what he attempts here. Therefore,

Plaintiff’s state law tort claims are dismissed as time-barred and for failing to

comply with Chapter 766, Florida Statutes. See discussion docket entry 87; see

also Simpson v. Florida, 708 F. App’x 635, 636 (11th Cir. 2018) (“A district court

may properly dismiss a § 1983 complaint sua sponte, without requiring any

responsive pleadings, for failure to state a claim if the action would be barred by the

state’s statute of limitations.”).

12 To clarify, the Court recognized in its earlier order that the defendants

provided Plaintiff with only three single-use catheters per week. (Doc. 149 at 16.)

This is a fact that is not disputed by the defense. The Court expressed no opinion

as to whether any defendant’s actions were tortious.

IV. Conclusion

Accordingly, it is now ORDERED:

1. The defendants’ motion for summary judgment (Doc. 128) is

GRANTED in part and DENIED in part. The motion is DENIED as to

Plaintiff’s Eighth Amendment deliberate indifference claims against the individual

medical defendants. The motion is DENIED as to Plaintiff’s ADA claim against

Defendant Wexford. The motion is otherwise GRANTED.

2. Within THIRTY-FIVE (35) DAYS from the date of this Order

Plaintiff shall file with the Court and serve upon the defendants a pretrial

narrative statement. The Pretrial Narrative Statement shall contain:

(a) A brief general statement of the case;

(b) A narrative written statement of the facts that will be offered by

oral or documentary evidence at trial;

(c) A list of all exhibits to be offered into evidence at the trial of the

case;

(d) A list of the full names and addresses and places of employment

for all the non-inmate witnesses that Plaintiff intends to call

(Plaintiff must notify the Court of any changes in their

addresses);

(e) A list of the full names, inmate numbers, and places of

incarceration for all the inmate witnesses that Plaintiff intends

to call (Plaintiff must notify the Court of any changes in their

places of incarceration);

(f) A summary of the anticipated testimony of each witness named

in (d) and (e);

(g) A stipulation of facts/issues to be tried; and

(h) An estimated length of trial.

3. Within FOURTEEN (14) DAYS from the date Plaintiff files his

Pretrial Narrative Statement, the defendants shall file and serve upon Plaintiff a

Pretrial Narrative Statement that complies with paragraph 2.

4. After both sides have filed a pretrial narrative statement, the Court

will enter a separate order setting the trial term and other pretrial deadlines.

5. At this point, the parties should strongly consider settlement

discussions.!° If the parties engage in settlement discussions, the Court requests

that a joint notice be filed to notify the Court. Upon filing of any notice of

settlement discussions, the Court would also entertain a motion to stay the

deadlines in this case.

DONE AND ORDERED in Fort Myers, Florida on September 18, 2024.

JOHN L. BADALAMENTI

UNITED STATES DISTRICT JUDGE

SA: FTMP-2

Copies: Sadik Baxter, counsel of record

13 This case has been pending for more than six years. As noted by the

Court in its April 11, 2024 order (Doc. 149 at 16), this protracted litigation seems

unnecessary and is undoubtedly resulting in considerable attorney’s fees and costs

for the defendants. After engaging in an unsuccessful telephone settlement

conference on February 13, 2023, the parties informed the Court that they were

interested in a settlement conference before a mediator. (Doc. 109; Doc. 110.)

This Order now streamlines the remaining issues and evidence. Given the smaller

subset of remaining viable claims, the Court urges the parties to now consider an in_

person good-faith settlement discussion. Ifa second, in person, settlement

discusssion is unsuccessful, the Court may, sua sponte or upon motion, consider

ordering a settlement conference before a Magistrate Judge.