Windom v. Orange County, Florida

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

ORLANDO DIVISION

DAVID WINDOM,

Plaintiff,

Vv. Case No. 6:23-cv-7 61-JA-UAM

ORANGE COUNTY,

Defendant.

ORDER

THIS CAUSE is before the Court on Defendant Orange County’s Motion

for Summary Judgment (“Motion for Summary Judgment,” Doc. 31). Plaintiff

filed a Response in Opposition to the Motion for Summary Judgment

(“Response,” Doc. 32), and Defendant filed a Reply to the Response (“Reply,”

Doc. 34). For the following reasons, Defendant’s Motion for Summary Judgment

(Doc. 31) will be granted.

I. Factual Background

Plaintiff David Windom sued Defendant Orange County for deliberate

indifference to his serious medical need while he was detained in the Orange

County Jail “OCJ”) in violation of the Eighth and Fourteenth Amendments.!

vs gu The Court previously dismissed Plaintiffs claim for negligent supervision. See

oc. 25.

(Doc. 31-1 at 3-4.) Plaintiff alleged that to save money Defendant “has internal

policies and procedures that dissuade their medical staff from referring matters

to outside medical providers.” (Id. at 2.)

The parties submitted the following evidence. In 2018, Plaintiff was

arrested and incarcerated in the OCJ until his release in May 2019. (Doc. 32-5

at 1.) While in OCJ, Plaintiff began experiencing irritation, redness, and

blurriness in his right eye. (Doc. Nos. 31-1 at 2; 31-3 at 11.) Before this time, he

had no conditions impairing his vision. (Doc. 32-5 at 2.)

Pursuant to Defendant’s protocol, Plaintiff was seen by OCJ’s medical

staff several times. They treated Plaintiff's eye condition with over-the-counter

eyedrops, which seemed to aggravate his condition. (Doc. Nos. 31-1 at 2; 31-3 at

11-12; 32-5 at 3.) Plaintiff requested to be referred out to a vision specialist

many times, but his requests were denied. (Doc. Nos. 31-1 at 2; 32-5 at 3.)

Plaintiffs vision problems became progressively worse, and after two to four

months, he was sent to Bird Institute/Garay Eye Care and Surgery Center. (Doc.

Nos. 31-1 at 2; 31-3 at 12, 15; 32-5 at 3.)

On February 25, 2019, Dr. Cynthia Franco first examined Plaintiff, who

complained of a burning sensation and foggy vision in his right eye. (Doc. 31-2

at 5.) Dr. Franco determined that Plaintiff had uveitis? and prescribed him

2 Dr. Franco testified that uveitis is “a condition where the front part of the eye

is inflamed[,]” which can be caused by, among other things, trauma, herpes, or

Prednisolone Acetate 1% (“Prednisolone”) drops to be taken every two hours.

(Doc. Nos. 31-2 at 5; 31-4 at 6.; 32-5 at 3.)

Dr. Franco next saw Plaintiff on March 138, 2019. Dr. Franco’s

examination record indicated that Plaintiff told her he used the medication for

a week and then discontinued it, but Plaintiff attests that OCJ failed to provide

him with the medication. (Doc. Nos. 31-2 at 7, 11; 31-4 at 7; 32-5 at 4.) Dr. Franco

prescribed Plaintiff Timolol .5% (“Timolol”) and Prednisolone drops to be used

four times daily for two weeks, and she requested that Plaintiff be allowed to

keep the drops with him. (Doc. Nos. 31-2 at 8; 31-4 at 8.)

When Dr. Franco next saw Plaintiff on April 18, 2019, Plaintiff told her

he had not received the Prednisolone drops. (Doc. Nos. 31-2 at 10; 31-4 at 9; 32-

5 at 3.) During the time Plaintiff waited for OCJ to give him the prescribed

medication, his vision became worse. (Doc. 32-5 at 4.) Dr. Franco continued the

two prescriptions and contacted OCJ’s Medical Director to ensure that

Prednisolone was put on Plaintiffs list of medications, so he would receive it.

(Doc. Nos. 31-2 at 21; 31-4 at 10.)

On May 3, 2019, Dr. Bird examined Plaintiff and noted that his vision had

improved. (Doc. Nos. 31-2 at 10-11; 31-4 at 11-12.) Dr. Bird continued Plaintiffs

rheumatoid arthritis. (Doc. 31-2 at 5-6.) Dr. Franco did not determine what caused

Plaintiffs uveitis. (Id. at 6.) According to Dr. Franco, uveitis can increase eye pressure

and too much increase in eye pressure may cause blindness. (Doc. 31-2 at 23.)

two prescriptions and also prescribed Valcyclovir to treat suspected herpes in

his eyes. Ud.) On May 20, 2019, before Plaintiffs release from OCJ, Plaintiff

was examined again, and Dr. Franco noted that his condition had improved and

prescribed him Prednisolone and Timolol for two weeks. (Doc. Nos. 31-2 at 11;

31-4 at 13-14.)

On August 27, 2020, more than a year after Plaintiff was released from

OCJ, Plaintiff returned to Garay Eye Care and Surgery Center for a disability

eye examination. (Doc. Nos. 31-2 at 11-12; 31-4 at 15-17.) Dr. Franco’s

examination record from that date reflects that Plaintiff indicated he was not

taking any medication at that time. Ud.) Plaintiff had no light perception or

view in his right eye, and Dr. Franco concluded that he had neovascularization

corneal scarring.’ (Doc. Nos. 31-2 at 12-15, 28-29; 31-4 at 15-17.) Dr. Franco

testified that untreated uveitis usually does not cause corneal scarring. (Doc.

31-2 at 14-15.) Dr. Franco believes that the neovascularization contributed to

Plaintiff's lack of vision. Ud. at 24-25.)

On May 138, 2021, Dr. Garay examined Plaintiff and noted

neovascularization corneal scarring. (Doc. 31-4 at 18-19.) Dr. Garay prescribed

Plaintiff Pred Forte 1% and directed him to have a scan of his eyes. Ud.) On

3 Dr. Franco testified that neovascularization occurs when blood vessels grow

where they are not supposed to grow to try to heal that part of the body: (Doc. 31-2 at

24-25.)

June 1, 2021, Plaintiff had a follow-up visit with Dr. Garay. (Doc. Nos. 31-2 at

16; 31-4 at 20-21.) Dr. Garay’s examination record indicates that Plaintiff did

not start the prescribed eyedrops; however, Plaintiff disputes that he did not

use the medication. (Doc. Nos. 31-2 at 16-17; 31-3 at 27-29; 31-4 at 20-21.)

Dr. Franco testified that at as of June 1, 2021, Plaintiffs vision could not

be restored. (Doc. 31-2 at 16.) Dr. Franco also testified that she did not know

whether Plaintiffs treatment at OCJ had anything to do with his vision

difficulties. Ud. at 15.) Dr. Franco maintained that she did not recall telling

Plaintiff that the problems with his right eye were related to his treatment at

OCJ. (Id.)

II. Standard For Summary Judgment

“Summary judgment is appropriate when the pleadings, the discovery and

disclosure materials on file, and any affidavits show that there is no genuine

issue as to any material fact and that the movant is entitled to judgment as a

matter of law.” Jean-Baptiste v. Gutierrez, 627 F.3d 816, 820 (11th Cir. 2010)

(citing Fed. R. Civ. P. 56). At this stage of the proceedings, “the evidence and all

reasonable inferences from that evidence are viewed in the light most favorable

to the nonmovant, but those inferences are drawn ‘only ‘to the extent

supportable by the record.” Id. (quoting Penley v. Eslinger, 605 F.3d 848, 848

(11th Cir. 2010)). The burden of establishing that there is no genuine issue of

material fact lies on the moving party, and it is a stringent one. Celotex Corp. v.

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Catrett, 477 U.S. 317, 323 (1986). “If the initial burden is met, then the

nonmoving party may not rest on his pleadings, but must ‘go beyond the

pleadings and by [his] own affidavits, or by the ‘depositions, answers to

interrogatories, and admissions of file’, designate ‘specific facts showing that

there is a genuine issue for trial’ in order to avoid summary judgment.” Wells v.

Cramer, 262 F. App’x 184, 186-87 (11th Cir. 2008) (quoting Graham v. State

Farm Mut. Ins. Co., 193 F.3d 1274, 1281-82 (11th Cir. 1999)).

The nonmoving party, so long as that party has had an ample opportunity

to conduct discovery, must come forward with affirmative evidence to support

its claim. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257 (1986). In other

words, “[flollowing discovery, the plaintiff opposing summary judgment may not

rely on facts in the complaint, but must raise genuine issues of material fact to

counter facts supporting the defendant’s claim of qualified immunity.” Courson

v. McMillian, 939 F.2d 1479, 1487 (11th Cir. 1991) (citing Hutton v. Strickland,

919 F.2d 1531, 1537 (11th Cir. 1990)). “Though the facts alleged in an inmate’s

sworn pleading are sufficient to defeat a motion for summary judgment and a

separate affidavit is not necessary, mere conclusions and unsupported factual

allegations are legally insufficient to defeat summary judgment.” Wells, 262 F.

App’x at 187 (citing Sammons v. Taylor, 967 F.2d 1538, 1544 n. 5 (11th Cir.

1992)). “A mere ‘scintilla’ of evidence supporting the opposing party’s position

will not suffice; there must be enough of a showing that the jury could

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reasonably find for that party.” Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir.

1990).

III. Analysis □

Defendant contends that it is entitled to summary judgment because

Plaintiff has failed to prove that Defendant had internal policies and procedures

that discouraged OCJ medical staff from referring inmates to outside providers

to save money. (Doc. 31 at 4-5.) Defendant also argues that Plaintiff has not

established that his treatment at OCJ or the delay in referring him to an outside

provider caused or worsened his eye condition. (Id. at 5-6.)

To prevail on a claim of deliberate indifference to a serious medical need

against a county, Plaintiff must first show that Defendant “advanced ‘a ‘policy

or custom’ of deliberate indifference that led to the violation of [Plaintiffs]

constitutional right... .” Jreland v. Prummell, 53 F.4th 1274, 1289 (11th Cir.

2022) (emphasis in original) (quoting Monell v. Dep’t of Soc. Servus., 486 U.S. 658,

694 (1978)). Plaintiff also must demonstrate that Defendant or one of its agents

acted with deliberate indifference to his serious medical need. Id.

“A policy is a decision that is officially adopted by the [governmental

entity], or created by an official of such rank that he or she could be said to be

acting on behalf of the [governmental entity] while ‘[a] custom is a practice that

is so settled and permanent that it takes on the force of law.” Id. (quoting Sewell

v. Town of Lake Hamilton, 117 F.3d 488, 489 (11th Cir. 1997)). “Proof of a single

incident of unconstitutional activity is not sufficient to impose liability’ on a

governmental entity” based “on either a policy or custom ‘unless the challenged

policy itself is unconstitutional.” Id. (quoting City of Oklahoma City v. Tuttle,

471 U.S. 808, 823-24 (1985)). “Demonstrating a policy or custom requires

‘show[ing] a persistent and wide-spread practice.” Goebert, 510 F.3d at 1332

(quoting Depew v. City of St. Mary’s, Ga., 787 F.2d 1496, 1499 (11th Cir. 1986)).

To establish a constitutional claim for the denial of medical care, Plaintiff

must show that the failure amounted to cruel and unusual punishment under

the Eighth Amendment of the United States Constitution. To do so, he must

first “set forth evidence of an objectively serious medical need. Second, [he] must

prove that the prison official acted with an attitude of ‘deliberate indifference’

to that serious medical need.” Farrow v. West, 320 F.3d 1235, 1248 (11th Cir.

2003); see also Goebert v. Lee Cty., 510 F.3d 1312, 13826 (11th Cir. 2007). “Third,

as with any tort claim, [he] must show that the injury was caused by the

defendant’s wrongful conduct.” Goebert, 510 F.3d at 1326.

An objectively 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.” Id. (quoting

Hill v. Dekalb Reg’l Youth Det. Ctr., 40 F.3d 1176, 1187 (11th Cir. 1994)). To

demonstrate deliberate indifference, the plaintiff must show that the defendant

“acted with ‘subjective recklessness as used in the criminal law,’ and... to do

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so, the plaintiff must demonstrate that the defendant actually knew that his

conduct—his own acts or omissions—put the plaintiff at substantial risk of

serious harm.” Wade v. McDade, 106 F.4th 1251, 1253 (11th Cir. 2024) Gnternal

quotation omitted). “[E]ven 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 th[at] risk.” Id.

(quoting Farmer v. Brennan, 511 U.S. 825, 844 (1994)).

Plaintiff alleged that, to save money, Defendant “has internal policies and

procedures that dissuade their medical staff from referring matters to outside

medical providers.” (Doc. 31-1 at 2) (emphasis added). Plaintiff, however, has

provided no evidence establishing that Defendant had an officially adopted

policy not to refer inmates to outside medical providers to save money.

Plaintiff contends that Defendant had an unofficial custom because the

evidence demonstrates more than a single isolated incident given that OCJ

medical staff did not give Plaintiff his prescribed medication on multiple

occasions. (Doc. 32 at 14-15.) Plaintiff also argues that other individuals have

brought deliberate indifference claims against Defendant. Ud. at 16-17.) He

specifically cites to two cases, Muszinski v. Orange County, Florida, Case No.

6:03-cv-655-G_S-KRS and Bryant v. Orange County, Fla., Case No. 6:17-cv-

1423-GAP-KRS.4 (/d.)

Initially, the Court notes that Plaintiffs claim of deliberate indifference

against Defendant is predicated on OCJ medical staffs alleged failure to refer

Plaintiff to an outside vision expert to save money, not on OCJ medical staff's

failure to give Plaintiff his prescribed medication. See Doc. 31-1 at 3. A plaintiff

may not “raise new claims at the summary judgment stage.” Poer v. Jefferson

Cnty. Comm’n, 100 F.4th 1325, 13838 (11th Cir. 2024) (quoting Gilmour v. Gates,

McDonald & Co., 382 F.3d 1312, 1314 (11th Cir. 2004)).

Nevertheless, to the extent Plaintiff attempts to show that Defendant had

a custom of failing to provide prescribed medication, Plaintiff relies on his own

4 Plaintiff also requests the Court to take judicial notice of all 550 and 555

nature of suit (“NOS”) cases filed against Orange County, Florida, in the Middle

District of Florida. (Doc. 33 at 2-3.) Litigants on summary judgment cannot shift their

burden to the Court by simply referring to the potential existence of “evidence,” which

is not specified or addressed in their brief, with the expectation that the Court will

unearth beneficial evidence. See, e.g., United States v. Dunkel, 927 F.2d 955, 956 (7th

Cir. 1991) (“Judges are not like pigs, hunting for truffles buried in briefs.”); Carolina

Acquisition, LLC v. Double Billed, LLC, 627 F. Supp. 2d 1337 (S.D. Fla. 2009) (“Federal

judges are not archaeologists. ... We possess neither the luxury nor the inclination to

sift through that mound of obfuscation in hopes of finding a genuine issue of material

fact to deny summary judgment.”) (citation omitted); Lawrence v. Wal-Mart Stores,

Inc., 236 F.Supp.2d 1314, 1322 (M.D. Fla. 2002) (“It is the obligation of the non-moving

party ... not the Court, to scour the record in search of the evidence that would defeat

a motion for summary judgment[.|”). The Court will not search thousands of

unidentified 555 and 550 NOS cases filed in the Middle District of Florida to try to find

evidence supporting a finding that Defendant had a custom or practice of dissuading

their medical staff from referring matters to outside medical providers to save money.

See Fed. R. Evid. 201(c)(2) (indicating that a court “must take judicial notice if a party

requests it and the court is supplied with the necessary information”) (emphasis added).

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experience in 2019, “which is, at most, ‘[plroof of a single incident of

unconstitutional activity.” Craig v. Floyd Cnty., Ga., 643 F.3d 1306, 1311 (11th

Cir. 2011) (quoting City of Okla. City v. Tuttle, 471 U.S. 808, 823-24 (1985)).

“Merely citing one’s own personal experience, without more, is insufficient to

show a longstanding and widespread practice.” Derks v. Bassa, No. 22-13202,

2023 WL 5664197, at *2 (11th Cir. Sept. 1, 2028).

Further, Plaintiff has failed to prove that Defendant had a longstanding

and widespread practice, as evidenced by Muszinski and Bryant, of dissuading

OJC medical staff from referring matters to outside medical providers to save

money. In Muszinski, a case related to an incident at the OCJ in 2001,

approximately eighteen years before Plaintiffs claim accrued, the plaintiffs

alleged that Orange County had a policy of refusing to provide methadone to

inmates or to otherwise permit them to receive methadone from area programs.

See Case No. 6:03-cv-655-G_S-KRS, Doc. 1 at 12. The case settled without a

verdict as to Defendant Orange County’s liability.

In Bryant, which was based on an incident at OCJ in 2015, the plaintiffs

alleged that Orange County had “an unwritten policy of allowing documentation

to be minimized to twice a week unless there was a change in the patient’s

medical condition” and that OCJ “was medically understaffed, presumably due

to budgetary concerns.” Case No. 6:17-cv-1423-GAP-LHP, Doc. 56 at 4. The

district court dismissed the claim against Orange County because the plaintiffs

failed to “plausibly allege a widespread pattern of deliberate indifference that

was ongoing at the time of the Decedent’s death.” Jd.

Neither Muszinski nor Bryant proceeded to a verdict. Moreover, both

cases were years before the incidents forming the basis of Plaintiffs claim

against Defendant. In addition, these cases did not involve the same issue

alleged by Plaintiff, 1.e., that Defendant was deliberately indifferent to

Plaintiff's serious medical need because it had internal policies and procedures

that dissuaded OCJ medical staff from referring matters to outside medical

providers to save money. In sum, these cases do not show that Defendant had a

persistent and wide-spread practice of deliberate indifference ongoing at the

time of Plaintiffs treatment. Therefore, Defendant is entitled to summary

judgment.

IV. Conclusion

Accordingly, itis ORDERED and ADJUDGED as follows:

1. Defendant Orange County’s Motion for Summary Judgment (Doc. 31)

is GRANTED.

5 Plaintiff also has not presented medical evidence showing that his vision loss

was caused by Defendant’s alleged wrongful conduct. Dr. Franco testified that she did

not know whether Plaintiffs treatment at OCJ had anything to do with his vision

difficulties. (Doc. 31-2 at 15.)

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2. The Clerk of Court is directed to enter judgment in favor of Defendant

Orange County and close this case.

DONE and ORDERED in nC ; ebruary _/ 2028.

□ \

JQHN ANTOON II

United States District Judge

Copies furnished to:

Counsel of Record

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