JOHN E. STEELE, District Judge.
This matter comes before the Court upon the following:
Plaintiff Bruce Whitehead ("Plaintiff") initiated this action by filing a civil rights complaint pursuant to 42 U.S.C. § 1983 (Doc. 1). Plaintiff's amended complaint is currently before the Court (Doc. 17).
The claims raised in Plaintiff's amended complaint stem from events that occurred on March 12, 2009 at the Florida Civil Commitment Center ("FCCC") in Arcadia, Florida. As discussed below, the Court concludes that Plaintiff's motion for partial summary judgment against Defendant Lamour is due to be denied. The motion for summary judgment filed by Defendants Smart, Easter, Walker, and Lamour is due to be granted.
Plaintiff
Plaintiff filed an amended complaint on December 26, 2012 in which he sued defendants Dr. Angel Garrido, Dr. Jacques Lamour, Hubert Smart, Howard Easter, Earl Walker, Dr. Michael P. Hancock, Dr. Udayan Agrawal, and Moliere Landais (Doc. 17). Defendants Garrido, Hancock, Agrawal, and Landais were dismissed from this case due to Plaintiff's failure to state a claim against them.
On December 17, 2013, Defendants were ordered to conduct discovery (Doc. 69). Thereafter, Plaintiff filed a motion seeking partial summary judgment on all of his claims against Defendant Lamour (Doc. 74). Defendants filed a motion seeking summary judgment in their favor on all of Plaintiff's claims (Doc. 76).
All of Plaintiff's allegations in his amended complaint stem from an event that occurred on March 12, 2009 in which Plaintiff claims that excessive force was used against him and that the excessive force resulted in Plaintiff's broken hip. The facts, as alleged in Plaintiff's amended complaint, are as follows:
Each defendant in this action knew, "or should have known by review of Plaintiff's Clinical File" that he suffers from Post-Traumatic Stress Disorder and Borderline Personality Disorder (Doc. 17 at ¶ 3). On March 12, 2009, he was on suicide watch status which involved confinement in an 8.5 foot by 5.5 foot cell. Plaintiff asserts that his psychiatrist ordered that Plaintiff was allowed to leave the cell for bathroom breaks only, and then only when escorted by three security guards (Doc. 17 at ¶ 4; Doc. 17-4 at 2, 3).
On March 12, 2009, Plaintiff told Defendant Walker that he needed to use the restroom. Plaintiff was escorted to the restroom by Defendant Walker, Defendant Easter, and Defendant Smart (Doc. 17 at ¶ 5). While in the restroom, Plaintiff broke a towel rack from the wall, used the towel rack to smash a glass mirror, held a portion of the broken mirror to his throat, and threatened to cut himself if he was not taken outside for fresh air and a smoking break.
Defendant Easter grabbed Plaintiff's right arm and forced it behind Plaintiff's back while Defendant Smart forced Plaintiff's left arm behind Plaintiff's back (Doc. 17 at ¶ 7). Plaintiff screamed in pain that his leg was broken, but Defendants Smart and Walker "picked up Plaintiff by his arms and forced him to his feet while continuing to disregard [his] screams" that his leg was broken."
Subsequent to his altercation with Defendants Smart and Easter, Defendant Lamour examined Plaintiff and ordered that he be taken to Desoto Memorial Hospital for further examination (Doc. 17 at ¶ 9). Plaintiff was taken to Desoto Memorial Hospital on the same day (March 12, 2009) (Doc. 17 at ¶ 11). At the hospital, Plaintiff's right hip was x-rayed, and he was told that the only injuries he had received were bruises even though he told the doctors at the hospital that he believed his leg to be broken (Doc. 17 at ¶ 11). Plaintiff was given medication for pain and was discharged from the hospital (Doc. 17 at ¶ 11). The next morning, Plaintiff was returned to his suicide watch isolation cell (Doc. 17 at ¶ 12).
On March 13, 2009, Desoto Memorial Hospital contacted the FCCC to advise of an "acute fracture of the right Ischium and likely the Acetabulum of the Plaintiff's right hip." (Doc. 17 at 13). Defendant Lamour "did not seek emergency medical care until the evening of March 14, 2009[.]" (Doc. 17 at 13). Plaintiff was admitted to the Tampa General Hospital on March 14, 2009 (Doc. 17 at 13).
Plaintiff seeks compensatory damages of $100,000 from each defendant and punitive damages "in amounts to be proven at trial" and all future medical expenses associated with any future injuries that may be associated with his hip injuries (Doc. 1 at 11).
Plaintiff has attached numerous documents in support of his amended complaint. The documents relate generally to Plaintiff's classification as a sexually violent predator and his detention in a suicide watch cell. He also attached the medical records relating to his broken hip (Doc. 17-6; Doc. 17-7; Doc. 17-8; Doc. 17-9) and sworn affidavits of FCCC residents William M. Vogt (Doc. 17-5 at 2-3) and Elwood Wise (Doc. 17-5 at 4-5).
In Plaintiff's motion for partial summary judgment against Defendant Lamour he generally asserts that it not disputed that he (Plaintiff) suffered fractures to his right hip and that Defendant Lamour did not provide immediate emergency care after he learned of the extent of Plaintiff's injuries (Doc. 74). Therefore, Plaintiff asserts, he has shown that "Defendant Lamour is liable for damages for deliberate indifference to a serious medical need and unnecessary wanton infection of pain[.]" (Doc. 74 at 5).
In support of his motion, Plaintiff relies on and cites to opinions from the Fourth, Fifth, Seven, Tenth, and Eleventh Courts of Appeal as well as a district court opinion from the Middle District of Alabama and a Massachusetts state court case (Doc. 74 at 9-10). Plaintiff also attaches as exhibits Defendant Lamour's answers to interrogatories (Doc. 74-2, "Lamour's Interrog."); Plaintiff's affidavit (Doc. 74-3; "Plaintiff's First Aff."); and a number of Plaintiff's medical records regarding his hip injury (Doc. 74-3).
In response to Plaintiff's motion for partial summary judgment, Defendant Lamour argues that the facts of this case demonstrate that summary judgment should be granted in his (Lamour's) favor (Doc. 80 at 2). Defendant Lamour also addresses and distinguishes each of the cases cited by Plaintiff in support of his claims.
Defendants filed a motion for summary judgment in which they assert that Defendants Smart, Easter, and Walker used only the amount of force necessary to control Plaintiff who posed a security threat to the FCCC (Doc. 76). Defendant Lamour asserts that Plaintiff was provided with adequate and sound medical care while at the FCCC and that Plaintiff has failed to demonstrate that he (Lamour) acted with deliberate indifference to Plaintiff's serious medical needs.
In support of their motion for summary judgment, Defendants attach to the motion: Affidavit of Defendant Smart (Doc. 76-1, "Smart Affidavit"); Affidavit of Howard Easter (Doc. 72-2, "Easter Affidavit"); Affidavit of Eddie Walker (Doc. 76-3, "Walker Affidavit"); Affidavit of Jacques Lamour, M.D. (Doc. 76-4, "Lamour Affidavit"); and Plaintiff's medical records from the FCCC, Tampa General Hospital, and Desoto Memorial Hospital (Doc. 76-5).
Plaintiff has responded to Defendants' motion for summary judgment by pointing out specific factual disputes and by attaching another of his own affidavits (Doc. 84-1, "Plaintiff's Second Affidavit").
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 has explained the summary judgment standard as follows:
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.
The standard for creating a genuine dispute of fact requires courts to make all reasonable inferences in favor of the party opposing summary judgment, but it does not require the courts to make all possible inferences in the non-moving party's favor.
Finally, in the summary judgment context, the Court must construe pro se pleadings more liberally than those of a party represented by an attorney.
Plaintiff is civilly committed, the FCCC is not a prison, and Plaintiff is not a prisoner.
This, however, does not mean that civil detainees are free to live within the FCCC without any restrictions or limitations. The FCCC residents, like pretrial detainees who are facing criminal charges or detainees confined in mental hospitals, are not entitled to the same unrestricted liberties as persons in the outside world. While residents may object to having to comply with the FCCC's rules and restrictions, or orders given by staff at the institution, neither the fact of their existence nor their imposition gives rise to a constitutional violation because such does not constitute punishment. Indeed, the Supreme Court observed this point, opining in pertinent part, as follows:
The need to curtail potentially violent conduct is an "obligation" incumbent upon the operators of the FCCC.
Under the Eighth Amendment,
Deliberate indifference to the serious medical needs of a prisoner "constitutes the unnecessary and wanton infliction of pain . . . proscribed by the Eighth Amendment."
A plaintiff must first show that he had an "objectively serious medical need."
Second, a plaintiff must establish that a defendant acted with "deliberate indifference" by showing: (1) subjective knowledge of a risk of serious harm (i.e., both awareness of facts from which the inference could be drawn that a substantial risk of serious harm exists and the actual drawing of the inference); (2) disregard of that risk; and (3) conduct that is more than gross negligence.
The Supreme Court has stated that decisions such as whether an x-ray, additional diagnostic techniques, or other forms of treatment are indicated are "[c]lassic example[s] of matters for medical judgment."
Plaintiff alleges that Defendant Smart used unnecessary excessive force to subdue him and that Defendants' Easter and Walker helped him do so in violation of the Eighth and Fourteenth Amendments to the United States Constitution (Doc. 17 at 4). Plaintiff also alleges that Defendant Lamour, having knowledge of Plaintiff's injuries failed to expediently seek medical attention, demonstrating deliberate indifference to Plaintiff's serious medical needs.
Most of the material facts surrounding the incident that led to Plaintiff's fractured hip are not in dispute. On March 12, 2009, Plaintiff was on suicide watch, which meant that he was on "continuous uninterrupted observation." (Doc. 17 at 8; Doc. 76 at ¶ 2). Plaintiff notified Defendant Walker that he needed to use the restroom, and he was escorted to the restroom by Defendants Walker, Easter, and Smart (Doc. 17 at 7).
While Plaintiff was in the restroom, he broke a towel rack from the wall and used the rack to smash a glass mirror (Doc. 17 at ¶ 5; Easter Aff. at ¶¶ 7-9; Walker Aff. at ¶ 7). Plaintiff held a piece of the broken mirror to his own throat and threatened to cut himself if he was not taken outside (Doc. 17 at ¶ 5; Smart Aff. At ¶ 15; Easter Aff. At ¶ 14; Walker Aff. At ¶ 14). Plaintiff was escorted outside by Defendants Smart, Easter, and Walker (Doc. 17 at ¶ 5; Smart Aff. at ¶¶ 17-18; Easter Aff. at ¶ 17; Walker Aff. at ¶ 12). Plaintiff felt threatened by Defendants Smart and Easter and crossed the handrail enclosing the sidewalk and attempted to run from the area (Doc. 17 at ¶ 6; Smart Aff. at ¶¶ 21-22; Easter Aff. at ¶¶ 19-20; Walker Aff. at ¶ 15-16). Plaintiff was pursued by Defendant Smart who subdued Plaintiff by tackling him to the ground (Doc. 17 at ¶ 6-7; Smart Aff. at ¶ 22). Afterwards, Plaintiff was handcuffed by Defendants Smart and Easter (Doc. 17 at ¶ 7; Smart Aff. at ¶ 23; Easter Aff. at ¶ 22). Plaintiff was then escorted to the medical building for an assessment (Doc. 17 at ¶ 9; Smart Aff. at ¶ 24; Easter Aff. at ¶ 23; Walker Aff. at ¶ 23).
The areas of factual dispute in this case generally go to the necessity of force used by Defendant Smart in his tackle of Plaintiff and to whether or not the Plaintiff screamed in pain after he was taken to the ground. The Plaintiff and Defendants Smart, Easter, and Walker also disagree as to whether Plaintiff was still holding broken glass in his hand at the time he jumped over the sidewalk railing and fled from them.
Plaintiff asserts that he dropped the glass in his hand after he was taken outside and after he had smoked half a cigarette, and when he did so, Defendant Smart approached him in an intimidating manner (Doc. 17 at ¶ 5). Afterwards, Plaintiff "assertively requested" that Defendant Smart "respect him" and give him his "personal space."
(Doc. 17 at ¶¶ 6-7). Plaintiff asserts that he began to scream that his leg was broken after the tackle and that the defendants "dragged" him into the medical building thereafter (Doc. 17 at ¶ 8).
Defendants Smart, Easter, and Walker each attest that Plaintiff was still holding broken glass in his hand when he began to run away. They also attest that Plaintiff did not scream that his leg was broken and that Plaintiff was able to walk into the medical building (Smart Aff. at ¶¶ 21, 26-27; Easter Aff. at ¶¶ 25-26; Walker Aff. at ¶ 12, 24-25). Finally, Defendants Smart, Easter, and Walker describe Plaintiff's actions and attempted flight as posing a serious security threat because he refused to obey orders and had held broken glass to his own throat (Smart. Aff. at ¶ 31; Easter Aff. at ¶ 29; Walker Aff. at ¶ 31).
Neither the undisputed evidence nor the facts as alleged by Plaintiff show that any defendant acted maliciously and sadistically, or with the type of force that shocks the conscious such that it gives rise to a constitutional violation when they subdued Plaintiff after his outburst in the restroom.
Although Plaintiff certainly suffered a significant injury from Defendant Smart's tackle after Plaintiff ran away, the undisputed evidence shows that Plaintiff initiated the confrontation by ripping a towel bar from the wall, using the bar to break a mirror, and threatening to cut himself with the mirror glass if he was not taken outside. Plaintiff was told several times by the defendants to stop his aggressive behavior. Instead, Plaintiff attempted to flee after he was taken outside. The defendants were justified in believing that Plaintiff's actions posed a security threat. Even if Plaintiff had indeed dropped the broken glass before he ran from the guards as he asserts in his amended complaint,
Defendants have presented evidence showing that Defendant Smart's purpose in applying force was to stop Plaintiff's flight and to prevent him from harming himself, staff members, or other FCCC residents. In other words, Defendant Smart applied force in an attempt to prevent harm to Plaintiff, not to cause harm to Plaintiff.
Likewise, that Defendant Easter assisted Defendant Smart by putting handcuffs on Plaintiff after he was tackled does not subject him to liability for excessive force. The need for handcuffing Plaintiff is evidenced by Plaintiff's own admission that he ripped a towel bar from the wall, used the bar to break a mirror, threatened to cut himself with the broken mirror glass, and then fled when his guards approached him. Plaintiff does not assert that Defendant Easter's actions in cuffing him caused or exacerbated his hip injuries. Rather, Plaintiff merely states that Defendant Smart "forcibly twisted the left arm of the Plaintiff behind Plaintiff's back." (Doc. 17 at 9). "[N]ot every malevolent touch by a prison guard gives rise to a federal cause of action."
Finally, Plaintiff's amended complaint makes no allegation that Defendant Walker used force against him at all, much less excessive force, during Plaintiff's outburst, suicide threat, or flight. Consequently, based upon the record before the Court, the undisputed material facts, and the applicable law, the Court concludes that Defendants Smart, Easter, and Walker are entitled to summary judgment on Plaintiff's excessive force claims as a matter of law.
Plaintiff and the defendants agree that immediately after Plaintiff was tackled by Defendant Smart and handcuffed by Defendants Smart and Easter, he was pulled to his feet and escorted to the medical department by Defendants Smart and Walker. Plaintiff asserts that Defendants Smart and Walker "picked up the Plaintiff by his arms and forced him to his feet" and took him to the medical building even though he was screaming that his leg was broken. Plaintiff asserts that his right foot and leg dragged the ground behind him during the escort (Doc. 17 at ¶ 8).
In their affidavits, Defendants Smart, Easter, and Walker attest that: Plaintiff walked into the medical department; they did not "drag" Plaintiff to medical; and Plaintiff did not scream that his leg was broken (Smart Aff. at ¶¶ 24-27; Easter Aff. at ¶¶ 24-26; Walker Aff. at ¶¶ 24-25). Plaintiff has attached the affidavit of FCCC resident Elwood Wise who attests that Plaintiff was escorted to the medical building "with his right foot and leg dragging the ground." (Doc. 17-5). He also attached the affidavit of FCCC resident William M. Vogt who attests that Plaintiff was screaming in pain after he was tackled by Defendant Smart.
Because Plaintiff has submitted admissible evidence refuting the defendants' statements that Plaintiff never screamed that his leg was broken or that his foot dragged the ground, for the purpose of this Order, the Court will assume that Plaintiff began screaming after he was tackled by Defendant Smart and that he dragged his right foot as he was escorted to the medical building. Even so, the record does not show that any defendant subjectively knew that Plaintiff had a fractured hip and disregarded a risk to Plaintiff when they immediately escorted Plaintiff to the medical building after he was tackled. Plaintiff admits that he was on his feet as he was taken to the medical department (Doc. 17 at ¶ 8). In fact, the immediate escort of Plaintiff to the medical department indicates that Defendants Smart, Easter, and Walker attempted to temper the severity of their use of force when Plaintiff was tackled. Plaintiff does not assert that dragging his right leg behind him during the escort to the medical building exacerbated or caused the injury to his hip. Likewise, although he does assert that he screamed that his leg was broken, he has not demonstrated that any defendant was actually aware that Plaintiff had fractured his hip when he was tackled by Defendant Smart.
Consequently, based upon the record before the Court, the undisputed material facts, and the applicable law, the Court concludes that Defendants Smart, Easter, and Walker are entitled to summary judgment on Plaintiff's deliberate indifference claim as a matter of law.
The facts surrounding Plaintiff's medical deliberate indifference claim against Defendant Lamour are largely undisputed. Plaintiff admits that he was examined by Defendant Lamour shortly after the use of force incident on March 12, 2009 and that Dr. Lamour ordered that Plaintiff to be taken to Desoto Memorial Hospital for examination of his hip (Doc 76 at 8; Doc. 84 at 4). Plaintiff was examined at Desoto Memorial Hospital where x-rays were taken.
Upon Plaintiff's return to the FCCC at approximately 12:10 a.m. on March 13, 2009, he was seen in the infirmary, and Defendant Lamour was called at home and advised of the situation (Doc. 76 at 8; Doc. 84 at 4). Defendant Lamour approved the use of pain relievers, and Plaintiff was given a second mattress for sleeping.
The next afternoon, at approximately 3:00 p.m., the FCCC received a call from Desoto Memorial Hospital whereby the facility was advised that a mistake had been made regarding the hospital's interpretation of the x-ray and that Plaintiff had a fractured hip (Doc. 76 at 9; Doc. 84 at 4). However, the hospital did not provide the FCCC with the written radiological report at that time.
The written report from Desoto Memorial Hospital confirming the diagnosis of the fractured hip was received via facsimile by the FCCC on March 14, 2009 at 4:43 p.m. (Doc. 76 at 9, Doc. 84 at 5). Thereafter, Plaintiff was transported to Tampa General Hospital at 7:00 p.m. on March 14, 2009.
Plaintiff attests that he suffered adversely from Defendant Lamour's failure to seek Plaintiff's timely transport to Tampa General Hospital because he was forced to have a stent put in his leg to "catch any blood clots" caused by the delay. (Plaintiff's Second Aff. at ¶ 4).
A review of the undisputed facts and the medical records submitted by both Plaintiff and the defendants fails to reveal any deliberate indifference on the part of Defendant Lamour to Plaintiff's hip injury, Plaintiff's need for treatment, or Plaintiff's complaints of pain. Plaintiff does not deny that he initially received immediate attention to his hip injury or that his complaints of pain were ignored. Plaintiff acknowledges that he was examined immediately after the use of force incident and that he was sent to Desoto Memorial Hospital the same day. In addition, Defendant Lamour approved, and Plaintiff received, pain medication and an additional mattress while he was at the FCCC. Accordingly, Plaintiff's constitutional claim against Defendant Lamour appears to be based solely upon the delay between Desoto Memorial Hospital's telephone call to the FCCC informing of Plaintiff's fracture and Plaintiff's transfer to Tampa General Hospital.
Where, as here, medical care is ultimately provided to a plaintiff, a prison official may nonetheless act with deliberate indifference by delaying the treatment of serious medical needs, even for a period of hours, though the reason for the delay and the nature of the medical need is relevant in determining whether the delay is constitutionally intolerable.
In this case, Defendant Lamour has submitted an affidavit in which he attests that Plaintiff received his surgery four days after he was transported to Tampa General Hospital; that Plaintiff does not walk with a limp; and that he (Defendant Lamour) has not been informed by anyone that a delay in transporting Plaintiff to Tampa General Hospital worsened Plaintiff's condition (Lamour Aff. at ¶¶ 33, 34, 41, 44). Plaintiff attests that his condition was worsened by the delay in transportation to Tampa General Hospital because "Tampa General surgeons place [sic] a stent in plaintiff to catch any blood clots that may have been present do [sic] to Lamour's delay in seeking medical treatment, and plaintiff was put into traction." (Plaintiff's Second Aff. at ¶ 4). In his motion for partial summary judgment, Plaintiff has included an October 18, 2009 "Operative Note" from Tampa General Hospital which describes Plaintiff's successful surgery and notes that "[t]he patient received an IVC filter for DVT prophylaxis because of delayed initiation of anticoagulation." (Doc. 74-3).
Despite Plaintiff's assertion otherwise, nothing in the record suggests that the delay from Defendant Lamour's decision to wait for written confirmation of Plaintiff's injuries "caused" the necessity of an IVC filter — indeed, the Operative Note from Tampa General was written four days after Plaintiff was sent to Tampa General Hospital with no indication of the date on which the filter was placed or any statement as to the operative time period for anticoagulation treatment. The note does not state that the four day delay in Plaintiff's surgery after his transport to Tampa General was related to Defendant Lamour's delay in arranging transport to Tampa General. In addition, there is no "verifying medical evidence" in the record establishing that the use of the IVC filter could have been avoided if Defendant Lamour had sent Plaintiff to Tampa General Hospital immediately upon learning of Desoto Memorial Hospital's misdiagnosis. Moreover, Plaintiff's medical records indicate that the surgery on his hip was a success. Therefore, Plaintiff has failed to establish by "verifying medical evidence" that any detrimental effect was caused by the delay in his transport to Tampa General Hospital.
Because Plaintiff has failed to place evidence in the record showing the detrimental effect of the delay in medical treatment, his claims that his constitutional rights were violated by Defendant Lamour's decision to await a verifying written report from Desoto Memorial Hospital before sending him to Tampa General Hospital is without merit.
Finally, "[t]he tolerable length of delay in providing medical attention" also depends on the reason for the delay.
(Lamour Aff. at ¶ 26-27). Plaintiff argues that Defendant Lamour did not need the written report before sending Plaintiff to Tampa General Hospital for surgery, and therefore, the delay between the phone call from Desoto Memorial Hospital and Plaintiff's transport to Tampa demonstrates deliberate indifference on the part of Defendant Lamour (Doc. 84 at 5). However, Plaintiff has presented no evidence that the delay was intended to cause him suffering or to exacerbate his injury. To the contrary, Dr. Lamour has attested that the delay was to ensure accuracy of the verbal communication, an assertion that Plaintiff has not been able to refute.
Consequently, based upon the record before the Court, the undisputed material facts, and the applicable law, the Court concludes that Defendant Lamour is entitled to summary judgment on Plaintiff's deliberate indifference claims as a matter of law.
ACCORDINGLY, it is hereby
ORDERED:
1. Plaintiff's motion for partial summary judgment against Defendant Lamour (Doc. 74) is DENIED;
2. The motion for summary judgment filed by Defendants Smart, Easter, Walker, and Lamour (Doc. 76) is GRANTED; and
3. With no remaining claims or defendants, the Clerk of Court is directed to terminate any pending motions, close this case, and enter judgment accordingly.
DONE and ORDERED.
Civil commitment under the Act involves several steps. First, the Act requires a mental evaluation of any person who has committed a sexually violent offense and is scheduled for release from prison or involuntary confinement.
