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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

IVAN HARVEY,

 Plaintiff,

v. Case No: 3:09cv402/WS/CJK

EFIONG O. ANDEM, et al.,

 Defendants.

REPORT AND RECOMMENDATION

This case filed pursuant to 42 U.S.C. § 1983 is before the court upon the

parties’ cross-motions for summary judgment. (Docs. 77, 81). Upon review of the

motions, responses, summary judgment evidence and relevant legal authorities, the

undersigned recommends that plaintiff’s motion (doc. 81) be denied and defendants’

motion (doc. 77) be granted in part and denied in part.

BACKGROUND AND PROCEDURAL HISTORY

This civil rights case involves claims that defendants were deliberately

indifferent to plaintiff’s serious medical needs in violation of the Eighth Amendment,

as well as a claim that one defendant retaliated against plaintiff in violation of the

First Amendment. Plaintiff, proceeding pro se, is an inmate of the Florida penal

systemcurrently confined at Okaloosa CorrectionalInstitution. His complaint names

seven defendants, each sued in his or her individual capacity: Dr. Andem, Dr. Lord,

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Dr. Thayer, Cathy Allin, Dr. Aviles, M. Nichols and Dr. Collins. (Doc. 1). Doctor

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Andem is the Chief Health Officer (“CHO”) assigned to Jackson Correctional

Institution. (Doc. 77, Ex. F, Andem Aff. ¶ 2). He was the CHO at Holmes

Correctional Institution (“Holmes CI”) at times relevant to the complaint. Doctor

Lord is an orthopedic surgeon, and at times relevant to the complaint provided

contract medicalservicesto the Florida Department of Corrections. (Id., Ex. H, Lord

Aff. ¶ 1). Ms. Allin was the Senior Health Services Administrator (“SHSA”) at

Union Correctional Institution (“Union CI”) at times relevant to the complaint. (Id.,

Ex. I, Allin Aff. ¶ 2). Doctor Aviles is the CHO assigned to Union CI. (Id., Ex. G,

Aviles Aff. ¶ 1). Nurse Practitioner Nichols is an Advanced Registered Nurse

Practitioner (“ARNP”) assigned to Santa Rosa CI. (Id., Ex. J, Nichols Aff ¶ 1). 

Doctor Collins wasthe CHO at Santa Rosa CI at timesrelevant to the complaint. (Id.,

Ex. K, Collins Aff. ¶ 2). Plaintiff has voluntarily dismissed his claims against

defendant Dr. Thayer. (Docs. 74, 75, 85). 

On December 13, 2010, defendants filed a joint motion for summary judgment

with incorporated statement of undisputed material facts (doc. 77), to which plaintiff

responded (docs. 84, 87, 88). On December 21, 2010, plaintiff filed a motion for

summary judgment (doc. 81) and statement of undisputed material facts (doc. 82), to

which defendants responded (doc. 86). Due to the number of defendants and

extensive factual record, the court will address the cross-motions of plaintiff and the

various defendants in three separate sections according to institution: first Dr. Andem

(Holmes CI); then Dr. Lord, Dr. Aviles and Ms. Allin (Union CI); and finally Nurse

Plaintiff’s complaint misspells this defendant’s name as “Thayers.” The correct spelling is 1

“Thayer.” (See Doc. 17). 

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Practitioner Nichols and Dr. Collins (Santa Rosa CI). 

For purposes of all motions, the following facts are undisputed. Sick-call

requests are not kept in the inmate’s medical file. (Doc. 82, Ex. P, Allin’s Answer to

Pl.’s Interrog. No. 4). Upon receipt, nursing staff reviews the sick-call request and

triages the inmate. (Doc. 77, Ex. I, Allin Aff., 3; see also Doc. 82, Ex. P, Allin’s

Answer to Pl.’s Interrog. No. 7). Based on the nurse’s objective findings, (s)he may

or may not refer the particular sick-call request to the doctor. (Id.). If a request is not

referred to a doctor, it is because the examining nurse determined it was unnecessary. 

(Id.). The nurse will make note of the request and its disposition in the inmate’s

chart. Therefore, unless a particular defendant personally processed a sick-call

request, a defendant’s knowledge of a sick-call request (and its contents) is confined

to the notations appearing in the inmate’s chart. 

An inmate request is separate and distinct from a sick-call request, and is

handled differently. (Doc. 77, Ex. I, Allin Aff. ¶ 3). An inmate request is first

reviewed by the Health Services Administrator, who determines whether or not the

request must be forwarded to medical staff. (Id.). This determination is based on the

inmate’s subjective complaints and a review of the medical record to determine

whether the inmate complained of the same symptoms via a sick-call request prior to

submitting the inmate request, and whether medical staff has taken any action. (Id.). 

An inmate request is not the proper procedure to seek medical attention. An inmate

must fill out a sick-call request detailing medical need in order to be seen by medical

staff. (Id.).

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LEGAL STANDARDS

Summary Judgment Standard

Summary judgment is appropriate “if the movant shows 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 “mere existence of some alleged factual dispute

between the parties will not defeat an otherwise properly supported motion for

summary judgment; the requirement is that there be no genuine issue of material

fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S. Ct. 2505, 2510,

91 L. Ed. 2d 202 (1986). A dispute is “genuine” if the “evidence is such that a

reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty

Lobby, Inc., 477 U.S. at 248. A fact is “material” if it “might affect the outcome of

the suit under the governing law.” Id., 477 U.S. at 248, 106 S.Ct. at 2510. The

nonmoving party must show more than the existence of a “metaphysical doubt”

regarding the material facts, Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp.,

475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986), and a “scintilla” of

evidence or conclusory allegations isinsufficient. Celotex Corp. v. Catrett, 477 U.S.

317, 324, 106 S. Ct. 2548, 2553-54, 91 L. Ed. 2d 265 (1986). In resolving a summary

judgment motion, the court “reviews the evidence and draws all reasonable inferences

in the light most favorable to the non-moving party.” Owens v. I.C. Sys., Inc., 629

F.3d 1263, 1270 (11 Cir. 2011). th

TheRule 56 standard is not affected by the filing of cross-motionsfor summary

judgment. The court must evaluate each individualmotion on its own merits, viewing

the evidence in favor of the nonmoving party in each instance. Avocent Huntsville

Corp. v. ClearCube Tech., Inc., 443 F. Supp.2d 1284, 1293-94 (N.D. Ala. 2006); see

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also Shaw v. Constructors v. ICF Kaiser Eng'rs, Inc., 395 F.3d 533, 538-39 (5 Cir. th

2004) (“Cross-motions must be considered separately, as each movant bears the

burden of establishing that no genuine issue of material fact exists and that it is

entitled to judgment as a matter of law.”); 10A CHARLES ALAN WRIGHT & ARTHUR

R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 2720 (3d ed.1998) (“The court

must rule on each party’s motion on an individual and separate basis, determining, for

each side, whether a judgment may be entered in accordance with the Rule 56

standard.”). 

Qualified Immunity Standard

Defendants seek summary judgment on the basis of qualified immunity. The

doctrine of qualified immunity is a guarantee of fair warning. McElligott v. Foley,

182 F.3d 1248, 1260 (11 Cir. 1999). It shields government officialsfrom individual th

capacity suits against them for acts that do not violate a clearly established statutory

or constitutional right of which a reasonable person would have known given the

circumstances and information the official possessed at the time ofthe conduct. Hope

v. Pelzer, 536 U.S. 730, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002); Conn v. Gabbert,

526 U.S. 286, 119 S.Ct. 1292, 1295, 143 L.Ed.2d 399 (1999) (quoting Harlow v.

Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). Qualified

immunity ensures that individuals can reasonably anticipate when their conduct may

give rise to liability. Therefore, liability attaches only if the contours of the right

allegedly violated are sufficiently clear that a reasonable person would understand

that what he is doing violates that right. McElligott, 182 F.3d at 1260 (citing United

States v. Lanier, 520 U.S. 259, 270, 117 S.Ct. 1219, 137 L.Ed.2d 432 (1997)). 

Requisite to showing qualified immunity, the public official “must first prove

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that he was acting within the scope of his discretionary authority when the allegedly

wrongful acts occurred.” Lee v. Ferraro, 284 F.3d 1188, 1194 (11 Cir. 2002)

th

(internal quotation marks omitted). “Once the defendant establishes that he was

acting within his discretionary authority, the burden shifts to the plaintiff to show that

qualified immunity is not appropriate.” Id. 

Courts apply a two-pronged test when evaluating a claim of qualified

immunity: (1) whether, on the facts alleged, a constitutional right was violated; and

(2) whether the right was “clearly established.” Saucier v. Katz, 533 U.S. 194, 121

S.Ct. 2151, 2156, 150 L.Ed.2d 272 (2001). The court may exercise its discretion in

deciding which of the two prongs should be addressed first in light of the

circumstancesin the particular case at hand. Pearson v. Callahan, 555 U.S. 223, 129

S.Ct. 808, 818, 172 L.Ed.2d 565 (2009). The court may grant qualified immunity if

the plaintiff fails to carry his burden on either of the two prongs. See, e.g., Pearson,

129 S.Ct. at 822-23 (evaluating only Saucier’s second prong and holding that law

enforcement officers were entitled to qualified immunity because the unlawfulness

of their conduct was not clearly established). 

Eighth Amendment Standard

The government has a well-settled constitutional duty to provide minimally

adequate medical care to prisoners. Harris v. Thigpen, 941 F.2d 1495, 1504 (11 Cir. th

1991). Nevertheless, not every claim by a prisoner that he has not received adequate

medical treatment states an Eighth Amendment violation. Id. at 105, 97 S.Ct. at 291. 

To prevail on a deprivation of medical care claim, a prisoner must prove three

elements. First, “an objectively serious medical need,” so grave that, “if left

unattended, poses a substantial risk of serious harm.” Taylor v. Adams, 221 F.3d

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1254, 1258 (11 Cir. 2000) (internal quotation marks, alterations and citations

th

omitted). “[A] serious medical need is . . . one . . . 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.” Farrow v. West, 320 F.3d 1235,

1243 (11 Cir. 2003) (internal quotation marks omitted). The seriousness of the

th

deprivation of the need is measured by the detrimental effect the deprivation brought

upon the person. Hill v. DeKalb Reg’l Youth Detention Ctr., 40 F.3d 1176, 1188-89

(11 Cir. 1994). th

The second element requires “a subjective intent by the public officials

involved to use the sufficiently serious deprivation in order to punish.” Taylor, 221

F.3d at 1258. “To show the required subjective intent to punish, a plaintiff must

demonstrate that the public official acted with an attitude of ‘deliberate

indifference.’” Id. (quoting Estelle v. Gamble, 429 U.S. 97, 105, 97 S.Ct. 285, 291,

50 L.Ed.2d 251 (1976)). Deliberate indifference is not established “unlessthe official

knows of and disregards an excessive risk to inmate health orsafety; the official must

both be aware of facts from which the inference could be drawn that a substantial risk

ofserious harmexists, and he must also draw the inference.” Farmer v. Brennan, 511

U.S. 825, 114 S.Ct. 1970, 1979, 128 L.Ed.2d 56 (1994). “Whether a prison official

had the requisite knowledge of a substantial risk is a question of fact subject to

demonstration in the usual ways, including inference from circumstantial evidence.” 

Farmer, 511 U.S. at 842, 114 S.Ct. at 1983. Disregard of the risk is also a question

of fact that can be shown by standard methods. Id. at 846, 114 S.Ct. at 1983. 

Obviously, a complete denial ofreadily available treatment for a known serious

medical condition violates the Constitution. Harris v. Coweta Cnty., 21 F.3d 388,

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393 (11 Cir. 1994). Also, medical treatment can be so slight as to amount to no th

treatment at all. Therefore, the mere fact that treatment was provided does not end

the inquiry. See Waldrop v. Evans, 871 F.2d 1030, 1035 (11 Cir. 1989) (“[G]rossly

th

incompetent medical care or choice of an easier but less efficacious course of

treatment can constitute deliberate indifference.”);see also Rogers v. Evans, 792 F.2d

1052, 1058 (11 Cir. 1986) (“Medical treatment that is so grossly incompetent,

th

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

fundamental fairness violatesthe eighth amendment.”). In order to prevail, however,

the prisoner must prove that the officials’ response was so inadequate as to

“constitute an unnecessary and wanton infliction of pain” and was not “merely

accidental inadequacy, negligence in diagnosis or treatment, or even medical

malpractice actionable under state law.” Taylor, at 1258. Plaintiff must show that

the challenged conduct was “very unreasonable in light of a known risk” of harm or

suffering. Hardin v. Hayes, 52 F.3d 934, 939 (11 Cir. 1995) (citing Farmer, 114

th

S.Ct. at 1978-79). Disputes regarding the level of treatment or the existence of other

treatment options do not alone evidence cruel and unusual punishment. Estelle, 429

U.S. at 107, 97 S.Ct. at 292; Hamm v. DeKalb Cnty., 774 F.2d 1567, 1575 (11 Cir. th

1985). Where the inmate has received medical attention, and the dispute is over the

adequacy of that attention, courts should be reluctant to question the accuracy or

appropriateness of the medical judgments that were made. Harris v. Thigpen, 941

F.2d at 1507 (quoting Waldrop v. Evans, 871 F.2d at 1035); see also Woody v.

Cronic, 401 Fed. Appx. 509, 512 (11 Cir. 2010) (unpublished opinion) (“Generally, th

an inmate who receives a medical diagnosis and care, but desires a different diagnosis

or treatment, cannot show deliberate indifference.”). A difference of opinion over

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matters of medical judgment does not give rise to a constitutional claim. Harris, 941

F.2d at 1505; Waldrop at 1033; Murrell v. Bennett, 615 F.2d 306, 310 n. 4 (5 Cir. th

1980). 

Some of the ways in which prison officials might avoid Eighth Amendment

liability is to show: (1) “that they did not know of the underlying facts indicating a

sufficiently substantial danger and that they were therefore unaware of a danger;” (2)

that “they knew the underlying facts but believed (albeit unsoundly) that the risk to

which the facts gave rise was insubstantial or nonexistent;” or (3) that “they

responded reasonably to the risk, even if the harm ultimately was not averted.” 

Farmer, 114 S.Ct. at 1982-83.

For the final element of an Eighth Amendment claim, a plaintiff must show the

officials’ deliberate indifference caused the plaintiff’s injury. Taylor, at 1258; Mann

v. Taser Int’l, Inc., 588 F.3d 1291, 1306–07 (11 Cir. 2009) (reiterating the elements th

of an Eighth Amendment claim).

 

CLAIM AGAINST DR. ANDEM

Rule 56 Evidence

On April 29, 2008, plaintiff was the subject of a use of force while housed at

Holmes CI. (Doc. 1, p. 7-A; Doc. 77, p. 4). The facts surrounding the use of force

are not material to the issues here. Plaintiff’s claim against Dr. Andem involves the

medical attention plaintiffreceived after the incident, specifically, whether defendant

Dr. Andem provided inadequate medical treatment for plaintiff’s alleged back

condition and pain from April 29, 2008 (the date of the use of force) to June 16, 2008

(the date plaintiff was transferred to Union CI). 

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On April 29, 2008 at approximately 12:40 p.m., plaintiff received a post-useof-force examination by Nurse Turner, a non-party. (Doc. 77, Ex. F, Andem Aff. ¶

4 and Attach. 1). Nurse Turner noted on the examination record that plaintiff

complained of pain in his left ankle, epigastric region and mouth. (Id.; see also Doc.

81, Ex. A). Her examination of plaintiff revealed no edema, redness, discoloration, 2

bruising or open areas to the ankle or epigastric region, and no open areas in the

mouth or gumline. (Id.). No injuries were identified. (Id.). Accordingly, Nurse

Turner did not notify a physician or provide treatment. (Id.). Plaintiff was discharged

with instructionsto “[r]eport any abnormalfindings.” (Id.). Dr. Andemreviewed and

signed the post-use-of-force examination record on May 14, 2008. (Id.).

Later in the day on April 29, 2008, at approximately 8:00 p.m., plaintiff

submitted a sick-call request in which he complained, “I have a very loose tooth and

a serious toothache which has initiated severe headache. My back is giving me more

pain also. I also need my nitro [illegible].” (Doc. 82, Ex. A). He stated this

problem/symptom started “approximately 12:20 p.m. when I was assaulted by staff

while being handcuffed.” (Id.). The following day, plaintiff was called out for sickcall at 10:30 p.m. (Doc. 77, Ex. F, Andem Aff. ¶ 5 and Attach. 2). Health care staff

executed a form entitled “Refusal of Health Care Services,” noting plaintiff refused

Although plaintiff disputes Nurse Turner's documentation and asserts he also complained 2

of back pain, (doc. 84, Pl.’s Aff. ¶ 1; see also doc. 81 p. 4 ¶ 2 (“[m]edical personnel failed to

document all of plaintiff’s complaints”)), this factual dispute is immaterial to plaintiff's deliberate

indifference claim against defendant Dr. Andem. The only facts relevant to the deliberate

indifference claim are the circumstances of which Dr. Andem was aware, either through plaintiff's

verbal complaints directly to him, or through written complaints (including grievances)reviewed by

Dr. Andem or appearing in plaintiff's medical record. Plaintiff does not allege, and the record does

not support a finding that Dr. Andem was present at the post-use-of-force examination. Therefore,

Andem’s knowledge of plaintiff’s complaints during the post-use-of-force-examination is limited

to what was documented on Nurse Turner’s examination record. 

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to leave his cell unless provided a walker or cane. (Id.). In the space provided for

plaintiff’s signature, plaintiff wrote: “Inmate doesn’t refuse treatment, Inmate refuses

to further injur [sic] himself by walking without proper support.” (Id.; see also Doc.

84, Pl.’s Aff. ¶ 2). Dr. Andem reviewed and signed the form on May 5, 2008. (Id.). 

On May 4, 2008, health care staff (Nurse Bush) was notified plaintiff refused

the last five meals. (Doc. 77, Ex. F, Andem Aff. ¶ 5 and Attach. 3). Nurse Bush

completed a psychiatric referral. The same day, Dr. Andem scheduled an

appointment for plaintiff to see him. (Id.).

Plaintiffsubmitted another sick-call request on May 6, 2008. (Doc. 1, p. 7-A). 

A copy of that request does not appear in the record; however, plaintiff states, and

defendants do not dispute, plaintiff complained of back pain and requested an x-ray.

(Id.). Dr. Andem saw plaintiff at 8:50 that morning. (Doc. 77, Ex. F, Andem Aff. ¶

5 and Attach. 3). Dr. Andem noted plaintiff was able to: (1) sit up on the bed by

himself, (2) get out of the bed by himself, and (3) walk using a walker. (Id.). 

Plaintiff was given 800 mg. of Motrin for pain and discharged. (Id.). Upon

discharge, plaintiff was escorted back to his cell via wheelchair and provided a

walker. Plaintiff verbalized no complaints. (Id.). On May 7, 2008, plaintiff initiated

a sick-call request seeking an x-ray of his back. (Id.). Dr. Andem reviewed the

request and scheduled an x-ray for the following morning. (Id.). An x-ray of

plaintiff’s lumbar spine was taken on May 8, 2008. (Id., ¶ 6 and Attach. 4; Doc. 82,

Ex. B). The results were normal. There was no evidence of fracture or bony tumor. 

(Id.). There was no vertebra displacement. The pedicles, which connect the body of

the spinal vertebra to the arch, were intact. (Id.). The sacroiliac joints, i.e., the joints

between the sacrum (which supports the spine) and ilium, also appeared to be intact. 

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(Id.). Dr. Andem reviewed the results on May 13, 2008, and ordered that the report

be placed in plaintiff’s file. (Id.). The results confirmed to Dr. Andem that plaintiff

sustained no injuries as the result of the April 29, 2008 use of force. (Doc. 77, Ex.

F, Andem Aff. ¶ 6). 

On May 26, 2008, plaintiff filed an inmate request addressed to Dr. Andem. 

He requested the x-ray results, a lumbar back brace and medication for pain in his

back and leg. (Doc. 77, Ex. F, Andem Aff. ¶ 7 and Attach. 5; Doc. 82, Ex. C). Nurse

Steel (a non-party) responded to the request, advising plaintiff he would be placed on

callout for the x-ray results and directing him to submit his other complaints in a sickcall request. (Id.). The same day, plaintiff filed a formal grievance stating the

following complaints: (1) he was injured during a use of force on April 29, 2008 and

informed medical staff of his injuries, (2) he “ha[d] been given no medication for the

pain that he [was] in” (3) he had not received his x-ray results and (4) he required a

CAT scan or MRI because “certain injuries cannot be detected by x-rays.” (Doc. 77,

Ex. F, Andem Aff. ¶ 7 and Attach. 6; Doc. 82, Ex. E). Plaintiff sought referral to a

specialist. (Id.). Dr. Andem responded to the request on June 3, 2008, advising

plaintiff that his x-ray results were normal and that given the results, a CT scan or

referral to a specialist was not warranted. (Id.; see also Andem Aff., Attach. 3). Dr.

Andem reminded plaintiff that he was in fact given medication for his back pain,

specifically, he had a current prescription for Anaprox (a medication used to relieve

pain, inflammation and fever) which Andem prescribed earlier on April 4, 2008,

during a sick-call visit when plaintiff complained of back and shoulder pain. (Id.,

Andem Aff. ¶ 8 n. 1 and Attach. 3). 

Plaintiff received the x-ray results on June 7, 2008. (Doc. 77, Andem Aff.,

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Attach. 3). Plaintiff filed another inmate request on June 9, 2008, stating he was “still

in extreme pain daily,” and the prescribed pain medication was “futile.” (Doc. 77, Ex.

F, Andem Aff. ¶ 7 and Attach. 7; Doc. 82, Ex. D). He claimed a CT scan was

necessary “because a lumbar facet joint fracture does not always show on an x-ray,”

and requested referral to an orthopedic specialist. (Id.). Dr. Andem received the

request on June 10, 2008. The same day, Dr. Andem requested a consultation from

the Orthopedic Surgeon at Reception and Medical Center (“RMC”), and informed

plaintiff of the consultation request. (Doc. 77, Ex. F, Andem Aff. ¶ 7 and Attachs. 3,

7; See also Doc. 77, Ex. H, Lord Aff., Attach. 1). The consultation request sought an

evaluation and recommended treatment plan, describing plaintiff’s condition as

“persistent complaint of low back pain as well as leg and hip pain.” (Doc. 77, Ex. H,

Lord Aff., Attach. 1). That was Dr. Andem’s last contact with plaintiff. (Doc. 77, Ex.

F, Andem Aff. ¶ 7 and Attach. 3). Plaintiff was transferred out of Holmes C.I. to

Union C.I. on June 16, 2008. (Id., Andem Aff. ¶ 7 and Attach. 8). 

Analysis

Plaintiff claims defendant Dr. Andem violated the Eighth Amendment when

he delayed ordering an x-ray, delayed referring plaintiff to an orthopedic specialist,

and failed to treat plaintiff’s back pain. (Doc. 1, pp. 7-A, 7-B). To prevail on his

motion for summary judgment, plaintiff must show two things: there is no genuine

dispute as to any material fact and he is entitled to judgment as a matter of law.

Plaintiff argues his evidence establishes the following facts, which cannot genuinely

be disputed: 1) his back was injured on April 29, 2008, (2) Dr. Andem delayed

ordering an x-ray until over one week later, (3) during the relevant period (April 29,

2008 - June 16, 2008), he “repeatedly” complained of back pain and requested

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stronger medicine but Dr. Andem denied his requests, and (4) Dr. Andem delayed

referring plaintiff to an orthopedic specialist until one month following the alleged

injury. (Doc. 82, p. 2). As “evidence” of his injury, plaintiff relies on his April 29,

2008 sick-call request. (Id. and Ex. A). That sick-call request, however, merely

documents plaintiff’s complaint of a toothache, headache and pain following the use

of force. It could not enable a reasonable jury to find plaintiff’s back was injured

during the April 29, 2008 use of force. Indeed, the medical evidence in the record

(the x-ray results discussed above as well as the MRI results discussed in the

following section) establishes beyond dispute that plaintiff did not sustain a back

injury on April 29, 2008. 

Further, although it is undisputed that Dr. Andem did not order an x-ray until

May 7, 2008, the evidence does not reasonably support a finding that Dr. Andem

“delayed” ordering the x-ray. To the contrary, the evidence establishes thatfollowing

the April 29, 2008 incident, Dr. Andemfirst learned of plaintiff’s renewed complaints

of back pain on May 6, 2008. He scheduled an x-ray the following day. On these

facts, a reasonable jury could not conclude Dr. Andem was deliberately indifferent

with regard to ordering the x-ray.

As to treating plaintiff’s pain and referring plaintiff to an orthopedic surgeon,

plaintiff’s evidence of his “repeated” complaints of pain consists of the May 26, 2008

inmate request, the May 26, 2008 formal grievance, and the June 9, 2008 inmate

request. (Doc. 82, p. 2 ¶ 3 and Exs. C-F). The record establishes that Dr. Andem

prescribed Anaprox for plaintiff’s pain during an earlier visit on April 4, 2008. In

response to plaintiff’s complaint of pain during the May 6, 2008 visit, Dr. Andem

prescribed Motrin. When plaintiff complained on May 26, 2008 that he had no

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medication for his pain, Dr. Andem reminded him of his Anaprox prescription. 

Plaintiff made no further complaints of pain until 14 days later on June 9, 2008, when

he complained of “extreme pain” and that the pain medication was “futile.” Because

of plaintiff’s “continued subjective complaints,” Dr. Andem immediately requested

an orthopedic consultation. On these facts, a reasonable jury could not conclude Dr.

Andemwas deliberately indifferent with regard to treating plaintiff’s pain orreferring

him to an orthopedic specialist.

In light of the foregoing, plaintiff is not entitled to summary judgment. 

Although there is no genuine dispute as to any material fact, a reasonable jury could

not conclude Dr. Andem was deliberately indifferent to plaintiff’s medical condition

or pain. See, e.g., Nimmons v. Aviles, No. 10-10106, 2011 WL 165433 (11 Cir. Jan. th

19, 2011) (holding that prison doctor’s allegedly inadequate treatment of state

prisoner’s knee injury was not deliberately indifferent to prisoner’s serious medical

needs, as would violate the Eighth Amendment, where doctor ordered x-ray of

prisoner’s knee, but believed knee problem was not acute at that time, prisoner

continued to see doctor for other problems but made no additional complaints of knee

pain until almost eight months later, and upon examination of knee after it had

worsened, doctor ordered another x-ray and referred prisoner to orthopedist). The

care plaintiff received from Dr. Andem for his alleged back condition and pain was

adequate and certainly not “very unreasonable in light of a known risk” of harm or

suffering. Hardin, 52 F.23 at 939. 

Defendant Dr. Andem, on the other hand, meets the summary judgment

standard. Even viewing the summary judgment evidence in the light most favorable

to plaintiff, the record establishes there is no genuine dispute as to any material fact

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and that Dr. Andem acted reasonably in treating plaintiff’s pain and alleged back

condition. Plaintiff fails to produce evidence that Dr. Andem disregarded his pain or

an obvious medical need. On this record, a reasonable jury could not conclude Dr.

Andem violated the Eighth Amendment. 

CLAIMS AGAINST DR. LORD, DR. AVILES AND MS. ALLIN

Rule 56 Evidence

Plaintiff arrived at Union CI on June 20, 2008. (Doc. 77, Ex. G, Aviles Aff.

¶ 3 and Attach. 1). He was examined by Nurse Harris (a non-party). (Attach. 1). The

exam noted that plaintiff had restrictive passesfor no prolonged standing or walking,

for the use of a cane, and for front-side cuffing. (Id.). It was also noted that plaintiff

arrived in a wheelchair, but he did not have a wheelchair pass. (Id.). Plaintiff

verbalized no medical complaints. (Id.). Dr. Nazareno (a non-party) conducted the

Clinician Record Review. (Id.). 

On June 23, 2008, plaintiff submitted an inmate request complaining he was

not authorized to have a wheelchair and that the sink and shower were difficult to

access. (Doc. 82, Ex. G). He also asked, “[C]an someone tell me how long it will be

(approximately) before I am seen by the Orthopedic? I am still dealing with a lot of

pain in my back, and the pain is radiating up my spine.” (Id.). Defendant Allin, the

Senior Health Services Administrator, received plaintiff’s request on June 30, 2008. 

(Id.; Doc. 77, Ex. G, Aviles Aff., Attach. 2). She responded the following day,

indicating they were waiting for RMC to schedule plaintiff’s appointment. (Doc. 82,

Ex. G). Plaintiff’s Chronological Record of Health Care (hereinafter “chart”)

contains a notation that the inmate request was received on June 30, 2008, and

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answered by defendant Allin on July 1, 2008. (Doc. 77, Ex. G, Aviles Aff., Attach.

2). The substance of the request is not noted. (Id.).

On July 13, 2008, at 8:00 a.m., plaintiff submitted a sick-call request inquiring

about his referral to an orthopedic specialist and complaining that Naproxin “really

does nothing for the pain.” He further indicated he was having “extreme difficulty

getting to and from the shower.” (Doc. 82, Ex. L). Plaintiff requested “some

medicine that will ease (if not take away) the pain and a lumbar support brace to help

stabilize my back and a wheelchair so I don’t have to walk.” (Id.). On July 14, 2008,

Senior Licensed Practical Nurse Bickel(a non-party) assessed plaintiff and observed

him ambulating with difficulty. (Doc. 77, Ex. G, Aviles Aff., Attach. 2). She

forwarded his chart “for MD review for pass.” (Id.). 

On July 29, 2008, plaintiff was transferred to RMC for an orthopedic

consultation with defendant Dr. Lord to address “persistent complaint of low back

pain and left hip pain. (Doc. 77, Ex. H, Lord Aff. ¶ 4 and Attach. 1). Dr. Lord saw

plaintiff on July 30, 2008. (Id.). Plaintiff ambulated with a cane. (Id. at Attach. 1). 

Dr. Lord noted plaintiff had pre-existing left mild hemiparesis (weakness) since a

cerebral vascular accident (stroke) in 2005. (Id.; see also Doc. 82, Ex. 7 (discharge

summary dated June 22, 2007 prepared by Dr. Jane Foye, a non-party, noting plaintiff

had “residual left hemiplegia”). Plaintiff reported he had been assaulted on April 29,

2008, and since then had pain in his lower back and left leg, with numbness, tingling

and burning in the leg. (Lord Aff., Attach. 1). He also reported that putting pressure

on his left leg/foot hurt his lower back. (Id.). Upon examination, Dr. Lord found the

symptoms of which plaintiff complained were not consistent with a known nerve

pattern. (Id.). He noted plaintiff exhibited poor volitional effort, and it seemed his

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exhibited weakness was not due to a medical problem, but lack of effort. (Id.). Dr.

Lord’s medical opinion wasthat plaintiff wasmalingering, as he exhibited no genuine

abnormalities. (Id.). Nonetheless, based on plaintiff’s subjective complaints Dr. Lord

recommended a MRI of plaintiff’s lumbar spine, a pass for a cane, a pass limiting the

amount of time plaintiff spent standing or walking, and a pass for a low bunk; all for

a period of three months. (Id.). Dr. Lord noted he had no clear etiology for the

recommendations and made them solely based on plaintiff’s subjective complaints

pending the results of the MRI. Dr. Lord explains in his affidavit that he “did not

have a clear medical basis for recommending the restrictive passes, [he] did so based

on Plaintiff’s insistence that he was in pain and until the MRI came in

negating/supporting his complaints.” (Lord Aff. ¶ 4). Upon plaintiff’s return to

Union C.I. on July 30, 2008, medical staff submitted a request for the MRI

examination. (Doc. 77, Ex. G, Aviles Aff. ¶ 5 and Attach. 2). 

On August 5, 2008, plaintiffsubmitted a sick-call requestseeking a copy of his

wheelchair pass. (Id.). SLPN Bickel responded that plaintiff had an upcoming

appointment on August 11, 2008. Plaintiff verbalized his understanding. (Id.). 

On August 11, 2008, defendant Dr. Aviles examined plaintiff. Plaintiff

complained of needing “two passes and his med.” (Id., ¶ 7 and Attach. 2). Dr. Aviles

noted plaintiff had a limited gait. He authorized a wheelchair passfor long distances,

a cane pass for ambulation to the shower, a pass restricting the time plaintiff was

allowed to stand, and a back brace to provide support to plaintiff’s spine. (Id.). Dr.

Aviles also prescribed plaintiff 500 mg of Naproxin, an anti-inflammatory pain

medication, for six months. (Id.). Naproxin was “the best anti-inflammatory

available.” (Id., ¶ 15.). 

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On August 14, 1008, plaintiff underwent the MRI examination at RMC. (Id.,

¶ 8 and Attach. 4). The radiologist reported the following results:

The alignment is well maintained. The disc spaces appear fairly

symmetric throughout. Mild disc degeneration is evident at the LS-S1

level. There is no abnormal bone marrow signal intensity. The conus

medullaris appeared unremarkable.

At the L2-3 level there is a slight bulging of the annulus with an

associated small [illegible] disc protrusion which is slightly

compressive.

At the L3-4 level there is a mild diffuse disc bulge also slightly

compressive upon the [illegible] sac and contributing to mild bilateral

foramina stenosis.

The L4-5 level also reveals a diffuse disc bulge which is

predominantly contributing to foramina stenosis greater towards the left

side.

The L5-S1 level demonstrates a diffuse disc bulge, contributing

to bilateral neuroforamina stenosis greater on the right side, where it

appears to be compromising the exiting nerve root.

There are moderate hypertrophic changes in the articulating facets

at the L5-S1 level which also encroaches upon the superior recesses of

the neuroforamina.

Mild central canal stenosis is evident at the L2-3 and the L3-4

level. 

IMPRESSION:

1. L5-S1 LEVEL DISC DEGENERATION WITH

ASSOCIATED DISC BULGE CONTRIBUTING TO FORAMINA

STENOSIS ANDIMPINGEMENT OF THE EXITING NERVE ROOT.

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2. L2-3 LEVEL MILD DISC BULGE WITH CENTRAL DISC

PROTRUSION MILDLY COMPRESSIVE. OTHER DETAILS AS

ABOVE.

(Doc. 77, Ex. H, Lord Aff., Attach. 2). A bulging disc can occur as a result of trauma,

but it can also occur without trauma due to regular degeneration (wear and tear). 

(Doc. 82, Ex. R, Lord’s Answer to Interrog. No. 3). “Foramina stenosis” is “a

narrowing of the tunnel through which the nerve exits the spinal canal.” (Id., Ex. R,

Lord’s Answer to Interrog. No. 1). If severe, foramina stenosis can produce a type

of pain called radicular pain. (Id., Answer to Interrog. No. 7). However, such mild

foramina stenosis such as that noted in plaintiff’s MRI is usually not severe enough

to pinch the nerve and, consequently, does not result in radicular pain. (Id., Lord’s

Answer to Interrog. No. 8).

The UnionCI MedicalRecords department received the MRIresults on August

28, 2008. (Doc. 77, Ex. G, Aviles Aff. ¶ 8 and Attachs. 2, 3). On September 4, 2008,

Dr. Nazareno reviewed the results and requested a follow-up consultation with Dr.

Lord. (Id.). Dr. Nazareno requested advice on “further management.” (Id., Attach.

3). An appointment with Dr. Lord was scheduled for October 15, 2008. (Id.).

In the meantime, on August 25, 2008, plaintiff submitted an inmate request

inquiring about the results of the MRI. Defendant Allin received the request on

August 27, 2008, and responded at 8:40 a.m. on August 28, 2008 that they had not

yet received the results. (Doc. 82, Ex. H; Doc. 77, Ex. G, Aviles Aff., Attach. 2). On

September 10, 2008, plaintiffsubmitted an inmate request for a front cuff pass, which

was issued the following day. (Aviles Aff. ¶ 8 and Attach. 2). 

On September 22, 2008, plaintiff submitted an inmate request inquiring

whether his back brace and MRI results had come in. He stated he was in pain daily

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and inquired whether he would be scheduled for physical therapy. (Doc. 82, Ex. I). 

A medical staff member (J. Hewett, a non-party) received the request on September

23, 2008, and responded on September 30, 2008 that plaintiff had a return

appointment with Dr. Lord “coming up” and that Dr. Lord would discuss plaintiff’s

issues at that time. (Id.). Plaintiff’s chart contains a notation that the inmate request

was received on September 23, 2008, and answered by J. Hewett on September 30,

2008. (Doc. 77, Ex. G, Aviles Aff., Attach. 2). The substance of the request is not

noted. (Id.).

On September 23, 2008, SLPN Bickel noted on plaintiff’s chart that during the

morning medical rounds plaintiff stated to the nurse, “I have not received my front

cuff pass or my back brace.” (Doc. 77, Ex. G, Aviles Aff., Attach. 2). Plaintiff’s

chart wasforwarded “to MD for copy offront cuff pass and size mediumback brace.”

(Id.). On September 24, 2008, Dr. Aviles confirmed plaintiff had a front cuff pass. 

(Doc. 77, Ex. G, Aviles Aff. ¶ 8). That same date, a medical staff member (SLPN

Smith, a non-party), submitted a request to “supply” for a back brace. (Id., Ex. G,

Aviles Aff., Attach. 2).

On October 15, 2008, Dr. Lord reexamined plaintiff as part of a follow-up

examination of the MRI. (Doc. 77, Ex. H, Lord Aff. ¶ 6 and Attach. 3). Dr. Lord

noted in his consultation report that plaintiff’s MRI showed minimal degenerative

changes. (Attach. 3). The mild degeneration indicated “regular ‘wear and tear’” for

a male plaintiff’s age. (Id., ¶ 5 and Attach. 3). Although a healed fracture can show

up on an x-ray or MRI, it does not always show up. (Doc. 82, Ex. R, Answer to

Interrog. No. 20). Neither plaintiff’s x-ray nor his MRI revealed a healed fracture. 

(Id., Answer to Interrog. No. 21). 

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Dr. Lord noted plaintiff complained of low back pain and left leg pain. Upon

examination, however, Dr. Lord found plaintiff exhibited poor volitional effort and

his symptoms seemed significantly out of proportion to the MRI findings. (Doc. 77,

Ex. H, Lord Aff. ¶ 5 and Attach. 3). Further, the objective findings did not correlate

with plaintiff’s subjective symptoms. (Id. ¶ 6). Plaintiff complained of numbness

which did not coincide with the normal distribution of a nerve root. (Id.). 

Additionally, his loss of sensation did not follow a normal distribution of a pinched

nerve in the back. (Id.). In other words, plaintiff’s subjective complaints did not

make anatomical sense. (Id.). Dr. Lord recommended a series of three epidural

steroid injections as an option for treatment. (Id. and Attach. 3; Doc. 82, Ex. R,

Answer to Interrog. No. 13). He did not, however, believe they were medically

necessary. He recommended them solely as an option for consideration by plaintiff’s

treating physician. When a treatment is medically necessary, Dr. Lord indicates that

on the report. He did not indicate that in plaintiff’s case. (Id.). Dr. Lord’s October

15, 2008 consultation was his last contact with plaintiff. (Doc. 77, Ex. H, Lord Aff.

¶ 7).

Dr. Lord did not recommend stronger pain medication for plaintiff. Dr. Lord

does not recall plaintiff complaining about the effectiveness of his pain medication

during their consultation. (Doc. 77, Ex. H, Lord Aff. ¶ 8; Doc. 82, Ex. R, Lord’s

Answer to Interrog. No. 16). Dr. Lord’s consultation report does not reflect a request

for stronger pain medication. (Doc. 77, Ex. H, Lord Aff., Attach. 3). Dr. Lord could

have ordered stronger medication absent a request, but only if plaintiff’s physical

evaluation or MRI demonstrated its necessity. (Doc. 77, Ex. H, Lord Aff. ¶ 8; Doc.

82, Ex. R, Lord’s Answer to Interrog. No. 16). That was not the case. The MRI did

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not show any degeneration that would merit strong pain medication. (Doc. 77, Ex.

H, Lord Aff. ¶¶ 5, 8; Doc. 82, Ex. R, Lord’s Answer to Interrog. No. 16). More

aggressive pain medication would have been narcotics. (Doc. 77, Ex. G, Aviles Aff.

¶ 15.). 

When asked in an interrogatory: “Is radicular pain secondary to compression,

inflammation and/or injury to a spinal nerve root?”, Dr. Lord responded, “Yes.” 

(Doc. 82, Ex. R, Lord’s Answer to Interrog No. 11). When asked in the next

interrogatory, “Is it common for a physician to recommend medications (usually

muscle relaxers, and pain killers), physical therapy, pain injections (such as cortisone

and epidurals), and surgery as a last resort for this type of injury/problem?”, Dr. Lord

responded:

I first prescribe anti-inflammatory medications by mouth or by

injections (epidural steroid injections). If the patient is non-responsive

to the above and the nerve appears to be significantly compressed, I

recommend surgery. I rarely prescribe narcotics or muscle relaxers

because of their addictive nature. The only exception would be for the

time frame following surgery or briefly after the patient suffered a

traumatic injury, but not as chronic long-term pain management. I do

not typically prescribe physical therapy for radicular pain.

(Id. Answer to Interrog. No. 12).

When asked to clarifywhether he “recommend[ed] and order[ed]” spinal canal

injections for plaintiff, Dr. Lord responded:

I did note on the consultation report that spinal canal injections

were an option for treatment. I did not, however, at the time, think they

were medically necessary. Inmate Harvey’s alleged symptoms were

significantly out of proportion to his examination and MRI findings. 

His loss of sensation does not follow the distribution of a pinched nerve

in the back. However, I noted the spinal injections on his report simply

as a consideration for his treating physician. . . .

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(Id., Answer to Interrog. No. 13).

When asked if plaintiff’s “condition [can] become worse if not treated?”, Dr.

Lord responded, “No, there is no treatment that can reverse or slow the progression

of his arthritis.” (Id., Answer to Interrog. No. 17). When asked, “Can the damage to

Plaintiff’s spine become permanent and/or irreparable if it goes untreated?”, Dr. Lord

responded, “No, because there is no significant pathology noted on his spine, other

than mild degenerative changes.” (Id., Answer to Interrog No. 18). 

On October 16, 2008, Dr. Nazareno noted on plaintiff’s chart the

recommendations of defendant Dr. Lord, and requested the steroid injections fromthe

Utilization Management Department (“UM”). (Doc. 77, Ex. G, Aviles Aff., Attach.

2). UM is a branch of the Department of Corrections’ Health Services Office which

is charged with approving and/or disapproving non-routine medical procedures and

treatment. (Id., Aviles Aff. ¶ 9).

On November 21, 2008, plaintiff submitted an inmate request stating, “I am

supposed to be going to the orthopedic again for a shot in my back. How much

longer will it be? I still am having pain daily with no relief!” (Doc. 82, Ex. J). 

Defendant Allin received plaintiff’s request on November 24, 2008. (Id., see also

Doc. 77, Ex. G, Aviles Aff., Attach. 2). She answered the request on November 26,

2008, stating, “We are awaiting [sic] to hear from RMC on a[n] appointment date.” 

(Id.).

On January 13, 2009, plaintiff submitted a sick-call request. SLPN Bickel

noted on plaintiff’s chart that plaintiff complained of “severe back pains” and

inquired “Why haven’t I been seen by the orthopedic surgeon at Lake Butler?” (Doc.

77, Ex. G, Aviles Aff., Attach. 2). Plaintiff’s chart was forwarded to defendant Dr.

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Aviles. (Id.). On January 14, 2009, defendant Aviles noted the requested spinal

injections were not approved by UM due to: (1) poor effort of the inmate during

examination by Dr. Lord, (2) MRI minimal findings (minimal degenerative changes)

and (3) subjective symptoms in excess of objective signs. (Doc. 77, Ex. G, Aviles

Aff. ¶ 11 and Attach. 2). 

On January 23, 2009, plaintiff filed a formal grievance stating he was in pain

and requesting the steroid injections. (Doc. 82, Ex. N; Doc. 77, Ex. G, Aviles Aff.

¶ 12 and Attachs. 2, 6). On February 6, 2009, defendant Dr. Aviles responded to

plaintiff’s January 23, 2009 formal grievance stating, “Review of your medical

records shows that the recommendation by Dr. Lord for spinal canal injections was

denied by the QM [sic] advisor.” (Doc. 82, Ex. N; Doc. 77, Ex. G, Aviles Aff. ¶ 12

and Attachs. 2, 6). On February 11, 2009, plaintiff submitted an appeal to the Office

of the Secretary concerning the denial of the spinal canal injections. (Doc. 1, Ex. D). 

The appeal was denied on March 23, 2009. (Id., Ex. E). In the meantime, on January

28, 2009, upon plaintiff’s request, defendant Dr. Aviles referred plaintiffto the impair

committee for an institutional transfer to a wheelchair camp. (Doc. 77, Ex. G, Aviles,

Aff. ¶ 13 and Attach. 2). 

On January 29, 2009, at 2:00 p.m., plaintiff submitted a sick-call request

stating: “Dr. Aviles, I am still in continuous extreme pain in my spine and leg. 

Nothing has been done as per the order of the specialist. It has been more than 90

DAYS since Dr. Lord’s order. The medicine given for pain DOES NOT WORK, AS

I’VE TOLD YOU BEFORE!!! Since I was injured on April 29, 2008 over 9 months

ago I’ve had no treatment of substantial value or effect.” (Doc. 82, Ex. M). On

February 2, 2009, at 9:07 a.m., SLPN Bickel noted plaintiff requested information

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about his next appointment for medical treatment fromthe orthopedic surgeon. (Doc.

77, Ex. G, Aviles, Aff., Attach. 2; Doc. 82, Ex. P, Allin’s Answer to Pl.’s Interrog.

No. 5). A nurse informed plaintiff that consultations would be completed as deemed

necessary. (Id.). Plaintiff verbalized his understanding. (Id.). 

Also on February 2, 2009, plaintiff submitted an inmate request addressed to

Dr. Aviles, stating the same complaints as his January 29, 2009 sick-call request; (1)

he was suffering from extreme pain in his back and leg, (2) he had received no

treatment for his April 29, 2008 back injury and (3) the Naproxin was not relieving

his pain. (Doc. 77, Ex. I, Allin Aff. ¶ 3 and Attach. 1; Doc. 82, Ex. K). Plaintiff

added that he was beginning to experience numbness and pain in his arms. He

complained that “no one has given me a nerve test to determine if I have pinched

nerves in my back,” that he was in pain, and that he wanted “something to be done”

and “something more than Naproxin for the pain.” (Id.). Defendant Allin reviewed

plaintiff’s medical file. (Doc. 77, Ex. I, Allin Aff. ¶ 3). She did not see any notations

of prior sick-call requests relating to complaints of numbness and pain in plaintiff’s

arms. (Id.). Plaintiff’s other complaints relating to pain in his spine and leg had

already been addressed by Nurse Bickel and Dr. Aviles. (Id.). Defendant Allin

responded to the request on February 16, 2009, stating: “Review of your medical

record does not show any of these complaints at sick call. If you are having medical

problems follow sick call procedure for all medical issues.” (Id.). 

On February 5, 2009, plaintiff submitted a sick-call request seeking renewal

of his passes. (Doc. 77, Ex. G, Aviles Aff., Attach. 2). Nurse Bickel noted plaintiff’s

low bunk pass expired March 18, 2009, his cane and back brace pass expired

February 10, 2009, his passfor no prolonged standing expired February 10, 2009, and

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his front cuff pass expired March 10, 2009. (Id.). The nurse forwarded plaintiff’s

chart to a doctor. That same day, Dr. Espino reviewed plaintiff’s chart and noted: (1)

passes would be reviewed upon expiration and (2) doctors do not decide cuff

placement. (Id.). 

Plaintiff was transferred out from Union CI on February 13, 2009. (Doc. 1, p.

7-D); Doc. 77, Ex. G, Aviles Aff. ¶ 14 and Ex. I, Allin Aff. ¶ 4). Thereafter,

defendants Dr. Aviles and Ms. Allin had no further contact with plaintiff.

Analysis - Dr. Lord

Although defendant Lord asserts an exhaustion defense, the court need not

address that issue. Even assuming (without deciding) that plaintiff properly

exhausted his administrative remedies, he cannot establish defendant Dr. Lord’s

conduct violated the Eighth Amendment.

Plaintiff claims Dr. Lord was deliberately indifferent to his serious medical

needs – his alleged back injury sustained on April 29, 2008, and his need for stronger

pain medication due to the alleged injury. (Doc. 1, pp. 7-B, 7-C). The record does

not present a genuine issue of material fact as to whether plaintiff sustained a back

injury on April 29, 2008. The undisputed medical evidence – the results of plaintiff’s

physical examination, x-ray and MRI examination – offers no support at all for such

a claim. His x-ray was normal, and the MRI results reflect normal wear and tear,

including a mildly compressed nerve. Plaintiff fails to present any medical evidence

from which a reasonable jury could find that as a result of the April 29, 2008 use of

force, he sustained a back injury or further damage to his back rising to the level of

an objectively serious medical need.

Similarly as to plaintiff’s pain, the record reveals no genuine dispute as to

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whether plaintiff had an objectively serious medical need for stronger pain

medication. Defendants’ medical evidence demonstrates he did not. Neither

plaintiff’s personal opinion, nor his evidence that he repeatedly complained of pain,

is sufficient to raise a genuine dispute. Although plaintiff argues the defendants’

answers to discovery permit a reasonable jury to find that his condition can cause the

level of pain he alleges, (doc. 88, pp. 3-5), the evidence does not bear that out. 

Defendants’ responses are to general questions concerning whether certain conditions

(some appearing on plaintiff’s MRI and some not) “can” be painful. (Doc. 88, Exs.

D, E, F, G). The defendants consistently state that the answer depends on the severity

of the condition. (Id.). But neither the MRI results, the defendants’ responses to

discovery, nor any other medical evidence could permit a jury to find that plaintiff’s

objectively determined medical condition issevere, or of such severity as to give rise

to the “extreme” pain he describes. To the contrary, Dr. Lord describes plaintiff’s

condition as “mild” and his claimed pain “significantly out of proportion” to his

objectively determinedmedical condition. Furthermore, there is no objectivemedical

evidence supporting plaintiff’s allegations that he suffers from “radicular” pain. Dr.

Lord testifies, and plaintiff does not dispute, that plaintiff’s complaints of radicular

pain do not make anatomical sense. Thus, even when viewed in the light most

favorable to plaintiff, a reasonable jury could not conclude plaintiff had an

objectively serious medical need for additional treatment orstronger pain medication

for his back. 

Even if there were a genuine dispute asto thisfirst element of plaintiff’s Eighth

Amendment claim, the evidence concerning the second element is withoutsubstantial

controversy and fails to establish Dr. Lord acted with an attitude of deliberate

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indifference (i.e., that he knew his treatment posed a substantial risk of serious harm

to plaintiff and disregarded that risk by conduct that is more than gross negligence). 

Plaintiff was referred to Dr. Lord upon complaints of low back and leg pain. 

Even though Dr. Lord was not convinced of the veracity of plaintiff’s complaints and

suspected he was malingering, he nevertheless ordered an MRI “to rule out any nerve

damage to Plaintiff’s spine.” (Doc. 77, Ex. H, Lord Aff. ¶ 8). He also recommended

various restrictive passes until the results came in supporting/negating plaintiff’s

complaints. (Id., ¶ 4). When the MRI results came in, Dr. Lord reviewed the report

and determined there were only mild degenerative changes (normal wear and tear)

that did not merit strong pain medication and did not support plaintiff’s subjective

complaints of pain. Although the medical evidence did not show a medical necessity

for further treatment, Dr. Lord authorized anti-inflammatory spinal injections as an

option at the discretion of plaintiff’s treating physician. 

Plaintiff disagrees with Dr. Lord’s assessment of the MRI results. He asserts

it “showed much more than ‘minimal degenerative changes’” (doc. 84, Pl.’s Aff. ¶ 4)

and that it provides a basis from which a reasonable jury could infer Dr. Lord knew

plaintiff had a serious medical need for additional treatment and stronger pain

medication. (Doc. 82, p. 3 ¶ 8). However, as discussed above, the only medical

evidence interpreting the radiologist’s findings is Dr. Lord’s testimony. That

testimony – that the results gave rise to the option, but not necessity, for further

treatment, and did not give rise to a need for stronger pain medication – remains

undisputed. Plaintiff’s personal opinion is insufficient to raise a genuine factual

dispute. 

Plaintifffurther asserts Dr. Lord’s answersto interrogatories establish that Lord

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knew plaintiff had a serious need for stronger pain medication. (Doc. 82, pp. 3-4 ¶

9; Doc. 84, Pl.’s Aff. ¶ 4). Plaintiff’s argument, however, stands on

misrepresentations of those answers. Plaintiff says Dr. Lord stated “that a

compromised nerve can be painful, and that he could have ordered some stronger

medication for plaintiff.” (Doc. 82, pp. 3-4, Fact. No. 9 (citing Doc. 82, Ex. R, Lord’s

Answers to Pl.’s Interrog. Nos. 4, 6, 16)). What Dr. Lord said is: “a compromised

nerve can be painful if severely compressed.” (Id.) (emphasis added). The evidence

does not reasonably support an inference that plaintiff had a severely compressed

nerve. Dr. Lord also stated foraminal stenosis can produce a type of pain called

radicular pain, if the stenosis is severe; however, he went on to state that “such mild

foraminal stenosis, as noted in inmate Harvey’s MRI is not severe enough to pinch

the nerve and consequently does not result in radicular pain.” (Doc. 82, Ex. R, Lord’s

Answer to Pl.’s Interrog. No. 7) (emphasis added). Further, the full context of Dr.

Lord’s answer concerning prescribing stronger pain medication for plaintiff is this: 

“I could have ordered something stronger for Inmate Harvey if I felt his physical

evaluation or MRI demonstrated that such was necessary.” (Doc. 82, Ex. R, Lord’s

Answer to Pl.’s Interrog. No. 16) (emphasis added). Dr. Lord’s answers to

interrogatories do not enable a reasonable jury to find Dr. Lord knew plaintiff had a

serious medical need for stronger pain medication. 

Again, although the record does not raise a genuine dispute as to any material

fact, the evidence does not permit a reasonable jury to conclude Dr. Lord knew of and

disregarded a substantial risk ofserious harmto plaintiff’s health or a serious medical

need for stronger pain medication. Therefore, plaintiff’s motion for summary

judgment must be denied as to Dr. Lord.

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Turning to Dr. Lord’s motion, the summary judgment evidence does not create

a question for the jury whether he was aware his treatment posed a substantial risk of

serious harm to plaintiff. The facts establish Dr. Lord responded reasonably to

plaintiff’s complaints. Although a dispute exists concerning whether plaintiff

informed Dr. Lord directly that the prescribed pain medication was ineffective, that

dispute is not genuine. Even assuming the truth of plaintiff’s version – that during

a consultation with Dr. Lord he informed Lord that the prescribed pain medication

“did nothing for the pain and [plaintiff] no longer took it for that reason and [plaintiff]

needed something else that would effectively stop or dull the pain,” (doc. 1, p. 7-B)

– the evidence is not such that a reasonable jury could return a verdict for plaintiff. 

Given Dr. Lord’s testimony that none of the objective findings – the physical

examination, x-ray or MRI results – revealed a condition meriting strong pain

medication, that his complaints of pain were significantly out of proportion to his

objectively determined medical condition, and that his complaints of numbness and

radicular pain did not make anatomical sense, a reasonable jury could not find Dr.

Lord recklessly disregarded a serious medical need for stronger pain medication.

Reduced to its essence, plaintiff’s deliberate indifference claim against Dr.

Lord amounts to nothing more than plaintiff’s disagreement with the doctor’s medical

opinion. Disagreement with a prison doctor’s medical judgment, however, cannot

form the basis of an Eighth Amendment claim. See Harris v. Thigpen, 941 F.2d at

1505 (“[A] simple difference in medical opinion between the prison’s medical staff

and the inmate” regarding the course of treatment does not state an Eighth

Amendment claim.”); Adams v. Poag, 61 F.3d 1537, 1545 (11 Cir. 1995)

th

“[W]hether governmental actors should have employed additional diagnostic

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techniques or forms of treatment is a classic example of a matter for medical

judgment and therefore not an appropriate basis for grounding liability under the

Eighth Amendment.”) (quotation marks omitted); see also, e.g., Smith v. Fla. Dep’t

of Corrections, 375 Fed. Appx. 905, 910 (11 Cir. 2010) (unpublished opinion) th

(“Smith’s claim rests on his difference of opinion with the prison medical staff over

the course of his treatment, which does not rise to the level of an Eighth Amendment

violation.”). 

Based on the summary judgment evidence, a reasonable jury could not

conclude Dr. Lord’s conduct violated the Eighth Amendment. Accordingly,

defendant Lord’s motion for summary judgment should be granted. 

 Analysis - Dr. Aviles

Plaintiff claims Dr. Aviles was deliberately indifferent to the alleged back

injury and pain. (Doc. 1, pp. 7-C, 7-D). Plaintiff contends his repeated sick-call

requests and grievance establish that “medical officials knew of plaintiff’s injuries,

extreme and continual pain, and simply failed to respond.” (Doc. 81, p. 20). In order

to hold Dr. Aviles personally liable, evidence must exist that Dr. Aviles personally

knew of plaintiff’s alleged injury and extreme pain. Dr. Aviles may have known of

those grievances and complaints that were referred to him or documented in

plaintiff’s chart. Even so, to infer knowledge of any and all requests and grievances

handled by other staff and not appearing in plaintiff’s chart is unreasonable. Burnette

v. Taylor, 533 F.3d 1325, 1331 (11 Cir. 2008) (“[I]mputed or collective knowledge th

cannot serve as the basis for a claim of deliberate indifference. Each individual

Defendant must be judged separately and on the basis of what that person knows.”)

(citations omitted).

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The record does not raise a genuine dispute as to any material fact concerning

Dr. Aviles’ knowledge and treatment. Dr. Aviles’ first contact with plaintiff was on

August 11, 2008. Plaintiff complained of needing “two passes and his med.” Dr.

Aviles noted plaintiff had a limited gait. He authorized a wheelchair pass for long

distances, a cane pass for ambulation to the shower, a pass restricting the time

plaintiff was allowed to stand, and a back brace to provide support to plaintiff’s spine. 

Dr. Aviles also prescribed plaintiff 500 mg of Naproxin, an anti-inflammatory pain

medication, for six months. Dr. Aviles’ next contact with plaintiff was on September

24, 2008, when Dr. Aviles confirmed plaintiff had a front cuff pass. His next contact

with plaintiff was on January 13, 2009, when he responded to plaintiff’s sick-call

request complaining of “severe back pains” and inquiring “Why haven’t I been seen

by the orthopedic surgeon at Lake Butler?” Dr. Aviles noted the requested spinal

injections were not approved by UM due to: (1) poor effort of the inmate during

examination by Dr. Lord, (2) MRI minimal findings (minimal degenerative changes)

and (3) subjective symptoms in excess of objective signs. Dr. Aviles notified plaintiff

that the injections were disapproved. Dr. Aviles did not make the decision to

disapprove them. At plaintiff’s request, Dr. Aviles referred plaintiff to the impair 3

committee for an institutional transfer to a wheelchair camp. After that, Dr. Aviles

had no further contact with plaintiff. 

No evidence or inference shows that Dr. Aviles was aware of plaintiff’s

subjective complaints of pain. Also, no genuine dispute exists as to Dr. Aviles’

response. Dr. Aviles responded to each complaint referred to him. He issued

The evidence establishes it was the “UM advisor” who disapproved the injections. Plaintiff 3

identifies this person as Dr. Thayer. (Doc. 1, p. 7-C). Plaintiff has voluntarily dismissed his claims

against defendant Dr. Thayer due to his death. (Docs. 74, 75, 85).

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appropriate passes and prescribed Naproxin – “the best anti-inflammatory available” 

– for plaintiff’s alleged pain. (Doc. 77, Ex. G, Aviles Aff., p. 5 ¶ 15). Dr. Aviles did

not provide stronger pain medication, but there is no triable issue concerning the

reasonableness of that decision. Dr. Aviles knew an orthopedic specialist (Dr. Lord)

had examined plaintiff, ordered an MRI and, after evaluating the results, determined

there were only mild degenerative changes to plaintiff’s spine which could not

reasonably be expected to give rise to the type or severity of plaintiff’s claimed pain. 

Plaintiff failsto present evidence from which a reasonable jury could infer Dr. Aviles

must have known Dr. Lord grossly misjudged plaintiff's condition. Plaintiff’s

personal opinion about the MRI results does not create a triable issue.

Viewing the evidence in Dr. Aviles’ favor, a reasonable jury could not

conclude Aviles knew of and disregarded a substantial risk of serious harm to

plaintiff’s health or a serious medical need for stronger pain medication. Therefore,

plaintiff’s motion for summary judgment must be denied. Viewing the evidence in

plaintiff’s favor, a reasonable jury could not conclude Dr. Aviles was deliberately

indifferent to an objectively serious need for additional treatment or stronger pain

medication for plaintiff’s back condition. Therefore, Dr. Aviles is entitled to

summary judgment.

Analysis - Ms. Allin

Plaintiff claims Ms. Allin was deliberately indifferent to his serious medical

needs when she “blocked access to a doctor by answering plaintiff’s [February 2,

2009] request rather than forwarding it to the doctor.” (Doc. 82, p. 3 ¶ 6 (citing Ex.

K); see also Doc. 1, p. 7-D). Plaintiff asserts Ms. Allin is a “bookkeeper of medical

records,” and not a “medical professional.” (Id., p. 3 ¶¶ 6-7). Therefore, she knew

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denying plaintiff’s request without forwarding it to medical staff exposed him to a

substantial risk of serious harm. 

Although defendant Allin asserts an exhaustion defense, the court need not

decide that the issue because even assuming, without deciding, that plaintiff properly

exhausted his administrative remedies, he cannot establish defendant Allin’s conduct

violated the Eighth Amendment. The facts underlying plaintiff’s claim against

defendant Allin are not genuinely disputed. The record establishes that at the time

Ms. Allin responded to plaintiff’s February 2, 2009 request, plaintiff’s complaints of

back and leg pain had already been addressed by medicalstaff, and his complaints of

numbness and pain in his arms had never been brought to medical staff’s attention

through a sick-call request. Based on this evidence, even if Ms. Allin’s response

erroneously stated that none of plaintiff’s complaints had been submitted to medical,

a reasonable jury could not conclude that she knew her failure to forward plaintiff’s

request to medical staff and her instruction to follow sick-call procedure posed a

substantial risk of serious harm to plaintiff’s health. Therefore, plaintiff’s summary

judgment motion should be denied and defendant Allin’s motion granted.

CLAIMS AGAINST ARNP NICHOLS AND DR. COLLINS

Rule 56 Evidence

Plaintiff arrived at Santa Rosa CI on February 13, 2009 and was examined by

medical staff (M. Hardin, a non-party). (Doc. 77, Ex. J, Nichols Aff. ¶ 3 and Attach.

1). Plaintiff was in a wheelchair. (Id. at Attach. 4). He was advised that neither a

wheelchair pass nor a cane pass would be issued at that time due to his confinement

in a close management dormitory. (Id. at Attachs. 1, 4). On February 24, 2009,

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defendant ARNP Nichols attempted to examine plaintiff for a pass evaluation;

however, plaintiff refused to leave his cell and come out to sick-call. (Id., ¶ 3 and

Attach. 2). Plaintiff states his refusal was based on security staff’s refusal to provide

him a cane to ambulate to sick-call. (Doc. 84, Pl.’s Aff. ¶ 6). 

That same date, February 24, 2009, plaintiffsubmitted a formal grievance (log

number 0902-119-415) seeking renewal of his passes. (Doc. 77, Ex. K, Collins Aff.,

Attach. 3). He complained he arrived at Santa Rosa CI with valid passes, that he was

told he would have to see “Dr. Nichols” to get new passes, and that she would not see

him unless he walked to the nurses’ station. Plaintiff asserted he could not walk

without a walking aid “due to past injuries and no treatment for those injuries.” (Id.). 

Defendant Dr. Collins denied the grievance on March 10, 2009, stating: 

In your requestfor administrative remedy or appeal, you indicated

that you are requesting to have your passes renewed. You stated you

can not ambulate on your own power. You stated you had a wheelchair

pass. 

You had an appointment on 02/24/2009 with ARNP Nichols to

have your passes reevaluated. You refused to come out of your cell. 

You stated you needed a wheelchair. The ARNP reviewed your medical

records, there is no documentation indicating you can not walk. The

ARNP answered a request on 02/25/2009 regarding these same issues. 

The answer stated: You can go to sick call for your issues. But there

will be no wheelchair. This medical decision provided is consistent with

current objective medical findings.

(Id.). 

On March 2, 2009, plaintiff was called out to medical for a sick-call visit for

pass renewal (cane, front cuff and wheelchair) and medication renewal, but refused

to walk from his cell to the medical department for the stated reason he could not

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walk without his cane. (Doc. 77, Ex. J, Nichols Aff. ¶ 3 and Attachs. 3, 4; Doc. 84,

Pl.’s Aff. ¶ 6). Plaintiff’s chart noted (in an entry by Nurse Austin, a non-party) that

plaintiff had a history ofstroke with left-side hemiplegia weakness, and that plaintiff

walked with weakness to his left side dragging his left foot. Nurse Austin discussed

with plaintiff the risks and consequences of refusing medical services. (Doc. 77, Ex.

J, Nichols Aff., Attach. 4). Plaintiff signed a Refusal of Health Services form. (Id.,

Attachs. 3, 4). Nurse Austin reviewed plaintiff’s chart and scheduled him for a callout to be seen March 3, 2009, for pass evaluation. (Id., Attach. 4). 

On March 3, 2009, Nurse Nichols examined plaintiff to conduct a pass

evaluation. (Doc. 77, Ex. J, Nichols Aff. ¶ 4 and Attach. 4). Plaintiff was assisted to

sick-call by correctional officers. He made no attempt to walk. (Id.). Nurse Nichols

noted there was no muscle atrophy in plaintiff’s leg. (Id.). Muscle atrophy is

common in patients who are unable to bear weight on a leg for a long period of time. 

(Id.; see also Doc. 77, Ex. K, Collins Aff. ¶ 4). Nurse Nichols did not see any other

indication that plaintiff was unable to walk without the use of a cane. (Id.). 

However, due to plaintiff’s subjective complaints that he was unable to put pressure

on his leg, she issued plaintiff a one-year pass (effective 3/3/09 - 3/3/10) permitting

use of a cane outside his cell (i.e., inside the dormitory), a pass for front-side cuffing

when using his cane, and a pass for low bunk placement. (Id.; see also Doc. 82, Ex.

1). She advised plaintiff that if he used his cane as a weapon he would lose his cane

and front-cuff passes permanently with no discussion. (Doc. 77, Ex. J, Nichols Aff.

¶ 4 and Attach. 4). 

On March 10, 2009, Defendant Nichols prescribed plaintiff Motrin 600 mg to

be taken twice a day for 90 days. (Id., Nichols Aff. ¶ 5 and Attach. 5). Motrin is a

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non-steroidal anti-inflammatory drug used to used to treat inflammation and is

typically prescribed for pain. (Id., Nichols Aff. ¶ 5). 

On March 18, 2009, plaintiff re-submitted a formal grievance (which he had

originally submitted as an emergency grievance to the Office of the Secretary on

March 2, 2009, but which was returned to him without processing on procedural

grounds) complaining his cane, wheelchair and front-cuff passesfromUnion CI were

not honored at Santa Rosa CI. He requested re-issuance of the passes. (Doc. 77, Ex.

K, Collins Aff. ¶ 6 and Attach. 6). Dr. Collins denied the request, noting that plaintiff

was evaluated by the ARNP on March 3, 2009, and his passes for low bunk, front

cuff, and use of a cane outside of cell were all renewed. (Id.).

On March 30, 2009, plaintiff filed an inmate requeststating he wasin “extreme

pain” in his back and leg. (Id., Nichols Aff. ¶ 6 and Attach. 6; Doc. 81, Ex. Z). He

stated that the Ibuprofen prescribed at sick-call was “not working.” (Id.). He also

requested a “comprehensive nerve test,” because he believed he had “damaged

nerves.” (Id.). Nurse Nichols reviewed plaintiff’s medical file, noting he had

received an x-ray, a MRI and evaluation by the orthopedic surgeon. Based on this

information, she concluded “that Plaintiff’s subjective complaints were inconsistent

with his actual physical condition, and that a ‘comprehensive nerve test.’ was

unnecessary.” (Id., Nichols Aff. ¶ 6). She responded to plaintiff’s inmate request on

March 30, 2009, stating: “You have been examined and tested for your complaints. 

NSAIDs [Non-Steroidal Anti-InflammatoryDrugs] orTylenol are the treatment.” (Id.

and Attach. 6; Doc. 81, Ex. Z). 

Dr. Collins left his employment with the Department of Corrections on April

2, 2009. (Doc. 77, Ex. K, Collins Aff. ¶ 8). 

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On April 8, 2009, plaintiff submitted a medical grievance complaining that

ARNP Nichols’ response to his inmate request was “a lie,” and that he had never been

tested for damaged or pinched nerves. (Doc. 81, Ex. A-1). He complained that he

was in pain daily and that the prescribed pain mediation was ineffective. On April

4, 2009, Regional Health Services Executive Director Dr. Rummel (a non-party)

denied the grievance, stating:

In your requestfor administrative remedy or appeal, you indicated

that you are not being provided proper treatment for back pain. You

stated you had not been tested for damaged or pinched nerves. 

You were examined by ARNP Nichols on 03/03/09. She

documented you do not have any muscle lossin your legs[sic] muscles. 

Muscle loss usually occurs with nerve damage. She issued passes for

low bunk, cane uses outside of cell, front cuff and no work due to your

back problem. A review of your revealed x-rays (back) lumbar and

pelvis on 07/30/08 were within normal limits; an MRI on 08/14/08

would show a pinched nerve. If you are still having problems return to

sick call and be reevaluated.

(Id., Ex. B-1).

On May 26, 2009, plaintiff’s prescription for Motrin was renewed. (Id.,

Nichols Aff., ¶ 5 and Attach. 5; see also Doc. 77, Ex. K, Collins Aff., Attach. 5). 

On July 30, 2009, plaintiff filed an “emergency medical grievance” (log

#0907-119-490) complaining he was denied medical attention when security staff

(Sgt. Grant and Officer Quilin) refused to provide his cane for walking from his cell

to the medical room to attend a medical call-out, even after plaintiff informed them

of his March 3, 2009 pass permitting use of a cane outside his cell. (Doc. 82, Ex. T). 

Institutional staff received the grievance on July 31, 2009, and responded on August

12, 2009: “Lt. Diermyer has investigated your complaint and he was informed that

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Mrs. Nichols had instructed that you only needed your cane for out of cell programs

and outside the dormitory.” (Id., Ex. U). Plaintiff filed a second medical grievance

on July 30, 2009, (log #0908-119-033) complaining that after he told a nurse (Nurse

VonOven, a non-party) of security staff’s conduct, she responded that plaintiff did

not need his cane for ambulating in the dormitory and that if he “kept it up,” his cane

would be taken from him. Plaintiff complained that Nurse VonOven had effectively

modified his cane pass. (Id., Ex. V). Institutional staff received the grievance on

August 3, 2009, and responded on August 18, 2009: “In your administrative remedy

or appeal, you indicated that Nurse VonOven modified your cane pass. Nurse

VonOven did not modify your cane pass. She questioned if you needed your cane

for the short distance in the dorm, from your cell to the medical room. Security

informed the nurse you refused to come out for sick call. If security is denying you

your cane sign up for sick call and be evaluated. If you still need sick call put in

another slip.” (Id., Ex. W). Plaintiff filed a third medical grievance on July 30,

2009, (log #0908-119-034), this one addressed to the warden. (Id., Ex. X). Plaintiff

complained that later the afternoon of July 30, Sgt. Grant returned to plaintiff’s cell

and “threatened” him that he would lose his cane pass. Plaintiff further complained

Grant told him “the ARNP” said plaintiff did not need his cane to go to the shower. 

(Id.). Institutional staff received the grievance on August 3, 2009, and responded on

August 18, 2009: “In your administrative remedy or appeal, you indicated that Sgt.

Grant threatened you that your can pass was only good outside the dorm per ARNP

Nichols. A review of your medical records does not indicate a request or order by

ARNP Nichols to remove or change your cane pass. You may wish to clarify your

pass by sending a request to ARNP Nichols.” (Id., Ex. Y).

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After filing those grievances but before receiving the responses, plaintiff

submitted an inmate request to defendant Nichols on August 5, 2009, stating: 

I’m told that you’ve stated to security that I can only use my cane

if I leave the dorm. I need my cane for support when I walk. You gave

me a pass for outside my cell so I can go to the shower and wherever

else I need to go outside my cell. Since I cannot put pressure on my left

leg without extreme pain, my cane is NEEDED outside my cell as my

passstates. There was no problem in G-Dorm using my can outside my

cell so why is it a problem in E-Dorm? I need to go to sick call but

security will not honor my pass that you gave me. I don’t intend on

crawling to the nurses’ station – thatshould not be necessary since I’ve

had no problem with my cane to cause it to be taken! Can you please

notify security in E-Dorm that I can use my cane outside my cell since

they are not honoring my pass.

(Id., Ex. Z). Nurse Nichols responded on August 6, 2009, stating: “The shower is

right by your cell – you do not need a cane – so since this is becoming such an issue

with you I will reassess your need for a cane at all.” (Id.). 

On August 10, 2009, plaintiff submitted a medical grievance that “the ARNP 

has stated to me that I don’t need my cane. However, this is untrue!” (Doc. 88, Ex.

N). He went on to state that he cannot put full pressure on his left leg and he did not

want Nurse Nichols to reassess his need for a cane pass. (Id.). He further stated he

needed a cane outside his cell because he would “fall over” without its support, and

Nurse Nichols knew he could not “walk on his own power.” The new Chief Health

Officer at Santa Rosa CI, Dr. Asante (a non-party), construed plaintiff’s grievance as

“requesting to use your cane to go to the shower.” (Id.). She responded on August

21, 2009, stating “The shower is located next to your room. No cane needed per

ARNP Nichols.” (Id.). 

On August 11, 2009, Nurse Nichols re-evaluated plaintiff’s cane pass to

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determine if he needed a cane for ambulation inside the dormitory. (Doc. 77, Ex. J,

Nichols Aff. ¶ 7 and Attach. 4). She noted plaintiff complained of security staff not

giving him his cane when he left his cell. According to defendant Nichols, plaintiff

admitted he was able to walk without a cane, but stated walking without it hurt his leg

and he would not subject himself to pain. (Id.). Plaintiff, in his own affidavit,

disputes this fact “to the extent that plaintiff never stated to Defendant Nichols that

he could walk on his leg without a cane.” (Doc. 84, Pl.’s Aff. ¶ 7). Nurse Nichols

examined plaintiff and observed he ambulated slowly and bore weight on both legs. 

His balance was “fine.” (Doc. 77, Ex. J, Nichols Aff. Attach. 4). She further noted,

“cane does not enable him to walk - he can walk without cane.” (Id.). Nurse Nichols

changed plaintiff’s cane pass from permitting use inside the dormitory to outside

dorm use only, noting “Inmate states he will fall which I am sure he will, but he is

quite able to walk about in cell without problems and I am sure this will be a

manipulation.” (Doc. 77, Ex. J, Nichols, Aff. ¶ 7 and Attach. 4; see also Doc. 82, Ex.

2). Plaintiff states the only reason he is able to ambulate in his cell without his cane

is because it is a handicapped cell equipped with bars on the wall and stationary

furniture. Plaintiff moves about the cell using the bars on the wall and/or the

stationary furniture (toilet, sink, desk, bench, bunk) in the cell. (Doc. 84, Pl.’s Aff.

¶8).

Nurse Nichols further explains in her affidavit:

Because Plaintiffis housed in a Close Management dormitory, his

cane pass was changed from inside the dorm to outside the dorm use

only. As a clinician in a prison setting, I must consider both patient care

and security when administering treatment. This is why any medical

equipment that can be utilized as a weapon, such as a cane, is not

authorized unless it is absolutely necessary. As a result of Plaintiff’s

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statement that he was able to walk without the use of the cane and my

objective findings of the same, I changed Plaintiff’s pass to outside

dorm use only. Contrary to Plaintiff’s statement, I did not change the

nature of his cane pass out of retaliation, but as a result of his

examination, the information in his file, and security concerns.

(Doc. 77, Ex. J, Nichols Aff. ¶ 7). Plaintiff has been a Close Management inmate

since May 13, 2008. (Id. n. 1). Plaintiff states he was assigned to CM after he was

found guilty of using his cane as a weapon. (Doc. 84, Pl.’s Aff. ¶ 7). Since then,

however, “there have been no security issue or concern at all involving the plaintiff

and the use of his cane as a weapon.” (Id.).

Close Management (“CM”) is “the confinement of an inmate apart from the

general population, for reasons of security or the order and effective management of

the institution, where the inmate, through his or her behavior, has demonstrated an

inability to live in the general population without abusing the rights and privileges of

others.” FLA. ADMIN. CODE ANN. r. 33-601.800(1)(d). There are three individual

levels (CM I, CM II and CM III) associated with Close Management. Id. r. 33-

601.800(1)(e). Of the three levels, CM I is the most restrictive single cell housing

level and CM III is the least restrictive. (Id.). Plaintiff is a CM II inmate. (Doc. 77,

Ex. J, Nichols Aff. ¶ 7 n. 1).

Plaintiff states that despite the August 11, 2009 change to his cane pass,

security staff in his dormitory continue to allow him use of his cane outside his cell

within the dormitory. (Doc. 84, Pl.’s Aff. ¶ 8). 

Analysis - Deliberate Indifference Claim Against ARNP Nichols

Plaintiff claims defendant Nichols was deliberately indifferent to his serious

medical need for “effective pain medication.” (Doc. 1, p. 7-F ¶ 12). The record

reveals no genuine dispute as to any material fact concerning defendant Nichols’

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treatment of plaintiff’s pain. It is undisputed ARNP Nichols was aware plaintiff

vocalized allegations of pain on several occasions. (Doc. 82, Nichols’ Answer to

Pl.’s Req. for Admis. No. 11). But the evidence also establishes ARNP Nichols

prescribed Motrin to relieve his pain. After plaintiff complained the medication was

not effective, she examined plaintiff’s medical chart, including his x-ray and MRI

results and the orthopedic surgeon’s findings and recommendations. Because

plaintiff’s subjective complaints of the severity of pain and need for stronger pain

medication were not supported by the objective medical findings, she did not

prescribe stronger medication. Plaintiff disagrees with her medical judgment, but

fails to provide evidence from which a reasonably jury could find that she grossly

misjudged plaintiff’s condition. Plaintiff’s non-medical opinion about the severity

of his condition is insufficient to raise a genuine dispute on the issue. Because the

record reveals no genuine dispute as to any material fact, and the evidence could not

enable a reasonable jury to conclude defendant Nichols knew of an obvious need for

stronger pain medication and disregarded that need by conduct that is more than gross

negligence, plaintiff is not entitled to summary judgment. For the same reason,

defendant Nichols is entitled to summary judgment on plaintiff’s medical deliberate

indifference claim. 

Analysis - Retaliation Claim Against ARNP Nichols 

Plaintiff also raises a First Amendment retaliation claim against defendant

Nichols, alleging that her August 11, 2009 reassessment and modification of his

March 3, 2009 cane pass allowing use of his pass outside his cell (inside the

dormitory) was in retaliation for filing grievances that the pass was not being

honored. (Doc. 1, p. 7-F ¶ 14 and p. 8). 

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“The First Amendment forbids prison officials from retaliating against

prisoners for exercising the right of free speech.” Farrow v. West, 320 F.3d at 1248. 

“It is an established principle of constitutional law that an inmate is considered to be

exercising his First Amendment right of freedom ofspeech when he complainsto the

prison’s administrators about the conditions of his confinement.” Smith v. Mosley,

532 F.3d 1270, 1276 (11 Cir. 2008) (citing Farrow, 320 F.3d at 1248); O’Bryant v. th

Finch, No.09-13493, — F.3d —, 2011 WL 1261132, at *3 (11 Cir. Apr. 6 2011)

th

(“An inmate may maintain a cause of action for retaliation under 42 U.S.C. § 1983

by showing that a prison official’s actions were ‘the result of [the inmate’s] having

filed a grievance concerning the conditions of his imprisonment.’” ) (quoting Farrow,

320 F.3d at 1248). 

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

constitutionally protected; (2) he 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 [re-evaluating and modifying plaintiff’s cane pass] and the protected speech

[the grievances].” Mosley, 532 F.3d at 1276. Because the core of a First Amendment

retaliation claim isthat the prisoner is being retaliated against for exercising his right

to free speech, the prisoner is not required to allege the violation of an additional

separate and distinct constitutional right. O’Bryant, at *3 (citing Mosley). In other

words, plaintiff need not show that the reassessment and modification of his cane pass

also violated his right to adequate medical care.

The record reveals no genuine dispute as to these facts: (1) plaintiff was a CM

inmate at the time the March 3, 2009 cane pass issued as well as when it was

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reassessed and modified on August 11, 2009, (2) the March 3, 2009 pass permitted

plaintiff to use his cane outside his cell within the dormitory, (3) the March 3, 2009

pass did not expire until March 3, 2010, (3) defendant Nichols was aware of

plaintiff’s August 5, 2009 inmate request/informal grievance complaining that the

pass was not honored, and responded: “The shower is right by your cell. You do not

need a cane so since this is becoming such an issue with you I will reassess your need

for a cane at all,” (4) defendant Nichols modified plaintiff’s pass on August 11, 2009

to permit use of a cane only outside the dormitory. However, divergent ultimate

inferences may reasonably be drawn from these undisputed facts. A reasonable jury

could infer from Nichols’ response and the timing of her reassessment (7 months

prior to expiration and immediately following the informal grievance) that her

reassessment was in retaliation for plaintiff filing the informal grievance. A

reasonable jury could also infer that Nichols’ decision to reassess the pass was

motivated by other concerns such as security or abuse (plaintiff insisting on staff

providing him a cane even when it was clearly unnecessary).

Furthermore, the parties hotly dispute several material facts, for example,

whether plaintiff admitted he could walk without his cane, and whether he is able to

ambulate short distances without it. A reasonable jury could believe defendant

Nichols’ testimony that her modification of plaintiff’s pass was not out of retaliation

but as a result of plaintiff’s admission he could walk without a cane, her physical

examination of him, the information in his medical file and security concerns. (Doc.

77, Ex. J, Nichols Aff. ¶ 7). On the other hand, a reasonable jury, assessing the

credibility of the relevant witnesses, could also believe plaintiff’s testimony that he

never told defendant Nichols he could walk on his leg without a cane, that her

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reference to security concerns is pretextual because both before and after

modification of his cane pass he was allowed to use his cane inside the dormitory

despite being a CM inmate, and that he is able to ambulate in his cell without a cane

only because his cell has bars and stationary furniture for support. (Doc. 84, Pl.’s

Aff, ¶ ¶ 7, 8). “The Court’s role at the summary judgment stage is merely to assess

the sufficiency of the evidence, not the credibility of the parties.” Frede v J. C.

Penney Corp., Inc., 2007 WL 2254513, *3, n. 1 (M. D. Fla. 2007) (citing Fed. R. Civ.

P. 56(c), Anderson v. Liberty Lobby, Inc., 477 U. S. 242 at 248). Triable issues

precluding summary judgment (in favor of either party) exist on the merits of

plaintiff’s retaliation claim. Therefore, plaintiff’s motion must be denied. Defendant

Nichols’ motion requires additional analysis on the issue of qualified immunity. 

It is undisputed that defendant Nichols was acting within her discretionary

authority in reassessing and modifying plaintiff’s cane pass. As discussed above, 

viewing the summary judgment evidence in the light most favorable to plaintiff, the

facts permit a reasonable jury to conclude defendant Nichols’ conduct violated

plaintiff’s First Amendment rights. The court must therefore decide whether the

evidence will support a finding that a reasonable prison official standing in defendant

Nichols’ shoes should have realized at the time she engaged in the alleged retaliatory

conduct that she was violating a clearly established constitutional right. The law was

clearly established in August of 2009 that a prison official may not penalize an inmate

in retaliation for exercising his right to file grievances against prison officials. See

Boxer X v. Harris, 437 F.3d 1107, 1112 (11 Cir. 2006) (“First Amendment rights to th

free speech and to petition the government for a redress of grievances are violated

when a prisoner is punished for filing a grievance concerning the conditions of his

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imprisonment.”); Farrow, 320 F.3d at 1248 (“The First Amendment forbids prison

officials from retaliating against prisoners for exercising the right of free speech.”);

Hicks v. Ferrero, 241 Fed. Appx. 595, 598-99 (11 Cir. 2007) (unpublished opinion) th

(“We concluded as early as 1989 – well before this decision was made – that a

prisoner’s First Amendment free speech rights are violated when prison officials

retaliate against him or her for filing a grievance.” (citing Wildberger v. Bracknell,

869 F.2d 1467, 1468 (11 Cir. 1989)). Because a prisoner’s First Amendment right th

to be free from retaliation had become sufficiently clear by the time of the events

giving rise to plaintiff’s claim, a reasonable person would understand defendant

Nichols’ alleged conduct violated that right; she cannot claim qualified immunity as

a bar to plaintiff’s retaliation claim.

Based on the foregoing, the parties’ motions for summary judgment should be

denied asto plaintiff’s First Amendment retaliation claim against defendant Nichols.

LIMITATION ON PLAINTIFF’S RECOVERY AT TRIAL 

Plaintiffseeks compensatory, punitive and nominal damages on his retaliation

claim, as well as the following equitable relief: “injunctive relief for effective

medication and the use of medical device (walking cane).” (Doc. 1, p. 8). Defendant

Nichols argues, and the undersigned agrees, that plaintiff’s claims for compensatory

and punitive damages on the retaliation claim should be dismissed.

The Prison Litigation ReformAct (“PLRA”) provides, “No Federal civil action

may be brought by a prisoner confined in a jail, prison, or other correctional facility,

for mental or emotional injury suffered while in custody without a prior showing of

physical injury.” 42 U.S.C. § 1997e(e). Addressing the implications of § 1997e(e),

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the Eleventh Circuit has concluded: “the phrase ‘Federal civil action’ means all

federal claims, including constitutional claims.” Napier v. Preslicka, 314 F.3d 528,

532 (11 Cir. 2002) (citing Harris v. Garner, 216 F.3d 970, 984-85 (11th Cir. 2000)

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(en banc)). This action, brought by plaintiff under 42 U.S.C. § 1983, is a “Federal

civil action” under this definition. It is undisputed that plaintiff filed his complaint

while imprisoned, and that the harmcomplained of occurred while he wasin custody. 

Plaintiff's damages claims are apparently based on the emotional distress he suffered

as a result of defendant Nichols’ retaliation, and/or the fact of the alleged

constitutional violation itself (divorced from any mental or emotional injury it

caused). The complaint alleges no physical injury resulting from the allegedly

retaliatory reassessment and modification of his cane pass. Indeed, plaintiff admits:

“[S]ecurity has always continued to allow plaintiff to use his cane outside of his cell

even after August 11, 2009when Defendant Nichols reassessed the plaintiff[’s] pass.” 

(Doc. 84, Pl.’s Aff. ¶ 8). Therefore, while imprisoned plaintiff is prohibited under the

PLRA from bringing his claims for compensatory and punitive damages. Harris v.

Garner, 190 F.3d 1279, 1287-88 (11 Cir. 1999) (“Harris I”), vacated in part and

th

reinstated in part on reh'g, 216 F.3d 970 (11 Cir. 2000) (en banc) (“Harris II”) th

(affirming district court’s dismissal of claims for compensatory and punitive damages

as barred by § 1997e(e)); Smith v. Allen, 502 F.3d 1255, 1271 (11 Cir. 2007) (stating th

that under Eleventh Circuit case law, § 1997e(e) precludes an inmate’s claims for

compensatory and punitive damages); Al-Amin v. Smith, — F.3d —, 2011 WL

1237941 (11 Cir. Apr. 5, 2011) (affirming district court’s granting of motion in th

limine precluding prisoner from offering evidence to support an award of punitive

damages on his First Amendment claim because the claim did not assert a physical

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injury); Williams v. Brown, No. 08-16230, 347 Fed. Appx. 429, 436 (11 Cir. 2009)

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(unpublished opinion) (holding that prisoner could not recover compensatory or

punitive damages with respect to his First Amendment retaliation claim, because he

failed to alleged the requisite physical injury). If successful, the only damages

plaintiff will be able to recover are nominal ones.

As to plaintiff’s request for injunctive relief, his transfer to Okaloosa CI has

mooted the request. Because plaintiff is no longer confined at Santa Rosa CI, no

order from this court requiring defendant Nichols to act as plaintiff requests could

have any effect. Furthermore, since there appears no reason to believe plaintiff will

again be confined at Santa Rosa CI under the same circumstances, the narrow

exception for cases that are capable of repetition yet evading review does not apply. 

See, e.g., Zatler v. Wainwright, 802 F.2d 397, 399 (11 Cir. 1986) (inmate’s release

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from prison mooted claim for declaratory and injunctive relief); Wahl v. McIver, 773

F.2d 1169, 1173 (11 Cir. 1985) (an inmate’s claim for injunctive and declaratory

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relief in a section 1983 action fails to present a case or controversy once the inmate

has been transferred); McKinnon v. Talladega Cnty., 745 F.2d 1360, 1363 (11 Cir. th

1984) (inmate’s transfer to a different jail moots claim for declaratory and injunctive

relief); Dudley v. Stewart, 724 F.2d 1493, 1494 (11 Cir. 1984) (transfer from county th

jail to state prison mooted claims for injunctive and declaratory relief against county

jailers). Therefore, plaintiff’s claims for injunctive relief should be dismissed. 

Analysis - Dr. Collins

Plaintiff claims Dr. Collins was deliberately indifferent to his serious medical

need for “effective pain medication.” (Doc. 1, pp. 7-E, 7-F). Plaintiff argues the MRI

results and his complaints of pain in his March 3, 2009 and April 8, 2009 grievances

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put Dr. Collins on notice of his need for stronger medication. (Id.; see also Doc. 81,

¶¶ 19-21; Doc. 82, ¶¶ 16, 17). 

The record reveals no genuine dispute as to any material fact concerning the

extent of Dr. Collins’ involvement in plaintiff’s care. In the 2-month overlap between

plaintiff’s arrival at Santa Rosa CI and Dr. Collins’ departure, plaintiff was not

referred to Dr. Collins for examination or treatment. (Doc. 77, Ex. K, Collins Aff.

and Attach. 1). Dr. Collins’ acted only by responding to two grievances relating to

plaintiff’s passes – plaintiff’s February 24, 2009, grievance and his March 18, 2009,

grievance. Those grievancesrelated solely to the issue of plaintiff’s passes. Plaintiff

did not complain of pain or that his medication was ineffective. (Doc. 77, Ex. K,

Collins’ Aff., Attachs. 3, 6). Although plaintiff says he complained of pain during

his March 3, 2009 examination by ARNP Nichols, there is no dispute that Dr. Collins

was not part of that examination. (Doc. 77, Ex. K, Collins’ Aff. ¶ 4 and Attach. 1;

Doc. 77, Ex. J, Nichols’ Aff. ¶4). Further, although plaintiff addressed his March 30,

2009 inmate request to Dr. Collins, the record demonstrates that pursuant to DOC

procedure, ARNP Nichols responded to the request withoutreferring it to a physician. 

(Doc. 77, Ex. K, Collins’ Aff. ¶ 7 and Attach. 1; Doc. 77, Ex. J, Nichols’ Aff. ¶ 6;

Doc. 81, Ex. Z). Plaintiff filed his April 8, 2009 medical grievance after Dr. Collins

left employment with the DOC. Therefore, an inference cannot reasonably be drawn

that the grievance put Dr. Collins on notice of plaintiff’s complaints of pain and

inadequate pain medication. 

 On this record, a reasonable jury could not find defendant Dr. Collins knew

of and disregarded an alleged need for stronger pain medication. Therefore, although

no genuine issue of material fact exists, plaintiff cannot prevail on his motion for

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summary judgment. Dr. Collins, on the other hand, has established that, viewing the

evidence in the light most favorable to plaintiff, a reasonable jury could not conclude

he was deliberately indifferent to a serious medical need for stronger medication. 

Therefore, Dr. Collins is entitled to summary judgment. 

Accordingly, it is respectfully RECOMMENDED:

1. That plaintiff’s motion for summary judgment (doc. 81) be DENIED.

2. That defendants’ motion for summary judgment (doc. 77) be GRANTED

IN PART AND DENIED IN PART AS FOLLOWS: the motion should be granted

as to all claims, except plaintiff’s First Amendment retaliation claim against

defendant Nichols. The motion should be denied as to that claim. 

3. That plaintiff’s claims for compensatory and punitive damages on his First

Amendment retaliation claim against defendant Nichols be DISMISSED WITHOUT

PREJUDICE.

4. That plaintiff be precluded from recovering compensatory or punitive

damages resulting from defendant Nichols’ alleged retaliatory conduct, but not

precluded from recovering nominal damages should the trier of fact find in his favor

on the First Amendment retaliation claim.

5. That plaintiff’s claims for injunctive relief be DISMISSED as moot.

6. That plaintiff’s First Amendment retaliation claimagainst defendant Nichols

be remanded to the undersigned for further proceedings on that claim.

At Pensacola, Florida this 19 day of May, 2011.

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/s/Charles J. Kahn, Jr.

CHARLES J. KAHN, JR.

UNITED STATES MAGISTRATE JUDGE

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NOTICE TO THE PARTIES

Any objections to these proposed findings and recommendations must be filed within

fourteen (14) days after being served a copy hereof. Any different deadline that may

appear on the electronic docket is for the court's internal use only, and does not

control. A copy of any objections shall be served upon any other parties. Failure to

object may limit the scope of appellate review of factual findings. See 28 U.S.C. §

636; United States v. Roberts, 858 F.2d 698, 701 (11 Cir. 1988). th

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