1

IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

IVAN HARVEY,

Plaintiff, 

vs. CASE NO. 3:09-cv-00402-WS-MD

EFIONG O. ANDEM, et al.,

Defendants.

________________________________/

DEFENDANTS’ AMENDED MOTION FOR SUMMARY JUDGMENT

Defendants Efiong O. Andem, Cathy Allin, Julian Aviles, Michael J. Lord, Robert 

D. Collins, and Marsha Nichols, by and through undersigned counsel, and pursuant to 

Rule 56, Federal Rules of Civil Procedure, and Local Rule 56.1, submit this Motion for 

Summary Judgment. In support, Defendants submit the following: 

PRELIMINARY STATEMENT

Plaintiff, Ivan Harvey, is an inmate in the custody of the Florida Department of 

Corrections, currently incarcerated at Santa Rosa Correctional Institution. (Exhibit A.) 

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

Institution (“C.I.”). (Exhibit F- Andem Affidavit) Dr. Lord is an orthopedic surgeon, 

and at times relevant to the complaint provided contract medical services to the Florida 

Department of Corrections. (Exhibit H- Lord Declaration) Dr. Aviles is the CHO 

assigned to Union C.I. (Exhibit G - Aviles Affidavit) Ms. Allin was the Senior Health 

Administrator (SHSA) at Union C.I. at times relevant to the complaint. (Exhibit I- Allin 

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Declaration) Ms. Nichols is an Advanced Registered Nurse Practitioner (“ARNP”) 

assigned to Santa Rosa C.I. (Exhibit J- Nichols Affidavit) Dr. Collins was the CHO at 

Santa Rosa C.I. at times relevant in the complaint. (Exhibit K-Collins Declaration)

 Plaintiff filed suit on September 6, 2009, under Section 1983 alleging that 

Defendants were deliberately indifferent to his medical needs. Plaintiff sues the 

Defendants in their individual capacities. 

PLAINTIFF’S ALLEGATIONS

Plaintiff alleges, in support of his deliberate indifference claim, the following

against the six served Defendants in this case:

1. Plaintiff claims he requested to see Dr. Andem after an alleged unprovoked attack 

by a correctional officer1and he was refused. (Doc.1, Section V., ¶ 1, 2) Plaintiff alleges 

that after examining Plaintiff, Dr. Andem denied him “effective” pain medicine for his 

 

1 Defendants would note that the “unprovoked attack by a correction officer,” referenced 

by Plaintiff is a gross misrepresentation of the incident that occurred on April 29, 2008. 

(Doc. 1, Section V., ¶1) As the attached exhibits demonstrate, on that date, while Plaintiff 

was being escorted by Officer Teal, he began yelling and trying to pull away from the 

officer. (Exhibit B) Plaintiff struck Officer Teal with his left elbow and struck the officer 

in the left upper shoulder with his walking cane. (Id.) During the incident, Officer Teal 

did not initiate force against Plaintiff, rather, only after Plaintiff attacked Officer Teal, did 

Officer Teal put Plaintiff on the ground using minimum force. (Exhibits C and D) 

Plaintiff has previously filed a Section 1983 claim challenging this specific use of force 

and Plaintiff‟s case was dismissed as Heck-barred. Moreover, the magistrate 

recommended sanctions in the report and recommendation due to Plaintiff knowingly 

bringing forth false information pertaining to his back condition. (Exhibit E) However, 

the facts surrounding the April 29, 2008 incident are not material to the issues presented 

in this case. Plaintiff‟s claims in this case deal with the medical attention Plaintiff 

received after the incident, specifically, whether Plaintiff received adequate treatment 

and/or pain medication for his alleged back condition. (Doc. 1) As such, any potential 

dispute over the facts surrounding this incident would not undermine Defendants‟ Motion 

for Summary Judgment as they are irrelevant to the issues presented in this case. 

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pain, a CT scan due to the cost of the exam, and delayed Plaintiff‟s visit to the orthopedic 

specialist. (Doc.1, Section V., ¶ 3 and ¶ 4) 

2. Plaintiff states he was examined by Dr. Lord in August 2008 and October 2008. 

(Doc.1, Section V., ¶ 5, 6) Plaintiff states he informed Dr. Lord of his need for 

“effective” pain medication during both visits and Dr. Lord denied him the same. (Id.) 

3. Plaintiff states he was examined by Dr. Aviles on August 11, 2008 and informed 

Dr. Aviles that Naproxyn was not working to alleviate his pain. (Doc. 1, Section V., ¶ 8) 

Plaintiff claims he asked Dr. Aviles in person and through inmate requests for “effective” 

pain medication and Dr. Aviles refused to prescribe a different medication. (Id.)

4. Plaintiff states he filed a request to Dr. Aviles on February 2, 2009 and it was 

improperly denied by Cathy Allin. (Doc.1, Section V., p.9) Plaintiff alleges Ms. Allin

inaccurately characterized Plaintiff‟s previous medical complaints in the response to the 

request. (Id.) 

5. Plaintiff states he submitted a request slip to Dr. Collins upon arriving at Santa 

Rosa C.I. wherein he stated that he was in pain, requested “effective” pain medication, 

and sought a “test” to determine whether he had nerve damage. (Doc. 1, Section V., ¶ 10) 

Plaintiff states Dr. Collins failed to answer his request. 

6. Plaintiff alleges that ARNP Nichols refused to give him “effective” pain 

medication on March 3, 2009. (Doc.1, Section V., ¶ 10) Plaintiff also states ARNP 

Nichols improperly denied the inmate request submitted to Dr. Collins by stating that 

Plaintiff had already been evaluated and that aspirin and Tylenol were the treatment. (Id.) 

Plaintiff claims that ARNP Nichols took away his cane pass on August 11, 2009 as 

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retaliation for filing a grievance against ARNP Nichols and another nurse. (Doc.1, 

Section V., ¶ 14) 

7. Plaintiff seeks compensatory, nominal, and punitive damages as to all claims. 

(Doc.1, Section VII.) Plaintiff also seeks injunctive relief for the use of a walking cane 

and for what he considers “effective” medication. (Id.)

DEFENDANTS’ STATEMENT OF MATERIAL AND GENUINE FACTS 

1. Plaintiff, Ivan Harvey, is an inmate in the custody of the Florida Department of 

Corrections, currently incarcerated at Santa Rosa Correctional Institution. (Exhibit A)

2. On April 29, 2009, Plaintiff received a post-use-of-force exam by medical staff. 

(Exhibit F at F2 ¶ 4, F6) The record indicates that Plaintiff only complained of pain in 

his ankle, his epigastric region, and mouth. (Id.) Plaintiff had no open areas in the mouth 

or gum line. (Id.) There was no edema, bruising, open areas, or discoloration to the 

epigastric region or ankle. (Id.) The record does not indicate that Plaintiff complained of 

any back pain. (Id.) The Plaintiff was discharged with no injuries identified. (Id.)

3. Plaintiff refused medical treatment the following day, April 30, 2008. (Exhibit F 

at F2 ¶ 5, F8, F28) On May 6, 2008, Dr. Andem examined Plaintiff and noted that he 

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. (Exhibit F at F2 ¶ 5, F29) Plaintiff was given 800mg of Motrin. 

(Exhibit F at F2 ¶ 5, F29) After the consult, Plaintiff was returned to his cell with no 

other complaints noted in the record. (Id.) On May 7, 2008, Plaintiff initiated a sick-call 

requesting an x-ray of his back. (Id.) Dr. Andem was informed of this request by 

medical staff and ordered an x-ray of Plaintiff‟s back. (Id.) 

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4. An x-ray of Plaintiff‟s back was taken on May 8, 2008. (Exhibit F at F2 ¶ 6, F36) 

The report stated that the Plaintiff‟s x-ray resulted in a “normal study.” (Id.) 

5. On May 26, 2010, Plaintiff filed a formal grievance; log number 0805-107-029, 

stating that he had not received the results of the x-ray and that his pain medication was 

ineffective. (Exhibit F at F3 ¶ 7, F38). He also stated that he wanted a CT scan or MRI 

stating that, “certain injuries cannot be detected by x-rays.” (Id.) Dr. Andem responded 

to Plaintiff‟s grievance stating that his x-ray results came back normal and that he had a 

current prescription for Anaprox, which he could take for any back pain he was 

experiencing. (Exhibit F at F3 ¶ 7, F39) Dr. Andem also informed Plaintiff that based on 

his x-ray results; there remained no reason for a CT scan or referral to a specialist. (Id.) 

6. Plaintiff filed an inmate request on June 9, 2008 requesting a consultation with an 

orthopedic surgeon. (Exhibit F at F3 ¶ 7, F40) On June 10, 2008, Dr. Andem requested a 

consult from the Orthopedic Surgeon at Reception and Medical Center and answered 

Plaintiff‟s request informing Plaintiff of the consult request. (Exhibit F at F3 ¶ 7, F4 ¶ 7, 

F40) Plaintiff was transferred from Holmes C.I. to Union C.I. on June 16, 2008. (Exhibit 

F at F4 ¶ 7, F41) Plaintiff arrived at Union Correctional Institution on June 20, 2008. 

(Exhibit G at G1 ¶ 3, G6, G7) 

7. On July 30, 2008, Plaintiff was examined by Dr. Lord, an orthopedic surgeon, at 

Reception and Medical Center. (Exhibit H at H2 ¶ 4, H5, H6) Dr. Lord noted several 

findings in his consultation report. The report states that the symptoms complained of by 

the Plaintiff were not consistent with a known nerve pattern. (Exhibit H at H2 ¶ 4, H6) 

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Dr. Lord also noted in the report that Plaintiff exhibited poor volitional effort and that 

Plaintiff had a full range of motion with respect to his hip, despite complaints of pain in 

that area. (Id.) 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 he 

spent standing or walking, and a pass for a low bunk; all for a period of three months. 

(Id.) As further noted on the consultant‟s report, Dr. Lord had no clear etiology for the 

recommendations and made them solely on the basis of Plaintiff‟s subjective complaints 

pending the results of the MRI. (Id.) Upon Plaintiff‟s return to Union C.I. on July 30, 

2008, medical staff requested Plaintiff‟s MRI examination. (Exhibit G at G2 ¶ 5, G9) 

8. On August 11, 2008, Dr. Aviles examined Plaintiff and noted that Plaintiff had a 

limited gait. (Exhibit G at G2 ¶ 7, G10) Dr. Aviles authorized a wheelchair pass for long 

distances, a cane pass for ambulation, a pass restricting the time Plaintiff was allowed to 

stand, and a back brace for support of Plaintiff‟s spine. (Id.) Dr. Aviles also prescribed 

Plaintiff 500 mg of Naproxen, an anti-inflammatory pain medication, for six months. (Id.) 

9. On August 14, 2008, Plaintiff was given a MRI examination at Reception and 

Medical Center. (Exhibit G at G2 ¶ 8, G23) The results were received at Union C.I. on 

August 28, 2008. (Id.) On September 4, 2008, medical staff reviewed the MRI results 

and requested a follow-up consultation with Dr. Lord. (Exhibit G at G2 ¶ 8, G12) 

10. On September 10, 2008 Petitioner submitted a request for a front cuff pass, which 

was issued by medical staff. (Exhibit G at G3 ¶ 8, G12) Plaintiff submitted a subsequent 

request for a front cuff pass and back brace on September 23, 2008. (Exhibit G at G3 ¶ 8, 

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G13) On September 24, 2008, Dr. Aviles confirmed that Plaintiff had a front cuff pass. 

(Id.) 

11. On October 15, 2008, Plaintiff was examined once again by Dr. Lord at Reception 

and Medical Center. (Exhibit H at H3 ¶ 6, H8, H9) Dr. Lord noted in the consultation 

report that Plaintiff‟s MRI showed minimal degenerative changes. (Exhibit H at H9) Dr. 

Lord noted that Plaintiff demonstrated poor volitional effort and that Plaintiff‟s 

symptoms seemed significantly out of proportion with his MRI findings. (Id.) Dr. Lord 

recommended a serious of three (3) epidural steroid injections. (Id.) The record does not 

indicate that Plaintiff requested medication from Dr. Lord. (Id.)

12. On October 16, 2008, medical staff at Union C.I. noted the recommendations of 

Dr. Lord on Plaintiff‟s chart and requested the treatment from the Utilization 

Management Department2(“UM”). (Exhibit G at G3 ¶ 9, G14) 

13. On January 13, 2009, Plaintiff submitted a sick-call request complaining of severe 

back pain and requesting to see the Orthopedic Surgeon. (Exhibit G at G3 ¶ 11, G18) 

Medical staff forwarded Plaintiff‟s chart to Dr. Aviles. (Exhibit G at G3 ¶ 11, G4 ¶ 11, 

G18) On January 14, 2009, Dr. Aviles noted in Plaintiff‟s medical record that the 

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

during examination by the orthopedic (Dr. Lord), 2) MRI minimal findings (that is, 

 

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 

treatments. 

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minimal degenerate changes), and 3) subjective symptoms exceed objective signs. 

(Exhibit G at G4 ¶ 11, G19, G25) 

14. On January 23, 2009, Plaintiff filed a formal grievance stating he was in pain and 

requesting the spinal injections recommended by Dr. Lord. (Exhibit G at G4 ¶ 12, G26) 

Dr. Aviles answered the grievance on February 6, 2010 stating that the treatment was 

denied by the QM3advisor. (Id.) On January 28, 2009, upon Plaintiff‟s request, Dr. 

Aviles referred Plaintiff to the impair committee for an institutional transfer to a 

wheelchair camp. (Exhibit G at G4 ¶ 13, G19) 

15. On February 2, 2009, Plaintiff submitted an inmate request addressed to Dr. 

Aviles stating that he was in extreme pain in his spine and leg. (Exhibit I at I1 ¶ 3, I4) 

He also stated that he was beginning to experience numbness and pain in his arms. (Id.) 

The Senior Health Services Administrator, Catherine Allin, answered the inmate request. 

(Exhibit I at I1 ¶ 3, I4) Ms. Allin informed Plaintiff that his record did not indicate any 

previous complaints. (Exhibit I at I2 ¶ 3, I4) She also instructed Plaintiff to submit a 

sick-call request for medical attention. (Id.) 

16. Plaintiff was transferred from Union C.I. to Santa Rosa C.I. on February 13, 2009

and was examined by medical staff. (Exhibit J at J1 ¶ 3, J6, J7) On February 24, 2010, 

ARNP Nichols attempted to examine Plaintiff for a pass evaluation however, Plaintiff 

refused to come out to sick-call. (Exhibit J at J1 ¶ 3, J2 ¶ 3, J8, J11) On February 24, 

2009, Plaintiff filed a formal grievance; log number 0902-119-415, requesting his passes 

 

3

In Dr. Aviles„s response to Plaintiff„s grievance on February 6, 2010 it states “QM” advisor. 

This is a typographical error and should state: “UM” advisor. (Exhibit G at G4 ¶ 12, G26 )

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be renewed. (Exhibit K at K2 ¶ 3, K7, K13) He also stated that he had a valid wheelchair 

pass. (Exhibit K at K2 ¶ 3, K13) Dr. Collins responded to Plaintiff stating that there was 

no documentation in his medical record indicating that he could not walk and that as he 

was instructed by the ARNP, he would have to go to sick-call to obtain his restrictive 

passes. (Exhibit K at K14) On March 2, 2009 Plaintiff signed up for sick-call, but 

refused to come out to medical for his pass evaluation. (Exhibit J at J2 ¶ 3, J9, J12)

17. On March 3, 2009, ARNP Nichols examined Plaintiff to conduct a pass 

evaluation. (Exhibit J at J2 ¶ 4, J13) ARNP Nichols examined Plaintiff and noted in 

Plaintiff‟s medical record that Plaintiff did not exhibit any muscle atrophy in the leg 

complained of. (Id.) ARNP Nichols issued a pass for the use of a cane outside of his cell 

and for front-side cuffing when using his cane. (Exhibit J at J2 ¶ 4, J13) She also issued 

a pass for low bunk placement. (Id.) 

18. On March 10, 2009, ARNP prescribed Plaintiff Motrin 600mg to be taken twice a 

day for 90 days. (Exhibit J at J2 ¶ 5, J34) Motrin is a non-steroidal anti-inflammatory 

drug used to treat inflammation and is typically prescribed for pain. (Exhibit J at J2 ¶ 5)

Plaintiff‟s prescription for the same was renewed on May 26, 2009. (Id.) 

19. On March 18, 2009, Plaintiff resubmitted a formal grievance, log number 0903-

119-291, requesting his passes be re-issued. (Exhibit K at K3 ¶ 6, K17-20) Dr. Collins 

responded to Plaintiff reminding him that he was evaluated by the ARNP on March 3, 

2009 and that his pass for low bunk, front cuff, and cane pass out of cell were all 

renewed. (Exhibit K at K3 ¶ 6, K18)

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20. On March 30, 2009, Plaintiff filed an inmate request stating that he was in pain 

and that the Ibuprofen prescribed at sick-call was “not working.” (Exhibit J at J2 ¶ 6, 

J35) He also requested a “comprehensive nerve test.” (Id.) ARNP Nichols responded to 

Plaintiff‟s request on March 30, 2009 and advised him that he had been examined and 

tested for his complaints. (Exhibit J at J3 ¶ 6, J35) ARNP Nichols advised Plaintiff that 

the appropriate medication for his condition was non-steroidal anti-inflammatory drugs 

(“NSAIDS”) or Tylenol. (Id.) 

21. Dr. Collins left the employ of the Florida Department of Corrections on April 2, 

2009. (Exhibit K at K4 ¶ 8) 

22. ARNP Nichols examined Plaintiff again on August 11, 2009 to evaluate his 

passes. (Exhibit J at J3 ¶ 7, J20) Plaintiff stated he was able to walk on his leg, however, 

that it hurt and he would not subject himself to pain. (Id.) As a result of Plaintiff‟s 

statement, ARNP‟s physical examination of Plaintiff, and security concerns, ARNP 

Nichols changed Plaintiff‟s pass to outside dorm use only. (Exhibit J at J3 ¶ 7, J20) 

23. Recently, Plaintiff has been permitted to use his cane outside of his cell within 

the dorm. (Exhibit J at J4 ¶ 8) Also, to date, Plaintiff‟s prescription for Motrin 600mg 

has been consistently renewed. (Exhibit J at J4 ¶ 8, J36) Plaintiff‟s medical record 

demonstrates that he has recently had issues with hoarding and trading pills,

4

he has 

 

4

Plaintiff has been caught hoarding pills on two separate occasions and trading pills on 

one occasion. (Exhibit J at J4 ¶ 8, J24, J26)

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exhibited behavior demonstrating that he does not suffer from debilitating back pain,

5

and 

he has misrepresented physical symptoms to medical staff.

6

MEMORANDUM OF LAW

I. Defendants Are Entitled to Summary Judgment.

Summary judgment is proper if the pleadings and sworn statements show that 

there is no genuine issue as to any material fact and that the moving party is entitled to 

judgment as a matter of law. Fed. R. Civ. P. 56(c); Celotex Corporation v. Catrett, 477 

U.S. 317, 322-23 (1986). The party moving for summary judgment bears the initial 

burden of demonstrating an absence of evidence to support the nonmoving party‟s case. 

Celotex, 477 U.S. at 323. Upon meeting this burden, the burden shifts to the nonmoving 

party to present evidentiary material demonstrating that a genuine issue of material fact 

exists. Id. at 324.

Applicable substantive law identifies those facts that are “material.” Anderson v. 

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Factual issues must have a real basis in 

the record to be considered genuine and the nonmoving party must show more than a 

 

5

Plaintiff has been seen walking around in his cell without the use of cane and without 

any apparent struggle. (Exhibit J at J4 ¶ 8, J27) Plaintiff has also been given an analgesic 

balm to help relieve his alleged back pain and during an examination it was determined 

that Plaintiff was not using it. (Id.)

6 On December 2, 2009, Plaintiff claims he slipped and fell in water in his cell. However, 

a witness to the incident provided a witness statement to the on-duty correctional officer 

stating that the Plaintiff threw the water in his own cell and placed himself in the puddle 

of water. (Exhibit J at J4 ¶ 8, J37, J38) Nonetheless, as indicated in his medical record, 

Plaintiff was taken to medical with complaints of back pain and stating he could not 

walk. He was examined by Nurse Donahoo and kept for observation. Fifteen minutes 

after being examined, Nurse Donahoo observed on camera Plaintiff exhibiting full range 

of motion, “moving, bending, twisting at the waist, arching back”, with no signs of 

restricted movement. (Exhibit J at J4 ¶ 8, J23)

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“metaphysical doubt” regarding the material facts. Matsushita Electric Industrial Co. v. 

Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). The evidence and reasonable 

inferences drawn from the evidence are viewed in the light most favorable to the 

nonmoving party. Watkins v. Ford Motor Co., 190 F.3d 1213, 1216 (11th Cir. 1999).

Although all reasonable inferences are made in favor of the nonmoving party, a 

court need not permit a case to go to a jury when the inferences drawn from the evidence 

and upon which the nonmoving party relies are “implausible.” Cuesta v. School Bd. of 

Miami-Dade County, 285 F.3d 962, 970 (11th Cir. 2002) (citations omitted). “[F]acts 

must be viewed in the light most favorable to the nonmoving party only if there is a 

„genuine‟ dispute as to those facts.” Scott v. Harris, 550 U. S. 372, 380 (2007). A mere 

“scintilla” of evidence in support of the nonmoving party‟s position is not sufficient; 

there must be evidence upon which a jury could reasonably find for the nonmoving party. 

Anderson, 477 U.S. at 252; see also Fullman v. Graddick, 739 F.2d 553, 557 (11th Cir. 

1984) (“Mere verification of party‟s own conclusory allegations is not sufficient to 

oppose summary judgment . . .”). In other words, summary judgment is warranted 

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

existence of an element essential to that party‟s case, and on which that party will bear 

the burden of proof at trial.” Celotex, 477 U.S. at 322.7

 

7 As recently stated by the Supreme Court, “When opposing parties tell two different 

stories, one of which is blatantly contradicted by the record, so that no reasonable jury 

could believe it, a court should not adopt that version of the facts for purposes of ruling 

on a motion for summary judgment.” Scott v. Harris, 550 U.S. 372, 380 (2007).

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Under the facts of this case, there is no evidence to support Plaintiff‟s allegations 

of an Eight Amendment violation. 

II. Exhaustion of Administrative Remedies

The Prison Litigation Reform Act ("PLRA"), Title 42 U.S.C. §1997e, provides in 

relevant part: "No action shall be brought with respect to prison conditions under §1983 

of this title, or any other federal law, by a prisoner confined in any jail, prison, or other 

correctional facility until such administrative remedies as are available are exhausted." 

42 U.S.C. §1997e(a). The purpose of this exhaustion requirement is to reduce the 

quantity and improve the quality of prisoner suits. Porter v. Nussle, 534 U.S. 516, 524 

(2002). Exhaustion of all available administrative remedies is mandatory, and is a precondition to suit. Booth v. Churner, 532 U.S. 731, 739 (2001); Higginbottom v. Carter,

223 F.3d 1259, 1261 (11th Cir. 2000); Poole v. Rich, 312 Fed. Appx. 165, 167 (11th Cir. 

2008).

The exhaustion requirement applies to all inmate suits about prison life, whether 

they involve general circumstances or particular episodes, and whether they allege 

excessive force or some other wrong. Porter v. Nussle, 534 U.S. 516, 524 (2002). 

Exhaustion is required regardless of the type of remedy sought by the plaintiff. Booth v. 

Churner, 532 U.S. 731, 739 (2001). As the United States Supreme Court has held, the 

PLRA requires Aproper exhaustion,@ so that the agency may address the issues on the 

merits. Woodford v. Ngo, 548 U.S. 81, 84 (2006). The Court further explained that: 

"[T]he benefits of exhaustion can be realized only if the prison grievance system is given 

a fair opportunity to consider the grievance. The prison grievance system will not have 

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such an opportunity unless the grievant complies with the system=s critical procedural 

rules." Id. at 95. 

Moreover, unless there is a sanction for noncompliance, a prisoner will have little 

incentive to comply with the agency's rules. Id. The exhaustion requirement is not 

satisfied by the prisoner filing an untimely or otherwise procedurally defective 

administrative grievance or appeal. Id. at 90-91. In Alexander v. Hawk, 159 F.3d 

1321, 1327 (11th Cir. 1988), the Eleventh Circuit noted that one of the policy reasons 

favoring exhaustion was: "'. . . to avoid the possibility that 'frequent and deliberate 

flouting of the administrative processes could weaken the effectiveness of an agency by 

encouraging people to ignore its procedures.'" quoting Kobleur v. Group Hospitalization 

& Medical Services, Inc., 954 F.2d 705, 712 (11th Cir.1992).

The normal procedures for inmate grievances are set out at Florida Administrative 

Code ("F.A.C.") §33-103.005, for informal grievances, and F.A.C. §33-103.006, for 

formal grievances. Grievances are only meant to address one issue or complaint. F.A.C. 

§33-103.005(2)(b)(2); F.A.C. §33-103.006(2)(f). Appeals and direct grievances to the 

Office of the Secretary are addressed at F.A.C. §33-103.007. The time frames for 

grievances are set forth in F.A.C. §33-103.011. An inmate is required to initially utilize 

the informal grievance process before initiating a formal grievance. F.A.C. §33-

103.005(1).

Review of Plaintiff‟s administrative grievances demonstrates that he has failed to 

exhaust administrative remedies with regard to his Eighth Amendment claims against Dr.

Lord (Orthopedic Surgeon) and Ms. Allin (Senior Health Services Administrator). 

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(Exhibits F at F38, F39, G at G26, G27, K at K17-K20) Plaintiff is not required to 

specifically name the particular defendant, however, at the very least; Plaintiff must 

identify in his grievances the course of treatment he believes was constitutionally 

deficient. Jones v. Bock, 549 U.S. 199, 217 -18 (2007). At no point in the grievance 

process does Plaintiff make any allegations against Dr. Lord or the course of treatment 

provided by Dr. Lord. (Exhibits F at F38, F39, G at G26, G27, K at K17-K20) Plaintiff 

also does not make any allegations against Ms. Allin or refer to the response he addresses 

in his complaint in any administrative grievances. (Id.) Accordingly, Plaintiff‟s claims 

against Dr. Lord and Ms. Allin should be dismissed due to Plaintiff‟s failure to exhaust 

administrative remedies. Should the Court determine that Plaintiff did exhaust his 

administrative remedies with regard to these Defendants, Plaintiff‟s claims against the 

same are addressed in Section III. 

III. Plaintiff Fails to Establish a Violation of the Eighth Amendment.

The complaint alleges that Plaintiff was denied adequate medical treatment by

Defendants assigned with Plaintiff‟s care. (Doc. 1, Section V.) It is well settled that 

federal and state governments have a constitutional duty to “provide minimally adequate 

medical care to those whom they are punishing by incarceration.” Harris v. Thigpen, 941 

F.2d 1495, 1504 (11th Cir. 1991). To prevail on an Eighth Amendment claim concerning 

an alleged denial of adequate medical treatment, an inmate must, at a minimum, show 

that those responsible for providing medical treatment acted with deliberate indifference 

to his serious medical needs. Estelle v. Gamble, 429 U.S. 97, 106 (1976); Taylor v. 

Adams, 221 F.3d 1254, 1258 (11th Cir. 2000); McElligott v. Foley, 182 F.3d 1248, 1254 

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(11th Cir. 1999); Waldrop v. Evans, 871 F.2d 1030, 1033 (11th Cir. 1989); Rogers v. 

Evans, 792 F.2d 1052, 1058 (11th Cir. 1986). A finding of deliberate indifference 

contains both an objective and subjective component. Taylor, 221 F.3d at 1257. 

The objective component has two subsidiary requirements. Taylor, 221 F.3d at 

1258. First, Plaintiff must demonstrate an objectively serious medical need. Estelle, 429 

U.S. at 104. A serious medical need is considered one that has been diagnosed by a 

physician as mandating treatment or one that is so obvious that even a lay person would 

easily recognize the necessity for a doctor's attention. Mann v. Taser Int‟l, Inc., 588 F.3d 

1291, 1307 (11th Cir. 2009). Also, “the medical need must be one that, if left unattended, 

poses a substantial risk of serious harm.” Farrow v. West, 320 F.3d 1235, 1243 (11th Cir. 

2003). Second, the plaintiff must show that the prison official‟s response to the need was 

so deficient as to constitute “an unnecessary and wanton infliction of pain.” Estelle, 429 

U.S. at 105-106; See also Taylor, 221 F.3d at 1258. However, "[t]he inadvertent or 

negligent failure to provide adequate medical care cannot be said to constitute an 

unnecessary and wanton infliction of pain.” Farrow, 320 F.3d at 1243 (internal quotations 

and citations omitted). 

The subjective component requires the plaintiff to demonstrate that the prison 

official acted with “deliberate indifference.” Estelle, 429 U.S. at 105. Deliberate 

indifference has three elements: “(1) subjective knowledge of a risk of serious harm; (2) 

disregard of that risk; (3) by conduct that is more than mere negligence.” Farrow, 320 

F.3d at 1245-46 (11th Cir. 2003)(citing McElliogott v. Foley, 182 F.3d 1248, 1255 (11th 

Cir. 1999) and Taylor, 221 F.3d at 1258 (stating that Defendant must have subjective 

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17

awareness of an “objectively serious need” and that his response must constitute “an

objectively insufficient response to that need”)).

 In his complaint, Plaintiff alleges Defendants‟ were deliberately indifferent to 

his alleged back condition, by either, denying him treatment, delaying his treatment, or 

denying him stronger medication when requested by him. (Doc. 1, Section V.) 

However, Plaintiff has failed to support his claim of deliberate indifference with the 

requisite objective and subjective components. Even liberally construed, the compliant 

fails to allege or demonstrate that the Defendants‟ medical decisions and treatment 

constituted deliberate indifference to Plaintiff‟s medical care in violation of the Eighth 

Amendment. At most, Plaintiff‟s allegations amount to a difference in opinion regarding 

the most effective treatment for his condition.

A. Analysis of Deliberate Indifference Claim Against Doctor Andem. 

i. Plaintiff fails to meet the required objective component.

At all times examined by Dr. Andem, Plaintiff did not demonstrate a “serious 

medical need” nor can Dr. Andem‟s response(s) to Plaintiff‟s medical need be described 

as “an unnecessary and wanton infliction of pain.” Estelle, 429 U.S. at 104 -105. Upon 

Dr. Andem‟s examination of Plaintiff on May 6, 2008, Dr. Andem noted that although 

Plaintiff complained of debilitating back pain, he was able to: “1) sit up on the bed 

without aid, 2) get out of the bed without aid, and 3) walk using a walker.” (Exhibit F at 

F2 ¶ 5, F29) Following that examination and as requested by Plaintiff through a sick-call

request, Dr. Andem ordered an x-ray of Plaintiff‟s lumbar spine to confirm that Plaintiff 

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18

had not sustained any damage. (Id.) The findings of the x-ray reflected a normal study 

with no damage or injury to Plaintiff‟s spine. (Exhibit F at F2 ¶ 6, F3 ¶ 6, F36) As such, 

and as indicated by the medical record, Plaintiff‟s objective symptoms did not 

demonstrate a “serious medical need.” 8 

Even assuming Plaintiff‟s back pain was considered a serious medical need; Dr.

Andem‟s treatment was hardly deficient as to constitute an “unnecessary and wanton 

infliction of pain.” Taylor, 221 F.3d at 1258. Rather, the record reflects that Dr. Andem 

thoroughly examined Plaintiff and prescribed pain medication (Motrin 800mg; Anaprox 

DS 550mg) as necessary, and as consistent with Plaintiff‟s objective data with every 

intention to assist Plaintiff with his alleged back pain. (Exhibit F at F2 ¶ 5, F27, F29) 

While Plaintiff wanted stronger pain medication, Dr. Andem could not justify a medical 

reason to prescribe such because of the discrepancy between Plaintiff‟s subjective 

symptoms and his objective examinations. (Exhibit F at F4 ¶ 8) However, because of 

Plaintiff‟s insistence that he was in pain, Dr. Andem requested an orthopedic consult as a 

step towards determining the source, if any, of Plaintiff‟s alleged pain. (Exhibit F at F3 ¶ 

 

8

 There are a range of medical needs that are sufficiently serious to constitute “serious 

medical needs” for purposes of the Eighth Amendment and some medical needs that are 

not. Farrow, 320 F.3d at 1243 n.14 (citing Adams v. Poag, 61 F.3d 1537, 1539-41, 1543 

(11th Cir.1995) (asthma, with continual breathing problems and with intermittent 

wheezing, coughing, and hyperventilating, can constitute a serious medical need), and

Brown v. Hughes, 894 F.2d 1533, 1538 (11th Cir.1990) (painful broken foot can be 

serious medical need), and Mandel v. Doe, 888 F.2d 783, 788 (11th Cir.1989) (evidence 

showing that plaintiff's leg collapsed under him, was deteriorating, caused pain when 

moved, and that he was virtually unable to walk, supported jury‟s conclusion that 

plaintiff had serious medical need), and Aldridge v. Montgomery, 753 F.2d 970, 972-73 

(11th Cir. 1985) (one-and-a-half-inch cut over detainee's eye bleeding for two and a half 

hours was a serious medical need)).

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19

7, F4 ¶ 7) Plaintiff was promptly and properly cared for during his interactions with Dr. 

Andem. (Exhibit F) Dr. Andem provided Plaintiff with medication for his back pain and 

a front-side cuffing pass when Plaintiff complained of shoulder pain. (Exhibit F at F4 ¶ 

8, F12, F27) As the medical records

9

demonstrate, Plaintiff‟s care was so prompt and 

appropriate that Plaintiff cannot even show negligence, much less “wanton infliction of 

pain.” 

ii. Plaintiff fails to meet the required subjective component

As to the subjective component, Plaintiff cannot demonstrate that Dr. Andem 

knew of and disregarded an excessive risk to Plaintiff‟s health. (Doc.1) In fact, the 

record of health care supports the opposite conclusion. (Exhibit F) Dr. Andem took every 

step necessary to assess and prevent any future risk to Plaintiff‟s condition, even when 

the Plaintiff‟s subjective complaints did not correlate with Dr. Andem‟s objective 

findings. (Id.) Dr. Andem ruled out any risks to the Plaintiff‟s back by ordering an x-ray 

on Plaintiff‟s lumbar spine and initiating a consult with the Orthopedic Surgeon. (Exhibit 

F at F2 ¶ 5, F3 ¶ 7, F29, F40) While Plaintiff alleges that Dr. Andem “prolonged” 

Plaintiff‟s visit to the Orthopedic Surgeon, Plaintiff‟s consult with the Orthopedic 

Surgeon was requested more as a cautionary measure and not because Dr. Andem, who 

had examined Plaintiff several times, believed it was medically necessary. Further, in 

 

9

In determining whether a prisoner has received adequate medical treatment, the federal 

court is entitled to rely on the physician‟s affidavit and prison medical records kept in the 

ordinary course of operation. Stokes v. Hurdle, 393 F.Supp. 757, 762-63 (D.C.Md. 1975). 

In short, if it appears from the record that the prison medical authorities have made a 

sincere and reasonable effort to handle the prisoner‟s medical problems, the constitutional 

requirements have been met. Stokes, 393 F. Supp., at 763. 

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Hunt v. Uphoff, 199 F.3d 1220 (1999), the court noted that “[d]elays that courts have 

found to violate the Eighth Amendment have frequently involved life threatening 

situation and instances in which it is apparent that delay would exacerbate the prisoner‟s 

medical problems.” Hunt, 199 F.3d at 1224. The court also went on to say that 

“[o]fficials may also be held liable when the delay results in a lifelong handicap or a 

permanent loss.” (Id.). Plaintiff‟s medical records and the diagnosis reached by each 

Defendant, including the Orthopedic Surgeon, do not demonstrate that Plaintiff‟s medical 

condition is or was one that required even more prompt attention than that given by Dr. 

Andem. (See infra Section III, F, G, H, J, K) Any possible “delay” Plaintiff experienced 

in being examined by the Orthopedic Surgeon did not exacerbate his alleged condition. 

(Id.) The medical records and attached affidavit support that the actions taken by Doctor 

Andem; both independently and collectively, did not amount to deliberate indifference to 

Plaintiff‟s medical needs. Accordingly, Plaintiff‟s claim for the same should be denied. 

B. Analysis of Deliberate Indifference Claim Against Dr. Lord. 

i. Plaintiff fails to meet the required objective component.

At all times examined by Dr. Lord, Plaintiff did not demonstrate a “serious 

medical need” nor can Dr. Lord‟s response(s) to Plaintiff‟s medical need be described as 

“an unnecessary and wanton infliction of pain.” Estelle, 429 U.S. at 104 -105. Upon Dr.

Lord‟s first examination of Plaintiff, Dr. Lord noted that Plaintiff exhibited poor 

volitional effort, which appeared to be more due to a lack of effort rather than a medical 

problem (Exhibit H at H2 ¶ 4, H6). Dr. Lord also noted that Plaintiff‟s suggested 

symptoms did not correlate with a known nerve pattern, which led Dr. Lord to conclude 

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21

that Plaintiff was malingering as he was exhibiting abnormalities that were not actually 

present. (Id.) However, despite this opinion, Dr. Lord requested a MRI examination to 

rule out any nerve damage to Plaintiff‟s spine. (Id.) The MRI exam showed mild 

degenerative changes. Plaintiff‟s second examination with Dr. Lord confirmed that 

Plaintiff was malingering as Plaintiff exhibited symptoms which were significantly out of 

proportion to the MRI findings and Plaintiff‟s alleged loss of sensation did not follow a 

normal distribution of a pinch nerve in the back. (Exhibit H at H3 ¶ 6, H9) As such, and 

as indicated by the medical record, Plaintiff‟s objective symptoms did not demonstrate a 

“serious medical need.” 10 

Even assuming Plaintiff‟s exhibited symptoms of a serious medical need, Doctor 

Lord‟s course of care and treatment do not constitute an “unnecessary and wanton 

infliction of pain.” Taylor, 221 F.3d at 1258. On the contrary, the record reflects that Dr.

Lord examined Plaintiff thoroughly on both occasions and took every step to properly 

care for and assist Plaintiff with pain management. (Exhibit H) Dr. Lord, despite 

thinking that Plaintiff was exaggerating his symptoms, recommended restrictive passes 

which limited the time Plaintiff was required to stand or walk, allowed Plaintiff the use of 

a cane, and assigned Plaintiff a low bunk. (Exhibit H at H2 ¶ 4, H6) All of which were 

recommended so that Plaintiff would not be subject to discomfort if he was truly 

experiencing pain and the degree of pain alleged. Following the results of the MRI, 

which showed only mild degenerative changes, and an examination demonstrating that 

Plaintiff‟s symptoms were out of proportion to this MRI finding, Dr. Lord still suggested 

 

10 See supra FN8.

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a series of epidural injections in an abundance of caution based upon Plaintiff‟s continued 

subjective complaints of pain. (Exhibit H at H3 ¶ 6, H9) As the medical records 

demonstrate, the care Plaintiff received from Dr. Lord was so comprehensive that 

Plaintiff cannot even show negligence, much less “wanton infliction of pain.” 

ii. Plaintiff fails to meet the required subjective component

As to the subjective component, Plaintiff cannot demonstrate that Dr. Lord knew 

of and disregarded an excessive risk to Plaintiff‟s health. (Doc.1) Dr. Lord, on the 

contrary, took the necessary steps in diagnosing Plaintiff‟s condition despite Plaintiff‟s 

exhibition of signs of malingering. (Exhibit H) Dr. Lord requested a MRI examination 

to rule out nerve damage and recommended restrictive passes pending the results of the 

MRI to limit the chance of Plaintiff exacerbating his alleged condition. (Exhibit H at H2 

¶ 4, H6) As supported by the medical records and attached affidavit, the actions taken by 

Dr. Lord, both independently and collectively, did not amount to deliberate indifference 

to Plaintiff‟s medical needs. Accordingly, Plaintiff‟s claim for the same should be 

denied. 

C. Analysis of Deliberate Indifference Claim Against Doctor Aviles. 

i. Plaintiff fails to meet the required objective component.

At all times examined by Dr. Aviles, Plaintiff did not demonstrate a “serious 

medical need” nor can Dr. Aviles‟s response(s) to Plaintiff‟s medical need be described 

as “an unnecessary and wanton infliction of pain.” Estelle, 429 U.S. at 104 -105. Upon 

Dr. Aviles‟s first examination of Plaintiff, Dr. Aviles noted that Plaintiff had a limited 

gait and authorized a wheelchair pass for long distances, a cane pass for ambulation, a 

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pass for restricting the amount of time Plaintiff was allowed to stand, and a back brace 

for support of the spine. (Exhibit G at G2 ¶ 7, G10) Dr. Aviles also prescribed Naproxen 

500mg, an anti-inflammatory pain medication, for six months. (Id.) Following that 

examination and as requested by Dr. Lord, the medical unit at Union C.I. coordinated a 

MRI examination for the Plaintiff. (Exhibit G at G2 ¶ 5) The findings of the MRI, as 

characterized by the orthopedic specialist, were mild degenerative changes. (Exhibit G at 

G4 ¶ 11, G19, G25) Despite these findings, the medical unit, under Dr. Aviles‟s 

direction, requested the spinal injections from UM. (Exhibit G at G3 ¶ 9, G14) The 

injections were subsequently denied by UM due to: “1) poor effort of the inmate during 

examination by the orthopedic (Dr. Lord), 2) MRI minimal findings (degen. changes), 

and 3) subjective symptoms exceed objective signs.” 11 (Exhibit G at G4 ¶ 11, G19, G25) 

As such, and as indicated by the medical record, Plaintiff‟s objective symptoms did not 

demonstrate a “serious medical need.” 12

Assuming, arguendo, that Plaintiff was experiencing pain that would qualify as a 

serious medical need, Dr. Aviles‟s prompt and conscientious course of treatment, does 

not amount to an “unnecessary and wanton infliction of pain.” Taylor, 221 F.3d at 1258. 

The history of medical care demonstrates that Dr. Aviles and his staff examined Plaintiff 

on several occasions and prescribed pain medication (Naproxen500mg) as necessary, and 

as consistent with Plaintiff‟s objective data with every intention to assist Plaintiff with his 

 

11 The basis provided by UM for denying treatment was based on the findings of Dr. Lord 

(Orthopedic Surgeon) during Plaintiff‟s consultation on October 15, 2008. (Exhibit G at 

G25) 

12 See supra FN8.

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alleged pain. (Exhibit G) While Plaintiff wanted stronger pain medication, the results of 

Plaintiff‟s x-ray, MRI and physical examinations by all treating physicians did not merit 

the prescribing of anything stronger. (Exhibit G at G5 ¶ 15) Plaintiff was promptly and 

properly cared for during his interactions with Dr. Aviles and his staff. (Exhibit G) He 

received medication and restrictive passes which exempted him from most required 

activities and prolonged walking or standing. (Exhibit G at G2 ¶ 7) Further, upon 

Plaintiff‟s request, Dr. Aviles even referred Plaintiff to the impair committee for an 

institutional transfer to a wheelchair camp. (Exhibit G at G4 ¶ 13, G19) As the medical 

records demonstrate, Plaintiff‟s care was so prompt and appropriate that Plaintiff cannot 

even show negligence, much less “wanton infliction of pain.” 

ii. Plaintiff fails to meet the required subjective component

As to the subjective component, Plaintiff cannot demonstrate that Dr. Aviles 

knew of and disregarded an excessive risk to Plaintiff‟s health. Again, the record of 

health care supports the opposite conclusion. (Exhibit G) Dr. Aviles and his staff took 

every step necessary to assess and prevent any future risk to Plaintiff‟s condition, even 

when the Plaintiff‟s subjective complaints did not correlate with Dr. Aviles‟s objective 

findings. (Id.) Dr. Aviles ruled out any risks to the Plaintiff by coordinating the MRI 

examination recommended by the orthopedic surgeon, the follow-up consult with the 

orthopedic surgeon, and requesting the recommended spinal injections. (Exhibit G at G2, 

G3) As supported by the medical records and attached affidavit, the actions taken by Dr.

Aviles, both independently and collectively, did not amount to deliberate indifference to 

Plaintiff‟s medical needs. Accordingly, Plaintiff‟s claim for the same should be denied. 

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D. Analysis of Deliberate Indifference Claim Against Ms Allin. 

i. Plaintiff fails to meet the required objective component.

Plaintiff‟s inmate request to Ms. Allin did not demonstrate a “serious medical need” 

nor can Ms. Allin‟s response to Plaintiff‟s inmate request be described as “an 

unnecessary and wanton infliction of pain.” Estelle, 429 U.S at 104 -105. Upon 

receiving Plaintiff‟s February 2, 2009 inmate request, wherein Plaintiff complained of 

extreme pain in his spine and leg and that he was beginning to experience numbness and 

pain in his arms, Ms. Allin reviewed Plaintiff‟s medical record. (Exhibit I at I2 ¶ 3) Ms. 

Allin noticed that Plaintiff had not complained of numbness and pain in his arms before 

and that his complaints of pain in his spine and leg had already been addressed by Nurse 

Bickel and the Chief Health Officer of the Institution. (Exhibit I at I2 ¶ 3, I5, I6)

Accordingly, the symptoms complained of by Plaintiff did not demonstrate a “serious 

medical need,”13 as he had not addressed complaints of pain or numbness in his arm 

previously, and the other complaints had already been addressed by medical staff. (Id.)

However, even assuming Plaintiff‟s complaints were considered a “serious 

medical need,” Ms. Allin‟s response to Plaintiff‟s request did not amount to “unnecessary 

and wanton infliction of pain.” Taylor, 221 F.3d at 1258. First, Ms. Allin stated in her 

response to Plaintiff‟s request, that there was no record of him addressing these 

complaints previously. (Exhibit I at I2 ¶ 3, I4). Ms. Allin was referring to Plaintiff‟s 

complaints of numbness and pain in his arms. (Exhibit I at I2 ¶ 3) Second, Ms. Allin 

informed Plaintiff that he must address his complaints in a sick-call request. (Id.) An 

 

13 See supra FN8.

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inmate request is not the proper procedure to seek medical attention; rather an inmate 

must fill out an Inmate Sick-Call Request Form in order to be seen by medical staff. (Id.) 

As such, Ms. Allin simply instructed Plaintiff of Department policy and encouraged him 

to seek relief for all of his complaints through the proper procedure. (Id.) The response 

issued by Ms. Allin was in conformity with Department rules and not “wanton infliction 

of pain.” 

ii. Plaintiff fails to meet the required subjective component

As to the subjective component, Plaintiff cannot demonstrate that Ms. Allin knew 

of and disregarded an excessive risk to Plaintiff‟s health. (Doc.1) As noted above, Ms. 

Allin did not disregard Plaintiff‟s complaints, rather, simply directed him to the proper 

forum for seeking medical attention. (Exhibit I at I2 ¶ 3, I4) Further, the record indicates 

that Plaintiff had not previously complained of pain or numbness in his arm, and that his 

complaints of pain in his spine and legs had already been evaluated by medical staff. 

(Exhibit I at I2 ¶ 3, I5, I6) Nothing in the record indicated that Plaintiff‟s alleged 

symptoms or condition would worsen if Plaintiff was made to go through the proper 

channels to seek medical attention. (Id.) The actions taken by Ms. Allin in responding to 

Plaintiff‟s request were appropriate and did not amount to deliberate indifference to 

Plaintiff‟s medical needs. Accordingly, Plaintiff‟s claim for the same should be denied. 

E. Analysis of Deliberate Indifference Claim Against ARNP Nichols. 

i. Plaintiff fails to meet the required objective component.

At all times examined by ARNP Nichols, Plaintiff did not demonstrate a “serious 

medical need” nor can ARNP Nichols‟s response(s) to Plaintiff‟s medical need be 

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27

described as “an unnecessary and wanton infliction of pain.” Estelle, 429 U.S. at 104 -

105. After several instances of Plaintiff refusing to come out of his cell to be examined 

by medical staff, ARNP Nichols was able to examine Plaintiff on March 3, 2009, and 

noted that Plaintiff made no attempt to walk. (Exhibit J at J1 ¶ 3, J2 ¶ 3, J2 ¶ 4, J8, J11, 

J12, J13) She also noted that Plaintiff did not exhibit any muscle atrophy in the leg 

complained of. (Exhibit J at J2 ¶ 4) Patients who are unable to place weight on a leg for 

long periods of time usually have some degree of muscle atrophy. (Id.) Review of 

Plaintiff‟s medical file revealed to the ARNP that Plaintiff had received an x-ray, a MRI, 

and had been evaluated by the orthopedic surgeon prior to being transferred to Santa 

Rosa C.I. (Exhibit J at J2 ¶ 6) On August 11, 2009, ARNP Nichols examined Plaintiff 

again to evaluate his passes. (Exhibit J at J3 ¶ 7, J20) During that visit, Plaintiff advised 

her that he was able to walk on his leg, however, that doing so was painful and he would 

not subject himself to pain. (Id.) Accordingly, based on the information obtained from 

Plaintiff, the medical record available to ANRP Nichols, and the objective findings of her 

examination of Plaintiff, he did not demonstrate a “serious medical need.” 14 

Even assuming Plaintiff‟s back pain was considered a serious medical need;

ARNP Nichols‟s treatment was hardly deficient as to constitute an “unnecessary and 

wanton infliction of pain.” Taylor, 221 F.3d at 1258. Rather, the record reflects that 

ARNP Nichols examined Plaintiff on several occasions, prescribed pain medication 

(Motrin 600mg) as consistent with Plaintiff‟s objective data, and issued restrictive passes. 

(Exhibit J) ARNP Nichols, despite not seeing any indication that Plaintiff was unable to 

 

14 See supra FN8.

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walk without the use of the cane, provided Plaintiff with a cane pass because of his 

insistence that he was unable to put pressure on his leg. (Exhibit J at J2 ¶ 4, J13) ARNP 

also ensured that Plaintiff had a low-bunk pass and a pass for front side cuffing. (Id.) 

Contrary to Plaintiff‟s allegation, ARNP Nichols did not take away his cane pass. (Doc. 

1, Section. V., p.14) On August 11, 2009, after examining Plaintiff and him admitting 

that he was able to walk without the use of the cane, ARNP Nichols changed Plaintiff‟s 

cane pass from outside cell use to outside dorm use. (Exhibit J at J3 ¶ 7, J20) ARNP 

Nichols notes that Plaintiff is assigned to a Close Management15 (“CM”) dormitory. 

(Exhibit J at J3 ¶ 7) When inmates are housed in CM, medical equipment that can be 

used as a weapon, such as a cane, is only authorized when completely necessary.16

Therefore, as a result of Plaintiff‟s statement that he was able to walk without the use of a 

cane, the ARNP‟s objective findings after examining Plaintiff, and existing security 

concerns; Plaintiff‟s pass was changed to cane use outside of the CM dormitory only. 

(Id.) 

 

15 Close management (“CM”) is the Aconfinement 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.@ 

Rule 33-601.800(1)(d), Fla. Admin. Code (“F.A.C.”). There are three individual levels 

(CM I, CM II, and CM III) associated with close management, with CM I being the most 

restrictive single cell housing level and CM III being the least restrictive housing of the 

three CM levels. Rule 33-601.800(1)(e), F.A.C. Unlike disciplinary confinement, CM is 

not punishment, but rather a housing assignment used by the Department to ensure the 

safety and security of the institution. Plaintiff has been assigned to CMII status since May 

13, 2008. 

16 Plaintiff has used his cane in the past to strike a correctional officer and was found 

guilty of the disciplinary infraction aggravated assault and battery on a correctional 

officer for doing so. (Exhibit B)

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ARNP Nichols notes that while Plaintiff continues to state that he needs stronger 

pain medication, the objective findings of his examinations and information in his 

medical file does not merit stronger pain medication. (Exhibit J at J4 ¶ 8) ARNP Nichols 

and the medical record both indicate that Plaintiff has recently had issues with hoarding 

and trading pills,17 which pose security concerns. (Id.) ARNP Nichols states that based 

on the physical examination of Plaintiff, his medical records, and his behavior,18 which 

includes a recent incident at the Institution,19 Plaintiff is malingering and prescription of 

anything stronger than Motrin 600mg is unnecessary. (Id.) Accordingly, the medical 

records demonstrate that Plaintiff has received appropriate care and ARNP Nichols‟s 

course of treatment did not constitute “wanton infliction of pain.” 

ii. Plaintiff fails to meet the required subjective component

As to the subjective component, Plaintiff cannot demonstrate that ARNP Nichols 

knew of and disregarded an excessive risk to Plaintiff‟s health. Plaintiff‟s medical record 

indicates that despite ARNP Nichols‟s determination that Plaintiff was malingering, she 

took the necessary precautions to ensure that Plaintiff would not be at risk by authorizing 

restrictive passes and prescribing anti-inflammatory medication should he actually be 

experiencing discomfort. (Exhibit J) The actions taken by ARNP Nichols, both 

independently and collectively, did not amount to deliberate indifference to Plaintiff‟s 

medical needs. Accordingly, Plaintiff‟s claim for the same should be denied. 

 

17 See supra FN 4. 

18 See supra FN 5. 

19 See supra FN 6.

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F. Analysis of Deliberate Indifference Claim Against Dr. Collins. 

i. Plaintiff fails to meet the required objective component.

During Dr. Collins‟s limited interaction with Plaintiff‟s formal grievances and 

medical file, Plaintiff did not demonstrate a “serious medical need” nor can Dr. Collins‟s 

response(s) to Plaintiff‟s medical need be described as “an unnecessary and wanton 

infliction of pain.” Estelle, 429 U.S. at 104 -105. Upon arriving at Santa Rosa C.I., 

Plaintiff filed a formal grievance seeking the renewal of his restrictive passes, including 

one he had for the use of a wheelchair. (Exhibit K at K2 ¶3, K7, K13) Dr. Collins 

answered the grievance stating that Plaintiff‟s medical file did not indicate that Plaintiff 

was unable to walk and that as the ARNP had already instructed Plaintiff, he would have 

to go to sick-call to obtain restrictive passes. (Exhibit K at K2 ¶3, K13) Plaintiff‟s 

subsequent grievance, dated March 18, 2009, was received and answered by Dr. Collins, 

and also addressed Plaintiff‟s pass renewal. (Exhibit K at K2 ¶6, K17-20) Dr. Collins 

informed Plaintiff that he had already been evaluated by the ARNP and that the 

appropriate passes had been issued. (Exhibit K at K2 ¶6, K18) As Plaintiff only 

complained of restrictive passes in these grievances and Plaintiff had in fact received the 

appropriate passes, Plaintiff did not demonstrate a “serious medical need.” 20

Even assuming Dr. Collins knew or should have known about Plaintiff‟s 

alleged back pain or that Plaintiff back pain was considered a serious medical need, Dr.

Collins‟s responses to Plaintiff‟s grievances were hardly deficient as to constitute an 

“unnecessary and wanton infliction of pain.” Taylor, 221 F.3d at 1258. Dr. Collins 

 

20 See supra FN8.

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answered Plaintiff‟s grievances by informing Plaintiff of the appropriate steps to take in 

order to receive his restrictive passes. (Exhibit K at K3 ¶ 7) Further, Dr. Collins was as 

Santa Rosa C.I. for less than two months while Plaintiff was there and although Dr. 

Collins never examined Plaintiff, Plaintiff received medical attention, in the form of 

restrictive passes and pain medication pursuant to Department procedure. (Exhibit K) 

That is, an ARNP is authorized to examine and treat inmates to the extent of their 

professional abilities. (Exhibit K at K2 ¶4) If an inmate exhibits a condition which is 

outside of the expertise of the ARNP he/she would then refer the inmate to a doctor for 

treatment. (Id.) In his case, ARNP Nichols was able to treat Plaintiff and therefore, 

Plaintiff was never referred to Dr. Collins for examination. (Id.) As the medical records 

demonstrate, the responses by Dr. Collins do not amount to “wanton infliction of pain.” 

ii. Plaintiff fails to meet the required subjective component

As to the subjective component, Plaintiff cannot demonstrate that Dr. Collins 

knew of and disregarded an excessive risk to Plaintiff‟s health. (Doc.1) On the contrary, 

upon answering Plaintiff‟s formal grievances, Dr. Collins reviewed Plaintiff‟s medical 

record and noted that prior to being transferred to Santa Rosa C.I., Plaintiff received a 

thorough examination of his back pain complaints including: x-rays, a MRI, and two 

consults with the Orthopedic Surgeon. (Exhibit K at K4 ¶ 9) Therefore, based on 

Plaintiff‟s medical records and the objective findings of the Orthopedic Surgeon, there 

was nothing in the record to indicate that Plaintiff‟s health was being placed at risk. (Id.)

As supported by the medical records and attached affidavit, the actions taken by Dr.

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Collins, both independently and collectively, did not amount to deliberate indifference to 

Plaintiff‟s medical needs. Accordingly, Plaintiff‟s claim for the same should be denied. 

G. Analysis of Deliberate Indifference Claim Against all Defendants 

regarding pain medication.

Plaintiff does not, at any time in his complaint, allege that he has not received pain 

medication from Dr. Andem, Dr. Aviles, and ARNP Nichols, rather, that the pain 

medication prescribed, is not “effective.” In other words, Plaintiff is dissatisfied with the 

course of treatment prescribed by the aforementioned Defendants. However, an inmate‟s 

desire for a different mode of treatment does not amount to deliberate indifference. 

Hamm v. DeKalb County, 774 F.2d 1567, 1575 (11th Cir. 1985). Also, “when a prison 

inmate has received medical care, courts hesitate to find an Eighth Amendment 

violation.” Waldrop v. Evans, 871 F.2d 1030, 1035 (11th Cir. 1989); See also Westlake 

v. Lucas, 537 F.2d 857, 860 n.5 (6th Cir. 1976) (“Where a prisoner has received . . . 

medical attention and the dispute is over the adequacy of the treatment, federal courts are 

generally reluctant to second guess medical judgments and to constitutionalize claims 

that sound in tort law.”). Additionally, even assuming Plaintiff has been “misdiagnosed” 

or given the “wrong medication,” which there is no evidence supporting the same, at the 

very most, Plaintiff would have a claim for medical malpractice, which does not amount 

to a constitutional violation. Estelle, 429 U.S. at 106. 

Even though Plaintiff is convinced he has not been receiving “effective” or 

“adequate” treatment, he has been prescribed pain medication which has been deemed 

adequate by five medical professionals. (Exhibit F at F4 ¶8, Exhibit G at G5 ¶ 15, 

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33

Exhibit H at H3 ¶8, Exhibit J at J4 ¶8, Exhibit K at K4 ¶9) Plaintiff‟s claim essentially 

boils down Plaintiff‟s “medical opinion” as to the proper course of treatment versus the 

treatment indicated as medically necessary by five medical professionals. Whether or not 

Plaintiff should be prescribed stronger pain medication is a matter of medical judgment 

and not appropriate for an Eighth Amendment claim. Adams, 61 F.3d 1537, 1545. 

Furthermore, Dr. Andem, Dr. Lord, Dr. Andem, ARNP Nichols, and Dr. Collins all 

determined, based on the objective findings of Plaintiff‟s examinations and in most cases, 

Plaintiff‟s x-rays and MRI, that the Anaprox, Naproxyn, and Motrin were all adequate 

medication to treat Plaintiff‟s condition and anything stronger, such as a narcotic, would 

be unnecessary. (Exhibit F at F4 ¶8, Exhibit G at G5 ¶ 15, Exhibit H at H3 ¶8, Exhibit J 

at J4 ¶8. Exhibit K at K4 ¶9) Based on Plaintiff‟s medical record, physical examinations, 

and tests administered, it is the medical opinion of Dr. Andem, Dr. Aviles, Dr. Lord, Dr. 

Collins, and ARNP Nichols that Plaintiff‟s current course of treatment is proper. (Id.)

IV. Qualified Immunity

To the extent the Plaintiff is suing Defendants in their individual capacity for 

damages; Defendants assert qualified immunity to not stand trial or face the other 

burdens of litigation on the claims raised by the Plaintiff. Qualified immunity allows 

government officials to carry out their discretionary duties without the fear of personal 

liability or harassing litigation, and protects from suit “all but the plainly incompetent or 

one who is knowingly violating the federal law.” Lee v. Ferraro, 284 F.3d 1188, 1194 

(11th Cir. 2002)(quoting Willingham v. Loughnan, 261 F.3d 1178, 1187 (11th Cir 

2001)). It operates to protect officials from the sometimes hazy border between 

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constitutional and unconstitutional conduct, and to ensure that before they are subject to 

suit, officials are on notice that their conduct is unlawful. Saucier v. Katz, 533 U.S. 194, 

206 (2001). “The concern of the immunity inquiry is to acknowledge that reasonable 

mistakes can be made as to the legal constraints on particular conduct.” Id. at 205.

Until recently, the Eleventh Circuit utilized a mandatory two-step sequence for 

resolving government officials' qualified immunity claims under controlling Supreme 

Court precedent. See Saucier v. Katz, 533 U.S. 194, 210 (2001); see also Storck v. City 

of Coral Springs, 354 F.3d 1307, 1314 (11th Cir. 2003). Under Saucier, courts had to 

first make a determination as to whether the facts that the plaintiff alleged constituted a 

violation of a constitutional right. Saucier, 533 U.S. at 210. Second, only after 

completing the first step, courts then determined whether the right was clearly 

established. See id. In 2009, the Supreme Court revisited Saucier‟s two-pronged 

qualified immunity analysis, elucidating: 

[W]hile the sequence set forth there is often appropriate, it should no 

longer be regarded as mandatory. The judges of the district courts 

and the courts of appeals should be permitted to exercise their sound 

discretion in deciding which of the two prongs of the qualified 

immunity analysis should be addressed first in light of the 

circumstances in the particular case at hand. 

Pearson v. Callahan, 129 S. Ct. 808, 817 (2009). Interpreting the effect of Pearson in this 

circuit, the Eleventh Circuit opined, “we are „permitted to exercise [our] sound 

discretion‟ in deciding which prong of this inquiry to address first.” McCullough v. 

Antolini, 2009 U.S. App. LEXIS 3874, at *12 - *13 (11th Cir. Feb. 26, 2009). 

Consequently, the Eleventh Circuit and Florida district courts continue to analyze 

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qualified immunity under the specific facts and circumstances of each case. See id. at 

*12. 

Defendants are entitled to qualified immunity. The facts in this case simply do 

not rise to a violation of Plaintiff‟s constitutional rights either under the Eighth or First 

Amendment. (See supra Section III and infra Section V) Because Plaintiff‟s allegations 

against Defendants do not establish a constitutional violation, “there is no necessity for 

further inquiries concerning qualified immunity.” Saucier v. Katz, 533 U.S. 194, 201 

(2001), overruled in part, Pearson v. Callahan, --- U.S. ----, 129 S.Ct. 808, 818, 172 

L.Ed.2d 565 (2009). Additionally, Plaintiff has not pointed to any clearly established law 

that would indicate that the actions of any of the Defendants violated his constitutional 

rights and deprive Defendants of qualified immunity for their actions. 

V. First Amendment – Retaliation

To the extent Plaintiff alleges ARNP Nichols retaliated against him for filing a 

grievance against her and another nurse, Plaintiff has not demonstrated entitlement to 

relief. (Doc.1, Section V., p.14) In order to state a First Amendment retaliation claim, 

allegations must be more than “general attacks” upon a defendant‟s motivations, a 

plaintiff must produce “affirmative evidence” of retaliation from which a jury could find 

that plaintiff had carried his burden of proving the requisite motive. Crawford-El v. 

Britton, 523 U.S. 574, 600 (1998) (citations omitted). Conclusory allegations of 

retaliation without “some facts” that would indicate that the retaliatory act was in 

retaliation for filing grievances is not sufficient. See White v. Thompson, No. CV406-

207, 2007 WL 2324613, at *1 (S.D. Ga. June 20, 2007). 

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A prisoner does not automatically cast doubt upon an institutional decision, nor is 

the decision “subject to exhaustive challenge,” solely because he was engaged in a First 

Amendment right. Adams v. James, 784 F.2d 1077, 1082 (11th Cir.1986); Adams v. 

James, 797 F.Supp. 940, 949 (M.D.Fla.1992). Courts should approach prisoner claims of 

retaliation “with skepticism and particular care” due to the “near inevitability” that 

prisoners will take exception with the decisions of prison officials and “the ease with 

which claims of retaliation may be fabricated.” Dawes v. Walker, 239 F.3d 489, 491 (2d 

Cir. 2001), impliedly overruled in part on other grounds by Swierkiewicz v. Sorema 

N.A., 534 U.S. 506 (2002).

Plaintiff alleges that ARNP Nichols took Plaintiff‟s cane pass away from him as 

retaliation for him writing a grievance against her and another nurse. (Doc.1, Section V., 

p.14) Plaintiff has misrepresented the facts here. First, Plaintiff‟s cane pass was not 

“taken away,” rather; the pass was modified to authorize Plaintiff‟s use of his cane only 

outside of the CM dormitory. (Exhibit J at J3 ¶ 7, J20) Second, while retaliation against 

an inmate for filing a grievance can violate an inmate‟s First Amendment rights, the 

inmate must establish that the grievance was the cause of the retaliatory treatment. 

Thomas v. Warner, 237 Fed. Appx. 435 (11th Cir. 2007). Plaintiff has not brought forth 

affirmative evidence of retaliation from which a jury could find that Plaintiff has carried 

his high burden of proving the requisite motive. On the contrary, and as argued supra, 

the record establishes that the ARNP had several reasons for changing the nature of 

Plaintiff‟s cane pass, neither of which was a result of Plaintiff‟s grievance against the 

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ARNP. (See Section III, G., pp.28-29) Therefore, Plaintiff has failed to state a claim for 

retaliation under the First Amendment and this claim should be dismissed.

VI. Damages Claims and No Physical Injury

Plaintiff requests relief in the form of compensatory, nominal, and punitive 

damages in his complaint. (Doc. 1, Section VII.) However, in order for an inmate to 

bring a civil action in federal court for mental or emotional injuries suffered while in 

custody, there must be a showing of physical injury. 42 U.S.C. '1997e(e). Section

1997e(e) of the PLRA states, ANo 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). This circuit has held that the physical injury requirement of Section 1997e(e) 

applies to constitutional rights. Harris v. Garner, 216 F.3d 970 (11th Cir.2000)(en banc), 

reinstating in part 190 F.3d 1279 (11th Cir.1999).

To the extent Plaintiff‟s claim for damages arises from any physical injury, 

Plaintiff has not demonstrated that Defendants‟ actions, individually or collectively, have 

led to a physical injury. To the extent Plaintiff asserts a claim for mental or emotional 

injury, it is well settled in the law of the Eleventh Circuit, that compensatory and punitive 

damages are not available in the absence of a physical injury. The Prison Litigation 

Reform Act of 1995 amends Section 7(e) of the Civil Rights of Institutionalized Persons 

Act to require a prior showing of physical injury before an inmate can bring a civil action 

for mental or emotional injury suffered while in custody. As Plaintiff has shown no 

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physical injury with respect to this claims against Defendants, compensatory and punitive 

damages cannot be had. 

In Smith v. Allen, 502 F.3d 1255, 1271 (11th Cir. 2007), the Court held that the 

plaintiff prisoner who demonstrated no physical harm was not entitled to compensatory 

or punitive damages. Since the issuance of Smith v. Allen, 502 F.3d 1255, 1271 (11th 

Cir. 2007), the Eleventh Circuit has issued an unpublished opinion stating that under the 

law of the circuit, ' 1997e(e) bars claims where the prisoner plaintiff does not allege any 

physical injury. See Frazier v. McDonough, 2008 U.S. App. LEXIS 2652, * 6 (11th Cir. 

2008) (Exhibit L) Accordingly, dismissal of Plaintiff‟s claim for damages is proper. 

VII. Plaintiff’s Injunctive Claim

Plaintiff also seeks injunctive relief in the form of “effective” pain medication and 

the use of a walking cane. Regarding the use of a walking cane, Plaintiff‟s claim is moot 

as the record indicates Plaintiff has a current pass for the use of a cane and that he is 

being permitted to use his cane outside of his cell within the dorm. (Exhibit J at J4, ¶ 8) 

With respect to the injunctive relief seeking “effective” pain medication, Plaintiff has 

failed to show the required elements of injunctive relief. (Doc. 1) A party moving for 

injunctive relief must show the following: (1) a substantial likelihood that he will prevail 

on the merits; (2) a substantial threat that he will suffer irreparable injury if the injunction 

is not granted; (3) the threatened injury to him outweighs the threatened harm an 

injunction may cause the opponent; and (4) granting the preliminary injunction will not 

disserve the public interest. McDonald's Corp. v. Robertson, 147 F.3d 1301, 1306 (11th 

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Cir.1998) (citing All Care Nursing Serv., Inc. v. Bethesda Mem'l Hosp., Inc., 887 F.2d 

1535, 1537 (11th Cir.1989)). 

Here, Plaintiff has failed to address or establish that there is a substantial 

likelihood that he will prevail on the merits. Plaintiff has also failed to establish that 

there is a substantial likelihood that he will suffer irreparable injury. Plaintiff must show 

that the threat of injury is “neither speculative, but actual and imminent.” Northwestern 

Fla. Chapter of Ass‟n of General Contractors of Am. V. City of Jacksonville, Fla. 896 

F.2d 1293, 1285 (11th Cir. 1990)(quoting Tucker Anthony Realty Corp. v. Schlesinger, 

888 F. 2d 969, 973 (2d. Cir. 1989)); see also, Church v. City of Huntsville, 30 F.3d 1332, 

1337 (11th Cir. 1994)(in order to obtain injunctive relief, a plaintiff must show “a real and 

immediate-as opposed to a merely conjectural or hypothetical threat of future injury.”) 

In his complaint, Plaintiff does not allege that the absence of stronger medication than 

that of which he is currently prescribed, will likely lead to irreparable injury. (Doc. 1) 

Plaintiff has not alleged or demonstrated that there is an actual imminent harm. Plaintiff 

has also not demonstrated that the threatened injury to him outweighs the threatened 

harm an injunction may cause the opponent. An injunction requiring the Florida 

Department of Corrections to prescribe narcotics to an inmate who possess no medical 

need for the same and who has a history of hoarding and trading prescription medication, 

would pose a threat to the security at the institution. An injunction of this nature would 

cause the Department to unnecessarily expend resources on medication and surveillance 

of the Plaintiff to ensure he does not hoard or trade his prescription drugs. Such an 

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injunction would disserve public interest and resources. Therefore, Plaintiff‟s claim for 

injunctive relief must be denied.

CONCLUSION

Wherefore, for the foregoing reasons, summary judgment must be entered in 

favor of the Defendants and the Complaint must be denied.

Respectfully submitted,

BILL McCOLLUM

ATTORNEY GENERAL

/s/Maricruz R. Fincher

Maricruz R. Fincher

Assistant Attorney General

Florida Bar No.: 0056853

Office of the Attorney General

The Capitol, Suite PL-01

Tallahassee Florida 32399-1050

Telephone: (850) 414-3300 

Facsimile: (850) 488-4872

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true copy of the foregoing has been furnished by U.S. Mail 

to: Ivan Harvey, DC # P29639, Santa Rosa Correctional Institution, 5850 East Milton Rd., 

Milton, Florida 32583-7914 this 13

th day of December, 2010. 

 

/s/Maricruz R. Fincher

 Maricruz R. Fincher

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