Jones v. Edguardo A. Consuegra's Estate

• Decision Date: 22 September 2004
• Docket Number: No. 3:02-CV-42-J-99HTS.,3:02-CV-42-J-99HTS.
• Citation: Jones v. Edguardo A. Consuegra's Estate, 338 F.Supp.2d 1282 (M.D. Fla. 2004)
• Parties: Roger Lee JONES, Plaintiff, v. EDGUARDO A. CONSUEGRA'S ESTATE, et al., Defendants.
• Court: U.S. District Court — Middle District of Florida

Page 1282

338 F.Supp.2d 1282

Roger Lee JONES, Plaintiff, v.EDGUARDO A. CONSUEGRA'S ESTATE, et al., Defendants.

No. 3:02-CV-42-J-99HTS.

United States District Court, M.D. Florida, Jacksonville Division.

September 22, 2004.

Roger Lee Jones, Raiford, FL, pro se, plaintiff.

Mark J. Hiers, Asst. Attorney General, Diogenes A. Arteaga, M.D., Barbara Ann Porterfield and Chuong Le, M.D., Tallahassee, FL, Counsel for Defendants.

Jeannette M. Andrews, Ben Allen Andrews, Andrews, Crabtree, Knox & Andrews, LLP, Prison Health Services, Inc. and American Services Group, Tallahassee, FL, Counsel for Defendants.

Saalfield, Coulson, Shad & Jay, P.A., Harvey L. Jay, III, Trudy E. Innes, Alejandro Radi, M.D., Jacksonville, FL, for Defendant.

ORDER

SCHLESINGER, District Judge.

I.Status

On October 25, 2001, PlaintiffRoger Lee Jones, an inmate of the Florida penal system proceeding pro se, initiated this action in the United States District Court for the Northern District of Florida by filing a civil rights Complaint (Doc. # 7) pursuant to 42 U.S.C. § 1983.On January 9, 2002, the case was transferred to this Court.SeeCourt's Order of Transfer (Doc. # 5).Plaintiff filed an Amended Complaint (Doc. # 17) on June 7, 2002, and thereafter filed a Second Amended Complaint (Doc. # 48) on February 26, 2003.

On August 18, 2003, PlaintiffRoger Lee Jones filed a Third Amended Complaint (Doc. # 74), in which he names the following Defendants: (1)Prison Health Services, Inc., in Florida (PHS-1); (2)Edguardo A. Consuegra's Estate; (3)Diogenes A. Arteaga, M.D.; (4)Chuong Le, M.D.; (5)Canh T. Nguyen, M.D.; (6)Barbara Ann Porterfield, Nurse; (7)Alejandro Radi, M.D.; (8) American Services Group in Delaware; (9)C.B. Bowlan, Senior Health Services Administrator; and, (10)Prison Health Services, Inc., in Tennessee (PHS-2).On January 8, 2004, this Court dismissed Defendants Prison Health Services and American Services Group.SeeCourt's Order (Doc. # 109), filed January 8, 2004, at 2, paragraph 3.

Before the Court are the following motions: (1)Defendants Arteaga, Porterfield, Le, Bowlan, Estate of Edguardo A. Consuegra, and Nguyen's Motion for Summary Judgment(Doc. # 83)¹; (2)Defendant Radi's Motion for Summary Judgment(Doc. # 124); (3)Defendants' Juan Carlos Consuegra and/or Mireya Consuegra, Executrix and/or Administrator of the Estate of Edguardo A. Consuegra, Motion to Dismiss the Third Amended Complaint(Doc. # 129); (4)Plaintiff's Motion to Accept State Jurisdiction(Doc. # 179); and, (5)Plaintiff's Motions for Enlargement of Time(Docs.# 181, 184).²

In support of their motions for summary judgment, Defendants have submitted exhibits (hereinafter Ex.).Plaintiff has been instructed on how to respond to motions for summary judgment and has been given sufficient time in which to respond.SeeCourt's Order (Doc. # 176), filed June 18, 2004, at 2, paragraphs 5 and 7(granting Plaintiff an additional sixty days from the date of the Order to respond to the motions for summary judgment and the Defendants' medical affidavit in support of their motions for summary judgment);Court's Order (Doc. # 161), filed April23, 2004, at 4-5, paragraph 15;Court's Order (Doc. # 109), filed January 8, 2004, at 3, paragraph 6;Court's Order (Doc. # 92), filed October 15, 2003; Court's Order (Doc. # 24), filed September 25, 2002, at 5-7.Plaintiff has submitted a multitude of exhibits in support of his claims and in support of his assertion that he has sufficiently exhausted all of his claims presented to this Court.Finally, Plaintiff has responded with supporting exhibits.See Composite Exhibit A (containing ninety-nine exhibits) and Composite Exhibit B (containing fifty-five exhibits); Composite Exhibit W.³SeePlaintiff's Response and Objection to the Defendants' Motion for Summary Judgment(Doc. # 185), filed September 17, 2004.

II.Plaintiff's Allegations and Claims

Plaintiff contends that he was denied proper medical care during his incarceration at Baker Correctional Institution (hereinafter BCI) from March 25, 1999, through July 24, 2000.Specifically, he states that he suffered from gastro-esophagus reflex disease (hereinafter GERD) colon cramps and bleeding, hemorrhoids, diarrhea, bleeding kidneys, sinus problems, a kidney stone and pain from a broken nose.SeeThird Amended Complaintat 5-19.He states that, because Dr. Consuegra did not properly treat his GERD, he now suffers from Barrett's Esophagus, a precancerous condition.Id.

Defendant Consuegra, as the Chief Health Officer at BCI (now deceased), was responsible for ensuring that all inmates received adequate medical care.Id. at 6.Plaintiff claims that he was notified of the delays and denial of medical care, but failed to correct the problems.Id.Plaintiff states that Defendant Arteaga, the Senior Physician at BCI during the relevant time period, was Plaintiff's physician; Defendants Nguyen and Le were part-time physicians; Defendant Porterfield was the Senior Licensed Practical Nurse; Defendant Bowlan was the Senior Health Services Administrator, who was responsible for researching medical inquiries posed to the defendant physicians; and, DefendantAlejandro Radi was a subcontracted gastrointestinal physician at North Florida Reception Center.Id. at 6-7.

On January 8, 2004, this Court granted Plaintiff's Motion to Dismiss Without Prejudicethe Plaintiff's State Tort Law Claim(Doc. # 95); stated that Plaintiff's "Section M" of the Third Amended Complaint (Doc. # 74) would not be addressed; and, therefore dismissed his state tort law claims.SeeCourt's Order (Doc. # 109), filed January8, 2004, at 3-4, paragraph 9.

III.Exhaustion

Exhaustion of available administrative remedies is required before a 42 U.S.C. § 1983 action with respect to prison conditions by a prisoner may be initiated in this Court.The Eleventh Circuit recently stated:

Before considering the merits of this case, we must address a threshold matter.According to 42 U.S.C. § 1997e(a), enacted as part of the Prison Litigation Reform Act (the "PLRA"),

No action shall be brought with respect to prison conditions under section 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.

The PLRA's effective date was April 26, 1996; because the prisoners filed their complaint after this date, the PLRA applies.Higginbottom v. Carter,223 F.3d 1259, 1260(11th Cir.2000).A district court must dismiss the suit when it finds that the plaintiff-inmate has not exhausted his administrative remedies.Cf.Brown v. Sikes,212 F.3d 1205, 1207(11th Cir.2000)....

Chandler v. Crosby,379 F.3d 1278, 1286(11th Cir.2004).

While Plaintiff was incarcerated at BCI, he grieved, through the administrative grievance procedures, his medical complaints.Plaintiff has provided the Court with a multitude of exhibits to support his assertion that he has sufficiently exhausted the claims presented to this Court.SeePlaintiff's Response and Objection to the Defendants' Motion for Summary Judgment(Doc. # 185), Composite Exhibit B; Third Amended Complaint, Appendix A.

Specifically, he informed the officials that Defendant Le, with his "could care less" attitude, failed to properly treat him for his GERD and colon and kidney pain; the prison officials responded to Plaintiff that his grievance was thoroughly reviewed and evaluated, and that "[t]he physicians are aware of [his] condition and [he is] being provided adequate care."Third Amended Complaint, Appendix A.Further, he grieved the issues with respect to his kidney stone and diarrhea and the involvement of Defendants Consuegra, Arteaga and Le.Id.In response, the officials stated that his request was thoroughly reviewed and evaluated, that review of the record reflected that the physician was treating him appropriately, and that "it will be the physician who decides what courses of treatment will be done."Id.Defendants Arteaga and Consuegra, in response to Plaintiff's November 18, 1999, grievance, specifically notified Plaintiff regarding the status of his kidney and colon concerns, stating in pertinent part:

Dr. Consuegra called you out on 11/22/99 and discussed fully, per the instructions of Tallahassee, all your issues.Further, there is already a urological consult requested for approval to address your kidney concerns and that on 11/24/99 you were seen regarding your colon pain.Your conditions will continue to be addressed appropriately, as the physician determines your course of treatments.

Id.Further, on appeal to the Secretary of the Florida Department of Corrections, Emile L. Baudoin d'Ajoux stated:

Your request for administrative remedy was received at this office and it was carefully reviewed.Records available to this office were also reviewed.In addition, your health care staff was contacted[,] and they provided this office with information regarding the issues you presented.It is determined that the response made to you by Dr. Consuegra on 12/9/99 appropriately addressed the issues presented by you.It is the responsibility of your Chief Health Officer to determine the appropriate treatment regimen for the condition you are experiencing.Records indicate you have been transferred to NFRC and on 1/14/2000 you underwent electro-shock wave lithotripsy.You were last seen on 1/21/2000 by the physician assistant in [the] outpatient clinic regarding rectal bleeding.You are scheduled to be seen by the Urologist in the near future.Should you experience problems, sick call is available so that you may present your concerns to your health care staff.

Id.

The record also reflects that Plaintiff complained, through the grievance procedures, with respect to nose pain.Id.Plaintiff was notified that it is the physician's determination as to whether he would be referred to a specialist.Id.

Plaintiff also grieved his...