Lonergan v. Dep't of Corr. Sec'y Julie Jones, Case No. 4:14cv42-MW/CAS

• Court: U.S. District Court — Northern District of Florida
• Writing for the Court: CHARLES A. STAMPELOS UNITED STATES MAGISTRATE JUDGE
• Decision Date: 28 February 2017
• Docket Number: Case No. 4:14cv42-MW/CAS
• Citation: Lonergan v. Jones, Case No. 4:14cv42-MW/CAS (N.D. Fla. Feb 28, 2017)
• Parties: DANIEL R. LONERGAN, Plaintiff, v. DEPARTMENT OF CORRECTIONS SECRETARY JULIE JONES, Defendant.

DANIEL R. LONERGAN, Plaintiff, v. DEPARTMENT OF CORRECTIONS SECRETARY JULIE JONES, Defendant.

Case No. 4:14cv42-MW/CAS

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF FLORIDA TALLAHASSEE DIVISION

February 28, 2017

REPORT AND RECOMMENDATION

After the Eleventh Circuit Court of Appeals affirmed in part and reversed in part the order dismissing the pro se Plaintiff's amended complaint, ECF No. 13, the case was remanded for further proceedings. ECF Nos. 35-36. The only claim that remains is Plaintiff's ADA claim as presented in Count 1, ECF No. 35 at 11, but Plaintiff was permitted to supplement his amended complaint. See ECF Nos. 40, 43, and 60-61. Thereafter, service was directed on Julie Jones, Secretary of the Florida Department of Corrections, see ECF No. 48, who filed an answer, ECF No. 51, and the parties were provided a discovery period, ECF No. 55.

Mr. Lonergan filed a motion for summary judgment, ECF No. 64, as did Secretary Jones, ECF No. 66. Secretary Jones has filed a response to Mr. Lonergan's motion, ECF No. 70, and Mr. Lonergan filed a response to the Secretary's motion, ECF No. 75. The motions are ready for a ruling.

I. Legal standards governing a motion for summary judgment

"The court shall grant summary judgment 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). Thus, summary judgment is proper "after adequate time for discovery and upon motion, against a 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 Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 2552, 91 L. Ed. 2d 265 (1986). The "party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of 'the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp., 477 U.S. at 323, 106 S. Ct. at 2553. The non-moving party must then show¹ the court "that there is an absence of evidence to support the nonmoving party's case." Id. at 325, 106 S. Ct. at 2554.

An issue of fact is "material" if it could affect the outcome of the case. Hickson Corp. v. Northern Crossarm Co., Inc., 357 F.3d 1256, 1259 (11th Cir. 2004) (citations omitted). A 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 is insufficient. The Court must decide "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Hickson Corp., 357 F.3d at 1260 (quoting Anderson v. Liberty Lobby, 477 U.S. 242, 252, 106 S. Ct. 2505, 2505, 91 L. Ed. 2d 202 (1986)). All reasonable inferences must be resolved in the light most favorable to the nonmoving party,Watkins v. Ford Motor Co., 190 F.3d 1213, 1216 (11th Cir. 1999), "only if there is a 'genuine' dispute as to those facts." Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) (quoted in Ricci v. DeStefano, 557 U.S. 557, 586, 129 S. Ct. 2658, 2677, 174 L. Ed. 2d 490 (2009)). "Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial." Matsushita Elec. Indus. Co., 475 U.S. at 587 (internal quotation marks omitted) (quoted in Ricci, 557 U.S. at 586, 129 S. Ct. at 2677).

"Cross motions for summary judgment do not change the standard." Latin Am. Music Co. v. Archdiocese of San Juan of the Roman Catholic & Apostolic Church, 499 F.3d 32, 38 (1st Cir. 2007) (quoted in Ernie Haire Ford, Inc. v. Universal Underwriters Ins. Co., 541 F. Supp. 2d 1295, 1297 (M.D. Fla. 2008). "'Cross motions for summary judgment are to be treated separately; the denial of one does not require the grant of another.'" Christian Heritage Acad. v. Okla. Secondary Sch. Activities Ass'n, 483 F.3d 1025, 1030 (10th Cir. 2007) (quoting Buell Cabinet Co. v. Sudduth, 608 F.2d 431, 433 (10th Cir. 1979)) (quoted in Ernie Haire Ford, Inc., 541 F. Supp. 2d at 1297-98)). Because Plaintiff (as the party with the burden of proof) has a heavier burden on summary judgment, the Court will consider the Defendant's motion first. If Defendant's motion is denied, the Court will consider whether Plaintiff is entitled to judgment as a matter of law.

II. Relevant Rule 56 Evidence²

Mr. Lonergan is incarcerated in the Florida Department of Corrections and is serving a parole eligible life sentence. ECF No. 64 at 3; ECF No. 75, Ex. 2 (ECF No. 75-1 at 10).³ Mr. Lonergan has been in the Department's custody since 1982. Id. When his motion for summary judgment was filed in July of 2016, he was 52 years of age. Id.

In 2010, two "suspicious" skin lesions were noted on Mr. Lonergan and he was given a referral to a dermatologist for assessment. Ex. A at 2 (ECF No. 66-1);⁴ Ex. C at 53-64, 87-90 (ECF No. 66-3); Ex. 3 (ECF No. 64-6). Mr. Lonergan was diagnosed with Actinic Karatoses ("AK") andcryotherapy⁵ was directed. Ex. A at 2 (ECF No. 66-1); Ex. C at 87-88 (ECF No. 66-3); Ex. 3 (ECF No. 64-6).⁶ "Actinic karatoses, also called solar keratoses, are scaly, crusty growths or lesions caused by damage from the sun's ultraviolet rays." Ex. A at ¶5 (ECF No. 66-1). "There is some evidence that with prolonged neglect and continued solar exposure, these lesions harbor the potential for progressing to a squamous cell carcinoma, but the risk is small and can be virtually eliminated with regular use of appropriate measures, such as" sunscreen, a hat, protective clothing, and reduced sun exposure. Id. "Due to the potential to develop into cancer, AK is often referred to as precancer, but AK itself is not cancerous." Id. "AK is very common, especially among those with fair skin and eyes," older individuals, and those with a history of "smoking, multiple drug use and alcoholism." Id.

Mr. Lonergan was a smoker for 20 years, although he stopped smoking, and has a history of "polydrug abuse" and alcoholism. Id. at ¶6; ECF No. 75, Ex. 2 (ECF No. 75-1 at 10). Mr. Lonergan has "a AA and NA sobriety date of" May 22, 2009. ECF No. 75, Ex. 2 (ECF No. 75-1 at 10). Mr. Lonergan's "father passed from cancer as well as his father and mother as well." Id.

Mr. Lonergan declares in his affidavit that on October 11, 2010, a dermatologist examined him at the South Florida Reception Center for suspicious lesions on his bicep and shoulders. Ex. 4 at 2 (ECF No. 64-5). Mr. Lonergan says the doctor told him to "stay out of the sun" and wrote a "no sun pass so that [he] could follow his advice." Id. Mr. Lonergan explains that he believes the dermatologist's instruction means "to minimize sun exposure at every opportunity." ECF No. 75, Ex. 2 (ECF No. 75-1 at 10).

However, the declaration submitted by Mr. Maier in support of Secretary Jones' motion for summary judgment states that the "dermatologist recommended a sun pass, straw hat, and sunscreen during a follow-up appointment in December 2010." Ex. A at ¶7 (ECF No. 66-1). "The recommendation simply says 'sun pass' and does not specifically recommend no sun exposure whatsoever, nor does it recommend transfer to a different facility." Id.; see also Ex. C at 88 (ECF No. 66-3) and Ex. F at 11 (ECF No. 66-6). Mr. Maier further declares that "[t]here is no evidence in the medical record that [Mr.] Lonergan has squamous cell carcinoma or any other type of cancer." Ex. A at ¶7 (ECF No. 66-1).

The initial recommendation for "sun pass" and "straw hat" was in December 2010. Ex. C at 88 (ECF No. 66-3 at 88). The medical record indicates on January 4, 2011, Mr. Lonergan filed an informal grievance complaining that he had not received the "no sun pass." Id. at 52. The record reflects the grievance was "approved" and the pass would be issued. Id. On January 5, 2011, the record indicates a "no working in sun" pass was written, to be effective from January 7, 2011, through January 5, 2012. Id. On January 21, 2011, a notation in the medical record reveals the pass was "rewritten" as a "no prolonged exposure to sun pass." Id. at 52. That entry indicates the pass was previously a "no working in the sun pass." Id. Another notation for January 24, 2011, indicates Mr. Lonergan was given a "no prolonged sun pass," good for January 21, 2011, through January 21, 2012. Id.

Mr. Lonergan reports that after returning to Hendry Correctional Institution, the "doctor there changed the pass to no working in the sun." Ex. 4 at 2 (ECF No. 64-5). Mr. Lonergan advises that the pass was subsequently changed again to state "no more than 15 minutes of sun exposure." Id.

The medical record reveals that following his transfer to Desoto Annex in late March 2011, he continued to have the passes which were noted to be "valid." Ex. C at 28-30. He had been "given a straw hat/no prolonged sun exposure pass from 1/21/11 to 1/21/12 and a prescription for sun-screen lotion." Ex. 3 at 8 (ECF No. 64-4). Those passes were renewed in January 2012. Id. at 9.

Contrary to the medical records, Mr. Lonergan declares that after he was transferred to Desoto Correctional Institution, his pass for no more than 15 minutes of sun was "determined invalid and useless." Ex. 4 at 3, ¶4 (ECF No. 64-5).⁷ He states that it became "apparent that [he], as well as others were expected to stand in lines outside for periods of time often exceeding 30 minutes." Id. Nevertheless, Mr. Lonergan said he "went tomedical and was provided a pass for the laundry to manufacture [him] long sleeve shirts and a straw hat." Id. at ¶5. He was also provided sun block SPF-15. Id....