Rosario v. Blakely, Case No. 6:10-cv-353-Orl-36KRS
| Decision Date | 03 January 2013 |
| Docket Number | Case No. 6:10-cv-353-Orl-36KRS |
| Parties | GERARDO ROSARIO, Plaintiff, v. BILLY BLAKELY, et al., Defendants. |
| Court | U.S. District Court — Middle District of Florida |
This case is before the Court on Defendant Marc Awobuluyi's Motion to Dismiss (Doc. No. 129) and Defendants Kendrick Armstrong, Bruce Douglas, Mary Martinez, Edwin Pont, Sandra Roberts, and Richard Wheatley's Motion for Summary Judgment (Doc. No. 150). Plaintiff filed a Response in Opposition to the Motion to Dismiss (Doc. No. 135), a Response in Opposition to the Motion for Summary Judgment (Doc. No. 167), and affidavits in support (Doc. Nos. 168-173). As discussed hereinafter, Defendant Awobuluyi's Motion to Dismiss and Defendants Armstrong, Douglas, Martinez, Pont, Roberts, and Wheatley's Motion for Summary Judgment will be granted.
Plaintiff, a prisoner of the State of Florida proceeding pro se, filed this actionpursuant to 42 U.S.C. § 1983 alleging that Defendants violated his constitutional rights by denying him medical care.2 (Doc. No. 39 at 10.) Plaintiff further alleges a state law claim for medical negligence. Id.
On August 23, 2007, Plaintiff was a pretrial detainee in the Orange County Jail. Id. On that date at approximately 10:00 a.m., Plaintiff's right leg was injured when Defendant Smith forced Plaintiff to the floor and landed on top of him. Id. Plaintiff immediately began to scream in pain that his leg was broken. Id. Plaintiff was taken to his cell in a wheelchair. (Doc. No. 169 at 2.)
Defendant Sandra Roberts, a nurse practitioner, examined Plaintiff immediately after the incident and determined that his leg was not broken because he had a normal range of motion. (Roberts Aff. 2.) As a precaution, however, an x-ray was ordered, and Plaintiff was given Motrin to reduce pain and inflammation. (Roberts Aff. 2.) Defendant Mary Martinez, a registered nurse, also briefly examined Plaintiff at that time and deferred to Defendant Roberts' assessment because Defendant Roberts was the advanced registered nurse practitioner. (Martinez Aff. 2.)
In August 2007, x-rays of Orange County Jail inmates were performed by Mobilex, a private company. (Roberts Aff. at 3.) Mobilex took an x-ray of Petitioner's right leg on August 23, 2007. Id. The x-rays were not given to the Orange County Jail. Id. Instead, a radiologist, Defendant Awobuyuli, employed by Mobilex, reviewed the x-ray and gave theOrange County Jail medical staff a written report. Id. Defendant Awobuyuli's report, which was placed in Plaintiff's medical file, stated that "no fracture or dislocation" was observed but there was "moderate osteoarthritis of the right hip with slight flattening of the femoral head." (Aug. 23, 2007, X-Ray Report.)
Defendant Roberts relied on Defendant Awobuyuli's report in her medical treatment of Plaintiff. (Roberts Aff. 3.) Given her assessment of Plaintiff, coupled with the x-ray report, Defendant Roberts prescribed Plaintiff Robaxin, a muscle relaxer, and Motrin, an analgesic for pain and inflammation. Id. Defendant Roberts believed that Plaintiff's leg was not broken but instead that Plaintiff's pain was muscular or arthritic in nature. Id. at 4.
Defendant Wheatley, a registered nurse, saw Plaintiff four times on August 23-24, 2007, and one time on August 25, 2007. (Wheatley Aff. 2.) In contradiction to Plaintiff's attestations, Defendant Wheatley attested that Plaintiff did not complain at any time that he was in pain, advise him that his leg was broken, or request additional treatment. Id.; see also Doc. No. 168 at 2. Regardless, Defendant Wheatley attested that he had no authority to prescribe medication nor was he involved in any decisions regarding x-rays for Plaintiff. Id. at 3.
Defendant Armstrong, a registered nurse, examined Plaintiff on August 24, 2007, at which time Plaintiff complained of pain and had difficulty moving his right lower extremity. (Armstrong Aff. 2.) Defendant Armstrong notified Defendant Roberts of his observations, and as a result, Defendant Roberts prescribed Robaxin and Motrin forPlaintiff. Id.
Defendant Armstrong examined Plaintiff for several days following the incident, and Plaintiff continued to complain of soreness in his right leg. Id. Likewise, Defendant Martinez saw Plaintiff on September 1, 2007, at which time she noted that he walked to the door by leaning on a bedside table. (Martinez Aff. 3.) Defendant Martinez also saw Plaintiff on September 15, 2007, but she and Plaintiff dispute whether Plaintiff voiced any complaints at that time. Id; see also Doc. No. 170 at 3. Defendant Martinez, as well as, Defendant Armstrong attested that they had no authority to prescribe medication or to order x-rays for patients. (Martinez Aff at 4; Armstrong Aff. 3.)
Defendant Armstrong examined Plaintiff along with Defendant Douglas on September 18, 2007, at which time Plaintiff continued to complain of right leg pain. (Armstrong Aff. 2.) At that time, Defendant Douglas, a nurse practitioner who had also evaluated Plaintiff on August 25, 2007, and was aware of the August 23, 2007 x-ray report, ordered additional x-rays be taken of Plaintiff's leg. (Douglas Aff. 4.)
Mobilex took an x-ray of Petitioner's right leg on September 18, 2007. (Armstrong Aff. 3.) Defendant Jason Liu, a radiologist employed by Mobilex, reviewed the x-ray and gave the Orange County Jail medical staff a written report on September 20, 2007. (Sept. 18, 2007, X-Ray Report.) Defendant Liu's report, which was placed in Plaintiff's medical file, indicated that Plaintiff had an "acute right acetabular fracture." Id. Plaintiff was provided crutches and instructed not to place weight on his right leg. (Armstrong Aff. 3.) Defendant Awobuluyi modified Plaintiff's initial x-ray report on October 8, 2007, to reflectthat "the right acetabular roof fracture is new since 08-23-07." (Aug. 23, 2007 X-Ray Report.)
Defendant Edwin Pont, the medical director for the Orange County Jail, never personally examined Plaintiff. (Pont Aff. 2.) Defendant Pont attested that Defendants would have relied on x-ray reports provided by Mobilex radiologists in directing medical treatment for Plaintiff. Id. at 2-3.
On September 20, 2007, Defendant Douglas referred Plaintiff to an orthopaedist. (Pl. Medical Records.) On September 26, 2007, an orthopaedist recommended a CT scan. (Doc. No. 173-1 at 14.) Thereafter, on October 2, 2007, Plaintiff underwent surgery. (Pl. Medical Records.)
"Summary judgment is appropriate when the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Jean-Baptiste v. Gutierrez, 627 F.3d 816, 820 (11th Cir. 2010) (citing Fed. R. Civ. P. 56). At this stage of the proceedings, "the evidence and all reasonable inferences from that evidence are viewed in the light most favorable to the nonmovant, but those inferences are drawn 'only 'to the extent supportable by the record.'" Id. (quoting Penley v. Eslinger, 605 F.3d 843, 848 (11th Cir. 2010). The burden of establishing that there is no genuine issue of material fact lies on the moving party, and it is a stringent one. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
Rule 56(c)(1) provides as follows:
The nonmoving party, so long as that party has had an ample opportunity to conduct discovery, must come forward with affirmative evidence to support its claim. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257 (1986). "A mere 'scintilla' of evidence supporting the opposing party's position will not suffice; there must be enough of a showing that the jury could reasonably find for that party." Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir. 1990). "An affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated." Fed. R. Civ. P. 56(c)(4). If, after the movant makes its showing, the nonmoving party brings forth evidence in support of its position on an issue for which it bears the burden of proof at trial that "is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249-50 (citations omitted).
When considering a motion to dismiss pursuant to Rule 12(b)(6), the complaint is construed in the light most favorable to the plaintiff and its allegations are taken as true. Erickson v. Pardus, 551 U.S. 89, 93-94 (2007); Quality Foods de Centro America, S.A. v. Latin American Agribusiness Development Corporation S.A., 711 F.2d 989, 994-95 (11th Cir. 1983). A complaint must contain a short and plain statement demonstrating an entitlement to relief, and the statement must "give the defendant 'fair notice of what the plaintiff's claim is and the grounds upon which it rests.'" Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 319 (2007) (quoting Dura Pharmaceuticals, Inc. v. Broudo, 544 U.S. 336, 346 (2005)). Once a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations of the complaint. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 563 (2007).
Previously, the standard provided that a complaint should not be dismissed for failure to state a...
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