256 F.Supp.2d 1326, 16 Fla. L. Weekly Fed. D 279


United States District Court, N.D. Florida,
Panama City Division.

Walter Lamar PATE, Plaintiff,

v.

Michael PEEL, Defendant.

No. 501CV70MCR.

March 31, 2003.
State inmate brought action against prison nurse practitioner, alleging retaliation in violation of the First Amendment and deliberate indifference to his known serious medical conditions in violation of the Eighth Amendment. On inmate's request for stay and motion for judicial notice and nurse practitioner's special report, which would be treated as a motion for summary judgment, the District Court, Rodgers, United States Magistrate Judge, held that: (1) nurse practitioner was entitled to immunity from damages in his official capacities; (2) inmate failed to establish that his filing grievance was a substantial or motivating factor in decision to transfer him to field force duty status; (3) nurse practitioner adequately met burden of showing that he would decided to clear inmate for field force squad, absent inmate's protected conduct of filing grievance; (4) inmate's showing of serious medical needs was insufficient to demonstrate nurse practitioner's response was objectively insufficient; and (5) even assuming inmate satisfied objective prong of standard for medical claims under Eighth Amendment, he failed to demonstrate that nurse practitioner acted with attitude of deliberate indifference.
Request for stay and motion for judicial notice denied; special report, treated as a motion for summary judgment, granted.
*1330 Walter Lamar Pate, pro se.
Caryl Sue Kilsinski, Robert Charles Brannan, Tallahassee, FL, for Defendant.
ORDER


RODGERS, United States Magistrate Judge.
Plaintiff filed this case pursuant to 42 U.S.C. § 1983. He proceeds pro se and in forma pauperis under the terms of the Prison Litigation Reform Act. The matter is before this court upon consent of the parties and referral by the district court pursuant to 28 U.S.C. § 636(c). (Doc. 46). Pending are Defendant's special report (doc. 24), which the court directed Defendant to file in response to Plaintiff's amended complaint (doc. 8), and Plaintiff's reply to the special report (doc. 27).FN1 The court previously advised the parties that Defendant's special report would be treated as a motion for summary judgment under FED.R.CIV.P. 56 and informed them of the importance and ramifications of Rule 56 summary judgment consideration. (Doc. 29).
FN1. Also pending is Plaintiff's Motion for Judicial Notice. (Doc. 51).

Background

Plaintiff, a state inmate at the time he initiated this case,FN2 was housed at Apalachee Correctional Institution (ACI) when the events giving rise to his amended complaint occurred. Plaintiff names as the sole defendant in this action Michael Peel, a nurse practitioner at ACI.
FN2. On November 25, 2002, Plaintiff filed a notice of change of address which indicates that he has been released from custody. (Doc. 56).
Plaintiff sets forth in his amended complaint the following allegations.FN3 In 1985 he was diagnosed as being HIV [human immunodeficiency virus] positive and is currently on a salvaged regimine [sic] of combination therapy, including 15 pills per day to battle this virus """" (Doc. 8 at 7). Since 1998 Plaintiff's medical records have reflected that he also suffers from bashful bladder syndrome (BBS), a condition which prevents him from urinating in public or giving urine samples for drug screens. ( Id.). Additionally, at the time Plaintiff contracted HIV he became infected with Hepatitis C, a liver condition [ ] more critical than any other medical condition he suffers from. ( Id.). Plaintiff began treatment at the Chronic Illness Clinic (CIC) of the Department of *1331 Corrections (DOC) in 1999 for his HIV and Hepatitis C conditions. ( Id.).
FN3. Because Plaintiff's amended complaint is signed under penalty of perjury it is treated as his sworn affidavit. Sammons v. Taylor, 967 F.2d 1533, 1545 n. 5 (11th Cir.1992); Perry v. Thompson, 127 786 F.2d 1093, 1095 (11th Cir.1986). Nevertheless, a verified complaint's allegations are subject to the scrutiny that an affidavit receives from a court when a court is considering a summary judgment motion, i.e., conclusory statements of ultimate facts, conclusions of law, and statements unsupported by personal knowledge are not considered competent evidence to defeat summary judgment. Murrell v. Bennett, 615 F.2d 306, 310 n. 5 (5th Cir.1980).
Defendant was privy to Plaintiff's medical history but purposely disregarded it when he refused on January 8, 2001,FN4 to issue Plaintiff a medical pass regarding his BBS, as required by F.D.O.C. policy. FN5 (Doc. 8 at 8). Plaintiff submitted a grievance with respect to this matter on January 9 which was denied and returned to him on January 19.FN6 ( Id.). On January 22, when Plaintiff presented to the CIC for treatment, Defendant asked him whether he had any concerns regarding the quality of his medical care in light of the grievance and whether he planned to continue to pursue his grievance. ( Id.). When Plaintiff responded [in] the affirmative the defendant became short in response and conveyed a serious attitude. ( Id.). Defendant also informed Plaintiff that his liver profile was elevated to the bad and that [there was] a significant decline in CD[4] blood cells (100) to the bad, which would be monitored closely. ( Id.).
FN4. Although in his amended complaint Plaintiff does not identify the precise date of this event, the undisputed record reflects that Defendant refused to issue the pass on January 8, 2001. (Doc. 24, Exh. K).
FN5. All mentions in this order to the months January, February, March, and April refer to events occurring in the year 2001.
FN6. Plaintiff has attached his January 9 grievance to his amended complaint. ( See doc. 8). In it he cites FLA. ADMIN. CODE 33-602.2045 in support of his claim of entitlement to a BBS pass. Plaintiff complains that he advised Defendant that without the pass he would be subject to punishment and forfeiture of gain time for failing to give a urine specimen for drug testing. He also asks not to be seen by Defendant again because he fear[s] both wrongful treatment [and] direct repercussions from filing a grievance. ( Id.). In denying the grievance, ACI chief medical officer Hau Huynh, M. D., informed Plaintiff that the medical department did not issue passes for BBS but rather that a procedure was in place to accommodate the condition and would be followed. ( Id.).
On January 25 the classification committee changed Plaintiff's job assignment to the field force squad, a position which involved very physically demanding work.FN7 ( Id.). Plaintiff informed the classification supervisor that he had a current, valid pass which restricted him from standing more than fifteen minutes at a time, and he explained that he therefore should not be assigned to such arduous work. ( Id.). The supervisor advised Plaintiff that Defendant had canceled his pass and had cleared him for the field force squad; according to Plaintiff, Defendant must have taken these actions between 22 Jan.-24 Jan. 2001. ( Id.).
FN7. According to a grievance attached to Plaintiff's amended complaint dated February 8 in which he protests his assignment to the field force squad, he previously had been assigned to less strenuous work as a welding aide. ( See doc. 8). Dr. Huynh denied the grievance on February 15.
Plaintiff completed the first and second days of his field force squad assignment on January 30 and 31. The work required him to dig and remove tree stumps weighing over five hundred pounds. ( Id.). The following two days, February 1 and 2, Plaintiff was required to handle approximately 16,800 pounds of potatoes, which included rebagging the potatoes into one hundred-seventy sacks each weighing one hundred pounds, then throwing the sacks onto a truck. ( Id.). The evening of February 2 Plaintiff had severe abdominal pain and swelling in the region of his liver. He declared a medical emergency and was admitted to the ACI infirmary. (Doc. 9). Plaintiff was released from the infirmary the following morning but returned on February 4 complaining of incredible pain. ( Id.). Plaintiff was then transported to Jackson Memorial Hospital for tests, following which he was taken back to the *1332 ACI infirmary. On February 5 Dr. Huynh advised Plaintiff that he was suffering from liver failure and discharged Plaintiff to the dormitory with instructions to rest. ( Id.). On February 6, when Plaintiff continued to experience pain, Dr. Huynh referred him to Chattahoochee State Hospital for additional tests. Upon his return that day Plaintiff was placed in the ACI infirmary until his release to the general population on February 12. At the time of his discharge from the infirmary tests showed that Plaintiff's liver enzymes were seriously elevated. He was issued medical passes which prescribed no prolonged standing and no lifting or pulling over twenty pounds. ( Id.).
Plaintiff asserts two claims: (1) that Defendant retaliated against him for grieving his denial of a medical pass for BBS by removing Plaintiff's existing medical pass and clearing him for assignment to field work; and (2) that Defendant's actions constituted deliberate indifference to his known serious medical conditions. For the alleged violations of his rights under the First and Eighth Amendments FN8 Plaintiff seeks compensatory and punitive damages and a written apology from Defendant.
FN8. Plaintiff also alleges that Defendant violated his substantive due process rights under the 14th Amendment by """ jeopardizing his physical health in retaliation for plaintiff's 1st Amendment use of the grievance process """" (Doc. 8 at 8). The court concludes from this allegation, as well as from others ( see doc. 27 at 5), that Plaintiff seeks to proceed directly under the Fourteenth Amendment and is not simply stating the precept that the First and Eighth Amendments apply to the states through the due process clause of the Fourteenth Amendment. As explained below in the Discussion section of this order, the court only considers Plaintiff's claims under the First and Eighth Amendments.

Also, the court does not consider independently Plaintiff's claims that Defendant's conduct was violative of provisions of the Florida Administrative Code which prohibit retaliation against inmates and which require that inmates be provided with adequate medical care. See FLA. ADMIN. CODE Rules 33-103.017 and 33-602.101(8) (2002). The court concludes that these claims are subsumed in Plaintiff's asserted violations of the First and Eighth Amendments and thus that they do not require separate analysis.
In his special report Defendant argues that Plaintiff has failed to raise even a colorable suspicion of retaliation under the First Amendment.FN9 (Doc. 24 at 16). First, according to Defendant, the evidence demonstrates that his January 22 decision approving Plaintiff for field force duty FN10 was medically appropriate and proper based on Plaintiff's then-current condition. Moreover, Dr. Huynh, who reviewed and denied Plaintiff's February 8 grievance regarding his job reassignment, concurred with Defendant's medical judgment, as did the ACI Senior Health Services Administrator (SHSA). ( Id. at 16, 23, citing Exh. C).FN11 Second, as noted by *1333 the SHSA in Plaintiff's medical record, Plaintiff's grievance regarding the denial of the BBS pass was invalid, indeed was frivolous. The grievance therefore had absolutely no effect on Defendant's decision. ( Id. at 16-17). Defendant's denial of the pass was mandatory, not discretionary, according to DOC directives which did not permit the issuance of a medical pass for BBS. Instead, as required, Defendant noted in the medical record Plaintiff's asserted inability to void in public.FN12 Third, Plaintiff's medical records show that the CIC appointment at which Defendant allegedly was short with Plaintiff in discussing his grievance did not occur on January 22 as Plaintiff alleges. Rather, this appointment took place on January 23, which was after Defendant had already tentatively approved Plaintiff for work on the field force squad on January 22. ( Id. at 18). Defendant maintains that Plaintiff has failed to raise factual allegations sufficient to demonstrate any intent to retaliate and thus that this claim should be dismissed. ( Id. at 19).
FN9. In support of his special report Defendant has submitted copies of Plaintiff's grievances (doc. 24, exhs.A-F), as well as excerpts of Plaintiff's medical records dated from November 1, 2000, through April 18, 2001 ( id., exhs. G-X, AA). In addition, Defendant has submitted his own affidavit and a copy of Plaintiff's change of job classification notice dated January 25. ( Id. at Y and Z, respectively).
FN10. Defendant's clinical entry dated January 22 notes that Plaintiff was HIV positive and received medications three times daily. In clearing Plaintiff for unrestricted duty, Defendant wrote: 1) tentatively approved field force squad 2) will re-evaluate as needed. ( Id., Exh. L).
FN11. Dr. Huynh noted that the decision to approve or deny Classification's request to place you on the field force squad or any other squad is based upon review and evaluation of your current health status. Although you have [an] extensive and complex past health history, your current status has actually been quite good. ( Id.).
FN12. Defendant attaches to his special report a DOC policy recommendation which states that inmates should not be provided with bashful bladder passes but rather that the inmate's claim should simply be documented in his medical record. (Doc. 27, Exh. Y, Att.A). In addition, Defendant has supplied a copy of the DOC's Procedure 602.010, Bashful Bladder Procedure, which outlines the steps to be taken to obtain a urine specimen from an inmate who claims that he suffers from BBS. ( Id., Exh. Y, Att. C).
Defendant argues that Plaintiff's Eighth Amendment claim also fails. Defendant contends that the evidence does not show that he disregarded a serious risk of harm to Plaintiff and that at most it simply demonstrates a difference in medical opinion. ( Id. at 22). His decision to approve Plaintiff for work was based on his professional opinion that Plaintiff's medical condition permitted it: Plaintiff had a very muscular physique due to weight lifting; his conditions did not automatically preclude performing physical labor; and his medical records indicated that his conditions were stable at that time. ( Id.). Moreover, Defendant specified on the record that his approval was tentative and would be re-evaluated as necessary. Additionally, Dr. Huynh and the SHSA agreed with Defendant's work assignment decision. ( Id. at 23). Dr. Huynh also opined in an April 3 entry in Plaintiff's medical records that there was no connection between Plaintiff's placement on the field force squad and any aggravation of his HIV or Hepatitis C conditions. ( Id. at 25, citing Exh. W). Defendant also maintains that, contrary to Plaintiff's assertion, he did not assign Plaintiff to the field force squad; instead, although he approved placement for such an assignment, the final determination actually was made by the classification committee. Defendant maintains that the evidence shows that he was not deliberately indifferent to Plaintiff's serious medical condition and thus that his conduct was not violative of the Eighth Amendment.
Defendant also asserts his entitlement to Eleventh Amendment immunity and qualified immunity with regard to both of Plaintiff's claims, and he contends that Plaintiff is not entitled either to compensatory or punitive damages. ( Id. at 28).
Plaintiff filed a reply to Defendant's special report, which includes a declaration, a supplemental brief, and his own affidavit. (Doc. 27 at 1-3, 4-19, and 19-22, respectively, as numbered by the court). Plaintiff has also submitted additional medical records, including laboratory results from October 2000, from January-April 2001, and from as recently as October 2001. ( Id. at 42-60). Attached to the reply are certain other records as well, such as an ACI change of classification notice dated July 8, 1999, assigning Plaintiff to work as a welder,*1334 and one dated February 20 reassigning Plaintiff to work as a welder from his former position on the field force squad. ( Id. at 25-60). For the most part Plaintiff's declaration, supplemental brief, and affidavit simply reiterate the allegations made in the amended complaint. Plaintiff also asserts that his ability to work, even after his release from incarceration, has been compromised by liver damage which he sustained as a result of the strenuous labor he was required to perform on the field force squad. Additionally, in his brief Plaintiff contends that Defendant has manipulated his extensive medical record of nearly 2000 pages by selectively presenting only certain documents with his special report. According to Plaintiff, he was treated by numerous specialists, whose prescribed treatments and passes Defendant fully complied with until the January 2001 events complained of in this action. ( Id. at 10). Plaintiff asserts that Defendant misrepresented facts and made perjur[iou]s statements in his special report and affidavit. ( Id.). Plaintiff submits that for these reasons the court should not grant summary judgment in Defendant's favor or, in the alternative, that it should stay this matter until necessary information is obtained by him through discovery. ( Id. at 19).
Legal Standards

Summary Judgment

A motion for summary judgment should be granted when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. FED.R.CIV.P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). A factual dispute is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A fact is material if it might affect the outcome of the suit under the governing [substantive] law. Id.; accord Tipton v. Bergrohr GMBH-Siegen, 965 F.2d 994, 998 (11th Cir.1992). Evidence presented in opposition to the motion for summary judgment, and all factual inferences arising from it, must be viewed in the light most favorable to Plaintiff. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970); Jones v. Cannon, 174 F.3d 1271, 1281 (11th Cir.1999). To overcome a motion for summary judgment, the non-moving party must either point to evidence in the record or present additional factual evidence sufficient to withstand a directed verdict motion at trial based on the alleged evidentiary deficiency. Celotex, 477 U.S. at 324, 106 S.Ct. 2548; Hammer v. Slater, 20 F.3d 1137, 1141 (11th Cir.1994) ( en banc ).
Qualified Immunity