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Sanchez v. United States

United States District Court, N.D. Alabama, Eastern Division

January 30, 2015

DELFINO GONZALEZ SANCHEZ, Plaintiff,
v.
UNITED STATES OF AMERICA, et al., Defendants

Delfino Gonzalez Sanchez, Plaintiff, Pro se, Porterville, CA.

For United States of America, Federal Bureau of Prisons, John T Rathman, Warden, Dr Mark Holbrook, Dr.; Clinical Director, Defendants: Carolyn Williams Steverson, U.S. ATTORNEY'S OFFICE, Birmingham, AL; Don B Long, III, United States Attorney's Office - NDAL, Birmingham, AL.

REPORT AND RECOMMENDATION

JOHN E. OTT, Chief United States Magistrate Judge.

The plaintiff, Delfino Gonzales Sanchez, was a federal inmate at Talladega Federal Correctional Institution (T.F.C.I.) in Talladega, Alabama, when he filed this pro se action pursuant to Bivens v. Six Unknown Named Agents of the Federal Bureau of Investigation, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), and the Federal Tort Claims Act (FTCA) on March 21, 2013. (Doc. 1).[1] He names the United States of America, the Federal Bureau of Prisons, Warden John T. Rathman, and Clinical Director Dr. Mark Holbrook as defendants, and claims the defendants were deliberately indifferent to his serious medical needs, and committed " medical malpractice/neglect, " both of which resulted in the loss of vision in his right eye. (Id. at 1-2). The plaintiff seeks a jury trial and monetary damages. (Id. at 1). In accordance with the usual practices of this court and 28 U.S.C. § 636(b)(2), the complaint was referred to the undersigned magistrate judge for a preliminary report and recommendation. See McCarthy v. Bronson, 500 U.S. 136, 111 S.Ct. 1737, 114 L.Ed.2d 194 (1991).

I. Procedural History

On October 7, 2013, the court entered an Order for Special Report directing that copies of the complaint be forwarded to Warden John T. Rathman and Dr. Mark Holbrook, and requesting they file a special report addressing the factual allegations contained therein. (Doc. 15). The defendants were advised the special report could be submitted under oath or accompanied by affidavits and, if appropriate, would be considered as a motion for summary judgment filed pursuant to Rule 56 of the Federal Rules of Civil Procedure. By the same Order, the plaintiff was advised that after he received a copy of the special report submitted by the defendants he should file counter affidavits if he wished to rebut the matters presented by the defendants in the special report. The plaintiff was further advised that such affidavits should be filed within twenty days after receiving a copy of the defendants' special report.

On October 28, 2013, the undersigned entered an order clarifying that the defendants were to respond to the plaintiff's Bivens and FTCA claims. (Doc. 18). On March 5, 2014, the defendants filed a partial response to the Order for Special Report which addressed only the plaintiff's Bivens claims. (Doc. 27). Simultaneously therewith, the defendants moved for leave to file the partial response, asserting the " FTCA claims require[d] additional review." (Doc. 28). On April 15, 2014, the defendants' motion for leave was denied, and they were ordered " to file a special report or otherwise respond to Plaintiff's FTCA claims within thirty (30) days of the" entry date of the order. (Doc. 29 at 2). Defendants Rathman and Holbrook were also ordered to sign and return a waiver of service within the same time period. (Id.).

On May 14, 2014, the defendants filed an Answer to the plaintiff's FTCA claim. (Doc. 30). On May 15, 2014, defendants Rathman and Holbrook filed signed waivers of service of process. (Doc. 31-1, 31-2).

On May 16, 2014, the court entered an order construing the defendants' special report as a motion for summary judgment. (Doc. 32). In the same order, the plaintiff was notified that he would have twenty days to respond to the motion for summary judgment, filing affidavits or other material if he chose. (Id.). He also was advised of the consequences of any default or failure to comply with Fed.R.Civ.P. 56. See Griffith v. Wainwright, 772 F.2d 822, 825 (11th Cir. 1985). The plaintiff did not file a response.

II. SUMMARY JUDGMENT STANDARD OF REVIEW

Since the defendants filed an answer to the plaintiff's FTCA claim, the only claims being considered for summary judgment review are the plaintiff's Bivens claims. To that end, the court must determine whether the moving parties, the defendants, are entitled to judgment as a matter of law as to the Bivens claims.

Summary judgment may be granted only if there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law. Federal Rule of Civil Procedure 56 . In making that assessment, the court must view the evidence in a light most favorable to the non-moving party and must draw all reasonable inferences against the moving party. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The burden of proof is upon the moving party to establish his prima facie entitlement to summary judgment by showing the absence of genuine issues and that he is due to prevail as a matter of law. See Clark v. Coats & Clark, Inc., 929 F.2d 604 (11th Cir. 1991). Once that initial burden has been carried, however, the non-moving party may not merely rest upon his pleading, but must come forward with evidence supporting each essential element of his claim. See Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Barfield v. Brierton, 883 F.2d 923 (11th Cir. 1989). Unless the plaintiff, who carries the ultimate burden of proving his action, is able to show some evidence with respect to each element of his claim, all other issues of fact become immaterial, and the moving party is entitled to judgment as a matter of law. See Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Bennett v. Parker, 898 F.2d 1530 (11th Cir. 1990). As the Eleventh Circuit has explained:

Facts in dispute cease to be " material" facts when the plaintiff fails to establish a prima facie case. " In such a situation, there can be 'no genuine issue as to any material fact, ' since a complete failure of proof concerning an essential element of the non-moving party's case necessarily renders all other facts immaterial." Thus, under such circumstances, the public official is entitled to judgment as a matter of law, because the plaintiff has failed to carry the burden of proof. This rule facilitates the dismissal of factually unsupported claims prior to trial.

Bennett v. Parker, 898 F.2d at 1532 (citations omitted).

III. Facts

The following facts are undisputed, or if disputed, taken in a light most favorable to the plaintiff.

The plaintiff became an inmate at T. F.C.I. on or about May 11, 2009. (Doc. 1 at 2). A vision screen conducted on May 12, 2009, showed the plaintiff's distance and near vision in his right eye were 20/100. (Id., Exhibit D at 29). On October 22, 2009, the plaintiff was seen in sick call, where he complained of irritation in his right eye, with special sensitivity to cold and hot air. (Doc. 27-2 at 8). A mid-level practitioner (MLP) examined him, and noted " bilateral pterygium[2] extending to the cornea." (Id.). The plaintiff was " [a]advised to purchase Visine from the commissary." (Id. at 9).

On June 8, 2010, the plaintiff reported to sick call again. (Doc. 27-3 at 2). He complained he could " not see too far[, o]bjects in the distance appear blurry, " and that his eyes watered in the mornings. (Id.). He was not in pain, but stated " [t]his has been going on for 2 years." (Id.). Dela Cruz noted the plaintiff's bilateral pterygium, and an unspecified " disorder of refraction and accommodation, " which she characterized as chronic. (Id. at 3). His visual acuity in the right eye was 20/50 and 20/30 in the left eye. (Id.). Cruz made a consultation request for an evaluation and possible eyeglass prescription. (Id.). Cruz also " [e]xplained pterygium, the " course of treatment" for it and the optometry referral, whereupon the plaintiff verbalized understanding. (Id. at 16).

On November 9, 2010, the plaintiff filed a medical request, complaining, " I'm having problems with my eye [and] it's getting wors[e]. I can[] har[dly] see out of it. I need to see a[n] eye doctor as soon as possible." (Doc. 1, Exhibit C at 19). On November 19, 2010, Nurse Dela Cruz instructed the plaintiff to " watch the callout" because he was being referred to an optometrist. (Id.).

According to notes made by Dr. Holbrook, on January 19, 2011, the plaintiff was examined by " optometry." (Doc. 27-4 at 18). He was diagnosed " with increased IOP, [3] presbyopia, [4] and pterygium . . . . [The optometrist] recommended Naphcon A and timolol.[5] He also requested f/u in 1 week for recheck of IOP." (Id.). On January 26, 2011, the plaintiff's IOP was rechecked, and there are no notations of any abnormalities. (Id. at 16).[6]

The medical record contains a billing receipt that includes the plaintiff's eyeglass prescription with process dates in February and March 2011. (Doc. 27-4 at 31). The plaintiff received his glasses on April 12, 2011. (Doc. 1, Exhibit C at 21). The next day, he filed a medical request concerning the glasses, stating they " are not helping me to see. I can't see out of my right eye." (Id.). He asked to be rechecked by a doctor. (Id.). On April 14, 2011, MLP Cruz responded that his prescription was based on the examination findings, and asked that the plaintiff " allow time for continuous use for better results." (Id.).

On May 9, 2011, the plaintiff penned another medical request asking to see an eye doctor. (Id. at 20). He stated that he could " no longer see out of [his] right eye[, ] it's gone." (Id.). He also complained he could barely see out of his left eye with the glasses." (Id.). He ended by writing, " I need to see somebody soon this is no game." (Id.). On May 11, 2011, the plaintiff was seen by MLP Marsigan, who reported the plaintiff stated he could not see very well out of his right eye. (Doc. 27-4 at 15). Marsigan provisionally diagnosed the problem as an " error of refraction" and referred the plaintiff to an " eye doctor for evaluation." (Id.).

On June 1, 2011, the plaintiff was seen again by MLP Hernani, and the plaintiff reported an " inability to see with his right eye which started about 7 weeks" earlier. (Id. at 14). The plaintiff was not in pain. (Id.). Hernani checked the plaintiff's IOP, and also reported he " could not see the letters" in his right eye. (Id.). Although the plaintiff had already been referred to optometry, Hernani requested that he be sent to an ophthamologist to rule out " partial-blindness." (Id.).

The plaintiff alleges the " injury to his eye occurred on or around July 2011. (Doc. 1 at 2). The records for that month show that on July 12, 2011, the plaintiff filed a request for administrative remedy in which he complained about the delay in care regarding his right eye, that he could not see from that eye, and that the deterioration had been rapid and painful. (Id., Exhibit B, at 12). He also requested treatment. (Id.).

An attempt at informal resolution failed on July 18, 2011, because the suggestion was for the plaintiff to see the physician's assistant, and the plaintiff stated he already had done so without result. (Doc. 27-10 at 3). The plaintiff requested a BP-9 form. (Doc. 1, Exhibit A at 8). On August 3, 2011, Warden Rathman responded that he received the plaintiff's administrative request on July 22, 2011. (Id., Exhibit B, at 13). Rathman informed the plaintiff that " [b]ased on a review of your medical records, a consultation has been submitted and approved for your referral. You[r] appointment has been scheduled." (Id.).

On August 5, 2011, the plaintiff was seen by Dr. Kahn, an ophthamologist. (Doc. 27-1 at 3; 27-4 at 11). Kahn diagnosed the plaintiff with an old retinal detachment in his right eye, and recommended referral to the Eye Foundation for evaluation and treatment " ASAP." (Doc. 27-4 at 11-13, 28). On August 22, 2011, the plaintiff was seen by an ophthamologist at the Eye Foundation." (Doc. 27-1 at 3). In his administrative notes, Dr. Holbrook wrote that he had reviewed the August 22, 2011, ophthamology report[7] and its recommendations that the plaintiff be given artificial tears and brought " back to the next available Retinal Clinic for decision regarding RD repair." (Doc. 27-4 at 8).

On September 26, 2011, the plaintiff reported to MLP Marsigan that he had headaches associated with his right eye. (Doc. 27-4 at 6-7). On October 27, 2011, the plaintiff was seen by an optometrist, and reported that his vision had worsened " in the last month." (Id. at 2-5). The optometrist referred the plaintiff " back to [the] Eye Foundation Hospital to follow-up with Ophthamologist regarding whether a [retinal] re-attachment procedure is necessary at this time." (Id. at 3). He informed the plaintiff, and the plaintiff understood that the referral to the Eye Foundation was " to determine whether or not surgery would improve his vision at all." (Id.). The optometrist commented that the referral was medically necessary, but non-emergent. (Doc. 27-7 at 19). An " ophthalomogy f/u" was approved on November 2, 2011. (Id. at 30).

On January 4, 2012, the plaintiff asked to know " if he had been schedule[d] for [an] operation, " and that he had not heard anything since November 2011. (Doc. 1, Exhibit C at 22). On January 10, 2012, MLP Cruz responded that a consult had been approved for a follow up with " the ophthalmogist/retina specialist. You are currently awaiting scheduling." (Id.).

On February 8, 2012, the plaintiff was taken for a consult with Dr. Kazi, an ophthamologist in Anniston, Alabama. (Id., Exhibit D at 24). In his letter, Dr. Kazi reported that he examined the plaintiff on February 8, 2012, and expressed that he understood the plaintiff had been referred to him " for evaluation to see if a referral back to [the] Eye Foundation in Birmingham is needed for a re-attachment procedure." (Id.). Kazi diagnosed the plaintiff with chronic retinal detachment and cataracts. (Id.). He referred the plaintiff to " Retinal Consultants Birmingham for treatment." (Id.).

When the plaintiff returned from his visit with Dr. Kazi, MLP Cruz acknowledged Kazi's diagnosis of chronic retinal detachment and his " recommendation" that the plaintiff " be referred to Birmingham for treatment." (Doc. 27-6 at 18). In turn, Cruz and Dr. Holbrook recommended another " follow-up for evaluation for decision regarding RD repair." (Id. at 18-19). The next day, the recommendation was approved. (Doc. 27-7 at 23). Holbrook attests that this " consult should have gone to the retinal specialists in Birmingham, but instead was scheduled with the Ophthalmologist again." (Doc. 27-1 at 3). Therefore, the plaintiff was seen again by an ophthalmogist instead of a retinal specialist at the Eye Foundation in Birmingham on March 20, 2012. (Id. at 3-4). There were no formal clinic notes from the Eye Foundation for this date. (Doc. 27-6 at 16). Instead there was an annotation on the consultation sheet that reads: " Funnel MAC of RD, to f/u with Retina (RSA) -- Doyle, M.D." (Id.). MLP Paco noted that the Foundation would have to be called " as to the plan for this patient." (Id.).

On May 4, 2012, the plaintiff awoke completely blind in his right eye. (Doc. 1, Exhibit A at 10). On that date, he requested an administrative remedy for adequate medical care for his eye, complained of lengthy delays in treatment, and asserted that he was now blind and in pain. (Doc. 27-11 at 7-8). On May 8, 2012, the plaintiff filed an administrative tort claim against MLP Cruz, Dr. Holbrook. (Doc. 1, Exhibit A at 8-10).

On May 10, 2012, MLP Cruz and Holbrook signed an administrative note stating that the plaintiff needed a " Retinal Specialist" consult at the " Eye Foundation for chronic retinal detachment of the right eye." (Doc. 27-6 at 14).

On May 23, 2012, Warden Rathman's office received the plaintiff's May 4, 2014, administrative remedy request. (Doc. 27-11 at 7-8). On May 30, 2012, Rathman responded that he had examined the plaintiff's medical records since 2009, that plaintiff was being afforded medical care, and that a follow-up had " been approved and currently scheduled." (Id. at 6). The same day, the plaintiff filed an inmate medical request complaining about his eyes, stated that he was having severe headaches and that he needed " EMERGENCY!!!!" attention. (Doc. 27-7 at 16).

On June 1, 2012, the plaintiff filed an appeal from the Warden's response, complaining that he began requesting medical care for his eye on November 9, 2010, but " [u]necessary delays" kept him from an " optometrist" until " 2011." (Doc. 1, Exhibit B, at 14). He admitted his vision was not initially good, but it was now gone. (Id.). He stated " the trips in-between visits to the Eye Foundation were often months apart when retinal surgery was indicated, and again, a follow up was recommended back in March of this year[, ] [but] he had not been seen" even though he was suffering from headaches. (Id.). He stated that he needed " surgery now if it is not too late." (Id.).

On June 5, 2012, he was seen at the prison clinic for headaches related to his eyes and the notes state that he is scheduled to see a retina specialist soon. (Doc. 27-6 at 11-12). On June 8, 2012, the plaintiff was seen at the Callahan Eye Foundation, and on June 26, 2012, had surgery on his right eye for retinal detachment and cataract. (Id. at 5-10; Doc. 27-1 at 4).

The plaintiff characterizes himself as having to be " rushed to surgery" on June 26, 2012, but does not explain this assertion or provide any evidence in support thereof. (Doc. 1 at 3). Medical records show that on June 8, 2012, the Callahan Eye Foundation requested the surgery be performed on June 26, 2012. (Doc. 27-7 at 13).

The plaintiff alleges that by the time he had surgery, " [u]nfortunately" the damage had been done." (Doc. 1 at 3). As proof thereof, he contends that on March 20, 2012, his Spanish interpreter to him the " doctor" [8] said " that the procedure had been delayed too many times to save my right eye." (Id., Exhibit A at 10). However, the plaintiff does not reveal the name of the physician, has not provided an affidavit from the physician or interpreter, and none of the medical records contain such a conclusion.

The plaintiff makes no allegations concerning the quality of medical care he received after surgery. The operation initially improved the plaintiff's vision by 60 percent. (Doc. 27-1 at 4). However, in the months that followed, the plaintiff suffered pain and irritation in his eye, and loose suture. (Id.). The plaintiff was counseled, treated and afforded numerous follow-up appointments with prison medical staff, optometrists and ophthalmogists. (Id.).

In September 2012, the Callahan Clinic reported that the retina had likely atrophied and he had " poor visual potential." (Id.). The plaintiff was continued on eye medications. (Id.). In February 2013, an optometrist noted retinal detachment, worsening symptoms and referred plaintiff to an ophthamologist immediately. (Id.). He was seen at the Eye Foundation a few days later and the plaintiff's " recent vision loss was attributed to an inflammatory membrane over the implant in the right eye." (Id.). He was sent to a retinal specialist on April 17, 2013, who recommended a six month follow up and reading glasses. (Id.). By June 2013, plaintiff was taken off medications. (Id.).[9]

IV. Analysis

A. Defendants United States of America and Federal Bureau of Prisons

It is well settled that a Bivens claim for damages does not lie against the United States or its agencies. F.D.I.C. v. Meyer, 510 U.S. 471, 477-80, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994) (a Bivens action is not cognizable against the United States and federal agencies); Correctional Services Corp. v. Malesko, 534 U.S. 61, 70, 122 S.Ct. 515, 151 L.Ed.2d 456 (2001) (" The purpose of Bivens is to deter individual federal officers from committing constitutional violations.") (emphasis added). Accordingly, to the extent the plaintiff may be attempting to name defendants United States and the Federal Bureau of Prisons as defendants in his Bivens action, they are due to be dismissed.

B. Dr. Mark Holbrook and Warden Rathman

1. Official Capacity

To the extent the plaintiff may be requesting monetary damages for his constitutional claims against defendants Holbrook and Rathman in their official capacities, the claims are due to be dismissed. A Bivens suit against each of these defendants in their official capacities is in essence a lawsuit against the federal government and its agencies. See F.D.I.C. v. Meyer, 510 U.S. at 484-486; Lewis v. Charlotte Correctional Inst. Employees, 589 F.App'x 950, 2014 WL 5293401, at *2 (11th Cir. 2014) (holding that a Bivens claim against the Postmaster General in his official capacity " is construed as a claim against the United States Postal Service, " and therefore not cognizable). As set out supra, such a lawsuit cannot lie.

The remainder of this report and recommendation presumes defendants Holbrook and Rathman are sued in their individual capacities.

2. Individual Capacity

a. Eighth Amendment

As a general matter, medical treatment violates the Eighth Amendment only when it is " 'so grossly incompetent, inadequate or excessive as to shock the conscience or to be intolerable to fundamental fairness.'" Harris v. Thigpen, 941 F.2d 1495, 1505 (11th Cir. 1991) (quoting Rogers v. Evans, 792 F.2d 1052, 1058 (11th Cir. 1986)). The conduct of prison officials must run counter to evolving standards of decency or involve the " unnecessary and wanton infliction of pain" to be actionable under § 1983. Estelle v. Gamble, 429 U.S. 97, 105-06, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976).

As such, negligent diagnosis or treatment of a medical condition does not constitute a wrong under the Eighth Amendment. Estelle, 429 U.S. at 106. Likewise, a mere difference of opinion between an inmate and the prison medical staff as to treatment or diagnosis will not, alone, give rise to a cause of action under the Eighth Amendment. Harris, 941 F.2d at 1505. Indeed,

[d]eliberate indifference to a [prisoner's] serious medical needs requires 1) an objectively serious medical need and 2) a defendant who acted with deliberate indifference to that need. See Burnette [v. Taylor], 533 F.3d [1325] at 1330 [(11th Cir. 2008)]. A " serious medical need" is " one that is diagnosed by a physician as requiring treatment or one that is so obvious that a lay person would recognize the need for medical treatment." Id. For liability, the defendant must 1) have subjective knowledge of a risk of serious harm, 2) disregard that risk, and 3) display conduct beyond gross negligence. Id.
Deliberate indifference may result not only from failure to provide medical care at all, but also from excessive delay: " Even where medical care is ultimately provided, a prison official may nonetheless act with deliberate indifference by delaying the treatment of serious medical needs." McElligott v. Foley, 182 F.3d 1248, 1255 (11th Cir. 1999).

Pourmoghani-Esfahani v. Gee, 625 F.3d 1313, 1317 (11th Cir. 2010).

i. Dr. Mark Holbrook

Dr. Holbrook admits that the plaintiff had an objectively serious medical need. (Doc. 27-1 at 5). Accordingly, there are no disputed issues of material fact regarding this issue.

Holbrook also admits that there was " some delay in [the plaintiff] getting surgery due to scheduling difficulties, " [10] and because he was seen " at the Eye Foundation by the regular ophthalmologist and the local ophthalmologist instead of the retina specialist." (Id.). However, Holbrook denies the delay " was intentional" or that he was " deliberately indifferent to [the plaintiff's] serious medical condition[, ]" and points to the fact that the plaintiff " was seen on multiple occasions by physicians, mid-level practitioners, optometrist, and ophthalmologist clearly made to place follow up consultations and to follow their recommendations." (Id.).

In his complaint, the plaintiff alleges there were many delays in his care, but asserts that they were for " non-medical reasons; " namely, Dr. Holbrook's

attempt to save money by not adequately treating a prisoner's medical condition when such treatment is mandated. [He] argues that immediate eye surgery was mandated as soon as the eye condition was recognized by medical staff. His eye was red and swollen as any layman could see and recognize the need for care.

(Doc. 1 at 5). Yet, " he had to beg and plead with Dr. Holbrook and others to get some help." (Id.). He declares that the records and affidavit attached to his complaint " demonstrate that [he] was not treated in a timely manner and his blindness is the result of needless delays, " but does not dispute the validity of the comprehensive medical records provided by defendant Holbrook. (Id.).

The plaintiff's contention that the delay in his care was for monetary reasons is conclusory and unsupported. Moreover, the plaintiff does not identify the date " medical staff" recognized his red and swollen eye demanded immediate eye surgery, but deliberately refused to provide it. The plaintiff's assertion that a layperson would know he needed immediate surgery because his eye was red and swollen is wholly unsupported and belied by the medical records.

Even when the plaintiff's complaint, his exhibits, and the medical records provided by the defendants are viewed in a light most favorable to him, he has not met his burden to show that the delays he endured were the product of Dr. Holbrook's deliberate indifference to his serious medical need.

Based upon his complaint, the plaintiff first made a medical request concerning his right eye vision problems in November 2010, and the " injury to his eye occurred on or around July 2011." (Doc. 1 at 2). He does not dispute that he was examined by an optometrist on January 19, 2011, and that he was not diagnosed with a retinal detachment at that time. (Doc. 27-4 at 18). He registered no more complaints about his eye until the day after he received his new eyeglasses on April 12, 2011, when he complained he could not see well out of his right eye. (Doc. 1, Exhibit C at 21). He was instructed to allow adjustment by continuous wear. (Id.).

After complaining in May 2011 that he could not see out of his right eye, a mid-level practitioner referred him to an optometrist for an error in refraction. (Id. at 20; Doc. 27-4 at 15). When he complained again in June 2011, a second mid-level practitioner noted the optometry referral, examined and discovered the plaintiff could not read from the right eye, and referred him to an ophthalmologist. (Doc. 27-4 at 15).

The first complaint made by the plaintiff in July 2011, the month he alleges his injury occurred, was on July 12, 2011, where, in a request for administrative remedy, he expressed displeasure with the delay in care and stated his eye was painful and had deteriorated rapidly. (Doc. 1, Exhibit B, at 12). By August 5, 2011, he was seen by ophthalmologist Dr. Kahn, who diagnosed an old retinal detachment in his right eye, and recommended referral to the Eye Foundation for evaluation and treatment " ASAP." (Doc. 27-4 at 11-13, 28).

Less than two weeks later, on August 22, 2011, an ophthamologist at the Eye Foundation examined the plaintiff and recommended that he brought " back to the next available Retinal Clinic for decision regarding RD repair." (Doc. 27-4 at 8). Holbrook does not attest that any steps were taken at this time to schedule an appointment. (Doc. 27-1 at 3). An " ophthalomogy f/u" was approved on November 2, 2011, but in the interim, the plaintiff complained of decreasing vision on September 26, 2011, and October 27, 2011, the latter of which resulted in a second recommendation for an ophthalmic appointment. (Doc. 27-4 at 6-7; Doc. 27-7 at 19).

As of January 10, 2012, the plaintiff was informed that he was " currently awaiting scheduling." (Doc. 27-1 at 3). On February 8, 2012, the plaintiff was taken for a consult with Dr. Kazi, an ophthamologist in Anniston, Alabama. (Doc. 1, Exhibit D at 24). After examination, Kazi diagnosed the plaintiff with chronic retinal detachment and cataracts. (Id.). For the second time, the plaintiff was referred to " Retinal Consultants Birmingham for treatment." (Id.). The next day, Dr. Holbrook approved the recommendation. (Doc. 27-7 at 23).

This " consult should have gone to the retinal specialists in Birmingham, but instead was scheduled with the Ophthalmologist [at the Eye Foundation]" again. (Doc. 27-1 at 3-4). When plaintiff returned from his March 20, 2012, appointment, there was only an annotation on the consultation sheet that reads: " Funnel MAC of RD, to f/u with Retina (RSA) -- Doyle, M.D." (Id.). MLP Paco noted that the Foundation would have to be called " as to the plan for this patient." (Id.).

On May 4, 2012, the plaintiff awoke completely blind in his right eye (doc. 1, Exhibit A at 10), and filed an administrative remedy for adequate medical care for his eye, complained of lengthy delays in treatment, and asserted that he was now blind and in pain. (Doc. 27-11 at 7-8). On May 8, 2012, the plaintiff filed an administrative tort claim against MLP Cruz, Dr. Holbrook. (Doc. 1, Exhibit A at 8).

On May 10, 2012, nearly six weeks after the plaintiff's appointment with Dr. Doyle, MLP Cruz and Holbrook signed an administrative note stating that the plaintiff needed a " Retinal Specialist" consult at the " Eye Foundation for chronic retinal detachment of the right eye." (Doc. 27-6 at 14). On June 8, 2012, the plaintiff was seen by a retinal specialist at the Callahan Eye Foundation, and on June 26, 2012, had surgery on his right eye for retinal detachment, cataract and pterygium. (Id. at 5-10; Doc. 27-1 at 4).

Even when the foregoing facts are viewed in a light most favorable to the plaintiff, neither his allegations or the evidence are sufficient to create a genuine dispute regarding of material fact as to his claim from November 2010 until July 12, 2011, the date the plaintiff alleges the injury occurred. He was seen by an ophthalmologist on August 5, 2011, and when prison officials were instructed to refer the plaintiff to the Eye Foundation as soon as possible, the plaintiff was examined in Birmingham less than three weeks later, on August 22, 2011, and it was recommended he be referred to a retinal specialist.

Admittedly, there was over a two month delay between August 22, 2011, and the date Dr. Holbrook approved the referral on November 2, 2011. There were also additional delays because, as admitted by Holbrook, the plaintiff should not have been referred to another local ophthalamologist on February 8, 2012, and should have been referred to a retinal specialist instead of an ophthalmologist at the Eye Foundation on March 20, 2012. Moreover, prison officials did not follow up on the March 20, 2012, consultation, and it was not until May 10, 2012, that Holbrook finally was clear that the plaintiff needed a retinal detachment specialist. The plaintiff was seen by that specialist on June 8, 2012, and received surgery on June 26, 2012. As such, although Holbrook had a referral to a retinal specialist on August 22, 2011, the plaintiff was not seen by such a specialist until June 8, 2012, due to continued, improper referrals to ophthalmogists. Holbrook also attests there were scheduling difficulties, and the plaintiff has not refuted this fact.

The plaintiff has not put forth sufficient evidence to dispute Dr. Holbrook's assertion that the delays at issue were the product of deliberate indifference to a serious medical need by providing less efficacious treatment for non-medical reasons, instead of errors that are more akin to negligence. Accordingly, defendant Holbrook's motion for summary judgment as to the plaintiff's Eighth Amendment Bivens claim is due to be granted, and the claim dismissed with prejudice.

ii. Warden Rathman

The plaintiff alleges Warden Rathman did not intervene in his behalf because he too, wanted to delay the plaintiff's treatment for non-monetary reasons. (Doc. 1 at 5). As set out supra, this is a conclusory and factually unsupported assertion. Moreover, the plaintiff has named Warden Rathman as a defendant in his supervisory capacity through the concept of respondeat superior . However, " [t]here is no respondeat superior liability under § 1983." Harris v. Ostrout, 65 F.3d 912, 917 (11th Cir. 1995) (citing Monell v. Dep't of Social Services, 436 U.S. 658, 690-92, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978) and LaMarca v. Turner, 995 F.2d 1526, 1538 (11th Cir. 1993)). " The standard by which a supervisor is held liable in her individual capacity for the actions of a subordinate is extremely rigorous." Braddy v. Florida Dept. of Labor and Employment Security, 133 F.3d 797, 802 (11th Cir. 1998). Supervisory personnel may be held accountable for the constitutional violations of their subordinates upon proof that they (1) were directly involved in the wrongdoing; (2) failed to remedy a wrong after learning of it through report or appeal; (3) created or allowed a policy under which the violation occurred; or (4) were grossly negligent in managing the subordinates who caused the wrongdoing. Williams v. Smith, 781 F.2d 319, 323 (2d Cir. 1986).

Warden Rathman was not directly involved in the medical care of the plaintiff, and the undisputed records clearly show that on each of the two occasions the plaintiff complained about the quality of his medical care, defendant Rathman[11] responded to him in a timely manner and informed him that the plaintiff was to be evaluated soon by an opthamologist and retinal specialist. On the first occasion, sometime between July 18, 2011 and July 22, 2011, the plaintiff filed a BP-9 request for administrative remedy directed to Warden Rathman. (Doc. 1, Exhibit (Id.). On August 3, 2011, Warden Rathman responded that he received the plaintiff's administrative request on July 22, 2011. (Id., Exhibit B, at 13). Rathman informed the plaintiff that " [b]ased on a review of your medical records, a consultation has been submitted and approved for your referral. You[r] appointment has been scheduled." (Id.). Two days later, on August 5, 2011, the plaintiff was seen by Dr. Kahn, an ophthamologist. (Doc. 27-1 at 3; 27-4 at 11).

The second occasion began on May 4, 2012, when the plaintiff awoke completely blind in his right eye. (Doc. 1, Exhibit A at 10). On that date, he requested an administrative remedy for adequate medical care for his eye, complained of lengthy delays in treatment, and asserted that he was now blind and in pain. (Doc. 27-11 at 7-8). On May 23, 2012, Warden Rathman's office received the plaintiff's May 4, 2014, administrative remedy request. (Doc. 27-11 at 7-8). On May 30, 2012, Rathman responded that he had examined the plaintiff's medical records since 2009, that plaintiff was being afforded medical care, and that a follow-up had " been approved and currently scheduled." (Id. at 6). One week later, on June 8, 2012, the plaintiff was seen at the Callahan Eye Foundation, and on June 26, 2012, had surgery on his right eye for retinal detachment and cataract. (Doc. 27-6 at 5-10; Doc. 27-1 at 4).

Additionally, sending the administrative remedy requests to Warden Rathman, a layperson, is not sufficient to attach liability to him. " [A]bsent a reason to believe (or actual knowledge) that prison doctors or their assistants are mistreating (or not treating) a prisoner, a non-medical prison official ... will not be chargeable with the Eighth Amendment scienter requirement of deliberate indifference." See Spruill v. Gillis, 372 F.3d 218, 236 (3d Cir. 2004). The plaintiff has not established genuine disputed material facts in connection with each element of his Eighth Amendment claim against defendant Rathman. Accordingly, defendant Rathman's motion for summary judgment is due to be granted.

VI. Recommendation

Accordingly, for the reasons stated above, the magistrate judge RECOMMENDS the defendants' motion for summary judgment as to the plaintiff's Bivens claims be GRANTED, and the claim be DISMISSED WITH PREJUDICE.

The undersigned further recommends that the plaintiff's FTCA claims REFERRED to the undersigned for further proceedings.

VII. Notice of Right to Object

Any party may file specific written objections to this report and recommendation within fourteen (14) days from the date it is filed with the clerk of the court. Any objections to the failure of the magistrate judge to address any contention raised in the petition must also be included. Failure to do so will bar any later challenge or review of the factual findings or legal conclusions of the magistrate judge. See U.S.C. § 636(b)(1)(C); Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); Nettles v. Wainwright, 677 F.2d 404 (5th Cir. 1982) ( en banc ). In order to challenge the findings of the magistrate judge, a party must file with the clerk of the court written objections which specifically identify those portions of the proposed findings and recommendations to which objection is made and the specific basis for objection. A copy of the objections must be served upon all other parties to the action. Frivolous, conclusive, or general objections will not be considered by the District Court.

Upon receipt of objections meeting the specificity requirement set out above, a United States District Judge shall make a de novo determination of those portions of the report, proposed findings, or recommendations to which objection is made and may accept, reject, or modify in whole or in part, the findings or recommendations made by the magistrate judge. The district judge, however, need conduct a hearing only in his discretion or if required by law, and may consider the record developed before the magistrate judge, making his own determination on the basis of that record. The district judge may also receive further evidence, recall witnesses, or recommit the matter to the magistrate judge with instructions.

Objections not meeting the specificity requirement set out above will not be considered by a district judge.

A party may not appeal a magistrate judge's recommendation directly to the United States Court of Appeals for the Eleventh Circuit. Appeals may be made only from a final judgment entered by or at the direction of a district judge.

The Clerk is DIRECTED to serve a copy of this report and recommendation upon the plaintiff and upon counsel for the defendants.


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