Opinion
4:19-CV-113-CDL-MSH
05-26-2021
ROBERT RALPH DIPIETRO, Plaintiff, v. NINA COOPER, et al., Defendants.
ORDER AND RECOMMENDATION
STEPHEN HYLES UNITED STATES MAGISTRATE JUDGE
Plaintiff, an inmate confined at Rutledge State Prison (“RSP”) in Columbus, Georgia, filed a pro se complaint (ECF No. 1) seeking relief pursuant to 42 U.S.C. § 1983. Pending before the Court is Defendants' motion for summary judgment (ECF No. 31). For the hereinbelow reasons, the Court recommends that Defendants' motion be granted. Also pending are Plaintiff's motion for copies (ECF No. 41), motion for clarification (ECF No. 43), and motion for extension of time (ECF No. 44). Plaintiff's motions are denied.
BACKGROUND
Plaintiff's claims arise from his medical treatment at RSP between July and August 2017. According to Plaintiff, he noticed a “a small bump” on his left leg with a red ring around it. Compl. 6. The bump was tender and appeared to contain pus, and Plaintiff believed it was a spider bite. Id. He went to the RSP medical unit and told Defendant nurses Mary Terry and Nina Cooper about the bump, but Terry and Cooper said they could not see him unless he submitted a sick call request. Id. By the next day, the bump had grown “to the size of a quarter” with a larger pus head, and Plaintiff returned to the medical unit. Id. Again, Terry and Cooper refused to see him even though he had submitted a sick call request indicating his condition “was an emergency, ” and they told him he had an upcoming appointment. Id.
Over the next three days, Plaintiff's sore grew to “the size of about a lemon with a ½ [to] ¾ inch pus head.” Id. at 7. Additionally, the sore was tender, his leg was swollen, and Plaintiff experienced pain when walking. Compl. 7. Plaintiff attempted to return to the medical unit, but Defendant Officer Pernell stopped him. Id. Plaintiff showed Pernell his leg and “demanded immediant [sic] care, ” Pernell instructed him to return to his cell, and when Plaintiff refused, Pernell handcuffed him and placed him in an administrative segregation cell. Id. Approximately one hour later, Defendants Chief Counselor Shanequa Mussa and Pernell visited Plaintiff's segregation cell, and Plaintiff showed them his leg and again requested medical treatment. Id. Plaintiff alleges Mussa stated, “you are in prison and you get care when we say and not a minute before, ” and told him he would not receive treatment that day. Id. at 7-8.
By the next day, Plaintiff's sore “was the size of a small orange with about a [one] inch tall pus head, ” his leg was swollen and “black and blue, ” and it caused Plaintiff severe pain. Id. at 8. Plaintiff returned to the medical unit, showed a different officer his leg, and the officer got a doctor to evaluate Plaintiff. Compl. 8. The doctor asked Plaintiff “why did you wait so long to come up here [?] It should have never been allowed to get so big.” Id. After initially receiving an antibiotic, Plaintiff was diagnosed with methicillin-resistant Staphylococcus aureus (“MRSA”) and was prescribed a stronger antibiotic. Id. A doctor informed Plaintiff he “might lose [his] leg or . . . die.” Id. Plaintiff's condition improved after many weeks, but he now has a large scar and “permanent disfigurement.” Id. at 9. He alleges Defendants violated his constitutional rights and requests $100,000 in compensatory damages and $500,000 in punitive damages. Id. at 10.
The Court received Plaintiff's complaint (ECF No. 1) on July 16, 2019. On April 6, 2020, the Court conducted a preliminary review of Plaintiff's complaint, found that he stated claims for deliberate indifference to a serious medical need in violation of the Eighth Amendment, and ordered service on Defendants. Order 1-5, ECF No. 11. Defendants filed their answer (ECF No. 21) on June 9, 2020. The Court twice extended discovery pursuant to the parties' motions. Text-only Order, Aug. 25, 2020, ECF No. 23; Order 1, Nov. 2, 2020, ECF No. 28. Defendants filed their motion for summary judgment (ECF No. 31) on January 5, 2021. After granting Plaintiff two extensions of time (ECF Nos. 36, 39), the Court received Plaintiff's response (ECF No. 40) on March 8, 2021. Defendants did not file a reply. Defendants' motion is ripe for review.
DISCUSSION
I. Plaintiff's Motions
The Court received Plaintiff's motion for copies (ECF No. 41) on March 8, 2021. He requests that the Court send him copies of his response to Defendants' motion for summary judgment and all attachments thereto, encompassing over one hundred pages. Mot. for Copies 1, ECF No. 41. While Plaintiff has been granted leave to proceed in forma pauperis (“IFP”) under 28 U.S.C. § 1915, he is not entitled to have the costs of discovery covered by the Court. See Easley v. Dep't of Corr., 590 Fed.Appx. 860, 868 (11th Cir. 2014) (citing Tabron v. Grace, 6 F.3d 147, 159 (3d Cir. 1993) (“There is no provision in [§ 1915] for the payment by the government of the costs of . . . litigation expenses, and no other statute authorizes courts to commit federal monies for payment of the necessary expenses in a civil suit brought by an indigent litigant.”)). “Plaintiff's [IFP] status alone does not make obvious his inability to pay any costs whatsoever.” Moon v. Newsome, 863 F.2d 835, 838-39 (11th Cir. 1989) (citation omitted). Plaintiff has neither attempted to pay the Clerk for copies of these documents nor indicated why he is unable to pay for them. His motion is DENIED.
The Court received Plaintiff's motion for clarification (ECF No. 43) on March 12, 2021. He requests confirmation that the Court received his response (ECF No. 40) to Defendants' motion for summary judgment (ECF No. 31). Mot. for Clarification 1, ECF No. 43. The Court has received Plaintiff's response and, as indicated below, considered the response in ruling on Defendants' motion for summary judgment. Plaintiff's motion is DENIED AS MOOT.
The Court received Plaintiff's motion for extension of time (ECF No. 44) on March 26, 2021. He requests that the Court allow him to amend his response (ECF No. 40) to Defendants' motion for summary judgment to treat it as a cross-motion for summary judgment. Mot. for Extension of Time 1, ECF No. 44. He contends he is entitled to an extension because (1) he is proceeding pro se, (2) his amendment would not prejudice Defendants, (3) he was unaware of his right to file a cross-motion for summary judgment, and (4) he is unable to conduct legal research. Id. at 1-4. Defendants responded (ECF No. 45) to Plaintiff's motion on March 29, 2021. They argue, inter alia, that Plaintiff failed to timely file a cross-motion for summary judgment, so the Court should not construe his response as such a motion. Resp. to Mot. for Extension of Time 1, ECF No. 45. Indeed, the Court ordered the parties to file any dispositive motions by January 5, 2021-thirty days after the close of discovery on December 6, 2020. Order 1, Nov. 2, 2020, ECF No. 28.
Plaintiff filed his response (ECF No. 40) to Defendants' motion for summary judgment on February 28, 2021-almost two months after his deadline for filing a dispositive motion expired. Plaintiff did not move for extension of time to file a dispositive motion before expiration of the filing deadline. The Court has repeatedly informed the parties of their right to move for summary judgment. See Order 9, Apr. 6, 2020, ECF No. 11; Order 1, Nov. 2, 2020, ECF No. 28. Additionally, permitting Plaintiff to file an untimely dispositive motion would prejudice Defendants because they would be required to file their own response to Plaintiff's motion, further delaying a ruling on their pending and timely filed motion for summary judgment. While Courts afford pro se litigants leniency, pro se litigants are nonetheless required to comply with procedural rules. See McNeil v. United States, 508 U.S. 106, 113 (1993). Plaintiff failed to timely file a motion for summary judgment, and the Court will not construe his response to Defendants' timely motion as a cross-motion for summary judgment. Plaintiff's motion for extension of time is DENIED.
Although the Court did not receive Plaintiff's response until March 8, 2021, Plaintiff signed the response on February 28, 2021. “Under the prison mailbox rule, a pro se prisoner's court filing is deemed filed on the date it is delivered to prison authorities for mailing.” United States v. Glover, 686 F.3d 1203, 1205 (11th Cir. 2012) (internal quotation marks omitted). “Unless there is evidence to the contrary, like prison logs or other records, we assume that a prisoner's motion was delivered to prison authorities on the day he signed it.” Id.
II. Defendants' Motion for Summary Judgment
Defendants argue they are entitled to summary judgment on Plaintiff's deliberate indifference claims, arguing (1) Plaintiff fails to show deliberate indifference in violation of the Eighth Amendment, and (2) in the alternative, Defendants are entitled to qualified immunity. Br. in Supp. of Mot. for Summ. J. 4-9, ECF No. 31-2. The Court recommends that Defendants' motion be granted because Plaintiff fails to establish deliberate indifference and declines to reach qualified immunity.
A. Summary Judgment Standard
Summary judgment may be granted only “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). In determining whether a genuine dispute of material fact exists to defeat a motion for summary judgment, the evidence is viewed in the light most favorable to the party opposing summary judgment, drawing all justifiable inferences in the opposing party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). A fact is material if it is relevant or necessary to the outcome of the suit. Id. at 248. A factual dispute is genuine if the evidence would allow a reasonable jury to return a verdict for the nonmoving party. Id.
B. Undisputed Material Facts
Plaintiff was confined at RSP in July 2017, and he remains confined there. Pl.'s Dep. 15:07-09, ECF No. 31-4; Mot. for Summ. J. Ex. C, at 4, ECF No. 31-5; Mot. for Summ. J. Ex. D, at 4, 6-8, ECF No. 31-6. Terry and Cooper are medical professionals who serve as nurses in the RSP medical unit. Pl.'s Exs. 33, 37, 41-42, 44, ECF No. 40-3; Answer ¶ 12, ECF No. 21. Pernell is a correctional officer who serves as a lieutenant at RSP. Mot. for Summ. J. Ex. C, at 4-6; Answer ¶ 12. Mussa is the Chief Counselor at RSP. Mot. for Summ. J. Ex. D, at 4-7; Answer ¶ 12. Mussa and Pernell are not medical professionals, have not received medical training, and are trained to refer inmates to the medical unit if they present a medical need. Mot. for Summ. J. Ex. C, at 4-5, 7-8; Mot. for Summ. J. Ex. D, at 4, 6-8.
On approximately July 10, 2017, Plaintiff observed a sore on his left leg, including a painful pus head with a red ring around it. Pl.'s Dep. 20:24-21:06, 21:23-21:25, 23:08-23:12, 40:18-41:02; Pl.'s Decl. 3, ECF No. 40-2. Within the first few days, Plaintiff's sore grew larger. Pl.'s Dep. 22:07-22:10; Pl.'s Decl. 3. On Thursday, July 13, 2017, Plaintiff walked to the RSP medical unit to seek treatment for his sore. Pl.'s Dep. 25:24-26:09; Pl.'s Decl. 3. By that time, Plaintiff's sore had grown to approximately the diameter of a quarter and had a large pus head, his leg was swollen and discolored, and the condition continued to cause him pain. Pl.'s Dep. 30:05-30:11, 55:07-55:14, 56:06-56:14; Pl.'s Decl. 3-4. When Plaintiff arrived at the medical unit, he encountered Terry and Cooper, described his sore and his symptoms, and told them he believed it was a spider bite. Pl.'s Dep. 25:24-26:03, 29:13-30:02, 57:08-57:14; Pl.'s Decl. 3-4. Cooper looked at Plaintiff's sore, told him it was not a spider bite, and instructed him to not touch the sore and to keep the area clean. Pl.'s Dep. 29:13-30:18, 57:08-57:19; Pl.'s Decl. 4. Terry and Cooper also instructed Plaintiff to submit a sick call request about his sore in order to be seen. Pl.'s Dep. 26:10-26:14, 27:08-27:13; Pl.'s Decl. 4. Plaintiff submitted a sick call request on the same day. Pl.'s Dep. 24:04-24:09, 58:20-58:24; Pl.'s Decl. 4. This was the only sick call request Plaintiff submitted concerning his sore. Pl.'s Dep. 25:11-25:19.
On Friday, July 14, 2017, Plaintiff's sore was larger and approximately the diameter of a half-dollar coin, his leg was black and blue, and he returned to the medical unit. Id. at 26:18-26:25; Pl.'s Decl. 5. Plaintiff again encountered Terry and Cooper in the medical unit, explained that his condition had worsened, and requested treatment. Pl.'s Dep. 30:19-31:06; Pl.'s Decl. 5-6. Terry and Cooper informed Plaintiff that he had an appointment scheduled for Monday, July, 17, 2017, pursuant to his sick call request and asked him to leave. Pl.'s Dep. 27:01-27:07, 31:03-31:09, 58:05-58:15; Pl.'s Decl. 6. On Saturday, July 15, 2017, Plaintiff's sore had grown to approximately the size of a golf ball, it was more painful, and Plaintiff again went to the medical unit. Pl.'s Dep. 27:16-28:18, 31:10-31:15; Pl.'s Decl. 6. He explained his condition to Terry and Cooper, and they again told him he had an appointment scheduled for July 17 and asked him to leave. Pl.'s Dep. 27:19-28:04, 31:16-31:21; Pl.'s Decl. 6.
On Sunday, July 16, 2017, Plaintiff's sore was larger and caused him pain when he walked, he showed a dorm officer his condition, and the dorm officer allowed him to go to the medical unit to seek treatment. Pl.'s Dep. 28:05-28:14, 32:08-32:15, 41:03-41:12, 56:15-56:24; Pl.'s Decl. 6. The RSP medical staff usually does not see inmates on weekends. Pl.'s Dep. 28:15-28:22, 60:05-60:12. He encountered Pernell outside the medical unit, showed Pernell his leg, explained that it caused him severe pain and that he had visited the medical unit for the past three days, and insisted that he been seen in the medical unit. Id. at 31:22-32:15, 59:11-59:23; Pl.'s Decl. 6-7. Pernell asked him to leave because there were no medical professionals in the medical unit, Plaintiff refused, and Pernell locked him in a shower in the RSP administrative segregation unit. Pl.'s Dep. 32:16-33:01, 60:02-60:04; Pl.'s Decl. 7. Approximately one hour later, Mussa visited Plaintiff in segregation, and Plaintiff showed her his leg. Pl.'s Dep. 33:02-33:11, 60:13-60:22; Pl.'s Decl. 8. Plaintiff also asked Mussa for medical treatment, but she did not refer Plaintiff to the RSP medical staff. Pl.'s Dep. 33:12-33:21, 61:01-61:04; Pl.'s Decl. 7-8. Plaintiff did not tell Pernell or Mussa that he had an appointment the next day. Pl.'s Dep. 59:24-60:01, 60:23-60:25. After Plaintiff spent approximately one to two hours in segregation, Pernell sent Plaintiff back to his dorm. Id. at 61:05-61:14; Pl.'s Decl. 8.
On July 17, 2017, Plaintiff met with Nurse Practitioner (“N.P.”) Denesha Harvey and reported a lesion on his left shin with drainage, fatigue, fever, and chills. Hendley Decl. Attach. 1, at 10, ECF No. 31-3; Pl.'s Dep. 28:23-29:05, 35:18-35:23. N.P. Harvey characterized the visit as a “routine” encounter, rather than an “urgent/emergency” encounter. Hendley Decl. Attach. 1, at 10. She examined Plaintiff's sore and noted a “blister filled [with] clear fluid/purulent drainage.” Id. The blister was “partially intact” with erythema, induration, and edema. Id. N.P. Harvey diagnosed Plaintiff with a suspected insect bite secondary to cellulitis. Id. She collected a sample of the sore, prescribed Plaintiff Bactrim, instructed him to keep the area covered until there was no drainage, and ordered a follow up in two days. Id.; Pl.'s Dep. 29:06-29:12, 35:24-36:19; Pl.'s Decl. 7. Plaintiff saw N.P. Harvey again on July 19, 2017, and she observed a “large open area (approx[imately] 5 [to] 6 [centimeters] in diameter)” with “small pustular papules noted within lesion.” Hendley Decl. Attach. 1, at 9. The sore included erythema and drainage. Id. She continued Plaintiff on Bactrim, prescribed Clindamycin and daily wound care, and instructed him to keep the wound clean and dry. Id.
A culture and testing of Plaintiff's sore sample revealed an infection of MRSA. Id. at 11-14. Plaintiff met with N.P. Harvey again on July 20, 2017, and reported pain, fever, and chills, but indicated that his condition had “improved since yesterday.” Id. at 8. N.P. Harvey examined Plaintiff's wound, and found it remained 5 to 6 centimeters in diameter with erythema and induration. Id. She manually expressed the wound, which emitted “copious amounts of purulent/sanguineous drainage.” Hendley Decl. Attach. 1, at 8. The “[r]emainder of [Plaintiff's] leg appearance [was] normal.” Id. Based on the test results, N.P. Harvey diagnosed Plaintiff with MRSA secondary to cellulitis. Id.; Pl.'s Dep. 37:10-37:16; Pl.'s Decl. 10. She discontinued Bactrim and ordered that Plaintiff's linens be washed. Hendley Decl. Attach. 1, at 8. She also ordered “[i]nfection control precautions” and application of bandages. Id. She instructed Plaintiff to “[r]eport any new/worsening” of his condition “to [the] nurse during wound care app[ointments].” Id. Five times thereafter, nurses cleaned and dressed Plaintiff's sore and noted the condition of his sore. Id. at 7; Pl.'s Dep. 36:23-37:09.
Plaintiff saw N.P. Harvey again on July 27, 2017. Hendley Decl. Attach. 1, at 6. He reported nausea, fever, chills and fatigue “since [the] episode started, ” diarrhea, and occasional numbness and tingling. Id. N.P. Harvey observed a “large open wound [with] pink [and] yellow tissue[, ] [a] small amount of sanguineous [and] purulent drainage[, ] edema[, ] [and] induration.” Id. She noted that Plaintiff's sensation was intact and that his leg exhibited “pitting edema.” Id. She continued Plaintiff's current medications and wound care and extended his Clindamycin prescription. Id. She also noted that “Dr. Aikens” assessed [Plaintiff's] wound, ” and Dr. Aikens found there was no “indication for [incision and drainage] [at] this time.” Id. Nurses cleaned and dressed Plaintiff's sore three times thereafter. Hendley Decl. Attach. 1, at 7; Pl.'s Exs. 5. Plaintiff saw N.P. Harvey again on July 31, 2017. Hendley Decl. Attach. 1, at 5. Plaintiff reported fever and chills but indicated he was “feeling better as well[.]” Id. N.P. Harvey observed that his sore was approx[imately] 3.0 [centimeters] in diameter” with “red tissue [and] approx[imately] 20 [to] 30% yellow slough.” Id. She noted a “small” amount of sanguineous drainage on Plaintiff's dressings[, ]” but the induration and edema had decreased since Plaintiff's last visit. Id. She continued Plaintiff's current medications, ordered additional wound care and dressings, and told Plaintiff to “[r]eport any new/worsening . . . to nurse during wound care.” Id.
Thereafter, RSP medical staff changed Plaintiff's dressings and noted the condition and size of his sore twenty-four times-nearly everyday until August 26, 2017. Pl.'s Exs. 5-6; Pl.'s Dep. 39:17-40:17; Pl.'s Decl. 11-12. Plaintiff has “permanent injuries from the infection[, ]” including a large scar, hair, skin, and muscle loss, permanent nerve damage, and post-traumatic stress disorder. Pl.'s Decl. 12-13, 15.
C. Deliberate Indifference
Defendants argue Plaintiff fails to show that any of the four Defendants were deliberately indifferent to his serious medical needs. Br. in Supp. of Mot. for Summ. J. 4-8. The Court recommends that their motion be granted on this ground.
1. Deliberate Indifference Standard
“The Eighth Amendment's prohibition against cruel and unusual punishments protects a prisoner from deliberate indifference to serious medical needs.” Kuhne v. Fla. Dep't of Corr., 745 F.3d 1091, 1094 (11th Cir. 2014) (internal quotation marks and citations omitted). “[T]o prevail on a deliberate indifference to serious medical need claim, [a plaintiff] must show: (1) a serious medical need; (2) the defendants' deliberate indifference to that need; and (3) causation between that indifference and the plaintiff's injury.” Mann v. Taser Int'l, 588 F.3d 1291, 1306-07 (11th Cir. 2009). “A serious medical need is considered one that has been diagnosed by a physician as mandating treatment or one that is so obvious that even a lay person would easily recognize the necessity for a doctor's attention.” Farrow v. West, 320 F.3d 1235, 1243 (11th Cir. 2003) (internal quotation marks and citation omitted). Deliberate indifference requires a showing of a “subjective knowledge of a risk of serious harm” and “disregard of that risk . . . by conduct that is more than mere negligence.” Brown v. Johnson, 387 F.3d 1344, 1351 (11th Cir. 2004) (citation omitted).
Disagreement over the mode of treatment does not constitute deliberate indifference for the purposes of the Eighth Amendment. See Hamm v. Dekalb Cnty., 774 F.2d 1527, 1575 (11th Cir. 1985) (“[A]n inmate's desire for a different mode of treatment does not rise to the level of deliberate indifference.”). Negligence in treatment, even rising to the level of medical malpractice, is not deliberate indifference. Estelle v. Gamble, 429 U.S. 97, 106 (1976). Instead, the treatment must be “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) (internal quotation marks and citations omitted). “[C]onduct deliberately indifferent to serious medical needs has included: (1) grossly inadequate care; (2) a decision to take an easier but less efficacious course of treatment; and (3) medical care that is so cursory as to amount to no treatment at all.” Melton v. Abston, 841 F.3d 1207, 1223 (11th Cir. 2016); Rogers v. Evans, 792 F.2d 1052, 1058 (11th Cir. 1986) (“Medical care so inappropriate as to evidence intentional maltreatment or refusal to provide essential care violates the eighth amendment.”).
2. Defendants Terry and Cooper
Defendants argue Plaintiff fails to show that Terry and Cooper were deliberately indifferent to his serious medical needs. Br. in Supp. of Mot. for Summ. J. 5-8. Defendants do not dispute that Plaintiff's condition constitutes a serious medical need. See Id. at 5. They also do not appear to contest that Terry and Cooper had subjective knowledge of Plaintiff's condition. Defendants, however, argue Plaintiff fails to show that Terry and Cooper “disregard[ed] . . . [Plaintiff's] risk . . . by conduct that is more than mere negligence.” Brown, 387 F.3d at 1351; see Br. in Supp. of Mot. for Summ. J. 5-8. They contend they are entitled to summary judgment whether Plaintiff claims (1) that Terry and Cooper denied him medical treatment or rendered grossly inadequate medical treatment, or (2) that Terry and Cooper delayed his medical treatment. Br. in Supp. of Mot. for Summ. J. 5-8. Plaintiff argues Terry and Cooper are not entitled to summary judgment because (1) they rendered grossly inadequate care, and (2) they wrongfully delayed his medical treatment. Resp. to Mot. for Summ. J. 6-12, ECF No. 40. The Court analyzes each in turn and recommends that Defendants' motion be granted on this ground.
i. Adequacy of Care
Defendants contend Terry and Cooper did not render grossly inadequate medical care for his sore. Br. in Supp. of Mot. for Summ. J. 5-7. The Court agrees.
It is undisputed that Plaintiff received extensive medical treatment for his sore, which was later diagnosed as a MRSA infection, including five meetings with N.P. Harvey and thirty-two wound evaluations and cleanings with RSP nurses. The only issue is whether Terry and Cooper displayed deliberate indifference when Plaintiff saw them on July 13, 14, and 15, 2017-the week before he was diagnosed with MRSA. First, Plaintiff argues that Terry and Cooper were deliberately indifferent because “care was intentionally denied, for no medical reason.” Resp. to Mot. for Summ. J. 6. Terry and Cooper did not deny medical care or render medical care that is “so grossly incompetent, inadequate, or excessive as to shock the conscience or to be intolerable to fundamental fairness.” Harris, 941 F.2d at 1505. When Plaintiff first saw Terry and Cooper on July 13, he complained of a spider bite and presented with a sore which was approximately the diameter of a quarter, a pus head, and leg swelling. Pl.'s Dep. 30:05-30:11, 55:07-55:14, 56:06-56:14; Pl.'s Decl. 3-4. By Plaintiff's own admission, Cooper (1) responded to his complaint of a spider bite during his unscheduled medical visit, (2) examined the sore to address his complaint, (3) determined he did not present a spider bite, and (4) advised him not to touch the sore and to keep the area clean until he received further evaluation from a physician. Pl.'s Dep. 29:24-30:16, 57:08-57:19; Pl.'s Decl. 3-4.
“It is obduracy and wantonness, not inadvertence or error in good faith, that characterizes the conduct prohibited by the Cruel and Unusual Punishments Clause.” Whitley v. Albers, 475 U.S. 312, 319 (1986). There is no question that Terry and Cooper responded to Plaintiff's medical need and gave him medical advice on July 13, 2017. They did not ignore his condition. To the extent Plaintiff alleges they provided him no medical advice or treatment on July 13, he fails to establish deliberate indifference. Thompson v. Carani, No. CV 106-099, 2008 WL 4057116, at *5-6 (S.D. Ga. Aug. 28, 2008), is instructive on this point.
In Thompson, plaintiff inmate presented to defendant nurse with “two dime-shaped red marks on his right hip and left knee” and complained of spider bites and a resulting allergic reaction. Thompson, 2008 WL 4057116, at *1-2, 5. The defendant examined plaintiff and instructed him to use a warm compress on the sores. Id. at *2, 5. The defendant again examined plaintiff four days later, noted swelling around the sores, requested that a doctor examine plaintiff, and scheduled him an appointment four days later-the next available date. Id. at *2. The plaintiff saw the doctor at the scheduled appointment, and the doctor prescribed him antibiotics. Id. at *2, 5. The Southern District of Georgia held that defendant was entitled to summary judgment because “nothing in the record suggests that, after [p]laintiff complained about spider bites, the medical treatment afforded by [defendant] was improper, let alone that [defendant] followed a course of action that was more than gross negligence. Id. at *5 (internal quotations omitted). Rather, while plaintiff “described his dissatisfaction with the treatment provided by [defendant], the record demonstrates that [defendant] merely exercised his professional medical judgment and that [p]laintiff received near-constant medical attention after complaining about spider bites.” Id. at *6.
Similarly, here, Terry and Cooper examined Plaintiff on July 13, 2017, when he complained of a spider bite, exercised their professional judgment by instructing him to keep the area clean, and scheduled him an appointment when he filed a sick call request, which ultimately resulted in Plaintiff receiving extensive medical treatment. Plaintiff fails to establish grossly inadequate care rising to the level of deliberate indifference.
Plaintiff also appears to complain that Terry and Cooper failed to adequately treat his sore when he returned to the medical unit on July 14 and July 15-the very next days. Resp. to Mot. for Summ. J. 7-8. During both visits, he claims he told Terry and Cooper that his condition had worsened. Pl.'s Dep. 30:19-31:02, 31:10-31:15; Pl.'s Decl. 5-6. It is unclear, however, whether Terry and Cooper saw his sore on July 14 and 15. As to July 14, Plaintiff stated in his deposition that Terry and Cooper “wouldn't even look at” his sore. Pl.'s Dep. 30:19-31:02. Defendants' counsel asked him “[s]o they didn't see the sore on the 14th?” Id. at 31:03. Plaintiff responded “I don't believe so. I-I don't recall. I just remember they kind of saw me coming and they were trying to get me out the door before I even came in.” Id. at 31:04-06. As to July 15, Defendants' counsel asked Plaintiff “[d]id you show them, on the 15th, the injury?” Id. at 31:16. Plaintiff responded “I don't remember.” Id. at 31:17. In his declaration, however, Plaintiff states that on July 14, he “again showed [Terry and Cooper] the infection and pointed out it was much larger, blacker, more swollen, and more painful than the day before.” Pl.'s Decl. 5. As to July 15, he states that his memory of that visit “is a bit fuzzy as all the days seemed to run together.” Id. at 6.
Thus, Plaintiff appears to give contradictory testimony as to whether Terry and Cooper saw the condition of his sore on July 14. See Blanchard v. White Cnty. Det. Ctr. Staff, 262 Fed.Appx. 959, 962 n.4 (11th Cir. 2008) (per curiam) (recognizing that plaintiff gave conflicting statements as to the number of seizures he experienced and “disregarding [the conflicting] statement . . . in evaluating whether summary judgment was proper” (citing McCormick v. City of Fort Lauderdale, 333 F.3d 1234, 1240 n.7 (11th Cir. 2003)). He has not asserted that Terry and Cooper saw his sore on July 15. Even assuming Terry and Cooper saw Plaintiff's sore on July 14, they did not completely ignore him. Rather, when Plaintiff again visited the medical unit and requested treatment, they told him they had scheduled him an appointment pursuant to his sick call request, and he would be seen on July 17, 2017-just three days later. Pl.'s Decl. 2 (“Over the next two days [Plaintiff] continued to seek treatment, where [Terry and Cooper] told him he would be seen on Monday July 17.”); Id. at 6; Resp. to Mot. for Summ. J. 2 (noting that Terry and Cooper told Plaintiff that “they got [his] sick call [and] that [he] would be seen on Monday.”); Pl.'s Dep. 27:01-27:07, 27:16-28:04, 31:03-31:09, 31:18-31:21, 58:05-58:15.
To the extent Plaintiff claims Terry and Cooper denied him treatment on July 14 and 15, his encounters with them are distinguishable from Lindley v. Birmingham, City of Alabama, 652 Fed.Appx. 801, 806 (11th Cir. 2016) (per curiam), where the Eleventh Circuit found that defendants were deliberately indifferent to an inmate plaintiff's MRSA infection. In Lindley, plaintiff developed an infected sore on his leg which became inflamed and swollen. Lindley v. Taylor, No. 2:10-cv-0141-SLB, 2015 WL 1293224, at *3 (N.D. Ala. Mar. 23, 2015). He requested treatment from defendant jail staff members, filed multiple sick call requests, and repeatedly showed his sore to medical and non-medical staff over the course of five days. Id. Jail staff also noted that plaintiff likely had a staph infection, but he received no treatment other than Tylenol. Id. at *4, 9-10. By the time plaintiff was transferred to a different jail five days later, he had an abscess with a blackened center which was hot to the touch, and he could neither walk nor remove his clothes without assistance. Id. He was immediately hospitalized and had extensive surgery three days later, which required ten months of treatment and left “[a] deep and wide scar . . . running from the top of his thigh to below his knee.” Id. (internal quotations and alterations omitted).
The plaintiff in Lindley raised deliberate indifference claims, and the Northern District of Alabama held that defendants were not entitled to qualified immunity because plaintiff's condition “obviously required prompt medical attention” and was “bad enough to where refusing treatment (other than Tylenol) represented deliberate indifference to a serious medical need.” Id. at *10. The Court “emphasize[d] the importance of the fact that officials from [the transferee jail] immediately recognized [plaintiff's] dire condition and took him to the hospital” for surgery. Lindley, 2015 WL 1293224, at *10. On appeal, the Eleventh Circuit affirmed, holding that “[a] reasonable jury could conclude that [defendants'] decision to offer no treatment besides Tylenol for six days allowed the infection to worsen to the point that antibiotics were no longer effective, leading to the extensive loss of tissue and skin.” Lindley, 652 Fed.Appx. at 806 (11th Cir. 2016) (citation omitted).
While the Lindley defendants completely ignored the plaintiff's much more severe infection, here, by contrast, Terry and Cooper saw Plaintiff in the medical unit, examined his sore, and instructed him to keep the area clean until they could schedule him an appointment. Pl.'s Dep. 29:24-30:16, 57:08-57:19; Pl.'s Decl. 3-4. In Lindley, records also showed that defendants suspected plaintiff had a staph infection before he saw the nurses who denied him treatment. Lindley, 2015 WL 1293224, at *4. Here, when Plaintiff saw Terry and Cooper on July 13, 2017, he complained of a spider bite, and Cooper examined the sore and advised him to keep the area clean until he received further treatment. Pl.'s Dep. 29:24-30:16, 57:08-57:19; Pl.'s Decl. 3-4. While the Lindley plaintiff filed multiple sick call requests and repeatedly showed his sore to jail staff, here, Plaintiff filed only a single sick call request and showed his sore to Terry and Cooper only on July 13 and 14. Compare Lindley, 2015 WL 1293224, at *3-4, 9-10 with Pl.'s Dep. 24:04-24:09, 25:11-25:19, 58:20-58:24; Pl.'s Decl. 4.
Moreover, aside from responding to Plaintiff's complaints, examining his sore, and instructing him to keep it clean, Terry and Cooper even advised Plaintiff to seek further medical treatment by filing a sick call request. Pl.'s Dep. 26:10-26:14, 27:08-27:13; Pl.'s Decl. 4. During his visits on July 14 and 15, they told him they had scheduled him an appointment pursuant to this request on the same day he submitted it. Pl.'s Dep. 27:01-27:07, 27:16-28:04, 31:03-31:09, 31:18-31:21, 58:05-58:15; Pl.'s Decl. 6. Plaintiff was seen and began an extensive course of treatment merely four days after he submitted his request. Pl.'s Decl. 6.
Courts in the Eleventh Circuit have held that an inmate plaintiff failed to establish deliberate indifference where defendant informed plaintiff of the appropriate prison procedures to seek further medical treatment and did not hinder plaintiff's pursuit of those procedures. Phillips v. Pavirov, No. 5:19-cv-00888-LCB-HNJ, 2019 WL 4054110, at *6 (N.D. Ala. July 30, 2019) (holding that nurse defendants were entitled to summary judgment where defendants “instruct[ed] the plaintiff to seek medical care through sick call forms rather than grievance forms. However, the plaintiff also acknowledges that each time he raised a complaint, medical personnel examined him”), recommendation adopted by 2019 WL 4038554 (N.D. Ala. Aug. 27, 2019); Repp v. Corr. Corp. of Am., No. 2:15-cv-220-FtM-38CM, 2018 WL 1169646, at *3 (M.D. Fla. Mar. 6, 2018) (holding that defendant nurse was entitled to summary judgment on deliberate indifference claims concerning plaintiff's detached retina where defendant examined plaintiff, failed to diagnose the detached retina, referred plaintiff to a physician, and plaintiff saw the physician two days later); Whittaker v. Sanchez, No. 5:16-cv-596-Oc-10PRL, 2018 WL 10670501, at *3 (M.D. Fla. Feb. 22, 2018) (“By [plaintiff's] own account, [defendant nurse] instructed him as to the proper way to receive medical attention, and there is no medical evidence that a delay of three days was negligent under the circumstances much less a matter of deliberate indifference.”); Sealey v. Pastrana, No. 08-23078-CIV-GOLD/WHITE, 2009 WL 10699627, at *2-3 (S.D. Fla. Dec. 11, 2009) (holding defendant nurse was entitled to summary judgment where defendant “told [plaintiff] that she would have him scheduled to be seen at sick call, and advised plaintiff that he was to return for attention during the scheduled chronic care hours for followup[]”).
This same reasoning applies here. After Cooper examined Plaintiff's sore, she instructed Plaintiff to file a sick call request, which is the proper process to seek medical treatment at RSP. See Pl.'s Exs. 42 (“GDC has a process where inmates can submit a sick call request for non-emergency medical conditions. Those sick call requests are reviewed in the medical unit and an appointment is made for the inmate to be seen by a medical professional.”). Subsequently, Terry and Cooper informed Plaintiff that they had received his sick call request and scheduled him an appointment on the same day. Plaintiff, indeed, received extensive treatment for his sore only three days later.
Thus, rather than “disregard[ing] [Plaintiff's] risk . . . by conduct that is more than mere negligence[, ]” Terry and Cooper not only examined his sore and provided him medical advice, but also advised him to file a sick call request to seek further treatment and ensured that he received that treatment. Brown, 387 F.3d at 1351 (citation omitted); see also Dang ex rel. Dang v. Sheriff, Seminole Cnty., Fla., 871 F.3d 1272, 1280 (11th Cir. 2017) (“An official disregards a serious risk by more than mere negligence when he or she knows that an inmate is in serious need of medical care, but he or she fails or refuses to obtain medical treatment for the inmate.” (internal quotations, alterations, and citations omitted)); Smith v. Murphy, No. 2:16-cv-01251-MHH-TMP, 2016 WL 7974660, at *3 (N.D. Ala. Nov. 1, 2016) (“[T]he fact that the defendants did not consider the plaintiff's condition as requiring immediate attention, but instead required him to be processed through the normal sick call procedures, is not, without more, evidence of deliberate indifference.”), recommendation adopted by 2017 WL 345571 (N.D. Ala. Jan. 24, 2017). Plaintiff fails to establish deliberate indifference.
Second, to the extent Plaintiff claims Terry and Cooper should have known that he had a staph infection, he fails to establish deliberate indifference. He appears to contend that Terry and Cooper should have recognized that he had MRSA and treated him by draining his sore and immediately contacting another medical professional. Resp. to Mot. for Summ. J. 8, 10, 12-14. Plaintiff, however, “cannot say, ‘Well, [defendants] should have known.' Were we to accept that theory of liability, the deliberate indifference standard would be silently metamorphosed into a font of tort law-a brand of negligence redux- which the Supreme Court has made abundantly clear it is not.” Goodman v. Kimbrough, 718 F.3d 1325, 1334 (11th Cir. 2013) (citing Farmer v. Brennan, 511 U.S. 825, 838 (1994) (“[A]n official's failure to alleviate a significant risk that he should have perceived but did not, while no cause for commendation, cannot under our cases be condemned as the infliction of punishment.”)).
When Plaintiff presented to Terry and Cooper, he complained of a spider bite, and Cooper examined his sore, gave him medical advice, and subsequently scheduled him an appointment the same day he filed a sick call request. Pl.'s Dep. 29:24-30:16, 57:08-57:19; Pl.'s Decl. 3-4. While Plaintiff was eventually diagnosed with MRSA a week later, he cannot establish deliberate indifference based solely on this later diagnosis because Terry and Cooper did not know he had MRSA when they treated him. Indeed, while Plaintiff alleges his condition worsened after July 13, 2017, he showed Terry and Cooper his sore only once after his initial encounter.
Third, Plaintiff appears to argue that Terry and Cooper should have taken additional measures to treat or diagnose his sore. Resp. to Mot. for Summ. J. 6-7. In support, he cites Terry's responses to his interrogatories, wherein she states that she has “been trained to spot potential staph infections based on the appearance and temperature of an injury or wound[, ]” but “[g]enerally, nurses would not diagnose a staph infection, and that would be handled by a facility doctor.” Pl.'s Exs. 33. Cooper also states that she has “been trained to spot a staph infection[]” based on symptoms such as “heat, warmth, and drainage of the affected area.” Id. at 41. Elsewhere, however, Plaintiff contradictorily asserts that Terry and Cooper should not have given him any medical advice, and, instead, they should have immediately referred him to another medical provider. Resp. to Mot. for Summ. J. 7.
To the extent Plaintiff argues Terry and Cooper should have taken additional measures based on N.P. Harvey's alleged comments, he fails to establish deliberate indifference. In support of this argument, Plaintiff avers that N.P. Harvey opined that Terry and Cooper should have immediately drained his sore. Pl.'s Decl. 9-11. Plaintiff claims that N.P. Harvey immediately drained his sore on July 17, 2017. Id. at 9. The medical records, however, show that N.P. Harvey did not manually express Plaintiff's sore and drain the pus until July 20, 2017-the third time she evaluated him. Hendley Decl. Attach. 1, at 8; see Whitehead v. Burnside, 403 Fed.Appx. 401, 403 (11th Cir. 2010) (per curiam) (“Self-serving statements by a plaintiff do not create a question of fact in the face of contradictory, contemporaneously created medical records.” (citing Bennett v. Parker, 898 F.2d 1530, 1533-34 (11th Cir. 1990)). Rather, N.P. Harvey instructed Plaintiff to keep his sore covered on July 17, 2017, and ordered daily wound care on July 19, 2017. Pl.'s Decl. 9-10. Nonetheless, even if N.P. Harvey immediately drained Plaintiff's sore and commented that Terry and Cooper “made an error in judgment, mere negligence or a mistake in judgment does not rise to the level of deliberate indifference.” Mann, 588 F.3d at 1308; see also Estelle, 429 U.S. at 106 (“[A] complaint that a physician has been negligent in diagnosing or treating a medical condition does not state a valid claim of medical mistreatment under the Eighth Amendment.”).
Even assuming Terry and Cooper could have taken additional measures, in light of Plaintiff's admission that Cooper responded to his complaints, examined him, and scheduled him an appointment for further treatment, their failure to immediately take additional measures between July 13 and July 15 amounts, at most, to negligence. “[A] simple difference in medical opinion between the prison's medical staff and the inmate as to the latter's diagnosis or course of treatment” does not support a claim for deliberate indifference. Harris, 941 F.2d at 1505. Indeed, the Eleventh Circuit has held that “the question of whether governmental actors should have employed additional diagnostic techniques or forms of treatment ‘is a classic example of a matter for medical judgment' and therefore not an appropriate basis for grounding liability under the Eighth Amendment.” Adams v. Poag, 61 F.3d 1537, 1545 (11th Cir. 1995) (quoting Estelle, 429 U.S. at 107). Here, Cooper examined Plaintiff's sore, instructed him not to touch it and to keep the area clean, advised him to file a sick call request for further treatment, and actually scheduled his appointment for further treatment. “[W]hen a prison inmate has received medical care, courts hesitate to find an Eighth Amendment violation.” Waldrop v. Evans, 871 F.2d 1030, 1035 (11th Cir. 1989) (citation omitted). For these reasons, Plaintiff fails to establish that Terry and Cooper were deliberately indifferent by denying treatment or rendering grossly inadequate or cursory treatment.
ii. Delay of Care
Defendants argue that to the extent Plaintiff alleges Terry and Cooper delayed his medical care, he fails to show deliberate indifference. Br. in Supp. of Mot. for Summ. J. 7-8. “[D]elay in access to medical care that is tantamount to unnecessary and wanton infliction of pain, may constitute deliberate indifference to a prisoner's serious medical needs.” Adams, 61 F.3d at 1544 (internal quotations and citations omitted). “Some delay in rendering medical treatment may be tolerable depending on the nature of the medical need and the reason for the delay.” Id. (citing Harris v. Coweta Cnty., 21 F.3d 388, 393-94 (11th Cir. 1994)). A delay in medical treatment constitutes deliberate indifference “where ‘it is apparent that delay would detrimentally exacerbate the medical problem,' the delay does seriously exacerbate the medical problem, and the delay is medically unjustified.” Taylor v. Adams, 221 F.3d 1254, 1259-60 (11th Cir. 2000) (quoting Hill v. Dekalb Reg'l Youth Det. Ctr., 40 F.3d 1176, 1187-89 (11th Cir. 1994), overruled in part on other grounds by Hope v. Pelzer, 536 U.S. 730, 739 n.9 (2002)). “An inmate who complains that delay in medical treatment rose to a constitutional violation must place verifying medical evidence in the record to establish the detrimental effect of delay in medical treatment to succeed.” Hill, 40 F.3d at 1188; see also James v. Bartow Cnty., Ga., 798 Fed.Appx. 581, 585 (11th Cir. 2020) (per curiam).
First, Defendants contend Plaintiff fails to establish any delay in medical treatment that was medically unjustified. Br. in Supp. of Mot. for Summ. J. 7. Plaintiff argues that Terry and Cooper unjustifiably delayed his treatment for this three-day period. Resp. to Mot. for Summ. J. 8-14. He contends “they should have referred [him] to an appropriate provider for diagnosis and treatment.” Id. at 7-8. When Plaintiff saw Terry and Cooper on July 13, 2017, Cooper examined his sore, told him to keep it clean, and instructed him to file a sick call request to seek further evaluation. Pl.'s Dep. 29:24-30:16, 57:08-57:19; Pl.'s Decl. 3-4. Pursuant to Cooper's instructions, Plaintiff filed a sick call request the same day. Pl.'s Dep. 24:04-24:09, 58:20-58:24; Pl.'s Decl. 4. When Plaintiff returned to the medical unit on July 14 and 15, Cooper told Plaintiff she had scheduled him an appointment with a physician for July 17-just three days later-pursuant to his sick call request on the same day he submitted the request. Pl.'s Dep. 27:01-27:07, 27:16-28:04, 31:03-31:09, 31:18-31:21, 58:05-58:15; Pl.'s Decl. 6. Plaintiff had an appointment on July 17, 2017, and he began an extensive course of treatment that day. Hendley Decl. Attach. 1, at 5-14; Pl.'s Exs. 5-6. Thus, to the extent Plaintiff alleges Terry and Cooper delayed him medical treatment by failing to refer him to a physician, he fails to establish an unjustified delay.
It appears Plaintiff argues Terry and Cooper should have ensured he was seen by a physician sooner. Resp. to Mot. for Summ. J. 7-8. Plaintiff has submitted Terry's responses to his interrogatories, wherein she states that “[g]enerally, nurses would not diagnose a staph infection, and that would be handled by a facility doctor.” Pl.'s Exs. 33.
Moreover, Cooper states that she was not trained to refuse care without a sick call request. GDC has a process where inmates can submit a sick call request for non-emergency medical conditions. Those sick call requests are reviewed in the medical unit and an appointment is made for the inmate to be seen by a medical professional. When a medical professional is informed by the inmate (or by another person) that the inmate has an urgent need for medical attention, then the inmate is seen at that time in the medical unit or by a medical professional in the dormitory.Pl.'s Exs. 42. Thus, the three-day delay between Plaintiff's initial visit with Terry and Cooper on July 13, 2017, and his subsequent treatment by N.P Harvey beginning on July 17, 2017, resulted from RSP's sick call request process. The question, therefore, is whether the three-day delay between Terry and Cooper scheduling Plaintiff's appointment and his treatment by N.P. Harvey on July 17 was medically unjustified.
“[S]ociety does not expect that prisoners will have unqualified access to health care[.]” Hudson v. McMillian, 503 U.S. 1, 9 (1992) (citation omitted). The Eighth Amendment does not require that an inmate's medical treatment “be perfect, the best obtainable, or even very good.” Harris, 941 F.2d at 1510 (internal quotations and citation omitted). Consequently, the Eleventh Circuit and courts therein have held that plaintiffs failed to establish that delays in medical treatment were medically unjustified where defendants followed a prison's procedures for scheduling medical treatment and did not interfere with scheduling of appointments. Dugan v. Warden, FCC Coleman-USP I, 673 Fed.Appx. 940, 944-45 (11th Cir. 2016) (per curiam) (“In response to [plaintiff's] requests, [d]efendants . . . advised [plaintiff] correctly that he was on the waiting list to receive routine dental care[.] . . . Because nothing evidences that [d]efendants denied or further delayed intentionally [plaintiff's] access to appropriate dental care, or otherwise interfered intentionally with [plaintiff's] dental treatment, [d]efendants are entitled to summary judgment on [plaintiff's] claim for deliberate indifference.” (citation omitted)); Repp, 2018 WL 1169646, at *3 (holding that defendant nurse was entitled to summary judgment where she failed to diagnose a detached retina, referred plaintiff to a physician, and plaintiff saw the physician two days later); Whittaker, 2018 WL 10670501, at *3 (holding that defendant nurse was entitled to summary judgment where defendant instructed plaintiff to file a sick call request concerning his broken hand and plaintiff saw a doctor three days later).; Sullivan v. Cochran, No. 15-0407-KD-M, 2015 WL 965968, at *4-5 (S.D. Ala. Nov. 25, 2015) (holding that defendants' seven-day delay in treating plaintiff's allergic reaction did not constitute deliberate indifference), recommendation adopted by 2016 WL 70844 (S.D. Ala. Jan. 6, 2016); Matthews v. Crosby, No. 3:06CV38/MCR/EMT, 2006 WL 1529568, at *3 (N.D. Fla. May 31, 2006) (holding that plaintiff failed to state a claim for deliberate indifference based on a delay in treatment of a MRSA infection where he was treated by a physician five days after first presenting to a nurse).
Here, as explained above, Terry and Cooper scheduled Plaintiff's appointment the same day he filed his sick call request on July 13, 2017, and N.P. Harvey began an extensive course of treatment when he saw her at his appointment on July 17, 2017. They scheduled this appointment to ensure Plaintiff received treatment because “[g]enerally, nurses would not diagnose a staph infection, and that would be handled by a facility doctor.” Pl.'s Exs. 33. In the interim, however, Terry and Cooper did not completely ignore Plaintiff's condition. Rather, as previously described, Plaintiff admits Cooper examined his sore on July 13 and instructed him not to touch it and to keep the area clean. Pl.'s Dep. 29:13-30:18, 57:08-57:19; Pl.'s Decl. 4. Thus, given Terry and Cooper's lack of authority to unilaterally diagnose and treat Plaintiff's sore and their utilization of RSP's standard sick call process, the three-day delay between Plaintiff's initial presentation on July 13 and the beginning of his extensive treatment on July 17 was medically necessary to allow Terry and Cooper to schedule an appointment for a physician to evaluate Plaintiff's sore. Because Plaintiff fails to establish a medically unjustified delay in treatment, he cannot establish that Terry and Cooper were deliberately indifferent by delaying his medical treatment. See Taylor, 221 F.3d at 1259-60
Second, even assuming Plaintiff's three-day delay in treatment was medically unjustified, Defendants contend Plaintiff fails to show that the delay seriously exacerbated his medical problem. Br. in Supp. of Mot. for Summ. J. 7-8; see Taylor, 221 F.3d at 1259-60. As to exacerbation of his medical problem, Plaintiff alleges that his sore grew and became more painful each day. Resp. to Mot. for Summ. J. 8-10. Specifically, he claims his sore was approximately the diameter of a quarter when Terry and Cooper saw him on July 13, 2017. Pl.'s Dep. 30:05-30:11, 55:07-55:14, 56:06-56:14; Pl.'s Decl. 3-4. On July 15, 2017, when Plaintiff saw Terry and Cooper for the final time, his sore was approximately the size of a golf ball and was more painful. Pl.'s Dep. 27:16-28:18, 31:10-31:15; Pl.'s Decl. 6. When Plaintiff received treatment on July 17, 2017, N.P. Harvey observed a partially intact blister with clear fluid, purulent drainage, erythema, edema, and induration. Hendley Decl. Attach. 1, at 10. On July 19, 2017, N.P. Harvey noted that the sore was “5 [to] 6 [centimeters] in diameter” and included “small pustular papules.” Id. at 9. Aside from worsening of his condition, Plaintiff asserts the delay in seeing N.P. Harvey delayed his diagnosis and recovery from the infection. Resp. to Mot. for Summ. J. 11-13.
To establish deliberate indifference based on a delay in treatment, Plaintiff “must place verifying medical evidence in the record to establish the detrimental effect of delay in medical treatment to succeed.” Hill, 40 F.3d at 1188. The treatment records from N.P. Harvey and the documentation of Plaintiff's wound dressings constitute the only medical evidence in the record. See Hendley Decl. Attach. 1, at 5-14; Pl.'s Exs. 5-6. Plaintiff claims these medical records substantiate his allegation that his condition worsened between July 13 and July 17. Resp. to Mot. for Summ. J. 10-12. However, there are no medical records concerning Plaintiff's visits with Terry and Cooper, and the earliest medical record concerns his visit with N.P. Harvey on July 17, 2017. See Hendley Decl. Attach. 1, at 10. Consequently, the medical records, in and of themselves, do not constitute “verifying medical evidence . . . establish[ing] the detrimental effect of delay in medical treatment[]” because they do not document any change in the condition of his sore between July 13, when he first saw Terry and Cooper, and July 17, when N.P. Harvey first noted the condition of his sore. Hill, 40 F.3d at 1188.
In his own declaration, however, Plaintiff also includes multiple comments N.P. Harvey allegedly made to him concerning Terry and Cooper's treatment of his sore. Pl.'s Decl. 4-5, 9-11. He argues these alleged comments constitute verifying medical evidence establishing that a delay in medical treatment exacerbated his condition. Resp. to Mot. for Summ. J. 3, 7-8, 10. Federal Rule of Civil Procedure 56(c)(4) provides that “an affidavit or declaration used to support or oppose a motion [for summary judgment] 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.” “The general rule is that inadmissible hearsay cannot be considered on a motion for summary judgment.” Macuba v. Deboer, 193 F.3d 1316, 1322 (11th Cir. 1999) (internal quotations and citation omitted). “[A] district court may consider a hearsay statement in passing on a motion for summary judgment if the statement could be reduced to admissible evidence at trial or reduced to admissible form.” Id. at 1323 (internal quotations and citations omitted).
“The most obvious way that hearsay testimony can be reduced to admissible form is to have the hearsay declarant testify directly to the matter at trial.” Jones v. UPS Ground Freight, 683 F.3d 1283, 1294 (11th Cir. 2012) (citing Pritchard v. S. Co. Servs., 92 F.3d 1130, 1135 (11th Cir. 1996)). “If, however, the declarant has given sworn testimony during the course of discovery that contradicts the hearsay statement, we may not consider the hearsay statement at the summary judgment phase.” Id. “[A] suggestion that admissible evidence might be found in the future is not enough to defeat a motion for summary judgment.” McMillian v. Johnson, 88 F.3d 1573, 1584 (11th Cir. 1996). “[I]f evidence otherwise inadmissible provoked no timely objection, it could and, if material, should be factored into a summary judgment decision.” Offshore Aviation v. Transcon Lines, Inc., 831 F.2d 1013, 1016 (11th Cir. 1987) (citing Munoz v. Int'l All. Of Theatrical Stage Emps., Etc., 563 F.2d 205, 214 (5th Cir. 1977); Clay v. Equifax, Inc., 762 F.2d 952, 955 n.2 (11th Cir. 1985)).
Here, Plaintiff alleges N.P. Harvey-a non-party, out-of-court declarant-told him that Terry and Cooper wrongfully treated him. Specifically, he avers that N.P. Harvey told him (1) Terry and Cooper should have instructed him to drain the sore, (2) they should have immediately referred him for treatment, and (3) failure to drain the sore earlier worsened his condition and made treatment more painful and more difficult. Pl.'s Decl. 4, 9-11. N.P. Harvey has not submitted an affidavit or other sworn statement in this case.
Although the Court questions the admissibility of these statements, in other cases, the Eleventh Circuit and courts therein have held that they may consider such statements at summary judgment because plaintiff could call the hearsay declarant to testify at trial. See Coffman v. Battle, 786 Fed.Appx. 926, 934 (11th Cir. 2019) (per curiam) (“[A] district court did not err in considering a hearsay statement at the summary judgment stage where the hearsay declarant could testify to the relevant facts at trial and had not otherwise offered contradictory statements.” (citing Smith v. LePage, 834 F.3d 1285, 1296 n.6 (11th Cir. 2016) (holding that a district court could consider a hearsay statement contained in an affidavit at summary judgment because the hearsay declarant “could testify to the[] facts at trial”)); Palmer v. Hulett, No. 5:16-cv-39, 2018 WL 814553, at *8-9 (S.D. Ga. Feb. 9, 2018) (“While, at the moment, these alleged statements are hearsay and are not contained in the medical record before the Court, these statements can be ‘reduced to admissible form at trial', if [p]laintiff were to call these doctors as witnesses during the trial of this case and these doctors testified in the manner [p]laintiff contends.”), recommendation adopted by 2018 WL 117684 (S.D. Ga. Mar. 6, 2018); but see Moore v. Guzman, 362 Fed.Appx. 50, 53 (11th Cir. 2010) (per curiam) (holding that a district court correctly declined to consider statements from a physician's assistant contained in an inmate's declaration because the statements were hearsay and did not fall within the business-records exception); id. at 54 n.5 (holding that a physician's assistant's hearsay statements did not establish the detrimental effect of a delay in treatment).
In an abundance of caution, the Court considers N.P. Harvey's hearsay statements and finds that Plaintiff still fails to show deliberate indifference resulting from the delay in treatment. As explained above, although Plaintiff claims that N.P. Harvey immediately drained his sore during his first visit on July 17, 2017, the medical records show that she did not manually express Plaintiff's sore and drain the pus until July 20, 2017-the third time she evaluated him. Hendley Decl. Attach. 1, at 8. Rather, the medical records show that N.P. Harvey instructed Plaintiff to keep his sore covered on July 17, 2017, and ordered daily wound care on July 19, 2017. Id. at 9-10.
Moreover, Defendants neither filed a reply nor objected to Plaintiff's recitation of and citation to N.P. Harvey's hearsay statements. See Offshore Aviation, 831 F.2d at 1016
“Self-serving statements by a plaintiff do not create a question of fact in the face of contradictory, contemporaneously created medical records.” Whitehead, 403 Fed.Appx. at 403 (citing Bennett, 898 F.2d at 1533-34). This seems especially applicable here because Plaintiff's “self-serving statement” is a hearsay statement from the medical professional who created the contemporaneous medical record and allegedly criticized other medical professionals for failing to undertake a procedure she, herself, failed to undertake. N.P. Harvey's alleged hearsay statement criticizing Terry and Cooper's failure to drain Plaintiff's sore or immediately refer him for treatment for a period of four days does not constitute “verifying medical evidence . . . establish[ing] the detrimental effect of delay[.]” Hill, 40 F.3d at 1188. According to the medical records and contrary to Plaintiff's testimony, N.P. Harvey, herself, waited three days-from July 17 top July 20-to manually express and drain Plaintiff's sore. Hendley Decl. Attach. 1, at 8-10.
Other courts in the Eleventh Circuit have held that plaintiffs failed to establish deliberate indifference based on a delay in treatment where defendant prison medical officials treated plaintiffs' serious conditions shortly after plaintiffs first presented to medical staff. See Repp, 2018 WL 1169646, at *3; Whittaker, 2018 WL 10670501, at *3; Sullivan, 2015 WL 965968, at *4-5. Indeed, one court has held that a plaintiff failed to establish deliberate indifference where prison medical officials failed to treat his MRSA infection for five days. Matthews, 2006 WL 1529568, at *3. The same reasoning applies here. When Plaintiff initially presented to Terry and Cooper, they instructed him to file a sick call request and scheduled him an appointment. Plaintiff then received extensive medical treatment only four days later. Plaintiff fails to establish deliberate indifference based on this short delay. The Court RECOMMENDS that Defendants' motion for summary judgment be GRANTED as to Plaintiff's claims against Terry and Cooper.
3. Defendants Pernell and Mussa
Defendants argue Plaintiff fails to show that Pernell and Mussa were deliberately indifferent to his serious medical needs. Br. in Supp. of Mot. for Summ. J. 6-8. The Court recommends that Defendants' motion be granted as to Pernell and Mussa.
i. Denial of Care
Plaintiff argues Pernell and Mussa were deliberately indifferent because they denied him treatment and failed to refer him to the RSP medical staff. Resp. to Mot. for Summ. J. 13-16.
As explained above, “to prevail on a deliberate indifference to serious medical need claim, [a plaintiff] must show: (1) a serious medical need; (2) the defendants' deliberate indifference to that need; and (3) causation between that indifference and the plaintiff's injury.” Mann, 588 F.3d at 1306-07. Plaintiff saw Pernell on Mussa on July 16, 2017, when he attempted to visit the medical unit to seek treatment for his sore. By that time, his sore and pus head were approximately the size of a lemon, he was in severe pain, his entire leg was swollen and blackened, and he had difficulty walking. Pl.'s Dep. 28:05-28:14, 32:08-32:15, 41:03-41:12, 56:15-56:24; Pl.'s Decl. 6-8. Plaintiff showed his sore to a dorm officer, and the officer gave him permission to seek treatment from the medical unit. Pl.'s Decl. 6. According to Plaintiff, he showed Pernell and Mussa his sore, explained his symptoms and severe pain, told them that he had visited the medical unit each of the three preceding days, and asked them to allow him into the medical unit. Pl.'s Dep. 31:22-32:15, 33:12-33:21, 59:11-59:23, 61:01-61:04; Pl.'s Decl. 6-8. Pernell told him there were no medical professionals in the medical unit at that time and locked Plaintiff in administrative segregation for approximately two hours when he refused to return to his cell. Pl.'s Dep. 32:16-33:01, 60:02-60:04; Pl.'s Decl. 7.
Defendants do not dispute that Plaintiff presented a serious medical need, but they argue Plaintiff fails to show deliberate indifference for three reasons. First, they contend Pernell and Mussa lacked subjective knowledge of a serious risk of harm. Br. in Supp. of Mot. for Summ. J. 6. To establish the subjective component of the deliberate indifference test, a plaintiff must prove “that the defendant actually (subjectively) knew that an inmate faced a substantial risk of serious harm.” Mosley v. Zachery, 966 F.3d 1265, 1270 (11th Cir. 2020). A defendant's “knowledge of the risk of serious harm is a question of fact subject to demonstration in the usual ways, including inference from circumstantial evidence, and a factfinder may conclude that a prison official knew of a substantial risk from the very fact that the risk was obvious.” Goebert v. Lee Cnty., 510 F.3d 1312, 1327 (11th Cir. 2007) (internal quotations and citation omitted).
Here, Plaintiff alleges his sore was approximately the size of a lemon, his leg was swollen and discolored, he had difficulty walking, and he showed his sore and explained his symptoms to both Pernell and Mussa. Pl.'s Dep. 31:22-32:15, 33:12-33:21, 59:11-59:23, 61:01-61:04; Pl.'s Decl. 6-8. Plaintiff, however, also told Pernell that he had visited the medical unit concerning his sore each of three preceding days. Pl.'s Dep. 59:17-59:23 (“I showed him the leg and told him . . . that I had been up there for three days in a row[.]”). Thus, Defendants knew prison medical staff had recently seen Plaintiff about his sore. Curiously, he failed to tell them he had an appointment scheduled for the very next day. Id. at 59:24-60:01, 60:23-60:25.
The Eleventh Circuit's decision in Townsend v. Jefferson Cnty., 601 F.3d 1152 (11th Cir. 2010), is instructive. In Townsend, a pregnant jail detainee plaintiff was under the influence of crack cocaine and experienced vaginal bleeding, vomiting, and severe abdominal pain. Townsend, 601 F.3d at 1154. She lay on the floor, yelled, and used an intercom to call for help throughout the morning and afternoon. Id. at 1154-55. Two defendant deputies responded to her calls for help, plaintiff showed defendants her condition, and although one stated he would contact a nurse, plaintiff was not visited by a nurse for over eight hours. Id. at 1154-55. A nurse told defendants that plaintiff's condition was not an emergency, but later that night, plaintiff suffered a miscarriage and was taken to a hospital for treatment. Id. at 1156.
The Eleventh Circuit held that plaintiff failed to show that that defendants were deliberately indifferent because one deputy “had been told by [the nurse] that [plaintiff] was not presenting an emergency, and although [the other deputy] had not received the same report, [he] knew that [the nurse] had spoken with [plaintiff] and determined that [plaintiff] could wait several hours for further evaluation.” Id. at 1159 (citing Goebert, 510 F.3d at 1329; Harris, 21 F.3d at 392-93; Carswell v. Bay Cnty., 854 F.2d 454, 457 (11th Cir. 1988)). Consequently, the Court found that plaintiff failed to show “that her situation was so obviously dire that two lay deputies must have known that a medical professional had grossly misjudged [her] condition.” Id. (citations omitted).
Similarly, here, Pernell and Mussa knew that Plaintiff had seen RSP medical staff concerning his sore each of three preceding days. Pl.'s Dep. 59:17-59:23. Although Plaintiff was dissatisfied that medical staff had not addressed his condition more expeditiously, like in Townsend, Plaintiff has not presented evidence showing that Pernell and Mussa must have known that Terry and Cooper “had grossly misjudged [his] condition[]” during his previous visits. Townsend, 601 F.3d at 1159; see also Farmer, 511 U.S. at 838 (“[A]n official's failure to alleviate a significant risk that he should have perceived but did not, while no cause for commendation, cannot under our cases be condemned as the infliction of punishment.”). Pernell and Mussa were entitled to rely on Terry and Cooper's medical judgments as to the severity of Plaintiff's condition. Townsend, 601 F.3d at 1159. Consequently, like in Townsend, Plaintiff fails to show that Pernell and Mussa had subjective knowledge that his condition required immediate and urgent treatment given that Plaintiff told them he had already been seen by medical staff. See Thompson v. Gramiak, No. CV 310-062, 2012 WL 1068156, at *5-6 (S.D. Ga. Jan. 19, 2021) (“[P]rison officials who lack specialized medical knowledge do not act with deliberate indifference to the extent that they rely on the advice of medical staff in making decisions that affect a prisoner's conditions of confinement.”), recommendation adopted by 2012 WL 1067966 (S.D. Ga. Mar. 29, 2012).
Second, even assuming Pernell and Mussa had subjective knowledge of Plaintiff's serious risk of harm, Defendants argue they are entitled to summary judgment because Plaintiff fails to show that Pernell and Mussa “disregard[ed] . . . that risk . . . by conduct that is more than mere negligence.” Brown, 387 F.3d at 1351; see Br. in Supp. of Mot. for Summ. J. 6. “‘[D]eliberate indifference' is a stringent standard of fault, requiring proof that a [defendant] disregarded a known or obvious consequence of his action.” Bd. of Cnty. Comm'rs of Bryan Cnty., Okla. v. Brown, 520 U.S. 397, 410 (1997). Here, Pernell and Mussa were not trained to personally treat inmates, and they may only refer inmates for treatment. Mot. for Summ. J. Ex. C, at 4-8; Mot. for Summ. J. Ex. D., at 4, 6-8. Pernell told Plaintiff he could not be treated because there were no medical personnel in the medical unit. Pl.'s Dep. 33:16-33:20. Relatedly, Plaintiff saw Pernell and Mussa on a Sunday, and he admits that medical providers typically do not treat inmates on weekends unless they present an emergency. Id. at 28:15-28:22, 60:05-60:12. Plaintiff, however, alleges Pernell was wrong because Plaintiff saw a nurse distributing medications to inmates on the same day. Pl.'s Decl. 14.
Accepting Plaintiff's allegation as true and assuming Pernell and Mussa could have immediately referred him for treatment, he still fails to show deliberate indifference. As thoroughly explained above, by the time Plaintiff encountered Pernell and Mussa, Terry and Cooper had already evaluated Plaintiff, and he knew they had scheduled him an appointment. Pl.'s Dep. 27:01-27:07, 27:16-28:04, 31:03-31:09, 31:18-31:21, 58:05-58:15; Pl.'s Decl. 6. In fact, he knew that his appointment was the very next day, but he hid this fact from Pernell and Mussa when he demanded that they allow him into the medical unit. Pl.'s Dep. 59:24-60:01, 60:23-60:25. “[A]n inmate's desire for a different mode of treatment does not rise to the level of deliberate indifference.” Hamm, 774 F.2d at 1575. By Plaintiff's own admissions, he knew that he had an appointment for evaluation of his sore scheduled for July 17, disagreed with this timeline, and requested more immediate treatment from non-medical personnel without even informing them of his imminent appointment. Plaintiff's disagreement with the RSP medical staff's assessment of his condition is apparent, but his attempt to circumvent that assessment by requesting additional treatment from Pernell and Mussa does not rise to the level of deliberate indifference. Harris, 941 F.2d at 1505 (holding that “a simple difference in medical opinion between the prison's medical staff and the inmate as to the latter's diagnosis or course of treatment” does not support a claim for deliberate indifference).
ii. Delay of Care
Plaintiff also argues that Pernell and Mussa were deliberately indifferent because they delayed his medical treatment. Resp. to Mot. for Summ. J. 13, 15-17. As explained above, a delay in medical treatment constitutes deliberate indifference “where ‘it is apparent that delay would detrimentally exacerbate the medical problem,' the delay does seriously exacerbate the medical problem, and the delay is medically unjustified.” Taylor, 221 F.3d at 1259-60.
Plaintiff fails to establish deliberate indifference based on a delay in care for two reasons. First, Plaintiff fails to show that it was apparent to Pernell and Mussa “that delay would detrimentally exacerbate the medical problem.” Id. As explained above, Pernell and Mussa have no medical training, but they knew that RSP medical staff had seen Plaintiff concerning his condition. Pl.'s Dep. 59:17-59:23. Plaintiff has presented no evidence showing that Pernell and Mussa must have known that Terry and Cooper misjudged Plaintiff's condition and that any further delay in treatment would exacerbate his condition. Townsend, 601 F.3d at 1159; Thompson, 2012 WL 1068156, at *5-6.
Second, even assuming Pernell and Mussa knew that a delay could exacerbate Plaintiff's condition, Plaintiff fails to establish that their failure to immediately refer Plaintiff to medical personnel exacerbated his condition. See Taylor, 221 F.3d at 1259-60. Plaintiff “must place verifying medical evidence in the record to establish the detrimental effect of delay in medical treatment to succeed.” Hill, 40 F.3d at 1188. Plaintiff fails to present any verifying medical evidence concerning exacerbation of his condition between July 16-when he encountered Pernell and Mussa-and July 17-when N.P. Harvey began an extensive course of treatment. In the portions of his brief which specifically concern Pernell and Mussa, Plaintiff relies only on his own allegations that his sore was growing in both size and pain at a constant rate. See Resp. to Mot. for Summ. J. 17. Plaintiff is not a medical professional, and even assuming these self-serving allegations are true, they do not constitute “verifying medical evidence” showing that a one-day delay in treatment between July 16 and 17 exacerbated his condition or hindered treatment thereof. Hill, 40 F.3d at 1188.
Like with his claims against Terry and Cooper, Plaintiff may rely on N.P. Harvey's alleged hearsay statements in arguing this one-day delay exacerbated his condition. See Resp. to Mot. for Summ. J. 6-8. According to Plaintiff, N.P. Harvey criticized only Terry and Cooper's failure to refer him for treatment or drain his sore earlier. See Pl.'s Decl. 9-10. Again, Pernell and Mussa lack any medical training and could not have drained his sore or offered him any other medical advice. N.P. Harvey did not mention Pernell or Mussa, specifically state that she could have more quickly resolved Plaintiff's condition if she had seen him on July 16, or opine that his condition worsened between July 16 and July 17. See Id. Plaintiff states that his condition worsened by the hour and speculates that any delay would have exacerbated his condition. Resp. to Mot. for Summ. J. 17. Plaintiff, however, is required to provide verifying medical evidence substantiating this conjecture. Hill, 40 F.3d at 1188. He fails to do so. Thus, he cannot establish deliberate indifference based on a delay in treatment between July 16 and July 17. For these reasons, the Court RECOMMENDS that Defendants' motion for summary judgment be GRANTED as to Pernell and Mussa.
CONCLUSION
For the foregoing reasons, it is recommended that Defendants' motion for summary judgment (ECF No. 31) be granted. Plaintiff's motion for copies (ECF No. 41), motion for clarification (ECF No. 43), and motion for extension of time (ECF No. 44) are denied. Pursuant to 28 U.S.C. § 636(b)(1), the parties may serve and file written objections to this Recommendation, or seek an extension of time to file objections, within fourteen (14) days after being served with a copy hereof. The district judge shall make a de novo determination of those portions of the Recommendation to which objection is made. All other portions of the Recommendation may be reviewed for clear error.
The parties are hereby notified that, pursuant to Eleventh Circuit Rule 3-1, “[a] party failing to object to a magistrate judge's findings or recommendations contained in a report and recommendation in accordance with the provisions of 28 U.S.C. § 636(b)(1) waives the right to challenge on appeal the district court's order based on unobjected-to factual and legal conclusions if the party was informed of the time period for objecting and the consequences on appeal for failing to object. In the absence of a proper objection, however, the court may review on appeal for plain error if necessary in the interests of justice.”
SO ORDERED and RECOMMENDED