Dennis Ross v. Corizon, LLC, et al

Filing

Opinion issued by court as to Appellant Dennis Ross. Decision: Affirmed. Opinion type: Non-Published. Opinion method: Per Curiam. The opinion is also available through the Court's Opinions page at this link http://www.ca11.uscourts.gov/opinions.

Case: 16-16179

Date Filed: 06/30/2017

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 16-16179
Non-Argument Calendar
________________________
D.C. Docket No. 3:14-cv-01311-BJD-PDB
DENNIS ROSS,
Plaintiff - Appellant,
versus
CORIZON MEDICAL SERVICES, et al.,
Defendants,
CORIZON, LLC,
RUDOLPHE LAFONTANT,
Dr., Individual and Official Capacity,
LINDA MELENDEZ-TORRES,
M.D.,
Defendants - Appellees
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(June 30, 2017)

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Before JORDAN, JULIE CARNES, and JILL PRYOR, Circuit Judges.
PER CURIAM:
Dennis Ross, proceeding pro se, appeals the district court’s grant of
summary judgment in favor of Corizon, LLC, Dr. Rudolphe Lafontant, and
Dr. Linda Melendez-Torres in his 42 U.S.C. § 1983 action for violation of
his Eighth Amendment rights. The district court concluded that although Mr.
Ross requested or desired different modes of treatment and different
medication, the treatment and medication he did receive—including
extensive and frequent medical treatment for a variety of ailments—did not
amount to deliberate indifference. Upon review of the record and the parties’
briefs, we affirm.
I
Because we write for the parties, we assume their familiarity with the
underlying record and recite only what is necessary to resolve this appeal.
Mr. Ross, a prison inmate at Union Correctional Institution, alleges
that he suffers from osteoarthritis, bursitis, tendonitis, fibromyalgia
posterior, a dislocated shoulder, ruptured discs in his back, neuropathy, sinus
seizures, bone spurs in both feet, asthma, migraine headaches, hernia,
herniated discus ulcers, spots on his lungs, cancer, coughing up blood,
kidney problems, rashes, gout, hemorrhoids, and bipolar disorder. He asserts

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that the pain medications that have worked the best to treat his ailments are
Neurontin and Tramadol.
Mr. Ross alleges that Dr. Lafontant and Dr. Melendez stopped
prescribing him Neurontin and Tramadol pursuant to a policy to save
Corizon money. He asserts that the doctors substituted his medications with
“in stock medications,” which contained aspirin, to which he is allergic. He
also alleged that he did not receive any specialized care. In his amended
complaint, Mr. Ross requests medical treatment, suitable pain medication,
and compensatory and punitive damages.
II
We review the grant of summary judgment de novo, applying the
same legal standard used by the district court and drawing all factual
inferences in the light most favorable to the nonmoving party. See Johnson
v. Bd. of Regents, 263 F.3d 1234, 1242–43 (11th Cir. 2001). Summary
judgment is appropriate when “the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits . . . show
that there is no genuine issue as to any material fact and that the nonmoving
party is entitled to judgment as a matter of law.” Celotex Corp. v. Catrett,
477 U.S. 317, 322 (1986). In order to overcome a motion for summary
judgment, the nonmoving party must present more than a mere scintilla of

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evidence supporting his position, and must make a sufficient showing that a
jury could reasonably find in his favor. See Brooks v. Cty. Comm’n of
Jefferson Cty., Ala., 446 F.3d 1160, 1162 (11th Cir. 2006).
Because Mr. Ross is a pro se litigant, his pleadings are liberally
construed and “held to a less stringent standard than pleadings drafted by
attorneys.” Fernandez v. United States, 941 F.2d 1488, 1491 (11th Cir.
1991) (internal citation omitted).
III
Mr. Ross raised two counts in his amended complaint, alleging
(1) that

Corizon,

acting

through

its

agents—Dr.

Lafontant

and

Dr. Melendez—acted with deliberate indifference via its policy and custom
to save money, causing him substantial pain and suffering and irrevocable
damage; and (2) that Dr. Lafontant and Dr. Melendez acted with deliberate
indifference to his pain and suffering, causing him substantial pain and
suffering and irrevocable damage.
A
We first address Mr. Ross’ claims against Dr. Lafontant and
Dr. Melendez.
The Eighth Amendment prohibits “deliberate indifference to a
prisoner’s serious illness or injury.” Estelle v. Gamble, 429 U.S. 97, 105

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(1976). To state a cognizable claim under § 1983, “a prisoner must allege
acts or omissions sufficiently harmful to evidence deliberate indifference to
serious medical needs.” Id. at 106. Specifically, a plaintiff must establish
“(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, Inc., 588 F.3d 1291, 1306–07 (11th Cir. 2009).
A serious medical need is “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.” Id. at 1307 (citations
omitted).
Once a serious medical illness or injury has been established, a
plaintiff must show that a defendant acted with deliberate indifference to that
need. To establish deliberate indifference, a plaintiff must demonstrate
“(1) subjective knowledge of a risk of serious harm; (2) disregard of that
risk; (3) by conduct that is more than mere negligence.” McElligott v. Foley,
182 F.3d 1248, 1255 (11th Cir. 1999). Some examples of deliberate
indifference include providing “grossly inadequate care[,] . . . [deciding] to
take an easier but less efficacious course of treatment, [or providing
treatment] . . . so cursory as to amount to no treatment at all.” Id. But mere
evidence of negligence in diagnosing or treating a medical condition or a

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showing of medical malpractice does not establish deliberate indifference.
See Estelle, 429 U.S. at 106. Indeed, “[m]edical treatment violates the
[E]ighth [A]mendment 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) (citation
omitted).
Because the appellees do not contest that Mr. Ross had a serious
medical need, we address only whether the appellees acted with deliberate
indifference to that need and whether the deliberate indifference caused
Mr. Ross’ injury.
Mr. Ross has not shown that the doctors had a subjective knowledge
of a risk of serious harm by not prescribing certain medications or denying
consultations. The record does not reflect that there were any objective signs
or symptoms of pain that would substantiate his requests for Neurontin or
Tramadol. “[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 of deliberate indifference. Harris, 941
F.2d at 1505.
Nor has Mr. Ross shown that the doctors disregarded any risk with
regard to his ailments. The record reflects that Mr. Ross was repeatedly

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taken to medical providers for treatment for his various ailments, and he has
pointed to no evidence that demonstrates that he was not given treatment
when he was in pain or that he was denied treatment. The failure to
administer stronger medication is generally a medical judgment that is not an
appropriate basis for imposing liability. See Adams v. Poag, 61 F.3d 1537,
1547 (11th Cir. 1995). And because Mr. Ross was repeatedly taken to
medical providers for treatment, we should be cautious to find an Eighth
Amendment violation. See Waldrop v. Evans, 871 F.2d 1030, 1033 (11th
Cir. 1999) (“[W]hen a prison inmate has received medical care, courts
hesitate to find an Eighth Amendment violation.”).
Moreover, the record indicates that Mr. Ross showed signs of
drug-seeking behavior and hoarding of the specific medications that he
requested. Though Mr. Ross disputes the district court’s reliance on one of
his medical records that indicated such behavior as impermissible hearsay,
other evidence in the record shows that he exhibited signs of potential
drug-seeking behavior. The district court’s consideration of that cumulative
evidence was therefore not reversible error.
To the extent Mr. Ross relies on evidence that he was later diagnosed
with, and received treatment for, cancer, that evidence is not properly before
us because it occurred after the district court granted summary judgment.

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Moreover, what one medical profession determines at a later point in time
does not support a claim of deliberate indifference. See Harris, 941 F.2d at
1505. Accordingly, the record does not reflect that Dr. Lafontant and
Dr. Melendez acted with deliberate indifference in violation of Mr. Ross’
Eighth Amendment rights.
Mr. Ross filed a motion to submit supplemental authority. He seeks to
submit the Sixth Circuit’s unpublished decision in Brooks v. Shank, 600 F.
App’x 465 (6th Cir. 2016), which reversed the district court’s grant of
summary judgment in favor of a prison physician on a deliberate
indifference claim. Although Brooks is an out of circuit unpublished case, it
is relevant to the issues raised and was issued after the filing of his briefs.
Mr. Ross’ motion is therefore granted. This opinion, however, does not alter
our analysis because it is factually distinguishable. In Brooks, Gregory
Stamper, an inmate who suffered from peripheral neuropathy, hanged
himself the day after his treating physician, Dr. Myron Shank, cancelled an
appointment that Mr. Stamper sought for his pain. The Sixth Circuit held
that a genuine issue of fact remained as to whether Dr. Shank subjectively
perceived facts from which to infer substantial risk to Mr. Stamper and
disregarded that risk by cancelling the appointment. It cited evidence that
Dr. Shank commented that “pain ‘hurts,’ but will not ‘hurt’ him” in response

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to Mr. Stamper’s complaints of severe pain and that Dr. Shank knew that
Mr. Stamper “was not on effective medications for his pain, yet concluded
that ‘no other option was available.’” Id. at 468 (internal alterations
omitted). In contrast, here, there is no record evidence that Mr. Ross was
denied treatment or medication, just that he did not agree with the medical
treatment provided.
B
As for Mr. Ross’ claim that Corizon, through the actions of
Dr. Lafontant and Dr. Melendez, acted with deliberate indifference
according to its policy and custom to save money, generally, “supervisory
officials are not liable under § 1983 for the unconstitutional acts of their
subordinates ‘on the basis of respondeat superior or vicarious liability.’”
Hartley v. Parnell, 193 F.3d 1263, 1269 (11th Cir. 1999) (citation omitted).
We have extended that rule to private corporations like Corizon. See, e.g.,
Craig v. Floyd Cty., 643 F.3d 1306, 1310 (11th Cir. 2011). To hold a
defendant liable as a supervisory official, a plaintiff must show that “the
supervisor personally participate[d] in the alleged constitutional violation or
[that] there is a causal connection between actions of the supervising official
and the alleged constitutional deprivation.” Hartley, 193 F.3d at 1269.

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Mr. Ross has not provided evidence of a custom or policy
implemented by Corizon to withhold medically necessary medications in
order to save money. See Craig, 643 F.3d at 1310 (to impose liability under
§ 1983, a plaintiff must prove that a municipality had a “policy or custom”
of deliberate indifference that led to the violation of his constitutional right).
And because Mr. Ross has not demonstrated that there was a constitutional
violation in this case, by extension, he cannot establish that Corizon
participated in or caused such a violation. See Hartley, 193 F.3d at 1269.
IV
Although we express sympathy for Mr. Ross and the ailments that he
suffers, the record does not reflect that Dr. Lafontant, Dr. Melendez, or
Corizon acted with deliberate indifference to his medical condition.
Accordingly, we affirm the district court’s grant of summary judgment.
AFFIRMED.

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