Paul Scinto, Sr. v. Warden Stansberry
Filing
PUBLISHED AUTHORED OPINION filed. Originating case number: 5:10-ct-03165-D. [999962563]. [15-1587]
Appeal: 15-1587
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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-1587
PAUL SCINTO, SR.,
Plaintiff - Appellant,
v.
WARDEN
PATRICIA
STANSBERRY,
FCI
Butner-Low;
SUSAN
MCCLINTOCK, Camp Administrator, FPC-Butner; R. HOLT, Senior
Officer Specialist; DR. PHILLIPS; OFFICER COORS,
Defendants - Appellees,
and
FEDERAL BUREAU OF PRISONS, a division of the U.S. Department
of Justice; HARLEY G. LAPPIN, Director, Bureau of Prisons;
KIM WHITE, Mid Atlantic Regional Director,
Defendants.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.
James C. Dever III,
Chief District Judge. (5:10-ct-03165-D)
Argued:
September 23, 2016
Decided:
November 4, 2016
Before NIEMEYER, MOTZ, and WYNN, Circuit Judges.
Affirmed in part and reversed in part by published opinion.
Judge Wynn wrote the opinion, in which Judge Niemeyer and Judge
Motz joined.
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ARGUED: Adam H. Farra, COHEN MILSTEIN SELLERS & TOLL PLLC,
Washington, D.C., for Appellant.
Robert J. Dodson, OFFICE OF
THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for
Appellees.
ON BRIEF: Paul J. Zidlicky, SIDLEY AUSTIN LLP,
Washington, D.C., for Appellant.
John Stuart Bruce, Acting
United States Attorney, G. Norman Acker, III, Assistant United
States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh,
North Carolina, for Appellees.
2
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WYNN, Circuit Judge:
Plaintiff Paul Scinto, Sr. (“Plaintiff”), a former federal
prisoner,
Bivens
sued
v.
several
Six
federal
Unknown
Named
prison
Agents
officials
of
pursuant
to
Bureau
of
Federal
Narcotics, 403 U.S. 388 (1971), alleging a number of violations
under
the
Fourth,
Defendants
are
Dr.
Fifth,
Derick
Eighth,
and
Phillip
Fourteenth
(“Dr.
Amendments.
Phillip”);
Patricia
Stansberry, former Federal Prison Camp Butner Warden (“Warden
Stansberry”);
and
Susan
McClintock,
former
Administrator (“Administrator McClintock”).
Butner
Camp
Collectively, these
Defendants successfully moved for summary judgment on all of
Plaintiff’s claims.
On appeal, Plaintiff limits his arguments to the district
court’s
dismissal
of
three
claims
that
Defendants
were
deliberately indifferent to his medical needs, in violation of
the
Eighth
Amendment.
Plaintiff
argues
that,
in
dismissing
these claims, the district court made credibility determinations
and weighed the parties’ evidence, thus violating the summary
judgment standard.
For
the
reasons
that
follow,
we
reverse
the
district
court’s disposition of the two Eighth Amendment claims against
Dr.
Phillip
and
Administrator
McClintock
but
resolution of the claim against Warden Stansberry.
3
affirm
its
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I.
The Eighth Amendment prohibits the infliction of “cruel and
unusual
punishments.”
prohibition
U.S.
“proscribes
punishments.”
Const.
more
amend.
than
VIII.
physically
This
barbarous
Estelle v. Gamble, 429 U.S. 97, 102 (1976).
It
also encompasses “the treatment a prisoner receives in prison
and the conditions under which he is confined.”
McKinney, 509 U.S. 25, 31 (1993).
Helling v.
In particular, the Eighth
Amendment imposes a duty on prison officials to “provide humane
conditions
receive
of
confinement
adequate
food,
. . .
[and]
clothing,
ensure
shelter,
that
and
inmates
medical
care.”
Farmer v. Brennan, 511 U.S. 825, 832 (1994).
To that end, a
prison
serious
needs
official’s
of
infliction
“deliberate
prisoners
of
indifference
constitutes
proscribed
pain
the
by
to
unnecessary
the
and
Eighth
medical
wanton
Amendment.”
Estelle, 429 U.S. at 104 (internal quotation marks and citation
omitted).
Prisoners alleging that they have been subjected to
unconstitutional
conditions
of
confinement
must
satisfy
the
Supreme Court’s two-pronged test set forth in Farmer v. Brennan,
511 U.S. 825 (1994).
First,
demonstrate
Farmer’s
that
‘sufficiently
Wilson
v.
“objective”
“the
deprivation
serious.’”
Seiter,
prong
501
Farmer,
U.S.
alleged
511
294,
4
requires
[was],
U.S.
298
at
plaintiffs
to
objectively,
834
(1991)).
(quoting
To
be
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“sufficiently
meaning
that
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serious,”
it
poses
the
“a
Pg: 5 of 35
deprivation
serious
or
must
be
significant
“extreme”-physical
or
emotional injury resulting from the challenged conditions,” or
“a substantial risk of such serious harm resulting from . . .
exposure to the challenged conditions.”
De’Lonta v. Angelone,
330 F.3d 630, 634 (4th Cir. 2003) (internal quotation marks and
citation omitted).
bar,
the
Farmer
In medical needs cases, like the case at
test
requires
plaintiffs
to
demonstrate
officials’ deliberate indifference to a “serious” medical need
that
has
either
“been
diagnosed
by
a
physician
as
mandating
treatment or . . . is so obvious that even a lay person would
easily recognize the necessity for a doctor’s attention.”
Iko
v. Shreve, 535 F.3d 225, 241 (4th Cir. 2008).
Second, under Farmer’s “subjective” prong, plaintiffs must
show that prison officials acted with a “sufficiently culpable
state of mind.”
Farmer, 511 U.S. at 834 (internal quotation
marks omitted) (quoting Wilson, 501 U.S. at 297).
In conditions
of confinement cases, the requisite state of mind is deliberate
indifference.
must
show
Id.
that
To prove deliberate indifference, plaintiffs
“the
official
kn[ew]
of
and
disregard[ed]
an
excessive risk to inmate health or safety.”
Id. at 837.
Put
differently,
the
was
the
plaintiff
must
show
that
official
“aware of facts from which the inference could be drawn that a
substantial risk of serious harm exist[ed], and . . . dr[ew]
5
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th[at]
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inference.”
Id.
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(emphasis
added).
Deliberate
indifference is “more than mere negligence,” but “less than acts
or omissions [done] for the very purpose of causing harm or with
knowledge
that
harm
will
result.”
Id.
at
835.
It
“lies
somewhere between negligence and purpose or knowledge: namely,
recklessness
of
the
subjective
type
used
in
criminal
law.”
Brice v. Va. Beach Corr. Ctr., 58 F.3d 101, 105 (4th Cir. 1995)
(citing Farmer, 511 U.S. at 835).
“[d]isagreements
inmate’s
between
proper
an
medical
exceptional circumstances.
Under this standard, mere
inmate
care”
and
are
a
physician
not
over
actionable
the
absent
Wright v. Collins, 766 F.2d 841, 849
(4th Cir. 1985) (citing Gittlemacker v. Prasse, 428 F.2d 1, 6
(3d Cir. 1970)).
In deliberate indifference to medical needs cases, Farmer’s
subjective
prong
subjective
knowledge
condition
and
requires
the
of
Cir.
2014)
both
excessive
action or inaction.”
(4th
proof
of
the
risk
the
official’s
inmate’s
posed
by
serious
[the
“actual
medical
official’s]
Jackson v. Lightsey, 775 F.3d 170, 178
(citing
Farmer,
511
U.S.
at
837–39).
A
plaintiff can meet the subjective knowledge requirement through
direct
evidence
circumstantial
of
a
evidence
prison
official’s
tending
to
actual
establish
knowledge
such
or
knowledge,
including evidence “that a prison official knew of a substantial
risk from the very fact that the risk was obvious.”
6
Makdessi v.
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Fields, 789 F.3d 126, 133 (4th Cir. 2015) (quoting Farmer, 511
U.S. at 842).
A plaintiff also makes out a prima facie case of deliberate
indifference when he demonstrates “that a substantial risk of
[serious harm] was longstanding, pervasive, well-documented, or
expressly
noted
by
prison
officials
in
the
past,
and
the
circumstances suggest that the defendant-official . . . had been
exposed to information concerning the risk and thus must have
known about it . . . .”
Parrish ex rel. Lee v. Cleveland, 372
F.3d 294, 303 (4th Cir. 2004) (first alteration in original)
(internal quotation marks omitted) (quoting Farmer, 511 U.S. at
842).
an
Similarly, a prison official’s “[f]ailure to respond to
inmate’s
known
medical
needs
raises
deliberate indifference to those needs.”
F.2d
848,
853
(4th
Cir.
1990),
grounds by Farmer, 511 U.S. at 837.
an
inference
[of]
Miltier v. Beorn, 896
overruled
in
part
on
other
However, even officials who
acted with deliberate indifference may be “free from liability
if they responded reasonably to the risk.”
844.
7
Farmer, 511 U.S. at
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II.
Plaintiff entered federal custody at Federal Prison Camp
Seymour Johnson in October 2002. 1
myriad
medical
conditions,
At that time, he suffered from
including
hepatitis
C,
a
knee
infection, insulin-dependent diabetes, and high blood pressure.
In the years that followed, Plaintiff was confined in various
federal prison facilities.
In particular, from June 2005 to
March 2006, Plaintiff was incarcerated at Federal Prison Camp
Butner in Butner, North Carolina.
incidents
purportedly
occurred
constitutional claims.
During that time, several
and
gave
rise
to
a
number
of
Following a circuitous journey through
the federal judicial system, the present appeal addresses only a
subset of these claims.
On February 28, 2008, Plaintiff filed a Bivens action pro
se
in
the
Columbia.
alleged
United
States
Plaintiff’s
violations
of
District
original
his
Court
for
complaint
rights
under
the
sought
the
District
relief
Fourth,
of
for
Fifth,
Eighth, and Fourteenth Amendments, naming as defendants various
federal officials, including the Bureau of Prisons, then-Bureau
Director
Harley
Lappin,
Regional
1
Director
Kim
White,
Warden
After pleading guilty to maintaining a place for the
purpose of manufacturing, distributing, or using phencyclidine,
Plaintiff was sentenced to 78 months’ imprisonment. The nature
of his conviction and sentence are irrelevant to this appeal.
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Stansberry,
Officer
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Administrator
Richard
Holt
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McClintock,
(“Officer
and
Holt”).
Butner
Correctional
After
dismissing
a
number of these claims on jurisdictional and sovereign immunity
grounds,
the
district
court
transferred
Plaintiff’s
remaining
claims against Warden Stansberry, Administrator McClintock, and
Officer Holt to the United States District Court for the Eastern
District of North Carolina.
Scinto v. Fed. Bureau of Prisons,
608 F. Supp. 2d 4, 10 (D.D.C.), aff’d, 352 F. App’x 448 (D.C.
Cir.
2009).
Plaintiff
Following
successfully
additional
Eighth
a
second
amended
Amendment
appeal
his
in
this
Circuit,
to
include
complaint
claims
against
defendants
Dr.
Phillip and Butner Correctional Officer Lawrence Coor (“Officer
Coor”).
Scinto v. Stansberry, 507 F. App’x 311 (4th Cir. 2013)
(per curiam).
on
September
Cross-motions for summary judgment followed and,
9,
2014,
the
district
court
denied
Plaintiff’s
motion for summary judgment and granted summary judgment to the
defendants on each of Plaintiff’s claims.
Plaintiff appeals only three of the claims dismissed on
summary
judgment,
each
arising
under
the
Eighth
Amendment.
These include: (1) Plaintiff’s claim against Dr. Phillip for
allegedly denying Plaintiff insulin to treat his diabetes; (2)
Plaintiff’s
claims
against
Dr.
Phillip
and
Administrator
McClintock for allegedly failing to provide aid in a medical
emergency; and (3) Plaintiff’s claim against Warden Stansberry
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for her alleged failure to provide Plaintiff with a diabetic
diet
during
Plaintiff’s
incarceration
in
segregation (the “Special Housing Unit”).
administrative
We address the facts
relevant to each claim below.
III.
“We review the district court’s grant of summary judgment
de
novo,
viewing
the
facts
and
the
reasonable
inferences
therefrom in the light most favorable to the nonmoving party.”
Bonds v. Leavitt, 629 F.3d 369, 380 (4th Cir. 2011).
Summary
judgment must be granted “if the movant shows that there is no
genuine
dispute
as
to
any
material
fact
and
entitled to judgment as a matter of law.”
56(a).
which
the
movant
is
Fed. R. Civ. P.
To survive summary judgment, “there must be evidence on
the
jury
could
reasonably
find
for
the
[nonmovant].”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986).
A.
1.
Plaintiff’s first claim alleges that Dr. Phillip violated
Plaintiff’s Eighth Amendment rights by denying Plaintiff insulin
to
treat
doctor
his
at
diabetes.
Federal
Prison
Dr.
Phillip
was
Camp
Butner
and
Plaintiff’s
treated
prison
several
Plaintiff’s medical conditions, including his diabetes.
of
On
June 5, 2005, shortly after Plaintiff’s arrival at Butner, Dr.
Phillip
prescribed
Plaintiff
morning
10
and
evening
insulin
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injections,
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as
well
as
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supplemental
insulin
injections
upon a “sliding scale” keyed to his blood sugar.
that
sliding
scale,
Plaintiff
was
based
According to
prescribed
two
units
of
insulin when his blood sugar was between 141 and 150 milligrams
(“mg”) per deciliter (“dL”), four units when his blood sugar was
between 151 and 200mg/dL, and so on.
On June 14, 2005, Plaintiff requested from Dr. Phillip and
other
medical
supplemental
200mg/dL.
personnel
insulin
at
Federal
injection
Medical
because
his
Camp
Butner
blood
sugar
a
was
Based on the sliding scale Dr. Phillip prescribed,
Plaintiff should have received four units of insulin.
At the
time of his request, Plaintiff admits that he was “angry”--at
least in part because his blood sugar was high.
agree
that,
dictated
by
rather
than
Plaintiff’s
providing
four
prescription,
units
Dr.
The parties
of
insulin
Phillip
as
terminated
Plaintiff’s visit to the medical clinic and declined to provide
him with insulin.
Instead, Dr. Phillip developed an alternative
plan to monitor Plaintiff’s blood sugar levels at mealtimes and
to
“cover
desired.
each
meal
with
short
acting
insulin”
if
Plaintiff
J.A. 521. 2
2
Citations to “J.A. __” refer to the Joint Appendix filed
by the parties in this appeal.
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According to Plaintiff’s evidence, the June 14 incident was
not
the
first
time
insulin injections.
last.
Dr.
Phillip
denied
Plaintiff
prescribed
Nor, according to Plaintiff, was it the
Although medical records reflect Dr. Phillip’s plan to
monitor Plaintiff’s blood sugar and provide supplemental insulin
at mealtimes, Plaintiff filed two Inmate Request to Staff forms
(“cop-outs”) that suggest this plan was never followed.
First,
on June 22, 2005, Plaintiff directed a cop-out to Dr. Phillip
“request[ing] insulin coverage whenever my blood glucose levels
rise above 200mg/dl.”
J.A. 88.
And on July 27, 2005, Plaintiff
addressed another cop-out to Dr. Phillip referencing his June 22
request
for
supplemental
insulin
(along
with
several
other,
unrelated requests for medical attention) and stating that his
conditions
“remain
untreated
[and]
uncured.”
J.A.
82.
Dr.
Phillip admits that he did not provide Plaintiff with insulin
during the June 14 appointment, but asserts that the denial was
justified based on Plaintiff’s threatening behavior and that his
treatment of Plaintiff’s diabetes before and after this incident
was appropriate.
Plaintiff
denials
increase
of
in
claims
that
supplemental
Plaintiff’s
Dr.
insulin
blood
Phillip’s
resulted
sugar
and
alleged
in
his
an
repeated
unhealthy
hemoglobin
A1C
levels, which rose from approximately 7 (within the normal range
for diabetics) to 9.8 (an unhealthy level for diabetics) from
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January to September 2005.
that
the
inadequate
“unnecessary
causing
More generally, Plaintiff claims
treatment
exacerbation
condition[],
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of
of
his
his
serious
harm
diabetes
serious
to
the
resulted
in
diabetic
. . .
Plaintiff
[that]
resulted in damage to the Plaintiff’s kidney’s [sic], eyesight,
nervous system, . . . and psychological well being.”
J.A. 165.
2.
Contrary to the district court’s holding, Plaintiff adduced
sufficient evidence to establish a genuine dispute of fact as to
both Farmer’s objective and subjective prongs.
Regarding
the
objective
prong,
Plaintiff’s
evidence
established that he suffers from a serious medical condition:
insulin-dependent
diabetes.
This
medical
condition
was
diagnosed by a medical professional, and Dr. Phillip provided
treatment for the condition by prescribing Plaintiff’s insulin
regimen.
Moreover, Plaintiff has created a genuine issue of
material fact regarding whether Dr. Phillip’s failure to provide
him with insulin was an “extreme deprivation” resulting in “a
serious
or
significant
physical
or
emotional
injury”
or
“a
substantial risk” thereof actionable under the Eighth Amendment.
See De’Lonta, 330 F.3d at 634.
denied
Plaintiff
a
supplemental
Dr. Phillip admits that he
dose
of
insulin
on
June
2005, at a time when Plaintiff’s blood sugar was 200mg/dL.
14,
This
may be sufficient alone to meet the objective test set forth in
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Farmer.
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See, e.g., Lolli v. Cty. of Orange, 351 F.3d 410, 420
(9th Cir. 2003) (“Leaving a diabetic . . . without proper food
or
insulin
when
it
is
needed
creates
an
objectively,
sufficiently serious risk of harm.” (internal quotation marks
omitted)).
Even
without
drawing
this
conclusion,
however,
Plaintiff
raises a genuine dispute of material fact as to whether the
deprivation of his prescribed insulin caused serious injury or a
substantial risk of serious injury as required by the objective
prong.
He does so by pointing to his deposition testimony and
medical
records
hemoglobin
A1C
showing
values
an
from
increase
January
in
to
his
blood
September
sugar
2005,
and
which
encompasses the period from June to August 2005 during which Dr.
Phillip was assigned to treat Plaintiff’s diabetes.
Viewing
these facts in the light most favorable to Plaintiff, there are
genuine
disputes
increase
is
withholding
of
itself
insulin
material
a
fact
serious
from
an
as
injury
to
whether
and
(2)
insulin-dependent
(1)
the
this
act
diabetic
of
alone
creates a serious injury or a substantial risk of such injury.
Plaintiff’s
evidence
also
created
a
genuine
material fact as to Farmer’s subjective prong.
dispute
of
As Plaintiff’s
prison doctor, Dr. Phillip knew of Plaintiff’s serious medical
condition.
under
which
Indeed, Dr. Phillip prescribed the insulin regimen
Plaintiff
was
to
14
receive
supplemental
insulin
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injections
evidence
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when
his
blood
establishes
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sugar
that
Dr.
was
above
Phillip
140mg/dL.
was
aware
This
of
facts--
Plaintiff’s diabetes and his blood sugar value at the time of
his
request
failing
for
to
insulin--giving
provide
insulin
rise
could
to
an
result,
inference
at
least,
that
in
a
substantial risk of serious harm.
Moreover, viewed in the light most favorable to Plaintiff,
Plaintiff’s
diabetes
lengthy
prison
diagnosis
medical
was
records
“longstanding,
show
that
pervasive,
his
well-
documented, [and] expressly noted by prison officials,” Parrish,
372 F.3d at 303--including by Dr. Phillip himself.
sufficient
to
indifference.
of
Plaintiff’s
prove
Id.
a
prima
facie
case
This is
of
deliberate
Furthermore, as in Miltier, Dr. Phillip knew
medical
need
for
insulin
at
the
time
of
the
request and failed to respond to that known need, raising an
inference
of
deliberate
indifference.
896
F.2d
at
853,
overruled in part on other grounds by Farmer, 511 U.S. at 837.
The
district
court
erred
in
failing
to
apply
the
Parrish
presumption and infer deliberate indifference from Dr. Phillip’s
knowledge
of
Plaintiff’s
diabetes
and
disregard
of
his
own
above,
the
prescription designed to manage that condition.
Notwithstanding
the
factual
disputes
outlined
district court granted Dr. Phillip’s motion for summary judgment
for two principal reasons.
First, the court found fault with
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Plaintiff’s failure to offer medical expert testimony (a) that
his blood sugar level during the June 14 appointment “created a
substantial harm” under the objective prong of Farmer and (b)
that
Dr.
Phillip’s
failure
to
provide
insulin
during
the
appointment “resulted in some substantial harm” sufficient to
satisfy the objective prong. 3
J.A. 956.
Second, the district
court concluded that Dr. Phillip had no obligation under the
Eighth Amendment to provide Plaintiff, “an angry and hostile
patient,” with the requested insulin.
the
district
court
held,
Dr.
J.A. 956.
Phillip
Accordingly,
satisfied
his
constitutional burden by ordering staff to monitor Plaintiff’s
condition and provide supplemental insulin at mealtimes.
We
disagree with both conclusions.
Regarding
plaintiffs
the
alleging
absence
of
deliberate
3
expert
medical
indifference
must,
testimony,
“[a]t
a
We emphasize that the correct standard to apply when
considering the objective prong of deliberate indifference
claims is whether there is an “extreme deprivation” and “a
serious or significant physical or emotional injury resulting
from the challenged conditions or . . . a substantial risk of
such serious harm resulting from . . . exposure to the
challenged conditions.”
De’Lonta, 330 F.3d at 634.
The
district court’s reference to a “substantial harm” requirement
does not change this analysis substantively, but does alter
unnecessarily
the
language
set
forth
in
Fourth
Circuit
precedent. We caution that the “serious or significant” injury
or “substantial risk” standard, not the district court’s
“substantial harm” standard, should be used when instructing the
jury on the objective prong of the Farmer test.
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minimum, . . . specifically describe not only the injury but
also its relation to the allegedly unconstitutional condition.”
Strickler v. Waters, 989 F.2d 1375, 1381 n.9 (4th Cir. 1993).
There
is
no
requirement,
however,
that
a
plaintiff
alleging
deliberate indifference present expert testimony to support his
allegations of serious injury or substantial risk of serious
injury.
Rather, the Federal Rules of Evidence apply, and expert
testimony is necessary--indeed, permissible--only when it will
“help
the
determine
trier
a
of
fact
fact
in
to
understand
issue.”
Fed.
R.
the
evidence
Evid.
or
702(a).
to
When
laypersons are just “as capable of comprehending the primary
facts
and
of
drawing
correct
conclusions
from
them”
experts, expert testimony may properly be excluded.
U.S. Lines Co., 370 U.S. 31, 35 (1962).
as
are
Salem v.
As a result, when the
seriousness of an injury or illness and the risk of leaving that
injury or illness untreated would be apparent to a layperson,
expert
testimony
is
indifference claim.
not
necessary
to
establish
a
deliberate
See, e.g., Blackmore v. Kalamazoo Cty., 390
F.3d 890, 899–900 (6th Cir. 2004); Boring v. Kozakiewicz, 833
F.2d 468, 473 (3d Cir. 1987).
Recognizing that it is a “[w]ell-known” fact that diabetes
is
a
“common
yet
serious
illness
that
can
produce
harmful
consequences if left untreated for even a short period of time,”
several of our Sister Circuits have denied defendants summary
17
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judgment
on
Filed: 11/04/2016
Eighth
Pg: 18 of 35
Amendment
claims
alleging
that
prison
officials deprived diabetic inmates of insulin, even when those
claims were not supported by expert testimony.
Lolli, 351 F.3d
at 419–20 (concluding, based on the plaintiff’s testimony, that
a
diabetic
person
who
is
“unable
to
take
insulin
. . .
regularly” suffers a sufficiently serious risk of harm); Natale
v. Camden Cty. Corr. Facility, 318 F.3d 575, 582–83 (3d Cir.
2003)
(holding,
in
the
absence
of
expert
testimony,
that
a
reasonable jury could conclude that prison officials who knew
the
inmate
was
deliberately
reasons).
diabetic
indifferent
We
agree:
a
and
in
needed
insulin
regularly
denying
insulin
for
jury
is
capable
of
were
nonmedical
understanding,
unaided, the risks of failing to provide insulin to a diabetic
and of a trained doctor’s denial of a diabetic’s known need for
insulin.
that
Accordingly, we reject the district court’s contention
Plaintiff
was
required
to
adduce
expert
testimony
to
demonstrate an objectively serious deprivation giving rise to a
claim under the Eighth Amendment.
Regarding Dr. Phillip’s response to Plaintiff’s request for
insulin,
we
agree
that--even
when
both
Farmer
prongs
are
satisfied--a prison official who responds reasonably in the face
of a known, serious risk of harm to an inmate may be “free from
liability”
avoided.
under
the
Eighth
Amendment
Farmer, 511 U.S. at 844.
18
even
if
harm
is
not
But even assuming arguendo
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that it was reasonable for Dr. Phillip to decline to provide
Plaintiff
insulin
in
the
face
of
his
“angry”
demands
and,
instead, to plan to monitor Plaintiff’s blood sugar and provide
supplemental
insulin
at
mealtimes,
Plaintiff
nonetheless
has
established a genuine dispute of fact as to whether Dr. Phillip
followed through with that plan.
In particular, Plaintiff’s
June 22 and July 27, 2005, cop-outs raise a reasonable inference
that
Dr.
Phillip
failed
to
provide
proposed by his alternative plan.
supplemental
insulin
as
Therefore, the district court
erred in concluding that there was no genuine dispute of fact as
to
whether
Dr.
Phillip
reasonably
responded
to
Plaintiff’s
medical needs.
B.
1.
We now turn to Plaintiff’s second Eighth Amendment claim,
which arises out of Dr. Phillip’s and Administrator McClintock’s
alleged failure to provide aid to Plaintiff during a medical
emergency.
On
August
24,
2005,
Plaintiff
was
locked
in
his
housing unit while prison officials conducted a “census count.” 4
During that time, the flow of water to Plaintiff’s unit was
discontinued
because
maintenance
4
workers
were
repairing
the
During a census count, inmates must remain in place while
prison officials conduct a count to ensure that all inmates are
in their assigned locations.
19
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unit’s showers.
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While locked down and unable to access water,
Plaintiff began experiencing “extreme [stomach] pain . . . was
throwing up vomit and blood . . . [and] became incontinent.”
J.A. 846.
In this state, Plaintiff used an emergency phone in
the unit to call for help by dialing a “deuces alarm” (2-2-2).
The
parties
emergency phone.
dispute
Plaintiff’s
reason
using
the
Plaintiff claims that he used the phone to
report his illness, saying “I’m sick.
can’t get anything to drink.
all over me.”
for
The water is off.
I can’t wash up.
J.A. 848–49.
I
I’ve got blood
By contrast, in a now-expunged
incident report arising from the phone use, prison officials
recorded that Plaintiff used the phone to complain about the
lack
of
water.
According
to
prison
officials,
Plaintiff
complained that he “ha[d] to get a shower” before reporting to
his work shift that afternoon.
that
the
officials’
explanation
J.A. 327.
is
Plaintiff asserts
unfounded
since
prison
records show that he worked only the morning shift on the day in
question.
When
prison
officials
responded
to
Plaintiff’s
emergency
call, they offered no assistance even though Plaintiff points to
several
“outward
signs”
of
his
need
for
medical
attention,
including that his cell “reeked to high heaven” and that his
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face was covered with partially wiped-up vomit and blood. 5
867–68.
J.A.
Despite his distressed state, Plaintiff claims that Dr.
Phillip simply “looked at [Plaintiff] in disgust and turned his
head and started to walk away,” providing no medical aid.
858.
According
to
Plaintiff’s
evidence,
J.A.
Administrator
McClintock also failed to provide Plaintiff with treatment or
call for medical assistance, instead ordering prison guards to
“lock
him
up”
in
the
Special
Housing
Unit.
J.A.
858–59.
Thereafter, prison officials removed Plaintiff to the Special
Housing Unit, where he was confined for six months.
Plaintiff’s evidence indicates he did not receive medical
attention until at least two days after the August 24 incident,
with the only related entry in his medical record appearing on
August 29, 2005--five days after the purported emergency.
court
documents,
cholelithiasis
Plaintiff
attributes
(gallstones),
signs
his
emergency
of
which
to
were
In
acute
first
documented in his medical record on July 20, 2005, over one
month prior to the incident.
5
In recounting their version of events, prison officials
make no mention of Plaintiff’s physical appearance or medical
condition.
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2.
Again, Plaintiff’s evidence establishes genuine disputes of
material fact as to both Farmer prongs.
genuine
dispute
regarding
whether
First, there is a
Dr.
Phillip’s
and
Administrator McClintock’s failure to provide aid to Plaintiff
after he used the emergency phone constituted an “objectively,
sufficiently serious” deprivation.
Viewing the facts in the
light most favorable to Plaintiff, as we must, Plaintiff was
suffering from a serious, visible medical need at the time Dr.
Phillip and Administrator McClintock responded to his emergency
call.
in
In particular, Plaintiff was experiencing “extreme pain
[his]
stomach,
. . .
became incontinent.”
medical
and
blood[,
and]
This is the sort of serious
easily recognize the necessity for a doctor’s attention.”
Iko,
at
241
obvious
vomit
would
F.3d
“so
J.A. 846.
up
person
535
condition
throwing
(internal
that
even
quotation
a
marks
lay
omitted)
(quoting
Henderson v. Sheahan, 196 F.3d 839, 846 (7th Cir. 1999)).
Further, Plaintiff’s evidence creates a genuine dispute of
fact as to whether the denial of medical attention during this
emergency resulted in serious injury or a substantial risk of
serious injury.
A juror could reasonably infer that failing to
treat, for two to five days, an inmate who is vomiting blood and
experiencing
risk
that
evident
serious
physical
bodily
distress
injury
22
will
creates
result
a
or
substantial
has
already
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occurred.
records,
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This conclusion is supported by Plaintiff’s medical
which
indicate
that,
at
the
time
of
the
alleged
emergency, he may have been experiencing complications arising
from an earlier gallstone diagnosis.
Plaintiff also has raised a genuine issue of material fact
on
the
subjective
prong
of
Farmer--whether
Dr.
Phillip
and
Administrator McClintock acted with deliberate indifference in
failing to provide assistance in the face of Plaintiff’s alleged
medical
emergency.
In
particular,
there
is
sufficient
circumstantial evidence to suggest that Defendants were aware of
facts giving rise to an inference that their decision to send
Plaintiff to the Special Housing Unit without providing medical
aid created a substantial risk of serious injury.
Plaintiff’s testimony that his cell “reeked” and his face
exhibited
visible
signs
of
illness,
as
well
as
his
contemporaneous account of his symptoms create a genuine factual
dispute
about
whether
his
need
for
medical
attention
was
so
obvious that an official observing the scene would have both
known
of
the
facts
giving
rise
to
a
risk
of
serious
harm
resulting from failure to provide medical attention and inferred
that such a substantial risk was present.
outward
signs
of
Plaintiff’s
need
for
In addition, these
medical
attention
and
Defendants’ contemporaneous failure to offer aid give rise to an
inference of deliberate indifference sufficient for Plaintiff’s
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claim to survive summary judgment.
See Miltier, 896 F.3d at 853
(“Failure to respond to an inmate’s known medical needs raises
an inference [of] deliberate indifference to those needs.”).
C.
1.
Plaintiff’s final Eighth Amendment claim is against Warden
Stansberry and alleges a denial of a proper diabetic diet during
his
six-month
confinement
in
the
Special
Housing
Unit.
According to Plaintiff’s evidence, the only meals available to
Plaintiff in the Special Housing Unit were those served to every
other inmate in the unit--meals high in sugar and accompanied by
a sugary drink.
Plaintiff
complain
to
used
Warden
diabetic diet.
several
Stansberry
channels
about
the
of
communication
unavailability
of
to
a
First, Plaintiff complained to the Warden during
her weekly rounds in the unit.
Second, Plaintiff submitted cop-
outs to Warden Stansberry seeking redress for his complaints.
Third, Plaintiff wrote to his congressman, asking him to inquire
with prison officials about the deficiencies in his diet.
After
the congressman forwarded this correspondence to the Bureau of
Prisons, Warden Stansberry addressed the allegations in a reply
letter.
She acknowledged that inmates in the Special Housing
Unit did not receive special diets but maintained that inmates
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were educated about how to select foods appropriate for their
medical conditions.
Because of the alleged deficiencies in the diet offered in
the Special Housing Unit, Plaintiff claims to have suffered an
increase in his blood sugar and A1C levels.
Prison medical
officials
increasing
sought
to
insulin dosage.
loss
of
. . .
destructive
combat
symptoms
by
his
This treatment purportedly “resulted in the
diabetic
episodes
hyperglycemia.”
these
control
of
. . .
diabetic
and
severe
painful
hypoglycemia
and
and
. . .
J.A. 626.
The district court assumed without deciding that Plaintiff
raised a genuine issue of material fact on Farmer’s objective
prong:
that
the
sufficiently
lack
serious
of
a
diabetic
deprivation.
The
diet
constituted
court
went
on
a
to
conclude, however, that there was no genuine dispute regarding
whether Warden Stansberry knew of and disregarded Plaintiff’s
need for a special diet.
Plaintiff’s
revealed
log
that
of
The court based its conclusion on
interactions
Plaintiff
was
with
“mainly
prison
officials,
focused
on
which
pursuing
a
collateral attack on his criminal conviction and on defending
against
his
disciplinary
informing
The court went on to note that even if there were a
material
fact
25
considered
on
J.A. 964.
of
he
than
of
dispute
conditions”
rather
Stansberry
genuine
the
charge,
on
this
unconstitutional.
subjective
prong,
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Plaintiff’s acknowledgement that he otherwise received adequate
medical treatment for his diabetes while confined in the Special
Housing
Unit
rendered
a
finding
of
deliberate
indifference
untenable.
2.
We affirm the district court’s award of summary judgment in
favor of Warden Stansberry on this claim, but for a different
reason.
Viewing
the
record
in
the
light
most
favorable
to
Plaintiff, we conclude that Plaintiff failed to raise a genuine
dispute of material fact regarding whether, in this case, the
lack of a diabetic diet was a sufficiently serious deprivation
to be actionable under the Eighth Amendment.
conceded
in
her
deposition
and
in
her
Warden Stansberry
letter
to
Plaintiff’s
congressman that there was no diabetic diet provided to inmates
in the Special Housing Unit.
Even so, Warden Stansberry stated
on at least two occasions that all inmates were educated about
how to select from the available meals foods appropriate for
their medical conditions.
In
Farmer,
the
Supreme
Court
stated
that
the
Eighth
Amendment imposes a duty on prison officials to provide inmates
with “adequate food.”
Farmer, 511 U.S. at 832.
Several of our
Sister Circuits have reasoned, albeit in unpublished decisions,
that this duty includes an obligation to provide a medically
appropriate
diet
when
necessary.
26
For
instance,
the
Tenth
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Circuit has stated that the Eighth Amendment “requires officials
to provide inmates with a special diet if such an accommodation
is medically necessary.”
Frazier v. Dep’t of Corr., No. 97-
2086, 1997 WL 603773, at *1 (10th Cir. Oct. 1, 1997) (citing
Byrd v. Wilson, 701 F.2d 592, 595 (6th Cir. 1983)).
the
Seventh
Circuit
has
noted
that
the
Similarly,
Amendment
prisoners a medically and nutritionally sound diet.”
“assures
Jackson v.
Hanlon, Nos. 89-2144, 89-2368, 1991 WL 3056, at *1 (7th Cir.
Jan. 14, 1991).
Likewise, the Sixth Circuit has concluded that
“officials must provide inmates with a special diet if such an
accommodation
is
obviously
medically
necessary.”
Miller
v.
Cleek, No. 99-5145, 1999 WL 1045156, at *2 (6th Cir. Nov. 9,
1999) (citing Byrd, 701 F.2d at 594–95).
Yet
the
Eighth
Amendment’s
We agree.
requirement
that
prisoners
receive special diets when medically appropriate is not without
limit.
Courts
have
consistently
held
that
prison
officials
comply with this mandate when they provide some food that the
complaining prisoner is able to eat without compromising his
health.
For instance, in Frazier, the Tenth Circuit rejected a
prisoner’s
deliberate
indifference
claim
when
he
“d[id]
not
contend that he [wa]s unable to eat any of the food provided by
the correctional facility” and conceded that he was “able to eat
certain items on the facility’s menu.”
at *1.
Frazier, 1997 WL 603773,
The same was true in Miller, where the Sixth Circuit
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affirmed dismissal of an inmate’s inadequate diet claim based in
part on the lack of “evidence that [he] could not maintain his
health based on the diet provided and [the fact that he] d[id]
not contend that he was unable to eat any of the food provided
by the jail.”
Miller, 1999 WL 1045156, at *2.
Likewise, courts have found that inmates who are denied
special diets suffer no constitutional harm so long as they are
instead given instruction on how to eat the available meals in a
way that satisfies their medical needs.
For example, the Tenth
Circuit has found that an inmate who was served a universal,
cafeteria-style
cards”
to
diet
determine
but
could
use
what
foods
were
“nutritional
amenable
to
break
his
down
medical
condition could not claim deliberate indifference based on the
lack of a special diet.
Moore v. Perrill, No. 94-1377, 1995 WL
139407, at *1 (10th Cir. Mar. 31, 1995); see also Williams v.
Hartz,
43
F.
App’x
964,
966
(7th
Cir.
2002)
(affirming
the
district court’s award of summary judgment when the complaining
prisoner was not given a special diet, but was “instructed” on
medically
appropriate
food
choices
and
given
“snacks”
when
necessary to raise his blood sugar).
And a California district court held that a prisoner who
received the “Heart Healthy” diet provided to all inmates in the
state prison system and failed to present evidence that he could
not eat certain menu items or that the “overall percentage” of
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such
items
Filed: 11/04/2016
in
each
meal
was
Pg: 29 of 35
significant
could
not
summary judgment on his deliberate indifference claim.
survive
Baird v.
Alameida, 407 F. Supp. 2d 1134, 1140–41 (C.D. Cal. 2005).
We
find
deprivation”
these
is
decisions
actionable
persuasive.
under
the
Only
an
Eighth
“extreme
Amendment.
According to Plaintiff, the meals in the Special Housing Unit
included “a bread, a meat product[,] a vegetable[,] and a sweet
dessert.”
J.A. 279.
Plaintiff has not offered evidence that
there was no combination of foods in each meal that would have
provided him with adequate sustenance without causing adverse
medical consequences, instead asserting only that the meals were
high in sugar and accompanied by a sugary drink.
does
not
contradict
prison
officials’
Plaintiff also
claims
that
he
was
educated on how to eat the available meals (which were from the
“national diet” “approved for all” inmates, J.A. 462, 539) in a
way
that
Accordingly,
would
the
not
exacerbate
district
court
6
his
diabetic
properly
condition. 6
awarded
Warden
Because Plaintiff has not raised a genuine issue of
material fact as to whether there was a sufficiently serious
deprivation, we need not consider whether he has sufficiently
established the subjective, deliberate indifference prong.
See
Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986) (requiring
the nonmovant to “make a sufficient showing on” every essential
element to survive summary judgment).
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Stansberry summary judgment on Plaintiff’s diet and nutrition
claim. 7
IV.
Having
determined
that
Plaintiff’s
claims
against
Dr.
Phillip and Administrator McClintock should go forward, we must
address Defendants’ argument that they are entitled to qualified
immunity.
Defendants
raised
qualified
immunity
before
the
district court, but because the court ruled for Defendants on
the
merits,
entitlement
it
to
did
not
qualified
reach
the
immunity.
question
of
Qualified
provide a basis for affirming the district court.
Defendants’
immunity
may
R.R. ex rel.
R. v. Fairfax Cty. Sch. Bd., 338 F.3d 325, 332 (4th Cir. 2003)
(“[W]e may affirm the district court’s judgment on any ground
properly raised below.”) (citing Nw. Airlines, Inc. v. Cty. of
Kent, 510 U.S. 355, 364 (1994)).
Qualified immunity shields “government officials performing
discretionary functions . . . from liability for civil damages
7
Though we affirm the district court’s award of summary
judgment on Plaintiff’s diet and nutrition claim, we reject the
district court’s reasoning that because Plaintiff received some
adequate treatment for his diabetes while in the Special Housing
Unit he cannot complain about other aspects of that treatment.
To the contrary, this court has held that “just because [prison
officials] have provided [an inmate] with some treatment . . .
it does not follow that they have necessarily provided h[im]
with constitutionally adequate treatment.” See De’lonta v.
Johnson, 708 F.3d 520, 526 (4th Cir. 2013).
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insofar as their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable person
would have known.”
(1982).
Harlow v. Fitzgerald, 457 U.S. 800, 818
In determining whether defendant government officials
are protected by qualified immunity, the court considers both
“whether
a
constitutional
right
[was]
violated
on
the
facts
alleged” and “whether the right was clearly established” at the
time of the conduct in question.
Saucier v. Katz, 533 U.S. 194,
200 (2001), overruled in part by Pearson v. Callahan, 555 U.S.
223 (2009).
As
explained
sufficient
for
a
previously,
constitutional
rights
Plaintiff
prescribed
his
Administrator
were
McClintock
medical emergency.
has
jury
reasonable
Plaintiff
conclude
violated
insulin
failed
to
when
and
to
Dr.
when
aid
alleged
his
denied
Phillip
Plaintiff
See supra Parts III.A, B.
that
Phillip
Dr.
facts
during
and
a
Although a jury
may ultimately decide that Defendants’ version of events is more
credible, we are barred from making such a determination when
deciding whether to grant summary judgment based on qualified
immunity.
See Meyers v. Balt. Cty., 713 F.3d 723, 733 (4th Cir.
2013).
To determine whether the right was clearly established, we
first must define the right at issue.
738 F.3d 107, 118 (4th Cir. 2013).
31
Occupy Columbia v. Haley,
Dr. Phillip maintains that
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Doc: 51
should
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frame
our
analysis
Pg: 32 of 35
of
qualified
immunity
as
to
Plaintiff’s insulin claim as whether it is “clearly established
that
a
prison
medical
provider
runs
afoul
of
the
Eighth
Amendment when he does not give one single dose of insulin to a
federal
inmate,
after
the
inmate
becomes
angry
and
hostile
. . ., and the doctor implements a plan to monitor the inmate
thereafter.”
Appellees’ Br. at 44.
Similarly, Dr. Phillip and
Administrator McClintock assert that we should consider their
qualified
immunity
based
whether
on
as
a
to
Plaintiff’s
reasonable
medical
official
emergency
would
have
claim
known
it
violated a clearly established constitutional right to follow
protocol by placing an inmate in administrative detention after
he receives an incident report.
But
“[f]or
a
constitutional
right
to
be
clearly
established, its contours ‘must be sufficiently clear that a
reasonable
official
would
violates that right.’”
(quoting
Anderson
v.
understand
that
what
he
is
doing
Hope v. Pelzer, 536 U.S. 730, 739 (2002)
Creighton,
483
U.S.
635,
640
(1987)).
There is no requirement that the “very action in question [must
have] previously been held unlawful” for a reasonable official
to
have
notice
Accordingly,
we
that
his
reject
conduct
Dr.
violated
Phillip’s
32
that
right.
Id.
and
Administrator
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invitations
to
Pg: 33 of 35
define
the
rights
at
issue
in
accordance with the “very action[s] in question.” 8
Rather, we define the right in question as the right of
prisoners to receive adequate medical care and to be free from
officials’ deliberate indifference to their known medical needs.
This
definition
is
consistent
with
indifference cases from this Circuit.
previous
deliberate
For example, in Iko v.
Shreve--a case in which a prisoner alleged government officials
failed to conduct a medical evaluation after pepper-spraying him
to compel compliance during a cell removal--this Court defined
the right at issue as “the right to adequate medical care.”
F.3d at 243 n.12.
535
This definition also accords with Supreme
Court jurisprudence, which has long dictated that the Eighth
Amendment confers a duty upon prison officials to ensure that
prisoners “receive adequate . . . medical care.”
Farmer, 511
U.S. at 832.
A prisoner’s right to adequate medical care and freedom
from deliberate indifference to medical needs has been clearly
established by the Supreme Court and this Circuit since at least
1976
and,
thus,
was
clearly
established
8
at
the
time
of
the
We reject Dr. Phillip’s and Administrator McClintock’s
framing of the right at issue in Plaintiff’s medical emergency
claim for the additional reason that it would require us to make
a
credibility
determination
inappropriate
at
the
summary
judgment stage of litigation.
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events in question.
See, e.g., Estelle, 429 U.S. at 104–05 (“We
therefore
that
medical
conclude
needs
of
deliberate
prisoners
indifference
constitutes
the
to
serious
‘unnecessary
and
wanton infliction of pain’ proscribed by the Eighth Amendment.”
(citation omitted) (quoting Gregg v. Georgia, 428 U.S. 153, 182–
83 (1976))); Farmer, 511 U.S. at 832 (“[P]rison officials must
ensure that inmates receive adequate food, clothing, shelter,
and medical care.”); Bowring v. Godwin, 551 F.2d 44, 47 (4th
Cir.
1977)
(“This
circuit
has
consistently
adhered
to
the
prevailing view in requiring reasonable medical treatment [for
inmates].”) (citing authorities).
Because we conclude that there is sufficient evidence that
Plaintiff’s Eighth Amendment right to adequate medical care and
freedom from officials’ deliberate indifference to his medical
needs was violated and that the right was clearly established,
Dr. Phillip and Administrator McClintock are not entitled to
qualified immunity. 9
9
Although we need not reach the issue here, we note once
again the “special problem” of “‘applying an objective qualified
immunity standard in the context of an Eighth Amendment claim
that is satisfied only by a showing of deliberate indifference’-that is, a knowing violation of the law.”
Cox v. Quinn, 828
F.3d 227, 238 n.4 (4th Cir. 2016) (quoting Rish v. Johnson, 131
F.3d 1092, 1098 n.6 (4th Cir. 1997)).
Some Circuits have resolved this problem by concluding that
qualified immunity is unavailable when the plaintiff presents a
genuine dispute of material fact regarding the defendant’s
(Continued)
34
Appeal: 15-1587
Doc: 51
Filed: 11/04/2016
Pg: 35 of 35
V.
For the foregoing reasons, we affirm the district court’s
disposition of Plaintiff’s deliberate indifference claim against
Warden Stansberry, reverse its resolution of the claims against
Dr.
Phillip
Phillip’s
and
and
Administrator
Administrator
McClintock,
McClintock’s
and
reject
Dr.
invocations
of
qualified immunity.
AFFIRMED IN PART AND REVERSED IN PART
deliberate indifference.
The Seventh Circuit, for example, has
held that the subjective prong of the Farmer test and the
objective, clearly established prong of the qualified immunity
test “effectively collapse into one” when the plaintiff raises
genuine factual disputes regarding the defendant’s deliberate
indifference. Walker v. Benjamin, 293 F.3d 1030, 1037 (7th Cir.
2002).
That court explained that when a plaintiff raises
genuine disputes of fact on Farmer’s subjective prong, “a
defendant may not avoid trial on the grounds of qualified
immunity” even though qualified immunity protects covered
government officials from suit, not merely from liability. Id.;
see also, e.g., Beers-Capitol v. Whetzel, 256 F.3d 120, 142 n.15
(3d Cir. 2001) (“[T]o the extent that the plaintiffs have made a
showing sufficient to overcome summary judgment on the merits
[of their deliberate indifference claim], they have also made a
showing
sufficient
to
overcome
any
claim
to
qualified
immunity.”). But see Estate of Ford v. Ramirez-Palmer, 301 F.3d
1043, 1049–50 (9th Cir. 2002) (rejecting the view that the
deliberate
indifference
and
clearly
established
inquiries
merge).
35
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