Still v. Darbouze, et al (INMATE 1)

Filing 31

OPINION. The defendants filed special reports and relevant supporting evidentiary materials, including medical records and an affidavit from Dr. Darbouze, addressing Still's claim for relief. Pursuant to the orders entered in this case, the cour t deems it appropriate to construe these reports as motions for summary judgment. Thus, this case is now pending on the defendants' motions for summary judgment. An appropriate summary judgment will be entered in favor of the Alabama Department of Corrections, Dr. Darbouze, and CMS and against Still. Signed by Honorable Judge Myron H. Thompson on 3/25/2014. (dmn, )

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION

KEITH STILL,
Plaintiff,
v.
DR. JEAN DARBOUZE, et al.,
Defendants.

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CIVIL ACTION NO.
2:11cv141-MHT
(WO)

OPINION
This 42 U.S.C. § 1983 action is before the court on a complaint filed by plaintiff
Keith Still, an indigent state inmate, challenging a prior decision of medical personnel at
the Easterling Correctional Facility that he is not an appropriate candidate for use of a
prosthetic leg. Still names the following persons as defendants: the Alabama Department
of Corrections, Dr. Jean Darbouze (the medical director at the Easterling Facility), and
Correctional Medical Services, also know as CMS (the contract medical care provider for
the state prison system).. Still seeks a full medical examination, provision of a prosthetic
leg, and any other relief the court deems proper.

The court has jurisdiction pursuant to

28 U.S.C. § 1331 (federal question).
The defendants filed special reports and relevant supporting evidentiary materials,
including medical records and an affidavit from Dr. Darbouze, addressing Still’s claim for
relief.

Pursuant to the orders entered in this case, the court deems it appropriate to

construe these reports as motions for summary judgment. Thus, this case is now pending

on the defendants’ motions for summary judgment. Upon consideration of the motions,
the evidentiary materials filed in support of it and Still’s response to it, the court
concludes that the defendants’ motions should be granted.

I. STANDARD OF REVIEW
"A party may move for summary judgment, identifying each claim or defense--or
the part of each claim or defense--on which summary judgment is sought. The court shall
grant summary judgment 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). The court must view the admissible evidence in the light most favorable to the
non-moving party and draw all reasonable inferences in favor of that party. Matsushita
Elec. Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

II.
A.

DISCUSSION

The Alabama Department of Corrections

The law is well-settled that the State of Alabama and its agencies are absolutely
immune from suit for claims brought by inmates alleging inadequate medical treatment.
See Papasan v. Allain, 478 U.S. 265 (1986) (unless the State or its agency consents to
suit, the plaintiff cannot proceed against such defendant as the action is proscribed by the
Eleventh Amendment, and “[t]his bar exists whether the relief sought is legal or
equitable”). Any claims lodged against the Alabama Department of Corrections are
2

therefore “based on an indisputably meritless legal theory.” Neitzke v. Williams, 490 U.S.
319, 327 (1989).1 Consequently, the Alabama Department of Corrections is entitled to
summary judgment in its favor.

B.

Claims Against Dr. Darbouze and CMS

Still asserts that, during his confinement at the Easterling Facility in the latter part
of 2010 through mid-2011, Dr. Darbouze and CMS denied him use of a prosthetic leg.
Specifically, he alleges that Dr. Darbouze denied him proper consideration for “being
given a prosthetic leg, after having had removal of his [right] leg below the knee, due to
poor circulation, in 2008,” and that Dr. Darbouse “will approve nothing more than a
wheel chair . ” Compl. (Doc. No. 1) at 2.2 Dr. Darbouse and CMS deny that they acted
with deliberate indifference to Still’s medical needs. In support of this assertion, they
maintain that they provided medical treatment to Still in accordance with their
professional judgment and determined that he was not an appropriate candidate for a
prosthesis on his lower right leg due to his overall poor physical condition.
To prevail on a claim concerning an alleged denial of adequate medical treatment,
an inmate must, at a minimum, show that the defendants acted with deliberate
indifference to his serious medical needs. Estelle v. Gamble, 429 U.S. 97 (1976); Taylor
1.
Although Neitzke interpreted 28 U.S.C. § 1915(d), the predecessor to 28 U.S.C.
§ 1915(e)(2), the analysis contained therein remains applicable to the present statute.
2.
The record establishes that Still was transferred from the Easterling Facility to
Kilby Correctional Facility sometime prior to August 15, 2011, and thereafter from the Kilby
Facility to the Hamilton Aged and Infirmed Facility in January 2012.
3

v. Adams, 221 F.3d 1254 (11th Cir. 2000); McElligott v. Foley, 182 F.3d 1248 (11th Cir.
1999); Waldrop v. Evans, 871 F.2d 1030, 1033 (11th Cir. 1989); Rogers v. Evans, 792
F.2d 1052, 1058 (11th Cir.1986). Specifically, medical personnel may not subject an
inmate to “acts or omissions sufficiently harmful to evidence deliberate indifference to
serious medical needs.” Estelle, 429 U.S. at 106.
“Estelle requires, however not merely the knowledge of a condition, but the
knowledge of necessary treatment coupled with a refusal to treat properly or a delay in
such treatment.” Adams v. Poag, 61 F.3d 1537, 1546 (11th Cir. 1995) (quoting Howell v.
Evans, 922 F. 2d 712, 721 (11th Cir. 1991)). Thus,
“That medical malpractice-negligence by a physician-is
insufficient to form the basis of a claim for deliberate
indifference is well settled. See Estelle v. Gamble, 429 U.S.
97, 105-07, 97 S. Ct. 285, 292, 50 L. Ed. 2d 251 (1976);
Adams v. Poag, 61 F.3d 1537, 1543 (11th Cir. 1995). Instead,
something more must be shown. Evidence must support a
conclusion that a prison physician’s harmful acts were
intentional or reckless. See Farmer v. Brennan, 511 U.S. 825,
833-38, 114 S. Ct. 1970, 1977-79, 128 L. Ed. 2d 811 (1994);
Cottrell v. Caldwell, 85 F.3d 1480, 1491 (11th Cir. 1996)
(stating that deliberate indifference is equivalent of recklessly
disregarding substantial risk of serious harm to inmate);
Adams, 61 F.3d at 1543 (stating that plaintiff must show more
than mere negligence to assert an Eighth Amendment
violation); Hill v. Dekalb Regional Youth Detention Ctr., 40
F.3d 1176, 1191 n. 28 (11th Cir. 1994) (recognizing that
Supreme Court has defined ‘deliberate indifference’ as
requiring more than mere negligence and has adopted a
‘subjective recklessness’ standard from criminal law); Qian v.
Kautz, 168 F.3d 949, 955 (7th Cir. 1999) (stating that
‘deliberate indifference’ is synonym for intentional or
‘reckless’ conduct and that reckless conduct describes
conduct so dangerous that deliberate nature can be inferred).”
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Hinson v. Edmond, 192 F.3d 1342, 1345 (11th Cir. 1999).
In order to establish “deliberate indifference to [a] serious medical need
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, Inc., 588 F.3d 1291, 1306-07 (11th Cir. 2009). When
seeking relief based on deliberate indifference, an inmate is required to establish “an
objectively serious need, an objectively insufficient response to that need, subjective
awareness of facts signaling the need and an actual inference of required action from
those facts.” Taylor, 221 F.3d at 1258; see also McElligott, 182 F.3d at 1255 (for liability
to attach, the official must know of and then disregard an excessive risk to the prisoner).
Thus, deliberate indifference occurs only when a defendant “knows of and disregards an
excessive risk to inmate health or safety; the [defendant] must both be aware of facts from
which the inference could be drawn that a substantial risk of serious harm exists and he
must also draw the inference.” Farmer, 511 U.S. at 837; see also Johnson v. Quinones,
145 F.3d 164, 168 (4th Cir. 1998) (defendant must have actual knowledge of a serious
condition, not just knowledge of symptoms, and ignore known risk to serious condition to
warrant finding of deliberate indifference). Furthermore, “an 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.”
Farmer, 511 U.S. at 838. Thus,
“In articulating the scope of inmates’ right to be free from
deliberate indifference, ... the Supreme Court has ...
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emphasized that not every claim by a prisoner that he has not
received adequate medical treatment states a violation of the
Eighth Amendment. Estelle, 429 U.S. at 105, 97 S. Ct. at
291; Mandel, 888 F.2d at 787. Medical treatment violates the
eighth amendment only when it is ‘so grossly incompetent,
inadequate, or excessive as to shock the conscience or to be
intolerable to fundamental fairness.’ Rogers, 792 F.2d at
1058 (citation omitted). Mere incidents of negligence or
malpractice do not rise to the level of constitutional
violations. See Estelle, 429 U.S. at 106, 97 S. Ct. at 292
‘(Medical malpractice does not become a constitutional
violation merely because the victim is a prisoner.’); Mandel,
888 F.2d at 787-88 (mere negligence or medical malpractice
‘not sufficient’ to constitute deliberate indifference);
Waldrop, 871 F.2d at 1033 (mere medical malpractice does
not constitute deliberate indifference). Nor does 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 support a claim of cruel and unusual punishment.
See Waldrop, 871 F.2d at 1033 (citing Bowring v. Godwin,
551 F.2d 44, 48 (4th Cir.1977)).”
Harris v. Thigpen, 941 F.2d 1495, 1505 (11th Cir. 1991).

To show deliberate

indifference to a serious medical need, a plaintiff must demonstrate that the defendants’
response to the need was more than “merely accidental inadequacy, negligence in
diagnosis or treatment, or even medical malpractice actionable under state law.” Taylor,
221 F.3d at 1258 (internal citations omitted). Moreover, “as Estelle teaches, whether
government 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, 61 F.3d
at 1545 (quoting Estelle, 429 U.S. at 107); see also Garvin v. Armstrong, 236 F.3d 896,
898 (7th Cir. 2001) (“A difference of opinion as to how a condition should be treated
6

does not give rise to a constitutional violation.”); Hamm v. DeKalb Cnty., 774 F.2d 1567,
1575 (11th Cir. 1985) (mere fact inmate desires a different mode of medical treatment
does not amount to deliberate indifference violative of the Constitution); Franklin v.
Oregon, 662 F.2d 1337, 1344 (9th Cir. 1981) (prison medical personnel do not violate the
Eighth Amendment simply because their opinions concerning medical treatment conflict
with that of the inmate-patient).
The affidavit of Dr. Darbouze addresses the claim made by Still regarding the
denial of a prosthesis. A thorough review of the evidentiary materials filed in this case
demonstrates that this affidavit is corroborated by the objective medical records compiled
contemporaneously with treatment provided to Still relative to the instant claim of
deliberate indifference. She opines: “After ... evaluation, I determined that Mr. Still was
not a candidate for a prosthetic leg because his right leg and hip lacked sufficient strength
to withstand the day-to-day rigors associated with the use of a prosthesis.” Defs.’ Exh. 1
(Doc. 7-1) at 2-5 (citations to medical records omitted). She further opines: “I was also
concerned about the possibility of Mr. Still sustaining serious injuries as a result of a fall
with the use of a prosthesis. For example, Mr. Still had previously experienced a fall out
of his wheelchair on September 4, 2010, which resulted in an emergency evaluation by
the Easterling medical staff.” Id. She then concludes: “I can state to a reasonable degree
of medical certainty that Mr. Still would not derive any significant benefit from a leg
prosthesis given his overall medical condition. Furthermore, I do not believe in my
medical judgment that it would be advisable for Mr. Still to utilize a leg prosthesis
7

because of the potential risks for further injury if Mr. Still attempted utilize a prosthetic
leg.” Id.3
3.
The following is Dr. Darbouze’s more detailed explanation of her decision to
deny Still’s request for a prosthetic lower right leg.
“Mr. Still arrived at Easterling on June 28, 2010 and, therefore,
he has only been under my care for a period of less than one
year as of the date of this Affidavit (April 8, 2011). Mr. Still’s
right leg was amputated below his right knee in or about 2008,
i.e. prior to his incarceration at Easterling. I understand based
upon conversations with Mr. Still and a review of his medical
records that, since the surgical amputation of his right leg, Mr.
Still has not utilized a prosthesis of any kind at any time. In
fact, at the time of his arrival at Easterling, Mr. Still was still
confined to a wheelchair.
“Prior to arriving at Easterling, Mr. Still had been previously
diagnosed with a number of chronic medical conditions. For
example, Mr. Still experienced a significant stroke in 2004,
which resulted in some degree of lasting weakness in his
extremities. Additionally, Mr. Still had been diagnosed with
diabetes, hyperlipidemia and hypertension. Throughout his
incarceration at Easterling, I have prescribed a regimen of
medications for these chronic conditions, and Mr. Still has been
enrolled in regularly scheduled chronic care clinics for routine
evaluations of his chronic conditions by me and other members
of the medical staff. I, along with other members of the medical
staff at Easterling, provided Mr. Still with ‘profiles,’ which are
simply medical orders allowing him to deviate from the standard
operating protocols within a correctional facility in order to
accommodate a patient’s chronic medical conditions.
“Mr. Still filed a Medical Grievance, pursuant to the longstanding grievance procedure available to all inmates at
Easterling, on October 11, 2010. In this Medical Grievance, Mr.
Still complained about the absence of an order for him to receive
a prosthesis for his right leg. Kay Wilson, a registered nurse and
the health services administrator at Easterling, responded to this
Medical Grievance, stating that Mr. Still had not previously
(continued...)
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3.(...continued)
requested an evaluation for a prosthesis and instructed Mr. Still
to submit a sick call form if he truly wished to be evaluated for
a prosthesis for his right leg. As Nurse Wilson stated and as
reflected in Mr. Still’s medical records, he had not submitted
any written request to the medical staff prior to October 11,
2010, for evaluation for a leg prosthesis and he had not voiced
any such request to me prior to this date.
“Mr. Still submitted a sick call request form on October 13,
2010, requesting that I ‘examine’ him for a prosthetic leg.
Pursuant to the sick call procedure at Easterling, Mr. Still
underwent an initial evaluation the following day by a member
of the medical staff during the course of sick call and was
referred to me for further evaluation.
“I evaluated Mr. Still on October 18, 2010, regarding his request
for a leg prosthesis. At the time of this evaluation, I conducted
a thorough physical examination of Mr. Still to determine the
level of strength as well as the overall structural capacity of his
right leg and hip. After this evaluation, I determined that Mr.
Still was not a candidate for a prosthetic leg because his right
leg and hip lacked sufficient strength to withstand the day-today rigors associated with the use of a prosthesis. In fact, I
became very concerned that a prosthesis might cause a fracture
in Mr. Still’s right hip - an injury that is not uncommon in
patients who have undergone the very type of amputation
experienced by Mr. Still whose hips are no longer capable of
tolerating the weight associated with the use of a prosthesis. I
was also concerned about the possibility of Mr. Still sustaining
serious injuries as a result of a fall with the use of a prosthesis.
For example, Mr. Still had previously experienced a fall out of
his wheelchair on September 4, 2010, which resulted in an
emergency evaluation by the Easterling medical staff. At the
conclusion of this appointment [and my evaluation of his
physical condition], I assured Mr. Still that I would undertake a
complete review of his medical records to confirm my findings.
My review of Mr. Still’s historical medical records confirmed
that (a) Mr. Still had never utilized a leg prosthesis, and (b) there
was no indication in Mr. Still’s historical medical records that
(continued...)
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3.(...continued)
he would derive any benefit from a prosthesis.
“I can state to a reasonable degree of medical certainty that Mr.
Still would not derive any significant benefit from a leg
prosthesis given his overall medical condition. Furthermore, I
do not believe in my medical judgment that it would be
advisable for Mr. Still to utilize a leg prosthesis because of the
potential risks for further injury if Mr. Still attempted utilize a
prosthetic leg.
“After I evaluated Mr. Still to determine his eligibility for a
prosthetic leg, he experienced a number of different falls from
his wheelchair, which confirmed my conclusion that it would
not be in Mr. Still’s best interest for him to attempt to utilize a
prosthetic leg. On December 9, 2010, I evaluated Mr. Still after
he fell out of his wheelchair and sustained a laceration to the
back of his head and was observed for a period of 24 hours in
the Easterling infirmary. On December 12, 2010, I evaluated
Mr. Still on another occasion after he fell out of his wheelchair
and sustained minor injuries.
“Mr. Still filed another Medical Grievance on October 21, 2010,
complaining about the refusal of the medical staff to order a
prosthesis for his right leg. Nurse Wilson responded the
following day, reminding Mr. Still that, per my prior
examination of him, his request for a prosthetic leg was denied
because of the “weakness” in his right leg which could result in
either ‘multiple falls’ or ‘hip fracture.’ On October 27, 2010,
Mr. Still filed a Medical Grievance Appeal, contesting my
medical decisions related to his eligibility for a prosthetic leg
and specifically stated that the potential of falls and hip fracture
‘can not be used as a basis for denial.’ As stated in Nurse
Wilson’s response, the decisions as to Mr. Still’s eligibility for
a prosthesis is dependent upon initial approval by a physician.
“During Mr. Still’s incarceration at Easterling, I did not at any
time ignore any of his requests for medical treatment. I did not
deliberately ignore any of Mr. Still’s medical complaints or
interfere in any way with the provision of medical care to Mr.
(continued...)
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In his responses, Still disagrees with Dr. Darbouze’s assessment of his physical
condition and asserts his belief that he is “physically able to receive a [prosthetic] leg.”
Pl.’s Resp. (Doc. 24) at 3. This assertion is not support by any verifiable medical
evidence. Self-serving statements by a plaintiff do not create a question of fact in the face
of contradictory, contemporaneously created medical records. See Bennett v. Parker, 898
F.2d 1530 (11th Cir. 1990).
Under the circumstances of this case, the court concludes that the course of
treatment undertaken by Dr. Darbouze and CMS to address Still’s request for a leg
prosthesis did not violate his constitutional rights. The medical care Still received was
certainly not “so grossly incompetent, inadequate, or excessive as to shock the conscience
or to be intolerable to the fundamental fairness.”

Harris, 941 F.2d at 1505.

The

allegations presented by Still simply fail to establish deliberate indifference. Garvin, 236
F.3d at 898 (difference of opinion regarding manner in which condition should be treated
fails to demonstrate a constitutional violation); Adams, 61 F.3d at 1545-46 (Whether
medical personnel “should have employed additional diagnostic techniques or forms of
treatment ‘is a classic example of a matter for medical judgment’ and therefore not an

3.(...continued)
Still at any time. I have not taken any action which has caused
Mr. Still to experience any unnecessary pain and/or suffering.”
Defs.’ Exh. 1 (Doc. 7-1) at 2-5 (citations to medical records omitted).
11

appropriate basis” on which to ground constitutional liability. In addition, an inmate’s
allegation that prison physicians did not diligently pursue alternative means of treating
condition “did not ‘rise beyond negligence’ . . . to the level of deliberate indifference.”);
Hamm, 774 F.2d at 1505 (inmate’s desire for some other form of medical treatment does
not constitute deliberate indifference violative of the Constitution); Franklin, 662 F.2d at
1344 (simple divergence of opinions between medical personnel and inmate-patient do
not violate the Eighth Amendment).
It is undisputed that Dr. Darbouze thoroughly examined Still, conducted an
assessment of Still’s overall physical condition, and reviewed relevant medical records in
an effort to determine his viability for use of a prosthesis. Upon completion of this
evaluation, Dr. Darbouze determined that Still should not be provided a prosthetic leg for
essentially two reasons: First, “Still was not a candidate for a prosthetic leg because his
right leg and hip lacked sufficient strength to withstand the day-to-day rigors associated
with the use of a prosthesis,” Defs.’ Exh. 1 (Doc. 7-1) at 2-5 (citations to medical records
omitted); and, second, there was the serious “possibility of Mr. Still sustaining serious
injuries as a result of a fall with the use of a prosthesis.” Id. It is clear that Dr. Darbouze
rendered this decision in accordance with her professional judgment. Moreover, Still has
failed to present any evidence which indicates that Dr. Darbouze and CMS knew that this
decision created a substantial risk to his health and that with this knowledge consciously
disregarded such risk. The record is therefore devoid of evidence, significantly probative
or otherwise, showing that the Dr. Darbouze and CMS acted with deliberate indifference
12

to Still’s medical needs. Consequently, summary judgment is due to be granted in favor
of Dr. Darbouze and CMS. Carter, 352 F.3d at 1350.
***
An appropriate summary judgment will be entered in favor of the Alabama
Department of Corrections, Dr. Darbouze, and CMS and against Still.
DONE, this the 25th day of March, 2014.

/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE