King v. Anderson, et al (INMATE 1)

Filing 106

MEMORANDUM OPINION AND ORDER directing that Defendants' motions for summary judgment (Docs. # 96 , 99 ) are GRANTED, as further set out. Signed by Chief Judge William Keith Watkins on 6/2/14. (scn, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
ALBERT KING,
Plaintiff,
v.
OFFICER REGINALD
ANDERSON, et al.,
Defendants.

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CASE NO. 2:12-CV-190-WKW
[WO]

MEMORANDUM OPINION AND ORDER
Before the court are two motions for summary judgment: one filed by
Defendants Reginald Anderson, Marian Ford Williams, Jasmine Scarver, and
Henry Postell (collectively “the Officers”) (Docs. # 96, 97, 98); and another filed
by Dr. Jerry N. Gurley (Docs. # 99, 100). Plaintiff Albert King opposes the
motions. (Docs. # 101, 102.) Defendants have filed reply briefs. (Docs. # 104,
105.) Upon consideration of the arguments, the evidence, and the relevant law, the
court finds that Defendants’ motions for summary judgment are due to be granted.1
I. JURISDICTION AND VENUE
The court has subject matter jurisdiction over this case based upon 28 U.S.C.
§§ 1331 and 1343. Personal jurisdiction and venue are uncontested.

1

All citations to page numbers in the record are to page numbers generated by CM/ECF,
unless otherwise indicated.

II. STANDARD OF REVIEW
To succeed on summary judgment, the movant must demonstrate “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 evidence and
the inferences from that evidence in the light most favorable to the nonmovant.
Jean-Baptiste v. Gutierrez, 627 F.3d 816, 820 (11th Cir. 2010).
The party moving for summary judgment “always bears the initial
responsibility of informing the district court of the basis for its motion.” Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986).

This responsibility includes

identifying the portions of the record illustrating the absence of a genuine dispute
of material fact. Id.; Fed. R. Civ. P. 56(c)(1)(A). Or, the movant can assert,
without citing the record, that the nonmoving party “cannot produce admissible
evidence to support” a material fact. Fed. R. Civ. P. 56(c)(1)(B). If the movant
meets its burden, the burden shifts to the nonmoving party to establish – with
evidence beyond the pleadings – that a genuine dispute material to each of its
claims for relief exists. Celotex, 477 U.S. at 324. A genuine dispute of material
fact exists when the nonmoving party produces evidence allowing a reasonable fact
finder to return a verdict in its favor. Waddell v. Valley Forge Dental Assocs., 276
F.3d 1275, 1279 (11th Cir. 2001).

2

III. BACKGROUND
A.

Facts
This suit arises from events that took place while Mr. King was a detainee at

the Montgomery County Correctional Facility (“MCCF”) in Montgomery,
Alabama. Counts I and II of the Amended Complaint relate to an attack by two
inmates on Mr. King. Count III relates to the medical care that Mr. King received
for injuries sustained during the attack. The facts are divided accordingly between
the details relating to the attack and the details relating to Mr. King’s care.
1.

Details of Attack

While he was incarcerated at MCCF, Mr. King and other inmates watched
TV in their dorm area of Cellblock 4-B.2

Changing the TV channel was

customarily a task for officers, but Defendants deny that there was a written policy
that only officers could control the TV. (See Doc. # 102-11 at ¶ 21.) Because the
TV is out of arm’s reach, officers used the end of a broom handle to change the
channel. On the morning of Saturday, September 17, 2011, Officer Anderson
allowed an inmate to keep the broom for that purpose.3

2

The MCCF Inmate Handbook provides that television is a privilege. In addition to
watching television at night, “[c]ellblocks with good behavior may receive additional television
privileges for the weekend.” (Doc. # 102, at Section 3.I.)
3

Officer Postell saw Officer Anderson leave the broom in the inmates’ custody. Officer
Scarver is also alleged to have seen the broom under the control of inmates, but she testifies that
she believed all cleaning supplies had been retrieved from the inmates.
3

For two hours or so, the inmates handled the entrustment of the broom with
dignity, but around 11:00 a.m., an inmate, Rico Gibson, abused the privilege. Mr.
King, who is apparently not an Auburn football fan, asked Mr. Gibson about
looking for a different football game. Mr. Gibson, who was in possession of the
broom, became upset and started calling Mr. King names. Officer Anderson was
monitoring the situation from a control booth where he was on duty. He did not
leave the booth to mediate the conflict, but he did pound on the window to try to
encourage the inmates to stop. Eventually, Mr. King walked away from the verbal
confrontation, but as he departed, Mr. Gibson attacked him with the broom handle.
Another inmate also jumped in, beating Mr. King with his fists. According to Mr.
King, Officers Anderson, Postell, and Scarver watched and failed to intervene.
Their alleged deliberate indifference to Mr. King’s safety during the attack was
captured on video.
When Mr. Gibson attacked Mr. King, Officer Anderson used the intercom to
order the inmates to lock down in their cells, but the inmates did not obey. Officer
Anderson called the MCCF Central Control to report the fight and announced a
“Code Blue” on his hand held radio. Code Blue indicates an inmate-on-inmate
fight, and all available officers must report to the scene to help restore order.
Officer Anderson remained in the control booth because it is MCCF protocol for

4

the duty-officer not to leave the control booth until another officer can take his
place.
Officer Scarver, who was roving the fourth floor and distributing juice to
inmates in Cellblock 4-A, heard the commotion in 4-B, reported to the area, and
witnessed Mr. Gibson hitting Mr. King with the broom.

(See Doc. # 102-10

(Incident Report).) She also called a “Code Blue” on her radio and waited for
other officers to assist. Three officers arrived a little over one minute after Officer
Anderson’s alert, and they, along with Officer Scarver, entered the cell block to
stop the fight. (Doc. # 98, at 4.) According to the Officers, the video of the
incident shows that the fight began at 10:54:24, Officer Anderson called for
backup four seconds later, and the four officers entered the cell block at 10:55:47.
(Doc. # 98, at 4.)4 During his deposition, Mr. King stated that he believed he was
attacked for “at least three or four minutes.” (Doc. # 97-1, at 14 (King Dep.,
at 49).)5
4

Officer Postell was on visitation duty elsewhere in the jail and not anywhere nearby
when the fight broke out. He relieved Officer Anderson of his control booth duties during a
break prior to the inmates’ fight. At that time, he observed the inmates using the broom to reach
the TV.
5

Prior to counsel’s appearance for Mr. King, Defendants produced a disc to the court
with the video surveillance of Cellblock 4-B on Saturday, September 17, 2011. (See Doc. # 71,
Ex. B.) The court has not had success in viewing the video which apparently must be opened
and viewed with a program not installed on the court’s computers. Mr. King says he also has
furnished a video which shows the Officers’ deliberate indifference to the attack. (See Doc.
#102-5 (“Exhibit E: Montgomery County Detention Facility video of the incident will be filed
with the Court via hand delivery.”).) Mr. King has not provided the video to the Clerk of the
Court, even after being reminded by telephone.
5

Mr. King claims that the Officers appreciated the substantial threat of danger
that came with entrusting the broom to the inmates.

He accuses Officers

Anderson, Postell, and Scarver of failing to enforce MCCF anti-weapons policies
and failing to take steps to prevent the harm that he has endured. He cites the
MCCF Inmate Handbook’s directive that “[w]hen staff enters a cell block for the
purpose of [various tasks, including] to change television channels, etc., and you
are not locked down, the officer will order you to refrain from talking and to fall-in
behind the red line located behind the dayroom tables.” (Doc. # 102-1, at Section
1.E.1.) This is a policy governing the conduct of inmates – not officers – when
officers enter cellblocks to change a TV channel or perform other services for
inmates. Mr. King also references MCCF’s predictable policy against inmate
possession of weapons and contraband, as well as a “Memorandum of Record”
from Officer Ford Williams to Officer Anderson, after the incident at issue in this
litigation, wherein she accounts that she “instructed Officer Anderson” and others
“that at no time are the inmates to use the broom for any unintended purposes.”
(Doc. # 102-13.)
The Officers emphasize that inmates were allowed to clean their cells each
day with brooms, mops, brushes, and cleaning chemicals. An officer brought the
supplies to the cellblock and left them with the inmates for several hours before

6

collecting them. This occurred routinely while Mr. King was incarcerated at
MCCF.
2.

Details of Medical Care
After Mr. King was attacked, Officer Ford Williams took pictures of Mr.

King’s injuries. Mr. King’s head, face, back, and left hand were swollen, and he
claims that his hand was “obviously broken.”

(Compl. at ¶ 44.)

Mr. King

requested hospital care, but Officer Ford Williams refused, telling him it was not
within her authority to decide if he required hospital care. Nurses with MCCF’s
medical provider, Quality Correctional Health Care (“QCHC”), evaluated Mr.
King at 11:15 a.m. Their notes say that they cleaned, measured, and dressed Mr.
King’s wounds, recorded his vital signs, checked his vision, and that Mr. King
“denied any pain upon departure.” (Doc. # 97-1, at 76.) Mr. King denies that his
wounds were bandaged or that he told the nurses he was not in pain. Mr. King was
placed in a cell in the medical unit for observation. The doctor on call, Dr. Bates,
was informed about Mr. King, but Dr. Bates did not examine him. Nurses gave
Mr. King Motrin and ice for pain and swelling.

Their records for Sunday,

September 18, 2011 indicate that Mr. King reported no pain.
On Monday, September 19, 2011, Mr. King was seen by QCHC’s employee,
Dr. Gurley. Dr. Gurley observed scratches on Mr. King’s forehead and two black
eyes.

He performed a neurological examination. According to Mr. King, Dr.
7

Gurley examined Mr. King’s hand after Mr. King showed it to him. (Doc. # 97-6,
at 19 (King Dep. at 71).) Dr. Gurley observed that the hand was swollen, but did
not diagnose a fracture and returned Mr. King to the inmate population. Mr. King
claims that he filled out several sick call requests about pain in his hand that went
ignored.6 Dr. Gurley says that Mr. King was seen by nurses on September 21, 23,
and 24 when Mr. King complained of other issues like double vision and
headaches. (Doc. #101-2, at 3 (Gurley Aff.).)
A week later on September 26, 2011, Dr. Gurley saw Mr. King a second
time. At that point, Dr. Gurley acknowledged that Mr. King may have experienced
a boxer’s fracture to his hand and ordered x-rays. Otherwise, Dr. Gurley offered
no medical treatment because he believed Mr. King was malingering about injuries
to his head and sight and that Mr. King just wanted prescription drugs. According
to Dr. Gurley, September 26, 2011 was the first time that Mr. King “complained of
pain to his hand.” (Doc. # 87, at ¶ 54 (Answer to Am. Compl.); see also Doc.
# 101-2. at 3 (Gurley Aff.) (“This was the first time the hand had been mentioned
to anyone.”).) The x-ray, which was taken on September 27 and interpreted on
October 2, revealed a fractured left fifth metacarpal. (See Doc. # 101-2, at 3
(Gurley Aff.).)
6

These reported sick calls are not in the medical records. During Mr. King’s deposition,
counsel for Dr. Gurley inquired about why the medical records prior to September 26, 2011, did
not indicate Mr. King’s complaint about his hand. Mr. King suggests that medical staff lied on
their records and that his written sick calls went missing. (Doc. # 97-1, at 35 (King Dep. at 134–
135).)
8

On October 5, 2011, Mr. King received outside treatment from Dr. Tucker
Mattox at Southern Orthopedic Surgeons, LLC. Dr. Mattox noted the age of the
injury, that Mr. King was not being medicated for the injury, that he had
prominence of the left fifth metacarpal, and that Mr. King still experienced
soreness in his hand. Dr. Mattox decided to splint the finger and to let it heal. He
noted that he could not perform open reduction and internal fixation (“ORIF”)
surgery because Mr. King’s hand had begun to heal already.7 By that time, it had
been eighteen days since Mr. King was injured, eleven days since Dr. Gurley had
ordered an x-ray, and three days since the x-ray had been interpreted as revealing a
fracture.
Dr. Gurley examined Mr. King on October 10, 2011, for Mr. King’s
complaints of headaches and blurred vision.8 Dr. Gurley again believed that Mr.
King was malingering and drug seeking, but ordered an ophthalmology
appointment and more Motrin. Mr. King was transported to Institute for Total Eye
Care (“ITEC”) on October 17, 2011, where he was seen by Dr. Charles Robbins.

7

An ORIF is a two-step surgical procedure for repairing bone fractures that would not
heal correctly with casting or splinting alone. First, the bone is put back into place; second, an
internal fixation device is placed on the bone, such as screws, plates, rods, or pins.
8

Prior to sustaining injuries in the September 19, 2011 fight, Mr. King had complained of
chronic and sinus headaches on at least three occasions. Dr. Gurley reports that he examined Mr.
King, prescribed medication, and ordered a sinus x-ray. Another physician interpreted the x-ray
and concluded that it showed no problems or sinusitis. (Doc. # 100, at 7.)
9

Dr. Robbins noted Mr. King’s complaints of double or blurred vision but reassured
Mr. King that he did not believe that any treatment was necessary.
When Mr. King saw Dr. Mattox again on October 26, 2011, three weeks
after his first appointment, Dr. Mattox noted that Mr. King’s range of motion was
improving but that he did not have full flexion and still had prominence consistent
with a fracture. Dr. Mattox noted that Mr. King was not wearing the splint he had
furnished. In spite of Mr. King’s abandonment of the splint, Dr. Mattox believed
that the fifth metacarpal bone was properly positioned and that the fracture was
healing well.
Three months after sustaining his injuries, Mr. King was examined for his
head injuries. He complained of pain in his back, head, and eye, and of blurry and
double vision. Mr. King was taken to Jackson Hospital on January 3, 2012, where
he received a CT scan.
Defendants represent that from September 17, 2011, until March 22, 2012,
medical staff at MCCF saw Mr. King at least 33 times, and Dr. Gurley saw him 7
times. He was also examined by a psychiatrist, an ophthalmologist, and an
orthopedic surgeon, and he received several x-rays and a CT scan. Defendants
contend that these actions show that there was no deliberate indifference to Mr.
King’s medical needs. In his complaint, Mr. King asserts that he should have
received professional hospital care after he was attacked, and that an orthopedic
10

specialist should have been consulted much sooner so that his hand could have
healed properly. He claims that he continues to suffer from pain and diminished
mobility in his hand because the fractured bone did not heal properly. He argues
that a lay person can observe that the finger is “not attached properly” and is larger
than the same finger on his opposite hand. (Doc. # 101, at 16.)9 Yet Mr. King
acknowledges that he has not seen a doctor since he was released from MCCF.
(Doc. # 97-1 (King Dep. at 125).)
B.

Procedural History
Mr. King filed this suit pro se on February 29, 2012. About a year later,

after Mr. King made several amendments to his complaint, counsel appeared on
Mr. King’s behalf and filed the Amended Complaint (Doc. # 81), which is the
operative pleading. In Count I, Mr. King alleges that Officers Anderson, Postell,
and Scarver were deliberately indifferent to a substantial risk of harm in violation
of the Eighth and Fourteenth Amendments. In Count II, Mr. King claims that the
9

Although Mr. King cites non-specifically to his entire deposition (Doc. #97-6) in
support of his assertion that his hand is visibly deformed, the court cannot find any testimony
describing his hand, at present, in the deposition transcript or other record evidence. He also
cites generally to his Exhibits C and D which are several pages of medical records from Baptist
Health and Dr. Mattox’s Practice, respectively. Even after perusing these exhibits, there appears
to be nothing in them to substantiate his claim that his hand did not heal or that it is deformed.
Mr. King’s counsel is reminded of Section 2 of the court’s Uniform Scheduling Order
(“USO”), which is the same in every civil case. The USO provides that parties should cite the
evidence “by a specific reference, by page and line, to where the evidence can be found in a
supporting deposition or document. Failure to make such specific reference will result in the
evidence not being considered.” (Doc. # 91, at 1.) In this instance, out of caution, the evidence
was considered notwithstanding Mr. King’s non-compliance with the USO, but the evidence was
found lacking.
11

same Defendants failed to protect him in violation of the Eighth and Fourteenth
Amendments.

In Count III, Mr. King alleges that all Defendants acted with

deliberate indifference to his serious medical needs, in violation of the Eighth and
Fourteenth Amendments. Each of the Officers is sued in his or her individual and
official capacities under 42 U.S.C. § 1983.
IV. DISCUSSION
A.

Narrowing the Issues
1.

Claims Against Officer Ford Williams

In his response to Dr. Gurley’s motion for summary judgment, Mr. King
asserts that he is arguing that Count III applies only to Dr. Gurley, and Counts I
and II apply to the Officers. (Doc. # 101, at 1 n.1.) In his Amended Complaint,
Mr. King implicates Officer Ford Williams only with respect to his medical-needs
claim (Count III). (See Am. Compl. at ¶¶ 14, 43, 45, 93, 96, 101, 113, 114, 115.)
Thus, the Officers assert that the sole claim against Officer Ford Williams has been
abandoned. (Doc. # 105, at 2.) At one point in his brief, Mr. King groups Officer
Ford Williams with Officers Anderson, Scarver, and Postell as being responsible
for entrusting the broom to the inmates. (Doc. # 102, at 13.) But Mr. King may
not amend his claim through summary judgment opposition briefing. See Gilmour
v. Gates, McDonald & Co., 382 F.3d 1312, 1314–15 (11th Cir. 2004. Mr. King

12

has conceded any claim against the Officers for deliberate indifference to serious
medical needs, and Officer Ford Williams is due to be dismissed from the case.
2.

Eighth Amendment versus Fourteenth Amendment

Mr. King asserts in his brief that he was a convicted inmate at the time of the
alleged constitutional violations, and thus, his claims arise under the Eighth
Amendment’s prohibition against cruel and unusual punishment, applied to the
States by the Fourteenth Amendment. The Officers and Dr. Gurley assert that Mr.
King was a pretrial detainee, and therefore, the claims arise under the Fourteenth
Amendment’s guarantee of due process.

(See Doc. # 33-1 (Aff. Wanda J.

Robinson dated Apr. 4, 2012, at ¶ 3) (“Albert King, Jr. was booked in . . . on June
24, 2011, and charged with [various crimes] . . . . Inmate King is a pre-trial
detainee and remains in the detention facility.”).)
Regardless of whether Mr. King’s claims arise under the Eighth Amendment
or the Fourteenth Amendment, the same legal standards apply to each of Mr.
King’s deliberate indifference claims. See Bozeman v. Orum, 422 F.3d 1265, 1272
n.13 (11th Cir. 2005) (“The standard for providing basic human needs to those
incarcerated or in detention is the same under both the Eighth and Fourteenth
Amendments.”) (quotation marks, alteration, and citation omitted); see also
Goodman v. Kimbrough, 718 F.3d 1325, 1331 n.1 (11th Cir. 2013) (reaching the
same conclusion in context of deliberate indifference to known, substantial risks of
13

serious harm to inmates’ safety). Although the court’s analysis would be more
concise and direct if it was clear that Mr. King was or was not a pretrial detainee,
the court will analyze the deliberate indifference claims without reference to the
Eighth or Fourteenth Amendments.
3.

Official Capacity Claims

The Officers contend that any suit against them in their official capacities for
monetary damages is due to be dismissed because they are entitled to Eleventh
Amendment immunity. (Doc. # 98, at 9.) Dr. Gurley adopts and incorporates the
Officers’ immunity arguments as his own. (“Doc. # 100, at 12.) Mr. King opposes
Defendants’ assertion of Eleventh Amendment immunity on his claims for
monetary damages. (See Docs. # 101, at 8; 102, at 9). Mr. King offers legal
authority in support of his opposition only with respect to Dr. Gurley. (Doc. # 101,
at 16–18.)
A state is entitled to sovereign immunity and may not be sued unless it
consents to suit or unless Congress abrogates sovereign immunity. Pennhurst
State Sch. & Hosp. v. Halderman, 465 U.S. 89, 98–99 (1984). Suits brought
pursuant to 42 U.S.C. § 1983 are no exception to the rule. Quern v. Jordan, 440
U.S. 332, 342 (1979). Thus, Alabama officials are immune from claims brought
against them in their official capacities for monetary damages because the State is
the real party in interest. Lancaster v. Monroe Cnty., Ala., 116 F.3d 1419, 1429
14

(11th Cir. 1997). Alabama sheriffs and their deputies act as state officials when
they fulfill their roles of supervising inmates and operating county jails. See
Turquitt v. Jefferson Cnty., Ala., 137 F.3d 1285, 1289 (11th Cir. 1998).
Consequently, the Officers are entitled to Eleventh Amendment immunity on Mr.
King’s claims against them in their official capacities for monetary damages.
Accordingly, the official-capacity claims against the Officers are due to be
dismissed on sovereign immunity grounds. The Officers’ entitlement to qualified
immunity on individual-capacity claims is addressed infra.
However, because Dr. Gurley is not a state official, he is not entitled to
sovereign immunity. Moreover, the Amended Complaint does not allege any
official-capacity claim against Dr. Gurley. (See Am. Compl. at ¶ 8.)
4.

Request for Declaratory Relief

The Officers contend that Mr. King’s claims for declaratory relief against
them in their official capacities are also barred by the Eleventh Amendment. The
Officers assert that because Mr. King is no longer an inmate, he may not seek
injunctive relief for past violations of federal law. They contend that “[u]nder
these circumstances the [retrospective] declaratory relief sought is barred by the
[Eleventh] Amendment . . . because the issuance of such relief finding the
Officers’ actions unlawful would serve the same purpose as validating or

15

authorizing an award of monetary damages.” (Doc. # 98, at 11.)10 Additionally,
the Officers assert that any request for declaratory relief is moot. See McKinnon v.
Talladega Cnty., Ala., 745 F.2d 1360, 1363 (11th Cir. 1984) (“The general rule is
that a prisoner’s transfer or release from a jail moots his individual claim for
declaratory and injunctive relief.”). Mr. King concedes that he is not entitled to
this relief and offers no opposing arguments. (See Doc. # 102, at 2–3.)
Accordingly, Defendants are entitled to summary judgment on Mr. King’s
claims for declaratory relief because any retrospective declaratory or injunctive
relief is barred by sovereign immunity, see Summit, 180 F.3d at 1336–37, and is
moot, see McKinnon, 745 F.2d at 1363.
5.

Scope of Count III

Mr. King has abandoned any claim that Dr. Gurley was deliberately
indifferent to his serious medical needs relating to head injuries incurred during the
(See Doc. # 101, at 18 (“Plaintiff will not address double vision or

fight.

headaches” in response to Dr. Gurley’s motion for summary judgment because
“Plaintiff’s claim against Dr. Gurley is specifically for the delay in providing
appropriate treatment for Plaintiff’s fractured hand.”).)

10

Consequently, the

Pursuant to the doctrine of Ex parte Young, 209 U.S. 123 (1908), “the Eleventh
Amendment bars suits against state officials in federal court seeking retrospective or
compensatory relief, but does not generally prohibit suits seeking only prospective injunctive or
declaratory relief.” Summit Med. Assocs., P.C. v. Pryor, 180 F.3d 1326, 1336–37 (11th Cir.
1999).
16

discussion proceeds only with respect to the diagnosis and treatment of Mr. King’s
hand.
B.

Mr. King’s Claims Against the Officers
Officers Anderson, Scarver, and Postell argue that they are entitled to

qualified immunity on Counts I and II because they were not deliberately
indifferent to Mr. King’s safety, (Doc. # 98, at 12–23), and their actions did not
violate clearly established law, (Doc. # 98, at 23).

The doctrine of qualified

immunity protects government officials from individual liability for their
discretionary actions that do not violate clearly established constitutional or
statutory rights of which a reasonable person would have known. Hope v. Pelzer,
536 U.S. 730, 739 (2002). There is no dispute that the Officers were acting in their
discretionary authority. To defeat the qualified immunity defense, Mr. King must
show that the Officers violated his clearly established constitutional rights.
McCullough v. Antolini, 559 F.3d 1201, 1205 (11th Cir. 2009) (citing Pearson v.
Callahan, 555 U.S. 223 (2009)).
1.

Deliberate Indifference to Substantial Risk of Serious Harm

It is settled that “prison officials have a duty to protect prisoners from
violence at the hands of other prisoners.” Farmer v. Brennan, 511 U.S. 825, 833
(1994) (alteration omitted).

Thus, a jail officer’s deliberate indifference to a

known, substantial risk of serious harm to an inmate in his custody violates the
17

Constitution. Goodman, 718 F.3d at 1331. “To survive summary judgment” on
such a claim, a plaintiff must produce sufficient evidence of (1) a substantial risk
of serious harm; (2) the defendant[’s] deliberate indifference to that risk; and (3)
causation.” Id. (internal quotation marks omitted).
As for the first element – a known, substantial risk – there must be “a strong
likelihood, rather than a mere possibility [of harm to an inmate] before a guard’s
failure to act can constitute deliberate indifference.” Brown v. Hughes, 894 F.2d
1533, 1537 (11th Cir. 1990) (internal quotation marks omitted). With respect to
the second element – the defendant’s deliberate indifference – the plaintiff must
prove that the defendant was subjectively aware of the risk of serious harm and
that he chose to disregard the risk by conduct that is more than gross negligence.
Goodman, 718 F.3d at 1332.

A defendant has not acted with deliberate

indifference if (1) he “did not know of the underlying facts indicating a sufficiently
substantial danger” and he was therefore unaware of danger, (2) he “knew the
underlying facts but believed (albeit unsoundly) that the risk to which the facts
gave rise was insubstantial or nonexistent,” or (3) he “responded reasonably to the
risk, even if the harm ultimately was not averted.” Farmer, 511 U.S. at 844.
The Officers contest Mr. King’s ability to show either a substantial risk of
serious harm or deliberate indifference. They do not believe that the presence of
the broom in Cellblock 4-B created a substantial risk of serious harm to the
18

inmates and emphasize that brooms were entrusted to inmates for cleaning their
cellblocks every day. (See, e.g., Doc. # 97-2 at ¶ 2.) The Officers have testified
that prior to the time that Mr. Gibson attacked Mr. King, they were unaware of
another inmate ever using a broom as a weapon against another inmate. (Docs.
# 97-2, at ¶ 5; 97-3, at ¶ 3; 97-4, at ¶ 3.)
Hence, Officer Anderson explains that although he knew the inmates had the
broom for the purpose of controlling the TV, he did not believe, based on his
previous observations, that the broom’s presence compromised any inmate’s
safety. Similarly, Officer Postell says that he was aware that the inmates had the
broom, but he had no reason to believe, based on his prior experience, that the
presence of the broom posed a substantial risk of danger. Unlike either Officer
Anderson or Officer Postell, Officer Scarver claims that she believed the cleaning
supplies had been put away, and she was therefore unaware of the underlying facts
indicating any potential for danger. (See Doc. # 97-4, at ¶ 3 (“I was under the
impression that I had accounted for all cleaning supplies in 4-B cellblock earlier in
the day.”).)
Mr. King acknowledges the same legal standards for measuring deliberate
indifference, but he proposes that a jury must decide whether the entrustment of
the broom to the inmates created a substantial risk of serious harm and whether the
Officers demonstrated deliberate indifference to that risk. He suggests that a jury
19

could and likely would “infer [Defendants’ subjective] knowledge from the
obvious” danger of leaving inmates in control of a potential weapon. (Doc. # 102,
at 32.)
The Officers maintain that they had a custom of controlling the channel; Mr.
King asserts that Officer Anderson violated official policy forbidding inmates to
keep the broom in order to control the TV. However, there is no dispute that, prior
to the day Mr. King was injured by Mr. Gibson, the entrustment of cleaning
supplies, including brooms, to inmates had not posed a threat to inmate safety. Mr.
King contends that brooms can be easily converted for abusive purposes, but he
does not dispute that a broom is not ordinarily used as a weapon, and the broom’s
form was not altered to create something more dangerous. There also appears to
be no dispute that the specific inmates involved in this fight had no history of
violence or threatening behavior with one another or other inmates. Mr. King
therefore fails to raise a genuine dispute of a substantial risk – that is, “a strong
likelihood, rather than a mere possibility” – that an inmate could pose a threat of
serious harm by wielding a broom handle as a weapon against another inmate.
Brown, 894 F.2d at 1537.
Even if Mr. King could satisfy the first element of a deliberate indifference
claim, he cannot show that the Officers had the requisite mental state to be held
liable. Neither Officer Anderson’s entrustment of the broom to the inmates, nor
20

Officer Postell’s failure to retrieve the broom after he saw the inmates use it to
change the TV channel, nor Officer Scarver’s failure to notice that a broom was
missing from the cleaning supplies amounts to more than mere negligence. See
Goodman, 718 F.3d at 1332 (quoting Brown, 894 F.2d at 1537) (“Merely negligent
failure to protect an inmate from attack does not justify liability under § 1983.”);
see also Carter v. Galloway, 352 F.3d 1346, 1350 (11th Cir. 2003) (reasoning that
defendants’ awareness of the plaintiff’s cellmate’s general propensity to cause
trouble, without a more culpable, conscious disregard of a threat to the plaintiff’s
safety, did not rise above the level of ordinary negligence). Mr. King cannot show
that the Officers were consciously indifferent to Mr. King’s safety by either
acquiescing to the inmates’ request to keep a broom for purposes of changing the
TV channel, or negligently failing to account for a broom’s whereabouts. See
Goodman, 718 F.3d at 1332.
In the absence of proof of a constitutional violation, Officers Anderson,
Postell, and Scarver are entitled to qualified immunity on Count I.11
2.

Deliberate Indifference – Failure to Protect or Intervene

When an inmate attacks or abuses a plaintiff-inmate in an officer’s presence,
the officer may be liable for his failure or refusal to intervene. Terry v. Bailey, 376
F. App’x 894, 896 (11th Cir. 2010) (citing Ensley v. Soper, 142 F.3d 1402, 1407
11

The court will not assess the Officers’ additional argument that even if one or all of
them violated Mr. King’s constitutional right, the right was not clearly established.
21

(11th Cir. 1998)). “[I]n order for liability to attach, the officers must have been in
a position to intervene.” Id. It is the plaintiff’s burden to demonstrate that the
defendant could have intervened. Ledlow v. Givens, 500 F. App’x 910, 914 (11th
Cir. 2012) (citing Hadley v. Gutierrez, 526 F.3d 1324, 1330–31 (11th Cir. 2008)).
“An officer who fails to intervene in a fight between inmates can only be held
liable if he ‘was physically able and had a realistic chance to intervene and act in
time to protect the inmate Plaintiff.’” Clary v. Hasty, No. 7:12-CV-44 HL, 2013
WL 4008634, at *4 (M.D. Ga. Aug. 5, 2013) (quoting Glispy v. Raymond, No. 06–
14269–CIV, 2009 WL 2762636 (S.D. Fla. Aug. 28, 2009)).
Officer Postell argues that he is entitled to summary judgment on Count II
because he was not present in the control booth when Mr. Gibson attacked Mr.
King. Mr. King has offered no evidence to contradict Officer Postell’s testimony
that he was not in proximity to Mr. King when Mr. Gibson attacked. Therefore,
Mr. King cannot hold Officer Postell liable for failure to protect when he was not
physically present to see the fight or to intervene to protect Mr. King. See Terry,
376 F. App’x at 896.
Officer Scarver testifies that she was in another area of the dorm when she
heard the commotion caused by the fight. She then responded by reporting to the
scene, calling a “Code Blue,” and waiting for reinforcement before entering
Cellblock 4-B. She contends that she responded reasonably to the incident and in
22

accordance with her training to wait for back-up. (See Doc. # 98, at 18 (citing
Farmer, 511 U.S. at 844; MacKay v. Farnsworth, 48 F.3d 491, 493 (10th Cir.
1995); Bell v. Wolfish, 441 U.S. 520, 547 (1979)).)
In MacKay, the Tenth Circuit found no deliberate indifference at summary
judgment where the defendants “called for additional staff . . . and thus were
preparing to intervene when sufficient staff was available in accordance with
prison policy.” 48 F.3d at 493. The MacKay court cited Bell v. Wolfish for its
proposition that prison policies are accorded deference according to the need to
preserve order and to maintain security. Id. (citing Bell, 441 U.S. at 547). Other
district courts in this Circuit recently have relied on MacKay in determining that
officers were not deliberately indifferent to inmates’ safety by waiting for
assistance. See, e.g., Williams v. Simmons, No. 5:11-CV-00378-MP-GRJ, 2014
WL 1664549, at *10 (N.D. Fla. Apr. 24, 2014); Averhart v. Kendrick, No. 2:11CV-02567-VEH, 2014 WL 771126, at *4 (N.D. Ala. Feb. 25, 2014); Sanford v.
Toby, No. CV 311-060, 2013 WL 4787143 at *8 (S.D. Ga. Sept. 6, 2013).
MacKay is accepted as persuasive authority.
Mr. King offers no evidence that contradicts Officer Scarver’s testimony that
she required assistance before intervening.

Further, he does not rebut the

reasonableness of Officer Scarver’s estimation that she could not intervene
immediately without jeopardizing her own safety. Thus, Mr. King fails to meet his
23

burden of showing that Officer Scarver could have intervened sooner but failed to
do so. See Ledlow, 500 F. App’x at 914.
Finally, Officer Anderson claims that he also responded appropriately by
trying to defuse the inmates’ argument, ordering the inmates to lock down when
the fight began, immediately calling Code Blue over his radio, and remaining in
the control booth in compliance with MCCF policy. Mr. King does not dispute the
Officers’ representation that Officer Scarver and others restored order less than two
minutes after Mr. Gibson began attacking Mr. King. Officer Anderson’s prompt
response to the situation does not indicate deliberate indifference. Moreover, if
Officer Anderson had abandoned the control booth, he could have created
additional threats to security within MCCF. His decision to follow institutional
policy is entitled to deference. See MacKay, 48 F.3d at 493 (citing Bell, 441 U.S.
at 547).
Even if it had been permissible and prudent for Officer Anderson to leave
the booth to intervene on behalf of Mr. King, Officer Anderson, like Officer
Scarver, contends that Mr. King lacks evidence that a solo officer could have
contained a fight involving three inmates without backup assistance. Again, Mr.
King does not rebut this argument and thus cannot demonstrate Officer Anderson’s
deliberate indifference. See Ledlow, 500 F. App’x at 914.

24

Because Mr. King fails to demonstrate that Officer Anderson, Postell, or
Scarver acted with deliberate indifference by failing to protect him from Mr.
Gibson’s attack, the Officers are entitled to qualified immunity on Count II.12
C.

Mr. King’s Claim Against Dr. Gurley
Mr. King makes clear in his brief that his claim for deliberate indifference to

serious medical needs is only against Dr. Gurley. (See Doc. # 101, at 1 n.1.)
Accordingly, the Officers’ defensive arguments, (see Doc. # 98, at 17–21), are
disregarded, and the focus is on the briefing relating to Dr. Gurley’s motion for
summary judgment, (see Docs. # 99, 100).
1.

Qualified Immunity

Dr. Gurley asserts that he, like the Officers, is entitled to qualified immunity.
(Doc. # 100, at 12.) Mr. King responds that Dr. Gurley is not entitled to a qualified
immunity defense. In reliance upon the reasoning of Richardson v. McKnight, 521
U.S. 399 (1997), where the Supreme Court declined to extend qualified immunity
to privately employed prison guards, the Eleventh Circuit has held that qualified
immunity may not be extended to privately employed prison physicians. Hinson v.
Edmond, 192 F.3d 1342, 1345 (11th Cir. 1999), opinion amended by 205 F.3d
1264 (11th Cir. 2000). Accordingly, Dr. Gurley cannot be entitled to summary

12

Because it is clear that Mr. King cannot prove that the Officers violated his
constitutional rights, the court declines to consider the Officers’ alternative argument that they
did not violate clearly established law.
25

judgment on qualified immunity grounds. The discussion proceeds to consider
whether Dr. Gurley is otherwise entitled to summary judgment.
2.

Deliberate Indifference to Serious Medical Needs

“[D]eliberate indifference by prison personnel to an inmate’s serious
medical needs violates the inmate’s right to be free from cruel and unusual
punishment. Waldrop v. Evans, 871 F.2d 1030, 1033 (11th Cir. 1989) (citing
Estelle v. Gamble, 429 U.S. 97, 104–05 (1976)). To succeed on a deliberate
indifference claim, the plaintiff must show (1) a serious medical need, (2) the
defendant’s deliberate indifference to the need, and (3) a causal connection
between the defendant’s indifference and the plaintiff’s injury. Mann v. Taser
Int’l, Inc., 588 F.3d 1291, 1306 (11th Cir. 2009).
a.

Serious Medical Need

Serious medical needs are those which have been diagnosed by a doctor as
mandating treatment, or those that are “so obvious that even a lay person would
easily recognize the necessity for a doctor’s attention.” Id. Alternatively, “a
serious medical need is determined by whether a delay in treating the need worsens
the condition.” Id. Mr. King’s fractured bone constituted a serious medical need,
see Lepper v. Nguyen, 368 F. App’x 35, 39 (11th Cir. 2010) (finding that
dislocation of two of inmate’s finger joints constituted a serious medical need), and
Dr. Gurley does not dispute this conclusion, but assumes its truth without
26

conceding the issue. Rather, Dr. Gurley contends that Mr. King has no evidence
that he acted with deliberate indifference, or that there is a causal link to an
actionable injury.
b.

Deliberate Indifference

Deliberate indifference is “defined as requiring two separate things:
awareness of facts from which the inference could be drawn that a substantial risk
of serious harm exists and drawing of the inference.” Taylor v. Adams, 221 F.3d
1254, 1258 (11th Cir. 2000) (quoting Farmer, 511 U.S. at 837) (internal quotation
marks and alterations omitted); see also Goebert v. Lee Cnty., 510 F.3d 1312, 1327
(11th Cir. 2007) (requiring defendant’s subjective awareness of a risk of serious
harm, disregard of the risk, and conduct amounting to more than gross negligence).
Thus, “mere medical malpractice” or “a simple difference in medical opinion” is
insufficient to support a finding of deliberate indifference. Waldrop, 871 F.2d
at 1033. But a doctor may be found liable for deliberate indifference if he decided
“to take an easier and less efficacious course of treatment,” if he failed “to respond
to a known medical problem,” or if he provided “grossly incompetent or
inadequate care” that shocks the conscience. Id. “Deliberate delay” in providing
care to a serious or painful injury also constitutes deliberate indifference. Brown,
894 F.2d at 1538. This is the sort of deliberate indifference of which Mr. King
accuses Dr. Gurley. (See Doc. # 101, at 12–16.)
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Dr. Gurley contends that he did not refuse to treat Mr. King and that Mr.
King simply disagrees with Dr. Gurley’s judgment and chosen method of
treatment. In support of his position, he cites Beard v. Banks, 548 U.S. 521, 530
(2006) (plurality opinion), where the Supreme Court “distinguish[ed] between
evidence of disputed facts and disputed matters of professional judgment.” “In
respect to the latter,” courts “must accord deference to the views of prison
authorities.” Id. Dr. Gurley also relies on Adams v. Poag, 61 F.3d 1537, 1545
(11th Cir. 1995), for its proposition that, in accordance with Estelle, a plaintiff’s
quarrel with whether a prison doctor “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, liability.

Id. (citing

Estelle, 429 U.S. at 107).
In response, Mr. King maintains that Dr. Gurley demonstrated deliberate
indifference by delaying adequate treatment for his bone fracture. (See Doc. # 101,
at 13–14.) The parties dispute when Dr. Gurley learned of Mr. King’s report of
pain in his hand. Viewing the facts in the light most favorable to Mr. King, he
complained about pain in his hand from the first time he saw Dr. Gurley on
September 19, 2011. By that account, it took about two weeks for his fracture to
be properly diagnosed (September 19 to October 2), and it took over two weeks
before Mr. King saw an orthopedist (September 19 to October 5). When Mr. King
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complained to Dr. Gurley about his hand during his examination, Dr. Gurley
arguably should have appreciated that Mr. King’s hand was not simply swollen but
possibly broken or fractured. But Mr. King has not shown how Dr. Gurley’s
delayed diagnosis amounts to more than negligence on the part of Dr. Gurley. (See
Doc. # 100, at 20 n.2.)
A delay in treatment is not more than negligence unless “‘it [was] apparent
that delay would detrimentally exacerbate the medical problem,’ the delay [did]
seriously exacerbate the medical problem, and the delay [was] medically
unjustified.” Taylor, 221 F.3d at 1259–60 (quoting Hill v. Dekalb Reg’l Youth
Detention Ctr., 40 F.3d 1176, 1187, 1187–89 (11th Cir. 1994), overruled in part on
other grounds by Hope v. Pelzer, 536 U.S. 730 (2002)); see also Goebert, 510 F.3d
at 1327.

Here, Mr. King offers only his allegations without any supporting

medical evidence to suggest that a delayed diagnosis or delayed consultation with a
specialist either exacerbated the fracture in his hand or caused the fracture to heal
incorrectly.13 See supra n.9.
Hence, Mr. King cannot show that Dr. Gurley acted with deliberate
indifference to Mr. King’s serious medical needs.

13

This conclusion is separate from but closely related to the court’s conclusion regarding
Dr. Gurley’s argument that Mr. King fails to establish the causation element of a deliberate
indifference claim.
29

c.

Causation

Dr. Gurley asserts alternatively that any alleged delay in treating Mr. King’s
hand has not caused Mr. King to suffer the injury he alleges (i.e., a hand that has
not properly healed). Dr. Gurley asserts that Mr. King must support his claim with
evidence, and Mr. King has no medical evidence that his hand did not heal. To
succeed on his claim, “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.” Lepper v.
Nguyen, 368 F. App’x 35, 39–40 (11th Cir. 2010) (quoting Townsend v. Jefferson
Cnty., 582 F.3d 1252, 1259 (11th Cir. 2009)). Mr. King relies on Dr. Mattox’s
note that he would have considered ORIF if he had seen Mr. King sooner, but Dr.
Gurley, in reply, emphasizes that the reference to ORIF was just a suggestion, not a
definite medical conclusion that Mr. King required ORIF in order for his hand to
heal. (Doc. # 104, at 4.) Moreover, Dr. Mattox’s note does not establish causation
of the permanent injury Mr. King claims to have.
Further, Dr. Gurley asserts that even without ORIF, the medical record
evidence demonstrates Mr. King’s bone remained properly aligned and healed, as
evidenced by his release from Dr. Mattox’s before Mr. King was released from
MCCF. The court agrees with Dr. Gurley and finds that Mr. King fails to meet his

30

burden of showing that Dr. Gurley’s deliberate indifference caused Mr. King to
suffer a permanent physical injury to his hand.
However, Dr. Gurley fails to acknowledge Mr. King’s allegation and
testimony that he endured pain in his hand while he waited for treatment.
Deliberately indifferent delay to a medical need that causes a plaintiff to endure
pain is actionable, see Brown, 894 F.2d at 1537–38, and the court is aware of no
requirement of medical evidence to support that subjective testimony of pain. Dr.
Gurley argues that Mr. King offers “no causal link with any injury.” (Doc. # 100,
at 18 (emphasis added).) This is not true. Mr. King potentially can prove one kind
of cognizable injury (i.e., pain), but he lacks medical evidence to prove that he
suffered or suffers another kind of injury – a hand that never properly healed. The
court agrees with Dr. Gurley’s argument on the causation prong of Mr. King’s
deliberate indifference to medical needs claim only with respect to Mr. King’s
alleged long-term injury to his hand.
Although Mr. King has evidence of his alleged injury of pain while he
awaited medical treatment, his deliberate indifference to medical needs claim
against Dr. Gurley still fails on the second element because Mr. King has not
shown that Dr. Gurley acted with deliberate indifference. See supra Part IV.C.2.b.

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d.

Summary of Count III

Mr. King’s constitutional claim against Dr. Gurley for deliberate
indifference to serious medical needs fails because Mr. King cannot show that Dr.
Gurley’s treatment of his fractured metacarpal bone constituted more than
negligence in timely diagnosing and seeking a specialist’s treatment for the
fracture. Accordingly, Dr. Gurley is entitled to summary judgment on Count III.
Additionally, Mr. King fails to produce medical evidence affirming his allegation
that Dr. Gurley’s delay in diagnosing and treating the fracture temporarily or
permanently exacerbated the extent of the injury.
V. CONCLUSION
Based on the foregoing analysis, it is ORDERED that Defendants’ motions
for summary judgment (Docs. # 96, 99) are GRANTED.
A separate final judgment will be entered.
DONE this 2nd day of June, 2014.
/s/ W. Keith Watkins
CHIEF UNITED STATES DISTRICT JUDGE

32