Gifford v. Rathman et al

Filing 64

MEMORANDUM OPINION Signed by Judge Sharon Lovelace Blackburn on 9/29/17. (SAC )

FILED
2017 Sep-29 PM 01:55
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
EASTERN DIVISION
JAMES BRETT GIFFORD,
Plaintiff,
vs.
WARDEN JOHN RATHMAN; THE
FEDERAL BUREAU OF PRISONS;
THE UTILIZATION REVIEW
COMMITTEE; GEORGE SMITH,
M.D., Physician; NORTHEAST
ALABAMA REGIONAL MEDICAL
CENTER; R. HARDIN, Counselor;
BOTT, Correctional Officer; S. PACO,
MLP; M. MOURTADA, MLP; L.
MARASIGAN, MLP; WILLIAMS,
Correctional Officer; MRS. M. TIPPLE,
RN; DR. M. HOLBROOK, M.D.; MS.
GARDNER, Correctional Officer;
UNITED STATES OF AMERICA,
Defendants.

)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)

CASE NO. 1:14-CV-1179-SLB-JEO

MEMORANDUM OPINION
This case is presently pending before the court on defendants’ Special Reports, (docs.
24, 25, 52, 60),1 which the court has notified the parties it will construe as Motions for
Summary Judgment, (doc. 61). Plaintiff, James Brett Gifford, was a prisoner in the custody
of the United States Bureau of Prisons [BOP] and was housed at the Federal Correctional

1

Reference to a document number, [“Doc. ___”], refers to the number assigned to each
document as it is filed in the court’s record. Citations to page numbers in such court
documents refer to the page numbers assigned by the court’s electronic filing system unless
otherwise indicated.

Institution at Talladega, Alabama, [FCI Talladega] at all times relevant to his claims. In his
Amended Complaint, Gifford alleges claims against defendants pursuant to the Alabama
Medical Liability Act [AMLA] and the Federal Tort Claims Act [FTCA], and pursuant to
Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971), for allegedly inadequate
medical treatment of his back injury and for harassment. (See generally doc. 11.) Upon
consideration of the record, the submissions of the parties, the Special Reports, and the
relevant law, the court is of the opinion that Summary Judgment is due to be granted in favor
of defendants.
I. SUMMARY JUDGMENT STANDARD OF REVIEW
Pursuant to Fed. R. Civ. P. 56(a), summary judgment is appropriate “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); Clark v. Coats & Clark, Inc., 929 F.2d
604, 608 (11th Cir. 1991); see Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). Once
the moving party has met its burden, the non-moving party must go beyond the pleadings and
show that there is a genuine issue of fact for trial. See Celotex Corp. v. Catrett, 477 U.S.
317, 324 (1986). A dispute is genuine “if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986).
A party asserting that a fact cannot be or is genuinely disputed must support
the assertion by:

2

(A) citing to particular parts of materials in the record, including
depositions, documents, electronically stored information, affidavits or
declarations, stipulations (including those made for purposes of the
motion only), admissions, interrogatory answers, or other materials; or
(B) showing that the materials cited do not establish the absence or
presence of a genuine dispute, or that an adverse party cannot produce
admissible evidence to support the fact.
Fed. R. Civ. P. 56(c)(1); see also Clark, 929 F.2d at 608 (“it is never enough simply to state
that the non-moving party cannot meet its burden at trial”).
In deciding a motion for summary judgment, the court’s function is not to “weigh the
evidence and determine the truth of the matter but to determine whether there is a genuine
issue for trial.” Anderson, 477 U.S. at 249. “[C]ourts are required to view the facts and
draw reasonable inferences ‘in the light most favorable to the party opposing the [summary
judgment] motion.’” Scott v. Harris, 550 U.S. 372, 378 (2007)(quoting United States v.
Diebold, Inc., 369 U.S. 654, 655 (1962)(per curiam)).
Nevertheless, the non-moving party “need not be given the benefit of every inference
but only of every reasonable inference.” Graham v. State Farm Mut. Ins. Co., 193 F.3d
1274, 1282 (11th Cir. 1999)(citing Brown v. City of Clewiston, 848 F.2d 1534, 1540 n.12
(11th Cir. 1988)); see also Scott, 550 U.S. at 380 (“When opposing parties tell two different
stories, one of which is blatantly contradicted by the record, so that no reasonable jury could
believe it, a court should not adopt that version of the facts for purposes of ruling on a
motion for summary judgment.”).

3

II. STATEMENT OF FACTS
According to Rule 56(e), “If a party . . . fails to properly address another party’s
assertion of fact as required by Rule 56(c), the court may . . . (2) consider the fact undisputed
for purposes of the motion [and] (3) grant summary judgment if the motion and supporting
materials – including the facts considered undisputed – show that the movant is entitled to
it . . . .” Fed. R. Civ. P. 56(e)(2)-(3). Despite being warned of the consequences of failing
to respond to defendants’ Special Reports, which the court is treating as Motions for
Summary Judgment, Gifford failed to address defendants’ assertions of fact. Therefore, the
court deems the following facts, which are supported by record evidence, to be undisputed.
On Saturday, June 23, 2012, Gifford reported to the Health Services Unit at FCITalladega, complaining that he had “hurt [his] back playing ball.” (Doc. 54-1 at 79; 60-28
¶ 4.) An examination revealed tenderness. (Doc. 54-1 at 79.) The nurse on duty gave
Gifford 800 mg of Ibuprofen to be taken three times a day for seven days and told him to use
ice compresses several times a day, and she told him to “make sick call on [M]onday if no
improvement.” (Id.; doc. 60-3 ¶ 3; doc. 60-28 ¶ 4.)
Gifford testified that he slept on the floor that night because he could not climb into
his upper bunk. (Doc. 1-1 ¶ 8.) Defendants Michaela Tipple, RN, and Dennis Bott,
Correctional Officer, responded to his cell the following morning when he could not get up.
(Id. ¶ 10.) Gifford alleged that, when he could not get up, “Bott got down close to [his] face
and said, ‘Get up or I am going to kick your ass.’” (Id. ¶ 11.) Gifford’s Amended Complaint

4

alleges that Stacie Gardner, Correction Officer, violated his constitutional rights by failing
to report Bott’s threat. (Doc. 11 ¶ 71.) Gifford does not allege that Bott followed through
on his threat. Bott does not recall going to see Gifford with Tipple, and he denies ever
threatening Gifford.2 (Doc. 60-4 ¶¶ 5, 9.)

Gardner testified she did not hear Bott tell

Gifford he was going to kick his ass; if she had, she would have reported it. (Doc. 60-18 ¶
5.)
According to Gifford’s medical records, on Sunday morning, June 24, 2012, Tipple
saw Gifford sometime around 6:30 a.m. in his cell. (Doc. 54-1 at 76; doc. 60-3 ¶ 5; doc. 6028 ¶ 5.) While there, Tipple spoke with Gifford and he told her that he had hurt his back
playing softball; he denied any numbness or tingling. (Doc. 54-1 at 76; doc. 60-28 ¶ 5.)
Tipple contacted defendant Mark Holbrook, M.D., FCI–Talladega’s Clinical Director, who
instructed her to give Gifford a 60 mg shot of Toradol. (Doc. 60-28 ¶ 5; doc. 54-1 at 76.)
Toradol is a non-steroidal anti-inflammatory drug (NSAID), that is used for moderate to

2

Bott testified –

Regarding Gifford’s claim I ignored his pleas for assistance and threatened
him, I adamantly deny the allegations. As verified in the Camp Log Book, I
notified the Operations Lieutenant as soon as I became aware of Gifford’s
condition. An ambulance arrived at the institution at around 8:44 a.m.
Although I was no longer working when the ambulance arrived [Bott’s shift
ended at 8:00 a.m.], I clearly responded to Gifford’s condition in a timely
manner. Further, I never made, nor would I ever make, such a statement to an
inmate. I treated all of the inmates with respect, and I had no negative
interaction or history with Gifford.
(Doc. 60-4 ¶ 9.)

5

severe pain. (Doc. 60-3 ¶ 4.) Tipple testified that she and Bott had been very careful when
they turned Gifford on his side for the shot. (Doc. 60-28 ¶ 5.)
Tipple waited in Health Services to see “if the shot worked.” (Id. ¶ 6.) Less than an
hour later, at approximately 7:15 a.m., inmates notified Bott that Gifford “could not move.”
(Doc. 60-4 ¶ 5; see also doc. 54-1 at 76.) Bott does not recall this incident. (Doc. 60-4 ¶ 5.)
However, according to the Camp Log Book, Bott called the Operations Lieutenant at 7:22
a.m. and reported that Gifford was having back pain and could not move. (Id.; doc. 60-5
at 4.) Tipple returned to Gifford’s Unit and at that time he told her the shot had not worked
at all. (Doc. 60-28 ¶ 6.) An officer attempted to take Gifford to Health Services for further
evaluation; however, he “started yelling when the officer and [Tipple] attempted to log roll
him [onto a stretcher].” (Doc. 54-1 at 76.) They “did not attempt to move him after that.”
(Id.)
She noted Gifford was cooperative, but irritable and agitated. (Doc. 54-1 at 76.) He
“[a]ppear[ed] well” and showed no apparent distress. (Id.) Also, she noted that Gifford
“denie[d] numbness or tingling” and that he was “[m]oving all extremities.” (Id.) Tipple
telephoned Holbrook and Holbrook gave Tipple a verbal order to send Gifford to the
emergency room [ER] at Northeast Alabama Regional Medical Center [the Hospital] for
further evaluation and treatment. (Id.; doc. 60-3 ¶ 5; doc. 60-28 ¶ 6.) An ambulance arrived
at 8:44 a.m. to take Gifford to the Hospital. (See doc. 60-5 at 4.)

6

When Gifford arrived at the Hospital, he was seen by defendant George Smith, M.D.
(Doc. 54-4 at 11-12; doc. 60-3 ¶ 6.) Dr. Smith is licensed to practice medicine in the State
of Alabama. (Doc. 24-12 ¶ 4.) On June 24, 2012, he was working in the ER at the Hospital
pursuant to an agreement between his employer, Emergency Room Services of Alabama
[ERSA] and the Hospital. (See id.; doc. 63-1 ¶¶ 5-6, at 3-4.)
The agreement between the Hospital and ERSA provided ER staffing. (Doc. 63-1 ¶
6, at 3-4.) The terms of the agreement required ERSA to “provide Emergency Department
Services (Department Services) . . . to the Hospital,” and “Emergency Department Services”
include the services of physicians in the ER. (Doc. 63-1 at 7-8.) “Emergency Department
Services” specifically include “[e]valuation and treatment of acute medical needs of every
patient submitting himself/herself to the [ER] for medical care . . . .,” and “[t]reatment of all
[ER] patients requiring medical care regardless of ability to pay . . . .” (Id. at 24, 25.)
Doctors working in the Hospital’s ER under this agreement are not employees or agents of
the Hospital. (Id. at 19.)3 “The Hospital [does] not have or exercise control or direction over
3

The agreement states:

No relationship of employer or employee is created by this Agreement, it
being understood that ERSA will act hereunder as an independent contractor
to Hospital. None of the Department Professionals performing Department
Services for ERSA pursuant to this Agreement . . . shall have any claim under
this Agreement or otherwise against the Hospital for any compensation . . . of
any kind. The Hospital shall neither have nor exercise any control or direction
over the methods by which Department Professionals and other ERSA
employees perform ERSA’s duties and responsibilities hereunder. The
Hospital acknowledges that its sole interest with respect to the Department
Services delegated pursuant to this Agreement is to insure that such resulting

7

the methods by which [ER doctors] perform [their] duties/responsibilities” to provide
medical treatment to patients in the ER.” (Id.) Dr. Smith was not an employee or agent of
the Hospital on June 24, 2012. (Doc. 24-1 ¶ 4; doc. 63-1 ¶ 5, at 3.)
Also, Dr. Smith’s freedom “to order any tests [he] determined to be medically
necessary,” was not cabined by Dr. Holbrook and/or FCI-Talladega. (Doc. 60-3 ¶ 34.)
According to Dr. Holbrook, “Neither myself nor FCI-Talladega had any input on what tests
should be ordered for any inmate in the care of the [H]ospital or any outside medical entity.”
(Id.) The Hospital did not have an agreement with the BOP regarding the provision of
medical services to Talladega inmates; however, they had an agreed Pricing Schedule.
The x-rays of Gifford’s back included five views of the lumbar spine, which were
read by a radiologist. (Doc. 54-4 at 13; doc. 60-3 ¶ 6.) The x-rays showed “[n]o acute
fracture, malalignment, or skeletal lesion.” (Doc. 54-4 at 13; Doc. 60-3 ¶ 6.) The resulting
“impression” of the radiologist was “[n]o acute skeletal injury.” (Doc. 54-4 at 13.) Dr.
Smith diagnosed Gifford “with a lumbosacral strain,” which is consistent with Gifford’s
reported injury caused by swinging a bat. (Id. at 4; doc. 60-3 ¶ 6; doc. 1-1 ¶ 16.) Dr.
Holbrook testified, “A lumbar strain results from stretching of the ligaments, tendons, or
muscles, of the lower back. The stretching may cause microscopic tears in those muscles.

Department Services shall be performed and rendered in a competent, efficient
and satisfactory manner and in accordance with applicable law, regulations,
and the Quality Standards required by the Medical Staff and the Joint
Commission on Accreditation of Healthcare Organizations.
(Doc. 63-1 at 19-20.)

8

The muscle normally heals on its[ ] own. If the pain lasts for more than three months it[’s]
considered chronic.” (Doc. 60-3 ¶ 6.) According to Dr. Smith:
In my professional opinion, Mr. Gifford received medical care for his
symptoms that are within the applicable standard of care. My diagnosis of Mr.
Gifford was correct and within the applicable standard of care. Furthermore,
it is my professional opinion that not ordering an MRI on June 24, 2012[,] for
Mr. Gifford was appropriate and within the applicable standard of case as an
MRI was not indicated on this date. At no time did my care and treatment of
Mr. Gifford fall below the applicable standard of care.
(Id. ¶7.) Dr. Reginald Hall, an orthopedic surgeon with the BOP, agreed; he testified, “An
MRI at the first emergency room visit was unnecessary because[,] even if Gifford had been
diagnosed [with a herniated disc] at that time, in the absence of significant neurologic
deficits(s), he should have continued with non-operative treatment.” (Doc. 60-11 ¶¶ 1, 3.)
The treatment of a lumbar strain “consists of rest and medication for pain and muscle
spasm.” (Doc. 60-3 ¶ 6.)
Dr. Smith prescribed Percocet and Robaxin for Gifford’s pain and muscle spasms.
(Doc. 54-4 at 3; doc. 60-3 ¶ 6.) In his discharge papers, Gifford was told that he may have
pain and stiffness for a few days, but he “should watch for a significant change or worsening
of [his] symptoms.” (Doc. 54-4 at 4.) His discharge papers specifically stated:
YOU SHOULD SEEK MEDICAL ATTENTION IMMEDIATELY . . . IF
ANY OF THE FOLLOWING OCCURS:
– Numbness (loss of sensation/feeling) or tingling in the legs.
– Weakness in the legs.
– Problems controlling your bowels or bladder (you soil or wet yourself).

9

– Severe increase in pain. [or]
– Your pain does not improve within 4 weeks or is severe enough to seriously
limit your normal activities.
(Doc. 54-4 at 4-5.) Gifford was discharged from the ER and returned to the institution that
day. (Doc. 60-3 ¶ 6.)
When Gifford returned to FCI–Talladega, he was seen by Laureano Marasigan, a midlevel practitioner [MLP]4 in the Health Services Unit. (Doc. 54-1 at 74; doc. 60-7 ¶ 1.)
Marasigan does not remember Gifford. (Doc. 60-7 ¶ 5.) However, according to Gifford’s
medical records, Marasigan reviewed the discharge instructions and noted that two of the
drugs Gifford was prescribed – Percocet and Robaxin5 – were “non-formulary” drugs,
meaning they were not available from the pharmacy at FCI–Talladega;6 therefore, he

4

A “mid-level practitioner,” or MLP, is “an individual practitioner, other than a
physician, dentist, veterinarian, or podiatrist, who is licensed, registered, or otherwise
permitted by the United States or the jurisdiction in which he/she practices, to dispense a
controlled substance in the course of professional practice. Examples of mid-level
practitioners include, but are not limited to, health care providers such as nurse practitioners,
nurse midwives, nurse anesthetists, clinical nurse specialists and physician assistants who
are authorized to dispense controlled substances by the State in which they practice.” 21
C.F.R. § 1300.01.
5

Robaxin is a muscle relaxant used to “treat[ ] acute musculoskeletal pain.” Medrano
v. Smith, 161 Fed. Appx. 596, 597 (7th Cir. 2006)(citing PHYSICIAN’S DESK REFERENCE 770
(60th ed. 2006); THE PDR FAMILY GUIDE TO PRESCRIPTION DRUGS 598 (9th ed. 2002)); see
also Dang by and through Dang v. Sheriff, Seminole Cty. 856 F.3d 842, 847 (11th Cir.
2017). Gifford does not complain about not receiving a muscle relaxer.
6

“The formulary system . . . is a method for evaluating and selecting suitable drug
products for the formulary of an organized health-care setting. The BOP’s formulary is a list
of medications that are considered by the organization’s professional staff to ensure high
quality, cost-effective drug therapy for the population served.” Federal Bureau of Prisons

10

substituted Tylenol with Codeine. (Doc. 54-1 at 74; doc. 60-7 ¶ 5.) Gifford stated that
Tylenol with codeine “never relieved the pain.” (Doc. 1-1 ¶ 19.) Noting the diagnosis of
lumbosacral sprain/strain, Marasigan gave Gifford a three-day convalescence pass and told
him to use warm compresses and to avoid heavy lifting. (Doc. 54-1 at 74; doc. 60-7 ¶ 5; doc.
60-8.) According to Gifford, Marasigan also instructed him “to walk the track.” (Doc. 1-1
¶ 21.)
Gifford alleges that he went two or three weeks before he was issued a lower-bunk
pass, but the records shows he was given a lower-bunk pass two days after his ER visit.
(Doc. 1-1 ¶¶ 21-22, 56; doc. 54-9 at 2; doc. 60-9 at 2.) Dr. Holbrook reviewed the ER
records, and he gave Gifford a temporary single cell and lower-bunk pass effective June 26.
(See doc. 54-1 at 74-75; doc. 60-9 at 2.) The lower-bunk pass was renewed on July 9, 2012,
(doc. 60-9 at 3), and again on July 30, 2012, (id. at 4; see also doc. 60-3 ¶¶ 9, 14).
Gifford contends that a week after he moved to a lower bunk, Bott told him he was
in the wrong bed; Bott allegedly “raised his voice and threatened to lock [Gifford] up for
switching beds.” (Doc. 1-1 ¶ 26.) Bott denies ever threatening Gifford. (Doc. 60-4 ¶ 9.)
According to Gifford, Bott sent him to see defendant Harold “Reese” Hardin, Correctional
Counselor, and Hardin allegedly “threatened to lock [Gifford] up or make [him] push a lawn
mower for switching beds.” (Doc. 1-1 ¶¶ 26-27; see also doc. 60-17 ¶ 1.) Hardin denied
Health Services, NATIONAL FORMULARY PART I, 6 (2016), available at
https://www.bop.gov/resources/pdfs/formulary.pdf. Although inmates may receive nonformulary prescription drugs, a request for non-formulary medications must be “thoroughly
justified,” which includes stating “why the formulary agent cannot be used.” Id.

11

he ever threatened Gifford with pushing a lawnmower. (Doc. 60-17 ¶ 3.) Regardless of the
threats, Hardin told Gifford that he “would do the bed change.” (Doc. 1-1 ¶ 27.)
Dr. Holbrook testified:
On June 26, 2012, MLP Honoria Dela Cruz provided Gifford with a
MDS for a temporary lower bunk, A.K.A. lower bunk pass. The MDS for a
lower bunk was not provided immediately after Gifford’s reported injury
because he did not meet the criteria in accordance with the Lower Bunk
Criteria Memorandum issued by RADM Newton E. Kendig, Assistant
Director, Federal Bureau of Prisons on June 5, 2012. The lower bed bunk
criteria denotes medical conditions that must be present in order for a pass to
be issued, and whether the pass should be temporary or mandatory. When
Gifford was seen on June 23, 2012, his exam revealed no significant findings
. . . other than tenderness. Thus, he did not qualify for a lower bunk pass at
that time.
(Doc. 60-3 ¶ 8.) Any member of the Unit Team – comprised of the Unit Manager, two Case
Managers, two Counselors, and a Unit Secretary – can make a bed assignment. (Doc. 60-17
¶7.) Hardin testified:
Changing bed assignments at the Camp is routine and part of my job. Lower
bed bunks are always preferred over upper bunks. Once a bed is assigned, I
have no problems reassigning an inmate to a lower bunk as long as the inmate
has appropriate documentation from the health services department. If an
inmate approached me, and he did not have a lower bunk pass[,] I would
contact the health services department for verification. If no one in the health
services department was available, I would advise the inmate I can’t make the
change without appropriate documentation.
(Doc. 60-17 ¶ 6.) According to Hardin, Gifford did not ask him for a lower-bunk assignment
until July 5, 2012, and he assigned him a lower bunk that same day. (Doc. 60-17 ¶ 4.)
Gifford did not respond to defendants’ Special Reports; therefore, he has not presented any
evidence to dispute the medical records and documents submitted by defendants that show

12

he was issued a lower-bunk pass on June 26, 2012, and that he waited until July 5, 2012, to
have Hardin reassign him to a lower bunk.
Gifford alleges that the “medical staff refused [his] request for a stool to use in the
shower, forcing [him] to stand up while showering causing [him] constant pain and fear of
failing down every time [he] showered.” (Doc. 1-1 ¶ 52.) His medical records do not show
that he ever requested a shower stool. (Doc. 60-3 ¶ 32; see also doc. 54-1 at 42-47, 56-79.)
Gifford did not rebut this evidence.
Gifford was next seen in Health Services on July 9, 2012, with complaints of
recurrent back pain. (Doc. 60-3 ¶ 8; doc. 54-1 at 72.) He was seen by defendant Mounir
Mourtada, MLP. (Doc. 54-1 at 72; doc. 60-3 ¶ 12; doc. 60-10 ¶ 3.) Mourtada noted that
Gifford reported his back pain was 6/10 on the pain scale. (Doc. 54-1 at 72.) Upon
examination, Mourtada noted tenderness and decreased range of active motion; however, the
examination was negative for a decreased range of passive motion, crepitus, clicking,
popping, and locking. (Id.) Mourtada found that Gifford’s symptoms were consistent with
a back sprain and/or strain. (Doc. 60-10 ¶ 3.) He assessed Gifford’s “[s]prain and strain of
lumbosacral,” from June 24, 2012, as “[i]mproved.” (Doc. 54-1 at 72-73)

Mourtada

ordered Gifford be given 500 mg of Naproxen twice daily for 10 days. (Id. at 73.) Gifford
alleges that Mourtada told him he was going to start the paperwork to get him an MRI. (Doc.
1-1 ¶¶ 29-30.) The medical records do not indicate that an MRI was requested or ordered
at this time. (See 54-1 at 72-73.)

13

Gifford returned to Health Services on July 24, 2012, slightly more than two weeks
later, when he saw Marasigan for renewal of his medication for his back pain. (Doc. 54-1
at 70; see doc. 60-7 ¶ 6.) At that time, Gifford reported his back pain was 4/10 and that his
back was “tender.” (Doc. 54-1 at 70.) Marasigan assessed Gifford’s back injury to be “[a]t
treatment goal.” (Id.) He prescribed 25 mg of Indomethacin7 three times a day for 14 days.
(Id.; doc. 60-7 ¶ 6.)
On July 27, 2012, three days later and over a month after he had been diagnosed with
a back strain or sprain, Marasigan saw Gifford again, this time in his Housing Unit. (Doc.
54-1 at 66; doc. 60-7 ¶ 7.) According to his medical records, Gifford told Marasigan that,
“while he was taking a shower he felt tingling on both lower extremities. After he finished
showering and was walking out of the shower, he felt numbness of lower extremities and he
could not feel where he was stepping and he got scared. He was helped to his cubicle by
other inmates.” (Doc. 54-1 at 66.) By the time Marasigan arrived, Gifford was able to stand
and walk, but he had continuing numbness in his left foot, back pain of 5/10, and muscle
spasms in his left buttock and thigh. (Id.; doc. 60-7 ¶ 7.) Marasigan performed a
neurological exam on Gifford, which demonstrated that his lower extremities had “active

7

Indomethacin is an NSAID “used to relieve moderate-to-severe pain, tenderness,
swelling, and stiffness.” Cruz v. Colvin, No. 1:14-CV-03308-AJB, 2016 WL 1237853, *5
n.17 (N.D. Ga. Mar. 29, 2016)(citing Medline Plus, Indomethacin, https://www.nlm.nih.gov/
medlineplus/druginfo/meds/a681027.html).

14

movement against gravity and resistance” or “some resistance.”8 (Id.) Gifford also had
diminished sensation on the dorsal aspect of the left foot. (Id.) Gifford was diagnosed with

8

Marasigan noted the following results of his neurologic examination:

Strength-Hip Flexion L2/L3/L4 & Illiopsoas
Yes: 4 – Active [Movement] Against Gravity & Some Resistance
Strength-Hip Adduction L2/L3/L4 & Adductors
Yes: 4-Active [Movement] Against Gravity & Some Resistance
Strength-Hip Abductors L4/L5/S1 and Gluteals
Yes: 4-Active Movement Against Gravity & Resistance
Strength-Hip Extension S1 and Gluteus Maximus
Yes: 4-Active Movement Against Gravity and Resistance
Strength-Knee Extension L2/L3/L4 & Quadriceps
Yes: 4-Active Movement Against Gravity and Resistance
Strength-Knee Flexion L4/L5/S1/S2 & Hamstrings
Yes: 4-Active Movement Against Gravity and Resistance
Strength-Foot Dorsiflexion L4/L5
Yes: 4-Active Movement Against Gravity and Resistance
Strength-Foot Plantar Flexion S1
Yes: 4-Active Movement Against Gravity and Resistance
Coordination - Gait
Yes: Guarded Gait
Sensory-Light Touch
Yes: Hypoesthesia
Exam shows [diminished] sensation on the dorsal aspect of the left foot.
(Doc. 54-1 at 66-67.)

15

peripheral neuropathy, unspecified,9 and given a shot of Ketorolac, an anti-inflammatory
drug. (Id. at 67.) He was told to “[f]ollow-up at Sick Call as [n]eeded.” (Id.)
The following day, July 28, 2012, Marasigan was “called down to the [the Housing
Unit] because Inmate Gifford was complaining of [numbness] and pain on both lower
extremities and he could not stand up.” (Id. at 62; doc. 60-7 ¶ 8.) Gifford told Marasigan
that his condition was “getting worse” and that he “could not feel his toes.” (Doc. 54-1 at
62; doc. 60-7 ¶ 8.) Marasigan examined Gifford and noted, “twitching and spasm of the
muscles of both lower extremities on palpation and on weight bearing with tenderness on the
[posterior] aspect.” (Doc. 54-1 at 62; doc. 60-7 ¶ 8.) The results of his neurologic
examination were the same as the day before. (Doc. 54-1 at 62-63.) Marasigan assessed
Gifford with peripheral neuropathy, unspecified, and noted that his condition had “Not
Improved.” (Id. at 63.) Gifford was prescribed 60 mg of Ketorolac twice a day for three
days. (Id.) Marasigan told Gifford “to follow up at sick call on Monday to be referred to
Physician.” (Id.; see also doc. 1-1 ¶ 34 [Gifford alleges that Marasigan told him, “You need
to see a specialist.”].) Marasigan testified that he “did not send Gifford to the emergency
room because[,] based on [his] experience, [he] did not consider the condition an
emergency.” (Doc. 60-7 ¶ 8.) He did not see Gifford again until March 2014. (Id. ¶ 9.)

9

According to Dr. Holbrook, “Peripheral neuropathy is damage to or disease affecting
nerves which may impair sensation, movement or other aspects of health depending on the
type of nerve affected[.] Common causes include systemic diseases such as diabetes, vitamin
deficiency, medication or traumatic injury.” (Doc. 60-3 ¶ 11.)

16

On Sunday, July 29, 2012, Gifford was seen in Health Services by defendant Sofronio
Paco, MLP/physician’s assistant, complaining of low-back pain and numbness. (Doc. 54-1
at 58; doc. 60-12 ¶ 1.) Gifford alleges that defendant Anthony “Ace” Williams, a Senior
Officer Specialist, “loaded [him] in a wheelchair and pushed [him] to [Health Services], but
[he] was unable to get out of the wheelchair [and on] to the examination table, so Mr.
Williams grabbed [him] in a bear hug and hefted [him] up on to the table causing sheer
agony in [his] lower back.” (Doc. 1-1 ¶ 36; see doc. 60-16 ¶ 1.) Paco denies he instructed
an officer to put Gifford in a bear hug. (Doc. 60-12 ¶ 5.) He testified that the officer had
helped Gifford get on the examination table and he had tried not to hurt him. (Id.) Williams
testified that he would never intentionally cause pain to an inmate and he had tried only to
help. (Doc. 60-16 ¶ 4.)
Upon examination, Paco noted “there is tenderness (6/10)10 to palpation on the
paravertebral muscles bilaterally;” the results of his neurologic examination of Gifford were
identical to Marasigan’s findings on July 27 and 28, 2012. (Id. at 59 [footnote added].) He
also assessed Gifford with peripheral neuropathy, unspecified, and noted Gifford’s condition
had not improved; Paco added an “initial” diagnosis of “backache, unspecified.” (Id.) Paco
contacted Dr. Holbrook, who ordered an x-ray because of Gifford’s “complaint of low back
pain for three days.” (Id. at 60; doc. 60-3 ¶ 13.) Even though Gifford’s symptoms were
consistent with the diagnosis of back strain or sprain made by Dr. Smith in the Hospital’s
10

Gifford testified that he told Paco his pain was “twenty” on a ten-point scale. (Doc.
1-1 ¶37.)

17

ER, Dr. Holbrook sought to do another x-ray “to determine if his condition was becoming
worse.” (Doc. 60-3 ¶ 13.) Gifford alleges that he asked to go to the Hospital, but Paco told
him, “Tonight is my early night, why should I help you, I am supposed to go home early
tonight.” (Doc. 1-1 ¶ 39.) Paco testified that he had waited to see Gifford until after his shift
had already ended at 6:00 p.m. (Doc. 60-12 ¶ 6 [“I was scheduled to get off of work at 6:00
p.m. However, I waited for Gifford to come to Health Services and I stayed to assist him.”].)
Gifford did not rebut this testimony.
Monday, July 30, 2012, Gifford arrived at Health Services “on a wheel chair” and
screaming. (Doc. 54-1 at 46.) Mourtada, who was examining another inmate at the time,
noted that, when he went to see what was happening, he saw Gifford “on the floor screaming
of pain [and] he claimed that he [could not] feel his legs and wanted to go [to] the outside
hospital.” (Id.; doc. 60-10 ¶ 4; see doc. 1-1 ¶ 40.) Gifford was able to walk into Mourtada’s
office. (Doc. 60-10 ¶ 4.) He told Mourtada that his pain was 10/10 and its onset was 1 to
5 hours before arriving in Health Services. (Doc. 54-1 at 46.) Gifford said that Mourtada
asked him, “Why are you crying? Grown men don’t act like this,” (doc. 1-1 ¶ 41), which
Mourtada denies, (doc. 60-10 ¶ 6). Mourtada examined Gifford and noted “Muscle Spasm,
Tenderness, Decreased Range of Active Motion, Decreased Range of Passive Motion,”
positive “Straight Leg Raise Test,” and a “Spastic Gait.” (Id. at 47.) “Gifford was diagnosed
with temporary acute backache – unspecified, peripheral neuropathy – unspecified, and
muscle spasm.” (Doc. 60-3 ¶ 14; see also doc. 54-1 at 47; doc. 60-10 ¶ 4.)

18

Mourtada contacted Dr. Holbrook about Gifford’s complaints and Dr. Holbrook
“decided to order an MRI in order to rule out [a] herniated versus ruptured disc in [the] L-S
spine.” (Doc. 60-3 ¶ 14; doc. 60-10 ¶ 4.) Dr. Holbrook found that the need for an MRI was
not “emergent at the time as Gifford was displaying classic signs of peripheral neuropathy
(a condition which cannot be cured).” (Doc. 60-3 ¶ 17.) Dr. Hall, defendant’s expert,
testified, “[W]hether to send Gifford to the emergency room on July 30, 2012, in my opinion,
[was] a judgement call. In my opinion, it was appropriate to let objective findings, (or lack
of findings) that supported the inmate’s complaints[,] direct BOP’s care, and not more
dramatic behavior that could be an attempt to get the staff to do something or send the inmate
out of the institution.” (Doc. 60-11 ¶ 3.)
A week later, on August 6, 2012, Gifford returned to the Health Services Unit for the
purpose of refilling his psoriasis medication. (Doc. 54-1 at 42; doc. 60-3 ¶ 14; doc. 60-10
¶ 5.) While there, he complained to Mourtada that he still had severe lower back pain and
that “he [had] started losing urine without noticing 2 days ago and he [could not] control his
urination.” (Doc. 54-1 at 42; doc. 60-10 ¶ 5.) Gifford also reported being unable to walk
and unable to feel his legs and thighs. (Id.) Dr. Holbrook told Mourtada to send Gifford to
the ER for “MRI of L-S spine, immediate medical attention and [diagnosis],” to rule out a
herniated disc and cauda equina syndrome. (Doc. 60-10 ¶ 5.) Dr. Holbrook testified in his
declaration that Gifford’s incontinence led him to deem Gifford’s situation to require
immediate medical attention outside Health Services. (See doc. 60-3 ¶ 16; see also doc. 60-

19

10 ¶ 5.) He testified, “Cauda equina [syndrome] is an impingement on the lower spinal cord
which left untreated can result in permanent paralysis. This condition presented a possible
emergency situation.” (Id.) Cauda equina syndrome [CES] –
is a rare syndrome described as a collection of signs and symptoms associated
with compression of the cauda equina. Cauda equina is Latin for “horse’s
tail,” and refers to the collection of nerve roots in the lower spinal canal. . .
.
CES is a rapidly-evolving neurologic disorder related to spinal cord and
spinal cord leash compression which causes a very specific
constellation of symptoms, which are necessary in order to make the
diagnosis. These symptoms are: (1) saddle anesthesia (i.e., no
sensation in the legs, anus or accompanying regions), (2) rapidly
progressing neurologic weakness progressing to paralysis and (3)
bladder dysfunction. Indeed, . . . bladder dysfunction is the “hallmark”
symptom of CES.
Blake v. United States, No. 10-CV-610S, 2017 WL 1371000, *2 (W.D.N.Y. Apr. 17,
2017)(quoting Jimerson v. United States, No. 99-CV-0954E(SR), 2003 WL 251950, *2
(W.D.N.Y. Jan. 13, 2003))(internal quotations and citations omitted).
FCI-Talladega does not have a MRI on site. (Doc. 60-3 ¶ 17.) Therefore, when an
MRI is ordered . . . a certain amount of logistical planning [is involved,] including
coordinating with an outside medical facility and correctional services to transport the
inmate. (Id.) Correctional services also determines the level of security needed for the
inmate’s transportation. (Id.) Dr. Holbrook testified:
When I ordered the MRI on July 30, 2012, I did not deem the need for the
MRI as emergent at the time as Gifford was displaying classic signs of
peripheral neuropathy (a condition which cannot be cured). Thus, the request
for the MRI was being processed through normal channels. However, on

20

August 6, 2012, when Gifford’s symptoms changed, I determined the need for
the MRI was emergent, and I had him sent immediately to the emergency room
at an outside hospital.
(Id. [emphasis added].) Also, he stated:
Although it would be easy to look back, and think Gifford should have
been sent to the emergency room earlier, it is when the symptoms changed to
those associated with Cauda Equina syndrome, that emergent evaluation
was required. Although Gifford had been complaining of pain and numbness,
he was being treated for what was felt to be spasm and neuropathy. Many of
his complaints were subjective, and did not seem to fit the objective findings
at the time. Although the neuropathy, similar to what is seen with sciatic
nerve pain and impingement, can be caused by herniation or a disc bulge it did
not rise to the emergent level until he had the incontinence which can be
associated with Cauda Equina Syndrome. Cauda Equina [syndrome] often
presents with saddle numbness, or incontinence, and left untreated, can result
in permanent paralysis. At the point this was suspected, the patient was sent
to the ER immediately.
(Id. ¶ 35 [emphasis added].)
Gifford testified that “[m]edical refused to provide [him] with adult diapers” prior to
August 6, 2012. (Doc. 1-1 ¶ 55.) However, the record shows that Gifford did not complain
about incontinence to anyone in Health Services before August 6, 2012. Moreover, on that
day, August 6, 2012, he was sent out from FCI-Talladega and did not return until a year later.
Therefore, Gifford did not ask for adult diapers and no one “refused” to provide them after
Health Services was aware of his incontinence issues.
Once Gifford arrived at the ER, he had an MRI that “showed a significant disc bulge
at L4, L5, and S1.” (Doc. 54-1 at 41; doc. 60-3 ¶ 18.) The ER physician told Dr. Holbrook
that Gifford also had “lost [sphincter] tone in the rectum and [had] some foot drop.” (Doc.

21

54-1 at 41.) Due to the ER physician’s concern about [CES], the Hospital transferred
Gifford to Princeton Hospital in Birmingham for treatment by R. Cem Cezayirli, M.D., a
neurosurgeon. (Id.; see also id. at 215-16.)
At Princeton, Dr. Cezayirli ordered a myelogram and told Dr. Holbrook that he
planned to operate on Gifford the following day. (Id. at 37.) Dr. Cezayirli diagnosed
Gifford with a “large herniated disk L4-5 with complete block,” and “cauda equina
syndrome.” (Id. at 182.) As planned, Dr. Cezayirli performed a lumbar discectomy and
decompressive laminectomy on August 8, 2012. (Doc. 60-3 ¶ 19; doc. 54-1 at 182-83.) The
surgery went well and thereafter Gifford was able to ambulate with a walker. (Doc. 60-3 ¶¶
20-21; doc. 54-1 at 29, 32, 182-83.) After surgery, however, Gifford continued to have
bowel and bladder continence issues during his stay at Princeton. (Doc. 60-3 ¶ 22; see doc.
54-1 at 25, 28, 118, 126.)
Dr. Dr. Holbrook was told that Gifford would need physical therapy, so he requested
to transfer Gifford to a Federal Medical Center to receive the appropriate care. (Doc. 60-3
¶23.) On August 27, 2012, Gifford was transferred to transitional care at Coosa Valley
Medical Center to continue physical therapy. (Id. ¶ 24.) While there, Gifford’s condition
continued to improve and he was able to walk with a quad cane. (Id.) On November 14,
2012, Gifford was transferred to the Federal Medical Center in Lexington, Kentucky. (Id.
¶ 25.)

22

Gifford remained in Lexington until he was “independent with all Activities of Daily
Living” and he felt he no longer needed physical therapy. (Id. ¶ 26.) He was transferred
back to FCI–Talladega on August 26, 2013, (id. ¶ 27), where he remained until he was
released in May 2016, (doc. 60-1 at 4).
On May 28, 2013, Gifford filed an “Emergency BP-9.”11 (Doc. 60-15 at 10.) In the
Grievance, he states in part:
In June 2012[,] I suffered an injury playing Softball at [Talladega] FPC. I
swung the bat and somehow twisted my back. I went to the Officers and SickCall and nothing was done except I was given Ibuprofen. I stayed on the floor
the remainder of the day and night and half the next day, (even during Counts).
After a couple of weeks, I got up for the 10:00 count and felt the same pain as
before shoot through my back and legs. The PA who saw me stated I needed
to see a Specialist. I had gone back to sick-call upon experiencing the same
pain as before. The PA gave me a shot and sent me on my way. This went on
for a month UNTIL I lost control of my bladder and my bowels. By the time
I got [an] MRI, the Hospital had to admit me for EMERGENCY SURGERY.
. . . It has been six (6) months since the surgery and I still have no movement
in my right foot and several “dead spots” in BOTH legs. The Doctors who
helped me in Birmingham have said this could have been totally avoided.
Now, I continue to suffer and struggle because as Mr. Paco (one of the PA’s
I saw in Talladega) said to me, I am supposed to go home early tonight, I am
NOT going to help you. This is clearly a violation of my 8th Amendment
right, this is a violation of the duty to treat, delay in medical care and
deliberate indifference to my serious medical need. . . .
(Doc. 60-15 at 10.)
Defendant John Rathman, then-Warden of FCI Talladega, denied the grievance on
June 12, 2013. (Doc. 60-15 at 8-9.) He stated:

11

In this Grievance, Gifford alleges that he had filed a BP-9 grievance on April 1,
2012, that was lost. (Doc. 60-15 at 10.)

23

This is in response to your Request for Administrative Remedy (BP-9)
receipted on June 6, 2013, in which you state you suffered an injury in June
of 2012 at FPC Talladega while playing softball. You allege you have been
subjected to negligence and deliberate indifference by not having your medical
needs met in a timely manner.
After consulting with medical staff, it was revealed that an injury report was
completed on June 23, 2012, in which you complained you hurt your back
while playing softball. You were given a prescription of Ibuprofen 800 mg
and instructed to follow up with sick call as needed. On June 24, 2012, you
continued to complain of pain. After review, the physician ordered a pain
injection and you were transferred to the local emergency room via ambulance
for further evaluation. You returned back [to] the institution the same day
with reports/X-rays of your lumbar region reflecting negative findings. You
were given a diagnosis of Lumbosacral Sprain/Strain and were given a
convalescence pass for 3 days and [instructed] to use warm compresses. You
were also prescribed Tylenol with Codeine at that time. You made sick call
July 9, 2012, for continuation of back pain, Naproxen was added to your pain
regimen and a lower bunk pass was assigned. You made sick call several more
times complaining of back pain which was addressed based on your medical
needs. You had an emergent episode on July 27, 2012, where you experienced
back pain, numbness and tingling of lower extremities while getting out of the
shower. You were given an injection for your discomfort and instructed to
notify medical if symptoms worsened or did not improve. Again on July 28,
2012, you had an emergent episode where you were experiencing pain,
numbness and tingling and you were given another injection for your
discomfort. On July 29, 2012, you were evaluated at sick call and additional
X-rays were ordered. On August 6, 2012, you reported to the MLP that you
had experienced a loss of bladder and bowel control over the last 2 days. You
also reported you had numbness in your legs and were unable to walk. At this
time, a decision was made to transport you to the local Emergency Room via
ambulance for stat MRI. After arriving in the ER and reviewing the MRI
results, a decision was made to transfer you to Princeton Hospital in
Birmingham, Alabama, for back surgery. On August 28, 2012, you were
transferred to Coosa Valley Hospital for long term care. You remained at
Coosa Valley Hospital until you were transferred to FMC Lexington on
November 14, 2012.
Therefore, you were evaluated and treated by the proper medical providers,
and at no time, was there a delay of medical care or a deliberate indifference

24

in regard to your medical needs. Additionally, your request for monetary
compensation needs to be addressed via the Federal Tort Claims Act.
Your Request for Administrative Remedy is for informational purposes only.
Medical staff will continue to provide you medical care according to Program
Statement 6031.01, Patient Care and medical standard of care. If you have any
further question or concern, you may address them with the Health Services
Administrator.
(Id.)
On June 25, 2013, Gifford appealed Rathman’s decision to the Mid-Atlantic Regional
Office. (Doc. 60-15 at 7.) This appeal was denied on the ground that, “There is no evidence
to suggest deliberate indifference to your medical needs.” (Doc. 60-15 at 6.)
Gifford filed an appeal of the Regional Decision on August 11, 2013, in which he
stated:
I am appealing the “for informational purposes only” response of the Region
for the same reasons. While providing an eloquent chronology of what has
happened to me, not one time has anyone taken responsibility for what has
happened to me as a DIRECT result of the delay in treatment by the BOP, the
denial of treatment by the BOP, and the fact that the Medical Staff were so
incompetent they didn’t readily recognize that I had damaged two discs in my
back. It was NOT UNTIL I LOST CONTROL OF MY BLADDER AND
BOWELS that I was finally sent to a Hospital where I was FINALLY seen by
competent Medical Staff. Not one of the Staff at the Hospital said, “it’s time
for me to go home and I am not going to do anything for you,” as did Mr.
Paco. This is not an isolated incident. Inmates are treated like fourth class
human beings when it comes to Medical Care. I have had my L4-L5 disc
removed, and I now have a condition called foot drop. . . . This is the lifetime
disability I must contend with now because BOP Medical Staff were not
competent to treat me and were unable to diagnose my complaint. . . . This
is my Notice of Intent to Sue pursuant to 42 U.S.C. 1983, Bivens Complaint.

25

(Doc. 60-15 at 2.) His appeal was denied on the ground that Gifford had “received medical
care and treatment in accordance with evidence based standard of care and within the scope
of services of the Federal Bureau of Prisons.” (Id. at 4.)
On April 17, 2014, Gifford filed an administrative tort claim with the BOP’s
Southeast Regional Office. (Doc. 60-14 at 2.) In this claim, he alleges:
I twisted my lower back while playing softball and that result[ed] in me
suffering a herniated disc, pinching my spine at [L4-5 and] S-1 and causing me
great and unbearable pain for two months. This injury was instantaneous after
swinging the bat and I began seeking medical help [immediately]. I was
denied the costs of an MRI for two months, but once the MRI occurred I never
left the [hospital] due to emergency surgery which the doctors said should
have been done the first night of care. I required surgery to repair the delayed
[damage] to my back.
...
FPC-TDG violated their non-discretionary duty to authorize payment for an
MRI when I was taken to the emergency room on 6-24-12 at 10:13 p.m.[sic]12
The FBOP does not have the discretionary function to deny medical care to
save budget monies and FPC-TDG refused that expense for two months
causing me to suffer emotional duress, [disability], extreme pain, loss of
gainful employment and mental trauma.
(Id. [footnote added].)
The instant action was filed on June 19, 2014. (Doc. 1.) Simultaneously, Gifford
filed a “Motion to Amend the Original Claim,” asking for “leave to amend this Complaint
to include causes of action under the FTCA, upon the agency’s final disposition of the timely
filed FTCA claim.” (Doc. 2.)
12

Gifford was admitted to the ER at 9:28 a.m. on June 24, 2012. (See doc. 54-4 at 2,
9.) He was discharged at 10:12 a.m., (id. at 14), and released at 10:41 a.m., (id. at 17).

26

Gifford’s administrative tort claim was denied by the Southeast Regional Office of
the BOP on October 21, 2014; its letter to Gifford states, in pertinent part:
Your claim has been considered for administrative settlement under the
Federal Tort Claims Act (FTCA), Title 28 [U.S.C. §] 2672, et seq., and
authority granted by [28 C.F.R. §] 0.172. . . .
You allege that medical staff at FCI Talladega failed to provide you
appropriate, timely treatment for a herniated disc and negligently refused to
order an MRI of your back. Consequently, you seek $15,000,000 in damages
for the pain and suffering you endured as well as loss of gainful employment.
We have reviewed your claim along with reports from appropriate staff
members. You arrived at FCI Talladega on September 28, 2010. On June 23,
2012, you reported to Health Services with a complaint that you hurt your
back playing ball. You were given pain medication and instruction on using
ice. The next day you were sent to the ER for an evaluation, where you were
diagnosed with lumbo-sacral sprain or strain. Your x-rays were negative. The
ER staff did not order an MRI or surgery, but prescribed pain medication.
You were given convalescence for three days with advice for warm
compresses and no heavy lifting.
On July 9, 2012, you were again seen for back pain and given medication. On
July 27, 2012, you reported tingling in your legs while taking a shower. You
were noted to have muscle spasms in your back. You were able to stand and
walk to health services, and your strength was noted at level 4 which is active
movement against gravity and resistance. You were given a ketorolac
injection. You returned the next two days day[, July 28-29, 2017,] in a
wheelchair with the same complaint and level 4 strength, and you were given
ketorolac injections. On July 30, 2012, you reported increased back pain. A
request for an MRI was placed and you were given medication for muscle
spasms. On August 6, 2012, you complained of severe back pain and
incontinence for the past two days. In light of the incontinence, you were sent
to the ER. An MRI was taken at the ER which showed a disc bulge at L4, L5,
and S1, and you were transferred to a community hospital for surgery which
was performed August 8, 2012.
Your medical records do not support your claim that medical staff negligently
failed to provide you with timely medical care or to order an MRI. While you

27

were in the ER on June 24, 2012, the hospital staff had complete control of
your medical care, and was free to order any tests they wished. The ER staff
did not order an MRI because they did not feel one was indicated.
Additionally, the BOP is not responsible for the actions of outside contractors
and, thus, is not liable for any decisions made by the hospital. You were
repeatedly tested for nerve problems, and your back pain was appropriately
treated with medication. FCI Talladega medical staff ordered an MRI when
you reported increased pain, but your symptoms worsened before it could be
taken, and you were immediately taken to the hospital.
The record indicates that your health concerns were addressed consistent with
evidence[-]based[, ]proven effective care in accordance with approved policy.
Therefore, based on the information provided, there is no evidence to support
your claim that you have suffered any injuries or been denied medical care due
to the negligent acts or omissions by FCI Talladega staff. Thus, your claim is
denied.
(Doc. 60-14 at 4-5.)
After receiving this denial, Gifford filed a second Motion to Amend his Complaint,
(doc. 9); both Motions to Amend, (docs. 2 and 9), were granted on December 5, 2014, (doc.
10). Gifford’s Amended Complaint, (doc. 11), was filed on December 8, 2014.
III. DISCUSSION
A. ALABAMA MEDICAL LIABILITY ACT
Gifford alleges defendant George Smith, M.D., violated the Alabama Medical
Liability Act [AMLA], Ala Code. § 6-5-484, et seq., when he “refused to order an MRI at
the emergency room on 24 June 2012.” (Doc. 11 ¶ 48.) Because Gifford has not supported
his claim against Dr. Smith with expert testimony as to the standard of care required under
the circumstances or that failure to order an MRI caused his injuries, his claim against Dr.
Smith will be dismissed.

28

The [AMLA] imposes upon physicians a duty to “exercise such
reasonable care, diligence and skill as physicians . . . in the same general
neighborhood, and in the same general line of practice, ordinarily have and
exercise in a like case.” Ala. Code 1975, § 6-5-484(a); see also Keebler v.
Winfield Carraway Hospital, 531 So. 2d 841 (Ala. 1988). The plaintiff in a
medical malpractice action must ordinarily establish the defendant physician’s
negligence through expert testimony as to the standard of care and the proper
medical treatment. Bates v. Meyer, 565 So. 2d 134, 136 (Ala. 1990).
Although an exception exists when the breach of the standard of care is
obvious to the average layperson, Ellingwood v. Stevens, 564 So. 2d 932 (Ala.
1990); Bell v. Hart, 516 So. 2d 562 (Ala. 1987), . . . this exception [is not]
applicable in the present case.13 Where this exception is inapplicable, the
expert witness must establish “1) the appropriate standard of care, 2) the
doctor’s deviation from that standard, and 3) a proximate causal connection
between the doctor’s act or omission constituting the breach and the injury
sustained by the plaintiff.” Bradford v. McGee, 534 So. 2d 1076, 1079 (Ala.
1988) (citations omitted).
The failure of an expert to establish the standard of care results in a lack
of proof essential to a medical malpractice plaintiff’s case. Rosemont, Inc. v.
Marshall, 481 So. 2d 1126 (Ala. 1985). In order to establish the standard of
care in this case, [plaintiff] was required to enumerate the prevailing medical
procedures in the national medical community that reasonably competent
physicians would ordinarily utilize when acting in the same or similar
circumstances. Bates v. Meyer, 565 So. 2d 134, 136 (Ala.1990). If the
13

“[The Alabama Supreme Court] has held that testimony defining the standard of care
owed by a physician, or a breach thereof, must be provided by an expert medical witness,
unless the breach is so apparent as to be within the comprehension of the average layman.
Timmerman v. Fitts, 514 So. 2d 907 (Ala. 1987); Dobbs v. Smith, 514 So. 2d 871 (Ala.
1987). Standard of care testimony is testimony concerning the degree of competency
required of a professional, and it usually addresses whether the defendant in a particular case
breached that standard. See S. Pegalis and H. Wachsman, American Law of Medical
Malpractice § 11.4 (1981).” Ellingwood v. Stevens, 564 So. 2d 932, 934 (Ala. 1990).
The court finds that whether the applicable standard of care required Dr. Smith to
order an MRI during Gifford’s first ER visit on June 24, 2012, is not obvious to the average
layman. Therefore, expert testimony is required to rebut defendants’ expert testimony that
an MRI was not medically necessary under the circumstances and that failing to order an
MRI at that time was not a breach of the appropriate standard of care.

29

standard of care is not established, there is no measure by which the
defendant’s conduct can be gauged. Dobbs v. Smith, 514 So. 2d 871 (Ala.
1987).
Pruitt v. Zeiger, 590 So. 2d 236, 237-38 (Ala. 1991)(footnote added).
As noted above, defendants have submitted expert opinion testimony that the failure
to order an MRI in the emergency room the day following Gifford’s injury did not violate
the appropriate standard of care. Specifically, this evidence establishes that Gifford’s lack
of neurologic symptoms, such as numbness or tingling, together with his description of the
cause of his injury, swinging a baseball bat, indicated that he had a muscle strain or sprain.
Dr. Smith testified that the need for an MRI was not indicated. (Doc. 24-1 ¶ 7.) Dr.
Holbrook testified that Dr. Smith’s diagnosis was consistent with Gifford’s reported injury,
(doc. 60-3 ¶ 6), and that the need for an MRI was not “emergent” until Gifford reported
symptoms of incontinence, (id. ¶¶ 17, 35). Moreover, Dr. Hall, the BOP orthopedic surgeon,
testified Gifford’s treatment would not have been different even if he had been diagnosed
with a torn disk by MRI on June 24, 2012, because “in the absence of significant neurologic
deficits(s), he should have continued with non-operative treatment.” (Doc. 60-11 ¶ 3.) This
evidence establishes that Dr. Smith’s conduct in failing to order an MRI on June 24, 2012,
did not violate the standard of care.
Gifford did not respond to defendants’ Special Reports, which the court has treated
as motions for summary judgment. As a result, he has not supported his claim under the

30

AMLA with expert testimony establishing the standard of care or that Dr. Smith’s actions
or inactions breached that standard.
Therefore, his claim against Dr. Smith will be dismissed.
B. FEDERAL TORT CLAIMS ACT
Gifford alleges claims under the Federal Tort Claims Act against the United States
based on its alleged “intentional[ ] depriv[ation] [of] a medically necessary MRI,” (doc. 11
¶ 75), “fail[ure] to provide medically necessary treatment for [his] serious back injury,” (id.
¶ 81), and “knowing[ ] and willful[ ] falsifi[cation] [of his] Bureau Electronic Medical
Records,” (id. ¶ 85). For the reasons set forth below these claims are due to be dismissed.
1. Falsified Medical Records
Gifford alleges that the United States falsified his medical records in an attempt to
mislead “the finder of fact” as to the true nature of his back injury, which constitutes
“governmental fraud and abuse.” (Doc. 11 ¶¶ 84-85.) Gifford did not exhaust this claim by
including it in his Administrative Claim. (See doc. 60-14 at 2; see also id. at 4.) Therefore,
this claim is due to be dismissed.
The FTCA provides a limited waiver of the United States’ sovereign
immunity for tort claims. Suarez v. United States, 22 F.3d 1064, 1065 (11th
Cir. 1994). “It allows the government to be sued by certain parties under
certain circumstances . . . .” Id. However, “[a] federal court may not exercise
jurisdiction over a suit under the FTCA unless the claimant first files an
administrative claim with the appropriate agency.” Id. (citing 28 U.S.C.
§2675(a)). The administrative claim must be filed within two years from the
time the claim accrues and must be “accompanied by a claim for money
damages in a sum certain.” 28 C.F.R. § 14.2(a); 28 U.S.C. §§ 2675, 2401(b).

31

Dalrymple v. United States, 460 F.3d 1318, 1324 (11th Cir. 2006); see Douglas v. United
States, 814 F.3d 1268, 1279 (11th Cir. 2016)(“Before filing an FTCA lawsuit, a plaintiff
must fully exhaust administrative remedies for his claims. The BOP has promulgated
regulations describing how prisoners should file administrative FTCA claims against the
BOP. Prisoners may file suit only after the final agency action.”)(citations omitted). “Courts
of this Circuit have construed this mandate to mean that a plaintiff must provide written
notice to the agency that includes (1) sufficient information to enable the agency to
investigate the claim, and (2) a sum certain for the amount of damages sought.” Dixon v.
United States, 96 F. Supp. 3d 1364, 1368-69 (S.D. Ga. 2015)(citing Adams v. United States,
615 F.2d 284, 289 (5th Cir. 1980)); see also Orlando Helicopter Airways v. United States,
75 F.3d 622, 625 (11th Cir. 1996). “[N]otice must be satisfied with respect to each legal
claim.” Dixon, 96 F. Supp. 3d at 1369 (citing Turner ex rel. Turner v. United States, 514
F.3d 1194, 1200 (11th Cir. 2008))(emphasis in original); see also Dalrymple, 460 F.3d at
1325 (11th Cir. 2006)(“The FTCA requires that each claim and each claimant meet the
prerequisites for maintaining a suit against the government.”)(emphasis in original).
However, the notice need not recite every possible legal theory; “[r]ather, section 2675(a)
requires that the claimant’s notice provide sufficient information to enable the government
to investigate the tort claim.” Orlando Helicopter Airways, 75 F.3d at 625(citing Tidd v.
United States, 786 F.2d 1565, 1568 (11th Cir. 1986); Bush v. United States, 703 F.2d 491,
495 (11th Cir. 1983)).

32

Nothing in Gifford’s administrative claim notified the BOP of his claim that he had
been injured by individuals falsifying his medical records. See Torjabo v. United States, No.
6:05-cv-419-Orl-28KRS, 2007 WL 1970867, *4 (M.D. Fla. July 3, 2007). Certainly his
administrative claim did not “provide sufficient information” to suggest that the agency
should investigate falsified medical records in addition to Gifford’s claims based on
inadequate medical treatment. Therefore, the court finds that Gifford did not exhaust his
administrative remedy with regard to his FTCA claim alleging falsified medical records, and
the court will dismiss that claim without prejudice based on a lack of jurisdiction.
In the alternative, the court notes that this claim is barred by § 2680(h) of the FTCA.
The FTCA does not apply to “[a]ny claim arising out . . . misrepresentation [or] deceit.” 28
U.S.C. § 2680(h). If the court has jurisdiction over this claim, the claim would be dismissed
with prejudice as barred by § 2680(h). However, because the court lacks jurisdiction, this
claim will be dismissed without prejudice.
2. Medical Malpractice
Two of Gifford’s claims under the FTCA are based on alleged medical malpractice
and/or inadequate medical treatment. (See doc. 11 ¶ 75 [“intentional[ ] depriv[ation] [of] a
medically necessary MRI”]; id. ¶ 81 [“fail[ure] to provide medically necessary treatment for
[his] serious back injury”].) “To prevail under the FTCA, [Gifford must] satisfy the
requirements of Alabama medical malpractice law. Moore v. Guzman, 362 Fed. Appx. 50,

33

53 (11th Cir. 2010)(citing 28 U.S.C. § 1346(b)(1);14 FDIC v. Meyer, 510 U.S. 471, 478
(1994)). As set forth above –
. . . a defendant cannot be held liable for medical malpractice in Alabama
unless she fails “to exercise such reasonable care, diligence and skill as
physicians, surgeons, and dentists in the same general neighborhood, and in
the same general line of practice, ordinarily have and exercise in a like case.”
Ala. Code. § 6-5-484(a). Unless the applicable standard of care would be
obvious to a layperson, Alabama plaintiffs must “establish the defendant
physician’s negligence through expert testimony as to the standard of care and
the proper medical treatment.” Pruitt v. Zeiger, 590 So. 2d 236, 237-38 (Ala.
1991). [Gifford] produced neither expert testimony nor a learned treatise, see
McMickens v. Callahan, 533 So. 2d 579, 581 (Ala. 1988), in opposition to the
defendants’ summary judgment motion. Because this failure “results in a lack
of proof essential to a medical malpractice plaintiff’s case” under Alabama
law, Pruitt, 590 So. 2d at 238, . . . summary judgment on [Gifford’s] FTCA
claims [based on medical malpractice is due to be granted].
Moore, 362 Fed. Appx. at 54 (footnote omitted).
The court finds expert testimony is required to show (1) the standard of care
applicable to the medical service providers and (2) the medical service providers’ breach or
breaches of that standard of care. Gifford failed to present expert testimony; therefore, his
FTCA claims based on medical malpractice will be dismissed.
As set forth above, the government has presented expert testimony that Gifford’s
medical treatment did not breach the appropriate standards of care of treatment for a back
injury. Not only has Gifford failed to offer any expert testimony to support his claim, he has

14

Eleventh Circuit Rule 36-2 provides, in pertinent part, “An opinion shall be
unpublished unless a majority of the panel decides to publish it. Unpublished opinions are
not considered binding precedent, but they may be cited as persuasive authority.” 11th Cir.
R. 36-2 (emphasis added).

34

also failed to offer expert testimony to rebut the government’s experts that the medical staff
at Talladega did not breach any standard of care and that they appropriately treated Gifford’s
complaints and symptoms, including evaluations and testing. In light of the government’s
showing, the onus was upon Gifford to come forward with expert medical evidence sufficient
to create a genuine issue of material fact with respect to the elements of an AMLA claim.
Having failed to do so, his FTCA claims based on medical malpractice will be dismissed
with prejudice.
C. BIVENS CLAIMS
In his Amended Complaint Gifford alleges a number of causes of actions based on
Bivens.15 “In Bivens – proceeding on the theory that a right suggests a remedy – [the
Supreme] Court ‘recognized . . . an implied private action for damages against federal
officers alleged to have violated a citizen’s constitutional rights.’” Ashcroft v. Iqbal, 556
U.S. 662, 675 (quoting Correctional Services Corp. v. Malesko, 534 U.S. 61, 66 (2001)).
“[W]here Bivens . . . appl[ies], the implied cause of action is the ‘federal analog to suits
brought against state officials under . . . 42 U.S.C. § 1983.’” Iqbal, 556 U.S. at 675
(citations omitted). Like § 1983, “Government officials may not be held liable for the
unconstitutional conduct of their subordinates under a theory of respondeat superior.” Id.
at 676 (citations omitted). Also, a Bivens cause of action is not available against a federal

15

Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971).

35

agency, F.D.I.C. v. Meyer, 510 U.S. 471, 486 (1994), or private entities acting under color
of federal law, Malesko, 534 U.S. at 66.
1. Institutional Defendants
a. The Hospital
Gifford alleges, “Defendants Northeast Regional Medical Center, and the Federal
Bureau of Prisons did knowingly enter into a medical service contract16 that was reasonably
foreseeable to violate Plaintiff’s constitutional rights to be free from cruel and unusual
punishment and protect Plaintiff from the infliction of pain and suffering pursuant to 42
U.S.C. § 1983 [and] Bivens v. Six Unknown Federal Agents.” (Doc. 11 at 8 [footnote
added].) However, no Bivens claim against the Hospital “exists because the Supreme Court
has held that no Bivens action lies against a private entity alleged to act unconstitutionally
under color of federal law.” Sabeta v. Baptist Hosp. of Miami, Inc., 410 F. Supp. 2d 1224,
1245 (S.D. Fla. 2005)(citing Malesko, 534 U.S. at 69-70).
Therefore, Gifford’s Bivens claim against the Hospital will be dismissed with
prejudice.

16

As set forth in the Statement of Facts, the Hospital did not have a medical-services
contract with the BOP, although these entities had agreed to a pricing schedule. See, supra,
p. 8. As Dr. Holbrook testified, and Gifford has not disputed, “Neither [Dr. Holbrook] nor
FCI Talladega had any input on what tests should be ordered for any inmate in the care of
the hospital or any outside medical entity.” (Doc. 60-3 ¶ 34.)

36

Also, no claim pursuant to § 1983 exists against the Hospital. “A claim upon which
relief may be granted to [Gifford] against [the Hospital] under § 1983 must embody at least
two elements.” Flagg Bros. v. Brooks, 436 U.S. 149, 155 (1978).
[Gifford is] first bound to show that [he has] been deprived of a right “secured
by the Constitution and the laws” of the United States. [42 U.S.C. § 1983.]
[He] must secondly show that [the Hospital] deprived [him] of this right acting
“under color of any statute” of the State of [Alabama]. It is clear that these
two elements denote two separate areas of inquiry.
Id. at 155-56 (citing Adickes v. S. H. Kress & Co., 398 U.S. 144, 150 (1970)). Therefore,
the Supreme Court, interpreting § 1983, has “insisted that the conduct allegedly causing the
deprivation of a federal right be fairly attributable to the State.” Lugar v. Edmondson Oil
Co., 457 U.S. 922, 937 (1982)(emphasis added). Gifford has presented no evidence upon
which a reasonable jury could find that the acts of the Hospital are attributable to the State
of Alabama.
Therefore, to the extent Gifford’s Amended Complaint alleges a § 1983 claim against
the Hospital, such claim will be dismissed with prejudice.
Based on the foregoing, the court finds that Gifford’s claims against the Hospital –
whether under § 1983 or Bivens – are due to be dismissed.
b. Bureau of Prisons and Utilization Review Board
The law is clear that Bivens does not provide a remedy for alleged constitutional
deprivation directly against a federal agency. F.D.I.C. v. Meyer, 510 U.S. 471, 486 (1994),
cited in Walden v. Centers for Disease Control & Prevention, 669 F.3d 1277, 1283 (11th

37

Cir. 2012). Indeed, “Bivens from its inception has been based not on [the deterrence of the
unconstitutional acts of the policy-making entity], but on the deterrence of individual officers
who commit unconstitutional acts.” Malesko, 534 U.S. at 71.
If a federal prisoner in a BOP facility alleges a constitutional deprivation, he
may bring a Bivens claim against the offending individual officer, subject to
the defense of qualified immunity. The prisoner may not bring a Bivens claim
against the officer’s employer, the United States, or the BOP. With respect to
the alleged constitutional deprivation, his only remedy lies against the
individual . . . .
Id. at 71-72 (emphasis added).
Therefore, the court finds that Gifford cannot state a Bivens claim against the
Utilization Committee and/or BOP. His Bivens claims against these entities will be
dismissed.
2. Individual Defendants
a. Warden John Rathman
Gifford contends that defendant John Rathman, then Warden of FCI Talladega, was
deliberately indifferent to his medical needs by refusing to provide him a timely MRI. (Doc.
11 ¶ 55.) However, according to the medical records, Rathman was never directly involved
in any medical decision regarding whether to provide Gifford an MRI. Indeed, whether or
not to order an MRI was made by Dr. Smith in the ER and FCI-Talladega’s medical service
providers. (Doc. 60-3 ¶¶ 14, 17, 34.) Therefore, Gifford’s claim, that Rathman was
deliberately indifferent to his medical need by denying him an MRI, will be dismissed.

38

To the extent that Gifford alleges Rathman is vicariously liable, such claim is also due
to be dismissed. “[I]ndividual government officials cannot be held liable in a Bivens suit
unless they themselves acted unconstitutionally.” Wood v. Moss, 134 S. Ct. 2056, 2070
(2014)(quoting Ashcroft v. Iqbal, 556 U.S. 662, 683 (2009)). “Bivens is not designed to
hold officers responsible for acts of their subordinates.” Ziglar v. Abbasi, 137 S. Ct. 1843,
1860 (2017)(citing Iqbal, 556 U.S. at 676)(emphasis omitted).
“The standard by which a supervisor is held liable in [his] individual
capacity for the actions of a subordinate is extremely rigorous.” Braddy v.
Florida Dep’t of Labor & Employment Sec., 133 F.3d 797, 802 (11th Cir.
1998). Supervisors “can be held liable under [Bivens] when a reasonable
person in the supervisor’s position would have known that his conduct
infringed the constitutional rights of the plaintiffs, and his conduct was
causally related to the constitutional violation committed by his subordinate.”
Greason v. Kemp, 891 F.2d 829, 836 (11th Cir. 1990)(citations and footnote
omitted).
“Supervisory liability [under Bivens] occurs either when the supervisor
personally participates in the alleged constitutional violation or when there is
a causal connection between actions of the supervising official and the alleged
constitutional violation.” Braddy, 133 F.3d at 802 (quoting Brown v.
Crawford, 906 F.2d 667, 671 (11th Cir. 1990)). A causal connection can be
established “when a history of widespread abuse puts the responsible
supervisor on notice of the need to correct the alleged deprivation, and he fails
to do so,” id., or when the supervisor’s improper “custom or policy . . .
resulted in deliberate indifference to constitutional rights,” Rivas v. Freeman,
940 F.2d 1491, 1495 (11th Cir. 1991). A causal connection can also be
established by facts which support an inference that the supervisor directed the
subordinates to act unlawfully or knew that the subordinates would act
unlawfully and failed to stop them from doing so. See Post v. City of Fort
Lauderdale, 7 F.3d 1552, 1561 (11th Cir. 1993)(finding no supervisory
liability in the absence of such an inference).

39

Gonzalez v. Reno, 325 F.3d 1228, 1234-35 (11th Cir. 2003); see also Rice v. Sixteen
Unknown Fed. Agents, 658 Fed. Appx. 959, 961 (11th Cir. 2016)(“To demonstrate a causal
connection, a plaintiff must show either that (1) the supervisor was put on notice, by a
history of widespread abuse, of the need to correct the alleged deprivation, but failed to do
so; (2) the supervisor’s policy or custom resulted in deliberate indifference; (3) the
supervisor directed subordinates to act unlawfully; or (4) the supervisor knew that
subordinates would act unlawfully and failed to intervene.”)(citing Gonzalez, 325 F.3d at
1234).
Gifford has not presented evidence sufficient to show a disputed issue of fact as to
Rathman’s direct involvement in the decision to provide him (or not provide him) with an
MRI. Therefore, the court finds that his Bivens claim against Rathman is due to be
dismissed.
b. Medical Services Providers – Deliberate Indifference to a Serious
Medical Need
Gifford alleges that defendants Holbrook, Mourtada, Marasigan, Paco, and Tipple
were deliberately indifferent to his serious medical needs. (Doc. 11 ¶¶ 60-64.) He alleges
that Dr. Holbrook was deliberately indifferent to his serious medical condition by treating
him conservatively until sending him to the ER on or about August 6, 2012. Also, he alleges
that, “even though the defendant[s] never ‘refused to treat’ [him],” the defendants provided
“substandard care” and were inattentive to his serious medical needs in the following ways:
1. Denied him pain medication prescribed by the Hospital’s ER;

40

2. Denied him effective pain medication;
3. Lied to him about the BOP’s ability to provide him narcotic pain
medication;
4. Denied him a lower bunk pass during the first three weeks of [his]
injury;
5. Demanded he walk the track and use hot packs, which aggravated
his condition;
6. Refused to provide him a shower stool;
7. Refused to provide him adult diapers;
8. Lied about doing the paperwork for an MRI; and
9. Dr. Holbrook voted to deny him an MRI.
(Id.)
The law regarding deliberate indifference to a prisoner’s medical care and treatment
is well settled:
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.’” Harris v. Thigpen, 941 F.2d
1495, 1505 (11th Cir. 1991)(citing Rogers v. Evans, 792 F.2d 1052, 1058
(11th Cir. 1986)). Incidents of mere negligence or malpractice do not rise to
the level of constitutional violations. Id. (citing Estelle v. Gamble, 429 U.S.
97, 106, 97 S. Ct. 285, 292, 50 L. Ed. 2d 251 (1976)). Similarly, a difference
in medical opinion between the medical staff and an inmate as to the inmate’s
diagnosis or course of medical treatment does not support a claim of cruel and
unusual punishment. Id. (citations omitted). Stating an Eighth Amendment
claim of denial of adequate medical care requires satisfying both an objective
and subjective component. Taylor v. Adams, 221 F.3d 1254, 1257 (11th Cir.
2000), cert. denied 531 U.S. 1077, 121 S. Ct. 774, 148 L. Ed. 2d 673 (2001).
First, there must be conduct by prison officials which, objectively speaking,
is “sufficiently serious” to constitute a deprivation “‘denying the minimal

41

civilized measure of life’s necessities.’” Id. (quoting Wilson v. Seiter, 501
U.S. 294, 298, 111 S. Ct. 2321, 2324, 115 L. Ed. 2d 271 (1991)(internal
quotation omitted)). Second, the prison officials must possess a subjective
intent to use the medical deprivation as a means of punishment. Id.
(citations omitted).
Both the objective and subjective components encompass two
subsidiary requirements. Id. at 1258. As to the objective prong, an
objectively serious deprivation requires a showing of an objectively “serious
medical need.” Estelle v. Gamble, 429 U.S. 97, 104, 97 S. Ct. 285, 291, 50
L. Ed. 2d 251 (1976). A serious medical need is “one that has been diagnosed
by a physician as mandating treatment or one that is so obvious that even a lay
person would easily recognize the necessity for a doctor’s attention.” Hill v.
DeKalb Regional Youth Detention Center, 40 F.3d 1176, 1186 (11th Cir.
1994), abrogated on other grounds by Hope v. Pelzer, 536 U.S. 730, 122 S.
Ct. 2508, 153 L. Ed. 2d 666 (2002); see Farmer [v. Brennan], 511 U.S. [825,]
834, 114 S. Ct. [1970,] 1977 [(1994)](serious medical need is one that, if left
unattended, “pos[es] a substantial risk of serious harm.”). In addition, an
objectively serious deprivation requires a showing that the response made
by Defendants to that need was so deficient as to constitute “an unnecessary
and wanton infliction of pain.” Estelle, 429 U.S. at 105-06, 97 S. Ct. at 29192 (internal quotation marks omitted); see Taylor, 221 F.3d at 1257; see also
Adams v. Poag, 61 F.3d 1537, 1543 (11th Cir. 1995).
To show the required subjective intent to punish, Plaintiff must
demonstrate that Defendants acted with an attitude of “deliberate
indifference.” Estelle, 429 U.S. at 105, 97 S. Ct. at 291. “Deliberate
indifference has three components: (1) subjective knowledge of a risk of
serious harm; (2) disregard of that risk; (3) by conduct that is more than mere
negligence.” Farrow v. West, 320 F.3d 1235, 1245-46 (11th Cir. 2003)(citing
McElligott v. Foley, 182 F.3d 1248, 1255 (11th Cir. 1999); Taylor, 221 F.3d
at 1258 (stating that defendant must have subjective awareness of an
“objectively serious need” and that his response must constitute “an
objectively insufficient response to that need”)). “Deliberate indifference” and
“mere negligence” are not one and the same. Deliberate indifference must be
more than a medical judgment call or an accidental or inadvertent failure

42

to provide adequate medical care. Murrell v. Bennett, 615 F.2d 306, 310 n.4
(5th Cir.1980).17
A complete denial of readily available treatment for a serious medical
condition constitutes deliberate indifference. Harris v. Coweta County, 21
F.3d 388, 393 (11th Cir. 1994). However, where the inmate has received
medical treatment, and the dispute is over the adequacy of that treatment,
courts should be reluctant to question the accuracy or appropriateness of the
medical judgments that were made. Harris v. Thigpen, 941 F.2d at 1507
(quoting Waldrop v. Evans, 871 F.2d 1030, 1035 (11th Cir. 1989)). To do
otherwise would be “to constitutionalize claims that sound in tort law.” Hamm
v. DeKalb County, 774 F.2d 1567, 1575 (11th Cir. 1985)(quotation omitted).
Hervy v. McDonough, No. 5:07cv58/RS/EMT, 2007 WL 1482392, *3-4 (N.D. Fla. May 18,
2007)(emphasis and footnote added); see also Harris v. Prison Health Services, No.
15-13791, 2017 WL 3616341, at *5 (11th Cir. Aug. 23, 2017)(unpublished); Patrick v. Ala.
Dep't of Corr., No. 2:17-CV-132-MHT, 2017 WL 2644260, *4-6 (May 8, 2017), report and
recommendation adopted 2017 WL 2644254 (M.D. Ala. June 19, 2017). “Medical treatment
[or lack thereof] that is so grossly incompetent, inadequate, or excessive as to shock the
conscience or to be intolerable to fundamental fairness violates the eighth amendment.”
Rogers v. Evans, 792 F.2d 1052, 1058 (11th Cir. 1986)(internal citations omitted).
“[T]herefore, ‘[a] medical decision not to order an X-ray, or like measures, does not
represent cruel and unusual punishment,’ and is, at most, ‘medical malpractice.’” Harris,
2017 WL 36163431, at *7 (quoting Estelle, 429 U.S. at 107).

17

Decisions of the former Fifth Circuit Court of Appeals rendered prior to October 1,
1981, constitute binding precedent in the Eleventh Circuit. Bonner v. City of Prichard, 661
F.2d 1206, 1209 (11th Cir.1981) (en banc).

43

i. Denial of specific narcotic pain medicine prescribed by ER doctor
Gifford alleges that Dr. Smith prescribed “heavy narcotic medicine,” Percocet, for his
back strain/sprain and that “FBOP staff refused to provide that medicine and substituted it
with only one [Tylenol] #3, twice per day, for a three day period.” (Doc. 11 ¶¶ 25-26.) He
contends that the substituted pain medication “never relieved the pain.” (Doc. 1-1 ¶ 19.)
According to defendants Dr. Holbrook and Marasigan, Percocet and Robaxin, the
medications prescribed by Dr. Smith in the ER, were “non-formulary,” not available in the
pharmacy,18 and Tylenol with codeine was substituted for Percocet. (Doc. 60-3 ¶ 7; doc.
60-7 ¶ 5.) Dr. Holbrook testified that, in his medical opinion, Tylenol with codeine was
“appropriately substituted” for Percocet. (Doc. 60-3 ¶ 7.)
Gifford has presented no evidence to rebut Dr. Holbrook’s medical opinion that
Tylenol with codeine was an adequate substitute for Percocet. “With no evidence that such
a substitution was unreasonable, [the court] cannot find that the Defendants’ actions
amounted to a failure to take reasonable measures to abate [plaintiff’s] pain.” See Burton
v. Owens, 511 Fed. Appx. 385, 389-90 (5th Cir. 2013); see also DeBoer v. Luy, 70 Fed.
18

“[BOP] maintains a formulary of drugs that its physicians are permitted to prescribe
without further ado.” United States v. Rothbard, 851 F.3d 699, 701 (7th Cir. 2017). “The
primary goals of BOP Formulary Management are to optimize therapeutic outcomes,
optimize cost effectiveness of medications, and to ensure drug usage is conducive within the
correctional environment.” Federal Bureau of Prisons Health Services National Formulary,
Part I, at 6 (2016) [hereinafter “FBOP Formulary”], available at
https://www.bop.gov/resources/pdfs/formulary.pdf. “That does not mean, however, that
non-formulary drugs are impossible to obtain. To the contrary, if a doctor believes that a
patient needs a non-formulary drug, the doctor may prescribe it by following certain
procedures.” Rothbard, 851 F.3d at 701; see (7th Cir. 2017); FBOP Formulary at 6-7.

44

Appx. 880, 883 (7th Cir. 2003)(physician defendant was not deliberately indifferent by
substituting Tylenol #3 for prescribed Vicodin; substitution decision was reasonable based
on physician’s medical judgment).
The court finds that Gifford has not shown a question of fact exists as to whether
Marasigan and Dr. Holbrook were deliberately indifferent to his pain by substituting Tylenol
with codeine for the pain medication prescribed in the ER. Therefore, this claim will be
dismissed.
ii. Denial of effective pain medication for six weeks
Gifford alleges that defendants denied him effective pain medicine for six weeks,
(doc. 11 ¶ 61), presumably June 24, 2012, the date he was first seen in the ER, until August
6, 2012, the date he returned to the ER. Gifford has not presented evidence to rebut
defendants’ showing that they provided him appropriate medications based on his
complaints, their examinations and evaluations, and the diagnosis of a back sprain or strain.
Gifford may have believed he should receive more and stronger medications for his pain, but
a difference of opinion between the prisoner patient and the medical-service providers
regarding the type and dosage of medication does not demonstrate deliberate indifference to
the prisoner patient’s pain. Certainly this difference of opinion does not support an inference
that defendants acted with subjective intent to punish or that defendants’ medication
decisions were so deficient as to constitute the unnecessary and wanton infliction of pain.
See Estelle, 429 U.S. at 105-06.

45

Defendants have presented evidence that Gifford was treated according to their
reasonable medical judgment and in good faith. (See doc. 60-3 ¶¶ 7, 35-36; doc. 60-7 ¶10;
doc. 60-10 ¶¶ 6-7; doc. 60-12 ¶¶ 7-8; 60-8 ¶¶ 8-9.) Gifford has not shown otherwise.
Therefore, this claim will be denied.
iii. Lie about ability to provide narcotic pain medicine
Gifford alleges that the “staff [lied] about the ability for the FBOP to provide [the
prescribed] narcotic pain medicines.” (Doc. 11 ¶ 61.) The court notes that nothing in the
record demonstrates that anyone lied to Gifford regarding the availability of Percocet.
Marasigan told Gifford that Percocet was not in the Health Services’s pharmacy and Gifford
has not pointed to any evidence that Percocet was actually available on site. Nevertheless,
although, under certain circumstances, the denial of a particular medication may be
deliberate indifference to a serious medical need, simply lying about the availability of a
particular medication will not. As set forth above, the evidence presented shows that Tylenol
with codeine was a medically appropriate medication for Gifford’s pain. Therefore, he has
not shown that giving him Tylenol with codeine, instead of Percocet, was such an inadequate
response to his medical needs as to constitute the unnecessary and wanton infliction of pain.
See Estelle, 429 U.S. at 105-06.
Therefore, Gifford’s claim based on defendants’ alleged lie about the availability of
Percocet will be dismissed.
iv. Failure to give him a lower-bunk pass for three weeks after his
injury

46

Gifford alleges that defendants were deliberately indifferent to his serious medical
needs by failing to provide him with a lower-bunk pass until three weeks after he injured his
back. (Doc. 11 ¶ 61.) He also alleges that defendants Bott and Hardin harassed him by
denying him a lower bunk pass for weeks. (Id. ¶ 72.) In support of their Special Report,
defendants have submitted evidence that Gifford was issued a lower-bunk pass and a singlecell pass on June 26, 2012, and, when Gifford presented the low bunk pass to Hardin, Hardin
reassigned a low bunk that day. (See doc. 60-9 at 2.) Gifford did not respond to defendant’s
Special Report; therefore, the court finds this evidence is undisputed.
The court finds no evidence of deliberate indifference based on the short delay before
Gifford received a lower-bunk pass. Thus, this claim will be dismissed.
v. Gifford required to “walk the track and use hot packs”
Gifford alleges that defendants were deliberately indifferent to his serious medical
needs by “demanding that Plaintiff ‘walk the track and use hot packs’ which only placed
more pressure on the fecal sac causing loss of bowels.”19 (Doc. 11 ¶ 61.) However, he has
presented no medical opinion evidence that walking the track and using hot packs caused him
to develop CES or worsened his herniated disk, or that treating a back strain or sprain with
heat and exercise was such a deficient response to the medical need as to constitute
unnecessary and wanton infliction of pain. Also he has failed to demonstrate any facts that

19

The medical record contains no indication that Gifford complained about losing
control of his bowels to anyone in Health Services.

47

would support a finding that defendants demanded he exercise and use hot packs with the
intent to punish him.
The court finds that Gifford’s Eighth Amendment claim based on defendants’
treatment of his back pain with exercise and heat is due to be dismissed.
vi. Shower stool
Gifford alleges that defendants were deliberately indifferent to his serious medical
needs when they “refus[ed] to provide [him] with a small stool/bench to shower with.” (Doc.
11 ¶ 61.) The record contains no evidence that any defendant denied Gifford a shower stool,
or that Gifford ever requested a shower stool. Without evidence of the intentional refusal
to provide a shower stool for the purpose of punishing Gifford, there can be no showing of
deliberate indifference. See Estelle, 49 U.S. 105.
Therefore, Gifford’s Eighth Amendment claim based on defendants’ failure to provide
him a shower stool will be dismissed.
vii. Adult diapers
Gifford alleges that defendants “refus[ed] to provide [him] adult diapers upon being
notified [of his symptoms of] fecal leakage and bladder incontinence.” (Doc. 11 ¶ 61.) The
evidence is undisputed that, at the time Gifford first notified any of the defendants that he
had experienced incontinence, he was sent forthwith to the ER, and he did not return to
Talladega until months later. Because of the almost simultaneous transfer to the ER after
complaining of incontinence, defendants had no opportunity to deny Gifford adult diapers.

48

Therefore, Gifford’s claim that his Eighth Amendment rights were violated by
defendants’ refusal to provide him adult diapers after he notified them of his incontinence
will be dismissed.
viii. Lie regarding paperwork for an MRI
Gifford alleges that his Eighth Amendment rights were violated when defendants lied
“about ‘doing the paperwork for an MRI’ early on during the post-injury period of time.”
(Doc. 11 ¶ 61.) Defendants deny that they lied to Gifford. Nevertheless, any lie about
whether or not defendants had prepared paperwork for Gifford to receive an MRI does not
constitute deliberate indifference to Gifford’s serious medical needs. Gifford has not shown
that failure to send him for an MRI shortly after he injured his back violated his Eighth
Amendment rights. Therefore, lying about doing paperwork for the MRI at that time did not
constitute deliberate indifference.
Gifford’s claim based on a lie about MRI paperwork will be dismissed.
ix. Ultra-conservative treatment protocols
Gifford alleges, “Plaintiff will bring proof to a jury that Defendant Dr. Holbrook was
personally aware, apprised and repeatedly denied Plaintiff reasonable and appropriate
medical attention that was non-effective and that Dr. Holbrook[’s] decision to use
ultra-conservative treatment protocols was grossly negligent . . . .” Defendants have
presented expert testimony that conservative treatment was medically reasonable given the
stated cause of Gifford’s back injury (swinging a bat), the diagnosis (lower back strain or

49

sprain), and the lack of neurologic and/or bladder symptoms after the injury. The court also
notes that a relatively short amount of time passed between the initial injury, June 23, 2012,
and his corrective surgery, August 8, 2012, during which defendants provided Gifford with
medically reasonable care and treatment.
Gifford has failed to rebut defendants’ evidence that his treatment was reasonable
under the circumstances and that they did not act with the intent to cause him pain. “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.’” Harris
v. Thigpen, 941 F.2d 1495, 1505 (11th Cir. 1991)(quoting Rogers v. Evans, 792 F.2d 1052,
1058 (11th Cir. 1986))(emphasis added). Indeed, “the question of whether governmental
actors should have employed additional diagnostic techniques or forms of treatment ‘is a
classic example of a matter for medical judgment’ and therefore not an appropriate basis for
grounding liability under the Eighth Amendment.” Adams v. Poag, 61 F.3d 1537, 1545 (11th
Cir. 1995)(quoting Estelle, 429 U.S. at 107).
In this case, Gifford has not presented evidence that his treatment during the six weeks
between his injury and his surgery was “grossly inadequate amounting to no treatment at all.”
See McElligott v. Foley, 1882 F.3d 1248, 1259 (11th Cir. 1999). Therefore, this claim based
on his conservative treatment will be dismissed.
.

c. Wanton Infliction of Pain

50

In his Amended Complaint, Gifford alleges that defendants Dr. Holbrook, Paco, and
Williams wantonly caused him pain when they moved him from his wheel chair to the
examination table on July 29, 2012.20 He alleges:
[D]efendants acted jointly, severably and/or in concert to subject [him] to a
terrifying medical experience when MLP Paco directed C/O Williams to get
[Gifford] out of the wheelchair and put [him] on an examination table, to
which C/O Williams placed [Gifford] in a bear hug, hefted him out of a
wheelchair and plopped [him] on the exam table, causing immediate
[excruciating] pain, agony, back spasms and [substantial] nerve pain, when
any layman knows that grabbing [Gifford] with two arms and yanking [him]
out of a wheelchair would intentionally cause additional trauma to the large
ruptured disc injury.
(Doc. 11 ¶ 67.) He also alleges intentional or wanton infliction of pain because Dr.
Holbrook and Paco decided not to send him to the ER because it was Paco’s early night and
wanted to go home. (Id. ¶ 68.)
i. Bear Hug
The Supreme Court has held that “only the unnecessary and wanton infliction of pain
implicates the Eighth Amendment.

[Therefore,] [t]o violate the Cruel and Unusual

Punishments Clause, a prison official must have a sufficiently culpable state of mind.”
Farmer v. Brennan, 511 U.S. 825, 834 (1994)(internal citations and quotations omitted;
emphasis added). Some factors to consider “evaluating whether the force used was excessive
and in violation of the Eighth Amendment” include:
20

Gifford’s Amended Complaint alleges that this incident occurred on August 29,
2012. (Doc. 11 at 13.) However, on August 29, 2012, Gifford was no longer at FCITalladega. Moreover, the medical records indicate that Paco examined Gifford on July 29,
2012. (See doc. 54-1 at 58.)

51

(1) the extent of the injury; (2) the need for application of force; (3) the
relationship between that need and the amount of force used; (4) the extent of
the threat to the safety of staff and inmates, as reasonably perceived by the
responsible officials on the basis of facts known to them; and (5) any efforts
to temper the severity of a forceful response.
Gwathney v. Warren, 930 F. Supp. 2d 1313, 1319 (M.D. Ala. 2013)(quoting Campbell v.
Sikes, 169 F.3d 1353, 1375 (11th Cir. 1999)(quoting Whitley v. Albers, 475 U.S. 312, 321
(1986))). The “core judicial inquiry” is “whether force was applied in a good-faith effort to
maintain or restore discipline [or in this case – to provide medical services], or maliciously
and sadistically to cause harm.” Hudson v. McMillian, 503 U.S. 1, 7 (1992). “Unless it
appears that the evidence, viewed in the light most favorable to the plaintiff, will support a
reliable inference of wantonness in the infliction of pain . . . the case should not go to the
jury.” Gwathney, 930 F. Supp. 2d at 1319 (quoting Campbell, 169 F.3d at 1375 (quoting
Whitley, 475 U.S. at 322)).
The fact that Gifford suffered pain when he was removed from the wheelchair is not
disputed. However, such fact alone does not suggest that such pain was unnecessary or
applied malicously or sadistically. Although subsequent events established that Gifford had
a herniated disk and developed CES, on July 29, 2012, he had been diagnosed with a strain
or sprain of his lower back. He was seen in Health Services on July 27 and 28, 2012. Paco’s
evaluation on July 29 was consistent with the diagnosis of a strain or sprain and his
evaluation was consistent with other MLPs’ evaluations before and after Paco’s evaluation.
Moreover, Gifford has not suggested, and the court does not find, that some other manner

52

of removing him from the wheelchair for purposes of providing medical treatment was
available. Certainly Gifford has not presented evidence that the bear hug was used with the
intention to cause him pain.21
The court finds causing pain under these circumstances does not support a reasonable
inference that defendants’ intent was to inflict unnecessary pain maliciously or sadistically
or that the force used was excessive under the circumstances. Defendants deny such was
their intent and Gifford has not rebutted this evidence with direct or circumstantial evidence.
The court finds Gifford’s claims based on the bear hug will be dismissed.
ii. Paco’s Early Night
Gifford alleges that Paco, with Dr. Holbrook’s support, refused to help him on July
29, 2012, because, as Paco told Gifford, “this is my early night.” (Doc. 11 ¶ 68.) Although
this claim is set forth in the Amended Complaint as an excessive force/wanton infliction of
pain claim, it sounds as a deliberate indifference claim based on Dr. Holbrook’s and Paco’s
decision not to send Gifford to the ER on July 29, 2012. The court notes that Gifford does
not claim deliberate indifference based on the decisions of Dr. Holbrook and other MLPs that
examined Gifford on July 27, 28, and 30, 2012, not to send him to the ER on those days. As
set forth above,
In order to prove a claim of deliberate indifference, the plaintiff must
show: (1) he had a serious medical need (the objective component); (2) the
21

Moving Gifford from the wheel chair to the examination table with the so-called
bear hug, so that he did not twist and he was not required to stand or walk, appears to be
most humane and careful way to move him to the examination table.

53

prison official acted with deliberate indifference to that serious medical need
(the subjective component); and (3) the official’s wrongful conduct caused the
injury. Goebert v. Lee County, 510 F.3d 1312, 1326 (11th Cir. 2007). To
satisfy the subjective component, the plaintiff must prove the prison official
subjectively knew of a risk of serious harm, the official disregarded that risk,
and the official’s conduct was more than gross negligence. Id. at 1326-27.
Courts are competent to decide as a matter of law whether a plaintiff has met
this “difficult burden.” West v. Tillman, 496 F.3d 1321, 1327 (11th Cir. 2007)
(internal quotation marks and emphasis omitted).
Deliberate indifference may be shown where there is “[g]rossly
incompetent or inadequate care,” see Waldrop v. Evans, 871 F.2d 1030, 1033
(11th Cir. 1989), the official refuses to provide medical care he knows is
necessary, see Ancata v. Prison Health Servs., Inc., 769 F.2d 700, 704 (11th
Cir. 1985), or the official delays in providing necessary diagnostic care or
medical treatment for non-medical reasons, see H.C. by Hewett v. Jarrard,
786 F.2d 1080, 1086 (11th Cir. 1986). But see Harris v. Coweta County, 21
F.3d 388, 393-94 (11th Cir. 1994)(noting a delay in providing treatment may
be constitutionally tolerable, depending on the “nature of the medical need and
the reason for the delay”). Mere inadvertence, negligence, or medical
malpractice does not rise to the level of deliberate indifference, Estelle, 97 S.
Ct. at 292, “[n]or does a simple difference in medical opinion,” Waldrop, 871
F.2d at 1033.
Fischer v. Fed. Bureau of Prisons, 349 Fed. Appx. 372, 374 (11th Cir. 2009)(original
emphasis deleted; emphasis added). Based on its review of the record, the court finds that
Gifford’s “necessary diagnostic care or medical treatment” was not delayed for a nonmedical reason.
According to the medical records, the result of Paco’s evaluation of Gifford’s
symptoms was the same as the results of evaluations conducted on July 27 and 28, 2012.
The medical testimony is that emergent care was not necessary on July 28-30, 2012;
Gifford’s condition did not require emergency treatment until he reported he had been

54

incontinent. Because he did not report incontinence on July 29, 2012, his back pain was not
considered to be an emergency requiring immediate, outside evaluation, testing, and
treatment.
Also, it does not appear that sending Gifford to the ER would have lengthened Paco’s
shift such that the court could infer Paco refused to send Gifford to the ER because it was
his early night. On Gifford’s two other trips to the ER, he was not accompanied by an MLP;
therefore, the court finds no evidence that Paco would have been required to accompany
Gifford to the ER on July 29, 2012, or that sending him to the ER would have delayed Paco
leaving work. As Paco’s shift ended before he saw Gifford in Health Services, it seems most
likely that his “early night” comment was an expression of his frustration at being delayed
and not a statement of his intent to deny Gifford medical care. Indeed, nothing in the records
support a finding that Gifford’s treatment in Health Services was any different on July 29,
2012, than his treatment on the two days before or the day after his July 29, 2012, visit to
Health Services.
Assuming Paco made a statement to Gifford that he would not help him because it
was his early night, Gifford has not shown that his treatment by Paco was grossly
incompetent or that Paco denied him necessary care and/or treatment. Therefore, this claim
will be dismissed.
d. Hostile Environment and Harassing Treatment

55

Gifford alleges that “defendants [Bott, Hardin, Gardner, Paco, and Mourtada] created
a hostile, brutal and disparate atmosphere against Plaintiff due to his back injury.” (Doc. 11
¶ 71.) The alleged acts creating the “hostile, brutal, and disparate atmosphere” include:
C/O Bott threatening to “kick the Plaintiff’s ass”; Counselor Hardin
threatening to make the Plaintiff push a lawn mower while injured;. . . [and]
MLP Mourtada humiliating Plaintiff by telling him . . . that “grown men don’t
cry” . . . .
(Id.)22
The law is well-settled that “allegations of verbal abuse and threats by the prison
officers [do] not state [an Eighth Amendment violation] claim because the defendants never
carried out these threats and verbal abuse alone is insufficient to state a constitutional claim.”
Hernandez v. Florida Dep’t of Corr., 281 Fed. Appx. 862, 866 (11th Cir. 2008)(citing
Edwards v. Gilbert, 867 F.2d 1271, 1271 n.1 (11th Cir. 1989)); see also Mimms v.
U.N.I.C.O.R., 386 Fed. Appx 32, 35 (3d Cir. 2010)(“Verbal harassment of a prisoner,
without more, does not violate the Eighth Amendment.” (citing McBride v. Deer, 240 F.3d
1287, 1291 n.3 (10th Cir. 2001); DeWalt v. Carter, 224 F.3d 607, 612 (7th Cir. 2000)));
Gaut v. Sunn, 810 F.2d 923, 925 (9th Cir. 1987)(“[I]t trivializes the eighth amendment to
believe a [mere naked] threat constitutes a constitutional wrong. . . . We find no case that
squarely holds a threat to do an act prohibited by the Constitution is equivalent to doing the

22

Gifford also included Paco’s failure to send him to the ER and BOP’s failure to
adequately train its officers as acts contributing to the hostile environment. For reasons set
forth elsewhere in this Memorandum Opinion, these claims are not actionable pursuant to
Bivens.

56

act itself.”); Carey v. Warden Rene Mason, No. 2:13-CV-884-WHA, 2017 WL 526616, *10
(M.D. Ala. Jan. 3, 2017)(“[T]he law is well-settled that derogatory, demeaning, profane,
threatening or abusive comments made by correctional officials to an inmate, no matter how
repugnant or [un]professional, do not rise to the level of a constitutional violation.” (citing
Edwards v. Gilbert, 867 F.2d 1271, 1274 n.1 (11th Cir. 1989); Ayala v. Terhune, 195 Fed.
Appx. 87, 92 (3d Cir. 2006); McBride, 240 F.3d at 1291 n.3; Sims v. Hickok, 185 F.3d 875
(10th Cir. 1999); Ivey v. Wilson, 832 F.2d 950, 954-955 (6th Cir. 1987); O’Donnell v.
Thomas, 826 F.2d 788, 790 (8th Cir. 1987); Gaul, 810 F.2d at 925; Purcell v. Coughlin, 790
F.2d 263, 265 (2d Cir. 1986); Collins v. Cundy, 603 F.2d 825, 827 (10th Cir. 1979))), report
and recommendation adopted, 2017 WL 527663 (M.D. Ala. Feb. 8, 2017); Thomas v.
Comm’r, Alabama Dep’t of Corr., No. 1:15-CV-00199-CLS-TMP, 2016 WL 2962889, *6
(N.D. Ala. Jan. 26, 2016)(“[W]here threats of violence do not result in physical contact or
where threats are not carried out, a claim based upon such threats is due to be dismissed in
a [Bivens] action, even where such threats are without apparent justification.”) report and
recommendation adopted, 2016 WL 2939629 (N.D. Ala. May 20, 2016).
Gifford does not allege that any threats were carried out and he does not allege that
the verbal abuse resulted in, or was accompanied by, physical contact. Therefore his Eighth
Amendment claim based on threats and verbal abuse will be dismissed.
Gifford also alleges that the atmosphere was hostile because “C/O Gardner never
fil[ed a] complaint to her supervisor [about] C/O Bott . . . threatening [Gifford] and [she did]

57

not fil[e a] complaint to her supervisors about Plaintiff’s serious injury.” (Doc. 11 ¶ 71.)
“Failure to report the incident does not violate the Eighth Amendment absent facts showing
that by failing to report the incident, [Gardner] knowingly disregarded an excessive risk to
[Gifford’s] health or safety.” Bullard v. St. Andra, No. 1:17-CV-0328-MJS(PC), 2017 WL
1398834, *3 (E.D. Cal. Apr. 19, 2017). “And [in this Circuit], while officers who fail to
intervene to protect a victim from another officer’s unconstitutional act can be held liable
under section 1983 [or Bivens], such occasions appear to be narrowly limited to those
involving the use of excessive force.” Taratino v. Citrus County Government, No. 5:12-CV434-OC-32PRL, 2014 WL 4385550, 9 (M.D. Fla. Sept. 4, 2014). As Bott did not carry out
his threat, the court finds Gardner had no special duty to report Bott’s threat to kick Gifford’s
ass to her supervisor. Also, Gifford has alleged no injury and no risk to his health or safety
resulted from Gardner’s failure to report Bott’s threat to her supervisor.
Moreover, the court finds no violation of Gifford’s Eighth Amendment rights arising
from Gardner’s failure to report his injury to her supervisor. Gifford was seen by medical
personnel and correctional officers on June 23 and 24, 2012, before being sent to the ER.
His injury was documented in his medical records for June 23 and 24, 2012, and his trip to
the ER by ambulance on June 24, 2012, was recorded in the Camp Log Book.
“Failure to report Plaintiff’s injuries does not necessarily equate to deliberate
indifference. Plaintiff’s allegations do not show that any such failure by [Gardner] interfered
with his ability to obtain medical care for his injuries so as to state a cognizable claim for

58

deliberate indifference to Plaintiff’s serious medical needs.” Wilson v. Campbell, No. 1:16CV-00534-SKO(PC), 2017 WL 896316, *5 (E.D. Cal. Mar. 6, 2017); see also Carrere v.
May, No. 16-CV-00591, 2016 WL 6684796, *3 (W.D. La. Sept. 9, 2016)(“Plaintiff has not
alleged facts sufficient to establish that Sgt. Curtis disregarded a serious medical need by
simply failing to report a fall. Furthermore, per plaintiff’s complaint, he was taken to the
hospital ‘immediately’ following the fall. Accordingly, plaintiff’s pleadings fall far short of
alleging facts sufficient to establish deliberate indifference on the part of any of Sgt. Curtis
and any claims against him should be dismissed.”)(internal citation omitted), report and
recommendation adopted, 2016 WL 6684247 (W.D. La. Nov. 14, 2016).
Gifford has failed to show any injury arising from Gardner’s failure to report his
injury to her supervisor or failure to report Bott’s verbal threat. Therefore, this claim will
be dismissed.
CONCLUSION
For the foregoing reasons, the court is of the opinion that there are no material facts
in dispute and defendants are entitled to judgment as a matter of law. An Order granting
defendants’ Motions for Summary Judgment and dismissing plaintiff’s claims will be entered
contemporaneously with this Memorandum Opinion.
DONE, this 29th day of September, 2017.

SHARON LOVELACE BLACKBURN
UNITED STATES DISTRICT JUDGE

59