Killingsworth v. Governor of the State of Alabama, The et al

Filing 34

MEMORANDUM OPINION. Signed by Judge Abdul K Kallon on 3/19/13. (ASL)

FILED
2013 Mar-19 PM 02:04
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION
TERRY L. KILLINGSWORTH,
Plaintiff,
vs.
CORRECTIONAL MEDICAL
SERVICES, et al.,
Defendants.

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Case No. 5:10-cv-03484-AKK-HGD

MEMORANDUM OPINION
The magistrate judge filed a report and recommendation on February 7, 2013,
recommending that the defendants’ motion for summary judgment as to the plaintiff’s
Eighth Amendment medical care claims be granted and this cause be dismissed with
prejudice.1 (Doc. 32). The plaintiff has filed objections thereto. (Doc. 33).
In his objections, the plaintiff argues, for the first time, that the defendants’
failure to immediately call an ambulance to transport him to the hospital after both of

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The plaintiff’s claims against the Governor of the State of Alabama, the Commissioner of
the Alabama Department of Corrections, Warden Billy Mitchem, C.O. Hughes, C.O. Walter, and the
correctional officers assigned to supervise the Prison’s Commissary Areas, and against inmate Terry
Louis were dismissed with prejudice under 28 U.S.C. § 1915A(b) pursuant to a previously entered
order. (See doc. 16).
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his injuries shows that they were deliberately indifferent to his serious medical needs.
He contends that the evidence shows that four hours elapsed before his arrival at the
free world hospital following the October 15, 2010, beating, and that over six hours
elapsed between the second injury and his arrival at the hospital on February 24,
2011.
As noted, the plaintiff failed to make this argument previously - in either his
amended complaint or his response to the defendants’ motion for summary judgment.
The Eleventh Circuit has held that a district court has broad discretion in reviewing
a magistrate judge's report and recommendation, and may either consider a party’s
argument when it was not first presented to the magistrate judge, Stephens v. Tolbert,
471 F.3d 1173, 1177 (11th Cir. 2006), or decline to do so. Williams v. McNeil, 557
F.3d 1287 (11th Cir. 2009). However, as a general rule, it is improper to present
arguments on appeal to a district judge that were not first presented to the magistrate
judge. “[T]he magistrate judge system was created to help alleviate the workload of
the district judges.” Williams v. McNeil, 557 F.3d at 1291-92. To allow a litigant to
present his case to the magistrate judge and then change his strategy and present a
different theory to the district court would frustrate the purpose of the Magistrates
Act. See id. at 1292 (quoting Greenhow v. Sec’y of Health & Human Servs., 863 F.2d

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633, 638 (9th Cir. 1988), overruled on other grounds by United States v. Hardesty,
977 F.2d 1347, 1348 (9th Cir. 1992) (en banc)).
In any event, summary judgment is still due to be granted for the defendants.
Even accepting as true that it took several hours on each occasion to arrange the
plaintiff’s transportation to the hospital, those facts alone do not establish that the
defendants were deliberately indifferent to his serious medical needs. A delay in
providing medical treatment can constitute deliberate indifference. Estelle v. Gamble,
429 U.S. 97, 104-05 (1976). However, this is only when such delays are “tantamount
to ‘unnecessary and wanton infliction of pain,’” Brown v. Hughes, 894 F.2d 1533,
1537 (11th Cir.) (per curiam) (quoting Estelle, 429 U.S. at 104), cert. denied, 496
U.S. 928 (1990). The Eleventh Circuit has held that deliberate indifference can
include “the delay of treatment for obviously serious conditions where it is apparent
that delay would detrimentally exacerbate the medical problem, the delay does
seriously exacerbate the medical problem, and the delay is medically unjustified.”
Taylor v. Adams, 221 F.3d 1254, 1259-60 (11th Cir. 2000) (internal quotation
omitted); see also Harper v. Lawrence Cnty., 592 F.3d 1227, 1235 (11th Cir. 2010).
In this case, the evidence does not establish that the defendants delayed the
plaintiff of all medical care. Indeed, on both occasions the plaintiff was immediately
seen at the infirmary by medical professionals, who then arranged for him to be
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transported to the hospital. Thereafter, there is no evidence that the failure to ensure
immediate transport to the emergency room posed a risk of exacerbating the
plaintiff’s injuries, or that his injuries were in fact exacerbated by not being taken
immediately to the hospital. Thus, because the undisputed facts of this case do not
show that the delay of several hours in transporting the plaintiff from the infirmary
unit at the prison to a free world hospital for the emergency surgeries was
unreasonable or caused the plaintiff any harm, the fact that the transportation did not
occur as quickly as the plaintiff would have liked does not establish deliberate
indifference on the part of the defendants.
The plaintiff also opposes the magistrate judge’s conclusions that mere
negligence, or a disagreement between two doctors as to the proper course of
treatment does not amount to deliberate indifference, and appears to argue that he had
the right to refuse to permit Dr. Barnett to remove the stents from his nose, and there
is no documentation showing that he waived that right. These arguments are without
merit, both factually and as a matter of law. First, there was no evidence presented
that there was a disagreement between doctors as to the plaintiff’s treatment.
Moreover, the law is well settled that a “simple difference in medical opinion” is not
deliberate indifference, Waldrop v. Evans, 871 F.2d 1030, 1033 (11th Cir. 1989), and
that negligence is insufficient to state a due process claim. Daniels v. Williams, 474
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U.S. 327, 330-33 (1986). Finally, the plaintiff conceded that he agreed to allow Dr.
Barrett to remove the stents, and has presented no evidence to contradict Dr. Barrett’s
sworn testimony that the specialist had agreed with his decision to remove them
himself prior to allowing the plaintiff to return to general population.
Thus, having carefully reviewed and considered de novo all the materials in the
court file, including the report and recommendation and the objections filed by the
plaintiff, the Court is of the opinion that the magistrate judge’s report is due to be and
is hereby ADOPTED and his recommendation is ACCEPTED.

The Court

EXPRESSLY FINDS that there are no genuine issues of material fact and that the
defendants are entitled to judgment as a matter of law. Accordingly, the defendants’
motion for summary judgment is due to be GRANTED and this action is due to be
DISMISSED WITH PREJUDICE. A Final Judgment will be entered.
DONE this 19th day of March, 2013.

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ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE

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