HARRIS v. BISHOP et al

Filing 88

ORDER granting 54 MOTION for Leave to File Sur-Reply filed by DEREBAIL; granting 74 MOTION for Extension of Time to File as to 65 MOTION for Summary Judgment, 66 MOTION for Summary Judgment filed by PHILLIP BRYAN HARRIS; denying 61 MO TION to Compel filed by PHILLIP BRYAN HARRIS; denying 34 MOTION to Appoint Counsel filed by PHILLIP BRYAN HARRIS; denying 43 MOTION for Default Judgment as to Dr. Derebail and Dr. Grundfast. filed by PHILLIP BRYAN HARRIS. REPORT AND RECOMMENDA TION recommending denying 51 MOTION to Provide Immediate Treatment For Serious Medical Disease and Serious Medical Needs filed by PHILLIP BRYAN HARRIS; recommending denying 45 MOTION to Order DCJF and Dr. Derebail M.D. to Allow Full Dental Car e filed by PHILLIP BRYAN HARRIS; recommending granting 62 MOTION for Summary Judgment filed by Major Lewis, Major Haggerty, KEVIN SPROUL, 65 MOTION for Summary Judgment filed by DEREBAIL, and 66 MOTION for Summary Judgment filed by MATTHEW GRUNDFAST. Ordered by US Magistrate Judge STEPHEN HYLES on 7-9-14. (mpm)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
ALBANY DIVISION
PHILLIP BRYAN HARRIS,
Plaintiff
v.
SANFORD BISHOP, et al.,
Defendants.

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CASE NO. 1:13-cv-53-WLS-MSH

ORDER AND
REPORT AND RECOMMENDATION
Presently pending before the Court are Defendants’ motions for summary
judgment (ECF Nos. 62, 65, 66).1 The following motions filed by Plaintiff are also
pending: a motion to appoint counsel (ECF No. 34); a motion for default judgment as to
Defendants Derebail and Grundfast (ECF No. 43); a motion to order Defendants to
provide Plaintiff with immediate dental services (ECF No. 45);2 a motion to order
Defendants to provide Plaintiff with immediate medical treatment (ECF No. 51); and a
motion to compel discovery (ECF No. 61).3 Each of those motions are dealt with in turn

1

Hereinafter “First Mot. for Summ. J.,” “Second Mot. for Summ. J.,” and “Third Mot. for
Summ. J.” respectively.
2
Defendants have also filed a motion for leave to file a Sur-Reply (ECF No. 54) to call the
Court’s attention to the untimeliness of Plaintiff’s Reply regarding his motion to order dental
care (ECF No. 45). The Court has considered Defendants’ Sur-Reply in its analysis of the merits
of Plaintiff’s motion and therefore Defendant’s motion (ECF No. 54) is GRANTED.
3
Plaintiff has also filed a motion for extension of time (ECF No. 74) to file his response to
Defendants Derebail and Grundfast’s motions for summary judgment. The Court has considered
Plaintiff’s response in its analysis of the motions for summary judgment and therefore Plaintiff’s
motion (ECF No. 74) is GRANTED.

below.4 Furthermore, for the reasons explained below, it is RECOMMENDED that
Defendants’ motions for summary judgment be GRANTED.
BACKGROUND
This action arises out of an alleged denial of medical care at the Dogherty County
Jail (DCJ). Plaintiff Phillip Bryan Harris is a pretrial detainee held at DCJ under an
indictment from the grand jury of multiple counts of rape, incest, aggravated child
molestation, and child molestation. (Mem. in Supp. of Second Mot. for Sum. J. 1, ECF
No. 65-1.) Plaintiff alleges that he has been denied certain medical care during his
almost two-year confinement at the DCJ.
Plaintiff sues DCJ personnel Sheriff Kevin Sproul, Major Dan Haggerty, and
Major Sabrina Lewis, and also Doctors Gopala Darebail and Matthew Grundfast, whom
Plaintiff alleges are physicians “contracted” to provide services for the DCJ. (Recast
Compl. 4, ECF No. 27.)

He allegedly suffers from numerous medical conditions,

including severe gastroparesis, chronic bone and abdominal pain, jaundice of the liver,
Crohn’s disease, gastrointestinal bleeding, vision problems, and broken teeth. (Id. at 6.)
Plaintiff has filed voluminous medical records to support his claims.
According to Plaintiff and prior to his incarceration, he was scheduled by Dr.
Ifechukwude Nwadei for an “emergency colonoscopy” to take place on August 25, 2011.
(Id.) On August 20, 2011, however, Plaintiff was arrested and booked into DCJ. (Id.)
Due to security concerns, Plaintiff’s appointment was cancelled on August 23. (Derebail

4

Plaintiff has also filed a motion for reconsideration (ECF No. 52) of the Court’s
November 26, 2013 Order (ECF No. 50). The Court does not address this motion herein.
2

Aff. 3, ECF No. 65-4.)

Plaintiff contends that he has attempted to reschedule the

appointment since that day, and to receive treatment for chronic pain, broken teeth, and
his gastrointestinal issues. But, he alleges, each of his requests has been denied, even
after numerous grievances, letters, and meetings with Defendants Derebail, Haggerty,
Lewis, and Sproul. Plaintiff brings this action under 42 U.S.C. § 1983 for deliberate
indifference to his medical needs.
DISCUSSION
I.

Miscellaneous Motions
A. Motion to Appoint Counsel
Plaintiff requests that the Court appoint counsel to assist in this case due to his

indigency. (ECF No. 34.) Under 28 U.S.C. § 1915(e)(1), the district court “may request
an attorney to represent any person unable to afford counsel.” However, there is “no
absolute constitutional right to the appointment of counsel.” Poole v. Lambert, 819 F.2d
1025, 1028 (11th Cir. 1987). Appointment of counsel is a privilege that is justified only
by exceptional circumstances. Lopez v. Reyes, 692 F.2d 15, 17 (5th Cir. 1982). In
deciding whether legal counsel should be provided, the Court should consider, among
other factors, the merits of Plaintiff’s claim and the complexity of the issues presented.
Holt v. Ford, 682 F.2d 850, 853 (11th Cir. 1989). Plaintiff has set forth the essential
factual allegations underlying his claims, and the applicable legal doctrines are readily
apparent. Plaintiff therefore has not alleged the exceptional circumstances justifying
appointment of counsel under Holt. Accordingly, Plaintiff’s motion for appointment of
counsel is DENIED.
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B. Motion for Default Judgment as to Defendants Derebail and Grundfast
On October 16, 2013, Plaintiff moved for a default judgment to be entered against
Defendants Derebail and Grundfast for an alleged failure to file an answer within the time
alotted. (ECF No. 43.) Rule 55 of the Federal Rules of Civil Procedure provides that a
clerk “must enter [a] party’s default” when that party “failed to plead or otherwise
defend, and that failure is shown by affidavit or otherwise.” Fed. R. Civ. P. 55. Plaintiff
argues in his motion that the named defendants failed to respond to the complaint or file a
waiver of service in accordance with Rule 4 of the Federal Rules of Civil Procedure.
(Mot. for Default J. 2.)
Defendants responded on October 31, 2013 denying Plaintiff’s claims and
showing the Court that the Notice of Lawsuit and Request for Waiver of Service of
Summons was signed by the U.S. Marshal’s Service on August 20, 2013, and the
Waivers were executed by Defendants Derebail and Grundfast on August 28, 2013.
(Defs.’ Resp. to Mot. for Default J. 2-3, ECF No. 46.) The Waiver of Service forms were
filed for both Defendants on September 24, 2013 (ECF Nos. 35, 36) showing execution
dates of August 28, 2013.
Rule 4 of the Federal Rules of Civil Procedure cover the issue of service. Rule
4(d) states that the defendant must be given “a reasonable time of at least 30 days after
the request was sent” to return the waiver. Fed. R. Civ. P. 4(d)(1)(F). Defendants
returned the waiver of service, as noted on the USM 285 forms file with the Court, on
September 13, 2013. (ECF Nos. 35, 36.) Therefore, under Rule 4(d)(3), Defendants had
until sixty days after the request was sent on August 20, 2013, or October 19, 2013, to
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file an answer or other responsive pleading to avoid default. Defendants served Plaintiff
with their answers by mail on October 15, 2013, within the time allowed. (ECF Nos. 40,
41.) Therefore, Defendants were not in default and Plaintiff’s motion (ECF No. 43) is
DENIED.
C. Motions for Injunctive Relief
On October 25, 2013, Plaintiff filed a motion (ECF No. 45) that the Court
construes as a motion for a preliminary injunction to require the DCJ provide him with
“full dental care.” On January 8, 2014, Plaintiff filed a motion (ECF No. 51) that the
Court also construes as a motion for preliminary injunction to require the DCJ provide
him with dental and medical treatment for numerous issues. Such relief is only
appropriate where the movant demonstrates that: (a) there is a substantial likelihood of
success on the merits; (b) the preliminary injunction is necessary to prevent irreparable
injury; (c) the threatened injury outweighs the harm that a preliminary injunction would
cause to the non-movant; and (d) the preliminary injunction would not be adverse to the
public interest. Parker v. State Bd. of Pardons & Paroles, 275 F.3d 1032, 1034-35 (11th
Cir. 2001). An irreparable injury “must be neither remote nor speculative, but actual and
imminent.” Siegel v. LePore, 234 F.3d 1163, 1176 (11th Cir. 2000) (citations omitted).
Plaintiff contends that although he was seen by a dentist on October 22, 2013, that
dentist was instructed to remove only one of the seven “severely damaged teeth” in
Plaintiff’s mouth. (Mot. to Order DCJF 1, ECF No. 45.) He states that the remaining
teeth cause him pain and that officials at DCJ have refused to approve further treatment.
(Id. at 2.) Plaintiff also alleges that he has numerous medical ailments that have been left
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untreated by Defendants. (Mot. to Provide Immediate Treatment 1-2, ECF No. 51.)
Defendants show that Plaintiff has been provided with the dental care that has been
deemed necessary by their dentist. (Defs.’ Resp. to Mot. to Order DCJF 2-3, ECF No.
49.) Furthermore, Defendants show the Court that Plaintiff’s contention that Defendants
have refused to approve certain treatment is unsupported by objective fact because the
dentist is paid a flat rate on a per-visit basis, and would have no interest in providing
Plaintiff with only partial services as Plaintiff suggests. (Id. at 3.)
As discussed below, the Court finds that Defendants are entitled to summary
judgment on Plaintiff’s claims and therefore, Plaintiff has failed to show a “substantial
likelihood of success on the merits” of his claim. Accordingly, it is RECOMMENDED
that Plaintiff’s motions for injunctive relief (ECF Nos. 45, 51) be DENIED.
D. Motion to Compel Discovery (ECF No. 61)
Plaintiff also filed a motion to compel discovery on February 20, 2014. (ECF No.
61.) Plaintiff seeks certain documents that he alleges were requested in writing from
Defendants Sheriff Sproul, Major Lewis, and Major Haggerty on October 28, 2013, and
from Drs. Grundfast and Derebail on October 18, 2013. (Mot. to Compel 1.)
Our prior case law shows that motions to compel discovery should be filed
before discovery closes. See Bradford v. Burke, 2011 WL 2669976 (M.D. Ga. May 18,
2011) (denying motion to compel for timeliness). Furthermore, when ruling on a motion
to compel discovery, “a district court is allowed a range of choice.” Holloman v. MailWell Corp., 443 F.3d 832, 837 (11th Cir. 2006) (internal punctuation omitted). As
Defendants state in their response, discovery in this matter closed on January 21, 2014,
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ninety days after the filing of their answer on October 21, 2013. (Def.’s Resp. to Mot. to
Compel 1, ECF No. 68; see Answer, ECF No. 44.) Plaintiff’s admits that he mailed the
motion on February 12, 2014. (Mot. to Compel 2.) Therefore, Plaintiff’s motion was
filed outside the discovery period and is untimely. Plaintiff’s motion to compel (ECF No.
68) is therefore DENIED as untimely.
II.

Defendants’ Motions for Summary Judgment
A.

Standard of Review

Summary judgment may be granted only “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). In determining whether a genuine dispute of material fact
exists to defeat a motion for summary judgment, the evidence is viewed in the light most
favorable to the party opposing summary judgment, drawing all justifiable inferences in
the opposing party’s favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
A fact is material if it is relevant or necessary to the outcome of the suit. Id. at 248. A
factual dispute is genuine if the evidence would allow a reasonable jury to return a
verdict for the nonmoving party. Id.
To state a claim for relief under 42 U.S.C. § 1983, a plaintiff must show that: (1)
an act or omission deprived him of a right, privilege, or immunity secured by the
Constitution or a statute of the United States; and (2) the act or omission was committed
by a person acting under color of state law. Hale v. Tallapoosa Cnty, 50 F.3d 1579, 1581
(11th Cir. 1995).

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An Eighth Amendment claim5 for inadequate medical care requires a showing of
acts or omissions sufficiently harmful to evidence deliberate indifference to a serious
medical need. Estelle v. Gamble, 429 U.S. 97, 106 (1976). A deliberate indifference
claim contains both an objective and subjective component. Hill v. DeKalb Reg’l Youth
Det. Ctr., 40 F.3d 1176, 1186 (11th Cir. 1994), overruled in part on other grounds by
Hope v. Peltzer, 536 U.S. 730, 739 (2002). Under the first component, a prisoner must
set forth evidence of an “objectively serious medical” need that, if left unattended, poses
a substantial risk of serious harm. Taylor v. Adams, 221 F.3d 1254, 1257 (11th Cir.
2000). A medical need is serious if it has been diagnosed by a doctor as mandating
treatment or is so obvious that even a layperson would easily recognize the necessity for
a doctor’s attention. Hill, 40 F.3d at 1187.
Once an objectively serious medical need is shown, the deliberate indifference
component requires that “the response made by public officials to that need was poor
enough to constitute an unnecessary and wanton infliction of pain, and not merely
accidental inadequacy, negligence in diagnosis or treatment, or even medical malpractice
actionable under state law.” Taylor, 221 F.3d at 1257 (internal punctuation omitted).
“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.’ Mere incidents of negligence or malpractice do not rise to the level
4

The Eleventh Circuit has held that when a pretrial detainee brings a claim for inadequate
medical care it is scrutinized under the Due Process Clauses of the Fifth and Fourteenth
Amendment. However, the standard in such cases is the same as a claim of cruel and unusual
punishment under the Eighth Amendment. Jordan v. Doe, 38 F.3d 1559, 1564-65 (11th Cir.
1994)
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of constitutional violations.” Harris v. Thigpen, 941 F.2d 1495, 1505 (11th Cir.1991)
(internal citations omitted).
Furthermore, “[a]n inmate who complains that delay in medical treatment rose to a
constitutional violation must place verifying medical evidence in the record to establish
the detrimental effect of [the] delay in medical treatment.” Hill, 40 F.3d at 1188. Also,
when an inmate receives adequate medical care, but desires “different modes of
treatment, the care the jail provided [does] not amount to deliberate indifference.”
Hamm, 774 F.2d at 1575.
B.

Discussion

Plaintiff alleges that he has been denied certain necessary medical treatments and
supplies including the colonoscopy which was cancelled in August 2011, pain medicine,
a “soft diet”, Ensure, dental treatment, and vision care. With regard to the “soft diet,”
and Ensure, Plaintiff relies on the argument that he has been prescribed these items and
that “intentionally interfering with the treatment once prescribed,” is deliberate
indifference. (Pl.’s Resp. to Second and Third Mots. for Summ. J. 17, ECF No. 77
(quoting Estelle, 429 U.S. at 105).) With regard to the colonoscopy, dental treatment,
vision care, and pain medication, Plaintiff relies on the argument that this treatment is
“necessary” and that Defendants have failed to provide them promptly and adequately.
Defendants Sproul, Haggerty, and Lewis filed the First Motion for Summary
Judgment (ECF No. 62) on February 20, 2014. Defendant Derebail filed the Second
Motion for Summary Judgment (ECF No. 65) on February 26, 2014, and Defendant
Grundfast filed the Third Motion for Summary Judgment the same day (ECF No. 66).
9

Plaintiff responded to each motion in turn. (See ECF Nos. 72, 77, 78, 79.) The motions
are now ripe for review.
The Court has considered the arguments raised in each motion, and finds them to
be persuasive.

Defendants argue that Plaintiff failed to exhaust his administrative

remedies as required by the Prison Litigation Reform Act (PLRA) as to many of his
claims.

The Court agrees.

The Court does not address Defendants other specific

arguments, however, because the remainder of this case should be resolved by
determining whether any genuine issue of material fact exists regarding the one main
question: Has Plaintiff shown that Defendants were deliberately indifferent to his medical
needs? The Court finds that no issue of fact exists and Plaintiff has not shown deliberate
indifference on the part of any of the Defendants. Therefore, it is recommended that their
motions be granted.
1.

Exhaustion of Administrative Remedies

Title 42, United States Code section 1997e(a) provides that “[n]o action shall be
brought with respect to prison conditions under section 1983 of this title . . . by a prisoner
confined in any jail, prison, or other correctional facility until such administrative
remedies as are available are exhausted. “[W]hen a state provides a grievance procedure
for its prisoners, as Georgia does here, an inmate alleging harm suffered from prison
conditions must file a grievance and exhaust the remedies available under that procedure
before pursuing a § 1983 lawsuit.” Johnson v. Meadows, 418 F.3d 1152, 1156 (11th Cir.
2005) (internal quotation marks and citation omitted). Furthermore, the Eleventh Circuit
has held that in order to properly exhaust the grievance procedure, the prisoner must
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“timely meet the deadlines or the good cause standard of Georgia’s administrative
grievance procedures before filing a federal claim.” Id. at 1159.
“[D]eciding a motion to dismiss6 for failure to exhaust administrative remedies is a
two-step process.” Turner v. Burnside, 541 F.3d 1077, 1082 (11th Cir. 2008). “First, the
court looks to the factual allegations in the defendant’s motion to dismiss and those in the
plaintiff’s response, and if they conflict, takes the plaintiff’s versions of the facts as true.”
Id. If, taking plaintiff’s facts as being true, the defendant is entitled to dismissal for
failure to exhaust, then the complaint should be dismissed. Id. “If the complaint is not
subject to dismissal at the first step . . . , the court then proceeds to make specific findings
in order to resolve the disputed factual issues related to exhaustion.” Id. The defendant
bears the burden of proof during this second step. Id.
Here, Plaintiff alleges that he has grieved these issues by “phone, mail and letters,”
to no avail. (Pl.’s Resp. to First Mot. for Summ. J. 2, ECF No. 72.) He further alleges
that he and his mother have had conversations with Defendants Lewis and Sproul
regarding these issues and that Defendants have done nothing. Defendants respond by
filing a copy of every grievance filed by Plaintiff through the prison grievance procedure7

6

“Because exhaustion of administrative remedies is a matter in abatement and not
generally an adjudication on the merits, an exhaustion defense . . . is not ordinarily the proper
subject for a summary judgment; instead, it “should be raised in a motion to dismiss, or be
treated as such if raised in a motion for summary judgment.” Bryant v. Rich, 530 F.3d 1368,
1374-75 (11th Cir. 2008)
7
Defendants have shown that the inmate grievance procedure at DCJ is outlined in the
Inmate Handbook issued to each inmate upon incarceration at DCJ. The section governing this
procedure is attached to Defendants’ first summary judgment motion. (Montgerard Supp. Aff.
Ex. C at 10, ECF No. 62-6.) The procedure is a three-step process beginning with an informal
grievance submitted to a specified officer who attempts to resolve the issue. If the inmate is not
satisfied he can file an Inmate Grievance Form which is reviewed by the Grievance Officer and a
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as of August 27, 2013. (See Montegard Supp. Aff. at ¶ 9, Ex. E, ECF No. 62-6.) A
review of these grievances shows that none specifically deal with the issues of denial of
vision care, medical supplies, or pain medication prior to his filing suit in this case on
March 25, 2013. Defendants also state that they are not part of the grievance process,
and at no time have they ever instructed a Plaintiff to file a grievance with them directly.
(Sproul Aff. at 3, ECF No. 62-5; Lewis Aff. at 3, ECF No. 62-4.) Therefore, any
conversations that Plaintiff or his mother may have had with any Defendants are
inapplicable to the issue of exhaustion of administrative remedies. Defendants have
therefore satisfied their burden to show that Plaintiff did not properly grieve these issues
prior to filing suit. It is RECOMMENDED that these claims be DISMISSED.
2.

Alleged Interference with “Prescribed Treatment”

With regard to the “soft diet” and Ensure, Plaintiff argues that by refusing to
provide these items Defendants are “intentionally interfering with” treatment that has
been prescribed for him, and are therefore acting with deliberate indifference to his
serious medical needs. (Pl.’s Resp. to Second and Third Mots. for Summ. J. 17, ECF No.
77 (quoting Estelle, 429 U.S. at 105).) Assuming, arguendo, that Plaintiff has shown an
objectively serious medical need, Plaintiff has failed to show that these items have ever
been prescribed for him, or are even medically necessary to treat his needs.
Plaintiff filed voluminous records from his pre-incarceration medical history. The
Court has painstakingly parsed these records and notes and cannot locate any
response is made. If the inmate remains unsatisfied with the response, he can appeal by signing
the form in the appropriate place and the grievance will be forwarded to the Jail Director for a
response. (Id.)
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prescriptions from any physicians which require Plaintiff to have Ensure or a particular
“soft diet.” In fact, notes from two visits to Dr. Nwadei’s office, upon which Plaintiff
bases much of his argument, include no reference to either Ensure or any type of altered
diet. (Pl.’s Ex. 1 – Medical Records at 7-13, ECF No. 80-1.) A “Progress Note” from
Dr. Grundfast’s office regarding a visit on September 28, 2010 stated that Plaintiff tried
the recommendations of “eating smaller, more frequent meals, eating slowly, chewing
food well, and avoiding raw fruits and vegetables,” but that these had not worked. (Pl.’s
Ex. 1 – Medical Records at 4-6.) Plaintiff also noted that he had tried Ensure, but that it
was too expensive to purchase regularly. (Id. at 4.) A note also states that Plaintiff was
supposed to see a nutrition consultant for a discussion on Gastroparesis diet, but no
further information reflects this consultation occurred. (Id.) Nowhere does any physician
order that Plaintiff have specific dietary restrictions, and Plaintiff does not specify, other
than Ensure, what such a “soft diet” would entail.
Defendants, on the other hand, have put forth evidence in the form of opinions
from Drs. Derebail and Grundfast, both Plaintiff’s treating physicians, who each state
under oath that Plaintiff’s requests are not medically necessary and no “soft diet” or
Ensure was prescribed. (Derebail Aff. 5-7, ECF No. 65-4; Grundfast Aff. 7, ECF No. 664.) Given that no objective evidence supports Plaintiff’s allegations, the Court finds that
he has failed to show that these items were prescribed to him or that Defendants
“intentionally interfered” with his treatment in not providing them.

No deliberate

indifference has been shown. It is therefore RECOMMENDED that Defendants’ motions
with regard to the alleged failure to provide Ensure and a “soft diet” be GRANTED.
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3.

Failure to provide colonoscopy

Plaintiff bases the majority of his claim for the colonoscopy on the opinion of Dr.
Nwadei who determined that he was in need of a “thorough evaluation” in order to “rule
in/out inflammatory bowel disease as well as colon cancer” in August 2011. (Pl.’s Ex. 1
– Medical Files 12.)

This determination, according to the notes was based upon

Plaintiff’s self-reported family history, “personal history of gastrointestinal bleeding,”
and other symptoms, (Id.) and the fact that the previous colonoscopy was “2 years ago”
with notes allegedly indicating “poor bowel prep” for that exam. (Id. at 7.) Dr. Nwadei
also noted that because Plaintiff was not bleeding at the time he was seen, he was not a
candidate for admission to the hospital, but due partly to Plaintiff’s distress at the lack of
a complete diagnosis, was able to get Plaintiff into an indigent patient program and an
appointment with Dr. Grundfast. (Id. at 12.)
Drs. Derebail and Grundfast, however, disagree with Dr. Nwadei’s notes regarding
the urgency of Plaintiff’s condition and need for a colonoscopy. Dr. Derebail states that
the appointment with Dr. Grundfast scheduled for August 25 with the help of Dr. Nwadei
was cancelled on his orders due to security concerns. (Derebail Aff. 3.) Dr. Derebail
further states that in each of his encounters with Plaintiff, he complained about abdominal
pain, but that physical evaluations were normal. (Id. at 3-6.) Furthermore, blood tests
showed no abnormalities consistent with internal bleeding or other concern that would
suggest the need for a colonoscopy.

(Id. at 4, 6.)

performed and resulted in negative findings.

(Id.)

Stool examinations were also
Because Plaintiff continued to

complain of blood in his stool, Dr. Derebail scheduled an appointment with Dr. Grundfast
14

in September 2012. Dr. Grundfast states that he performed a physical examination on
Plaintiff and ordered other blood tests, which all resulted in negative findings.
(Grundfast Aff. 7.) Dr. Grundfast thereafter determined that “further invasive diagnostic
studies” were not required or warranted. (Id.)
Based on the affidavits and exhibits filed by the parties, it is clear that Plaintiff’s
claims can only be based on an argument that the medical treatment which has been
provided is not the “right” treatment rather than that the treatment is constitutionally
inadequate. Defendants have shown the Court that: Plaintiff has been seen and treated
“regularly” by Dr. Derebail for a number of issues (See generally Montgerard Supp. Aff.
Ex. F); after lab work was ordered and returned negative, Dr. Derebail determined that a
colonoscopy was not required, and Dr. Grundfast, a gastroenterologist, later concurred
(Id. at 3-4, 15-19).

These facts are countered only by Plaintiff’s own subjective

conclusions regarding his need for a colonoscopy and the findings of Dr. Nwadei. This
evidence from Plaintiff is insufficient to show that Defendants are in any way indifferent
to Plaintiff’s medical needs, but instead only show a difference of medical opinion, which
does not rise to the level of a constitutional violation. See Gross v. White, 340 F. App'x
527, 535 (11th Cir. 2009) (“[A] simple difference in medical opinion between the prison's
medical staff and the inmate as to the latter's diagnosis or course of treatment is not
enough to show deliberate indifference to serious medical needs.”)

It is

RECOMMENDED that Defendants’ Motions be GRANTED as to the colonoscopy.
4.

Failure to provide dental treatment

Plaintiff also claims that he has uncorrected dental issues, but Defendants show
15

the Court that Plaintiff has been seen by a dentist on two occasions and had broken teeth
extracted.

(Montegard Supp. Aff. at ¶ 10, Ex. F at 63-66, 75-76, ECF No. 62-6.)

Plaintiff claims other teeth bother him, but shows no evidence beyond his own
statements, which are contradicted by the dentist’s actions. Because Plaintiff has not put
forth any objective evidence to support a serious medical need with regard to his dental
issues, and he has been seen on multiple occasions, Plaintiff has not shown the requisite
facts to support his claim. Therefore, it is RECOMMENDED that Defendants’ motions
be GRANTED
CONCLUSION
For the reasons explained above, it is RECOMMENDED that Defendants motions
for summary judgment (ECF Nos. 62, 65, 66) be GRANTED.

It is further

RECOMMENDED that Plaintiff’s motions for injunctive relief (ECF Nos. 45, 51) be
DENIED. Pursuant to 28 U.S.C. § 636(b)(1), the parties may file objections to this
Recommendation in writing with the United States District Court within fourteen (14)
days after being served with a copy hereof.
Furthermore, it is ORDERED that Plaintiff’s motion to appoint counsel (ECF No.
34), motion for default judgment (ECF No. 43), and motion to compel discovery (ECF
No. 61) are DENIED. Defendant’s motion for leave to file a sur-reply (ECF No. 54) and
Plaintiff’s motion for extension of time to file (ECF No. 74) are GRANTED.
SO ORDERED and RECOMMENDED, this 9th day of July, 2014.
/s/ Stephen Hyles
UNITED STATES MAGISTRATE JUDGE
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