Hardy v. Georgia Department of Corrections et al
Filing
87
ORDER granting in part and denying in part Defendants' 77 Motion for Summary Judgment. Defendants' motion is granted as to Plaintiff's Section 1983 claim against Nurse Giddens, Nurse Wells, Ms. West, Warden Shepard, and Deputy War den McGrew and denied as to Plaintiff's Section 1983 claim against Dr. Fountain for direct liability. The Clerk is directed to enter judgment in favor of Nurse Giddens, Nurse Wells, Ms. West, Warden Shepard, and Deputy Warden McGrew. Accordingly , this case shall proceed to trial as to Plaintiff's Section 1983 claim against Dr. Fountain and Plaintiff's state law claims against the Georgia Department of Corrections and the Board of Regents of the University System of Georgia. Signed by Chief Judge J. Randal Hall on 8/13/2021. (ca)
Case 1:17-cv-00172-JRH-BKE Document 87 Filed 08/13/21 Page 1 of 37
IN THE tJNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF GEORGIA
AUGUSTA DIVISION
GEORGE W. HARDY,
Plaintiff,
*
*
*
V
CV 117-172
*
GEORGIA DEPARTMENT OF
*
CORRECTIONS, et al.,
*
*
Defendants.
*
*
ORDER
Presently before the Court is Defendants Kimberly Fountain,
M.D.; Shante Wells, R.N.; Elizabeth West; Linda Giddens, R.N.;
Warden Stan Shepard; and Deputy Warden Betty Lee McGrew's motion
for summary judgment.
(Doc. 77.)
For the following reasons.
Defendants' motion is GRANTED IN PART and DENIED IN PART.
I. BACKGROUND
Plaintiff's
Second
Amended
Complaint
(the
'"Complaint")
alleges federal and state causes of action for conduct that
occurred in
June and
July of 2015.^
(See Compl., Doc. 42.)
Plaintiff is an inmate confined at the Georgia Diagnostic and
Classification Prison ("GDCP") in Jackson, Georgia, and was held
1 Defendants are not seeking summary judgment on Plaintiff's state law claims
(See Doc. 77-1, at 1 n.l.)
Case 1:17-cv-00172-JRH-BKE Document 87 Filed 08/13/21 Page 2 of 37
at GDCP at all times except as otherwise stated.
(Id. at 6.)
Plaintiff has an extensive history of arterial disease, diabetes,
and high blood pressure, and underwent several cardiovascular
procedures between 2011 and 2014.
23.)
(Hardy Dep., Doc. 77-11, at 22-
Plaintiff also has a history of diabetic neuropathy, which
causes neuropathic pain and numbness in his lower extremities.^
(Burnside Decl., Doc. 77-9, 17.)
He was regularly administered
Neurontin, a prescription nerve pain medication, to assist with
his symptoms. (Id.; Hardy Dep., at 51.)
prescribed Plavix, an anti-coagulant.
Plaintiff was also
(Hardy Dep., at 22-24.)
In May 2015, Plaintiff was scheduled to undergo salivary gland
surgery.
(Burnside Decl., 1 8; Gore Dep., Doc. 79-6, at 16.)
In
anticipation of the surgery. Dr. Edward Hale Burnside discontinued
Plaintiff's Plavix prescription to lower his risk of excessive
bleeding.
Burnside
(Hardy Dep., at 24-25; Sampson Decl., Doc. 77-10, 1 3;
Decl.,
transported
to
1
8-9.)
Augusta
On
State
preparation for his surgery.
8.)3
June
25,
Medical
2015,
Prison
Plaintiff
was
C'ASMP")
in
(ASMP Medical Records, Doc. 77-4, at
During Plaintiff's time at ASMP, numerous members of the ASMP
medical staff cared for him.
When he first arrived at ASMP, Nurse
2 The Parties dispute whether Plaintiff complained of symptoms of neuropathy
during the time of Defendants' alleged deliberate indifference. (See Doc. 79,
at 3; Doc. 82, at 3.)
3 Defendants attach Plaintiff's medical records to Nurse Giddens' Declaration.
(See Doc. 77-4.)
To avoid confusion, the Court refers to pages 1-6 as "Giddens
Declaration" and pages 7-35 as "ASMP Medical Records."
2
Case 1:17-cv-00172-JRH-BKE Document 87 Filed 08/13/21 Page 3 of 37
Giddens and Dr. Fountain recorded admission notes.^
(See Fountain
Decl., Doc. 77-3, 1 7; ASMP Medical Records, at 8.)
On June 29,
2015, Plaintiff was transported to the Georgia Regents University
Medical Center for salivary gland surgery and returned to ASMP the
same day.
(ASMP Medical Records, at 11-12.)
Plaintiff was
prescribed morphine elixir and Percocet for his pain following
surgery.
(Fountain Decl., 5 7; Giddens Decl., SI 6.)
Plaintiff first complained of pain in his right foot on July
9, 2015. (Giddens Dep., Doc. 79-5, at 26-27; ASMP Medical Records,
at 20.)
Plaintiff's complaints of pain continued until July 22,
2015, when he was transported back to GDCP. (ASMP Medical Records,
at 33.) The specific dates that Plaintiff complained of pain while
at ASMP, and who he complained to, are not clear because his
medical records are not always legible, and Plaintiff avers that
portions of his medical records are not reliable.
at 8-11.)
(See Doc. 82,
Moreover, Plaintiff does not remember any specific
encounter that he complained of pain but instead stated he told
"Dr. Fountain and probably every nurse that came in there." (Hardy
Dep., at 32, 34.)
The Court attempts to summarize Plaintiff's
treatment below.
The
admission
notes
are
difficult
to read.
(See
Fountain
Decl.,
at 7.)
However, Nurse Giddens clearly notes that Plaintiff complained of numbness and
tingling in his lower extremities. (ASMP Medical Records, at 8.) Despite this
record. Plaintiff disputes he ever complained of numbness and tingling upon
admission to ASMP.
(See Doc. 79, at 3.)
Case 1:17-cv-00172-JRH-BKE Document 87 Filed 08/13/21 Page 4 of 37
According to the medical records, on July 9, 2015, Nurse
Giddens noted that Plaintiff complained of pain in the left side
of his jaw and right foot.
(ASMP Medical Records, at 20-21.) She
also noted Plaintiff had no open areas or redness on his right
foot and that Dr. Fountain was aware of Plaintiff's complaints.
(Id.)
Plaintiff was given Percocet and a warm compress for his
foot, which Plaintiff reported "'helped a lot."
(Id. at 21.)
Plaintiff did not complain of foot pain again until July 11,
2015.
(Id. at 23.)
compress.
24.)
(Id.)
In response, he was given Percocet and a warm
The same occurred on July 12, 2015.
(Id. at
However, the medical records note that Plaintiff stated the
pain medicine was very effective.
(Id.)
On July 13, 2015,
Plaintiff complained of foot and leg pain, and again received
Percocet and warm compresses multiple times throughout the day.
(Id.)
On July 14, 2015, a nurse noted Plaintiff was ambulating in
his room and able to move all of his extremities.
(Id. at 25.)
Plaintiff complained of foot pain in the morning and was given
Percocet and a warm compress.
(Id. at 26.)
Later the same day,
he complained of foot pain and jaw pain and was given another dose
of Percocet.
(Id.)
Similar notes were recorded on July 15, 2015.
(Id. at 27.)
On July 16, 2015, Plaintiff complained of pain and numbness
in his right foot.
(Id.; Powell Dep., Doc. 79-7, at 49.)
On July
17, 2015, Plaintiff's medical records note that he was up in his
Case 1:17-cv-00172-JRH-BKE Document 87 Filed 08/13/21 Page 5 of 37
room and ambulating and had complaints of jaw pain or foot/ leg
pain.
(ASMP Medical Records, at 29.)
Percocet.
(Id.)
Plaintiff was
given
On July 18, 2015 Plaintiff complained of pain in
his feet, legs, and left jaw area.^
(Id. at 30.)
Plaintiff was ambulating around his room.
(Id.)
However,
Later the same
day. Plaintiff also complained of chest pain and numbness in his
right leg.
taken.
(Id.)
(Id.)
Security was called and Plaintiff's vitals were
He was offered a ''GI cocktail," but Plaintiff
refused it and asked the "PA" to come assess him.
the PA refused to see Plaintiff.^
(Id.)
However,
(Id.)
On July 19, 2015, Plaintiff complained of right foot, leg,
and hip pain.
(Id. at 30.)
and ambulating in his room.
Nurse Giddens noted Plaintiff was up
(Id.)
She also examined his foot and
found that no breakdown, bruising, or edema was present, and
recorded his pulses.^
(Id.)
She also notified Dr. Fountain of
Plaintiff's complaints and received no new orders from her.
Plaintiff
received
Percocet for
his
left
jaw
and
(Id.)
right lower
extremity pain and it is noted that he obtained relief.
(Id. at
31.)
^ Although the records do not specify that Plaintiff was complaining of pain in
his right foot and leg only, Plaintiff never specifically complains of pain on
his left side.
® The Parties never discuss who the "PA" is that refused to assess Plaintiff,
Plaintiff
questions
if
this
encounter
ever
occurred
because
Dr.
Bauer,
Plaintiff's expert, opines that Nurse Giddens' pulse examination was improperly
recorded.
(See Doc. 82, at 9/ Bauer Dep., Doc. 79-9, at 54-55.)
Case 1:17-cv-00172-JRH-BKE Document 87 Filed 08/13/21 Page 6 of 37
Plaintiff complained of right foot pain again on July 20,
2015.
(Id. at 34.)
On July 21, 2015, Plaintiff asked the nurse
on duty to ''call the PA for some motrin" and stated his leg "really
hurts."
(Id.)
The nurse noted he was to follow up with Dr.
Fountain the next morning.
(Id.)
Later the same day. Plaintiff
was observed ambulating in his room and standing at his door.
at 33.)
He was given a warm compress for his leg.
(Id.
(Id.)
Plaintiff also complained of pain on July 22, 2015 and was
given Percocet.
Plaintiff
was
(Id.)
standing
The medical records also note that
at
his
door.
transported back to GDCP the same day.
(Id.)
Plaintiff
was
(Id.; Burnside Decl.,
SI 11.)
At the time of Plaintiff's release. Plaintiff asserts he
needed
assistance
wheelchair.
boarding
the
transport
(Hardy Dep., at 42, 46-48.)
van
and
was
in
a
Plaintiff also asserts
that at this point, his leg was dark, swollen, and emanated an
odor.
(Id. at 96-99.)
The next day. Plaintiff was examined by either Nurse Mary
Gore or Dr. Burnside.^
(Burnside Dep., Doc. 79-2, at 73-74.)
The
consultation notes indicate Plaintiff complained of "feet becoming
very numb, painful, heavy, cold."
(Id. at 73.)
The notes also
state Plaintiff had a good pulse in his feet, they were warm, and
he had decreased sensation.
®
It
is
not
clear
from
(Id.)
the "Medical
Plaintiff when he arrived at GDCP.
Burnside remembers evaluating him.
Dr. Burnside stated Plaintiff
Consultation" form
who
first
(See Burnside Dep., at 73.)
(Id. at 25-28.)
examined
However, Dr.
Case 1:17-cv-00172-JRH-BKE Document 87 Filed 08/13/21 Page 7 of 37
was able to wiggle his toes, ^^one foot looked like the other," and
he did not notice any odor.
(Id. at 26.)
Dr. Burnside then
ordered an ultrasound and doppler which revealed Plaintiff had
blockages in his arterial stents, reducing the blood flow to his
leg and foot.^
(Id. at 77-80.)
Plaintiff was admitted to the
Atlanta Medical Center on July 24, 2015 for an evaluation by a
vascular surgeon.
(Burnside Decl., 5 14.)
The surgical team
attempted to restore blood flow to Plaintiff s right leg but
failed.
(Id.)
Plaintiffs leg became non-viable and he underwent
an above-the-knee amputation on July 31, 2015.
(Id.)
II. STANDARD FOR SUMMZ^Y JUDGMENT
Summary judgment is appropriate only if ""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).
Facts are
""material" if they could ""affect the outcome of the suit under the
governing [substantive] law," Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986), and a dispute is genuine ""if the non[-]moving
party has produced evidence such that a reasonable factfinder could
return a verdict in its favor."
Waddell v. Valley Forge Dental
Assocs., Inc., 276 F.3d 1275, 1279 (11th Cir. 2001).
® "Ischemia is a
The Court
deficiency of blood in a part, usually due to functional
constriction or actual obstruction of a blood vessel.'"
Werner v. Ace USA, No.
l:07-CV-0932, 2008 WL 2917607, at *3 n.l (N.D. Ga. July 28, 2008) (quoting
Dorland^s Illustrated Medical Dictionary 954 (30th ed. 2003)).
7
Case 1:17-cv-00172-JRH-BKE Document 87 Filed 08/13/21 Page 8 of 37
must view factual disputes in the light most favorable to the non-
moving party, Matsushita Elec. Indus. Co, v. Zenith Radio Corp.,
475 U.S. 574, 587 (1986), and must "draw all justifiable inferences
in [the non-moving party's] favor." United States v. Four Parcels
of Real Prop., 941 F.2d 1428, 1437 (11th Cir. 1991) (en banc)
(citation, internal quotation marks, and internal punctuation
omitted).
The Court may not weigh the evidence or determine
credibility.
Anderson, 477 U.S. at 255.
The moving party has the initial burden of showing the Court
the basis for its motion by reference to materials in the record.
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
When the non-
movant bears the burden of proof at trial, as Plaintiff does here,
the movant has two options as to how it can carry its initial
burden.
Id. at 1115-16.
The movant may demonstrate an absence of
evidence to support the nonmovant's case, or provide affirmative
evidence demonstrating the nonmovant's inability to prove its case
at trial.
Id.
If the movant carries its initial burden, the non-movant must
"demonstrate that there is indeed a material issue of fact that
precludes summary judgment."
Id.
The non-movant must tailor its
response to the method by which the movant carries its initial
burden. For example, if the movant presents evidence affirmatively
negating
a
material fact, the
non-movant "must
respond
with
evidence sufficient to withstand a directed verdict motion at trial
8
Case 1:17-cv-00172-JRH-BKE Document 87 Filed 08/13/21 Page 9 of 37
on the material fact sought to be negated.''
Fitzpatrick v. City
of Atlanta, 2 F.3d 1112, 1116 (llth Cir. 1993). On the other hand,
if the movant shows an absence of evidence on a material fact, the
non-movant must either show that the record contains evidence that
was "overlooked or ignored" by the movant or "come forward with
additional evidence sufficient to withstand a directed verdict
motion at trial based on the alleged evidentiary deficiency."
at 1116-17.
Id.
The non-movant cannot carry its burden by relying on
the pleadings or by repeating conclusory allegations contained in
the complaint.
Cir. 1981).
See Morris v. Ross, 663 F.2d 1032, 1033-34 (llth
Rather, the non-movant must respond with affidavits
or as otherwise provided by Federal Rule of Civil Procedure 56.
In this action, the Clerk of Court provided all parties notice
of the motion for summary judgment, the right to file affidavits
or other materials in opposition, and the consequences of default.
(Doc. 78.)
For that reason, the notice requirements of Griffith
V. Wainwright, 772 F.2d 822, 825 (llth Cir. 1985), have been
satisfied.
The
time
for
filing
materials
in
opposition
has
expired, the issues have been thoroughly briefed, and the motion
is now ripe for consideration.
III. DISCUSSION
Plaintiff brings claims for deliberate indifference to a
serious medical need, as protected by the Eighth Amendment of the
Case 1:17-cv-00172-JRH-BKE Document 87 Filed 08/13/21 Page 10 of 37
United States Constitution, against Defendants under 42 U.S.C.
§ 1983.
Defendants move for summary judgment on two grounds.
First, Defendants argue Plaintiff's claims fail as a matter of
law. In the alternative, they argue they are entitled to qualified
immunity.
A. Deliberate Indifference to a Serious Medical Need
1. Legal Standard
Deliberate
indifference
to
the
serious
medical
need
of a
prisoner is proscribed by the Eighth Amendment's prohibition of
unnecessary and wanton infliction of pain.
Harris v. Leder, 519
F. App'x 590, 595 (11th Cir. 2013) (citing Estelle v. Gamble, 429
U.S. 97, 104 (1976)). To prove a claim of deliberate indifference,
^'a
plaintiff must show: (1)
defendant's
deliberate
a
serious medical need; (2) a
indifference
to
that
need;
and
(3)
causation between that indifference and the plaintiff's injury."
Melton V. Abston, 841 F.3d 1207, 1220 (11th Cir. 2016) (citing
Mann v. Taser Int'l, Inc., 588 F.3d 1291, 1306 (11th Cir. 2009)).
Whether a medical need is sufficiently serious is an objective
inquiry.
See Goebert v. Lee Cnty., 510 F.3d 1312, 1326 (11th Cir.
2007). ''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.'"
Mann, 588 F.3d at 1307 (quoting Hill v.
Dekalb Reg'1 Youth Det. Ctr., 40 F.3d 1176, 1187 (11th Cir. 1994),
10
Case 1:17-cv-00172-JRH-BKE Document 87 Filed 08/13/21 Page 11 of 37
overruled in part on other grounds by Hope v. Pelzer, 536 U.S.
730, 739 (2002)).
serious
medical
otherwise.
The Court is satisfied that Plaintiff had a
need,
and
Defendants
do
not
seem
to
argue
See Walsh v. Jeff Davis Cnty., No. CV 210-075, 2012 WL
12952564, at *1 (S.D. Ga. Mar. 29, 2012), aff^d, 489 F. App'x 389
(11th Cir. 2012) (''[I]t is beyond question that reduced blood flow
in a diabetic which is severe enough to cause a leg amputation is
a serious medical need.").
Next,
Plaintiff
must
show
Defendants
were
deliberately
indifferent to his serious medical need, which is a subjective
inquiry. See Goebert, 510 F.3d at 1326-27. To satisfy this burden
he ^^must prove: (1) subjective knowledge of a risk of serious harm;
(2) disregard of that risk; (3) by conduct that is more than mere
negligence."
Melton, 841
F.3d
at 1223 (citations omitted).
^^Whether a particular defendant has subjective knowledge of the
risk
of
serious
demonstration
in
harm
the
is
usual
circumstantial evidence, and
a
question
ways,
of
fact
including
^subject
inference
to
from
a factfinder may conclude that a
prison official knew of a substantial risk from the very fact that
the risk was obvious.
'"
Goebert, 510 F.3d at 1327 (quoting Farmer
V. Brennan, 511 U.S. 825, 842 (1994)).
"Disregard of the risk is
also a question of fact that can be shown by standard methods."
Id. (citing Farmer, 511 U.S. at 846).
11
Case 1:17-cv-00172-JRH-BKE Document 87 Filed 08/13/21 Page 12 of 37
''The meaning of 'more than [mere] negligence' is not selfevident[;]" however, in the Eleventh Circuit, "[cjonduct that is
more than mere negligence includes: (1) grossly inadequate care;
(2) a decision to take an easier but less efficacious course of
treatment; and (3) medical care that is so cursory as to amount to
no treatment at all."
Id. (citation omitted); Bingham v. Thomas,
654 F.3d 1171, 1176 (11th Cir. 2011) (citing Brown v. Johnson, 387
F.3d 1344, 1351 (11th Cir. 2004)).
Additionally, "[a] defendant
who unreasonably fails to respond or refuses to treat an inmate's
need for medical care or one who delays necessary treatment without
explanation or for non-medical reasons may also exhibit deliberate
indifference."
Melton, 841 F.3d at 1223 (citations omitted).
However, "an official's failure to alleviate a significant
risk that he should have perceived but did not" does not constitute
deliberate indifference.
Farmer, 511
U.S. at 838.
Nor does
"accidental inadequacy, negligence in diagnosis or treatment, or
even medical malpractice actionable under state law."
Bingham,
654 F.3d at 1176 (citation omitted); see also Ruiz v. Rummel, 777
F. App'x 410, 415 (11th Cir. 2019) ("[A] doctor's failure to
accurately diagnose a prisoner's condition, even if extremely
negligent, did not 'cross the line to deliberate indifference.'"
(quoting McElligott v. Foley, 182 F.3d 1248, 1256 (11th Cir.
1999))).
12
Case 1:17-cv-00172-JRH-BKE Document 87 Filed 08/13/21 Page 13 of 37
Further, "[i]n considering a deliberate indifference claim,
^each individual Defendant must be judged separately and on the
basis of what that person knows.'"
Melton, 841 F.3d at 1224
(quoting Burnette v. Taylor, 533 F.3d 1325, 1331 (11th Cir. 2008)).
For that reason, ^'imputed or collective knowledge cannot serve as
the basis for a claim of deliberate indifference."
Presley v.
City of Blackshear, 650 F. Supp. 2d 1307, 1315 (S.D. Ga. 2008)
(quoting Burnette, 533 F.3d at 1331).
''The final requirement for a deliberate indifference claim is
that a defendant have a causal connection to the constitutional
harm." Goebert, 510 F.3d at 1327 (citing Cottone v. Jenne, 326
F.3d 1352, 1360 (11th Cir. 2003), abrogated in part on other
grounds by Randall v. Scott, 610 F.3d 701 (11th Cir. 2010)).
Causation
"can
be
shown
constitutional violation."
by
personal
participation
in
the
Id. (citing Zatler v. Wainwright, 802
F.2d 397, 401 (11th Cir. 1986) (per curiam)).
2. Analysis
Plaintiff brings claims of deliberate indifference against
Dr. Fountain, Nurse Giddens, Nurse Wells, Ms. West, Warden Shepard,
and Deputy Warden McGrew for their direct participation in his
medical treatment, and also against Dr. Fountain, Warden Shepard,
and Deputy Warden McGrew in their roles as supervisors.
13
Case 1:17-cv-00172-JRH-BKE Document 87 Filed 08/13/21 Page 14 of 37
a. Individual Liability
i.
Dr. Fountain
Plaintiff avers Dr. Fountain was deliberately indifferent to
his medical needs by: (1) failing to "'furnish Plaintiff with anti
coagulant prophylaxis
[salivary
gland]
within a reasonable time following his
surgery[;]''
and
(2)
failing
to
provide
"additional medical or diagnostic care in response to Plaintiff's
ongoing symptoms" or "consult with any additional medical care
providers."
(Compl., at 7-8.)
Plaintiff has shown he had a
serious medical need; therefore, the Court turns to whether Dr.
Fountain "had subjective knowledge of the fact that [Plaintiff]
was
at
substantial
disregarded that risk.
risk
of
suffering
a
serious
harm"
and
Brooks v. Wilkinson Cnty., 393 F. Supp. 3d
1147, 1163 (M.D. Ga. 2019).
First,
entered
a
Plaintiff's
medical
physician's
order
records
to
indicate
renew
prescription beginning on June 30, 2015.
Dr.
Plaintiff s
Fountain
Plavix
{Fountain Decl., at 20.)
Although Dr. Fountain asserts the medical records reflect Plavix
was
administered
on
July
1-22,
2015,
Plaintiff's
"medical
administration records" only reflect that Plavix was administered
on July 15-22, 2015.
(See id. at 23.)
Despite what the medical records reflect. Plaintiff asserts
he does not remember receiving Plavix until he returned to GDCP.
(Hardy Dep., at 28, 30.)
Additionally, he argues "[w]hile [Dr.
14
Case 1:17-cv-00172-JRH-BKE Document 87 Filed 08/13/21 Page 15 of 37
Fountain] may aver that she ordered that Plaintiff be administered
Plavix, she cannot say for certain that the drug was actually
administered."
{Doc. 79, at 11.)
citing
authority,
to
any
since
Further, he argues, without
^^Defendant
Fountain
did
not
personally prepare the [medical record] or observe Plaintiff take
any Plavix, it is for a trier of fact to determine the reliability
of such documentation."
(Id.)
However, the issue here is not
whether Plaintiff actually received his medication; it is whether
Dr. Fountain was deliberately indifferent to his serious medical
need.
The fact that Dr. Fountain prescribed the medication itself
shows she was not deliberately indifferent. Plaintiff has produced
no evidence that his medical records showing the administration of
Plavix
are false
or that
Dr.
Fountain
purposely
withheld
medication or had knowledge that he was not receiving it.
his
Thus,
Dr. Fountain was not deliberately indifferent as to Plaintiff's
Plavix prescription.
Now
the
Court turns to
Dr.
Fountain's treatment, or
thereof, of Plaintiff's serious medical need.
lack
''''[W]hen a prison
inmate has received medical care, courts hesitate to find a[n]
Eighth Amendment violation." McElliqott, 182 F.3d at 1259 (quoting
Waldrop v. Evans, 871 F.2d 1030, 1035 (11th Cir. 1989)).
Plaintiff received medical treatment.
Here,
However, he argues that Dr.
Fountain was deliberately indifferent to his medical needs because
she never examined his foot, referred him to a specialist, or tried
15
Case 1:17-cv-00172-JRH-BKE Document 87 Filed 08/13/21 Page 16 of 37
to determine the cause of his pain, despite his ongoing complaints.
(Doc. 79, at 12-14.)
Plaintiff asserts Dr. Fountain ''knew that
[he] ran a high risk of developing ischemia, but consciously chose
to disregard that risk."
(Id. at 13.)
To the extent Plaintiff argues that Dr. Fountain and his care
providers
were deliberately indifferent to his medical needs
solely because they failed to conduct a CT scan, x-ray, or doppler
scan on his limb, the Court finds this is not an appropriate basis
for liability.
The United States Supreme Court has held that . . . [t]he
question whether an x-ray - or additional diagnostic
techniques or forms of treatment - is indicated is a
classic example of a matter for medical judgment.
A
medical decision not to order an X-ray, or like measures,
does not represent cruel and unusual punishment.
At
most it is medical malpractice, and as such the proper
forum is the state court[.]
Dunn V. Hart, No. 5:13-CV-131, 2016 WL 5661058, at *6 (S.D. Ga.
Sept. 29, 2016) (quoting Estelle, 429 U.S. at 107).
However, the Court is satisfied that Plaintiff has provided
sufficient — albeit scant — evidence from which a reasonable jury
could conclude Dr. Fountain disregarded a risk of serious harm to
Plaintiff by conduct that was more than mere negligence.
evidence
reflects
extremity pain.
Dr.
Fountain
was
aware
of
Nurse Giddens first advised
Plaintiff's
Dr.
The
lower
Fountain of
Plaintiff s pain after his salivary gland surgery on July 9, 2015,
and then again on July 19, 2015.
16
(ASMP Medical Records, at 20,
Case 1:17-cv-00172-JRH-BKE Document 87 Filed 08/13/21 Page 17 of 37
30.) Additionally, Dr. Fountain asserts she had medical encounters
with Plaintiff during this time.
(See Fountain Decl., 1 6.)
However, there is no evidence that Dr. Fountain ever examined
Plaintiff's foot or leg.
Although Dr. Fountain cannot be held liable for failing to
diagnose
Plaintiff s
ischemia,
she
investigate Plaintiff's complaints.
(finding
while ''failure
to
at
least
had
a
duty
to
McElliqott, 182 F.3d at 1256
diagnose
can
be
deemed
extremely
negligent, it does not cross the line to deliberate indifference");
Dukes V. Georgia, 428 F. Supp. 2d 1298, 1329 (N.D. Ga. 2006), aff^d
sub nom., 212 F. App'x 916 (11th Cir. 2006) ("The failure to
diagnose, even something as critical as colon cancer, is not
deliberate
indifference.
Rather,
deliberate
indifference
from ignoring a patient or a failure to treat.")
stems
Dr. Fountain
cannot turn a blind eye to Plaintiff's pain and then argue she had
no
knowledge
of
his
serious
medical
need.
"[A]
party that
willfully blinds itself to a fact . . . can be charged with
constructive knowledge of that fact."
Goebert, 510 F.3d at 1328
(quoting United States v. Baxter Int'l, Inc., 345 F.3d 866, 902
(11th Cir. 2003)).
Additionally, Plaintiff asserts that in response to informing
Dr. Fountain of his pain, she would tell him to "walk it off" and
"you are only going to get treated for what you came here for."
(Hardy Dep., at 33, 42.)
This is circumstantial evidence that Dr.
17
Case 1:17-cv-00172-JRH-BKE Document 87 Filed 08/13/21 Page 18 of 37
Fountain may have known of Plaintiff s serious medical need and
disregarded it.
Thus, even though Dr. Fountain "took some basic
steps to alleviate [Plaintiffs] symptoms, if a jury finds that
. . . [she]
had
subjective
knowledge
of
the
seriousness
of
[Plaintiffs] condition, then the medical care she provided could
be characterized as either ^grossly inadequate' or ^so cursory as
to amount to no treatment at all.'"
Brooks, 393 F. Supp. 3d at
1164-65.
Finally, based on the evidence presented, a reasonable jury
could find that
Dr.
Fountain's deliberate indifference was the
cause of Plaintiff's injury.
See Goebert, 510 F.3d at 1327
("Causation . . . can be shown by personal participation in the
constitutional
violation.");
Brooks,
393
F.
Supp.
3d
at
1165
("[W]hether [defendant's] . . . alleged deliberate indifference
caused [plaintiff's] injuries is a question for the jury.").
ii. Nurse Giddens
Plaintiff asserts Nurse Giddens was deliberately indifferent
for
failing "to
consult
with
her
supervisors
and
suggest
an
alternative means of treatment" despite "personally document[ing]
Plaintiff s complaints of lower extremity pain" on at least four
different occasions.
(Doc. 79, at 14.)
Plaintiffs support for
his assertion
that
Nurse
Giddens
failed to consult her "supervisor" is that during her deposition
she could not recall whether she had in fact consulted Dr. Fountain
18
Case 1:17-cv-00172-JRH-BKE Document 87 Filed 08/13/21 Page 19 of 37
and that she ^^never documented" any such conversation.
(Id.)
However, Nurse Giddens explained in her deposition that '^^[i]f [she]
had a problem with a patient, [she] would tell Dr. Fountain" and
she ''probably did" go to Dr. Fountain and "didn't put it in the
chart."
Nurse
(Giddens Dep., at 41.)
Giddens
noted
in
Additionally, on July 9, 2015,
Plaintiff s
medical
records
that
he
complained of right foot pain and Dr. Fountain was aware of the
complaints.
(ASM? Medical Records, at 20.)
Moreover, on July 19,
2015, Nurse Giddens noted that (1) Plaintiff was up and about
ambulating in his room, (2) he complained of right hip, leg, and
foot pain, (3) his right foot was examined and no breakdown was
visible, (4) pedal and dorsalis pulses were noted, and (5) Dr.
Fountain was notified of his complaints and gave no new orders.
(Id. at 30.)
Plaintiff has not pointed to any evidence in the record to
dispute that Nurse Giddens notified Dr. Fountain of his pain.
Instead, it is obvious from the medical records that Dr. Fountain
was made aware of Plaintiff's pain on multiple occasions and did
not change his course of treatment.
See Scott v. Harris, 550 U.S.
372, 380 (2007) ("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.").
19
Case 1:17-cv-00172-JRH-BKE Document 87 Filed 08/13/21 Page 20 of 37
Plaintiff
cannot
show
Nurse
Giddens
was
deliberately
indifferent by deferring to the plan of care approved of by Dr.
Fountain because
[a] nurse is not deliberately indifferent when
he/she reasonably follows a doctor's orders."
Dunn, 2016 WL
5661058, at *7 (quoting Billue v. Gualtieri, No. 8:13-CV-546, 2013
WL 1405945, at *4 (M.D. Fla. Apr. 8, 2013)); see also Bauer v.
Kramer, 424 F. App'x 917, 919 (11th Cir. 2011) ("[A] nurse is not
deliberately indifferent when she reasonably follows a doctor's
orders by administering prescribed medication to an inmate.").
Here, the Court finds, even when viewing the evidence in a light
most favorable to Plaintiff, Nurse Giddens reasonably followed Dr.
Fountain's order to continue with the current plan of treatment.
Further, Nurse Giddens was one of the only Defendants that
recorded
her
examinations
of
Plaintiff's
foot
in
his
medical
records and she did not observe anything that concerned her.
only ''symptom" Plaintiff ever expressed was pain.
The
Although Nurse
Giddens may very well "should have known" pain could be a sign of
ischemia, misdiagnosis does not amount to deliberate indifference.
Thus, Plaintiff has failed to establish a genuine dispute as
to whether Nurse Giddens was subjectively aware of a serious risk
to his health and disregarded that risk.
to
summary
judgment
as
to
Nurse Giddens is entitled
Plaintiff s
indifference.
20
claim
for
deliberate
Case 1:17-cv-00172-JRH-BKE Document 87 Filed 08/13/21 Page 21 of 37
iii. Nurse Wells & Ms. West
Plaintiff asserts "he informed both providers at some time or
another that he was experiencing leg and/ or foot pain."
79, at 15; Hardy Decl., Doc. 79-1, SI 18.)
{Doc.
Additionally, Plaintiff
argues that Nurse Wells' "knowledge of his underlying conditions
(as well as the risk associated therewith)" and Ms. West's "ready
access to such knowledge" creates an issue of fact "whether their
failure . . . to suggest to their superiors that an alternative
treatment plan be pursued or that [Plaintiff] be referred to a
specialist constitutes deliberate indifference."
(Doc. 79, at
15.)
According to Plaintiff's medical records, Nurse Wells had
seven encounters with Plaintiff at ASMP after his salivary gland
surgery.
(Wells Decl., Doc. 77-5, SI 7.)
Six of the encounters
occurred prior to July 9, 2015 at 9:00 A.M., which is when
Plaintiff first expressed that he had pain in his right foot.
(Id.)
The only other encounter between Nurse Wells and Plaintiff
occurred the following day, July 10, 2015.
(Id.)
Nurse Wells
recorded in Plaintiff's medical records that he slept on and off,
she measured his blood glucose, he refused his insulin dose, and
that he took breakfast well.
(Id.)
Nurse Wells asserts Plaintiff
never complained to her of foot pain, which is also supported by
the medical records.
Plaintiff's response to these documented
encounters is that "[r]egardless of whether all his complaints
21
Case 1:17-cv-00172-JRH-BKE Document 87 Filed 08/13/21 Page 22 of 37
were documented, [he] recalls complaining of pain to Dr. Fountain
and to nearly every nurse that he encountered in Section 2-A of
[ASMP]." (Doc. 82, at 13.) Plaintiff cannot remember any specific
encounter with Nurse Wells where he expressed his pain, he only
remembers telling ^^Dr.
encountered.
Fountain and probsbly every nurse" he
(Hardy Dep., at 34.)
Plaintiff's ^^self-serving
assertions of deliberate indifference do not create a question of
fact in
the
face
medical records."
of
contradictory,
contemporaneously created
Allen v. Rahminq, 2:17-CV-25, 2019 WL 6769304,
at *16 (M.D. Ala. Dec. 11, 2019) (citing Whitehead v. Burnside,
403 F. App'x 401, 403 (11th Cir. 2010)).
Plaintiff also asserts that at some point ''[he] was asking
her as well as the other nurses to get me some help or get somebody
to do something, look at my leg."
(Hardy Dep., at 18.)
Parties dispute whether this encounter occurred.
The
However, even
assuming Plaintiff did ask Nurse Wells to get someone to look at
his leg. Plaintiff's claim against Nurse Wells fails.
First,
Plaintiff has offered no evidence that he specifically asked Nurse
Wells to get him help.
Instead, he vaguely asserts he was "asking
her as well as the other nurses to get me some help."
(Id.)
Plaintiff provides no testimony or evidence that Nurse Wells
observed anything that would raise an immediate concern and thus
made her aware of any serious risk of harm to his health during
this alleged encounter.
Further, Plaintiff does not describe how
22
Case 1:17-cv-00172-JRH-BKE Document 87 Filed 08/13/21 Page 23 of 37
long the period of delay was between allegedly asking Nurse Wells
to get someone to help him and when another medical personnel
checked in on him or that his condition worsened during this delay.
Plaintiff has not put forth any evidence that Nurse Wells actually
knew of any risk of serious harm to Plaintiff.
See Walsh, 2012 WL
12952564, at *8 {''[T]he inquiry does not focus on serious medical
needs that a defendant should have perceived but did not[,] rather
that the official must have actually perceived the medical need."
(citations and quotation marks omitted and alterations adopted)).
Moreover, Plaintiff does not dispute the validity of Nurse Wells'
entries in his medical records.
Thus, even accepting as true
Plaintiff's assertion that he told Nurse Wells about his pain on
at least one occasion and that he asked her to get someone to help
him, the Court does not find that there is a genuine issue of
material
fact
as
to
whether
Nurse
Wells
was
deliberately
indifferent.
For
fails.
the
same
reasons.
Plaintiff's
claim
against
Ms.
West
However, Ms. West is even less culpable than Nurse Wells
because Ms. West does not have the same medical training as the
nurses at ASMP.
Ms. West is a Certified Nursing Assistant (""CNA").
(West Decl., Doc. 77-6, SI 3.)
As a CNA, her duties ''consisted
primarily of assisting with the basic needs of inmates, such as
clothing,
feeding,
and
bathing,
taking
and
documenting
signs, emptying bed pans, and changing bed linens."
23
vital
(Id. SI 4.)
Case 1:17-cv-00172-JRH-BKE Document 87 Filed 08/13/21 Page 24 of 37
She is not involved in the ''examination, diagnosis, or treatment
of patients," she does not "prescribe, administer, or otherwise
deal with any medications, and [her] duties d[o] not require or
involve
consulting
discussing
medical
inmate
issues
medical
or
histories
concerns
with
or
charts
inmates."
or
(Id.)
However, Plaintiff argues that because Ms. West had "ready access
to . . . knowledge" of his underlying conditions and the risks
associated with, there exists a question of fact as to whether her
failure to suggest an alternative treatment plan or that Plaintiff
should be referred to a specialist to her superiors constitutes
deliberate indifference.
Ms.
West
was
(Doc. 79, at 15.)
not in
the
position
to
diagnosis
or
treat
Plaintiff and she reasonably relied on the nurses and doctors to
do so.
At most. Plaintiff has shown that Ms. West should have
known that he was exhibiting symptoms of ischemia by expressing
his pain.
However, as the Court has repeatedly explained, that is
insufficient to support a claim of deliberate indifference.
See
Jenkins v. Corizon Health Inc., No. CV418-099, 2020 WL 5269405, at
*10 (S.D. Ga. Sept. 3, 2020) ("'An official's failure to alleviate
a significant risk that he should have perceived but did not' is
insufficient to establish a constitutional violation."
(quoting
Collins V. Bates, No. 17-14559-G, 2018 WL 5090845, at *5 (11th
Cir. May 10, 2018) (alterations adopted)).
24
Case 1:17-cv-00172-JRH-BKE Document 87 Filed 08/13/21 Page 25 of 37
Plaintiff has not satisfied the onerous burden of proving the
deliberate
indifference
of
Nurse
Wells
and
Ms.
West.
See
Whitehead, 403 F. App'x at 403 {''The plaintiff shoulders a heavy
burden . . . .")•
to
summary
Therefore, Nurse Wells and Ms. West are entitled
judgment
on
Plaintiff's
claims
of
deliberate
indifference.
V. Warden Shepard & Deputy Warden McGrew
Plaintiff
also
asserts
claims
of
deliberate
indifference
against Warden Shepard and Deputy Warden McGrew, who were not
involved in Plaintiff's medical treatment.
'medical
treatment
claim
[will]
not
"An Eighth Amendment
lie
against
non-medical
personnel unless they were personally involved in the denial of
treatment
or
treatment.
deliberately
interfered
with
prison
doctors'
Prison officials are entitled to rely on the opinions,
judgment and expertise of a prison medical staff to determine a
medically necessary and appropriate cause of treatment for an
inmate.'"
Truschke v. Chaney, No. 5:17-CV-93, 2018 WL 814579, at
*5 (S.D. Ga. Feb. 9, 2018), report and recommendation adopted,
2018
WL
1513354
(S.D.
Ga.
Mar.
27,
2018)
(quoting
Baker
v.
Pavlakovic, No. 4:12-CV-03958, 2015 WL 4756295, at *7 (N.D. Ala.
Aug. 11, 2015)).
Here, Plaintiff does not allege that Warden
Shepard and Deputy Warden McGrew interfered with his treatment.
Instead, Plaintiff argues they were aware of his pain and medical
history and failed to do more.
25
Case 1:17-cv-00172-JRH-BKE Document 87 Filed 08/13/21 Page 26 of 37
Plaintiff
asserts
Deputy
Warden
McGrew
^'knew
of
[his]
diabetes" and he ^'apprised [her] of the condition of [his] leg"
and thus she ""was required to do more tha[n] simply brush aside
[his] pleas." (Doc. 79, at 17.) The only evidence Plaintiff cites
to is his own testimony that Warden McGrew ^^has known about [his]
diabetes for several years due to several conversations [they] had
while [he] was an orderly at ASMP and [she] was also aware [he]
was taking Plavix."
(Hardy Decl., SI 9.)
Additionally, Plaintiff
contends he ^''showed her [his] leg and . . . foot when she came
through for inspection" and she did nothing.
(Hardy Dep., at 17.)
Plaintiff essentially argues that because ^^he told [Deputy Warden
McGrew] he was a diabetic on at least one occasion," she should
have ''consulted with Plaintiff's care providers" when he advised
her of his right foot and leg pain.
17.)
(Doc. 79, at 17; Doc. 82, at
Plaintiff's claims against Warden Shepard are similar.
He
avers he told Warden Shepard about his pain "on at least one
occasion" and he had access to his medical history.
f 20; Doc. 79, at 2.)
(Hardy Decl.,
Also, Warden Shepard "often entered certain
inmates' cells on occasion."
(Doc. 82, at 31.)
Even taking Plaintiff's allegations as true, they do not
support an inference of liability. First, as the Court has already
noted, the mere knowledge of Plaintiff s medical history is not
enough.
A defendant must have actual knowledge of a risk of
serious harm and disregard that risk.
26
Here, Plaintiff was being
Case 1:17-cv-00172-JRH-BKE Document 87 Filed 08/13/21 Page 27 of 37
seen daily by ASMP medical staff and Plaintiff does not suggest
otherwise.
Based on the evidence, it would not have been apparent
to Deputy Warden McGrew or Warden Shepard that Plaintiff was
receiving inadequate care.
CMIt] is
widely
held
See Truschke, 2018 WL 814579, at *5
that
non-medical
prison
personnel
are
generally entitled to rely on the expertise of the medical staff
and are not required to second-guess the medical staff's judgment
regarding an inmate's care." (quoting Stallworth v. Graham, No.
4:14-CV-00134, 2015 WL 4756348, at *5 (N.D. Ala. Aug. 11, 2015));
Johnson v. Doughty, 433 F.3d 1001, 1011 (7th Cir. 2006) (^^Except
in the unusual case where it would be evident to a layperson that
a prisoner is receiving inadequate or inappropriate treatment,
prison officials may reasonably rely on the judgment of medical
professionals[.]"); Kelly v. Ambroski, 97 F. Supp. 3d 1320, 1343
(N.D. Ala. 2015) (''[I]n the absence of a reason to believe, or
actual knowledge, that medical staff is administering inadequate
medical care, non-medical prison personnel are not chargeable with
the
Eighth
Amendment
scienter
requirement
of
deliberate
indifference[.]").
Plaintiff has not put forth evidence that Deputy Warden McGrew
or Warden Shepard had any knowledge that he was receiving allegedly
inadequate care.
Instead, he argues that because they entered his
cell and had an opportunity to observe his ''deteriorating condition
first-hand," his need for treatment would have been obvious.
27
(Doc.
Case 1:17-cv-00172-JRH-BKE Document 87 Filed 08/13/21 Page 28 of 37
79, at 17.) However, Plaintiff presents no evidence that anything
was visibly wrong with his leg that would have put Deputy Warden
McGrew
and
Warden
Shepard
on
notice
of
his
serious
medical
condition or that by telling them he was in pain, they actual knew
of his deteriorating condition.
See Powell v. Scott, No. CV412-
004, 2013 WL 4039385, at *8 (S.D. Ga. Aug. 7, 2013), report and
recommendation adopted, 2013 WL 4511358 (S.D. Ga. Aug. 23, 2013)
(''Where . . . the defendant is not a trained medical professional,
the need for immediate medical assistance must have been apparent
to the untrained eye of a lay person." (internal quotation marks
and citation omitted)). Without any knowledge that an intervention
is necessary to avoid a constitutional violation, they did not
have any duty to intervene.
See Kelly, 97 F. Supp. 3d at 1343
("Prison officials are not under a duty to directly supervise
medical personnel or to intervene in treatment decisions where
they have no actual knowledge that intervention is necessary to
prevent a constitutional deprivation." (citations omitted)).
Lastly, Plaintiff asserts on one occasion Warden Shepard told
him "if you make one more scream or outburst on this unit, I'm
gonna put you behind the wall in 6A."
Decl., 5 20.)
especially
(Hardy Dep., at 18; Hardy
This comment does not change the Court's analysis,
given
Plaintiff s
apparently
unrelated to his leg and foot pain.
Records, at 11, 17, 23, 28.)
frequent
outbursts
(See, e.g., ASMP Medical
Therefore, Warden Shepard and Deputy
28
Case 1:17-cv-00172-JRH-BKE Document 87 Filed 08/13/21 Page 29 of 37
Warden McGrew
are entitled to summary judgment on Plaintiff's
direct liability claims of deliberate indifference,
b. Supervisory Liability
Plaintiff also attempts to hold Dr. Fountain, Warden Shepard,
and Deputy Warden McGrew responsible for the alleged misconduct of
their subordinates.
It
is
well
established
in
the
Eleventh
Circuit
that
^^supervisory officials are not liable under [Section] 1983 for the
unconstitutional
acts
of
their
subordinates
respondeat superior or vicarious liability."
on
the
basis
of
Hartley v. Parnell,
193 F.3d 1263, 1269 (11th Cir. 1999) (internal quotation marks and
citation omitted).
To impose supervisory liability for Section
1983 violations, a plaintiff must demonstrate that either (1) "the
supervisor
personally
participate[d]
in
the
alleged
unconstitutional conduct" or (2) "there is a causal connection
between the actions of a supervising official and the alleged
constitutional deprivation."
Cottone, 326 F.3d at 1360.
standard is "extremely rigorous."
This
Braddy v. Fla. Dep't of Labor
& Emp. Sec., 133 F.3d 797, 802 (11th Cir. 1998) ("The standard by
which a supervisor is held liable in her individual capacity for
the actions of a subordinate is extremely rigorous.").
First, Plaintiff's supervisory claim against Dr. Fountain
fails because the
Court has determined there is
no
evidence to
establish a constitutional violation by her subordinates.
29
Without
Case 1:17-cv-00172-JRH-BKE Document 87 Filed 08/13/21 Page 30 of 37
an underlying constitutional violation, Plaintiff cannot maintain
a Section 1983 action for supervisory liability.
See Mann, 588
F.Sd at 1308 (''Plaintiffs' claims under a theory of supervisory
liability fail because the underlying [Section] 1983 claims fail."
(citing Hicks v. Moore, 422 F.3d 1246, 1253 (11th Cir. 2005))).
Plaintiff has no claims for supervisory liability against
Warden
Shepard
and
Deputy
Warden
McGrew
either.
The
Court
previously determined Plaintiff failed to assert facts that Warden
Shepard and
Deputy Warden McGrew
decisions regarding his treatment.
personally participated in
(Doc. 53, at 23.)
Thus,
Plaintiff must establish a causal connection between the wardens'
actions and the constitutional violation.
The necessary causal
connection may be established by showing: (1) "a history of
widespread abuse put[] the responsible supervisor on notice of the
need to correct the alleged [constitutional] deprivation, and he
fail[ed] to do so"; (2) "a supervisor's custom or policy result[ed]
in
deliberate
indifference
to
constitutional
rights";
or
(3)
"facts 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."
326 F.3d
at 1360 (internal quotation
Cottone,
marks omitted) (quoting
Gonzalez v. Reno, 325 F. 3d 1228, 1234-35 (11th Cir. 2003)).
The
Court previously determined Plaintiff did not allege a history of
widespread abuse in his Complaint and failed to plead sufficient
30
Case 1:17-cv-00172-JRH-BKE Document 87 Filed 08/13/21 Page 31 of 37
facts to support his assertion that a custom or policy resulted in
deliberate
indifference.
(See
Doc.
53,
at
24.)
Therefore,
Plaintiff must put forth evidence to support a causal connection
under the third prong.
Plaintiff argues that ''in the event that either [Warden]
Shepard
or
[Deputy
Warden]
McGrew
were
made
aware
of [his]
condition only to later discover that his condition never improved,
such a circumstance would have placed them on notice that their
respective subordinates were not providing proper care."
82, at 32-33.)
(Doc.
However, Plaintiff has not alleged that Warden
Shepard and Deputy Warden McGrew directed the ASMP medical staff
to withhold care or to act unlawfully.
Further, there is no
evidence that they had any knowledge of Dr. Fountain's alleged
unconstitutional conduct.
Plaintiff offers no evidence to support his allegations that
Warden Shepard and Deputy Warden McGrew knew Dr. Fountain would
act
unlawfully
and
failed
to
stop
her,
and
his
conclusory
allegations are insufficient to meet the "extremely rigorous"
standard necessary to impose supervisory liability.
133 F.3d at 802.
See Braddy,
Thus, Dr. Fountain, Warden Shepard, and Deputy
Warden McGrew are entitled to summary judgment on Plaintiff's
supervisory liability claims.
31
Case 1:17-cv-00172-JRH-BKE Document 87 Filed 08/13/21 Page 32 of 37
B. Qualified Immunity
Because there remains a Section 1983 claim for deliberate
indifferent against Dr. Fountain, the Court now considers whether
she is entitled to qualified immunity.
^""Qualified immunity offers complete protection for government
officials sued in their individual capacities if their conduct
does not violate clearly established statutory or constitutional
rights of which a reasonable person would have known."
Grider v.
City of Auburn, 618 F.3d 1240, 1254 (11th Cir. 2010) (quoting
Vinyard
v.
(alterations
Wilson,
adopted
311
F.3d
and
1340,
internal
1346
(11th
quotation
Cir.
marks
2002))
omitted).
^'Qualified immunity from suit is intended to allow government
officials to carry out their discretionary duties without the fear
of personal liability or harassing litigation, protecting from
suit all but the plainly incompetent or one who is knowingly
violating the federal law."
marks omitted).
Id. (citation and internal quotation
In other words,
[o]fficials are not liable for
bad guesses in gray areas; they are liable for transgressing bright
lines."
Robinson v. Payton, 791 F.3d 824, 829 (8th Cir. 2015)
(citing Davis v. Hall, 375 F.3d 703, 712 (8th Cir. 2004)).
''To receive qualified immunity, the government official must
first prove that he was acting within his discretionary authority."
Gonzalez, 325 F.3d at 1234 (citing Vinyard, 311 F.3d at 1346).
To
determine whether a government official was acting within the scope
32
Case 1:17-cv-00172-JRH-BKE Document 87 Filed 08/13/21 Page 33 of 37
of
his
discretionary
authority,
courts
consider
whether
the
official "(a) perform[ed] a legitimate job-related function (that
is, pursuing a job-related goal), (b) through means that were
within his power to utilize."
Holloman ex rel. Holloman v.
Harland, 370 F.Sd 1252, 1265 (11th Cir. 2004) (citation omitted).
Here, there is no question that Dr. Fountain was acting within the
scope of her discretionary authority at all relevant times.
"Once the defendants establish that they were acting within
their discretionary authority, the burden shifts to the plaintiff
to demonstrate that qualified immunity is not appropriate."
Gray
ex rel. Alexander v. Bostic, 458 F.Sd 1295, 1303 (11th Cir. 2006)
(quoting Lumley v. City of Dade City, 327 F.Sd 1186, 1194 (11th
Cir. 2003)).
Accordingly, the Court must turn to the evidence to
determine whether Plaintiff can demonstrate that Dr. Fountain is
not entitled to qualified immunity.
See Bowen v. Warden Baldwin
State Prison, 826 F.Sd 1312, 1319 (11th Cir. 2016).
To overcome
a qualified immunity defense, a plaintiff "must show that: (1) the
defendant violated a constitutional right, and (2) this right was
clearly established at the time of the alleged violation." Moreno
V. Turner, 572 F. App'x 852, 855 (11th Cir. 2014) (citing Whittier
V. Kobayashi, 581 F.Sd 1304, 1308 (11th Cir. 2009)).io
The Court may consider these issues in any order.
See Pearson v. Callahan,
555 U.S. 223, 236 (2009) ("The judges of the district courts . . . should be
permitted to exercise their sound discretion in deciding which of the two prongs
of the gualified immunity analysis should be addressed first in light of the
circumstances in the particular case at hand.") 33
Case 1:17-cv-00172-JRH-BKE Document 87 Filed 08/13/21 Page 34 of 37
''''Clearly
established
law'
is
law
that
is
sufficiently
established so as to provide public officials with 'fair notice'
that the conduct alleged is prohibited." Randall, 610 F.3d at 715
(citing
Hope,
536
U.S.
at
739).
The
Eleventh
Circuit
has
articulated three ways in which a law can be clearly established.
"First, the words of the pertinent federal statute or federal
constitutional provision in some cases will be specific enough to
establish clearly the law applicable to particular conduct and
circumstances and to overcome qualified immunity, even in the total
absence of case law."
Vinyard, 311 F.3d at 1350.
This means "the
conduct 'so obviously violates the Constitution that prior case
law is unnecessary.'"
80870-CIV, 2014
Hudson v. City of Riviera Beach, No. 12-
WL 1877412, at *13 (S.D.
Fla. May 9, 2014).
Second, "some broad statements of principle in case law are not
tied
to
particularized
facts
and
can
clearly
establish
law
applicable in the future to different sets of detailed facts."
Vinyard, 311 F.3d at 1351.
"The third and final way for a right
to become clearly established is 'by decisions of the U.S. Supreme
Court, Eleventh Circuit Court of Appeals, or the highest court of
the state where the case arose.'"
Joseph v. Bd. of Regents of
Univ. Sys. of Ga., No. l:20-CV-502, 2020 WL 6494202, at *13 (N.D.
Ga. May 8, 2020) (citing Jenkins by Hall v. Talladega City Bd. of
Educ., 115 F.3d 821, 826 n.4 (11th Cir. 1997)).
34
Case 1:17-cv-00172-JRH-BKE Document 87 Filed 08/13/21 Page 35 of 37
The Court determined a reasonable jury could find Dr. Fountain
violated a constitutional right.
Therefore, as long as that right
is clearly established. Dr. Fountain is not entitled to qualified
immunity at this time.
""A core principle of Eighth Amendment
jurisprudence in the area of medical care is that prison officials
with knowledge of the need for care may not, by failing to provide
care, delaying care, or providing grossly inadequate care, cause
a prisoner to needlessly suffer the pain resulting from his . . .
illness."
McElligott,
182 F.3d
at 1257.
Additionally, the
Eleventh Circuit has ^'recognized that prison officials may violate
the Eighth Amendment's commands by failing to treat an inmate's
pain."
Id.
Plaintiff asserts the facts in Mandel v. Doe, 888 F.2d 783,
785 (11th Cir. 1989) put Dr. Fountain on notice that her conduct
was unconstitutional.
In Mandel, the plaintiff sought medical
treatment aft.er jumping off the bed of a work crew pick-up truck
and immediately feeling "a sharp pain in his left leg and hip."
888 F.2d at 785.
The plaintiff complained of pain for at least
two months and requested to see a doctor or be sent to the hospital
for an x-ray of his leg on multiple occasions.
Id. The defendant,
who was a physician's assistant, denied the plaintiff's requests,
diagnosed his condition as muscle inflammation, and prescribed him
aspirin and muscle relaxants.
Id. at 786.
The plaintiff's
symptoms continued to worsen over time and by the time he was
35
Case 1:17-cv-00172-JRH-BKE Document 87 Filed 08/13/21 Page 36 of 37
released from the county road prison he could no longer walk.
Id.
After his release, he was examined by an orthopedic surgeon who
determined he sustained a fracture in his hip joint.
Id. at 787.
The delay in treatment caused the fracture to turn into ''a collapse
of
the
roundness
of
the
bone
and
made
prosthetic hip joint replacement . . .
necessary
Id.
a
complete
The Eleventh
Circuit found the defendant's
persistent refusal to order an X-ray, or to refer [the
plaintiff] to a doctor or a hospital for more experienced
and knowledgeable treatment, coupled with his utter lack
of concern for the well-being of an inmate with whose
care he had been entrusted, constitutes precisely the
deliberate
indifference
not
tolerated
by
the
Constitution.
Id. at 790.
The facts do not have to be identical to clearly
establish a right.
See Melton, 841 at 1227-28 (citing Mercado v.
City of Orlando, 407 F.3d 1152, 1159 (11th Cir. 2005)).
The Court
agrees that the facts in Mandel and the other cases it has cited
in its decision are sufficiently similar to put Dr. Fountain on
notice that her actions were unconstitutional.
Therefore, Dr.
Fountain is not entitled to qualified immunity.
IV. CONCLUSION
For the reasons stated above. Defendants' motion for summary
judgment is GRANTED IN PART and DENIED IN PART.
In particular.
Defendants' motion is GRANTED as to Plaintiff's Section 1983 claim
against Nurse Giddens, Nurse Wells, Ms. West, Warden Shepard, and
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Case 1:17-cv-00172-JRH-BKE Document 87 Filed 08/13/21 Page 37 of 37
Deputy Warden McGrew and DENIED as to Plaintiff^s Section 1983
claim against Dr. Fountain for direct liability.
The Clerk is
directed to ENTER JUDGMENT in favor of Nurse Giddens, Nurse Wells,
Ms. West, Warden Shepard, and Deputy Warden McGrew.
Accordingly,
this case shall proceed to trial as to Plaintiff's Section 1983
claim against Dr. Fountain and Plaintiff's state law claims against
the Georgia Department of Corrections and the Board of Regents of
the University System of Georgia.
ORDER ENTERED at Augusta, Georgia, this
of August,
2021.
J. RANDAE HALL,/CHIEF JUDGE
UNITED ^ATES DISTRICT COURT
IN
37
DISTRICT OF GEORGIA
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