Ross v. Fogam, et al.

Filing 134

ORDER granting in part and denying in part 107 Motion for Summary Judgment. Defendant's motion is granted with respect to his failure to refer Plaintiff to a pain specialist and Plaintiff's request for injunctive relief. Regarding Defendant's failure to refer Plaintiff to any specialist, however, Defendant's motion is denied. Signed by Chief Judge J. Randal Hall on 03/20/2018. (thb) Modified on 3/20/2018 (thb).

IN THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION

MILTON ROSS,

Plaintiff,
CV 411-198

V

DOCTOR ERIC FOGAM,
Defendant

ORDER

Before

judgment.

the

Court

is

Defendant's

motion

for

summary-

(Doc. 107.) The Clerk has given Plaintiff notice of

the summary judgment motion and the summary judgment rules, of

the right to file affidavits or other materials in opposition,
and

the

consequences

of

default.

Therefore,

the

notice

requirements of Griffith v. Wainwright, 772 F.2d 822, 825 (11th
Cir. 1985) (per curiam), have been satisfied.
reasons.
PART.

Defendant's motion is

For the following

GRANTED IN PART AND DENIED IN

I.

BACKGROUND

The facts construed in Plaintiff's favor, are as follows.

Plaintiff

Milton

Ross

is

an

inmate

at

Coastal

State

Prison

(^'CSP").

(Ross Dep., Doc. 108-2, at 9.) In 2002, Plaintiff was

shot in the back while fleeing from police after committing an

assault and armed robbery.

(Id. at 9-10, 16.)

convicted and sentenced to serve a life sentence.

Plaintiff was
(Id.)

A. Plaintiff's Prior Medical History

Bullet fragments have remained in Plaintiff's spine since
he was shot in 2002.

too

small

to

(Id. at 17.)

remove,

have

Those fragments, which are

damaged

causing him to be in severe pain.^

Plaintiff's

nerve

(Id. at 17-18.)

In 2004,

Plaintiff was diagnosed with cauda equina syndrome.^
Report, Doc. 125-2, at 2.)

tissue

(Apple

Between 2002 and 2006, Plaintiff saw

multiple doctors while incarcerated at Phillips State Prison

(«PSP") and was further diagnosed with spinal stenosis.^

(Id.)

Plaintiff's doctors prescribed a litany of different drugs to

treat

his

pain

including

Neurontin,

Contin,

Darvocent,

Ultram, and Baclofen, but Plaintiff felt no relief.

(Doc. 125-

4, at 15, 17; Ross Dep. at 24.)

MS

In 2006, after Plaintiff had

^ Describing his pain, Plaintiff testified that the "[i]nside of [his] rectum
feel[s] like an open wound."

(Ross Dep., at 18.)

^ Cauda eguina syndrome "is a problem caused by an injury to the nerves at the
end of the spinal cord," which causes "loss of feeling in the lower
extremities, loss of bowel and bladder control and chronic pain."

(Apple

Report at 2.)

^ Spinal stenosis "describes the loss of the normal size of the bony spinal
canal that protects the spinal cord and cauda equine." (Apple Report at 3.)

been given every ^^medicine conceivable, none of which worked,"
Plaintiff's doctor began to consider implanting a spinal cord
stimulator

("SCS").

{Doc.

125-4,

at

23.)

An

SCS

is

an

implantable device that uses electrical currents to block pain
signals.

(Apple Dep., Doc. 108-3, at 9.)

On September 26, 2006, Plaintiff met Dr. Efrim Moore, a

pain management specialist who decided Plaintiff was a proper
candidate for an SCS

implant.

(Doc.

125-10.)

A temporary

implant was placed in October 2006 and Plaintiff reported a
greater than fifty-percent pain reduction as a result thereof.
(Doc. 125-12.)
2006.

A permanent SCS was implanted on December 15,

(Id.)

On August 13, 2010, Plaintiff underwent surgery to repair a
fractured lead on his SCS.

(Apple Report at 4.)

Shortly after

this surgery. Plaintiff started exhibiting symptoms of a lifethreatening infection.

(Id.)

was

be

later

revealed

to

Because of this infection, which

methicillin-resistant

Staphylococcus

aureus ("MRSA"), doctors were forced to remove Plaintiff's SCS.

(Fogam

Aff.,

Plaintiff's

Doc.

SCS

Ill,

allegedly

t

8.)

The

recommended

specialist to discuss future treatment.

Ross Dep. at 37.)

doctors
that

who

Plaintiff

removed
see

a

(Doc. 125-24, at 2;

After his hospitalization. Plaintiff was

transferred to Men's State Prison ("MSP") on October 21, 2010.

(Doc. 125-23, at 2.)

With the SCS removed. Plaintiff's pain

returned to his pre-implant levels.

(Houten Dep., Doc. 110, at

150.)

B.

Defendant's Treatment Between 2010 and 2012

Plaintiff

was

transferred

on November 17, 2010.

first appointment

Eric Fogam.

with

to Coastal State Prison

(Id.)

CSP's

{^^CSP")

The next day. Plaintiff had his

medical

director.

Defendant Dr.

(Apple Report at 4; Ross Aff., Doc. 125-1, H 2.)

Defendant concedes that he reviewed Plaintiff's file before the

appointment and was aware that Plaintiff suffered from cauda
equina syndrome and was in chronic pain.
34, at 36-37, 80-81.)

(Fogam Dep., Doc. 125-

During this appointment. Plaintiff told

Defendant about a pending specialist consultation and Defendant
assured Plaintiff he would be sent to Dr. Moore.

37.)

(Ross Dep. at

Defendant renewed Plaintiff's prescriptions for Lyrica,

Baclofen, and Motrin, but did not refer him to Dr. Moore.
125-25.)

Defendant

consultation

and

denies

further

that

alleges

Plaintiff
that

had

a

Plaintiff

(Doc.
pending

was

not

complaining of uncontrolled pain, and therefore such a referral
was unnecessary.

(Fogam Dep. at 61-62, 75, 78.)

On December 2, 2010, during an appointment with another CSP

physician.

Dr.

Olantunji

Awe,

Plaintiff

continued to suffer uncontrolled pain.

Awe

responded

by increasing

complained

that

(Ross Dep. at 63.)

Plaintiff's

Baclofen

dosage

he
Dr.

and

prescribing a 90-day trial of Percogesic, a pain reliever.
Aff., Doc. 109,

H

10.)

{Awe

On February 7, 2011, at Plaintiff's

request. Defendant replaced Plaintiff's Baclofen with Neurontin,
a medication that treats neuropathic pain.
On

February

17,

2011,

Dr.

Awe

(Fogam Aff. H 11.)
ordered

an

Plaintiff's hip, which was injured due to a fall.
11.)

x-ray

of

(Awe Aff. H

During a March 31, 2011 appointment to discuss his x-ray

results with Defendant, Plaintiff reported that he continued to

experience uncontrolled pain, that the medication he was taking
was

not effective,

and

(Ross Dep. at 84.)

that he

needed

to see a specialist.

In response. Defendant allegedly accused

Plaintiff of malingering and told Plaintiff he "need[ed] to get
out of the

wheelchair and walk,"'^ and that there

was nothing

wrong with him other than "a mild case of arthritis."
Dep. at 84.)
Defendant's

On April 4, Plaintiff filed a grievance regarding
treatment.

Plaintiff's uncontrolled pain, and

desire to see a pain specialist.

CSP

policy.

(Ross

Defendant

allegedly

(Doc. 125-29.)

signed

responding to Plaintiff's complaint.^
Defendant

and

Dr.

Awe

continued

a

his

Pursuant to

witness

statement

(Doc. 125-30.)
to

medication over the next year and a half.

treat

Plaintiff

with

(Apple Report at 6.)

During each of these appointments. Plaintiff complained that he
*
^

Plaintiff's pain required the use of a wheel chair. (Fogam Dep. at 84.)
Defendant denies signing the witness statement. (Fogam Dep. at 101.)

was still in a great deal of pain, the prescribed medication had
no effect, and that he wanted to see a specialist.

at 63-64.)

(Ross Dep.

Unaware of any alternative treatment for Plaintiff

but believing a specialist might know better, on March 7, 2012,
Defendant ordered a consultation with an orthopedic specialist.

(Fogam Aff. H 6.)

Nevertheless, Defendant subsequently placed

Plaintiff's consultation on hold because:

(1)
The
underlying
nerve
conditions
causing
[Plaintiff's] chronic pain were irreversible; (2) they
were in the process of managing his chronic pain with
medication . . . . (3) there were indications - both

objective

and

subjective

-

that

medications

were

having some effect . . . and (4) they were not aware
of any more efficacious treatment . . . .

(Defendant's Statement of Material Facts, Doc. 107-2, % 66.)
Plaintiff, on the other hand, denies that his pain improved over

this period.

by

September

intensified.

B.

(Ross Dep. at 60.)

17,

2012,

Plaintiff's

pain

had

actually

(Fogam Dep. at 114.)

Defendant's Treatment Between 2012 and 2014

On

November

28,

2012,

Plaintiff

specialist. Dr. Michelle Cintron.
at

Defendant even conceded that

21.)

While

Defendant

Dr.

was

referred

to

a

(Cintron Dep., Doc. 126-33,

intended

Cintron

to

orthopedic

specialist.

is

physician.

(Id. at 7; Fogam Aff. f 24.)

send

a

Plaintiff

sports

to

an

management

Moreover, because of

confusion regarding Defendant's referral form. Dr. Cintron did

not assess Plaintiff for any kind of surgery.
26.)

{Cintron Dep. at

Instead, Dr. Cintron only recommended Defendant increase

Plaintiff's Neurontin dosage.

(Id. at 45.)

Defendant asserts

he was unaware of these referral errors and that he assumed Dr.
Cintron

had

evaluated

candidate for surgery.

Plaintiff

and

decided

he

was

not

a

(Fogam Aff. ^ 28.)

On January 30, 2013, Plaintiff was sent to a neurologist.
Dr. Edward Mendoza.

Mendoza

{Mendoza Dep., Doc. 126-36, at 11.)

recommended

ordering
structure.

an

adjusting

electromyogram
(Mendoza

to

Aff., Doc.

Plaintiff's
examine
108,

H

medication

Plaintiff's

12.)

Dr.

and
nerve

In July 2014,

Defendant left his position at CSP and provided no additional
treatment to Plaintiff.

(Fogam Dep. at 15.)

C. Plaintiff's Care From 2014 to Present

Subsequent to Defendant's departure from CSP, Dr. Awe has
taken over as medical director.

continued

to complain

about

his

(Awe

pain

Aff.

and

H

on

3.)

July

Plaintiff

23,

2014,

Plaintiff had another appointment with Dr. Mendoza, who again

recommended adjusting Plaintiff's medication.

(Mendoza Aff. ^

25.)

Over the next two years. Plaintiff continued to receive
treatment from Dr. Awe and Dr. Mendoza.

Plaintiff

was

evaluated

by

an

On September 21, 2016,

orthopedic

surgeon.

Dr.

John

DeVine.

(DeVine

reported

that

Dep.,

Doc.

surgical

110-1,

intervention

at

34-40.)

was

not

Dr.

warranted

recommended Plaintiff be referred to a pain specialist.
39.)

DeVine

and

(Id. at

Dr. DeVine did not, however, evaluate Plaintiff for the

placement of an SCS or a pain pump.

(Id. at 48.)

Plaintiff was next seen by a pain specialist at Augusta

University

Hospital,

Dr.

Dan

Martin,

on

(Martin Dep. Vol. I, Doc. 110-2, at 33.)
that

Plaintiff

months.

continue

(Id. at 44.)

his

November

14,

2016.

Dr. Martin recommended

medications

and

return

in

two

Plaintiff returned on February 27, 2017,

and while Dr. Martin did not believe Plaintiff was a suitable

candidate for an SCS replacement, he referred Plaintiff for a

second opinion.

(Martin Dep. Vol. II, Doc. 126-35, at 15-16.)

Plaintiff initiated this suit on August 8, 2011.

alleges

Defendant

violated

his

Eighth

Amendment

Plaintiff

rights.

Defendant now moves for summary judgment and argues that he is
entitled to qualified immunity.

II.

LEGAL STANDARD

A motion for summary judgment will be granted if there is

no disputed material fact and the movant is entitled to judgment
as a matter of law.

Fed. R. Civ. P. 56(a).

they could affect the results of the case.

Facts are material if

Anderson v. Liberty

Lobby, Inc.; 477 U.S. 242, 248 (1986).

The court must view

facts in the light most favorable to the non-moving party and
draw all inferences in its favor.

Ltd.

V.

Zenith

Radio

Corp.,

Matsushita Elec. Indus. Co.,

475

U.S.

574,

587

(1986).

The

movant initially bears the burden of proof and must demonstrate
the

absence

of

a

disputed

material

Catrett, 477 U.S. 317, 323 (1986).

fact.

Celotex

Corp.

v.

The movant must also show no

reasonable jury could find for the non-moving party on any of
the essential elements.

Fitzpatrick v. City of Atlanta, 2 F.3d

1112, 1115 (11th Cir. 1993).

If the movant carries its burden, the non-moving party must

come forward with significant, probative evidence showing there
is a material fact in dispute.

Id. at 1116.

The non-movant

must respond with affidavits or other forms of evidence provided

by Federal Rule of Civil Procedure 56.

Id. at 1116 n.3.

The

non-movant cannot survive summary judgment by relying on its

pleadings or conclusory statements.
1032, 1033-34 (11th Cir. 1981).

Morris v. Ross, 663 F.2d

After the non-movant has met

this burden, summary judgment is granted only if "the combined

body of evidence is still such that the movant would be entitled
to

a

directed

verdict

at

trial

-

that

is,

reasonable jury could find for the non-movant."
F.3d at 1116.

such

that

no

Fitzpatrick, 2

III.

DISCUSSION

In his amended complaint, Plaintiff alleges that Defendant

was

deliberately

indifferent

to

his

serious

medical

Plaintiff seeks money damages and equitable relief.

need.

Defendant

contends that summary judgment is appropriate because he is

entitled to qualified immunity.

Defendant further contends that

Plaintiff's demand for equitable relief is vague and overbroad.
A.

Qualified Immunity

Qualified immunity protects government officials from suit

so long as their conduct does not violate clearly established
law.

Morris v.

Town of

(11th Cir. 2014).

Lexington,

748

F.3d

1316,

1321

n.l5

To be entitled to qualified immunity, the

defendant must first show he was acting within his discretionary

authority.

Holloman ex rel. Holloman v. Harland, 370 F.3d 1252,

1265 (11th Cir. 2004).

The burden then shifts to the plaintiff

who must show qualified immunity is not appropriate.

Lee v.

Ferraro, 284 F.3d 1188, 1194 (11th Cir. 2002).

To do so, the plaintiff must establish that the officer's
conduct (1) violated a constitutional right, and (2) that right

was

clearly

established

when

the

violation

occurred.

Id.

Plaintiff does not dispute that Defendant was acting within his
discretionary

authority.

Therefore

Plaintiff

must

show

Defendant violated his constitutional right and that right was
clearly established.
10

1. Constitutional Violation

To

succeed

on

a

deliberate

indifference

claim/

the

plaintiff must show: (1) he had a serious medical need; (2) that
the defendant was deliberately indifferent to that need; and (3)
that indifference caused the plaintiff's injury.

Goebert v. Lee

Cnty./ 510 F.3d 1312, 1326 {11th Cir. 2007).
The

first

element

serious medical need

of

-

a

deliberate

indifference

claim

-

requires that the plaintiff show his

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." Goebert/ 510 F.3d at 1326 (internal quotations and

citations omitted); Brown v. Johnson, 387 F.3d 1344, 1351 (11th
Cir.

2004)

("[T]he

medical

need

must

be

one

that,

if

left

unattended/ poses a substantial risk of serious harm.").

To prove the second element of a deliberate indifference
claim,

the

plaintiff

deliberately
need.

must

indifferent

establish

to

the

that

the

plaintiff's

defendant

serious

was

medical

To meet this standard, a plaintiff "must prove three

facts: (1) subjective knowledge of a risk of serious harm; (2)
disregard of that risk; and (3) by conduct that is more than
mere negligence."
The

causation

Brown, 387 F.3d at 1351.

last

element

-

requires

of

a

that

deliberate

a
11

indifference

plaintiff

"show

claim

that

-

the

constitutional violation caused his injuries."

Cnty., 268 F.3d 1014, 1028 (11th Cir. 2001).

established by the

defendant's

constitutional violation.

Plaintiff's

Marsh v. Butler

Causation can be

personal participation in

the

Goebert, 510 F.3d at 1327.

deliberate

indifference

claims

revolve

around

two incidents: (a) Defendant's failure to refer Plaintiff to any

kind of specialist from November 17, 2010 to November 28, 2012;
and

(b)

Defendant's

failure

to

refer

Plaintiff

to

a

pain

management specialist between November 28, 2012 and June 2014.
Plaintiff also seeks injunctive relief to ensure he receives
adequate medical care in the future.
a.

Failure to Refer Plaintiff to a Specialist

Defendant does not

dispute,

and

the

record

that Plaintiff has a serious medical need.

Plaintiff was first

diagnosed with cauda equina syndrome in 2004.
2.)

establishes,

(Apple Report at

Cauda equina syndrome causes chronic pain and mandates

treatment.

(Fogam

Dep.

at

179;

Apple

Report

at

2-3.)

Accordingly, Plaintiff has established he has a serious medical
need.

Plaintiff

indifferent

to

must
that

now
need

prove
and

Defendant
that

was

deliberately

indifference

caused

Plaintiff's injury.

To

prove

the

first

sub-element

of

the

deliberate

indifference element - subjective knowledge - a defendant "must
both be aware of facts from which the inference could be drawn
12

that a substantial risk of serious harm exists, and he must also
draw

the

(1994).

inference."

Farmer

v.

Brennan,

511

U.S.

825,

837

The defendant is not liable for failing to take action

if "he should have perceived the risk but did not . . . ."
at 838.

Id.

Nevertheless, subjective knowledge can be inferred when

the risk was obvious.

Id. at 842.

"Whether a prison official

had the requisite knowledge of a substantial risk is a question
of fact subject to demonstration in the usual ways, including
inference from circumstantial evidence."

There

subjective

is

evidence

in

knowledge

the

of

Id.

record

to

Plaintiff's

show

Defendant

uncontrolled

had

pain.

Plaintiff argues that the signed witness form - responding to
Plaintiff's

grievance

that

he

was

not

receiving

adequate

treatment for his pain - is evidence of Defendant's subjective
knowledge.

Despite his name being written at the top of the

witness form. Defendant denies signing that form and argues that

there is no evidence proving otherwise.
works

for

CSP,

testified

that

Yet Dr. Awe, who also

responding

to

a

grievance

filling out such a form was standard protocol at CSP.
Dep.,

Doc.

126-32,

at

65-66;

Fogam

Dep.

at

by

(Awe

101.)

An

organization's routine practice can be used as evidence to prove
that practice was followed on a particular occasion.
Evid. 406.

Thus, a jury could infer from

Fed. R.

CSP's policy that

Defendant signed the witness statement responding to Plaintiff's
13

grievance and therefore had subjective knowledge of Plaintiff's
uncontrolled pain.

To

satisfy

the

second

sub-element

of

the

deliberate

indifference element - disregard of the risk - a plaintiff must
show the defendant failed to take reasonable measures to abate

the

risk

of

hairm.

Farmer,

511

U.S.

at

84 7.

Even

if

the

defendant knew about the risk, he will not be held liable if he

acted reasonably in response thereto.
Glee,

625

F.3d

disregard

can

misconduct.
1986).

1313,

be

1317

{11th

established

Pourmoghani-Esfahani v.

Cir.

through

2010).

a

Nevertheless,

single

episode

of

Rogers v. Evans, 792 F.2d 1052, 1062 (11th Cir.

As with the other sub-elements, "[d]isregard of the risk

is . . . a question of fact that can be shown by standard
methods."

Goebert, 510 F.3d at 1327.

Plaintiff presents evidence that Defendant disregarded the
risk of Plaintiff's serious medical need.

Dr.

David

Apple,

treatment,

no

medication

was

M.D.,

concluded

reasonable
sufficient

his

own

expert

after

six

physician

could

to

Plaintiff's

treat

Report at 10; Apple Dep. at 139.)
that

that

Plaintiff's expert.

disagrees

conclude

months
that

pain.

of

oral

(Apple

Although Defendant points out
with

Dr.

Apple's

assessment,

summary judgment does not allow a court to decide which expert
is

more

credible.

See

Waldrop

14

v.

Evans,

871

F.2d 1030,

1035

(11th

Cir.

1989)

(refusing

to

grant

summary

judgment

where

parties' experts disagreed about whether doctor's treatment was

grossly

incompetent

or

otherwise

deliberately

indifferent).

Accordingly, Plaintiff has presented evidence that Defendant's
failure to refer Plaintiff to a specialist was unreasonable.
To

establish

the

final

sub-element

of

deliberate

indifference, a plaintiff must show the defendant's conduct was

more than grossly negligent.

Goebert, 510 F.3d at 1326.

The

plaintiff must prove the provider's response to his medical need
"was

more

than

merely

accidental

inadequacy,

negligence

in

diagnosis or treatment, or even medical malpractice actionable
under state law."

Cir.

2011).

Nimmons v. Aviles, 409 F.App'x 295, 297 (11th

Medical treatment violates the

Eighth Amendment

when it is "so grossly incompetent, inadequate, or excessive as
to

shock

fairness."

the

conscience

or

to

be

intolerable

Rogers, 792 F.2d at 1058.

to

fundamental

A defendant disregards a

risk by more than gross negligence by providing treatment that

is grossly inadequate, easier but less effective, or so minimal
that it amounts to no treatment at all.

McElligott v. Foley,

182 F.3d 1248, 1255 (11th Cir. 1999),

Plaintiff alleges that Defendant's insistence on a course
of

treatment he

knew

was ineffective

than grossly negligent.

is conduct that is more

Greeno v. Daley, 414 F.3d 645 (7th Cir.

2005), is instructive on whether Defendant's conduct rose to the
15

level

of

a

experiencing

constitutional

severe

violation.

heartburn

and

There,

vomiting

a

blood

prisoner

repeatedly

complained to his doctors that their prescribed treatment of
Maalox and Tagamet provided no relief.

After receiving the same

ineffective treatment for two years, the prisoner was finally

referred to a gastrointestinal specialist who diagnosed him with

an esophageal ulcer and prescribed Prilosec.
Seventh

Circuit found

that the

Id. at 651.

plaintiff's

complaint

The

was not

merely a disagreement with the medical opinion of his doctors.
Id. at 655.

Instead, the court found that spending a year-and-

a-half "doggedly persist[ing] in a course of treatment known to
be ineffective," could establish an Eighth Amendment violation.
Id. at 654-55.

Here,

like

Greeno,

there

were

numerous

signs

that

medical treatment provided by Defendant was ineffective.

the

When

Plaintiff was transferred to CSP, his medical records showed he

had a pending consultation for pain management.®

(Doc. 125-23.)

®

is

Defendant

argues

that

the

form

in

Plaintiff's

file

not

a

valid

consultation form because it was issued when Plaintiff was transferred from

PSP

to MSP.
(Fogam Dep. 75.)
Yet Plaintiff alleges that Defendant
acknowledged that Plaintiff had a pending consultation. (Ross Dep. at 36.)
Accordingly, even if Plaintiff's consultation is invalid, there is evidence
that,

at

another

the

time

provider

of

Plaintiff's

believed

it

first

reasonable

appointment.

for

Defendant

Plaintiff

to

be

knew

seen

that

by a

specialist.

Defendant also argues that the consultation form is inadmissible because it
has not been properly authenticated.
However, Federal Rule of Civil
Procedure

56

was amended

in

2010

and

parties

are

no

longer

required

authenticate all documents to be considered at summary judgment.

to

Agee v.

Chuqach World Servs Inc., 2014 WL 5795555, at *5 (N.D. Ala. Sept. 30, 2014).

Instead, parties only need to show the document can be presented in an
admissible form at trial.

Fed. R. Civ. P. 56(c)(2) ("A party may object that
16

Defendant allegedly acknowledged the existence of Plaintiff's
consultation

and

assured

Plaintiff

specialist.

(Ross Dep. at 37.)

he

would

be

referred

to

a

Defendant even concedes that by

March 1, 2012, he was unaware of any alternative treatment for
Plaintiff and believed he needed to be referred to a specialist.

(Fogam Aff. H 16.)

Nevertheless, that consultation was put on

hold because Plaintiff's pain allegedly improved.
at 106-07.)

(Fogam Dep.

Yet Plaintiff denies that his pain improved and

Defendant's own testimony supports Plaintiff's assertion.
at 114.)

(Id.

Furthermore, when Plaintiff complained about seeing a

specialist, Defendant accused him of malingering despite his
knowledge that Plaintiff had a condition that normally caused
excruciating

pain.

(Ross Dep. at 37.)

Plaintiff's expert

stated that Defendant's persistence on this course of treatment

was "grossly inadequate."

(Apple Report at 10.)

A reasonable

juiry could consider this evidence and conclude that Defendant's
treatment was grossly inadequate, easier and less effective, or
so cursory that it amounted to no treatment at all.

Defendant's argument that this
medical opinion is unconvincing.

was a mere difference of

In Adams v. Poag, 61 F.3d 1537

(11th Cir. 1995), the parents of a deceased inmate alleged that
a doctor's failure to schedule a follow-up appointment amounted
the material cited to support or dispute a fact cannot be presented in a form
that would be admissible in evidence.").
Here, because Plaintiff has shown
these documents can be authenticated, the consultation form can be considered
for summary judgment purposes.
17

to deliberate indifference.

Id. at 1546,

The Eleventh Circuit

found that the plaintiffs were essentially alleging that the
doctor did not diligently pursue alternative treatments, which
did not rise beyond negligence.

The plaintiffs had not proven

the doctor knew the appropriate treatment and failed to provide
that

treatment.

Id.

Here,

Defendant

admits

that

he

knew

Plaintiff was not responding to his treatment as of March 7,
2012, and that an orthopedic specialist could help Plaintiff.
After

coming

to

this

conclusion,

however,

Plaintiff's referral on hold for eight months.

108.)

Accordingly,

Defendant's

conduct

Defendant

put

(Fogam Dep. at

was

not

a

mere

difference of medical opinion.

As

the

last

element

of

a

deliberate

indifference

claim,

"[a] plaintiff must also show that the constitutional violation
caused his injuries."

shown

by

the

Marsh, 268 F.3d at 1028.

defendant's

constitutional violation.

asserts

that

Plaintiff

personal

This can be

participation

Goebert, 510 F.3d at 1327.

is

not

a

good

candidate

in

the

Defendant

for

an

SCS

replacement, which presumably was the only realistic treatment
available
causation.

at

that

time,

and

Dr. Daniel Martin,

therefore

cannot

establish

who evaluated Plaintiff for an

SCS replacement in 2016, testified that he did not consider
Plaintiff to be a suitable candidate for an SCS.

18

(Martin Dep.

Vol. II at 15-16.) It appears that Dr. Martin's biggest concern

was that Plaintiff only reported a fifty percent reduction in

pain as a result of his original SCS implant.

(Id. at 11-12.)

Dr. Martin stated that when a patient gives a low pain reduction
estimate,

it

shows

the

patient

is

uncertain

about

effectiveness of the treatment, which is a "bad sign."
12.)

the

(Id. at

He explained:

The patients that really do well with this come in and
you don't even have to ask them.
They say, I know
you're taking this temporary lead out today and I wish
you weren't doing it because it's helping so much .
. . But when they have to think about it, even if they
say 95 percent . . . . I don't generally recommend it.
Id.

Nevertheless, Plaintiff reported similar numbers and was

deemed

a

suitable

candidate

when

permanent SCS device in 2006.

he

was

implanted

(Doc. 125-12.)

with

a

Moreover, Dr.

Apple testified that given the severity of Plaintiff's pain, a
I

fifty percent reduction would be sufficient to warrant an SCS,
even with the risk of infection.
Vol. II at 9.)

(Apple Dep. at 65; Martin Dep.

Because Plaintiff has submitted evidence that he

is a candidate for an SCS replacement and Defendant denied him
access to that treatment, causation has been satisfied.
Plaintiff has come forward with evidence in the record that

would

support

finding

that

Defendant

indifferent to Plaintiff's medical needs.

was

deliberately

Plaintiff's condition

causes him to experience chronic pain and is a serious medical

19

need.

Despite Plaintiff's repeated complaints that medication

provided no relief. Defendant continued to pursue a course of
treatment he knew to be ineffective.

If a factfinder believes

Dr. Apple's testimony regarding the appropriateness of an SCS

replacement,

it

could

find

Defendant's

failure

to

refer

Plaintiff to a specialist caused him to needlessly suffer severe
pain.

b.

Failure to Refer Plaintiff to a Pain Specialist

Plaintiff also claims that Defendant's failure to send him

to

a

pain

deliberate

supports

specialist

between

indifference.

finding

constituted

more

Nothing

that
than

2012

and

in

Defendant's

mere

support from his own expert.

2014

the

record,

choice

negligence.

amounted

of

to

however,

referrals

Plaintiff

finds

no

Dr. Apple claimed Defendant's care

between 2010 and 2012 was grossly inadequate, but there is no
similar

level

referrals.

of

condemnation

about

(Apple Report at 10.)

Defendant's

choice

of

On the contrary, Dr. Apple

testified that "the neurologist [Dr. Mendoza] was probably an

okay

referral."

Plaintiff's

claim

(Apple
is

no

Dep.
more

at

139.)

than

a

To

this

difference

opinion between an inmate and his physician.

in

extent.
medical

See Hernandez v.

Sec'y of Fla. Dept. of Corr., 611 F. App'x 582, 584 (11th Cir.
2015).
Defendant

Dr.
to

Apple
follow

did
Dr.

testify

that

Cintron's
20

it

advice

was

unreasonable

that

Plaintiff

for
only

required an increase in his Neurontin dosage, but such a mistake
would only amount to negligence, which is not actionable under
the

Eighth

Amendment.

See

Nimmons,

409

F.

App'x

at

297.

Defendant was not continuing the same treatment that had been

ineffective in the past.

Instead, he referred Plaintiff to

specialists who Defendant believed were best suited to provide
relief.

Defendant's

failure

to

refer

Plaintiff

to

a

pain

specialist was not treatment that was easier but less effective,
grossly

inadequate,

or

so

minimal

that

it

amounted

to

no

treatment at all.

2.

Clearly Established Right

Defendant
indifferent

to

argues

that

Plaintiff's

even

serious

if

he

medical

was
need,

deliberately
refusing

to

refer Plaintiff to a specialist for two years did not violate a

clearly
applies.

established

right

and

therefore

qualified

immunity

In the Eleventh Circuit, clearly established rights

are those set by precedent of the United States Supreme Court,
the Eleventh Circuit, or the law of the highest court of the
state where the violation took place.

Snider v. Jefferson State

Cmty. Coll., 344 F.3d 1325, 1328 (11th Cir. 2003).

The case

does not need to be factually identical before the right is

clearly established.

Amnesty Int'l, USA v. Battle, 559 F.3d

1170, 1185 (11th Cir. 2009).

Instead, the defendant only needs

21

fair

notice

that

his

constitutional rights.

conduct

violated

the

plaintiff's

Id.

Defendant argues that Plaintiff's right to be referred to a

specialist was not clearly established.

The law is clearly

established, however, ^^that knowledge of the need for medical
care and an intentional refusal to provide that care constitutes
deliberate

indifference."

Furthermore,

"[a]

Poag,

core

61

principle

F.3d

of

at

Eighth

1543-44.

Amendment

jurisprudence . . . 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 or her illness."
McElligott,

182

F.3d

at

1257.

Therefore,

Defendant's

entitlement to qualified immunity depends on whether he knew his
medical care was ineffective and that a specialist was needed to

provide

any real relief.

forward

with

evidence

Id.

to

Because

support

such

Plaintiff
a

has come

finding,

summary

judgment is inappropriate.
Defendant's

reliance

on

Gilmore

(11th Cir. 2013), is unconvincing.

v.

Hodges,

738

F.3d

266

In Gilmore, a prisoner was

not provided hearing aid batteries for several years despite his
doctor's

recommendation

that

the

prisoner

use

such

aids.

Although the court decided that treatable hearing loss was a
serious medical condition, it recognized such a finding had not
22

been made by the United States Supreme Court, Eleventh Circuit,
or that state's highest court before the violation occurred.
Gilmore, 738 F.3d at 278.

Here, Plaintiff's serious medical

need is management of his chronic pain.

The Eleventh Circuit

has repeatedly held that pain is a serious medical condition.
See e.g., McElligot, 182 F.3d at 1256 (abdominal pain was a
serious medical need); Farrow v.

(11th

Cir.

serious

2003)

medical

(pain

from

need).

West,

teeth

320 F.3d 1235, 1244-45

cutting

Therefore,

into

gums

Defendant's

was

motion

a

for

summary judgment is DENIED.

B. Equitable Relief

In his amended complaint, Plaintiff also seeks ''equitable

relief

necessary

to

ensure

that

medical care in the future."

Mr.

Ross

receives

adequate

(Am. Compl., Doc. 17, at 26.)

During his deposition, however. Plaintiff could not describe
what that relief

should entail beyond ensuring

appropriate medical care.

he

(Ross Dep. at 85-87.)

was given

Plaintiff's

proposed equitable relief is essentially a demand that Dr. Awe,
the

current

CSP

medical

director,

not

engage

in

deliberate

indifference that violates his Eighth Amendment rights.^

The

'
Plaintiff did not identify whether his suit was against Defendant personally

or in his official capacity.

Nevertheless, Plaintiff's claim for equitable

relief

in his

is aimed at Defendant

McDaniel,

814

F.2d

600,

604

n.2

official

(llth

Cir.

capacity.

1987)

See

Lundgren v.

(captions

"are

not

determinative as to the parties to the action").
Because officers sued in
their official capacity are automatically substituted upon an official's
23

Court cannot issue
conduct.

1200-01

See

(11th

a

Burton

Cir.

general
v.

City

1999)

injunction against all illegal
of

Belle

(refusing

Glade,

to

178

grant

an

F.3d

1175,

injunction

prohibiting the City from engaging in illicit discrimination in
future annexation decisions); Payne v. Travenol Labs., Inc., 565

F.2d 895, 897 (5th Cir. 1978) ("'[O]bey the law' injunctions
cannot be sustained."); Redding v. Georgia, 2012 WL 7004986, at

*3 (M.D. Ga. Dec. 20, 2012) (proposed injunction

commanding

that Defendants . . . provide Plaintiff with the benefits of
medical treatment," was too broad to be enforceable), report and

recommendation adopted, 2013 WL 427761 (M.D. Ga. Feb. 4, 2013);
see also 18 U.S.C. § 3626(a).

because

he

^^may

because

Plaintiff

not
is

be

Plaintiff's plea for lenience

a judge

or lawyer"

represented

by

is

counsel.

unconvincing
Plaintiff's

counsel had ample time to move to amend Plaintiff's complaint to
set out a valid claim for equitable relief.
Plaintiff's desire for an assurance that his pain will be

properly treated is understandable.
constant and excruciating pain.

The record shows he suffers

The record also shows, however,

that treating Plaintiff's condition is no simple matter and that
it is very likely that Plaintiff will be in pain for the rest of
his life even with proper medical intervention.

departure, Plaintiff's equitable

relief

complaint to add Dr. Awe as a defendant.
24

may proceed

(Apple Dep. at

without amending

See Fed. R. Civ. P. 25(d).

his

49.)

The Court will not complicate that treatment by demanding

Plaintiff's physicians do what the law already requires.

IV.

CONCLUSION

Upon the foregoing, Defendant's motion for summary judgment
(doc. 107) is GRANTED IN PART and DENIED IN PART.

Defendant's

motion is GRANTED with respect to his failure to refer Plaintiff

to a pain specialist and Plaintiff's
relief.

request for injunctive

Regarding Defendant's failure to refer Plaintiff to any

specialist, however, Defendant's motion is DENIED.
ORDER ENTERED at Augusta, Georgia, this

day of March,

2018.

jS-ran^al hall, otief judge
UNITJ^O STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA

25