Palmer v. Hininger et al
REPORT AND RECOMMENDATIONS of the Magistrate Judge that the Court DENY 33 Defendants' MOTION for Summary Judgment and DENY Plaintiff's 31 MOTION for Summary Judgment. Any party seeking to object to this Report and Recommendation is o rdered to file specific written objections within fourteen (14) days of the date on which this Report and Recommendation is entered. (Objections to R&R due by 2/23/2018). ORDER directing service of the REPORT AND RECOMMENDATIONS of the Magistrate Judge. Signed by Magistrate Judge R. Stan Baker on 2/9/2018. (csr)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
STACY CLYDE PALMER,
CIVIL ACTION NO.: 5:16-cv-39
JOHN HULETT; M. McCLEOD; and JULIA
ORDER and MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Presently before the Court are Plaintiff’s and Defendants’ Motions for Summary
Judgment. (Docs. 31, 33.) Plaintiff filed a Response to Defendants’ Motion. (Doc. 38.) Also
before the Court are Plaintiff’s Motion for Discovery Sanctions, Motion for Proposed Settlement,
Motion in Limine, and Motion for Copy of the Docket Sheet and Subpoenas. (Docs. 29, 30, 42,
43.) For the reasons which follow, I RECOMMEND the Court DENY Defendants’ Motion for
Summary Judgment and DENY Plaintiff’s Motion for Summary Judgment. The Court DENIES
Plaintiff’s Motion for Discovery Sanctions and Motion for Proposed Settlement, DISMISSES as
premature Plaintiff’s Motion in Limine, and DISMISSES as moot in part and DISMISSES as
premature in part Plaintiff’s Motion for Copy of the Docket Sheet and Subpoenas.
Plaintiff became an inmate at Coffee Correctional Facility in December 2015, during
which time he underwent an intake screening by Defendant Hulett. 1 (Doc. 38, p. 1.) Prior to
arriving at Coffee Correctional, Plaintiff used corrective lenses for astigmatism in each eye, and
he renewed this prescription every three to five years. (Id.) Plaintiff complained during his
intake about having diminished vision and pain in his right eye. (Id. at p. 2.) Plaintiff submitted
a health services request form on December 21, 2015, and stated he needed to see the eye doctor,
an examination, and glasses. According to Plaintiff, this request was worded to show it was
made due to pain and diminishing vision he experienced. Defendant Hester responded to the
request by writing “opto” and later wrote an appointment had been scheduled. (Id.) However,
Plaintiff’s appointment was cancelled on the spot, despite Plaintiff informing medical staff he
was experiencing pain and pressure in his eye, he was blind, and it was an emergency. Plaintiff
informed Defendant McCleod during a follow-up visit for his seizures that he lost vision in his
right eye, but Defendant McCleod wrote that Plaintiff was experiencing problems in his left eye.
Plaintiff submitted another health services request form on February 16, 2016, and stated
he was having problems with his right eye, had pressure in it, and could not see out of the side of
his right eye. (Id. at p. 3.) Defendant Hester wrote “opto” on the form. In addition, Plaintiff
submitted yet another health services request form on March 9, 2016. In this request, Plaintiff
stated he had made several previous requests and he was completely blind in his right eye, and he
asked to see a doctor. (Id.) He was informed that his concerns had already been addressed.
Plaintiff then filed a grievance on March 23, 2016, and complained about the delay in medical
Although Plaintiff has filed his own Motion for Summary Judgment, the Court views all evidence and
facts in the light most favorable to him.
staff examining him regarding the blindness in his right eye and again stated he had an
emergency. (Id.) Defendant Hulett examined Plaintiff using an ophthalmoscope and a Snellen
eye chart. (Id. at p. 4.) Plaintiff had an appointment with Dr. Neal Lovett scheduled for April 1,
2016. (Doc. 39, p. 6.)
During treatment for an unrelated medical problem on March 31, 2106, Defendant
McCleod examined Plaintiff’s eye, and that examination revealed Plaintiff had no vision in his
right eye and could only see “black[.]” (Id.) Plaintiff saw Dr. Lovett the next day, who
diagnosed Plaintiff with retinal detachment of his right eye and who made an appointment with
Dr. Robert King at the Georgia Eye Institute for April 11, 2016. Dr. King confirmed Dr.
Lovett’s diagnosis, told Plaintiff he may need surgery, and explained the benefits and risks
associated with the surgery. (Id. at p. 7.) Plaintiff verbally declined to go forward with the
surgery on April 15, 2016, and later reduced his decision to writing on April 27, 2016. (Id. at
p. 8.) Plaintiff has not had surgery to correct his right eye problems, as the risks of surgery
outweigh the small chance of success the surgery could provide. (Id.)
In their Motion for Summary Judgment, Defendants assert Plaintiff cannot show they
were subjectively aware of his serious medical need or that they were deliberately indifferent to
that need. (Doc. 33-3, p. 7.) Instead, Defendants allege there is nothing in the record indicating
Plaintiff or medical staff at Coffee Correctional considered Plaintiff’s right eye issue to be an
urgent matter until March 23, 2016. At that time, Defendants contend Plaintiff complained of
right eye pain and blindness and was examined and scheduled for an optometry appointment the
following week. (Id.) Defendants aver that, once they were aware of Plaintiff’s serious medical
need, they (and other members of the medical staff) “acted swiftly and appropriately to treat
Plaintiff’s condition.” (Id. at p. 8.)
Plaintiff states Defendants were deliberately indifferent to the pain he experienced in his
right eye and that the delay in treatment caused the loss of vision in his right eye. (Doc. 31, p. 5.)
Plaintiff maintains his loss of vision could have been avoided had Defendants treated his eye in a
prompt manner when he first informed Defendants of the pain in his eye in December 2015. (Id.
at pp. 5–6.) Plaintiff asserts the optometrist and Dr. King both told him that, had they examined
Plaintiff in December 2015 or January 2016, they could have saved his vision. (Id. at pp. 6–7.)
Prior to addressing summary judgment issues, the Court addresses the other Motions
Plaintiff’s Motion for Discovery Sanctions (Doc. 29)
Plaintiff asserts Defendants’ counsel came to Coffee Correctional on May 19, 2017, to
take his deposition. However, Plaintiff alleges he was not given notice prior to being taken for
this deposition. (Doc. 29, p. 1.) Plaintiff also alleges he received a letter from Defendants’
counsel on May 22, 2017, which was dated May 18, 2017, and noticed his deposition for May
19, 2017. (Id. at p. 2.) Plaintiff asserts Defendants’ counsel did not provide him with reasonable
notice of the deposition and, as a result, the Court should strike Plaintiff’s deposition testimony.
The Court DENIES Plaintiff’s Motion. The Court accepts as true Plaintiff’s assertion
that he did not receive notice of the deposition until three (3) days after it occurred. (Doc. 33-2.)
However, the Court’s review of the transcript of Plaintiff’s deposition reveals Plaintiff voiced no
objection to the timing of the notice of his deposition or to the taking of his deposition.
See Bracey v. Price, Civil Action No. 09-1662, 2012 WL 6015727, at *2 n.1 (W.D. Pa. Dec. 3,
2012) (denying plaintiff’s motion to strike deposition based, in part, on claim of no advance
notice of the deposition, as required by Federal Rule of Civil Procedure 30(b)(1)).
Plaintiff cannot now object to having failed to receive reasonable notice of his deposition without
having done so during the taking of his deposition. Fed. R. Civ. P. 30(c)(2) (“An objection at the
time of the examination—whether . . . to the manner of taking the deposition, or to any other
aspect of the deposition—must be noted on the record, but the examination still proceeds.”)
Plaintiff’s Motion for Proposed Settlement (Doc. 30)
In his Motion for Proposed Settlement, Plaintiff reiterates many of the assertions set forth
in his Motion for Discovery Sanctions. Additionally, Plaintiff maintains he should be awarded
compensatory and punitive damages in the amount of $2,699,968.25 due to the physical injury
he suffered as a result of Defendants’ deliberate indifference to his serious medical needs.
(Doc. 30, pp. 10, 12–13.) Plaintiff represents he will sign a confidentiality agreement upon
approval of this settlement and the payment of these funds. (Id. at p. 13.)
The Court DENIES Plaintiff’s Motion. While Plaintiff is free to make an offer of
settlement to Defendants, he need not file a Motion to do so. In addition, the Court is under no
obligation to order Defendants to enter into an agreement of settlement. Should this Report and
Recommendation be adopted as the opinion of the Court, the parties are free to enter mediation
through a private mediator or through the Court or proceed to trial.
Plaintiff’s Motion in Limine (Doc. 42)
Plaintiff contends that Defendants’ counsel asked many irrelevant questions relating to
his personal life and his criminal record during his deposition. Plaintiff seeks to have certain
portions of his deposition testimony excluded from the trial of his case. (Doc. 42, pp. 1–2.)
The Court DISMISSES as premature Plaintiff’s Motion at this time. Should this case
proceed to trial, Plaintiff may re-urge his Motion at a more appropriate time.
Motion for Docket Sheet and Subpoenas (Doc. 43)
Through this Motion, Plaintiff seeks a copy of the docket sheet in this case, as well as
witness subpoenas in the event of trial in this case.
The Clerk’s Office mailed a courtesy copy of the docket sheet to Plaintiff on December
22, 2017, and there is no indication this mailing was returned to the Court or otherwise failed to
reach Plaintiff. The Court DISMISSES as moot this portion of Plaintiff’s Motion, as the only
filings on the docket after December 22, 2017, is another letter from Plaintiff and a notice of
appearance. (Docs. 48, 49.) Should this case proceed to trial, Plaintiff can request that the Court
re-visit his requests for witness subpoenas. Accordingly, the Court DISMISSES as premature
this portion of Plaintiff’s Motion.
Standard of Review
Summary judgment “shall” be granted if “the movant shows that there is no genuine
dispute as to any material fact and that the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). “A dispute about a material fact is genuine and summary judgment is
inappropriate if the evidence is such that a reasonable jury could return a verdict for the
nonmoving party. However, there must exist a conflict in substantial evidence to pose a jury
question.” Hall v. Sunjoy Indus. Grp., Inc., 764 F. Supp. 2d 1297, 1301 (M.D. Fla. 2011) (citing
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); and Verbraeken v. Westinghouse
Elec. Corp., 881 F.2d 1041, 1045 (11th Cir. 1989)).
The moving party bears the burden of establishing that there is no genuine dispute as to
any material fact and that he is entitled to judgment as a matter of law. See Williamson Oil Co.
v. Philip Morris USA, 346 F.3d 1287, 1298 (11th Cir. 2003). Specifically, the moving party
must identify the portions of the record which establish that there are no “genuine dispute[s] as to
any material fact and the movant is entitled to judgment as a matter of law.” See Moton v.
Cowart, 631 F.3d 1337, 1341 (11th Cir. 2011). When the nonmoving party would have the
burden of proof at trial, the moving party may discharge his burden by showing that the record
lacks evidence to support the nonmoving party’s case or that the nonmoving party would be
unable to prove his case at trial. See id. (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322–23
(1986)). In determining whether a summary judgment motion should be granted, a court must
view the record and all reasonable inferences that can be drawn from the record in a light most
favorable to the nonmoving party. Peek-A-Boo Lounge of Bradenton, Inc. v. Manatee Cty., 630
F.3d 1346, 1353 (11th Cir. 2011) (citing Rodriguez v. Sec’y for Dep’t of Corr., 508 F.3d 611,
616 (11th Cir. 2007)).
Deliberate Indifference to Medical Needs
Plaintiff’s claims against Defendants require analysis and discussion under the Eighth
Amendment of the United States Constitution. The Eighth Amendment’s proscription against
cruel and unusual punishment imposes a constitutional duty upon prison officials to “ensure that
inmates receive adequate food, clothing shelter, and medical care.” Farmer v. Brennan, 511 U.S.
825, 832 (1994). However, “not every claim by a prisoner that he has not received adequate
medical treatment states a violation of the Eighth Amendment.” Harris v. Thigpen, 941 F.2d
1495, 1505 (11th Cir. 1991) (quoting Estelle v. Gamble, 429 U.S. 97, 105 (1976)). Rather, “an
inmate must allege acts or omissions sufficiently harmful to evidence deliberate indifference to
serious medical needs.” Estelle, 429 U.S. at 106. In order to prevail on a deliberate indifference
claim, a prisoner must: (1) satisfy the objective component by showing a serious medical need;
(2) satisfy the subjective component by showing a defendant’s deliberate indifference to that
need; and (3) show that the injury was caused by the defendant’s indifference. Goebert v. Lee
Cty., 510 F.3d 1312, 1326 (11th Cir. 2007).
As to the first, objective component, a medical need is serious if it “‘has been diagnosed
by a physician as mandating treatment or [is] one that is so obvious that even a lay person would
easily recognize the necessity for a doctor’s attention.’” Id. (quoting Hill v. DeKalb Reg’l Youth
Det. Ctr., 40 F.3d 1176, 1187). In either situation, the medical need must be “one that, if left
unattended, ‘poses a substantial risk of serious harm.’” Farrow v. West, 320 F.3d 1235, 1246
(quoting Farmer, 511 U.S. at 834).
Under the second, subjective component, the Eleventh Circuit Court of Appeals has
consistently required that “a defendant know of and disregard an excessive risk to an inmate’s
health and safety.” Haney v. City of Cumming, 69 F.3d 1098, 1102 (11th Cir. 1995). Thus, the
subjective component requires an inmate to 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 v.
Abston, 841 F.3d 1207, 1223 (11th Cir. 2016). 2
“Conduct 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.” Bingham v. Thomas, 654 F.3d 1171, 1176 (11th
Cir. 2011). Additionally, a defendant who “delays necessary treatment for non-medical reasons”
or “knowingly interfere[s] with a physician’s prescribed course of treatment” may exhibit
Eleventh Circuit case law on whether a claim of deliberate indifference requires “more than gross
negligence” or “more than mere negligence” is contradictory. Compare Goebert, 510 F.3d at 1327, with
Bingham v. Thomas, 654 F.3d 1171, 1176 (11th Cir. 2011). In Melton, the Eleventh Circuit found “more
than mere negligence” to be the appropriate standard. 841 F.3d at 1223 n.2. Even so, at least two
Eleventh Circuit unpublished cases post-Melton have continued to use the “gross negligence” standard.
See, e.g., Woodyard v. Ala. Dep’t of Corr., 2017 WL 2829376 (11th Cir. June 30, 2017); Sifford v. Ford,
2017 WL 2874517 (11th Cir. July 6, 2017). However, because the Eleventh Circuit explicitly addressed
this issue in Melton, this Court will apply the “more than mere negligence” standard.
deliberate indifference. Id. (citations omitted). In instances where a deliberate indifference
claim turns on a delay in treatment rather than the type of medical care received, the Court
considers “the reason for the delay and the nature of the medical need.” Farrow, 320 F.3d at
1246 (citing McElligott, 182 F.3d at 1255). When a claim turns on the quality of treatment
provided, however, “‘a simple difference in medical opinion between the prison’s medical staff
and the inmate as to the latter’s diagnosis or course of treatment’ does not support a claim of
deliberate indifference.” Melton, 841 F.3d at 1224 (quoting Harris, 941 F.2d at 1505). In other
words, “medical malpractice does not become a constitutional violation merely because the
victim is a prisoner.” Estelle, 429 U.S. at 104. Furthermore, deliberate indifference is not
established when an inmate receives medical care, but “may have desired different modes of
treatment.” Hamm v. DeKalb Cty., 774 F.2d 1567, 1575 (11th Cir. 1985).
Plaintiff contends that Defendants were deliberately indifferent to the serious medical
needs he was experiencing relating to his right eye. According to Plaintiff, Defendants’ delay in
treating his eye condition caused the loss of vision in his right eye. (Doc. 31, p. 5.) Plaintiff
maintains that, had Defendants treated his eye condition when he began complaining about
having pain in his right eye in December 2015, his loss of vision could have been prevented. (Id.
& at p. 6.) Plaintiff avers he saw Dr. Lovett on April 1, 2017, and Dr. Lovett told Plaintiff that
Dr. Lovett could have saved Plaintiff’s vision had he seen Plaintiff during the last week of
December 2015 or the first week of January 2016. In addition, Plaintiff states Dr. King also told
him he could have saved Plaintiff’s vision if he had seen Plaintiff the first week of January 2016.
(Id. at pp. 6–7.) Plaintiff alleges Dr. King’s recommended surgery was no guarantee that
Plaintiff could have restored vision in his right eye or that he would not require any additional
surgeries. (Id. at p. 7.)
Defendants assert Plaintiff had an intake screening with medical staff at Coffee
Correctional on December 10, 2015, at which time Plaintiff failed to complain about his right
eye, per the medical records. (Doc. 33-3, p. 1.) Defendants also assert Plaintiff’s medical
records revealed a history of seizures, dental complaints, mental health issues, and his use of
corrective lenses for astigmatism in each eye. (Id.) Defendants assert Plaintiff submitted a
health services request on December 21, 2015, and stated he needed an eye examination and
glasses, but he did not mention he was partially blind in his right eye. Defendants assert Plaintiff
complained of loss of vision in his left eye in early January 2016, but, according to Defendants,
Plaintiff did not complain about blindness in his right eye until March 23, 2016. (Id. at p. 2.)
Defendants note Plaintiff saw Dr. Lovett on April 1, 2016, and reported to Dr. Lovett he
only had half vision in his right eye. Defendants maintain Dr. Lovett examined Plaintiff,
diagnosed him with right eye retinal detachment, and referred Plaintiff to see an outside
specialist. (Id. at p. 3.) Defendants aver Dr. King with the Georgia Eye Institute examined
Plaintiff on April 11, 2016, and confirmed Dr. Lovett’s diagnosis. Defendants also aver Dr.
King told Plaintiff he may need surgery to correct the detachment, explained the possible
benefits and risks associated with surgery, scheduled the surgery for April 28, 2016, and
prescribed Plaintiff eye drops for use after the surgery. Defendants assert Plaintiff verbally
declined to go forward with the recommended surgery on April 15, 2016. (Id.) Additionally,
Defendants note the day before the scheduled surgery, Plaintiff refused any further treatment for
his right eye, even after medical staff advised Plaintiff of the risks and benefits of his refusal to
go through with the recommended surgery.
Defendants assert that Plaintiff agrees that any problem with his vision is a subjective
condition, which means that the medical care providers had to rely on Plaintiff’s historical
information to treat his eye condition. (Id. at p. 4.) Defendants allege the medical records do not
support Plaintiff’s assertion that he told the intake physician in December 2015 of his partial
blindness. Rather, Defendants assert the medical records reveal Plaintiff first began having
partial blindness in February 2016, which is more than a month before he filed the March 23,
2016, health request form complaining about blindness in his right eye. (Id.) Defendants also
assert Dr. King’s medical records do not reveal that he could have saved Plaintiff’s vision in his
right eye if he had treated Plaintiff earlier, and Dr. King’s records do reveal that Plaintiff relayed
he had partial vision in his right eye through February 2016. (Id.) Additionally, Defendants note
Plaintiff can identify “no specific wrongdoing” on any of their parts and is not sure how
Defendants “fit into his treatment” at Coffee Correctional. 3 (Id. at pp. 4–5.)
Further, Defendants aver that, once Plaintiff complained about pain and blindness in his
right eye, medical staff scheduled an appointment with Dr. Lovett. Once Dr. Lovett diagnosed
Plaintiff with a detached retina, Defendants argue he was treated with urgency, including
recommended surgical intervention, which Plaintiff declined. (Id. at p. 8.) Defendants state
Plaintiff cannot demonstrate he had a serious medical need prior to March 23, 2016, or that
medical staff disregarded the risk of harm Plaintiff faced once they were aware of Plaintiff’s
complaints. Moreover, Defendants maintain that, even if medical staff had been aware of
Plaintiff’s eye problems in December 2015, Plaintiff cannot establish that any perceived delay in
obtaining treatment exacerbated his condition. (Id.)
Plaintiff was not sure which Defendant was responsible for what actions during his deposition.
(Doc. 33-2, pp. 45–46, 50.) However, Plaintiff also stated he would have to go back to look over his
paperwork to be sure of each Defendant’s role. (Id. at pp. 46, 49.) Plaintiff was able to respond to
Defendants’ Motion for Summary Judgment and specified which Defendant was responsible for his
alleged lack of treatment on what date. What is more, the Court was able to glean these specifics from
Plaintiff’s medical records and the transcript from his deposition.
The record before the Court, including Plaintiff’s medical records and his deposition
transcript, reveals the following facts regarding Plaintiff’s right eye condition. Plaintiff has
astigmatism in each eye and has worn eyeglasses for several years due to this condition.
(Doc. 33-2, pp. 22–23, 27.) Plaintiff receives a new pair of glasses every three to five years. (Id.
at p. 27.) Plaintiff arrived at Coffee Correctional on December 10, 2015, and Defendant Hulett
entered information on Plaintiff’s Initial Intake Screening. (Doc. 33-1, p. 1.) Plaintiff’s need for
eyeglasses and his history of seizures, dental complaints, and mental health issues were noted,
but there was no notation regarding reported vision problems in Plaintiff’s right eye. (Id. at
pp. 1–12.) However, Plaintiff testified during his deposition that he informed Defendant Hulett
upon his arrival at Coffee Correctional that his right eye was different from his left eye, he had
spots in his right eye, and he could not “really see good[.]” (Doc. 33-2, p. 29.) Defendant Hulett
told Plaintiff he would put him in for an appointment with the optometrist, but this did not occur.
(Id. at pp. 29–30.)
On December 21, 2015, Plaintiff submitted a health services request form in which he
stated he wished to be seen by an eye doctor because he needed an exam and glasses. (Id. at
p. 32.) Defendant Hester responded the next day that an “opto” appointment was scheduled.
(Doc. 33-1, p. 60.) Defendant McCleod recorded Plaintiff’s complaint of loss of vision in his left
eye on January 4, 2016. (Id. at p. 9 (emphasis added).) Plaintiff reported on March 23, 2016,
that he could not see out of his right eye and did not know what was wrong. Plaintiff reported
having “sudden change in visual acuity” and “blurred vision[.]” (Id. at p. 23.) In addition,
Plaintiff submitted a grievance form dated March 21, 2016, in which he stated he had been trying
to obtain medical attention for his eyes since he arrived at Coffee Correctional in December
2015. Plaintiff asserted in his grievance that he had submitted at least three requests to be seen
in medical and that he was completely blind in his right eye. 4 (Id. at p. 181.) In fact, Plaintiff
stated during his deposition that his symptoms were getting worse approximately a month after
he arrived at Coffee Correctional, and he put in another medical request, but the only thing staff
would tell him was that an appointment with the optometrist had been made. (Doc. 33-2, pp. 29–
30.) Plaintiff also stated he submitted two more medical requests before March 2016, including
one in February 2016 in which he stated he had lost vision in his right eye. (Id. at pp. 30, 48.)
Plaintiff was examined on March 23, 2016.
(Doc. 33-1, pp. 24, 185.)
Plaintiff’s vision changes within the last month, Defendants Hulett and McCleod scheduled an
appointment with Dr. Lovett, the optometrist, for April 1, 2016. (Id. at p. 25.) Plaintiff had a
follow-up visit on March 31, 2016, and complained of his right eye vision being “black[.]” (Id.
at p. 27.) Plaintiff was again given an examination. 5 (Id. at p. 28.)
Dr. Lovett examined Plaintiff’s eyes on April 1, 2016. Dr. Lovett noted Plaintiff could
only see the “upper half of vision” and saw flashes, floaters, and blurred vision when he first
experienced problems with his vision, and that this had been happening for three months, or
beginning in January 2016. (Id. at pp. 36, 38; Doc. 33-2, pp. 34–35.) Dr. Lovett diagnosed
Plaintiff with having a detached retina in his right eye. (Doc. 33-1, pp. 36, 38.) He then made a
referral request for Plaintiff to have an office visit with another eye doctor on an outpatient basis.
The Warden’s response to Plaintiff’s Grievance Number 215529 is dated April 4, 2016, and advised
Plaintiff that he was given an eye assessment and had an appointment with an optometrist, so no further
action was warranted. (Doc. 33-1, p. 187.) Plaintiff received this response on April 12, 2016, and he
filed an appeal the same day. (Id. at pp. 188, 189.) Plaintiff filed another grievance dated April 4, 2016,
and stated his loss of vision and pain in his right eye complaints had been documented since December
2015. (Id. at p. 192.) Plaintiff also stated the optometrist told him that he could have saved Plaintiff’s
sight had the optometrist seen Plaintiff in December 2015. Grievance Number 216450 was rejected
because the issue had already been addressed and because Plaintiff did not set forth a clear requested
resolution. (Id. at p. 193.)
During his deposition, Plaintiff asserted he had an appointment with the optometrist, perhaps near the
end of March 2016, and that appointment was cancelled when Plaintiff arrived at the optometrist’s office
due to overbooking. (Doc. 33-2, p. 30.)
(Id. at p. 38.) Dr. Lovett told Plaintiff that there was only a slim chance he would get his vision
back due to “the period of time that ha[d] passed[.]” (Doc. 33-2, p. 31.)
Plaintiff reported to Dr. King on April 11, 2016, that he started having “floaters that
looked like pepper” in his right eye in December 2015 and that he barely had light perception
vision since February 2016. (Doc. 33-1, p. 45.) After examination, Dr. King diagnosed Plaintiff
with a total retinal detachment to his right eye. (Id. at pp. 46, 47.) Dr. King discussed with
Plaintiff that he risked blindness if he decided to forego surgical treatment for his condition, and
he also discussed with Plaintiff that he could experience “limitation in final visual acuity even
with successful surgery due to foveal 6 involvement.” (Id.) Dr. King further discussed the
specific risks and benefits of the proposed procedure, which was scheduled for April 28, 2016.
(Doc. 33-2, p. 38). Dr. King informed Plaintiff that, at most, he may be able to see the fingers on
his hand up close, but “too much time had passed and tissue was damaged beyond repair” for
Plaintiff to have any more vision restored. (Id. at pp. 31, 38.) Dr. King told Plaintiff the surgery
would be to relieve the pressure Plaintiff had in his eye but would not be restorative to his vision.
(Id. at pp. 42–43.) Dr. King also told Plaintiff that, had he seen Plaintiff when he first started
experiencing problems in his right eye, he could have restored Plaintiff’s vision. (Id. at p. 43.)
On April 15, 2016, Plaintiff saw Dr. Lovett again. Dr. Lovett noted that Dr. King
recommended Plaintiff undergo surgery. Nevertheless, Plaintiff expressed his understanding of
the risks of not having surgery and verbally declined surgical treatment. (Doc. 33-1, p. 49.)
Plaintiff received new eye glasses on April 19, 2016. (Id. at p. 112.) On April 27, 2016, the day
before his scheduled surgery, Plaintiff informed medical personnel at Coffee Correctional that,
after speaking with his family and an attorney, he refused any future treatment on his eye. (Id. at
The fovea is a small depression or pit “located in the macula [(or central area)] of the retina that
provides the clearest vision of all.” https://www.medicinenet.com/script/main/art.asp?articlekey=24120
(last visited Feb. 5, 2018).
pp. 69; 112.) Medical staff advised Plaintiff that he would continue not being able to see out of
his eye if he did not have the surgery, and Plaintiff responded that the doctor “said that he
probably would not get his eye sight back anyway.” (Id. at p. 69.) Plaintiff declined to go
through with the surgery because the trauma he would experience from the surgery would likely
outweigh the minor gains he would make. (Doc. 33-2, p. 41.)
There is no dispute between the parties that Plaintiff’s loss of vision can be considered a
serious medical need. Trahan v. Reinkens, Civil Action No. H-05-0173, 2007 WL 2142075
(S.D. Tex. July 25, 2017). There is also no dispute that, once Defendants claim they became
aware of Plaintiff’s problems with his right eye and vision on March 23, 2106, they worked
quickly and efficiently to address Plaintiff’s medical needs. 7 (See, e.g., Doc. 33-1, p. 185.)
Further, there is no dispute that Plaintiff declined to have surgery on his right eye, which may
have improved his vision. (Id. at p. 112.)
However, there are genuine disputes as to whether: Defendants were made aware of
problems Plaintiff was experiencing in his right eye as early as December 2015, because Plaintiff
claims he informed Defendant Hulett upon his arrival at Coffee Correctional on December 10,
2015, that he was having problems with his vision in his right eye; Plaintiff informed Defendant
Hester on December 21, 2015, that he was having vision problems; Plaintiff informed Defendant
McCleod that he experienced loss of vision in his right eye on January 4, 2016, and she instead
wrote down Plaintiff complained about problems in his left eye; Dr. King told Plaintiff he could
have saved his vision had Plaintiff come to see him when he began experiencing problems with
his right eye; Defendants delayed obtaining treatment for Plaintiff’s right eye condition by more
Plaintiff does not appear to dispute this point. Rather, Plaintiff disputes that Defendants were unaware
of problems he reported to them prior to March 23, 2016, and Defendants’ actions (or inaction) in
response to his allegedly reported problems.
than mere negligence; and any alleged delay in obtaining treatment exacerbated Plaintiff’s
Specifically, there is no evidence before the Court indicating that Plaintiff saw the
optometrist within a reasonable time after his alleged December 21, 2015, request or that
Plaintiff’s complaint about the loss of vision on January 4, 2016—no matter in which eye—was
addressed. (Doc. 33-1, p. 12.) A reasonable jury could find that Defendant McCleod was
deliberately indifferent to Plaintiff’s eye and vision problems as early as January 4, 2016, given
the lack of documentation supporting the provision of any medical care or treatment in response
to Plaintiff’s complaint at that time.
The Court notes Defendants’ assertion that Dr. King’s alleged verbal statements to
Plaintiff are not in Dr. King’s written records and are inadmissible hearsay. (Doc. 33-3, p. 8.)
“The general rule is that inadmissible hearsay ‘cannot be considered on a motion for summary
judgment.’” Rowell v. BellSouth Corp., 433 F.3d 794, 800 (11th Cir. 2005) (quoting Macuba v.
Deboer, 193 F.3d 1316, 1322–23 (11th Cir. 1999)). “Rule[s 56(c) and] 56(e) of the Federal
Rules of Civil Procedure requires that ‘affidavits’ that support or oppose summary judgment
motions ‘shall be made on personal knowledge, [and] shall set forth such facts as would be
admissible in evidence[.]’ This rule also applies to testimony given on deposition.” Id. (second
alteration in original) (quoting Macuba, 193 F.3d at 1322–23, in turn citing Randle v. LaSalle
Telecomms., Inc., 876 F.2d 563, 570 n.4 (7th Cir. 1989)). A “nonmoving party, in opposing a
motion for summary judgment, need not produce affidavits, but may refer the district court to
‘pleadings, depositions, answers to interrogatories, and admissions on file,’ as provided by Fed.
R. Civ. P. 56(c).” Id. “This is not to say, however, that evidence submitted during the summary
judgment stage need be in an admissible form at that time.” See id. (citing Macuba, 193 F.3d at
1324–25). “The most obvious way that hearsay testimony can be reduced to admissible form is
to have the hearsay declarant testify directly to the matter at trial.” Jones v. UPS Ground Freight,
683 F.3d 1283, 1294 (11th Cir. 2012) (citing Pritchard v. S. Co. Servs., 92 F.3d 1130, 1135 (11th
Cir. 1996) (noting that an affidavit “can be reduced to admissible form at trial” by calling the
affiant as a witness)).
A plaintiff must demonstrate that a defendant’s responses to his medical needs were poor
enough to constitute an unnecessary and wanton infliction of pain and not merely accidental
inadequacy, negligence in treatment, or even medical malpractice actionable under state law.
Gipson v. Renninger, No. 3:15-CV-827-J-39PDB, 2017 WL 4124759, at *10 (M.D. Fla. Sept.
18, 2017) (citing Taylor v. Adams, 221 F.3d 1254, 1258 (11th Cir. 2000)).
seriousness of a prisoner’s need for medical care is obvious even to a lay person,’ this
obviousness is itself sufficient to satisfy the objective component of the adequate medical care
test.” Johnson v. Karnes, 398 F.3d 868, 874 (6th Cir. 2005) (brackets in original) (quoting
Blackmore v. Kalamazoo Cty., 390 F.3d 890, 899 (6th Cir. 2004)). “However, if the need
involves minor maladies or non-obvious complaints of a serious need for medical care, the
inmate must place verifying medical evidence in the record to establish the detrimental effect of
the delay in medical treatment.” Id. (internal citations and punctuation omitted).
Here, Plaintiff testified during his deposition and alleged in his pleadings that Drs. Lovett
and King would testify that, had he come to see them when he first reported problems with his
vision, his vision could have been restored. (Doc. 31, pp. 6–7; Doc. 33-2, pp. 31, 42–44).
While, at the moment, these alleged statements are hearsay and are not contained in the medical
record before the Court, these statements can be “reduced to admissible form at trial”, if Plaintiff
were to call these doctors as witnesses during the trial of this case and these doctors testified in
the manner Plaintiff contends. 8
Accordingly, these statements could become Plaintiff’s
“verifying medical evidence” in support of his averments that Defendants delayed his treatment
for his eye condition to the point of exacerbation of his condition. 9 A reasonable jury could
conclude that Plaintiff had a serious medical need regarding his right eye as early as December
2015 or January 2016, Defendants were aware of this serious medical need, and Defendants were
deliberately indifferent to that need.
Additionally, a reasonable jury could conclude that
Defendants delayed obtaining treatment for Plaintiff’s right eye condition and that this delay
exacerbated his condition. Accordingly, the Court should DENY the parties’ dueling Motions
for Summary Judgment.
Based in the foregoing, I RECOMMEND the Court DENY Defendants’ Motion for
Summary Judgment and DENY Plaintiff’s Motion for Summary Judgment. The Court DENIES
Plaintiff’s Motion for Discovery Sanctions and Motion for Proposed Settlement, DISMISSES as
premature Plaintiff’s Motion in Limine, and DISMISSES as moot in part and DISMISSES as
premature in part Plaintiff’s Motion for Copy of the Docket Sheet and Subpoenas.
The Court ORDERS any party seeking to object to this Report and Recommendation to
file specific written objections within fourteen (14) days of the date on which this Report and
Recommendation is entered. Any objections asserting that the Magistrate Judge failed to address
any contention raised in the Complaint must also be included. Failure to do so will bar any later
Of course, at trial, these doctors may testify differently than Plaintiff contends. However, given the
state of the record in this case, Plaintiff should at least have the opportunity to present his case to a jury.
A reasonable jury would then have to decide the questions of fact noted above, including when Plaintiff
advised Defendants of his problems with his right eye, decide whether Defendants’ responses fit the legal
standard of deliberate indifference to a serious medical need, and, what, if any damage Defendants’
actions or inaction caused.
The Court notes Defendants’ averment that Plaintiff agreed that his eye condition was a subjective
condition. (Doc. 33-3, p. 4.)
challenge or review of the factual findings or legal conclusions of the Magistrate Judge. See 28
U.S.C. § 636(b)(1)(C); Thomas v. Arn, 474 U.S. 140 (1985). A copy of the objections must be
served upon all other parties to the action. The filing of objections is not a proper vehicle
through which to make new allegations or present additional evidence.
Upon receipt of Objections meeting the specificity requirement set out above, a United
States District Judge will make a de novo determination of those portions of the report, proposed
findings, or recommendation to which objection is made and may accept, reject, or modify in
whole or in part, the findings or recommendations made by the Magistrate Judge. Objections not
meeting the specificity requirement set out above will not be considered by a District Judge. A
party may not appeal a Magistrate Judge’s report and recommendation directly to the United
States Court of Appeals for the Eleventh Circuit. Appeals may be made only from a final
judgment entered by or at the direction of a District Judge. The Court DIRECTS the Clerk of
Court to serve a copy of this Report and Recommendation upon the parties.
SO ORDERED and REPORTED and RECOMMENDED, this 9th day of February,
R. STAN BAKER
UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA
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