Mapp v. Williams et al

Filing 31

REPORT AND RECOMMENDATIONS of the Magistrate Judge that the Court GRANT Defendants' 23 Motion, DISMISS Plaintiff's 8 Amended Complaint, DIRECT the Clerk of Court to CLOSE this case and enter the appropriate judgment of dismissal, and DE NY Plaintiff in forma pauperis status on appeal. Any party seeking to object to this Report and Recommendation is ordered 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 2/28/2018). ORDER directing service of the REPORT AND RECOMMENDATIONS of the Magistrate Judge. Signed by Magistrate Judge R. Stan Baker on 2/14/2018. (csr)

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

STEVE MAPP,
Plaintiff,

CIVIL ACTION NO.: 5:16-cv-56

v.
WARDEN DOUG WILLIAMS; and MRS.
YARBROUGH,
Defendants.

ORDER and MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Presently before the Court is Defendants’ Motion for Summary Judgment, (doc. 23), to
which Plaintiff filed a Response, (docs. 25, 26.)

For the reasons which follow, I

RECOMMEND the Court GRANT Defendants’ Motion, DISMISS Plaintiff’s Amended
Complaint, DIRECT the Clerk of Court to CLOSE this case and enter the appropriate judgment
of dismissal, and DENY Plaintiff in forma pauperis status on appeal.
BACKGROUND
In his Amended Complaint 1, Plaintiff contends he fell in the shower on September 1,
2015, while he was incarcerated at Smith State Prison, and he reported this to medical staff two
days later. (Doc. 8, p. 3.) Plaintiff claims that Dr. Jefferson x-rayed his hip, and the x-ray
1

Plaintiff was housed at Ware State Prison at the time he filed his original Complaint, and he set forth
allegations concerning the conditions of his confinement at both Ware State and Smith State Prisons.
(Doc. 1.) The Court informed Plaintiff his allegations were unrelated and directed him to amend his
Complaint. (Doc. 7.) Plaintiff filed an Amended Complaint, (doc. 8), and the Court directed service of
Plaintiff’s Amended Complaint on Defendants, who were officials at Smith State Prison at the relevant
time period, (doc. 12). Smith State Prison is in Glennville, Georgia, which lies in the Statesboro Division
of this Court. Thus, while the Court would ordinarily direct the transfer of this case to this Court’s
Statesboro Division, the Court declines to do so here, given the recommended disposition and in the
interest of judicial economy.

revealed that Plaintiff’s hip was dislocated. Plaintiff was referred to an orthopedic doctor, who
opined Plaintiff would need surgery due to the lack of emergency care he received. Plaintiff
maintains he was forced to remain on the top bunk and to use a shower without handicappedaccessible seating or stabilization bars from the date of his fall. (Id.) In fact, Plaintiff maintains
he was assigned a top bunk from the date of his injury until he was transferred to Ware State
Prison on October 29, 2015. (Doc. 25-1, pp. 2–3.)
According to Plaintiff, he “continuously inquired” of Defendant Yarbrough regarding his
concerns over the severity of his injury and the pain associated with that injury, yet she failed to
show any concern for his health. (Doc. 8, pp. 4–5.) Plaintiff asserts Defendants Yarbrough and
Williams “had actual knowledge” of and the authority to accommodate his lack of mobility and
to initiate medical care but failed to do so. (Id. at pp. 3–4.)
In their Motion for Summary Judgment, Defendants aver Plaintiff’s deliberate
indifference claims fail and that they are entitled to qualified immunity. (Doc. 23-1.) In
response, Plaintiff maintains Defendants exhibited deliberate indifference to his medical needs
by delaying his treatment and are not entitled to qualified immunity. (Doc. 25.)
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

2

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)).
DISCUSSION
I.

Plaintiff’s Deliberate Indifference Claims
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

3

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

2

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,
4

“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
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 he fell while in the showers at Smith State Prison on September 1,
2015, and reported this fall on September 3, 2015. (Doc. 25-1, p. 2.) Plaintiff states he was
provided with a pair of crutches and was placed in administrative segregation. Plaintiff asserts
he had an x-ray of his hip a few days later, and Dr. Jefferson discovered Plaintiff dislocated his
right hip and referred him to an orthopedist. Plaintiff maintains that, from the date of his injuries
until his transfer from Smith State Prison, he was assigned a top bunk, despite his injuries. (Id. at

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.
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pp. 2–3.) Plaintiff alleges that an orthopedic doctor told Plaintiff that he would need to have
surgery on his hip since he did not receive any emergency care. Additionally, Plaintiff asserts he
continuously asked Defendants about his injury and whether he could have an accommodation
for a handicapped-accessible shower and toilet, yet his concerns fell on deaf ears. (Id. at p. 3.)
Plaintiff states he wrote Defendant Williams on two occasions and asked for his help about being
assigned a top bunk and about being housed in a place where he could have handicappedaccessible facilities, but Defendant Williams did not respond on either occasion. Plaintiff asserts
he wrote numerous letters to Defendant Yarbrough regarding the same concerns, and Defendant
Yarbrough responded to five (5) of his correspondences. Plaintiff states Defendant Yarbrough
told him to be patient, but she failed to address the top bunk profile. (Id. at p. 4.) Plaintiff avers
there are material, factual disputes as to his and Defendants’ version of events, and, as a result,
Defendants are not entitled to summary judgment. 3 (Id. at p. 6.) Specifically, Plaintiff maintains
the “fact[s]” that he had to have hip replacement surgery and had to suffer excruciating pain
without showering from September 3 through October 29, 2015, due to Defendants ignoring his
cries for help and failing to get him the emergency care he needed reveal that Defendants were
deliberately indifferent to his serious medical needs. (Id. at p. 7.)
Defendant Yarbrough became the Health Services Administrator at Smith State Prison on
July 27, 2015. (Doc. 23-3, p. 1.) In this capacity, Defendant Yarbrough declares she does not
provide hands-on medical care to inmates but is responsible for ensuring inmates receive
constitutionally adequate medical care. Defendant Yarbrough also declares that she does not
have the authority to determine where inmates are housed or any security measures that might
apply to any particular inmate. (Id. at pp. 1–2.) Defendant Yarbrough notes, if a medical
3

Plaintiff mentions an affidavit. (Doc. 25-1, p. 6; Doc. 26, p. 2.) However, the Court was unable to
locate any affidavit from Plaintiff.
6

practitioner with the Georgia Department of Corrections (“GDC”) determines an inmate needs
more specialized care than is available at a prison, the medical care provider will put in a consult
request for a particular service with the Utilization Management Department. If the Utilization
Management Department approves the request, it will schedule the time, place, and manner of
the services and will contract with a physician to provide the specialized services. Defendant
Yarbrough asserts the GDC contracts with orthopedists because it does not employ “in-house”
surgeons to perform orthopedic procedures. (Id. at p. 2.)
Defendant Yarbrough states Plaintiff wrote her on three (3) occasions and filed a
grievance regarding his medical care and treatment for his hip. Each time, Defendant Yarbrough
asserts she reviewed Plaintiff’s medical records, was satisfied that he was receiving appropriate
medical care for his hip, and responded to Plaintiff. (Doc. 23-1, p. 13.) Defendant Yarbrough
asserts Plaintiff may disagree with the medical care he received for his hip while he was housed
at Smith State Prison, but such disagreement does not rise to the level of deliberate indifference.
(Id. at p. 14.) Additionally, Defendant Yarbrough alleges Plaintiff made no complaints about his
assignment to a top bunk at all or the restroom and shower facilities in his dormitory until he
filed a grievance on October 15, 2015, and a letter to her two (2) weeks before Plaintiff was
transferred to another facility. (Doc. 23-3, pp. 5, 6.) In response to the letter, Defendant
Yarbrough avers she informed Plaintiff that prison officials would request a transfer if his health
care needs could not be met at Smith State and that she asked Dr. Aleta Gardner to review
Plaintiff’s records for a transfer to a facility with handicapped-accessible facilities. (Id. at pp. 6–
7.)
Defendant Williams declares no administrative segregation dormitories at Smith State
had showers or toilets with support rails on the walls because “inmates would tear the rails off

7

. . . and use them as weapons.” (Doc. 23-5, p. 4.) In September and October 2015, Defendant
Williams contends only the L dormitory, a general population dormitory, had a seat that pulled
down from the wall in the shower but had no support rails on the walls. 4 Defendant Williams
avers he did not receive any letters from Plaintiff in which he complained about his medical care,
his assignment to a top bunk, or the lack of access to a handicapped restroom and shower, nor
did he receive any verbal information relating to Plaintiff’s complaints. (Id. at p. 5.) Defendant
Williams maintains he did not learn of Plaintiff’s grievance—in which he complained about his
medical treatment for his hip and the inadequate shower and restroom facilities—until after
Plaintiff was transferred from Smith State on October 29, 2015. (Id.)
It does not appear Defendants dispute that Plaintiff suffered from a serious medical need.
Thus, the Court’s focus will be on whether a reasonable jury could conclude Defendants’
response to Plaintiff’s serious medical needs amounts to deliberate indifference. The undisputed
evidence of record, including Plaintiff’s medical records and deposition transcript and
correspondences he wrote, reveals the following about Plaintiff’s hip injury and treatment
thereafter, his bunk assignment, and his complaints about not having access to handicapped
restroom and shower facilities.
Plaintiff fell in the showers at Smith State Prison on September 1, 2015, and he reported
to medical on September 3, 2015, that he suffered injury to his right hip, which was classified as

4

According to Defendant Williams, upon Plaintiff’s arrival at Smith State Prison on June 30, 2015,
through July 20, 2015, Plaintiff was housed in an administrative segregation dorm and had a bottom bunk
assignment. (Doc. 23-5, p. 2.) Plaintiff then was transferred to two different general population
dormitories within Smith State Prison and had bottom bunk assignments. Defendant Williams also states
Plaintiff was moved to administrative segregation for non-disciplinary purposes on September 3, 2015,
and was given a top bunk assignment, where he remained until he was transferred to another facility on a
routine warden-to-warden “swap”. (Id. at p. 3.) Defendant Williams declares Plaintiff was included in
the list of names of inmates who were eligible for a swap in October 2015 because he did not want to be
housed in the general population at Smith State but would be willing to be housed in a general population
dormitory at Ware State Prison. (Id. at p. 4.)
8

an urgent/emergent encounter. (Doc. 23-4, p. 3.) Dr. Roy Jefferson noted Plaintiff had surgical
hardware placed in his right leg in 2010. After examination, Dr. Jefferson ordered Plaintiff
undergo an x-ray of his right hip and right knee. Dr. Jefferson also ordered that Plaintiff have
two crutches, a bottom bunk, no prolonged standing or walking for thirty days, and Motrin as
needed for pain. Plaintiff was to be seen again in two weeks and was on the “problem list” to be
“reviewed and updated as clinically indicated[.]” (Id.) Plaintiff complained of pain in his right
hip and knee on September 9, 2015. Nurse Hower noted Plaintiff was given 800 milligrams of
ibuprofen, and she also noted Plaintiff had an x-ray with results pending. (Id. at p. 4.) On
September 17, 2015, Plaintiff was seen for review of his x-rays, which revealed a right hip
dislocation and a fracture of an orthopedic wire in his right knee. Dr. Jefferson called for an
urgent orthopedic consultation, and Plaintiff was to return to the prison’s medical department
after he was seen by an orthopedist. 5 (Id. at pp. 5, 9.) On this same date, Vicki Jones entered the
request for an urgent consult with an orthopedic for a fracture of an orthopedic wire in Plaintiff’s
right knee and right hip dislocation. (Id. at pp. 7, 9.) The Utilization Management Department
approved the consult request on September 17, 2015, (id.), and Plaintiff was to be seen by Mark
Winchell on September 29, 2015. (Id. at p. 8.) Dr. Winchell recommended Plaintiff have a CT
scan of his right hip and be referred to a hip specialist. (Id.)
Plaintiff was seen once again in medical on October 1, 2015, at which time he agreed
with the recommendation that he have a CT scan and a follow-up appointment with a hip
specialist. (Id. at pp. 10–11.) Dr. Aleta Gardner requested a digital CT scan of the right hip for
Plaintiff on this same date and noted Plaintiff would need to see an orthopedic hip specialist once
the CT scan was completed. (Id. at pp. 11, 13.) The CT scan was approved on October 8, 2015.
5

Dr. Jefferson ordered therapeutic measures to be taken on September 17, 2015, but his instructions are
illegible. (Doc. 23-4, p. 6.)
9

(Id. at p. 14.) Plaintiff underwent this scan at Augusta State Medical Prison on October 27,
2015, and Dr. Thomas Pulling read the results of the scan on October 29, 2015, the date Plaintiff
was transferred from Smith State. (Id. at pp. 11, 34–35, 36.) A progress note from Ware State
Prison dated November 19, 2015, indicates the CT scan revealed Plaintiff had a complex fracture
or dislocation of the right hip, consistent with a “chronic process.”

(Id. at p. 36.)

The

physician’s assistant noted she would put in an urgent consult request so that Plaintiff could see
the hip specialist prior to his December 2015 appointment. (Id. & at p. 17.)
Plaintiff wrote a letter to Defendant Yarbrough dated September 29, 2015. Plaintiff
expressed his concern that he had been waiting for thirty (30) days since his injury occurred “not
getting no [sic] medical attention[.] I suppose [sic] to been getting the properly [sic] medical
treatment[.]” (Id. at p. 1.) Plaintiff stated the doctor he saw on September 29, 2015, told
Plaintiff that, because his hip had been out of place for so long, the doctor could not put it back
in place and would have to send Plaintiff to another doctor for surgery. Plaintiff also stated all
he had received at Smith State Prison was Motrin, but the pills did not help with his pain.
Additionally, Plaintiff stated he did not feel like “the doctors” were taking his situation seriously
enough and that he wanted his “process speeded up” so he could walk again. (Id.) Defendant
Yarbrough responded on October 6, 2015, that the doctor’s report of September 29, 2015,
revealed possible chronic hip dislocation and that he requested a digital CT scan (and which
already had been requested). Defendant Yarbrough noted Plaintiff saw Dr. Gardner on October
1, 2015, and she explained this process to him. Defendant Yarbrough advised Plaintiff to put in
a sick call request if his pain continued. (Id. at p. 18.)
On October 2, 2015, Plaintiff submitted an inmate request and expressed concern whether
his hip and leg could become stuck in their then-current positions because it had been a month

10

since his injury, and no one attempted to put his hip back into place. (Id. at p. 2.) Plaintiff also
stated he felt his situation was not being taken seriously enough because he was waiting on an
appointment with an “outside doctor”, which was making his hip worse. (Id.) Defendant
Yarbrough responded on October 16, 2015, and informed Plaintiff he needed to have a CT scan,
which had been scheduled. Defendant Yarbrough told Plaintiff he had a follow-up appointment
with orthopedics after the results of the scan were received, which was within thirty (30) days.
In addition, Defendant Yarbrough told Plaintiff a doctor would decide the next move and asked
Plaintiff to be patient, as he would “get needed treatment[.]” (Id.)
Plaintiff filed Grievance Number 206209 on October 15, 2015. In his grievance, Plaintiff
asserted he had a dislocated hip and required surgery because staff at Smith State “failed to send
[him] to the [orthopedic] on time.” (Id. at p. 24.) Plaintiff alleged he was in the H-1 dormitory
without a handicapped-accessible shower and was “suffering excruciating pain lacking the
medical attention [he] need[ed].” (Id.) Defendant Yarbrough issued a witness statement in
response to Plaintiff’s grievance complaints and summarized her review of Plaintiff’s medical
records. Of particular note, Defendant Yarbrough stated Plaintiff had a follow-up visit scheduled
with the orthopedist for November, that the CT scan was scheduled for the week following
October 23, 2015, and that she had requested Dr. Gardner review Plaintiff’s medical records for
a transfer to a facility with handicapped-accessible areas. (Id. at p. 22.) The Warden’s response
to Plaintiff’s grievance, which echoed Defendant Yarbrough’s witness statement, is dated
December 16, 2015. (Id. at p. 26.)
Plaintiff wrote Defendant Yarbrough again on October 16, 2015. Plaintiff recounted
events which occurred since his fall on September 1, 2015. While Plaintiff noted Defendant
Yarbrough had already told him about the CT scan, he was still waiting for that scan. Plaintiff

11

reiterated his belief that people in Smith State’s medical department were not doing their jobs
because, if they had been, his hip would have already been put back in place. (Id. at p. 33.)
Defendant Yarbrough responded to Plaintiff’s letter and stated once again his CT scan had been
scheduled and that he would be seen by a doctor after this scan. Defendant Yarbrough reminded
Plaintiff to put in a sick call request for pain and advised Plaintiff that a transfer would be
requested if his health needs could not be met at Smith State. (Id.)
Defendant Yarbrough was undoubtedly aware of Plaintiff’s hip injury as early as the end
of September or the beginning of October 2015, (id. at pp. 1, 18), and was aware of Plaintiff’s
concerns over the lack of handicapped-accessible showers as of the latter part of October 2015,
(id. at p. 22). However, Plaintiff fails to create a genuine dispute at to any fact material to his
deliberate indifference claim against Defendant Yarbrough. At best, Plaintiff shows a difference
of opinion as to a course of treatment. Nonetheless, a difference of opinion as to a course of
treatment does not amount to an Eighth Amendment violation. Jones v. Fogam, No. CV413-131,
2014 WL 545404, at *2 (S.D. Ga. Feb. 12, 2014) (noting a mere difference of opinion regarding
preferred course of treatment is not an Eighth Amendment violation; rather, a plaintiff must
show he has a serious medical need and that defendant’s response was “poor enough to
constitute an unnecessary and wanton infliction of pain or risk of serious damage to future
health.”) (quoting Bingham v. Thomas, 654 F.3d 1171, 1176 (11th Cir. 2011), and Roe v. Elyea,
631 F.3d 843, 858 (7th Cir. 2011)).
Even when viewing all of the evidence in favor of Plaintiff, no rational juror could find in
his favor on his claim that Defendants were deliberately indifferent to his serious medical needs.
In fact, from the time Plaintiff first complained to staff at Smith State Prison of his injuries on
September 3, 2015, relating to a fall in the shower on September 1, 2015, Plaintiff was seen in

12

medical no fewer than four (4) times.

Additionally, Plaintiff had appointments with an

orthopedist and had x-rays and a CT scan. All of these events occurred over the course of less
than two months’ time. Even if this relatively short period of time was not a quick enough
response in Plaintiff’s estimation, as noted above, his difference of opinion as to his treatment
does not amount to deliberate indifference. Furthermore, to the extent that Plaintiff contends
Yarborough should have ordered different tests and sent Plaintiff to receive different treatments,
such contentions are inadequate bases for a deliberate indifference claim. Adams v. Poag,
61 F.3d 1537, 1545 (11th Cir. 1995) (reversing district court denial of summary judgment
because “whether governmental actors should have employed additional diagnostic techniques or
forms of treatment ‘is a classic example of a matter for medical judgment’ and therefore not an
appropriate basis for grounding liability under the Eighth Amendment.”) (citing Estelle, 429 U.S.
at 107); Waldrop v. Evans, 871 F.2d 1030, 1033 (11th Cir. 1989) (A “simple difference in
medical opinion” does not give rise to a constitutional violation.). Additionally, Defendant
Yarbrough was entitled to rely upon the medical specialists who were evaluating and treating
Plaintiff and their recommendations that Plaintiff receive follow-up testing rather than immediate
surgery.
Additionally, once Defendant Yarbrough became aware that Plaintiff did not have access
to handicapped showers, she made an effort to have Plaintiff transferred to a facility that did
have these accommodations. 6 What is more, Plaintiff fails to create a genuine dispute as to
whether Defendant Yarbrough had the authority in her position as Health Services Administrator
to do more than she did. A plaintiff must demonstrate that a defendant’s responses to his

6

The Court notes Plaintiff’s assertion that he did not have access to handicapped-accessible facilities
upon his arrival at Ware State Prison. (Doc. 23-4, p. 31.) However, this is of no moment as to whether
the named Defendants were deliberately indifferent to Plaintiff’s serious medical needs while he was
housed at Smith State.
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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)). Plaintiff has failed to do so. “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.”

Scott v. Harris, 550 U.S. 372, 380 (2007).

Moreover, as the party opposing

summary judgment, Plaintiff “must do more than simply show that there is some metaphysical
doubt as to the material facts. . . . Where the record taken as a whole could not lead a rational
trier of fact to find for the nonmoving party, there is no genuine issue for trial.’” Id.
Further, there is no genuine dispute of material fact that Plaintiff failed to make
Defendant Yarbrough or any other medical personnel aware of his assignment to a top bunk.
Additionally, there is no dispute that Defendant Williams was not made aware of Plaintiff’s
medical needs or complaints while Plaintiff was housed at Smith State Prison. The Court notes
Plaintiff’s contention that he wrote Defendant Williams twice and verbally advised him of his
medical problems. However, summary judgment is the time to “put up or shut up” rather than
resting on bare allegations. Wilson v. White, No. CV512-130, 2014 WL 3925293, at *4 (S.D.
Ga. Aug. 11, 2014) (quoting Purser v. Donald, No. CV605–33, 2006 WL 2850428, at *4 (S.D.
Ga. Sept. 28, 2006) (when confronted by a summary judgment record developed under Federal
Rule of Civil Procedure 56, the plaintiff is required to “put up or shut up” on his evidence, rather
than rely on bare allegations)). There is no evidence—only Plaintiff’s unsupported allegations—

14

that Defendant Williams was aware of Plaintiff’s concerns and medical needs while Plaintiff was
still housed at Smith State Prison.
To the extent Defendant Williams responded to Plaintiff’s grievance, his response was
dated several weeks after Plaintiff’s transfer to another facility. Moreover, Defendant Williams
cannot be held liable based on his participation in the grievance process alone. Knop v. Warden,
No. CIV.A. 14-10185, 2015 WL 1132652, at *3 (E.D. Mich. Feb. 4, 2015) (“[M]ere participation
in the grievance process, including signing a grievance response, is insufficient to show personal
involvement.

Rather, liability under § 1983 must be based upon active unconstitutional

behavior, not a ‘mere failure to act.’”) (quoting Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir.
1999), and Lee v. Mich. Parole Bd., 104 F. App’x 490, 493 (6th Cir. 2004)), report and
recommendation adopted, No. 14-10185, 2015 WL 1132696 (E.D. Mich. Mar. 11, 2015).
In addition, Plaintiff fails to create a genuine dispute as to Defendants’ authority to
provide hands-on treatment in their positions as the Warden and the Health Services
Administrator. The undisputed evidence establishes that Defendant Yarbrough merely reviewed
Plaintiff’s medical records to respond to his complaints and formal grievance as part of her
duties as the Health Services Administrator. (See, e.g., Doc. 23-4.) What is more, Defendant
Williams relied on Defendant Yarbrough’s review of Plaintiff’s medical records in denying
Plaintiff’s grievance. Thus, Plaintiff fails to show that, in these capacities, Defendants were
personally liable for his medical care and treatment. Williams v. Limestone Cty., 198 F. App’x
893, 897 (11th Cir. 2006) (“[S]upervisory officials are entitled to rely on medical judgments
made by medical professionals responsible for prisoner care.”) (citations omitted); see also Oaks
v. Pane, Civil Action No. 7:11-cv-00041, 2011 WL 4102273, at *1 n.3 (W.D. Va. Sept. 14,
2011) (noting that health services administrator is an administrative position, and the person

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holding that position in a prison does not personally treat inmates but must rely on medical
professionals to diagnose and treat inmates).
Finally, the Court notes Plaintiff’s assertion that a doctor told him that, had Plaintiff come
to see him earlier than he did, Plaintiff would not have required surgery to repair his hip.
(Doc. 23-7, p. 4.) However, these allegations, even if true, constitute hearsay, which is generally
inadmissible during the trial of a case. “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. Plaintiff has failed to provide the Court with
any acceptable form of evidence Rule 56 allows a party to oppose a summary judgment with to
support this assertion or to otherwise create a genuine dispute of material fact.
For all of these reasons, the Court should GRANT Defendants’ Motion for Summary
Judgment and DISMISS Plaintiff’s Amended Complaint. 7

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Given this recommendation, the Court need not delve deeply into Defendants’ qualified immunity
arguments. Martinez v. Burns, 459 F. App’x 849, 851 n.2 (11th Cir. 2012) (unnecessary to address
defendants’ entitlement to qualified immunity when summary judgment properly granted based on
plaintiff’s failure to sustain his Eighth Amendment deliberate indifference claim). However, even if the
Court were to determine there is a genuine dispute of material fact as to whether Defendants were
deliberately indifferent to Plaintiff’s serious medical needs, Defendants would be entitled to qualified
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II.

Leave to Appeal in Forma Pauperis
The Court should also deny Plaintiff leave to appeal in forma pauperis. Though Plaintiff

has, of course, not yet filed a notice of appeal, it is proper to address these issues in the Court’s
order of dismissal. See Fed. R. App. P. 24(a)(3) (trial court may certify that appeal of party
proceeding in forma pauperis is not taken in good faith “before or after the notice of appeal is
filed”).
An appeal cannot be taken in forma pauperis if the trial court certifies that the appeal is
not taken in good faith. 28 U.S.C. § 1915(a)(3); Fed. R. App. P. 24(a)(3). Good faith in this
context must be judged by an objective standard. Busch v. Cty. of Volusia, 189 F.R.D. 687, 691
(M.D. Fla. 1999). A party does not proceed in good faith when he seeks to advance a frivolous
claim or argument. See Coppedge v. United States, 369 U.S. 438, 445 (1962). A claim or
immunity. Qualified immunity shields “government officials performing discretionary functions . . . from
liability for civil damages insofar as their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S.
800, 818 (1982); see also Lee v. Ferraro, 284 F.3d 1188, 1193–94 (11th Cir. 2002). To determine
“whether the law clearly established the relevant conduct as a constitutional violation at the time [the
defendants] engaged in the challenged acts,” the defendants must have had “fair warning” that their
conduct violated a constitutional right. Jones v. Fransen, 857 F.3d 843, 851 (11th Cir. 2017) (citing
Coffin v. Brandau, 642 F.3d 999, 1013 (11th Cir. 2011) (citations and quotation marks omitted)). In
order to demonstrate “fair warning” and defeat qualified immunity, Plaintiff must “point to binding
precedent that is materially similar,” or show the challenged conduct violated federal law with “obvious
clarity” such that “every reasonable government official facing the circumstances would know that the
official’s conduct” was unlawful. Id. at 852; Gaines v. Wardynski, 871 F.3d 1203, 1209 (11th Cir. 2017)
(binding precedent comes from “the United States Supreme Court, the Eleventh Circuit, or the highest
court in the relevant state”) (citation and alteration omitted). The facts presented at summary judgment
establish this is not an “obvious clarity” case and further show that Defendants had no “fair warning” that
their challenged conduct was unlawful. Plaintiff has not pointed to any binding precedent that would
have put Defendants on notice that their lack of hands-on provision of medical care and treatment—in the
face of Plaintiff receiving actual and timely medical care and treatment—violated his Eighth Amendment
rights. On the contrary, the binding precedent indicates that Defendants did not “violate clearly
established” federal law. To be clear, if Defendants had ignored Plaintiff’s dislocated hip, failed to ensure
Plaintiff was provided with medical treatment or attention to this serious medical need, and ignored
Plaintiff’s complaints about the lack of handicapped-accessible facilities, that conduct would have
violated clearly established precedent. However, binding precedent would not have provided fair warning
to reasonable persons in Defendants’ positions that Plaintiff’s Eighth Amendment rights were being
violated. The Court is not aware of, and Plaintiff has not cited, any binding precedent that would have
provided Defendants with “fair warning” that their actions violated Plaintiff’s Eighth Amendment rights.

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argument is frivolous when it appears the factual allegations are clearly baseless or the legal
theories are indisputably meritless. Neitzke v. Williams, 490 U.S. 319, 327 (1989); Carroll v.
Gross, 984 F.2d 392, 393 (11th Cir. 1993). Stated another way, an in forma pauperis action is
frivolous, and thus, not brought in good faith, if it is “without arguable merit either in law or
fact.” Napier v. Preslicka, 314 F.3d 528, 531 (11th Cir. 2002); see also Brown v. United States,
Nos. 407CV085, 403CR001, 2009 WL 307872, at *1–2 (S.D. Ga. Feb. 9, 2009).
Based on the above analysis of Plaintiff’s action and Defendants’ Motion for Summary
Judgment, there are no non-frivolous issues to raise on appeal, and an appeal would not be taken
in good faith. Thus, the Court should DENY Plaintiff in forma pauperis status on appeal.
CONCLUSION
Based on the foregoing, I RECOMMEND the Court GRANT Defendants’ Motion for
Summary Judgment and DISMISS Plaintiff’s Amended Complaint. I also RECOMMEND the
Court DIRECT the Clerk of Court to CLOSE this case and enter the appropriate judgment of
dismissal and DENY Plaintiff in forma pauperis status on appeal.
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
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.

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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 14th day of February,
2018.

R. STAN BAKER
UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA

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