Winberly Jr. v. Broome et al

Filing 30

REPORT AND RECOMMENDATIONS of the Magistrate Judge that the Court DENY Defendants Broome and Middleton's 23 MOTION to Dismiss Plaintiff's Second Amended Complaint. Any party seeking to object to this Report and Recommendation is ordered t o 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 (6/30/2016). ORDER directing service of the REPORT AND RECOMMENDATIONS of the Magistrate Judge. Signed by Magistrate Judge R. Stan Baker on 6/16/2016. (csr)

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

LEONARD WIMBERLY, JR.,
Plaintiff,

CIVIL ACTION NO. 6:15-cv-23

v.
DEAN BROOME; NURSE GAIL FERRA;
and NURSE MARTHA MIDDLETON,
Defendants.

ORDER and MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Plaintiff, who is currently incarcerated at Georgia State Prison in Reidsville, Georgia,
filed a cause of action, as amended, pursuant to 42 U.S.C. § 1983 to contest certain conditions of
his confinement. (Docs. 1, 9, 22.) Defendants Dean Broome and Martha Middleton filed a
Motion to Dismiss Plaintiff’s Second Amended Complaint. (Doc. 23.) Plaintiff has responded
in opposition to the Motion. (Doc. 26.) For the reasons which follow, I RECOMMEND that
the Court DENY Defendants’ Motion.
BACKGROUND 1
Plaintiff filed this action against Defendants Dean Broome, Gail Ferra, and Martha
Middleton on March 4, 2015. (Doc. 1.) Defendant Broome is the Director of the Medical
Department at Georgia State Prison (“GSP”), where Plaintiff is incarcerated, and Defendants
Ferra and Middleton are nurses at the prison. (Id. at p. 4.) In his original Complaint, Plaintiff
alleged that Defendants denied him access to necessary medical care. Specifically, Plaintiff
1

The recited allegations are taken from Plaintiff’s Complaint, as amended, (docs. 1, 9, 22), and are
accepted as true, as they must be at this stage.

alleged that he has notified all three Defendants since November of 2013 that he has unbearable
pain in his right leg, hip, and thigh area, and Defendants have denied him necessary medical care
for this serious condition. (Id. at p. 5.)
On September 4, 2015, with permission of the Court, Plaintiff amended his Complaint.
(Doc. 9.) Plaintiff reiterated his allegations that Defendants ignored his leg and hip condition
despite direct knowledge of his unbearable pain. The Court conducted a frivolity review of
Plaintiff’s Amended Complaint on December 9, 2015. (Doc. 12.) Therein, the Court found that
Plaintiff’s Complaint, as amended, stated a claim for relief that Defendants were deliberately
indifferent to Plaintiff’s serious medical needs. (Id. at pp. 5–6.) Thus, the Complaint and
Amended Complaint were served on Defendants. On February 2, 2016, the Court adopted the
Report and Recommendation as the opinion of the Court and dismissed Plaintiff’s official
capacity claims.
On January 27, 2016, Defendant Broome moved to dismiss Plaintiff’s Complaint, as
amended, pursuant to Federal Rule of Civil Procedure 12(b)(6). (Doc. 15.) Broome alleged that
Plaintiff failed to plead a claim for deliberate indifference. (Id. at pp. 3–6.) Defendant Broome
also alleged that he is entitled to qualified immunity. (Id. at pp. 6–7.)
On March 3, 2016, Plaintiff moved to amend his Complaint, (doc. 20), and the Court
granted that Motion, in part, on March 4, 2016, (doc. 21). Plaintiff filed his Second Amended
Complaint on March 21, 2016. (Doc. 22.) Therein, he reiterates and clarifies his deliberate
indifference claims against all Defendants. Id. Given the recent amendment to Plaintiff’s
Complaint, I recommended that the Court dismiss Broome’s first Motion to Dismiss as moot.
(Doc. 24.)

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In his Second Amended Complaint, Plaintiff alleges that he was born with one leg shorter
than the other. (Doc. 22, p. 1.) As a result, Plaintiff has suffered hip pain and other pain, and he
must walk with a cane or other walking aid. Id. In the last few years, Plaintiff’s condition has
deteriorated, resulting in extreme hip pain and other pain while walking. Id. Plaintiff has seen
Defendants Middleton and Ferra, nurses at GSP, at the prison’s medical unit several times. Id.
However, Middleton and Ferra refused to evaluate Plaintiff or provide him with medical
treatment. Id. Rather, Ferra and Middleton told Plaintiff to quit complaining and that there is
nothing wrong with his hip. Id. Middleton told Plaintiff that his pain is “nothing but the weather
changing.” Id.
After Plaintiff’s complaints of pain were ignored for approximately a year, he sought
relief through the prison’s grievance system. (Id. at p. 2.) The Warden of GSP denied his initial
grievance on October 17, 2014. Id. Plaintiff appealed that denial on October 20, 2014. Id.
Then, on November 4, 2014, Defendants Ferra and Middleton called Plaintiff into the medical
unit. Id. They informed him that he should drop his grievance because he was scheduled to see
a medical specialist at Augusta State Medical Prison (“ASMP”). Id. Plaintiff declined to drop
his grievance.
On December 1, 2014, an orthopedist at ASMP evaluated Plaintiff. Id. ASMP staff also
conducted a Magnetic Resonance Image (“MRI”) and x-ray of Plaintiff’s hip.

Id.

The

orthopedist prescribed Plaintiff to receive “‘urgent’ hip reconstructive/replacement surgery.” Id.
However, a year and a half later, Plaintiff has still not received this surgery. Id. Plaintiff has
been denied the surgery because Defendant Broome, the medical director at GSP, “says hip
replacement surgery is too expensive for someone serving a life sentence.” Id. On or about
January 10, 2014, Plaintiff was diagnosed with “avascular necrosis” and was again prescribed

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“urgent” hip replacement surgery. Id. Plaintiff states that Defendant Broome has refused his
request to undergo the prescribed surgery at least three times. Id. Again, Plaintiff alleges that
Broome has based this denial not on medical judgment but as a matter of “non-medical
considerations.” Id. Plaintiff seeks injunctive relief, as well as compensatory damages and
punitive damages, to remedy the alleged violations of his constitutional rights. Id.
On March 29, 2016, Defendants Broome and Middleton moved to dismiss all claims
against them asserted in Plaintiff’s Second Amended Complaint. (Doc. 23.) These Defendants
argue that Plaintiff failed to plead that they acted with deliberate indifference and that they are
entitled to qualified immunity. Id. Plaintiff has filed a Response opposing the Motion to
Dismiss. (Doc. 26.)
DISCUSSION
I.

Standard of review
Under a Rule 12(b)(6) motion to dismiss, a court must “accept[ ] the allegations in the

complaint as true and constru[e] them in the light most favorable to the plaintiff.” Belanger v.
Salvation Army, 556 F.3d 1153, 1155 (11th Cir. 2009). “A complaint must state a facially
plausible claim for relief, and ‘[a] claim has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.’” Wooten v. Quicken Loans, Inc., 626 F.3d 1187, 1196 (11th Cir. 2010)
(quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). “A pleading that offers labels and
conclusions or a formulaic recitation of the elements of a cause of action” does not suffice.
Ashcroft, 556 U.S. at 678.
“The plausibility standard is not akin to a probability requirement, but it asks for more
than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts

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that are merely consistent with a defendant’s liability, it stops short of the line between
possibility and plausibility of entitlement to relief.”

Id. (internal punctuation and citation

omitted). While a court must accept all factual allegations in a complaint as true, this tenet “is
inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action,
supported by mere conclusory statements,” are insufficient. Id.
II.

Whether Plaintiff States a Claim against Defendants Broome and Middleton
In this action, Plaintiff contends Defendants violated his Eighth Amendment rights to

adequate medical treatment. (Docs. 1, 9, 22.) The Eighth Amendment’s proscription against
cruel and unusual punishment imposes a constitutional duty upon a prison official to take
reasonable measures to guarantee the safety of inmates. The standard for cruel and unusual
punishment, embodied in the principles expressed in Estelle v. Gamble, 429 U.S. 97, 104 (1976),
is whether a prison official exhibits a deliberate indifference to the serious medical needs of an
inmate. Farmer v. Brennan, 511 U.S. 825, 828 (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, 429
U.S. at 105). Rather, “an inmate must allege acts or omissions sufficiently harmful to evidence
deliberate indifference to serious medical needs.” Hill v. DeKalb Reg’l Youth Det. Ctr., 40 F.3d
1176, 1186 (11th Cir. 1994).
In order to prove a deliberate indifference claim, a prisoner must overcome three
obstacles. The prisoner must: 1) “satisfy the objective component by showing that [he] had a
serious medical need”; 2) “satisfy the subjective component by showing that the prison official
acted with deliberate indifference to [his] serious medical need”; and 3) “show that the injury
was caused by the defendant's wrongful conduct.” Goebert v. Lee Cty., 510 F.3d 1312, 1326

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(11th Cir. 2007). 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, 40 F.3d at 1187) (emphasis supplied).
As for the subjective component, the Eleventh Circuit 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). Under the subjective prong, an inmate “must
prove three things: (1) subjective knowledge of a risk of serious harm; (2) disregard of that risk;
(3) by conduct that is more than [gross] negligence.” Goebert, 510 F.3d at 1327.
“The meaning of ‘more than gross negligence’ is not self-evident[.]” Id. In instances
where a deliberate indifference claim turns on a delay in treatment rather than the type of
medical care received, the factors considered are: “(1) the seriousness of the medical need; (2)
whether the delay worsened the medical condition; and (3) the reason for the delay.” Id.
Moreover, a difference in opinion between the prison’s medical staff and the prisoner as
to diagnosis or course of treatment does not amount to a claim under the Constitution. Harris,
941 F.2d at 1505 (citation omitted). Only when deliberate indifference to an inmate’s serious
medical needs is demonstrated to be “repugnant to the conscience of mankind” or offensive to
“evolving standards of decency” will it give rise to a valid claim of mistreatment under the
Eighth Amendment. Id.
A.

Whether Plaintiff States a Claim for Relief Against Defendant Broome

In their recent Motion to Dismiss, Defendants Broome and Middleton do not contest that
Plaintiff had a serious medical need. They also make no arguments as to the element of
causation. Rather, they focus on the “subjective prong” and argue that Plaintiff’s Complaint fails
to allege that they acted with deliberate indifference.

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(Doc. 23-1, p. 6.)

As to Broome

specifically, Defendants allege that Plaintiff has made “very vague claims” and that he has
“merely alleged that Dr. Broome and the orthopedist at Augusta State Medical Prison had
different opinions over [Plaintiff’s] course of treatment[.]” Id.
Defendants’ arguments border on frivolity. Accepting Plaintiff’s allegations as true, as
the Court must at this stage, Broome does not merely have a difference of medical opinion with
the orthopedist at ASMP. Rather, Broome has refused Plaintiff prescribed medical treatment
based solely on the cost of the treatment and Plaintiff’s life sentence. (Doc. 22, pp. 1–2.) Issues
of funding “cannot justify an unconstitutional lack of competent medical care or treatment of
inmates.” Anderson v. City of Atlanta, 778 F.2d 678, 688 n.14 (11th Cir. 1985); see also
Vasquez v. Rogers, No. CIV A 5:07-CV-366 HL, 2008 WL 248479, at *1 (M.D. Ga. Jan. 28,
2008) (“Thus, if [plaintiff] can show that he had a serious medical need for which a CAT-scan
was a necessary medical procedure, and that Prison Health Services refused to provide the
procedure because of a policy of refusing medical treatments because of cost, he might be able to
maintain a claim against Prison Health Services.”); Allen v. Burnside, No. CIV.A.
506CV151CAR, 2007 WL 2904018, at *7 (M.D. Ga. Sept. 28, 2007) (“financial concerns are
not a justifiable reason to withhold treatment”). As this Court has explained, “[t]he Eleventh
Circuit has rejected the idea that ‘financial considerations must be considered in determining the
reasonableness’ of inmates’ medical care to the extent that such a rationale could ever be used by
so-called ‘poor states’ to deny a prisoner the minimally adequate care to which he or she is
entitled.’” Gonzalez v. Ferrell, 5:08-cv-43, 2008 WL 4345161, at *3 (S.D. Ga. Sept. 23, 2008)
(quoting Harris, 941 F.2d at 1505). Even if Broome intends to eventually allow Plaintiff to
undergo the surgery, Plaintiff has already suffered a delay in his prescribed surgery of
approximately nineteen months. “Cost is not a factor which can justify the lack of timely

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medical treatment for [a serious medical condition].” Fields v. Corizon Health, Inc., 490 F.
App’x 174, 185 (11th Cir. 2012). Consequently, Broome’s alleged cost-based refusal to follow
the ASMP orthopedist’s prescription for Plaintiff to have an urgent operation constitutes
deliberate indifference.
Defendants contend that Broome’s refusal to provide Plaintiff the treatment prescribed by
the orthopedist is a “‘classic example of a matter for medical judgment.’” (Doc. 23-1, p. 6
(quoting Adams v. Poag, 61 F.3d 1537, 1545 (11th Cir. 1995).) This characterization entirely
ignores Plaintiff’s allegations.

As Plaintiff explains in response to Defendant’s Motion to

Dismiss, “Plaintiff was not sent to [ASMP] for a second opinion but to receive medical
evaluations/treatment that officials at [GSP] couldn’t provide.” (Doc. 26, p. 2.) After receiving
that evaluation, Broome did not decide to pursue some alternative treatment. Cf. Wright v.
Henderson, No. 5:10-CV-201 MTT, 2012 WL 3066471, at *2 (M.D. Ga. June 29, 2012)
(“[Physician’s] choice of which hypertension medication to prescribe is an issue of medical
judgment.”). Rather, Broome allegedly continues to ignore the orthopedist’s recommendation
and refuses to treat Plaintiff’s condition for non-medical reasons. Gonzalez, No. 5:08-CV-43,
2008 WL 4345161, at *3 (“In short, [plaintiff] is not objecting to the level or type of treatment he
has received at the prison, but complains that [the physician] will not treat him at all.”); see also
Monn v. Nields, No. 3:15-CV-703-J-34MCR, 2016 WL 70615, at *5 (M.D. Fla. Jan. 6, 2016)
(“Although [physician] asserts that [prisoner plaintiff’s] allegations reflect mere negligence or a
difference of opinion, that assertion ignores [plaintiff’s] specific assertions. . . . Accepting the
reasonable inference that [the physician’s] decision under these circumstances was not a
reasoned medical decision, these allegations are sufficient to state a deliberate indifference
claim.”).

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For all of these reasons, Plaintiff has stated a plausible claim that Broome violated
Plaintiff’s Eighth Amendment rights by exhibiting deliberate indifference to Plaintiff’s serious
medical needs. Thus, the Court should DENY this portion of Defendants’ Motion to Dismiss.
B.

Whether Plaintiff States a Claim for Relief Against Defendant Middleton

Similar to his claims against Defendant Broome, Plaintiff’s claims against Defendant
Middleton sound in deliberate indifference, not in negligence or a difference in medical opinion.
Defendants argue that “Plaintiff has not alleged any conduct showing that Nurse Middleton acted
with ‘more than mere negligence.’” (Doc. 23-1, p. 5.) They also argue that Plaintiff has only
made “vague allegations” that Middleton “ignored his requests [sic] of hip pain at some
unknown time.” Id. To the contrary, according to Plaintiff, Middleton “ignored” his complaints
of “unbearable” hip pain “for about a year”, which led Plaintiff to file a grievance on September
16, 2014. (Doc. 22, pp. 1–2.) In the year before he filed that grievance, Plaintiff was called into
medical “several times” to see Middleton and Defendant Nurse Ferra regarding his “very
obvious” hip pain. (Id. at p. 1.) However, despite the open and obvious nature of Plaintiff’s
injury, Middleton “ignored” his complaints and refused to provide Plaintiff any reasonable
evaluations or other treatment. Id. Rather, she told him that his pain was due to the weather and
had him escorted out of the medical unit. Id. It was not until November of 2014, after Plaintiff
filed an appeal of the denial of his grievance, that Middleton and Ferra scheduled Plaintiff for an
appointment with an orthopedist. (Id. at p. 2.)
Delaying treatment for serious and painful injuries has been “clearly recognized as rising
to the level of a constitutional claim.” Harris v. Coweta Cty., 21 F.3d 388, 393 (11th Cir. 1994)
(citations omitted). On claims of delay, the Court should consider “(1) the seriousness of the

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medical need; (2) whether the delay worsened the medical condition; 2 and (3) the reason for the
delay.” Goebert, 510 F.3d at 1327. Here, Plaintiff alleges a quite serious medical condition
which causes him unbearable and obvious pain. Despite these complaints, Middleton refused to
evaluate or treat Plaintiff for approximately a year. According to Plaintiff, he suffered increased
pain and his condition worsened during the delay in his treatment. Moreover, Middleton did not
provide him any reason for her delay in evaluating or treating him but instead ignored his
complaints. Horn v. Jones, No. 14-20341-CIV, 2015 WL 3607012, at *6 (S.D. Fla. May 8,
2015) (denying motion to dismiss based on nineteen-month delay in inmate’s hip removal
surgery).
Defendants argue that Plaintiff “has not alleged that Nurse Middleton knew that he was
diagnosed with avascular necrosis, knew of the results of the December 2014 MRI, or knew that
he was allegedly prescribed hip surgery, nor has Plaintiff alleged that Nurse Middleton had any
medical involvement with Plaintiff after the December 2014 MRI.” (Doc. 23-1, p. 5.) This line
of reasoning ignores Plaintiff’s allegations that, for approximately a year before scheduling the
MRI, Middleton disregarded Plaintiff’s repeated and serious complaints of hip pain. To the
extent that Defendants argue that Middleton did not know of the seriousness of Plaintiff’s injury
before December 2014, the Court should reject that argument. Again, Plaintiff alleges Middleton
repeatedly refused to evaluate his hip or have him referred for an examination. Thus, based on
Plaintiff’s allegations, Middleton’s supposed lack of information regarding Plaintiff’s condition
can be attributed to her refusal to gather that information. Middleton cannot simply ignore a

2

At least one court in this Circuit has noted that proof of the second element of deliberate indifference
(that the defendant disregarded the plaintiff's serious medical need) “overlaps” with the causation
element, so that “[t]he question [becomes] whether the delay worsened the plaintiff's condition.” Dittmer
v. Bradshaw, No. 12–81309–CV, 2015 WL 471371, at *5 (S.D. Fla. Feb.4, 2015). At this early stage,
Defendants have not challenged the causation element of Plaintiff’s claims. Thus, at this time, the Court
need not determine the level of specificity required to properly plead causation.

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prisoner’s obvious medical condition and then later use her ignorance to argue that she was not
aware of the seriousness of the prisoner’s condition. The Constitution requires more of prison
medical providers.
Consequently, Plaintiff states a plausible claim of deliberate indifference against
Defendant Middleton as well.

Thus, the Court should DENY this portion of Defendants’

Motion.
III.

Whether Qualified Immunity Shields Defendants Broome and Middleton at This
Stage
Defendants Broome and Middleton both invoke the doctrine of qualified immunity in

their Motion to Dismiss.

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). “The purpose of this immunity is to allow government officials
to carry out their discretionary duties without the fear of personal liability or harassing
litigation[.]” Lee, 284 F.3d at 1194. “Qualified immunity should be applied at the earliest
possible stage of litigation, and it is therefore appropriate to decide its applicability on a motion
to dismiss. Often however, this is not possible, and for this reason it is more typically addressed
at summary judgment.” Horn, No. 14-20341-CIV, 2015 WL 3607012, at *6; see also Marshall
v. Fla. Dep’t of Corr., No. 10–20101–cv, 2011 WL 1303213, at *4 (S.D. Fla. March 31, 2011)
(“[W]here it is not evident from the allegations of the complaint alone that a defendant is entitled
to qualified immunity, the case will proceed to the summary judgment stage, the most typical
juncture at which defendants entitled to qualified immunity are released from the threat of
liability and the burden of further litigation.”) (emphasis in original) (citation omitted).

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To receive qualified immunity, Defendants must first establish that they were acting
within their discretionary authority during the events in question. Cottone v. Jenne, 326 F.3d
1352, 1357 (11th Cir. 2003). Here, Plaintiff does not contest this issue, and it appears that
Broome and Middleton were acting within their respective discretionary authorities when
making decisions relevant to Plaintiff’s medical treatment. Thus, the burden shifts to Plaintiff to
show that Broome and Middleton are not entitled to qualified immunity. Id. at 1358. To make
this showing Plaintiff must first establish the violation of a constitutional right on the facts
alleged. Saucier v. Katz, 533 U.S. 194, 200 (2001); Gilmore v. Hodges, 738 F.3d 266, 272 (11th
Cir. 2013). As explained in Section II above, Plaintiff has alleged conduct by Broome and
Middleton that, if proven true, plausibly establishes a violation of Plaintiff’s Eighth Amendment
rights. Consequently, his Complaint satisfies the first qualified immunity prong.
Having alleged a constitutional violation, Plaintiff must next demonstrate that the
constitutional right was clearly established at the time of the alleged misconduct. Saucier, 533
U.S. at 200. 3

“The relevant, dispositive inquiry in determining whether a right is clearly

established is whether it would be clear to a reasonable officer that his conduct was unlawful in
the situation he confronted.” Saucier, 533 U.S. at 202; Wilson v. Layne, 526 U.S. 603, 615
(1999). “The ‘very action in question’ does not have to have been previously held unlawful, but
the unlawfulness of the conduct must be apparent in light of pre-existing law.” Coweta Cty., 21
F.3d at 393 (citing Anderson v. Creighton, 483 U.S. 635, 640 (1987)).
Viewed most generally, Plaintiff alleges that Defendants Broome and Middleton violated
his Eighth Amendment rights by being deliberately indifferent to his serious medical needs. It
has been well established for at least forty years that deliberate indifference to a prisoner’s
3

The Supreme Court has clarified, however, that courts need not analyze these qualified immunity steps
sequentially. See Pearson v. Callahan, 555 U.S. 223, 236 (2009).

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serious illness or injury constitutes cruel and unusual punishment, in violation of Eighth
Amendment. Estelle v. Gamble, 429 U.S. 97 (1976). More specifically, Plaintiff alleges that
Defendants have delayed and (at least as to Broome, continue to delay) the treatment which has
been prescribed to treat his serious and painful hip condition. The Eleventh Circuit has long held
that “delay in treatment of serious and painful injuries” rises to the level of a constitutional
claim. Coweta Cty., 21 F.3d at 393. However, “[t]he tolerable length of delay in providing
medical attention depends on the nature of the medical need and the reason for the delay.” Id.
at 394.
As set forth above, Plaintiff has alleged a painful, debilitating, and worsening hip
condition. Moreover, an orthopedist has prescribed “urgent” surgery for this condition. Thus,
the nature of Plaintiff’s injury, as alleged, is quite serious. As to Defendant Broome, he has
already delayed Plaintiff’s treatment for at least nineteen months (when measured from the time
the orthopedist prescribed Plaintiff hip surgery). On the facts at hand, the only “reason for the
delay” is the cost of the surgery. The Eleventh Circuit issued a number of decisions before the
events in question that would put a reasonable prison medical director on notice that he violates
an inmate’s Eighth Amendment rights by substantially delaying or denying the inmate necessary
medical care for nonmedical reasons, including cost savings. See, e.g., Farrow v. West, 320 F.3d
1235, 1246–47 (11th Cir. 2003) (fifteen month delay in providing prisoner needed dentures,
which caused him pain, bleeding and swollen gums and weight loss, raised jury question whether
doctor was deliberately indifferent toward prisoner’s serious medical need); Fields, 490 F. App’x
at 185 (“[C]ost is not a factor which can justify the lack of timely medical treatment for [a
serious medical need].”) (citing Ancata v. Prison Health Servs., 769 F.2d 700, 705 (11th Cir.
1985) (“Lack of funds for facilities cannot justify an unconstitutional lack of competent medical

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care or treatment of inmates.”)); Coweta Cty., 21 F.3d at 394 (“Under the clearly established
legal norms, a reasonable sheriff would have known that delaying prescribed treatment for a
serious medical need for several weeks for a nonmedical reason may violate an inmate’s
constitutional rights.”); see also Horn, No. 14-20341-CIV, 2015 WL 3607012, at *6 (denying
qualified immunity on claim that doctor delayed prisoner’s hip surgery for nineteen months).
These cases, and others, defined the contours of deliberate indifference to medical needs with
sufficient particularity to put Broome on notice of the unlawfulness of his alleged conduct.
As to Middleton, Plaintiff alleges that she ignored his condition and failed to evaluate
him or provide him any treatment for over a year. Long before Middleton allegedly refused to
evaluate Plaintiff for this extended period, “the law was clearly established that several weeks
was too long to fail to properly respond to [an inmate’s serious] medical need.” Coweta Cty., 21
F.3d at 394. “The law was also clearly established that the right to medical care may include
diagnostic tests known to be necessary, not just medicinal and surgical care.” Id. (citing H.C. by
Hewett v. Jarrard, 786 F.2d 1080, 1086 (11th Cir. 1986)). As to “the reason for the delay,”
Middleton apparently never offered any explanation for her refusal to evaluate Plaintiff. Over
twenty years ago, the Eleventh Circuit held that “it was clear that deliberate indifference could be
inferred from an unexplained delay in treating a known or obvious serious medical condition.”
Id. Thus, a reasonable nurse in Middleton’s position would have known that she violated
Plaintiff’s Eighth Amendment rights by delaying Plaintiff’s provision of medical care in the
circumstances he alleges.

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Consequently, the Court should DENY this portion of Defendants’ Motion, as these
Defendants are not entitled to the dismissal of Plaintiff’s claims against them on the basis of
qualified immunity.
CONCLUSION
For all of the above stated reasons, I RECOMMEND that the Court DENY Defendants
Broome and Middleton’s Motion to Dismiss Plaintiff’s Second Amended Complaint. (Doc. 23.)
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.
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

15

judgment entered by or at the direction of a District Judge. The Clerk of Court is DIRECTED
to serve a copy of this Report and Recommendation upon the parties.
SO ORDERED and REPORTED and RECOMMENDED, this 16th day of June,
2016.

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

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