Winberly Jr. v. Broome et al

Filing 75

REPORT AND RECOMMENDATIONS of the Magistrate Judge that the Court DISMISS as moot in part and DENY in part Defendants' 64 and 68 MOTIONS for Summary Judgment. The Court should DISMISS as moot the portions of Defendants' Motions addressi ng Plaintiff's requests for injunctive relief and DENY all other portions. The Court should also DISMISS without prejudice Plaintiff's claims for injunctive relief. The Court ORDERS any party seeking to object to this Report and Recommendat ion 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 1/2/2018). ORDER directing service of the REPORT AND RECOMMENDATION of the Magistrate Judge. Signed by Magistrate Judge R. Stan Baker on 12/19/2017. (ca)

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; GAIL FERRA; and
NURSE MARTHA MIDDLETON,
Defendants.
ORDER and MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Presently before the Court are Defendants’ Motions for Summary Judgment. (Docs. 64,
68.) Plaintiff filed Responses, (docs. 72, 73), and Defendant Ferra filed a Reply, (doc. 74). For
the reasons and in the manner set forth below, I RECOMMEND that the Court DISMISS AS
MOOT IN PART and DENY IN PART Defendants’ Motions for Summary Judgment. The
Court should DISMISS AS MOOT the portions of Defendants’ Motions addressing Plaintiff’s
requests for injunctive relief and DENY all other portions of the Motions. Additionally, given
the mootness of Plaintiff’s claims for injunctive relief, the Court should DISMISS those claims
WITHOUT PREJUDICE.
BACKGROUND 1
Plaintiff was born with one leg shorter than the other. (Doc. 22, p. 1.) As a result of this
condition, Plaintiff requires a cane, an orthotic, or other walking aid. (Id.; Doc. 64-5, p. 4.) In

1

The recited facts represent the facts in the record and draw all reasonable inferences in the light most
favorable to Plaintiff, the non-moving party. See Peppers v. Cobb Cty., 835 F.3d 1289, 1295 (11th
Cir. 2016). The Court recognizes that Defendants’ version of events differs from Plaintiff’s in several key
areas. For example, Defendants state that they never told Plaintiff his surgery could not be performed
because it was too expensive, and Defendants Middleton and Ferra assert that they never told Plaintiff to
stop filing out sick calls because there was nothing wrong with his leg or to drop his grievance.
(Docs. 64-4, 64-16, 68-2.) These factual disputes are matters for a jury to decide.

more recent years, Plaintiff’s condition has deteriorated such that he experiences “extreme pain”
in his hip and lower back during normal, daily activities including walking. (Doc. 22, p. 1.)
Sometime in late 2014, Plaintiff developed avascular necrosis. (Doc. 64-6, p. 14; Doc. 64-7, pp.
4, 6–7, 9–11.) After a convoluted three to four years of medical treatment, Plaintiff ultimately
received hip replacement surgery on April 25, 2017, and May 3, 2017. (Doc. 73-1, p. 2.)
Georgia State Prison’s (“GSP”) medical department does not offer orthopedic services.
(Doc. 64-4, p. 2.) Any request for specialized services not offered at GSP must go through the
Georgia Department of Corrections’ Utilization Management Department. (Doc. 64-2, p. 1.)
The requesting medical provider must file a Medical Consult Request with Utilization
Management who will then approve or deny the Request and schedule the time, place, and
manner of the requested medical service. (Id. at p. 2.)
Beginning in May 2013, Plaintiff notified GSP medical staff that he was having issues
with the asymmetry in his legs. (Doc. 64-5, p. 2.) After various rounds of physical therapy,
prescribed orthotics, and other pain relief measures, Plaintiff’s right hip was x-rayed on
December 10, 2013. (Doc. 64-4, p.4; Doc. 64-5, p.7.) Plaintiff also began writing letters to
Defendant Broome about the pain in his hip during this time. (Doc. 64-17, pp. 11–12.)
Despite continuing to complain of significant pain in his right hip, Plaintiff’s treatment
regimen stayed the same throughout 2014—physical therapy, orthotics, pain medication, and a
cane. (Doc. 64-5, p. 9; Doc. 64-6, pp. 2, 5, 7.) Plaintiff alleges that whenever Defendants Ferra
or Middleton conducted his examinations, they would “disregard [his] situation completely and
tell [him] there’s nothing wrong with [him].”

(Doc. 64-17, p. 19.)

Their examinations

frequently consisted of visual inspections only and a request for Plaintiff to, “Please stop filling
out sick calls. There’s nothing wrong with your hip, Wimberly.” (Id. at pp. 17–19.)

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After filing and appealing a grievance regarding his lack of treatment, Plaintiff received
another x-ray of his right hip on October 29, 2014. (Doc. 22, p. 2; Doc. 64-6, pp. 11-14.)
Plaintiff’s x-ray results were returned on November 4, 2014, and raised concerns regarding
avascular necrosis. (Doc. 64-6, p. 14.) That same day, Plaintiff alleges Defendant Ferra, in the
presence of Defendant Middleton, attempted to convince Plaintiff to “drop his medical grievance
because they were now going to provide him with proper medical care.” (Doc. 58, p. 2; Doc. 73,
pp. 1–2.) Plaintiff refused.
An MRI of Plaintiff’s right hip was conducted on December 1, 2014, which again raised
concerns for “longstanding [avascular necrosis].” (Doc. 64-7, p. 9.) Plaintiff claims that the
evaluating surgeon also “prescribed [Plaintiff] to have urgent . . . [hip] replacement surgery.”
(Doc. 22, p. 2.) Despite this “urgent” finding, Plaintiff did not see another specialist until March
24, 2015. (Doc. 64-7, pp. 2–3, 8.) This specialist again referred Plaintiff for treatment of his
right hip “ASAP.” (Id. at p. 8.)
From that point forward until April 25, 2017, Plaintiff embarked on an astonishing
medical saga of medical exams, Consult Requests, preparation for hip replacement surgery four
separate times, and cancellation of all four surgeries.

Several of these surgeries were

inexplicably cancelled, and two were cancelled the day before surgery was scheduled to occur.
(Doc. 64-10, pp. 10–11; Doc. 64-11, pp. 1–2.) Throughout this period, Plaintiff suffered extreme
pain, but his treatment regimen again remained unchanged—physical therapy, orthotics, pain
medication, and a cane.
Plaintiff also alleges that in October 2015, he “had a little meeting” with Defendant
Broome wherein Defendant Broome told Plaintiff, “Hip replacement surgery is too expensive for
someone serving a life sentence.” (Doc. 64-17, pp. 13, 15.) During that same encounter, Nurse

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Tolbert reportedly told Plaintiff that “GSP does not have the money or resources to do [your]
surgery.” (Id. at pp. 13–14.) At another juncture Plaintiff asked Physician Assistant Hall, who
placed Consult Requests for three of Plaintiff’s surgeries, why his operations were being
cancelled. She replied, “You’ve got to take that up with Dr. Broome, Wimberly. I have no
control over that. Dr. Broome is the one who orders the surgery. He’s the one that keep[s]
denying it.” (Id. at p. 17.)
Plaintiff filed this action on March 4, 2015, and filed his superseding Second Amended
Complaint on March 21, 2016. (Docs. 1, 22.) Plaintiff seeks injunctive, declaratory, and
monetary relief in his Second Amended Complaint. (Doc. 22, p. 2.) Defendants Broome and
Middleton filed a Motion for Summary Judgment on April 18, 2017, and Defendant Ferra filed a
Motion for Summary Judgment on May 19, 2017. (Docs. 64, 68.) Plaintiff filed Responses,
(docs. 72, 73), and Defendant Ferra filed a Reply, (doc. 74).
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.

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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.

Deliberate Indifference to Medical Needs
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

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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”

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,
2017 WL 2874517 (11th Cir. July 6, 2017). However, because the Eleventh Circuit explicitly addressed
this issue in the Melton case, this Court will apply the “more than mere negligence” standard.
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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 v. Foley, 182 F.3d 1248, 1255 (11th Cir. 1999)). 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).
Defendants do not contest the seriousness of Plaintiff’s medical need or their knowledge
of Plaintiff’s need. 3

Accordingly, the Court will limit its analysis to whether Defendants

disregarded Plaintiff’s medical needs with conduct that is more than mere negligence.
A.

Defendant Broome

Defendant Broome argues that he “has worked diligently to ensure that [Plaintiff]
received appropriate care for his hip” and that any delays in the surgery date were “due to
circumstances beyond Dr. Broome’s control,” specifically, his inability to expedite the
Utilization Management process. (Doc. 64-1, p. 16.) However, Plaintiff argues that, to the
contrary, Defendant Broome has delayed his surgery because it is too costly “for someone
serving a life sentence.” (Doc. 64-17, p. 15.) The motivation for the delay, whether the delay
3

Defendant Ferra stipulates to this issue only for purposes of her Summary Judgment Motion. (Doc. 68,
p. 12.)
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was beyond Defendant Broome’s control, and whether Defendant Broome acted diligently or
with deliberate indifference, are disputes of material facts that the record does not clarify.
For example, Defendant Broome claims that, as a sign of his diligence, he supervised
“other advanced medical providers in writing consults” to schedule Plaintiff’s surgery after the
December 1, 2014 MRI confirmed the necessity. (Doc. 64-1, p. 16.) However, there are
significant delays and inconsistencies with these Consult Requests. The record reveals that,
following the MRI, a Consult Request for surgery was not entered until over five months later on
May 14, 2015. 4 (Doc. 64-7, pp. 11–13.) Indeed, Defendant Broome did not even review the
MRI report until January 8, 2015. 5 (Id. at p. 9.) Confusingly, the MRI report contains a notation
from PA Caraviello indicating that Plaintiff, or perhaps the result of the MRI, was “referred
ortho 1-21-15.” (Id.) However, there is no record of this Consult Request ever being entered.
Also of note, the May 14, 2015 Consult Request is one of only four Requests ever categorized as
an “Urgent” Request in the four-year medical record before the Court. (Doc. 64-7, p. 11;
Doc. 64-5, p. 1; Doc. 64-9, p. 13; Doc. 64-10, p. 2.)
Despite this urgency, Plaintiff was still not scheduled for surgery by September 2014.
(Doc. 64-8, p. 5 (Plaintiff following up with PA Hall regarding surgery date and PA Hall
advising Plaintiff that surgery is still pending).) Indeed, the record contains no Consult Request
or any other documentation for a surgery having ever been scheduled until an October 14, 2015
Medical Encounter Form indicated that Plaintiff’s surgery for later that month was “cancelled b/c
no available surgeon at ASMP.” (Id. at p. 9.) Interestingly, the follow-up Consult Request

4

Plaintiff’s March 24, 2015, appointment with Dr. Samuel Macomson was scheduled from a Consult
Request entered on November 4, 2014, a month before the MRI results were available, and in response to
a previous specialist recommending that Plaintiff see a joint specialist. (Doc. 64-7, pp. 2–3, 8.)

5

Defendant Broome states in his affidavit that he reviewed these results on December 8, 2015, (doc. 644, p. 8), but the date signed below Defendant Broome’s signature clearly states January 8, 2015.
8

entered after this seems to indicate that medical providers have some ability to control the
scheduling process with Utilization Management. This Consult Request stated that Plaintiff had
an upcoming appointment on November 17th with Dr. Schlatterer at Atlanta Medical Center.
(Doc. 64-8, pp. 11–14.) Utilization Management thereafter approved the Request and scheduled
Plaintiff for an appointment on November 17, 2015, with Dr. Schlatterer. (Id.) 6
These Consult Requests are just a few examples of how the record only raises more
questions as to the diligence of Defendant Broome’s efforts in obtaining surgery. In fact,
Defendant Broome’s admitted personal involvement in Plaintiff’s case—a year after Plaintiff
was recommended “urgent” hip replacement surgery—only underscores these inconsistencies.
Defendant Broome provides no explanation as to why he waited a year to personally involve
himself in Plaintiff’s case and why his involvement only lasted for a period of a few months.
(Doc. 64-8, pp. 10–12; Doc. 64-9, pp. 13–16; Doc. 64-10, pp. 1–4.) Moreover, according to
Plaintiff, Defendant Broome told Plaintiff that his hip surgery was too expensive, and PA Hall
stated that Defendant Broome was the one delaying his surgery. (Doc. 64-17, pp. 13, 15, 17.)
Reading these facts, in addition to the fact that Plaintiff ultimately did not receive his
“urgent” hip replacement surgery until nearly three years later, in a light most favorable to
Plaintiff, a reasonable jury could infer that Defendant Broome intentionally delayed Plaintiff’s
surgery for cost-related reasons. See Ancata v. Prison Health Servs., Inc., 769 F.2d 700 (11th
Cir. 1985) (“The knowledge of the need for medical care and intentional refusal to provide that
care has consistently been held to surpass negligence and constitute deliberate indifference.”);
see also Fields v. Corizon Health, 490 F. App’x 174, 178 (11th Cir. 2012) (“[C]ost is not a factor
which can justify the lack of timely medical treatment for [a serious medical need].”).
6

The Court notes that a later Consult Request indicated Plaintiff had an appointment on February 2,
2016, with Dr. Schlatterer, and although Utilization Management approved an appointment for March 1,
2016, it was still with Dr. Schlatterer. (Doc. 64-9, pp. 10–11.)
9

Accordingly, the Court should DENY this portion of Defendants Broome and Middleton’s
Motion for Summary Judgement.
B.

Defendant Middleton

Defendant Middleton contends Plaintiff cannot show she acted with deliberate
indifference because she was not working at GSP during the relevant time period, and because
“Plaintiff has received extensive care for his hip since 2013.” (Doc. 64-1, p. 17.) Plaintiff
argues that Defendant Middleton refused to provide him “adequate medical care and/or
reasonable evaluations.” (Doc. 22, p. 1.) Specifically, Plaintiff alleges that she disregarded his
hip injury and warned him to stop filling out sick calls. (Id.)
First, it appears that there is a dispute as to whether Defendant Middleton worked at GSP
during the time period Plaintiff claims Defendant Middleton refused to provide him care.
Defendant Middleton claims that she worked as a registered nurse for GSP only until September
10, 2013. (Doc. 64-16, p. 1.) However, Plaintiff claims in his deposition that Defendant
Middleton’s misconduct occurred in 2014. (Doc. 64-17, p. 18.) As further support, Plaintiff
provides two of his health services forms that Defendant Middleton responded to in 2014.
(Doc. 73-1, pp. 4–5.)

Thus, there is a threshold factual dispute as to whether Defendant

Middleton was even in a position to provide Plaintiff care during the relevant period.
Second, there is a factual dispute as to the level of care Defendant Middleton provided.
Defendant Middleton avers that, although she did not have the authority to give Plaintiff
prescriptions, write orders for profiles, or write Consult Requests, she never “den[ied] him
medical treatment or . . . access to more advanced medical providers.” (Doc. 64-16, p. 2.)
Plaintiff claims precisely the opposite; Defendant Middleton not only refused to treat his hip but
failed to properly examine it altogether. (Doc. 64-17, pp. 18–19.)

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Based on these two conflicting statements, a reasonable jury could infer that Defendant
Middleton provided “grossly inadequate care” or “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,
while it is true that Plaintiff did receive some care from other medical providers, it is not
apparent in the record before the Court whether Defendant Middleton was responsible for
Plaintiff seeing these other medical providers or whether some other nurse recommended
Plaintiff to these medical providers. Thus, Plaintiff’s medical treatment by other providers has
no bearing on Defendant Middleton’s liability. See Burnette v. Taylor, 533 F.3d 1325, 1331
(11th Cir. 2008) (“Each individual defendant must be judged separately and on the basis of what
that person knows.”)
Accordingly, the Court should DENY this portion of Defendants Broome and
Middleton’s Motion for Summary Judgment.
C.

Defendant Ferra

Defendant Ferra argues that Plaintiff’s claims fail because she provided “appropriate,
timely, and responsive care to Plaintiff.” (Doc. 68-1, p. 11.) Additionally, Defendant Ferra
claims that she “d[oes] not recall” telling Plaintiff to drop his grievance because she would
provide him proper medical care or to stop filling out sick calls because there was nothing wrong
with his hip or leg. (Doc. 68-2, pp. 6, 8.) Plaintiff again argues the opposite: that Defendant
Ferra refused to provide him treatment for his hip until he filed a grievance, and once he filed his
grievance, Defendant Ferra attempted to have Plaintiff withdraw it by promising him proper
medical care.
Reading the record in the light most favorable to Plaintiff, there is a dispute of material
fact as to whether Defendant Ferra provided appropriate treatment for Plaintiff’s hip. The

11

Medical Encounter and Consult Request forms Defendant Ferra filled out consistently diagnosed
Plaintiff as only having back pain, even though Plaintiff consistently complained of hip pain to
other medical providers prior to seeing Defendant Ferra. Compare (Doc. 64-5, pp. 5, 8–9; Doc.
64-6, p. 5) with (Doc. 68-2, pp. 15–18, 20, 24–25, 28.) Indeed, it is not until November 4,
2014—after Plaintiff filed and appealed his grievance for lack of medical care—that Defendant
Ferra mentioned Plaintiff’s right hip pain and potential avascular necrosis. On this same date,
Plaintiff claims that Defendant Ferra attempted to have him withdraw his grievance because
“they were now going to provide him with proper medical care.” (Doc. 58, p. 2 (emphasis
added).) Thus, as the record stands, a reasonable jury could infer that Defendant Ferra provided
“grossly inadequate care” or “medical care that is so cursory as to amount to no treatment at all”
by refusing to diagnose Plaintiff’s hip injury until Plaintiff filed and appealed a grievance. See
McElligott, 182 F.3d at 1255–59 (11th Cir. 1999) (“Severe pain that is not promptly or
adequately treated can also constitute a serious medical need depending on the circumstances.”)
Accordingly, the Court should DENY this portion of Defendant Ferra’s Motion for
Summary Judgment.
II.

Whether Defendants Broome and Middleton are Entitled to Qualified Immunity 7
Defendants Broome and Middleton argue that, even if Plaintiff states plausible claims for

relief against them, they are entitled to qualified immunity as to those claims. (Doc. 64-1,
pp. 18–19.) At the outset, the Court notes that it previously addressed and rejected Defendants
Broome and Middleton’s qualified immunity arguments in great detail. (Doc. 30, pp. 11–14;
Doc. 34.)

Defendants Broome and Middleton do not provide any new arguments, and

accordingly, the Court does not alter its analysis.

7

Defendant Ferra does not raise a qualified immunity defense in her Motion for Summary Judgment.
12

Indeed, the serious factual disputes discussed above only highlight the fact that
Defendants Broome and Middleton are not entitled to qualified immunity at this stage. As stated
in the undersigned’s previous Report and Recommendation adopted by the Court, Eleventh
Circuit case law clearly establishes that it is unconstitutional to delay or deny an inmate
necessary medical care for nonmedical reasons. (Docs. 30, 34.) “A judicial precedent with
materially identical facts is not essential for the law to be clearly established, but the preexisting
law must make it obvious that the defendant’s acts violated the plaintiff’s rights in the specific
set of circumstances at issue.” Youmans v. Gagnon, 626 F.3d 557, 563 (11th Cir. 2010). The
Eleventh Circuit is replete with preexisting law in this area. See, e.g., Farrow, 320 F.3d at 1246–
47 (fifteen month delay in providing prisoner needed dentures, which caused him pain, bleeding,
swollen gums, and weight loss, raised jury question whether doctor was deliberately indifferent
to prisoner’s serious medical need); Harris v. Coweta Cty., 21 F.3d 388, 394 (11th Cir. 1994)
(“[T]he law was clearly established that several weeks was too long to fail to properly respond to
the medical need . . . . [I]t was clear that deliberate indifference could be inferred from an
unexplained delay in treating a known or obvious serious medical condition.”); cf. Sealey v.
Pastrana, 399 F. App’x 548 (11th Cir. 2010) (finding no deliberate indifference where plaintiff
failed to provide any evidence that the clinical director, and not the Bureau of Prisons’
committee, was responsible for denying his hip surgery).
“Because the ‘contours of unreasonable delay in providing treatment for serious medical
needs were defined with enough particularity to allow [Defendants] . . . to understand whether
[their] actions were unlawful,” Defendants Broome and Middleton should not be entitled to
immunity. Melton, 841 F.3d at 1207, 1229. Sufficient case law exists to put Defendant Broome
on notice that it is unlawful to deny Plaintiff required hip surgery for non-medical reasons, such

13

as cost. Sufficient case law also exists to notify Defendant Middleton that delaying treatment of
Plaintiff’s right hip—or even giving him such cursory examinations as to amount to no treatment
at all—is unlawful.
Accordingly, the Court should also DENY this portion of Defendants Broome and
Middleton’s Motion for Summary Judgment.
III.

Plaintiff’s Injunctive Relief Claims
Article III of the Constitution “extends the jurisdiction of federal courts to only “‘Cases’

and ‘Controversies.’” Strickland v. Alexander, 772 F.3d 876, 882 (11th Cir. 2014) (citations
omitted).

This “case-or-controversy restriction imposes” what is “generally referred to as

‘justiciability’ limitations.” Id. There are “three strands of justiciability doctrine—standing,
ripeness, and mootness—that go to the heart of the Article III case or controversy requirement.”
Harrell v. The Fla. Bar, 608 F.3d 1241, 1247 (11th Cir. 2010) (internal quotation marks and
alterations omitted). With regard to the mootness strand, the United States Supreme Court has
made clear that “a federal court has no authority ‘to give opinions upon moot questions or
abstract propositions, or to declare principles or rules of law which cannot affect the matter in
issue in the case before it.’” Church of Scientology of Cal. v. United States, 506 U.S. 9, 12
(1992) (internal citation omitted). Accordingly, “[a]n issue is moot when it no longer presents a
live controversy with respect to which the court can give meaningful relief.”

Friends of

Everglades v. S. Fla. Water Mgmt. Dist., 570 F.3d 1210, 1216 (11th Cir. 2009) (internal
quotation marks omitted). Questions of justiciability are not answered “simply by looking to the
state of affairs at the time the suit was filed. Rather, the Supreme Court has made clear that the
controversy ‘must be extant at all stages of review, not merely at the time the complaint is

14

filed.’” Christian Coal. of Fla., Inc. v. United States, 662 F.3d 1182, 1189–90 (11th Cir. 2011)
(quoting Preiser v. Newkirk, 422 U.S. 395, 401 (1975)).
Plaintiff notified the Court in his Response to Defendants Broome and Middleton’s
Motion for Summary Judgement that he received hip replacement surgery on April 25, 2017, and
May 3, 2017. (Doc. 73-1, p. 2.) Because Plaintiff has been granted his surgery, the issue of
Plaintiff’s injunctive relief is now moot. Accordingly, the Court should DISMISS AS MOOT
the portion of Defendants’ Motions for Summary Judgment addressing Plaintiff’s requests for
injunctive relief. However, given that Plaintiff’s injunctive relief claims are now moot, the court
should DISMISS those claims WITHOUT PREJUDICE.
CONCLUSION
Based on the foregoing, I RECOMMEND that the Court DISMISS AS MOOT IN
PART and DENY IN PART Defendants’ Motions for Summary Judgment. (Docs. 64, 68.)
The Court should DISMISS AS MOOT the portions of Defendants’ Motions addressing
Plaintiff’s requests for injunctive relief and DENY all other portions. The Court should also
DISMISS WITHOUT PREJUDICE Plaintiff’s claims for injunctive relief.
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 19th day of December,
2017.

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

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