Winberly Jr. v. Broome et al
ORDER ADOPTING 75 Report and Recommendations, DISMISSES as Moot in Part and DENIES in Part 64 , 68 Motions for Summary Judgment. Specifically, the Court DISMISSES AS MOOT all portions of Defendants' Motions addressing Plaintiff's requests for injunctive relief and DENIES all other portions. Furthermore, given the mootness of Plaintiff's claims for injunctive relief, the Court DISMISSES those claims WITHOUT PREJUDICE. Signed by Chief Judge J. Randal Hall on 03/06/2018. (maa)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
CIVIL ACTION NO.: 6:15-cv-23
DEAN BROOME; GAIL FERRA; and
NURSE MARTHA MIDDLETON,
Presently before the Court are Defendants Broome and Terra's Objections to the
Magistrate Judge's Report and Recommendation. (Docs. 76, 77.) After an independent and de
novo review of the entire record, the undersigned concurs with the December 19, 2017, Report
and Recommendation, (doc. 75).
Accordingly, the Court OVERRULES Defendants'
Objections and ADOPTS the Magistrate Judge's Report and Recommendation, as supplemented
herein, as the opinion of the Court. The Court DISMISSES AS MOOT IN PART and
DENIES IN PART Defendants' Motions for Summary Judgment. (Docs. 64, 68.) The Court
DISMISSES AS MOOT the portions of Defendants' Motions addressing Plaintiffs requests for
injunctive relief and DENIES all other portions of the Motions. Additionally, given the
mootness of Plaintiffs claims for injunctive relief, the Court DISMISSES those claims
Plaintiff filed this action pursuant to 42 U.S.C. § 1983, contending that Defendants were
deliberately indifferent to his serious medical needs when they failed to timely provide him with
a hip replacement surgery. (Doc. 1.) The Court conducted the requisite frivolity review,
(doc. 12), and Defendants Broome and Middleton then filed a Motion to Dismiss,(doc. 23), to
which Plaintiff filed a Response, (doc. 26).
On June 16, 2016, the Magistrate Judge
recommended that the Court deny Defendants Broome and Middleton's Motion to Dismiss, and
this Court adopted that Recommendation on July 18,2016,(doc. 34).' Subsequently, Defendants
filed a Motion for Summary Judgment,(docs. 64, 68), to which Plaintiff filed Responses,(docs.
72, 73). The Magistrate Judge recommended the Court dismiss as moot in part and deny in part
Defendants' Motions for Summary Judgment. (Doc. 75.) In particular, the Magistrate Judge
recommended dismissing as moot any issues regarding injunctive relief and denying all other
portions of the Motions. (Id.)
Defendants Broome and Ferra filed separate Objections to the Magistrate Judge's
recommendation that the Court deny summary judgment. (Docs. 76, 77.) Defendant Broome
contends that the Magistrate Judge improperly relied on the evidence to determine that
Defendant Broome had deliberately disregarded a serious medical need. (Doc. 76, pp. 1-4.)
Defendant Ferra contends that there is insufficient evidence in the record to establish that she
was deliberately indifferent to Plaintiffs serious medical need, (doc. 77, pp. 2-6), and
insufficient evidence to establish her causal role in Plaintiffs injury,(id. at pp. 7-8). The Court
addresses each ofthese Objections in turn.
' Defendant Ferra was served at a later date and also filed a Motion to Dismiss, (doc. 49), which this
Court denied,(docs. 53,62).
Whether Defendant Broome Deliberately Disregarded Plaintiffs Serious Medical
Defendant Broome contends that the Magistrate Judge erred in coming to certain
conclusions based upon the record. (Doc. 76, p. 1.) Specifically, Defendant Broome contests the
Magistrate Judge's conclusions drawn from Defendant Broome entering a Consult Request for
surgery "over five months [after the December 1, 2014 MRI] on May 14, 2015,"(id at pp. 1-2
(citing doc. 75, p. 8)), and the treatment Plaintiff received from May to October 2015,(id at
However, Defendant Broome's Objections only highlight what the Magistrate Judge
ultimately determined—that the record, when viewed in the light most favorable to Plaintiff,
"only raises more questions as to the diligence of Defendant Broome's efforts in obtaining
surgery." (Doc. 75, p. 9.) Defendant Broome argues that, as soon as Plaintiffs December 1,
2014 MRI indicated "longstanding [avascular necrosis]," (doc. 64-7, p. 9), he "was aware that
the Plaintiff was going to an orthopedic consult in March 2015,"(doc. 75, p. 2), and presumably
did not think it necessary to schedule an earlier appointment. Even if this were true, the Consult
Request for this appointment indicates that Plaintiff was originally scheduled to see a specialist
on December 4, 2014, but Georgia State Prison notified Utilization Management on February 24,
2015, to reschedule the appointment. (Doc. 64-7, p. 3.) No explanation is provided as to why a
request to reschedule was not made until two months after the original appointment date and
MRI test date, who at Georgia State Prison ordered this rescheduling, or even why it occurred.
Indeed, viewing the entirety of the record in the light most favorable to Plaintiff, a reasonable
jury could conclude that Dr. Broome created this delay due to the cost of hip replacement
Dr. Broome also claims that the delay from December 2014 to May 2015 was
exacerbated by Utilization Management sending Plaintiff to a neurosurgeon instead of an
orthopedic specialist. Dr. Broome claims that "upon learning [of this error], Dr. Broome then
supervised PA Caraviello in May of 2015 in writing another Consult Request. . . ." (Doc. 76,
p. 2.) However, this fact only raises more questions as to Dr. Broome's diligence. Dr. Broome
did not submit a Consult Request until two months after Plaintiff saw the wrong specialist—even
though that same specialist recommended a referral to "ortho for [right] hip ASAP,"(doc. 64-7,
p. 8), five months after Plaintiff was recommended for "urgent hip replacement surgery,"
(doc. 22, p. 2), and nearly seven months after Plaintiffs x-ray results identified possible
avascular necrosis,(doc. 64-6, p. 14).
Even setting aside these particular facts and the specific facts contested by Defendants in
subpart B of their Response, the entirety of the record reveals that Plaintiff was diagnosed with
longstanding avascular necrosis in late 2014. Despite the necessity for urgent surgery. Plaintiff
did not receive surgical treatment until nearly three years later. Defendant Broome argues that
the delays were due to circumstances beyond his control, and that he worked "diligently to
ensure . .. Plaintiff received the appropriate care for his hip . ..." (Doc. 76, p. 4.)^ However,
despite the numerous Consult Requests submitted "under Dr. Broome's supervision," Qd), only
^ There is also a dispute offact as to whether Dr. Broome knew Plaintiff was scheduled to see the wrong
doctor. Dr. Broome avers that he oversaw all the Consult Requests, and indeed, he signed off on this
particular Consult Request. (Doc. 64-7, p. 6.) However, Utilization Management's response to this
Consult Request for an "ortho joints" specialist clearly lists Dr. Macomson, the neurosurgeon, as the
"provider" when the appointment was made. (Doc. 64-7, p. 2.) Whether Dr. Broome knew Dr.
Macomson was a neurosurgeon at the time the appointment was made is not clear from the record.
^ Dr. Broome also argues that, during this time period, he ensured Plaintiff "was prescribed pain
medication . . . [and] received prison profiles to help alleviate his pain," such as a prescription for
orthotics, a cane, and a bottom bunk. (Doc. 76, p. 4.) However, in light of Plaintiffs need for hip
replacement surgery, a reasonable jury could interpret these actions as "a decision to take an easier but
less efficacious course oftreatment." McElligott v. Folev. 182 F.3d 1248, 1255 (11th Cir. 1999).
three were ever categorized as "urgent" following Plaintiffs diagnosis, (doc. 64-7, p. 11;
doc. 64-9, p. 13; doc. 64-10, p. 2). Even more telling, the first "urgent" Request was not entered
until May 14, 2015—five months after an MRI confirmed longstanding avascular necrosis. The
other two "urgent" Requests were not entered until March and April of2016.
These facts, combined with Plaintiffs claims that Dr. Broome specifically told Plaintiff
that surgery was "too expensive for someone serving a life sentence," (doc. 64-17, pp. 13, 15),
create a genuine dispute of material fact as to whether Dr. Broome purposely delayed Plaintiffs
surgery due to cost. Accordingly, the Court cannot decide as a matter of law that Defendant
Broome did not act with "more than mere negligence" during the course of Plaintiffs medical
treatment. Melton v. Abston. 841 F.3d 1207, 1223(11th Cir. 2016).
Whether Defendant Ferra Deliberately Disregarded Plaintiffs Serious Medical
Defendant Ferra argues that the medical record shows that she did not provide "grossly
inadequate care" or "medical care that is so cursory as to amount to no treatment at all."
(Doc. 77, p. 2.) Instead, Defendant Ferra argues that she provided appropriate treatment for
Plaintiffs hip and that, even if she did not, her actions did not cause or contribute to his injury.
(Doc. 77, pp. 2-7.)
However, the record before the Court, with all reasonable inferences drawn in the light
most favorable to Plaintiff, only raises more questions as to whether Defendant Ferra acted with
more than mere negligence. Plaintiffs medical file shows that, as early as December 2013 to at
least March 2014, Plaintiff was diagnosed with hip and back pain. (Doc. 64-5, pp. 5, 8-10;
Doc. 64-6, p. 5.) On July 16, 2014, Defendant Ferra's first recorded treatment note indicated that
Plaintiff complained of lower back pain. (Doc. 64-6, p. 10.) Defendant Ferra then wrote a
Consult Request diagnosing Plaintiff with back pain only. (Doc. 64-6, p. 13.) As a result of this
Consult Request, Plaintiff saw Dr. Blackburn on October 29, 2014.'^ Dr. Blackburn stated that
Plaintiff has "[right leg] and [right] groin pain ... groin pain [greater than lower back pain]...
pain with flexion/extension of [right] hip." (Doc. 64-6, p. 13.)
Dr. Blackburn then
recommended a "referral to ortho joints and referral of [right] hip prior to lead up clinic."
(Doc. 64-6, p. 13.) On this same date. Plaintiff also received an x-ray of his right hip. The
results were issued on November 3, 2014, and indicated that the findings are "concerning for
avascular necrosis." (Doc. 64-6, p. 14.)
It is the events following this diagnosis and referral that raise more questions as to
Defendant Ferra's conduct. At 8:15 a.m. on November 4, 2014, Defendant Ferra wrote in her
medical encounter form under the patient statement section,"They told me I have to go to a hip
specialist." (Doc. 64-7, p. 1.) Despite this statement and Dr. Blackburn's diagnosis of right leg
and hip pain, at 8:30 a.m.. Defendant Ferra entered a Consult Request diagnosing Plaintiff with
"back pain" only. (Doc. 64-7, p. 8.) However, under "pertinent workup, lab results," Defendant
Ferra noted that "x-ray reports are pending" (presumably referring to the October 29, 2014 x-
rays) and "MRI: complete destruction [right] hip." (Doc. 64-7, p. 8.) The record is devoid of
any other mention of this MRI, when it occurred, who recommended it, or what the results were.
Regardless, despite documenting an MRI test indicating complete destruction ofthe right hip and
Dr. Blackburn's diagnosis. Defendant Ferra still indicated that Plaintiff only had back pain.^
(Doc. 64-7, p. 8.) Then, at 10:05 a.m.. Defendant Ferra finally diagnosed Plaintiff with [right
^ From July 2014 until Plaintiffs appointment with Dr. Blackbum, Defendant Ferra apparently interacted
with Plaintiff several other times regarding his hip/back pain. She provided various medical notes
indicating that she received letters from Plaintiff regarding this issue. (Doc. 68-2, pp. 20,22.)
^ Confusing the picture even further. Defendant Ferra's 8:15 a.m. medical encounter form indicates that
she "discussed x-ray" with Plaintiff. (Doc. 64-7, p. 1.) This raises an additional question as to whether
Defendant Ferra already saw the x-ray report, knew that Plaintiff had possible avascular necrosis, and still
diagnosed him as only having back pain.
hip] avascular necrosis in her second Consult Request and, for the first time, indicated in
Plaintiffs medical history that he has "long term low back pain and right hip pain." (Doc. 64-7,
p. 7.) At 12:45 p.m., Defendant Ferra entered a third Consult Request, again stating in Plaintiffs
medical history that he has "long term lower back and right hip pain,", and diagnosed him with
"possible avascular necrosis right hip." (Doc. 64-7, p. 6.)
On this same date, Plaintiff claims that he had a meeting with Defendant Ferra wherein
she told him to "drop his grievance because they were now going to provide him with proper
medical care." (Doc. 58, p. 2.f Furthermore, during this July to November 2014 time period.
Plaintiff avers that Defendant Ferra knew of his hip pain and refused to provide appropriate
treatment. (Doc. 68-3, p. 19 ("[BJoth [Defendant Ferra and Middleton] look at me and tell
me ... 'Please stop filling out sick calls. There's nothing wrong with your hip, Wimberly.'");
see also Doc. 22, p. 1 ("Plaintiff was called into medical area .. . only to be told 'Wimberly,
please stop filling out medical requests because there's nothing wrong with your hip or leg' by
Defendant Ferra."); Doc. 68-3, p. 21 ("[T]he letters I wrote the other medical director in
response to Nurse Ferra go back to 8/25/2014... me letting them know about my situation and
them refusing me just flat out
This evidence creates a genuine issue of material fact as to whether Defendant Ferra
acted with more than mere negligence. As it stands, a reasonable jury could infer that.
Defendant Ferra knew of, or at least should have known of. Plaintiffs hip pain and refused to
provide proper treatment for such. This is especially true given the affidavit stating that
^ Defendant Ferra claims that nothing in the affidavit by Officer Beal attributes these statements to her.
(Doc. 77, p. 6.) However, Officer Beal specifically states that he "escorted Leonard Wimberly to medical
area and [saw] Nurse Ferra and a grievance investigator trying to convince Wimberly to drop his
grievance because they were now going to provide him with proper medical care." (Doc. 58, p. 2.) At
this stage of the litigation, taking all facts in the light most favorable to Plaintiff, a reasonable jury could
infer that Defendant Ferra made this statement. This is particularly true as Plaintiff has consistently
attributed this statement to Defendant Ferra. (See, e.g.. Doc. 73, pp. 1-2; Doc. 22, p. 2.)
Defendant Ferra would "now" provide proper treatment and Defendant Ferra suddenly indicating
in her Consult Requests Plaintiffs history of long term lower back and right hip pain despite
never diagnosing him for such before.
Thus, this difference between back and hip pain is more than a "simple disagreement
over terminology." (Doc. 77, p. 2.) It directly implicates whether Defendant Ferra acted with
"conduct that is more than mere negligence."' Bineham v. Thomas. 654 F.3d 1171, 1176 (11th
Cir. 2011). At this stage, there are too many discrepancies within the record and too many
factual disputes for the Court to decide, as a matter of law, that Defendant Ferra did not act with
deliberate indifference to Plaintiffs serious mediceil needs. Defendant Ferra has not met her
burden "by 'showing'—^that is, pointing out to the district court, that there is an absence of
evidence to support the nonmoving party's case." Celotex v. Catrett. 477 U.S. 317, 325 (1986).
For these same reasons, the Court finds Defendant Ferra's objections regarding causation
to be without merit. The discrepancy in the record as to when Defendant Ferra knew of
Plaintiffs hip pain and whether she purposely disregarded or failed to adequately treat it (either
by properly diagnosing him or writing him appropriate Consult Requests) are intertwined with
Defendant Ferra's contribution to his injury. As the Magistrate Judge noted, failure to promptly
and adequately treat severe pain can constitute deliberate indifference. (Doc. 75, p. 12.);
See also McElligott v. Folev. 182 F.3d 1248, 1256-57 (11th Cir. 1999)("A core principle of
Eighth Amendment jurisprudence in the area of medical care is that prison officials with
' fact, the record raises additional questions as to whether this "disagreement over terminology" led to
Plaintiff receiving improper medical care. In response to Defendant Ferra's November 4, 2014 "back
pain" Consult Request, Plaintiff was scheduled to see a neurosurgeon rather than a hip specialist.
(Neurosurgery is "the medical specialty concerned with ... the entire nervous system; including the
spinal column, spinal cord, brain and peripheral nerves.") Patient Information. American Association of
Neurological Surgeons, http://www.aans.org/en/Patients (last visited Jan. 23, 2018). Whether this was
truly an error on the part of Utilization Management or due to Defendant Ferra's purported refusal to
diagnose Plaintifffor hip pain is a question for ajury to decide.
knowledge of the need for care may not, by failing to provide care, delaying care, or providing
grossly inadequate care, cause a prisoner to needlessly suffer the pain resulting from his or her
illness."); Harris v. Coweta Ctv.. 21 F.3d, 388, 394(11th Cir. 1994) C'[T]he right to medical care
may include diagnostic tests known to be necessary, notjust medicinal and surgical care.").
The Court OVERRULES Defendants Broome and Ferra's Objections and ADOPTS the
Magistrate Judge's Report and Recommendation, as supplemented herein, as the opinion of the
Court. Accordingly, the Court DISMISSES AS MOOT IN PART and DENIES IN PART
Defendants' Motions for Summary Judgment. (Docs. 64, 68.)
Specifically, the Court
DISMISSES AS MOOT all portions of Defendants' Motions addressing Plaintiffs requests for
injunctive relief and DENIES all other portions. Furthermore, given the mootness of Plaintiffs
claims for injunctive relief, the Court DISMISSES those claims WITHOUT PREJUDICE,
day of March,2018.
J. RANDAU HALL,CHIEF JUDGE
UNITEDJ9TATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
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