Davison v. Georgia Correctional Health, LLC et al

Filing 53

ORDER denying 35 Motion to Dismiss; denying as moot 12 Motion to Dismiss. Signed by Judge J. Randal Hall on 10/27/2016. (maa)

IN THE UNITED

STATES DISTRICT

COURT

FOR THE

SOUTHERN DISTRICT OF GEORGIA
STATESBORO DIVISION

CINDY DAVISON,
of

the

Estate

as Administrator

*

of Randall

*

Davison,

*

Plaintiff,

*

v.

*

STEPHEN NICOLOU, P.A., and
SERGEANT DEDRICK ANTHONY,

CV

616-039

*
*

Defendants.

*

ORDER

This

Dismiss

matter

is

Plaintiff's

before

the

Court

on

Amended Complaint.

Defendant's

(Doc.

Motion

35.)

to

Plaintiff

filed a response and sur-reply in opposition (docs. 39, 46), and
Defendants

response

filed

a

reply

in

support

(doc.

as

a

to

Accordingly,

Defendants'

motion has been fully briefed and is

For the reasons

(doc.

as

opposition

Defendants'

sur-reply

well

in

ripe for the Court's review.

Plaintiff's

44)

47).

stated herein,

motion is DENIED.

I. BACKGROUND1
This case arises from the death of Mr.

Randall Davison from

complications resulting from a bacterial infection he contracted

1 When reviewing a Rule 12(b)(6) motion to dismiss, courts must
allegations in the complaint as true and construe them in the
favorable to the plaintiff.
Belanger v. Salvation Army, 556 F.3d
(11th Cir. 2009) (citing Jackson v. BellSouth Telecomm., 372 F.3d
(11th Cir.

2004)).

accept the
light most
1153, 1155
1250, 1262

while he

was

Reidsville,

a prisoner at the Georgia State Prison

Georgia.

incarcerated,

The amended complaint alleges that,

Defendants

Dedrick

Anthony

medical

needs

were

of

a

Mr.

tattoo

unsanitary

Stephen

Nicolou,

deliberately
Davison.

administrator of Mr.
received

("GSP")

his

conditions

at

indifferent

Specifically,

Davison's
on

P.A.,

estate,

forearm

GSP.

(Am.

to

the

serious
as

that Mr.

another

Compl.,

while

Sergeant

Plaintiff,

alleges

from

and

the

Davison

prisoner

Doc.

in

14,

SI

in

20.)

According to Plaintiff, prisoners commonly tattoo one another in
unsterile

carry

conditions

high

risks

with

of

improvised

infection.

needles

(Id.

SI

and

21.)

ink,

When

which

infected

tattoos are treated properly, significant illness is rare; left

untreated,

however,

serious

ultimately death.

(Id.

infection

SI 23.)

can

lead

Defendants

to

sepsis

and

and GSP's medical

staff were aware of prisoner's proclivity to tattoo one another

in unsanitary conditions and the resulting risks of infection.
(Id.

SI 22.)

infected.

After being tattooed, Mr.

(Id. SIS! 24-25.)

Defendants'

Davison's

deliberate

infection

Plaintiff concludes that, because of

indifference

went

untreated

suffering and untimely death.
Plaintiff,

In

conditions.

to

his

and

medical

led

to

needs,

his

Mr.

needless

The relevant facts, as alleged by

are as follows.

late

prisoner

Davison's forearm became

December

tattooed
(Id.

2014

Mr.
SI 20.)

or

early

Davison's

January

forearm

After being tattooed,

2015,

in
Mr.

another

unsanitary
Davison's

forearm became
Mr.

Davison

infected and

sought

swollen with pus.

treatment

for

his

(Id.

infection

medical unit at 9:40 a.m. on January 21, 2015.2
He

was

first

seen

reported his

by

symptoms,

trouble moving his
neck,

shoulder,

33.)

Ms.

symptoms
(Id.

SI

to

the

Ms.

Melissa

which included a

arm,

pain in his

related

on-duty

At

Mr.

nurse,

Mr.

approximately

Davison,

prescribed

him

Nicolou,

being

Mr.

sent

back

to

2:10

p.m.

on

January

returned to the GSP medical unit.

by

a

different

nurse,

Ms.

whom

and his

he

Defendant

three

SISI

of

31-

his

Nicolou.
Nicolou

anti-inflammatory

(Id. SISI 35-39.)

dormitory

by

(Id.

2015,

(Id^ SI 41.)

Tomeka

(Id.

Defendant

a.m.,

21,

forearm,

description

Davison's condition deteriorated.

approximately

seen

his

to

red.

provider,

drugs,3 and sent him back to his dormitory.
After

(Id. SISI 30-31.)

shoulder,

9:55

GSP's

deeply inflamed tattoo,

Davison's

medical

24-25.)

from

Hughes,

and chest having turned deep

Hughes

34.)

examined

a

SIS!

Browder,

Defendant
SI 40.)

Mr.

At

Davison

He was first

to

whom

he

reported his symptoms, which now included pressure in his chest
2 As alleged by Plaintiff, Georgia Correctional Healthcare ("GCHC") contracts
with the Georgia Department of Corrections to provide health care services to

its prisoners.
(Am. Compl. 1 17.)
Plaintiff contends that there were only
four "medical providers" capable of diagnosing and treating prisoners'
medical problems that were employed by GCHC and assigned to GSP at the time
of the

events

described in Plaintiff's amended complaint.

(Id.

11

18-19.)

These medical providers included Defendant Nicolou, another physician's
assistant, a nurse practitioner, and a physician.
(Id. 1 18.) Notably, only
"non-provider" nurses are on duty during weekend hours at GSP. (Id. 1 19.)
3 Specifically, Defendant Nicolou prescribed Mr. Davison: (1) Toradol (a non
steroidal, anti-inflammatory drug used for short-term treatment of pain); (2)
Depo-Medrol (an anti-inflammatory glucocorticoid); and (3) Solu-Medrol (an
anti-inflammatory glucocorticoid).
(Am. Compl. 1 37 n.l.)
None of the
aforementioned drugs are indicated for treatment of a bacterial infection or
are otherwise able to counteract such an infection.

(Id.)

radiating

down

his

left

arm,

trouble

breathing,

and

constant

chest pain that was aggravated by movement and inhalation.
SISI

41-42.)

He

his

chest,

Mr.

Davison's

then

also presented with

neck,

and

tattoo

site.

and

symptoms

arrival

refused to

examine Mr.

Browder

informed

Mr.

examine

him

that

and

redness

Davison.

Davison

he

that

should

and

inflammation of

Ms.

(Id.)

to

Browder

Defendant

(Id.

SISI

Defendant

return

to

his

office

(Id.
and

SISI 46-47.)
told

Mr.

he

Between January 21 and January 23,

Mr.

of

his

trouble

bunk,

walking

(Id. SISI 52-53.)

he

and

When Ms.
would

dormitory,

not

Mr.

ill and needed to

Davison

would

not

see

Mr.

(Id. SI 48.)

continued to deteriorate;

out

who

Defendant Nicolou then came out of
that

Davison again that day.

43-45.)

his

related

Nicolou,

Nicolou

Davison protested and complained that he was
be treated.

(Id.

Davison's condition

he required assistance to get

could not

move

breathing,

and

his

he

tattooed

was

in

On the morning of January 23,

in and

arm,

he

constant

2015, Mr.

had

pain.

Davison

again went to GSP's medical unit and related his symptoms to a
nurse.

(Id.

SI

53.)

A medical

staff member then conveyed Mr.

Davison's complaints and symptoms to Defendant Nicolou.4
54.)

The medical

with the

knowledge

staff member,
of

"under the

Defendant Nicolou,

(Id. SI

supervision of and

refused to

treat Mr.

4 It is unclear from Plaintiff's Amended Complaint and briefing whether the
aforementioned unidentified nurse and the unidentified medical staff member

are the same person.

The Court has presumed,

however,

that Plaintiff has

used particular language intentionally and that the nurse and medical staff
member are different individuals for the purposes of its analysis below.

Davison."

(Id.)

Desperate for medical assistance,

Mr.

Davison

complained to the nurse about the failure to treat his condition
and

asked

Mr.

the

to

then

Davison

nurse

send

explained

Anthony,

who had observed Mr.

that

had been

he

ill

for

him

to

to

a

doctor.

(Id.

Defendant

SISI

Sergeant

57-58.)

Dedrick

Davison's complaints to the nurse,

days,

that

he

was

in

constant

pain,

that he was having trouble walking and breathing,

and that his

arm,

SI

chest,

response,
to

an

and

neck

were

purplish-red.

(Id.

58.)

Defendant Anthony ordered that Mr. Davison be confined

isolation

cell

for

several

hours.

(Id.

SISI

60-61.)

medical treatment was provided to Mr. Davison before,
after his isolation.

Mr.

62,

Davison's

64.)

On

correctional

(Id.

condition

the

staff

evening
member

SI 63.)

In response,

No

during,

or

(Id.

SISI

SISI 60-62.)

continued to

of

told

deteriorate.

Friday,
a

nurse

January
about

and swollen neck and the need to treat Mr.

(Id.

In

Mr.

23,

2015,

Davison's

Davison's

a
red

infection.

the nurse told the correctional staff

member that there was "nothing they can do" because there was no

healthcare

"provider"

While other prisoners
Mr.

Davison's

on

duty

at

GSP

on

submitted multiple

behalf over the weekend,

the

weekend.

sick call

no medical

(Id. )

requests on

treatment was

provided to Mr. Davison until the morning of Monday, January 26,
2015.

(Id^ SISI 65-66. )

Unable

to walk,

Mr.

Davison

was taken to the GSP medical

unit by wheelchair on January 26, 2015.

(Id^ SI 67. )

There, Mr.

Davison
noted

was

that

breathing,
and

examined
Mr.

Davison

scabbed

arm,

on

recommended

a

his

that

Regional
admitted

to

had

practitioner,

sharp

and

Davison

Center

Tim

constant

Hiller,

pain,

in

intensive

mass

(Id.

be

SISI

on

transported

Vidalia,
care

neck,
Mr.

to

Georgia,

unit

trouble

a reddened

his

68-69.)

the

Mr.

respiratory failure,

Hiller

he

Davison

also

had

gangrene

and liver failure.

transferred

Medical

with

Center,

to
where

the
he

(Id.)

intensive
passed

on

Mr.

care

away

his

limbs,

Davison was

unit

on

at

the

February

15,

(Id.

74-75.)

On April

1.)

was

diagnosed

2015 from sepsis and related multi-system organ failure.
SISI 5-6,

and

Meadows

where

and

who

sepsis, acute renal failure, and rhabdomyolysis.

71-72.)

subsequently

reddened

shoulder.

the

staphylococcus,

Atlanta

nurse

large

Mr.

Medical

SISI

a

"purplish red" skin on his chest and neck,

cellulitis

(Id.

by

4,

2016,

Plaintiff instituted this case.

(Doc.

On May 9, 2016, Defendant Nicolou filed a motion to dismiss

Plaintiff's complaint.

(Doc.

filed an amended

complaint.

Defendants

their

filed

12.)
(Doc.

On May 25,
14.)
to

Plaintiff

July 29,

2016,

dismiss

Plaintiff's

Under Federal Rule of Civil Procedure 8(a)(2),

a complaint

amended complaint.

present motion

On

2016,

(Doc. 35.)
II.

LEGAL STANDARD

must contain "a short and plain statement of the claim showing

that the pleader is entitled to relief" to give the defendant

fair notice of both the claim and the supporting grounds.

Atl.
Rule

Corp.

v.

Twombly,

12(b)(6)

motion

550 U.S.
to

544,

dismiss,

555

(2007).

therefore,

To survive a

a

complaint

include enough "factual allegations to raise a right to
above

the

claim to

speculative

relief

that

level,"

and

those

is plausible

on

facts

its

Bell

must

face."

must

relief

"state

Id.

at

a

570.

Although a complaint attacked by a Rule 12(b)(6)

motion need not

be buttressed by detailed factual allegations,

the plaintiff's

pleading obligation "requires more than labels and conclusions,
and a

will

formulaic recitation of the elements

not

do."

Id.

at

"demands

more

than

harmed-me

accusation."

555.

an

The

Rule

unadorned,

Ashcroft

of a

8

cause of action

pleading

standard

the-defendant-unlawfully-

v.

Iqbal,

556

U.S.

662,

678

(2009) (quoting Twombly, 556 U.S. at 555).

At the same time, a complaint should not be dismissed for
failure to state a claim "unless it appears beyond a doubt that

the plaintiff
entitle him to

(1957);

can prove no
relief."

of

Conley v.

see also Robinson

423 (11th Cir. 2012)

set

v.

circumstances

Gibson,

355

United States,

U.S.

484 F.

that

would

41,

45-46

Appfx

421,

(quoting Lopez v. First Union Nat' 1 Bank of

Fla. , 129 F.3d 1186,

1189

(11th Cir.

1997)).

At this stage,

courts must accept as true all facts alleged in the complaint
and

construe

all

reasonable

favorable to the plaintiff.

inferences

Belanger v.

in

the

light

Salvation Army,

most

556

F.3d

1153,

1155

Telecomm.,

(11th

Cir.

372 F.3d 1250,

2009)

1262
III.

Plaintiff

alleges

in

(citing

(11th Cir.

claim

BellSouth

2004)).

her amended complaint

that

Defendants

Davison's medical needs in

Davison's rights under the Eighth Amendment and

seeks money damages under 28 U.S.C. § 1983.
dismiss,

v.

DISCUSSION

were deliberately indifferent to Mr.
violation of Mr.

Jackson

In

their

motion

to

Defendants allege that Plaintiff has failed to state a

upon

which

relief

can

be

granted

and

that

qualified

immunity bars Plaintiff's claims.
A.

DELIBERATE

Deliberate

INDIFFERENCE TO MEDICAL NEEDS

indifference

to

the

serious

medical

needs

of

a

prisoner is proscribed by the Eighth Amendment's prohibition of
unnecessary and wanton infliction of pain.

F.

App'x 590,

429 U.S.

97,

595 (11th Cir.
104

plaintiff

must

need;

the

(2)

(1976)).

show:

the prisoner's

(citing Estelle v.

the prisoner
acted

with

serious medical

had a

deliberate

need;

and

(3)

wrongful conduct caused the prisoner's injury.
Cnty.,

510 F.3d 1312, 1326

Orum,

422

F.3d

1265,

(11th Cir. 2007)

1272

(11th

Cir.

2466 (2015));

(11th Cir.

Hale v.

Tallapoosa Cnty.,

1995)).

8

serious

medical

indifference

the

a

to

defendant's

Goebert v.

Lee

(citing Bozeman v.

2005)

abrogated on other grounds by Kingsley v.
Ct.

Gamble,

To prove deliberate indifference,

(1)

defendant

2013)

Harris v. Leder, 519

(per

Hendrickson,

curiam),
135 S.

50 F.3d 1579,

1582

1.

The

Mr.

first

requires

a

element

of

plaintiff

objectively

serious

enough to

serious

Davison's

to

Serious Medical

a

deliberate

show

medical

that

need.

Need

indifference

the

"A

prisoner

medical

had

an

that

need

satisfy the objective component

claim

is

Ais one that

has been diagnosed by a physician as mandating treatment or one

that is so obvious that even a lay person would easily recognize

the necessity for a doctor's attention.'"
Dekalb

Reg'l

Youth

Pet.

Ctr.,

40

F.3d

Id.

(quoting Hill v.

1176,

1187

(11th

1994), overruled in part on other grounds by Hope v.
U.S.

730,

739 n.9

Defendants
medical

needs

objective

serious

do not

appear

were

to contest whether Mr.

sufficiently

and the

serious

Court

is

to

Davison's

satisfy

satisfied

this

as to their

Plaintiff alleges that Mr. Davison suffered from a

bacterial

received

Pelzer, 536

(2002)).

component,

seriousness.

Cir.

in

infection

unsterile

Compl.

II

20-21.)

reduce

the

risks

that

resulted

conditions

While

early

associated

with

while

from

tattoo

incarcerated.

treatment
such

a

a

can

he
(Am.

significantly

bacterial

infection,

lack of proper treatment can - and did - result in sepsis and
even death.

of

the

infection,

(Id.

M

symptoms
the

vast

5,

13,

23-24.)

resulting
majority

from
of

Moreover,

Mr.

Davison's

bacterial

which

physically

manifested

themselves to the naked and untrained eye,

even

a lay person

would

easily

the seriousness

recognize

are

the

so obvious that

necessity

for

medical

Supp.

attention.

2d

217,

infection
need);

1990)

and

See,

227-28

e.g.,

Andrews

(D.N.J.

resulting

v.

2000)

symptoms

see also Brown v. Hughes,

Cty.,

95

(life-threatening

were
894

Camden

obvious

F.2d 1533,

serious
1538

F.

blood

medical

(11th Cir.

(collecting cases as to what constitutes a serious medical

need).
2.

The

Defendants Acted with Deliberate Indifference

second

requires

a

element

showing

indifference

to

risk of

risk;

that

the

requires proof of:

by

a

each

deliberate

defendant

prisoner's

medical

indifference

acted

with

need.

claim

deliberate

This

in

turn

(a) the defendant's subjective knowledge of a

serious harm;

(c)

of

and

conduct

(b)

that

the defendant's disregard of

is

more

than

gross

that

negligence.

Goebert, 510 F.3d at 1327 (quoting Bozeman, 422 F.3d at 1272).

To

satisfy

the

"subjective

knowledge

of

the

risk"

sub-

element, a defendant "must both be aware of facts from which the
inference could be drawn that a substantial risk of serious harm

exists,

and

he

must

also

draw

the

Brennan, 511 U.S. 825, 837 (1994).

inference."

Farmer

v.

Deliberate indifference does

not encompass "an official's failure to alleviate a significant
risk that he should have perceived but did not."

Taylor,
511 U.S.

533 F.3d 1325,
at

838);

see

1331

(11th Cir.

also

Keele

Supp. 2d 1270, 1292 (S.D. Ga. 2013)

v.

Glynn

(quoting Farmer,

Cty.,

Ga.,

938

F.

("[T]he official must have

actually perceived the medical need.").

10

2008)

Burnette v.

Nonetheless, "[w]hether

a particular

defendant

has

subjective

serious harm is a question of

the

usual

evidence,

of

a

ways,

knowledge

fact subject to

including

inference

obvious."

risk

Goebert,

from

510

the

F.3d at

very
1312

fact

the

risk of

demonstration in

from

and a factfinder may conclude that a

substantial

of

circumstantial
[defendant]

that

the

knew

risk

(quoting Farmer,

511

was
U.S.

at 842) .

To

satisfy

the

must

show

Plaintiff

"disregard
that

of

the

the

risk"

defendant

"disregarded

substantial risk of serious harm to the prisoner]
take reasonable measures

at 1292

(quoting

Farmer,

defendant actually
health

and

the

to

abate

it."

511 U.S.

sub-element,

Keele,

at 847).

[the

by failing to

938

F.

Thus,

Supp.

even

2d

if a

knew of a substantial risk to a prisoner's

resulting

harm was

not

ultimately

averted,

no

liability will attach if the defendant responded reasonably to

the perceived risk.

Id.

Even

is

if

medical

a

defendant

needs,

however,

(quoting
generally

one episode

Farmer,

attentive

prisoner's

can

suffice

Rogers v. Evans, 792

Like the first sub-element,

"is a question of fact that can be shown by

standard methods."
511 U.S.

a

at 844).

(citing Murrell v. Bennett, 615

F.2d 306, 310 n.4 (5th Cir. 1980)).

this sub-element

to

of misconduct

for a finding of deliberate indifference.
F.2d 1052, 1062 (11th Cir. 1986)

511 U.S.

Goebert,

510

at 846).

11

F.3d

at

1327

(citing

Farmer,

To
that

satisfy

the

gross

negligence.

treatment

to

as

to

law."

the

so

shock

fairness.

accidental

treatment,

to

be

defendant's]

merely

relevant

Goebert,

rise

must

fundamental

[the

sub-element,

or

even

1327;

(11th Cir.
of

grossly

response

a

plaintiff]

his

inadequacy,
medical

to

must

medical

malpractice

violation,

inadequate,

be

or

intolerable

demonstrate

need

negligence

than

("For medical

constitutional

or

show

also Nimmons

2011)

incompetent,

conscience

to

see

must
more

constituted

297

[The

plaintiff

F.3d at

level

the

a

conduct

510

409 F. Appfx 295,

care

excessive

final

defendant's

v. Aviles,

the

the

was

in

to

that

more

than

diagnosis

actionable

(citations omitted)); Rogers, 792 F.2d at 1060

under

or

state

("The issue

is whether the questioned conduct is cruel and unusual because
it

involves

deliberate

medical judgment call,

(quoting

Murrell,

615

indifference,

an accident,

F.2d

at 310

or

something

more

than

a

or an inadvertent failure."

n.4)).

A

defendant

may

disregard a risk with more than gross negligence by, inter alia,
intentionally failing or refusing to obtain medical treatment,

delaying

treatment,6

providing

grossly

inadequate

or

5 "This court has consistently held that knowledge of the need for medical
care and intentional refusal to provide that care constitute deliberate
indifference."
Mandel v. Doe, 888 F.2d 783, 788 (11th Cir. 1989) (citing
Carswell, 854 F.2d at 457; Ancata v. Prison Health Services, Inc., 769 F.2d
700, 704 (11th Cir. 1985); Fielder v. Bosshard, 590 F.2d 105, 108 (5th Cir.
1979)).

6 "Even where medical care is ultimately provided, a prison official may
nonetheless act with deliberate indifference by delaying the treatment of
serious medical needs."
Pourmoghani-Esfahani v. Gee, 625 F.3d 1313, 1317

(11th Cir. 2010) (citation omitted).
Where the prisoner has suffered
increased physical injury due to the delayed provision of medical services,
factors to be considered include:

(1)
12

the seriousness of the medical need;

inappropriate diagnosis or treatment,7 deciding to take an easier
but less efficacious course of treatment,8 or providing medical
treatment

that

treatment

at

(11th Cir.

is

all.9

1999)

Here,

so

cursory

as

McElligott v.

failed

drew

conclusion

to

specifically

infection

that

that

Mr.

that,

Cir.

cites

2013),

phrase

to

for

"knew

Franklin

the

or

plead

ill"

subjective

knowledge

that

medical

1255

required

v.

Defendant

Nicolou

was

suffering

from

treatment

Curry,

does

have

known

not

meet

standard.

Plaintiff

has

with

F.3d

1246,

the

fact

(11th

of

Davison

the

was

sub-element's

(See Am. Compl.,

in

use

Mr.

first

Defendant
1250

Plaintiff's

that

a

antibiotics,

In support,

738

that

Plaintiff has

that

Davison

proposition

should

dangerously

ignoring

no

F.3d 1248,

because

Plaintiff's complaint fails on its face.
Nicolou

182

to

(citations omitted).

allegedly

bacterial

amount

Foley,

Defendant Nicolou argues

the

to

alleged

1

49.)

that

Even

Defendant

(2) whether the delay worsened the medical condition; and (3) the reason for
the delay. Goebert, 510 F.3d at 1327 (citing Hill, 40 F.3d at 1189).
7 "Medical care so inappropriate as to evidence intentional maltreatment or a
refusal to provide essential care violates the eighth amendment."
Rogers,
792 F.2d at 1058 (citing Green v. Carlson, 581 F.2d 669, 675 (7th Cir. 1978),

aff'd,

446

resulted

U.S.

from

14

(1980)).

deliberate

"Whether an instance of medical misdiagnosis

indifference

or

negligence

requiring exploration by expert witnesses." Id.
697 F.2d 761,

765

(7th Cir.

is

a

factual

question

(citing Merritt v. Faulkner,

1983)).

8 >x[W]hen a prison inmate has received medical care, courts hesitate to find
an Eighth Amendment violation.
Hesitation does not mean, however, that the
course of a physician's treatment of a prison inmate's medical or psychiatric
problems can never manifest the physician's deliberate indifference to the
inmate's

medical

needs.

We reaffirm

our

position

in

Rogers

that

grossly

incompetent medical care or choice of an easier but less efficacious course
of treatment can constitute deliberate indifference."
Waldrop v. Evans, 871
F.2d 1030, 1035 (11th Cir. 1989) (internal citations omitted).
9 "When the need for treatment is obvious, medical care which is so cursory as

to

amount

Mandel,

to

no

treatment

888 F.2d at 789

at

all may

amount

(citation omitted).
13

to

deliberate

indifference."

Nicolou
could

had

infer

drew that

subjective
that

a

substantial

inference,

which

a

(See,

e.g. , Am.

reasonable

plaintiff

in

knowledge

of

Plaintiff has
factfinder

Compl.,

Curry,

11

facts

existed

risk

the

and

pled a

could

4-5,

14,

Plaintiff

has

such

55,

not

F.3d at

is plausible on

its

a

which
he

he

in

fact

facts

from

conclusion.

79.)

simply

elements of a deliberate indifference claim,

detailed claim that

that

litany of

draw

45,

from

Unlike

the

recited

the

but has provided a

face.

Cf.

Curry,

738

1251-52.

Defendant

Nicolou

also

argues

that,

even

if

he

subjective knowledge of a risk of serious harm to Mr.
he did not

disregard that

risk or otherwise

greater than gross negligence.

engage

did

have

Davison,

in conduct

Defendant Nicolou contends that,

because he examined Mr. Davison and provided him with a schedule

of anti-inflammatory medication
2015,

on the morning

of January

21,

Plaintiff's arguments are nothing more than negligence or

medical malpractice claims.

(Id.)

ignores,

provision

however,

that

the

Defendant Nicolou's argument

of medical

services

in

response to a serious medical risk is not necessarily sufficient
to

defeat

a

claim of

182 F.3d at 1255,

deliberate

see also Fns.

indifference.

5-9,

supra.

See McElligott,

Moreover,

while

Defendant Nicolou attempts to couch Plaintiff's claims as being

a simple difference in medical opinion,
not so limited.
a

reasonable

Indeed,

factfinder

Plaintiff's claims are

Plaintiff has alleged facts from which
could

conclude

14

that

Defendant

Nicolou,

inter alia:
treatment
January

(a)

for

Mr.

23;

diagnosis

failed or refused to provide or
Davison

(b)

on

provided

or treatment;

course of treatment;

the

afternoon

grossly

(c)

of

inadequate

January
or

took an easier but

and/or

(d)

obtain medical
21

and

inappropriate

less efficacious

provided medical treatment that

was so cursory as to amount to no medical treatment at all.

See
As

McElligott,

such,

182

F.3d

Plaintiff

elements

of

the

at

has

1255;

element

5-9,

supra.

all

three

also

sufficiently

second

Fns.

satisfied

see

of

her

deliberate

sub-

indifference

claim against Defendant Nicolou.

Defendant Anthony raises similar arguments to those raised

by

Defendant

Plaintiff's

Nicolou

deliberate

in

attacking

indifference

fail for similar reasons.

to the contrary,

the

second

claim,

and

element

these

of

arguments

Despite Defendant Anthony's arguments

Plaintiff has pled sufficient facts from which

a reasonable factfinder could draw the conclusion that Defendant

Anthony

had

subjective

could infer that a

that

he

58-60,

in

fact

80.)

reasonable

knowledge

of the

facts

from which

he

substantial risk of serious harm existed and

drew that

Moreover,
factfinder

inference.

(See

Am.

Compl.,

11

15,

Plaintiff has alleged facts from which a
could

conclude

that

Defendant

Anthony

disregarded that risk by conduct greater than gross negligence
because

he,

treatment

inter

for

Mr.

alia:

failed or refused

Davison,

confined

15

him

to

to

obtain medical

an

isolation

cell

until all medical providers had left for the weekend,

and failed

to monitor his condition.10
Defendant

Anthony

require him to
provide

that

to

Mr.

Davison.

would

be

unreasonable

Defendant

to

refusal to

Anthony

ignores,

that the Eleventh Circuit has previously placed such an

onus on prison security staff.
1327-29

not

it

second-guess a medical professional's

treatment

however,

argues

("The

mean

fact

that

a

See,

e.g.,

Goebert,

510

that Goebert had been seen by Dr.

layman

could not

tell

that

she

F.3d at

Brown does

had

a

serious

medical need at the time Captain Weaver received her complaint.
.

.

.

Captain Weaver had a

duty to look into the matter.

.

.

.

Rather than take any action or even inquire into the situation,
Weaver

referred Goebert

back to

the

same medical

told him had ignored her daily requests

for

staff

aid.").

that

she

Moreover,

Defendant Anthony's argument is not necessarily supported by the
facts;

Plaintiff

has

alleged

only

that

Defendant

Anthony

"was

present on January 23, when Mr. Davison verbally complained to a
nurse about the failure to treat his condition," not necessarily

that

Defendant

Anthony

was

aware

of

how

or

why

treatment

was

being refused or even that treatment had been refused in his

10 See, e.g., Goebert,

510 F.3d at 1328

(security officer could be liable for

deliberate indifference for failure to obtain medical services for prisoner);

Brown, 894 F.2d at 1538 (security officer could be liable for deliberate
indifference for delay in seeking medical treatment for prisoner); Snow ex
rel. Snow v. City of Citronelle, AL, 420 F.3d 1262, 1270 (11th Cir. 2005)

(security officer could be liable for deliberate indifference for failure to
adequately monitor suicidal detainee); see also Coweta Cty., 21 F.3d at 393
n.6 ("The Due Process Clause of the Fourteenth Amendment protects a pre-trial
detainee, and the protection corresponds with that provided to prisoners by
the Eighth Amendment." (citations omitted)).
16

presence.

(Am.

sufficiently

satisfied

element

of

her

1

Compl.

58.)

all

deliberate

As

three

such,

Plaintiff

sub-elements

indifference

claim

of

the

against

has

second

Defendant

Anthony.

3. Defendants' Acts Caused Mr. Davison's Injuries
The

final

element

of

a

deliberate

indifference

claim

requires a plaintiff to show that "the constitutional violation
caused the injury."

Cir.

2003)

(11th

Cottone v. Jenne, 326 F.3d 1352, 1358 (11th

(citing Marsh v.

Cir.

Causation

2001)

"can

constitutional

Zatler v.

(en

be

curiam)).

banc));

shown

violation."

Wainwright,

While

Butler County

by

Goebert,

personal

Goebert,

802 F.2d 397,

268 F.3d 1014,
510

F.3d

at

1028
1327.

participation

in

510

F.3d

(citing

401

(11th Cir.

supervisory officials

are

at

1327

not

1986)

the

(per

liable under

Section 1983 for the unconstitutional acts of their subordinates

on the basis

of

respondeat

superior

or vicarious

liability,

supervisor liability for a subordinate's acts may exist when
there

is

a

causal

connection

between

the

actions

of

a

supervising official and the alleged constitutional deprivation,
such as:

(a) a history of widespread abuse puts the responsible

supervisor
deprivation,

policy

on

notice

of

the

need

and he fails to do;

results

in

deliberate

(b)

to

correct

the

alleged

a supervisor's custom or

indifference

to

constitutional

rights; or (c) the supervisor directed the subordinates to act

unlawfully or knew that the subordinates would act unlawfully
17

and

failed

1360-61

to

them

from

doing

so.

Cottone,

326

F.3d

at

(quotations and citation omitted).

Here,
for

stop

while Defendant Nicolou contests supervisor liability

the medical

January

23,

were

fact

in

staff member who

Defendants

do

not

refused to

appear

to

treat Mr.

contest

deliberately indifferent to Mr.

Davison on

that,

if

Davison's

they

serious

medical needs,

their respective constitutional violations caused

Mr.

suffering

Davison's

Court

finds

that

and

eventual

Plaintiff

has

death.

Nonetheless,

sufficiently

the

established

the

causation element for the purposes of its analysis.11
by Plaintiff and addressed in Section III.A.2,

personally
treatment

their

participated
for

Mr.

deliberate

infection,

Mr.

in

Davison's

denying
serious

indifference

to

or

suprar Defendants

delaying

medical

Mr.

As alleged

needs.

Davison's

adequate
But

for

bacterial

Davison's condition would not have deteriorated,

he would not have become septic, nor would he have succumbed to

multiple-organ failure.

(Am. Compl. M 6, 21-24, 40, 52, 61-62,

84.)

Nicolou's

As

to

Defendant

liability,

the

11 See,

Mandel,

e.g.,

Court

finds

888

F.2d at 789

attempt

it

to

reasonable

avoid

to

supervisor

infer

from

(failure of physician's assistant to

order an X-ray of prisoner's broken leg, apprise supervising doctor of
prisoner's condition, or have prisoner examined by a doctor or taken to a
hospital may have caused worsening of condition or suffering of unnecessary
pain); Carswell, 854 F.2d at 457 (failure of physician's assistant to take
adequate steps to ensure prisoner received adequate treatment for his
deteriorating condition may have caused unnecessary suffering); Goebert, 510
F.3d at 1329 (jailer's failure to act on detainee's serious medical risks

delayed detainee's treatment and may have caused worsening in her condition);
H.C.

by

Hewett

v.

Jarrard,

786

F.2d

1080,

1087

(11th

Cir.

1986)

(superintendent's authorization and imposition of isolation "effectively
placed medical attention beyond [the prisoner's] reach" and provides
necessary causal connection).
18

Plaintiff's

oversight
directed

allegations

of

the

that

that

Defendant

relevant

staff

medical

member

to

627 F.

Appfx 761,

knowledge
held

and

liable

768

See,

to

sexual

stop

e.g.,

of

sufficient

and

or

either

improperly

Franklin v. Tatum,

(sheriff had sufficient

unconstitutional

assault

had

member

unlawfully

(11th Cir. 2015)

ability
for

staff

act

failed to stop him from doing so.

Nicolou

inmate

by

conduct

to

be

transportation

officer).
B.

Qualified

QUALIFIED IMMUNITY

immunity

bars

government

officials

from

being

held liable for civil damages so long as their conduct does not

violate clearly established statutory or constitutional rights.
Morris

v.

Town

of

(11th Cir. 2014)

(2009)).

prove

Lexington

Alabama,

he

F.3d

1316,

1321-22

(quoting Pearson v. Callahan, 555 U.S. 223, 231

To claim qualified immunity,

that

748

was

a

government

discretionary authority.

a defendant must first

official

acting

Cottone, 326 F.3d at 1357.

within

his

To survive

a motion to dismiss based on a defendant's prima facie claim of

qualified

immunity,

sufficient

to

and

(2)

a

demonstrate

established

(citing

state

a

at

the

Pearson,

established where

plaintiff

violation

that
time

555

the
the

U.S.

of

must:
his

rights
defendant

at

232).

(1)

allege

constitutional

violated

were

acted.

Id.

A

right

is

facts
rights;

clearly
at

1322

clearly

it would be clear to a reasonable person in

the defendant's position that his conduct was unlawful in the

19

situation he confronted.
F.3d

1200,

Rousseau,

of

are
on

1204

780

(11th

and

the

decisions

cases

gave

2012);

1112-13

law can be

factual

(citing Loftus v. Clark-Moore,

Cir.

F.3d 1108,

constitutional

notable

Id.

violated

constitutional

Holloman

v.

Harland,

between

the

2015)

rights."
F.3d

the

Court,

warning

370

Valderrama

that

the

(quoting
1252,

if

precedents

so

long

as

Holloman
(11th

there

relied

the

conduct

1277

v.

("A principle

clearly established even

before

reasonable

also

(11th Cir.

distinctions

then

see

690

prior

at

issue

ex

Cir.

rel.
2004)

(internal quotations omitted))).

As

Mr.

stated,

Plaintiff has

Davison's rights under the Eighth Amendment.

Defendants

were

discretionary
whether the
Defendants

government

authority,12

state of the
"fair warning"

was unconstitutional.

law

sufficiently pled a violation of

being

"well

officials

all

that

remains

law in January 2015
that

Mr.

See Hope,

settled

acting

that

Davison's

536 U.S.

prison

is

Assuming that

within

to

their

determine

would have

given

alleged treatment

at 731.

officials'

Despite the

deliberate

indifference to prisoners' serious medical needs gives rise to a
constitutional claim,"

(11th Cir.

1994),

Harris v. Coweta Cty.,

21 F.3d 388,

393

Defendants contend that the contours of the

law were not sufficiently defined to put them on notice that
12 In passing, Plaintiff cites Hinson v. Edmond, 192 F.3d 1342, 1345 (11th
Cir. 1999), for the proposition that qualified immunity does not apply to

private medical personnel who contract with the state to provide medical care
to prisoners.
Because Defendant Nicolou's qualified immunity claims
presently fail on their merits, the Court has assumed for the sake of its
analysis, without deciding, that Defendant Nicolou was a government official
entitled to assert the defense of qualified immunity.
20

their

respective

conduct

was

unconstitutional.13

The

Court

disagrees.

Here,

Defendant

Nicolou's

qualified immunity defense

on the facts as pled by Plaintiff.
to couch Plaintiffs'

or

"error

alleged
claim

in

are

sufficient

against

Defendant Nicolou's attempts

claims as a "difference in medical opinion"

judgment"

facts

fails

Defendant

misleading.

to

state

Nicolou

a

for

Rather,

Plaintiff

has

deliberate

indifference

a

of

variety

reasons,

including intentionally failing or refusing to obtain or provide
medical

treatment,

delaying

treatment,

providing

inadequate or inappropriate diagnosis or treatment,
take an

grossly

deciding to

easier but less efficacious course of treatment,

and/or

providing medical treatment that was so cursory as to amount to
no

medical

treatment

at

all,

all

prohibited as of January 2015.14

of

which

were

clearly

It simply cannot be argued in

13
(See, e.g., Doc 35-1, at 25 ("There is no clearly established law holding
that an error in judgment in providing treatment (which is alleged but which
P.A. Nicolou denies) is a basis for liability under the Eighth Amendment and
section 1983. . . . There is no clearly established law holding that a
correctional officer such as Sgt. Anthony has a constitutional duty to
override the decision of a medical professional.").)

14 See,

e.g.,

Mandel,

888 F.2d at 789 (failure of physician's assistant to

apprise his superior of prisoner's broken leg, obtain an X-ray of prisoner's
leg, or to have prisoner examined by a doctor or taken to a hospital may be
deliberate
assistant

indifference);
examined

inmate

Carswell,
on

three

854

F.2d

at

different

457

(though

occasions

and

physician's
gave

inmate

laxatives and pain medication, physician's assistant could still be found to
have been deliberately indifferent by failing to advise supervising physician
of prisoner's condition); Harper v. Lawrence Cty., Ala., 592 F.3d 1227, 1237
(11th Cir. 2010) (delayed or inadequate treatment of alcohol withdrawal is
unlawful); Rogers, 792 F.2d at 1062 (even if doctor provided a period of
attentive, competent care to prisoner, one episode of grossly incompetent or

inadequate

medical

care

would

be

sufficient

to

constitute

deliberate

indifference); Ancata, 769 F.2d at 704 (medical staffs' cursory treatment of
detainee's obvious medical need may amount to deliberate indifference); see
also McElligott,

182 F.3d at 1255; Fn. 5-9, supra.
21

good

faith

Defendant

that,

Nicolou

if

Plaintiff's

was

not

on

allegations

notice

that

prove

true,

his

conduct

defense

also

was

prohibited by the Eighth Amendment.

Defendant
at this
a

stage.

deliberate

variety
medical

to

Anthony's

of

immunity

Plaintiff has alleged facts

indifference

theories,

treatment,

medical

qualified

care,

claim against

including

isolated confinement

and/or

failure

to

sufficient to state

Defendant

failure

or
so

fails

Anthony

refusal

as

monitor,

to

to

of

a

obtain

prevent

all

on

access

which

were

clearly established as violating of the Eighth Amendment as of

January 2015.15

Defendant Anthony's argument that there is no

precedent that would put him on notice of his duty to "override"
the

decisions

of GSP's medical

Circuit's holding in Goebert.
Further,

as

inference

of

previously
knowledge

staff

See Goebert,

noted,
of

is belied by the

this

the

510 F.3d at 1327-29.

argument

medical

Eleventh

is

staffs'

based

on

an

decisions

by

Defendant Anthony that is not supported by the facts as alleged

by Plaintiff.

(See Am. Compl. 15 58-61.)

Accordingly, as with

15 See, e.g., Goebert, 510 F.3d at 1327-29 (prison guard had "duty to look
into the matter" and not simply refer prisoner back to the same medical staff
that she alleged had been ignoring her requests for aid); Brown, 894 F.2d at
1539 (guards' failure and/or delay in obtaining medical treatment for

prisoner's broken foot may constitute deliberate indifference); Jarrard, 786
F.2d at 1087 (superintendent's authorization and imposition of isolation
which "effectively placed medical attention beyond
constitute

deliberate

(officer's

failure

to

indifference);

Snow

properly monitor

ex

rel.

suicidal

[prisoner's]
Snow,

420

detainee

deliberate indifference); Lancaster v. Monroe Cty., Ala.,

reach" may

F.3d

at

1270

could constitute

116 F.3d 1419, 1426

(11th Cir. 1997) ("[S]heriffs and jailers cannot place or keep a chronic
alcoholic in jail without any medical supervision, when the defendants are
aware

that

withdrawal."
Cir.

the

alcoholic

is

suffering

from

a

(citing Morrison v. Washington County,

1983)).
22

severe

form

700 F.2d 678,

of

alcohol

686

(11th

Defendant

Nicolou,

Defendant

if

Anthony

Plaintiff's

had

fair

allegations

warning

that

prove

his

true,

conduct

was

as

the

prohibited by the Eighth Amendment.
IV.

At this
Court

for

concludes

fact

taking

that

deliberate

Defendants'

not

stage,

CONCLUSION

Plaintiff's allegations

Plaintiff has

indifference

claims

definitively

of

against

stated a

Defendants

qualified immunity fail.

decide,

deliberately

sufficiently

however,

indifferent

to

whether
Mr.

true,

and

that

Court

The

does

Defendants

Davison's

claim

were

medical

in

needs,

and as such,

whether qualified immunity is truly unavailable to

Defendants.

Whether Defendants actually perceived Mr.

Davison's

serious medical risks and were in fact so grossly incompetent or

inadequate in responding thereto so as to shock the conscience
remains

to

be

limited

to

the

and the

seen.
four

The

corners

amended complaint

Defendants'

Court's
of

to

Dismiss

Plaintiff's

however,

amended

sufficient

See Kothmann v.

App!x 907, 911 (11th Cir. 2014).
Motion

review,

Plaintiff's

alleges

motion to dismiss.

present

facts

is

complaint,

to

Rosario,

survive
558

F.

For these reasons, Defendants'
Amended

Complaint

(doc.

35)

is

DENIED.16

16 Defendant Nicolou's prior Motion to Dismiss (doc. 12), which is based on
near identical arguments as Defendants' present motion to dismiss, is also
DENIED AS MOOT.

Also,

the Court need not address Defendants'

Objection to

Magistrate Judge Order (doc. 49), which sought an order from this Court
reversing the United States Magistrate Judge's Order (doc. 48) denying
Defendants' request to stay discovery in this matter pending the resolution
of Defendants' present motion to dismiss.
23

ORDER
October,

ENTERED

at

Augusta,

Georgia

this

<p?7^«day

2016.

HONORABLE""J." RAW3&L HALL

UNITED/STATES DISTRICT JUDGE
SOUTHERN

24

DISTRICT

OF GEORGIA

of