United States District Court, M.D. Alabama, Northern Division
RECOMMENDATION OF THE MAGISTRATE JUDGE
F. MOORER UNITED STATES MAGISTRATE JUDGE
September 2, 2015, Plaintiff Shelton Foster ("Plaintiff
or "Foster"), a pre-trial detainee, filed a
"Civil Action pursuant to Title 42 § 1983 [and]
pursuant to Title 42 §1331(a) along with Article VII
U.S. Constitution" in the Circuit Court of Covington
County, Alabama. Doc. 1-1. He named Sheriff Dennis Meeks
("Meeks") and Southern Health Providers as
defendants. On October 26, 2015, Defendant Meeks removed the
case from the Covington County Circuit Court to this court.
Doc. 1. On October 28, 2015, this court ordered Plaintiff to
file an amended complaint which more adequately describes his
specific claims. Doc. 2. On November 18, 2015, Plaintiff
filed the Amended Complaint naming Meeks, Captain Preston
Hughes ("Hughes"), Nurse Diane Williams
("Williams"), and Nurse Jennifer Reeves
("Reeves") as defendants. Doc. 11. On December 2,
2015, Plaintiff filed an amendment to the Amended Complaint,
in which he asserted additional claims. Doc. 13.
defendants filed Special Reports, Answers, and supporting
evidentiary materials, in which they argue that Plaintiff
failed to exhaust administrative remedies available to him
while incarcerated at the Covington County Jail. Doc. 43
& 44. The court subsequently construed these documents as
Motions for Summary Judgment. See Bryant v. Rich,
530 F.3d 1368, 1375 (11th Cir. 2008) (Although an exhaustion
defense "is not ordinarily the proper subject for a
summary judgment[, ]" the defense is appropriate for
summary judgment when the evidence demonstrates
administrative remedies "are absolutely time barred or
otherwise clearly infeasible."). Doc. 52.
March 10, 2016, counsel for Plaintiff entered a Notice of
Appearance. Doc. 48. On March 14, 2016, this case was
referred to the undersigned for consideration of all pretrial
matters. Doc. 49. The court permitted counsel to file any
documents or pleadings necessary for a proper prosecution of
this case on or before April 29, 2016. Doc. 51. No additional
pleadings were filed. On June 2, 2016, this court ordered
that Plaintiff may file a response to the Motions for Summary
Judgment on or before July 1, 2016. Doc. 52. On August 2,
2016, Plaintiffs counsel filed a Motion for Extension of Time
to File an Amended Complaint. Doc. 54. The court granted the
Motion. Doc. 55.
August 10, 2016, Plaintiffs counsel filed the Amended
Complaint, in which Foster asserts numerous claims of
deliberate indifference to the Plaintiffs health in violation
of his constitutional rights. Doc. 56. In addition, Plaintiff
presents state law claims of fraud, outrage, and negligence
against the defendants. Id. He seeks "$20
MILLION DOLLARS in compensatory damages and $100 MILLION
DOLLARS in punitive damages." Doc. 56, Pi's Amended
Comp., p. 5 (emphasis in original). As a matter of law, the
Amended Complaint filed by counsel for the plaintiff
supersedes the Complaint and Amended Complaints previously
filed by the plaintiff pro se. See, e.g., Hoefling v.
City of Miami, 811 F.3d 1271 (11th Cir. 2016) ("So
when [the plaintiff] filed the second amended complaint, the
first amended complaint. . . became a legal nullity.");
Schreane v. Middlebrooks, 522 Fed.Appx. 845 (11th
defendants filed Motions to Dismiss pursuant to Fed.R.Civ.P.
12(b)(6) on August 24, 2016. Doc. 59 & 60. The medical
defendants also filed evidentiary materials, including
declarations from medical personnel regarding Plaintiffs
medical treatment at the jail in support of their argument
that they did not act with deliberate indifference to his
health and copies of grievances in support of their
contention that Foster failed to exhaust his claims prior to
filing in this court. The correctional defendants, however,
do not challenge the claims set forth in the Amended
Complaint on the basis of Foster's failure to exhaust nor
do they contend that several of his claims are barred by the
statute of limitations; instead, they argue that the Amended
Complaint fails to satisfy the requirements of Fed.R.Civ.
8(a)(2) and 9 and that they are entitled to qualified
immunity. On September 27, 2016, out of an abundance of
caution, this court ordered that the Motions to Dismiss with
respect to the claims against Meeks, Hughes, Williams, and
Southern Health Partners be held in abeyance until the filing
of a Motion for Summary Judgment. On December 9, 2016, the
defendants filed Motions for Summary Judgment. Doc. 70 &
claims as set forth by counsel in the Amended Complaint are
Count I-V: 42 U.S.C. Section 1983 - Wrongful Denial of
Medical Records; Timely Medical Treatment; Proper Medication;
Needed Medical Devices and Procedures & Standard Medical
Follow-Up & Care
Count VI: Fraud
Count VII-VIII: 42 U.S.C. Section 1983 - Abuse of
Governmental Authority, Power & Negligent Training of
Covington County Jail and Medical Providers at Said Jail
Count IX: Constitutional Procedural & Substantive
Count X: 42 U.S.C. Section 1983 - Outrage
Doc. 56, Pl's Amended Comp.
The Medical Defendants
The Standard of Review
medical defendants filed both a motion to dismiss and a
motion for summary judgment, in which they assert that this
cause of action is due to be dismissed because Foster failed
to properly exhaust an administrative remedy available to him
at the Covington County Jail. The medical defendants base
their exhaustion defense on the plaintiffs failure to file
and/or appeal grievances regarding the claims presently
pending before this court as allowed by the jail's
grievance procedure before seeking relief from this court.
"[A]n exhaustion defense ... is not ordinarily the
proper subject for a summary judgment; instead it 'should
be raised in a motion to dismiss, or be treated as such if
raised in a motion for summary judgment.'"
Bryant v. Rich, 530 F.3d 1368, 1374-1375 (11th Cir.
2008) (quoting Ritza v. Int'l Longshoremen's
& Warehousemen's Union, 837 F.2d 365, 368-369
(9th Cir. 1988)).
deciding whether a prisoner has exhausted his remedies, the
court should first consider the plaintiffs and the
defendants' versions of the facts, and if they conflict,
take the plaintiffs version of the facts as true. 'If in
that light, the defendant is entitled to have the complaint
dismissed for failure to exhaust administrative remedies, it
must be dismissed.' Turner v. Burnside, 541 F.3d
1077, 1082 (11th Cir.2008) (citing Bryant, 530 F.3d
at 1373-74). If the complaint is not subject to dismissal at
this step, then the court should make 'specific findings
in order to resolve the disputed factual issues related to
exhaustion.' Id. (citing Bryant, 530
F.3d at 1373-74, 1376)." Myles v. Miami-Dade County
Correctional and Rehabilitation Dept, 476 Fed.Appx. 364,
366 (11th Cir. 2012).
review of the undisputed facts of this case as evidenced by
the Amended Complaint, the evidentiary materials filed by the
medical defendants, and the Response, the court concludes
that the Motion to Dismiss filed by Williams and Southern
Health Partners is due to be granted.
The Failure to Exhaust the Grievance Procedure
challenges his medical treatment and other actions taken
against him during his incarceration in the Covington County
Jail. Foster alleges that he either submitted grievances or
that he did not receive responses to his grievances regarding
the matters set forth in the instant complaint. However, the
evidentiary materials submitted by the defendants, including
all grievances filed by Foster during his incarceration,
demonstrate that the grievances submitted by Foster either do
not address the specific claims presented to this court or
were not appealed in a proper manner in accordance with the
Covington County Jail policies and procedures.
Prison Litigation Reform Act compels exhaustion of available
administrative remedies before a prisoner can seek relief in
federal court on a §1983 complaint. Specifically, 42
U.S.C. §1997e(a) states that "[n]o action shall be
brought with respect to prison conditions under section 1983
of this title, or any other Federal law, by a prisoner
confined in any jail, prison, or other correctional facility
until such administrative remedies as are available are
exhausted." "Congress has provided in §
1997(e)(a) that an inmate must exhaust irrespective of the
forms of relief sought and offered through administrative
remedies." Booth v. Churner, 532 U.S. 731, 741
n.6 (2001). "[T]he PLRA's exhaustion requirement
applies to all inmate suits about prison life, whether they
involve general circumstances or particular episodes, and
whether they allege excessive force or some other
wrong." Porter v. Nussle, 534 U.S. 516, 532
(2002). Exhaustion of all available administrative remedies
is a precondition to litigation and a federal court cannot
waive the exhaustion requirement. Booth, 532 U.S. at
741; Alexander v. Hawk, 159 F.3d 1321, 1325 (11th
Cir. 1998); Woodford v. Ngo, 548 U.S. 81, 126 S.Ct.
"the PLRA exhaustion requirement requires proper
exhaustion." Woodford, 548 U.S. at 93 (emphasis
added). "Proper exhaustion demands compliance with an
agency's deadlines and other critical procedural rules
[as a precondition to filing suit in federal court] because
no adjudicative system can function effectively without
imposing some orderly structure on the courts of its
proceedings.... Construing § 1997e(a) to require proper
exhaustion ... fits with the general scheme of the PLRA,
whereas [a contrary] interpretation [allowing an inmate to
bring suit in federal court once administrative remedies are
no longer available] would turn that provision into a largely
useless appendage." Id., 548 U.S. at 90-91, 93.
The Court reasoned that because proper exhaustion of
administrative remedies is necessary an inmate cannot
"satisfy the Prison Litigation Reform Act's
exhaustion requirement ... by filing an untimely or otherwise
procedurally defective administrative grievance or appeal[,
]" or by effectively bypassing the administrative
process simply by waiting until the grievance procedure is no
longer available to her. Id., 548 U.S. at 83-84, 126
S.Ct. at 2382; Johnson v. Meadows, 418 F.3d 1152,
1157 (11th Cir. 2005) (inmate who files an untimely grievance
or simply spurns the administrative process until it is no
longer available fails to satisfy the exhaustion requirement
of the PLRA). "The only facts pertinent to determining
whether a prisoner has satisfied the PLRA's exhaustion
requirement are those that existed when he filed his original
complaint." Smith v. Terry, 491 Fed.Appx. 81,
83 (11th Cir. 2012) (per curiam).
record in this case demonstrates that the Covington County
Jail provides an administrative remedy for inmate complaints
in the form of an inmate grievance procedure. Attach, to
Hughes' Declaration, Medical Defendants' Exhibit
A (Policy and Procedure Directive for Inmate Grievances) -
Doc. No. 61-1 at 5. The grievance procedure allows an
inmate to submit grievances to the Jail Administrator with
respect to matters/conditions occurring at the Covington
County Jail. The Covington County Jail Policy and Procedure
Directive provides as follows:
It is the policy of the Covington County Jail that inmates
are permitted to submit grievances to the Jail Administrator
and that each grievance will receive a response.
The Jail Administrator will devise a grievance form to be
made available to all inmates on request.
Inmates must file a completed grievance form within 7 days
from the date of the occurrence upon which the grievance is
Completed grievance forms will be delivered to the Jail
Administrator who will respond to the grievance.
The grievance response to the inmate will be in writing.
Once the grievance has been answered by the Jail
Administrator a copy of the answered grievance will be made
and returned to the inmate with the original grievance being
placed in the Inmate's file.
The decision of the Jail Administrator may be appealed to the
Sheriff in writing within seventy-two hours of the receipt of
the grievance decision.
Whole block grievances will not be accepted or answered. All
grievances must come from individual inmates.
medical defendants submitted records of grievances related to
Foster's allegation that they acted with deliberate
indifference to his health. The records indicate that, on
December 19, 2012, Foster submitted a grievance form, in
which he complained:
Being refused the follow-up per cancer (ENT) doctor with knot
behind right ear. Refused follow-up with cardiologist (heart
doctor) as per my doctor orders. Being refused the medi[port]
needing flush. Still heavy congested, in chest nothing else
done for that.
Doc. 61-3, p. 64 of 74. On December 21, 2012, Captain Hughes
All the above are medical issues. This grievance will be
given to the medical staff for an answer. After which I will
be given information as to their findings.
Id. The medical staff subsequently responded:
Going out to see your MD's for follow up visits has been
addressed. Our MD wrote an order for you to not go out at
this time on 11/28/12. As for the flushing of your mediport,
we do not have a doctor's order to flush it, nor could we
verify that you had it flushed other than during bloodwork
being drawn which is standard procedure. If you are having
congestion in your chest, you should turn in a sick call to
be seen by medical. You are treated with antibiotics,
breathing treatments [and] a medicine for sinus congestion
from 12-5-12 to 12-14-12, if this has not resolved your
congestion issue, you need to come to sick [call] for
Id. Foster did not appeal this grievance.
October 11, 2013, Foster submitted an Inmate Request Form, in
which he reminded the staff that he is diabetic and inquired
why his name was no longer on the diabetic tray list in the
kitchen. Doc. 61-3, p. 65 of 74. Later that day, medical
staff responded, "Your name has not been taken off
diabetic tray list." Id. Foster did not file a
grievance against the medical defendants related to this
January 2, 2013, Foster submitted an Inmate Grievance Form
complaining of the following:
I have been refused [further] medical. I had heart problems
and need to be seen by cardiologist follow-up.
I also need to be seen by ENT cancer doctor! For I have a
knot has come up behind my right ear, also now a smaller spot
has on it: They need to be checked out!
The mediport in my chest needs flushing. I on average had it
done every 2 months as it has to be flushed to take the blood
test checking on blood sugar levels, also Hepatitis C.
I have requested about being able to have denture cleaner for
my dentures, all actually got a film from the toothpaste.
I have issues with ear draining, left one. It has been
operated on for being busted, also the sweet [sic]
gland has been removed that also contributed to the draining.
I am trying to follow ya'll guidelines I have been
reference these medical issues by the doctor and nurse ....
Also haven't heard back from Capt. Hughes. I had placed a
request to him 2 weeks ago as of today! Thanks.
Doc. 61-3, p. 66 of 74. The following day, a jailer submitted
the form to medical personnel. The nurse responded:
You haven't been refused any medical treatment during
your time here. On November 28, 2012, you were evaluated by
Dr. McWhorter. He told you on that date that you didn't
have to be sent out to any other MD at this time. The
mediport was only flushed during blood draws before you
arrived [at] this facility which is standard procedure. This
has been explained to you on numerous occasions, an MD order
is needed to flush your port [and] this has also been
explained to you. We have been unable to verify any MD that
would give an order for routine flushes or any routine
flushes done prior to your incarceration. If you are sick,
medical needs to know by you filling out sick call. Medical
has nothing to do with denture cleanser, but it is my
understanding that it is not permitted per jail policy.
Id. Foster did not submit an appeal against the
medical defendants related to this request.
April 8, 2014, Foster submitted an Inmate Request Form to the
Sheriff, in which he requested the following:
I have received several bills from Birmingham per the visit
[with] prosthesis. I was issued a temporary prosthesis that
lasts supply 3 months. This one has started leaking. I
don't wish to have to go through all the mess I did last
year. Anyway this can be handled so someone can order me a
prosthesis 20-8 I can install myself.
Doc. 61-3, p. 67 of 74. On April 8, 2014, medical personnel
responded "Added to MD list for 4/9/14. Can discuss
[with] him." Id. Foster did not submit a
grievance or appeal this matter.
15, 2014, Foster submitted an Inmate Request form to Sheriff
Meeks and Captain Hughes, in which he stated:
Seen ya'll Dr. again today with same results. Nothing.
Diane claims Hughes said I couldn't have a medical
shampoo. It is your Dr place to order it not my wife's
anymore. I came in here with prescription medication shampoo
for this rash I keep breaking out with, now it is
[illegible] back behind my ears. Also Diane finally
looked [at] left ear to see it was infected upon coming from
[hospital] that day. Still nothing checked for dizziness
[and] headaches. Please make a copy and forward.
Doc. 61-3, p. 68 of 74. At some point, jail personnel
submitted the form to "Medical". Id. On
July 30, 2014, medical personnel responded, "Dr.
McWhorter has reviewed your request. Medicated shampoo will
be ordered and dispensed as directed." Id.
Foster did not submit a grievance related to the medicated
shampoo or other complaints against the medical defendants.
April 11, 2015, Foster submitted an Inmate Request Form to
the Chief Jailer, in which he complained of "problem
[with] medical not doing anything about coughing blood [and
that he] went through this mess 28 days last time over a
month ago - ENT has nothing to do [with] lungs." Doc.
61-3, p. 72 of 74. On the same day, medical personnel
responded, "You have been placed on MD list for next
15, 2015, Foster submitted an Inmate Request Form, in which
I have a hard time speaking my mind or keep begging for
something for these headaches or what is causing this to be
so bad. They have caused blindness in my left eye. With the
sinuses, your Dr. couldn't even look [or] diagnosis what
the problem is. Now can't even get anything to stop the
burning, running sinuses, the cold effervescent tablets
don't work, makes them run worst, they seem to believe
the blood I have been coughing up for 4 months off & on
is caused by my sinuses. The blood coming from my stoma
([illegible] lung area) not attached to my sinuses.
I am writing this as a verbal request hoping that something
gets done. Why should I suffer worst not being convicted of
anything yet -detained, charged yes - Even a caged animal
needs fresh air occasionally.
Mailed out to have copy made & certified. The request
mailed back certified so I know it is being seen & not
thrown in garbage as one request this week seemed to
Doc. 61-3, p. 71 of 74. On June 2, 2015, medical personnel
responded, "You are down to see the Dr. tomorrow."
Id. Foster did not submit a grievance or otherwise
appeal the medical personnel's response.
4, 2015, Foster submitted an Inmate Request Form to the Chief
Jailer and Sergeant Benson. Doc. 61-3, p. 70 of 74. He
requested paperwork, a notary, and a doctor who "can
distinguish fact my sinuses aren't attached to lungs and
broncile [sic] tubes causing cough up of
blood." Id. Jail personnel provided copies of
the request to both the Sheriff and medical personnel.
Id. On June 8, 2015, medical personnel responded
that Foster was "seen by ENT and cleaned."
Id. Foster did not submit a grievance or appeal the
related to the medical defendants' actions.
October 19, 2015, Foster submitted an Inmate Request Form,
requesting to see his "medical records" and to
"make copies of certain request, Dr. notes, etc. -
pertaining to legal case!" Doc. 61-3, p. 74 of 74.
Medical personnel responded, "You need to contact
Southern Health Partners. We are gonna repeat CT scan in 3
months per M.D. order." Id. Foster did not
submit a grievance related to this request.
October 26, 2015, Foster submitted an Inmate Request Form, in
which he requested the following:
I am requesting information to the whereabouts, of my
personal breathing equipment, and prescribed albuterol
capsules. The nebulizer was special fitted for my neck [with]
hole in it. The compressor, grey [in] color shape as a small
football (name not remembered). I was told last med. to do a
breathing treatment since my inhaler was out. Was told was
ordered, was handed out " pill a.m. before any express
carrier delivered the refusal of a Benadryl cause excessive
inflammation neck, throat, which turned to stop - This will
be my final plea before I take action.
Also viral inf. N eye per Dr. Franklin.
Doc. 61-3. A nurse responded:
[Inmate] requested for his wife to pick up [illegible] 2 yrs
ago which Mrs. Foster did. [Inmate] hasn't had it in 2
yrs & hasn't had issue [with] using SHP's machs
[sic] and hookup. [Inmate] is being treated for
inflammation on throat. 0 S/S of staff noted. [Inmate] also
was started on meds per eye M.D. for viral infection. This
nurse notified MD Dr. Junkins . . . [and] he gave [no] new
orders at this time.
Id. Foster did not submit a grievance or appeal this
October 27, 2015, Foster submitted an Inmate Request Form in
which he requested:
I need to speak to you face to face, also need a picture of
this infected area on my neck next to my soma that busted
last night allowed [blood] and pus into my airway while I was
asleep, awoke gasping for air, coughing . . . masses of pus
[and blood] from bronciale [sic] and lungs."
Doc. 61-3, p. 69 of 74. Jail staff responded that a nurse was
called at 4:30 a.m. about Foster's complaints of
shortness of breath, that the nurse asked Sergeant Scott to
check his oxygen saturation and respiration rate, and that
Foster's saturation rate was 99%, his respirations were
normal, and no distress was noted. Id. Foster did
not submit a grievance related to the medical defendants'
response to his request.
record before the court demonstrates that Foster failed to
properly exhaust the administrative remedies available to him
during his confinement in the Covington County jail prior to
seeking federal relief, a precondition to proceeding in this
court on his claims. Specifically, the court finds that
Foster either did not submit grievances or appeal the
grievance decision as permitted by the jail's grievance
procedure prior to filing this cause of action. In addition,
the time for utilizing the grievance procedure with respect
to the claims raised by Foster expired prior to the filing of
this case. Finally, any grievances filed after initiation of
this federal cause of action have no bearing on Foster's
proper exhaustion of the administrative remedies provided at
the Covington County Jail. Smith v. Terry, 491
Fed.Appx. 81, 83 (11th Cir. 2012). Foster has presented no
circumstances which justify his failure to exhaust the
jail's grievance procedure prior to filing this case.
the circumstances, the court finds that dismissal with
prejudice is appropriate. Bryant, 530 F.3d at 1375
n.l (acknowledging that where administrative remedies are
clearly time barred or otherwise infeasible inmate's
failure to exhaust may "correctly result in a dismissal
with prejudice."); Marsh v. Jones, 53 F.3d 707,
710 (5th Cir. 1995) ("Without the prospect of a
dismissal with prejudice, a prisoner could evade the
exhaustion requirement by filing no administrative grievance
or by intentionally filing an untimely one, thereby
foreclosing administrative remedies and gaining access to a
federal forum without exhausting administrative
remedies."); Johnson, 418 F.3d at 1157 (same);
Berry v. Kerik, 366 F.3d 85, 88 (2nd Cir. 2004)
(footnotes omitted) (indicating inmate's "federal
lawsuits ... properly dismissed with prejudice" where
previously available "administrative remedies have
become unavailable after prisoner had ample opportunity to
use them and no special circumstances justified failure to
exhaust."). This court therefore concludes that the
Motion to Dismiss filed by Southern Health Partners and
Dianne Williams is due to be GRANTED.
Summary Judgment Standard
judgment is appropriate 'if the pleadings, depositions,
answers to interrogatories, and admissions on file, together
with the affidavits, if any, show there is no genuine
[dispute] as to any material fact and that the moving party
is entitled to judgment as a matter of law.'"
Greenberg v. BellSouth Telecomm., Inc., 498 F.3d
1258, 1263 (11th Cir. 2007) (per curiam) (citation
omitted); Fed.R.Civ.P. 56(c) (Summary judgment "should
be rendered if the pleadings, the discovery and disclosure
materials on file, and any affidavits show that there is no
genuine [dispute] as to any material fact and that the movant
is entitled to judgment as a matter of law."). The party
moving for summary judgment "always bears the initial
responsibility of informing the district court of the basis
for its motion, and identifying those portions of the
[record, including pleadings, discovery materials and
affidavits], which it believes demonstrate the absence of a
genuine [dispute] of material fact." Celotex Corp.
v. Catrett, 477 U.S. 317, 323 (1986). The movant may
meet this burden by presenting evidence which would be
admissible at trial indicating there is no dispute of
material fact or by showing that the nonmoving party has
failed to present evidence in support of some element of its
case on which it bears the ultimate burden of proof.
Id. at 322-324.
the movant meets his evidentiary burden and demonstrates the
absence of a genuine dispute of material fact, the burden
shifts to the non-moving party to establish, with appropriate
evidence beyond the pleadings, that a genuine dispute
material to his case exists. Clark v. Coats & Clark,
Inc., 929 F.2d 604, 608 (11th Cir. 1991);
Celotex, 477 U.S. at 324; FED.R.ClV.P. 56(e)(2)
("When a motion for summary judgment is properly made
and supported, an opposing party may not rely merely on
allegations or denials in its own pleading; rather, its
response must... set out specific facts showing a genuine
[dispute] for trial."). A genuine dispute of material
fact exists when the nonmoving party produces evidence that
would allow a reasonable fact-finder to return a verdict in
its favor. Greenberg, 498 F.3d at 1263.
survive the defendants' properly supported motion for
summary judgment, the plaintiff is required to produce
"sufficient [favorable] evidence" "that a
reasonable jury could return a verdict for the nonmoving
party." Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248-49 (1986). "If the evidence [on which the
nonmoving party relies] is merely colorable ... or is not
significantly probative . . . summary judgment may be
granted." Id. at 249-250. "A mere
'scintilla' of evidence supporting the opposing
party's position will not suffice; there must be enough
of a showing that the [trier of fact] could reasonably find
for that party." Walker v. Darby, 911 F.2d
1573, 1576-1577 (11th Cir. 1990) quoting Anderson,
supra. Conclusory allegations based on subjective
beliefs are likewise insufficient to create a genuine dispute
of material fact and, therefore, do not suffice to oppose a
motion for summary judgment. Waddell v. Valley Forge
Dental Assocs., Inc., 276 F.3d 1275, 1279 (11th Cir.
2001). Hence, when a nonmoving party fails to set forth
specific facts supported by appropriate evidence sufficient
to establish the existence of an element essential to its
case and on which the nonmovant will bear the burden of proof
at trial, summary judgment is due to be granted in favor of
the moving party. Celotex, 477 U.S. at 322
("[F]ailure of proof concerning an essential element of
the nonmoving party's case necessarily renders all other
summary judgment purposes, only disputes involving material
facts are relevant. United States v. One Piece of Real
Prop. Located at 5800 SW 74th Ave., Miami, Fla., 363
F.3d 1099, 1101 (11th Cir. 2004). What is material is
determined by the substantive law applicable to the case.
Anderson, 477 U.S. at 248; Lofton v. Sec'y
of Dep't of Children & Family Servs., 358 F.3d
804, 809 (11th Cir. 2004) ("Only factual disputes that
are material under the substantive law governing the case
will preclude entry of summary judgment."). "The
mere existence of some factual dispute will not defeat
summary judgment unless that factual dispute is material to
an issue affecting the outcome of the case."
McCormick v. City of Fort Lauderdale, 333 F.3d 1234,
1243 (11th Cir. 2003) (citation omitted). To demonstrate a
genuine dispute of material fact, the party opposing summary
judgment "must do more than simply show that there is
some metaphysical doubt as to the material facts. . . . Where
the record taken as a whole could not lead a rational trier
of fact to find for the nonmoving party, there is no
'genuine [dispute] for trial.'" Matsushita
Flee. Indus. Co, Ltd., v. Zenith Radio Corp., 475 U.S.
574, 587 (1986).
in the light most favorable to Plaintiff and drawing all
reasonable inferences in his favor, the following facts are
taken as undisputed for the purpose of summary judgment.
Nurse Williams' Declaration, which is supported by the
undisputed medical records, summarizes Foster's medical
history as follows:
OF PLAINTIFF'S TREATMENT
Plaintiff was booked into the Jail on September 14, 2012. At
booking, he informed the Jail intake officer that he had the
following medical conditions: arthritis, diabetes, heart
conditions, hepatitis, high blood pressure, cancer ("in
recession"), and upper and lower false teeth.
September 14, 2012, [Williams] conducted an initial medical
screening on Plaintiff. Plaintiff informed me that he had the
following conditions: migraine headaches, history of a heart
attack and open heart surgery with stent placement, a neck
fusion, hepatitis C, diabetes, high blood pressure, and a
history of throat cancer with a tracheostomy. Plaintiff was
placed on a diabetic diet, and was approved to have diabetic
shoes in the Jail.
September 14, 2012, Dr. McWhorter entered orders for
Plaintiffs blood pressure to be checked daily for three days,
then weekly for four weeks, then monthly. Dr. McWhorter also
issued orders for Plaintiffs blood sugar to be checked twice
per day for five days. On September 19, 2012, he decreased
the blood sugar checks to once per week.
Medical staff have checked and recorded Plaintiffs blood
pressure and blood sugar throughout his incarceration
according to the Medical Directors' orders.
September 22, 2012, Nurse Gorum conducted a History and
Physical examination of Plaintiff. Plaintiff informed Nurse
Gorum that he had been diagnosed with throat cancer,
diabetes, chronic pain, hepatitis C, and had a history of a
heart attack and stent placement. He stated he was taking the
following medications: Vistaril, Metformin, and Percogesic.
Nurse Gorum noted that Plaintiff had a tracheostomy (a
surgical opening through the neck into the trachea, through
which a patient breathes). She also noted that he wore
glasses and dentures. Nurse Gorum checked Plaintiffs vital
signs: his blood pressure was 126/84, his temperature was
98.0, his pulse was 80, his respirations were 20, and his
weight was 191 pounds.
Nurse Gorum placed Plaintiff on the Chronic Care List. This
list is for patients with chronic conditions such as
diabetes, hepatitis, and high blood pressure. Patients in
Chronic Care are seen at least every three months by the Jail
physician ("Chronic Care Clinic"), and the patients
are monitored regularly as to their vital signs, medications,
medication compliance, special diets, condition control, and
laboratory data ("Chronic Disease Flow Protocol").
Plaintiff has been on the Chronic Care List, has been
monitored according to the Chronic Disease Protocol, and has
been seen in the Chronic Care Clinic on a regular basis
throughout his incarceration in the Jail.
November 23, 2012, I obtained Plaintiffs medical records of
his last visit with Dr. Jack Lurton, M.D., of Pensacola Ear,
Nose and Throat. Dr. Lurton's records revealed that
Plaintiff had undergone two neck dissections and a
parotidectomy. He noted that Plaintiff wore a TEP
(transesophageal prosthesis, or "voice box") that
"kind of frustrates him, but he has pretty good
voice." Dr. Lurton also noted that occasionally,
Plaintiff would cough some blood from his stoma (surgical
opening in the neck for breathing). [Williams] also obtained
Plaintiffs medical records from Sacred Heart Medical Group.
These records indicated that Plaintiff had been treated for
coronary artery disease, cervical spine herniation, throat
cancer, hypertension, depression, migraines, hypertension,
thrush pharyngitis, chronic back pain and diabetes.
Medications included proton pump inhibitors, pain
medications, a sleeping pill, a muscle relaxant and an
From September 14, 2012, to July 20, 2013, Plaintiff received
extensive medical treatment from Dr. McWhorter and the SHP
Jail staff. He was provided the following medications:
Ibuprofen (for headaches), Vistaril (for anxiety and
itching), Phenergan (for nausea), Metformin (for diabetes),
Aceta-Gesic (for pain), tramadol (for pain), loratidine (for
allergies), HCTZ (hydrochlorothiazide, for high blood
pressure), amitriptyline (for depression), Amoxil (an
antibiotic), Cipro (an antibiotic), Bactrim DS (an
antibiotic), cephalexin (an antibiotic), Chlor-Trimeton (for
allergies), albuterol breathing treatments (for asthma),
albuterol inhaler (for asthma), Zantac (to reduce stomach
acid), Azithromycin (an antibiotic), Benadryl (an
antihistamine, for allergies), Triamcinolone cream (for
rash), aspirin (blood thinner), lice treatment, and
multivitamins. His blood sugar was checked weekly, and his
medications, medical condition, diet, and vital signs (blood
pressure, temperature, respirations, weight, and oxygen
saturations) were checked and reviewed every three months in
Chronic Care Clinic. In addition to his Chronic Care visits,
he was seen in the Jail medical office numerous times during
this period for headaches, congestion, skin rashes, scabies,
earaches, urinary problems, and skin lesions.
December 19, 2012, Plaintiff submitted a grievance form to
Jail staff, stating, "Being refused the follow-up per
cancer (ENT) Doctor with knot behind left ear, Refused follow
up with Cardiologist (heart doctor) as per my doctor orders,
Being refused the mediport needing flush, Still heavy
congested, in chest, nothing else done for that."
Medical responded to this grievance, stating "Mr.
Foster, Going out to see your MD's for follow-up visits
has been addressed, our MD wrote an order for you not to go
out at this time on 11/28/12. As for the flushing of your
mediport, we do not have a doctor's order to flush it,
nor could we verify that you had it flushed other than during
bloodwork being drawn which is standard procedure. If you are
having congestion in your chest, you should turn in a sick
call to be seen by medical. You were treated with
antibiotics, breathing treatments & a medicine for sinus
congestions from 12-5- 12 to 12-14-12, if this has not
resolved your congestion issue, you need to come in to sick
call for re-evaluation. Thanks, Medical." Medical
responded in writing to this grievance, stating, "You
haven't been refused any medical treatment during your
time here. On 11/28/12 you were evaluated by Dr. McWhorter,
he told you on that date that you didn't have to be sent
out to any other MD at this time. The mediport was only
flushed during blood draws before you arrived " this
facility which is standard procedure, this has been explained
to you on numerous occasions, an MD order is needed to flush
your port & this also has been explained to you. We have
been unable to verify any MD that would give an order for
routine flushes or any routine flushes done prior to your
incarceration. If you are sick medical needs to know by you
filling out a sick call. Medical has nothing to do with
denture cleanser, but it is my understanding that it is not
permitted per jail policy." Plaintiff did not appeal
January 2, 2013, Plaintiff submitted an Inmate Grievance Form
to the Jail, stating, "I have been refused of other
medical, I had heart problems and need to be seen by
cardiologist follow up. I also need to be seen by ENT cancer
doctor! (For I have a knot has come up behind my right ear;
also now a smaller knot below it; they need to be checked
out! The medi pert in my chest needs flushing, in average had
in done every two months as it has to be flushed to take the
blood test checking on blood sugar levels, also Hepatitis C.
I have requested about being able to have denture cleaner,
for my dentures, are actually got a film from the toothpaste.
I have issues with ear draining, left one, it has been
operated on for being busted, also the sweat gland has been
removed that also contributed to the draining. I am trying to
follow y'all guidelines I have been refused these medical
issues by the Doctor and Nurse Pam. Also haven't heard
back from Capt. Hughes, I had placed a request to him 2 weeks
ago as of today! Thanks." 26. On January 31, 2013,
x-rays were taken of Plaintiffs neck. The radiologist
reported that the x-rays showed no abnormalities other than
degenerative disc disease and a previous cervical spinal
May 22, 2013, Plaintiff informed Nurse Reeves he had inhaled
his "trach." Plaintiff was taken to a hospital
emergency room for removal by Dr. Tara Harden, M.D.
("Dr. Harden"). Plaintiff was returned to the Jail
the same evening. Shortly after his return to the Jail, he
complained that he did not have the piece to his
"trach" that keeps fluid and food from going into
his lungs. Nurse Reeves called Dr. Harden, who stated she had
never heard of this and saw no reason he needed it. The next
day, Nurse Reeves called the office of Plaintiffs ENT (Ear,
Nose and Throat specialist) and talked to the nurse. The
nurse informed Nurse Reeves that the only thing in Plaintiffs
throat from his laryngectomy was a "voice box"
(TEP, or voice prosthesis), and that the voice box being out
would not cause him to get food or water into his lungs. She
stated that without it, Plaintiff might not be able to talk,
but no harm would come to him from its absence. Nurse Reeves
informed the ENT nurse that Plaintiff could still talk
without the device.
Later, Nurse Reeves informed Plaintiff what she had been told
by Dr. Harden and the ENT nurse. Plaintiff became very upset.
He went to the sink and got some water, and started blowing
it out of his stoma (neck opening) at the cell window towards
After May 22, 2013, Plaintiff continued to be able to talk
without the use of a voice prosthesis.
May 24, 2013, pursuant to orders from Dr. McWhorter,
[Williams] contacted the emergency room to arrange for a
replacement of Plaintiffs voice prosthesis. The emergency
room nurse informed me that Plaintiff had an established
stoma, and therefore had no need for a throat prosthesis, and
that he had not had one for over twenty years. [Williams]
contacted Dr. McWhorter, and informed him of my conversation
with the emergency room, and Dr. McWhorter discontinued the
order for the prosthesis replacement.
June 25, 2013, an inmate, Dustin Beverly, submitted a
statement to Jail staff, stating that Plaintiff had
intentionally "caused his trach diaphragm to be sucked
into his lungs." Inmate Beverly stated that Plaintiff
had been talking about it the night before "so that he
could get out of jail." 32. On July 17, 2013, Dr.
McWhorter saw Plaintiff in the Jail medical office. Plaintiff
complained of a pruritic rash, and breaking out in nodules.
Dr. McWhorter observed a rash in Plaintiffs axilla and
abdomen. He issued medical orders for Triamcinolone cream, to
be applied twice per day for fourteen days.
July 30, 2013, Plaintiff submitted a Sick Call Slip, stating
"soreness of my neck, along with soreness of my throat,
rash, back hurts, (knots are very sore, the second small one
on left side has small drainage on neck)." Plaintiff was
referred by the Jail nurse to be seen by Dr. McWhorter for
July 31, 2013, Dr. McWhorter saw Plaintiff in the Jail
medical office. Plaintiff complained of knots on his neck and
a rash. Dr. McWhorter noted that the rash was dermatitis that
was already being treated. He ordered that Plaintiff continue
his current medications.
July 2013, Plaintiff was provided the following medications:
Bactrim, body lice treatment, Multivitamin, HCTZ, Loratidine
(Claritin), Metformin, Tramadol, aspirin, and albuterol
August 1, 2013, Plaintiff submitted a Sick Call Slip, stating
"I am requesting a second opinion from a qualified
doctor able to fully do his job and listen before saying he
not gonna do anything. Rash, knots neck, trouble pissing,
congestion." [Williams] responded that Plaintiff had
been seen on July 31, 2013 for these same complaints, and
that no treatment had been ordered.
August 5, 2013, Plaintiff submitted a Sick Call Slip, stating
"Spot under arm again, infected spots on stomach, throat
so sore barely swallow, knots on neck get worst, rash leaving
small sores all over." 38. On August 7, 2013, [Williams]
saw Plaintiff in the Jail medical office. I completed a
Clinical Pathway Form for skin lesions. I observed nothing
under Plaintiffs right arm, and noted that no treatment was
August 8, 2013, Dr. McWhorter issued medical orders to
discontinue Claritin when Plaintiffs current supply ran out.
August 12, 2013, Plaintiff submitted a Sick Call Slip,
stating "The urinating is still burning, sprinkle
dribble at first, harder at some times. Drainage behind my
left ear, now I have a knot in left breast that is very sore
this has never happen before these sores seem to be getting
worst again (breaking out) Knots behind the ears are sore!
Nurse Reeves saw Plaintiff in the Jail medical office on
August 14, 2013. She completed a Clinical Pathway Form for
urinary tract discomfort. She checked Plaintiffs urine, and
the results did not indicate the presence of an infection.
She referred Plaintiff to be seen by the doctor for his other
August 14, 2013, Dr. McWhorter saw Plaintiff in the Jail
medical office. Plaintiff complained of a rash. Dr. McWhorter
observed a pruritic rash over Plaintiffs back and
extremities. He diagnosed the rash as dermatitis, and issued
orders for Plaintiff to be given Claritin.
August 30, 2013, Plaintiff submitted a Sick Call Slip,
stating "Left ear draining bad & sore, got balance
messed up, also got another knot in breast right one this
time inflamed bad." 44. On August 31, 2013, [Williams]
saw Plaintiff in the Jail medical office, and completed a
Clinical Pathway Form for earache. I noted that Plaintiffs
left tympanic membrane was red, shiny and bulging. Pursuant
to medical orders, [Williams] initiated treatment with Amoxil
500 mg, one tablet per morning and two tablets per evening
for ten days.
August 2013, Plaintiff was provided the following
medications: Multivitamins, MCTZ, Loratidine (Claritin),
Triamcinolone cream, Metformin, Tramadol, aspirin, Amoxil,
and albuterol breathing treatments.
September 18, 2013, Plaintiff was on the sick call list to be
seen by Dr. McWhorter. Plaintiff gave me a letter stating he
wanted to be taken off the sick call list. I spoke with
Plaintiff, who agreed to see Dr. McWhorter for chronic care.
Plaintiff stated, "If I don't like what he says
I'm just not going to worry about it, I'll just leave
it to the Lord." 47. On September 18, 2013, Dr.
McWhorter issued medical orders for Triamcinolone cream, to
be applied twice per day for ten days. He also ordered
Nizoral medicated shampoo, to be applied twice per day.
September 19, 2013, Plaintiff refused his morning medications
at pill call.
September 20, 2013, Plaintiff submitted a Sick Call Slip,
stating "I need to cut these ingrown toe nails on left
big toe & right big toe. They don't have anything
that opens enough for these thick nails." On September
23, 2013, [Williams] responded "I/M brought up to use
toe nail clippers. No SS (signs or symptoms) of
September 2013, Plaintiff was administered the following
medications: Multivitamin, HCTZ, Metformin, Tramadol,
aspirin, albuterol breathing treatments, Amoxil, and
October 6, 2013, Covington County Circuit Judge Charles A.
Short entered an order requiring Covington County to have
Plaintiff seen by a physician "that treats Plaintiffs
throat condition" and to provide Plaintiff with a throat
October 11, 2013, Plaintiff submitted an Inmate Request Form,
stating, "Just a reminder I'm diabetic &
wondering why my name has been taken off diabetic tray list
in kitchen!" On the same day, medical responded,
"Your name has not been taken off Diabetic tray
October 19, 2013, Plaintiff submitted a Sick Call Slip,
stating "Badly congested, wondering when they gonna get
prosthesis due to court order! Need toenail clippers rash
getting bad again, dandruff shampoo off store don't
work!" Nurse Reeves responded that Plaintiff was seen in
the Jail medical office on October 20, 2013, and only wanted
to be seen about the rash.
October 20, 2013, Nurse Reeves saw Plaintiff in the Jail
medical office. Plaintiff complained of a rash to his arms,
legs and head. Nurse Reeves completed a Clinical Pathway Form
for dermatitis. She noted slightly raised red areas to
Plaintiffs arms, legs and trunk. Pursuant to medical orders,
Nurse Reeves provided Plaintiff with one tube of
Triamcinolone Acetonide cream, 0.1%.
October 23, 2013, Dr. McWhorter saw Plaintiff in the Jail
medical office. Plaintiff complained of an itching rash. Dr.
McWhorter diagnosed Plaintiff with dermatitis, and noted that
Plaintiff had been given cream for the problem. Dr. McWhorter
also entered medical orders for Plaintiff to undergo a
surgical consult with Dr. Harden for a replacement throat
October 24, 2013, Dr. Harden, the emergency room physician at
Andalusia Medical Center signed a letter, stating that she
did not perform surgery to implant prosthesis devices to
improve speech. Dr. Harden recommended that Plaintiff see an
ENT specialist. Dr. McWhorter received the letter on October
October 2013, Plaintiff was provided the following
medications: Multivitamin, Cephalexin, HCTZ, Triamcinolone
cream, Metformin, Tramadol, and albuterol breathing
November 1, 2013, Plaintiff submitted a Sick Call Slip,
stating, "Left ear draining again, area around the
mediport sore, Boil? Needs lancing, very sore on back."
59. On November 5, 2013, Nurse Reeves saw Plaintiff in the
Jail medical office for a swollen, tender, bleeding lesion to
his upper back. She placed Plaintiff on a wound care
protocol, and referred him to be seen by the doctor on
November 6, 2013. She received and initiated medical orders
for Bactrim DS, twice per day for ten days, and ibuprofen 800
mg twice per day for five days.
November 6, 2013, Dr. McWhorter saw Plaintiff in the Jail
medical office. He observed that Plaintiff had a draining
abscess on his mid back from a spider bite. Dr. McWhorter
issued medical orders for Rocephin, 1 gram intramuscular
From November 5, 2013, to December 4, 2013, Plaintiff was
seen in the Jail medical office for wound care to a two (2)
centimeter lesion to his mid-to-upper back.
Nurse Reeves contacted Dr. McQueen's office on November
19, 2013, to inquire about replacing Plaintiffs voice
prosthesis. Dr. McQueen informed Nurse Reeves that they
referred all patients to Dr. Woodworm at UAB. Dr. McQueen
also stated that if Plaintiff could talk, he did not need the
November 21, 2013, Nurse Reeves contacted the UAB Health
Center, and was informed that Dr. Woodworm would need to
speak with Dr. McWhorter about the referral.
November 22, 2013, Plaintiff submitted a Sick Call Slip,
stating "throat sore & irritated, having to
continuously keep the hole open where the prosthesis fits, by
allowing me to talk right now, I need the prosthesis, losing
weight again the few weeks I have used salt to gargle due to
November 23, 2013, [Williams] saw Plaintiff in the Jail
medical office. Plaintiff complained of his throat being
irritated due to trying to keep his stoma open to talk.
[Williams] noted that Plaintiff was in the process of
attempting to obtain a prosthesis. [She] observed no
drainage, redness or edema to Plaintiffs left tympanic
membrane. Plaintiffs respirations were unlabored, and his
lung sounds were clear. He had no throat redness, no swollen
tonsils, no exudate, and no swollen or tender glands.
Pursuant to medical orders from Dr. McWhorter, no treatment
November 23, 2013, Dr. McWhorter issued medical orders for
Plaintiff to be administered the influenza vaccination.
November 2013, Plaintiff was provided the following
medications: Multivitamin, HCTZ, Triamcinolone cream,
Metformin, Tramadol, albuterol breathing treatments, Bactrim
DS, ibuprofen, Minocycline, Rocephin, aspirin, flu vaccine,
December 4, 2013, Dr. McWhorter contacted UAB, but was unable
to speak with Dr. Woodworm. Dr. McWhorter was informed that
Dr. Woodworm would return his call.
December 4, 2013, Plaintiff submitted a Sick Call Slip,
stating "Drainage from inside & behind left ear,
knot behind both ears sore, sore throat, headaches, lower
back for some reason hurting worst that usual, naseau (3
December 6, 2013, [Williams] saw Plaintiff in the Jail
medical office. Plaintiff complained of pain in his lower
back, and a strong odor from his urine. [Williams] completed
a Clinical Pathway Form for urinary tract discomfort.
[Williams] noted that [she] performed a urine dip test, which
showed a Ph of 5, and specific gravity of 1.005. I also
completed a Clinical Pathway Form for upper respiratory
symptoms. Plaintiff also complained of clear drainage in his
throat, earache, sore throat, and pressure. [Williams]
observed no drainage, redness or edema to Plaintiffs left
tympanic membrane. Plaintiffs respirations were unlabored,
and his lung sounds were clear. He had no throat redness, no
swollen tonsils, no exudate, and no swollen or tender glands.
Pursuant to medical orders, no treatment was indicated.
December 8, 2013, Plaintiff submitted a Sick Call Slip,
stating "Sysc on face (chin) Numerous spots itching like
fire." Nurse Reeves responded that Plaintiff was seen in
the medical office on December 10, 2013.
December 10, 2013, Nurse Reeves saw Plaintiff in the Jail
medical office. She observed a football shaped lesion, about
5 cm x 4 cm in size, on Plaintiffs left temporomandibular
area. Pursuant to medical orders, she provided Plaintiff with
Bactrim DS for ten days.
December 11, 2013, Plaintiff submitted a Sick Call Slip,
stating "I asked Dr About these headaches getting worst
& these bumps itching & burning / no reply after
Nurse told him chronic care. I need a roll of my tape."
[Williams] responded that Plaintiff was seen by medical on
December 14, 2013.
December 14, 2013, Nurse Reeves saw Plaintiff in the Jail
medical office. Plaintiff complained of itching and redness
to his legs and arms. Nurse Reeves completed a Clinical
Pathway Form, noting that she observed a tiny, very slightly
red, scaly area to the back of Plaintiffs right leg. She
noted that per medical orders, no treatment was indicated.
December 18, 2013, Dr. McWhorter issued medical orders for
weekly blood sugar checks.
December 20, 2013, Plaintiff submitted a Sick Call Slip,
stating "In Grown toe nail, need to get to my cutters
& lifting tool, need cortisone & tape. Don't
forget me! I also need sugar ck'd." [Williams]
responded on December 22, 2013 that Plaintiffs blood sugar
was 124. [She] noted that Plaintiff was allowed to use
toenail clippers on December 21, 2013. [Williams] also noted
that when Plaintiff was brought to sick call, he had no
further complaints, other than to check on his appointment
for a prosthesis. [Williams] explained to him that the
appointment had been made.
December 23, 2013, Plaintiff was seen at UAB Health Center
outpatient clinic by Dr. Richard Waguespack ("Dr.
Waguespack"). Plaintiff reported that his TEP (voice
prosthesis) had become dislodged and had not been replaced.
Dr. Waguespack noted that Plaintiffs speech and voice quality
were within normal limits with no deficits intelligibility
deficits. He replaced the prosthesis without incident.
December 25, 2013, Plaintiff submitted a Sick Call Slip,
stating "Not sure, several times this week at a moment,
I break out in a clod, clamy, hard sweat, get very weak, hard
to breathe, I have today laid around not feeling well, at
prayer call this happen'd again." Nurse Reeves
responded that Plaintiff was seen by medical on December 28,
December 23, 2013, radiologist Dr. Charles Barrett reported
that the CT of Plaintiffs neck showed no evidence of residual
or metastatic disease.
December 27, 2013, Dr. McWhorter issued medical orders for
Plaintiffs Hemoglobin A1C to be checked every three months.
December 28, 2013, Nurse Reeves saw Plaintiff in the Jail
medical office for sick call. Plaintiff stated that he was
having trouble breathing. Nurse Reeves noted that Plaintiff
had been caught the previous week with a cigarette in his
mouth, and had been caught the night before with tobacco in
his cell. Nurse Reeves noted that she would do teaching with
Plaintiff on the dangers of smoking.
December 2013, Plaintiff was provided the following
medications: Multivitamins, HCTZ, Metformin, Tramadol,
aspirin, albuterol breathing treatments, and Bactrim DS.
January 4, 2014, Plaintiff submitted a Sick Call Slip,
stating "burning, Itching, small bumps comes up - area
around them. I'm afraid it the mites or something close,
(possible to get some shampoo) what I used last time to stop
all this." [Williams] saw Plaintiff in the medical
office that day. [She] observed red, scaly, raised bumps with
clear fluid on his arms and trunk. [Williams] saw no evidence
of lice or nits in his hair or clothing. [She] provided
Plaintiff with lice shampoo to use as directed.
January 8, 2014, Plaintiff was seen in the Jail medical
office by Dr. McWhorter. Plaintiff complained of
"scabies." Dr. McWhorter noted that Plaintiff had
received treatment for the scabies.
January 9, 2014, the laboratory at Andalusia Hospital
reported that Plaintiffs Hemoglobin A1C level (tested to
monitor Plaintiffs average blood sugar levels) was 5.7,
which, according to the laboratory report, was within normal
range for a patient with diabetes.
January 11, 2014, Plaintiff submitted a Sick Call Slip,
stating "Burning, hard to urinate, very light, slow at
first, stomach cramps." [Williams] responded that
Plaintiff was seen in the medical office on January 15, 2014.
January 15, 2014, [Williams] saw Plaintiff in the Jail
medical office. Plaintiff complained of burning with
urination, and pain in his lower abdomen. [Williams] tested
his urine, and noted Ph of 7.5, Specific Gravity of 1.005.
[She] advised Plaintiff to push fluids. Plaintiff stated
"I don't like this water. I don't see why they
won't let Katie bring me a case of water up here."
[Williams] advised Plaintiff to alert staff of any changes to
January 2014, Plaintiff was provided the following
medications: Multivitamin, HCTZ, Metformin, Tramadol, and
albuterol breathing treatments.
February 1, 2014, Dr. McWhorter issued medical orders for
Lisinopril 20 mg, twice per day.
February 3, 2014, Plaintiff submitted a Sick Call Slip,
stating "Headaches are getting worst, I told nurse
several times & requested to talk to Doc." I
responded that Plaintiff had been referred to the doctor.
February 4, 2014, correctional officers found Plaintiff in
possession of a full bag of tobacco and cigarettes, wrapped
with the medical tape that was used for his prosthesis. Nurse
Reeves instructed the correctional officers to keep the
medical tape in the pod and to give it to Plaintiff one piece
at a time, as needed.
February 12, 2014, Plaintiff was seen by Dr. McWhorter in the
Jail medical office. Plaintiff complained of a headache. Dr.
McWhorter noted that Plaintiff was already on Ultram for
headaches, and that the Ultram should be fixing the
February 19, 2014, Plaintiff submitted a Sick Call Slip,
stating "I have asked numerous times, even trying to
explain to Dr these headaches, are worst (10-12 tylenols a
day), also about the ear plugs with a stoma to keep them from
going down my open air pipe while asleep (med got me worn out
almost got stuck down in my ear when string came loose) I
have also asked about my ankle bandage I been wearing for 30
yr due to ankle being shattered, nowvery bruised &
painful. Ear plugs & ankle was approved by Nurse Pam
& done in earlier days of my incarceration."
February 21, 2014, [Williams] saw Plaintiff in the Jail
medical office for his complaints of headaches. [She]
completed a Clinical Pathway Form, noting that Plaintiff was
alert and oriented, with a steady gait and station. His
pupils were equal and reactive, and his extraocular muscles
were intact. He displayed no photophobia or weakness. His
blood pressure was 148/100, his pulse was 76, his
respirations were 18, and his temperature was 97.8. [She]
notified Dr. McWhorter of the elevated blood pressure. Dr.
McWhorter ordered blood pressure checks daily for five days.
He also ordered Lisinopril 20 mg, one tablet twice per day.
[Williams] also noted that Plaintiffs wife was to bring him a
new ankle brace. [Williams] explained to him that it was not
up to medical to approve ear plugs.
February 26, 2014, Plaintiff submitted a Sick Call Slip,
stating, "Headaches, lightheadedness, need to find out
cause." I saw Plaintiff on March 1, 2014 and checked his
vital signs. His temperature was 97.4, his respirations were
18, his pulse was 100, and his blood pressure was 100/70.
[Williams] referred him to be seen by the doctor, and noted
that it was time for a chronic care visit.
February 26, 2014, Dr. McWhorter issued medical orders for
Plaintiffs blood pressure to be checked every other day for
seven days. The medical staff checked Plaintiffs blood
pressure as per Dr. McWhorter's orders.
February 2014, Plaintiff was provided the following
medications: Multivitamin, HCTZ, Metformin, Tramadol,
aspirin, albuterol breathing treatments, albuterol inhaler,
and Lisinopril. On March 3, 2014, Dr. McWhorter issued
medical orders for Plaintiffs dosage of Lisinopril to be
reduced from 20 mg to 10 mg.
March 13, 2014, Plaintiff submitted a Sick Call Slip,
stating, "this morning I awoke not realizing upon wiping
my throat my prosthesis wasn't in my throat till pill
call, this leaves me again w/o voice prosthesis, valve to
stop fluids from getting in my airway." [Williams]
responded that [she] had spoken to Dr. McWhorter, and
received permission for Plaintiffs wife to bring him a
March 2014, Plaintiff was administered the following
medications: Multivitamin, Ceftriaxone (Rocephin), HCTZ,
Metformin, Tramadol (Ultram), aspirin, albuterol breathing
treatments, Lisinopril, and albuterol inhaler.
April 1, 2014, the laboratory at Andalusia Hospital reported
that Plaintiffs Hemoglobin A1C level (tested to monitor
Plaintiffs average blood sugar levels) was 5.7, which,
according to the laboratory report, was within normal range
for a patient with diabetes.
April 8, 2014, Plaintiff submitted a Sick Call Slip, stating,
"Prosthesis is leaking temporary are only good for
ruffly 3 months, 2 toes on left foot is burning on the end
feels like some hit them w/ hammer" (sic). Medical staff
responded that Plaintiff had been referred to the doctor.
April 8, 2014, Plaintiff submitted an Inmate Request Form to
the Jail, stating, "I have received several bills from
Birmingham for the visit w/ prosthesis, I was issued a
temporary prosthesis that lasts ruffly [sic] 3
months this one has started leaking, I don't wish to have
to go through all the mess I did last year, anyway this can
be handled so someone can order me a prosthesis 20-8 so I can
install myself Thanks Shelton Foster" (sic). On April 8,
2014, Medical responded to this request, stating, "Added
to MD list for 4/9/14 can discuss w/ him."
April 10, 2014, Plaintiff submitted a Sick Call Slip, stating
"This evening 7 times so far in last 4 hrs I have gotten
dizzy, light headed to the extent of not staying stood
up/last broke out in hard sweat."
April 12, 2014, [Williams] saw Plaintiff in the medical
office, and completed a Clinical Pathway Form concerning
Plaintiffs complaint of dizziness. [Williams] observed that
Plaintiff blood sugar was 103. His blood pressure was 110/70,
his pulse was 66, his respirations were 16, and his oxygen
saturation was 98%. He was alert and oriented, and his gait
and station were steady. [Williams] instructed him to notify
staff so that his blood sugar could be checked while he was
having a dizzy episode.
April 13, 2014, Plaintiff submitted a Sick Call Slip, stating
"wife got information where the Dr from Birm. Called in
prescription for prosthesis for 2 yrs worth of these temp
they don't handle permanent ones."
April 15, 2015, Nurse Reeves contacted a speech pathologist
at UAB (University of Alabama Birmingham), who informed her
that a voice prosthesis should be replaced every six weeks.
Nurse Reeves proceeded to order replacement prosthesis for
April 18, 2014, Plaintiff submitted a Sick Call Slip,
stating, "Got light headed last night bad for almost an
hour, Stg took blood sugar was 117, wondering about blood
pressure possibly dropping, also have noticed the headaches
came on quiet severly yesterday just before." Nurse
Reeves responded the next day, "Had to draw lab on I/M
checked BP ...