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Foster v. Meeks

United States District Court, M.D. Alabama, Northern Division

February 3, 2017

SHELTON FOSTER, Plaintiff
v.
DENNIS MEEKS, et al., Defendants.

          RECOMMENDATION OF THE MAGISTRATE JUDGE

          TERRY F. MOORER UNITED STATES MAGISTRATE JUDGE

         I. INTRODUCTION

         On 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.[1] 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.[2] Doc. 11. On December 2, 2015, Plaintiff filed an amendment to the Amended Complaint, in which he asserted additional claims. Doc. 13.

         The 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.

         On 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.

         On 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 Cir. 2013).

         The 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.[3] On December 9, 2016, the defendants filed Motions for Summary Judgment. Doc. 70 & 72.

         II. DISCUSSION

         A. The Claims

         The claims as set forth by counsel in the Amended Complaint are as follows:

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 Violations
Count X: 42 U.S.C. Section 1983 - Outrage

Doc. 56, Pl's Amended Comp.

         B. The Medical Defendants

         (1) The Standard of Review

         The 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)).

         "When 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).

         Upon 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.

         (2) The Failure to Exhaust the Grievance Procedure

         Foster 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.

         The 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. 2378 (2006).

         Moreover, "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).

         The 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:

POLICY:
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.
PROCEDURE:
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 based.
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.

Id.

         The 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 responded:

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:

Mr. Foster,
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 re-evaluate.
Thanks, Medical

Id. Foster did not appeal this grievance.

         On 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 request.

         On 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.

         On 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.

         On July 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.

         On 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 visit." Id.

         On May 15, 2015, Foster submitted an Inmate Request Form, in which he complained:

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 disappear. Thanks.

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.

         On June 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.

         On 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.[4]

         On 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 matter.

         On 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.

         The 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.

         Under 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.

         C. The Jailers

         (1) Summary Judgment Standard

         Summary 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.

         Once 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.

         To 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 facts immaterial.").

         For 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).

         (2) The Facts

         Viewed 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:

         CHRONOLOGY OF PLAINTIFF'S TREATMENT[5]

         16. 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.

         17. On 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.

         18. On 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.

         19. Medical staff have checked and recorded Plaintiffs blood pressure and blood sugar throughout his incarceration according to the Medical Directors' orders.

         20. On 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.

         21. 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.

         22. On 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 antihistamine.

         23. 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.

         24. On 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 this grievance.

         25. On 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 fusion.

         27. On 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.

         28. 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 the nurse.

         29. After May 22, 2013, Plaintiff continued to be able to talk without the use of a voice prosthesis.

         30. On 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.

         31. On 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.

         33. On 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 his complaints.

         34. On 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.

         35. In July 2013, Plaintiff was provided the following medications: Bactrim, body lice treatment, Multivitamin, HCTZ, Loratidine (Claritin), Metformin, Tramadol, aspirin, and albuterol breathing treatments.

         36. On 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.

         37. On 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 indicated.

         39. On August 8, 2013, Dr. McWhorter issued medical orders to discontinue Claritin when Plaintiffs current supply ran out.

         40. On 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! Sore throat!"

         41. 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 complaints.

         42. On 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.

         43. On 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.

         45. In August 2013, Plaintiff was provided the following medications: Multivitamins, MCTZ, Loratidine (Claritin), Triamcinolone cream, Metformin, Tramadol, aspirin, Amoxil, and albuterol breathing treatments.

         46. On 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.

         48. On September 19, 2013, Plaintiff refused his morning medications at pill call.

         49. On 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 infection."

         50. In September 2013, Plaintiff was administered the following medications: Multivitamin, HCTZ, Metformin, Tramadol, aspirin, albuterol breathing treatments, Amoxil, and Triamcinolone cream.

         51. On 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 prosthesis.

         52. On 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 list."

         53. On 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.

         54. On 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%.

         55. On 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 prosthesis.

         56. On 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 30, 2013.

         57. In October 2013, Plaintiff was provided the following medications: Multivitamin, Cephalexin, HCTZ, Triamcinolone cream, Metformin, Tramadol, and albuterol breathing treatments.

         58. On 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.

         60. On 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 injection.

         61. 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.

         62. 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 prosthesis.

         63. On 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.

         64. On 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 sore throat."

         65. On 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 was indicated.

         66. On November 23, 2013, Dr. McWhorter issued medical orders for Plaintiff to be administered the influenza vaccination.

         67. In 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, and Tylenol.

         68. On 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.

         69. On 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 days)."

         70. On 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.

         71. On 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.

         72. On 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.

         73. On 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.

         74. On 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.

         75. On December 18, 2013, Dr. McWhorter issued medical orders for weekly blood sugar checks.

         76. On 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.

         77. On 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.

         78. On 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, 2013.

         79. On December 23, 2013, radiologist Dr. Charles Barrett reported that the CT of Plaintiffs neck showed no evidence of residual or metastatic disease.

         80. On December 27, 2013, Dr. McWhorter issued medical orders for Plaintiffs Hemoglobin A1C to be checked every three months.

         81. On 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.

         82. In December 2013, Plaintiff was provided the following medications: Multivitamins, HCTZ, Metformin, Tramadol, aspirin, albuterol breathing treatments, and Bactrim DS.

         83. On 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.

         84. On 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.

         85. On 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.

         86. On 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.

         87. On 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 his condition.

         88. In January 2014, Plaintiff was provided the following medications: Multivitamin, HCTZ, Metformin, Tramadol, and albuterol breathing treatments.

         89. On February 1, 2014, Dr. McWhorter issued medical orders for Lisinopril 20 mg, twice per day.

         90. On 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.

         91. On 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.

         92. On 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 headaches.

         93. On 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."

         94. On 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.

         95. On 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.

         96. On 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.

         97. In 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.

         98. On 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 prosthesis.

         99. In March 2014, Plaintiff was administered the following medications: Multivitamin, Ceftriaxone (Rocephin), HCTZ, Metformin, Tramadol (Ultram), aspirin, albuterol breathing treatments, Lisinopril, and albuterol inhaler.

         100. On 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.

         101. On 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.

         102. On 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."

         103. On 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."

         104. On 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.

         105. On 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."

         106. On 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 Plaintiff.

         107. On 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 ...


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