United States District Court, M.D. Alabama, Northern Division
THURMON E. MOORE, II, #178615, Plaintiff,
CORIZON MEIDICAL SERVICES, et al., Defendants.
RECOMMENDATION OF THE MAGISTRATE JUDGE I.
M. BORDEN UNITED STATES MAGISTRATE JUDGE
U.S.C. § 1983 action is before the court on a complaint
filed by Thurmon E. Moore, II, a state inmate, challenging
conditions present during his prior term of incarceration at
the Staton Correctional Facility. Specifically, Moore alleges
that the defendants denied him adequate medical treatment for
his osteoarthritis and refused to place him in a chronic care
clinic for this condition. He also questions the
constitutionality of co-payments assessed for certain
treatment provided to him. Finally, Moore contends that
correctional officials subjected him to unconstitutional
conditions. Moore names as defendants Corizon Medical
Services, the contract medical care provider for the state
prison system; Dr. Hugh Hood, the Regional Medical
Director for Corizon; Dr. Karen Stone and Dr. Ronnie Herring,
physicians at Staton during the time relevant to the
complaint; Michelle Sagers-Copeland, Nancy Long, Cebria Lee,
Tammra Wood, Regina Mitchell and Tamelria Tellis, nurses at
Staton; Leeposey Daniels, Leon Forniss and John Crow, wardens
at Staton; and Kim T. Thomas, the former commissioner of the
Alabama Department of Corrections. Moore seeks a declaratory
judgment, injunctive relief and monetary damages for the
alleged violations of his constitutional rights. Doc. 1 at
1-2 & 27.
defendants filed a special report and relevant evidentiary
materials in support of their report, including affidavits
and certified copies of Moore's medical records,
addressing the claims raised in the complaint. In these
documents, the medical and correctional defendants maintain
they did not act with deliberate indifference to Moore's
medical needs and the correctional defendants deny they
subjected Moore to unconstitutional conditions.
reviewing the special report filed by the defendants, the
court issued an order on March 22, 2016 directing Moore to
file a response to each of the arguments set forth by the
defendants in their report, supported by affidavits or
statements made under penalty of perjury and other
evidentiary materials. Doc. 43 at 2. The order specifically
cautioned that “unless within fifteen (15) days from
the date of this order a party . . . presents sufficient
legal cause why such action should not be undertaken . . .
the court may at any time [after expiration of the time for
the plaintiff filing a response to this order] and without
further notice to the parties (1) treat the special report
and any supporting evidentiary materials as a motion for
summary judgment and (2) after considering any response as
allowed by this order, rule on the motion for summary
judgment in accordance with the law.” Doc. 43 at 3.
Moore filed a sworn response to this order on April 18, 2016.
to the directives of the order entered on March 22, 2016, the
court now treats the defendants' report as a motion for
summary judgment and concludes that summary judgment is due
to be granted in favor of the defendants.
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) (internal quotation marks
omitted); Fed.R.Civ.P. 56(a) (“The court shall grant
summary judgment if the movant shows that there is no genuine
dispute as to any material fact and 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 issue [dispute] of material fact.” Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986); Jeffery
v. Sarasota White Sox, Inc., 64 F.3d 590, 593 (11th Cir.
1995) (holding that moving party has initial burden of
showing there is no genuine dispute of material fact for
trial). The movant may meet this burden by presenting
evidence indicating there is no dispute of material fact or
by showing that the nonmoving party has failed to present
appropriate evidence in support of some element of its case
on which it bears the ultimate burden of proof.
Celotex, 477 U.S. at 322-24; Moton v.
Cowart, 631 F.3d 1337, 1341 (11th Cir. 2011) (holding
that moving party discharges his burden by showing the record
lacks evidence to support the nonmoving party's case or
the nonmoving party would be unable to prove his case at
the defendants meet their evidentiary burden, as they have in
this case, the burden shifts to the plaintiff 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.Civ.P.
56(e)(3); Jeffery, 64 F.3d at 593-94 (holding that,
once a moving party meets its burden, “the non-moving
party must then go beyond the pleadings, and by its own
affidavits [or statements made under penalty of perjury], or
by depositions, answers to interrogatories, and admissions on
file, ” demonstrate that there is a genuine dispute of
material fact). In civil actions filed by inmates, federal
courts “must distinguish between evidence of disputed
facts and disputed matters of professional judgment. In
respect to the latter, our inferences must accord deference
to the views of prison authorities. Unless a prisoner can
point to sufficient evidence regarding such issues of
judgment to allow him to prevail on the merits, he cannot
prevail at the summary judgment stage.” Beard v.
Banks, 548 U.S. 521, 530 (2006) (internal citation
omitted). This court will also consider “specific
facts” pled in a plaintiff's sworn complaint when
considering his opposition to summary judgment. Caldwell
v. Warden, FCI Talladega, 748 F.3d 1090, 1098 (11th Cir.
2014). A genuine dispute of material fact exists when the
nonmoving party produces evidence that would allow a
reasonable factfinder to return a verdict in its favor such
that summary judgment is not warranted. Greenberg,
498 F.3d at 1263; Allen v. Bd. of Pub. Educ. for Bibb
Cnty., 495 F.3d 1306, 1313 (11th Cir. 2007). “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). “[T]here must
exist a conflict in substantial evidence to pose a jury
question.” Hall v. Sunjoy Indus. Group, Inc.,
764 F.Supp.2d 1297, 1301 (M.D. Fla. 2011) (citation omitted).
“When opposing parties tell two different stories, one
of which is blatantly contradicted by the record, so that no
reasonable jury could believe it, a court should not adopt
that version of the facts for purposes of ruling on a motion
for summary judgment.” Scott v. Harris, 550
U.S. 372, 380 (2007).
factual inferences must be viewed in a light most favorable
to the plaintiff and pro se complaints are entitled
to liberal interpretation, a pro se litigant does
not escape the burden of establishing by sufficient evidence
a genuine dispute of material fact. See Beard, 548
U.S. at 525; Brown v. Crawford, 906 F.2d 667, 670
(11th Cir. 1990). Thus, Moore's pro se status
alone does not compel this court to disregard elementary
principles of production and proof in a civil case.
court has undertaken a thorough and exhaustive review of all
the evidence contained in the record. After this review, the
court finds that Moore has failed to demonstrate a genuine
dispute of material fact in order to preclude entry of
summary judgment in favor of the defendants.
A. Absolute Immunity-Correctional Defendants
extent Moore lodges claims against the correctional
defendants in their official capacities and seeks monetary
damages, these defendants are entitled to absolute immunity.
Official capacity lawsuits are “in all respects other
than name . . . treated as a suit against the entity.”
Kentucky v. Graham, 473 U.S. 159, 166 (1985). As the
Eleventh Circuit has held,
the Eleventh Amendment prohibits federal courts from
entertaining suits by private parties against States and
their agencies [or employees]. There are two exceptions to
this prohibition: where the state has waived its immunity or
where Congress has abrogated that immunity. A State's
consent to suit must be unequivocally expressed in the text
of [a] relevant statute. Waiver may not be implied. Likewise,
Congress' intent to abrogate the States' immunity
from suit must be obvious from a clear legislative statement.
Selensky v. Alabama, 619 Fed.Appx. 846, 848-49 (11th
Cir. 2015) (internal quotation marks and citations omitted).
Thus, a state official may not be sued in his official
capacity unless the state has waived its Eleventh Amendment
immunity, see Pennhurst State School &
Hospital v. Halderman, 465 U.S. 89, 100 (1984), or
Congress has abrogated the State's immunity, see
Seminole Tribe v. Florida, 517 U.S. 44, 59 (1996).
Neither waiver nor abrogation applies here. The Alabama
Constitution states that “the State of Alabama shall
never be made a defendant in any court of law or
equity.” Ala. Const. Art. I, § 14. The Supreme
Court has recognized that this prohibits Alabama from waiving
its immunity from suit.
Selensky, 619 Fed.Appx. at 849 (citing Alabama
v. Pugh, 438 U.S. 781, 782 (1978)). “Alabama has
not waived its Eleventh Amendment immunity in § 1983
cases, nor has Congress abated it.” Holmes v.
Hale, 701 Fed.Appx. 751, 753 (11th Cir. 2017) (citing
Carr v. City of Florence, Ala., 916 F.2d
1521, 1525 (11th Cir. 1990)).
light of the foregoing, defendants Forniss, Daniels, Thomas
and Crow are entitled to sovereign immunity under the
Eleventh Amendment for all claims seeking monetary damages
from them in their official capacities. Selensky,
619 Fed.Appx. at 849; Harbert Int'l, Inc. v.
James, 157 F.3d 1271, 1277 (11th Cir. 1998) (holding
that state officials sued in their official capacities are
protected under the Eleventh Amendment from suit for
damages); Edwards v. Wallace Comm. College, 49 F.3d
1517, 1524 (11th Cir. 1995) (holding that damages are
unavailable from a state official sued in his official
Deliberate Indifference to Medical Needs
claims presently before this court address medical treatment
provided to Moore from mid-September 2014 until the filing of
the instant complaint in early January 2016. Specifically,
Moore alleges that the medical defendants acted with
deliberate indifference to his chronic pain caused by
osteoarthritis. Doc 1 at 3-14. Moore further argues that the
correctional defendants, as wardens, are responsible for
ensuring that he receive appropriate medical treatment. Doc.
1 at 2 & 13. These assertions entitle Moore to no relief.
Standard of Review
prevail on a claim concerning an alleged denial of medical
treatment, an inmate must-at a minimum-show that the
defendant acted with deliberate indifference to a serious
medical need. Estelle v. Gamble, 429 U.S. 97 (1976);
Taylor v. Adams, 221 F.3d 1254 (11th Cir. 2000);
McElligott v. Foley, 182 F.3d 1248 (11th Cir. 1999);
Waldrop v. Evans, 871 F.2d 1030, 1033 (11th Cir.
1989). Medical and correctional personnel may not subject an
inmate to “acts or omissions sufficiently harmful to
evidence deliberate indifference to serious medical
needs.” Estelle, 429 U.S. at 106; Adams v.
Poag, 61 F.3d 1537, 1546 (11th Cir. 1995) (holding, as
directed by Estelle, that a plaintiff must establish
“not merely the knowledge of a condition, but the
knowledge of necessary treatment coupled with a refusal to
treat or a delay in [the acknowledged necessary]
medical malpractice-negligence by a physician-is insufficient
to form the basis of a claim for deliberate indifference is
well settled. See Estelle v. Gamble, 429 U.S. 97,
105-07, 97 S.Ct. 285, 292, 50 L.Ed.2d 251 (1976); Adams
v. Poag, 61 F.3d 1537, 1543 (11th Cir. 1995). Instead,
something more must be shown. Evidence must support a
conclusion that a prison [medical care provider's]
harmful acts were intentional or reckless. See Farmer v.
Brennan, 511 U.S. 825, 833-38, 114 S.Ct. 1970, 1977-79,
128 L.Ed.2d 811 (1994); Cottrell v. Caldwell, 85
F.3d 1480, 1491 (11th Cir. 1996) (stating that deliberate
indifference is equivalent of recklessly disregarding
substantial risk of serious harm to inmate); Adams,
61 F.3d at 1543 (stating that plaintiff must show more than
mere negligence to assert an Eighth Amendment violation);
Hill v. DeKalb Regional Youth Detention Ctr., 40
F.3d 1176, 1191 n. 28 (11th Cir. 1994) (recognizing that
Supreme Court has defined “deliberate
indifference” as requiring more than mere negligence
and has adopted a “subjective recklessness”
standard from criminal law); Qian v. Kautz, 168 F.3d
949, 955 (7th Cir. 1999) (stating “deliberate
indifference” is synonym for intentional or reckless
conduct, and that “reckless” conduct describes
conduct so dangerous that deliberate nature can be inferred).
v. Edmond, 192 F.3d 1342, 1345 (11th Cir. 1999).
Eighth Amendment violation requires proof of both objective
and subjective elements. Caldwell v. Warden, FCI
Talladega, 748 F.3d 1090, 1099 (11th Cir. 2014). With
respect to the requisite objective elements of a deliberate
indifference claim, an inmate must first show “an
objectively substantial risk of serious harm . . . exist[ed].
Second, once it is established that the official [was] aware
of this substantial risk, the official must [have] react[ed]
to this risk in an objectively unreasonable manner.”
Marsh, 268 F.3d at 1028-29. As to the subjective
elements, “the official must both be aware of facts
from which the inference could be drawn that a substantial
risk of serious harm exists, and he must also draw the
inference. . . . The Eighth Amendment does not outlaw cruel
and unusual conditions; it outlaws cruel and unusual
punishments. . . . [A]n official's failure to alleviate a
significant risk that he should have perceived but did not,
while no cause for commendation, cannot under our cases be
condemned as the infliction of punishment.”
Farmer, 511 U.S. at 837-38 (internal quotation marks
omitted); Campbell v. Sikes, 169 F.3d 1353, 1364
(11th Cir. 1999) (citing Farmer, 511 U.S. at 838)
(“Proof that the defendant should have perceived the
risk, but did not, is insufficient.”); Cottrell v.
Caldwell, 85 F.3d 1480, 1491 (11th Cir. 1996) (same).
The conduct at issue “must involve more than ordinary
lack of due care for the prisoner's interests or safety .
. . . It is obduracy and wantonness, not inadvertence or
error in good faith, that characterize the conduct prohibited
by the Cruel and Unusual Punishments Clause, whether that
conduct occurs in connection with establishing conditions of
confinement, supplying medical needs, [providing security for
inmates], or restoring official control over a tumultuous
cellblock.” Whitley v. Albers, 475 U.S. 312,
order to establish “deliberate indifference to [a]
serious medical need . . ., Plaintiff must show: (1) a
serious medical need; (2) the defendant['s] deliberate
indifference to that need; and (3) causation between that
indifference and the plaintiff's injury.” Mann
v. Taser Int'l, Inc., 588 F.3d 1291, 1306-07 (11th
Cir. 2009). When seeking relief based on deliberate
indifference, an inmate is required to establish “an
objectively serious need, an objectively insufficient
response to that need, subjective awareness of facts
signaling the need and an actual inference of required action
from those facts.” Taylor, 221 F.3d at 1258;
McElligott, 182 F.3d at 1255 (holding that, for
liability to attach, the official must know of and then
disregard an excessive risk to the prisoner). Regarding the
objective component of a deliberate indifference claim, the
plaintiff must first show “an objectively serious
medical need . . . and second, that the response made by
[the defendants] to that need was poor enough to constitute
an unnecessary and wanton infliction of pain, and not merely
accidental inadequacy, negligen[ce] in diagnos[is] or
treat[ment], or even [m]edical malpractice actionable under
state law.” Taylor, 221 F.3d at 1258 (internal
quotation marks and citations omitted). To proceed on a claim
challenging the constitutionality of medical care,
“[t]he facts alleged must do more than contend medical
malpractice, misdiagnosis, accidents, [or] poor exercise of
medical judgment.” Daniels v. Williams, 474
U.S. 327, 330-33 (1986).
addition, “to show the required subjective intent . .
., a plaintiff must demonstrate that the public official
acted with an attitude of deliberate indifference . . . which
is in turn defined as requiring two separate things[:]
awareness of facts from which the inference could be drawn
that a substantial risk of serious harm exists  and . . .
draw[ing] of the inference[.]” Taylor, 221
F.3d at 1258 (internal quotation marks and citations
omitted). Thus, deliberate indifference occurs only when a
defendant “knows of and disregards an excessive risk to
inmate health or safety; the [defendant] must both be aware
of facts from which the inference could be drawn that a
substantial risk of serious harm exists and he must also draw
the inference.” Farmer, 511 U.S. at 837;
Johnson v. Quinones, 145 F.3d 164, 168 (4th Cir.
1998) (holding that defendant must have actual knowledge of a
serious condition, not just knowledge of symptoms, and ignore
known risk to serious condition to warrant finding of
deliberate indifference). Furthermore, “an
official's failure to alleviate a significant risk that
he should have perceived but did not, while no cause for
commendation, cannot under our cases be condemned as the
infliction of punishment.” Farmer, 511 U.S. at
838. When medical personnel attempt to diagnose and treat an
inmate, the mere fact that the chosen “treatment was
ineffectual . . . does not mean that those responsible for it
were deliberately indifferent.” Massey v.
Montgomery Cnty. Det. Facility, 646 Fed.Appx.
777, 780 (11th Cir. 2016).
In articulating the scope of inmates' right to be free
from deliberate indifference, . . . the Supreme Court has . .
. emphasized that not “every claim by a prisoner that
he has not received adequate medical treatment states a
violation of the Eighth Amendment.” Estelle,
429 U.S. at 105, 97 S.Ct. at 291; Mandel [v.
Doe, 888 F.2d 783, 787 (11th Cir. 1989)]. Medical
treatment violates the eighth amendment only when it is
“so grossly incompetent, inadequate, or excessive as to
shock the conscience or to be intolerable to fundamental
fairness.” Rogers, 792 F.2d at 1058 (citation
omitted). Mere incidents of negligence or malpractice do not
rise to the level of constitutional violations. See
Estelle, 429 U.S. at 106, 97 S.Ct. at 292
(“Medical malpractice does not become a constitutional
violation merely because the victim is a prisoner.”);
Mandel, 888 F.2d at 787-88 (mere negligence or
medical malpractice ‘not sufficient' to constitute
deliberate indifference); Waldrop, 871 F.2d at 1033
(mere medical malpractice does not constitute deliberate
indifference). Nor does a simple difference in medical
opinion between the prison's medical staff and the inmate
as to the latter's diagnosis or course of treatment
support a claim of cruel and unusual punishment. See
Waldrop, 871 F.2d at 1033 (citing Bowring v.
Godwin, 551 F.2d 44, 48 (4th Cir. 1977)).
Harris v. Thigpen, 941 F.2d 1495, 1505 (11th Cir.
1991). “[A]s Estelle teaches, whether
government actors should have employed additional diagnostic
techniques or forms of treatment is a classic example of a
matter for medical judgment and therefore not an appropriate
basis for grounding liability under the Eighth
Amendment.” Adams, 61 F.3d at 1545 (internal
quotation marks and citation omitted). To show deliberate
indifference, the plaintiff must demonstrate a serious
medical need and then must establish that the defendant's
response to the need was more than “merely accidental
inadequacy, negligence in diagnosis or treatment, or even
medical malpractice actionable under state law.”
Taylor, 221 F.3d at 1258 (internal quotation marks
and citation omitted); Garvin v. Armstrong, 236 F.3d
896, 898 (7th Cir. 2001) (holding that “[a] difference
of opinion as to how a condition should be treated does not
give rise to a constitutional violation”); Hamm v.
DeKalb Cnty., 774 F.2d 1567, 1575 (11th Cir. 1985)
(holding that the mere fact an inmate desires a different
mode of medical treatment does not amount to deliberate
indifference violative of the Constitution); Franklin v.
Oregon, 662 F.2d 1337, 1344 (9th Cir. 1981) (holding
that prison medical personnel do not violate the Eighth
Amendment simply because their opinions concerning medical
treatment conflict with that of the inmate-patient);
Amarir v. Hill, 243 Fed.Appx. 353, 354 (9th Cir.
2007) (holding that defendant's “denial of
plaintiff's request to see an outside specialist . . .
did not amount to deliberate indifference”); Arzaga
v. Lovett, 2015 WL 4879453, at *4 (E.D. Cal. Aug. 14,
2015) (finding that plaintiff's preference for a second
opinion is “not enough to establish defendant's
deliberate indifference” as the allegation does
“not show that defendant knowingly disregarded a
serious risk of harm to plaintiff” nor that defendant
“exposed plaintiff to any serious risk of harm”).
asserts he suffers pain in his back, hips, and knees due to
degenerative bone spurring with swelling to the hands,
fingers and toes for which he has been denied appropriate
medication to alleviate his pain and diagnostic tests to
determine the source of his pain. Doc. 1 at 4. Moore further
contends that his attending physicians did not prescribe
narcotics or Ultram,  refused to order MRI or CRT scans to aid
in the assessment of his condition, and failed to refer him
to an outside bone specialist. Doc. 1 at 3-14. Moore further
complains that the medical defendants refused to place him on
chronic care for his osteoarthritis even though this
condition is chronic in nature. Doc. 1 at 4. Finally, Moore
maintains that medical personnel failed to provide him
medical profiles for bottom bunk, cane, front of the line,
and no prolonged standing. Doc. 1 at 5 & 14.
medical defendants adamantly deny that they acted with
deliberate indifference to Moore's medical needs during
the time relevant to this complaint or at any other time.
Instead, they maintain that Moore had continuous access to
health care personnel and received treatment from medical
professionals for his chronic pain, including evaluations and
examinations by the nursing staff comprised of licensed
practical nurses, registered nurses, and certified registered
nurse practitioners (see Doc. 42-14 at 35-36 &
47-59); evaluations and consultations with facility
physicians (see Doc. 42-14 at 38-46); prescriptions
for various medications to alleviate his pain and discomfort
such as Ultram (tramadol), Mobic (meloxicam), Prednisone,
Tylenol, and an analgesic balm (see Doc. 42-14 at
18-32); issuance of medical profiles for a bottom bunk, cane,
limited standing and front of the line (see Doc.
42-14 at 7-8, 13-14, 16 & 18); and provision of x-rays to
evaluate his conditions (see Docs. 42-12 at 21-22
& 42-15 at 14-18). The medical records further
demonstrate that medical personnel at Staton evaluated Moore
each time he appeared at sick call or medical appointments
with complaints related to his chronic pain, assessed his
need for treatment, prescribed medications to alleviate the
pain associated with his condition when they deemed such
necessary, issued medical profiles as warranted, and provided
treatment to Moore in accordance with their professional
defendants submitted affidavits and relevant medical records
in response to the claims presented by Moore. The affidavits
are corroborated by the objective medical records
contemporaneously compiled throughout the treatment process.
In his affidavit, Dr. Hood provides a synopsis of the
treatment provided to Moore upon his transfer Draper.
Mr. Moore transferred from Limestone to Staton Correctional
Facility on December 9, 2013. (COR089). Five days after
arriving at Staton, Mr. Moore began submitting multiple sick
call request forms [requesting] a bottom bunk profile and
additional pain medication. (COR093-98). In response to these
initial sick call request forms, the Staton medical staff
evaluated Mr. Moore and this examination did not reveal ...