Clark v. Daniels

          RECOMMENDATION OF THE MAGISTRATE JUDGE

          WALLACE CAPEL, JR., CHIEF UNITED STATES MAGISTRATE JUDGE.

         I. INTRODUCTION ^[1]

         This 42 U.S.C. § 1983 action is before the court on a complaint filed by Daniel Bartholomew Clark (“Clark” or “Plaintiff”), a state inmate, in which he challenges conditions present during his prior term of incarceration at the Staton Correctional Facility. Specifically, Clark alleges that the defendants denied him adequate medical treatment for injuries received in an altercation with fellow inmates on May 9, 2016. (Doc. 1 at pp. 2- 5.) More specifically, he alleges that the medical provider defendants refused to respond to his sick call requests and grievances, failed to treat his purportedly broken teeth, failed to remove the stitch from his lip and failed to provide him with pain medications. He also alleges that Dr. Herring and Nurse Lyndia Likely were responsible for his placement in a holding cell between May 13, 2016 and May 16, 2016, which had no access to a toilet, lights, water or a bed. Finally, Clark contends that the correctional officials were deliberately indifferent for failing to protect him from attack by fellow inmates on May 9, 2016, and were deliberately indifferent to the conditions of his cell between May 13, 2016, and May 16, 2016. Clark names as correctional defendants, Leeposey Daniels and John Crow, wardens at Staton; and Jarmal Sewell, Anthony Wineberg, Terrance Calvin, Jacob Park, William Tate, Phillip Hill, Aaron Tillman, Daniel Grecu, David Wingrove, Travis Ivey, correctional officers at Staton.^[2] He also names as defendants, medical providers including Dr. Ronnie Herring, Medical Director at Staton Correctional Facility; Michele Sager-Copeland, Health Services Administrator at Staton; and Myra McVay, Jannaye Talley, Tara Parker, Lyndia Likely, Charlene DeJarnett, and Cebria Lee, nurses employed by Corizon Health, Inc. Clark seeks monetary damages for the alleged violations of his constitutional rights. (Doc. 1 at p. 6; Doc. 30 at pp. 1-5.)

         The defendants filed special reports and relevant evidentiary materials in support of their reports, including affidavits and certified copies of Clark's medical records, addressing the claims raised in the complaint, as amended. In these documents, the medical and correctional defendants maintain they did not act with deliberate indifference to Clark's medical needs and the correctional defendants deny they subjected Clark to unconstitutional conditions.

         After reviewing the special reports filed by the defendants, the court issued an order on October 13, 2016, directing Clark to file a response to each of the arguments set forth by the defendants in their reports, supported by affidavits or statements made under penalty of perjury and other evidentiary materials. (Doc. 56 at 2-3). The order specifically cautioned that “unless within ten (10) 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 reports 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. 56 at 3). Clark filed a sworn response to this order on December 7, 2016. (Doc. 59).

         Pursuant to the directives of the order entered on October 13, 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.

         II. FACTS

         On May 9, 2016, at about 4:45 p.m., Clark was discovered by Correctional Lieutenant Jarmal Sewell lying on the floor in Dorm D with injuries to his head and facial area. At about 5:10 p.m. on May 9, he was seen in the Health Care Unit for treatment. (Doc. 51-1 at p. 2). Dr. Herring examined Clark and found him “unresponsive and identified significant head trauma with bilateral hematomas (collection of blood) over and around his eyes.” (Doc. 55-1 at ¶ 7). Dr. Herring ordered Clark to be transported via ambulance to Jackson Hospital emergency room for treatment. Id. Clark left Staton for Jackson Hospital by ambulance about 5:25 p.m. He was treated at Jackson and returned the Staton about 10:30 p.m. on May 9. Upon his return, he was examined by a nurse at Staton and it was noted that he was awake, and his vital signs were stable. (Doc. 55-1 at ¶ 10). He was assigned to bed number 17 in the medical observation unit and the correctional staff placed a hold on Mr. Clark for his personal safety following the altercation. Id. Clark was checked by the nursing staff at least three times during the night of May 9. (Doc. 55-1 at ¶ 11).

         On May 10, 2016, Dr. Herring entered an order for Clark to receive acetaminophen codeine at 300 mg twice a day for three days and ibuprofen (Motrin) at 400 mg three times a day for seven days. (Doc. 55-1 at ¶ 12). On May 11, 2016, he was examined by a nurse and it was noted that his face and eyes were still swollen. (Doc. 55-1 at ¶ 12). On May 13, 2016, Clark's condition had “improved significantly” and he was moved to a holding cell off a hallway in the Staton health care unit. (Doc. 55-1 at ¶ 15). On May 14, 2016, he was examined by a nurse and he was found to be “calm and cooperative”. He was “alert and oriented and his breathing was even ad unlabored”. (Doc. 55-1 at ¶ 16). On May 16, 2016, Clark was transferred from Staton to Draper. Prior to his transport, a Staton nurse performed a body chart on Clark. It was noted that Clark had “multiple healing abrasions with scabs on his back and shoulder. There was swelling and bruising around both of his eyes . . . and scabs in his nasal area.” (Doc. 55-1 at ¶ 17).

         An investigation of the May 9, 2016 incident concluded that Clark, who was under the influence of a narcotic, approached several inmates and threatened to beat them if they said anything to him. Clark approached inmate Goodwin and swung at him with his right hand. Clark and Goodwin started fighting and inmate Young also joined in the fight against Clark. (Doc. 51-1 at p. 2).

         III. DISCUSSION^[3]

         A. Absolute Immunity - Correctional Defendants

         To the extent Clark 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. Id. 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) (consent is prohibited by the Alabama Constitution). “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)). In light of the foregoing, defendant Jarmal Sewell, and any other defendants whom Clark seeks to sue in their official capacities, are entitled to sovereign immunity under the Eleventh Amendment for 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 Community College, 49 F.3d 1517, 1524 (11th Cir. 1995) (holding that damages are unavailable from state official sued in his official capacity).

         B. Deliberate Indifference Generally

         The law is well-settled that establishment of both objective and subjective elements are necessary to demonstrate a violation of the protections afforded by the Eighth Amendment. 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 v. Butler Cnty. Ala., 268 F.3d 1014 at 1028-29 (11th Cir. 2001), abrogated on other grounds by Bell Atl. Corp v. Twombly, 550 U.S. 544 (2007). 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 v. Brennan, 511 U.S. 825, 837-38 (1994); 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, or restoring official control over a tumultuous cellblock.” Whitley v. Albers, 475 U.S. 312, 319 (1986).

To be deliberately indifferent, Defendants must have been “subjectively aware of the substantial risk of serious harm in order to have had a ‘“sufficiently culpable state of mind.”'” Farmer, 511 U.S. at 834-38, 114 S.Ct. at 1977-80; Wilson v. Seiter, 501 U.S. 294, 299, 111 S.Ct. 2321, 2324- 25, 115 L.Ed.2d 271 (1991). . . . Even assuming the existence of a serious risk of harm and legal causation, the prison official must be aware of specific facts from which an inference could be drawn that a substantial risk of serious harm exists - and the prison official must also “draw that inference.” Farmer, 511 U.S. at 837, 114 S.Ct. at 1979.

Carter v. Galloway, 352 F.3d 1346, 1349 (11th Cir. 2003). A defendant's subjective knowledge of the risk must be specific to that defendant because “imputed or collective knowledge cannot serve as the basis for a claim of deliberate indifference. . . . Each individual Defendant must be judged separately and on the basis of what that person [knew at the time of the incident].” Burnette v. Taylor, 533 F.3d 1325, 1331 (11th Cir. 2008). Moreover, “[t]he known risk of injury must be a strong likelihood, rather than a mere possibility before a [state official's] failure to act can constitute deliberate indifference.” Brown v. Hughes, 894 F.2d 1533, 1537 (11th Cir. 1990) (citations and internal quotation marks omitted). Thus, “[m]erely negligent failure to protect an inmate from attack does not justify liability under section 1983.” Id.

         C. Deliberate Indifference to Medical Needs.

         Clark alleges that the medical defendants acted with deliberate indifference to his medical needs when they denied him adequate medical treatment for injuries received in an altercation with fellow inmates on May 9, 2016. (Doc. 1 at pp. 2-5). More specifically, he alleges that the medical provider defendants refused to respond to his sick call requests and grievances, failed to treat his purportedly broken teeth, failed to remove the stitch from his lip and failed to provide him with pain medications. Furthermore, to the extent Clark can be understood to complain that the correctional defendants, as wardens or correctional officers, are responsible for ensuring that he receive appropriate medical treatment, the court will also address these arguments. (Docs. 1 and 30). These assertions entitle Clark to no relief.

         1. Standard of Review.

That 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).

Hinson v. Edmond, 192 F.3d 1342, 1345 (11th Cir. 1999).

         In 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 v. Adams, 221 F.3d 1254, 1258 (11th Cir. 2000); McElligott v. Foley, 182 F.3d 1248, 1255 (11th Cir. 1999) (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 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).

         In 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 Cty. 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 (citation and internal quotation marks). 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 (citation and internal quotation marks 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 Cty., 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.”).

         2. Medical Defendants.

         Clark asserts that the medical defendants denied him adequate medical treatment for injuries received in an altercation with fellow inmates on May 9, 2016. (Doc. 1 at pp. 2-5). More specifically, he alleges that the medical provider defendants refused to respond to his sick call requests and grievances, failed treat his purportedly broken teeth, failed to remove the stitch from his lip and failed to provide him with pain medications.

         The medical defendants adamantly deny they acted with deliberate indifference to Clark's medical needs during the time relevant to this complaint or at any other time. Instead, these defendants maintain that following the altercation on May 9, 2016, the Staton medical staff prescribed pain medications for him, treated his wounds, ensured his treatment at a local emergency room, referred him for further evaluation by an off-site specialist and ensured the completion of off-site specialty diagnostic studies. The defendants submitted affidavits and relevant medical records in response to the complaint filed by Clark.^[4] The affidavits are corroborated by the objective medical records contemporaneously compiled during the treatment process.

         Specifically, Defendant Dr. Ronald Herring, who was the Medical Director at Staton from July 22, 2015 until September 6, 2016, reviewed the pertinent medical records and testified by affidavit as follows:

On May 9, 2016, at approximately 5:10 p.m. the correctional staff brought Mr. Clark to the Staton health care unit on a stretch following an altercation between Mr. Clark and one or more other inmates. (COR 020, 045). A member of Staton nursing staff examined Mr. Clark and performed an inmate body chart at the request of the correctional staff. (COR 020). This nurse noted Mr. Clark as unresponsive. (COR 020). The nurse detected bleeding and swelling on Mr. Clark's face around the orbital area and his lips, and a laceration to his is left upper lip. (COR 020). Both of his eyes appeared to be swollen shut. (COR 020). The nurse also noted abrasions to Mr. Clark's back. (COR 020).

I also evaluated Mr. Clark shortly thereafter at approximately 5:15 p.m. (COR 038). I also noted Mr. Clark to be unresponsive and identified significant head trauma with bilateral hematomas (collection of blood) over and around his eyes. (COR 038). I observed blood in Mr. Clark's mouth as well as the injures noted by the nurse. (COR 038). However, my examination also detected that Mr. Clark periodically moaned, moved his upper extremities and could breath on his own. (COR 038). The medical staff suctioned the blood out of Mr. Clark's mouth, and his airways appeared patent without obstruction. (COR 038). I also checked Mr. Clark's carotid pulse and found that it was palpable and regular. (COR 038). I concluded that Mr. Clark had suffered possibly severe head trauma and entered an order for the inmate to be transported to the emergency room in Jackson Hospital via ambulance for an urgent assessment and treatment. (COR 013, 038).

Mr. Clark left the facility via ambulance at approximately 5:25 p.m. that evening. To be clear, we evaluated Mr. Clark and ensured his transport to an off-site medical facility within a matter of minutes. (COR 042). There was no meaningful ...