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