Clark v. Hood (INMATE 2)

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

DANIEL BARTHOLOMEW CLARK )

#194417, )

)

Plaintiff, )

)

v. ) Case No.: 2:17-cv-429-ECM-WC

) [wo]

)

PATRICIA HOOD, et al., )

)

Defendants. )

RECOMMENDATION OF THE MAGISTRATE JUDGE

I. INTRODUCTION1

This 42 U.S.C. § 1983 action is before the court on a complaint filed by Daniel

Bartholomew Clark, a state inmate, in which he challenges conditions present during his

prior term of incarceration at the Draper or Staton Correctional Facility in Elmore,

Alabama. Specifically, Clark alleges that the defendants conspired against him by

disciplining him for fighting without a weapon as a “cover-up” for an assault by other

inmates which served as a basis for a separate lawsuit filed by the plaintiff and which was

dismissed with prejudice by this court on August 18, 2019. See, Clark v. Daniels, et al.,

2:16-cv-403-WHA-WC (M.D. Ala.). In the instant action, he further alleges that he was

subject to “cruel and inhuman treatment” when he was locked in restricted housing for 30

days. Lastly, he alleges deliberate indifference to a serious medical condition while being

1 All documents and attendant page numbers cited herein are those assigned by the Clerk in the docketing

process.

held in restricted custody from May 16, 2016 through June 7, 2016. (Doc. 1 at pp. 2–3).

Clark names as defendants Patricia Hood, Warden; Jarmal Sewell, Correctional Lieutenant;

Issac Coach, Correctional Officer; and Ronzella Howard, Correctional Captain. Clark

seeks monetary damages for the alleged violations of his constitutional rights. (Doc. 1 at

pp. 2 and 4.)

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. In these documents, the defendants maintain

they did not act with deliberate indifference to Clark’s medical needs . They further state

that they did not conspire against the plaintiff by covering-up the assault against him and

they did not subject him to “cruel and inhuman treatment”. (Docs. 11 and 16).

After reviewing the special reports filed by the defendants, the court issued an order

on November 27, 2017, 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. 17 at pp. 1-2). 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. 17 at p. 2). Clark filed a sworn response to this order on February

27, 2018. (Doc. 25). Pursuant to the directives of the order entered on November 27, 2017,

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

The court takes judicial notice of the underlying facts in Clark v. Daniels, et. al,

2:16-CV-403-WHA-WC, (Doc. 76 at pp. 3–5) which are pertinent to this action. These

facts are restated herein as follows:

On May 9, 2016 about 4:45pm, Clark was discovered by Correctional

Lieutenant Jarmal Sewell lying on the floor in Dorm D with injuries to his head and

facial area. 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 (3) days and ibuprofen

(Motrin) at 400 mg three (3) times a day for seven (7) 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 and 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).

Additional relevant facts are stated as follows: Following the altercation between

the plaintiff and the other inmates, the plaintiff was disciplined for fighting without a

weapon. On May 9, 2016, during the investigation, the plaintiff admitted to Defendant Lt.

Sewell, the arresting officer, in the presence of Defendant Captain Howard that he was

fighting with inmates Anthony Young and Marcellus Goodwin. (Docs. 11-4 at p.2 and 11-

4 at p. 5). The plaintiff was given notice of the charges against him and his right to present

evidence and question witnesses. (Doc. 11-4 at pp. 1–2). A hearing was held on May 27,

2017 (Doc. 11-4 at p. 2), where the plaintiff was found guilty of fighting without a weapon.

(Doc. 11-4 at pp. 1–11).

Defendant Officer Isaac Coach served as the hearing officer for the disciplinary

proceedings where the plaintiff was found guilty of the offense based on evidence

presented during the hearing. He denies that he was prejudiced towards anyone involved

in this incident or that he participated in any conspiracy against the plaintiff. (Doc. 11-3).

Specifically, it was determined after the investigation into the incident that all three inmates

were fighting without a weapon. Additionally, the arresting officer testified that the

plaintiff admitted to fighting two other inmates without a weapon. Each inmate received a

disciplinary for his actions. (Doc. 11-4 at pp. 1–9).

Following the plaintiff’s transfer to Draper on May 16, 2016, Correctional Sergeant

Robert Parker placed the plaintiff in Draper’s Disciplinary Dormitory on May 18, 2016.

(Doc. 11-1). Warden Hood did not give anyone instructions to place the plaintiff in

Draper’s Disciplinary Dormitory. Id. However, on May 31, 2016, Warden Hood approved

a disciplinary against the plaintiff for violation of rule #501-Fighting without a weapon.

Id. The sanctions imposed included 30 days in disciplinary segregation. Id. The plaintiff

was released from Draper Disciplinary Dormitory on June 16, 2016 for time served. Id.

The plaintiff claims that he was denied necessary medical treatment during the time that

the plaintiff was housed in the disciplinary dormitory at Draper. (Doc. 1 at p. 3).

III. DISCUSSION2

A. Absolute Immunity

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.

2 The court limits its review to the allegations set forth in the complaint, as amended. (Docs. 1, 30). Gilmour

v. Gates, McDonald & Co., 382 F.3d 1312, 1315 (11th Cir. 2004) (“A plaintiff may not amend [his]

complaint through argument in a brief opposing summary judgment.”); Ganstine v. Sec’y, Fla. Dept. of

Corr., 502 F. App’x. 905, 909–10 (11th Cir. 2012) (holding that plaintiff may not amend complaint at the

summary judgment stage by raising a new claim or presenting a new basis for a pending claim); Chavis v.

Clayton Cty. Sch. Dist., 300 F.3d 1288, 1291 n.4 (11th Cir. 2002) (refusing to address a new theory raised

during summary judgment because the plaintiff had not properly amended the complaint).

Selensky v. Alabama, 619 F. App’x 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 Sch. & Hosp.

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 F. App’x 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

F. App’x 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 F. App’x 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

Comty. Coll., 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 defendants acted with deliberate indifference to his medical

needs when they denied him adequate medical treatment during the time period beginning

May 16, 2016 through June 7, 2016, while he was housed in Draper Disciplinary Dormitory

(Doc. 1 at p. 3). His medical ailments resulted from an altercation with two other inmates

which occurred on May 9, 2016, while the plaintiff was housed at Staton. Id. The court

has previously considered the plaintiff’s medical indifference claim for this time period

and beyond, albeit as it pertained to different named defendants. See Clark v. Daniels, et

al., 2:16-cv-403-WHA-WC (August 18, 2019 M.D Ala.). Thus, the Court will take judicial

notice of the relevant facts from this prior action which pertain to the time period at issue

in the instant action. After careful review, the court concludes that 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 F. App’x 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 F. App’x 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. Analysis

Clark asserts that from May 16, 2016, through June 7, 2016, while he was housed

in Draper Disciplinary Dormitory, the defendants denied him adequate medical treatment

for injuries received in an altercation with fellow inmates which occurred on May 9, 2016,

while he was housed at Staton. (Doc. 1 at p. 3). Defendants adamantly deny they acted

with deliberate indifference to Clark’s medical needs during the time relevant to this

complaint.

In accordance with an order of this court, the defendants in the instant action

submitted medical records relevant to this time period. (Doc. 16-1 at pp. 1-45). The court

also takes judicial notice of the affidavit of Dr. Ronald Herring, who was the Medical

Director at Staton from July 22, 2015, until September 6, 2016, and reviewed the pertinent

medical records and testified by affidavit in Clark v. Daniels, et al., 2:16-cv-403-WHA-

WC (M.D Ala. August 18, 2019). The portions of his affidavit relevant to the plaintiff’s

claims for medical indifference occurring from May 16, 2016, until June 7, 2016, and

arising from the May 9, 2016, altercation are set out below.

The ADOC transferred Mr. Clark from Staton to Draper on May 16,

2016. (COR 052). At the request of the correctional staff, a member of the

Staton nursing staff performed a body chart on Mr. Clark on May 16, 2016.

(COR 021). The nurse examined Mr. Clark and noted multiple healing

abrasions with scabs on his back and shoulder. (COR 021). There was

swelling and bruising around both of his eyes, and the nurse noted scabs in

his nasal area. (COR 021).

. . .

A member of the nursing staff saw Mr. Clark on June 1, 2016, after

he expressed concerns of back discomfort. (COR 047-048). The nurse

examined Mr. Clark and found that his hand grips were strong, his posture

was erect and his gait was symmetrical. (COR 048). Mr. Clark was alert and

oriented at that time, and the nurse found no indications that he required

emergent or urgent intervention. (COR 048-049).

On June 1, 2016, I prescribed ibuprofen at 200 mg for Mr. Clark to

take twice a day for seven (7) days for any discomfort. (COR 005). A nurse

practitioner on the Staton medical staff renewed the ibuprofen prescription

on June 6, 2016 and prescribed 200 mg twice a day for seven (7) days through

June 14, 2016. (COR 006).

On June 2, 2016, Mr. Clark submitted a sick call request expressing

concerns about dizziness and an inability to keep his balance and voicing

concern that May 9, 2016, altercation aggravated a concussion he suffered at

Decatur Work Release in March of 2016. (COR 037).

A member of the nursing staff saw Mr. Clark at sick call on June 3,

2016, when he complained of dizziness, headaches, difficulty keeping his

balance and seeing floaters. (COR 050). During the nurse’s examination,

Mr. Clark indicated that these symptoms started as far back as March 9, 2016.

(COR 050). During the examination on June 3, 2016, the nurse completed a

Glasgow Coma Scale to determine if Mr. Clark might be suffering from an

impairment in alertness. (COR 050). The results of the score were normal.

(COR 050). The nurse’s examination found that Mr. Clark’s gait was steady,

that his verbal responses were appropriate, that he was able to obey

commands and that he could open his eyes spontaneously. (COR 050). The

nurse found no indications that Mr. Clark required urgent or emergent

intervention a t that time. (COR 051). The nurse instructed Mr. Clark to

follow up with a provider on the Staton medical staff if he continued to

experience dizziness. (COR 051).

A member of the Staton nursing staff saw Mr. Clark on June 6, 2016.

(COR 039). The nurse examined Mr. Clark and confirmed that his vital signs

were stable. (COR 039). A nurse practitioner on the Staton medical staff

saw Mr. Clark later that same day. (COR 039). Mr. Clark complained to the

nurse practitioner that in the May 9, 2016, altercation with other inmates, he

had suffered sixteen (16) stab wounds and broken his nose. (COR 039).

The nurse practitioner evaluated Mr. Clark and noted that the report

from the emergency room at Jackson Hospital referred to a nose fracture but

did not mention any stab wounds. (COR 039). The nurse practitioner’s

examination observed bruising around both of Mr. Clark’s eyes. (COR 039).

The wounds on the inmate’s back were healed, and the nurse practitioner’s

examination found no signs for symptoms of infection. (COR 039).

Moreover, the examination detected no new deficits in Mr. Clark’s physical

condition. (Cor 039). The nurse practitioner concluded from his evaluation

that Mr. Clark’s nose fracture and stab wound were healing well. (COR 039).

To address Mr. Clark’s complaints of headaches and photosensitivity, the

nurse practitioner provided him with a lay-in profile for one and a half weeks

and ibuprofen to take on an as needed basis. (Cor 039). The nurse

practitioner instructed Mr. Clark to utilize the sick call process if his

symptoms had not improved in two (2) weeks. (COR 039).

[. . .]

Based upon my review of Mr. Clark’s circumstances, I am confident

that he has received an appropriate level of treatment. Furthermore, I cannot

see any reason to conclude that the course of treatment Mr. Clark received

was inappropriate in any way or that the conduct of the Staton medical staff

fell below the standard of care of that provided by other similarly situated

medical professionals. Given this course of treatment, in my professional

medical opinion, the Staton medical staff acted appropriately in all respects.

Again, based upon my review of Mr. Clark’s medical records, I can state to

a degree of medical certainty that the members of the medical staff at Staton

fully satisfied the standard of care owed by them within the State of Alabama.

There is no evidence or objective data of any kind suggesting that Mr.

Clark’s condition changed, worsened or declined in any way as a result of

the care he has received during his incarceration. Any allegation by Mr.

Clark that he currently does not have access to the medical services available

to him at Staton is simply untrue.

Clark v. Daniels, et al., 2:16-cv-403-WHA-WC (Doc. 76 at pp. 15–17, 19). The medical

records submitted in Clark v. Daniels, id., (Docs. 55-2 at pp. 1–61; 55-3 at pp. 1–58) and

those submitted in the instant action (Doc. 16-4 at pp. 1–45) further confirm that medical

personnel at Staton evaluated Clark each time he appeared at sick call or medical

appointments with complaints, 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 Clark in accordance with their

professional judgment. Thus, under the circumstances of this case, the court concludes that

the course of treatment undertaken by the medical staff at Staton did not violate Clark’s

constitutional rights. Specifically, there is no evidence upon which the court could

conclude that any member of the medical staff who provided treatment to Clark acted in a

manner that was “so grossly incompetent, inadequate, or excessive as to shock the

conscience or to be intolerable to the fundamental fairness.” Harris, 941 F.2d at 1505.

As a result, the court concludes that the alleged lack of medical treatment did not

constitute deliberate indifference. Clark’s self-serving statements of a lack of due care and

deliberate indifference do not create a question of fact in the face of contradictory,

contemporaneously created medical records. Whitehead, 403 F. App’x 401, 403 (11th Cir.

2010); see also Scott v. Harris, 550 U.S. 372, 380 (2007) (“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.”); Feliciano v. City of Miami Beach, 707 F.3d 1244,

1253–54 (11th Cir. 2013) (same). In addition, Clark has failed to present any evidence

showing that the manner in which medical personnel addressed his condition created a

substantial risk to his health that the attending health care personnel consciously

disregarded. The record is therefore devoid of evidence—significantly probative or

otherwise—showing that any medical professional acted with deliberate indifference to a

serious medical need experienced by Clark.

However, the court recognizes that in the instant action, Clark argues that the

defendants, all of whom served in a correctional capacity not a medical capacity, acted in

a manner to prevent him access to treatment from professional medical personnel while he

incarcerated was incarcerated in the Draper’s Disciplinary Dormitory. For the following

reasons, the Court concludes that this argument lacks merit. Indeed, it is clear from the

medical records that the correctional defendants were not in any way involved in decisions

regarding the medical treatment provided to Clark as these decisions are made solely by

healthcare professionals employed by Corizon.

For the following reasons the court concludes that Clark has failed to establish

deliberate indifference on the part of the correctional defendants. Specifically, Clark has

not demonstrated that these defendants were aware of facts establishing “an objectively

serious medical need” nor that these defendants disregarded any known serious risk to

Clark’s health. Taylor, 221 F.3d at 1258; McElligott, 182 F.3d at 1255 (for liability to

attach, the official must know of and then disregard an excessive risk of harm to the

inmate); Quinones, 145 F.3d at 168 (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); Farmer, 511 U.S. at 838 (failure to alleviate

significant risk that officer “should have perceived but did not” does not constitute

deliberate indifference). Consequently, summary judgment is due to be granted in favor

of the defendants on Clark’s claim alleging deliberate indifference arising from the actions

of medical personnel in treating him.

Insofar as Clark seeks to hold the correctional defendants liable for the treatment

provided by medical professionals, he is likewise entitled to no relief as

[t]he law does not impose upon correctional officials a duty to directly

supervise health care personnel, to set treatment policy for the medical staff

or to intervene in treatment decisions where they have no actual knowledge

that intervention is necessary to prevent a constitutional wrong. See Vinnedge

v. Gibbs, 550 F.2d 926 (4th Cir. 1977) (a medical treatment claim cannot be

brought against managing officers of a prison absent allegations that they

were personally connected with the alleged denial of treatment). Moreover,

“supervisory [correctional] officials are entitled to rely on medical judgments

made by medical professionals responsible for prisoner care. See, e.g.,

Durmer v. O’Carroll, 991 F.2d 64, 69 (3rd Cir. 1993); White v. Farrier, 849

F.2d 322, 327 (8th Cir. 1988).” Williams v. Limestone County, Ala., 198

Fed.Appx. 893, 897 (11th Cir. 2006).

Cameron v. Allen, et al., 525 F. Supp. 2d 1302, 1307 (M.D. Ala. 2007).

Even assuming arguendo that the correctional defendants exerted some control over

the manner in which those persons responsible for the provision of medical treatment

rendered such treatment, the law is well settled “that Government officials may not be held

liable for the unconstitutional conduct of their subordinates [or co-workers] under the

theory of respondeat superior [or vicarious liability]. . . . A public officer or agent is not

responsible for the misfeasances or position wrongs, or for the nonfeasances, or

negligences, or omissions of duty, of the subagents or servants or other persons properly

employed [alongside,] by or under him, in the discharge of his official duties. Because

vicarious liability is inapplicable to . . . § 1983 suits, a plaintiff must plead that each

Government-official defendant, through the official’s own individual actions, has violated

the Constitution.” Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009) (internal quotation marks,

citation and parentheses omitted); Cottone v. Jenne, 326 F.3d 1352, 1360 (11th Cir. 2003)

(holding that “supervisory officials are not liable under § 1983 for the unconstitutional acts

of their subordinates on the basis of respondeat superior or vicarious liability.”); Marsh,

268 F.3d at 1035 (holding that a supervisory official “can have no respondeat superior

liability for a section 1983 claim.”); Gonzalez v. Reno, 325 F.3d 1228, 1234 (11th Cir.

2003) (concluding supervisory officials are not liable on the basis of respondeat superior

or vicarious liability); Hartley v. Parnell, 193 F.3d 1263, 1269 (11th Cir. 1999) (holding

that 42 U.S.C. § 1983 does not allow a plaintiff to hold supervisory officials liable for the

actions of their subordinates under either a theory of respondeat superior or vicarious

liability.). “Absent vicarious liability, each Government official, his or her title

notwithstanding, is only liable for his or her own misconduct.” Iqbal, 556 U.S. at 677, 129

S. Ct. 1949. Thus, liability for actions of the correctional defendants could attach to the

other named defendants only if these defendants “personally participate[d] in the alleged

unconstitutional conduct or [if] there is a causal connection between [their] actions . . . and

the alleged constitutional deprivation.” Cottone, 326 F.3d at 1360.

The record is clear that the correctional defendants did not personally participate or

have any involvement, direct or otherwise, in the medical treatment provided to Clark. The

evidentiary materials before the court demonstrate that medical personnel made all

decisions relative to the treatment provided to Clark and provided treatment to him in

accordance with their professional judgment upon assessment of his physical condition.

In light of the foregoing, the correctional defendants can be held liable for decisions

of medical personnel only if they undertook actions which bear a causal relationship to the

purported violation of Clark’s constitutional rights. To establish the requisite causal

connection and therefore avoid entry of summary judgment in favor of the correctional

defendants, Clark must present sufficient evidence which would be admissible at trial of

either “a history of widespread abuse [that] put[] [the defendants] on notice of the need to

correct the alleged deprivation, and [they] fail[ed] to do so” or “a . . . custom or policy

[that] result[ed] in deliberate indifference to [his medical needs], or . . . facts [that] support

an inference that [the correctional defendants] directed the [facility’s health care staff] to

act unlawfully, or knew that [the staff] would act unlawfully and failed to stop them from

doing so.” Cottone, 326 F.3d at 1360 (internal punctuation and citations omitted). After

extensive review of the pleadings and evidentiary materials submitted in this case, it is

clear that Clark has failed to meet this burden.

The record before the court contains no probative evidence to support an inference

that the correctional defendants directed medical personnel to act unlawfully or knew that

they would act unlawfully and failed to stop such action. In addition, Clark has presented

no evidence of obvious, flagrant or rampant abuse of continuing duration regarding his

receipt of medical treatment in the face of which these defendants failed to take corrective

action; instead, the undisputed medical records indicate that Clark had continuous access

to medical personnel and received treatment for his injuries and pain. The undisputed

records also demonstrate that the challenged course of medical treatment did not occur

pursuant to a policy enacted by the correctional defendants. Thus, the requisite causal

connection does not exist in this case and liability under the custom or policy standard is

not justified. Cf. Employment Div. v. Smith, 494 U.S. 872, 877, 110 S. Ct. 1595, 108 L.

Ed. 2d 876 (1990); Turner v. Safely, 482 U.S. 78, 107 S. Ct. 2254, 96 L. Ed. 2d 64 (1987).

For the foregoing reasons, summary judgment is likewise due to be granted in favor

of the correctional defendants with respect to liability based on the theory of respondeat

superior. Furthermore, even had Clark presented a proper basis for the claims lodged

against the correctional defendants, the evidentiary materials before the court, including

Clark’s medical records, demonstrate that health care personnel did not act with deliberate

indifference to his medical needs.

D. CLAIMS ARISING FROM PLAINTIFF’S DISCIPLINARY

PROCEEDINGS.

1. Cruel and Inhumane Treatment-Due Process

The plaintiff claims that the defendants engaged in “cruel and inhumane” treatment

against him when disciplinary action was taken against him for fighting without a weapon.

(Doc. 1 at pp. 2–3).3 Specifically, he complains that he was locked in a “Restrictive

Housing Unit” and sent to disciplinary court where Defendant Coach found him guilty and

Defendant Hood approved it. The undisputed evidence shows that following a disciplinary

proceeding where he was found guilty for fighting without a weapon, the plaintiff was

housed in Draper Disciplinary Dormitory for 30 days from May 18, 2016 until June 16,

2016. (Docs. 11-1; 11-4 at pp. 1–11). He claims that during his time in the disciplinary

dorm, he suffered “significant hardship of cruel and unusual punishment and a denial of

due process right” because he was forced to sign up for the “Farm-work squad 5 days a

week” which necessitated that he give up the Draper prepared lunch and he was “forced to

eat a sack lunch, only one cheese sandwich and two peanut butter sandwiches, with no

other option for lunch.” (Doc. 25 at pp. 9-10).

The Supreme Court has counseled that due process is implicated only when the

actions taken against an inmate represent a “dramatic departure” from the ordinary

conditions of incarceration. Sandin v. Conner, 515 U.S. 472, 485 (1995). Indeed, the

plaintiff’s claims concerning his treatment in disciplinary do not “present the type of

3 To the extent that this claim can be read to encompass a claim for deliberate indifference to the plaintiff’s

health due to the lack of medical care afforded him while in disciplinary, this claim is addressed, supra, at

pp. 13-20.

atypical, significant deprivation in which a state might conceivably create a liberty

interest.” Id. at 486. Even so, the undisputed evidence demonstrates that the plaintiff was

given advance notice of the charges against him, a hearing on May 27, 2016, where he had

the opportunity to present evidence and question witnesses and a written statement of the

reasons for the disciplinary. (Doc. 11-4 at pp. 1–11). Accordingly, the court concludes

that the defendants afforded the plaintiff all procedural due process protections required

under the law. See O’Bryant v. Finch, 637 F. 3d 1207, 1213 (11th Cir. 2011) citing Wolff

v. McDonnell, 418 U.S. 539, 563-67 (1974).

2. Conspiracy

The plaintiff claims that the disciplinary charges against him were unfounded and

that the defendants conspired to find him guilty for fighting without a weapon to “cover up

the fact that [he] was assaulted.” (Doc. 1 at p. 3). This claim fails as a matter of law because

the Clark has failed to “show that the parties ‘reached an understanding’ to deny plaintiff

his or her rights . . . [and] prove an actionable wrong to support the conspiracy.” Bendiburg

v. Dempsey, 909 F. 2d 463, 468 (11th Cir. 1990). Indeed, neither the complaint nor Clark’s

subsequent pleadings identify any agreement or action taken by the defendants to deny

Clark his constitutional rights. Rather, the plaintiff’s claim of conspiracy hinges solely

upon the finding of guilt against him in a disciplinary proceeding. See Phillips v.

Mashburn, 746 F. 2d 782, 785 (11th Cir. 1984) (“Naked assertion” of conspiracy without

“supporting operative facts” insufficient to state a claim.) Thus, the Court concludes that

summary judgment is due on this claim.

IV. CONCLUSION

Accordingly, it is the RECOMMENDATION of the Magistrate Judge that:

1. The defendants’ motion for summary judgment be GRANTED.

2. Judgment be GRANTED in favor of the defendants.

3. This case be DISMISSED with prejudice.

4. Costs be taxed against the plaintiff.

On or before August 7, 2020 the parties may file objections to this

Recommendation. A party must specifically identify the factual findings and legal

conclusions in the Recommendation to which the objection is made; frivolous, conclusive,

or general objections will not be considered.

Failure to file written objections to the proposed findings and recommendations in

the Magistrate Judge’s Recommendation shall bar a party from a de novo determination by

the District Court of factual findings and legal issues covered in the report and shall “waive

the right to challenge on appeal the district court’s order based on unobjected-to factual

and legal conclusions” except upon grounds of plain error if necessary in the interests of

justice. 11th Cir. R. 3-1; see Resolution Trust Co. v. Hallmark Builders, Inc., 996 F.2d

1144, 1149 (11th Cir. 1993); Henley v. Johnson, 885 F.2d 790, 794 (11th Cir. 1989).

DONE this 24th day of July, 2020

/s/ Wallace Capel, Jr.

WALLACE CAPEL, JR.

CHIEF UNITED STATES MAGISTRATE JUDGE