Opinion

Russ v. Valenza (INMATE 1)

Court: District Court, M.D. Alabama
Filed: Jul 6, 2021
Cited by: 0 cases
Authority: More cited than 31.1%

noting Kingsley’s holding in discussion of pretrial detainee’s excessive force claim and then applying subjective prong of deliberate indifference to his deprivation of medical care claim.

How later courts described this case

noting Kingsley’s holding in discussion of pretrial detainee’s excessive force claim and then applying subjective prong of deliberate indifference to his deprivation of medical care claim.
stating that a verified complaint serves the same purpose as an affidavit for purposes of summary judgment
holding that moving party has initial burden of showing there is no genuine dispute of material fact for trial
The failure of medical personnel to pursue alternative means of treating inmate’s condition does not “rise beyond negligence to the level of [deliberate indifference].”

Written by the judges who cited it.

The opinion

IN THE DISTRICT COURT OF THE UNITED STATES

FOR THE MIDDLE DISTRICT OF ALABAMA

SOUTHERN DIVISION

BILLY RAY RUSS, #106835 )

)

Plaintiff, )

)

v. ) CIVIL ACTION NO. 1:18-CV-718-RAH

) [WO]

DONALD VALENZA, 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 Billy Ray

Russ, a pre-trial detainee confined in the Houston County Jail at the time relevant to the

complaint, challenging the constitutionality of medical treatment provided to him at the jail

for a decayed tooth, blurry vision and hemorrhoids from April of 2018 through August of

2018. Doc. 1 at 1–3. Russ contends his suffering from type-2 diabetes contributed to these

conditions and warranted referral for off-site emergency treatment. Doc. 1 at 2. Russ

names Donald Valenza, the Sheriff of Houston County, Bill Rafferty, a Major with the

Houston County Sheriff’s Department, James Brazier, the Jail Commander, Spencer

Downs and Michael Champion, a corrections deputy and former corrections deputy, and

medical personnel Jason Smoak, the Physician’s Assistant for the jail, and Connie Hinson,

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

docketing process.

a Licensed Practical Nurse employed at the jail, as defendants. Doc. 1 at 1.2 Russ seeks

a declaratory judgment, injunctive relief and monetary damages for the alleged violation

of his constitutional rights. Doc. 1 at 4. As Russ does not state otherwise and upon its

liberal construction of the complaint, the court construes this pleading to seek relief from

the defendants in both their individual and official capacities.

The defendants filed an answer, special report, supplement to the report and

supporting evidentiary materials — including affidavits and certified medical records —

addressing Russ’ claims of inadequate medical and dental treatment. In these documents,

the defendants assert Russ received appropriate treatment for his conditions as determined

by the jail’s medical professionals, including a referral to an outside medical clinic, and

adamantly deny acting with deliberate indifference to Russ’ medical needs.

The court issued an order directing Russ to file a response to the arguments set forth

by the defendants in their special report and advising him that his response should be

supported by affidavits or statements made under penalty of perjury and other appropriate

evidentiary materials. Doc. 44 at 2. The order specifically advised the parties that “unless

within fifteen (15) days from the date of this order a party files a response in

opposition which 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 to

file a response to the order] and without further notice to the parties (1) treat the special

2The surnames of two defendants listed in the complaint are not correct and one’s surname is not provided.

For purposes of clarity and as Russ does not dispute the correct names provided by the defendants, the

undersigned will refer to the defendants by their true names.

reports and any supporting evidentiary materials as a motion to dismiss or motion for

summary judgment, and (2) after considering any response as allowed by this order, rule

on the dispositive motion in accordance with the law.” Doc. 44 at 3 (emphasis in original)

(footnote omitted). Russ filed a rebuttal, declaration and other supporting evidentiary

materials on February 27, 2019. Doc. 47. n affidavit and supporting evidentiary materials

in response on October 18, 2018. Doc. 29.

Pursuant to the directives of the above referenced order, the Magistrate Judge deems

it appropriate to treat the defendants’ report and supplement thereto as a motion for

summary judgment. Upon consideration of the defendants’ motion for summary judgment,

the evidentiary materials filed in support thereof, the sworn complaint and the plaintiff’s

response and supporting evidentiary materials, the undersigned concludes that summary

judgment is due to be granted in favor of the defendants.

II. SUMMARY JUDGMENT STANDARD

“Summary judgment is appropriate if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show there is no

genuine [dispute] as to any material fact and that the moving party is entitled to judgment

as a matter of law.” Greenberg v. BellSouth Telecomm., Inc., 498 F.3d 1258, 1263 (11th

Cir. 2007) (internal quotation marks omitted); Rule 56(a), Fed.R.Civ.P. (“The court shall

grant summary judgment if the movant shows that there is no genuine dispute as to any

material fact and the movant is entitled to judgment as a matter of law.”). The party moving

for summary judgment “always bears the initial responsibility of informing the district

court of the basis for its motion, and identifying those portions of the [record, including

pleadings, discovery materials and affidavits or properly sworn statements], which it

believes demonstrate the absence of a genuine [dispute] of material fact.” Celotex Corp.

v. Catrett, 477 U.S. 317, 323 (1986); Jeffery v. Sarasota White Sox, Inc., 64 F.3d 590, 593

(11th Cir. 1995) (holding that moving party has initial burden of showing there is no

genuine dispute of material fact for trial). The movant may meet this burden by presenting

evidence indicating there is no dispute of material fact or by showing that the nonmoving

party has failed to present appropriate evidence in support of some element of its case on

which it bears the ultimate burden of proof. Celotex, 477 U.S. at 322–24; Moton v. Cowart,

631 F.3d 1337, 1341 (11th Cir. 2011) (holding that moving party discharges his burden by

showing the record lacks evidence to support the nonmoving party’s case or the nonmoving

party would be unable to prove his case at trial).

When the defendants meet their evidentiary burden, as they have in this case, the

burden shifts to the plaintiff to establish, with appropriate evidence, that a genuine dispute

material to his case exists. Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir.

1991); Celotex, 477 U.S. at 324; Fed.R.Civ.P. 56(e)(3) (“If a party fails to properly support

an assertion of fact or fails to properly address another party’s assertion of fact [by citing

to materials in the record including affidavits, sworn statements, relevant documents or

other materials], the court may . . . grant summary judgment if the motion and supporting

materials—including the facts considered undisputed—show that the movant is entitled to

it[.]”); Jeffery, 64 F.3d at 593–94 (holding that, once a moving party meets its burden, “the

non-moving party must then go beyond the pleadings, and by its own affidavits [or

statements made under penalty of perjury], or by depositions, answers to interrogatories,

and admissions on file,” demonstrate that there is a genuine dispute of material fact). In

civil actions filed by inmates, federal courts “must distinguish between evidence of

disputed facts and disputed matters of professional judgment. In respect to the latter, our

inferences must accord deference to the views of prison authorities. Unless a prisoner can

point to sufficient evidence regarding such issues of judgment to allow him to prevail on

the merits, he cannot prevail at the summary judgment stage.” Beard v. Banks, 548 U.S.

521, 530 (2006) (internal citation omitted). This court will also consider “specific facts”

pled in a plaintiff’s sworn complaint when considering his opposition to summary

judgment. Caldwell v. Warden, FCI Talladega, 748 F.3d 1090, 1098 (11th Cir. 2014);

Barker v. Norman, 651 F.2d 1107, 1115 (5th Cir. Unit A 1981) (stating that a verified

complaint serves the same purpose as an affidavit for purposes of summary judgment).

However, “mere conclusions and unsupported factual allegations are legally insufficient to

defeat a summary judgment motion.” Ellis v. England, 432 F.3d 1321, 1326 (11th Cir.

2005).

A genuine dispute of material fact exists when the nonmoving party produces

evidence that would allow a reasonable fact-finder to return a verdict in its favor such that

summary judgment is not warranted. Greenberg, 498 F.3d at 1263; Allen v. Bd. of Pub.

Educ. for Bibb Cnty., 495 F.3d 1306, 1313 (11th Cir. 2007). The evidence must be

admissible at trial, and if the nonmoving party’s evidence “is merely colorable . . . or is not

significantly probative . . . summary judgment may be granted.” Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 249–50 (1986); see also Fed.R.Civ.P. 56(e). “A mere ‘scintilla’

of evidence supporting the opposing party’s position will not suffice[.]” Walker v. Darby,

911 F.2d 1573, 1577 (11th Cir. 1990) (citing Anderson, 477 U.S. at 252). Only disputes

involving material facts are relevant and materiality is determined by the substantive law

applicable to the case. Anderson, 477 U.S. at 248.

To demonstrate a genuine dispute of material fact, the party opposing summary

judgment “must do more than simply show that there is some metaphysical doubt as to the

material facts. . . . Where the record taken as a whole could not lead a rational trier of fact

to find for the nonmoving party, there is no ‘genuine [dispute] for trial.’” Matsushita Elec.

Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). “The evidence of the non-

movant is to be believed, and all justifiable inferences are to be drawn in his favor.”

Anderson, 477 U.S. at 255. At the summary judgment stage, this court should accept as

true “statements in [the plaintiff’s] verified complaint, [any] sworn response to the

[defendants’] motion for summary judgment, and sworn affidavit attached to that

response[.]” Sears v. Roberts, 922 F.3d 1199, 1206 (11th Cir. 2019); United States v. Stein,

881 F.3d 853, 857 (11th Cir. 2018) (holding that a plaintiff’s purely self-serving and

uncorroborated statements “based on personal knowledge or observation” set forth in a

verified complaint or affidavit may create an issue of material fact which precludes

summary judgment); Feliciano v. City of Miami Beach, 707 F.3d 1244, 1253 (11th Cir.

2013) (citations omitted) (“To be sure, [Plaintiff’s] sworn statements are self-serving, but

that alone does not permit [the court] to disregard them at the summary judgment stage . .

. . Courts routinely and properly deny summary judgment on the basis of a party’s sworn

testimony even though it is self-serving.”). However, general, blatantly contradicted and

merely “[c]onclusory, uncorroborated allegations by a plaintiff in [his verified complaint

or] an affidavit . . . will not create an issue of fact for trial sufficient to defeat a well-

supported summary judgment motion.” Solliday v. Fed. Officers, 413 F. App’x 206, 207

(11th Cir. 2011) (citing Earley v. Champion Int’l Corp., 907 F.2d 1077, 1081 (11th Cir.

1990). In addition, conclusory allegations based on purely subjective beliefs of a plaintiff

and assertions of which he lacks personal knowledge are likewise insufficient to create a

genuine dispute of material fact. See Holifield v. Reno, 115 F.3d 1555, 1564 n.6 (11th Cir.

1997). In cases where the evidence before the court which is admissible on its face or

which can be reduced to admissible form indicates there is no genuine dispute of material

fact and the party moving for summary judgment is entitled to it as a matter of law,

summary judgment is proper. Celotex, 477 U.S. at 323–24; Waddell v. Valley Forge Dental

Associates, Inc., 276 F.3d 1275, 1279 (11th Cir. 2001) (holding that to establish a genuine

dispute of material fact the nonmoving party must produce evidence such that a reasonable

trier of fact could return a verdict in his favor). “The mere existence of some factual dispute

will not defeat summary judgment unless that factual dispute is material to an issue

affecting the outcome of the case.” McCormick v. City of Fort Lauderdale, 333 F.3d 1234,

1243 (11th Cir. 2003) (citation omitted). “[T]here must exist a conflict in substantial

evidence to pose a jury question.” Hall v. Sunjoy Indus. Group, Inc., 764 F. Supp. 2d 1297,

1301 (M.D. Fla. 2011) (citation omitted). “When opposing parties tell two different stories,

one of which is blatantly contradicted by the record, so that no reasonable jury could

believe it, a court should not adopt that version of the facts for purposes of ruling on a

motion for summary judgment.” Scott v. Harris, 550 U.S. 372, 380 (2007).

Although factual inferences must be viewed in a light most favorable to a plaintiff

and pro se complaints are entitled to liberal interpretation, a pro se litigant does not escape

the burden of establishing by sufficient evidence a genuine dispute of material fact. See

Beard, 548 U.S. at 525. Thus, a plaintiff’s pro se status alone does not compel this court

to disregard elementary principles of production and proof in a civil case. Here, after a

thorough and exhaustive review of all the evidence which would be admissible at trial, the

undersigned finds that Russ has failed to demonstrate a genuine dispute of material fact in

order to preclude entry of summary judgment in favor of the defendants. See Matsushita,

475 U.S. at 587.

III. IMMUNITY DEFEENSES

A. Sovereign Immunity

To the extent Russ seeks monetary damages from the defendants in their official

capacities, the defendants maintain that in operating the Houston County Jail they are state

actors entitled to sovereign immunity. Doc. 38 at 5–6; Free v Granger, 887 F.2d 1552,

1557 (1th Cir. 1989) (holding that suits against sheriffs “in their official capacities are

effectively suits against the entity that those officials represent. Thus, the plaintiff’s claim

against [the] Sheriffs . . . is in substance a Section 1983 action in which the State of

Alabama is the real party in interest.”); Carr v. City of Florence, Ala., 916 F.2d 1521, 1527

(1th Cir. 1990) (“hold[ing] that the sheriff’s eleventh amendment immunity . . . extends to

deputy sheriffs because of their traditional function under Alabama law as the sheriff’s

alter ego.”); Lancaster v. Monroe County, Ala., 116 F.3d 1419, 1430–31 (11th Cir 1997)

(holding that county jailers, like sheriffs and deputies, are entitled to Eleventh Amendment

immunity for official capacity claims); Turquitt v. Jefferson County, Ala., 137 F.3d 1285,

1288–89 11th Cir 1998)(holding that a sheriff, his deputies and other jail employees act as

officers of the State when supervising inmates and otherwise operating county jails for

purposes of imposing liability under § 1983).

Official capacity lawsuits are “in all respects other than name, . . . treated as a suit

against the entity.” Kentucky v. Graham, 473 U. S. 159, 166 (1985). As the Eleventh

Circuit has held,

the Eleventh Amendment prohibits federal courts from entertaining suits by

private parties against States and their agencies [or employees]. There are

two exceptions to this prohibition: where the state has waived its immunity

or where Congress has abrogated that immunity. A State’s consent to suit

must be unequivocally expressed in the text of [a] relevant statute. Waiver

may not be implied. Likewise, Congress’ intent to abrogate the States’

immunity from suit must be obvious from a clear legislative statement.

Selensky v. Alabama, 619 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 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 F. App’x at 849. “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, the defendants 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

Community College, 49 F.3d 1517, 1524 (11th Cir. 1995) (holding that damages are

unavailable from state official sued in his official capacity). Summary judgment is

therefore due to be granted in favor of the defendants on these claims.

B. Qualified Immunity

The defendants also raise the defense of qualified immunity to the claims lodged

against them in their individual capacities. Doc. 38 at 6–8. “The defense of qualified

immunity completely protects government officials performing discretionary functions

from suit [for damages] in their individual capacities unless their conduct violates ‘clearly

established statutory or constitutional rights of which a reasonable person would have

known.’” Gonzalez v. Reno, 325 F.3d 1228, 1233 (11th Cir. 2003) (quoting Hope v. Pelzer,

536 U.S. 730, 739 (2002)). “The purpose of the qualified immunity defense is to protect[]

government officials from liability for civil damages insofar as their conduct does not

violate clearly established statutory or constitutional rights of which a reasonable person

would have known.” Youmans v. Gagnon, 626 F.3d 557, 562 (11th Cir. 2010) (internal

quotations and citations omitted). “Qualified immunity gives government officials

breathing room to make reasonable but mistaken judgments, and protects all but the plainly

incompetent or those who knowingly violate the law.” Messerschmidt v. Millender, 565

U.S. 535, 546 (2012) (citations and quotation marks omitted). “Unless a government

agent’s act is so obviously wrong, in light of the pre-existing law, that only a plainly

incompetent officer or one who was knowingly violating the law would have done such a

thing, the government actor is immune from suit.” Lassiter v. Ala. A&M University Bd. of

Trustees, 28 F.3d 1146, 1149 (11th Cir. 1994). The Eleventh Circuit has determined that

the law is “clearly established” for purposes of qualified immunity “only by decisions of

the U. S. Supreme Court, Eleventh Circuit Court of Appeals, or the highest court of the

state where the case arose.” Jenkins v. Talladega City Bd. of Education, 115 F.3d 821,

826–27 n.4 (11th Cir. 1997). The Supreme Court “repeatedly ha[s] stressed the importance

of resolving immunity questions at the earliest possible stage in litigation.” Pearson v.

Callahan, 555 U.S. 223, 231–32 (2009). Qualified immunity, however, is only an

affirmative defense to a request for damages; it has no impact on requests for declaratory

or injunctive relief. See Wood v. Strickland, 420 U.S. 308, 315, n.6 (1975) (“Immunity

from damages does not ordinarily bar equitable relief as well.”), overruled in part on other

grounds by Harlow v. Alexander, 457 U.S. 800 (1982); American Fire, Theft & Collision

Managers, Inc. v. Gillespie, 932 F.2d 816, 818 (9th Cir. 1991) (holding that the defense of

qualified immunity is limited to actions for monetary damages and does not serve as a

defense to actions seeking equitable relief).

“To receive qualified immunity, the government official must first prove that he was

acting within his discretionary authority.” Gonzalez, 325 F.3d at 1234. In this case, it is

clear “that the defendants were acting within their discretionary authority[]” as jail officials

at the time of the incidents at issue so “the burden shifts to [Russ] to show that qualified

immunity is not appropriate.” Id.; see also Townsend v. Jefferson Cnty., 601 F.3d 1152,

1158 (11th Cir. 2010). To meet this burden, Russ must prove both that “(1) the defendants

violated a constitutional right, and (2) this right was clearly established at the time of the

alleged violation.” Holloman ex rel. Holloman v. Harland, 370 F.3d 1252, 1264 (11th

Cir.2004); Crosby v. Monroe Cnty., 394 F.3d 1328, 1332 (11th Cir. 2004) (same);

Youmans, 626 F.3d at 562 (citation omitted) (“[O]nce a defendant raises the defense [of

qualified immunity and demonstrates he was acting within his discretionary authority], the

plaintiff bears the burden of establishing both that the defendant committed a constitutional

violation and that the law governing the circumstances was clearly established at the time

of the violation.”). This court is “free to consider these elements in either sequence and to

decide the case on the basis of either element that is not demonstrated.” Id.; Rehberg v.

Paulk, 611 F.3d 828, 839 (11th Cir. 2010) (citing Pearson, 555 U.S. at 241–42) (holding

that a court may analyze the elements “in whatever order is deemed most appropriate for

the case.”).

IV. DISCUSSION

A. Applicable Standard of Review — Deliberate Indifference

The actions about which Russ complains occurred while Russ was a pretrial

detainee confined in the Houston County Jail. His claims are therefore subject to review

under the Due Process Clause of the Fourteenth Amendment which prohibits the

imposition of punishment on those who have not yet been convicted of a crime, rather than

the Eighth Amendment’s prohibition against cruel and unusual punishment which governs

claims of convicted inmates. Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861 (1979); Cottrell

v. Caldwell, 85 F.3d 1480, 1490 (11th Cir. 1996) (“Claims involving the mistreatment of

arrestees or pretrial detainees in custody are governed by the Fourteenth Amendment’s Due

Process Clause instead of the Eighth Amendment’s Cruel and Unusual Punishment Clause,

which applies to such claims by convicted prisoners.”). “[I]n regard to providing pretrial

detainees with such basic necessities as food, living space, and medical care the minimum

standard allowed by the due process clause is the same as that allowed by the eighth

amendment for convicted persons.” Hamm v. DeKalb County, 774 F.2d 1567, 1574 (11th

Cir. 1985), cert. denied, 475 U.S. 1096 (1986). As to these claims, the Eleventh Circuit

has long held that “the applicable standard is the same, so decisional law involving prison

inmates applies equally to cases involving arrestees or pretrial detainees.” Cottrell, 85 F.3d

at 1490; Hamm, 774 F.2d 1574 (holding that for analytical purposes, there is no meaningful

difference between the analysis required by the Fourteenth Amendment and that required

by the Eighth Amendment.); Tittle v. Jefferson County Commission, 10 F.3d 1535, 1539

(11th Cir. 1994) (observing that “[w]hether the alleged violation is reviewed under the

Eighth or Fourteenth Amendment is immaterial.”).

In a recent decision addressing a pretrial detainee’s excessive force claim,

the United States Supreme Court held that under the Fourteenth Amendment

the detainee “must show only that the force purposely or knowingly used

against him was objectively unreasonable. . . . A court must make this

determination from the perspective of a reasonable [official] on the scene,

including what that [official] knew at the time, not with the 20/20 vision of

hindsight.” Kingsley v. Hendrickson, [576 U.S. 389, 397] 135 S.Ct. 2466,

2473 (2015). The court in Kingsley reaffirmed that a defendant “must

possess a purposeful, a knowing, or possibly a [criminally] reckless state of

mind. That is because . . . ‘liability for negligently inflicted harm is

categorically beneath the threshold of constitutional due process.’ Id. at

[396,] 2472 (quoting County of Sacramento v. Lewis, 523 U.S. 833, 849

(1998)). The [Kingsley] Court further emphasized that the ‘guarantee of due

process has [historically] been applied to deliberate decisions of government

officials to deprive a person of life, liberty or property.’” Id.

The Supreme Court has not yet ruled on whether to extend the objective

reasonableness standard of review set forth in Kingsley to cases of pretrial

detainees which do not involve the use of excessive force (i.e., cases

challenging medical treatment or conditions of confinement). However, an

extensive search of post-Kingsley cases indicates that the vast majority of

federal courts, including [this court and] the Eleventh Circuit Court of

Appeals, have continued to utilize the deliberate indifference standard in

deciding claims of pretrial detainees which challenge medical treatment and

other conditions. E.g., Massey v. Quality Correctional Health Care, Inc., et

al., 2015 WL 852054 (M.D. Ala. Feb. 26, 2015), affirmed on appeal, [Massey

v. Montgomery County Detention Facility, 646 F. App’x 777] (11th Cir.

2016) (addressing claims of a pretrial detainee challenging the medical

treatment provided to him while in a county jail, without reference to

Kingsley, and applying the deliberate indifference standard to find that the

defendants’ actions did not rise to the level of deliberate indifference);

McBride v. Covington County Health Auth., 2015 WL 3892715, *10 & 15–

20 (M.D. Ala. June 24, 2015) (recognizing the impact of Kingsley on

excessive force claims brought by pretrial detainees but subsequently

applying the deliberate indifference standard to the plaintiff pretrial

detainee’s medical treatment claim) [affirmed 658 F. App’x 991 (11th Cir.

2016) (holding that district court properly applied the deliberate indifference

standard of the Eighth Amendment in denying summary judgment to

defendant on pretrial detainee’s challenge to constitutionality of medical

treatment provided for skin condition)]; White v. Franklin, 2016 WL 749063,

at *5–8 (N. D. Ala. Jan. 28, 2016), adopted, 2016 WL 741962 (N.D. Ala.

Feb. 25, 2016) (applying Kingsley’s objective reasonableness standard to

pretrial detainee’s claim of excessive force but addressing his claims of

inadequate medical treatment under the deliberate indifference standard of

the Eighth Amendment in accordance with prior Eleventh Circuit precedent);

Woodhouse v. City of Mount Vernon, et al., 2016 WL 354896, at *10 n.4

(S.D.N.Y. Jan. 26, 2016) (applying “a subjective standard to [detainee’s]

Fourteenth Amendment claim of deliberate indifference to serious medical

needs, just as it would to an Eighth Amendment claim brought by a convicted

prisoner,” despite Kingsley); Thomley v. Bennett, et al., 2016 WL 498436, at

*7 (S.D. Ga. Feb. 8, 2016), adopted, 2016 WL 3454383 (S.D. Ga. Mar. 14,

2016) (finding Kingsley does not “provide[] the standard to be applied” to

pretrial detainee’s medical treatment claims).

As indicated above, the Eleventh Circuit recently applied the deliberate

indifference standard to a pretrial detainee’s claims challenging the

constitutionality of medical treatment provided to him by health care

personnel at a county jail. See Massey, [646 F. App’x at 781]. In affirming

the trial court’s decision to grant summary judgment for the defendants, the

Court held:

There is . . . no basis for [Plaintiff’s] claim that [Defendant

physicians’] diagnosis and treatment of his ailments rose to the level

of deliberate indifference. There is a difference between “mere

incidents of negligence or malpractice” and deliberate indifference.

Harris v. Thigpen, 941 F.2d 1495, 1505 (11th Cir.1991). The

former, “while no cause for commendation, cannot . . . be

condemned as the infliction of punishment” in violation of the

Eighth Amendment. Farmer v. Brennan, 511 U.S. 825, 838, 114

S.Ct. 1970, 1979 (1994). The latter, by contrast, is a violation of the

Eighth Amendment, but requires the plaintiff to prove that the

defendant knew of a serious risk to the plaintiff and affirmatively

disregarded it. See McElligott v. Foley, 182 F.3d 1248, 1255 (11th

Cir. 1999). There is no genuine dispute that [the jail physicians]

actively attempted to diagnose and treat [Plaintiff]. The treatment

they offered may not have been as effective or instantaneous as

[Plaintiff] would have liked, but the bare fact that treatment was

ineffectual or not immediately administered does not mean that those

responsible for it were deliberately indifferent. Because the record

does not establish a genuine dispute that [the attending physicians]

made a good-faith effort to treat [Plaintiff’s] ailments, summary

judgment was appropriate.

Id. The Sixth, Seventh and Ninth Circuits are in accord. See Baynes v.

Cleland, 799 F.3d 600, 617–18 (6th Cir. 2015); Smith v. Dart, 803 F.3d 304,

310 (7th Cir. 2015); Castro v. County of Los Angeles, 797 F.3d 654, 664-65

(9th Cir. 2015).

Smith v. Terry, 2016 WL 4942066 at *3 (M.D. Ala. Aug. 15, 2016), Recommendation

adopted as opinion of the court, 2016 WL 4923506 (M.D. Ala. Sept. 14, 2016); Nam Dang

by & through Vina Dang v. Sheriff, Seminole Cty. Fla., 871 F.3d 1272, 1279 (11th Cir.

2017) (holding that a pre-trial detainee’s claims challenging medical treatment provided to

him “are evaluated under the same [deliberate indifference] standard as a prisoner’s claim

of inadequate care under the Eighth Amendment” and specifically refusing to extend the

objective reasonableness standard set forth in Kingsley to such claims).

Other district courts post-Kingsley have also applied the deliberate indifference

standard of the Eighth Amendment in deciding medical claims presented by pretrial

detainees. Oliver v. County of Gregory, 2016 WL 958171, at *6 n.11 (D. So. Dakota Mar.

8, 2016) (noting that the holding in Kingsley “was limited to excessive force cases under

the Fourteenth Amendment as set forth in Farmer v. Brennan, 511 U.S. 825 (1994). Thus,

the Eighth Circuit still utilizes the subjective measure of deliberate indifference . . . for

pretrial detainees in Fourteenth Amendment cases involving an allegation of deprivation

of medical care.”); Hall v. Ramsey County, 801 F.3d 912, 917 n.3 (8th Cir. 2015) (noting

Kingsley’s holding in discussion of pretrial detainee’s excessive force claim and then

applying subjective prong of deliberate indifference to his deprivation of medical care

claim.); Figueira by and through Brown v. County of Sutter, 2015 WL 6449151 (E.D Calif.

Oct. 23, 2015) (holding that despite Kingsley pretrial detainee “must show the defendants

acted with deliberate indifference to his serious medical needs[]” as required by prior Ninth

Circuit law applying same legal standard to Eighth and Fourteenth Amendments claims

challenging conditions claims, including those alleging a denial of adequate medical

treatment); Gilbert v. Rohana, 14 Civ. 630, 2015 WL 6442289, at *4 (S.D. Ind. Oct. 23,

2015) (“The court finds that Kingsley did not alter the legal standard for denial of medical

treatment claims brought by pretrial detainees like Plaintiff. Kingsley was limited to

excessive force claims brought by pretrial detainees; the Court did not comment on the

appropriate standard for denial of medical treatment claims brought by such detainees.”);

Larson v. Stacy, 2015 WL 5315500, at *6–9 (N.D. Ala. Aug. 18, 2015), Recommendation

adopted, 2015 WL 7753346 (N.D. Ala. Dec. 2, 2015) (court utilized objective

reasonableness standard to address pretrial detainee’s excessive force claims but applied

deliberate indifference standard to his medical care claims); Johnson v. Hodgson, 2015 WL

5609960, at *5 (D. Mass. Sept. 22, 2015) (court acknowledged application of Kingsley to

pretrial detainee’s excessive force claim but stated deliberate indifference standard was

proper standard for review of his inadequate medical treatment claims); Landy v. Isenberg,

2015 WL 5289027, at *4 (D. Md. Sept. 9, 2015) (same); Wells v. T.C.C.F., 2015 WL

4875872, at *2 (N.D. Miss Aug. 15, 2015) (recognizing that under Kingsley “[m]ere

negligence . . . will not support the finding of a constitutional violation” on a pretrial

detainee’s challenge to medical care and then holding that to proceed on such a claim “a

detainee must demonstrate” each of the elements of deliberate indifference); Roberts v. C-

73 Medical Director, 2015 WL 4253796, at *3 (S.D. N. Y. July 13, 2015) (“The decision

in Kingsley dealt only with excessive force claims, thus [this] Court continues to abide by

Second Circuit precedent setting forth a subjective standard for cases involving allegations

of deliberate indifference to a pretrial detainee’s serious medical needs.”); Kennedy v. Bd.

of Commissioners for Oklahoma County, 2015 WL 4078177, at *1 n.6 (W.D. Okla. July 6,

2015) (holding that the Supreme Court’s decision in Kingsley “does not alter the [deliberate

indifference] standard applicable to medical care claims” of pretrial detainees.); Austin v.

County of Alameda, 2015 WL 4051997 at *3 (N.D. Cal July 2, 2015) (same).

Based on the foregoing authorities, the undersigned deems it appropriate to apply

the deliberate indifference standard to Russ’ claims of inadequate medical treatment

instead of the objective reasonableness standard applied to the excessive force claim before

the Supreme Court in Kingsley.3

B. Deliberate Indifference to Medical Needs

In the pleadings before the court, Russ asserts that medical personnel employed at

the Houston County Jail denied him adequate treatment for his decayed tooth, blurry vision

and hemorrhoids. Russ also alleges that correctional officers assigned to the jail failed to

intervene regarding the treatment provided by medical personnel.

To prevail on a claim concerning an alleged denial of adequate medical treatment,

an inmate must show that the defendants acted with deliberate indifference to his serious

medical needs. Estelle v. Gamble, 429 U.S. 97 (1976); Taylor v. Adams, 221 F.3d 1254

(11th Cir. 2000); McElligott v. Foley, 182 F.3d 1248 (11th Cir. 1999); Waldrop v. Evans,

871 F.2d 1030, 1033 (11th Cir. 1989); Rogers v. Evans, 792 F.2d 1052, 1058 (11th

Cir.1986). Specifically, jail and medical personnel may not subject an inmate to “acts or

omissions sufficiently harmful to evidence deliberate indifference to serious medical

needs.” Estelle, 429 U.S. at 106, 97 S.Ct. at 292; Adams v. Poag, 61 F.3d 1537, 1546 (11th

Cir. 1995) (citation and internal quotations omitted) (As directed by Estelle, a plaintiff must

establish “not merely the knowledge of a condition, but the knowledge of necessary

3Under the facts of this case as set forth below, the undersigned further finds that regardless of the standard

applied — deliberate indifference or objective reasonableness — Russ’ claims do not survive summary

judgment.

treatment coupled with a refusal to treat or a delay in [the acknowledged necessary]

treatment.)”

To demonstrate an Eighth Amendment violation, a prisoner must satisfy both an

objective and a subjective inquiry. Farmer, 511 U.S. at 834; Keohane v. Fla. Dept. of

Corrections Sec’y, 952 F.3d 1257, 1266 (11th Cir. 2020) (internal citations and quotations

omitted) (holding that “[a] deliberate-indifference claim entails both an objective and a

subjective component. First, the inmate must establish an objectively serious medical

need—that is, one that has been diagnosed by a physician as mandating treatment or one

that is so obvious that even a lay person would easily recognize the necessity for a doctor’s

attention—that, if left unattended, poses a substantial risk of serious harm. Second, the

inmate must prove that prison officials acted with deliberate indifference to that need by

showing (1) that they had subjective knowledge of a risk of serious harm and (2) that they

disregard[ed] that risk (3) by conduct that was more than mere negligence.”); Caldwell v.

Warden, FCI Talladega, 748 F.3d 1090, 1099 (11th Cir. 2014) (holding that the law requires

establishment of both objective and subjective elements to demonstrate an Eighth Amendment

violation). With respect to the requisite objective element, an inmate must first show “an

objectively substantial risk of serious harm . . . exists. Second, once it is established that the official

is aware of this substantial risk, the official must react to this risk in an objectively unreasonable

manner.” Marsh v. Butler Cnty., Ala., 268 F.3d 1014, 1028–29 (11th Cir. 2001), abrogated on

other grounds by Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007). As to the subjective element,

“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.” Farmer, 511 U.S. at 837–38;

Campbell v. Sikes, 169 F.3d 1353, 1364 (11th Cir. 1999) (citing Farmer, 511 U.S. at 838).

That medical malpractice—negligence by a physician [or other medical

provider]—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 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 set forth a cognizable claim of “deliberate indifference to [a] serious

medical need . . ., Plaintiff[] must show: (1) a serious medical need; (2) the defendants’

deliberate indifference to that need; and (3) causation between that indifference and the

plaintiff’s injury.” Mann v. Taser Int’l, Inc., 588 F.3d 1291, 1306–07 (11th Cir. 2009).

When seeking relief based on deliberate indifference, an inmate is required to establish “an

objectively serious need, an objectively insufficient response to that need, subjective

awareness of facts signaling the need and an actual inference of required action from those

facts.” Taylor, 221 F.3d at 1258; McElligott, 182 F.3d at 1255 (holding that for liability to

attach a defendant must know of and then disregard an excessive risk to prisoner’s health

or safety). 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). This is likewise true

for a claim reviewed under the objective reasonableness standard.

When challenging the constitutionality of medical care under either standard of

review, “[t]he facts alleged must do more than contend medical malpractice, misdiagnosis,

accidents, [or] poor exercise of medical judgment. Estelle, 429 U.S. at 104–07, 97 S.Ct.

285. An allegation of negligence is [likewise] insufficient to state a due process claim.

Daniels v. Williams, 474 U.S. 327, 330–33, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986).”

Simpson v. Holder, 200 F.App’x 836, 839 (11th Cir. 2006); Green v. Watson, 2015 WL

4609977, at *2 (S.D. Ill. July 31, 2015) (Due to “the state of mind requirement for all due

process violations[,] . . . medical malpractice and negligence claims are not actionable

under [42 U.S.C.] § 1983, but are the grist of state law.); Kingsley, 576 U.S. at 395–96, 135

S.Ct. 2472 (With respect to the “legally requisite state of mind” attendant to a defendant’s

physical acts in determining the objective reasonableness of such acts, “the defendant must

possess a purposeful, a knowing, or possibly a [criminally] reckless state of mind. That is

because . . . ‘liability for negligently inflicted harm is categorically beneath the threshold

of constitutional due process.’”) (quoting County of Sacramento v. Lewis, 523 U.S. 833,

849 (1999); Estelle, 429 U.S. at 106 (neither negligence nor medical malpractice

“become[s] a constitutional violation simply because the victim is incarcerated.”); Farmer,

511 U.S. at 835–36 (A complaint alleging negligence in diagnosing or treating “a medical

condition does not state a valid claim of medical mistreatment under the Eighth

Amendment[,]” nor does it establish the requisite reckless disregard of a substantial risk of

harm so as to demonstrate a constitutional violation.); Daniels, 474 U.S. at 332 (The

Constitution “does not purport to supplant traditional tort law in laying down rules of

conduct to regulate liability for injuries. . . . We have previously rejected reasoning that

would make of the Fourteenth Amendment a font of tort law to be superimposed upon

whatever systems may already be administered by the States.”) (internal quotations

omitted); Kelley v. Hicks, 400 F.3d 1281, 1285 (11th Cir. 2005) (“Mere negligence . . . is

insufficient to establish deliberate indifference.”); Matthews v. Palte, 282 F.App’x 770,

771 (11th Cir. 2008) (affirming district court’s summary dismissal of inmate complaint

alleging “misdiagnosis and inadequate treatment [as such] involve no more than medical

negligence.”); Comstock v. McCrary, 273 F.3d 693, 703 (6th Cir. 2001) (“[A] plaintiff

alleging deliberate indifference must show more than negligence or the misdiagnosis of an

ailment.”); Johnson v. Quinones, 145 F.3d 164, 168 (4th Cir. 1998) (holding that

negligence in misdiagnosis of pituitary tumor not sufficient to show deliberate

indifference); Barr v. Fla. Dept. of Corr., 2011 WL 1365552, at *4 (S.D. Fla. April 11,

2011) (finding that plaintiff due no relief where misdiagnosis, which led to improper

insertion of feeding tube, did not rise to the level of deliberate indifference as misdiagnosis

amounted to nothing more than negligence); Null v. Mangual, 2012 WL 3764865, at *3–4

(M.D. Fla. Aug. 30, 2012), appeal dismissed (11th Cir. 12-14749 Nov. 28, 2012) (finding

that misdiagnosis of inmate with Ganglion cyst that “was eventually diagnosed as synovial

sarcoma, a form of skin cancer [leading to a later discovery of] multiple spots of cancer on

his lungs . . . fail[ed] to show that Defendants acted with deliberate indifference as opposed

to mere negligence. . . . At most, [Defendants] misdiagnosed Plaintiff’s growth, which

amounts to a claim of negligence or medical malpractice.”); Payne v. Groh, 1999 WL

33320439, at *5 (W.D. N.C. July 16, 1999) (citing Sosebee v. Murphy, 797 F.2d 179 (4th

Cir. 1986)) (“An allegation of misdiagnosis, even when accompanied by a speculative

allegation of subjective intent, amounts only to the state-law tort of medical malpractice,

not to a tort of constitutional magnitude for which Section 1983 is reserved. Conclusory

allegations sounding in malpractice or negligence do not state a federal constitutional

claim.”). In addition, Kingsley’s requirement of a purposeful or knowing state of mind, its

assertion that due process protects only against deliberate acts and its affirmation that

negligence categorically fails to provide a basis for liability in section 1983 actions, 576

U.S. at 396, 135 S.Ct. at 2472, serves to preclude the constitutionalization of medical

malpractice claims such as those which allege misdiagnosis or negligent treatment of a

condition. Consequently, merely accidental inadequacy, negligence in diagnosis,

negligence in treatment and medical malpractice do not suffice to establish the objective

component of claims seeking relief for alleged constitutional violations regarding medical

treatment provided to an inmate, whether he is a pretrial detainee or convicted prisoner.

Additionally, “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: aware[ness] 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) (alterations in original). 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 County Detention 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, 888 F.2d at 787. 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); Taylor, 221 F.3d at 1258 (citation

and internal quotations omitted) (To show deliberate indifference to a serious medical need,

a plaintiff must demonstrate that the defendants’ response to the need was more than

“merely accidental inadequacy, negligence in diagnosis or treatment, or even medical

malpractice actionable under state law.”). Moreover, “as Estelle teaches, whether

government actors should have employed additional diagnostic techniques or forms of

treatment is a classic example of a matter for medical judgment and therefore not an

appropriate basis for grounding liability under the Eighth Amendment.” Adams, 61 F.3d

at 1545 (internal quotation marks omitted). “A difference of opinion as to how a condition

should be treated does not give rise to a constitutional violation.” Garvin v. Armstrong,

236 F.3d 896, 898 (7th Cir. 2001); Hamm v. DeKalb County, 774 F.2d 1567, 1575 (11th

Cir. 1985) (holding that mere fact inmate desires a different mode of 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). “Self-serving statements by a plaintiff do not create a

question of fact in the face of contradictory, contemporaneously created medical records.”

Whitehead v. Burnside, 403 F.App’x 401, 403 (11th Cir. 2010) (citing Bennett v. Parker,

898 F.2d 1530 (11th Cir.1990)).

The law is likewise clear that an inmate is not entitled to referral to an outside

physician for evaluation. 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.”); Dixon v. Jones, 2014 WL 6982469, at *9

(M.D. Ala. Dec. 9, 2014) (finding that jail physician’s denial of second opinion regarding

treatment provided to inmate for physical injuries did not constitute deliberate

indifference); Youmans v. City of New York, 14 F.Supp. 357, 363–64 (S.D.N.Y. 2014)

(noting that “courts in the Second Circuit have held that failure to provide a second opinion

is not generally a violation of a prisoner’s Eighth Amendment rights.”); Schomo v. City of

New York, 2005 WL 756834, at *10 (S.D.N.Y. Apr. 4, 2005) (finding doctor’s decision to

deny inmate second opinion did not constitute deliberate indifference “since prisoners are

not constitutionally entitled to a second medical opinion.”).

1. The Medical Defendants. Russ complains defendants Smoak and Hinson

denied him treatment for his decayed tooth, blurry vision and hemorrhoids during his

incarceration at the Houston County Jail. Doc. 1 at 1–3. Specifically, Russ argues Smoak

denied his requests for outside referrals “one for the eye doctor and the other for the colon

procedure and hemorr[hoids] procedure.” Doc. 1 at 3.

The medical defendants adamantly deny they acted with deliberate indifference to

Russ’ medical needs and maintain that Russ had continuous access to health care personnel

and received treatment from medical professionals for his complaints during this time. The

medical records before the court demonstrate that medical personnel at the Houston County

Jail evaluated Russ each time he appeared at the medical unit for complaints related to his

various health issues, assessed his need for treatment, prescribed medications to treat his

conditions, ordered tests and studies to assist in treating Russ. and provided treatment to

Russ in accordance with their professional judgment. Doc. 38-2 at 2–25; Doc, 38-9 at 1–

4; Doc. 41-3 at 1–4; Doc.43-1 at 1–5 The medical records further show that the jail’s

medical personnel referred Russ for treatment at free-world facilities when they deemed

such off-site treatment necessary.

The defendants submitted sworn declarations in response to the complaint filed by

Russ. After a thorough and exhaustive review of the medical records submitted in this

case, the court finds that the details of medical treatment provided to Russ as set forth by

the medical defendants in their declarations are corroborated by the objective medical

records contemporaneously compiled during the treatment process.

Defendant Hinson responds to the claims presented by Russ, in pertinent part, as

follows:

I am employed by the Houston County Sheriff as an LPN in the

Houston County Jail.

I deny the allegations made against me by Plaintiff as being untrue

and completely without basis in law or fact. I deny that I acted, or caused

anyone to act, in such a manner as to deprive the Plaintiff of any right to

which he was entitled. Specifically, I deny that Plaintiff has been housed in

unconstitutional conditions or deprived of any rights guaranteed to him by

the U.S. Constitution.

It is the policy of the Houston County Sheriff’s Office that all inmates

confined in the Houston County Jail be entitled to a level of health care

comparable to that available to citizens in the surrounding community to

ensure their physical and emotional well-being. All medical services

rendered to inmates in the Houston County Jail are given under the direction

of a licensed health care provider. Sheriff’s Office personnel are prohibited

from ever summarily or arbitrarily denying an inmate’s reasonable request

for medical services. Medical, dental, and mental health matters involving

clinical judgments are the sole province of the responsible medical care

professional, and no member of the jail staff is allowed to substitute his or

her judgment for those of the provider. Inmates are guaranteed access to any

diagnostic, laboratory, or other treatment services as directed by the Jail

medical professionals.

Medical care for inmates is provided through a local physician, a

physician’s assistant, and nurses. The Houston County Sheriff employs a PA

and multiple LPNs at the jail who work under the direction of a licensed

physician to assess and treat inmates within the facility or to refer inmates

outside the facility for medical, dental, or mental health care.

During Plaintiff’s incarceration Jason Smoak, P.A., practicing under

the supervision of Mark Choquette, M.D., and multiple LPNs have provided

medical care for inmates. The PA is present at the jail approximately eight

hours a day Monday through Friday. An LPN is present at the jail daily.

Inmates needing medical care are examined at the medical clinic

located inside the jail. The medical professionals run the medical clinic and

all instructions of the medical personnel are followed by jail staff.

The medical staff prepares medication for distribution to inmates. The

LPNs conduct “med call” on a set schedule each day at the jail.

I have not observed staff members of the Houston County Jail take

any deliberate action to block, deny, or delay access of an inmate to health

care. All instructions of medical personnel are followed by jail staff including

all instructions regarding appointments with outside medical providers,

dietary needs, housing and treatment for any inmate. Any doubt as to

whether an actual need exists for medical treatment shall be resolved in favor

of the inmate and medical treatment will be offered.

Plaintiff was examined by medical professionals multiple times

during his incarceration at the Houston County Jail and, to my knowledge,

all instructions of medical staff have been followed by corrections staff.

Plaintiff has continually had access to medical professionals during his

incarceration.

Specifically, I have taken no action to restrict, block or delay

Plaintiff’s access to any medical provider or any medical treatment.

Plaintiff was examined in the Houston County Jail medical clinic

multiple times during his 2018 incarceration. Plaintiff was prescribed

medications and was administered these medications. Plaintiff was not found

to have any significant dental injury, eye injury or medical problem to require

an emergency dental visit or an emergency visit to a vision professional.

Plaintiff is HIV positive and was examined by medical professionals at the

MAO [Medical Advocacy and Outreach] clinic in Dothan during his

incarceration. Plaintiff was placed on the dental list to see the dentist that

treats Houston County Jail inmates. However, Plaintiff was at the Haven

substance abuse treatment center when his dental appointment was

scheduled. When Plaintiff returned to the Houston County Jail after being at

the Haven [Substance Abuse Treatment Center] he was examined by a dentist

on October 24, 2018. Plaintiff refused medical treatment multiple times

during his incarceration.

At no time, was Plaintiff denied adequate medical care during his

incarceration in the Houston County Jail. Specifically, Plaintiff was not

denied adequate dental or vision care.

Jail records establish that Plaintiff suffered no unconstitutional

treatment while confined at the Houston County Jail.

Doc, 41-3 at 1–3 (paragraph numbering omitted). In his initial declaration, defendant

Smoak echoes the information provided by defendant Hinson. Doc. 38-9 at 1–3.

In compliance with an order of the court, defendant Smoak filed a second

declaration in which he provides a detailed recitation of the treatment provided to Russ

relevant to the claims pending in this case. This declaration contains the following

pertinent information.

I am employed by the Houston County Sheriff as a Physician

Assistant in the Houston County Jail.

Plaintiff was booked into the Houston County Jail on April 9, 2018.

Plaintiff filed his Complaint in this lawsuit on August 8, 2018. On August

17, 2018, Plaintiff was released from the Houston County Jail and entered

the Haven Substance Abuse Treatment Center. Plaintiff was again

incarcerated in the Houston County Jail on September 14, 2018.

Plaintiff was examined by medical professionals multiple times

during his incarceration at the Houston County Jail and, to my knowledge,

all instructions of medical staff have been followed by corrections staff.

Plaintiff has continually had access to medical professionals during his

incarceration.

I examined Plaintiff due to his complaints of pain in his tooth on June

11, 2018. After examining Plaintiff, I determined that his dental situation did

not rise to an emergency level. Thus, he was placed on the list to be taken to

the dentist for treatment. Typically, the local dentist who has agreed to treat

inmates of the Houston County Jail will examine 4 or 5 inmates with non-

emergency dental issues a month. Plaintiff’s tum on the dental list came when

he had been released from jail. Thus, because Plaintiff was no longer

incarcerated at the Houston County Jail he was removed from the dental list.

When Plaintiff returned to the Houston County Jail and again complained of

dental pain he was placed on the dental list. Plaintiff was examined by a

dentist on October 24, 2018.

I received no communication from any medical professional, from the

MAO clinic or otherwise, recommending emergency dental treatment or

necessitating an emergent appointment with a vision professional due to

Plaintiff’s diabetic condition or otherwise.

I have never refused to treat Plaintiff for any medical issue.

Specifically, I have never refused to treat Plaintiff for any digestive issue or

for hemorrhoids. Plaintiff made a complaint to me that he suffered from

hemorrhoids and demanded an emergency appointment at a colon specialist.

I informed Plaintiff that I would need to examine the Plaintiff and if the issue

rose to the level of needing a specialist then I would make such an

appointment. Plaintiff became angry and refused to be examined.

Plaintiff becomes angry when he does not get the specific medical

treatment he requests. Plaintiff constantly threatens legal action when he is

not given the exact treatment he requests.

On April I 0, 2018, Plaintiff reported to medical staff that he was

diabetic, HIV positive, had high blood pressure and suffered from asthma.

Plaintiff reported non-compliance with his medications and doctor’s

instructions. Plaintiff was told that appropriate medications would be

ordered. On April 11, 2018, Plaintiff received his intake examination.

Plaintiff again discussed that he had not been taking his prescribed

medications and had not been going to appointments at the MAO clinic.

Several medications were prescribed for Plaintiff.

Plaintiff was transported to the MAO clinic on April 17, 2018. I spoke

with a nurse at the MAO clinic regarding Plaintiff’s medication needs.

I examined Plaintiff on April 25, 2018 for a follow-up appointment.

Plaintiff was angry that he had not been prescribed a certain brand of inhaler.

Plaintiff was not in respiratory distress and was offered a suitable substitute

that was available on the jail formulary. Plaintiff was angry that I would not

prescribe him the exact brand of inhaler that he desired and refused the

prescription for the comparable inhaler. Plaintiff requested that jail staff

contact his family members and request that his inhaler be brought to the jail.

I agreed, and the inhaler and any other medications were requested from

family members.

Plaintiff then complained of hemorrhoids and demanded to be sent to

a digestive health specialist for a colonoscopy. I informed Plaintiff that I

would need to perform a physical exam and offered to prescribe medications

to treat hemorrhoids. I informed Plaintiff that if my physical exam indicated

that he needed to be referred to a specialist then I would make that referral.

Plaintiff became angry and threatened to file a lawsuit if he was not given

the medical treatment he demanded. I again offered Plaintiff medical

treatment for his complaint of hemorrhoids but he refused and left the exam

room. He was angry and agitated. Plaintiff refused to sign a form indicating

that he has refused medical treatment for his complaints on April 25, 2018.

Plaintiff’s blood pressure was checked on April 29, 2018.

On May 4, 2018, a member of Plaintiff s family brought an inhaler for

him to the jail. On May 7, 2018, five medications were brought to the jail for

Plaintiff from a family member.

Plaintiff’s blood pressure was checked on May 13, 2018.

I examined Plaintiff on May 22, 2018 for a follow up exam. He

reported he was doing well on his current medications and complained of a

sore throat and was prescribed cold medication.

On June 11, 2018, Plaintiff was seen at sick call. Plaintiff complained

that his tooth was painful and that his face was swelling. He was prescribed

antibiotic and pain medication. I examined Plaintiff’s tooth. Plaintiff’s dental

issue did not . . . rise to the level of a dental emergency. Thus, Plaintiff was

placed on the list to see a dentist.

On July 3, 2018, Plaintiff was transported to the MAO clinic. Clinic

staff noted that Plaintiff has been in medical noncompliance when not

incarcerated. A follow up appointment at the MAO clinic was scheduled.

On July 11, 2018, the MAO clinic contacted Houston County Jail

medical staff and stated that they could not write prescriptions for Plaintiff

at that time because he was a Medicaid patient. The clinic asked the Houston

County Jail to write Plaintiff’s prescriptions. Plaintiff was told this

information. Plaintiff became angry because of the $10 charge for

medications at the jail and requested that the jail not fill his prescriptions.

Plaintiff’s blood pressure was checked on July 20, 2018.

On August 8, 2018, Plaintiff was seen at sick call with complaints of

glaucoma and eye swelling. I examined Plaintiff and he showed no

symptoms of glaucoma. I reviewed his records from who he stated to be his

vision professional. His last visit to an eye care professional was more than

five years ago. I explained to Plaintiff that my exam showed no acute

condition to require an exam by an eye care specialist.

Plaintiff’s dental appointment was scheduled for August 22, 2018;

however, Plaintiff was not incarcerated in the jail on this date. Plaintiff

returned to the jail on September 14, 2018 and was placed back on the list to

see the dentist on September 15, 2018. Plaintiff was examined by a dentist

October 24, 2018.

Specifically, I have taken no action to restrict, block or delay

Plaintiff’s access to any medical provider or any medical treatment.

At no time, was Plaintiff denied adequate medical care during his

incarceration in the Houston County Jail. Specifically, Plaintiff was not

denied adequate dental or vision care.

Jail records establish that Plaintiff suffered no unconstitutional

treatment while confined at the Houston County Jail.

Doc. 43-1 at 1–5 (paragraph numbering omitted).

Under the circumstances of this case, the court concludes that the course of

treatment undertaken by medical personnel at the Houston County Jail did not violate Russ’

constitutional rights as it was not “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. Whether “additional diagnostic techniques or forms of treatment [should have been

ordered] ‘is a classic example of a matter for medical judgment’ and therefore not an

appropriate basis for grounding liability under the Eighth Amendment.” Adams, 61 F.3d at

1545 (internal citation omitted); Garvin, 236 F.3d at 898 (holding that difference of opinion

regarding manner in which to address a medical complaint fails to demonstrate a

constitutional violation); Hamm, 774 F.2d at 1505 (inmate’s desire for some other form of

medical treatment does not constitute deliberate indifference violative of the Constitution);

Howell v. Evans, 922 F.2d 712, 721 (11th Cir. 1991) (The failure of medical personnel to

pursue alternative means of treating inmate’s condition does not “rise beyond negligence

to the level of [deliberate indifference].”); Franklin, 662 F.2d at 1344 (simple divergence

of opinions between medical personnel and inmate-patient do not violate the Eighth

Amendment). As is also clear, the mere failure of the medical defendants to refer Russ to

outside specialists did not constitute deliberated indifference. Amarir, 243 F. A’ppx at 354.

In addition, Russ has failed to present any evidence which indicates Nurse Hinson or

Physician Assistant Smoak knew that the manner in which medical personnel provided

treatment to Russ for his conditions created a substantial risk to his health and that with

this knowledge consciously disregarded such risk. The record is therefore devoid of

evidence, significantly probative or otherwise, showing that defendants Hinson and Smoak

acted with deliberate indifference to Russ’ medical needs. Moreover, it is clear to the

undersigned that the medical treatment provided to Russ was objectively reasonable.

2. Sheriff Donald Valenza, Major Bill Rafferty, Commander James Brazier,

Officer Spencer Downs and Officer Michael Champion. The evidentiary materials

submitted by the defendants establish that defendants Valenza, Rafferty, Brazier, Downs

and Champion are not in any way involved in decisions regarding medical treatment

provided to inmates housed in the Houston County Jail. Doc. 38-7 at 1–4; Doc. 38-8 at 1–

4; Doc. 41-1 at 1–4; Doc. 41-2 at1–4; Doc. 41-4 at 1–4.

In his declaration, defendant Valenza provides the following relevant information: