# Russ v. Valenza (INMATE 1)

> District Court, M.D. Alabama · July 6, 2021

URL: https://www.frixlaw.com/law-library/cases/10630371

## Case

- **Court:** District Court, M.D. Alabama
- **Decided:** July 6, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10630371

## How later opinions describe it (automated extraction)

- 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

## Opinion text

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:

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.
Staff members of the Houston County Jail take no 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 to action to restrict, block or delay Plaintiff
s access to any medical provider or any medical treatment.

Doc. 41-2 at 2–3 (paragraph numbering omitted). Each of the correctional defendants
submitted a similar declaration attesting to allowing Russ access to the jail’s medical
personnel for evaluation, following all instructions given by medical personnel regarding
treatment for Russ and denying any involvement with treatment decisions. Doc. 38-7 at
1–4;Doc. 38-8 at 1–4; Doc. 41-1 at 1–4; Doc. 41-4 at 1–4.

Russ has failed to establish deliberate indifference on the part of defendants
Valenza, Rafferty, Brazier, Downs and Champion as he has not demonstrated that these
defendants were aware of facts establishing “an objectively serious medical need” nor that
they consciously disregarded any known serious risk to his health. Taylor, 221 F.3d at
1258; McElligott, 182 F.3d at 1255 (holding that for liability to attach, the official must
know of and then disregard an excessive risk of harm to the inmate); Quinones, 145 F.3d

at 168 (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).
Insofar as Russ seeks to hold defendants Valenza, Rafferty, Brazier, Downs and
Champion liable for the treatment provided by medical professionals, he is likewise entitled

to no relief as
“[t]he law does not impose upon [jailers] 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 [jail] 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).
Finally, to the extent Russ seeks to hold defendants Valenza, Rafferty, Brazier,
Downs and Champion liable under a theory of respondeat superior or vicarious liability,

he is entitled to no relief as the law is well-settled that liability in a 42 U.S.C. § 1983 action
may not be based on either of these the theories. Ashcroft v. Iqbal, 556 U.S. 662, 676
(2009) (“Government officials may not be held liable for the unconstitutional conduct of
their subordinates under the theory of respondeat superior.”); Cottone v. Jenne, 326 F.3d
1352, 1360 (11th Cir. 2003) (“[O]fficials are not liable under § 1983 for the
unconstitutional acts of their subordinates [or co-workers] on the basis of respondeat

superior or vicarious liability.”); Gonzalez v. Reno, 325 F.3d 1228, 1234 (11th Cir. 2003)
(concluding officials are not liable on the basis of respondeat superior or vicarious
liability); Hartley v. Parnell, 193 F.3d 1263, 1269 (11th Cir. 1999), citing Belcher v. City
of Foley, 30 F.3d 1390, 1396 (11th Cir. 1994) (holding 42 U.S.C. § 1983 does not allow a
plaintiff to hold officials liable for the actions of other officials under either a theory of

respondeat superior or vicarious liability.). “[E]ach Government official, his or her title
notwithstanding, is only liable for his or her own misconduct.” Iqbal, 556 U.S. at 677.
Thus, liability could attach to defendants Valenza, Rafferty, Brazier, Downs and Champion
only if they “personally participate[d] in the alleged unconstitutional conduct or [if] there
is a causal connection between [his] actions . . . and the alleged constitutional deprivation.”

Cottone, 326 F.3d at 1360. Since these defendants did not participate in the provision of
medical treatment to Russ, the court will address whether a causal connection existed.
To establish the requisite causal connection and therefore avoid entry of summary
judgment in favor of defendants Valenza, Rafferty, Brazier, Downs and Champion, Russ
must present sufficient evidence which would be admissible at trial of either “a history of
widespread abuse [that] put[] [defendants Valenza, Rafferty, Brazier, Downs and

Champion] 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 [the alleged constitutional violation],
or . . . facts [that] support an inference that [Valenza, Rafferty, Brazier, Downs and
Champion] directed [the medical defendants] to act unlawfully, or knew that [they] 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 Russ has failed to meet this burden.
The record before the court contains no evidence to support an inference that
defendants Valenza, Rafferty, Brazier, Downs and Champion directed the medical
defendants to act unlawfully or knew that they would act unlawfully and failed to stop such
action. In addition, Russ has presented no evidence of obvious, flagrant or rampant abuse

of continuing duration in the face of which Valenza, Rafferty, Brazier, Downs and
Champion failed to take corrective action. Finally, the records before the court demonstrate
that the medical defendants did not act pursuant to a policy enacted by Valenza, Rafferty,
Brazier, Downs and Champion when deciding the course of medical treatment provided to
Russ; instead, they provided treatment to him in accordance with their professional

judgment. Thus, the requisite causal connection does not exist in this case as to defendants
Valenza, Rafferty, Brazier, Downs and Champion and their liability under the custom or
policy standard is likewise not justified. Moreover, “[i]n light of the Court’s determination
that there was no constitutional deprivation [as to the medical treatment provided to Russ],
there is no basis for supervisor liability.” Nam Dang, 871 F.3d at 1283, citing Gish v.
Thomas, 516 F.3d 952, 955 (11th Cir. 2008); Beshers v. Harrison, 495 F.3d 1260, 1264

n.7 (11th Cir. 2007).
3. Summation on Defendants’ Liability. For the foregoing reasons, the
defendants are entitled to qualified immunity from the plaintiff’s request for monetary
damages made against them in their individual capacities, the plaintiff is due no other relief
from the defendants and summary judgment is due to be granted in favor of the defendants
on the plaintiff’s claims alleging a violation of his constitutional rights ding deliberate

indifference to his medical needs.
V. 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. Other than the filing fee assessed to the plaintiff in this case, no costs be taxed.
On or before July 20, 2021 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 legal conclusions set
forth in the Recommendation of the Magistrate Judge shall bar a party from a de novo
determination by the District Court of these factual findings and legal conclusions 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) (“When the magistrate provides such notice and a
party still fails to object to the findings of fact and those findings are adopted by the district
court the party may not challenge them on appeal in the absence of plain error or manifest
injustice.”); Henley v. Johnson, 885 F.2d 790, 794 (11th Cir. 1989).

DONE this 6th day of July, 2021.

/s/ Charles S. Coody
UNITED STATES MAGISTRATE JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10630371. Public record. Not legal advice.