Rodgers v. Wexford Health Sources, Inc. (INMATE 1)

IN THE DISTRICT COURT OF THE UNITED STATES

FOR THE MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

SETH RODGERS, #306637, )

)

Plaintiff, )

)

v. ) CIVIL ACTION NO. 2:19-CV-501-MHT-SMD

)

WEXFORD HEALTH SOURCES, INC., )

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 on July 15, 2019, by

Seth Rodgers, a state inmate, in which he alleges that the Defendants acted with deliberate

indifference when they provided inadequate medical treatment for his gastrointestinal issues and

when they housed him in a dorm with no ventilation system2. Specifically, Rodgers alleges that

beginning in March 2018, when he was placed at Kilby, and continuing until the time he filed his

complaint, the Defendants have been deliberately indifferent to his medical and housing needs.

(Doc. 1-1 at pp. 1-2). He names no Correctional Defendants but names Wexford Health Services

and Dr. Wilcotte Rahming3, as Medical Defendants. (Doc. 1 at p. 1). He does not specify whether

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

process.

2 The undisputed evidence demonstrates that neither Dr. Rahming nor Wexford Health Sources, Inc. had

any involvement in Plaintiff’s dorm placement. Nor did these defendants have any authority concerning

the temperature, ventilation or dust levels in Kilby housing. (Doc. 19-8 at 4.) Accordingly, the Court

concludes that this housing claim is due to be summarily dismissed without further discussion.

3 The Court notes that the docket spells Dr. Rahming’s name incorrectly as “Dr. Wilcott Rhamning”.

Throughout this Recommendation the Court will use the spelling as stated in Dr. Wilcotte Rahming’s

affidavit. (Docs. 19-8 and 23-1).

he sues the Defendants in their individual or official capacities and seeks “parole in black and

white” and money damages. (Doc. 1 at p. 4). By Order dated July 17, 2019, this Court advised

the Plaintiff that this action would proceed solely against the Medical Defendants on his medical

claims, and if he wished to proceed on his claims for deliberate indifference based on his housing,

he could file a separate Section 1983 action. (Doc. 5).

The Defendants filed a special report, and a supplement thereto, and relevant evidentiary

materials in support of their reports, including affidavits, addressing the claims raised in the

complaint, as amended. In these documents, the Medical Defendants maintain they did not act

with deliberate indifference to Rodgers medical or housing needs. (Docs. 19, 23).

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

December 11, 2019, directing Plaintiff to file a response to each of the arguments set forth by the

Defendants in their reports, supported by affidavits or statements made under penalty of perjury

and other evidentiary materials. (Doc. 24). The order specifically cautioned that “unless within

fifteen (15) days from the date of this order a party . . . presents sufficient legal cause why

such action should not be undertaken . . . the court may at any time [after expiration of the time

for the plaintiff filing a response to this order] and without further notice to the parties (1) treat

the special reports and any supporting evidentiary materials as a motion for summary judgment

and (2) after considering any response as allowed by this order, rule on the motion for summary

judgment in accordance with the law.” (Doc. 24 at p. 3). Rodgers filed a sworn response to this

order on February 3, 2020. (Doc. 25). Pursuant to the directives of the Order entered December

11, 2019, (Doc. 24), the Court now treats the Defendants’ special reports (Docs. 19, 23) as motions

for summary judgment and concludes that summary judgment is due to be granted in favor of the

Defendants.

II. STANDARD OF REVIEW

Under Rule 56(a) of the Federal Rules of Civil Procedure, a reviewing court must grant a

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

material fact and that the moving party is entitled to a judgment as a matter of law. Fed. R. Civ. P.

56(a). A dispute “is ‘genuine’ if the record as a whole could lead a reasonable trier of fact to find

for the nonmoving party. . . . [A dispute] is ‘material’ if it might affect the outcome of the case

under the governing law.” Redwing Carriers, Inc. v. Saraland Apartments, 94 F.3d 1489, 1496

(11th Cir. 1996) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).

The party asking for summary judgment always bears the initial responsibility of informing

the district court of the basis for its motion and alerting the court to portions of the record that

support the motion. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). However, once the movant

has satisfied this burden, the nonmovant is similarly required to cite portions of the record showing

the existence of a material factual dispute. Id. at 324. To avoid summary judgment, the nonmovant

“must do more than simply show that there is some metaphysical doubt as to the material facts.”

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In determining

whether a genuine dispute for trial exists, the court must view all the evidence in the light most

favorable to the nonmovant and draw all justifiable inferences from the evidence in the nonmoving

party’s favor. McCormick v. City of Fort Lauderdale, 333 F.3d 1234, 1243 (11th Cir. 2003); see

Fed. R. Civ. P. 56(a).

III. FACTS

The Plaintiff brings a claim for deliberate indifference due to the Defendants failure to

properly treat his Crohn’s disease and other conditions. In their special report the Defendants deny

they have acted with deliberate indifference to Rodgers’ treatment related to his gastrointestinal

issues. Rather, the Defendants assert that medical personnel at Kilby have provided treatment to

Rodgers in accordance with their professional judgment. They further assert that they referred

Rodgers to outside gastroenterology specialists for treatment and, ultimately surgery. Based on the

surgeon’s reports, an additional referral was neither necessary nor warranted. In addressing these

claims, Defendant Dr. Wilcotte Rahming, a medical doctor employed by Defendant Wexford

Health Services, Inc., with expertise in Gastroenterology and Internal Medicine, testified as

follows:

I am a medical doctor licensed to practice in the State of Alabama. My medical

expertise is in Gastroenterology and Internal Medicine. I specialize in inflammatory bowel

disease. I am employed by Wexford Health Sources, Inc. I am Medical Director at Kilby

Correctional Facility, a facility of the Alabama Department of Corrections. I was so

employed during the Plaintiffs most recent incarceration at Kilby Correctional Facility.

Wexford Health Sources Inc. holds the contract with the Alabama Department of

Corrections to provide health care to inmates incarcerated within Alabama Department of

Corrections facilities.

I am familiar with the Plaintiff and have reviewed the Plaintiff's medical records

that I have access to. I recall providing medical care to the Plaintiff and interacting with

the Plaintiff. The Plaintiff's relevant medical records were attached to my previous

declaration.

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 deprived of adequate medical care by me during his incarceration at

Kilby Correctional Facility.

Inmates needing medical care are examined at the medical clinic located inside

Kilby Correctional Facility. The medical professionals run the medical clinic and all

instructions of the medical personnel are followed by jail staff.

Plaintiff was examined by me multiple times during his most recent incarceration

at Kilby Correctional Facility, 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.

The first time I examined the Plaintiff he had previously been diagnosed with

Crohn’s disease, a type of inflammatory bowel disease, and had an ostomy bag in place.

Plaintiff was under-weight at my first examination because his disease was not under

control. Throughout my treatment of the Plaintiff he wanted immediate surgery to heal his

Crohn's disease. Plaintiff wanted to have a procedure that reversed the ostomy bag

placement. I continually explained to Plaintiff that his disease could not be healed with

surgery but that it must be treated with medications.

When I first began treating the Plaintiff, he followed my instructions for controlling

his disease. However, during a lengthy portion of Plaintiffs incarceration at Kilby

Correctional Facility he was non-complaint with my instructions regarding treating his

disease. Plaintiff took his prescribed medications on an inconsistent basis. Plaintiff would

refuse to take his prescribed medication. Multiple medical records of the Plaintiff document

his noncompliance. Thus, the severity of the symptoms of his disease greatly increased and

Plaintiff lost weight.

I explained to Plaintiff multiple times that his disease must be brought under control

and managed with medications in order for him to have the surgery he desired. I also

continually explained to Plaintiff that Crohn's disease is a chronic life-long disease that

surgery cannot cure. Several times Plaintiff became irate during my discussions with him.

Inmates at Kilby Correctional Facility have autonomy in taking their medications. Staff

does not force inmates to take medications. It was Plaintiff’s responsibility to take his

medications when they were distributed by medical staff. When Plaintiff's non-compliance

was increased he would be moved to the Health Care Unit in order to get better compliance

with taking medications.

From my review of Plaintiffs records, Plaintiff’s ostomy bag was placed at UAB

hospital on September 17, 2017. Plaintiff arrived at Kilby Correctional Facility from the

Geneva County, Alabama Jail on March 16, 2018. Plaintiffs Chron's disease was not well

controlled at his arrival.

During Plaintiffs incarceration, he was prescribed the following relevant

medications: acetaminophen for pain, docusate to relieve constipation, the

immunosuppresants Azathioprine and Methotrexate, Mesalamine to treat inflammation of

ulcerative colitis, Prednisone to reduce inflammation, the gut antispasmodic Dicyclomine,

Escitalopram for depression and anxiety, Boost nutritional supplement and various

antibiotics. Also, Plaintiff was provided with colostomy supplies. Two of the medications

I prescribed Plaintiff to treat his Chron's disease by reducing inflammation caused a

negative skin reaction in the form of a rash. Thus, Humira and Remicade had to be

discontinued and other medications used. Plaintiff was on an enhanced calorie and protein

diet at Kilby. However, Plaintiff often stated that he refused to eat the food served to him.

To my knowledge, each medication prescribed to Plaintiff was attempted to be distributed

to Plaintiff by medical staff. The specific dates Plaintiff refused medications are not known

to me. Plaintiff refused to take his medications a vast number of times throughout his

incarceration and discussed this issue with me multiple times. Only Plaintiff would know

each of these dates of non-compliance. This continual non-compliance with instructions

for his medications kept him from stabilizing his Chron's disease for many months.

In 2018, I was scheduled to examine Plaintiff several times a month as part of his

placement in the Chronic Disease Clinic. However, Plaintiff refused to be seen on August

27, 2018, September 26, 2018, December 19, 2018, and January 16, 2019.

On December 10, 2018, I examined Plaintiff as part of the Chronic Disease Clinic.

Plaintiff admitted non-compliance with taking his medications and promised to take the

medications.

On November 28, 2018, I sent Plaintiff to UAB to be reevaluated by a surgeon.

This physician noted Plaintiff’s non-compliance with prescribed medications and

recommended continued medical treatment for Crohn's disease and did not recommend

surgery as Plaintiff was not medically stable.

On February 20, 2019, Plaintiff was hospitalized at Jackson Hospital in

Montgomery because he had become malnourished as a result of refusing to take his

medications. Upon Plaintiffs release from Jackson Hospital on March 4, 2019, he was

assigned a bed in the Healthcare Unit at Kilby.

In my March and April 2019 examinations of Plaintiff, I observed some slow

improvement due his taking his medications on a more regular schedule. However, at my

May 21, 2019, examination Plaintiff was again refusing to take his medications and

insisting on surgery.

On June 24, 2019, Plaintiff was briefly transferred to Easterling Correctional

Facility. In July 2019, Plaintiff was admitted to the Jackson Hospital ER from Dale Medical

Center due to pain in his abdomen. Plaintiff was then transferred back to Kilby.

Plaintiff was discharged from the Healthcare Unit on July 26, 2019, because he was

medically stable and able to return to a dorm. Plaintiff had gained a significant amount of

weight in 2019 due to compliance with medications.

Plaintiff continually complained about wanting surgery. Because Plaintiff was

medically stable enough for surgery, I called UAB to find a specialist to evaluate Plaintiff.

In June 2019, I found a doctor at UAB that does inflammatory bowel surgery that would

examine Plaintiff.

Plaintiff was transported to UAB on July 30, 2019, to be evaluated by George

Kennedy, M.D. On August 26, 2019, Plaintiff had surgery to reverse the ostomy that had

been performed on Plaintiff before he became my patient.

Plaintiff was transferred to an Alabama Department of Corrections facility closer

to UAB before this surgery. I have not observed any staff members of Wexford Health

Sources, Inc. or the Alabama Department of Corrections take any deliberate action to

block, deny, or delay access of the Plaintiff 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.

Specifically, I have taken no action to restrict, block or delay Plaintiff’s access to

any medical provider or any medical treatment. I have never refused to treat Plaintiff for

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

regarding Crohn's disease. Plaintiff has been treated with the standard of care for Crohn's

disease and was examined frequently in the medical unit. At no time, was Plaintiff denied

adequate medical care during his incarceration in Kilby Correctional Facility. At no time

was the Plaintiff's necessary medical treatment delayed or denied.

I have had no contact with the Plaintiff or had any involvement in the Plaintiffs

medical care since his transfer out of Kilby Correctional Facility. I have no involvment or

authority over the temperature ventilation or dust levels in the housing units at Kilby

Correctional Facility.

Medical records establish that Plaintiff suffered no unconstitutional treatment while

confined in Kilby Correctional Facility. It is my opinion, based upon my education; training

and experience, as well as my personal knowledge of the Plaintiff, that at all times Plaintiff

received medical care within the standard of care of physicians practicing medicine in the

State of Alabama.

(Doc. 23-1 at pp. 1-7). The medical records compiled contemporaneously with the treatment

provided to Rodgers support the affidavit submitted by Dr. Rhaming.

III. DISCUSSION4

A. Deliberate Indifference Generally

The law is well-settled that establishment of both objective and subjective elements are

necessary to demonstrate a violation of the protections afforded by the Eighth Amendment.

Caldwell v. Warden, FCI Talladega, 748 F.3d 1090, 1099 (11th Cir. 2014). With respect to the

requisite objective elements of a deliberate indifference claim, an inmate must first show “an

4 The court limits its review to the allegations set forth in the complaint. (Doc. 1). Gilmour v. Gates,

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

through argument in a brief opposing summary judgment.”); Ganstine v. Secretary, Florida Dept. of

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

at the summary judgment stage by raising a new claim or presenting a new basis for a pending claim);

Chavis v. Clayton County School District, 300 F.3d 1288, 1291 n. 4 (11th Cir. 2002) (refusing to address a

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

objectively substantial risk of serious harm . . . exist[ed]. Second, once it is established that the

official [was] aware of this substantial risk, the official must [have] react[ed] to this risk in an

objectively unreasonable manner.” Marsh v. Butler Cnty. Ala., 268 F.3d 1014 at 1028–29 (11th

Cir. 2001) abrogated on other grounds by Bell Atl. Corp v. Twombly, 550 U.S. 544 (2007). As to

the subjective elements, “the official must both be aware of facts from which the inference could

be drawn that a substantial risk of serious harm exists, and he must also draw the inference. . . .

The Eighth Amendment does not outlaw cruel and unusual ‘conditions’; it outlaws cruel and

unusual ‘punishments.’ . . . [A]n official’s failure to alleviate a significant risk that he should

have perceived but did not, while no cause for commendation, cannot under our cases be

condemned as the infliction of punishment.” Farmer v. Brennan, 511 U.S. 825, 837–38 (1994);

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

that the defendant should have perceived the risk, but did not, is insufficient.”); Cottrell v.

Caldwell, 85 F.3d 1480, 1491 (11th Cir. 1996) (same).

The conduct at issue “must involve more than ordinary lack of due care for the prisoner’s

interests or safety. . . . It is obduracy and wantonness, not inadvertence or error in good faith, that

characterize the conduct prohibited by the Cruel and Unusual Punishments Clause, whether that

conduct occurs in connection with establishing conditions of confinement, supplying medical

needs, or restoring official control over a tumultuous cellblock.” Whitley v. Albers, 475 U.S. 312,

319 (1986).

To be deliberately indifferent, Defendants must have been “subjectively aware of

the substantial risk of serious harm in order to have had a ‘“sufficiently culpable

state of mind.”’” Farmer, 511 U.S. at 834-38, 114 S.Ct. at 1977-80; Wilson v.

Seiter, 501 U.S. 294, 299, 111 S.Ct. 2321, 2324-25, 115 L.Ed.2d 271 (1991). . . .

Even assuming the existence of a serious risk of harm and legal causation, the

prison official must be aware of specific facts from which an inference could be

drawn that a substantial risk of serious harm exists - and the prison official must

also “draw that inference.” Farmer, 511 U.S. at 837, 114 S.Ct. at 1979.

Carter v. Galloway, 352 F.3d 1346, 1349 (11th Cir. 2003). A defendant’s subjective knowledge

of the risk must be specific to that defendant because “imputed or collective knowledge cannot

serve as the basis for a claim of deliberate indifference. . . . Each individual defendant must be

judged separately and on the basis of what that person [knew at the time of the incident].” Burnette

v. Taylor, 533 F.3d 1325, 1331 (11th Cir. 2008). Moreover, “[t]he known risk of injury must be a

strong likelihood, rather than a mere possibility before a [state official’s] failure to act can

constitute deliberate indifference.” Brown v. Hughes, 894 F.2d 1533, 1537 (11th Cir. 1990)

(citations and internal quotation marks omitted). Thus, “[m]erely negligent failure to protect an

inmate from attack does not justify liability under section 1983.” Id.

B. Deliberate Indifference to Medical Needs.

Rodgers alleges that the Medical Defendants have acted with deliberate indifference to his

conditions related to his Crohn’s disease. The Defendants deny these claims. Specifically, Dr.

Wilcotte Rhaming, a medical doctor who is employed by Wexford Health Sources, Inc., and

specializes in Gastroenterology and Internal Medicine asserts that medical personnel at Kilby have

provided treatment to Rodgers in accordance with their professional judgment. He further asserts

that the first time he examined Rodgers, he was under weight and had been previously diagnosed

with Crohn’s disease and had an ostomy bag in place. Throughout Dr. Rhaming’s treatment of

Plaintiff, Rodgers repeatedly requested surgery to reverse the ostomy bag placement. Dr. Rhaming

continually explained to Rodgers that his disease must be first controlled and managed with

medications prior to having surgery. A good portion of the time Dr. Rhaming treated Plaintiff at

Kilby he was non-compliant and a number of times failed to show for scheduled appointments.

(Docs. 19-8 and 23-1).

Ultimately in November 2018, Dr. Rahming sent Plaintiff to UAB to be reevaluated by a

surgeon. The surgeon did not recommend surgery; rather he recommended that Plaintiff’s non-

surgical treatments be intensified. In February 2019, Plaintiff was hospitalized at Jackson Hospital

in Montgomery because he was malnourished as a result of refusing to follow instructions for

managing his Crohn’s disease. Upon release from the hospital in March 2019, he was assigned a

bed in the healthcare unit at Kilby. He was discharged from the healthcare unit in July 2019

because he was medically stable. Id.

In response to Plaintiff’s continued demands for surgery, in June 2019, Dr. Rahming

referred Rodgers to a doctor at UAB for examination to determine whether he could tolerate

inflammatory bowel surgery. In August 2019, the Plaintiff had surgery to reverse the ostomy that

had been performed on Plaintiff before he became Dr. Rahming’s patient. In Dr. Rahming’s

opinion, based upon his education, training, experience, and personal knowledge of the Plaintiff,

Rodgers at all times received medical care within the standard of care of physicians practicing

medicine in the State of Alabama. Id.

To prevail on a claim of denial of medical treatment, an inmate must show the defendant

acted with deliberate indifference to a serious medical need. Estelle v. Gamble, 429 U.S. 97 (1976);

Taylor v. Adams, 221 F.3d 1254 (11th Cir. 2000). Medical treatment of prisoners 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.” Harris v. Thigpen, 941 F.2d 1495,

1505 (11th Cir. 1991) (quotation marks and citation omitted). A prison official is not “deliberately

indifferent” unless he “knows of and disregards an excessive risk to inmate health or safety.”

Farmer v. Brennan, 511 U.S. 825, 837 (1994); Adams v. Poag, 61 F.3d 1537, 1546 (11th Cir.

1995) (finding, under Estelle, a plaintiff must establish “not merely the knowledge of a condition,

but the knowledge of necessary treatment coupled with a refusal to treat properly or a delay in

such treatment”) (citation and internal quotations omitted). “A defendant who unreasonably fails

to respond or refuses to treat an inmate’s need for medical care or one who delays necessary

treatment without explanation or for non-medical reasons may also exhibit deliberate

indifference.” Melton v. Abston, 841 F.3d 1207, 1223 (11th Cir. 2016). Within the Eleventh

Circuit, medical malpractice and negligence do not constitute deliberate indifference:

Instead, something more must be shown. Evidence must support a conclusion that

a prison physician’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).

Thus, to demonstrate deliberate indifference to a serious medical need, Rodgers must show

(1) a serious medical need; (2) the defendants’ deliberate indifference to that need; and (3)

causation between that indifference and his injury. Mann v. Taser Int’l, Inc., 588 F.3d 1291, 1306–

1307 (11th Cir. 2009). To make this showing, Rodgers must 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

v. Foley, 182 F.3d 1248, 1255 (11th Cir. 1999) (finding that for liability to attach defendant must

know and disregard excessive risk to prisoner’s health or safety).

Regarding the objective component, a plaintiff must first show an objectively serious

medical need, followed by a response by defendants inadequate enough to constitute an

unnecessary and wanton infliction of pain, not merely accidental inadequacy, negligence in

diagnosis or treatment, or even medical malpractice actionable under state law. Taylor, 221 F.3d

at 1258 (citations omitted). For the required subjective intent, a plaintiff must show the public

official acted with an attitude of “deliberate indifference,” which requires two things: an awareness

of facts from which the inference could be drawn that a substantial risk of serious harm exists and

drawing of the inference. Taylor, 221 F.3d at 1258 (internal citations and quotations omitted).

Thus, deliberate indifference occurs only when a defendant knows of and disregards an

excessive risk to inmate health or safety; is aware of facts from which the inference could be drawn

that a substantial risk of serious harm exists; and draws that inference. Farmer, 511 U.S. at 837.

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. Further, neither a difference of opinion on appropriate

treatment nor the fact that the treatment was ineffective gives rise to a deliberate indifference claim.

Hamm v. DeKalb Cty., 774 F.2d 1567, 1575 (11th Cir. 1985) (holding mere fact that inmate desires

different mode of diagnosis does not amount to deliberate indifference); Adams, 61 F.3d at 1545

(stating that whether additional diagnostic techniques or forms of treatment should have been used

“is a classic example of a matter for medical judgment” and not a basis for Eighth Amendment

liability) (citation omitted). Indeed, 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 Det. Facility, 646

F. App’x 777, 780 (11th Cir. 2016).

Finally, in determining whether a delay in medical treatment constitutes deliberate

indifference, courts consider the seriousness of the medical need, whether delay worsened the

medical condition, and the reason for the delay. See Goebert v. Lee Cty., 510 F.3d 1312, 1327

(11th Cir. 2007); Farrow v. West, 320 F.3d 1235, 1247 (11th Cir. 2003). Additionally, when an

inmate complains that a delay in medical treatment rises to the level of a constitutional violation,

he “must place verifying medical evidence in the record” establishing the detrimental effect caused

by the delay. Surber v. Dixie Cty. Jail, 206 F. App’x 931, 933 (11th Cir. 2006) (internal citation

omitted). Finally, the subjective knowledge of risk must be specific to that defendant because

“imputed or collective knowledge cannot serve as the basis for a claim of deliberate indifference.

. . . Each individual defendant must be judged separately and on the basis of what that person

[knew at the time of the incident].” Burnette v. Taylor, 533 F.3d 1325, 1331 (11th Cir. 2008)

(citations omitted).

1. Defendant Dr. Wilcotte Rahming

Rodgers asserts that Dr. Wilcotte Rahming denied him adequate medical treatment. Dr.

Rahming adamantly denies he or any other medical professional associated with Wexford Health

Sources, Inc. acted with deliberate indifference to Rodgers’ medical needs during the time relevant

to this complaint or at any other time. Instead, Dr. Wilcotte Rahming submitted two affidavits in

response to the complaint filed by Rodgers which summarized the medical record and reported

that the Plaintiff received continued treatment for his Crohn’s disease at Kilby prior to and after

his surgery, which was ultimately performed by a free-world surgeon, following repeated

evaluations and treatment by outside specialists. (Docs. 19-8 and 23-1). The Court’s independent

review of the medical records confirms the testimony of Dr. Rahming and the treatment

provided to Plaintiff for his Crohn’s disease and other medical conditions. (Doc. 19-1 through

19-7).

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

treatment undertaken by Dr. Rahming did not violate Rodgers’ constitutional rights. Specifically,

there is no evidence upon which the Court could conclude that any member of the medical staff

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

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

the evidence before the Court demonstrates that Plaintiff has received consistent medical treatment

for his Crohn’s disease and other conditions. Whether medical personnel “should have [utilized]

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 citation omitted). In addition, to the extent

Rodgers complains that his physicians should have pursued some other mode of treatment,

including surgery, this allegation does not “rise beyond negligence to the level of [deliberate

indifference].” Howell v. Evans, 922 F.2d 712, 721 (11th Cir. 1991); Hamm, 774 F.2d at 1505

(holding that inmate’s desire for some other form of medical treatment does not constitute

deliberate indifference violative of the Constitution); Franklin, 662 F.2d at 1344 (holding that

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

Eighth Amendment).

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

deliberate indifference. In addition, Rodgers has failed to present any evidence showing that the

manner in which Dr. Rahming addressed his condition created a substantial risk to his health that

the attending health care personnel consciously disregarded. Indeed, to the extent that Rodgers

alleges that he was delayed surgery to reverse his ostomy bag, the court likewise concludes this

claim fails because Plaintiff has not “place[d] verifying medical evidence in the record”

establishing the detrimental effect caused by the delay. Surber, 206 F. App’x at 933. Rather, the

undisputed evidence demonstrates that Plaintiff had surgery when his condition was stable enough

to allow it. Prior to that, his Crohn’s disease was monitored and treated by Dr. Rahming, other

Wexford Health Sources, Inc providers, and outside specialists. The record is therefore devoid of

evidence—significantly probative or otherwise—showing that any medical professional acted

with deliberate indifference to a serious medical need experienced by Rodgers. Consequently,

summary judgment is due to be granted in favor of Dr. Rahming.

2. Wexford Health Sources, Inc.

It is well settled that a corporation may not be held liable under 42 U.S.C. § 1983 on the

basis of respondeat superior. See Buckner v. Toro, 116 F. 3d 450 (11th Cir. 1986); Monell v. Dept.

of Soc. Serv., 436 U.S. 658 (1978). Instead, a plaintiff must prove that the purported delay or

denial of his medical treatment is the product of an official corporate policy, practice or custom

that denied him his constitutional rights. See Berdin v. Duggan, 701 F. 2d 909, 914 (11th Cir.

1983). “To establish a policy or custom, it is generally necessary to show a persistent and wide-

spread practice.” See Wayne v. Jarvis, 197 F. 3d 1098, 1105 (11th Cir. 1999), overruled on other

grounds Manders v. Lee, 338 F. 3d 1304 (11th Cir 2005). The Plaintiff has failed to offer any

evidence that a policy or custom of Wexford contributed in any way to the deliberate indifference

alleged in his complaint. Furthermore, the court has previously concluded that the Plaintiff’s

deliberate indifference claims failed as a matter of law. Accordingly, summary judgment is due

to be granted in favor of Defendant Wexford Health Sources, Inc.

IV. CONCLUSION

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

1. The Defendants’ motions for summary judgment (Docs. 19 and 23) be GRANTED.

2. Judgment be GRANTED in favor of the Defendants.

3. This case be DISMISSED with prejudice.

4. Costs be taxed against the Plaintiff.

On or before May 31, 2022, the parties may file objections to this Recommendation. A

party must specifically identify the factual findings and legal conclusions in the Recommendation

to which the objection is made; frivolous, conclusive, or general objections will not be considered.

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

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

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

challenge on appeal the district court’s order based on unobjected-to factual and legal conclusions”

except upon grounds of plain error if necessary in the interests of justice. 11th Cir. R. 3-1; see

Resolution Trust Co. v. Hallmark Builders, Inc., 996 F.2d 1144, 1149 (11th Cir. 1993); Henley v.

Johnson, 885 F.2d 790, 794 (11th Cir. 1989).

DONE this 17th day of May, 2022.

/s/ Stephen M. Doyle

UNITED STATES MAGISTRATE JUDGE