Chapman v. Tehum Care Services, Inc. (INMATE 2)

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

MICHAEL CHAPMAN, )

AIS 271129, )

)

Plaintiff, )

)

v. ) CASE NO. 2:20-CV-7-WKW-CSC

)

JEFFERSON DUNN – )

COMMISSIONER A.D.O.C., et al., )

)

Defendants. )

RECOMMENDATION OF THE MAGISTRATE JUDGE

I. INTRODUCTION

Pro se Plaintiff Michael Chapman, an indigent state inmate, files this 42 U.S.C. §

1983 civil rights complaint seeking relief for certain claimed violations of his federally

protected rights. This action involves a dispute over the adequacy of medical care and

treatment Plaintiff received while confined at the Draper Correctional Facility (“Draper”).

Plaintiff files suit against Jefferson Dunn, former Commissioner for the Alabama

Department of Corrections (“ADOC”), Corizon, LLC,1 Ruth Naglich, former Associate

Commissioner of Health for ADOC, Mary Cooks, former Warden of Draper, Michele

Sagers Copeland, a Registered Nurse formerly employed by Corizon, and Charlie Waugh,

a Certified Registered Nurse Practitioner. Doc. 10.

1 Identified by Plaintiff as “Corizon Medical.” See Doc. 10. Corizon held the contract with the Alabama

Department of Corrections to provide health care services to Alabama inmates from November 1, 2007 to

March 31, 2018. Doc. 35-1 at 2. The current holder, Wexford, has held the contract since April 1, 2018. Id.

Defendants filed Special Reports with supplements (Docs. 13, 29, 35, 50, 51, 53,

55) which include relevant evidentiary materials in support, including declarations and

medical records addressing the claims presented by Plaintiff. In their reports Defendants

deny they violated Plaintiff’s constitutional rights.

After reviewing the special reports and supplements the Court issued an Order on

August 14, 2020, requiring Plaintiff to respond to the reports as supplemented with

affidavits or statements made under penalty of perjury and other evidentiary materials.

Doc. 36; see also, Docs. 52, 54. The Order specifically cautioned that, unless a party

presented sufficient legal cause, the Court would treat the reports as motions for summary

judgment, and rule on the motions after considering any response. Id. at 2–3. On February

3, 2021, Plaintiff filed a response.2 Doc. 43. The Court subsequently directed Defendants

to supplement their reports and granted Plaintiff an opportunity to respond (see Docs. 49,

52, 54), but he filed no further response. Pursuant to the August 14, 2020, Order, the Court

now treats Defendants’ special reports with supplements as motions for summary judgment

and concludes they are due to be granted.

2 In accordance with applicable federal law, the Court limits its discussion to the claims identified in the

Amended Complaint. Doc. 10. Gilmour v. Gates, McDonald & Co., 382 F.3d 1312, 1315 (11th Cir. 2004)

(holding that “[a] plaintiff may not amend his complaint through argument in a brief opposing summary

judgment.”); Ganstine v. Sec’y, Fla. Dep’t. of Corr., 502 F. App’x 905, 909-10 (11th Cir. 2012) (holding

that a 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 Cnty. Sch. Dist., 300 F.3d 1288, 1291 n. 4

(11th Cir. 2002) (noting that district court did not err in refusing to address a new theory raised during

summary judgment because the plaintiff had not properly amended the complaint with respect to such

theory).

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).

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

nonmoving party and pro se complaints are entitled to liberal interpretation, a pro se litigant

does not escape the burden of sufficiently establishing a genuine dispute of material fact.

Beard v. Banks, 548 U.S. 521, 525 (2006); Brown v. Crawford, 906 F.2d 667, 670 (11th

Cir. 1990). Thus, a plaintiff’s pro se status alone does not mandate this Court disregard

elementary principles of production and proof in a civil case.

III. BACKGROUND

Plaintiff commenced this pro se action challenging Defendants’ alleged violation

of his Eighth Amendment rights for failing to provide adequate medical care during his

incarceration at Draper. This matter is before the Court on Plaintiff’s Amended

Complaint filed on April 21, 2020.3 Doc. 10. Plaintiff identifies January 4, 2018, as the

date the challenged injury occurred (Doc. 10 at 2) but notes for purposes of the statute

of limitations this action should be considered filed on the date he signed it which in this

case was December 23, 2019.4 Doc. 10-1 at 4; see also Doc. 1 at 4.

In the amended Complaint, Plaintiff alleges that Copeland and Waugh exhibited

3 Plaintiff was directed to file an amended complaint to cure deficiencies found in his original complaint.

See Doc. 7. Plaintiff’s amended complaint (Doc. 10) supersedes his original complaint thus his original

pleading was abandoned by the amended complaint and became “a legal nullity.” See Hoefling v. City of

Miami, 811 F.3d 1271, 1277 (11th Cir. 2016); Pintando v. Miami-Dade Hous. Agency, 501 F.3d 1241, 1243

(11th Cir. 2007) (observing that an amended pleading supersedes the former pleading).

4 The Court agrees. Although the Clerk stamped the Complaint “received” on January 6, 2020, Plaintiff

verified execution of the original complaint on December 23, 2019. Doc. 1 at 4. Thus, the latter date is the

earliest Plaintiff could have placed the original complaint in the prison’s mail system. A pro se inmate’s

complaint is deemed filed under “the mailbox rule” the date he places it in the facility’s mail system for

delivery to the court. Houston v. Lack, 487 U.S. 266, 271–72 (1988); Adams v. United States, 173 F.3d

1339, 1340–41 (11th Cir. 1999); Garvey v. Vaughn, 993 F.2d 776, 780 (11th Cir. 1993). The Court

therefore considers December 23, 2019, as the filing date of this action.

deliberate indifference to his medical needs for failing to respond to his sick call requests,

grievances, and grievance appeals. Doc. 10 at 2–3. Plaintiff alleges that Dunn, Cooks,

Naglich and Corizon exhibited deliberate indifference by not taking any action after he

sent letters and copies of grievances detailing his receipt of inadequate medical care and

treatment. Id. at 2–3. For relief, Plaintiff requests damages and injunctive relief. Id. at 4,

5–6.

In an attachment to his form Amended Complaint Plaintiff expounds on his

claims. See Doc. 10-1. He asserts that beginning in December of 2014 Copeland began

exhibiting deliberate indifference by denying or ignoring his need for cataract surgery

which he claims is an ongoing issue. Id. at 1. Plaintiff received cataract surgery on his

left eye in October 2016 and had several post-surgery follow-ups. Id. at 2. At a follow-

up visit in February 2017, the free-world physician who performed Plaintiff’s cataract

surgery informed him more post-op surgery was needed on his left eye which

Corizon/ADOC had approved. Id. However, Plaintiff asserts he has not seen his free-

world eye physician since that time because Copeland would not respond to his

grievances. Id.

Plaintiff further complains that he received inadequate medical care and treatment

regarding complaints of sinus and ear infections. Doc. 10-1 at 2. After developing an ear

infection in June of 2017 Plaintiff sought medical treatment but contends the sick calls and

grievances he submitted towards this effort went unanswered. Id. During a scheduled

chronic care visit in August 2017, Waugh informed Plaintiff his ears were “pink and rosy”

and there was nothing wrong with them. Id. at 2–3. Plaintiff asked Waugh to “put [him] in

for scheduling on [his] eyes,” but the nurse told him to put in a sick call request about his

ears and eyes. Id. at 3. Although Plaintiff maintains he “had shown Ms. Waugh that puss

was coming out of both ears and continued to do so after [he] saw her in August 2017 all

the way up until December 31, 2017, when [he] went into a coma” for which he underwent

emergency surgery for a brain infection,5 he further describes the condition of his ears prior

to that time as a “run-of-the-mill” ear infection with symptoms of swimmer’s ear and

diminished hearing. Id.

IV. FACTS FROM PLAINTIFF’S RECORDS

Dr. Hugh Hood is the Regional Medical Director for Wexford Health Sources, Inc.

Doc. 53-1 at 2. Wexford presently holds the contract with the ADOC to provide health care

and mental health care related services to inmates in ADOC custody. Id. Dr. Hood avers

that Waugh saw Plaintiff on August 10, 2017, at a chronic care visit where he complained

about an ear infection. Docs. 53-1 at 3; 55-1 at 3. On examination of Plaintiff’s ears Waugh

observed no signs of an ear infection and told Plaintiff his tympanic membranes were

normal at that time.6 Id. Waugh did not see Plaintiff after August 10, 2017 for any

complaints of an ear infection.7 Id. On January 1, 2018, Dr. Karen Stone examined Plaintiff

at the health care unit when he was brought in for an altered mental status or possible stroke

5 Plaintiff was treated for mastoiditis and a right temporal abscess. See Doc. 53-1 at 61–64.

6 Plaintiff’s medical chart reflects Waugh noted “TM; bilat. Pearly white with no discharge.” Doc. 55-1 at

6. A healthy eardrum can be pearly white or gray in color. Available at https://my.clevelandclinic.org/.

7 Dr. Hood testifies that Wexford does not have copies of sick calls in Plaintiff’s medical chart which he

submitted between June 1, 2017, and January 1, 2018. Doc. 55-1 at 3. During that time period Wexford was

not the contract medical provider. See Id. at 2.

Id. at 3, 10. Dr. Stone had Plaintiff transported to Jackson Hospital in Montgomery,

Alabama. Id. & Doc. 55-1 at 3–4. Plaintiff was subsequently transported to a hospital in

Birmingham, Alabama, where he was diagnosed with and treated for mastoiditis and an

intracranial abscess and has been “high acuity” since then. Id.; see also Doc. 53-1 at 61–

104.

Dr. Hood states that Plaintiff underwent cataract surgery on his left eye in October

2016. Doc. 55-1 at 4, 11. And although Plaintiff’s right eye has been diagnosed with a

cataract, that diagnosis is not considered a medical emergency and thus not considered

medically necessary. Doc. 53-1 at 3–4, 25, 34, 60. If Plaintiff suffered from glaucoma or

diabetic retinopathy Dr. Hood states Plaintiff’s right-sided cataract would be considered a

medical emergency and therefore medically necessary. Id. at 4. Plaintiff, however, does

not presently have either condition and surgery for the right-sided cataract is therefore

presently not medically necessary. Id.

Dr. Hood avers that Plaintiff is seen regularly for vision issues which includes

follow ups for the cataract surgery performed on his left eye in 2016. Doc. 55-1 at 7, 11–

35. Dr. Hood further states, and Plaintiff’s medical records show, that Dr. Sebastian

Heersink examined Plaintiff at a follow up appointment on February 14, 2017. Doc. 55-1

at 4, 15, 16. Dr. Bradford, an optometrist, evaluated Plaintiff’s eyes on October 18, 2018.

Id.; Doc. 55-1 at 4, 18, 20. Dr. Heersink evaluated Plaintiff on March 4, 2020. Doc. 55-1

at 4, 21, 23, 24, 25–31. Plaintiff’s prison medical chart indicates “Here for follow up for

his left eye. Dr. Heersink told him needs *** for CBVA (Best Corrective Visual Accuity).

Dr. Bradford has for *** reasons told him his left eye was fine.” Doc. 55-1 at 4, 21. Dr.

Bradford evaluated Plaintiff’s left eye on March 11, 2020, and Dr. Heersink evaluated

Plaintiff for cataract surgery at a follow up appointment on May 4, 2021. Doc. 55-1 at 5,

22–31. Plaintiff had an eye evaluation at the Dothan Eye Center on October 1, 2021, and

Dr. Bradford examined Plaintiff again on April 25, 2022. Doc. 55-1 at 5, 32–35.

V. DISCUSSION

Defendants Copeland and Waugh have raised the defense that Plaintiff’s action

against them is barred by the statute of limitations. Docs. 13, 17. Corizon denies Plaintiff’s

claims of deliberate indifference. Doc. 13. Specifically, Corizon argues that because

Plaintiff fails to show a policy or custom of Corizon which deprived him of any

constitutional right, his claims sound in respondeat superior liability and are, therefore,

due to be dismissed. Id. at 4-12. Finally, Defendants Dunn, Naglich, and Cooks

(collectively “the correctional defendants”), in their special report have also raised the

defense that this action against them is barred by the statute of limitations. Docs. 24, 29.

The correctional defendants further argue that because Plaintiff’s Amended Complaint fails

to submit any evidence or assert any allegations that they personally participated or had

any responsibility for Plaintiff’s medical care, Plaintiff fails to state a deliberate

indifference claim against them nor can liability be imposed on them based on a theory of

respondeat superior. See id. The correctional defendants also assert immunity in their

official and individual capacities. See id.

A. Statute of Limitations

1. Defendants Copeland and Waugh

“All constitutional claims brought under § 1983 are tort actions, subject to the

statute of limitations governing personal injury actions in the state where the § 1983 action

has been brought.” McNair v. Allen, 515 F.3d 1168, 1173 (11th Cir. 2008) (citation omitted).

The governing limitations period in Alabama is two years. Id. (citing Ala. Code § 6-2-

38)1); Jones v. Preuit & Mauldin, 876 F.2d 1480, 1483 (11th Cir. 1989)). Generally, the

limitations period begins to run from the date “the facts which would support a cause of

action are apparent or should be apparent to a person with a reasonably prudent regard for

his rights.” Brown v. Ga. Bd. of Pardons & Paroles, 335 F.3d 1259, 1261 (11th Cir. 2003)

(quoting Rozar v. Mullis, 85 F.3d 556, 561-62 (11th Cir. 1996). Therefore, the limitations

period begins to run when the plaintiff knows or should know (1) that he has suffered the

injury that forms the basis for his complaint, and (2) who caused that injury. Chappell v.

Rich, 340 F.3d 1279, 1283 (11th Cir. 2003).

Plaintiff filed this action on December 23, 2019. Doc. 1 at 10, 17. Consequently, his

claims arising before December 23, 2017, are barred by the two-year statute of limitations.

See Owens v. Okure, 488 U.S. 235, 249–50 (1989); Ala. Code § 6-2-38(l).

Copeland testifies in her declaration, which Plaintiff does not dispute, that she

was employed by Corizon as the Health Services Administrator (“HSA”) for Staton and

Draper beginning on November 1, 2007, and left employment with Corizon on

November 29, 2017. Doc. 51-1 at 2. She further testifies that she has no knowledge of

the issues presented by Plaintiff. Id. And Waugh testifies in her declaration, which

Plaintiff does not dispute, that she temporarily left employment with Corizon on

December 11, 2017, under the Family and Medical Leave Act (“FMLA”) and did not

return to her position at the prison until the end of February 2018. Doc. 50-1 at 2.Waugh

denies any knowledge of the issues presented by Plaintiff. Id.

Copeland and Waugh therefore argue that Plaintiff’s § 1983 claims against them

are barred because the most recent date that Copeland could have had any interaction

with Plaintiff occurred on or before November 29, 2017, and the most recent date that

Waugh could have had any interaction with Plaintiff occurred on or before December

11, 2017. Consequently, neither Copeland nor Waugh could have engaged in any of

challenged conduct about which Plaintiff complains which occurred after these

respective dates. Based on the unopposed affidavits filed by Waugh and Copeland (Docs.

50-1, 51-1), Plaintiff did not file this action until after the limitations period expired

regarding his claims against these defendants.

Plaintiff maintains this action is timely because the limitation period only began

to run on January 4, 2018, when he became aware that he had received surgery for a

brain abscess and then filed this action on December 23, 2019. Doc. 43 at 19. Plaintiff

has not identified any facts, however, that could support a finding that he would not have

been aware of any injury that Copeland and Waugh allegedly caused, respectively,

before November 29, 2017, or December 11, 2017, when they stopped providing

treatment to ADOC inmates.8 See Chappell, 340 F.3d at 1283. That is, Plaintiff has not

8 As noted, Waugh did not return to employment status at Draper until the end of February 2018. Doc. 50-

1 at 2.

demonstrated that any conduct he attributes to Copeland and Waugh was the cause of

his injury.

Thus, the statute of limitations began to run on the claims arising from Copeland’s

challenged conduct, at the latest, on November 30, 2017, and ran uninterrupted until the

limitation period expired on December 2, 2019.9 The statute of limitations began to run

on the claims arising from Waugh’s challenged conduct, at the latest, on December 12,

2017, and ran uninterrupted until the limitation period expired on December 12, 2019.

Although Plaintiffs argues he filed this action within the limitation period applicable to

his claims, at the end of the day, he filed this action against Copeland and Waugh too

late. Thus, Plaintiff’s claims against these defendants are untimely and are due to be

dismissed. And Plaintiff has not demonstrated that there were any extraordinary and

unavoidable circumstances that prevented timely filing of his challenges regarding the

conduct of Copeland and Waugh about which he complains. In addition (and as

discussed below), Plaintiff’s claims against Copeland and Waugh alternatively are due

to be denied because he has not identified facts sufficient to create a triable issue on his

alleged deliberate indifference claims against them.

B. Sovereign Immunity

Plaintiff seeks money damages on his claims for relief. In response, the correctional

defendants assert Plaintiff’s suit against them, to the extent they are sued in their official

9 Since expiration of the limitations period for Plaintiff’s claims against Copeland expired on November

30, 2019, a Saturday, the two-year period of limitations expired the following Monday, December 2, 2019.

Rule 6(a)(1)(C), Fed. R. Civ. P. (“[I]f the last day [of the period] is a Saturday, Sunday, or legal holiday,

the period continues to run until the end of the next day that is not a Saturday, Sunday, or legal holiday.”).

capacities, is barred by the Eleventh Amendment immunity. Official capacity lawsuits are

“in all respects other than name, . . . treated as a suit against the entity.” Kentucky v.

Graham, 473 U. S. 159, 166 (1985). The Eleventh Circuit has held:

[T]he 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) (quotation marks and

citation omitted). Thus, a state official may not be sued in his official capacity unless the

State has waived its Eleventh Amendment immunity, see Pennhurst State Sch. & Hosp. v.

Halderman, 465 U.S. 89, 100 (1984), or Congress has abrogated the State’s immunity, see

Seminole Tribe of Fla. v. Fla., 517 U.S. 44, 59 (1996). “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)); Ala. Const. Art. I, § 14. Thus, to the extent Plaintiff

sues the correctional defendants in their official capacities, as state actors, they are entitled

to sovereign immunity under the Eleventh Amendment for claims seeking monetary

damages. Selensky, 619 F. App’x at 849; Jackson v. Georgia Dep’t of Transp., 16 F.3d

1573, 1575 (11th Cir. 1994).

C. Qualified Immunity

Regarding Plaintiff’s claims against the correctional defendants in their individual

capacities, they argue that Plaintiff’s allegations fail to state a claim and that they are

entitled to qualified immunity. Qualified immunity offers complete protection from civil

damages for government officials sued in their individual capacities if their conduct does

not violate “clearly established statutory or constitutional rights of which a reasonable

person would have known.” Hope v. Pelzer, 536 U.S. 730, 739 (2002) (quoting Harlow v.

Fitzgerald, 457 U.S. 800, 818 (1982)). Qualified immunity is not merely a defense against

liability but immunity from suit, and the Supreme Court “repeatedly [has] stressed the

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

Pearson v. Callahan, 555 U.S. 223, 231–32 (2009) (quotation marks and citation omitted).

To receive qualified immunity, the public official must first prove he was acting within the

scope of his discretionary authority when the allegedly wrongful acts occurred. Lee v.

Ferraro, 284 F.3d 1188, 1194 (11th Cir. 2002). There is no dispute that the correctional

defendants here were acting within the course and scope of their discretionary authority

when the challenged incident occurred. Plaintiff must, therefore, allege facts that, when

read in a light most favorable to him, show that the correctional defendants are not entitled

to qualified immunity. Cottone v. Jenne, 326 F.3d 1352, 1358 (11th Cir. 2003).

To satisfy his burden, Plaintiff must show two things: (1) that a defendant

committed a constitutional violation and (2) that the constitutional right a defendant

violated was “clearly established.” Crosby v. Monroe Cnty., 394 F.3d 1328, 1332 (11th

Cir. 2004). “To be clearly established, a right must be sufficiently clear that every

reasonable official would [have understood] that what he is doing violates that right. . . . In

other words, existing precedent must have placed the statutory or constitutional question

beyond debate.” Reichle v. Howards, 566 U.S. 658, 664 (2012) (citations and quotation

marks omitted) (alteration in original). “Clearly established law” means (1) “a materially

similar case has already been decided;” (2) “a broader, clearly established principle that

should control the novel facts of the situation;” or (3) “the conduct involved in the case

may so obviously violate the constitution that prior case law is unnecessary.” Gaines v.

Wardynski, 871 F.3d 1203, 1208–09 (11th Cir. 2017) (citations omitted). The controlling

authority is from “the Supreme Court of the United States, the Eleventh Circuit, or the

highest court in the relevant state.” Id. at 1209. “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). The Eleventh

Circuit “has stated many times that if case law, in factual terms, has not staked out a bright

line, qualified immunity almost always protects the defendant.” Gaines, 871 F.3d at 1210

(citations and quotation marks omitted). “Exact factual identity with the previously decided

case is not required, but the unlawfulness of the conduct must be apparent from pre-existing

law.” Coffin v. Brandau, 642 F.3d 999, 1013 (11th Cir. 2011) (citation omitted). If a

plaintiff cannot establish both elements to satisfy his burden, the defendants are entitled to

qualified immunity, and the court may analyze the elements “in whatever order is deemed

most appropriate for the case.” Rehberg v. Paulk, 611 F.3d 828, 839 (11th Cir. 2010) (citing

Pearson, 555 U.S. at 241–42).

D. Deliberate Indifference

The Supreme Court determined in Estelle v. Gamble, 429 U.S. 97, 104 (1976), that

“deliberate indifference to serious medical needs of prisoners” violates the Eighth

Amendment. “To establish a deliberate indifference claim, a plaintiff must show: (1) a

serious medical need; (2) the defendant’s deliberate indifference to that need; and (3)

causation between the defendant’s indifference and the plaintiff’s injury.” Roy v. Ivy, 53

F.4th 1338, 1346-47 (11th Cir. 2022) (citation omitted).

A claim for deliberate indifference has both an objective and a subjective

component. The objective element requires Plaintiff to demonstrate the existence of an

“objectively serious medical need.” Farrow v. West, 320 F.3d 1235, 1243 (11th Cir. 2003).

A serious medical need 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.” Id. (quotation marks and citation omitted). The

subjective component of a deliberate indifference claim requires that a defendant have

subjective knowledge of the risk of harm and consciously disregard that risk. Farmer v.

Brennan, 837 (1994) (“We hold . . . that a prison official cannot be found liable under the

Eighth Amendment for denying an inmate humane conditions of confinement unless the

official knows of and disregards an excessive risk to inmate health or safety…”). “[T]he

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.” Id.; see also

Farrow, 320 F.3d at 1246 (quotation marks and citation omitted) (holding that “an official

acts with deliberate indifference when he knows that an inmate is in serious need of medical

care, but he fails or refuses to obtain medical treatment for the inmate”).

The deliberate indifference standard requires a plaintiff to demonstrate that the

conduct complained of entailed more than mere negligence or “an inadvertent failure to

provide adequate medical care.” Estelle, 429 U.S. at 105; Farmer, 511 U.S. at 835. “Delay

in access to medical attention can violate the Eighth Amendment . . . when it is tantamount

to unnecessary and wanton infliction of pain.” Hill v. Dekalb Reg’l Youth Det. Ctr., 40 F.3d

1176, 1187 (11th Cir. 1994) (quotation marks and citations omitted). “Cases stating a

constitutional claim for immediate or emergency medical attention have concerned medical

needs that are obvious even to a layperson because they involve life-threatening conditions

or situations where it is apparent that delay would detrimentally exacerbate the medical

problem.” Id. But medical treatment does not need to be “perfect, the best obtainable, or

even very good.” Keohane v. Fla. Dep’t. of Corr. Sec’y, 952 F.3d 1257, 1266 (11th Cir.

2020) (quotation marks and citation omitted). Only medical treatment that is “so grossly

incompetent, inadequate, or excessive as to shock the conscience or to be intolerable to

fundamental fairness” violates the Eighth Amendment. Id. (quotation marks and citation

omitted). An inmate who received care but disagrees with the course of treatment provided

or desired another type of treatment cannot, without more, demonstrate deliberate

indifference. Hamm v. DeKalb Cnty., 774 F.2d 1567, 1575 (11th Cir. 1985). Thus, “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 [fails to] support a claim of cruel and unusual

punishment.” Keohane, 952 F.3d at 1266 (quotation marks and citation omitted).

Deliberate indifference requires that a defendant intentionally failed to provide medical

care. See McElligott v. Foley, 182 F.3d 1248, 1255 (11th Cir. 1999).

1. Defendants Dunn, Naglich, and Cooks

Plaintiff asserts that the correctional defendants acted with deliberate indifference

to his health because they did not intervene on his behalf after he made them aware through

letters and copies of sick call requests and grievances that he was not receiving adequate

medical treatment. Doc. 10 at 3, Doc. 10-1 at 5. Despite detailing in his documents sent to

the correctional defendants how he was not receiving adequate medical care, Plaintiff

asserts they took no action. Id.

The correctional defendants argue Plaintiff’s claims against them are barred by the

statute of limitations. Doc. 29. These defendants further argue they had no responsibility

for Plaintiff’s medical care during his incarceration at Draper and that they are entitled to

sovereign and qualified immunity. Id. The correctional defendants also argue that they

cannot be held liable in this action under a theory of respondeat superior and because: (1)

they make no decisions related to inmate medical care and relied on the medical expertise

and medical professionals in Corizon’s employ to provide medical care to inmates

including Plaintiff; (2) they had no involvement in the provision of Plaintiff’s health care

nor any direct or indirect knowledge of any of his health-related issues; and (3) they defer

to the professionals employed by the prison medical care provider regarding the health care

needs of Plaintiff during his incarceration. See Docs. 35-1, 35-2, 35-3.

To the extent Plaintiff’s claims against the correctional defendants are not barred

by the statute of limitations, he presents no facts which create a triable issue regarding his

claim that the correctional defendants acted with deliberate indifference to his medical

needs. It is clear from the pleadings that the correctional defendants are not health care

professionals and do not make decisions regarding inmate medical care and treatment.

There is no evidence that the correctional defendants were responsible for determining the

level of necessary medical care for Plaintiff; that they impeded his access to medical care;

that they attempted to intercede, overrule, or influence decisions made by medical

personnel regarding Plaintiff’s medical care; or that they personally participated in or had

any direct involvement with the medical treatment provided to him. See Docs. 35-1, 35-2,

35-3.

In the event Plaintiff seeks to hold the correctional defendants liable for the

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

The law does not impose upon correctional officials a duty to directly

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

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

that intervention is necessary to prevent a constitutional wrong. See

Vinnedge v. Gibbs, 550 F.2d 926 (4th Cir. 1977) (a medical treatment claim

cannot be brought against managing officers of a prison absent allegations

that they were personally connected with the alleged denial of treatment).

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

judgments made by medical professionals responsible for prisoner care. See,

e.g., Durmer v. O’Carroll, 991 F.2d 64, 69 (3d 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, 525 F. Supp. 2d 1302, 1307 (M.D. Ala. 2007).

Finally, if Plaintiff seeks to hold the correctional defendants liable under a theory of

respondeat superior or vicarious liability, the law is settled that liability in a 42 U.S.C. §

1983 action may not be based on either of these theories. Ashcroft v. Iqbal, 556 U.S. 662,

676 (2009) (finding that “[g]overnment officials may not be held liable for the

unconstitutional conduct of their subordinates under the theory of respondeat superior.”);

Cottone, 326 F.3d at 1360 (holding that “officials are not liable under § 1983 for the

unconstitutional acts of their subordinates [or co-workers] on the basis of respondeat

superior or vicarious liability.”). “[E]ach Government official, his or her title

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

Even if supervisory liability under § 1983 cannot be established by the supervisor’s

personal participation in the complained acts, liability may be shown by “the existence of

a causal connection linking the supervisor’s actions with the violation.” Lewis v. Smith,

855 F.2d 736, 738 (11th Cir. 1988). “Although § 1983 requires a connection between the

official’s acts or omissions and the plaintiff’s injury, an official also may be liable where a

policy or custom that he established or utilized resulted in deliberate indifference to an

inmate’s constitutional rights. [Marsh v. Butler Cnty., Ala., 268 F.3d 1014, 1059 (11th Cir.

2001) ].” Salas v. Tillman, 162 F. App’x. 918, 922 (11th Cir. 2006). A plaintiff can establish

a causal connection only when

[A] history of widespread abuse puts the responsible supervisor on notice of

the need to correct the alleged deprivation, and he fails to do so.

Alternatively, the causal connection may be established when a supervisor's

custom or policy ... result[s] in deliberate indifference to constitutional rights

or when facts support an inference that the supervisor directed the

subordinates to act unlawfully or knew that the subordinates would act

unlawfully and failed to stop them from doing so.”

Harrison v. Culliver, 746 F.3d 1288, 1298 (11th Cir. 2014) (citation omitted).

Plaintiff asserts that the correctional defendants were informed of his health issues

and are ultimately responsible and obligated to provide medical care and investigate an

inmate’s claim that he is being denied medical care. Doc. 43 at 27–28. In their affidavits,

the correctional defendants state that they have no knowledge of Plaintiff’s medical care

or his medical complaints. Docs 35-1, 35-2, 35-3. These defendants further testify that they

do not have any involvement with the daily medical treatment provided to inmates and,

because they have no medical training, they rely on the medical expertise of the medical

professionals employed by the prison health care provide. Id. Finally, the correctional

defendants state they had no involvement with the medical care Plaintiff received at Draper

and have no knowledge, directly or indirectly, of Plaintiff’s medical issues, or the health

care provided to him. Id.

There is no allegation by Plaintiff nor evidence in the record which shows the

correctional defendants had any involvement in his allegedly deficient medical care.

Moreover, there is no evidence any of the correctional defendants is an official having

responsibility for the challenged action which is necessary to show a connection to the

alleged unconstitutional acts at issue. See Luckey v. Harris, 860 F.2d 1012, 1015–16 (11th

Cir. 1988). Although Plaintiff contends he provided some awareness to the correctional

defendants about his medical condition and they had general supervisory authority over

ADOC facilities and their employees, there is no evidence they had decision-making

authority regarding his medical treatment or took any action in that regard. The correctional

defendants state they had no personal involvement in or awareness of the health care

provided to Plaintiff and defer to the contract medical professionals for decisions relating

to the medical treatment of Plaintiff and other inmates. Plaintiff has also not produced

evidence that the correctional defendants had any notice of a history of abuse regarding

medical policies, that they were involved in establishing a specific custom or policy related

to medical care, or that they directed subordinates to act unlawfully or failed to stop them

from acting unlawfully regarding medical care. See Harrison, 746 F.3d at 1298.

Here, Plaintiff seeks to hold the correctional defendants liable in their supervisory

roles for medical decisions made by their subordinates—in this case the medical

professionals—involved in the provision of medical care and treatment to Plaintiff.

Plaintiff has not, however, produced sufficient evidence to establish a genuine dispute of

material fact that the correctional defendants took any action related to Plaintiff’s health

care or that they had any knowledge of his health care related issues. See Williams, 198 F.

App’x at 897; Cameron, 525 F. Supp. 2d at 1307. Accordingly Defendants Dunn, Naglich,

and Cooks are entitled to qualified immunity on Plaintiff’s claims against them and

summary judgment is due to be granted in their favor.

2. Defendant Copeland

Plaintiff alleges Copeland failed to respond to his sick calls and grievances seeking

medical care for matters associated with eye and ear infections.10 See Doc. 10-1. Initially,

if Plaintiff seeks to challenge Copeland’s failure to respond to grievances as a violation of

his right to due process, in the context of a prison setting, “an inmate grievance procedure

is not constitutionally required.” Spencer v. Moore, 638 F. Supp. 315, 316 (E.D. Mo. 1986)

(citations omitted). “[A prison] grievance procedure is a procedural right only, it does not

confer any substantive right upon the inmates. Hence, it does not give rise to a protected

10 Although Plaintiff complains Copeland did not respond to his sick call requests, no evidence has been

presented that Copeland, as the Health Services Administrator, was involved in the provision of medical

care and treatment to inmates. See Doc. 46-1 at 3.

liberty interest requiring the procedural protections envisioned by the fourteenth

amendment.” Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir. 1993) (quotation marks and

citation omitted); Bingham v. Thomas, 654 F.3d 1171, 1177–78 (11th Cir. 2011) (affirming

trial court’s dismissal, under 28 U.S.C. § 1915A, of inmate’s challenge to adequacy of

prison’s grievance procedures finding “a prison grievance procedure does not provide an

inmate with a constitutionally protected interest”). Next, Plaintiff’s own evidentiary

materials show that Copeland did, in fact, respond to several grievances he submitted

related to vision matters. See Doc. 43 at 5–7 & Docs. 43-1, 43-2, 43-4; 43-5. That Plaintiff

was dissatisfied with the responses he received does not state a constitutional violation.

Finally, even assuming Copeland received the grievances and grievance appeals Plaintiff

maintains went unanswered (see Docs. 43-10—43-16), this assertion only infers Copeland

had some knowledge or awareness of his medical condition and that she should be liable

in her role as HSA. Plaintiff, however, has produced no evidence demonstrating Copeland

knew intervention for his complaints of sinus and ear infections was medically required or

necessary or that she personally participated in or had any direct involvement with his

medical treatment for those conditions.

Here, the Court finds Plaintiff’s allegations that Copeland exhibited deliberate

indifference to his serious medical needs are conclusory and unsupported. There is no

indication or allegation that Copeland was responsible for or involved in providing medical

care to Plaintiff, diagnosing his medical condition or needs, or prescribing medications.

See Holifield v. Reno, 115 F.3d 1555, 1564 n.6 (11th Cir. 1997) (abrogated by Lewis v.

City of Union City, Georgia, 918 F.3d 1213 (11th Cir. 2019) (holding plaintiff’s

“conclusory assertions . . ., in the absence of [admissible] supporting evidence, are

insufficient to withstand summary judgment”); Harris v. Ostrout, 65 F.3d 912, 916 (11th

Cir.1995) (holding that grant of summary judgment appropriate where inmate “produced

nothing, beyond his own conclusory allegations” challenging actions of the defendants).

Nor has Plaintiff produced any evidence Copeland actually knew of any serious medical

need he had and intentionally failed or refused to provide adequate medical care. Plaintiff

therefore has not presented or identified any specific facts from which a reasonable trier of

fact could conclude that Copeland had subjective knowledge that Plaintiff faced a

substantial risk of serious harm and subsequently disregarded that risk. See Harper v.

Lawrence Cnty., Ala., 592 F.3d 1227, 1234 (11th Cir. 2010); Hale v. Tallapoosa Cnty., 50

F.3d 1579, 1582 (11th Cir. 1995) (explaining that a plaintiff must produce sufficient

evidence that the defendant’s deliberate indifference to a known serious risk of harm

caused the plaintiff’s constitutional injury.); 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); 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). Therefore, even if Plaintiff’s claims against Copeland are not time-barred,

he has not demonstrated that she acted with deliberate indifference to his medical needs.

3. Defendant Waugh

Waugh examined Plaintiff’s ears on August 10, 2017, during a chronic care visit.

Doc. 55-1 at 3, 6. At that time she observed no sign of infection in Plaintiff’s ears and noted

his tympanic membranes were normal. Id. Although Plaintiff maintains he showed Waugh

Q-tips used to swab his ears, presumably offered as proof he had an ear infection, her

response was that they were disgusting and told him to throw them away.11 Doc. 43 at 11.

Waugh, Plaintiff complains, did not refer him to a physician or obtain a culture from the

Q-tips which he claims is standard operating procedure. Id. The unrefuted evidence of

record reflects that the only time Waugh treated Plaintiff was August 10, 2017. Doc. 55-1

at 3, 6.

Even assuming Waugh’s treatment of Plaintiff was subpar, this allegation is

insufficient to create a disputed issue of fact on a claim of deliberate indifference. During

their only encounter, Waugh’s examination of Plaintiff’s ears did not reveal any sign of

infection and she noted his tympanic membranes appeared normal. Waugh’s assessment of

Plaintiff was based on the information she obtained from her examination of him at that

time. No evidence indicates that Waugh was subjectively aware of any serious medical

condition when she treated Plaintiff. Although Plaintiff maintains Waugh should have

undertaken other measures like notifying a doctor or obtaining cultures from the Q-tip

swabs, the standard for deliberate indifference requires that a defendant knows of and

disregards a substantial risk of serious harm to an inmate’s health or safety. Farmer, 511

U.S. at 837-38; see also Estelle, 429 U.S. at 105 (explaining that imperfect medical

treatment, “although it may produce added anguish, is not on that basis alone to be

11 Plaintiff indicates drainage from his ears only occurred at night. See Doc. 43 at 10. The Court further

notes that Plaintiff’s medical records from the free-world hospital where he received surgery for a right

temporal abscess show that he described the historical symptoms of his illness as involving a dull headache

and right ear pain for several months which had been managed symptomatically with non-steroidal anti-

inflammatory drugs (“NSAIDS”) and antihistamines. Doc. 53-1 at 61, 74, 78, 83.

characterized as wanton infliction of unnecessary pain.”). Thus, Waugh’s conduct is judged

based on information available to her at the time. See Williams v. Mehra, 186 F.3d 685,

692 (6th Cir. 1999) (quoting Farmer, 511 U.S. at 837) (holding that “the standard is not

whether there is something easy that the doctors, with the benefit of hindsight, could have

done. It is whether they ‘kn[ew] of and disregard[ed] an excessive risk to inmate health or

safety.’”).

On this record, the Court finds that the course of treatment undertaken by Waugh

did not violate Plaintiff’s 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 (quotation marks and citation omitted). Although

Plaintiff believes Waugh should have ordered additional diagnostic tests to assist in

diagnosing his health issues or referred him to a physician, whether she “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 (quotation marks and citation

omitted); Tucker v. Busbee, 619 F. App’x 868, 870 (11th Cir. 2015) (quotation marks and

citation omitted) (holding that “[n]egligence in diagnosing or treating a medical condition,

including an inadvertent failure to provide adequate medical care, does not state a valid

claim for deliberate indifference.”); Hamm, 774 F.2d at 1575 (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), vacated pursuant to

settlement, 931 F.2d 711 (11th Cir. 1991), and opinion reinstated sub nom. Howell v.

Burden, 12 F.3d 190 (11th Cir. 1994) (holding that 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].”).

In the event Plaintiff claims Waugh’s treatment of him was deficient because he

subsequently suffered an adverse event which Waugh did not foresee, he is likewise

entitled to no relief. Without more, this claim amounts to, at most, negligence. However,

as explained, the facts must show more than medical malpractice, misdiagnosis, accidents,

or a poor exercise of medical judgment. See Estelle, 429 U.S. at 104–07; see also Farmer,

511 U.S. at 835–36 (finding 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.); Null v. Mangual, 2012 WL 3764865,

at *2–3 (M.D. Fla. Aug. 30, 2012), appeal dismissed (11th Cir. No. 12-14749, Nov. 28,

2012) (finding 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)) (finding “[a]n 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 sum, Plaintiff has not alleged or identified any specific facts on which a

reasonable jury could find that Waugh knew the manner in which she provided treatment

to him created a substantial risk to his health and that with this knowledge consciously

disregarded such risk. Keohane, 952 F.3d at 1266. Consequently, even if Plaintiff’s claims

against Waugh are not time-barred, he has not demonstrated that she acted with deliberate

indifference to his medical needs.

4. Corizon

Corizon argues it is entitled to summary judgment on Plaintiff’s claims because he

has no evidence that any policy or custom of Corizon caused him harm. Doc. 13. The Court

agrees. Plaintiff presents no evidence in his pleadings that Corizon had a policy or custom

that contributed to his alleged constitutional violations.

As previously explained, the law is settled that, generally, “supervisory officials are

not liable under § 1983 for the unconstitutional acts of their subordinates on the basis of

respondeat superior or vicarious liability.” Hartley v. Parnell, 193 F.3d 1263, 1269 (11th

Cir. 1999) (quotation marks and citation omitted). The Eleventh Circuit has extended that

rule to private corporations like Corizon. See, e.g., Craig v. Floyd Cnty., Ga., 643 F.3d

1306, 1310 (11th Cir. 2011). Where the state and the entity enter such a contractual

agreement, the private healthcare company is a “person” acting under color of state law,

and thus may be liable under § 1983. Howell, 922 F.2d at 723-24 (11th Cir.) (internal

citation omitted). By virtue of the contract, the private entity also “performs a function

traditionally within the exclusive prerogative of the state and becomes the functional

equivalent of the municipality under section 1983.” Craig, 643 F.3d at 1310 (quotation

marks and citation omitted). Accordingly, under Monell v. Dep’t of Soc. Servs. of City of

New York, 436 U.S. 658, 691 (1978) (holding that a municipality cannot be held liable on

a theory of respondeat superior), a private entity providing medical services to inmates

pursuant to a contract with the state is only liable under § 1983 where it employs a custom

or policy constituting deliberate indifference to an inmate’s serious medical need. See

Howell, 922 F.2d at 724 n.13 (noting that the policy or custom analysis applied to a

corporation is the same as the analysis applied to municipalities under Monell). To hold a

defendant liable as a supervisory official, a plaintiff must show that “the supervisor

personally participate[d] in the alleged constitutional violation or [that] there is a causal

connection between actions of the supervising official and the alleged constitutional

deprivation.” Hartley, 193 F.3d at 1269.

The challenged policy or custom need not be express. A policy is “a decision that is

officially adopted” or created on behalf of the entity. Sewell v. Town of Lake Hamilton, 117

F.3d 488, 489 (11th Cir. 1997). A custom is any practice that is “so settled and permanent”

as to carry the force of law. Id. To establish the existence of a custom, the evidence must

show more than an isolated incident leading to constitutional injury, and instead, must

reflect the pattern is widespread. McDowell v. Brown, 392 F.3d 1283, 1290 (11th Cir.

2004). To show the practice at issue is sufficiently widespread to constitute a custom, a

plaintiff ordinarily must produce evidence that the practice resulted in deficient treatment

of other inmates. See Craig, 643 F.3d at 1312. Ultimately, the plaintiff must produce

sufficient evidence of a “series of constitutional violations from which deliberate

indifference can be inferred.” Id. (quoting Estate of Novack ex rel. Turbin v. Cnty. of Wood,

226 F.3d 525, 531 (7th Cir. 2000)).

On this record, Plaintiff has not produced sufficient evidence to establish a genuine

dispute of material fact regarding whether Corizon implemented a policy or custom

evidencing deliberate indifference to his serious medical needs. Specifically, Plaintiff

identifies no facts nor produces any evidence of a custom or policy of Corizon to

purportedly withhold medically necessary medical care or treatment nor evidence of any

permanent widespread practice to deny necessary medical care or treatment to inmates. See

Craig, 643 F.3d at 1310 (explaining that to impose liability under § 1983, a plaintiff must

prove that a municipality had a “policy or custom” of deliberate indifference that led to the

violation of his constitutional right). Corizon is therefore due to be granted summary

judgment on Plaintiff’s Eighth Amendment claim.

VI. SUPPLEMENTAL JURISDICTION

Plaintiff’s claims asserted against the medical defendants (Defendants Copeland,

Waugh, and Corizon), liberally construed, implicate the state torts of negligence or medical

malpractice. Review of such claims is only appropriate upon exercise of the Court’s

supplemental jurisdiction. In the posture of this case, however, the exercise of such

jurisdiction is inappropriate.

For a federal court “[t]o exercise [supplemental] jurisdiction over state law claims

not otherwise cognizable in federal court, the court must have jurisdiction over a substantial

federal claim and the federal and state claims must derive from a “common nucleus of

operative fact.” L.A. Draper & Son v. Wheelabrator-Frye, Inc., 735 F.2d 414, 427 (11th

Cir. 1984) (quotation marks and citations omitted). The exercise of supplemental

jurisdiction is discretionary. United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 726

(1966). “[I]f the federal claims are dismissed prior to trial, Gibbs strongly encourages or

even requires dismissal of the state claims.” L.A. Draper & Son, 735 F.2d at 428. In view

of the Court's determination that the medical defendants are entitled to summary judgment

on Plaintiff’s Eighth Amendment claims, Plaintiff’s state tort claims asserted against them

are due to be dismissed. United Mine Workers of America, 383 U.S. at 726 (“if the federal

claims are dismissed prior to trial, … the state claims should be dismissed as well”); see

also Ray v. Tennessee Valley Autho., 677 F.2d 818, 824-25 (11th Cir. 1982).

VII. CONCLUSION

Based on the foregoing, the undersigned Magistrate Judge RECOMMENDS that:

1. Defendants’ Motions for Summary Judgment (Docs. 13, 29) be GRANTED.

2. Judgment be ENTERED in favor of Defendants.

3. This case be DISMISSED with prejudice.

It is ORDERED that by February 23, 2023, the parties may file objections to this

Recommendation. The parties must specifically identify the factual findings and legal

conclusions in the Recommendation to which objection is made. Frivolous, conclusive or

general objections will not be considered by the Court. This Recommendation is not a final

order and, therefore, it is not appealable.

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

accordance with 28 U.S.C. § 636(b)(1) will bar a party from a de novo determination by

the District Court of legal and factual issues covered in the Recommendation and waive

the right of the party to challenge on appeal the District Court’s order based on unobjected-

to factual and legal conclusions accepted or adopted by the District Court except upon

grounds of plain error or manifest injustice. Nettles v. Wainwright, 677 F.2d 404 (5th Cir.

1982); 11TH Cir. R. 3-1; see Resol. Tr. Corp. 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 9th day of February 2023.

/s/ Charles S. Coody

CHARLES S. COODY

UNITED STATES MAGISTRATE JUDGE