Wilson v. Crow (INMATE 1)

IN THE DISTRICT COURT OF THE UNITED STATES

FOR THE MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

DANIEL MACARTHUR WILSON, )

)

Plaintiff, )

v. )

) CASE NO. 2:20-CV-353-WKW-CSC

)

)

JOHN CROW, et. al., )

)

Defendants.

RECOMMENDATION OF THE MAGISTRATE JUDGE

I. INTRODUCTION

On May 28, 2020, Daniel MacArthur Wilson, an indigent state inmate housed at Easterling

Correctional Facility, filed this 42 U.S.C. § 1983 action1, alleging that the Defendants treated him

with deliberate indifference when they failed to adequately treat his nausea, dehydration and

breathing problems and delayed treatment for his broken arm. (Doc. 13). He amended his

complaint to allege that he was served Jello containing spider parts when he was housed in the

prison infirmary. (Doc. 17). Later he amended his complaint to complain of a rash in his genital

area that went untreated and to generally allege that he was not protected from individuals affected

with COVID-19 while housed at Easterling. (Doc. 37). The named Defendants in this action

include John Crow, Warden; Officer Pope2; Nurse, Jessica Junghans; Nurse, Shandreka Faulk; and

1 On May 27, 2020, Wilson filed another § 1983 action stating numerous unconstitutional conditions claims

against Warden John Crow and other Correctional Defendants at the Easterling Correctional Facility. See,

Wilson v. Crow, et al., 2:20-cv-348-RAH-CSC.

2 The record confirms that Officer Pope was misidentified and never properly served. (Doc. 40). Inspite

of the Court’s direction, Plaintiff failed to properly identify any correctional officer, who had been

misnamed Officer Pope, upon whom service could be completed. (Doc. 41). Thus, Warden John Crow is

the sole Correctional Defendant in this action.

Dr. Manuel Pouparanis. He seeks money damages, his freedom3 and declaratory and injunctive

relief “to close Easterling prison down.” 4 (Doc. 13 at p. 4).

The Defendants filed special reports (Docs. 31, 36, 42, 48, 57, 58, 67, 73, 77, 79), which

included relevant evidentiary materials in support of these reports, including affidavits addressing

the claims presented by Wilson, and medical and prison records. In these documents, Defendants

deny the claims against them. Specifically, Defendant Dr. Pouparinas the interim Medical Director

at Easterling Correctional Facility, filed an affidavit which summarized the Plaintiff’s medical

records and addressed his claims of medical deliberate indifference. (Doc. 31-1 at pp. 1-8).

Likewise, Defendant John Crow, Warden III at Easterling Correctional Facility filed affidavits

denying Plaintiff’s claims. (Docs. 67-1, 73-1 and 77-1). Warden Crow also affirmed the testimony

of Ruth Naglich, Associate Commissioner for Health Services for ADOC, concerning the policies

adopted by ADOC to keep inmates safe from COVID-19 infection, (doc. 79-1 at pp. 1-16), and

attested that it was followed at Easterling to keep Plaintiff and other inmates safe from COVID-

19 infection. (Doc. 77-1 at pp. 1-2).

3 The law is clear; a claim for release from custody may not be addressed in a 1983 action. Rather, this

claim for relief may only be addressed in a petition for habeas corpus. Preiser v. Rodriguez, 411 U.S. 475,

500 (1973). Indeed, in Heck, the Supreme Court held that claims challenging the legality of a prisoner’s

conviction or sentence are not cognizable in a 42 U.S.C. § 1983 action “unless and until the conviction or

sentence is reversed, expunged, invalidated, or impugned by the grant of a writ of habeas corpus” and

complaints containing such claims must therefore be dismissed. Heck v. Humphrey, 512 U.S. 477, 489

(1994). Thus, Heck confirms that “[h]abeas corpus is the exclusive remedy for a state prisoner who

challenges the fact or duration of his confinement and seeks immediate or speedier release.” 521 U.S. 481,

citing Preiser, 411 U.S. 475 (1973). Therefore, summary judgment is due to be granted on Plaintiff’s

cursory claim for release from custody.

4 The record shows that Plaintiff has been released from custody and now resides at a free-world address.

(Doc. 95). Under Eleventh Circuit precedent “a transfer or a release of a prisoner from prison will moot

that prisoner’s claims for injunctive and declaratory relief.” Smith v. Allen, 502 F. 3d 1255, 1267 (11th Cir.

2007), abrogated on other grounds by Sossamon v. Texas, 563 U.S. 277 (2011); see also, Zatler v.

Wainwright, 802 F. 2d 397, 399 (11th Cir. 1986) (per curium.). Accordingly, Plaintiff’s claims for

injunctive and or declaratory relief are due to be dismissed.

After reviewing the special reports and exhibits, the court issued an order on March 12,

2021, requiring Wilson to file a response to the Defendants’ special report, supported by affidavits

or statements made under penalty of perjury and other evidentiary materials. This 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. 80 at p. 3).

Wilson filed responses to this order. (Docs. 81, 59 and 47). In his responses, attempts to

bring new claims, which were not plead in his complaint, as amended. For example, he makes

cursory conditions claims (Doc. 81 at p. 3) and claims for deliberate indifference to safety. (Doc.

81 at pp. 10-18). However, these claims are not properly before the court because claims may not

be raised for the first time in a response to a motion for summary judgment. San Francisco

Residence Club, Inc. v. Baswell-Guthrie, 897 F. Supp. 2d 1122, 1214 (N.D. Ala. September 13,

2012).

The complaint, as amended, is clear; Plaintiff claims the Defendants treated him with

deliberate indifference when they failed to adequately treat his nausea, dehydration and breathing

problems and delayed treatment for his broken arm. (Doc. 13). He also claims that his Eighth

Amendment rights were violated when he was served Jello containing spider parts while housed

in the prison infirmary. (Doc. 17). He also alleges he had a rash in his genital area that went

untreated and generally that he was not protected from individuals affected with COVID-19 while

housed at Easterling. (Doc. 37). Thus, these are the only claims properly before the court for

consideration at this time.

Pursuant to the directives of the order entered on March 12, 2021, the court now treats the

Defendant’s special report and supplements thereto as a motion for summary judgment and

concludes that summary judgment is due to be granted in favor of the Defendants.

II. SUMMARY JUDGMENT STANDARD

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).

To establish a genuine dispute of material fact, the nonmoving party must produce evidence

such that a reasonable trier of fact could return a verdict in his favor. Waddell v. Valley Forge

Dental Associates, Inc., 276 F.3d 1275, 1279 (11th Cir. 2001). “When opposing parties tell two

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

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

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

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

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

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

Banks, 548 U.S. 521, 525 (2006); Brown v. Crawford, 906 F.2d 667, 670 (11th Cir. 1990). Thus,

Wilson’s pro se status alone does not mandate this court’s disregard of elementary principles of

production and proof in a civil case. The court has undertaken a thorough and exhaustive review

of all the evidence contained in the record. After such review, the court finds that Wilson has

failed to demonstrate a genuine dispute of material fact in order to preclude entry of summary

judgment in favor of the Defendants.

III. DISCUSSION

A. FACTS

Plaintiff claims that during his incarceration at Easterling Correctional Facility, Defendants

treated him with deliberate indifference when they failed to adequately treat his nausea and

dehydration, delayed treatment for his broken arm, and served him Jello containing spider parts

when he was housed in the prison infirmary. He also claims that the Defendants were deliberately

indifferent to a rash in his genital area that went untreated and failed to protect him from COVID-

19 infected inmates. (Docs. 13, 17, and 37). He names Warden John Crow as the sole Correctional

Defendant. He names as Medical Defendants Dr. Manuel Pouparanis and Nurses Jessica Junghans

and Shandreka Faulk. All Defendants deny the claims against them.

Defendant Dr. Pouparanis filed an affidavit which summarized the Plaintiff’s medical

records and addressed his claims of deliberate indifference. He states as follows:

I am a medical doctor licensed to practice medicine the state of Alabama. I am

employed by Wexford Health Sources, Inc. Wexford holds the contract with the ADOC

to provide health care related services to Alabama state inmates.

I am the interim Medical Director at the Easterling Correctional Facility located in

Clio, Alabama. I have seen and I have reviewed the legal Complaints filed by Alabama

state inmate Daniel Macarthur Wilson (AIS # 260779). I am aware that Mr. Wilson alleges

that on April 14, 2020, while in the health care unit, that he bid down on “some spiders” in

his Jello that he was provided as part of a liquid diet. I am aware that Mr. Wilson alleges

that myself and the nurses that were present at the time were deliberately indifferent

providing him Jello with spiders.

I am also aware that Mr. Wilson alleges that on June 18, 2020, that he fell over and

fractured his arm and that he did not receive sufficient and/or adequate medical treatment

for the injures he received subsequent to falling on June 18, 2020.

I have attached hereto relevant documents from Mr. Wilson’s medical chart in

chronological order for the Court’s review.

Mr. Wilson transferred from the Bibb County Correctional Facility to the Easterling

Correctional Facility on March 18, 2020. On April 13, 2020, Mr. Wilson was brought to

the health care unit by Lieutenant McCovery for a body chart.

Mr. Wilson advised the LPN performing the evaluation that he was wrongfully

accused. The nurse, during the evaluation, noted no injuries to Mr. Wilson.

On April 15, 2020, Wilson was admitted to the infirmary at the Easterling

Correctional Facility complaining of abdominal pain.

Mr. Wilson had a history of abdominal pain with nausea and vomiting and had in

fact been admitted to the infirmary in March of 2020 complaining of the same symptoms.

On April 15, 2020, a complete metabolic panel was taken of Mr. Wilson. Later in

the day on April 15, 2020, a complete evaluation and physical examination was performed

on Mr. Wilson by Laura Driggers, CRNP.

Mr. Wilson informed the nursing staff that the abdominal issues had stared the night

before on April 14, 2020.

Due to Mr. Wilson’s complaints of abdominal pain, an ultrasound of Mr. Wilson’s

gall bladder was ordered. The presumed diagnosis was acute cholelithiasis with RUQ

abdominal pain.

An x-ray was taken of Mr. Wilson’s abdomen on April 17, 2020. An ultrasound

was also taken of Mr. Wilson’s gall bladder. The radiologist read the x-ray and ultrasound

as follows:

Examination: Abdomen IV

Reason for exam: Nausea/vomiting

Findings:

There is a non-obstructive bowel gas pattern. Mild increase feces in the colon.

Retained barium in the colon is also seen. No renal stone is noted.

Impression:

Not obstructive bowl gas pattern

Exam: Ultrasound of the gall bladder

Technique: Real time gray scale imaging of the gall bladder was performed.

Clinical data: Acute cholelithiasis with right upper quadrant pain

Prior studies: No prior studies are submitted

Findings: The gall bladder measures 8.3 cm demonstrating no evidence of sludge

or stones and a wall thickness of 2 mm. The common bile duct measures 2 mm.

Impression: Sonographically unremarkable gall bladder

Recommendation: Follow up as clinically necessary.

I personally saw and evaluated Mr. Wilson both on April 16 and April 17, 2020. I

performed a complete physical evaluation of Mr. Wilson at that time. Mr. Wilson was kept

in the infirmary for his evaluation due to his abdominal pain concerns.

On April 18, 2020, the nursing assessment tool notes that Mr. Wilson was feeling

“better.” On April 19, 2020, Mr. Wilson was in fact discharged from the infirmary.

The medical records reveal that Mr. Wilson was seen frequently by myself as well

as the nurses and medical staff at the Easterling Correctional Facility during the time that

he was in the infirmary in April 2020 for his abdominal pain.

The medical records reveal that in May 2020, follow up appointments were made

for Mr. Wilson to be seen by the medical staff where Mr. Wilson failed to show up for his

appointments.

On April 18, 2020, two days after Mr. Wilson was admitted to the infirmary, Mr.

Wilson completed and inmate grievance. In his grievance, Mr. Wilson states as follows:

I was taken to the infirmary April 14, 2020 – I was very dehydrated and

wasn’t keeping and fluids down – I told LT prior I couldn’t breathe and I needed to

see a doctor but no one came. I tried to get my mother to call captain Lawson from

the free world so that they could see me which is a security health hazard. What if

I would have died – then when I got to the infirmary, they put me on a liquid diet

broth, Jello, and water – I got the orange Jello. It had a spider which I bit down on

and reported it to Nurse Jay and Officer Pope. I still got the same Jello with a spider

in it. There wasn’t nothing done about the situation.

The medical grievance was received by the health care unit on April 21, 2020. A

response was made to the grievance and returned to Mr. Wilson as follows:

Mr. Wilson --this is a DOC issue. I will forward this grievance to the

Captain and Wardens.

There is no indication that myself or any of the nurses had any prior notice that Mr.

Wilson had found a spider in his Jello. Regardless, this would not be a medical issue and

there is nothing in the medical chart to indicate that the spider and any negative

implications of Mr. Wilson’s well being or his health treatment.

While Mr. Wilson was in the health care unit for his abdominal issues, he received

excellent care and was in fact kept in the infirmary for a number of days where he was

continuously monitored. Mr. Wilson’s medical treatment at no time was delayed or denied

for his abdominal issues in April 2020.

I am further aware that Mr. Wilson alleges that in June 2020 he fractured his arm.

On June 18, 2020, Mr. Wilson completed a sick call request that stated as follows:

I slipped in the shower on the black mold or whatever it is in the shower

area and twisted my arm. I feel like it’s fractured and it’s been two weeks and I

still haven’t heard from dental. About pulling my teeth. Thanks.

On the same date, June 18, 2020, Mr. Wilson completed a medical grievance that

stated as follows:

I wrote two or three sick calls to see about my arm. I slipped in the shower

and on slick spot on the mold or whatever it is in the shower and I throwed my arm.

The winter that I am burning (sp) in has led or something in it and it is breaking me

out from my ? to the inside of my legs by my genitals. It’s not right. I need to be

seen and need cream or something.

A response was made to Wilson’s grievance on June 24, 2020, and stated as

follows:

Mr. Wilson – You were called to HCU and assessed. You will be scheduled

to have an x-ray and then you will follow up with a provider if needed.

Mr. Wilson was seen and assessed on June 24, 2020. Mr. Wilson informed the

nurse that he had fallen but caught himself injuring his arm in the shower. Wilson stated

that he was in constant pain with his arm. Mr. Wilson complained of pain upon tenderness

but was fully able to move his fingers. However, Mr. Wilson’s face grimaced with

movement.

On June 24, 2020, Mr. Wilson was provided with a sling for 14 days.

On June 26, 2020, Mr. Wilson had an x-ray which the radiologist read as follows:

Examination: Right forearm 2V

Reason for exam: Pain to right forearm. Falling and caught himself by

extending arm.

Findings:

There are acute non-displaced fractures of the mid radius and ulna seen.

There is no focal bone lesion. Alignment is anatomic. There is not soft

tissue swelling for foreign body identified.

Impression:

Acute fractures of the mdi radius and ulna are noted.

A referral was made by Laura Driggers, CRNP for Mr. Wilson to be seen by an

orthopedist with the presumed diagnosis of a fractured radius and ulna-right.

An appointment was made for Mr. Wilson to be seen by Dr. Chung, an orthopedist

in Montgomery, Alabama.

However, on July 7, 2020, Mr. Wilson signed a Release of Responsibility form

refusing to be seen by Dr. Chung.

On July 13, 2020, Mr. Wilson failed to show for his appointment with the medical

provider even though he was called on numerous times to the dorm with regard to this

medical appointment.

The notations from Laura Driggers, CRNP, dated July 8, 2020, stated that Mr.

Wilson was scheduled for a follow-up appointment with me with regard to the fracture of

his radius and ulna. However, Ms. Driggers noted that Mr. Wilson had refused his

orthopedic visit.

At no time did I, or any of the medical staff at Easterling Correctional Facility,

refuse to treat, see or provide necessary medical treatment to Mr. Wilson for his necessary

medical needs.

Mr. Wilson complained about pain in his arm and was x-rayed and an appointment

was set up for Mr. Wilson to be seen by an outside specialist-orthopedist. However, Mr.

Wilson, on numerous times, refused to be seen by the outside orthopedist.

I have reviewed Mr. Wilson’s medical chart, and in my opinion, as a physician

licensed to practice medicine in the state of Alabama, Mr. Wilson has at all times been

treated within the standard of care of physicians practicing medicine in the state of

Alabama.

(Doc. 31-1 at pp. 1-8). Defendant Nurses Faulk and Junghans also testified by affidavit that based

upon their review of Plaintiff’s medical chart “he was treated at all times within the standard of

care of nurses.” (Docs. 31-2 at pp. 1-2; 31-3 at pp. 1-2). Both further confirmed that Plaintiff’s

“necessary nursing needs were never delayed nor denied.” Id. Likewise, each testified that they

were not aware that Plaintiff was served Jello with a spider in it, but that ensuring proper food

preparation is outside of their responsibility as nurses. Id.

On June 18, 2020, Plaintiff filed a grievance complaining about continued pain in his arm

and an untreated rash inside his legs. (Doc. 31-1 at p. 5; Doc. 31-1 at p. 66). Mona Payne, RN

and Health Services Administrator at Easterling, testified that prior to June 18, 2020, Plaintiff

never completed a sick call request or complained to any provider about the rash inside his legs.

(Doc. 48-1 at pp. 1-3). Moreover, Plaintiff made no complaints, written or verbal, about this rash

following the June 18, 2020, grievance where the rash was mentioned in conjunction with his arm

pain. Id. Indeed, the Court’s independent review of the medical records confirms no mention of

this rash during the period between Plaintiff’s transfer to Easterling on March 18, 2020, until June

18, 2020, when the grievance was filed, (doc. 31-1 at pp. 9- 65), and no mention of the rash

following the June 18, 2020, grievance. (Doc 31-1- at pp. 66-78).

Rather, the bulk of Plaintiff’s medical records demonstrate ongoing treatment from mid-

April 2020 until early June 2020 for stomach pain and nausea for which he was seen a number of

times, housed in the infirmary on a liquid diet, and consistently prescribed Pepto-Bismol and

Zofran. (Doc. 31-1 at pp. 9-65). Following the June 18, 2020, grievance, the medical records

demonstrate he received treatment for his fractured arm beginning June 24, 2020, when he was

seen in the prison infirmary, was provided a sling for 14 days and scheduled for an x-ray on June

26, 2020. (Doc. 31-1 at pp. 6, 68-78). Following the x-ray, which showed “actute non-displaced

fractures of mid radius and ulna”, Plaintiff was referred to Dr. Chung, an orthopedist in

Montgomery, Alabama. (Doc. 31-1 at pp. 6-7, 70-75). On July 7, 2020, Plaintiff declined this

appointment with Dr. Chung, by signing a Release of Responsibility Form. (Doc. 31-1 at pp. 7,

73). Furthermore, the medical records confirm that Plaintiff failed to show up for his follow-up

doctor’s appointment at Easterling on July 13, 2020. (Doc. 31-1 at pp. 7, 76-78).

Plaintiff also alleges that the Defendants failed to protect him from COVID-19 infection

by other inmates. (Doc. 37). However, Plaintiff does not specifically state how he allegedly came

into contact with infected individuals at Easterling. Nor does he claim that he ever contracted

COVID-19 himself. Id.

Ruth Naglich, Associate Commissioner for Health Services for the Alabama Department

of Corrections testified that from the outset of the pandemic in March 2020, ADOC

worked to create and implement a plan to respond to the COVID -19 pandemic,

both system wide and at Easterling. (Doc. 79- 1at pp. 1- 16). Further, ADOC

focused its efforts on operational preparedness, education, increased cleaning and

disinfection of facilities, screening, restriction of movement into facilities, and

securing and distributing hygiene, cleaning, and medical supplies. (Doc. 79-1 at pp.

3-8).

In addition to specific movement restrictions, education, and staffing

restrictions, ADOC created and implemented protocols for testing inmates

suspected of being COVID-19 positive, and quarantining and medically isolating

inmates directly exposed to or testing positive for COVID - 19. Decisions on

whether to test an inmate rested with medical personnel based upon criteria

developed by ADOC from CDC Guidance, and in coordination with the three (3)

level quarantine protocol. (Doc. 79-1 at pp. 8-10).

Quarantine and testing occurred based on a three (3) tiered system. (Doc.

79-1 at pp. 10-13). Level one, also known as “watchful wait,” requires inmates

suspected of exposure to a COVID-19 positive person to be isolated from the general

population and monitored for fever and other symptoms of COVID - 19. Level one

does not require testing. (Doc. 79-1 at p. 10). Level two requires an inmate who

exhibits signs or symptoms of COVID-19 or has confirmed prolonged direct

exposure to a person who has tested positive to be isolated and tested for COVID

- 19. (Doc. 79-1 at pp. 11-12). Level three requires medical quarantine for any inmate

who tests positive for COVID -19. (Doc. 79-1 at pp. 12-13). Moreover, Warden Jones

testified that that the Defendants and others employed at Easterling followed

the protocol developed by the Alabama Department of Corrections and

Wexford Health to keep Wilson and all inmates safe from COVID-19.

(Doc. 77-1 at pp. 1-6). Additionally, Warden Jones confirms that at Easterling “inmates who

tested positive were isolated and did not return to population until they were medical cleared.”

(Doc. 67-1 at p. 2). He further denied any knowledge of Plaintiff’s claim about spiders in his

Jello. Id.

B. OFFICIAL CAPACITY

To the extent Plaintiff lodges claims against the Defendants in their official capacities and

seeks monetary damages, these Defendants are entitled to absolute immunity. Official capacity

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

Graham, 473 U. S. 159, 166 (1985). As the Eleventh Circuit has held,

the Eleventh Amendment prohibits federal courts from entertaining suits by private

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

to this prohibition: where the state has waived its immunity or where Congress has

abrogated that immunity. A State’s consent to suit must be unequivocally expressed

in the text of [a] relevant statute. Waiver may not be implied. Id. Likewise,

Congress’ intent to abrogate the States’ immunity from suit must be obvious from

a clear legislative statement.

Selensky v. Alabama, 619 F. App’x 846, 848–49 (11th Cir. 2015) (internal quotation marks and

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

has waived its Eleventh Amendment immunity, see Pennhurst State School & Hospital v.

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

Seminole Tribe v. Florida, 517 U.S. 44, 59 (1996). Neither waiver nor abrogation applies here.

The Alabama Constitution states that “the State of Alabama shall never be made a defendant in

any court of law or equity.” Ala. Const. Art. I, § 14. The Supreme Court has recognized that this

prohibits Alabama from waiving its immunity from suit. Selensky, 619 F. App’x at 849 (citing

Alabama v. Pugh, 438 U.S. 781, 782 (1978) (consent is prohibited by the Alabama Constitution).

“Alabama has not waived its Eleventh Amendment immunity in § 1983 cases, nor has Congress

abated it.” Holmes v. Hale, 701 F. App’x 751, 753 (11th Cir. 2017) (citing Carr v. City of Florence,

Ala., 916 F.2d 1521, 1525 (11th Cir.1990)).

In light of the foregoing, all Defendants are entitled to sovereign immunity under the

Eleventh Amendment for claims seeking monetary damages from them in their official capacities.

Selensky, 619 F. App’x at 849; Harbert Int’l, Inc. v. James, 157 F.3d 1271, 1277 (11th Cir. 1998)

(holding that state officials sued in their official capacities are protected under the Eleventh

Amendment from suit for damages); Edwards v. Wallace Community College, 49 F.3d 1517, 1524

(11th Cir. 1995) (holding that damages are unavailable from state official sued in his official

capacity). Accordingly, all claims against Defendants in their official capacities for monetary

damages are due to be dismissed.

C. DELIBERATE INDIFFERENCE

1. Medical Defendants

The court will now turn its attention to the Plaintiff’s claim that the Medical Defendants treated

him with deliberate indifference by failing to adequately treat his nausea and dehydration, and

delaying treatment for his broken arm, and serving him Jello containing spider parts when he was

housed in the prison infirmary. In order to establish “deliberate indifference to [a] serious medical

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

indifference to that need; and (3) causation between that indifference and the plaintiff’s injury.”

Mann v. Taser Int’l, Inc., 588 F.3d 1291, 1306–07 (11th Cir. 2009). When seeking relief based on

deliberate indifference, an inmate is required to establish “an objectively serious need, an

objectively insufficient response to that need, subjective awareness of facts signaling the need and

an actual inference of required action from those facts.” Taylor v. Adams, 221 F.3d 1254, 1258

(11th Cir. 2000); McElligott v. Foley, 182 F.3d 1248,1255 (11th Cir. 1999) (holding that, for

liability to attach, the official must know of and then disregard an excessive risk to the prisoner).

Regarding the objective component of a deliberate indifference claim, the plaintiff must first show

“an objectively ‘serious medical need[]’ . . . and second, that the response made by [the defendants]

to that need was poor enough to constitute ‘an unnecessary and wanton infliction of pain,’ and not

merely accidental inadequacy, ‘negligen[ce] in diagnos[is] or treat[ment],’ or even ‘[m]edical

malpractice’ actionable under state law.” Taylor, 221 F.3d at 1258 (internal citations omitted). To

proceed on a claim challenging the constitutionality of medical care, “[t]he facts alleged must do

more than contend medical malpractice, misdiagnosis, accidents, [or] poor exercise of medical

judgment.” Daniels v. Williams, 474 U.S. 327, 330–33 (1986). Furthermore, the mere fact that

an inmate desires a different mode of medical treatment does not amount to deliberate indifference

violative of the Constitution. Hamm v. DeKalb County, 774 F.2d 1567, 1575 (11th Cir. 1985).

Besides the objective component, the Plaintiff must satisfy a subjective prong by showing

that the Defendant acted with deliberate indifference. Chandler v. Crosby, 379 F. 3d 1278, 1289-

90 (11th Cir. 2004). This does not require that the prison official purposefully acted to cause harm,

but it does involve something beyond mere negligence. Id. The Eleventh Circuit has recently

clarified under the subjective prong, that a Plaintiff must demonstrate a Defendant “acted with

more than gross negligence” to demonstrate deliberate indifference. Wade v. McDade, 67 F. 4th

1363, 1373 (11th Cir. 2023) (granting summary judgment for nurses and holding that their failure

to ensure inmate received his daily doses of anti-convulsion medicine did not rise to the level of

“more than gross negligence”) citing Goebert v. Lee Cnty., 510 F.3d 1312, 1330 (11th Cir. 2007)

(“an official acts with deliberate indifference when he intentionally delays providing an inmate

with access to medical treatment, knowing that the inmate has a life-threatening condition or an

urgent medical condition that would be exacerbated by delay.”)(Quotation omitted). Indeed, the

Defendant must know of and disregard an “excessive risk to inmate health or safety.” Farmer,

511 U.S. at 837. In other words, “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 that inference.”

Id; see also, Wade, 67 F. 4th at 1374.

Based upon the Court’s independent review of the medical records, the Court concludes

that Plaintiff’s claim of medical deliberate indifference fails. Indeed, the undisputed medical

evidence demonstrates that Wilson was admitted and treated at the Easterling infirmary beginning

April 15, 2020, for his nausea, dehydration and breathing problems until April 19, 2020, when he

was discharged. (Doc. 31-1 at pp. 2-5). This treatment included an ultrasound, x-ray and complete

metabolic panel from which Dr. Pouparinas, who examined him personally on April 16 and 17,

2020, diagnosed acute cholelithiasis. Id. The medical records also confirm that Plaintiff was

prescribed Zofran and Pepto-Bismol for his stomach pain following his discharge from the

infirmary through June 2020. (Doc. 31-1 at pp. 9-65). Further the record indicates that Plaintiff

failed to keep his follow up appointments with Easterling medical staff in May, 2020. (Doc. 31-1

at p. 4). Thus, the record is devoid of evidence from which this Court could conclude that

Defendants “acted with more than gross negligence” when providing medical treatment to Plaintiff

for his nausea, dehydration and breathing problems. Wade, 67 F. 4th at 1373 (11th Cir. 2023).

Concerning the fracture of Plaintiff’s arm, the record confirms that Plaintiff fell on June

18, 2020, and injured his arm. (Doc. 13 at p. 3). He completed a sick call request and a grievance

on the same day complaining about his arm pain. (Doc. 31-1 at p. 5). The medical records

demonstrate he received treatment for his fractured arm beginning June 24, 2020, when he was

seen in the prison infirmary, was provided a sling for 14 days and scheduled for an x-ray on June

26, 2020. (Doc. 31-1 at pp. 6, 68-78). Following the x-ray, which showed “actute non-displaced

fractures of mid radius and ulna”, Plaintiff was referred to Dr. Chung, an orthopedist in

Montgomery, Alabama. (Doc. 31-1 at pp. 6-7, 70-75). On July 7, 2020, Plaintiff declined this

appointment with Dr. Chung, by signing a Release of Responsibility form. (Doc. 31-1 at pp. 7,

73). Furthermore, the medical records confirm that Plaintiff failed to show up for his follow-up

doctor’s appointment at Easterling on July 13, 2020. (Doc. 31-1 at pp. 7, 76-78).

Plaintiff complains about the six-day delay from June 18, 2020 until June 24, 2020, when

he was seen in the infirmary for his arm pain. (Doc. 13 at p. 3). 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). The court concludes that Plaintiff’s claims

premised on delay of treatment also fail because there is no medical evidence in the record which

demonstrates that the alleged delay caused any detrimental effect to Plaintiff. Surber, 206 F. App’x

at 933. Indeed, following his receipt of the sling and x-ray confirming the fracture, Plaintiff failed

to attend his appointment with Dr. Chung, the free-world doctor, and failed to keep his follo-up

appointment with medical personnel at Easterling. Furthermore, to the extent the Plaintiff alleges

that he was due a different mode of medical treatment other than what he received, this does not

amount to deliberate indifference. Hamm, 774 F.2d at 1575. Accordingly, summary judgment is

due to be granted as to all Medical Defendants on Plaintiff’s claims for deliberate indifference.

2. Correctional Defendant – Warden Crow

Likewise, the Court concludes that Plaintiff has failed to establish deliberate indifference

on the part of Warden Crow. Specifically, Wilson has not demonstrated that Warden Crow was

aware of facts establishing “an objectively serious medical need” nor that these he disregarded

any known serious risk to Wilson’s health. Taylor, 221 F.3d at 1258; McElligott, 182 F.3d at

1255 (for liability to attach, the official must know of and then disregard an excessive risk of

harm to the inmate); Quinones, 145 F.3d at 168 (defendant must have actual knowledge of a

serious condition, not just knowledge of symptoms, and ignore known risk to serious condition

to warrant finding of deliberate indifference); Farmer, 511 U.S. at 838 (failure to alleviate

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

indifference). Consequently, summary judgment is due to be granted in favor of Warden Crow

on Wilson’s claim alleging deliberate indifference arising from his access to treatment for his

medical conditions.

Summary judgment is also due to be granted in favor of Warden Crow on the cursory

claim that Plaintiff was not kept safe from COVID-19 exposure while at Easterling. Indeed,

Plaintiff fails to explain how he allegedly came into contact with inmates or correctional

personnel infected by COVID-19. Nor does he claim that he was ever infected with COVID-19.

The undisputed evidence demonstrates that ADOC had a plan and policy to address the COVID

pandemic both system wide and at Easterling, and that this policy was

followed at Easterling. (Doc. 79 -1at pp. 1-16). Furthermore, Warden

Jones testified unequivocally that at Easterling “inmates who tested positive were isolated and

did not return to population until they were medically cleared.” (Doc. 67-1 at p. 2).

Also, Warden Jones denied any knowledge of Plaintiff’s claim about spiders in his Jello.

Id. Indeed, this claim could be dismissed on that basis alone. McElligott, 182 F.3d at 1255 (for

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

inmate). Moreover, the Court notes that Plaintiff’s claim regarding an instance of ingesting spiders

in his Jello, while unpleasant, does not, without more, demonstrate that his constitutional rights

were violated. Indeed, the Constitution requires that prisoners be provided ‘reasonably adequate

food.’” Hamm, 774 F.2d at 1575 (citation and quotation marks omitted). A well-balanced meal of

enough nutritional value to preserve health satisfies this requirement. Id. “The fact that food

occasionally contains foreign objects or sometimes is served cold, while unpleasant, does not

amount to a constitutional deprivation.” Id. (citation and quotation marks omitted); See also,

Bennett v. Misner, 2004 WL 2091473 *20 (D. Or. 2004) (“Neither isolated instances of food

poisoning, temporary lapses in sanitary food service, nor service of meals contaminated with

maggots are sufficiently serious to constitute an Eighth Amendment violation.”). Accordingly,

summary judgment is also due to be granted in favor of Warden Jones on Plaintiff’s claim about

ingesting contaminated food.

D. RESPONDEAT SUPERIOR

Insofar as Wilson seeks to hold Warden Jones liable for the treatment provided by medical

professionals, he is likewise entitled to no relief as

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

health care personnel, to set treatment policy for the medical staff or to intervene in

treatment decisions where they have no actual knowledge that intervention is

necessary to prevent a constitutional wrong. See Vinnedge v. Gibbs, 550 F.2d 926

(4th Cir. 1977) (a medical treatment claim cannot be brought against managing

officers of a prison absent allegations that they were personally connected with the

alleged denial of treatment). Moreover, “supervisory [correctional] officials are

entitled to rely on medical judgments made by medical professionals responsible

for prisoner care. See, e.g., Durmer v. O’Carroll, 991 F.2d 64, 69 (3rd Cir. 1993);

White v. Farrier, 849 F.2d 322, 327 (8th Cir. 1988).” Williams v. Limestone County,

Ala., 198 Fed.Appx. 893, 897 (11th Cir. 2006).

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

Even assuming arguendo that Defendant Warden Crow exerted some control over the

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

treatment, the law is well settled “that Government officials may not be held liable for the

unconstitutional conduct of their subordinates [or co-workers] under the theory of respondeat

superior [or vicarious liability]. . . . A public officer or agent is not responsible for the

misfeasances or position wrongs, or for the nonfeasances, or negligences, or omissions of duty, of

the subagents or servants or other persons properly employed [alongside,] by or under him, in the

discharge of his official duties. Because vicarious liability is inapplicable to . . . § 1983 suits, a

plaintiff must plead that each Government-official defendant, through the official’s own individual

actions, has violated the Constitution.” Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009) (internal

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

Cir. 2003) (holding that “supervisory officials are not liable under § 1983 for the unconstitutional

acts of their subordinates on the basis of respondeat superior or vicarious liability.”); Marsh, 268

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

section 1983 claim.”); Gonzalez v. Reno, 325 F.3d 1228, 1234 (11th Cir.2003) (concluding

supervisory officials are not liable on the basis of respondeat superior or vicarious liability);

Hartley v. Parnell, 193 F.3d 1263, 1269 (11th Cir. 1999) (holding that 42 U.S.C. § 1983 does not

allow a plaintiff to hold supervisory officials liable for the actions of their subordinates under either

a theory of respondeat superior or vicarious liability.). “Absent vicarious liability, each

Government official, his or her title notwithstanding, is only liable for his or her own misconduct.”

Iqbal, 556 U.S. at 677, 129 S.Ct. 1949. Thus, liability for actions of the Medical Defendants could

attach to the Warden Crow only if he “personally participate[d] in the alleged unconstitutional

conduct or [if] there is a causal connection between [their] actions . . . and the alleged constitutional

deprivation.” Cottone, 326 F.3d at 1360.

The record is clear that Warden Crow did not personally participate or have any

involvement, direct or otherwise, in the medical treatment provided to Wilson. The evidentiary

materials before the court demonstrate that medical personnel made all decisions relative to the

treatment provided to Wilson and provided treatment to him in accordance with their professional

judgment upon assessment of his physical condition. (Docs. 31-1 at pp. 1-8; 31-2 at pp. 1-2; 31-3

at pp. 1-2).

In light of the foregoing, Warden Crow can be held liable for decisions of medical

personnel only if they undertook actions which bear a causal relationship to the purported violation

of Wilson’s constitutional rights. To establish the requisite causal connection and therefore avoid

entry of summary judgment in favor of the correctional defendants, Wilson must present sufficient

evidence which would be admissible at trial of either “a history of widespread abuse [that] put[]

[the defendants] on notice of the need to correct the alleged deprivation, and [they] fail[ed] to do

so” or “a . . . custom or policy [that] result[ed] in deliberate indifference to [his medical needs], or

. . . facts [that] support an inference that [the correctional defendants] directed the [facility’s health

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

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

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

Wilson has failed to meet this burden.

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

Warden Crow directed medical personnel to act unlawfully or knew that they would act unlawfully

and failed to stop such action. In addition, Wilson has presented no evidence of obvious, flagrant

or rampant abuse of continuing duration regarding his receipt of medical treatment in the face of

which these defendants failed to take corrective action; instead, the undisputed medical records

indicate that Wilson had continuous access to medical personnel and received treatment for his

medical conditions. The undisputed records also demonstrate that the challenged course of

medical treatment did not occur pursuant to a policy enacted by Warden Crow. Thus, the requisite

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

not justified. Cf. Employment Div. v. Smith, 494 U.S. 872, 877, 110 S.Ct. 1595, 108 L.Ed.2d 876

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

claims against Warden Crow in his supervisory capacity also fail for the reasons stated above.

For the above stated reasons, it is the RECOMMENDATION of the Magistrate Judge that

1. The Defendant’s motions for summary judgment (Docs. 31, 36, 42, 48, 57, 58, 67,

73, 77, 79) be GRANTED.

2. Judgment be GRANTED in favor of the Defendants.

3. This case be DISMISSED with prejudice.

4. Costs be taxed against the Plaintiff.

On or before August 11, 2023, the plaintiff may file objections to the Recommendation.

Any objections filed must specifically identify the findings in the Magistrate Judge’s

Recommendation to which he objects. Frivolous, conclusive or general objections will not be

considered by the District Court. The plaintiff is advised that this Recommendation is not a final

order of the court and, therefore, it is not appealable.

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

Magistrate Judge’s report 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)(“When the magistrate

provides such notice and a party still fails to object to the findings of fact and those findings are

adopted by the district court the party may not challenge them on appeal in the absence of plain

error or manifest injustice.”); Henley v. Johnson, 885 F.2d 790, 794 (11th Cir. 1989).

DONE this 28th day of July, 2023.

/s/ Charles S. Coody

CHARLES S. COODY

UNITED STATES MAGISTRATE JUDGE