Betty Wade v. Georgia Correctional Health, LLC

USCA11 Case: 21-14275 Document: 86-1 Date Filed: 12/23/2024 Page: 1 of 23

[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 21-14275

____________________

BETTY WADE,

in her capacity as Personal Representative of the Estate of David

Henegar,

Plaintiff-Appellant,

versus

CINDY MCDADE, et al.,

Defendants-Appellees.

____________________

Appeal from the United States District Court

for the Northern District of Georgia

D.C. Docket No. 4:18-cv-00192-AT

____________________

USCA11 Case: 21-14275 Document: 86-1 Date Filed: 12/23/2024 Page: 2 of 23

2 Opinion of the Court 21-14275

Before NEWSOM, LUCK, and TJOFLAT, Circuit Judges.

NEWSOM, Circuit Judge:

Over a four-day stretch during his incarceration at Walker

State Prison in Georgia, David Henegar failed to receive his pre-

scribed seizure medication. On the fourth night, Henegar had two

seizures that he claimed caused permanent brain damage. Pro-

ceeding under 42 U.S.C. § 1983, Henegar sued five prison employ-

ees—Lieutenant John Stroh and Sergeant Jerome Scott Keith, as

well as nurses Sherri Lee, Julie Harrell, and Cindy McDade—alleg-

ing that they were deliberately indifferent to his medical needs in

violation of the Eighth Amendment.

The district court granted summary judgment to all five de-

fendants on the ground that they were entitled to qualified immun-

ity. Shortly thereafter, Henegar died from causes unrelated to the

seizures that he suffered while in prison. Betty Wade—Henegar’s

sister and the personal representative of his estate—assumed re-

sponsibility for his suit, and on appeal contended that the district

court had erred in granting the defendants summary judgment.

We affirmed the district court’s decision, concluding that

Wade hadn’t shown that the prison officials violated Henegar’s

Eighth Amendment rights. See Wade v. McDade, 67 F.4th 1363,

1374–78 (11th Cir. 2023), vacated and reh’g en banc granted sub nom.

Wade v. Georgia Corr. Health, LLC, 83 F.4th 1332 (11th Cir. 2023),

and on reh’g en banc, 106 F.4th 1251 (11th Cir. 2024). In the course

of so doing, we called attention to a deep and entrenched

USCA11 Case: 21-14275 Document: 86-1 Date Filed: 12/23/2024 Page: 3 of 23

21-14275 Opinion of the Court 3

intracircuit split concerning the mens rea requirement necessary to

make out a deliberate-indifference claim. Id. at 1371–72.

To clear the confusion and to determine once and for all the

necessary elements of a deliberate-indifference claim, a majority of

the active judges of this Court voted to rehear this case en banc.

See Wade v. Georgia Corr. Health, LLC, 83 F.4th 1332 (11th Cir. 2023).

On rehearing, the en banc Court articulated—in accordance with

the Supreme Court’s decision in Farmer v. Brennan, 511 U.S. 825

(1994)—the following standard for establishing liability on an

Eighth Amendment deliberate-indifference claim:

1. First . . ., the plaintiff must demonstrate, as a

threshold matter, that he suffered a deprivation that

was, objectively, sufficiently serious.

2. Second, the plaintiff must demonstrate that

the defendant acted with subjective recklessness as

used in the criminal law, and to do so he must show

that the defendant was actually, subjectively aware

that his own conduct caused a substantial risk of seri-

ous harm to the plaintiff—with the caveat . . . that

even if the defendant actually knew of a substantial

risk to inmate health or safety, he cannot be found li-

able under the Cruel and Unusual Punishments

Clause if he responded reasonably to the risk.

Wade v. McDade, 106 F.4th 1251, 1262 (11th Cir. 2024) (en banc) (ci-

tations and quotation marks omitted). The en banc Court

USCA11 Case: 21-14275 Document: 86-1 Date Filed: 12/23/2024 Page: 4 of 23

4 Opinion of the Court 21-14275

“remand[ed] to the panel for the application of this standard to the

facts of this case.” Id.

Applying the newly clarified standard to each of the five de-

fendants, we now hold that none of them was deliberately indiffer-

ent to Henegar’s medical needs and, therefore, that none of them

violated the Eighth Amendment. Accordingly, we affirm the dis-

trict court’s decision granting summary judgment to all five de-

fendants.

I

A

Because this case comes to us on appeal from a decision

granting summary judgment, “we must view all the evidence and

all factual inferences reasonably drawn from the evidence in the

light most favorable to the nonmoving party.” Stewart v. Happy

Herman’s Cheshire Bridge, Inc., 117 F.3d 1278, 1285 (11th Cir. 1997).

We therefore construe the facts in Wade’s favor, noting factual dis-

putes—overwhelmingly here, between and among the various de-

fendants—where necessary.

Because the facts underlying this case on remand haven’t

changed, we will simply repeat verbatim our earlier description of

them:

While serving his sentence at Walker State Prison, Henegar

was diagnosed with epilepsy. Initially, his condition was well-con-

trolled with a daily anticonvulsant called Dilantin. The epileptic

episode at issue here followed a four-day period—from Sunday,

USCA11 Case: 21-14275 Document: 86-1 Date Filed: 12/23/2024 Page: 5 of 23

21-14275 Opinion of the Court 5

August 28, to Wednesday, August 31, 2016—during which Henegar

didn’t receive his medication.

First, a brief introduction of the five defendants: Nurses Ju-

lie Harrell and Sherri Lee worked the day shift on weekdays in the

prison medical unit. As relevant here, both were on duty from

Monday, August 29, through Thursday, September 1. Lieutenant

John Stroh and Sergeant Jerome Scott Keith both worked the night

shift on Sunday, August 28, when Henegar missed his first dose of

Dilantin, and then didn’t return to work until the evening of

Wednesday, August 31. Nurse Cindy McDade was the nursing

manager; the parties agree that she never treated Henegar or saw

or spoke to him during the four days in question.

In August 2016, Nurse Mary Ann Melton, who isn’t a party

to this litigation, was responsible for ordering inmates’ medica-

tions. She worked at the prison until Saturday, August 25, at which

point she went on medical leave for several months. Nurse Melton

usually ordered refills of inmates’ medications from the Georgia

Department of Corrections’ pharmacy shortly before they ran out.

On Thursday, August 23—just before going on leave—Nurse

Melton ordered Henegar’s Dilantin. Medications ordinarily arrived

within one to two business days, and almost always within three.

For reasons still unknown, Henegar’s Dilantin wasn’t delivered un-

til sometime after Wednesday, August 31. Typically, if a prisoner’s

medicine didn’t arrive as expected, Nurse Melton would follow up

with the pharmacy. In Nurse Melton’s absence, Nurse Harrell or-

dered medications, recorded them in a binder when they arrived,

USCA11 Case: 21-14275 Document: 86-1 Date Filed: 12/23/2024 Page: 6 of 23

6 Opinion of the Court 21-14275

cross-checked to ensure all orders had been delivered, and invento-

ried and stocked the prison’s “pill cart.” Nurse McDade occasion-

ally helped order and stock medicines, but it typically fell to Nurse

Harrell to cover Nurse Melton’s duties.

As it turns out, despite the delay in the delivery of Henegar’s

Dilantin, the prison had the medication on hand; there was a

backup supply in the medical department’s “standard ward inven-

tory.” All nurses had access to that supply, and any nurse could also

obtain Dilantin on short notice from a local pharmacy. Corrections

officers, by contrast, didn’t have access to the backup supply and

couldn’t order new medicines.

There were four “pill calls” each day at regular intervals—

5:00 a.m., 11:00 a.m., 4:00 p.m., and 9:00 p.m. Henegar was as-

signed to receive his medication at the 9:00 p.m. call. During regu-

lar hours on weekdays, nurses administered inmates’ medicines;

Nurse Lee, for instance, conducted the 5:00 a.m. pill call each

morning. At night and on weekends, though, no medical person-

nel were onsite, so corrections officers distributed medications.

During those pill calls, an officer would review a prisoner’s medi-

cation administration record (“MAR”) to determine what medicine

he needed and then retrieve it from the pill cart. If there was an

issue with distributing or administering an inmate’s medication,

the officer was supposed to make a notation to that effect in his

MAR. Standard notations included “A” for “administered,” “N” for

“no-show,” “R” for “refused,” and “A/W” for “accepted but

wasted.”

USCA11 Case: 21-14275 Document: 86-1 Date Filed: 12/23/2024 Page: 7 of 23

21-14275 Opinion of the Court 7

When Henegar attended the 9:00 p.m. pill call on Sunday,

August 28, his Dilantin wasn’t on the cart. Lieutenant Stroh was

supervising that night, and Sergeant Keith, who was administering

the pill call, made an “unidentifiable marking” in Henegar’s MAR.

It wasn’t one of the four standard notations that officers had been

trained to use in MARs.

Having missed his August 28 dose, Henegar returned to the

9:00 p.m. pill calls on August 29 and 30, to no avail. As already ex-

plained, both Lieutenant Stroh and Sergeant Keith were off those

days. The corrections officers who conducted those pill calls put

“question marks” in Henegar’s MAR. It is undisputed that “it

would be unusual for [a question mark] to appear in the medication

[b]inder.” Although we don’t know who, someone also put a post-

it note on Henegar’s file to indicate that there had been a problem

with administering his medication—the parties agree that it

“st[uck] out . . . like a flag” from Henegar’s file in the pill cart.

At some point on either August 29 or 30, Henegar also at-

tended a daytime pill call but still didn’t receive his Dilantin. He

spoke to a nurse at the time, although he couldn’t remember ex-

actly when or which one. The only nurses working daytime pill

calls on those days were Nurses Harrell and Lee. Nurse Harrell

admits having inventoried the pill cart at least once during the days

when Henegar went without his medication and checking the

binder of prescription deliveries daily. Nonetheless, she insists that

she didn’t know that Henegar was out of his Dilantin.

USCA11 Case: 21-14275 Document: 86-1 Date Filed: 12/23/2024 Page: 8 of 23

8 Opinion of the Court 21-14275

On Wednesday night, August 31, Lieutenant Stroh and Ser-

geant Keith were back on duty together, and Sergeant Keith once

again conducted the 9:00 p.m. pill call. When Henegar showed up

and his Dilantin still wasn’t on the pill cart, Sergeant Keith recorded

another question mark in the MAR. One of the two officers told

Henegar to go to the sick bay the following morning.

At 10:50 p.m. that same day, having been without his Dilan-

tin for four days, Henegar suffered a nearly 20-minute seizure that

induced status epilepticus—a condition that can cause brain dam-

age. The resulting injury usually centers in the hippocampus,

which regulates memory and mood. The on-call doctor didn’t an-

swer Lieutenant Stroh’s call, so he phoned Nurse McDade, who in-

structed him to call 911. Henegar was transported to the emer-

gency room, treated, and returned to the prison at around 2:30 a.m.

on September 1.

Just two hours later, Henegar suffered another seizure that

left him oxygen-deprived for about 20 minutes. When Lieutenant

Stroh and Sergeant Keith arrived at Henegar’s cell, his seizure had

subsided. Lieutenant Stroh called Nurse McDade again at home to

report the incident, and she told him to have Nurse Lee examine

Henegar when she arrived.

When Nurse Lee arrived at the prison around 5:00 a.m., she

took Henegar to the medical unit, examined him, and found that

his oxygen level was 81%—a low but not critical level—and that his

pupils were slow to dilate but otherwise functioning correctly. She

USCA11 Case: 21-14275 Document: 86-1 Date Filed: 12/23/2024 Page: 9 of 23

21-14275 Opinion of the Court 9

determined that he needed supplemental oxygen and additional

seizure-prevention measures, so she sent him back to the hospital.

Later that day, Nurse McDade investigated the incident and

contacted the pharmacy to ensure that Henegar’s Dilantin was de-

livered. She also switched administration of all anti-seizure medi-

cations from the 9:00 p.m. pill call to the 4:00 p.m. pill call so that

nurses, rather than corrections officers, would be in charge of dis-

tribution. Nurse McDade reports that a similar situation had never

occurred before.

Following the August 2016 incident, Henegar regularly re-

ceived his medication until his release a year later. The defendants

all but acknowledge that a breakdown in communication between

nurses, the pharmacy, and corrections officers caused Henegar’s

injuries. After his release, Henegar began to struggle with his

short-term memory, finding himself unable to remember everyday

conversations and keep up with his welding job. He came to rely

on his mother, with whom he lived, to remind him about medical

appointments, and he suffered strained relationships because he

was no longer able to regulate his emotions.

* * *

One last “factual” issue: There’s a fair amount of finger-

pointing among the defendants. For instance, Nurse McDade in-

sists that she trained corrections officers to communicate with

nurses about an inmate’s medication both “through the MAR and

verbally.” (For her part, Wade likewise alleges that the officers had

been trained to contact the on-call nurse immediately when a

USCA11 Case: 21-14275 Document: 86-1 Date Filed: 12/23/2024 Page: 10 of 23

10 Opinion of the Court 21-14275

question about medication arose.) And it is undisputed that neither

Sergeant Keith nor Lieutenant Stroh called a nurse immediately

when Henegar initially missed his medication on August 28.

Lieutenant Stroh and Sergeant Keith respond in three ways.

First, they say—and all agree about this much—that they believed

(even if incorrectly) that the medical staff reviewed their notations

in the MARs every morning, although Nurse McDade rejoins that

she didn’t train them to think that. Second, the officers assert that

they considered it an inmate’s responsibility to notify the medical

staff if his medicine was unavailable and that officers were sup-

posed to communicate with the medical staff exclusively through

MARs. Sergeant Keith, in particular, testified that his practice was

to contact the on-call nurse only when there were discrepancies

with a prisoner’s medication—say, if a pill on the cart didn’t match

the prisoner’s prescription—not when medication was missing en-

tirely. Finally, Sergeant Keith claims (1) that he did tell at least one

nurse verbally about the problem either late on August 28 or early

on August 29, (2) that it must have been Nurse Lee because she was

the only one whose shift overlapped with his, and (3) that, in any

event, the nurse with whom he spoke told him that Henegar’s Di-

lantin was “on order.”

In return, the nurses seek to shift blame back to the officers.

For instance, Nurse Lee denies that Sergeant Keith ever told her

about Henegar’s missing Dilantin. And more generally, all of the

nurses deny that either Lieutenant Stroh or Sergeant Keith told

USCA11 Case: 21-14275 Document: 86-1 Date Filed: 12/23/2024 Page: 11 of 23

21-14275 Opinion of the Court 11

them anything—they insist that they were completely unaware

that Henegar was out of Dilantin.

The nurses also point fingers at one another. Nurse Melton,

for instance, testified that it was Nurse Lee’s responsibility to check

the MARs from the previous night’s 9:00 p.m. pill call to determine

whether there had been medication-related problems. Wade

agrees that Nurse Lee was supposed to check the MARs and, ac-

cordingly, that she either knew or should have known that Henegar

had been missing his Dilantin doses. Nurse Lee, naturally, denies

that it was her responsibility either (1) to review the previous

night’s or weekend’s MARs or (2) to communicate with corrections

officers or solicit reports on the nighttime pill call. For her part,

Nurse McDade testified that she didn’t double-check to ensure that

line nurses were reviewing the nighttime MARs or the medication-

order binder because she didn’t want to “micromanage” them.

B

Henegar sued Lieutenant Stroh, Sergeant Keith, and Nurses

Harrell, Lee, and McDade under 42 U.S.C. § 1983, alleging that

each of them had been deliberately indifferent to his serious medi-

cal needs in violation of the Eighth Amendment. The district court

granted summary judgment to all defendants on the ground that

each was entitled to qualified immunity. In particular, the court

held that even if one or more of the defendants had violated the

Constitution, the law in August 2016 was insufficiently “clearly es-

tablished” to give them fair notice of the unlawfulness of their con-

duct: “Assuming Defendants’ conduct here constituted deliberate

USCA11 Case: 21-14275 Document: 86-1 Date Filed: 12/23/2024 Page: 12 of 23

12 Opinion of the Court 21-14275

indifference to a serious medical need in violation of Plaintiff’s

Eighth Amendment rights, Plaintiff ha[d] failed to point to any law

applicable to the circumstances presented in this case that clearly

established the alleged violation of Plaintiff’s rights.”

Henegar’s sister, Betty Wade, assumed responsibility for his

suit following his death, and on appeal she contends that the district

court erred in granting the defendants summary judgment.1

On remand from the en banc Court’s decision clarifying the

proper Eighth Amendment deliberate-indifference standard, we

must determine (1) whether, in addition to an objectively serious

deprivation, Wade has demonstrated that the defendants here ac-

tually knew that their conduct (whether acts or omissions) put

Henegar at substantial risk of serious harm and (2) whether, even

if they did, they are nonetheless protected from liability on the

ground that they responded reasonably to that risk. See Wade, 106

F.4th at 1253.

For reasons we’ll explain, we hold that, under this standard,

Wade failed to prove that any of the five defendants was deliber-

ately indifferent to Henegar’s medical needs in violation of the

Eighth Amendment. Accordingly, all five defendants are entitled to

qualified immunity.

1 We review a district court’s grant of summary judgment de novo. See Stew-

art, 117 F.3d at 1285.

USCA11 Case: 21-14275 Document: 86-1 Date Filed: 12/23/2024 Page: 13 of 23

21-14275 Opinion of the Court 13

II

A government official sued under § 1983 may defend on the

ground that he or she has qualified immunity from suit. “[Q]uali-

fied immunity protects government officials ‘from liability for civil

damages insofar as their conduct does not violate clearly estab-

lished statutory or constitutional rights of which a reasonable per-

son would have known.’” Pearson v. Callahan, 555 U.S. 223, 231

(2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). Be-

cause all agree that the defendants here were at all relevant times

performing discretionary functions of their offices, see Glasscox v.

City of Argo, 903 F.3d 1207, 1213 (11th Cir. 2018), Wade has the bur-

den both (1) to “make out a violation of a constitutional right” and

(2) to show that the right that she claims the defendants violated

was “clearly established at the time of [their] alleged misconduct.”

Pearson, 555 U.S. at 232 (quotation marks omitted).

A reviewing court may consider the two prongs of the qual-

ified-immunity standard in either order. Id. at 236. As already ex-

plained, the district court here bypassed the first prong—“[a]ssum-

ing” that the defendants had violated the Eighth Amendment—in

favor of deciding the case on the ground that Wade hadn’t shown

that applicable law was “clearly established.” We think it best—and

find that we are able—to resolve the case on the first, “violation”

prong.

* * *

In relevant part, the Eighth Amendment forbids the “in-

flict[ion]” of “cruel and unusual punishments.” U.S. Const. amend.

USCA11 Case: 21-14275 Document: 86-1 Date Filed: 12/23/2024 Page: 14 of 23

14 Opinion of the Court 21-14275

VIII. The Supreme Court first held in Estelle v. Gamble that the

Cruel and Unusual Punishments Clause should be understood to

prohibit “deliberate indifference to serious medical needs of pris-

oners.” 429 U.S. 97, 104–05 (1976). As it has evolved in the years

since Estelle, a deliberate-indifference claim has come to entail both

an objective and a subjective component. See Keohane v. Florida

Dep’t of Corr. Sec’y, 952 F.3d 1257, 1266 (11th Cir. 2020). As an initial

matter, the plaintiff-inmate must establish an “objectively serious

medical need.” Id. (citation omitted). It is undisputed, as relevant

here, that an unmedicated seizure disorder satisfies that objective

threshold.

In addition, the plaintiff must prove that the defendant

“acted with ‘subjective recklessness as used in the criminal law,’”

i.e., that the defendant “actually knew that his conduct—his own

acts or omissions—put the plaintiff at substantial risk of serious

harm.” Wade, 106 F.4th at 1253 (quoting Farmer, 511 U.S. at 839).

There is a “caveat,” however: Even if the plaintiff makes that show-

ing, however, a defendant “cannot be found liable under the Cruel

and Unusual Punishments Clause if he ‘responded reasonably to

th[at] risk.’” Id. (alteration in original) (quoting Farmer, 511 U.S. at

844).

We’ll apply the en banc Court’s recently articulated deliber-

ate-indifference standard to each of our five defendants in turn.

USCA11 Case: 21-14275 Document: 86-1 Date Filed: 12/23/2024 Page: 15 of 23

21-14275 Opinion of the Court 15

A

We begin with the corrections officers—Lieutenant Stroh 2

and Sergeant Keith. Our analysis of Wade’s claim against Lieuten-

ant Stroh is straightforward: Wade failed to demonstrate that Lieu-

tenant Stroh had subjective knowledge of a “substantial risk of se-

rious harm” to Henegar at all—let alone one caused by his own

conduct. Wade, 106 F.4th at 1262. “Whether a prison official had

the requisite knowledge of a substantial risk is a question of fact

subject to demonstration in the usual ways, including inference

from circumstantial evidence . . . .” Farmer, 511 U.S. at 842. Here,

Lieutenant Stroh consistently testified that he didn’t “have a sense

of urgency” about Henegar’s missing medication because his son—

who also suffered from epilepsy—could miss doses of his seizure

medication without incident. So while Lieutenant Stroh acknowl-

edged that he knew that an unmedicated seizure disorder consti-

tuted a serious health risk, he didn’t know that missing medication

for just a few days could produce that risk. Because he lacked the

requisite subjective knowledge of a substantial risk, Lieutenant

Stroh was not deliberately indifferent to Henegar’s medical needs,

and the district court correctly granted him summary judgment.

2 Although Lieutenant Stroh was Sergeant Keith’s supervisor, “[i]t is well es-

tablished in this circuit that supervisory officials are not liable under § 1983 for

the unconstitutional acts of their subordinates on the basis of respondeat su-

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

1999) (citation and quotation marks omitted). Accordingly, our review is lim-

ited to the question whether Lieutenant Stroh himself exhibited deliberate in-

difference to Henegar’s serious medical needs.

USCA11 Case: 21-14275 Document: 86-1 Date Filed: 12/23/2024 Page: 16 of 23

16 Opinion of the Court 21-14275

Next, Sergeant Keith. It’s undisputed that Sergeant Keith

made MAR notations on the first and fourth nights that Henegar

missed his Dilantin in an attempt to signal problems with adminis-

tering his Dilantin and that he believed (even if incorrectly) that the

nurses generally reviewed MAR notations. The defendants dispute

among themselves, though, whether Sergeant Keith ever told a

nurse. Construing the facts in the light most favorable to Wade,

we’ll assume that he never verbally told a nurse about the problem

as (we’ll also assume) he had been trained to do. 3 But this shows,

at most, that he was subjectively aware of a substantial risk, not

that the risk was caused by his own conduct. See Wade, 106 F.4th at

1262. Accordingly, the district court correctly granted him sum-

mary judgment as well.

B

Nurses Harrell and Lee are closer calls. Circumstantial evi-

dence—which Farmer says we may consider and from which we

may draw reasonable inferences—indicates that both knew that

3 Wade asks us to consider alternate theories of liability in her favor. So, for

instance, she says that when considering her claim against Sergeant Keith, we

should assume that he did not tell a nurse that Henegar’s Dilantin was missing,

as he had been trained to do—which would render him more culpable. But,

she says, when considering her claim against Nurse Lee, we should assume

that Keith did tell her and that she did almost nothing in response—which

would render her more culpable. We agree that she is entitled to argue alter-

nate theories of liability at summary judgment, so we draw both reasonable

inferences. Brookhaven Landscape & Grading Co. v. J.F. Barton Contracting Co.,

676 F.2d 516, 523 (11th Cir. 1982) (“Litigants in federal court may pursue alter-

native theories of recovery, regardless of their consistency.”).

USCA11 Case: 21-14275 Document: 86-1 Date Filed: 12/23/2024 Page: 17 of 23

21-14275 Opinion of the Court 17

Henegar wasn’t getting his Dilantin, and we may further assume

that, as medical professionals, both knew that he faced a risk of se-

rious harm without it.

Nurse Harrell, in particular, doesn’t dispute either that she

staffed the daytime pill calls on three of the four days that Henegar

missed his medication or that he attended at least one daytime pill

call during those days. She also admits that she inventoried the pill

cart at least once during those days—on either Monday, August 29,

or Wednesday, August 31—and that an unusual post-it note had

been attached to and was protruding from Henegar’s MAR during

that period.

As to Nurse Lee, we must assume that she was supposed to

check the previous night’s MARs to determine whether there were

problems with administering an inmate’s medications. And taking

the facts in the light most favorable to Wade vis-à-vis Nurse Lee,

we must also assume that Sergeant Keith actually told her either

late on Sunday or early on Monday that Henegar was missing his

medication.

Construing the facts in Wade’s favor, we can reasonably infer

that Nurse Harrell and Nurse Lee knew about the backup Dilantin

supply, had access to it, and had the ability to order medications

from either the prison-system pharmacy or a local pharmacy. And

yet no one suggests that either attempted to order or obtain backup

Dilantin for Henegar. But even assuming that this is sufficient to

establish both that Nurses Harrell and Lee were subjectively aware

of the substantial risk of harm to Henegar and that their own

USCA11 Case: 21-14275 Document: 86-1 Date Filed: 12/23/2024 Page: 18 of 23

18 Opinion of the Court 21-14275

conduct created that risk, we conclude that Farmer’s “caveat” pro-

tects them from liability here. Wade, 106 F.4th at 1253, 1262.

Importantly, Henegar testified that when he told the day-

time-pill-call nurse that he was out—he couldn’t remember who it

was—she responded that his Dilantin was “on order” from the

prison system’s pharmacy. And Sergeant Keith, of course, said that

Nurse Lee responded the same way—that the medicine “had been

ordered”—when he told her that Henegar’s Dilantin had run out.

These facts show that both Nurse Harrell and Nurse Lee—

aware that Henegar was missing his Dilantin—checked to ensure

that it would be arriving soon and reported that it was “on order.”

The nurses’ decision to wait on the Dilantin to be delivered—which

typically took one to two (at most three) business days—rather

than to obtain a substitute dose from the supply closet or a local

pharmacy may have been (in hindsight) regrettable, but we cannot

say that it was unreasonable. Because Farmer makes clear that a de-

fendant “cannot be found liable under the Cruel and Unusual Pun-

ishments Clause” if she “responded reasonably to the risk,” Nurses

Harrell and Lee are not liable here. Farmer, 511 U.S. at 844–45.

Therefore, the district court properly granted them summary judg-

ment.

C

Wade’s claim against Nurse McDade is different in that it

names her in her supervisory capacity, and therefore our assess-

ment of her liability remains the same as before.

USCA11 Case: 21-14275 Document: 86-1 Date Filed: 12/23/2024 Page: 19 of 23

21-14275 Opinion of the Court 19

Where, as here, there is no allegation that a supervisor “per-

sonally participated” in any wrongdoing, she can be held liable only

if she “instigated or adopted a policy that violated [the plaintiff’s]

constitutional rights.” Adams v. Poag, 61 F.3d 1537, 1544 (11th Cir.

1995). We have emphasized that “[t]he standard by which a super-

visor is held liable in her individual capacity for the actions of a sub-

ordinate is extremely rigorous.” Braddy v. Florida Dep’t of Lab. &

Emp. Sec., 133 F.3d 797, 802 (11th Cir. 1998).

Policy-based supervisory liability can result either where a

challenged policy is unconstitutional on its face or where it is “im-

plemented in an unconstitutional manner.” See Goebert v. Lee Cnty.,

510 F.3d 1312, 1332 (11th Cir. 2007). To succeed on an implemen-

tation-based challenge, a plaintiff must show, among other things,

that the supervisor “had actual or constructive notice of a flagrant,

persistent pattern of violations.” Id.

Wade challenges two of Nurse McDade’s policies. First, she

targets the MAR policy. Nurse McDade, of course, insists that she

trained the officers to call a nurse immediately if a problem arose

dispensing an inmate’s medication; Lieutenant Stroh and Sergeant

Keith deny that she did so. Construing the facts in the light most

favorable to Wade vis-à-vis Nurse McDade, we will assume that

she didn’t train the officers to contact a nurse if they encountered

medication-related issues and that her system relied entirely on

MAR notifications. Even so, an MAR-only policy—while not

ideal—is not deliberately indifferent on its face. It would not, as

Wade asserts, necessarily “fail[ ] to ensure that [Lieutenant] Stroh

USCA11 Case: 21-14275 Document: 86-1 Date Filed: 12/23/2024 Page: 20 of 23

20 Opinion of the Court 21-14275

and [Sergeant] Keith had an effective mechanism to communicate

with medical at times when there were no medical staff on duty.”

Br. of Appellant at 30–31; see Goebert, 510 F.3d at 1332 (holding that

a “policy of not permitting inmates to lie down at their leisure dur-

ing the daytime” was “certainly [ ] not facially unconstitutional” in

a case involving a pregnant woman who, when denied an exemp-

tion, suffered a miscarriage). That is especially true given the un-

disputed fact that there was a medical staff member on call.

Second, Wade alleges that Nurse McDade was deliberately

indifferent for “failing to properly ensure her subordinates,

[Nurses] Lee and Harrell, searched the MARs daily for communi-

cations from security, or otherwise check to be sure all medications

were on the pill cart.” Br. of Appellant at 31. To the extent that

Wade assails that policy on its face, her challenge fails. It was not

facially deliberately indifferent for Nurse McDade to expect subor-

dinates to check MARs daily without looking over their shoulders,

especially given that she had established an elaborate system of or-

dering, cross-checking, and inventorying the pill cart to ensure that

each inmate received his medicine. Cf. Goebert, 510 F.3d at 1332.

We likewise reject any implementation-based challenge, alt-

hough doing so requires a bit more explanation. For implementa-

tion-related deliberate-indifference claims, “[w]e apply a three-

prong test to determine a supervisor’s liability: (1) whether the su-

pervisor’s failure to adequately train and supervise subordinates

constituted deliberate indifference to an inmate’s medical needs;

(2) whether a reasonable person in the supervisor’s position would

USCA11 Case: 21-14275 Document: 86-1 Date Filed: 12/23/2024 Page: 21 of 23

21-14275 Opinion of the Court 21

understand that the failure to train and supervise constituted delib-

erate indifference; and (3) whether the supervisor’s conduct was

causally related to the subordinate’s constitutional violation.”

Poag, 61 F.3d at 1544. Here, for reasons we will explain, Wade can-

not meet the third, causation element; accordingly, her challenge

fails.

For our purposes, a causal connection is shown when: (1) “a

history of widespread abuse puts the responsible supervisor on no-

tice of the need to correct the alleged deprivation, and he fails to

do so”; (2) “a supervisor’s custom or policy . . . results in deliberate

indifference to constitutional rights”; or (3) “facts support an infer-

ence 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.” Cottone v. Jenne, 326 F.3d 1352, 1360

(11th Cir. 2003) (alteration accepted) (citations and quotation

marks omitted), abrogated in part on other grounds by Randall v. Scott,

610 F.3d 701 (11th Cir. 2010). None of those requirements is satis-

fied here.

First, Wade hasn’t alleged any facts to indicate that there

was a “history of widespread abuse” sufficient to put Nurse

McDade on “actual or constructive notice of a flagrant, persistent

pattern of violations.” Goebert, 510 F.3d at 1332 (citation omitted).

It is undisputed (1) that Henegar’s condition was well-controlled

before the incident that underlies this case and (2) that he received

his medication regularly thereafter until his release. And Wade has

USCA11 Case: 21-14275 Document: 86-1 Date Filed: 12/23/2024 Page: 22 of 23

22 Opinion of the Court 21-14275

pointed to no evidence of a pattern of similar violations with re-

spect to other inmates, either.

Second, and for similar reasons, there is no evidence that a

policy of trusting subordinates to monitor the MARs and manage

the pill cart generally “results in deliberate indifference to constitu-

tional rights.” Cottone, 326 F.3d at 1360 (alteration accepted) (cita-

tion and quotation marks omitted). Lieutenant Stroh testified that

in 23 years at the prison, it was not “typical” for medication to be

missing, McDade testified that no comparable situation had ever

occurred, and Wade has alleged no facts to the contrary. Though

failing to double-check subordinates’ work might open cracks in

the system to accidents and oversights, “[m]edical malpractice does

not become a constitutional violation merely because the victim is

a prisoner.” Estelle, 429 U.S. at 106. Compare, e.g., Doe v. School Bd.

of Broward Cnty., 604 F.3d 1248, 1266 (11th Cir. 2010) (holding that

allegations that supervisors had been aware of “two instances of

sexual harassment” were insufficient to “show the requisite causal

connection” for deliberate-indifference purposes), with, e.g., Valdes

v. Crosby, 450 F.3d 1231, 1243–44 (11th Cir. 2006) (holding that

plaintiff’s deliberate-indifference claim against prison warden sur-

vived summary judgment when warden had received at least 13

complaints and inquiries in 13 months before the plaintiff’s son’s

death at the hands of prison guards).

Finally, there have been no allegations that Nurse McDade

directed subordinates to act unlawfully or knew that subordinates

would do so and failed to stop them. At worst, perhaps she should

USCA11 Case: 21-14275 Document: 86-1 Date Filed: 12/23/2024 Page: 23 of 23

21-14275 Opinion of the Court 23

have assumed that mistakes might occur if she didn’t review

nurses’ work on the MARs. That is not enough.

III

We echo the district court’s lament that the defendants’

“careless actions and their systemic communication failures caused

Mr. Henegar serious suffering” and “irreparably altered his life.”

Doc. 168 at 32. Even so, the bar to proving an Eighth Amendment

deliberate-indifference claim is appropriately high, and we con-

clude that Wade hasn’t met it. Because we conclude that Hene-

gar’s Eighth Amendment rights weren’t violated, the “clearly es-

tablished” analysis never comes into play. We therefore affirm the

district court’s order granting all five defendants summary judg-

ment.

AFFIRMED.