The opinion
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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 14-11772
Non-Argument Calendar
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D. C. Docket No. 1:12-cv-24169-UU
GEORGE PINO,
Plaintiff-Appellant,
versus
WILLIAM NIELDS, et al.,
Defendants-Appellees.
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Appeal from the United States District Court
for the Southern District of Florida
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(March 13, 2015)
Before TJOFLAT, JORDAN, and ANDERSON, Circuit Judges.
PER CURIAM:
George Pino, a former inmate of the Florida Department of Corrections
(“DOC”), appeals summary judgment in favor of William Nields, a physician and
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administrator with the DOC Utilization Management Department (“UMD”). Pino
alleges that Nields was deliberately indifferent to a serious medical condition, thus
violating his Eighth and Fourteenth Amendment rights. The district court
concluded that Nields was entitled to qualified immunity. We affirm.
Pino was an inmate with the DOC from December 24, 2008, to March 24,
2012. While incarcerated, he suffered from degenerative joint disease in his hips.
In June 2009, he received a right hip replacement. Following discharge from
impatient care, Pino sought replacement for his other hip. The DOC denied the
request in favor of non-surgical treatment. In 2010, the DOC transferred Pino to a
different prison where he filed a formal grievance regarding the denial of surgery.
His grievance was approved and he was called to the clinic on October 19, 2010.
Over approximately the next year, the DOC considered various non-surgical
procedures for Pino, denying some and approving others.
On December 1, 2011, Everglades Correctional Institution physician Dr.
Oscar Ortega submitted a request to the UMD on behalf of Pino for an orthopedic
consultation. Nields denied the orthopedic consultation for Pino on December 29,
2011, citing Pino’s upcoming release date, and an insufficient period to recover
from surgery. Pino was released from custody on March 25, 2012.
We review a district court's grant of summary judgment de novo, “viewing
the record and drawing all reasonable inferences in the light most favorable to the
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non-moving party.” Patton v. Triad Guar. Ins. Corp., 277 F.3d 1294, 1296 (11th
Cir. 2002). Courts shall grant summary judgment only when “there is no genuine
issue as to any material fact.” Fed. R. Civ. P. 56(c).
Qualified immunity protects 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.” Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982). The Supreme Court has adopted a two-part
test for evaluating a claim of qualified immunity. The plaintiff must show that 1)
there was a violation of the Constitution and 2) that the illegality of the defendant’s
actions was clearly established at the time of the incident. Hoyt v. Cooks, 672 F.3d
972, 977 (11th Cir. 2012). This Court need not decide whether there was a
constitutional violation if the illegality of the conduct was not clearly established at
the time. Id.
Pino has cited no case with materially similar facts from the Supreme Court,
the Eleventh Circuit, or the Supreme Court of Florida which might have given
Nields fair warning that denying a surgery with an extended recovery close to an
inmate’s release is unconstitutional, nor has our research revealed such a case.
Pino’s citation to Sealy v. Pastrana, 399 F. App’x 548, 552 (11th Cir. 2010), fails
for two reasons. First, an unpublished opinion is not binding precedent on this
court, and therefore could not provide fair warning to a lay person of
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unconstitutional conduct. Second, Sealy’s rationale stems directly from Farrow v.
West, 320 F.3d 1235, 1247 (11th Cir. 2003), which requires that for a delay in
treatment to be potentially unconstitutional, the delay must be without “any
reasonable explanation.” Here, Nields had an explanation for the denial and
subsequent delay.
AFFIRMED.
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