Corey Boone v. Dr. D. Gaxiola

Case: 15-13332 Date Filed: 11/04/2016 Page: 1 of 8

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 15-13332

Non-Argument Calendar

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D.C. Docket No. 3:13-cv-00420-TJC-PDB

COREY BOONE,

Plaintiff-Appellant,

versus

DR. D. GAXIOLA,

K. DAVIS,

S.R.N.,

C. KNIGHT,

S.R.N.,

P. W. PAIGE,

R.N.,

Defendants-Appellees.

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Appeal from the United States District Court

for the Middle District of Florida

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(November 4, 2016)

Before TJOFLAT, MARCUS and JILL PRYOR, Circuit Judges.

PER CURIAM:

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Corey Boone, a Florida state prisoner proceeding pro se, appeals from the

district court’s dismissal, in part, and grant of summary judgment, in part, in favor

of: (1) Dr. D. Gaxiola; (2) Nurse C. Knight; (3) Nurse K. Davis; and (4) Nurse

P.W. Paige (“defendants”) in his civil rights suit, brought under 42 U.S.C. §1983.

Boone’s complaint alleged that the defendants violated his Eighth and Fourteenth

Amendment rights by acting deliberately indifferent to his appendicitis, which he

ended up having surgery to remove. The district court dismissed Boone’s

Fourteenth Amendment claim, and granted summary judgment in favor of the

defendants on his Eighth Amendment claim because no evidence suggested that

the defendants acted with deliberate indifference to Boone’s appendicitis, before or

after surgery. The district court also determined that the defendants were shielded

by qualified immunity. On appeal, Boone argues that summary judgment was

inappropriate because he provided enough facts to create a triable issue of material

fact as to whether the treatment he received constituted a deliberate indifference of

a serious medical need. After careful review, we affirm.

We review the district court’s grant or denial of summary judgment de novo.

Moton v. Cowart, 631 F.3d 1337, 1341 (11th Cir. 2011). In doing so, we draw all

inferences and review all of the evidence in the light most favorable to the non-

moving party. Id. “[I]f the movant shows that there is no genuine dispute as to

any material fact and the movant is entitled to judgment as a matter of law,” then

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summary judgment is appropriate. Id. (quotation omitted). Genuine issues of

material fact are those in which the evidence is such that a reasonable jury could

return a verdict for the non-moving party. Ellis v. England, 432 F.3d 1321, 1325-

26 (11th Cir. 2005). For factual issues to be considered genuine, they must have a

real basis in the record. Id. at 1326. “[M]ere conclusions and unsupported factual

allegations are legally insufficient to defeat a summary judgment motion.” Id.

Credibility determinations are impermissible when the district court reviews a

motion for summary judgment. Moorman v. Unum Provident Corp., 464 F.3d

1260, 1266 n.1 (11th Cir. 2006).

A claimant is entitled to relief under § 1983 if he can prove that a person

acting under color of state law committed an act that deprived him of some right

protected by the Constitution or laws of the United States. 42 U.S.C. § 1983. The

Eighth Amendment forbids “cruel and unusual punishments.” U.S. Const. amend.

VIII. The Supreme Court has interpreted the Eighth Amendment to include

“deliberate indifference to serious medical needs of prisoners.” Estelle v. Gamble,

429 U.S. 97, 104 (1976). “To show that a prison official acted with deliberate

indifference to serious medical needs, a plaintiff must satisfy both an objective and

a subjective inquiry.” Farrow v. West, 320 F.3d 1235, 1243 (11th Cir. 2003). A

plaintiff must show that he had an objectively serious medical need, that the

defendants’ were deliberately indifferent to that need, and that there was a causal

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link between that indifference and the plaintiff’s injury. Mann v. Taser Intern.,

Inc., 588 F.3d 1291, 1306-07 (11th Cir. 2009). 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.” Farrow, 320 F.3d at 1243 (quotation omitted). In either situation, the

need must be “one that, if left unattended, poses a substantial risk of serious harm.”

Id. (quotations and alteration omitted).

To show that a defendant acted with deliberate indifference, the defendant

must (1) have subjective knowledge of a risk of serious harm, (2) disregard the

risk, and (3) display conduct beyond mere negligence. Id. at 1245. Conduct that is

more than mere negligence includes, inter alia, grossly inadequate care or a

decision to take an easier but less efficacious course of treatment. McElligott v.

Foley, 182 F.3d 1248, 1255 (11th Cir. 1999). Even when treatment is ultimately

provided, deliberate indifference may occur by delaying treatment, though the

reason for the delay is relevant in determining whether there has been

unconstitutional conduct. Id.

In the prison context, we must “distinguish between evidence of disputed

facts and disputed matters of professional judgment.” Beard v. Banks, 548 U.S.

521, 530 (2006). “Unless a prisoner can point to sufficient evidence regarding

such issues of judgment to allow him to prevail on the merits, he cannot prevail at

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the summary judgment stage.” Id. A medical decision not to pursue a particular

course of diagnosis or treatment is a classic example of a matter for medical

judgment, an exercise of which does not represent cruel and unusual punishment.

See Estelle, 429 U.S. at 107-08. Moreover, “[w]here a prisoner has received . . .

medical attention and the dispute is over the adequacy of the treatment, federal

courts are generally reluctant to second guess medical judgments and to

constitutionalize claims that sound in tort law.” Hamm v. Dekalb Cnty., 774 F.2d

1567, 1575 (11th Cir. 1985) (quotation omitted).

Qualified immunity shields government officials, when performing

discretionary functions, from civil suits in their individual capacities. Andujar v.

Rodriguez, 486 F.3d 1199, 1202 (11th Cir. 2007). This protection attaches unless

the officials’ conduct violates “clearly established statutory or constitutional rights

of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S.

800, 818 (1982). Thus, qualified immunity protects “all but the plainly

incompetent or those who knowingly violate the law.” Malley v. Briggs, 475 U.S.

335, 341 (1986).

As an initial matter, Boone has abandoned critical argument to his appeal. It

is true that pro se pleadings are held to less stringent standards than those drafted

by lawyers, and thus, are liberally construed by us. Alba v. Montford, 517 F.3d

1249, 1252 (11th Cir. 2008). Nevertheless, an appellant must clearly and

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specifically identify in his brief any issue he wants the appellate court to address,

otherwise it will be deemed abandoned. Sapuppo v. Allstate Floridian Ins. Co.,

739 F.3d 678, 680 (11th Cir. 2014). Abandonment applies to pro se litigants as

well. See Timson v. Sampson, 518 F.3d 870, 874 (11th Cir. 2008).

Furthermore, when a district court judgment is based upon multiple,

independent grounds, an appellant must convince the appellate court that each

enumerated ground for the judgment against him is incorrect. Sapuppo, 739 F.3d

at 680. In Sapuppo, we considered the propriety of a dismissal of a class action

suit. Id. at 679. The district court dismissed it for failing to state a claim, and

identified multiple alternative grounds leading to that conclusion. Id. On appeal,

the plaintiffs challenged two of the grounds relied on, but did not mention others.

Id. at 680. We noted this inadequacy and affirmed the district court’s dismissal

because of it, based on the application of several legal principles. Id. at 680-83.

Here, Boone has not raised any arguments concerning the district court’s

dismissal of his Fourteenth Amendment claim or its ruling that summary judgment

was warranted based on the defendants’ qualified immunity. Accordingly, we are

constrained to conclude that these arguments are abandoned, and we affirm the

district court’s decision in full on this ground. Timson, 518 F.3d at 874; Sapuppo,

739 F.3d at 680.

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But even if Boone were implicitly challenging the immunity ruling, we

would affirm the district court’s decision granting summary judgment in favor of

the defendants. As for Boone’s pre-surgery care, the undisputed facts show that

the defendants provided medical evaluation and treatment to Boone each of the

days leading up to him being sent to an outside hospital for surgery. While Boone

disagrees with the adequacy of the treatment he received, a medical decision not to

pursue a particular course of diagnosis or treatment is a classic example of a matter

for medical judgment, an exercise of which does not represent cruel and unusual

punishment. See Estelle, 429 U.S. at 107-08. Moreover, federal courts generally

are reluctant to second guess medical judgments. Hamm, 774 F. 2d at 1575. The

undisputed facts also demonstrate that Boone did not have the typical symptoms of

an individual suffering from appendicitis -- for example, his temperature was not

elevated and his pain varied from day to day -- and that Boone was outside the

customary age range for appendicitis. Thus, the district court did not err in

granting summary judgment on the claim concerning Boone’s pre-surgery care.

As for Boone’s post-surgery care, the undisputed facts reveal that Boone

recovered well from the surgery, a special diet was determined to be not

continually necessary, he completed several inmate requests and received

responses to the requests, and he received various additional accommodations after

his surgery. Accordingly, there is no dispute of fact concerning whether the

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defendants were deliberately indifferent to a serious medical need concerning

Boone’s post-surgery care. Because there was no evidence to create a genuine

issue of material fact as to whether the defendants violated Boone’s Eighth

Amendment rights, they were also entitled to qualified immunity.

Finally, as for Boone’s argument that the district court improperly assessed

credibility and weighed evidence instead of simply determining whether a genuine

factual issue existed, we are unpersuaded. The record reveals that the district court

viewed the evidence before it and correctly determined that Boone did not create a

triable issue of fact. We affirm the district court’s grant of summary judgment.

AFFIRMED.

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