Ulysses Jerome Johnson v. Walter A. McNeil

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED

________________________ U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

No. 08-14612 AUGUST 7, 2009

Non-Argument Calendar THOMAS K. KAHN

________________________ CLERK

D. C. Docket No. 06-23051-CV-CMA

ULYSSES JEROME JOHNSON,

Plaintiff-Appellant,

versus

DDS J. D. POSTON,

VICTOR SELYUTIN, MD,

E. MADAN, Medical Director,

W. D. RUMMEL, MD,

A. HASKINS,

Defendants-Appellees.

________________________

Appeal from the United States District Court

for the Southern District of Florida

_________________________

(August 7, 2009)

Before BLACK, MARCUS and ANDERSON, Circuit Judges.

PER CURIAM:

Ulysses Jerome Johnson, a Florida prisoner proceeding pro se, appeals the

district court’s grant of summary judgment in favor of Dr. William Rummel, a

medical doctor at the Santa Rosa Correctional Institution (SRCI), and Albert

Haskins, an assistant warden at the SRCI, in his civil rights action claiming

deliberate indifference to his serious medical needs, filed pursuant to 42 U.S.C.

§ 1983. Johnson argues Rummel and Haskins are not entitled to qualified

immunity because they violated his Eighth Amendment rights by denying him

treatment for his jaw locking open.1

We review de novo a district court’s grant of summary judgment. Steele v.

Shah, 87 F.3d 1266, 1269 (11th Cir. 1996). In making this determination, we view

the record before the district court in the light most favorable to the nonmoving

party to determine if a genuine issue of material fact existed as to whether the

defendants’ actions constituted deliberate indifference to a serious medical need.

Id.

“The doctrine of qualified immunity protects government officials from

liability for civil damages insofar as their conduct does not violate clearly

established statutory or constitutional rights of which a reasonable person would

have known.” Pearson v. Callahan, 129 S. Ct. 808, 815 (2009) (internal quotation

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Johnson’s motion to file reply brief out of time is granted.

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marks omitted). “To overcome qualified immunity, the plaintiff must satisfy a two

prong test; he must show that: (1) the defendant violated a constitutional right, and

(2) this right was clearly established at the time of the alleged violation.”

Holloman ex rel. Holloman v. Harland, 370 F.3d 1252, 1264 (11th Cir. 2004).

Following the Supreme Court’s decision in Pearson, “[t]he judges of the district

courts and the courts of appeals [are] permitted to exercise their sound discretion in

deciding which of the two prongs of the qualified immunity analysis should be

addressed first in light of the circumstances in the particular case at hand.” 129

S. Ct. at 818.

The Supreme Court has held a prison official’s “deliberate indifference to

[the] serious medical needs of [a] prisoner[] constitutes the unnecessary and

wanton infliction of pain proscribed by the Eighth Amendment.” Estelle v.

Gamble, 97 S. Ct. 285, 291 (1976) (internal citation and quotation marks omitted).

“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). “First, a plaintiff must set forth

evidence of an objectively serious medical need. Second, a plaintiff must prove

that the prison official acted with an attitude of ‘deliberate indifference’ to that

serious medical need.” Id. (internal citations omitted).

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A medical need is serious when it “has been diagnosed by a physician as

mandating treatment or . . . is so obvious that even a lay person would easily

recognize the necessity for a doctor’s attention.” Id. (internal quotation marks

omitted). “In either case, the medical need must be one that, if left unattended,

poses a substantial risk of serious harm.” Brown v. Johnson, 387 F.3d 1344, 1351

(11th Cir. 2004) (internal quotation marks and alteration omitted). Even if a

plaintiff demonstrates a “serious medical need,” however, he still must establish

“deliberate indifference” toward that need. See Farrow, 320 F.3d at 1243. To

show deliberate indifference, “the prisoner must prove three facts: (1) subjective

knowledge of a risk of serious harm; (2) disregard of that risk; and (3) by conduct

that is more than mere negligence.” Johnson, 387 F.3d at 1351. The Supreme

Court has held “an official’s failure to alleviate a significant risk that he should

have perceived but did not, while no cause for commendation, cannot under [its]

cases be condemned as the infliction of punishment.” Farmer v. Brennan, 114 S.

Ct. 1970, 1979 (1994).

In this case, Johnson has failed to demonstrate a constitutional violation

because he has not produced any evidence showing Rummel and Haskins acted

with deliberate indifference to a serious medical need. See Farrow, 320 F.3d at

1243. Rummel’s and Haskins’s interactions with Johnson were administrative in

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nature and limited to review of Johnson’s grievances. In his affidavit, Rummel

stated he received a grievance in which Johnson asked to have his jaw fixed and

complained of a delay in treatment. Rummel evaluated the grievance by reviewing

Johnson’s medical and dental records and speaking with the dental staff. Based

upon this review, Rummel believed Johnson was receiving adequate treatment for

his jaw and had not been denied access to medical facilities. Likewise, in his

affidavit, Haskins stated he responded to two grievances from Johnson regarding

treatment of his jaw. In both instances, after confirming there was a treatment plan

for Johnson and medical and dental staff had been following that plan, Haskins

determined Johnson was receiving adequate treatment for his jaw.

Because Johnson offers no evidence to dispute Rummel’s and Haskins’s

affidavits or to show Rummel and Haskins knew he was at risk of serious harm, he

has failed to carry his burden of demonstrating Rummel and Haskins acted with

deliberate indifference to his medical needs. See Johnson, 387 F.3d at 1351.

Johnson thus cannot show a violation of his Eighth Amendment rights.

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Accordingly, we affirm the district court’s grant of summary judgment to Rummel

and Haskins on the basis of qualified immunity.2

AFFIRMED.

2

In both his initial brief and his reply brief, Johnson maintains he has brought this appeal

only with respect to his claims against Rummel and Haskins. We thus need not consider the

district court’s grant of summary judgment to the other defendants in this case. Construing

Johnson’s pro se briefs liberally, however, we conclude any claims against the other defendants

are likewise without merit because Johnson has failed to demonstrate they acted with deliberate

indifference to a serious medical need.

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