Edwards v. Abbett

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE

MIDDLE DISTRICT OF ALABAMA, EASTERN DIVISION

MARCUS EDWARDS, )

)

Plaintiff, )

) CIVIL ACTION NO.

v. ) 3:13cv871-MHT

) (WO)

SHERIFF JIMMY ABBETT )

(in his individual )

capacity), et al., )

)

Defendants. )

OPINION

Pursuant to 42 U.S.C. § 1983, plaintiff Marcus

Edwards brought this lawsuit stemming from his

incarceration in the Tallapoosa County Jail, asserting

that the defendants violated his Eighth and Fourteenth

Amendment rights by denying him a certain pain medication

and visits to an orthopedic specialist for a leg injury.

The defendants are former Tallapoosa County Sheriff Jimmy

Abbett, current Jail Administrator Blake Jennings, and

former Chief Nurse Cathy Dubose. They are sued in their

individual capacities. This court has jurisdiction

pursuant to both 28 U.S.C. § 1331 (federal question) and

§ 1343 (civil rights). The court previously granted a

motion to dismiss certain claims, but allowed the current

claims to proceed. See Edwards v. Abbett, No.

3:13CV871-MHT, 2020 WL 6395454 (M.D. Ala. Nov. 2, 2020).

The case is now before this court on the defendants’

motion for summary judgment. For the reasons that

follow, the motion will be granted.

I. SUMMARY-JUDGMENT STANDARD

Summary judgment is appropriate “if 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.” Fed. R. Civ. P. 56(a). To determine whether a

genuine factual dispute exists, the court must view the

evidence in the light most favorable to the non-moving

party and draw all reasonable inferences in favor of that

party. See Matsushita Elec. Indus. Co. v. Zenith Radio

Corp., 475 U.S. 574, 587 (1986). However, conclusory

assertions unsupported by evidence “are insufficient to

2

withstand summary judgment.” Holifield v. Reno, 115 F.3d

1555, 1564 n.6 (11th Cir. 1997), abrogated on other

grounds by Lewis v. City of Union City, 918 F.3d 1213

(11th Cir. 2019) (en banc). In general, summary judgment

is appropriate when “the record taken as a whole could

not lead a rational trier of fact to find for the

non-moving party.” Matsushita, 475 U.S. at 587.

II. BACKGROUND

This case stems from Edwards’s incarceration in the

Tallapoosa County Jail from June to November 2011 on a

misdemeanor probation violation, and the alleged denial

of the pain medication Lortab and appointments with an

orthopedic specialist for a leg injury during that time.

Viewing the evidence in the light most favorable to

Edwards, the facts are as follows.

In 2010, Edwards had suffered a severe leg injury in

an automobile accident that required two surgeries in May

and December that year. At the time he was incarcerated

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in June 2011, he was still recovering from the injury.

He wore a brace on his leg and experienced serious pain

in his leg throughout his incarceration.

Sheriff Abbett was responsible for the overall

operation of and setting policy for the county jail. Jail

Administrator Jennings was responsible for the daily

operations of the jail. Nurse Dubose was responsible for

providing medical care to inmates in the jail, in concert

with the jail’s physician, who worked on a contract and

came to the jail every week or two.

On June 7, 2011, Edwards was incarcerated in the

Tallapoosa County Jail. At intake, Edwards reported that

he was experiencing pain in his right leg and that he had

a rod in his leg. See Jail Med. Records (Doc. 71-11) at

2. His family brought his prescription medications to

the jail, including Lortab. However, he never received

Lortab during his incarceration. Edwards was prescribed

other pain killers during almost all of his

incarceration.

4

Sheriff Abbett had a policy of generally not allowing

inmates to take narcotic medications in the jail.

However, inmates could receive narcotic medication if the

jail’s physician determined it to be medically necessary.

Indeed, the jail’s physician prescribed Edwards a

narcotic pain killer at one point during his

incarceration.

Edwards frequently complained to Nurse Dubose about

the pain in his leg. Edwards spoke with his family

frequently during his incarceration and complained to his

family about his medical concerns, which included his leg

pain. Edwards’s mother and other family members spoke

with Abbett, Jennings, and Dubose repeatedly about his

need to see his orthopedic surgeon for his leg. Abbett

promised Edwards’s mother that he would have Edwards

taken to an appointment with his orthopedic surgeon.

Jennings and Dubose told Edwards’s mother that he was

receiving the medication he was supposed to receive.

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Two days after entering the jail, Dubose ordered that

Edwards receive Tylenol for pain. Later in June, she

switched him to another, apparently stronger, pain

medication and a muscle relaxer. On July 7, he met the

jail physician, who prescribed him a narcotic medication

for chronic pain, an antibiotic, and a heartburn

medication. Two days later, Edwards wrote a note to

Dubose explaining that the new medications were making

him ill and that he would simply deal with his pain

without the medications.

In late July, at the request of Edwards’s family, an

attorney sent a letter to Abbett explaining, “[Edwards]

... is suffering from [a] serious automobile accident

wherein his right femur was broken, and he is slowly

recovering from that injury, but it will require doctor

visits to his orthopaedic surgeon.” (Doc. 71-11) at 7.

A handwritten note on the upper corner of the letter,

signed with the initials “JHA,” (presumably those of

defendant Jimmy Abbett) says, “Please review & forward

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to Blake J & Nurse Dubose.” Id. A couple days later,

the attorney sent another letter to Abbett informing him

that Edwards had an appointment scheduled with his

orthopedic surgeon on August 5. See Jail Med. Records

(Doc. 71-11) at 9. A handwritten note again appears in

the upper corner: “David[:] FYI & TD Blake Jennings.”

Id.

The day before the scheduled orthopedic appointment,

Edwards saw the jail physician and Dubose. Dubose told

Edwards that, if the jail physician found it necessary,

he would send him to an orthopedic specialist that came

to the town where the jail was located. According to

Edwards, also at this appointment, the jail physician

prescribed him Lortab, but Dubose told the doctor Edwards

could not have the drug in the jail. After the

appointment, on a sheet labelled “Physician’s Orders” in

Edwards’s medical file, the jail physician wrote an order

for several medications, including Tylenol 650, and

requested that Dubose obtain medical records from

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Edwards’s orthopedic surgeon. See Jail Med. Records

(Doc. 71-11) at 67. He did not write an order for Lortab

or order him to be taken to the appointment with the

orthopedic surgeon. Dubose cancelled the appointment

with the surgeon.

The next day, Dubose obtained Edwards’s medical

records from the surgeon. These records reflect that

Edwards’s last visit to the orthopedic surgeon had been

about four months before his incarceration. The

surgeon’s notes of that visit state:

“History: Follow up on distal femur fracture and

knee arthroscopy. Patient doing well. No

mechanical pain. Only occasional swelling.

“Exam: Gait normal. Full range of motion knee.

Trace Effusion.

“Plan: Activities as tolerated.

“Impression: Osteoarthritis, unspec generalized

or localized, lower leg”.

Jail Med. Records (Doc. 71-11) at 43. The surgeon did

not indicate that any medications were prescribed or that

any follow-up visits were required. After receipt of

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these records, the jail physician did not refer Edwards

to an orthopedic specialist and prescribed Edwards only

Tylenol 650 mg and Tylenol PM for the remainder of his

incarceration.

Edwards was released from jail on November 27, 2011,

just under six months after he was incarcerated.

III. DISCUSSION

Edwards contends that the defendants violated his

Eighth Amendment rights by denying him the medication

Lortab and appointments with his orthopedic surgeon for

his leg pain. The defendants contend that they are

protected by qualified immunity and that Edwards has

failed to meet the Eighth Amendment standard.

“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.

9

Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v.

Fitzgerald, 457 U.S. 800, 818 (1982)). A defendant who

invokes qualified immunity has the initial burden of

showing that he or she "was acting within the scope of

his or her discretionary authority when the challenged

action occurred.” Patel v. City of Madison, Alabama,

959 F.3d 1330, 1338 (11th Cir. 2020) (citing Maddox v.

Stephens, 727 F.3d 1109, 1120 (11th Cir. 2013)). “The

term ‘discretionary authority’ ‘include[s] all actions

of a governmental official that (1) were undertaken

pursuant to the performance of his duties, and (2) were

within the scope of his authority.’” Id. (quoting Jordan

v. Doe, 38 F.3d 1559, 1566 (11th Cir. 1994)). Once the

defendants establish that they were acting within their

discretionary authority, “the burden shifts to the

plaintiff to show that qualified immunity is not

appropriate.” Lee v. Ferraro, 284 F.3d 1188, 1194 (11th

Cir. 2002).

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Here, there is no dispute that the defendants were

acting within their discretionary authority. Thus,

Edwards has the burden to prove that qualified immunity

is inappropriate. To do so, he must show both that the

defendants violated his constitutional rights and that,

when the defendants acted, clearly established law made

clear that their actions were unconstitutional.

As discussed below, Edwards has not presented

sufficient evidence for a jury to find that the

defendants violated his constitutional rights, so summary

judgment must be granted.

A. The Eighth Amendment Standard

To prove an Eighth Amendment claim for denial of

medical care, a plaintiff show “both an objectively

serious medical need and that a Defendant acted with

deliberate indifference to that need.” Harper v.

Lawrence Cty., Ala., 592 F.3d 1227, 1234 (11th Cir. 2010)

(quoting Burnette v. Taylor, 533 F.3d 1325, 1330 (11th

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Cir. 2008) (internal quotation marks omitted). A medical

need is objectively ‘serious’ if 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.” Farrow v. West, 320

F.3d 1235, 1243 (11th Cir. 2003) (quoting Hill v. Dekalb

Reg'l Youth Det. Ctr., 40 F.3d 1176, 1187 (11th Cir.

1994)(overruled in part on other grounds by Hope v.

Pelzer, 536 U.S. 730, 739 n. 9 (2002)). In addition, the

medical need must be “one that, if left unattended,

‘pos[es] a substantial risk of serious harm.’” Taylor

v. Adams, 221 F.3d 1254, 1258 (11th Cir. 2000) (quoting

Farmer v. Brennan, 511 U.S. 825, 834 (1994)).

To satisfy the deliberate indifference requirement,

a plaintiff must prove the defendant’s “(1) subjective

knowledge of a risk of serious harm... [and] (2)

disregard of that risk ... (3) by conduct that is more

than mere negligence.” Bingham v. Thomas, 654 F.3d 1171,

1176 (11th Cir. 2011) (quoting Brown v. Johnson, 387 F.3d

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1344, 1351 (11th Cir. 2004)). “[K]nowledge of the need

for medical care and intentional refusal to provide that

care constitute[s] deliberate indifference.” Harris v.

Coweta Cty., 21 F.3d 388, 393 (11th Cir. 1994).

B. Serious Medical Need

The court previously found that Edwards pleaded a

serious medical need. See Edwards, 2020 WL 6395454, at

*3. Now with the benefit of evidence, the court again

finds that Edwards has met the standard for showing a

serious medical need. He testified that the pain in his

knee was severe throughout his incarceration.

Unnecessary pain can constitute serious harm. See

McElligott v. Foley, 182 F.3d 1248, 1257 (11th Cir. 1999)

(explaining that “prison officials may violate the Eighth

Amendment's commands by failing to treat an inmate's

pain” and citing cases); see also Boretti v. Wiscomb, 930

F.2d 1150, 1154–55 (6th Cir. 1991) (“a prisoner who

suffers pain needlessly when relief is readily available

13

has a cause of action against those whose deliberate

indifference is the cause of his suffering.”). Edwards’s

pain was severe enough that the jail physician prescribed

him narcotic medication for the pain and continued to

provide him other painkilling medicine after he rejected

the narcotic. This is sufficient evidence for a jury to

find a serious medical need under the Eighth Amendment

standard.

C. Deliberate Indifference

The court next turns to whether Edwards has met the

subjective prong of the Eighth Amendment standard. For

ease of analysis, the court will first discuss Edwards’s

claim that the defendants violated his rights by denying

him an appointment with his orthopedic surgeon, then will

turn to his claim for denial of Lortab.

1. Denial of Specialist Treatment

To survive summary judgment, Edwards must present

14

sufficient evidence for a jury to find that the

defendants knew that he faced a substantial risk of

serious harm if he were not taken to an orthopedic

surgeon, and that they ignored that risk with an intent

worse than negligence. He has not met that burden. The

court will discuss the evidence against Sheriff Abbett

and Jail Administrator Jennings first, then turn to Nurse

Dubose.

There is sufficient evidence in the record to

conclude that Abbett and Jennings were aware that Edwards

was recovering from a serious leg injury and was

experiencing serious pain, and that he had an appointment

with his orthopedic surgeon. Edwards’s mother informed

Abbett and Jennings about her son’s orthopedic

appointments, and Abbett received letters from Edwards’s

attorney notifying him of the serious leg injury and his

appointment with his orthopedic surgeon and directed that

the letters be shared with Jennings.

However, this knowledge is not sufficient to prove

15

deliberate indifference. Abbett and Jennings were under

no constitutional obligation to keep Edwards’s

appointments with his free-world physician. They had to

provide him with access to adequate health care for his

serious medical needs, but not to the provider of his

choice at the time of his choice.

Moreover, there is no evidence that they ignored a

substantial risk of serious harm to Edwards with an

intent worse than negligence. Edwards has not presented

any evidence that Abbett or Jennings directed the jail

physician to deny him an appointment with his orthopedic

surgeon. Abbett and Jennings said that they relied upon

the jail physician to decide what medical care inmates

needed, which they were entitled to do. If the physician

felt that a referral to an outside specialist was needed,

he could make the referral. The physician saw Edwards

and did not make a referral.

Under the Eighth Amendment, correctional officials

have no responsibility “to intervene in treatment

16

decisions where they have no actual knowledge that

intervention is necessary to prevent a constitutional

wrong.” Sanderson v. Marshall, No. 2:10 CV-878-SRW,

2013 WL 4763525, at *7 (M.D. Ala. Sept. 4, 2013) (Walker,

M.J.) (quoting Cameron v. Allen, 525 F. Supp. 2d 1302,

1307 (M.D. Ala. 2007) (Thompson, J) (adopting

recommendation)). Here, there was no evidence that

Abbett and Jennings knew the medical staff would deny

Edwards a needed visit to an outside specialist, or that

they were on notice of a history of widespread abuse by

the jail medical staff in denying access to outside

specialists. Compare Cottone v. Jenne, 326 F.3d 1352,

1360 (11th Cir. 2003), abrogated in part on other grounds

by Randall v. Scott, 610 F.3d 701 (11th Cir. 2010).

Accordingly, there is no basis upon which to hold them

liable on the orthopedic-specialist claim.

Edwards has also failed to show that Dubose was

deliberately indifferent on this issue. Dubose attested

that she lacked the authority to refer an inmate to a

17

specialist, which only the jail’s physician could do,1

and Edwards has not presented any evidence to the

contrary. Dubose cannot be held liable for not doing

something she was not authorized to do. And, to the

extent he contends that Dubose should be held liable

because she cancelled his appointment with his orthopedic

surgeon, it was the jail physician’s decision--not

Dubose’s call cancelling the appointment--that prevented

him from seeing the surgeon.

Moreover, there is no evidence that Dubose failed to

follow the physician’s orders. The evidence suggests

that the jail physician considered sending Edwards to an

orthopedic specialist but wanted to look at records from

his orthopedic surgeon first. In Dubose’s notes from

Edwards’s August 4 appointment with the jail physician,

she explained:

“Mr Edwards Ortho doctor does not come to

Dadeville but there is an Ortho doctor that comes

to Dadeville. I told Mr Edwards if Dr Schuster

1. She was authorized to decide to send an inmate

for care outside the jail only in an emergency.

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felt it necessary to see him and ordered it, We

would take him to see him. Dr. Schuster did not

order it, therefore he doesn’t think it

necessary at this time. He did write an order

for me to get his records from his ortho Doctor

and I will today.”

Jail Med. Records (Doc. 71-11) at 5. Dubose obtained the

records the next day.

The records showed that Edwards’s last appointment

had been over four months prior to his incarceration,

that he had osteoarthritis in his knee, and that no

follow-up treatment was ordered. The jail physician

interpreted the record of Edwards’s final visit with the

surgeon as showing that the orthopedic surgeon “felt like

[Edwards] had reached maximum medical improvement at that

point and dismissed him, basically, to full activities

as tolerated.” Schuster Dep. (Doc. 71-8) at 30:13-15.

He further testified that he did not see any reason that

he would have referred Edwards to an orthopedic

specialist based on that record, id. at 30:16-21, and

that he did not believe Edwards needed to see his

orthopedic surgeon emergently, id. at 31:2-16.

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Particularly given that she carried out the jail

physician’s order to obtain the orthopedic records,

Dubose cannot be held liable for his decision.

Finally, and perhaps most importantly, Edwards did

not present any expert testimony that, based on the

condition of his leg, he should have been sent to an

orthopedic specialist. But without such testimony, no

reasonable jury could find that the denial of a visit to

such a specialist amounted to deliberate indifference.

There is simply no basis to hold any of the defendants

liable for the denial of the specialist’s visit.

2. Denial of Lortab

The court next turns to Edwards’s claim that the

defendants violated his rights by denying him the opiate

medication Lortab for his leg pain. To survive summary

judgment, Edwards must present sufficient evidence from

which a jury could determine that each defendant was

deliberately indifferent. This he has failed to do.

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As they were not directly involved in the provision

of medical care, Sheriff Abbett and Jail Administrator

Jennings can be held responsible for the denial of Lortab

to Edwards only if they personally participated in

denying the medication or there is a causal relationship

between their actions and the denial of the medication.

See Brown v. Crawford, 906 F.2d 667, 671 (11th Cir. 1990).

Edwards has presented no evidence that Abbett or Jennings

personally participated in the decision to deny him

Lortab, that they conspired with the physician or Dubose

to deny him Lortab, or that they knew based on a

widespread history of abuse that the medical providers

were likely to deny him medication that he genuinely

needed.

Edwards argues that the defendants are liable because

Abbett and Jennings implemented a “no narcotics” policy

at the jail, which he contends led to the denial of his

Lortab. However, evidence in the record shows that the

narcotics policy was not set in stone. The jail physician

21

had the authority to prescribe narcotic medications to

inmates when needed, and actually prescribed Edwards a

narcotic pain reliever for his leg pain.

Edwards seeks to hold Dubose liable on a different

theory: that she interfered with the provision of

prescribed medication. A jail employee who knowingly

violates a doctor’s orders for treatment may be found to

be deliberately indifferent. See Young v. City of

Augusta, Ga., Through DeVaney, 59 F.3d 1160, 1170–71

(11th Cir. 1995) (explaining with regard to the liability

of jail employees who provided medication, that if the

inmate “did not receive medication as prescribed,” that

could “lead to a finding that her rights were

violated.”). Edwards contends that Dubose denied him

access to previously prescribed Lortab delivered for him

to the jail by a family member, and that she later

prevented him from receiving Lortab that the jail

physician prescribed him.

The record contains evidence--albeit weak--that a

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family member brought Lortab to the jail for him shortly

after he was incarcerated. But, importantly, the record

is devoid of any medical evidence or expert testimony

that Edwards actually needed Lortab when he entered the

jail. Edwards has not submitted any medical or

pharmaceutical records showing that he had an active

prescription for Lortab at the time of his incarceration.

The medical records from Edwards’s orthopedic

surgeon--whom Edwards claimed was the source of his

Lortab prescription--show that the surgeon had last

prescribed Lortab for Edwards in October 2010--about

eight months before his incarceration--and that he only

prescribed 30 pills at that time, which presumably would

have run out well before June 2011. And when the jail

physician saw Edwards in July, he did not determine that

he needed Lortab, but instead prescribed him a different,

milder narcotic medication, Ultram, that he found to be

more appropriate.

Without any medical or expert evidence that he needed

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Lortab, the court is left with nothing but Edwards’s own

opinion that he should have received it. A jury cannot

find that Dubose was deliberately indifferent on that

basis. See Harris v. Thigpen, 941 F.2d 1495, 1505 (11th

Cir. 1991) (“a simple difference in medical opinion

between the prison's medical staff and the inmate as to

the latter's diagnosis or course of treatment [does not]

support a claim of cruel and unusual punishment.”)

(citing Waldrop v. Evans, 871 F.2d 1030, 1033 (11th Cir.

1989)).

Furthermore, “[i]n order to state a cognizable claim,

a prisoner must allege acts or omissions sufficiently

harmful to evidence deliberate indifference to serious

medical needs.” McElligott, 182 F.3d at 1255 (citing

Estelle v. Gamble, 429 U.S. 97, 106 (1976)). While a

jail medical provider who ignores an inmate’s serious

pain can be found deliberately indifferent to a

substantial risk of serious harm, see id. at 1257, Dubose

did not ignore Edwards’s pain. The evidence shows that

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on June 9, two days after he entered the jail, Dubose

began giving Edwards Tylenol twice a day for pain. See

Jail Med. Records (Doc. 71-11) at 10, 14. On June 28,

Dubose met with Edwards and made an entry in the progress

notes describing Edwards’s leg injury and stating he had

been on Tylenol for pain and reported taking Lortab and

Flexeril at home. Id. at 11. She prescribed him

Ibuprofen 600 and Robaxin, which, according to the jail

physician, are substitutes for the Lortab and Flexeril

that are on the jail’s formulary. See Schuster Depo. 71-

8 at 20:11-23. She continued providing these

medications until July 7, when Edwards met with the jail

physician, who prescribed him a narcotic medication. See

Jail Med. Records (Doc. 71-11) at 12, 14. Based on these

facts, while she may have denied him Lortab, Dubose was

not deliberately indifferent to Edwards’s pain.

Edwards also seeks to hold Dubose liable for refusing

to provide him Lortab that he claims the jail physician

prescribed him. Edwards presented testimony that during

25

an August doctor’s visit, the physician prescribed him

Lortab, but Dubose told him that Edwards could not have

that medication in the jail.2

The main problem with this claim is that there is

simply no proof that the jail physician actually

prescribed Lortab. While he may have told Edwards he

would prescribe him Lortab, he clearly did not follow

through. The prescriptions provided to Edwards in the

jail are listed on forms in his jail medical record

labelled “physician’s orders.” On August 4--the day on

which Edwards claims to have been prescribed

Lortab--Dubose and the jail physician made many entries

in the both the progress notes and the physician’s orders

sections of Edwards’s jail medical records. See Jail

Med. Records (Doc. 71-11) at 4-5, 67, 69-70. Nowhere is

Lortab mentioned. The doctor’s progress note includes

information about Edwards’s knee pain, followed by a note

that he would not take an antibiotic due to nausea. See

2. The court assumes, without deciding, that

Edwards’s statement does not constitute hearsay.

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Jail Med. Records (Doc. 71-11) at 70. In the physician

orders section, where he recorded prescriptions for

Dubose to implement, the doctor prescribed Tylenol 650

and ordered Dubose to obtain the records from Edwards’s

orthopedic surgeon. See Jail Med. Records (Doc. 71-11)

at 67. In sum, there is no documentation of a

prescription for Lortab. No “rational trier of fact”

could conclude that the jail physician entered a

prescription for Lortab based on this record.

Matsushita, 475 U.S. at 587. And while the physician may

have changed his mind about prescribing Lortab based on

Dubose’s statement, that statement does not make her

liable for his decision.

***

The court does not doubt that Edwards suffered during

his incarceration, and the record does contain evidence

of possible negligence in the care Edwards received. But

negligence is not sufficient for liability under the

27

Eighth Amendment. Because he has failed to present

evidence meeting the deliberate-indifference standard,

summary judgment will be granted.

An appropriate judgment will be entered.

DONE, this the 20th day of August, 2021.

/s/ Myron H. Thompson

UNITED STATES DISTRICT JUDGE

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