United States District Court, S.D. Georgia, Statesboro Division
ORDER AND MAGISTRATE JUDGE'S REPORT AND
STAN BAKER UNITED STATES MAGISTRATE JUDGE
before the Court are Defendants' Motions for Summary
Judgment. (Docs. 64, 68.) Plaintiff filed Responses, (docs.
72, 73), and Defendant Ferra filed a Reply, (doc. 74). For
the reasons and in the manner set forth below, I
RECOMMEND that the Court DISMISS AS
MOOT IN PART and DENY IN PART
Defendants' Motions for Summary Judgment. The Court
should DISMISS AS MOOT the portions of
Defendants' Motions addressing Plaintiff's requests
for injunctive relief and DENY all other
portions of the Motions. Additionally, given the mootness of
Plaintiff's claims for injunctive relief, the Court
should DISMISS those claims WITHOUT
was born with one leg shorter than the other. (Doc. 22, p.
1.) As a result of this condition, Plaintiff requires a cane,
an orthotic, or other walking aid. (Id.; Doc. 64-5,
p. 4.) In more recent years, Plaintiff's condition has
deteriorated such that he experiences “extreme
pain” in his hip and lower back during normal, daily
activities including walking. (Doc. 22, p. 1.) Sometime in
late 2014, Plaintiff developed avascular necrosis. (Doc.
64-6, p. 14; Doc. 64-7, pp. 4, 6-7, 9-11.) After a convoluted
three to four years of medical treatment, Plaintiff
ultimately received hip replacement surgery on April 25,
2017, and May 3, 2017. (Doc. 73-1, p. 2.)
State Prison's (“GSP”) medical department
does not offer orthopedic services. (Doc. 64-4, p. 2.) Any
request for specialized services not offered at GSP must go
through the Georgia Department of Corrections'
Utilization Management Department. (Doc. 64-2, p. 1.) The
requesting medical provider must file a Medical Consult
Request with Utilization Management who will then approve or
deny the Request and schedule the time, place, and manner of
the requested medical service. (Id. at p. 2.)
in May 2013, Plaintiff notified GSP medical staff that he was
having issues with the asymmetry in his legs. (Doc. 64-5, p.
2.) After various rounds of physical therapy, prescribed
orthotics, and other pain relief measures, Plaintiff's
right hip was x-rayed on December 10, 2013. (Doc. 64-4, p.4;
Doc. 64-5, p.7.) Plaintiff also began writing letters to
Defendant Broome about the pain in his hip during this time.
(Doc. 64-17, pp. 11-12.)
continuing to complain of significant pain in his right hip,
Plaintiff's treatment regimen stayed the same throughout
2014-physical therapy, orthotics, pain medication, and a
cane. (Doc. 64-5, p. 9; Doc. 64-6, pp. 2, 5, 7.) Plaintiff
alleges that whenever Defendants Ferra or Middleton conducted
his examinations, they would “disregard [his] situation
completely and tell [him] there's nothing wrong with
[him].” (Doc. 64-17, p. 19.) Their examinations
frequently consisted of visual inspections only and a request
for Plaintiff to, “Please stop filling out sick calls.
There's nothing wrong with your hip, Wimberly.”
(Id. at pp. 17-19.)
filing and appealing a grievance regarding his lack of
treatment, Plaintiff received another x-ray of his right hip
on October 29, 2014. (Doc. 22, p. 2; Doc. 64-6, pp. 11-14.)
Plaintiff's x-ray results were returned on November 4,
2014, and raised concerns regarding avascular necrosis. (Doc.
64-6, p. 14.) That same day, Plaintiff alleges Defendant
Ferra, in the presence of Defendant Middleton, attempted to
convince Plaintiff to “drop his medical grievance
because they were now going to provide him with proper
medical care.” (Doc. 58, p. 2; Doc. 73, pp. 1-2.)
of Plaintiff's right hip was conducted on December 1,
2014, which again raised concerns for “longstanding
[avascular necrosis].” (Doc. 64-7, p. 9.) Plaintiff
claims that the evaluating surgeon also “prescribed
[Plaintiff] to have urgent . . . [hip] replacement
surgery.” (Doc. 22, p. 2.) Despite this
“urgent” finding, Plaintiff did not see another
specialist until March 24, 2015. (Doc. 64-7, pp. 2-3, 8.)
This specialist again referred Plaintiff for treatment of his
right hip “ASAP.” (Id. at p. 8.)
that point forward until April 25, 2017, Plaintiff embarked
on an astonishing medical saga of medical exams, Consult
Requests, preparation for hip replacement surgery four
separate times, and cancellation of all four surgeries.
Several of these surgeries were inexplicably cancelled, and
two were cancelled the day before surgery was scheduled to
occur. (Doc. 64-10, pp. 10-11; Doc. 64-11, pp. 1-2.)
Throughout this period, Plaintiff suffered extreme pain, but
his treatment regimen again remained unchanged-physical
therapy, orthotics, pain medication, and a cane.
also alleges that in October 2015, he “had a little
meeting” with Defendant Broome wherein Defendant Broome
told Plaintiff, “Hip replacement surgery is too
expensive for someone serving a life sentence.” (Doc.
64-17, pp. 13, 15.) During that same encounter, Nurse Tolbert
reportedly told Plaintiff that “GSP does not have the
money or resources to do [your] surgery.” (Id.
at pp. 13-14.) At another juncture Plaintiff asked Physician
Assistant Hall, who placed Consult Requests for three of
Plaintiff's surgeries, why his operations were being
cancelled. She replied, “You've got to take that up
with Dr. Broome, Wimberly. I have no control over that. Dr.
Broome is the one who orders the surgery. He's the one
that keep[s] denying it.” (Id. at p. 17.)
filed this action on March 4, 2015, and filed his superseding
Second Amended Complaint on March 21, 2016. (Docs. 1, 22.)
Plaintiff seeks injunctive, declaratory, and monetary relief
in his Second Amended Complaint. (Doc. 22, p. 2.) Defendants
Broome and Middleton filed a Motion for Summary Judgment on
April 18, 2017, and Defendant Ferra filed a Motion for
Summary Judgment on May 19, 2017. (Docs. 64, 68.) Plaintiff
filed Responses, (docs. 72, 73), and Defendant Ferra filed a
Reply, (doc. 74).
judgment “shall” be granted if “the movant
shows that there is no genuine dispute as to any material
fact and that the movant is entitled to judgment as a matter
of law.” Fed.R.Civ.P. 56(a). “A dispute about a
material fact is genuine and summary judgment is
inappropriate if the evidence is such that a reasonable jury
could return a verdict for the nonmoving party. However,
there must exist a conflict in substantial evidence to pose a
jury question.” Hall v. Sunjoy Indus. Grp.,
Inc., 764 F.Supp.2d 1297, 1301 (M.D. Fla. 2011) (citing
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986), and Verbraeken v. Westinghouse Elec. Corp.,
881 F.2d 1041, 1045 (11th Cir. 1989)).
moving party bears the burden of establishing that there is
no genuine dispute as to any material fact and that he is
entitled to judgment as a matter of law. See Williamson
Oil Co. v. Philip Morris USA, 346 F.3d 1287, 1298 (11th
Cir. 2003). Specifically, the moving party must identify the
portions of the record which establish that there are no
“genuine dispute[s] as to any material fact and the
movant is entitled to judgment as a matter of law.”
See Moton v. Cowart, 631 F.3d 1337, 1341 (11th Cir.
2011). When the nonmoving party would have the burden of
proof at trial, the moving party may discharge his burden by
showing that the record lacks evidence to support the
nonmoving party's case or that the nonmoving party would
be unable to prove his case at trial. See id.
(citing Celotex Corp. v. Catrett, 477 U.S. 317,
322-23 (1986)). In determining whether a summary judgment
motion should be granted, a court must view the record and
all reasonable inferences that can be drawn from the record
in a light most favorable to the nonmoving party.
Peek-A-Boo Lounge of Bradenton, Inc. v. Manatee
Cty., 630 F.3d 1346, 1353 (11th Cir. 2011) (citing
Rodriguez v. Sec'y for Dep't of Corr., 508
F.3d 611, 616 (11th Cir. 2007)).
Deliberate Indifference to Medical Needs
Eighth Amendment's proscription against cruel and unusual
punishment imposes a constitutional duty upon prison
officials to “ensure that inmates receive adequate
food, clothing shelter, and medical care.” Farmer
v. Brennan, 511 U.S. 825, 832 (1994). However,
“not every claim by a prisoner that he has not received
adequate medical treatment states a violation of the Eighth
Amendment.” Harris v. Thigpen, 941 F.2d 1495,
1505 (11th Cir. 1991) (quoting Estelle v. Gamble,
429 U.S. 97, 105 (1976)). Rather, “an inmate must
allege acts or omissions sufficiently harmful to evidence
deliberate indifference to serious medical needs.”
Estelle, 429 U.S. at 106. In order to prevail on a
deliberate indifference claim, a prisoner must: (1) satisfy
the objective component by showing a serious medical need;
(2) satisfy ...