Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Wimberly v. Broome

United States District Court, S.D. Georgia, Statesboro Division

December 19, 2017

LEONARD WIMBERLY, JR., Plaintiff,
v.
DEAN BROOME; GAIL FERRA; and NURSE MARTHA MIDDLETON, Defendants.

          ORDER AND MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          R. STAN BAKER UNITED STATES MAGISTRATE JUDGE

         Presently 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 PREJUDICE.

         BACKGROUND [1]

         Plaintiff 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.)

         Georgia 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.)

         Beginning 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.)

         Despite 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.)

         After 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.) Plaintiff refused.

         An MRI 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.)

         From 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.

         Plaintiff 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.)

         Plaintiff 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).

         STANDARD OF REVIEW

         Summary 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)).

         The 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)).

         DISCUSSION

         I. Deliberate Indifference to Medical Needs

         The 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.