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Wimberly v. Broome

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

March 6, 2018

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

          ORDER

          J. RANDAU HALL, CHIEF JUDGE

         Presently before the Court are Defendants Broome and Ferra's Objections to the Magistrate Judge's Report and Recommendation. (Docs. 76, 77.) After an independent and de novo review of the entire record, the undersigned concurs with the December 19, 2017, Report and Recommendation, (doc. 75). Accordingly, the Court OVERRULES Defendants' Objections and ADOPTS the Magistrate Judge's Report and Recommendation, as supplemented herein, as the opinion of the Court. The Court DISMISSES AS MOOT IN PART and DENIES IN PART Defendants' Motions for Summary Judgment. (Docs. 64, 68.) The Court DISMISSES AS MOOT the portions of Defendants' Motions addressing Plaintiffs requests for injunctive relief and DENIES all other portions of the Motions. Additionally, given the mootness of Plaintiffs claims for injunctive relief, the Court DISMISSES those claims WITHOUT PREJUDICE.

         BACKGROUND

         Plaintiff filed this action pursuant to 42 U.S.C. § 1983, contending that Defendants were deliberately indifferent to his serious medical needs when they failed to timely provide him with a hip replacement surgery. (Doc. 1.) The Court conducted the requisite frivolity review, (doc. 12), and Defendants Broome and Middleton then filed a Motion to Dismiss, (doc. 23), to which Plaintiff filed a Response, (doc. 26). On June 16, 2016, the Magistrate Judge recommended that the Court deny Defendants Broome and Middleton's Motion to Dismiss, and this Court adopted that Recommendation on July 18, 2016, (doc. 34).[1]Subsequently, Defendants filed a Motion for Summary Judgment, (docs. 64, 68), to which Plaintiff filed Responses, (docs. 72, 73). The Magistrate Judge recommended the Court dismiss as moot in part and deny in part Defendants' Motions for Summary Judgment. (Doc. 75.) In particular, the Magistrate Judge recommended dismissing as moot any issues regarding injunctive relief and denying all other portions of the Motions. (Id.)

         DISCUSSION

         Defendants Broome and Ferra filed separate Objections to the Magistrate Judge's recommendation that the Court deny summary judgment. (Docs. 76, 77.) Defendant Broome contends that the Magistrate Judge improperly relied on the evidence to determine that Defendant Broome had deliberately disregarded a serious medical need. (Doc. 76, pp. 1-4.) Defendant Ferra contends that there is insufficient evidence in the record to establish that she was deliberately indifferent to Plaintiffs serious medical need, (doc. 77, pp. 2-6), and insufficient evidence to establish her causal role in Plaintiffs injury, (id. at pp. 7-8). The Court addresses each of these Objections in turn.

         I. Whether Defendant Broome Deliberately Disregarded Plaintiffs Serious Medical Need

         Defendant Broome contends that the Magistrate Judge erred in coming to certain conclusions based upon the record. (Doc. 76, p. 1.) Specifically, Defendant Broome contests the Magistrate Judge's conclusions drawn from Defendant Broome entering a Consult Request for surgery "over five months [after the December 1, 2014 MRI] on May 14, 2015, " (id. at pp. 1-2 (citing doc. 75, p. 8)), and the treatment Plaintiff received from May to October 2015, (id. at pp. 3-4.)

         However, Defendant Broome's Objections only highlight what the Magistrate Judge ultimately determined-that the record, when viewed in the light most favorable to Plaintiff, "only raises more questions as to the diligence of Defendant Broome's efforts in obtaining surgery." (Doc. 75, p. 9.) Defendant Broome argues that, as soon as Plaintiffs December 1, 2014 MRI indicated "longstanding [avascular necrosis], " (doc. 64-7, p. 9), he "was aware that the Plaintiff was going to an orthopedic consult in March 2015, " (doc. 75, p. 2), and presumably did not think it necessary to schedule an earlier appointment. Even if this were true, the Consult Request for this appointment indicates that Plaintiff was originally scheduled to see a specialist on December 4, 2014, but Georgia State Prison notified Utilization Management on February 24, 2015, to reschedule the appointment. (Doc. 64-7, p. 3.) No explanation is provided as to why a request to reschedule was not made until two months after the original appointment date and MRI test date, who at Georgia State Prison ordered this rescheduling, or even why it occurred. Indeed, viewing the entirety of the record in the light most favorable to Plaintiff, a reasonable jury could conclude that Dr. Broome created this delay due to the cost of hip replacement surgery.

         Dr. Broome also claims that the delay from December 2014 to May 2015 was exacerbated by Utilization Management sending Plaintiff to a neurosurgeon instead of an orthopedic specialist. Dr. Broome claims that "upon learning [of this error], Dr. Broome then supervised PA Caraviello in May of 2015 in writing another Consult Request. . . ." (Doc. 76, p. 2.) However, this fact only raises more questions as to Dr. Broome's diligence. Dr. Broome did not submit a Consult Request until two months after Plaintiff saw the wrong specialist-even though that same specialist recommended a referral to "ortho for [right] hip ASAP, " (doc. 64-7, p. 8), five months after Plaintiff was recommended for "urgent hip replacement surgery, " (doc. 22, p. 2), and nearly seven months after Plaintiffs x-ray results identified possible avascular necrosis, (doc. 64-6, p. 14).[2]

         Even setting aside these particular facts and the specific facts contested by Defendants in subpart B of their Response, the entirety of the record reveals that Plaintiff was diagnosed with longstanding avascular necrosis in late 2014. Despite the necessity for urgent surgery, Plaintiff did not receive surgical treatment until nearly three years later. Defendant Broome argues that the delays were due to circumstances beyond his control, and that he worked "diligently to ensure . . . Plaintiff received the appropriate care for his hip ... ." (Doc. 76, p. 4.)[3] However, despite the numerous Consult Requests submitted "under Dr. Broome's supervision, " (id), only three were ever categorized as "urgent" following Plaintiffs diagnosis, (doc. 64-7, p. 11; doc. 64-9, p. 13; doc. 64-10, p. 2). Even more telling, the first "urgent" Request was not entered until May 14, 2015-five months after an MRI confirmed longstanding avascular necrosis. The other two "urgent" Requests were not entered until March and April of 2016.

         These facts, combined with Plaintiffs claims that Dr. Broome specifically told Plaintiff that surgery was "too expensive for someone serving a life sentence, " (doc. 64-17, pp. 13, 15), create a genuine dispute of material fact as to whether Dr. Broome purposely delayed Plaintiffs surgery due to cost. Accordingly, the Court cannot decide as a matter of law that Defendant Broome did not act with "more than mere negligence" during the course of Plaintiffs medical treatment. Melton v. Abston. 841 F.3d 1207, 1223 (11th Cir. 2016).

         II. Whether Defendant Ferra Deliberately Disregarded Plaintiffs Serious Medical Need

         Defendant Ferra argues that the medical record shows that she did not provide "grossly inadequate care" or "medical care that is so cursory as to amount to no treatment at all." (Doc. 77, p. 2.) Instead, Defendant Ferra argues that she provided appropriate treatment for Plaintiffs hip and that, even if she did not, ...


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