United States District Court, S.D. Georgia, Savannah Division
RANDAL HALL, CHIEF JUDGE
the Court is Defendant's motion for summary judgment.
(Doc. 107.) The Clerk has given Plaintiff notice of the
summary judgment motion and the summary judgment rules, of
the right to file affidavits or other materials in
opposition, and the consequences of default. Therefore, the
notice requirements of Griffith v. Wainwright, 772
F.2d 822, 825 (11th Cir. 1985) (per curiam), have been
satisfied. For the following reasons, Defendant's motion
is GRANTED IN PART AND DENIED IN PART.
facts construed in Plaintiff's favor, are as follows.
Plaintiff Milton Ross is an inmate at Coastal State Prison
("CSP"). (Ross Dep., Doc. 108-2, at 9.) In 2002,
Plaintiff was shot in the back while fleeing from police
after committing an assault and armed robbery. (Id.
at 9-10, 16.) Plaintiff was convicted and sentenced to serve
a life sentence. (Id.)
Plaintiff's Prior Medical History
fragments have remained in Plaintiff's spine since he was
shot in 2002. (Id. at 17.) Those fragments, which
are too small to remove, have damaged Plaintiff's nerve
tissue causing him to be in severe pain. (Id. at
17-18.) In 2004, Plaintiff was diagnosed with cauda
equina syndrome. (Apple Report, Doc. 125-2, at 2.)
Between 2002 and 2006, Plaintiff saw multiple doctors while
incarcerated at Phillips State Prison (“PSP") and
was further diagnosed with spinal stenosis. (Id.)
Plaintiff's doctors prescribed a litany of different
drugs to treat his pain including Neurontin, MS Contin,
Darvocent, Ultram, and Baclofen, but Plaintiff felt no
relief. (Doc. 125-4, at 15, 17; Ross Dep. at 24.) In 2006,
after Plaintiff had been given every "medicine
conceivable, none of which worked, " Plaintiff's
doctor began to consider implanting a spinal cord stimulator
("SCS"). (Doc. 125-4, at 23.) An SCS is an
implantable device that uses electrical currents to block
pain signals. (Apple Dep., Doc. 108-3, at 9.)
September 26, 2006, Plaintiff met Dr. Efrim Moore, a pain
management specialist who decided Plaintiff was a proper
candidate for an SCS implant. (Doc. 125-10.) A temporary
implant was placed in October 2006 and Plaintiff reported a
greater than fifty-percent pain reduction as a result
thereof. (Doc. 125-12.) A permanent SCS was implanted on
December 15, 2006. (Id.)
August 13, 2010, Plaintiff underwent surgery to repair a
fractured lead on his SCS. (Apple Report at 4.) Shortly after
this surgery, Plaintiff started exhibiting symptoms of a
life-threatening infection. (Id.) Because of this
infection, which was later revealed to be
methicillin-resistant Staphylococcus aureus
("MRSA"), doctors were forced to remove
Plaintiff's SCS. (Fogam Aff., Doc. 111, ¶ 8.) The
doctors who removed Plaintiff's SCS allegedly recommended
that Plaintiff see a specialist to discuss future treatment.
(Doc. 125-24, at 2; Ross Dep. at 37.) After his
hospitalization, Plaintiff was transferred to Men's State
Prison ("MSP") on October 21, 2010. (Doc. 125-23,
at 2.) With the SCS removed, Plaintiff's pain returned to
his pre-implant levels. (Houten Dep., Doc. 110, at 150.)
Defendant's Treatment Between 2010 and 2012
Plaintiff was transferred to Coastal State Prison
(“CSP") on November 17, 2010. (Id.) The
next day, Plaintiff had his first appointment with CSP's
medical director, Defendant Dr. Eric Fogam. (Apple Report at
4; Ross Aff., Doc. 125-1, ¶ 2.) Defendant concedes that
he reviewed Plaintiff's file before the appointment and
was aware that Plaintiff suffered from cauda equina
syndrome and was in chronic pain. (Fogam Dep., Doc. 125-34,
at 36-37, 80-81.) During this appointment, Plaintiff told
Defendant about a pending specialist consultation and
Defendant assured Plaintiff he would be sent to Dr. Moore.
(Ross Dep. at 37.) Defendant renewed Plaintiff's
prescriptions for Lyrica, Baclofen, and Motrin, but did not
refer him to Dr. Moore. (Doc. 125-25.) Defendant denies that
Plaintiff had a pending consultation and further alleges that
Plaintiff was not complaining of uncontrolled pain, and
therefore such a referral was unnecessary. (Fogam Dep. at
61-62, 75, 78.)
December 2, 2010, during an appointment with another CSP
physician, Dr. Olantunji Awe, Plaintiff complained that he
continued to suffer uncontrolled pain. (Ross Dep. at 63.) Dr.
Awe responded by increasing Plaintiff's Baclofen dosage
and prescribing a 90-day trial of Percogesic, a pain
reliever. (Awe Aff., Doc. 109, ¶ 10.) On February 7,
2011, at Plaintiff's request, Defendant replaced
Plaintiff's Baclofen with Neurontin, a medication that
treats neuropathic pain. (Fogam Aff. ¶ 11.)
February 17, 2011, Dr. Awe ordered an x-ray of
Plaintiff's hip, which was injured due to a fall. (Awe
Aff. ¶ 11.) During a March 31, 2011 appointment to
discuss his x-ray results with Defendant, Plaintiff reported
that he continued to experience uncontrolled pain, that the
medication he was taking was not effective, and that he
needed to see a specialist. (Ross Dep. at 84.) In response,
Defendant allegedly accused Plaintiff of malingering and told
Plaintiff he "need[ed] to get out of the wheelchair and
walk, " and that there was nothing wrong with him
other than “a mild case of arthritis." (Ross Dep.
at 84.) On April 4, Plaintiff filed a grievance regarding
Defendant's treatment, Plaintiff's uncontrolled pain,
and his desire to see a pain specialist. (Doc. 125-2 9.)
Pursuant to CSP policy, Defendant allegedly signed a witness
statement responding to Plaintiff's
complaint. (Doc. 125-30.)
and Dr. Awe continued to treat Plaintiff with medication over
the next year and a half. (Apple Report at 6.) During each of
these appointments, Plaintiff complained that he was still in
a great deal of pain, the prescribed medication had no
effect, and that he wanted to see a specialist. (Ross Dep. at
63-64.) Unaware of any alternative treatment for Plaintiff
but believing a specialist might know better, on March 7,
2012, Defendant ordered a consultation with an orthopedic
specialist. (Fogam Aff. ¶ 6.) Nevertheless, Defendant
subsequently placed Plaintiff's consultation on hold
(1) The underlying nerve conditions causing [Plaintiff's]
chronic pain were irreversible; (2) they were in the process
of managing his chronic pain with medication . . . . (3)
there were indications - both objective and subjective - that
medications were having some effect . . . and (4) they were
not aware of any more efficacious treatment ....
(Defendant's Statement of Material Facts, Doc. 107-2,
¶ 66.) Plaintiff, on the other hand, denies that his
pain improved over this period. (Ross Dep. at 60.) Defendant
even conceded that by September 17, 2012, Plaintiff's
pain had actually intensified. (Fogam Dep. at 114.)
Defendant's Treatment Between 2012 and 2014
November 28, 2012, Plaintiff was referred to a specialist,
Dr. Michelle Cintron. (Cintron Dep., Doc. 126-33, at 21.)
While Defendant intended to send Plaintiff to an orthopedic
specialist, Dr. Cintron is a sports management physician.
(Id. at 7; Fogam Aff. ¶ 24.) Moreover, because
of confusion regarding Defendant's referral form, Dr.
Cintron did not assess Plaintiff for any kind of surgery.
(Cintron Dep. at 26.) Instead, Dr. Cintron only recommended
Defendant increase Plaintiff's Neurontin dosage.
(Id. at 45.) Defendant asserts he was unaware of
these referral errors and that he assumed Dr. Cintron had
evaluated Plaintiff and decided he was not a candidate for
surgery. (Fogam Aff. ¶ 28.)
January 30, 2013, Plaintiff was sent to a neurologist, Dr.
Edward Mendoza. (Mendoza Dep., Doc. 126-36, at 11.) Dr.
Mendoza recommended adjusting Plaintiff's medication and
ordering an electromyogram to examine Plaintiff's nerve
structure. (Mendoza Aff., Doc. 108, ¶ 12.) In July 2014,
Defendant left his position at CSP and provided no additional
treatment to Plaintiff. (Fogam Dep. at 15.)
Plaintiff's Care From 2014 to
Subsequent to Defendant's departure from CSP, Dr. Awe has
taken over as medical director. (Awe Aff. ¶ 3.)
Plaintiff continued to complain about his pain and on July
23, 2014, Plaintiff had another appointment with Dr. Mendoza,
who again recommended adjusting Plaintiff's medication.
(Mendoza Aff. ¶ 25.)
the next two years, Plaintiff continued to receive treatment
from Dr. Awe and Dr. Mendoza. On September 21, 2016,
Plaintiff was evaluated by an orthopedic surgeon, Dr. John
DeVine. (DeVine Dep., Doc. 110-1, at 34-40.) Dr. DeVine
reported that surgical intervention was not warranted and
recommended Plaintiff be referred to a pain specialist.
(Id. at 39.) Dr. DeVine did not, however, evaluate
Plaintiff for the placement of an SCS or a pain pump.
(Id. at 48.)
was next seen by a pain specialist at Augusta University
Hospital, Dr. Dan Martin, on November 14, 2016. (Martin Dep.
Vol. I, Doc. 110-2, at 33.) Dr. Martin recommended that
Plaintiff continue his medications and return in two months.
(Id. at 44.) Plaintiff returned on February 27,
2017, and while Dr. Martin did not believe Plaintiff was a
suitable candidate for an SCS ...