Opinion
Case No. 5:18-cv-00186-MTT-MSH
10-28-2019
LANCE KERSHAW, Plaintiff, v. SOUTHERN CORRECTIONAL MEDICINE, et al., Defendants.
ORDER AND REPORT AND RECOMMENDATION
Pending before the Court are Defendants' motions to dismiss and for summary judgment, and Plaintiff's motion for law library access (ECF Nos. 51, 53, 64). For the reasons explained below, it is recommended that Defendants' motion for summary judgment be granted, or, in the alternative, their motion to dismiss be granted. It is also recommended that Plaintiff's motion for law library access be denied.
PROCEDURAL BACKGROUND
The present action arises out of Plaintiff's confinement at the Lamar County Detention Center ("Jail"). He contends that Defendants acted with deliberate indifference to his chronic hip pain by failing to provide appropriate medication. Recast Compl. 7-8, ECF No. 7. Plaintiff brings his claim under 42 U.S.C. § 1983, alleging a violation of his constitutional right against cruel and unusual punishment. The Court received his original complaint (ECF No. 1) on May 22, 2018, and his recast complaint (ECF No. 7) on June 18, 2018. After preliminary screening, Plaintiff's claims were allowed to proceed for further factual development. Order and R. & R. 5-6, Aug. 27, 2018, ECF No. 9. Defendants moved to dismiss Plaintiff's complaint for failure to exhaust his administrative remedies on June 28, 2019 (ECF No. 51). They moved for summary judgment the same day (ECF No. 53). After being granted an extension, Plaintiff responded to both motions on September 20, 2019 (ECF Nos. 66, 67). Defendants filed reply briefs on both motions (ECF Nos. 70, 75). These motions are ripe for review.
Plaintiff was a pretrial detainee at the time of the relevant events. Recast Compl. 1. "[T]he Due Process Clause of the Fourteenth Amendment, not the Eighth Amendment's prohibition against cruel and unusual punishment, governs" when the prisoner is a pretrial detainee. Goodman v. Kimbrough, 718 F.3d 1325, 1331 n.1 (11th Cir. 2013). The distinction is not important in this case, however, as a pretrial detainee's claims for inadequate medical care "are evaluated under the same standard as a prisoner's claim of inadequate care under the Eighth Amendment." Dang ex rel. Dang v. Sheriff, 871 F.3d 1272, 1279 (11th Cir. 2017).
Plaintiff also asserted claims against the Sheriff and members of the Jail staff, but those have been dismissed. Order, Oct. 10, 2018, ECF No. 25.
Under the prison mailbox rule, a pro se prisoner's court filing is deemed filed on the date it is delivered to prison authorities for mailing." United States v. Glover, 686 F.3d 1203, 1205 (11th Cir. 2012) (citation and internal quotation marks omitted). "Unless there is evidence to the contrary, like prison logs or other records, we assume that a prisoner's motion was delivered to prison authorities on the day he signed it." Id.
DISCUSSION
I. Defendants' Motion for Summary Judgment
A. Summary Judgment Standard
Summary judgment may be granted only "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). In determining whether a genuine dispute of material fact exists to defeat a motion for summary judgment, the evidence is viewed in the light most favorable to the party opposing summary judgment, drawing all justifiable inferences in the opposing party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). A fact is material if it is relevant or necessary to the outcome of the suit. Id. at 248. A factual dispute is genuine if the evidence would allow a reasonable jury to return a verdict for the nonmoving party. Id.
The party seeking summary judgment "always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quotation marks omitted). If the movant meets this burden, the burden shifts to the party opposing summary judgment to go beyond the pleadings and present specific evidence showing that there is a genuine issue of material fact, or that the movant is not entitled to judgment as a matter of law. Id. at 324-26. This evidence must consist of more than conclusory allegations. See Avirgan v. Hull, 932 F.2d 1572, 1577 (11th Cir. 1991). In sum, summary judgment must be entered "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322.
Plaintiff has failed to comply with Local Rule 56 by not filing a specific response to each numbered paragraph of Defendants' statement of material facts. See M.D. Ga. L. R. 56 ("Response shall be made to each of the movant's numbered material facts."). The purpose of this rule is to "protect[] judicial resources by making the parties organize the evidence rather than leaving the burden upon the district judge." Reese v. Herbert, 527 F.3d 1253, 1268 (11th Cir. 2008) (quotation marks and citation omitted). Plaintiff has instead submitted his own statement of facts which do not correspond to Defendants' numbered paragraphs. Pl.'s Statement of Material Facts, ECF No. 67-2. The Court could simply deem admitted those "material facts contained in the [Defendants'] statement which are not specifically controverted by specific citation to particular parts of materials in the record." M.D. Ga. L. R. 56. Nevertheless, the Court has reviewed Plaintiff's statement of material facts and the entire record of the case, and if evidence in the record shows that a fact is disputed, the Court has drawn all justifiable inferences in his favor for purposes of summary judgment. Maxwell v. Brennan, No. 5:16-cv-572-MTT, 2018 WL 2072850, at *2 n.2 (M.D. Ga. May 3, 2018).
B. Factual Background
Plaintiff entered the Jail on October 17, 2016. Med. Rec. 1, ECF No. 53-2; Wrobel Aff. ¶ 3, ECF No. 53-1. During booking, he indicated he was not currently taking medication which needed to be continued in the Jail. Suppl. Med. Rec. 46, ECF No. 76-1. Shortly afterward, he was given an assessment by Dr. Wilson, during which Plaintiff reported suffering a hip fracture with surgical repair in 2015. Id. at 40. He was noted to be under no current medication. Id. Dr. Wilson diagnosed Plaintiff with hip pain for which he ordered Plaintiff be given Ibuprofen 800 mg twice a day as needed. Id. at 39, 41. Over the next fourteen months, Plaintiff took the prescribed Ibuprofen sporadically, including only twice in December 2017. Id. at 4, 7-8, 15-18, 24-28, 35, 37-38. Moreover, the medical records for the approximately fourteen months prior to Defendants assuming medical care over the Jail do not show Plaintiff ever being given, or requesting, stronger pain medication. See generally Med Rec.; Suppl. Med. Rec. On January 3, 2018, he submitted a request for medical services complaining of a bad cold, sore throat, aches and pains, and the plate in his hip hurting. Suppl. Med. Rec. 3. In response, it was noted that Plaintiff had an order for Ibuprofen as needed and was given Robafen for his cold. Med. Rec. 37; Suppl. Med. Rec. 3.
Ibuprofen is a nonsteroidal anti-inflammatory drug (NSAID) used for pain relief and fever reduction. Physician's Desk Reference 1368 (68th ed. 2014).
On January 8, 2018, Defendant Southern Correctional Medicine, Inc. ("SCM"), became responsible for Jail medical services. Wrobel Aff. ¶ 4; Defs.' Resp. to Ct. Order 1, ECF No. 72. Defendant Dr. Wrobel is the owner and Chief Executive officer of SCM. Wrobel Aff. ¶ 4. Defendant Rowell was a nurse practitioner providing services at the Jail. Wrobel Aff. ¶ 7. On the same day, Plaintiff complained about chronic pain. Med. Rec. 37. Two days later he had his initial screening with SCM, where it was noted that Plaintiff had a plate and seven screws placed in his hip three years before. Med. Rec. 17. He also reported limited mobility at times. Wrobel Aff. ¶ 6; Med. Rec. 19. The medical records contain no specific complaints of hip pain for the next few months, although there were entries indicating Plaintiff's current medications as including Ibuprofen and also noting a prior medical history of chronic pain and arthritis. Med. Rec. 7, 10-11, 14. In this same time period, Plaintiff complained about various other issues, including marital stress, skin rashes, and a fungal infection on his foot. Id. at 7-8, 9-11, 14, 31-35.
Plaintiff has submitted an inmate grievance form dated April 11, 2018, wherein he reported having "again requested sick-call" on April 8, 2018. Pl.'s Resp. to Mot. for Summ. J. Attach. 1, at 29, ECF No. 67-1. He complained that Defendants had refused to treat his hip pain and had provided no "pain management other than Ibuprofen and regular Tylenol." Id. The form contains no signature by Jail staff confirming it was actually submitted. Further, the content of the grievance is inconsistent with the medical records showing Plaintiff was not given Tylenol until May 8, 2018. Med Rec. 5, 16, ECF No. 53-2. Even assuming—for purposes of summary judgment—the document is genuine, Plaintiff has presented no evidence to corroborate complaints of hip pain or desire for stronger pain medication between January 10, 2018, and April 8, 2018.
On April 23, 2018, Plaintiff submitted a medical service request, complaining of hip and back pain and "itching all over." Id. at 30. He reported the problem had persisted for more than eight months. Id. Plaintiff was seen by a nurse the next day and reported back and hip pain for the past six to eight months. Id. at 29. He stated nothing made it better and that laying down made it worse. Id. He was, however, noted to have full range of motion. Med. Rec. 29. He was instructed to take his ordered medication (Ibuprofen 800 mg twice-a-day as needed) for two weeks, to ambulate as much as possible, and to not stay in bed. Id. Plaintiff was seen two weeks later on May 7, 2018, and again complained of chronic lower back and hip pain. Id. at 26. It was noted that Plaintiff had been taking the Ibuprofen 800 mg every day for the past two weeks. Id. An appointment was made for Plaintiff to be seen by a medical provider the next day to discuss options for pain management. Id.
Defendants contend Plaintiff was non-compliant with his medications, citing the nurse's assessment from May 7, 2018. Med. Rec. 26. The Court believes Defendants have misread the nurse's notes. In the section for current medications, the nurse indicated "Ibuprofen 800mg—ordered prn—taking Q day for last 2 weeks." Id. Defendants apparently read this as "taking Ø day for last two weeks." The Court believes the nurse intended to write the letter "Q" as an abbreviation for "every," though it should not have been capitalized. Stedman's Medical Dictionary 1478 (26th Ed. 1995). Another record from March 2018 noted that Plaintiff was compliant with his medication. Med. Rec. 7.
Rowell saw Plaintiff on May 8, 2018. Id. at 5. Plaintiff reported chronic left hip pain and stated the Ibuprofen was not helping. Med. Rec. 5 He requested a prescription for Tramadol. Id. A physical examination showed he was moving all extremities well and had full range of motion. Id. Rowell ordered that Plaintiff be given Tylenol 500 mg twice a day as needed for pain along with an additional mattress. Id. at 5, 16. He was also provided with cream for an intermittent rash. Id. Plaintiff signed his original complaint on May 14, 2018, and, based on the postmark, it was mailed from the Jail by at least May 18, 2018. Compl. 7, ECF No. 1; Compl. Attach., ECF No. 1-1.
Tramadol is a narcotic analgesic used to relieve moderate to moderately severe pain. MedlinePlus, Tramadol, http://medlineplus.gov/druginfo/meds/a695011.html (last revised Jan. 15, 2019).
Acetaminophen, the generic name for Tylenol, is an analgesic/antipyretic used to treat pain. Physician's Desk Reference 1375 (68th ed. 2014).
On May 21, 2018, Plaintiff submitted another medical service request, again complaining of left hip pain and requesting pain management. Med. Rec. 25. He added that his "street doctor has me on Altram." Id. He was seen again by Rowell the next day. Id. at 3. He informed her that he wished to continue documentation of his chronic left hip pain. Id. Plaintiff stated his pain had been ongoing for four years and that he had been taking Altram prior to his arrest. Id. He indicated an unspecified personal care physician in Griffin had been treating his hip with medication, but there were no planned procedures. Id. Rowell noted that Plaintiff was taking Tylenol and Ibuprofen with no worsening factors reported. Med. Rec. 3. She also observed that he was ambulatory; had a steady, normal gait; full-range of motion of the spine and hips with good flexion/extension; and no guarding motion. Id. She ordered that he continue with the Tylenol and Ibuprofen. Id. The Court received Plaintiff's original complaint the same day. Compl. 1.
Altram (brand name) contains a combination of tramadol and acetaminophen. nDrugs.com, Altram, https://www.ndrugs.com/?s=altram (last visited Oct. 17, 2019).
On May 28, 2018, Plaintiff again requested to see a doctor for chronic pain in his hip. Med. Rec. 24. He was seen by a Jail nurse who checked a box indicating "limited" range of motion. Id. at 23. The next day, the nurse informed Rowell of Plaintiff's continued pain and his report of a "hip repair in 2015 (the best he can remember)." Id. at 22. The nurse also noted Plaintiff reporting that his current medicine regimen helped "some" but that he was worried about liver or kidney damage. Id. In response, Rowell ordered that the Ibuprofen be discontinued and Plaintiff started on Meloxicam 15 mg once a day. Id. On June 8, 2018, Plaintiff filed his recast complaint. Recast Compl. 9.
Meloxicam is a nonsteroidal anti-inflammatory drug (NSAID) used to treat arthritis. Medline Plus, Meloxicam, https://medlineplus.gov/druginfo/meds/a601242.html (last revised July 15, 2016).
On June 11, 2018, Plaintiff submitted another medical service request. Med. Rec. 21. He stated that nothing staff had tried had worked and asked why he could not be prescribed Altram, as was done by the surgeon who repaired his hip, or some other medication. Med. Rec. 21. Rowell examined Plaintiff the next day. Id. at 1. During this examination, Plaintiff requested he be prescribed Tramadol and Naproxen. Rowell again noted that Plaintiff moved all extremities well and had full range of motion. Id. She also observed he was ambulatory with a normal gait and no limp. Id. Nevertheless, she ordered that Dr. Wrobel be contacted and advised of Plaintiffs' request for Tramadol and Naproxen. Id. at 1, 15. Plaintiff's records were sent to Dr. Wrobel for review, and in response, he prescribed Plaintiff Naproxen 500 mg twice a day. Id. at 15, 40.
Naproxen is a non-steroidal anti-inflammatory drug (NSAID) used to relieve pain. MedlinePlus, Naproxen, https://medlineplus.gov/druginfo/meds/a681029.html (last revised July 15, 2016).
C. Analysis
In order to prove a claim of deliberate indifference, "a plaintiff must show: (1) a serious medical need; (2) a defendant's deliberate indifference to that need; and (3) causation between that indifference and the plaintiff's injury." Melton v. Abston, 841 F.3d 1207, 1220 (11th Cir. 2016) (per curiam). Plaintiff alleges Defendants were deliberately indifferent to his medical needs by refusing to prescribe Altram—or an effective substitute—for his chronic hip pain. Recast Compl. 7-8. He contends this refusal stems from an SCM policy not to prescribe narcotics and that requests by the nurse practitioner for Dr. Wrobel to authorize the medication went "unanswered." Id. at 7-8. He further asserts the Ibuprofen 800 mg, Tylenol 1000 mg, and Meloxicam prescribed by Defendants were ineffective. Id. Defendants contend, however, that Plaintiff did not have a serious medical need and they were not deliberately indifferent to his complaints of hip pain. Defs.' Br. in Supp. of Mot. for Summ. J. 6-8. ECF No. 53-4. The Court agrees the evidence does not show a serious medical need or deliberate indifference to that need.
1. Serious Medical Need
"A serious medical need is one that has been diagnosed by a physician as mandating treatment or one that is so obvious that even a lay person would easily recognize the necessity for a doctor's attention. In either case, the medical need must be one that, if left unattended, poses a substantial risk of serious harm." Dang ex rel. Dang v. Sheriff, 871 F.3d 1272, 1280 (11th Cir. 2017) (internal quotation marks and citations omitted). "Severe pain that is not promptly or adequately treated can [] constitute a serious medical need depending on the circumstances." Melton, 841 F.3d at 1222. "But a plaintiff's statement that he experienced some pain or discomfort is not enough; the prisoner's pain must be objectively so severe that the failure to treat it deprives him 'of the minimal civilized measure of life's necessities.'" Brennan v. Thomas, No. 17-14575, 2019 WL 3231193, at *5 (11th Cir. July 18, 2019) (per curiam) (quoting Farmer v. Brennan, 511 U.S. 825, 834 (1994)). Here, the objective evidence does not show a serious medical need.
After Plaintiff complained of pain, he was examined by Rowell on at least three occasions, and she noted Plaintiff was walking with a normal gait, moved all extremities well, and had full range of motion. Id. at 1, 3, 5. Plaintiff does not dispute that Rowell performed range of motion tests, nor does he dispute that she reached these objective findings. Recast Compl. 8; Pl.'s Statement of Material Facts ¶ 4, ECF No. 67-2; Defs.' Statement of Undisputed Material Facts ¶¶ 13-15. The only evidence of severe pain cited by Plaintiff—other than his numerous subjective complaints—is the report he had hip surgery in 2015 and was prescribed Altram at some point in time afterward. Pl.'s Br. in Opp'n to Mot. for Summ. J. 9, ECF No. 67-5. Petitioner, however, has not stated when the medication was prescribed, for how long it was prescribed, or even the identity of the prescribing physician.
Although not specifically cited by Plaintiff, a nurse checked a box on May 29, 2018, indicating "limited" range of motion—after crossing out where she had checked "full" range of motion. Med. Rec. 23. This cursory note, however, provides no description of the degree of limitation or how it was determined. Prior to this, entries both by Rowell and a member of Jail staff showed full range of motion. Id. at 3, 5, 29. In any event, the next day, Rowell prescribed Meloxicam, and when she examined Plaintiff two weeks later, she again noted full range of motion. Id. at 1, 15, 22. Thus, even if Plaintiff had some degree of pain that limited motion, the objective evidence shows it was not severe.
Petitioner contends he told Defendants the hospital where he underwent surgery in 2015, and therefore, they should have been able to obtain details as to his treatment. Pl.'s Br. in Opp'n to Mot. for Summ. J. 2, ECF No. 67-5. That is belied by the record, which shows that the most Plaintiff was able to tell Defendants was that he was seeing a doctor in Griffin, whose name he could not recall. Med. Rec. 1, 3.
Moreover, even if Plaintiff was prescribed Altram at some point after hip surgery three years earlier, this does not show he was suffering severe pain at the time Defendants treated him. The records show that at the time Plaintiff was taken into custody, he was not under any current medications, contradicting his claim that he had an active prescription for Altram. Suppl. Med. Rec. 40-41, 46. Additionally, during the approximately fourteen months prior to Defendants assuming responsibility for Plaintiff's care, he was never prescribed any pain medication beyond Ibuprofen, which he took sporadically, including only twice in December 2017. Id. at 4, 7-8, 15-18, 24-28, 35, 37-39, 41. In this time, there is no evidence he even requested stronger medication. See generally Med Rec.; Suppl. Med. Rec. Thus, this is not a case where Defendants refused to give Plaintiff an active prescription for narcotics. See Scott v. Campbell, No. 4:08cv205-RH/WCS, 2009 WL 3028306, at *1-2 (N.D. Fla. Sept. 17, 2009) (summary judgment denied where jail took pretrial detainee off narcotic prescribed by private physician for chronic back pain). Further, Plaintiff has not presented evidence that upon his transfer to the prison system he required further treatment for his hip or stronger pain medication.
In summary, the objective evidence does not show pain so severe that failure to prescribe Altram or another narcotic medication deprived him of the minimal civilized measure of life's necessities. See Brennan, 2019 WL 3231193, at *1, 5 (holding plaintiff did not show serious medical need where he was prescribed Tylenol and a muscle relaxant and objective evidence did not show pain was so severe as to require narcotics).
2. Deliberate Indifference
Even if Plaintiff had a serious medical need, he has not shown Defendants were deliberately indifferent to it. To establish deliberate indifference to a serious medical need, a plaintiff "must prove: (1) subjective knowledge of a risk of serious harm; (2) disregard of that risk; (3) by conduct that is more than mere negligence. Summary judgment will be granted in favor of a defendant unless the plaintiff presents evidence of each of these elements." Melton, 841 F.3d at 1223 (internal citations omitted). "Medical treatment violates the Constitution only when it is so grossly incompetent, inadequate, or excessive as to shock the conscience or to be intolerable to fundamental fairness." Dang ex rel. Dang, 871 F.3d at 1280 (quotation marks and citation omitted). That is simply not the case here.
When Plaintiff complained of pain in April 2018, he was first instructed to take the Ibuprofen 800 mg for two weeks, ambulate as much as possible, and to not stay in bed. Med. Rec. 29. Two weeks later, he was seen by Rowell and reported continued pain. Id. at 5. In response, she added Tylenol 500 mg twice a day in addition to the Ibuprofen and ordered Plaintiff be provided with an additional mattress. Id. When Plaintiff saw Rowell again on May 22, 2018, she did a full examination, which—as previously noted—showed no objective findings of severe pain, and ordered him to continue his medications. Id. at 3. On May 30, 2018, Plaintiff reported he was still in pain, though the Ibuprofen and Tylenol helped "some." Id.. at 22. However, he expressed concern about liver/kidney damage. Id. Rowell discontinued the Ibuprofen and prescribed Meloxicam. Id. at 15, 22. On June 12, 2018, Plaintiff requested Rowell prescribe him Tramadol and Naproxen. Med. Rec. 1. Rowell ordered that Dr. Wrobel be notified of Plaintiff's request, and after Dr. Wrobel was provided Plaintiff's records for review, he prescribed Naproxen 500 mg twice a day. Id. at 1, 15, 40. In summary, the evidence shows a measured, progressive effort to treat Plaintiff's complaints of pain that neither "shock[s] the conscience" nor is "intolerable to fundamental fairness." Dang ex rel. Dang, 871 F.3d at 1280.
Plaintiff argues that deliberate indifference is shown by Defendants' "decision to take an easier but less efficacious course of treatment." Pl.'s Br. in Opp'n to Mot. for Summ. J. 7 (citing Steele v. Shaw, 87 F.3d 1266, 1269-70 (11th Cir. 1996) and Waldrop v. Evans, 871 F.2d 1030, 1035 (11th Cir. 1989)). Plaintiff, however, has presented no evidence that Defendants believed their mode of treatment would be less effective or easier. Dr. Wrobel avers that the "conservative measures" used with Plaintiff are an effective and adequate alternative to narcotic pain medication such as Altram. Wrobel Aff. ¶ 12. Whether his assessment is correct is not the issue. "[N]either a difference in medical opinion between the inmate and the care provider, nor the exercise of medical judgment by the care provider, constitutes deliberate indifference." Hernandez v. Sec. Fla. Dep't of Corr., 611 F. App'x 582, 584 (11th Cir. 2015) (per curiam) (citing Estelle v. Gamble, 429 U.S. 97, 108 (1976)); see also Ross v. Corizon Med. Servs., 700 F. App'x 914, 916 (11th Cir. 2017) (per curiam) ("The failure to administer stronger medication is generally a medical judgment that is not an appropriate basis for imposing liability." (citing Adams v. Poag, 61 F.3d 1537, 1547 (11th Cir. 1995))). To the extent Defendants' judgment was wrong, it was, at most, mere negligence, which is not sufficient to support Plaintiff's claim. Monteleone v. Corizon, 686 F. App'x 655, 659-60 (11th Cir. 2017) (per curiam) (holding failure to use a more effective medication may have constituted negligence but did "not rise to the level of deliberate indifference") (citing Harris v. Thigpen, 941 F.2d 1495, 1505-07 (11th Cir. 1991))).
The Court notes that Plaintiff has only complained that the Ibuprofen, Tylenol, and Meloxicam were ineffective in treating his pain. Kershaw Aff. ¶ 10, ECF No. 3; Pl.'s Br. in Opp'n to Mot. for Summ. J. 8. He also only refers to pain "during this period" and not receiving "pain medicine for more than [six] months." Kershaw Aff. ¶ 10; Pl.'s Br. in Opp'n to Mot. for Summ. J. 8. He never mentions the Naproxen being ineffective, thus corroborating Dr. Wrobel's contention that Plaintiff's symptoms could be treated without narcotics.
Plaintiff also contends the refusal to provide him Altram stemmed from an SCM policy not to prescribe narcotics. Recast Compl. 7. "[A] failure to treat a prisoner's pain based solely on a policy forbidding the use of narcotics can be evidence of deliberate indifference." Kister v. Quality Corr. Health Care, No. 5:16-cv-1406-KOB-HNJ, 2018 WL 6174693, at *5 (N.D. Ala. Mar. 12, 2018) (collecting cases). Defendants have not expressly denied a policy against prescribing narcotics. However, Plaintiff has not established that any such policy was absolute. While Plaintiff reports Rowell telling him narcotic medication was not prescribed "as a general rule," he also states she informed him that if "his Altram prescription was dropped off at the facility, it would still have to be approved by [Dr.] Wrobel." Recast Compl. 7-8. This is inconsistent with an absolute no-narcotics policy. Further, when Plaintiff requested Tramadol and Naproxen, Rowell forwarded his request to Dr. Wrobel, thus indicating stronger medication could be prescribed if approved. Finally, as discussed above, the refusal to provide Plaintiff with stronger medication did not stem solely from policy, but from objective findings as to his condition and a belief that more conservative measures would be effective in controlling his pain.
Plaintiff obviously would have preferred a prescription for Altram. His desire for a different mode of treatment, however, does not equate with deliberate indifference. Hamm v. DeKalb Cty., 774 F.2d 1567, 1575 (11th Cir. 1985). "Where a prisoner has received medical attention and the dispute is over the adequacy of the treatment, federal courts are generally reluctant to second guess medical judgments and to constitutionalize claims that sound in tort law." Id. (quotation marks and punctuation omitted). The Court, therefore, recommends that Defendants' motion for summary judgment be granted.
II. Defendants' Motion to Dismiss
Defendants have also moved to dismiss Plaintiff's complaint, arguing he failed to exhaust his administrative remedies. Defs.' Mot. to Dismiss 1, ECF No. 51. The Court agrees.
A. Exhaustion Standard
The Prison Litigation Reform Act ("PLRA") provides that "[n]o action shall be brought with respect to prison conditions under section 1983 of this title . . . by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a). When a grievance procedure is provided for prisoners, an inmate alleging harm suffered from jail conditions "must file a grievance and exhaust the remedies available under that procedure before pursuing a § 1983 lawsuit." Brown v. Sikes, 212 F.3d 1205, 1207 (11th Cir. 2000) (emphasis added). "The level of detail necessary in a grievance to comply with the grievance procedures will vary from system to system and claim to claim, but it is the prison's requirements, and not the PLRA, that define the boundaries of proper exhaustion." Jones v. Bock, 549 U.S. 199, 218 (2007).
The argument that a plaintiff has failed to satisfy section 1997e(a) is properly raised in a motion to dismiss. Bryant v. Rich, 530 F.3d 1368, 1375 (2008) ("[E]xhaustion should be decided on a Rule 12(b) motion to dismiss[.]"). Further, since dismissal for failure to exhaust is not an adjudication on the merits, the Court can resolve factual disputes using evidence from outside the pleadings. Id. at 1376. "[D]eciding a motion to dismiss for failure to exhaust administrative remedies is a two-step process." Turner v. Burnside, 541 F.3d 1077, 1082 (11th Cir. 2008). "First, the court looks to the factual allegations in the defendant's motion to dismiss and those in the plaintiff's response, and if they conflict, takes the plaintiff's versions of the facts as true." Id. If, taking plaintiff's facts as being true, the defendant is entitled to dismissal for failure to exhaust, then the complaint should be dismissed. Id. "If the complaint is not subject to dismissal at the first step . . . the court then proceeds to make specific findings in order to resolve the disputed factual issues related to exhaustion." Id. The defendant bears the burden of proof during this second step. Id. In resolving the factual dispute, a Court is authorized to make credibility determinations. Whatley v. Smith, 898 F.3d 1072, 1082-83 (11th Cir. 2018) (upholding district court finding that one of inmate's grievances was not filed).
B. Plaintiff's Failure to Exhaust
Defendants move to dismiss for lack of exhaustion, claiming the Jail has a grievance procedure, which applies to all inmates, that Plaintiff failed to fully utilize before initiating this suit. Defs.' Mem. in Supp. of Mot. to Dismiss 5-6, ECF No. 52. Plaintiff challenges this assertion on two grounds. First, he contends he filed a grievance, and he has attached an inmate grievance form dated April 11, 2018, wherein he reported having "again requested sick-call" on April 8, 2018, complained that Defendants had refused to treat his hip pain, and stated that they had provided no "pain management other than Ibuprofen and regular Tylenol." Pl.'s Obj. to Mot. to Dismiss 3, ECF No. 66; Pl.'s Obj. to Mot. to Dismiss Attach. 1, at 1, ECF No. 66-1. Second, he argues the Jail did not have a formal grievance procedure during his period of detention because inmates were not provided copies of submitted grievances, resulting in Jail personnel being able to simply discard—or fail to resolve—them. Pl.'s Obj. to Mot. to Dismiss 3. Because at the first stage of the exhaustion analysis the Court must take Plaintiff's version of the facts as being true, Plaintiff's Complaint cannot be dismissed for lack of exhaustion at this first step. Turner, 541 F.3d at 1082; see also Dollar v. Coweta Cty. Sheriff Office, 446 F. App'x 248, 251-52 (11th Cir. 2011) (per curiam).
Since the Complaint was not dismissed at the first step, the Court can make factual findings relating to exhaustion. A defendant bears the burden of establishing a lack of exhaustion at the second step of the inquiry. Turner, 541 F.3d at 1082-83. The Court makes the following factual findings and determines that Defendants have met their burden.
The Jail has a grievance procedure that is outlined in the inmate handbook, a copy of which was provided to Plaintiff. Buchanan Aff. ¶¶ 4, 5 ECF No. 51-1. The grievance procedure provides that grievances must be in writing and signed. Buchanan Aff. Ex. 1, at 42-43. The grievance "may be given to any staff member." Id. There is no time limit for filing grievances, and the only conditions are that only one grievance may be filed per week and must include "only one issue." Id. at 31. While Plaintiff filed numerous grievances on various issues, he filed none related to medical issues or the need for pain medication. Buchanan Aff. ¶ 7; Buchanan Aff. Ex. 2, at 6-7, 15-19, 31-33, ECF No. 51-3.
Inmates apparently have the right to appeal grievance denials, but the inmate handbook provided by Defendants does not show how that process works. See generally Buchanan Aff. Ex. 1, ECF 51-2. If Plaintiff had filed a grievance related to medical issues—which the Court finds he did not—the Court would likely find exhaustion regardless of whether he appealed a denial.
The Court concludes the April 11, 2018, inmate grievance form attached to Plaintiff's response was not actually submitted to Jail staff for several reasons. First, it is not contained in Plaintiff's Jail file as submitted by Defendants. See generally Buchanan Aff. Ex. 2. Second, Plaintiff has offered no rational reason as to why Jail staff would maintain the numerous other grievances he filed but discard this one. Third, Plaintiff has not identified the specific member of Jail staff to whom he submitted the form, merely claiming he submitted it to "facility command personal [sic]." Pl.'s Obj. to Mot. to Dismiss 3. Finally, the grievance refers to Plaintiff having been given Tylenol, which is inconsistent with medical records showing Plaintiff was not given Tylenol until May 8, 2018. Med. Rec. 5, 16.
The Court construes Plaintiff's second argument—that the Jail had no formal grievance procedure—as being that the Jail's grievance procedures were "unavailable" within the meaning of Ross v. Blake, 136 S. Ct. 1850 (2016), thus relieving him of the requirement to exhaust them. In Ross, the Court identified three kinds of circumstances rendering an administrative remedy unavailable. First, "when (despite what regulations or guidance materials may promise) it operates as a simple dead end—with officers unable or consistently unwilling to provide any relief to aggrieved inmates." Ross, 136 S. Ct. at 1859. Next, "an administrative scheme might be so opaque that it becomes, practically speaking, incapable of use." Id. And finally, a remedy is unavailable "when prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation." Id. at 1860. The Court does not find any of these circumstances to be present.
Regarding the first circumstance, the evidence does not show officers consistently unwilling to provide relief. Among the grievances submitted by Plaintiff—including those attached to his response to the motion to dismiss—are instances where Jail staff agreed to resolve the issues raised by Plaintiff. Buchanan Aff. Ex. 2, at 15, 31-33; Pl.'s Obj. to Mot. to Dismiss Attach. 1, at 2-4. As for the second circumstance, the numerous grievances submitted by Plaintiff indicate the grievance system was not opaque or incapable of use. Finally, as to the third circumstance, Plaintiff has not presented credible evidence to support his assertion that Jail staff discarded or refused to answer grievances. The only specific allegation he makes as to this has been found by the Court to not be credible.
Plaintiff accuses Jail Administrator, Ron Buchanan, of knowingly making false statements by stating in his original affidavit that he "receive[s], sign[s], and respond[s]" to inmate grievances and that "[e]very grievance form received from an inmate is placed in the inmate's file and [he] personally sign[s] the response provided." Buchanan Aff. ¶¶ 3, 8, ECF No. 51-1. The Court finds no intent to mislead. Buchanan attached Plaintiff's inmate file to his original affidavit, and it includes grievance responses by another member of Jail staff. See, e.g., Buchanan Aff. Ex. 2, at 31-33, ECF No. 51-3. Further, Buchanan clarifies in his supplemental affidavit that he intended to aver that "[e]very appeal grievance form received from an inmate is placed in the inmate's file and I personally sign the response provided." Buchanan Suppl. Aff. ¶ 3, ECF No. 75-1.
The Court, therefore, concludes Plaintiff failed to administratively exhaust his remedies regarding his deliberate indifference claims against Defendants prior to filing suit. Because Plaintiff failed to exhaust his administrative remedies, it is recommended that—as an alternative to granting Defendants summary judgment—Defendants' motion to dismiss be granted.
III. Plaintiff's Motion for Law Library Access
Plaintiff seeks a court order to require officials at Wheeler State Prison to allow him access to the law library. Pl.'s Mot. to Appoint Counsel 1-2, ECF No. 64. Officials at Wheeler State Prison are not a party to this action, and the Court, therefore, has no jurisdiction to enforce an injunction against them. See In re Infant Formula Antitrust Litigation, MDL 878 v. Abbott Laboratories, 72 F.3d 842, 842-43 (11th Cir. 1995) (per curiam) (court lacks subject matter jurisdiction to issue preliminary or permanent injunction against non-party). Moreover, "[t]he mere inability of a prisoner to access the law library is not, in itself, an unconstitutional impediment." Akins v. United States, 204 F.3d 1086, 1090 (11th Cir. 2000). Rather, an "inmate must show that this inability caused an actual harm, or in other words, unconstitutionally prevented him from exercising that fundamental right of access to the courts in order to attack his sentence or to challenge the conditions of his confinement." Id. Plaintiff has not made such a showing. The undersigned, therefore, recommends that Plaintiff's motion for law library access be denied.
Plaintiff's request for law library access was included in the body of a motion requesting appointed counsel (ECF No. 64). That request was previously denied. Order 1, Aug. 16, 2019, ECF No. 65.
CONCLUSION
For the reasons explained above, it is recommended that Defendants' motion for summary judgment (ECF No. 53) be granted, or, in the alternative, that Defendants' motion to dismiss (ECF No. 51) be granted. It is recommended that Plaintiff's motion for access to the law library (ECF No. 64) be denied. Pursuant to 28 U.S.C. § 636(b)(1), the parties may serve and file written objections to this Recommendation, or seek an extension of time to file objections, within fourteen (14) days after being served with a copy hereof. The district judge shall make a de novo determination of those portions of the Recommendation to which objection is made. All other portions of the Recommendation may be reviewed for clear error.
The parties are hereby notified that, pursuant to Eleventh Circuit Rule 3-1, "[a] party failing to object to a magistrate judge's findings or recommendations contained in a report and recommendation in accordance with the provisions of 28 U.S.C. § 636(b)(1) waives the right to challenge on appeal the district court's order based on unobjected-to factual and legal conclusions if the party was informed of the time period for objecting and the consequences on appeal for failing to object. In the absence of a proper objection, however, the court may review on appeal for plain error if necessary in the interests of justice."
SO ORDERED and RECOMMENDED, this 28th day of October, 2019.
/s/ Stephen Hyles
UNITED STATES MAGISTRATE JUDGE