Opinion
5:20-cv-00308-TES-MSH
07-05-2023
MICHAEL R. MOSIER, Plaintiff, v. PAMALA MALCOLM, et al., Defendants.
REPORT AND RECOMMENDATION
STEPHEN HYLES, UNITED STATES MAGISTRATE JUDGE
Pending before the Court are Defendants Dr. Samuel Rayapti, The GEO Group, Inc. (“GEO”), Pamala Malcolm, and Tammy Bailey's motions for summary judgment (ECF Nos. 220, 231). For the reasons explained below, it is recommended that Defendants' motions be granted.
PROCEDURAL BACKGROUND
The present action is brought under 42 U.S.C. § 1983 and arises out of Plaintiff Michael Mosier's confinement at Riverbend Correctional Facility (“RCF”) in Milledgeville, Georgia. Am. Compl. 3, ECF No. 153. Mosier alleges Malcolm and Bailey-nurses working at RCF-were deliberately indifferent to a serious medical need by not properly responding to his symptoms of a stroke. Id. ¶¶ 8-15, 43-48, 89-91. He contends GEO, which operates Riverbend, is liable for deliberately choosing not to adopt appropriate policies for training employees to recognize and respond to strokes and medical emergencies despite notice of its need to do so. Id. ¶¶ 42, 109-11; Pl.'s First Objs. 11-12, ECF No. 28-2. He alleges Dr. Rayapati is liable for changing his diet from a high calorie/high protein diet-prescribed by a physician at Augusta University Hospital (“AUH”) to minimize the side effects of medications-to a different diet because of cost considerations. Am. Compl. Id. ¶¶ 85-86; Pl.'s Second Objs. 6-9, ECF No. 31. Although Mosier asserted various claims against Defendants and other individuals and entities, only his Eighth Amendment deliberate indifference to a serious medical need claims against Defendants were allowed to proceed for further factual development following preliminary screening.Order & R. 18, Feb. 16, 2021, ECF No. 15; Order 5-10, 16, May 26, 2021, ECF No. 37 (rejecting recommendation in part and allowing claims against Dr. Rayapati and GEO to proceed).
The Court also allowed claims to proceed against Wuba Zegeye, a nurse at RCF, but as discussed below, she was never served.
Malcolm and Bailey answered on April 22, 2021 (ECF No. 26). GEO answered on June 28, 2021 (ECF No. 51). Mosier amended his complaint on July 11, 2022, and Malcolm, Bailey, and GEO answered it on August 8, 2022 (ECF Nos. 153, 165). After the Court denied Mosier's motion for default judgment and set aside the entry of default, Dr. Rayapati filed an answer on October 10, 2022 (ECF Nos. 180, 190, 192). Dr. Rayapati moved for summary judgment on February 13, 2023, and Malcolm, Bailey, and GEO did likewise on March 20, 2023 (ECF Nos. 220, 231). The Court received Mosier's response to Dr. Rayapati's motion on May 4, 2023 (ECF No. 240). Despite being notified of his right to respond to Malcolm, Bailey, and GEO's summary judgment motion-and the Court granting him an extension to do so-Mosier did not file a response. Notice, Mar. 21, 2023, ECF No. 233; Order 2, May 11, 2023, ECF No. 242. These motions are ripe for review.
DISCUSSION
I. 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, 248, 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) (internal 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.
II. Plaintiff's Failure to Respond
Mosier did not respond to Malcolm, Bailey, and GEO's motion for summary judgment or their statement of facts. The Local Rules of the United States District Court for the Middle District of Georgia (hereinafter “Local Rules”) provide:
The respondent to a motion for summary judgment shall attach to the response a separate and concise statement of material facts, numbered separately, to which the respondent contends there exists a genuine dispute to be tried. Response shall be made to each of the movant's numbered material facts. All material facts contained in the movant's statement which are not specifically controverted by specific citation to particular parts of materials in the record shall be deemed to have been admitted, unless otherwise inappropriate.
M.D. Ga. L. R. 56. Because Mosier did not respond to the summary judgment motion, and thus did not specifically controvert any material facts set forth in Defendants' statement of undisputed material facts (ECF No. 231-1), the facts set forth therein are deemed admitted where appropriate.
The Court, however, “cannot base the entry of summary judgment on the mere fact that the motion was unopposed, but, rather, must consider the merits of the motion.” United States v. One Piece of Real Property Located at 5800 SW 74th Ave., Miami, Fla., 363 F.3d 1099, 1101 (11th Cir. 2004). In considering the merits of a motion for summary judgment, even an unopposed motion, a court must, at least, “review all of the evidentiary materials submitted in support of the motion for summary judgment.” Id. at 1101-02. In other words, the court cannot simply accept the facts stated in a moving party's statement of material facts as true but must also review the movant's citations to the record and confirm that there are no issues of material fact. Id. at 1103 n.6. Moreover, Rule 56 of the Federal Rules of Civil Procedure allows the Court to consider the entire record when ruling on a motion for summary judgment. “The court need consider only the cited materials, but it may consider other materials in the record.” Fed.R.Civ.P. 56(c)(3); see Baker v. Sears, Roebuck & Co., 903 F.2d 1515, 1519 (11th Cir. 1990) (per curiam) (“[T]he court must consider the entire record in the case, not just those pieces of evidence which have been singled out for attention by the parties.”).
III. Statement of Facts
On February 22, 2018, RCF Corrections Officer Boyington was conducting the 4:00 p.m. census count in Mosier's dorm, and woke Mosier from his nap. Am. Compl. ¶ 3. She asked Mosier if he was “okay,” and he said he was. Id. He asked “Why,” and Boyington responded that Mosier fell as he was getting out of bed. Id. Mosier stood by the door for the count and began to notice he was dizzy. Id. ¶ 4. When he also dropped his glasses, he recognized something was wrong. Id. He returned to his bed after the count was completed and realized he was having a stroke. Id. ¶ 5. He asked another inmate to call Officer Boyington back to his cell. Am. Compl. ¶ 5. When she returned, Mosier told her he was having a stroke and asked her to call for medical assistance, which she did. Id. ¶ 6; GEO Ex. I, ECF No. 231-11.According to Boyington's incident report, she contacted the medical unit at 5:30 p.m. GEO Ex. C, at 2, ECF No. 231-5.
Because Mosier's amended complaint is verified, the Court can treat it as an affidavit for summary judgment purposes. Am. Compl. 45; Sears v. Roberts, 922 F.3d 1199, 1206 (11th Cir. 2019).
GEO, Malcolm, and Bailey submitted Mosier's medical records into the record as their Exhibits A-1 and A-2 (ECF No. 234). These records have been electronically filed, and the Court cites to them using the document number and electronic screen page number shown at the top of each page by the Court's CM/ECF software, not the GEO bates stamp at the bottom right.
Malcolm-a licensed practical nurse (“LPN”)-and Wuba Zegeye-a registered nurse (“RN”)-arrived in the dorm at 5:45 p.m., and Mosier told them he was having a stroke, explaining to them he was experiencing numbness on the left side of his body, including on the left side of his face, along with weakness on the left side of his body and inability to us his left hand. Am. Compl. ¶ 8; Malcolm Decl. ¶¶ 1, 7, ECF No. 231-12; GEO Ex. M, ECF No. 231-15. The nurses took Mosier's blood pressure, which was elevated, and noted an abnormal gait. Malcolm Decl. ¶ 7. On a form entitled “Nursing Assessment for Headache” and the portion of the form used to note signs of a stroke, Malcolm wrote that Mosier had weakness in his left side extremities. Id.; GEO Ex. A-2, pt. 1, at 65, ECF No. 234-1. Malcolm and Zegeye assessed Mosier as having a headache secondary to hypertension, prescribed him acetaminophen, and instructed him to increase his fluid intake. Id. In addition, they ordered Mosier be taken to the medical clinic, and at 5:55 p.m., he was escorted to the clinic. Malcolm Decl. ¶¶ 7-8; GEO Ex. B, at 3, ECF No. 231-4.
Once in the medical clinic, Malcolm took Mosier's temperature and blood pressure, listened to his heart and breathing, and examined his ears. Am. Compl. ¶ 10. She told Mosier, “I can see why you can't walk straight! You're not having a stroke, you have excessive earwax in your ear!” Id. She then provided him with an earwax removal aid and instructed him to go into another room to put the drops in his ear and lay on his right side for ten minutes. Id. Subsequently, Zegeye told Mosier he was under the influence of narcotics and started walking him up and down the corridor, telling him he was not having a stroke and accusing him of using drugs. Id. ¶ 16. She ordered a urine test to check for drugs. Id. ¶ 27. Mosier was given a specimen cup, and with difficulty, he was able to stand and provide a sample, which tested negative. Id. ¶¶ 28-30; GEO Ex. C, at 10, ECF No. 231-5. An electrocardiogram (“EKG”) was performed, which showed sinus bradycardia, possible left atrial enlargement, and left ventricular hypertrophy. GEO Ex. A-2, pt. 1, at 95. At 8:00 p.m., Malcolm telephoned Dr. David Moore-the on-call prison doctor-regarding Mosier's condition, and he ordered Mosier be transported to the emergency room. Malcolm Decl. ¶ 11; GEO Ex. C, at 12-13. Mosier left RCF via a non-emergency prison transport vehicle at 8:24 p.m. and arrived at Navicent Health Baldwin (“Navicent”) hospital at 8:55 p.m. GEO Ex. C, at 2-3, 11; GEO Ex. D, at 1, ECF No. 231-6.
Zegeye's notes state Dr. Moore ordered that if Mosier was experiencing weak strength on his left extremity, to send him to the emergency room. GEO Ex. C, at 13. Apparently, the nurses concluded Mosier met this criteria because they immediately arranged Mosier's transport to the emergency room.
When Mosier was triaged at Navicent, he reported slurred speech, left arm numbness, and a headache since 4:30 p.m. GEO Ex. E, at 11, ECF No. 231-7. A neurological assessment noted a left facial droop but no slurred speech. Id. Mosier reported dizziness and a headache with a pain level of 8 on a scale of 10, which was relieved when lying flat. Id. The emergency room physician noted his condition as being of mild severity, but after a CT scan showed a brain bleed and possible tumor, he was ordered to be transported to AUH. Id. at 12, 26, 32.
Upon his arrival at AUH, Mosier was diagnosed with an intracerebral hemorrhage, i.e., a stroke. GEO Ex. A-1, at 371, ECF No. 234. He remained in AUH until February 24, 2018, when he was discharged to the care of Augusta State Medical Prison (“ASMP”). Id. at 370. On March 3, 2018, he complained he was suffering from face numbness and loss of balance. GEO EX. A-2, pt. 2, at 84, ECF No. 234-2. A physical exam showed he had a left-sided facial drop, left arm weakness with no grip, and slightly slurred speech. Id. He was transported back to AUH, where he was admitted and found to have suffered a second stroke. GEO Ex. A-1, at 304. He remained at AUH until March 7, 2018, when he was returned to ASMP. Id. at 195, 319.
On March 19, 2018, Mosier complained of chest pain, became unresponsive, and required CPR. Id. at 119-20, 204. He was again transported to AUH, where he was admitted and discovered to have suffered a massive pulmonary embolism, i.e., a blood clot. Id. at 215-16. While at AUH, Mosier was seen by Dr. John Thornton, who Mosier states ordered a high protein/high calorie diet to minimize dizziness and vertigo caused by his prescribed medication, including Eliquis (apixaban), an anti-coagulant. Pl.'s Mot. for Extension of Time 3, ECF No. 238; Pl's Resp. to Rayapati Mot. for Summ. J. 6-7, ECF No. 240. An AUH “Automated Visit Abstract” for the March 19, 2018, admission lists Mosier's diet as “High calorie/high protein” under the “Functional Status” portion. GEO Ex. A-1, at 209-10. When Mosier was discharged from AUH back to ASMP on March 22, 2018, his discharge instructions included avoiding a high-fat diet. Id. at 368. The discharge instructions, drafted by Dr. Jose Torrijos did not include a high protein/high calorie diet. Id. at 217. On March 23, 2023, a physician at ASMP ordered that Mosier be placed on a low fat diet with three meals a day. GEO Ex. A-2, pt. 2, at 125.
Mosier remained at ASMP until May 3, 2018, when he was returned to RCF.Movement History, Defs.' Resp. to Ct. Order Ex. F, pt. 3, at 428, ECF No. 178-7. Prior to Mosier leaving, a physician at ASMP issued discharge orders that included a low fat diet three times a day, seven days a week. GEO Ex. A-1, at 433. When Mosier arrived at RCF, Dr. Rayapati-an internal medicine doctor whose employer was contracted to provide medical care to inmates at RCF-ordered a low fat/low cholesterol diet with three meals a day, seven days a week. Rayapati Aff. ¶ 25, ECF No. 220-4; Am. Compl. ¶ 85. Dr. Rayapati specified three meals a day because inmates sometimes only get two meals a day, especially on weekends. Rayapati Aff. ¶ 18.
The parties have created unnecessary confusion by identifying May 1, 2018, as the date when Mosier was transferred from ASMP back to RCF. A review of the record clearly establishes that while discharge orders and instructions were signed at ASMP on May 1, 2018, Mosier continued to be treated by, and remained at, ASMP until May 3, 2018. GEO Ex. A-1, at 433-34; GEO Ex. A-2, pt. 1, at 62-63; GEO Ex. A-2, pt. 2, at 86, 211-13, 230; Movement History, Defs.' Resp. to Ct. Order Ex. F, pt. 3, at 428, ECF No. 178-7.
IV. Deliberate Indifference Standard
“The [E]ighth [A]mendment, which applies to the states through the [F]ourteenth [A]mendment prohibits the infliction of cruel and unusual punishment .... [S]tates violate the [E]ighth [A]mendment if they are deliberately indifferent to a prisoner's serious medical needs.” Hamm v. DeKalb Cnty. 774 F.2d 1567, 1571-72 (11th Cir. 1985) (internal citations omitted). 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). The first prong is an objective inquiry, requiring the plaintiff to prove “an objectively serious medical need.” Ireland v. Prummell, 53 F.4th 1274, 1287 (11th Cir. 2022). “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).
The second prong is a subjective inquiry. Ireland, 53 F.4th at 1287. To establish deliberate indifference to a serious medical need, a plaintiff must prove: “(1) the official was aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, (2) the official actually drew that inference, (3) the official disregarded the risk of serious harm, and (4) the official's conduct amounted to more than gross negligence.” Id. (internal quotation marks omitted). “[M]edical 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 omitted). Moreover, “a simple difference in medical opinion between the prison's medical staff and the inmate as to the latter's diagnosis or course of treatment [does not] support a claim of cruel and unusual punishment.” Harris v. Thigpen, 941 F.2d 1495, 1505 (11th Cir. 1991).
V. Claims against Malcolm, Bailey, and GEO
A. Pamala Malcolm
Mosier contends Malcom was deliberately indifferent by performing only a cursory physical examination and not immediately ordering tests, such as an EKG, to rule out a stroke. Am. Compl. ¶ 10. He also alleges she ignored obvious stroke symptoms and his self-report of a stroke. Id. ¶ 13. Malcolm contends she did not disregard stroke symptoms, noting she specifically listed his left side extremities weakness in the nursing assessment portion for “signs of stroke.” Malcolm Decl. ¶ 7. She avers, however, that when she and Zegeye examined Mosier at 5:45 p.m., they did not see any other signs of a stroke. Id. She felt he had a headache due to hypertension. Id. She also points out they had Mosier taken to the medical unit, where they continued to observe and assess him, administered a drug test, and requested an EKG. Id. ¶¶ 8-11. She further states the EKG results were not indicative of a stroke. Id. ¶ 9. When Mosier's symptoms had not improved after being given acetaminophen, she contacted Dr. Moore. Id. ¶ 11.
The Court recommends Malcolm be granted summary judgment. Assuming Malcolm was aware of facts from which she could infer Mosier was having a stroke, the evidence shows she did not actually make the inference. Ireland, 53 F.4th at 1287. Moreover, the evidence does not show she deliberately disregarded the risk of serious harm. Mosier received treatment from the time Malcolm and Zegeye first saw him until he was transported to the hospital. They conducted physical evaluations, brought him to the medical unit, ran tests, and monitored him until it was clear his symptoms were not improving. This was not a case where prison officials deliberately delayed treatment, but one where the treatment they rendered was arguably poor. See Sumlin v. Lampley-Copeland, 757 Fed.Appx. 862, 867 (11th Cir. 2018) (per curiam) (affirming summary judgment where doctor's “brusque demeanor” did not result in a refusal or delay in treatment). Even if the treatment was poor, however, the Eighth Amendment does not require medical care “to be perfect, the best obtainable, or even very good.” Hoffer v. Sec'y, Fla. Dep't of Corr., 973 F.3d 1263, 1271 (11th Cir. 2020) (quoting Harris, 941 F.2d at 1510). If negligence-or perhaps even gross negligence-was the standard in this case, the outcome might be different, but it is not, and so Malcolm is entitled to summary judgment. See Sumlin, 757 Fed.Appx. at 867 (noting that the doctor's failure to detect the signs of a stroke “amounts, at most, to negligence or medical malpractice, not deliberate indifference” (citing Howell v. Evans, 922 F.2d 712, 719 (11th Cir. 1991))); Wade v. McDade, 67 F.4th 1363, 1374 (11th Cir. 2023) (holding that a plaintiff must show a defendant “acted with more than gross negligence” to meet the subjective component of a deliberate indifference claim).
B. Bailey
Tammy Bailey was the Health Services Administrator (“HSA”) at RCF at the time of the events alleged in the complaint. Bailey Decl. ¶ 1, ECF No. 231-13. In this role, she was responsible for ensuring compliance with GEO policies and directing the work of employees and contract providers, including the selection, hiring, evaluating, and training of staff. GEO Ex. F, at 1, ECF No. 231-8. In his amended complaint, Mosier appears to argue she was directly involved in his medical care on February 22, 2018, and she exercised deliberate indifference in the course of her treatment of him. Am. Compl. ¶¶ 45-46, 87. He also argues she is liable because as HSA, she was responsible for supervising and training nurses to adequately respond to stroke symptoms. Id. ¶¶ 42-44.
The Court recommends granting summary judgment to Bailey. According to Bailey, she did not provide medical treatment or nursing services to Mosier in February 2018, and she was not involved in decision-making regarding his treatment, including whether and when he should be sent to a hospital. Id. ¶ 4. Mosier presents no evidence to dispute this. Further, the Court previously dismissed this claims based on supervisory liability. Order & R. 11 n.1., Feb. 16, 2021; Order 16-17, May 26, 2021 (adopting portions of recommendation not discussed in the order). The Court's order allowing Mosier to supplement his factual allegations on his existing claims did not allow him to reassert this claim. Order 10, July 25, 2022, ECF No. 160.
Moreover, “[i]t is well established in this Circuit that supervisory officials are not liable under § 1983 for the unconstitutional acts of their subordinates on the basis of respondeat superior or vicarious liability.” Christmas v. Harris Cnty., Ga., 51 F.4th 1348, 1355 (11th Cir. 2022). “Instead, supervisory liability under § 1983 occurs either when the supervisor personally participates in the alleged unconstitutional conduct or when there is a causal connection between the actions of a supervising official and the alleged constitutional deprivation.” Id. A causal connection can be established if:
(1) “a history of widespread abuse puts the responsible supervisor on notice of the need to correct the alleged deprivation and he fail[ed] to do so”; (2) “the supervisor's improper custom or policy le[d] to deliberate indifference
to constitutional rights”; or (3) “facts support an inference that the supervisor directed the subordinates to act unlawfully or knew that the subordinates would act unlawfully and failed to stop them from doing so.”Hendrix v. Tucker, 535 Fed.Appx. 803, 805 (11th Cir. 2013) (per curiam) (quoting Douglas v. Yates, 535 F.3d 1316, 1322 (11th Cir. 2008)). “Ultimately, though, the standard by which a supervisor is held liable in her individual capacity for the actions of a subordinate is extremely rigorous.” Christmas, 51 F.4th at 1355 (internal quotation marks omitted).
In addition, “a supervisor can be held liable for failing to train his or her employees ‘[] where the failure to train amounts to deliberate indifference to the rights of persons with whom the officers come into contact.'” Keith v. DeKalb Cnty., Ga., 749 F.3d 1034, 1052 (11th Cir. 2014) (quoting City of Canton, Ohio v. Harris, 489 U.S. 378, 388 (1989)). To establish liability on this basis, a plaintiff must show the supervisor “had ‘actual or constructive notice that a particular omission in their training program causes his or her employees to violate citizens' constitutional rights,' and that armed with that knowledge the supervisor chose to retain that training program.” Id. (quoting Connick v. Thompson, 563 U.S. 51, 61 (2011)). “To establish that supervisor was on actual or constructive notice of the deficiency of training, ‘a pattern of similar constitutional violations by untrained employees is ordinarily necessary.'” Id. at 1053 (quoting Connick, 563 U.S. at 62). “[A] supervisor's culpability for a deprivation of rights is at its most tenuous where a claim turns on a failure to train.” Id. (quoting Connick, 563 U.S. at 61).
Here, Mosier has not presented evidence Bailey was aware of widespread abuse to place her on notice of a problem. He has also not shown any policy on her part that led to deliberate indifference or that she directed her subordinates to act unlawfully or knew they would do so. Moreover, as discussed below, Mosier cannot show Bailey had reason to believe Zegeye and Malcolm-an RN and LPN, respectively-needed particular training to recognize stroke symptoms.
C. GEO
“GEO, as the commercial operator of [RCF], is the ‘functional equivalent' of the government entity it serves by virtue of the state function GEO performs.” Hunter v. Morris, No. 5:19:cv-00491-MTT, 2022 WL 1049317, at *6 (M.D. Ga. Apr. 7, 2022) (quoting Buckner v. Toro, 116 F.3d 450, 452 (11th Cir. 1997)). Because of this, it is “‘the functional equivalent of a municipality under [§ 1983],'” and liability “may not be premised on the doctrine of respondeat superior but, instead, must rest on the doctrine of municipal liability.” Harris v. Southern Health Partners, Inc., No. 5:11-CV-22-MTT, 2013 WL 2387740, at *8 (M.D. Ga. May 30, 2013) (quoting Craig v. Floyd Cnty., Ga., 643 F.3d 1306, 1310 (11th Cir.2011)). “[T]o impose § 1983 liability on a municipality, a plaintiff must show: (1) that his constitutional rights were violated; (2) that the municipality had a custom or policy that constituted deliberate indifference to that constitutional right; and (3) that the policy or custom caused the violation.” McDowell v. Brown, 392 F.3d 1283, 1289 (11th Cir. 2004).To prove such policy-since it would be rare for a municipality to have a formal policy to violate a constitutional right-a plaintiff must generally show a widespread custom or practice allowing the constitutional violation. Craig, 643 F.3d at 1310.
The Court disagrees with Defendants' contention that a finding of no liability on the part of the nurses necessarily absolves GEO of liability. See Anderson v. City of Atlanta, 778 F.2d 678, 686 (11th Cir. 1985) (finding liability of a municipality did not first require a finding of liability by an individual defendant).
Where the allegation is a failure to train, courts apply a similar analysis to that used in supervisory liability claims. See, e.g., Greason v. Kemp, 891 F.2d 829, 837 (11th Cir. 1990) (noting that a supervisory liability claim premised on a failure to train was “analogous” to a failure to train claim in a municipal liability case). To show deliberate indifference, “a plaintiff must present some evidence that the municipality knew of a need to train and/or supervise in a particular area and the municipality made a deliberate choice not to take any action.” Gold v. City of Miami, 151 F.3d 1346, 1350 (11th Cir. 1998). “A pattern of similar constitutional violations by untrained employees is ‘ordinarily necessary' to demonstrate deliberate indifference for purposes of failure to train.” Connick, 563 U.S. at 62 (quoting Bd. Of Cnty. Comm'rs of Bryan Cnty. v. Brown, 520 U.S. 397, 409 (1997)). “Without notice that a course of training is deficient in a particular respect, decisionmakers can hardly be said to have deliberately chosen a training program that will cause violations of constitutional rights.” Id. Absent a pattern of constitutional violations, a plaintiff must show “a narrow range of circumstances” where there is an “obvious need” for training despite “a pre-existing pattern of violations.” Id. at 63-64.
Mosier contends GEO is liable for deliberately choosing not to adopt appropriate policies for training employees to recognize and respond to strokes and medical emergencies despite notice of its need to do so. Am. Compl. ¶¶ 42, 109-11. He contends this resulted from GEO's motivation to protect profit margins. Id. ¶ 110. Mosier, however, has presented no evidence of a formal GEO policy to subordinate appropriate medical care for profits. Cf. Bost v. Wexford Health Sources, Inc., No. ELH-15-3278, 2022 WL 4290528, at *12-13, 44-45 (D. Md. Sept. 16, 2022) (denying summary judgment where there was a written “Initiative” to reduce off-site emergency care). Further, as noted above, he has presented no evidence of a persistent pattern of failing to identify stroke symptoms and provide appropriate emergency care to establish an informal policy.
GEO has submitted written policies regarding continuing education requirements and providing emergent care at RCF. See GEO Ex. G, ECF No. 231-9; GEO Ex. H, ECF No. 231-10. These policies, however, have an effective date of October 1, 2020, and Defendants do not address whether they reflect the same written policies in effect at the time of the events in this case.
To the extent Mosier relies on the “obvious need” theory of liability, the Court must consider “the nuance of the allegedly necessary training.” Connick, 563 U.S. at 67. Malcolm and Zegeye were both licensed medical professionals, not simply members of prison staff who it can be assumed would otherwise have no training in stroke recognition. Thus, the need for training in this regard was not obvious. See North v. Cuyahoga Cnty., 754 Fed.Appx. 380, 393-94 (6th Cir. 2018) (rejecting a failure-to-train theory of liability in a case involving the death of an inmate by stroke where the jail employed medical professionals such as RNs to treat inmates); Bost, 2022 WL 4290528, at *66 (rejecting liability for failure to train where the staff “were professionals who were licensed and trained in their occupations”); Graham v. Hodge, 69 F.Supp.3d 618, 632 (S.D.Miss. 2014) (“Constitutionally deficient medical care is simply not the obvious consequence of a county jail's failure to provide an experienced, licensed practical nurse with additional in-house training.” (internal quotation marks omitted)).
Additionally, the Court notes that training need not follow “a particular instructional format” to satisfy constitutional requirements. See Connick, 563 U.S. at 68 (“[F]ailure-to-train liability is concerned with the substance of the training, not the particular instructional format.”). Here, the evidence shows that Malcolm and Zegeye utilized a form for assessing inmates complaining of a headache that included “slurred speech, paralysis, or weakness of extremities” as signs of a stroke. GEO Ex. A-2, pt. 1, at 65. These are largely the same symptoms Mosier claims he exhibited.
VI. Claims against Dr. Rayapati
Mosier contends Dr. Rayapati exhibited deliberate indifference by changing his diet from a high calorie/high protein diet prescribed by Dr. Thornton to a low fat/low cholesterol diet. Am. Compl. ¶¶ 85-86. Mosier argues a high calorie/high protein diet was essential to address the side effects of his medication. Id. ¶ 86. As a result of not being on the high calorie/high protein diet, Mosier asserts he suffered dizziness and vertigo along with more serious neurological side effects. Id.; Pl.'s Mot. for Extension of Time 6-8. Assuming Mosier's dizziness and vertigo constitute a serious medical need, however, he cannot show Dr. Rayapati was deliberately indifferent or that Dr. Rayapati's actions caused him injury. Therefore, the Court recommends Dr. Rayapati's motion for summary judgment be granted.
Initially, the Court notes Mosier has failed to prove his underlying premise, which is that Dr. Rayapati discontinued his high calorie/high protein diet. While Mosier recounts Dr. Thornton stating he would place him on a high calorie/high protein diet and there is an “Automated Visit Abstract” from March 22, 2018, listing a high calorie/high protein diet under “functional status,” there is no actual order from Dr. Thornton for such diet in the record. GEO Ex. A-1, at 209-10. Even if Dr. Thornton did issue an order, it was supplanted by an order from an ASMP physician the following day for a low fat diet, three times a day, seven days a week. GEO Ex. A-2, pt. 2, at 125. Further, the May 1, 2023, ASMP physician discharge orders list a low fat diet, three times a day, seven days a week. GEO Ex. A-1, at 433. Put simply, there is no evidence in the medical record-and certainly nothing in the record to alert Dr. Rayapati-that Mosier was on a high calorie/high protein diet when he arrived at RCF. Therefore, he cannot show Dr. Rayapati changed or discontinued his previous diet.
This later order was apparently implemented for at least some period of time because flow sheet entries in the days immediately thereafter refer to a “low fat,” “regular”, or “regular/low fat diet.” GEO Ex. A-2, pt. 2, at 57, 60, 63, 66, 72, 75. After March 30, 2018, the flow sheet entries from ASMP refer simply to a “regular diet,” except for one on April 10, 2018, again referring to a low fat diet. Id. at 24. Mosier disputes being on a low fat diet at ASMP. Pl.'s Statement of Disputed Facts ¶ 39, ECF No. 240-2. However, there is certainly nothing in the ASMP flow sheet after March 23, 2018, showing he was on a high calorie/high protein diet.
In addition, while Mosier contends Dr. Rayapati should have ordered a high calorie/high protein diet and cites his conversation with Dr. Thornton as evidence of why such diet was appropriate, he has produced no evidence showing why the diet prescribed by Dr. Rayapati was inappropriate. According to Dr. Rayapati, he continued Mosier on a low fat/low cholesterol diet in order to decrease the risk of future strokes and to address Mosier's elevated liver function tests. Rayapati Aff. ¶¶ 10, 17, 24-27. Dr. Rayapati states he concluded the benefits of taking his medications while on a low fat/low cholesterol diet “outweighed any risk of minor dizziness.” Id. ¶ 28. Further, since Eliquis is best taken with food, Dr. Rayapati ordered that Mosier receive three meals of day to ensure “relatively even calorie intake during the day.” Id. In response, Mosier has offered nothing but his own opinion as to the merits of Dr. Rayapati's course of treatment, which is insufficient to defeat summary judgment. See Harris, 941 F.2d at 1505.
Mosier contends Dr. Rayapti told him GEO would not provide a high calorie/high protein diet because it did not provide special diets for just one inmate. Pl.'s Resp. to Rayapati Mot. for Summ. J. 13. If there was evidence Dr. Rayapati intended to, and otherwise would have, placed Mosier on a high calorie/high protein diet, and such diet was the only medically appropriate diet for his medical condition, then perhaps such statement-which the Court assumes for summary judgment purposes was made-would be germane.But again, there is no evidence to support that, and thus, the statement constitutes nothing more than an observation.
Dr. Rayapati denies saying this to Mosier. Rayapati Aff. ¶ 30.
In addition, Mosier cannot show how Dr. Rayapati's refusal to place him on a high calorie/high protein diet caused him harm. Mosier himself admits the medication he was on caused dizziness and vertigo, and the diet was only a means of ameliorating these side effects. Pl.'s Resp. to Mot. for Summ J. 12-15; Am. Comp. ¶ 86. He has produced no evidence that his low fat/low cholesterol diet, three times a day, was any less effective than a high calorie/high protein diet in minimizing these effects or that he would not have suffered the same symptoms even if on the other diet. Thus, he cannot establish an essential element of his claim.
VII. Wuba Zegeye
The Court also recommends that the claims against Zegeye be dismissed without prejudice. Because Mosier is pro se and is proceeding in forma pauperis, it is the duty of the officers of the court to “issue and serve all process.” 28 U.S.C. § 1915(d). Further, in forma pauperis litigants are “entitled to rely on the court officers and United States Marshals to effect proper service, and should not be penalized for failure to effect service where such failure is not due to fault on the litigant's part.” Fowler v. Jones, 899 F.2d 1088, 1095 (11th Cir. 1990). While the Court assists inmate plaintiffs in effecting service, however, “the Court ordinarily does not have an obligation to assist an inmate in effecting service beyond directing the Marshal to serve process on those parties (and their addresses) clearly identified by the inmate-plaintiff.” Shockley v. Allen, No. 6:19-cv-87, 2021 WL 5985350, at *2 (S.D. Ga. Nov. 22, 2021) (internal quotation marks omitted), recommendation adopted by 2021 WL 5985147 (S.D. Ga. Dec. 16, 2021). Ultimately, the responsibility for service is on the plaintiff. Id.
When the United States Marshals Service (“USMS”) originally attempted to serve Zegeye at her last known address, a person identifying herself as Zegeye's sister informed the deputy that Zegeye was deceased.USM 285 Process Receipt and Return Unexecuted, Aug. 13, 2021, ECF No. 65. She also offered to provide a death certificate if needed. Because the Court had no other information on Zegeye, it ordered Mosier to provide the Court with information for service on Zegeye or-if she was deceased-her estate's personal representative. Order 6, Mar. 28, 2022, ECF No. 132. It gave him sixty days to comply and warned him that if he failed to do so, a recommendation of dismissal without prejudice would be “appropriate.” Id. at 6-7. Later, the Court extended the discovery period to allow him additional time to provide service information on Zegeye, and also directed GEO to contact Zegeye's employer and provide her last known address. Order 1-2, Dec. 22, 2022, ECF No. 208. GEO complied, and the address it provided was the same one where USMS spoke with the person identifying herself as Zegeye's sister (ECF Nos. 209, 211). Mosier has provided no additional service information for Zegeye or a personal representative.
Defendants filed a suggestion of death pursuant to Rule 25 regarding Zegeye (ECF No. 116). See Fed.R.Civ.P. 25(a)(1) (requiring an action against a decedent to be dismissed if a motion for substitution is not filed within ninety days after service of a statement noting the death). Rule 25 is inapplicable, however, because Zegeye was never served prior to her purported death. See, e.g., James v. Benjamin, No. 3:17-cv-491-MBS-PJG, 2018 WL 4560744, at *5 (D.S.C. Sept. 24, 2018) (“Rule 25 requires that the deceased was a party to the lawsuit before his death.”).
Because the Court has no other information for service on Zegeye and Mosier has not provided sufficient information for service, the Court recommends the claims against Zegeye be dismissed without prejudice. See Fed.R.Civ.P. Rule 4(m) (allowing dismissal without prejudice when a plaintiff fails to serve a defendant within ninety days after the complaint is filed and the Court has-for a plaintiff showing good cause for failure to do so-extended the time for service for an “appropriate period”).
CONCLUSION
For the reasons explained above, it is recommended that Defendants Dr. Rayapati, Malcolm, Bailey, and GEO's motions for summary judgment (ECF Nos. 220, 231) be granted and that the claims against Defendant Zegeye be dismissed without prejudice. 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. Any objection should be no longer than TWENTY (20) PAGES in length. 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 RECOMMENDED.