Opinion
4:19-CV-00010-MSH-CDL
05-24-2021
ANGELO BERNARD BANKS, Plaintiff, v. MARY HUGHES-TERRY, et al., Defendants.
ORDER AND RECOMMENDATION
STEPHEN HYLES, UNTED STATES MAGISTRATE JUDGE
Pending before the Court is Defendants' motion for summary judgment (ECF No. 99). Also pending are Plaintiff's motion to stay (ECF No. 122) and motion to set aside (ECF No. 123). For the reasons explained below, it is recommended that Defendants' motion for summary judgment be granted. Plaintiff's motions to stay and to set aside are denied.
PROCEDURAL BACKGROUND
The present action is brought under 42 U.S.C. § 1983 and arises out of Plaintiff's confinement at Rutledge State Prison (“RSP”) in Columbus, Georgia. 2d Am. Compl. 3, ECF No. 6. Plaintiff contends that Defendant Chitty-a former guard at RSP-violated his Eighth Amendment rights by ordering or encouraging an attack by two inmates. 2d Am. Compl. 6-8, 10-11. He contends that Defendants Dr. Aikens and Hughes-Terry-the prison physician and nurse, respectively-violated his Eighth Amendment rights by acting with deliberate indifference to his serious medical needs in failing to treat his “serious . . . stomach and gastrointestinal disorders.” 2d Am. Compl. 10.
The Court received Plaintiff's original complaint (ECF No. 1) on January 23, 2019, and first amended complaint (ECF No. 5-1)-which he was entitled to file as a matter of course-on February 8, 2019. The Court received Plaintiff's second amended complaint (ECF No. 6) on March 29, 2019. Plaintiff failed to seek leave of the Court before amending his complaint a second time, as is required by Rule 15(a) of the Federal Rules of Civil Procedure, but the Court permitted the amendment. Order & R. 3-4, June 11, 2019, ECF No. 7. The Court also later permitted a third amendment to insert Chitty's first name and add a claim for compensatory damages. Order and R. & R. 2, Mar. 3, 2020, ECF No. 61.
Although Plaintiff asserted numerous claims against several defendants, following preliminary screening, only his Eighth Amendment claims against Defendants Chitty, Dr. Aikens, and Hughes-Terry and a retaliation claim against Deputy Warden Leticia Bell-Burks were allowed to proceed for further factual development. Order & R. 19, June 11, 2019; Order 1, Aug. 9, 2019, ECF No. 15 (adopting recommendation). On February 7, 2020, the Court granted Bell-Burks's motion to dismiss claims against her due to Plaintiff's failure to exhaust his administrative remedies. Order 1, ECF No. 55. The Court later dismissed Plaintiff's claims for injunctive relief against Chitty because she was no longer employed by the Georgia Department of Corrections (“GDC”). Order and R. & R. 3-4, Mar. 3, 2020; Order, May 18, 2020, ECF No. 68 (adopting recommendation).
The remaining Defendants moved for summary judgment (ECF No. 99) on December 30, 2020. The Court received Plaintiff's motion to amend his complaint (ECF No. 105) for a fourth time on January 15, 2021. Plaintiff also filed a motion for additional time to conduct discovery and to compel discovery (ECF No. 113). The Court denied Plaintiff's motions to amend his complaint, reopen discovery, and for sanctions, though it granted Plaintiff an extension of time to respond to Defendants' motion for summary judgment. Order 1, Apr. 5, 2021, ECF No. 118. The Court warned Plaintiff that no further extensions would be granted. Id. at 17. Instead of responding to Defendants' motion for summary judgment, however, Plaintiff filed a motion to stay (ECF No. 122) and motion to set aside (ECF No. 123) the Court's April 5, 2021 Order. These motions are ripe for review.
DISCUSSION
I. Plaintiff's Motions
Plaintiff moves to stay (ECF No. 122) consideration of Defendants' motion for summary judgment, pending resolution of his contemporaneously filed motion to set aside (ECF No. 123) the Court's April 5, 2021, Order (ECF No. 118) denying his motion for additional time to conduct discovery and motion to compel discovery and/or motion for abuse of discovery (ECF No. 113). In his motion to set aside, Plaintiff also demands that the undersigned be removed from the case. Pl.'s Mot. to Set Aside 1, 5, ECF No. 123.
A. Motion to Stay and Motion to Set Aside
Plaintiff's motions to stay and to set aside are largely a restatement of his arguments in his motion for additional time to conduct discovery and motion to compel discovery and/or motion for abuse of discovery (ECF No. 113). In that motion, Plaintiff asserted that defense counsel intentionally mailed discovery responses to Plaintiff's former address at
Central State Prison as opposed to his current address at Burrus Correctional Training Center. Pl.'s Mot. for Additional Time 3, ECF No. 113. He requested that the discovery period be extended so that he could seek further information on a wide variety of topics. Id. at 3-8. He also requested sanctions. Id. at 8-9. In its Order denying Plaintiff's motion, the Court agreed that defense counsel's handling of discovery was negligent, but found no intentional misconduct. Order 16, Apr. 5, 2021, ECF No. 118. The Court also noted that Plaintiff did not seek to extend or reopen discovery until after Defendants filed their motion for summary judgment. Id. at 16-17. Further, the Court observed that despite defense counsel mistakenly sending discovery to Plaintiff's former prison, Plaintiff received Defendants' October 15, 2020, discovery responses. Id. at 16 (citing Plaintiff's deposition wherein he acknowledged receipt of Defendants' discovery responses). Finally, the Court pointed out that in his previous motion to compel (ECF No. 86) and motion for sanctions (ECF No. 95)-which were filed prior to the close of discovery-Plaintiff did not raise the discovery-related issues he cited as grounds for reopening discovery. Id. at 15.
In the Court's Order, it mistakenly cited the docket number of Plaintiff's November 25, 2020, motion for sanction as “ECF No. 1.” Order 14, Apr. 5, 2021. In fact, Plaintiff's motion for sanctions was docketed at ECF No. 95.
In his most recent filings, Plaintiff seems to suggest he did not receive any discovery responses until January 2021. Pl.'s Mot. to Stay 2, ECF No. 122. In his motion for additional time to conduct discovery, however, he did not claim this. He claimed only that he did not receive Defendants' responses to his motions to compel and for sanctions (ECF Nos. 86, 95) and the Court's October 20, 2020, Order (ECF No. 90) until January 2021. Pl.'s Mot. for Additional Time 2. Moreover, as noted above, Plaintiff's suggestion is contradicted by his October 15, 2020, deposition testimony wherein he referenced discovery received from Defendants. Pl.'s Dep. 31:21-23, 55:3-7, 111:16-17, ECF No. 99-3. He also claims he did not receive Bates-stamped pages 1-26 of Defendants' discovery responses. Pl.'s Mot. to Set Aside 1. Again, though, Bates-stamped pages 1-26 include a job description that Plaintiff specifically referenced in his deposition. Pl.'s Dep. 31:21-25; Defs.' Resp. to Pl.'s Mot for Additional Time Ex. B, at 4, ECF No. 115-2; Defs.' Resp. to Pl.'s Mot for Additional Time Ex. C, at 2, ECF No. 115-3.
The Court has reviewed the items of discovery Plaintiff contends are missing, and they were either (1) not brought to the Court's attention until after Defendants filed their motion for summary judgment, (2) answered by Defendants, or (3) not addressed by Plaintiff in his discovery requests. For example, Plaintiff wants copies of the inmate “alpha” rosters for the date of the attack. Pl.'s Mot. to Set Aside 3. This request, however, was not brought to the Court's attention in his November 25, 2020, motion for sanctions (ECF No. 95), even though Plaintiff verbally requested them from defense counsel during his October deposition. Pl.'s Dep. 97:5-8. Plaintiff wants security video, but Defendants responded that surveillance video does not exist. Pl.'s Mot. to Set Aside 3; Defs.' Resp. to Pl.'s Mot. for Additional Time Ex. B, at 11. Plaintiff also demands to know the reason for inmate John Doe's presence on the walkway at the time of the incident, but Chitty responded to this request by stating that she “recalls only releasing those inmates who were scheduled to be transported to Court, ” and Defendants stated they were without sufficient knowledge or information as to the identity of John Doe to respond further. Pl.'s Mot. to Set Aside 3; Defs.' Resp. to Pl.'s Mot. for Additional Time Ex. B, at 21-22. Plaintiff further demands a discovery extension so that he can obtain “the records and affidavits of attending medical officials at Fulton County Jail and at Columbus Hospice Hospital, relating to medical impressions, treatment; and influence from prison officials regarding Plaintiff's care.” Pl.'s Mot. for Additional Time 3. Plaintiff, however, does not request these materials from Defendants. Instead, Plaintiff now seeks the materials from third parties, including some materials he could have obtained through releases or subpoenas during the discovery period.
Plaintiff never sent a written discovery request specifically asking for an inmate “roster.” He requested “any and all full names, include John Doe I; State I.D. No's; their individual whereabouts; criminal history; offenses and sentences of convict; and any statements, related.” Defs.' Resp. to Ct. Order Ex. A, at 2, ECF No. 91-1. While Plaintiff now contends that he only wants the list for C, D, and J Buildings, his request was not limited to time or place. Pl.'s Mot. to Set Aside 3. Defendants responded to the request by stating that “Defendants are without sufficient information to identify John Doe I, or provide any additional information with respect to this inmate.” Defs.' Resp. to Pl.'s Mot. for Additional Time Ex. B, at 12. While this is responsive to the John Doe inmate, it does not address the much broader-likely overbroad-request. During Plaintiff's deposition, defense counsel stated he did not believe Defendants possessed such roster anymore. Pl.'s Dep. 97:9-10. Whether or not this is accurate, the Court again notes that Plaintiff did not bring this matter to the Court's attention until after Defendants moved for summary judgment. Even then, he did not raise it for almost two months thereafter. Pl.'s Mot. for Additional Time 3, 11. In his first post-motion for summary judgment filing-dated January 15, 2021- Plaintiff did not mention the need for inmate rosters. Pl.'s Mot. for Appointment of Counsel and Extension of Time, ECF No. 107. Finally, the discovery value of the roster to Plaintiff is belied by his inability during his deposition to provide even the slightest description of-or information related to-those inmates whom he believes have information helpful to his case. Pl.'s Dep. 105:2-110:18.
In summary, the Court finds that Plaintiff has not been deprived of his right to discovery. Instead, the Court finds that despite defense counsel's mailing errors, Plaintiff received Defendants' discovery response prior to the deadline for filing dispositive motions but chose not to seek an extension of time to conduct further discovery or to raise the specific deficiencies in Defendants' responses he now cites until after Defendants filed their motion for summary judgment. This is despite the Court notifying Plaintiff that the deadline for filing dispositive motions was December 30, 2020. Text-Only Order, Nov. 30, 2020, ECF No. 94. Through its orders, the Court has sought to ensure that Plaintiff received responses to his discovery requests and also address the perceived inadequacies in Defendants' responses that Plaintiff promptly brought to the Court's attention. See, e.g., Order 4-5, Oct. 28, 2020, ECF No. 92 (granting in part Plaintiff's motion to compel). The Court, however, cannot allow Plaintiff to wait until after Defendants have moved for summary judgment to seek to reopen discovery and pursue matters he could have raised prior to the filing of dispositive motions. Plaintiff's motion to stay (ECF No. 122) and to set aside (ECF No. 123) the Court's April 5, 2021, Order (ECF No. 118) are DENIED.
B. Motion to Recuse
Within his motion to set aside, Plaintiff also moves for removal of the undersigned from this case, which the Court construes as a motion to recuse. Pl.'s Mot. to Set Aside 1, 5. Plaintiff's previous motions to recuse the undersigned (ECF Nos. 16, 72) have been denied (ECF Nos. 22, 74). Under 28 U.S.C. § 144, a party may seek the presiding judge's recusal by filing a “timely and sufficient affidavit” showing that the judge “has a personal bias or prejudice either against him or in favor of any adverse party.” 28 U.S.C. § 144. “To warrant recusal under § 144, the moving party must allege facts that would convince a reasonable person that bias actually exists.” Christo v. Padgett, 223 F.3d 1324, 1333 (11th Cir. 2000). This section “contemplates some initial screening of the affidavit in order to prevent manipulation of the judicial system by disgruntled litigants.” Rhodes v. MacDonald, 670 F.Supp.2d 1363, 1371 (M.D. Ga. 2009) (citing Davis v. Bd. of Sch. Comm'rs of Mobile Cnty., 517 F.2d 1044, 1051 (5th Cir.1975)). The affidavit “must be strictly scrutinized for form, timeliness, and sufficiency.” United States v. Adamson, 681 Fed.Appx. 824, 827 (11th Cir. 2017 (per curiam) (quotation marks omitted).
28 U.S.C. § 455 provides that a judge “shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned” or when “he has personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding.” 28 U.S.C. § 455(a), (b)(1). “It is well established that an allegation of bias sufficient to require disqualification under either section 144 or section 455 must demonstrate that the alleged bias is personal as opposed to judicial in nature.” United States v. Meester, 762 F.2d 867, 884 (11th Cir. 1985). “In other words, the bias must stem from extrajudicial sources, or the judge's acts must demonstrate such pervasive bias and prejudice that it unfairly prejudices one of the parties.” Matthews v. State Farm Fire & Cas. Co., 817 Fed.Appx. 731, 735 (11th Cir. 2020) (per curiam) (internal quotation marks omitted). The pervasive bias exception supports disqualification if the Court's predisposition is “so extreme as to display clear inability to render fair judgment.” Liteky v. United States, 510 U.S. 540, 551 (1994). “Thus, a motion for disqualification may not ordinarily be based on the judge's rulings in the same case.” Meester, 762 F.2d at 884; see also Liteky, 510 U.S. at 555 (“[J]udicial rulings alone almost never constitute a valid basis for a bias or partiality [recusal] motion.”).
28 U.S.C. § 455(b) lists other circumstances in which a judge must recuse himself or herself, but subsection (b)(1) appears to be the only one applicable to Plaintiff's motion.
As with his previous motions, Plaintiff's allegations of bias stem entirely from the Court's rulings in this case. Pl.'s Mot. to Set Aside 2-5. Moreover, Plaintiff has not demonstrated pervasive bias. While he is clearly frustrated that many of the undersigned's rulings and recommendations have not been in his favor, “repeated rulings against a litigant, no matter how erroneous and how vigorously and consistently expressed, are not a basis for disqualification of a judge on the grounds of bias and prejudice.” Rufus v. Land, No. 3:20-cv-123-CAR-MSH, 2021 WL 687260, at *1 (M.D. Ga. Jan. 11, 2021) (quoting Maret v. United States, 332 F.Supp. 324, 326 (E.D. Mo. 1971)). Plaintiff's motion for recusal, therefore, is DENIED.
II. Defendants' Motion for Summary Judgment
Defendants move for summary judgment, contending, that (1) Plaintiff's claims for money damages against them in their official capacity are barred by the Eleventh Amendment, (2) Plaintiff's medical care claims are barred by the statute of limitations, (3) Plaintiff cannot show that Dr. Aikens and Hughes-Terry were deliberately indifferent to his medical needs, (4) Plaintiff cannot show an Eighth Amendment violation by Chitty, (5) Defendants are entitled to qualified immunity, and (6) Plaintiff's claims for injunctive relief against Dr. Aikens and Hughes-Terry are moot. Defs.' Br. in Supp. of Mot. for Summ. J. 6-20, ECF No. 99-1. As the Court agrees that Plaintiff fails to show deliberate indifference on the part of Dr. Aikens and Hughes-Terry or an Eighth Amendment violation by Chitty, it recommends that Defendants be granted summary judgment and declines to address their other grounds.
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, 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.
B. Plaintiff's Failure to Respond
As previously noted, Plaintiff did not respond to Defendants' motion for summary judgment or their statement of material facts despite the Court's notice of his need to do so. Order 1-3, Dec. 30, 2020, ECF No. 100. 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. 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.” Major v. Toole, No. 5:15-CV-483-MTT, 2018 WL 5811484, at *2 (M.D. Ga. Nov. 6, 2018). 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.”).
C. Dr. Aikens and Hughes-Terry
1. Factual Background
Prior to his transfer to RSP on April 23, 2015, Plaintiff was incarcerated at Wheeler State Prison (“Wheeler”), which is a private prison. Pl.'s Dep. 111:24-112:8, 128:19-22. According to Plaintiff, while he was at Wheeler, a doctor diagnosed a “hole in his stomach, ” placed him on medication for the condition, and recommended that he be seen by an outside specialist. Id. at 111:17-20, 125:24-126:6. When Plaintiff arrived at RSP, however, he was seen by Dr. Aikens, who told Plaintiff that he was not going to follow the recommendations made by the doctor at Wheeler, but instead, was going to follow his own approach. Id. at 113:4-6, 114:23-115:3. Dr. Aikens told Plaintiff he would not send him to an outside specialist. Id. at 126:6-10. The medication Plaintiff was prescribed at Wheeler was discontinued. Id. at 127:21-23. When Plaintiff came to sick call to be treated for his stomach condition, Dr. Aikens, instead, wanted to treat Plaintiff's other medical issues that he thought were more important. Id. at 113:9-11, 129:22-130:5, 131:5-11.
Plaintiff testified at his deposition that for the next two to three years, Dr. Aikens refused to give him necessary medication for his stomach condition. Pl.'s Dep. 126:12-25. When Plaintiff went to the medical unit to ask to see Dr. Aikens in order to get a different medication, Hughes-Terry refused, telling Plaintiff that Dr. Aikens had already decided what medications he would receive. Id. at 117:13-118:5. She would not give him medication that Dr. Aikens had not prescribed. Id. at 147:22-23. It was not until mid-2018-after he filed a grievance-that Plaintiff was allowed to see a nurse practitioner who referred Plaintiff to Dr. Aikens. Id. at 117:18-21. Dr. Aikens prescribed Pepcid in mid-2018. Id. at 128:7-11, 149:24-150:2. Prior to that, Plaintiff received medication for his stomach only from a physician assistant or nurse practitioner when Dr. Aikens and Hughes-Terry were not present. Id. at 128:23-129:6, 151:15-17.
Plaintiff was transferred from RSP to Central State Prison in 2019. Pl.'s Dep. 137:22-138:1. They treated his stomach condition with Pepcid and another medication Plaintiff does not know the name of. Pl.'s Dep. 138:2-11. He was not sent to a specialist. Id. at 138:12-14.
2. Analysis
Plaintiff alleges that Dr. Aikens was deliberately indifferent to his serious medical needs by failing to “honor another physician's directive for Plaintiff to visit a physician specialist, follow-up examination, and treatment of stomach illness and intestinal damage[], and physical therapy for his abdomen.” 2d Am. Compl. 12. He states he “incurred a 23 lb. weight loss, abdomen, and ongoing sufferings due to Dr. Aiken's actions.” Id. at 10. Plaintiff contends that Hughes-Terry “hinder[ed] his access to medications for serious medical needs in concert with Dr. Aiken's actions.” Id. Dr. Aikens and Hughes-Terry contend that Plaintiff cannot show that they were deliberately indifferent to his medical needs. Defs.' Br. in Supp. of Mot. for Summ. J. 9-14. The Court agrees.
“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). “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.” Dang ex rel. Dang v. Sheriff, 871 F.3d 1272, 1280 (11th Cir. 2017) (internal quotation marks omitted). Further, “the medical need must be one that, if left unattended, poses a substantial risk of serious harm.” Id. (internal quotation marks omitted).
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). “[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, 871 F.3d at 1280 (internal quotation marks omitted).
The Court assumes Plaintiff has shown a serious medical need, though he has presented no evidence of stomach cancer as claimed. 2d Am. Compl. 8. Medical records show a diagnosis of Gastroesophageal Reflux Disease (“GERD”) in May 2015. Defs.' Resp. to Pl.'s Mot. for Additional Time Ex. C, at 101. He also has a history of a duodenal ulcer and reports of abdominal pain since 1999. Id. at 105, 123-24. Nevertheless, Plaintiff has not shown deliberate indifference.
In his complaint, Plaintiff's only ground for deliberate indifference by Dr. Aikens is his failure to follow the recommendations of the doctor at Wheeler. 2d Am. Compl. 10, 12. Similarly, during his deposition, he testified that “in refusing to follow” the Wheeler doctor's recommendation, Dr. Aikens “refused to give [him] the necessary treatment and medication in compliance with that . . . prognosis.” Pl.'s Dep. 146:7-10. Even if Dr. Aikens did not follow the recommendation of the Wheeler doctor, however, this is not enough to show an Eighth Amendment violation because “a simple difference in medical opinion” does not constitute deliberate indifference. Waldrop v. Evans, 871 F.2d 1030, 1033 (11th Cir. 1989); see also Bismark v. Fisher, 213 F. App'x. 892, 897 (11th Cir. 2007) (per curiam) (“Nothing in our case law would derive a constitutional deprivation from a prison physician's failure to subordinate his own professional judgment to that of another doctor.”). Moreover, Plaintiff does not identify the medicine given to him at Wheeler that he contends Dr. Aikens discontinued. Pl.'s Dep. 127:1-4. He also does not specify what specialist care the Wheeler doctor recommended. Further, Plaintiff admits that his stomach condition was treated with medication at Central State Prison and Burrus Correctional Training Center-apparently effectively-without need for outside care. Id. at 138:2-14. During his deposition, Plaintiff steadfastly refused to identify any specific action on Dr. Aikens's part-aside from not following the Wheeler doctor's recommendation-that constituted deliberate indifference. Id. at 139:11-21, 141:20-146:11. He simply referred to his complaint and the medical records, and alleged conclusorily that Dr. Aikens intentionally failed to provide necessary medical care. Id. Plaintiff, however, has not presented evidence that Dr. Aikens was deliberately indifferent to his stomach pain. He has presented no evidence that he ever specifically asked Dr. Aikens for medication to ease his stomach pain and was refused; he asserts only that Dr. Aikens did not prescribe the unspecified medication recommended by the Wheeler doctor. Plaintiff admits that he was prescribed medication by the physician assistant, who worked under Dr. Aikens's supervision. Id. at 129:2-9, 150:2-4; see Aikens Decl. ¶ 4, ECF No. 99-4. Further, while Plaintiff states that he was not prescribed Pepcid until mid-2018, the medical records show that Dr. Aikens prescribed it for at least some period of time in May 2015, which is soon after Plaintiff's arrival at RSP. Defs.' Resp. to Pl.'s Mot. for Additional Time Ex. C, at 101-02; Aiken Decl. Exs. 1, ECF No. 99-5.
Plaintiff testified at his deposition that a nurse practitioner gave him medication that Dr. Aikens and Hughes-Terry “didn't approve.” Pl.'s Dep. 151:15-22. Whether this nurse practitioner is a different person than the physician assistant is not clear, but Plaintiff has presented no evidence that Dr. Aikens ever forbid personnel authorized to prescribe medication to provide him with something for his stomach.
The undisputed evidence also shows that Dr. Aikens attempted to address Plaintiff's stomach problems. Plaintiff testified at his deposition that Dr. Aikens referred him for testing in November 2016 at Augusta State Medical Prison (“ASMP”). Pl.'s Dep. 136:5-13. He also testified that he went to an unspecified private institution around the same time. Id. at 136:19-137:8. In July 2018, Dr. Aiken referred Plaintiff for a CT scan due to weight loss and abdominal pain. Aikens Decl. ¶ 12; Aikens Decl. Exs. 3-4.
Moreover, the undisputed evidence shows that Plaintiff refused to cooperate with Dr. Aikens's efforts to treat him. According to Dr. Aikens, Plaintiff routinely refused to allow him to examine him or ask him questions and often became confrontational. Aikens Decl. ¶¶ 5-6. When Plaintiff returned from the Fulton County Jail in 2017, he told Dr. Aikens that a doctor there had wanted to treat Plaintiff in a certain manner. Id. ¶ 7; 2d Am. Compl. 8-9. When Dr. Aikens attempted to perform his own examination and ask about his symptoms in the Fulton County Jail, though, Plaintiff became “angry and uncooperative.” Aikens Decl. ¶ 7. When Plaintiff demanded to see a specialist, he refused to allow Dr. Aikens to examine him to determine if such referral was indicated and also disagreed when Dr. Aikens told him that the “gastroenterologist” he was planning on referring him to was the same as the “gastrointestinal specialist” Plaintiff was demanding to see. Id. ¶¶ 8-9. After refusing referrals, Plaintiff was eventually seen at ASMP. Id. ¶¶ 12-13. During his deposition, Plaintiff was asked if he ever refused treatment, and he did not deny it, responding only, “I don't recall. I don't know.” Pl.'s Dep. 133:9-24.
As for Hughes-Terry, Plaintiff's complaint is two-fold. First, he claims she did not give him medication that Dr. Aikens did not prescribe. Id. at 147:22-23. Second, he alleges that when he went to medical, she would not allow him to see Dr. Aikens to get a different prescription. Id. at 117:10-15. The undisputed evidence shows, however, that Hughes-Terry was not authorized to prescribe medication. Hughes-Terry Decl. ¶ 14, ECF No. 109-1. Moreover, while Plaintiff appears to assert that Hughes-Terry deprived him of access to Dr. Aikens, he also admits that she told him he had to put in for a sick call to see Dr. Aikens. Pl.'s Dep. 147:22-148:3. Thus, the evidence does not show that she prevented Plaintiff from seeing Dr. Aikens, and the record clearly establishes that Plaintiff did see Dr. Aikens.
Therefore, Plaintiff has failed to present evidence showing a genuine issue of material fact as to Dr. Aikens and Hughes-Terry's alleged deliberate indifference. At most, Plaintiff has shown that they did not treat him as he demanded, and he refused to cooperate in his treatment when they did not comply with his demands. Plaintiff's desire for a different mode of treatment does not amount to deliberate indifference. Hamm, 774 F.2d at 1575. Accordingly, it is recommended that Dr. Aikens and Hughes-Terry be granted summary judgment.
D. Officer Chitty
1. Factual Background
On January 19, 2017, Plaintiff was assigned to dorm D-1, one of four dorms in building D at RSP. Pl.'s Dep. 32:1-6, 33:15-20. Chitty was the only corrections officer assigned to building D. Id. at 34:8-19. Plaintiff had two “little run-ins” with Chitty about “small matters” prior to the assault, and he believed “she was carrying a torch” against him. Id. at 31:1-4. Inmate John Hughes was also assigned to D-1. Id. at 49:17-19. Plaintiff has given inconsistent stories as to his prior interaction with Hughes. In his deposition, he denied having a dispute with Hughes, stated he had never had any conversations with Hughes, and testified that he did not even know him prior to the attack. Id. at 50:3-12, 59:18. However, Plaintiff later claimed that prior to the assault, Hughes had approached him about some legal work he needed assistance with and became angry when Plaintiff refused. Pl.'s Mot. to Amend Compl. Attach. 1, at 2, ECF No. 105-1.
Plaintiff has also suggested that the January 19, 2017, assault was retaliation for grievances he filed against Dr. Aikens and Hughes-Terry. 2d Am. Compl. 10. He has presented no evidence to substantiate this claim.
At some point on January 19, 2017, Chitty told Hughes that he was going to be transported to a court hearing and summoned him to talk in her office. Pl.'s Dep. 63:5-8, 64:21-65:1. After speaking to Hughes, Chitty then told Plaintiff that he was also going to court, to pack up his stuff, and to report to the building D courtyard. Id. At 35:15-19, 38:17- 23, 41:1-44:11. In fact, Plaintiff was scheduled to appear in court in Fulton County, Georgia on January 20, 2017. Id. at 39:10-21. Plaintiff arrived in the building D courtyard at around 3:40 a.m. Id. at 62:21-63:4. When he arrived, Chitty was speaking with Hughes. Id. at 40:2-20. Plaintiff's deposition testimony as to what he heard them saying is inconsistent. At one point, he testified that he “heard the last end of the conversation they were having, ” and Chitty was telling Hughes to “do something as I told you” or “words of that . . . nature.” Id. at 40:17-20. At another point, he testified that “[i]t was not clear” and that he did not “want to speculate on what she said.” Pl.'s Dep. 76:25-77:3. However, Plaintiff stated that when Chitty saw Plaintiff, she seemed surprised and “moved away quickly.” Id. at 36:1-5. Plaintiff testified that it aroused his suspicion. Id. at 77:3-4.
Chitty then opened a door and allowed another inmate from dorm D-2-identified as John Doe-into the courtyard. Id. at 53:12-54:3, 55:1-11. When the three inmates were in the courtyard, Chitty opened the gate leading from the courtyard of building D onto the walkway to the ID room. Id. at 36:12-14, 43:5-7, 62:16-19, 69:23-70:1, 78:15-22, 80:8-11. The inmates then entered the walkway and Chitty closed the gate back. Id. at 79:11-25. Plaintiff was pushing a buggy containing the inmates' belongings. Pl.'s Dep. 89:12-15. Plaintiff's suspicions became further aroused when he noticed the walkway lights were turned off and inmates were standing at doors and windows in recognition that something was about to take place. Id. at 35:5-15, 36:20-37:2. The three inmates were then joined by a fourth inmate-also identified as John Doe-from J Building. Id. at 56:1-6, 87:8-19. On the way to the ID room, Hughes and one of the John Doe inmates attacked Plaintiff. Id. at 37:17-20, 57:1-8, 86:20-87:15. Hughes used a cane in the attack. Id. at 37:19-20, 88:25-89:2, 90:7-14. Plaintiff then saw Chitty on the walkway, calling for Hughes and one of the John Doe inmates to come back to the courtyard, which they did. Id. at 38:1-7, 57:8-11, 79:25-80:2, 94:19-95:11. During the attack, the buggy with the inmates' property rolled down the hill. Pl.'s Dep. 89:4-5. After the attack, Plaintiff went into the ID room. Id. at 38:9-10.
2. Analysis
Plaintiff alleges that Chitty violated his Eighth Amendment rights by “promoting [an] opportunity for physical assaults by known gang members.” 2d Am. Compl. 11. Plaintiff's allegation could conceivably encompass two different theories of liability. One is a “failure-to-protect” claim, requiring him to prove Chitty's deliberate indifference to his health or safety. See Sepulveda v. Burnside, 170 Fed.Appx. 119, 122-23 (11th Cir. 2006) (per curiam) (finding evidence supported a failure-to-protect claim where the jail guard's awareness of an inmate's prior hostility toward the plaintiff and the inmate's classification as a dangerous inmate would “support a conclusion” that he was deliberately indifferent to the plaintiff's safety). The other is a use-of-force claim, requiring Plaintiff to “show that [Chitty] acted ‘maliciously and sadistically for the very purpose of inflicting harm.'” Id. at 123 (quoting Whitley v. Albers, 475 U.S. 312, 320-21 (1986)).
Chitty construes Plaintiff's allegations primarily as a failure-to-protect claim and argues accordingly. In its screening order, however, the Court liberally construed Plaintiff's allegations as a claim that Chitty ordered or encouraged Hughes and Doe to attack him. Order & R. 9, June 11, 2019. Such an allegation constitutes an excessive use-of-force claim. See Sepulveda, 170 Fed.Appx. at 123 (finding evidence sufficient to support a use-of-force claim where a reasonable jury could infer from the jail guard's conduct that he “encouraged or deliberately orchestrated the assault” on the plaintiff). Chitty is entitled to summary judgment under either theory.
First, in regard to a failure-to-protect claim, Plaintiff must present sufficient evidence of “(1) a substantial risk of serious harm; (2) the defendant's deliberate indifference to that risk; and (3) causation.” Mosley v. Zachery, 966 F.3d 1265, at 1270 (11th Cir. 2020). Deliberate indifference has a subjective and objective component, and a plaintiff must prove “both that the defendant actually (subjectively) knew that an inmate faced a substantial risk of serious harm and that the defendant disregarded that known risk by failing to respond to it in an (objectively) reasonable manner.” Id. Plaintiff has presented no evidence that Chitty was aware of a risk posed by Hughes to Plaintiff. In fact, at one point in his deposition, he denied having any disputes with Hughes. Pl.'s Dep. 50:3-12. Even his later assertion that Hughes became angry because Plaintiff refused to do legal work for him does not include an allegation of specific threats of violence toward Plaintiff. Pl.'s Mot. to Amend Compl. Attach. 1, at 2. Finally, while Plaintiff testified generally that Hughes had a reputation as a troublemaker who was “notorious for . . . gangbanging or jumping on people, ” this is not sufficient to show that Chitty was aware of a substantial risk of harm to Plaintiff. Pl.'s Dep. 51:18-23; see Gross v. White, 340 Fed.Appx. 527, 531 (11th Cir. 2009) (per curiam) (“[A]llegations of jail officials' generalized awareness that someone is a problem inmate with a well-documented history of prison disobedience and is prone to violence is not enough to show their subjective awareness that the inmate poses a substantial risk of serious harm to his cellmate.” (internal quotation marks omitted) (citing Carter v. Galloway, 352 F.3d 1346, 1349 (11th Cir. 2003)).
Second, in regard to an excessive-use-of-force claim, Chitty contends that the evidence is insufficient to show that she encouraged Hughes and Doe to attack Plaintiff. Defs.' Br. in Supp. of Mot. for Summ. J. 15-16. The Court agrees. Plaintiff admitted in his deposition that he did not know what Chitty and Hughes discussed in her office and that he did not find that conversation alarming or suspicious. Pl.'s Dep. 75:11-14, 76:8-14. He also admitted that he did not know what Chitty and Hughes were discussing when he entered the courtyard. Id. at 76:25-77:3. Further, other than a vague reference to “two little run-ins . . . about small matters, ” Plaintiff has presented no evidence that Chitty had a motive to harm him. Id. at 31:1-3.
Plaintiff has alleged that an unidentified prison orderly was told by Chitty shortly before the attack to get finished sweeping the courtyard because “Sgt. Price got it in for ol' Banks' ass.” Pl.'s Mot. to Amend Compl. Attach. 1, at 2. This is inadmissible hearsay-not reducible to admissible form at trial-which the Court cannot consider when ruling on a motion for summary judgment. See Pritchard v. Southern Co. Servs., 92 F.3d 1130, 1135 (11th Cir. 1996) (finding statements of unknown co-workers to be inadmissible hearsay); Funderburk v. Fannie Mae, No. 1:13-CV-01362-LMM, 2015 WL 11216690, at *3-5 (N.D.Ga. Nov. 16, 2015) (finding statement by unidentified employee of defendants to be inadmissible hearsay where plaintiff failed to lay proper foundation for admission of evidence).
Plaintiff alleges that following the incident, another officer-Lieutenant Price- stated that she called Chitty, who told her that Hughes never left the courtyard. 2d Am. Compl. 8. This is corroborated by Price's incident report wherein she reports Chitty telling her that Hughes did not assault Plaintiff because he was still in the dorm when Banks left the courtyard. Defs.' Resp. to Mot. for Additional Time Ex. C, at 5. Assuming that Plaintiff's version of events in the courtyard is true-as the Court must at this stage-it is arguably suspicious that Chitty would have made this statement. As with the rest of Plaintiff's allegations, though, the evidence never rises beyond the level of suspicion, and “mere inferences, conjecture, speculation or suspicion are insufficient to establish a material fact upon which to base the denial of summary judgment.” Ferron v. West, 10 F.Supp.2d 1363, 1366 (S.D. Ga. 1998). The Court, therefore, recommends that Chitty be granted summary judgment.
Price's report also indicates, however, that it was Chitty who notified prison staff that an inmate's property had been abandoned, thus alerting staff of an issue. Defs.' Resp. to Mot. for Additional Time Ex. C, at 5.
CONCLUSION
For the reasons explained above, it is recommended that Defendants' motion for summary judgment (ECF No. 99) be granted. Plaintiff's motion to stay (ECF No. 122) and motion to set aside (ECF No. 123)-including his motion for the undersigned to be recused-is 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.