Opinion
CIVIL ACTION 10-0384-WS-M
10-05-2011
SHAWALTO WATTS, Plaintiff, v. DALLAS COUNTY JAIL, et al., Defendants.
REPORT AND RECOMMENDATION
Plaintiff, an Alabama prison inmate proceeding pro se and in forma pauperis filed a Complaint and Amended Complaints under 42 U.S.C. § 1983 (Docs. 1, 6, 18). This action was referred to the undersigned for a report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 72.2(c)(4), and is now before the undersigned on Defendants' Motion for Summary Judgment (Docs. 14, 17), and Plaintiff's opposition thereto (Doc. 26). After consideration of the pleadings and the evidence presented by the parties, and for the reasons set forth below, it is recommended that Defendants' Motion for Summary Judgment be granted and that Plaintiff's action against these Defendants be dismissed with prejudice.
I. SUMMARY OF THE FACTS
1. From its review of the record, the Court summarizes the parties' allegations which are material to the issues addressed in this Report and Recommendation, and takes the following as fact.
2. At the time of the incident made the basis of this litigation, Plaintiff was detained at the Dallas County Jail (Doc. 1, p. 4). Plaintiff began his detention on April 14, 2010 when he was brought to the jail for violating his parole (Doc. 17-7).
The Court notes that the Plaintiff was detained for violation of his parole, and was not a pre-trail detainee; thus, the Court will analyze Plaintiff's claims under the scope of the Eighth Amendment. See Smith v. Leonard, 2008 WL 1912804 (S.D.Tex. 2008). See also Hathcock v. Armor Correctional Health Services, Inc., 186 Fed.Appx. 962, 963 n.1 (11th Cir. 2006). ("Although the record is unclear as to whether Hathcock was a pre-trial detainee during the events, the distinction is immaterial. The Eighth Amendment standard, applicable to prisoners, and the Fourteenth Amendment standard, applicable to pre-trial detainees, are the same. Marsh v. Butler County, 268 F.3d 1014, 1024 n. 5 (11th Cir.2001) (en banc); Lancaster v. Monroe County, 116 F.3d 1419, 1425 (11th Cir.1997)").
3. Starting on April 28, 2010, Plaintiff complained of an abscess in his mouth, and this complaint continued throughout Plaintiff's detainment and incarceration (Doc. 1, p. 4). On May 5, 2010, a medical history was taken of the Plaintiff, and at that time he appeared to be in good health (Doc. 17-9). At the May 5, 2010 examination no dental problems were noted to be seen at that time (Doc. 17-9, p. 3). According to the Plaintiff, after his health visit, he complained to Defendants David Brown and Wilamena Phillips that he needed to see a dentist (Doc. 1, p. 7). Later in the day, Plaintiff also complained to Defendant Officer Richard Waugh and Sergeant Lunnie about his tooth ache (Doc. 1, p. 8).
3. Plaintiff submitted a request to see a medical doctor on May 16, 2010 (Doc. 17-13). Three days later on May 19, 2010, Plaintiff was sent to see Defendant Dr. Chudy Okoye ("Dr. Okoye") (Doc. 17-3). The doctor examined the Plaintiff, and did not see any medical or dental need "which would justify any type of treatment that could not be given to him at Dallas County Detention Center" (Doc. 17-3, p. 2). The doctor directed Plaintiff to request over-the-counter medicine from the jail (Id. ). The doctor did not prescribe medication for the Plaintiff (Id.). Plaintiff states that Dr. Okoye told Plaintiff he was not a dentist, and did not prescribe Plaintiff penicillin (see Doc. 26, p. 6). Also on May 19, 2010, an Intake Booking Screening Form was completed on the Plaintiff during his examination (Doc. 17-10). No abnormalities were noted, and when asked by the detention center staff if he had any other medical problems they had not asked about, Plaintiff replied only that he had bronchitis and did not mention any dental problems (Doc. 17-10).
Plaintiff also claims that on that same day, Officer Smith "threatened to mace Plaintiff if he continued to ask for medicine, and proceeded to carry Plaintiff back to [his] cell and locked him back up." (Doc. 26, p. 3). However, Officer Smith is not a named Defendant in this action, and it is unclear from the record whether Plaintiff had already received medication that day or not. However, this alleged threat from Officer Smith did not effect Plaintiff since Plaintiff made continuous requests for medical attention (see Docs. 1, 6, 18).
4. After seeing Dr. Okoye, Plaintiff continued to complain to members of the jail staff about his tooth (Doc. 17-2). The jail staff told the Plaintiff he should make a request for medical care and try to see the doctor again (Doc. 17-2). However, Plaintiff refused to see Dr. Okoye (Doc. 17-2). Plaintiff was then told that he could schedule an appointment with a private dentist, but would be required to pay a fee as it was elective treatment (see Doc. 17-5).
The Court notes that Plaintiff's wife, Ceceila Watts, also made verbal complaints to the Dallas County Jail staff to request dental assistance for Plaintiff (Doc. 26, pp. 13-14).
5. On July 14, 2010 Plaintiff was ordered to serve the remainder of his sentence in the Detention Center, with a scheduled release of November 26, 2010 (Doc. 17-8). On or about July 21, 2010, Plaintiff filed his complaint (Doc. 1).
6. On or about July 27, 2010, the Plaintiff's abscess burst (Doc. 6, p. 4).
7. An appointment for the Plaintiff with a private dentist was scheduled for August 2, 2010 (see Doc. 17-11). However, the appointment was not kept because Plaintiff did not pay the required fee even though Plaintiff had access to funds to cover the fee (see Doc. 17-11; Doc. 17-12).
8. On November 7, 2010, Plaintiff made a written request to see the Warden without stating a specific need to do so other than indicating it was "urgent" dated November 7, 2010 (Doc. 39-2).
9. On or about November 10, 2010, personnel noticed for the first time that Plaintiff's cheek was swelling, and the jail nurse scheduled an appointment for the Plaintiff to see a dentist (Doc. 39-1).
10. Plaintiff was seen by Dr. I.B. Hopson on November 15, 2010 (Doc. 39-1; Doc. 18). Dr. Hopson took an X-ray and prescribed Plaintiff an antibiotic (Doc. 39-1). This appointment was paid for by the Dallas County Jail (Doc. 26, p. 4). Plaintiff states that he was not given his prescribed medicine as of November 17, 2010 (Doc. 18), but such was specifically given to him during his incarceration (Doc. 39-1), which means he was given his medication between November 17, 2010 and November 26, 2010.
11. The Plaintiff's release date was November 26, 2010, and the Plaintiff was indeed released from the Dallas County Jail, at the latest, by December 3, 2010 (see Doc. 20; Doc. 17, p. 2; Doc. 17-8).
12. Subsequent to Plaintiff's release, he saw Dr. Hopson again on December 12, 2010 and December 27, 2010 when he was again prescribed antibiotics (Doc. 26, p. 22). Plaintiff does not allege, and the record does not reflect, that Plaintiff sustained any life-long handicap or permanent loss as a result of any treatment or non-treatment while at the Dallas County Jail.
II. PROCEDURAL HISTORY
1. On July 21, 2010, Plaintiff filed the present § 1983 action against Defendants Dallas County Jail, Wilamena Phillips (Chief Matron at Dallas County Detention Center)("Phillips"), Dr. Chudy Okoye ("Dr. Okoye"), Richard Waugh (Correctional Officer at Dallas County Detention Center)("Waugh"), David Brown (Sergeant at Dallas County Detention Center)("Brown"), Steve Coleman (Correctional Officer at Dallas County Detention Center)("Coleman"), and Roger Goodman (Lieutenant and Warden at the Dallas County Detention Center)("Goodman") alleging denial of proper medical treatment for his dental problem (Doc. 1).
2. Initially in Plaintiff's Complaint, he claims that he was "denied medical attention" causing him "pain and suffering," for which he seeks "pain and suffering payments and medical expenses" (Doc. 1, p. 7-8).
3. On August 10, 2010, Plaintiff filed an Amended Complaint wherein he claims that after an abscess had burst in his mouth, he did not receive medical attention and requested an award of "pain and suffering in the amount of $3,500.00 per night starting from April 28, 2010 up to the time [Plaintiff is] provided medical attention or to [his] release date, which ever comes first." (Doc. 6, p. 7).
4. In their Answer to the Amended Complaint and Special Report, Defendants deny Plaintiff's allegations and assert the defenses of absolute and qualified immunity (Docs. 14, 17).
Defendants set forth various immunities as affirmative defenses. However, since the Court finds herein that Plaintiff's allegations related to his lack of medical treatment do not establish a constitutional violation, there is no need to make further inquiry as to immunity.
--------
5. Plaintiff also makes a broad claim against the Dallas County Jail, as follows:
the Dallas County Jail and each of its named employees and/or contract agents were negligent with respect to providing him needed medical attention, and exhibits extreme and outrageous conduct by their failure to have him attended by a dentist when they knew that he was in great pain from an abscessed tooth and infected gum . . . [and] he suffered great pain over an unreasonable period of time and Dallas County jail and its employees are responsible for his harm and should be liable for their neglectful conduct.(Doc. 26, p. 4)(emphasis added).
6. On February 28, 2011, the Court ordered that Defendants' Special Report and Answer be treated as a Motion for Summary Judgment (Doc. 25). Defendants' motion and Plaintiff's response in opposition thereto (Doc. 26) are now before the Court.
III. SUMMARY JUDGMENT STANDARD
In analyzing the propriety of a motion for summary judgment, the Court begins with these basic principles. The Federal Rules of Civil Procedure grant this Court authority under Rule 56 to render "judgment as a matter of law" to a party who moves for summary judgment. It is well-established that summary judgment is proper-consistent with Federal Rule of Civil Procedure 56(c)-"if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The Court must view the evidence produced by "the nonmoving party, and all factual inferences arising from it, in the light most favorable to" that party. Barfield v. Brierton, 883 F.2d 923, 934 (11th Cir. 1989). However, Rule 56(e) states that:
If a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact as required by Rule 56(c), the court may:Fed. R. Civ. P. 56(e). "[T]here is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. . . . If the evidence is merely colorable, . . . or is not significantly probative, . . . summary judgment may be granted." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986) (internal citations omitted). "Summary judgment is mandated where a party '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.'" Custom Mfg. & Eng'g, Inc. v. Midway Servs., Inc., 508 F.3d 641, 647 (11th Cir. 2007) (citations omitted).
(1) give an opportunity to properly support or address the fact;
(2) consider the fact undisputed for purposes of the motion;
(3) grant summary judgment if the motion and supporting materials--including the facts considered undisputed--show that the movant is entitled to it; or
(4) issue any other appropriate order.
IV. DISCUSSION
As discussed above, Plaintiff seeks redress in this action pursuant to 42 U.S.C. § 1983 for an alleged constitutional deprivation arising out of his dental complaints commencing from April 28, 2010 while he was detained in the Dallas County Jail (Doc. 1). Plaintiff claims the Defendants unconstitutionally deprived him and/or unreasonably delayed dental treatment since his first complaint commencing on or about April 28, 2010. Section 1983 provides in pertinent part that:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. . . .42 U.S.C. § 1983 (1994).
In addressing Plaintiff's claims brought under § 1983, the Court begins its analysis "by identifying the specific constitutional right allegedly infringed. . . ." Graham v. Connor, 490 U.S. 386, 394 (1989). The Eighth Amendment provides that, "[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." U.S. Const. amend. VIII. "The Eighth Amendment's proscription of cruel and unusual punishments prohibits prison officials from exhibiting deliberate indifference to prisoners' serious medical needs." Campbell v. Sikes, 169 F.3d 1353, 1363 (11th Cir. 1999) (citing Estelle v. Gamble, 429 U.S. 97, 104 (1976)). In Sims v. Mashburn, 25 F.3d 980 (11th Cir. 1994), the Eleventh Circuit delineated the objective and subjective portions of an Eighth Amendment claim as follows:
An Eighth Amendment claim is said to have two components, an objective component, which inquires whether the alleged wrongdoing was objectively harmful enough to establish a constitutional violation, and a subjective component, which inquires whether theSims, 25 F.3d at 983 (citing Hudson v. McMillian, 503 U.S. 1, 8 (1992)). To meet the objective element required to demonstrate a denial of medical care in violation of the Eighth Amendment, a plaintiff first must demonstrate the existence of an "objectively serious medical need." Farrow v. West, 320 F.3d 1235, 1243 (11th Cir. 2003). 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.'" Id. (quoting Hill v. Dekalb Reg'l Youth Det. Ctr. , 40 F.3d 1176, 1187 (11th Cir. 1994) overruled on other grounds in Marsh v. Butler County, Ala., 268 F.3d 1014, 1031 n. 8 (11th Cir. 2001)). "In either of these situations, the medical need must be one that, if left unattended, pos[es] a substantial risk of serious harm." Id. (internal quotation marks and citation omitted).
officials acted with a sufficiently culpable state of mind.
In order to meet the subjective requirement of an Eighth Amendment denial of medical care claim, Plaintiff must demonstrate "deliberate indifference" to a serious medical need. Farrow, 320 F.3d at 1243. "Deliberate indifference" entails more than mere negligence. Estelle, 429 U.S. at 106; Farmer v. Brennan, 511 U.S. 825, 835 (1994). "When a prison inmate has received medical care, courts hesitate to find an Eighth
Amendment violation." Waldrop v. Evans, 871 F.2d 1030, 1035 (11th Cir. 1989).
The Supreme Court clarified the "deliberate indifference" standard in Farmer by holding that a prison official cannot be found deliberately indifferent under the Eighth Amendment "unless the official knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference." Farmer, 511 U.S. at 837, 114 S. Ct. 1970 (emphasis added). In interpreting Farmer and Estelle, this Court explained in McElligott that "deliberate indifference has three components: (1) subjective knowledge of a risk of serious harm; (2) disregard of that risk; (3) by conduct that is more than mere negligence."Farrow, 320 F.3d at 1245-46 (emphasis in original).
McElligott, 182 F.3d at 1255; Taylor, 221 F.3d at 1258 (stating that defendant must have subjective awareness of an "objectively serious need" and that his response must constitute "an objectively insufficient response to that need").
"Delay in access to medical attention can violate the Eighth Amendment . . . when it is tantamount to unnecessary and wanton infliction of pain." Hill, 40 F.3d at 1187 (internal citations and quotation marks omitted). "Cases stating a constitutional claim for immediate or emergency medical attention have concerned medical needs that are obvious even to a layperson because they involve life-threatening conditions or situations where it is apparent that delay would detrimentally exacerbate the medical problem." Id.
The "seriousness" of an inmate's medical needs also may be decided by reference to the effect of delay in treatment. Gaudreault, 923 F.2d at 208; Monmouth County, 834 F.2d at 347. Where the delay results in an inmate's suffering "a life-long handicap or permanent loss , the medical need is considered serious." Id. An inmate who complains that delay in medical treatment rose to a constitutional violation must place verifying medical evidence in the record to establish the detrimental effect of delay in medical treatment to succeed. Further, we have held that "[t]he tolerable length of delay in providing medical attention depends on the nature of the medical need and the reason for the delay." Harris v. Coweta County, 21 F.3d 388, 393-94 (11th Cir. 1994) (emphasis added). Consequently, delay in medical treatment must be interpreted in the context of the seriousness of the medical need, deciding whether the delay worsened the medical condition, and considering the reason for delay.Hill, 40 F.3d at 1188-89 (emphasis in original and added) (footnotes omitted). Patients in the free world often experience similar delays when seeking treatment of non-life-threatening injuries or ailments. Jackson v. Benjamin, 2011 WL 1789992, *6 (S.D. Ala.,2011).
Also, "[i]t is well-established that a difference in opinion or a disagreement between an inmate and prison officials as to what medical care is appropriate for his particular condition does not state a claim for deliberate indifference to medical needs." Del Muro v. Federal Bureau of Prisons, 2004 WL 1542216, *4 (N.D. Tex. 2004) (unpublished). As to "the question of whether governmental actors should have employed additional diagnostic techniques or forms of treatment 'is a classic example of a matter for medical judgment' and therefore not an appropriate basis for grounding liability under the Eighth Amendment." Adams v. Poag, 61 F.3d 1537, 1545 (11th Cir. 1995)(quoting Estelle, 429 U.S. at 107). Additionally, solely constitute deliberate indifference. See Mandel v. Doe, 888 F. 2d 783, 787-88 (11th Cir. 1989).
A. Serious Medical Need
The Court first turns to the objective component of the two-part test to determine whether there has been a constitutional violation of the inmate's rights, namely, whether Plaintiff possessed an objectively serious medical need. Farrow, 320 F.3d 1235 at 1243. Plaintiff started making verbal complaints about his tooth on or about April 28, 2010 (Doc. 1, p. 4). Seven days later, on May 5, 2010, an initial medical history and examination took place, and no dental problems were noted (Doc. 17-9, p. 3). Plaintiff continued his verbal complaints despite the finding that there were no dental problems noted at the May 5, 2010 examination (Doc. 1, pp. 7-8). Plaintiff submitted a written request for medical treatment on May 16, 2010 (Doc. 17-13), and three days later was seen by Dr. Okoye (Doc. 17-3). The doctor examined the Plaintiff, and stated as follows:
[O]n May 19, 2010 I examined that Plaintiff on that date and as a part of that examination included an evaluation of the Plaintiff's mouth and dental needs. It was my opinion that the Plaintiff's dental needs did not present any type of medical problem which would justify any type of treatment that could not be given to him at the Dallas County Detention Center. I told the Plaintiff to request over-the-counter pain medication from members of the jail staff, which are freely given out upon request.(Doc. 17-3, p. 2). After being seen by Dr. Okoye, Plaintiff continued to complain about his dental issue (Doc. 17-2). On May 19, 2010 at the inmate booking screening, no abnormalities were noted, and even when asked about any issues not mentioned, Plaintiff did not state there was a problem with his tooth (Doc. 17-10). Due to Plaintiff's subsequent continuous complaints, the jail staff told Plaintiff he should make a request for medical care and try to see the doctor again, but Plaintiff refused because he did not want to see Dr. Okoye (Doc. 17-10). Prior to November 2010, there was no visible, obvious medical need seen by the jail staff (Doc. 39-1). As soon as the staff noticed swelling in Plaintiff's cheek on or about November 10, 2010 (Doc. 26, p. 18), an appointment was scheduled immediately for the Plaintiff to see Dr. Hopson without Plaintiff needing to write and submit a written request (Doc. 39-1). Plaintiff saw dentist Dr. Hopson on November 15, 2010, and the Dallas County Jail paid the fee for the visit (Doc. 26, p. 4; Doc. 18; Doc. 39-4, p. 3). Subsequent to his release, Plaintiff has not stated that he has suffered any serious health problem as a result of this treatment or lack thereof while in the Dallas County Jail (see Doc. 26).
A serious medical need is a need that: (1) a doctor has diagnosed as mandating treatment, or (2) is obvious even to a lay person that a physician's attention is required. Id. "In either of these situations, the medical need must be one that, if left unattended, pos[es] a substantial risk of serious harm." Id. (internal quotation marks and citation omitted). Prior to November 10, 2010, Plaintiff did not have a serious need given that at three prior examinations (May 5, 2010 examination, May 19, 2010 visit with Dr. Okoye, and May 19, 2010 inmate booking screening), he did not appear to have a serious dental problem. Specifically, a medical expert, Dr. Okoye did not see where Plaintiff had a serious medical problem (Doc. 17-3). Plaintiff claims his abscess burst on or about July 27, 2010 (Doc. 6, p. 4). However, from a review of the record, Plaintiff did not make a written request to see Dr. Okoye or any doctor, even though previously when he had made a written request he received medical attention within 3 days of his request. It is evident from the record that Plaintiff knew how to complete a written request to see a doctor, and was successful in his previous effort in seeing a doctor when he had submitted a written request. From the record, it appears that Plaintiff himself did not deem the abscess bursting as a serious medical need since he did not fill out a written request to see a doctor. Accordingly, the Court finds that there was no serious medical need prior to November 10, 2010.
B. Deliberate Indifference
The Court next turns to the second, subjective element of Plaintiff's claim, that is, whether Defendants were deliberately indifferent to Plaintiff's serious medical need. Plaintiff claims that the Defendants in this action were deliberately indifferent to his serious medical need as follows: (1) Defendant Phillips delayed Plaintiff from seeing a doctor immediately upon Plaintiff's verbal complaints commencing on April 28, 2010 (Doc. 1); (2) Dr. Okoye did not prescribe the Plaintiff penicillin and did not direct Plaintiff to be seen by a dentist (Doc. 1); (3) Defendant Brown did not take Plaintiff to the dentist upon Plaintiff's request in July 2010 (Doc. 6, p. 5); (4) Defendant Coleman did not take Plaintiff to the emergency room upon Plaintiff's request in July 2010 (Doc. 6, p. 5); (5) Defendant Goodman did not allow Plaintiff to be seen by the private dentist as scheduled on August 2, 2010 (Doc. 6); (6) Defendant Waugh did not give Plaintiff medication as requested in May 2010 and July 2010 (Doc. 1, pp. 5-6, 8); and (7) staff at the Dallas County Jail failed to give Plaintiff medicine promptly after his November 15, 2010 dental visit (Doc. 18) and the Dallas County Jail and its employees "should be liable for their neglectful conduct" because they failed to have him attended to by a dentist so that the Plaintiff suffered pain for an extended period of time (Docs. 1, 6, 16, 26). The Court disagrees.
1. Defendant Phillips
In order to constitute "deliberate indifference," Defendants must have known of and disregarded an excessive risk to Plaintiff's health. Farrow, 320 F.3d at 1245. Plaintiff claims that Defendant Phillips delayed Plaintiff from seeing a doctor immediately upon his verbal complaints commencing on April 28, 2010, which violated his constitutional rights (Doc. 1). First, at Plaintiff's initial health examination and medical history on May 5, 2010, which was seven days after his initial verbal complaints, no dental problems were noted or seen (Doc. 17-9). Defendant Phillips would have no reason to know of and disregard an excessive risk since such was not borne out from the initial examination on May 5, 2010, and any such health issue was not observable by him or to the examiner on May 5, 2010. Second, Plaintiff received medical treatment three days after his written medical request. (Doc. 17, p. 9; Doc. 17-3). Third, Plaintiff has failed to place verifying medical evidence to show that this short delay caused any detrimental effect. See Hill, 40 F.3d at 1188. Therefore, Defendant Phillips was not deliberately indifferent to Plaintiff's medical need, and did not violate Plaintiff's constitutional rights.
2. Dr. Okoye
Plaintiff claims that since Dr. Okoye did not prescribe the Plaintiff penicillin and did not refer Plaintiff to be seen by a dentist, Dr. Okoye was deliberately indifferent to Plaintiff's medical need (Doc. 1). However, Dr. Okoye examined the Plaintiff on May 19, 2010, and found that the Plaintiff had no medical need "which would justify any type of treatment that could be not be given to him at the Dallas County Detention Center" (Doc. 17-3, p. 2). Plaintiff, in essence, contests Dr. Okoye's treatment and medical decision. "It is well-established that a difference in opinion or a disagreement between an inmate and prison officials as to what medical care is appropriate for his particular condition does not state a claim for deliberate indifference to medical needs." Del Muro v. Federal Bureau of Prisons, 2004 WL 1542216, *4 (N.D. Tex. 2004) (unpublished). Plaintiff's claim against Dr. Okoye is a "classic example of matter for medical judgment." See Adams, 61 F.3d at 1545 (quotation and citation omitted). Therefore, Dr. Okoye was not deliberately indifferent to Plaintiff's medical need, and did not violate Plaintiff's constitutional rights.
3. Defendant Brown and Defendant Coleman
Plaintiff claims that Defendant Brown was deliberately indifferent to Plaintiff's medical need because he did not take Plaintiff to the dentist in July 2010 (Doc. 6, p. 5). Plaintiff claims that Defendant Coleman was deliberately indifferent to Plaintiff's medical needs since he did not take Plaintiff to the emergency room per Plaintiff's request in July 2010 (Doc. 6, p. 5).
First, mere disagreement between an inmate and prison official about medical treatment does not give rise to deliberate indifference. See Del Muro, 2004 WL 1542216 at *4. Whether Plaintiff needed to be taken to the dentist or the emergency room immediately or not was a question of judgment. Prior to Plaintiff's complaints to Defendants Brown and Coleman, Dr. Okoye had already decided that Plaintiff did not need to see a dentist or go to the emergency room (see Doc. 17-3). Second, there was no visible serious medical need for Plaintiff to see a dentist prior to November 2010, as discussed above. Therefore, the Court finds that Defendants Brown and Coleman were not deliberately indifferent to Plaintiff's serious medical need, and did not violate Plaintiff's constitutional rights.
4. Defendant Goodman
Plaintiff claims that Defendant Goodman was deliberately indifferent to Plaintiff's medical needs because Goodman did not allow Plaintiff to be seen by the private dentist as scheduled on August 2, 2010 (Doc. 6, pp. 5-6). However, Defendant Goodman is not at fault for Plaintiff not seeing the private dentist since Plaintiff himself failed to pay the required fee, and this failure to pay the fee was the reason for the appointment cancellation (see Docs. 17-5, 17-11). Second, as stated above, Plaintiff did not have a serious medical need prior to November 10, 2010. Therefore, Defendant Goodman did not act deliberately indifferent to Plaintiff's serious medical need,and did not violate Plaintiff's constitutional rights.
5. Defendant Waugh
Plaintiff claims that Defendant Waugh was deliberately indifferent to Plaintiff's medical need since he failed to give Plaintiff medication on several occasions in May 2010 and July 2010 (Doc. 1, pp. 5-6). While the Court finds it disturbing that Plaintiff would have been in discomfort without the over-the-counter pain medication, this fact alone is not sufficient to establish a constitutional violation. First, Plaintiff has not proffered any actual evidence which demonstrates an attitude of deliberate indifference rather than negligence on the part of Defendant Waugh. Second, Plaintiff has not submitted any "verifying medical evidence" showing that delay in medical treatment, including receipt of medication, resulted in a detrimental physical effect. Hill, 40 F.3d at 1188. Third, it does not appear that there was any serious medical need prior to November 10, 2010. Fourth, even patients in the free world often experience similar delays when seeking treatment of non-life-threatening injuries or ailments. See Jackson v. Benjamin, 2011 WL 1789992, *6 (S.D. Ala.,2011). Therefore, Defendant Waugh did not act deliberately indifferent to Plaintiff's serious medical need, and did not violate Plaintiff's constitutional rights.
6. Dallas County Jail and its staff
Plaintiff claims that the Dallas County Jail and its employees "should be liable for their neglectful conduct" by failing to have him attended to by a dentist so that the Plaintiff suffered pain for an extended period of time (Doc. 26, p. 4). Additionally, Plaintiff claims that after his November 15, 2010 dental visit, jail staff failed to give him his prescribed medication (see Doc. 18).
First, Plaintiff states in his complaint that Defendants were negligent in taking him to the dentist (see Doc. 26, p. 4), but mere negligence is not sufficient to support a constitutional claim. See Mandel v. Doe, 888 F. 2d 783, 787-88 (11th Cir. 1989) (solely showing negligence or medical malpractice is"not sufficient" to constitute deliberate indifference). Additionally, when an "inmate has received medical care, courts hesitate to find an Eighth Amendment violation." Waldrop v. Evans, 871 F.2d 1030, 1035 (11th Cir. 1989).
Second, Plaintiff has not proffered any actual evidence which suggests an attitude of deliberate indifference on the part of Defendants in getting him medical attention.
Third, Plaintiff has not submitted any "verifying medical evidence" showing that delay in medical treatment, including receipt of medication, resulted in a detrimental physical effect. Hill, 40 F.3d at 1188. Jail staff did indeed administer the prescription antibiotic to Plaintiff subsequent to Plaintiff's filing in November 17, 2010 but prior to his release on November 26, 2010 (see Doc. 39-1). Plaintiff has not shown where any short delay in receiving his prescribed antibiotic has resulted in Plaintiff suffering "a life-long handicap or permanent loss." See id. at 1188-89. Therefore, Defendant Dallas County Jail and its staff did not act deliberately indifferent to Plaintiff's serious medical need, and did not violate Plaintiff's constitutional rights.
V. CONCLUSION
Since no constitutional violation has been established based on the foregoing, the Court concludes that Defendants Dallas County Jail, Wilamena Phillips, Dr. Chudy Okoye, Richard Waugh, David Brown, Steve Coleman, and Roger Goodman are entitled to summary judgment in their favor on all claims asserted against them by Plaintiff.
Accordingly, it is recommended that the Motion for Summary Judgment of the Defendants be GRANTED and that the entirety of Plaintiff's Complaint against these Defendants be DISMISSED with prejudice.
The instructions which follow the undersigned's signature contain important information regarding objections to the report and recommendation of the Magistrate Judge.
BERT W. MILLING , JR.
UNITED STATES MAGISTRATE JUDGE
MAGISTRATE JUDGE'S EXPLANATION OF PROCEDURAL RIGHTS AND
RESPONSIBILITIES FOLLOWING RECOMMENDATION, AND
FINDINGS CONCERNING NEED FOR TRANSCRIPT
l. Objection. Any party who objects to this recommendation or anything in it must, within fourteen (14) days of the date of service of this document, file specific written objections with the Clerk of this court. Failure to do so will bar a de novo determination by the district judge of anything in the recommendation and will bar an attack, on appeal, of the factual findings of the Magistrate Judge. See 28 U.S.C. § 636(b)(1)(C); Lewis v. Smith, 855 F.2d 736, 738 (11th Cir. 1988); Nettles v. Wainwright, 677 F.2d 404 (5th Cir. Unit B, 1982) (en banc). The procedure for challenging the findings and recommendations of the Magistrate Judge is set out in more detail in SD ALA LR 72.4 (June 1, 1997), which provides that:
A party may object to a recommendation entered by a magistrate judge in a dispositive matter, that is, a matter excepted by 28 U.S.C. § 636(b)(1)(A), by filing a 'Statement of Objection to Magistrate Judge's Recommendation' within ten days15 after being served with a copy of the recommendation, unless a different time is established by order. The statement of objection shall specify those portions of the recommendation to which objection is made and the basis for the objection. The objecting party shall submit to the district judge, at the time of filing the objection, a brief setting forth the party's arguments that the magistrate judge's recommendation should be reviewed de novo and a different disposition made. It is insufficient to submit only a copy of the original brief submitted to the magistrate judge, although a copy of the original brief may be submitted or referred to and incorporated into the brief in support of the objection. Failure to submit a brief in support of the objection may be deemed an abandonment of the objection.
A magistrate judge's recommendation cannot be appealed to a Court of Appeals; only the district judge's order or judgment can be appealed.
2. Transcript (applicable Where Proceedings Tape Recorded). Pursuant to 28 U.S.C. § 1915 and FED. R. CIV. P. 72(b), the Magistrate Judge finds that the tapes and original records in this case are adequate for purposes of review. Any party planning to object to this recommendation, but unable to pay the fee for a transcript, is advised that a judicial determination that transcription is necessary is required before the United States will pay the cost of the transcript.