Opinion
5:21-cv-00435-MTT-CHW
01-18-2024
LATOSHA DORSEY, as Administrator of the Estate of AMOS HUBBARD, Plaintiff, v. MICHAEL MCMUNN, DNP, and SOUTHERN HEALTH PARTNERS, INC., Defendants.
Proceedings Under 42 U.S.C. § 1983 Before the U.S. Magistrate Judge
REPORT AND RECOMMENDATION
Charles H. Weigle, United States Magistrate Judge
Before the Court is Defendants' motion for summary judgment. (Doc. 37). Plaintiff responded and argued against the motion. (Doc. 39). As discussed below, the undisputed facts show that Defendants were not deliberately indifferent to a serious medical need. For that reason, it is RECOMMENDED that Defendants' motion for summary judgment (Doc. 37) be GRANTED.
BACKGROUND
In this Section 1983 lawsuit, Amos Hubbard, then a pro se inmate, sued medical service providers at Butts County Detention Center and Southern Health Partners, Inc. (SHP) in August 2021. (Doc. 1). Deliberate indifference claims against Defendant Dr. McMunn and SHP were permitted to move forward. (Docs. 4, 12). The facts underlying Plaintiff's claims arose in early 2021, when he alleged that Dr. McMunn discontinued his nerve medication. He also alleges that Dr. McMunn reduced his insulin dosage and failed to treat his foot issues. In addition to the deliberate indifference claims against Dr. McMunn, the Court also allowed Plaintiff's claims to proceed against SHP for having a policy that limited the distribution of pain relievers to every thirty days, which prevented treatment of his toothache. See (id.)
Plaintiff died in custody on August 20, 2022. (Docs. 21, 37-3). Following Mr. Hubbard's death, counsel entered an appearance on behalf of Mr. Hubbard (Doc. 20), and Plaintiff's administrator, Latasha Dorsey, was substituted as the plaintiff. (Doc. 36).Following a period of re-opened and extended discovery (Doc. 32), Defendants move for summary judgment. (Doc. 37).
“Plaintiff” in the recommendation will refer to Mr. Hubbard unless otherwise noted.
Defendants previously moved for summary judgment (Doc. 25) pursuant to the original discovery schedule. After the appearance of Plaintiff's counsel, the motion was terminated without prejudice to permit an extended discovery period. (Doc. 32).
Potential Claims or Damages Related to Mr. Hubbard's Death
Defendants' motion raises concerns that Plaintiff's discovery responses demonstrate an intent by Ms. Dorsey, in her capacity as the administrator of Plaintiff's estate, to seek wrongful death damages. (Doc. 37-1, p. 19-20; 37-4, ¶ 18). Plaintiff's responsive materials, however, demonstrate that Ms. Dorsey is attempting to pursue damages associated with claims raised in Mr. Hubbard's original complaint. (Doc. 39-1, ¶ 59). Notwithstanding the issue of standing raised by Defendants, the only claims before the Court are those that survived screening of the original complaint. (Docs. 1, 4, 12).
Abandoned Claims
The procedural history portion of Plaintiff's response brief acknowledges all the claims that survived screening (Doc. 39, p. 3), but substantively, the brief and response to Defendants' statement of material facts challenge only a failure to treat Plaintiff Hubbard's foot issues and SHP's alleged pain medication policy. See (Docs. 39; 39-1). Plaintiff goes so far as to label several paragraphs concerning Plaintiff's “nerve medication,” which the record shows was Gabapentin, also known as Neurontin, and insulin administration as “undisputed but immaterial” or “disputed but immaterial.” See, e.g., (Doc. 39-1, ¶¶ 9, 13-17, 23-24, 26). Due to Plaintiff's failure to brief, much less challenge, matters concerning Dr. McMunn's decision to discontinue or alter the administration of Plaintiff's nerve medication and insulin, these claims should be deemed abandoned and should be DISMISSED. See Morgan v. Ga. Power Co., 2008 WL 372465, *2 (M.D. Ga. Feb. 11, 2008) (dismissing claims at summary judgment stage when plaintiff presented no evidence and made no arguments for them in his brief). Therefore, the only remaining claims before the Court concern the treatment of Plaintiff's foot condition and the SHP policy relating to the administration of pain medication.
Even if these claims were not deemed abandoned, the claims would still not survive summary judgment. As noted, Plaintiff's response demonstrates that no genuine disputes of material fact remain regarding these claims. However, even if they were disputed, the record shows that the decisions to discontinue or change Plaintiff's medications were based on Dr. McMunn's medical judgment, and as discussed more fully herein, a difference of opinion as to treatment cannot serve as the basis for a deliberate indifference claim.
SUMMARY JUDGMENT STANDARD
Pursuant to Rule 56 of the Federal Rules of Civil Procedure, summary judgment is proper “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). The party moving for summary judgment bears the burden of informing the Court of the basis for its motion, and of citing “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,” that support summary judgment. Celotex Corp. v. Catrett, 477 U.S. 317, 32224 (1986). In resolving motions for summary judgment, the Court must view the evidence in the light most favorable to the non-moving party. Tolan v. Cotton, 572 U.S. 650, 657 (2014). However, “[i]nferences based on speculation and a mere scintilla of evidence in support of the nonmoving party will not suffice to overcome a motion for summary judgment.” Brown v. Wrigley Mfg. Co. LLC, 2023 WL 2386500, *3 (11th Cir. 2023) (string citation omitted).
RELEVANT FACTS
Dr. McMunn is a doctor of nursing practice who works for SHP, a company that contracts with jails to provide medical services to inmates. (Docs. 39-1, ¶¶ 1, 2). For the time relevant to Plaintiff's complaint, SHP held a contract to provide medical services at Butts County Detention Center (BCDC), where Plaintiff was housed as a federal pre-trial detainee. (Id., ¶ 2); See (Doc. 1; Deposition of Defendant McMunn, Doc. 41-1, p. 23). Dr. McMunn visited BCDC once per week either in-person or through virtual visits. (Doc. 39-1, ¶ 3). The jail was otherwise staffed with nurses and a medical team administrator who provided more of the day-to-day services. (Id., ¶ 5). These providers triaged inmate medical requests and prepared a list of inmates to see Dr. McMunn. (Id.) If outside referrals or specialists were needed for an inmate's condition, Dr. McMunn could refer an inmate for that care. (Id., ¶ 4).
Where a fact is undisputed, Plaintiff's response to Defendants' statement of undisputed facts is cited for efficiency.
The page numbers reference the specific transcript pages, which appear four per page on the document.
Plaintiff suffered from several ailments, which were further complicated by high blood pressure, kidney disease, diabetes, obesity, and diet challenges. (Id., ¶ 6). This fact summary highlights the treatment that is most germane to Plaintiff's claims, but the record demonstrates that Plaintiff received extensive medical treatment while he was housed at BCDC. See generally (Docs. 28 through 28-11). The treatment record shows that Plaintiff received referrals to and was under the care of several specialists including a cardiologist, nephrologist, gastroenterologist, podiatrist, ophthalmologist, and dentist. See generally (id.) Plaintiff was prescribed numerous medications. See, e.g., (Doc. 28, p. 1-9, 16). Jail staff medical regularly took Plaintiff's blood pressure, monitored his blood sugar, and administered his prescribed insulin. See, e.g., (Doc. 28, p. 40-41; Docs. 28-8, p. 50-51, 53; 28-9, p. 10, 15, 47; 28-10, p. 3, 5, 7). He routinely had lab work to monitor his condition generally, to check the efficacy of his medications, and in preparation for appointments with various specialists. See, e.g., (Docs. 28, p. 18-23, 58-61; 28-8, p. 24-27, 33-38; 28-9, p. 6-8).
Two of the medical issues Plaintiff confronted that are germane to the complaint are foot problems and tooth issues. In his complaint, submitted on August 24, 2021, Plaintiff stated that since February 1, 2021, “it feels like I'm walking on little pieces of broken glass, and there's the intense stabbing pain that feels like someone is inside my feet and trying to cut its way out....” (Doc. 1, p. 6). He alleged that he had never seen a doctor or been examined by Dr. McMunn, but that anyone who looked at his feet could see that he needed attention as a diabetic. (Id., p. 7). Plaintiff related this pain to his nerve medication being discontinued. (Id., p. 6). He made similar complaints in a March 9, 2021 medical request in which he noted that his nerve pain was worse since not receiving his medication. (Doc. 28-4, p. 21-22).
In this medical request, Plaintiff acknowledges that he saw Dr. McMunn on February24, 2021, and complained that “the nerve pain medicine I had been taking since 2003 was just stopped when SOUTHERN HEALTH PARTNERS took over.” Id. Dr. McMunn has testified by affidavit that the nerve medicine Plaintiff is referring to is gabapentin, also known as Neurontin. (Doc. 253, ¶ 14). Dr. McMunn explains his reason for discontinuing gabapentin:
Gabapentin is an anti-convulsant medication that is only FDA approved for treatment of partial seizures and post-herpetic neuralgia (nerve pain after shingles).
While gabapentin is sometimes prescribed to treat peripheral diabetic neuropathy, this is an off-label use that has not been approved by the FDA. Gabapentin has a variety of potentially harmful side effects and risk factors, and carries a significant risk of misuse or abuse. It is a controlled substance in several states. As such, it is my practice only to prescribe gabapentin to patients who have been diagnosed with one of the FDA-approved indications. Because Mr. Hubbard had not been diagnosed with either of these conditions, I made the treatment decision to discontinue his gabapentin prescription. I believed at the time, and still believe, that this decision was in Mr. Hubbard's best interest.Id.
Many of Plaintiff's complaints about Dr. McMunn's care appear to stem from his dissatisfaction with Dr. McMunn's decision to discontinue the prescription for gabapentin. (Doc. 28-4, p. 22; 283, p. 32; 28-3, p. 37).
In a separate claim, Plaintiff described the condition of his feet, stating that his “toenails look like talons [so that they] push against the floor, my shoes, or slides when I walk causing more pain to feet that already hurt.” (Doc. 1, p. 8). Plaintiff stated that the nail of his right big toe grew so long that it “cracked in the middle of my toe, it bled, I reported it, but nothing was done. Days later.. .the nail that was cracked broke off, and it still was days later before I was seen....” (Id., p. 9). Plaintiff's record shows that he complained about this condition in medical requests dated April 30, 2021 (Doc. 28-3, p. 8), and May 2, 2021. (Id., p. 7). Non-party provider Nurse Sawyer saw Plaintiff on May 3, 2021, where she noted Plaintiff's complaint of “right great toenail broken with pain.” (Doc. 39-17). She saw no signs of infection, observed all Plaintiff's toenails to be excessively long with thickness underneath, and stated that she trimmed Plaintiff's nails. (Id.) Plaintiff saw Dr. McMunn on August 11, 2021, for a chronic care visit, but notes do not reflect any observations about Plaintiff's feet, except a notion suggesting that Plaintiff's uric acid and glucose levels were elevated. (Doc. 28-3, p. 15).
Although Plaintiff submitted his complaint on August 24, 2021, much of the information discussed hereafter and in the parties' briefs concerns treatment that occurred after Plaintiff filed his complaint. In October 2021, Plaintiff's nephrologist, Dr. Reddycheria, referred Plaintiff to see a podiatrist and other specialists. (Doc. 28-8, p. 29). Dr. McMunn completed the referral (Id., p. 20), and an appointment was scheduled for November 10, 2021. (Doc. 28, p. 21). The podiatrist, Dr. Shaheed, noted that Plaintiff's toenails were discolored, elongated, and thick. (Doc. 28-7, p. 54). No infection was present. (Id.) Procedure notes show that Dr. Shaheed performed a debridement of Plaintiff's toenails, meaning that “the thickness of the whole nail was reduced down to a level just about the skin manually and/or through the use of an electric grinder. The nails were reduced through their entire thickness.” (Id., p. 55). Dr. McMunn reviewed and signed the notes from the podiatry appointment. (Docs. 28-7, p. 52; 28-8, p. 20; 41-1, p. 24). The notes on the returned referral form explained the treatment that Plaintiff received with directions that Plaintiff's creatine levels and uric acid levels should be monitored. (Doc. 28-8, p. 20).
On December 13, 2021, Plaintiff submitted a medical request complaint about his feet being swollen following a change in his water pill. (Doc. 28-7, p. 2). On December 30, 2021, he wanted to know “what the foot doctor report was.” (Doc. 28-6, p. 47). Plaintiff again requested the name of his foot doctor on March 17, 2022, but he made no complaints about his foot condition. (Doc. 28, p. 42). On that same date, however, he submitted a second medical request complaining about gout and nerve pain and potential surgery to restore circulation. (Id., p. 43). An undated note reflects a need to call an outside provider regarding a vascular surgery appointment, (Id., p. 44), which appears to refer to a February 2022 recommendation from Dr. Reddycheria. (Id., p. 45). An appointment was scheduled for March 22, 2022. (Id., p. 49). No other medical request from Plaintiff about the condition or appearance of his feet appears in the record.
Dr. McMunn saw Plaintiff on December 6, 2021, for a hospital follow-up visit. (Doc. 288, p. 12). He then next saw Plaintiff for a chronic care visit on February 11, 2022. See, e.g., (Doc. 41-1, p. 80, 81). Dr. McMunn explained that a diabetic foot exam would have been done in the course of a chronic care visit, but the parties agree that Dr. McMunn did not make any notations about Plaintiff's feet at this visit. (Id., p. 80, 82, 84; Doc. 28, p. 63). The notes reflect that Plaintiff's bloodwork was reviewed. (Doc. 28, p. 63). Dr. McMunn explained this was likely the last time he saw Plaintiff because chronic care visits occur in six-month intervals. See, e.g., (Doc. 41-1, p. 29, 44, 80).
Plaintiff submitted photos of his feet and lower legs taken on June 6, 2022, by the attorney representing him in his criminal matter. (Doc. 39-12). They show that Plaintiff's toenails were long, his right toenail appeared to be cracked and broken, and his skin was thickened. The attorney, Mrs. Jones, stated that Plaintiff complained about his feet not being cared for, but she did not place a time frame on his complaints. (Id, p. 3). Plaintiff also submitted the affidavit of one of Plaintiff's fellow inmates, Albert Ross, who described his observations of Plaintiff's feet and general condition. (Doc. 39-13).
Treatment of Plaintiff's Toothache Complaints
A claim for deliberate indifference was also permitted to proceed against SHP to the extent it had a policy that limited pain medication distribution to once per 30 days. (Docs. 4, 12). Plaintiff alleged that he was unable to receive any pain medication, such as Tylenol or ibuprofen, for 30 days for a toothache because he had received Tylenol a week prior. (Doc. 1, p. 13). He stated he was only permitted to have Orajel, which only relieved his pain for thirty minutes after use. (Id.)
The record demonstrates that Plaintiff submitted medical requests concerning tooth pain. The first one submitted on August 1, 2021, stated that he needed a tooth pulled and the pain had started back that morning. (Doc. 28-9, p. 18). He requested to be seen immediately because the left side of his head was hurting. (Id.) A nurse note from August 2, 2021, states that Plaintiff would be scheduled for a sick call. (Id.) The sick call shows that Plaintiff was seen the same day by nonparty provider Nurse Sawyer, who noted that Plaintiff's tooth, number 14, was decayed and broken. (Docs. 39-15, 39-16). Plaintiff was prescribed two 500mg acetaminophen tablets two times a day from August 2 to August 9, 2021. (Doc. 37-5, ¶ 27). He was also prescribed amoxicillin. (Docs. 39-15, 39-16).
Plaintiff submitted another medical request on August 10, 2021, stating that he still had a toothache from the broken tooth and complained that the medicine should have been provided until his dentist visit. (Doc. 28-9, p. 16). Plaintiff was seen by Dr. McMunn on August 11, 2021, for a chronic care visit, but no notes were made about Plaintiff's toothache. See (id., p. 17). However, the record shows that Dr. McMunn prescribed Orajel beginning August 11, 2021 through August 18, 2021. (Doc. 28, p. 9). Plaintiff completed another medical request on August 13, 2021, complaining that the Orajel was not working and he needed something else for pain. (Id., p. 14). Non-party provider Nurse Honea saw Plaintiff on August 13, 2021, and noted that Plaintiff's “left upper molar is broken off, [patient] on list to see dentist...” (Doc. 39-15). She also noted that “[patient] has already been on Tylenol in the last 30 days and is not eligible to start dental pain protocol due to this reason. Orajel will continue as ordered until [patient] sees dentist on Monday.” (Id.) A dentist saw Plaintiff on August 18, 2021, and extracted a tooth. (Id., p. 12) (noting “Ext'd #15”).
After Plaintiff filed his complaint, he submitted another medical request about a toothache, this time regarding a bottom tooth, and requested to see the dentist. (Doc. 28-9, p. 11). He submitted a second medical request on September 27, 2021. (Doc. 28-9, p. 9). Non-party provider Nurse Blevins noted that Plaintiff had a cracked tooth and started him on two 325 mg Acetaminophen tablets twice per day between September 28 and October 4, 2021, and amoxicillin between September 28 and October 7, 2021. (Doc. 39-15). The dentist attempted to extract tooth number 17 on October 6, 2021, but Plaintiff could not tolerate the procedure. (Doc. 28-8, p. 52).
ANALYSIS
Plaintiff claims that Dr. McMunn failed to treat the condition of his feet and the SHP had a policy that prevented him from receiving pain medication for his toothache. As discussed below, the undisputed facts show that no Defendant demonstrated deliberate indifference to a serious medical need. Defendants are entitled to summary judgment.
Deliberate Indifference Standard
To establish a deliberate indifference claim,Plaintiff “must establish (1) a serious medical need; (2) [Defendants'] deliberate indifference to that need; and (3) causation between that indifference and the plaintiff's injury.” Ross v. Corizon Med. Servs., 700 Fed.Appx. 914, 916 (11th Cir. 2017) (citing Mann v. Taser Int'l Inc. 588 F.3d 1291, 1306-1307 (11th Cir. 2009)). As explained in the Court's screening order (Doc. 6), 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.” Farrow v. West, 320 F.3d 1235, 1243 (11th Cir. 2003) (internal quotations and citations omitted). “The medical need must be one that, if left unattended, poses a substantial risk of serious harm.” Id.; see also Mann, 588 F.3d at 1307 (explaining that a delay which worsens the condition can also be a serious medical need). As to the second prong, “[P]laintiff must demonstrate ‘(1) subjective knowledge of a risk of serious harm; (2) disregard of that risk; (3) by conduct that is more than mere negligence.'” Id. (citing McElligott v. Foley, 182 F.3d 1248, 1255 (11th Cir. 1999)). “Conduct that is more than mere negligence includes: (1) grossly inadequate care; (2) a decision to take an easier but less efficacious course of treatment; and (3) medical care that is so cursory as to amount to no treatment at all.” Bingham v. Thomas, 654 F.3d 1171, 1176 (11th Cir. 2011), “Disagreement over a matter of medical judgment does not constitute cruel and unusual punishment.” Harris v. Leder, 519 Fed.Appx. 590, 596 (11th Cir. 2013) (citing Estelle v. Gamble, 429 U.S. 97, 107 (1976)).
While Plaintiff was a pre-trial detainee whose deliberate indifference claims arise under the Fourteenth Amendment, the same standard applies as with an Eighth Amendment deliberate indifference claim. See, e.g., Burnette v. Taylor, 533 F.3d 1325, 1330 n. 4 (11th Cir. 2008).
In May 2023, an Eleventh Circuit panel decision recognized an inconsistent panel split between using “mere negligence” and “gross negligence” in the deliberate indifference standard before finding that “gross negligence” should be correct. Wade v. McDade, 67 F.4th 1363, 1374 (11th Cir. 2023). However, the Court decided to hear the case en banc and the panel decision was vacated. Wade v. Georgia Correctional Health, LLC, 83 F.4th 1332 (11th Cir. 2023). Therefore, this recommendation cites the “mere negligence” language used in the screening order.
1. The record does not show that Dr. McMunn was deliberately indifferent to Plaintiff's foot condition.
Plaintiff maintains that Dr. McMunn was deliberately indifferent to the condition of his feet based upon the poor condition of Plaintiff's feet described in his complaint, Plaintiff's allegations that he never saw Dr. McMunn, Plaintiff's cellmate's description of Plaintiff's feet and attempts to get help, and photos from June 6, 2022, that show the condition of his feet. Plaintiff argues that these factors coupled with Dr. McMunn's deposition testimony would authorize a jury to find that Dr. McMunn was deliberately indifferent and failed to treat Plaintiff's feet. The record does not establish that Dr. McMunn was deliberately indifferent or failed to treat Plaintiff's foot condition as alleged.
Assuming that the condition of Plaintiff's feet constituted a serious medical condition, the record does not establish that Dr. McMunn was subjectively aware of the condition of Plaintiff's feet and that he disregarded that risk with more the merely negligent conduct. Plaintiff attempts to establish Dr. McMunn's subjective awareness of Plaintiff's foot condition through both objective and subjective means. To establish an objective component, Plaintiff argues that anyone would have realized Plaintiff needed treatment had they seen his feet and submit Plaintiff's description of his feet in the complaint, the June 2022 photos, and Mr. Ross's affidavit as proof. (Doc 39, ¶¶ 12, 14-16). This information, however, does not establish the subjective knowledge component such that Dr. McMunn knew about Plaintiff's foot condition and subsequently failed to treat or to facilitate treatment for Plaintiff's feet.
Plaintiff argues that Dr. McMunn subjectively knew or should have known about Plaintiff's foot condition because Dr. McMunn saw Plaintiff several times because of his foot pain. (Doc. 39, ¶ 13, 17), but his argument misconstrues Dr. McMunn's testimony. The cited testimony instead states that Dr. McMunn was aware that Plaintiff submitted sick calls or medical requests related to pain and how those sick calls are triaged. (Id., ¶ 17). He explained that he saw Plaintiff several times, but not necessarily in context of treating Plaintiff's foot condition or pain. (Doc. 41-1, p. 26). He also testified that he is aware of Plaintiff's medical requests because he reviewed the medical record to prepare his affidavit (Id., p. 57). He was also aware that Plaintiff submitted medical requests about his feet in April and May 2021 for the same reason. (Id.) He explained that he did not see Plaintiff as result of those requests (Id.), but a nurse treated Plaintiff and trimmed his nails in response. (Doc. 39-17). Plaintiff attempts to equate Dr. McMunn's review of the medical record for this purpose to him having real time knowledge of Plaintiff's foot condition, but there is no suggestion this established the requisite knowledge needed for a deliberate indifference claim.
Plaintiff submitted the affidavit of Albert Ross, Plaintiff's cellmate, to show that Plaintiff repeatedly sought treatment about his feet and described their condition. (Doc. 39-13). Mr. Ross states that Plaintiff tried to get medical help at pill call or at mealtimes. (Id., p. 4). To the extent Plaintiff attempts to show this meant that Dr. McMunn should have known about Plaintiff's foot condition, that argument fails. At best, this shows that Plaintiff complained about his feet to some jail staff members, and maybe even nursing staff. However, “imputed or collective knowledge cannot serve as the basis for a claim of deliberate indifference.” Burnett v. Taylor, 533 F.3d 1325, 1331 (11th Cir. 2008).
Plaintiff next asserts that Dr. McMunn should have known about Plaintiff's foot condition from his review of the November 2021 podiatry record followed by a chronic care exam in February 2022, where he should have completed a diabetic foot exam. (Doc. 39). Plaintiff appears to argue, without support, that Dr. McMunn had a duty not only to review the podiatrist's records but also to check behind the podiatrist to make sure Plaintiff was treated, but there is no evidence in the record to suggest such a follow-up was required. (Doc. 39, ¶ 27). Moreover, Dr. McMunn's uncontroverted testimony is that he reviews the records when an inmate returns from an outside referral and the standard of care does not provide that he must then re-exam the patient. (Doc. 41- 1, p. 49-51, 57-59). Dr. McMunn explained that if something was not treated, and the inmate still needed care, the inmate would fill out a medical request. (Id., p. 51). The record shows that Plaintiff did submit medical requests after the podiatry visit, but nothing in those requests would have alerted medical staff that the podiatrist failed to treat Plaintiff. Instead, he complained that he needed a water pill that had been changed by the hospital (Doc. 28-7, p. 2), that he wanted to know what the report from the foot doctor was (Doc. 28-6, p.47), and that he wanted to the name of the foot doctor. (Doc. 28, p. 42). He did not complain that the podiatrist failed to treat him.
Plaintiff also points to a note in the “patient education” portion of Dr. Shaheed's note about the importance of diabetic feet exams to suggest Dr. McMunn would have known about Plaintiff's condition and should have seen Plaintiff more frequently, but again, there is no support for this argument in the record. Plaintiff also argues that Dr. McMunn should have known about Plaintiff's foot condition from a February 2022 chronic care exam. Dr. McMunn explained he would have done a diabetic foot care exam as a matter of course and that Plaintiff's feet must not have been concerning given the lack of notation. (Doc. 39, ¶ 22). Plaintiff argues that the lack of notes demonstrates a failure to care for Plaintiff's feet, but again this argument assumes that Plaintiff's feet looked the same as they did in June 2022 and that his feet required specific treatment beyond the general diabetic bloodwork and medication review that Dr. McMunn performed. Such speculation is not permissible to overcome summary judgment. The record does not show that Dr. McMunn failed to care for Plaintiff's foot condition either after the podiatry appointment or at the chronic care visit.
The record also undermines other portions of Plaintiff's claims that he went untreated. For example, Plaintiff alleged in his complaint that he had not seen Dr. McMunn at all (Doc. 1, p. 7), but he had a chronic care visit on August 11, 2021 a few days before he signed the complaint. (Docs. 1; 28-9, p. 17). Plaintiff now argues that he received no care after the May 2, 2021 medical request about his feet, but he was seen the next day, the same date that the request was processed. (Doc. 28-3, p. 7; Doc. 39-17). The fact that a nurse instead of Dr. McMunn saw Plaintiff at this visit does not establish that Plaintiff received no treatment. Plaintiff further argues that the condition of his feet in June 2022 meant that he received no treatment in November 2021, and he cites to Dr. McMunn's deposition in support. (Doc. 39, ¶ 23-25). However, Dr. McMunn's testimony that there was more growth than expected or that the procedure may not have been done correctly does not demonstrate that Dr. McMunn failed to provide care for Plaintiff. Plaintiff was referred to a nephrologist, who referred Plaintiff to a podiatrist, then Dr. McMunn completed that referral, and the record shows Plaintiff went to the podiatrist who provided treatment based upon the notes that Dr. McMunn reviewed. This testimony does not create an issue of fact that would overcome summary judgment.
Ultimately, Plaintiff's opposition to summary judgment assumes that his feet remained unchanged from the time Plaintiff submitted medical requests in April and May 2021 to when he commenced this suit in August 2021 to the November 10, 2021 podiatry appointment to the June 2022 photos, and that Plaintiff received no treatment for over one year. However, Plaintiff's reliance on this timeline involves a great deal of speculation that, as discussed above, is belied by the record. Speculation cannot overcome a motion for summary judgment. Plaintiff has not shown that Dr. McMunn was subjectively aware of Plaintiff's foot condition, but even if he were, the record does not show that Plaintiff went untreated as alleged or that the care he received amounted to no care at all. Defendant McMunn is entitled to summary judgment.
2. The record does not support a deliberate indifference claim against SHP.
Plaintiff alleged that SHP had a policy that he could only receive pain reliever, such as Tylenol or ibuprofen, once every 30 days, and because he received Tylenol the week prior, he could not receive more for his toothache pain. (Doc. 1, p. 13). Plaintiff's complaint also explains that he received Orajel but that it was not completely treating his pain. (Id.) It is undisputed that Plaintiff had a toothache in August 2021, was prescribed a course of Tylenol and amoxicillin, and complained about the pain again before he could see a dentist. At this second visit on August 13, 2021, Nurse Honea noted “[patient] has already been on Tylenol in the last 30 days and is not eligible to start dental pain protocol due to this reason. Orajel will continue as ordered until patient sees dentist on Monday.” (Doc. 39-15). Plaintiff argues that this notation alone creates a jury issue as to whether SHP had a policy as Plaintiff alleged and this policy caused his pain to go untreated. As discussed below, the record does not show that such a policy existed or that his pain was ignored.
Aside from the existence of any pain administration policy, Plaintiff also attempts to show that SHP was deliberately indifferent to his toothache pain because he went from August 2, 2021, until October 6, 2021, before the tooth was extracted. (Docs. 39, p. 18; 39-1, ¶ 30). A delay of treatment is not the basis of Plaintiff's claim against SHP and maintaining such a claim would have required an amended complaint. Even if Plaintiff intended to cite a delay of treatment to support his actual claim against SHP, the record does not show that a two-month treatment delay occurred for the tooth Plaintiff complained about in August. Upon review of the record, Plaintiff and Defendants misconstrue Plaintiff's dental treatment because Plaintiff's August and September toothache complaints concern different teeth. Notes from SHP staff say that Plaintiff's number 14 tooth or a left upper tooth was broken in August 2021. (Docs. 39-15, 39-16). The dentist's notes from August 18, 2021, indicate that he extracted number 15, which according to the diagram is next to 14 and an upper tooth. (Doc. 28-9, p. 12). Plaintiff then submitted medical requests on September 2 and 27, 2021, complaining about a bottom tooth. (Doc. 28-9, p. 9, 11). The medical request notes from September reflect complaints about a lower back tooth or tooth number 19. (Doc. 39-15). The tooth the dentist tried to extract on October 6, 2021, was number 17, which is a bottom tooth according to the diagram. (Doc. 28-8, p 52). The parties appear to agree that Plaintiff had tooth number 17 extracted on October 6, 2021, but the notes clearly state that Plaintiff could not tolerate the procedure and “extracted #17” is scratched out. (Docs. 28-8, p. 52; 39-1, ¶ 30). Ultimately, this discrepancy about which tooth was the source of Plaintiff's pain and whether a tooth was extracted in October 2021 are immaterial because they do not establish whether SHP had a policy limiting pain medication, which is the actual claim before the Court.
In conjunction with the general deliberate indifference standard, to maintain a claim against a contract provider like SHP, Plaintiff “must show that [SHP] has a policy or custom that contributed to the alleged deficiencies in treatment.” Massey v. Montgomery Co. Det. Facility, 646 Fed.Appx. 777, 780 (11th Cir. 2016) (citing Monell v. Dept. Soc. Servs., 436 U.S. 658, 691 (1978)). Plaintiff points to nothing in the record other than Nurse Honea's plan notes from the August 13, 2021 sick call to show SHP had a policy to administer pain medication only once per 30 days and argues that a jury could infer that such a policy existed and caused Plaintiff to suffer unnecessary pain. (Doc. 39, p. 18). However, Defendants presented unrefuted evidence that no such blanket policy existed. Dr. McMunn explained that SHP did not have policy as Plaintiff alleged. (Doc. 412, ¶ 5). Instead, he explained that there are medical risks to overuse of pain relievers and staff are educated as to those risks. (Id.) Plaintiff offers no counter to this explanation other than speculation from the nurse's August 13, 2021 treatment note. Speculation is not enough to overcome summary judgment.
From the record, it appears that some type of dental protocol existed for when an inmate had a toothache, and in Plaintiff's case, that protocol involved prescribing Tylenol and amoxicillin. It is also undisputed that Plaintiff was scheduled to see the dentist. In the intervening time, his pain was not ignored. He was prescribed Orajel, which Dr. McMunn maintained was the safest option for someone with Plaintiff's health issues. (Doc. 41-2, ¶ 8). Plaintiff argues that Tylenol could have been prescribed when the Orajel was less effective, (Doc. 39-1, p. 20), but that belief or disagreement is also not enough to establish deliberate indifference. Harris, 519 Fed.Appx. at 596. (explaining “[d]isagreement over a matter of medical judgment does not constitute cruel and unusual punishment.”) Nothing suggests the decision to not prescribe additional Tylenol on August 13, 2021 was grossly inadequate, easier but less effective compared to other treatments, or amounted to no treatment at all. Bingham, 654 F.3d at 1176. Instead, the undisputed record, even construed favorably to Plaintiff, shows that his complaints of pain were not ignored, he received an initial round of Tylenol and amoxicillin, received Orajel, was seen again when he complained about the pain, and was scheduled to see the dentist. There is no suggestion that a policy caused his pain to be ignored because he did not receive the pain reliever he requested. Plaintiff's speculation and extrapolation from one treatment note does not establish that that SHP had a policy that led to the deliberate indifference of Plaintiff's tooth pain.
CONCLUSION
Because the undisputed facts do not support Plaintiff's deliberate indifference claims, it is RECOMMENDED that Defendants' motion for summary judgment (Doc. 37) be GRANTED.
OBJECTIONS
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 thereof. Any objection is limited in length to TWENTY (20) PAGES. See M.D. Ga. L.R. 7.4. 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 further 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.