Opinion
5:22-CV-00436-TES-MSH
05-13-2024
JASON ALAN EARLS, Plaintiff, v. SHERIFF LEONARD JOHNSON, Defendant.
REPORT AND RECOMMENDATION
STEPHEN HYLES UNITED STATES MAGISTRATE JUDGE
Pending before the Court is Defendant's motion for summary judgment (ECF No. 20). For the reasons explained below, it is recommended that Defendant's motion be granted.
PROCEDURAL BACKGROUND
Plaintiff Jason Alan Earls's claims arise from his confinement at the Macon County Jail (“MCJ”) in Oglethorpe, Georgia. Recast Comp. 3, ECF No. 1. Earls alleges he was detained in MCJ for over three years and during that time, Defendant-the Sheriff of Macon County-was deliberately indifferent to his serious medical needs by not providing appropriate medical care for his diabetes. Id. at 5. He contends he was never given finger stick tests and “rarely” his medication. Id. As a result, Earls claims he suffered “nerve damage in [his] hands and feet, stage 3 kidney failure, diabetic retinopathy, and heart issues” from his worsened diabetes. Id. at 7. After preliminary screening, Earls's Eighth Amendment deliberate indifference to a serious medical need claim against Defendant was allowed to proceed for further factual development. Order & R. 9, Feb. 28, 2023, ECF No. 9; Order 2, Mar. 21, 2023, ECF No. 13 (adopting recommendation). Defendant timely answered (ECF No. 16) on May 19, 2023, and then moved for summary judgment on September 29, 2023 (ECF No. 20). Earls responded to the motion (ECF No. 23), and Defendant filed a reply brief on November 3, 2023 (ECF No. 26). The Court held an evidentiary hearing on January 23, 2024 (ECF Nos. 40, 42). Following the hearing, Defendant moved for leave to file a supplemental brief (ECF No. 43), which the Court granted (ECF No. 44). Defendant filed his supplemental brief (ECF No. 45) on February 14, 2024, Earls responded (ECF No. 55), and Defendant filed a supplemental reply (ECF No. 57). Defendant's motion for summary judgment is ripe for review.
DISCUSSION
Defendant moves for summary judgment, contending 1) Earls failed to exhaust his administrative remedies, 2) Defendant is entitled to qualified immunity, and 3) Defendant is entitled to Eleventh Amendment immunity for claims against him in his official capacity. Def.'s Br. in Supp. of Mot. for Summ. J. 3-8, ECF No. 20-1; Def.'s Suppl. Br. 2-8, ECF No. 45. The Court will first address exhaustion as it is a “threshold matter” that must be decided prior to considering the merits of the case. Chandler v. Crosby, 379 F.3d 1278, 1286 (11th Cir. 2004).
I. Exhaustion of Administrative Remedies
A. Exhaustion Standard
The Prison Litigation Reform Act (“PLRA”) provides that “[n]o action shall be brought with respect to prison conditions under section 1983 of this title . . . by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). When a grievance procedure is provided for prisoners, “an inmate alleging harm suffered from prison conditions must file a grievance and exhaust the remedies available under that procedure before pursuing a § 1983 lawsuit.” Brown v. Sikes, 212 F.3d 1205, 1207 (11th Cir. 2000) (emphasis added). “To exhaust administrative remedies in accordance with the PLRA, prisoners must properly take each step within the administrative process. If their initial grievance is denied, prisoners must then file a timely appeal.” Bryant v. Rich, 530 F.3d 1368, 1378 (11th Cir. 2008) (internal citation and quotation marks omitted). “Proper exhaustion demands compliance with an agency's deadlines and other critical procedural rules because no adjudicative system can function effectively without imposing some orderly structure on the course of its proceedings.” Woodford v. Ngo, 548 U.S. 81, 90-91 (2006).
“The level of detail necessary in a grievance to comply with the grievance procedures will vary from system to system and claim to claim, but it is the prison's requirements, and not the PLRA, that define the boundaries of proper exhaustion.” Jones v. Bock, 549 U.S. 199, 218 (2007). “The critical function of the grievance process is that it provides the institution with notice of a problem such that they have an opportunity to address the problem internally.” Toenniges v. Ga. Dep't of Corr., 600 Fed.Appx. 645, 649 (11th Cir. 2015) (per curiam).
“Because exhaustion of administrative remedies is a matter in abatement and not generally an adjudication on the merits, an exhaustion defense . . . is not ordinarily the proper subject for a summary judgment; instead, it should be raised in a motion to dismiss, or be treated as such if raised in a motion for summary judgment.” Bryant, 530 F.3d at 1374-75 (internal quotation marks omitted). Further, since dismissal for failure to exhaust is not an adjudication on the merits, the Court can resolve factual disputes using evidence from outside the pleadings. Id. at 1376. “[D]eciding a motion to dismiss for failure to exhaust administrative remedies is a two-step process.” Turner v. Burnside, 541 F.3d 1077, 1082 (11th Cir. 2008). “First, the court looks to the factual allegations in the defendant's motion to dismiss and those in the plaintiff's response, and if they conflict, takes the plaintiff's versions of the facts as true.” Id. If, taking plaintiff's facts as being true, the defendant is entitled to dismissal for failure to exhaust, then the complaint should be dismissed. Id. “If the complaint is not subject to dismissal at the first step . . . the court then proceeds to make specific findings in order to resolve the disputed factual issues related to exhaustion.” Id. The defendant bears the burden of proof during this second step. Id. In resolving the factual dispute, a Court is authorized to make credibility determinations. See Bryant, 530 F.3d at 1377-78 (finding district court did not clearly err in determining plaintiff's allegation that he was denied access to grievance forms was not credible); see also Whatley v. Smith, 898 F.3d 1072, 1082-83 (11th Cir. 2018) (upholding district court finding that one of inmate's grievances was not filed).
Such is the case here. Therefore, although Defendant argues exhaustion in a summary judgment motion, it will be treated as if raised in a motion to dismiss.
A prisoner need only exhaust administrative remedies that are available. Ross v. Blake, 578 U.S. 632, 642 (2016). In Ross, the Supreme Court held that an administrative procedure is unavailable under the PLRA when either (1) “it operates as a simple dead end-with officers unable or consistently unwilling to provide any relief to aggrieved inmates,” (2) it is “so opaque that it becomes, practically speaking, incapable of use,” or (3) “prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation.” Id. at 643-44. For a remedy to be available, it “must be capable of use for the accomplishment of its purpose.” Turner, 541 F.3d at 1084 (quotation marks omitted). District courts must use the two-step Turner analysis when addressing the availability of the grievance process. See Jenkins v. Sloan, 826 Fed.Appx. 833, 839 (11th Cir. 2020) (per curiam) (directing district courts to apply “the two-step Turner test when addressing the question of exhaustion and the availability of the grievance process”). In terms of a defendant's initial showing, Turner only requires a defendant to show a remedy is “generally available.” Wright v. Ga. Dep't of Corr., 820 Fed.Appx. 841, 845 (11th Cir. 2020) (per curiam). Once the defendant's burden is met, “the burden of going forward shifts to the plaintiff, who . . . must demonstrate that the grievance procedure was subjectively and objectively unavailable to him.” Geter v. Baldwin State Prison, 974 F.3d 1348, 1356 (11th Cir. 2020) (internal quotation marks omitted) (citing Turner, 541 F.3d at 1085).
B. Defendant's Affidavit
Defendant largely relies on his own affidavit to attempt to establish administrative remedies were available to Earls at MCJ. According to Defendant's affidavit, there is a grievance policy at MCJ that “is communicated to all inmates of [MCJ] upon their intake into the jail, and the same was communicated to [Earls] upon his intake into same.” Johnson Aff. ¶ 4, ECF No. 20-3. Defendant states under the policy, inmates are provided grievance forms, and if an inmate has a grievance he or she may fill out a grievance form and submit it to the jailer on duty, who will address the grievance. Id. ¶¶ 7-8. If the jailer cannot address the grievance, the jailer will forward it to the Sheriff. Id. ¶ 9. If the jailer fails to address the grievance or the inmate disagrees with the jailer's response, the inmate “may submit a subsequent grievance form addressed directly to the Sheriff appealing the jailer's response or lack of response to the grievance.” Id. ¶ 10. Once the Sheriff addresses the grievance, the grievance process is complete. Id. ¶ 11.
According to Defendant, the grievance process was available to Earls at MCJ, as evidenced by three grievances submitted by Earls, which are attached to Defendant's affidavit. Id. ¶ 12. One of the grievances-dated August 16, 2019-relates to Earls's medical care at MCJ. In the grievance, Earls complains about the lack of an infirmary or medical staff to handle a diabetic emergency, and he states, “It's not my job to tell any guards th[eir] duty they should know it's plainly written on my medication and half the time I do not get properly taken care of.”Johnson Exs. 1, 3, ECF No. 20-4. He also complains about sores on his ankle and foot, which Earls attributes to deliberate indifference to his status as an “insulin dependent diabetic with prior amputation.” Id. at 3. The grievance also references a letter allegedly written by a physician to Defendant threatening not to see Earls in the future if the jail did not take proper care of him. Id.
According to Earls, he filed approximately seven grievances at MCJ, and while Defendant attached three grievances to his affidavit, he does not aver those grievances were all of the grievances filed by Earl. Tr. 10:7-9, ECF No. 42; Johnson Aff. ¶ 12. However, Earls does not contend any of the other grievances he submitted addressed the issues raised in this case.
According to Earls, the grievances as submitted by Defendant are out of order. Pl.'s Resp. 5, ECF No. 23. What is attached as the third page to Defendant's exhibits should be the second page of the grievance submitted on August 16, 2019, and not the second page of a grievance submitted on August 29, 2019. Id. Based on the content of the grievances, the Court agrees Earls is correct about the proper order of the pages. The third page specifically states it was written on August 16, 2019. Johnson Exs. 3. Defense counsel only showed Earls the first page of the August 16, 2019 grievance form at the evidentiary hearing. Def.'s Hr'g Ex. 1, ECF No. 41. In any event, whenever the second page was submitted, Earls pointed out the medication issue to jail staff through the grievance process so they could investigate and address the complaint, which is the critical issue in a grievance process.
None of the grievances contain a jail officer's acknowledgement of receipt or a written response, and Defendant has submitted no evidence of a written response or record of a response-written or verbal-into the record. Defendant states that “Earls never filed an appeal beyond the initial jail officer of any grievance of the matters described in his Recast Complaint” and “[n]o such appeal addressed to the Macon County Sheriff was filed prior to [] Earls filing suit.” Johnson Aff. ¶ 13.
C. Plaintiff's Response and Evidentiary Hearing
In his response to Defendant's motion, Earls denies being told anything during intake about grievances or given a handbook explaining MCJ's procedures. Pl.'s Resp. 1. Nevertheless, he contends he followed proper procedure by filling out grievances and turning them in after he “learned [his] rights [through] the Southern Center for Human Rights.” Id. at 4. He states his grievances were not answered. Id. at 1.
The Court held an evidentiary hearing on January 23, 2024 (ECF Nos. 40. 42). Defendant did not testify and called no witnesses. Instead, defense counsel relied on Defendant's affidavit and its attached grievance forms. Tr. 5:9-13. Defense counsel admitted the grievance policy was not a written policy but one verbally communicated to inmates during intake. Id. at 4:8-11. Defense counsel further admitted Defendant did not personally brief the inmates but that it was his “understanding” an intake deputy did so. Id. at 4:16-24.
Earls was then placed under oath. Id. at 5:20. He again reiterated that when he went through intake, he was told nothing about a grievance procedure, including how to appeal a denial. Id. at 6:6-9, 8:25-9:5, 15:11-19. He said he learned of the need to file a grievance after doing his own research and receiving material from the Southern Center for Human Rights and other outside entities about what action he needed to take. Id. at 9:6-23. Defense counsel asked Earls to identify the August 16, 2019, grievance. Tr. 12:5-13:10; Def.'s Hr'g Ex. 1. Earls said he never received a response. Tr. 16:4-5. When he asked about its status, he was told he needed to fill out another one. Id. at 5-6. When asked for an appeal form, the guards would just give him the same sheet of paper. Id. at 7-9.
D. Findings of Fact as to Plaintiff's Alleged Failure to Exhaust
The Court initially finds that an administrative remedy was not generally available to Earls. Granted, this is not a finding the Court has previously made in a case addressing exhaustion, but then the Court has never been presented with an exhaustion defense anchored on an unwritten grievance procedure. It is true that grievance forms were available to MCJ inmates who asked, but the availability of grievance forms does not necessarily entail the availability of a grievance procedure. The only evidence presented by Defendant that a grievance procedure was explained to MCJ inmates is his cursory averment that “[t]he inmate grievance policy described herein is communicated to all inmates of [MCJ] upon their intake into the jail, and the same was communicated to Plaintiff Jason Earls upon his intake into same.” Johnson Aff. ¶ 4. Defendant does not state he ever witnessed such briefing, though, and it is unclear whether his “knowledge” it occurred is based on MCJ policy or actually seeing such policy carried out.
Nevertheless, the Court will assume Defendant's affidavit is admissible as routine practice evidence under Rule 406 of the Federal Rules of Evidence. See Fed.R.Evid. 406 (“Evidence of a person's habit or an organization's routine practice may be admitted to prove that on a particular occasion the person or organization acted in accordance with the habit or routine practice. The court may admit this evidence regardless of whether it is corroborated or whether there was an eyewitness.”). However, the fact that such evidence is admissible does not mean the Court is required to give it much weight. See In re Borstad, 550 B.R. 803, 838 (Bankr. D.N.D. 2016) (noting that while testimony of routine practices was admissible, the testimony lacked credibility and was unpersuasive). Here, the Court finds Defendant's affidavit unpersuasive for purposes of showing inmates were informed of grievance procedures. Prior to the evidentiary hearing, Earls explicitly challenged Defendant's contention that inmates were briefed on grievance procedures at intake. Pl.'s Resp. 1. Despite this, no jail officers testified such briefing occurred as a matter of practice, and while such corroboration is not necessary for its admission, the lack of such testimony negatively affects the credibility of Defendant's affidavit.
Further, even assuming jail staff communicated some sort of grievance policy to inmates, the requirements of the grievances themselves, what issues are grievable, whether the grievances could actually achieve some sort of resolution of an inmate's complaint, and whether the jailer or Sheriff are even required under the unwritten policy to provide an inmate with a response is unknown. The Court is not ruling that a grievance procedure necessarily needs to be in writing, but if a detention facility is going to rely on a verbal procedure, it needs to be able to show the procedure is actually functional “for the accomplishment of its purpose.” Turner, 541 F.3d at 1084 (quotation marks omitted). Here, MCJ's grievance procedure is far too nebulous to make this showing, and in fact, it appears more akin to a neglected complaint box.
Moreover, even assuming Defendant has shown a grievance procedure was generally available, Earls has sufficiently established it was objectively and subjectively unavailable to him. He testified he was never told about any grievance procedures- including appeal procedures-and the Court finds his testimony credible. While Earls filed grievances, the evidence shows it was a result of his inquiry with outside sources and not because MCJ staff advised him of his right to do so. Further, when Earls asked for an appeal form after receiving no response to a grievance, he was simply given the same form he had already filed. Tr. 16:4-9. Considering his credible testimony that he was never told how or to whom to file an appeal, there is no reason why he would believe it necessary to file the identical form twice. The Court also finds Earls's contention that he never received a response credible, and Defendant has not even attempted to present evidence of a response, whether by jail staff or Defendant himself. The officers receiving Earls's grievances did not even bother signing the grievance forms despite there being signature lines for them to do so. Johnson. Exs. 1-2, 4. Based on the record evidence, the Court concludes MCJ's alleged grievance procedure is by definition a “simple dead end” and “so opaque that it becomes, practically speaking, incapable of use.” Ross, 578 U.S. at 643.
Next, even assuming Defendant has shown some sort of grievance procedure was available to Earls at MCJ based on availability of grievance forms, the Court concludes Earls exhausted it upon filing his grievance. Defendant contends there was a two-stage process for MCJ grievances: an initial grievance and then an appeal to the Sheriff. Def.'s Br. in Supp. of Mot. for Summ. J. 4. In Defendant's motion for summary judgment, he admitted Earls completed the first stage of MCJ's purported grievance procedures by filling out grievances. Id. His argument was solely that Earls failed to complete the second step of the grievance process by appealing. Id. (“However, although Earls filled out the grievance forms at stage (1), he failed to carry through to exhaust the process by appealing to the Sheriff at the second stage.”); Johnson Aff. ¶ 13 (“However, Plaintiff Earls never filed an appeal beyond the initial jail officer of any grievance of the matters described in his Recast Complaint.”). However, at the evidentiary hearing, defense counsel argued that Earls failed to even satisfy the first step by filing an initial grievance related to his claims in this case. Tr. 3:14-18, 3:24-4:3.
To the extent Defendant maintains his contention that Earls failed to submit a grievance related to his claims in this case, the Court rejects it. The August 16, 2019, grievance states, “It's not my job to tell any guards th[eir] duty they should know it's plainly written on my medication and half the time I do not get properly taken care of.” Johnson. Exs. 3. In the context of his complaint about being insulin-dependent, this was sufficient to put jail staff on notice he was complaining about not receiving proper care for his diabetes, including medication as prescribed. Regarding the alleged second stage-an appeal to the Sheriff-the Court concludes, as discussed above, it was not a truly viable aspect of MCJ's unwritten grievance procedures available to Earls.
Therefore, the Court recommends Defendant's ground for motion for summary judgment premised on exhaustion be rejected.
II. Qualified and Eleventh Amendment Immunity
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. Statement of Facts
The submissions of the parties, viewed in the light most favorable to the non-moving party as required on summary judgment, establish the following facts. On December 21, 2018, Earls was transferred from the custody of the Peach County Jail to MCJ. Tr. 5:236:3. According to the medical records submitted by Defendant, Earls was seen by Dr. Christopher Inhulsen, M.D. the same day. MR 30, ECF No. 48-1. Dr. Inhulsen noted Earls was a diabetic who had been transferred to MCJ and had been on insulin since April 2017. Id. Earls reported never having been previously hospitalized for his diabetes. Id. He did, however, have diabetic foot issues including ulcers and a prior partial amputation. Id. Dr. Inhulsen recorded in his notes, “At the outset I ascertained that the facility at which he is housed is not able to guarantee daily FBS, with recording, nor guarantee that he will get his daily insulin.” Id. He then stated, “I wrote a letter to the powers that be at the Macon County Jail outlining basic diabetic care, and if they cannot provide it, he needs to be transferred out to another facility.” Id. at 31. Dr. Inhulsen did not perform a full review of symptoms “in anticipation of his transfer to another facility.” Id.
Despite Dr. Inhulsen's apparent belief he would be transferred from MCJ, Earls remained at MCJ for approximately three years and four months. Tr. 16:13-14. According to his unrefuted testimony, he did not receive the proper dosage of his diabetes medication while in MCJ. He stated he was supposed to take his insulin twice a day but “would be lucky to get it once a day.” Id. at 8:16-18. He testified he was not given his medication as prescribed, stating the jail gave it to him once a day when it was prescribed for every twelve hours. Id. at 21:21-22:4. He stated there were a few days when he received no medication at all. Id. at 22:6-7. Defense counsel admitted at the hearing he had no documentary evidence to contradict these contentions. Id. at 22:20-24.
After his initial visit, Earls saw Dr. Inhulsen another ten times over the course of approximately three years. On January 11, 2019-approximately three weeks after his arrival at MCJ-he reported pain in his left shoulder and bilateral nerve pain in his legs. MR 28. On April 5, 2019, he was given an eye examination that showed non-prolific diabetic retinopathy, moderate, with clinically significant macular edema in both eyes. Id. at 33. The recommendation was that he be referred to an ophthalmologist for evaluation. Id. According to a May 10, 2019, note, he saw an ophthalmologist and was scheduled for a follow-up in six months. Id. at 22. Earls apparently saw him one more time, but had no other visits. Tr. 23:25-24:4. On November 8, 2019, Earls reported to Dr. Inhulsen that “half of the time,” he only received his evening dose of insulin as opposed to his morning and evening dose as prescribed. MR 18. He raised a similar complaint on a March 13, 2020, visit. Id. at 16. Then, during an August 2, 2021, visit, Earls reported to Dr. Inhulsen he had been out of one of his diabetes medications for “a while” and taken the last of another. Id. at 10. He also reported needing a refill of his insulin. Id. Dr. Inhulsen checked with the pharmacy and found that Earls's insulin pens had only been filled “erratically.” Id. Dr. Inhulsen commented, “The question remains: which and how much of his medication is he taking.” Id. Earls's last visit with Dr. Inhulsen was on January 14, 2022- two months before he was transferred to Jackson State Prison-where his primary complaint was headaches. MR 7.
Neither party submitted Earls's prison medical records into evidence, but Earls testified at the evidentiary hearing that the failure to provide his diabetes medication as prescribed caused him to have decreased vision, neuropathy, stage 4 kidney failure, and heart problems. Tr. 23:8-24:4.
C. Qualified Immunity
Defendant contends he is entitled to qualified immunity. Def.'s Br. in Supp. of Mot. for Summ. J. 4-7. “[Q]ualified immunity offers complete protection for government officials sued in their individual capacities as long as their conduct violates no clearly established statutory or constitutional rights of which a reasonable person would have known.” Oliver v. Fiorino, 586 F.3d 898, 904 (11th Cir. 2009) (internal quotation marks omitted). A defendant seeking qualified immunity must show that, at the time of the alleged wrongful acts, “he was acting within the scope of his discretionary authority.” Id. at 905. Once this is established, “the burden then shifts to the plaintiff to show that the grant of qualified immunity is inappropriate.” Id. To do so, a plaintiff must “demonstrate: first, that the facts when viewed in a light most favorable to the plaintiff establish a constitutional violation; and, second, that the illegality of the officer's actions was clearly established at the time of the incident.” Id. (internal quotation marks omitted). Here, there is no dispute that Defendant was acting in the scope of his discretionary authority. Therefore, the Court will first address whether Earls, in a light most favorable to him, has established a constitutional violation.
“The [E]ighth [A]mendment, which applies to the states through the [F]ourteenth [A]mendment prohibits the infliction of cruel and unusual punishment .... [S]tates violate the [E]ighth [A]mendment if they are deliberately indifferent to a prisoner's serious medical needs.” Hamm v. DeKalb Cnty., 774 F.2d 1567, 1571-72 (11th Cir. 1985) (internal citations omitted). In order to prove a claim of deliberate indifference, “a plaintiff must show: (1) a serious medical need; (2) a defendant's deliberate indifference to that need; and (3) causation between that indifference and the plaintiff's injury.” Melton v. Abston, 841 F.3d 1207, 1220 (11th Cir. 2016) (per curiam). The first prong is an objective inquiry, requiring the plaintiff to prove “an objectively serious medical need.” Ireland v. Prummell, 53 F.4th 1274, 1287 (11th Cir. 2022). “A serious medical need is one that has been diagnosed by a physician as mandating treatment or one that is so obvious that even a lay person would easily recognize the necessity for a doctor's attention. In either case, the medical need must be one that, if left unattended, poses a substantial risk of serious harm.” Dang ex rel. Dang v. Sheriff, Seminole Cnty. Fla., 871 F.3d 1272, 1280 (11th Cir. 2017) (internal quotation marks and citations omitted).
The second prong is a subjective inquiry. Ireland, 53 F.4th at 1287. To establish deliberate indifference to a serious medical need, a plaintiff must prove: “(1) the official was aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, (2) the official actually drew that inference, (3) the official disregarded the risk of serious harm, and (4) the official's conduct amounted to more than gross negligence.” Id. (internal quotation marks omitted). “[M]edical treatment violates the Constitution only when it is so grossly incompetent, inadequate, or excessive as to shock the conscience or to be intolerable to fundamental fairness.” Dang ex rel. Dang, 871 F.3d at 1280 (quotation marks omitted).
The parties do not dispute Earls had a serious medical need. Def.'s Br. in Supp. of Mot. for Summ. J. 6. The parties, however, do dispute whether Defendant was deliberately indifferent to that need, and, if so, whether there was a causal connection between the indifference and Earls's injuries.
1. Deliberate Indifference
Defendant contends Earls cannot show deliberate indifference. His argument is threefold. One-citing Earls's hearing testimony-Defendant argues the evidence shows “Earls was provided with insulin at the jail. Earls was in fact given his medication.” Def.'s Suppl. Br. 7, ECF No. 45 (citing Tr. 8:16-18, 10:15-21). This argument is misleading. What Earls actually testified to at the hearing was receiving insulin medication once a day when he was supposed to get it twice a day, and there were a few occasions when he did not get any at all. Tr. 8:16-18, 21:25-22:7. Two, Earls is not qualified to testify he received an inadequate amount of insulin doses and must present expert witness. Def.'s Suppl. Br. 3. The Court disagrees. Dr. Inhulsen's medical records document that he prescribed insulin doses in the morning and evening, and Earls is certainly competent to testify he did not receive them. MR 16-18, 21. Three, Defendant provided Earls with medical care by sending him to an external third-party provider, Dr. Inhulsen. Def.'s Suppl. Br. 7; Johnson Aff. ¶ 14. But there is no evidence Dr. Inhulsen was responsible for administering or dispensing Earls's daily diabetes medication at the jail, and that is the issue in the case. Defendant cannot be suggesting that taking Earls to Dr. Inhulsen eleven times over the course of three years somehow absolved him of responsibility for providing Earls's prescribed medication.
Defendant has presented no evidence from MCJ personnel as to whether, how much, or when Earls received insulin at the jail. Defendant's own affidavit on the matter cites Earls's hearing testimony to show insulin was provided at the jail, even though Earls testified he did not get the insulin as prescribed. Johnson Suppl. Aff. ¶¶ 2-3, ECF No. 45-1. In other words, Defendant has presented no evidence he or MCJ staff complied with Dr. Inhulsen's orders, or, if they did not comply, why such deviation did not constitute deliberate indifference.
Based on the record evidence, the Court concludes there is an issue of fact as to whether Defendant was deliberately indifferent to Earls's serious medical need. As noted, Defendant does not dispute Earls had a serious medical need. Moreover “[i]t takes no medical training to understand that when a diabetic is deprived of [his or her] insulin, grave consequences follow. That fact might even be relegated to the category of common knowledge.” Naphier v. Cnty. of Genesee, No. 11-13754, 2012 WL 6652945, at *8 (E.D. Mich. Dec. 21, 2012); see Macauley v. Collier Cnty. Sheriff's Office, No. 2:21-cv-300-JLB-NPM, 2021 WL 4950254, at *6 (M.D. Fla. Oct. 25, 2021) (“It is fairly common knowledge that depriving a diabetic of insulin may be dangerous.”); Duncan v. Corr. Med. Servs., 451 Fed.Appx. 901, 905 (11th Cir. 2012) (per curiam) (reversing summary judgment for jail medical provider who failed to provide an inmate with his prescribed medications for extended periods of time); Chapman v. Santini, 805 Fed.Appx. 548, 551, 554-57 (10th Cir. 2020) (affirming denial of summary judgment where prison medical providers failed to adequately care for inmates diabetes, including providing sufficient insulin); Scinto v. Stansberry, 841 F.3d 219, 229-230 (4th Cir. 2016) (rejecting argument expert testimony was required to meet objective prong of deliberate indifference test, noting even a lay person would recognize the risks of failing to provide insulin to a diabetic); Sulk v. Western Corr. Ctr., No. 12-CV-3184, 2012 WL 3835905, at *2 (C.D. Ill. Sept. 4, 2012) (“Diabetes is a serious medical need requiring treatment, and a plausible inference of deliberate indifference arises from the refusal of Defendants to administer insulin in the doses necessary to adequately control Plaintiff's diabetes.”).
Regarding the subjective component, Earls's grievance provides at least circumstantial evidence Defendant was aware Earls was not receiving his medication as prescribed. More significantly, Defendant has not even argued he should be granted summary judgment on this basis, and so Earls was under no obligation to specifically address it. See Pourghoraishi v. Flying J, Inc. 449 F.3d 751, 765 (7th Cir. 2006 (“The party opposing summary judgment has no obligation to address grounds not raised in a motion for summary judgment.” (citing Titran v. Ackman, 893 F.2d 145, 148 (7th Cir. 1990) (“When a party moves for summary judgment on ground A, the opposing party need not address grounds B, C, and so on; the number of potential grounds for (and arguments against) summary judgment may be large, and litigation is costly enough without requiring parties to respond to issues that have not been raised on pain of forfeiting their position.”))).
Defendant has not claimed ignorance as to Earls's medication needs at the jail or provided a reason why be believed Earls was receiving adequate insulin. He has presented no evidence that he was unaware Earls required two doses of insulin per day and was not receiving it, or that he responded to such awareness by acting to ensure Earls received his medication as prescribed. He has also not explained why he believed providing Earls with only a portion of his prescribed medication posed no serious risk of harm despite the fact that the prescription came from the same external provider he relies upon to show no deliberate indifference. Nor has he presented evidence that the failure to provide Earls's medication as prescribed was due to negligence or even gross negligence by himself or jail staff. In fact, it is quite noteworthy that Defendant has presented no evidence whatsoever as to how MCJ provided medication to its inmates or ensured inmates were given proper dosages as prescribed, and all of the evidence on this subject has come from Earls.
Instead, Defendant's argument regarding deliberate indifference has consistently relied on the fact he took Earls to Dr. Inhulsen. But Earls has never disputed that he was seen at times by external medical providers. In fact, his recast complaint refers to the letter written by Dr. Inhulsen to Defendant to support his claim that Defendant was aware of Earls's medical needs but was deliberately indifferent to them. Recast Compl. 5. Moreover, in its order allowing his claims to proceed for further factual development, the Court specifically cited MCJ's failure to give medication as support for Earls's Eight Amendment claim. Order & R. 8, Feb. 28, 2023. Therefore, until he submitted his supplemental brief raising the issue of causation, Defendant sought summary judgment on a fact that is not at issue or material to Earls's claims. Because Earls has presented sufficient evidence to show deliberate indifference, Defendant is not entitled to summary judgment on this ground.
2. Causation
Nevertheless, the Court recommends Defendant be granted summary judgment because Earls cannot show the deficiencies in administration of his diabetes medication caused him harm. “To prevail on a deliberate indifference to serious medical need claim, Plaintiffs must show . . . causation between [a defendant's deliberate] indifference and the plaintiff's injury.” Mann v. Taser Intern., Inc., 588 F.3d 1291, 1306-07 (2009). The Eleventh Circuit has held that “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.” Hill v. Dekalb Reg'l Youth Det. Ctr., 40 F.3d 1176, 1188 (11th Cir. 1994), overruled in part on other grounds by Hope v. Pelzer, 536 U.S. 730, 739 n.9 (2002). While Hill only referred to delayed treatment, some district courts, including this Court, have cited it for the proposition that verifying medical evidence is necessary where the issue is harm caused by delay or denial in treatment. See, e.g., Patterson v. Lewis, No. 7:05-CV-5-HL, 2008 WL 906414, *4 (M.D. Ga. Mar. 31, 2018) (“To demonstrate significant harm, a plaintiff must provide verifying medical evidence that proves that it was the denial or delay in medical treatment that caused the harm rather than an underlying condition or injury.” (internal quotation marks omitted)). Moreover, while expert testimony may not always be necessary, it may be necessary when the “medical causation issue . . . presents a technical and scientific issue that requires the specialized knowledge of an expert medical witness.” Stanfill v. Talton, 851 F.Supp.2d 1346, 1378-79 (M.D. Ga. 2012).
Here, the medical causation issue does not concern a complete denial or delay in treatment. Instead, it involves inadequate treatment in the form of missed or insufficient doses of insulin over a prolonged period. Nevertheless, the issue of causation is similar in that a fact finder must determine what injury, if any, resulted from a defendant's indifference where treatment was provided, even if not in a manner prescribed. Specifically, a jury here would need to determine the degree to which, if any, the failure to provide insulin in accordance with Dr. Inhulsen's orders caused Earls harm.
The Court recognizes that verifying medical evidence of causation does not necessarily require expert testimony if the medical records or other non-expert testimony are sufficient for a factfinder to reasonably infer causation of harm. See Belk v. Aramark Corr. Servs., LLC, No. 19-cv-499-JPG, 2024 WL 231444, at *2 (S.D. Ill. Jan. 22, 2024) (citing Jackson v. Sheriff of Winnebago Cnty., 74 F.4th 496, 501 (7th Cir. 2023)). But such is not the case here. While Earls testified at the evidentiary hearing as to various diagnoses he received once he entered the prison system, he has not submitted any prison medical records into evidence.Nor has he submitted medical records from prior to his entry into MCJ. This is significant because while Earls has downplayed the severity of his diabetes prior to entering MCJ, his medical history shows he needed to move from oral medication to insulin in April 2017 and had a history of diabetic foot issues, including a partial amputation. MR 30.
At the evidentiary hearing, Earls testified that a nurse practitioner told him his health issues were because of the care he received at MCJ. Tr. 26:5-15. But that is hearsay and without evidentiary value. See Hudson v. Middle Flint Behav. Care, 522 Fed.Appx. 594, 596 (11th Cir. 2013) (per curiam) (“The district court cannot consider hearsay evidence in ruling on a summary judgment motion, unless that evidence would have been admissible at trial.” (citing Macuba v. DeBoer, 193 F.3d 1316, 1322-23 (11th Cir. 1999))).
Moreover, the records from his treatment with Dr. Inhulsen over an approximate three year period do not show causation of harm which could be reasonably inferred by a non-expert. The records contain no reports of medical emergencies or hospitalizations relating to his diabetes. Moreover, a February 11, 2019, progress note shows his blood sugar levels had improved from levels in the “4-500's” to levels in the “150- mid-300's.” MR 26. When he first arrived at MCJ, his A1C was 10, but on November 8, 2019, Dr. Inhulsen noted it was down to 8.9. MR 18, 30. An August 2, 2021, note indicated his A1C had increased to 8.6-when he reported having run out of one of his medications-but it had been 8.2 at the prior visit and was still much lower than when he first arrived at MCJ. MR 10-11, 14. Reviews of symptoms from Earls's visits to Dr. Inhulsen were mostly unremarkable. MR 8-9, 11-12, 14-15, 17, 19, 21, 23, 27-28. When he arrived at MCJ, he was noted to have an ulcer on his foot, but it was observed to have improved on the next two visits. MR 26, 29-30. Thus, even though Earls may not have been receiving his insulin as prescribed, there is nothing in the records that would allow a lay person to identify any harm caused by the omission. It may be that somewhere in the records is some evidence of causation, but identifying it “presents a technical and scientific issue that requires the specialized knowledge of an expert medical witness.” Stanfill, 851 F.Supp.2d at 1379. In the absence of verifying medical evidence showing causation, Defendant is entitled to summary judgment.
Because Earls cannot show a constitutional violation, the Court will not address the clearly-established prong of the qualified immunity analysis.
D. Eleventh Amendment Immunity
Defendant claims he is entitled to summary judgment on the claims against him in his official capacity. Def.'s Br. in Supp. of Mot. for Summ. J. 4. Specifically, Defendant argues that Eleventh Amendment immunity protects him from suit regarding Earls's claims. Id. “The Eleventh Amendment protects a State from being sued in federal court without the State's consent.” Manders v. Lee, 338 F.3d 1304, 1308 (11th Cir. 2003). “[A] suit against a state official in his or her official capacity is not a suit against the official but rather is a suit against the official's office.” Will v. Mich. Dep't of State Police, 491 U.S. 58, 71 (1989) (citations omitted). “As such, it is no different from a suit against the State itself,” id., which fails because of Eleventh Amendment immunity. See, e.g., Williams v. Bd. of Regents of Univ. Sys. of Ga., 477 F.3d 1282, 1301 (11th Cir. 2007) (“Under most circumstances, the Eleventh Amendment bars suits against states and state entities by their citizens.”). Further, “the sheriff acts on behalf of the State in his function as a law enforcement officer and keeper of the peace in general[.]” Grech v. Clayton Cnty., 335 F.3d 1326, 1347 (11th Cir. 2003); see also Manders, 338 F.3d at 1308-12, 1315-18. Therefore, Eleventh Amendment immunity bars suits for damages against Defendant in his official capacity for Earls's deliberate indifference to a serious medical need claim.
CONCLUSION
For the reasons explained above, it is recommended that Defendant's motion for summary judgment (ECF No. 20) be granted. Pursuant to 28 U.S.C. § 636(b)(1), the parties may serve and file written objections to this Recommendation, or seek an extension of time to file objections, within FOURTEEN (14) DAYS after being served with a copy hereof. Any objection should be no longer than TWENTY (20) PAGES in length. The district judge shall make a de novo determination of those portions of the Recommendation to which objection is made. All other portions of the Recommendation may be reviewed for clear error.
The parties are hereby notified that, pursuant to Eleventh Circuit Rule 3-1, “[a] party failing to object to a magistrate judge's findings or recommendations contained in a report and recommendation in accordance with the provisions of 28 U.S.C. § 636(b)(1) waives the right to challenge on appeal the district court's order based on unobjected-to factual and legal conclusions if the party was informed of the time period for objecting and the consequences on appeal for failing to object. In the absence of a proper objection, however, the court may review on appeal for plain error if necessary in the interests of justice.”
SO REMECOMNDED.