Thomas Martin Bismark v. Neil Fisher , 213 F. App'x 892 ( 2007 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
January 11, 2007
No. 05-10013 THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 00-00696-CV-AJ
THOMAS MARTIN BISMARK,
Plaintiff-Appellant,
versus
NEIL FISHER,
CARLA CESSARIO,
Defendants-Appellees.
_____________________________
Appeal from the United States District Court
for the Southern District of Florida
____________________________
(January 11, 2007)
Before PRYOR and FAY, Circuit Judges, and STEELE,* District Judge.
PER CURIAM:
_____________________
*The Honorable William H. Steele, United States District Court for the Southern District
of Alabama, sitting by designation.
Appellant, Thomas Martin Bismark, brought this action against appellee,
Neil Fisher, pursuant to 42 U.S.C. § 1983, alleging that Dr. Fisher had exhibited
deliberate indifference to his serious medical needs while Bismark was in the
custody of the Florida Department of Corrections (“DOC”). The court below
entered summary judgment in Dr. Fisher’s favor, on the grounds that plaintiff’s
evidence was insufficient to establish a violation of his Eighth Amendment right to
be free from cruel and unusual punishment. We affirm.
I. BACKGROUND
Bismark has certain foot deformities arising from a birth defect that causes
the front of his feet to rise. Unless he dons proper footwear, the tops of his feet
may be rubbed raw against his shoes. This painful condition is ameliorated when
Bismark wears ordinary high-top tennis shoes, of the type that are readily available
in retail shoe stores.
In 1998, Bismark was incarcerated in a Florida prison and wearing DOC-
issued, hard-soled boots. His feet blistered, swelled and split open. The prison
sent Bismark to an outside podiatrist, who prescribed special orthopedic shoes and
medically molded arch inserts, all at DOC expense. Although Bismark received
the inserts, he was transferred to the Everglades Correctional Institution (“ECI”)
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still clad in his boots and without his special shoes, which never arrived. At ECI,
prison officials prescribed Bismark Motrin for foot pain. Five days later, he was
seen by Dr. Fisher, the Chief Medical Director of ECI, for continuing foot
discomfort. Bismark specifically informed Dr. Fisher that the podiatrist had
prescribed him special shoes. Dr. Fisher had Bismark remove his boots, looked at
his feet, and instructed Bismark to walk across the room, which he did. Based on
that examination, Dr. Fisher’s diagnosis was that Bismark had only a minor
deformity on his fifth digit, and his conclusion was that special orthopedic shoes
were not medically indicated because Bismark’s feet were not grossly deformed or
abnormal. Dr. Fisher recommended that Bismark purchase sneakers, which were
available in ECI’s prison canteen, in response to which Bismark protested that he
lacked the funds to do so.
Although Bismark did not receive free orthopedic shoes, Dr. Fisher and ECI
made several other accommodations for him. Dr. Fisher continued him on pain
medication for two weeks and instructed him to take Tylenol as needed.
Subsequently, ECI medical staff (presumably acting under Dr. Fisher’s direction
and/or supervision) issued Bismark a “bed rest lay-in pass” and advised him to
soak his feet in warm water.
Bismark filed suit against Dr. Fisher under § 1983 for deliberate indifference
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to his medical needs, in violation of the Eighth Amendment. The district judge
referred this case to a magistrate judge for final disposition, based on a purported
stipulation by the parties. The magistrate judge granted Dr. Fisher’s motion for
summary judgment, and this appeal followed.
II. DISCUSSION
A. Jurisdiction.
This Court’s appellate jurisdiction is generally confined to final decisions of
the district courts. See 28 U.S.C. § 1291. The judgment from which appeal is
taken here was entered by a magistrate judge. Upon special designation by the
district court and with the consent of all parties, a magistrate judge is empowered
to enter a final judgment in a civil case pursuant to 28 U.S.C. § 636(c)(1). If,
however, the magistrate judge exercises jurisdiction without the parties’ consent,
then the resulting judgment is not final for purposes of § 1291, and appellate
jurisdiction is lacking. McNab v. J & J Marine, Inc., 240 F.3d 1326, 1328 (11th
Cir. 2001); Rembert v. Apfel, 213 F.3d 1331, 1334 (11th Cir. 2000). There is no
question that the district judge referred this action to the magistrate judge for final
disposition. Nonetheless, the presence of consent for the magistrate judge’s
exercise of jurisdiction is not immediately apparent from the record on appeal;
4
therefore, we raised the jurisdictional issue sua sponte. McNab, 240 F.3d at 1328(“Because of its direct impact on our appellate jurisdiction, we consider sua sponte
whether the parties consented to the magistrate judge’s jurisdiction to enter final
judgment in this case.”).
Consent to magistrate jurisdiction may be either express or, in certain
narrowly circumscribed contexts, implied. Roell v. Withrow, 538 U.S. 580, 586,
590, 123 S.Ct. 1696, 155 L.Ed.2d 775 (2003). Where, as here, jurisdiction is
predicated on express consent, “[w]e have consistently required that a party’s
consent to a magistrate judge’s exercise of jurisdiction under 28 U.S.C. § 636(c)(1)
must be explicit, voluntary, clear, and unambiguous.” McNab, 240 F.3d at 1328.
Careful review of the totality of the circumstances confirms that the McNab
requirements for express consent are satisfied here for four reasons. First, both
parties had consented in writing to magistrate judge jurisdiction. In that regard, the
parties offer a form entitled “Consent to Proceed before a United States Magistrate
Judge” and signed by counsel for each side. Although the document suffers from
non-trivial irregularities,1 it is undisputed that the consent form was executed by
counsel for all parties prior to entry of judgment. Second, the form is buttressed by
the parties’ representations on appeal that they had, in fact, consented. Appellant’s
1
In particular, the form is undated, was never filed below, and is before us only as
an appendix rather than as a part of the record proper. No party has posited any explanation for
the circumstances of the form’s execution or its omission from the district court file.
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counsel expressly represented during oral argument that his client had consented to
magistrate judge jurisdiction pursuant to § 636(c), and appellee’s counsel made
similar statements. Third, the court below had obviously been apprised of the
parties’ consent in some fashion, as written orders from both the district judge and
the magistrate judge indicated that the parties had agreed to final disposition by the
magistrate judge.2 Fourth, before entry of judgment, no party contested the district
and magistrate judges’ characterization that the parties had “stipulated” and
“consented” to a § 636(c)(1) referral to the magistrate judge.3
Where a civil action is referred to a magistrate judge for final disposition
pursuant to § 636(c)(1) on the basis of express consent, appellate courts should not
be left guessing as to whether effective consent was, in fact, given. Moreover, the
bedrock constitutional and jurisdictional considerations at stake demand that courts
not be cavalier in finding a waiver of a litigant’s Article III rights. Rembert, 213
2
Less clear is the mechanism through which express consent was conveyed to the
district judge and magistrate judge. The consent form was never filed, so it was not likely the
conduit of that information. Moreover, even as appellee’s counsel stated during oral argument
that the district judge had been apprised of the parties’ consent, he conceded ignorance as to the
means of transmittal. Despite the ambiguity as to how that information was conveyed, the
district court’s statement that “[t]he parties have stipulated to final disposition by Magistrate
Judge Brown, pursuant to 28 U.S.C. § 636(c)” leaves little doubt that the district judge had been
so informed.
3
Although the Supreme Court in Roell has recognized implied consent in certain
limited circumstances, our point is different. Rather than inferring consent from a party’s failure
to opt out, here we simply observe that one indicator of express consent is a party’s lack of
objection to a district court’s characterization of that party as having expressly consented. We
refrain from expressing any opinion as to the meaning and proper application of Roell, which is
beyond the scope of the jurisdictional question presented here.
6
F.3d at 1334. Thus, in the ordinary case, express consent should be
commemorated via a filed, fully executed written consent form or the parties’ oral
expressions of consent during a hearing on the record. Neither happened here.
Nonetheless, the unique circumstances of this case demonstrate that consent was
explicit, unambiguous, clear and voluntary; therefore, we conclude that the parties
expressly consented to magistrate judge jurisdiction. As such, the appealed-from
judgment is in fact a final judgment, which we have jurisdiction to review pursuant
to § 1291.4
B. Deliberate Indifference.
This appeal focuses on whether the magistrate judge erred in granting
summary judgment to Dr. Fisher on the § 1983 claim. Bismark asserts that the
court below overlooked genuine issues of material fact as to whether Dr. Fisher
was deliberately indifferent to Bismark’s serious medical needs. We review the
entry of summary judgment de novo. Ouachita Watch League v. Jacobs, 463 F.3d
1163, 1169 (11th Cir. 2006).
The law is clear that “deliberate indifference to serious medical needs of
prisoners constitutes the ‘unnecessary and wanton infliction of pain’ ... proscribed
4
As should be abundantly clear from the foregoing discussion, our finding of
express consent is predicated on the totality of the (unusual) circumstances of this case. It
should not be read as eroding, in any respect, the narrow parameters of express consent as
articulated in McNab and Rembert.
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by the Eighth Amendment.” Brown v. Johnson, 387 F.3d 1344, 1351 (11th Cir.
2004) (citations omitted). But not every claim that a prisoner received inadequate
medical treatment automatically vaults to the level of a constitutional deprivation.
Farrow v. West, 320 F.3d 1235, 1243 (11th Cir. 2003). Rather, a prison official
can be deemed deliberately indifferent only if he “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 v. Brennan, 511 U.S. 825,
837, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). We have construed the deliberate
indifference requirement as mandating proof of each of the following: (1)
subjective knowledge of a risk of serious harm; (2) disregard of that risk; and (3)
by conduct exceeding the level of mere negligence. Bozeman v. Orum, 422 F.3d
1265, 1272 (11th Cir. 2005); Brown, 387 F.3d at 1351.5 The third prong is the
focal point of our analysis.
A plaintiff cannot establish deliberate indifference simply by second-
guessing the conclusions reached by a prison medical official in the exercise of his
5
Aside from this subjective element of deliberate indifference, a plaintiff bringing
a § 1983 claim predicated on inadequate medical care must also show an “objectively serious
medical need,” which we have defined as “one that is so obvious that even a lay person would
easily recognize the necessity for a doctor’s attention” and one that “if left unattended, poses a
substantial risk of serious harm.” Brown, 387 F.3d at 1351 (citations omitted). Because the
outcome of this appeal does not turn on this element, we need not address it.
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medical judgment. Indeed, “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) (citation omitted).
Bismark contends that this case differs from Adams because, despite actual
knowledge that an outside podiatrist had prescribed special shoes for Bismark, Dr.
Fisher failed to adopt that plan of care, thereby intentionally interfering with
treatment once prescribed. Stated differently, Bismark would have us conclude
that Dr. Fisher was obliged to implement another doctor’s treatment plan, even
where that plan was in conflict with his own medical judgment. Nothing in our
case law would derive a constitutional deprivation from a prison physician’s failure
to subordinate his own professional judgment to that of another doctor; to the
contrary, it is well established that “a simple difference in medical opinion” does
not constitute deliberate indifference. Waldrop v. Evans, 871 F.2d 1030, 1033
(11th Cir. 1989). Far from interfering with treatment once prescribed, Dr. Fisher
was a physician who personally prescribed treatment for Bismark, albeit not that
requested by Bismark. The Eighth Amendment did not compel Dr. Fisher to check
his own medical training and judgment at the door, simply because he was
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informed that some other doctor at some other time had prescribed orthopedic
shoes for his patient.
Nor can an inference of deliberate indifference be supported by Bismark’s
critique of Dr. Fisher’s bedside manner. While Bismark objects to Dr. Fisher’s
apparently brusque mannerisms, it is not a violation of the Eighth Amendment for
a prison physician to consult with a prisoner concerning a medical condition in an
aloof or unfriendly way.6 Much more is required. See Harris v. Thigpen, 941 F.2d
1495, 1505 (11th Cir. 1991) (“Medical treatment violates the eighth amendment
only when it is so grossly incompetent, inadequate, or excessive as to shock the
conscience or to be intolerable to fundamental fairness.”) (citation omitted).
Dr. Fisher promptly saw Bismark when the latter complained of foot pain.
During the ensuing examination, Dr. Fisher personally looked at his feet, asked
him to walk across the room, and observed his feet as he did so. There is no
evidence that such an examination was medically inadequate to enable Dr. Fisher
to assess Bismark’s condition. Moreover, Dr. Fisher provided treatment to
Bismark, in the form of pain medication. He also recommended that Bismark
6
Perhaps Bismark’s strongest argument on this point is that, following his initial
visit, Dr. Fisher refused to see him again for foot pain. However, any suggestion that this
omission might amount to deliberate indifference is overcome by the lack of evidence that
Bismark’s condition ever materially worsened to the point where a follow-up visit with Dr.
Fisher might have been medically warranted. Additionally, there is no evidence that ECI
medical staff (who worked under Dr. Fisher’s direction and supervision) ever refused to see or
treat Bismark.
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purchase sneakers at the canteen. Bismark does not dispute that the canteen
sneakers would have adequately and effectively remediated his condition.7 The
only aspect of Dr. Fisher’s diagnosis, treatment or recommendation with which
Bismark takes issue is that Dr. Fisher would have him buy the sneakers himself,
instead of receiving them for free. That is not the stuff of deliberate indifference,
absent a showing that Dr. Fisher’s determination that such shoes were not
medically necessary was anything more than negligent. At most, Bismark’s
evidence might support an inference that Dr. Fisher was negligent in diagnosing
the severity of his foot condition and his need for special shoes. “Mere incidents
of negligence or malpractice do not rise to the level of constitutional violations.”
Harris, 941 F.2d at 1505; see also Hinson v. Edmond, 192 F.3d 1342, 1345 (11th
Cir. 1999). The dearth of evidence that Dr. Fisher’s conduct exceeded the bounds
of mere negligence is fatal to Bismark’s deliberate indifference claim.
III. CONCLUSION
We find that Bismark failed to raise a genuine issue of material fact as to
whether Dr. Fisher was deliberately indifferent to his serious medical needs.
Accordingly, the lower court correctly entered summary judgment in Dr. Fisher’s
7
To the contrary, the record reflects that upon receipt of a pair of ordinary high-top
tennis shoes in February 2001, Bismark’s foot pain abated.
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favor, and dismissed Bismark’s § 1983 claims predicated on alleged Eighth
Amendment violations.
AFFIRMED
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