Timothy Wallace v. Chris Stromberg , 518 F. App'x 621 ( 2013 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 12-13464
Non-Argument Calendar
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D.C. Docket No. 1:10-cv-22086-JAL
TIMOTHY WALLACE,
Plaintiff-Appellant,
versus
SHERIFF, et al.,
Defendants,
CHRIS STROMBERG,
Defendant-Appellee.
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Appeal from the United States District Court
for the Southern District of Florida
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(April 24, 2013)
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Before DUBINA, Chief Judge, WILSON and FAY, Circuit Judges.
PER CURIAM:
Appellant Timothy Wallace, a prisoner of the state of Florida, proceeding
pro se, appeals the district court’s denial of his motion for the appointment of
counsel and its grant of summary judgment on his Eighth Amendment, deliberate-
indifference claim brought under 42 U.S.C. § 1983. Wallace filed a pro se civil
rights complaint, alleging that defendants Christine Stromberg, a nurse at the
Indian River County Jail (“Jail”), and Deryl Loar, the Indian River County sheriff,
were deliberately indifferent to his serious medical needs. The court dismissed all
claims against Sheriff Loar under 28 U.S.C. § 1915(e),1 but permitted the claims
against Stromberg to proceed.
I. Deliberate Indifference
On appeal, Wallace argues that the evidence before the district court was
sufficient to raise a genuine issue of material fact. He contends that Stromberg was
deliberately indifferent to his needs in refusing his request to see more than two
doctors regarding his back pain and in prematurely removing his walker.
We review de novo a district court’s grant of a motion for summary
judgment, viewing all evidence and reasonable factual inferences in the light most
1
Wallace has abandoned all objections to the district court’s dismissal of his claims against Loar
because he fails to mention them in his appellate brief. See Timson v. Sampson, 518 F.3d 870,
874 (11th Cir. 2008) (issues not briefed on appeal are considered abandoned).
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favorable to the nonmoving party. Turnes v. AmSouth Bank, N.A., 36 F.3d 1057,
1060 (11th Cir. 1994). Summary judgment is appropriate when the evidence
presents no genuine dispute of material fact. Celotex Corp. v. Catrett, 477 U.S.
317, 322-23, 106 S. Ct. 2548, 2552, 91 L. Ed. 2d 265 (1986). Genuine disputes
exist where there is sufficient evidence for a reasonable jury to return a verdict for
the non-movant. Mize v. Jefferson City Bd. of Educ., 93 F.3d 739, 742 (11th Cir.
1996).
Under § 1983, individuals may sue state and local officers for violations of
their constitutional rights. 42 U.S.C. § 1983. Deliberate indifference to a
prisoner’s serious medical needs constitutes a violation of the Eighth Amendment.
Estelle v. Gamble, 429 U.S. 97, 104-105, 97 S. Ct. 285, 291, 50 L. Ed. 2d 251(1976).
To establish that the official acted with deliberate indifference, the plaintiff
must demonstrate that the official knew of a risk of serious harm, disregarded that
risk, and acted in a manner more egregious than gross negligence. Goebert v. Lee
County, 510 F.3d 1312, 1326-27 (11th Cir. 2007). A “doctor’s decision to take an
easier and less efficacious course of treatment” may constitute deliberate
indifference; however, a mere difference of opinion between the doctor and a
prisoner as to the proper diagnosis or course of treatment will not. Waldrop v.
Evans, 871 F.2d 1030, 1033 (11th Cir. 1989). Additionally, where an inmate’s
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health complaints received significant medical attention, we are reluctant to second
guess the medical judgments of those who provided the care. Hamm v. DeKalb
County, 774 F.2d 1567, 1575 (11th Cir. 1985) (citing Westlake v. Lucas, 537 F.2d
857, 860 n.5 (1st Cir. 1981) (for proposition).
We conclude from the record that Wallace failed to show that Stromberg
displayed deliberate indifference toward his medical needs. The undisputed facts
demonstrate that: (1) Wallace was urged to visit the medical unit at the Jail to
address his pain; (2) nurses applied ice packs to his back; (3) he was provided with
a wheelchair and later a walker; (4) he was promptly seen by Dr. Sullivan, who
performed an X-ray and provided pain medication; (5) Stromberg arranged for
Wallace to see a neurological specialist; and (6) Wallace was permitted to remain
in the medical unit, where he was cared for, until he left the Jail.
Wallace’s dissatisfaction with Stromberg’s decision to remove his walker is
not evidence of deliberate indifference to his medical needs, especially when her
reason to remove the walker was because no doctor had prescribed its use. See
Hamm, 774 F.2d at 1575. Furthermore, his mere disagreement with Dr. Husainy’s
diagnosis and Stromberg’s actions consistent therewith is insufficient to
demonstrate deliberate indifference. See Waldrop, 871 F.2d at 1033. In short,
Wallace’s complained-of back pain clearly received a substantial amount of
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medical attention. Therefore, we conclude the district court did not err in granting
summary judgment in favor of Stromberg, and we affirm its judgment.
II. Appointment of Counsel
Wallace argues that the magistrate judge abused his discretion in failing to
appoint counsel, under 28 U.S.C. § 1915(e). Wallace claims that he deserved
appointed counsel because he: (1) was an indigent litigant without money to hire
an attorney; (2) was a layman with limited knowledge of the law; (3) was an
imprisoned inmate with limited ability to litigate his claim; (4) had issues in the
case that were complex; (5) had limited access to a law library; (6) had limited
knowledge of how to file for discovery materials; and (7) was unable to depose
witnesses.
We review a court’s denial of appointment of counsel for abuse of
discretion. See Killian v. Holt, 166 F.3d 1156, 1157 (11th Cir. 1999) (finding no
abuse of discretion in the district court’s refusal to appoint counsel to an inmate
bringing a deliberate-indifference claim). Appointment of counsel in a civil case
“is a privilege justified only by exceptional circumstances, such as where the facts
and legal issues are so novel or complex as to require the assistance of a trained
practitioner.” Fowler v. Jones, 899 F.2d 1088, 1096 (11th Cir. 1990).
We conclude from the record that the magistrate judge did not abuse its
discretion in denying Wallace’s request for appointment of counsel. Though the
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magistrate judge determined that Wallace stated a claim sufficient to survive
preliminary dismissal, that, alone, is not an exceptional circumstance. Wallace’s
claims were fairly straightforward and did not present complex or novel issues.
See Fowler, 899 F.2d at 1096; Bass v. Perrin, 170 F.3d 1312, 1320 (11th Cir.
1999) (holding that an inmate’s Eighth Amendment legal claims were
straightforward and that the district court did not abuse its discretion by refusing to
appoint counsel). Finally, Wallace demonstrated his ability to represent himself
during the 16 months prior to his request for counsel.
For the aforementioned reasons, we affirm the district court’s grant of
summary judgment in favor of Stromberg and the district court’s order denying
Wallace’s motion for appointment of counsel.
AFFIRMED.
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