Douglas Burley v. Warden Steve Upton , 257 F. App'x 207 ( 2007 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
DEC 03, 2007
No. 07-11339 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-00214-CV-RLV-4
DOUGLAS BURLEY,
Plaintiff-Appellant,
versus
WARDEN STEVE UPTON,
MARK ABUSAFT,
TAMMY THOMPSON,
JANE DOE SIMPSON,
DONNA SIMPSON,
Defendants-Appellees,
CHARLES THOMPSON,
Defendant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(December 3, 2007)
Before ANDERSON, BARKETT and KRAVITCH, Circuit Judges.
PER CURIAM:
Douglas Burley, an inmate in the Georgia prison system, appeals the district
court’s grant of summary judgment for the defendants—the warden, two prison
guards, and a counselor—in this section 1983 claim. The district court held that
Burley’s suit was barred because he did not exhaust his administrative remedies
and, in the alternative, that Burley’s claim failed on the merits. Because the record
is unclear, we do not address the issue of whether he exhausted his administrative
remedies. Instead, we address the merits of his claim. We affirm the district
court’s grant of summary judgment.
I. BACKGROUND
Douglas Burley is a pro se prisoner serving a sentence in Hays State Prison
in Georgia. He alleged that on September 13, 2004 Officer Thompson told him
that he would be transferred from a bottom bunk to a top bunk in his cell because
the prison needed to transfer another inmate to Burley’s bottom bunk. Burley had
a “medical profile” card requiring a bottom bunk and he showed this card to
Officer Thompson. Officer Thompson informed Burley that she had to move him
anyway. Burley then spoke to Counselor Abusaft about the transfer and Abusaft
told Burley that due to a transfer of other inmates, Burley would get a bottom bunk
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the following day. Burley also wrote a letter to Warden Upton complaining of the
transfer to a top bunk. On September 15th, Burley visited Warden Upton and the
warden told Burley that he would be transferred back to a bottom bunk.
On September 17th, however, Burley remained in a top bunk. He went to
the Warden to inquire about the transfer but Officer Simpson told Burley that the
warden knew of the situation and that there was no need for the two of them to
talk.
Later that afternoon, Officer McCurry told Burley that he would be
switching beds with another inmate when that inmate was back from his detail, but
when Burley asked Officer McCurry if he could transfer beds, Officer McCurry
told Burley that he needed a “move slip” from Officer Simpson authorizing the
transfer first. Burley alleges, however, that the transfer did not happen for another
day and that on September 18th he fell while climbing down from his top bunk,
injuring his head, and worsening the pain he had felt for years in his lower back.
Burley saw medical personnel. The nurse noted that the lower back was
tender to the touch; however, she observed no swelling, no deformity, no heat, no
crepitus with movement, and no discoloration. She also noted full range of
movement, normal vital signs, and the ability to flex the neck to the chest. The
doctor prescribed Motrin and returned Burley to his cell.
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Before filing this suit, Burley filed an informal grievance with the
department of corrections. The appellees do not dispute that the grievance was
received on September 28th. The Georgia Department of Corrections’ requirement
at the time was that an informal grievance needed to be filed within 10 days of the
occurrence. Despite the grievance’s timeliness, the Department of Corrections
denied it and stated that it was untimely. In response, Burley wrote letters
disputing the denial. Although in one letter, he indicated that he wanted a formal
grievance procedure to begin, he did not actually file the formal grievance. In one
letter, Burley also referenced an unrelated formal grievance that was pending at the
time, and the record shows that he had on at least two prior occasions filed formal
grievances. The record is not clear, however, as to whether Burley had access to
the formal grievance form or whether he was somehow prohibited from filing the
form. The record is also unclear as to what other steps Burley needed to follow to
satisfy the requirement that he exhaust his administrative remedies before filing
suit.
II. STANDARD OF REVIEW
This court reviews a district court’s grant of summary judgment de novo,
viewing the evidence in the light most favorable to the party opposing the motion.
Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1085 (11th Cir. 2004). Summary
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judgment is appropriate when “there is no genuine issue as to any material fact
and...the moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). This court reviews a district court’s grant of summary judgment on a
section 1983 claim de novo. Patrick v. Floyd, 201 F.3d 1313, 1315 (11th Cir.
2000).
III. DISCUSSION
Because the record is unclear as to whether Burley exhausted his
administrative remedies, we will not address that issue. Instead, we examine the
district court’s grant of summary judgment on the merits. To prevail on a section
1983 claim, the plaintiff must show a deprivation of a federal right. 42 U.S.C. §
1983 (2006). The Supreme Court has held that deliberate indifference to a
prisoner’s medical needs can constitute a violation of the Eighth Amendment
prohibition against cruel and unusual punishment—a federal right. Estelle v.
Gamble, 429 U.S. 97, 104, 97 S.Ct 285 (1976). Deliberate indifference contains
both an objective and subjective component. Farrow v. West, 320 F.3d 1235, 1243
(11th Cir. 2003). The plaintiff must first establish an “objectively serious medical
need.” Id. A serious medical need is “one that has been diagnosed by a physician
as mandating treatment or one that is so obvious that even a lay person would
easily recognize the necessity for a doctor’s attention.” Id. (citation and quotation
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marks omitted). Further, the “medical need must be one that, if left unattended,
poses a substantial risk of serious harm.” Id. (citation and quotation marks
omitted).
Once a serious medical need is shown, the plaintiff must satisfy the
subjective element—establishing that the prison official acted with deliberate
indifference to that need. An official acts with deliberate indifference when that
official knows that an inmate is in serious need of medical care but fails or refuses
to obtain proper treatment. Lancaster v. Monroe County, 116 F.3d 1419, 1425
(11th Cir. 1997). To prove deliberate indifference, a plaintiff must show “(1)
subjective knowledge of a risk of serious harm [and] (2) disregard of that risk; (3)
by conduct that is more than mere negligence.” Farrow, 320 F.3d at 1245.
Inadvertent or negligent failure to provide adequate medical care does not
constitute deliberate indifference.
In this case, Burley offered no evidence to suggest that he had a “serious
medical need” that, if left unattended, would pose a serious risk of medical harm.
He never explicitly stated why he had a medical profile for a lower bunk. He,
therefore, failed to meet his burden of proof. The district court inferred, however,
that Burley had the medical profile because of his history of lower back pain. Even
if that was the case, lower back pain is not the type of serious condition this circuit
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requires. In the past, this court has held, for example, that a patient with asthma
who has continual breathing problems with intermittent wheezing, coughing, and
hyperventilating had a “serious medical need.” Adams v. Poag, 61 F.3d 1537,
1539-41, 1543 (11th Cir. 1995). We have also held that an inmate who had a one-
and-a-half inch cut over his eye bleeding for two and a half hours had a “serious
medical need.” Aldridge v. Montgomery, 753 F.2d 970, 972-73 (11th Cir. 1985).
Burley had a medical need. But unlike these two examples, it was not so serious
that “if left unattended, [it] pose[d] a substantial risk of serious harm.”
Further, even if Burley did have a “serious medical need,” he failed to show
that officials were anything more than negligent by keeping him in a top bunk for
five days. He presented no evidence that the officials knew that he needed a
bottom bunk but intentionally kept him in a top bunk. The evidence submitted by
the defendants suggest Burley’s temporary placement in a top bunk was the result
of bureaucratic misunderstandings, not deliberate indifference. Burley did not
counter this evidence with anything from which we could infer that the cause of his
being placed in a top bunk was anything but a mistake.
IV. CONCLUSION
For these reasons, we AFFIRM.
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