Case: 18-14548 Date Filed: 01/23/2020 Page: 1 of 9
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 18-14548
Non-Argument Calendar
________________________
D.C. Docket No. 1:16-cv-01381-ELR
DONALD JAMES,
individually as administrator of the estate of
Jennifer James,
Plaintiff - Appellant,
versus
BARTOW COUNTY, GEORGIA, et. al.,
Defendants,
NICOLE AGEE,
CORRECTHEALTH BARTOW, L.L.C.,
Defendants - Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(January 23, 2020)
Case: 18-14548 Date Filed: 01/23/2020 Page: 2 of 9
Before MARTIN, NEWSOM and MARCUS, Circuit Judges.
PER CURIAM:
Donald James, individually and as administrator for the estate of his wife,
Jennifer James,1 appeals two decisions of the district court in the § 1983 action he
brought arising out of a fatal drug overdose his wife Jennifer suffered while she was
incarcerated: (1) the district court’s order granting a motion to dismiss to defendants
Clark Millsap, Gary Dover, Derek Cochran, Tina Pallone, Dallas Watson, “Causey,”
Joy Stanley, Andrea Crutchfield, Ariel Hendricks, and Jeremy Gazerro (collectively,
the “County Defendants”); and (2) the district court’s order granting summary
judgment to defendants CorrectHealth Bartow, LLC and Nicole Agee (collectively,
the “Medical Defendants”). He argues that he adequately alleged, and that the record
reveals genuine disputes of material fact as to, defendants’ deliberate indifference to
his wife’s serious medical needs during the drug overdose that resulted in her death,
in violation of the Eighth Amendment. After thorough review, we affirm.
We review both the grant of the motion to dismiss and the grant of summary
judgment de novo. See Am. Dental Ass’n v. Cigna Corp.,
605 F.3d 1283, 1288 (11th
Cir. 2010) (motion to dismiss); Baker v. Birmingham Bd. Of Educ.,
531 F.3d 1336,
1337 (11th Cir. 2008) (summary judgment). A motion to dismiss is due to be granted
1
The decedent’s first name appears variously in the record and the captions of this case as
“Jennifer” and “Jenifer.” For consistency’s sake, we will use “Jennifer.”
2
Case: 18-14548 Date Filed: 01/23/2020 Page: 3 of 9
where, taking the factual allegations in the complaint as true, the plaintiff has not
stated a claim to relief that is plausible on its face. See Ashcroft v. Iqbal,
556 U.S.
662, 678 (2009). “Determining whether a complaint states a plausible claim for
relief [is] . . . a context-specific task that requires the reviewing court to draw on its
judicial experience and common sense.”
Iqbal, 556 U.S. at 679. A party is entitled
to summary judgment if “there is no genuine issue as to any material fact and the
movant is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(a). To
determine whether a factual dispute is genuine, we consider whether “the evidence
is such that a reasonable jury could return a verdict for the nonmoving party.”
Peppers v. Cobb County,
835 F.3d 1289, 1295 (11th Cir. 2016) (quotations omitted).
The relevant background -- based on the allegations in the complaint and the
undisputed record on summary judgment -- are these. On April 20, 2014, Jennifer
James, an inmate at Bartow County Jail, apparently consumed a large amount of
methamphetamine that another inmate had smuggled into the facility. After she had
been ill for several hours, she had a seizure, and other inmates pushed the panic
button in her cell to call for help. The inmates told the officer on the other end of
the line that Jennifer “wasn’t breathing,” and the officer responded to the effect that
“medical basically will get there when they get there.”
Shortly thereafter, nurse Nicole Agee arrived with a coterie of officers, now
the County Defendants, and began attempting to treat Jennifer. The written records
3
Case: 18-14548 Date Filed: 01/23/2020 Page: 4 of 9
do not tell us precisely how much time elapsed between the panic button call and
Agee’s arrival. Inmate witnesses testified that it took “five to ten minutes,” and “I
want to say it feel like it took at least 15 minutes,” respectively. Nurse Agee swore
she received the call at about 11:36 p.m., according to her watch, and must have
arrived at Jennifer’s cell before 911 records show an ambulance was called at 11:42
p.m. Agee testified in an affidavit that Jennifer resisted her help and denied having
taken drugs, but was cool to the touch, had shallow breathing, and developed
cyanosis. Agee first called for a stretcher from the medical unit in the prison, and
while waiting for the stretcher, she directed an officer to call 911 for an ambulance.
After the 911 call was received at 11:42 p.m., an ambulance was en route at
11:44 p.m., and it arrived at 11:48 p.m. Jennifer was admitted to the ICU at
Cartersville Hospital. She died several days later when her family removed her from
life support. She tested positive for a lethal dose of methamphetamine. Nurse Agee
testified that there is no reversal agent for a lethal dose of methamphetamine.
Donald James filed this action in the United States District Court for the
Northern District of Georgia against the County Defendants, the Medical
Defendants, and the County itself, asserting five claims. Three were violations of
42 U.S.C. § 1983, for failure to protect, deprivation of the right of due process, and
inadequate medical care. Two were state law claims. The district court granted the
County Defendants’ motion to dismiss and granted summary judgment to the
4
Case: 18-14548 Date Filed: 01/23/2020 Page: 5 of 9
Medical Defendants. The parties stipulated to the dismissal of any claims against
the County. James’s brief before us only appeals from the district court’s holding
that the County and Medical Defendants were not deliberately indifferent to
Jennifer’s medical emergency. The brief does not make any arguments concerning
the plaintiff’s claims based on a failure to protect, due process, or state law. As a
result, they have been abandoned for purposes of this appeal. See Sapuppo v.
Allstate v. Floridian Ins. Co.,
739 F.3d 678, 680 (11th Cir. 2014) (collecting cases).
The Eighth Amendment prohibits the infliction of “cruel and unusual
punishments.” U.S. Const. amend. VIII. This prohibition is violated where prison
officials act or fail to act with “deliberate indifference to serious medical needs” of
prisoners. Estelle v. Gamble,
429 U.S. 97, 106 (1976). To establish deliberate
indifference, a plaintiff must show: “(1) a serious medical need; (2) the defendants’
deliberate indifference to that need; and (3) causation between that indifference and
the plaintiff’s injury.” Mann v. Taser Int’l, Inc.,
588 F.3d 1291, 1306–07 (11th Cir.
2009). Delayed medical treatment can rise to the level of deliberate indifference
when: (1) “it is apparent that delay would detrimentally exacerbate the medical
problem”; (2) the delay actually seriously exacerbates the problem; and (3) “the
delay is medically unjustified.” Taylor v. Adams,
221 F.3d 1254, 1259–60 (11th
Cir. 2000) (quotations omitted). A prisoner must provide “verif[ied] medical
evidence . . . to establish the detrimental effect of delay in medical treatment.” Hill
5
Case: 18-14548 Date Filed: 01/23/2020 Page: 6 of 9
v. Dekalb Reg’l Youth Det. Ctr.,
40 F.3d 1176, 1188 (11th Cir. 1994), overruled on
other grounds by Hope v. Pelzer,
536 U.S. 730, 739 n.9 (2002).
As for the County Defendants, James makes two sets of allegations. Each is
inadequate to state a claim for deliberate indifference. First, he alleges that the
defendants had intimidated the other inmates in the cell with Jennifer from pushing
the panic button earlier than they did by having generally, over a long period of time,
threatened retaliation “if you press [the] button for bullshit,” or used it in a non-life
or death situation. But this was a life or death situation, as the plaintiff
acknowledged by alleging that Jennifer was “obviously dying,” and upon realizing
this, the inmates pushed the panic button for help. Thus, even assuming the threats
were made, they did not prevent the inmates from pushing the panic button in the
situation at issue here, and the plaintiff has not alleged how much sooner the inmates
could or should have pressed the panic button, nor has he alleged that inmates were
categorically discouraged from using the panic button in all circumstances.
Second, James alleges that when the officers arrived at the scene, “they were
more interested in questioning the inmates about contraband than getting Jennifer
James to medical.” But according to James’s complaint, Nurse Agee was already
present and attempting to treat Jennifer when this occurred. By that time, Jennifer
was already receiving medical help, and the officers were entitled, consistent with
the Eighth Amendment, to defer to Agee’s professional judgments about Jennifer’s
6
Case: 18-14548 Date Filed: 01/23/2020 Page: 7 of 9
condition. See Keith v. DeKalb Cnty., Ga.,
749 F.3d 1034, 1050 (11th Cir. 2014)
(holding that prison officials were entitled to defer to the professional judgments of
mental health experts). Therefore, James has failed to plausibly allege that the
County Defendants were deliberately indifferent to her serious medical needs for
purposes of the Eighth Amendment, and the district court did not err in dismissing
the complaint against them as failing to state a claim.
As for the claims against Nurse Agee, the record reveals no genuine disputes
of material fact concerning whether Agee’s treatment of Jennifer violated the Eighth
Amendment, and the district court was correct to grant summary judgment to her.
Agee testified that she received the call about Jennifer’s emergency at 11:36 p.m. If
true, the time she could have taken in reaching Jennifer’s cell could have been no
more than six minutes, when the 911 records show an ambulance was called. The
only evidence James offers in rebuttal is the testimony of one witness who said that
it took “five to ten minutes” and another who said “I want to say it feel like it took
at least 15 minutes” for Nurse Agee to arrive. But the first witness’s testimony is
consistent with Agee’s account, and the second witness admitted in her deposition
that she was under stress at the time and the delay may have felt longer than it was.
In any event, even assuming that it did take fifteen minutes for Nurse Agee to arrive,
we’ve said before that a fifteen-minute delay is not actionable under the Eighth
Amendment. See Dang ex rel. Dang v. Sheriff, Seminole Cty., Fla.,
871 F.3d 1272,
7
Case: 18-14548 Date Filed: 01/23/2020 Page: 8 of 9
1283 (11th Cir. 2017) (holding that there was no constitutional violation where
“there was about a 15-minute delay” in medical treatment).
Moreover, the record reveals no genuine disputes of material fact as to the
quality of Nurse Agee’s treatment. She testified that upon her arrival, she began
attempting to treat Jennifer immediately, and this fact is not controverted by the
testimony of the witnesses. She then directed an officer to call for an ambulance,
and the 911 report clearly shows that the ambulance was called at 11:42 p.m. and
had arrived by 11:48 p.m. In addition, Nurse Agee testified that there is no reversal
agent for methamphetamine toxicity. On this undisputed record, we can’t say that a
delay in treatment caused Jennifer’s death under Taylor. This is especially true in
the absence of any evidence, much less “verif[ied] medical evidence,”
Hill, 40 F.3d
at 1188, that a quicker response time could have saved her. Thus, the district court
did not err in granting summary judgment to defendant Nicole Agee.
One defendant remains: CorrectHealth Bartow, LLC, the medical provider in
the jail. In his brief before us, James makes no arguments specific to CorrectHealth
and has abandoned the claims against it. Even if they were not abandoned, James
could only show a constitutional violation on the part of CorrectHealth under the
standard applicable to constitutional violations committed by municipalities. See
Buckner v. Toro,
116 F.3d 450, 452 (11th Cir. 1997) (“When a private entity . . .
contracts with a county to provide medical services to inmates . . . it becomes the
8
Case: 18-14548 Date Filed: 01/23/2020 Page: 9 of 9
functional equivalent of the municipality.”). Municipalities can be liable for the
constitutional violations of their employees only where “the action that is alleged to
be unconstitutional implements or executes a policy statement, ordinance,
regulation, or decision officially adopted and promulgated by that body’s officers.”
Monell v. Dep’t of Soc. Servs. of N.Y. City,
436 U.S. 658, 690 (1978). Plaintiff can
point to no evidence in the record, nor did he even allege, that CorrectHealth’s
policies include deliberately indifferent delays in providing healthcare.
Accordingly, the district court did not err in granting summary judgment to
CorrectHealth.
AFFIRMED.
9
