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[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-10150
____________________
RICKY J. JOHNSON,
Plaintiff-Appellant,
versus
DR. SHARON LEWIS,
Statewide Medical Director of Georgia Department of
Corrections,
DR. THOMAS FERRELL,
Medical Director of Ware State Prison
DR KEVIN MARLER,
Medical Director of Jenkins Correctional Facility,
Defendants-Appellees.
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2 Opinion of the Court 20-10150
____________________
Appeal from the United States District Court
for the Middle District of Georgia
D.C. Docket No. 5:16-cv-00453-TES-MSH
____________________
Before JORDAN, NEWSOM, Circuit Judges, and GRIMBERG, * District
Judge.
GRIMBERG, Circuit Judge:
Ricky Johnson is an inmate in the custody and care of the
Georgia Department of Corrections (GDC). Johnson was
diagnosed with Hepatitis C (HCV) in 2009, but did not receive
medication for it until nine years later. By then, Johnson’s HCV had
progressed to stage F4 cirrhosis with indications of severe liver
inflammation. Johnson sued numerous prison doctors, three of
whom are the subject of this appeal, alleging that they were
deliberately indifferent to his serious medical needs in violation of
the Eighth Amendment. The district court granted summary
judgment in favor of the doctors and dismissed all claims against
them. Johnson appealed both the district court’s grant of summary
judgment and its denial of his motion to amend the complaint.
Because we find that material disputes of fact remain as to the
doctors’ actions and inactions in treating Johnson, we reverse the
*
The Honorable Steven D. Grimberg, U.S. District Judge for the North-ern
District of Georgia, sitting by designation.
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20-10150 Opinion of the Court 3
district court’s grant of summary judgment but affirm its denial of
the motion to amend.
I
The factual disputes in this case are manifold, and we
construe the disputed matters in favor of Johnson, the nonmoving
party. But before delving into the facts, some background on both
HCV and the GDC’s policy for treating it are in order.
HCV is a bloodborne virus that attacks a person’s liver. In
particular, it can cause liver scarring, or “fibrosis”. Liver fibrosis is
measured on a five-step scale, in ascending order of severity: F0 (no
fibrosis); F1 (mild fibrosis); F2 (moderate fibrosis); F3 (severe
fibrosis); F4 (cirrhosis). Cirrhosis is the most extreme form of liver
damage, and can potentially result in liver cancer or liver failure.
There are also grades of liver inflammation that can (but need not)
correlate with the severity of the fibrosis. To monitor the
progression of HCV infections, the standard of care is for doctors
to use bloodwork to measure two enzymes, ALT and AST, that are
released when the liver is damaged. While progression of the
disease is often slow, it can also be unpredictable. It can take
anywhere from months to decades to progress from one stage to
the next. Irrespective of the progression rate, chronic HCV can be
cured only with medication. It will not clear on its own.
The GDC has a policy for treating patients with HCV, which
has and continues to evolve as new treatments and medicines
become available. Because the relevant time period in this case
spans from 2012-2018, two GDC policies are at issue: the 2012
policy and the 2016 policy. The 2012 policy provided for the
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4 Opinion of the Court 20-10150
administration of a triple-drug treatment when patients met certain
criteria, including a liver biopsy showing stage 2 fibrosis and grade
2 inflammation. The policy also provided for exceptions, stating
that it was
not intended to be a substitute for professional
judgment by the managing physician,
[gastrointestinal], or [infectious disease]
consultant. Treatment is always to be
individualized base[d] on any unique patient
factors.
In other words, patients who did not meet the testing
criteria could still qualify for treatment if approved by the
managing physician or other professionals overseeing the patient’s
care.
In August 2016, the GDC updated its policy to account for
the availability of newer, more effective treatments than the triple-
drug regimen. The 2016 policy differed from the 2012 policy in a
few relevant ways. First, it recognized a new class of HCV antiviral
drugs. Second, it required the administration of a FibroSure test
instead of a liver biopsy as part of a patient’s treatment eligibility
determination. Finally, it created three priority levels for
treatment, with medication generally reserved for Priority 1
patients as determined by their FibroSure results.
With that background in mind, we turn now to Johnson’s
medical treatment or lack thereof. When Johnson was diagnosed
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20-10150 Opinion of the Court 5
with HCV in 2009, he was serving his sentence at Wilcox State
Prison and under the medical care of Dr. Charles Ruis, who is not
a party to this appeal. At that time, the progression of Johnson’s
disease was mild and did not qualify him for treatment under either
the GDC policy or the independent judgment of Dr. Ruis. Over the
course of the next two years, Dr. Ruis continued to monitor
Johnson’s condition. In January 2012, Dr. Ruis referred Johnson to
a gastroenterologist and HCV specialist, Dr. Ayaz Chaudhary, who
is also not a party to this appeal. While it is unclear what exactly
triggered Dr. Ruis’s referral, he noted on the consultation request
form that “[JOHNSON] HAS HCV AND WANTS TREATMENT”
and “PLEASE CONSIDER FOR HCV TREATMENT.”
On November 1, 2012, Dr. Chaudhary prescribed Johnson
the triple-drug treatment and enrolled him in the prison’s clinic for
treatment of chronic diseases. 1 Dr. Chaudhary’s decision to
prescribe the triple-drug treatment is critical to the parties’ dispute
on summary judgment. They agree that, at the time
Dr. Chaudhary wrote the prescription, Johnson’s lab results did not
qualify him for treatment under the 2012 policy. The parties do,
however, dispute why Dr. Chaudhary issued the prescription
anyway. Defendants cite Dr. Chaudhary’s affidavit, which states
that he prescribed the medication based on Johnson’s perceived
litigiousness, his advocacy for treatment, and out of an abundance
1
The parties disagree about whether Dr. Chaudhary prescribed
Johnson the treatment in November 2012 or April 2013, but because
there is contradictory evidence on this point we construe all inferences
in Johnson’s favor for summary judgment purposes.
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6 Opinion of the Court 20-10150
of caution. Johnson rightly points out that none of these reasons is
noted in the contemporaneous documentation of Dr. Chaudhary’s
prescription. Johnson counters that the prescription was medically
warranted and based on Dr. Chaudhary’s professional judgment at
the time, which is consistent with the 2012 policy. Regardless of the
reason, Johnson did not receive his first dose until over five years
later.
Johnson was transferred to Hays State Prison in December
2012, and in March 2013, to Ware State Prison and into the primary
care of Defendant-Appellee Dr. Thomas Ferrell, the Medical
Director at Ware. Dr. Ferrell is an internal medicine physician;
while he is generally familiar with HCV, by his own admission he
does not have the expertise to determine whether a particular
patient should receive treatment for HCV.
Dr. Ferrell first saw Johnson on April 1, 2013. During that
visit, Dr. Ferrell continued filling out Johnson’s pre-therapy
checklist, which Dr. Ruis started in 2009 and was required by the
2012 policy to be completed before a patient could begin receiving
treatment. The checklist in turn required that a patient have
current blood lab results before starting HCV treatment.
Dr. Ferrell concluded that Johnson’s blood labs from 2009 were
aged and needed to be updated before Johnson could receive HCV
treatment. So, Dr. Ferrell scheduled a follow-up appointment for
Johnson with Dr. Chaudhary and ordered updated lab work.
According to Dr. Chaudhary, this follow-up occurred on
April 25, 2013. During that appointment, Dr. Chaudhary again
recommended that Johnson begin the triple-drug treatment for his
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HCV. At that time Dr. Chaudhary discussed with Johnson that
missing even a few doses of the medications could cause the
treatment to fail. This was particularly relevant because Johnson
was scheduled to temporarily relocate to a different prison within
a few days of the April 25 appointment. According to
Dr. Chaudhary, due to this impending relocation he and Johnson
agreed to wait to begin the treatment until Johnson returned to
Ware State Prison.
Johnson returned to Ware in August 2013. No treatment
followed. This time, Dr. Ferrell attributed the delay to Johnson’s
upcoming hernia surgery, scheduled for October 2013. Dr. Ferrell’s
notes from September 16, 2013, state that “after surgery [HCV
treatment] will be pursued.” Johnson underwent hernia surgery on
October 1, 2013, and returned from the hospital to Ware on
October 8, 2013. He spent no time in the recovery unit and took
no pain medication other than Tylenol. Nonetheless, Dr. Ferrell
attributes Johnson’s hernia surgery as the reason he did not begin
receiving any HCV treatment for at least eight months.
Frustrated by the delay, Johnson filed a grievance complaint
on May 9, 2014. According to the Ware Grievance Coordinator,
Johnson’s grievance complaint was denied because he “never
discussed or inquired about treatment for Hepatitis.” Johnson
appealed, detailing the history of his HCV care. Defendant-
Appellee Dr. Sharon Lewis, the GDC’s Statewide Medical Director,
denied Johnson’s appeal on the ground that “medical personnel
handled this case appropriately.”
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Even while his grievance complaint was pending, Johnson
continued to seek medical care for his HCV. Following an
appointment on May 28, 2014, Dr. Ferrell noted that Johnson was
“ready to start [his prescription]” and scheduled another consult
with Dr. Chaudhary. Another two months passed before this
consultation occurred.
On July 31, 2014, Johnson finally saw Dr. Chaudhary but
now, a new obstacle arose. Dr. Chaudhary explained to Johnson
that the availability of newer, more effective HCV drugs was
imminent. According to Dr. Chaudhary, both he and Johnson
agreed that pursuing the triple-drug therapy he had prescribed in
2012 was no longer the best course of action. Johnson recalls this
conversation but not any agreement on his part to delay treatment.
Regardless, Dr. Chaudhary withdrew the outstanding prescription
and recommended continued monitoring as well as a repeat liver
biopsy to take place one year later, in July 2015.
Shortly before the date of the recommended repeat liver
biopsy, on May 21, 2015, Johnson was transferred to Jenkins
Correctional Facility, a CoreCivic privately-owned prison. This
transfer also meant that Johnson was now out of Dr. Ferrell’s care
and into the care of Defendant-Appellee Dr. Kevin Marler, the
Medical Director of Jenkins. Johnson saw Dr. Marler for the first
time in early July 2015. At that time, Dr. Marler reviewed lab work
and records for Johnson, and conducted a physical exam. Johnson’s
ALT reading was 119 and his AST reading was 64, both of which
fell outside of the normal range. Nevertheless Dr. Marler contends
that, while abnormal, these levels were to be expected for a patient
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20-10150 Opinion of the Court 9
with HCV. Dr. Marler notified Johnson that he would be placed in
Jenkins’ chronic clinic, but would not receive drug therapy.
Johnson informed Dr. Marler that he had already been prescribed
HCV treatment and asked when it would begin. According to
Johnson, Dr. Marler told him he would consult with GDC doctors
about the treatment. Despite Johnson’s follow-ups, Dr. Marler
never reported hearing back from GDC.
Johnson continued to be monitored by Dr. Marler every six
months, but the liver biopsy Dr. Chaudhary recommended to take
place by July 2015 never occurred. Instead, during Johnson’s first
chronic care visit on January 4, 2016, he presented with a skin rash,
including scattered lesions on his extremities, which were treated
with hydrocortisone cream. During Johnson’s second chronic care
visit on June 28, 2016, blood work was done. While Johnson’s ALT
and AST scores are not noted, Dr. Marler indicated that the APRI
score “did not indicate a level of liver involvement then requiring
treatment.”
Sometime in August 2016, the updated GDC HCV policy
that required the FibroSure test came into effect. But Dr. Marler
did not give Johnson a FibroSure test that year. It was Dr. Lewis
who, in April 2017, reminded Dr. Marler that the GDC had added
the test to its HCV protocol. The parties are not aware of what
prompted this communication. It was not until June 11, 2017—at
Johnson’s next scheduled chronic care visit—that Dr. Marler finally
administered a FibroSure test. Johnson’s raw score was 0.91,
indicating cirrhosis. His inflammatory markers also indicated
severe inflammation.
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10 Opinion of the Court 20-10150
The parties fervently dispute how Dr. Marler responded to
these results. Johnson contends that for at least a month, the doctor
did absolutely nothing. He avers that it was not until July 11 that
Dr. Marler finally began Johnson’s pre-therapy checklist and
(retroactively) completed his notes from the June 11 appointment.
On July 16, Dr. Marler ordered an abdominal ultrasound to
determine whether the FibroSure test results were an accurate
reflection of the severity of Johnson’s HCV. Ultimately, the
ultrasound neither confirmed nor dispelled the FibroSure test’s
indication of cirrhosis.
On the other hand Dr. Marler contends that, after receiving
Johnson’s FibroSure test results, he immediately ordered an offsite
consult for HCV, noting that the results showed “stage F4 cirrhosis
and needs prompt evaluation for treatment.” In a July 2017 email,
Dr. Marler wrote to Dr. Keith Ivens (CoreCivic’s Chief Medical
Officer), Dr. Lewis, and one additional doctor that Johnson’s
“pretreatment eval is nearly completed with only an abdominal
[ultrasound] remaining, that has been scheduled.” Dr. Marler
asserted that he promptly submitted Johnson’s case for completion
of the evaluation process. However, Dr. Marler fails to explain why
nothing happened between early August, when he received the
results of Johnson’s ultrasound, and November 2, when Johnson
was transferred yet again, this time to Coffee Correctional Facility
and out of Dr. Marler’s care. Nor does Dr. Marler offer an
explanation as to why Johnson was transferred to a new facility at
this time.
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According to Johnson, his transfer occurred under nefarious
circumstances. Frustrated by the continued lack of treatment,
Johnson filed a second grievance complaint on October 10, 2017.
The grievance was denied, and two days later, citing an
unexplained “Inmate on Staff Conflict,” Johnson was transferred to
Coffee. Johnson contends the transfer was in retaliation for filing
the second grievance complaint.
Once at Coffee, which was another private facility overseen
by CoreCivic, Dr. Guy Augustin took over Johnson’s care. Dr.
Augustin informed Johnson that he would attempt to start
treatment. While the record lacks specific details about the
circumstances, Johnson was again denied treatment in December
2017.
Johnson filed this suit in October 2016, which prompted
CoreCivic’s lawyers to get involved. In late January 2018, they
asked Dr. Augustin to provide Johnson’s treatment history.
Dr. Augustin emailed a medical history summary to Dr. Lewis on
January 29. A few hours later, she responded asking “WHO
reviewed and refused treatment? What care has been provided
since 2012?” Dr. Augustin then provided Dr. Lewis with a history
of Johnson’s detention facility transfers since 2012. The following
morning, Dr. Ivens, CoreCivic’s Chief Medical Officer, wrote to a
three-member doctor team, stating that Dr. Lewis had “expressed
concern about this case.” He also noted that there was a “clear
case” that Johnson be classified as a Priority 1 patient and to “make
provisions for treatment ASAP.” Johnson finally received his first
dose of HCV treatment in mid-February 2018.
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II
“We review a district court’s grant of summary judgment de
novo, applying the same legal standards applied by the district
court.” Valley Drug Co. v. Geneva Pharms.,
344 F.3d 1294, 1303 (11th
Cir. 2003) (citing Bailey v. Allgas, Inc.,
284 F.3d 1237, 1242 (11th Cir.
2002)).
Johnson claims that Drs. Ferrell, Lewis, and Marler violated
his Eighth Amendment right to be free from cruel and unusual
punishment. U.S. Const. amend. VIII. The Supreme Court has held
that, because this amendment prohibits “the unnecessary and
wanton infliction of pain,” Estelle v. Gamble,
429 U.S. 97, 104 (1976)
(quoting Gregg v. Georgia,
428 U.S. 153, 173 (1976)), it also prohibits
“deliberate indifference to serious medical needs of prisoners.”
Id.
“Federal and state governments [ ] have a constitutional obligation
to provide minimally adequate medical care to those whom they
are punishing by incarceration.” Hoffer v. Sec’y, Fla. Dep’t of Corr.,
973 F.3d 1263, 1270 (11th Cir. 2020) (quoting Harris v. Thigpen,
941
F.2d 1495, 1504 (11th Cir. 1991)). Deliberate indifference to a
prisoner’s serious medical needs is a violation of the Eighth
Amendment. Estelle,
429 U.S. at 104. Deliberate indifference,
however, is a “steep hill” for a plaintiff to climb. Hoffer, 973 F.3d at
1272.
Demonstrating deliberate indifference requires both an
objective and subjective showing. Id. at 1270 (citing Farrow v. West,
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320 F.3d 1235, 1243 (11th Cir. 2003)). A plaintiff must show that (1)
he suffered from an “objectively serious medical need” and (2) a
prison official acted with subjective deliberate indifference to that
medical need. Id.; see also Harper v. Lawrence Cnty.,
592 F.3d 1227,
1234 (11th Cir. 2010); Goebert v. Lee Cnty.,
510 F.3d 1312, 1326
(11th Cir. 2007). As to step one (the objective component), a
medical need that is objectively serious “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.” Goebert,
510 F.3d at 1326. As to step two
(the subjective component), a plaintiff must establish that the
defendant (1) had subjective knowledge of a risk of serious harm,
(2) disregarded that risk, and (3) acted with more than gross
negligence. Wade v. McDade,
67 F.4th 1363, 1366 (11th Cir. 2023). 2
Applying this framework to each of the defendants here, we
conclude that there are genuine disputes of material fact as to
whether Drs. Ferrell, Lewis, and Marler were deliberately
indifferent to Johnson’s serious medical needs. The district court
erred in granting summary judgment.
2
Our cases say both that the standard is “more than mere negligence”
and that it is “more than gross negligence.” Compare, e.g., McElligott v.
Foley,
182 F.3d 1248, 1255 (11th Cir. 1999), with Townsend v. Jefferson
Cty.,
601 F.3d 1152, 1158 (11th Cir. 2010). Because there are issues of
fact even under the “more than gross negligence” standard, we use
that formulation here. See Brooks v. Miller, -- F4th --,
2023 WL 5355022
at *12 n.4 (11th Cir. Aug. 22, 2023).
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III
We begin by acknowledging that the district court correctly
found that the objective showing of deliberate indifference is
satisfied with respect to each doctor. As this Circuit (and many
others) have found—and as no party currently disputes—an HCV
diagnosis is an objectively serious medical need. Hoffer, 973 F.3d at
1270. So, we move to the three-step subjective inquiry, considering
each doctor individually.
A. Dr. Ferrell
Dr. Ferrell was responsible for Johnson’s medical care
during the twenty-six months he served at Ware State Prison.
There is no dispute that Dr. Ferrell knew the risk of serious harm
to Johnson given his HCV diagnosis, satisfying the first prong of
the subjective inquiry. The dispute arises as to prongs two and
three: whether Dr. Ferrell acted with more than gross negligence
in disregarding that risk.
The primary issue here is Dr. Ferrell’s decision not to
administer the HCV treatment to Johnson notwithstanding
Dr. Chaudhary’s prescription. The effect of that decision turns on
whether the prescription was medically necessary. Johnson relies
on Ancata v. Prison Health Servs., Inc.,
769 F.2d 700, 704 (11th Cir.
1985), in which this Circuit held that, “if necessary medical
treatment has been delayed for non-medical reasons, a case of
deliberate indifference has been made out.”
Id. But cf. Youmans v.
Gagnon,
626 F.3d 557, 564 (11th Cir. 2010) (holding that delaying
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treatment for non-bleeding cuts and bruises was excusable because
police needed to book the plaintiff into prison). While Dr.
Chaudhary asserted that he prescribed Johnson’s HCV treatment
based on Johnson’s litigiousness, his own medical advocacy, and
out of an abundance of caution, Johnson correctly notes that these
justifications were only provided post-lawsuit. No
contemporaneous treatment documents or notes by Dr.
Chaudhary reflect these justifications. And, even if these
justifications are true, they do not necessarily negate a conclusion
of medical necessity.
For his part, Johnson successfully rebuts the notion that Dr.
Chaudhary’s prescription was not medically necessary. He was
sent to Dr. Chaudhary specifically for the purpose of determining
whether he needed HCV treatment. At that time Johnson’s liver
biopsy showed grade 2 inflammation, which indicated his disease
was progressing. There is sufficient evidence in the record to
conclude that Dr. Chaudhary’s prescription was both valid and
medically necessary. Johnson also points out that Dr. Ferrell
himself continuously confirmed to Johnson that he would receive
treatment per Dr. Chaudhary’s prescription.
There are genuine disputes of material fact as to whether Dr.
Ferrell’s reasons for delaying treatment were non-medical or even
pretextual. First, Dr. Ferrell claims he delayed administration of
treatment due to Johnson’s temporary relocation to another
prison, which Dr. Ferrell suggests could have disrupted the
delivery of the medication. That is not necessarily true. The
prescription (once Johnson finally received it) was easily
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16 Opinion of the Court 20-10150
transferred to another prison during a short-term stay. Second,
there is also a factual dispute about Dr. Ferrell’s next claim, that the
delay in the treatment administration was due to Johnson’s hernia
surgery. The record reveals that, following his hernia surgery on
October 1, 2013, Johnson returned to Ware just eight days later,
did not spend any time in the recovery unit, and took nothing more
than Tylenol to manage his pain. It strains credulity to believe that
Johnson’s hernia surgery prevented him from receiving treatment
for eight months.
Dr. Ferrell relies on Hoffer, 973 F.3d at 1268, to argue that
the delay does not amount to deliberate indifference. Hoffer is
inapplicable here. That case confronted whether the Hepatitis-C
treatment policy of the Florida Department of Corrections violated
the Eighth Amendment per se. This Circuit held that the policy—
which required the Department of Corrections to monitor inmates
with Stage 0 or Stage 1 HCV, rather than treat them with
medication—did not amount to deliberate indifference. The facts
here are well outside the bounds of Hoffer: Johnson had a valid,
outstanding prescription for HCV treatment, which he was denied.
If the question were simply whether the GDC’s HCV treatment
policy constituted a violation of the Eighth Amendment, Hoffer
would control. But that is not the question presented here.
The district court also concluded that Dr. Chaudhary’s
prescription was not valid because he never completed the pre-
therapy checklist required for treatment. Johnson argues that the
prescription itself was valid and it was Dr. Ferrell’s delay that
prevented the checklist from being completed. Johnson contends
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that this failure does not nullify the prescription, but is more
evidence of improper delay in treatment. This, like those
mentioned above, is a dispute of material fact. The district court
erred in making inferences in favor of Dr. Ferrell. If Johnson’s
account of his treatment (or lack thereof) under Dr. Ferrell is true,
a jury could find that the doctor’s actions amounted to deliberate
indifference by delaying and declining to administer Johnson’s
valid, outstanding HCV prescription without a valid justification.
B. Dr. Lewis
There are genuine disputes of material fact with respect to
Dr. Lewis’s conduct as well. The district court granted summary
judgment on the ground that Johnson failed to show that Dr. Lewis
had subjective knowledge of his HCV. But after months without
treatment, Johnson submitted a grievance complaint detailing his
condition and lack of treatment. The denial of Johnson’s grievance
bears Dr. Lewis’s signature—a fact from which a jury could
reasonably infer that she had knowledge of the contents of the
form. See Gordon v. Schilling,
937 F.3d 348, 358 (4th Cir. 2019)
(review and denial of prisoner’s grievance appeals by director was
evidence sufficient to establish a genuine issue of fact that director
had knowledge of prisoner’s HCV condition); United States v.
Gaines,
690 F.2d 849, 855 (11th Cir. 1982) (holding that a jury could
permissibly infer that an illiterate taxpayer’s signature on his tax
return was evidence that he knew of the false contents of the tax
return). Despite her signature appearing on the denial form, Dr.
Lewis swore in her affidavit that she had no actual knowledge of
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18 Opinion of the Court 20-10150
Johnson’s HCV. She avers that it is her regular practice to have staff
review grievance forms, and her signature appears on the form
simply by virtue of her role as the Statewide Medical Director.
Perhaps so. But, as Johnson points out, Dr. Lewis’s say-so of
having no actual knowledge of Johnson’s condition
notwithstanding her own signature on the grievance denial form
turns entirely on her credibility. Credibility determinations are
within the purview of the jury, not the district court. See United
States v. Grushko,
50 F.4th 1, 11 (11th Cir. 2022). There exists a
dispute of material fact as to whether Dr. Lewis actually or only by
delegation concluded that “medical personnel handled [Johnson’s
HCV] case appropriately.” The district court improperly credited
Dr. Lewis’s testimony that she had no knowledge of Johnson’s
HCV while ignoring the circumstantial evidence from which a jury
could conclude that she did.
C. Dr. Marler
Johnson takes issue with three delays in treatment while
under Dr. Marler’s care: the nearly two-year delay before
performing a non-invasive FibroSure test instead of administering
the liver biopsy Dr. Chaudhary had suggested; the two-month
delay between Johnson’s Stage 4 FibroSure test result and the
ultrasound confirmation results; and a four-month delay between
the ultrasound and Johnson leaving Dr. Marler’s care in November
2017 without having received any treatment. There are genuine
disputes of material fact regarding the delay at each stage. We take
each in turn.
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First, Johnson argues that Dr. Marler ignored Dr.
Chaudhary’s recommendation for a liver biopsy. In fact,
Dr. Chaudhary’s notes reveal something less than a
recommendation per se; he notes that a repeat liver biopsy should
be “considered” in one year’s time. Instead of conducting a liver
biopsy, Dr. Marler conducted routine check-ups, none of which,
according to Marler, suggested Johnson’s condition was rapidly
progressing. Nonetheless, Dr. Marler admits that a biopsy is the
most accurate measure of liver disease yet chose not to perform
one, despite the fact that Johnson’s ALT and AST scores were
outside of the normal ranges from the moment he entered
Dr. Marler’s care. And, as Johnson points out, there is no evidence
that Dr. Marler’s decision not to perform a biopsy was based on his
independent professional judgment. A jury could reasonably
conclude that Dr. Marler’s failure to conduct the biopsy, knowing
full well the potential risk and that Johnson had elevated markers,
amounts to something more than gross negligence.
The second alleged episodic delay in treatment arose on
June 11, 2017, when Johnson received the FibroSure test and his
results indicated severe progression of his HCV—F4 liver cirrhosis.
After receiving these results, Johnson contends that Dr. Marler did
nothing. Dr. Marler counters that he scheduled an ultrasound to
confirm the results of the FibroSure test. But, there is no evidence
that Dr. Marler did anything at all for 30 days to either pursue or
rule out the need for treatment until he began a pre-therapy
checklist on July 11, 2017. Drawing all inferences in favor of
Johnson, Dr. Marler received Johnson’s FibroSure test results
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20 Opinion of the Court 20-10150
indicating sever liver cirrhosis and did nothing for nearly a month.
A jury could very well conclude that his failure to promptly treat
amounted to more than gross negligence.
Finally, on August 2, 2017, Johnson received the liver
ultrasound that Dr. Marler scheduled. The results neither dispelled
nor confirmed liver cirrhosis. At that point Dr. Marler admitted
that “the degree of [Johnson’s] liver cirrhosis was still unclear.” And
yet, there is evidence indicating Dr. Marler continued to do
nothing. Johnson was abruptly transferred out of Dr. Marler’s care
to a different CoreCivic prison on November 2, 2017. Though Dr.
Marler claims he submitted Johnson’s case for treatment at some
point (but could not provide a date or any documentation of such
a referral), Johnson never received HCV treatment while under his
care. A jury could well conclude that the lack of treatment Johnson
received while under Dr. Marler’s care reflects more than gross
negligence.
***
The bar to proving an Eighth Amendment deliberate-
indifference claim is certainly high, but it is not insurmountable.
Johnson has raised a number of factual disputes regarding the
denial of his HCV treatment for over eight years. These disputes
are sufficiently material to be decided by a jury.
IV
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20-10150 Opinion of the Court 21
Johnson appeals the district court’s decision to deny his
motion to amend the complaint. “We generally review the denial
of a motion to amend a complaint for an abuse of discretion.”
Williams v. Bd. of Regents of Univ. Sys. of Ga.,
477 F.3d 1282, 1291
(11th Cir. 2007) (citations omitted). Abuse of discretion is an
extremely limited and highly deferential standard of review. It
allows for a “zone of choice within which” the district court “may
go either way.” United States v. Frazier,
387 F.3d 1244, 1259 (11th
Cir. 2004) (quoting Kern v. TXO Prod. Corp.,
738 F.2d 968, 971 (8th
Cir. 1984)).
Johnson, proceeding pro se, filed this case on October 12,
2016. His initial complaint raised § 1983 and ADA claims and
named numerous defendants including Drs. Ferrell, Lewis, and
Marler. On October 13, 2017, Johnson moved to amend his
complaint to add several new defendants and allege new facts.
Then, on December 22, 2017, before the magistrate judge had
ruled on Johnson’s motion to amend, an attorney named McNeill
Stokes entered an appearance on Johnson’s behalf and moved for a
30-day extension to respond to any outstanding motions and file a
restated complaint. The magistrate judge granted Stokes’s motion
for an extension and allowed him to file a “restated complaint.”
Accordingly, she denied Johnson’s motion to amend as moot.
On January 8, 2018, however, Stokes filed a motion to
withdraw as Johnson’s attorney because Johnson declined to sign a
representation agreement. That motion was granted on January 9,
2018. Johnson was not served with the denial of his motion to
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22 Opinion of the Court 20-10150
amend because, at the time of the denial, Stokes was still the
attorney of record.
Johnson alleges that the court abused its discretion by
denying as moot his motion to amend the complaint and, further,
that it violated Fed. R. Civ. P. 77(d)(1) because it never served
Johnson with a copy of the order, instead serving it on Stokes.
Specifically, Johnson contends that his motion could not have been
mooted by a legal filing from Stokes, who was neither a party nor
counsel to anyone in the proceeding.
There is no doubt that reconsidering Johnson’s motion to
amend sua sponte might have been the more prudent course of
action for a pro se plaintiff once Stokes withdrew as counsel. But,
that is not the standard for determining whether the district court
abused its discretion. And, while courts afford pro se plaintiffs some
liberties not enjoyed by members of the bar, construing the abuse
of discretion standard more liberally is not one of them. The
magistrate judge did not abuse his discretion by denying the
motion as moot nor by serving Stokes rather than Johnson with the
order, as Stokes was in fact the attorney of record at the time of the
denial. That Johnson had not yet signed a representation
agreement -- a fact not known by the district court -- does not mean
that an attorney-client relationship had not formed or that Stokes
acted in bad faith by entering an appearance on Johnson’s behalf at
that time. Absent evidence that Stokes fraudulently represented
that he was Johnson’s counsel, the district court’s failure to sua
sponte reconsider the motion to amend and to serve Johnson with
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20-10150 Opinion of the Court 23
a copy of its order do not amount to an abuse of the district court’s
considerable discretion.
V
We reverse the district court’s grant of summary judgment
as to Defendant-Appellees Ferrell, Lewis, and Marler and remand
this case for further proceedings. We affirm the district court’s
denial of Johnson’s motion to amend the complaint.
AFFIRMED IN PART AND REVERSED IN PART.
