Lorenzo Roosevelt Moore v. Dr. A. Guzman

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
FILED
No. 08-16420 U.S. COURT OF APPEALS
Non-Argument Calendar ELEVENTH CIRCUIT
JANUARY 20, 2010
________________________
JOHN LEY
ACTING CLERK
D. C. Docket No. 05-01577-CV-1-RBP-HGD
LORENZO ROOSEVELT MOORE,
Plaintiff-Appellant,
versus
DR. A. GUZMAN,
DR. M. STILES,
A. DIZON, HSA,
L. DELVALLE, AHSA,
H. DELA CRUZ, SPA,
UNITED STATES OF AMERICA,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
_________________________
(January 20, 2010)
Before TJOFLAT, WILSON and KRAVITCH, Circuit Judges.
PER CURIAM:
Lorenzo Moore appeals from the district court’s order granting summary
judgment to the defendants on his civil rights and tort claims. Specifically, Moore
challenges the district court’s ruling that a statement in his affidavit constituted
inadmissible hearsay. After reviewing the court’s evidentiary ruling for an abuse
of discretion, see United Techs. Corp. v. Mazer, 556 F.3d 1260, 1278 (11th Cir.
2009), and its ruling on summary judgment de novo, see Skrtich v. Thornton, 280
F.3d 1295, 1299 (11th Cir. 2002), we affirm.
I. BACKGROUND
Moore is a former inmate of the Federal Correctional Institute in Talladega,
Alabama who injured his back while incarcerated. The individual defendants are
health care professionals employed by the prison who allegedly made Moore wait
18 months for the surgery he ultimately needed. After exhausting his
administrative remedies, Moore initiated a Bivens action1 in the U.S. District Court
for the Northern District of Alabama against the individual defendants for
violations of his Eighth Amendment rights. He also sued the United States under
1
See Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388(1971).
2
the Federal Tort Claims Act (FTCA), 28 U.S.C. § 1346(b), for medical
malpractice.2
According to the record, Moore began experiencing back pain in July 2004
after injuring himself while exercising. A few days after his injury, he reported to
the prison’s Health Services Department, which initially prescribed him pain
medication. In response to Moore’s continuing complaints of pain, swelling, and
weakness in his back and lower extremities, the individual defendants prescribed
stronger medications and approved a battery of tests, which included multiple x-
rays, MRIs, and studies designed to test nerve function. Over the course of the
following year, the defendants also referred Moore to several outside medical
specialists, including an orthopedist and a neurologist.
In March of 2005, the neurologist opined that Moore’s condition did not
require “acute” surgical intervention, but he suggested that Moore receive a
second opinion from a neurosurgeon. Dr. Stiles, one of the prison’s doctors,
reviewed the neurologist’s report and decided to continue treating Moore
conservatively with medication and bed-rest. In July, after performing additional
2
In July 2005, Moore filed a motion asking the district court to enjoin the individual
defendants to provide him with necessary medical care, and a magistrate judge construed his
motion as a complaint under Bivens. In 2007, the magistrate allowed Moore to amend his
complaint and join the United States as a defendant under the FTCA.
3
tests, the neurologist recommended that Moore see a neurosurgeon “as soon as
possible” to determine whether surgery was warranted. Upon receiving this
advice, Dr. Stiles and Dr. Guzman, the prison’s Clinical Director, tried to have
Moore transferred to a Bureau of Prisons Medical Referral Center, where he would
have been able to receive surgery, if necessary, and more extensive postoperative
care. When their August request for a transfer was denied a month later, they
referred Moore to a neurosurgeon in October. The neurosurgeon evaluated
Moore’s condition in December and identified the problem as a herniated disk in
Moore’s lumbar spine, which would require surgical repair. Following another
unsuccessful attempt to obtain a Medical Referral Center transfer, Moore received
surgery at the end of January 2006.
On these facts, the defendants moved for summary judgment,3 arguing that
no genuine issue of material fact existed to sustain Moore’s claims under the
Eighth Amendment and the FTCA. The individual defendants argued that their
treatment decisions did not show deliberate indifference to Moore’s medical
needs, and the United States argued that Moore had not produced any evidence
3
The magistrate judge ordered the defendants to submit special reports, with supporting
affidavits, to address Moore’s claims. After receiving Moore’s responses, the magistrate
construed the reports as a motion for summary judgment under Federal Rule of Civil Procedure
56.
4
that the defendants failed to meet the applicable standard of medical care. Moore
filed two sworn declarations in response, contending that the defendants had
repeatedly postponed necessary treatment for his back. In particular, Moore cited
the gap between the neurologist’s suggestion that he might need surgery and his
eventual consultation, months later, with a neurosurgeon. He also alleged that a
physician’s assistant told him in May 2006 that more x-rays should have been
performed to monitor his postoperative recovery and that he might “suffer
permanent nerve damage as a result of the delay in pursuing surgery.”
The magistrate judge concluded that the physician’s assistant’s statement
was inadmissible hearsay and recommended granting the defendants’ motion for
summary judgment on all of Moore’s claims. Moore objected and argued that any
hearsay contained in his declarations was admissible as part of a business record
under Federal Rule of Evidence 803(6). The district court adopted the
magistrate’s recommendation and dismissed the suit.
II. DISCUSSION
On appeal, Moore argues that summary judgment was improper because the
district court erred in refusing to consider the physician’s assistant’s statement. In
addition to his business-records argument, Moore now contends, in his reply brief,
5
that the statement fell within the hearsay exception for statements made for
purposes of medical diagnosis or treatment, Fed. R. Evid. 803(4).4
On motions for summary judgment, district courts may only consider
hearsay that would be admissible at trial under an exception to the hearsay rule.
Macuba v. DeBoer, 193 F.3d 1316, 1323 (11th Cir. 1999). The statement at issue
here does not fall within the business-records exception to the hearsay rule
because it is not a “memorandum, report, record, or data compilation.” Fed. R.
Evid. 803(6). In addition, Moore has abandoned his argument on the medical-
treatment-or-diagnosis exception by failing to raise it before us in his opening
brief. Although Moore is a pro se litigant entitled to having his briefs liberally
construed, even pro se litigants abandon arguments raised for the first time in their
reply briefs. Timson v. Sampson, 518 F.3d 870, 874 (11th Cir. 2008).
To ensure that his claims survived summary judgment, Moore had to
identify a disputed material fact essential to his claims. Fed. R. Civ. P. 56(c). To
prevail on his Eighth Amendment claim, Moore needed to establish that the
individual defendants’ treatment decisions revealed a deliberate indifference to his
serious medical needs. Goebert v. Lee County, 510 F.3d 1312, 1326 (11th Cir.
4
Moore also argues that the district court failed to consider various other statements, but
the record reveals that the district court considered everything but the statement of the
physician’s assistant.
6
2007). To prevail under the FTCA, he needed to satisfy the requirements of
Alabama medical malpractice law. See 28 U.S.C. § 1346(b)(1) (conferring
jurisdiction over suits against the United States “where the United States, if a
private person, would be liable to the claimant in accordance with the law of the
place where the act or omission occurred”); FDIC v. Meyer, 510 U.S. 471, 478
(1994) (emphasizing that state law is “the source of substantive liability under the
FTCA”). We agree with the district court that Moore failed to identify any
genuine issue of material fact to sustain his claims.
A prison official demonstrates deliberate indifference under the Eighth
Amendment when she knows of but disregards a substantial risk of serious harm
through conduct that is more than grossly negligent. Goebert, 510 F.3d at1326–27 (citing Bozeman v. Orum, 422 F.3d 1265, 1272 (11th Cir. 2005)).
Although Moore alleges that the individual defendants ignored his obvious
medical needs, they pursued an involved course of treatment that began with pain
medication, proceeded through a series of tests, and culminated in the surgery
necessary to repair his injured back. Regardless of whether the defendants
negligently delayed Moore’s surgery, “[m]edical malpractice does not become a
constitutional violation merely because the victim is a prisoner,” Estelle v.
Gamble, 429 U.S. 97, 106 (1976). On this record, no reasonable trier of fact could
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conclude that pursuing less invasive treatment options at first, and then trying to
transfer Moore to a better-equipped facility when the need for surgery became
fully apparent, was sufficiently reckless to violate his Eighth Amendment rights.
Cf. Farmer v. Brennan, 511 U.S. 825, 835–37 (1994) (defining deliberate
indifference in terms of recklessness); Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986) (“Where the record taken as a whole could not
lead a rational trier of fact to find for the nonmoving party, there is no genuine
issue for trial.” (quotation marks and citation omitted)).5
With respect to Moore’s FTCA claim, a defendant cannot be held liable for
medical malpractice in Alabama unless she fails “to exercise such reasonable care,
diligence and skill as physicians, surgeons, and dentists in the same general
neighborhood, and in the same general line of practice, ordinarily have and
exercise in a like case.” Ala. Code. § 6-5-484(a). Unless the applicable standard
of care would be obvious to a layperson, Alabama plaintiffs must “establish the
defendant physician’s negligence through expert testimony as to the standard of
care and the proper medical treatment.” Pruitt v. Zeiger, 590 So. 2d 236, 237–38
5
Moore also had an obligation to “place verifying medical evidence in the record to
establish the detrimental effect of [a] delay in medical treatment.” Townsend v. Jefferson
County, 582 F.3d 1252,1259 (11th Cir. 2009) (quotation marks and citation omitted). Moore
repeated the hearsay statement of the physician’s assistant in his sworn declaration, but he “failed
to provide medical records, expert testimony, or other evidence, other than [his] own testimony,
that any delay in treatment caused [him] to suffer any injury.” Id.
8
(Ala. 1991). Moore produced neither expert testimony nor a learned treatise, see
McMickens v. Callahan, 533 So. 2d 579, 581 (Ala. 1988), in opposition to the
defendants’ summary judgment motion.6 Because this failure “results in a lack of
proof essential to a medical malpractice plaintiff’s case” under Alabama law,
Pruitt, 590 So. 2d at 238, the district court properly granted the United States’
motion for summary judgment on Moore’s FTCA claim.
On the basis of our conclusion that summary judgment on Moore’s claims
was appropriate, the district court’s order is
AFFIRMED.
6
Needless to say, the statement of the physician’s assistant was not expert testimony.
9