Thomas G. Brennan v. Kim Tobias Thomas

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 17-14575
Non-Argument Calendar
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D.C. Docket No. 2:14-cv-01021-TFM
THOMAS G. BRENNAN,
Plaintiff-Appellant,
versus
KIM TOBIAS THOMAS,
individually and in official capacity,
Commissioner of Alabama Department of Corrections,
RUTH NAGLISH,
individually and in official capacity,
Deputy Commissioner of Health Services for the Alabama Department of
Corrections,
LOUIS BOYD,
individually and in official capacity,
Warden at Draper Correctional Facility,
PHYLLIS BILLUPS,
individually and in official capacity,
Deputy Warden at Draper Correctional Facility for the Alabama Department of
Corrections,
LARRY PHILYAWL,
individually and in official capacity,
an officer (Lt.) at Draper Correctional Facility for the Alabama Department of
Corrections,
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WILLY JACKSON, individually and in official capacity, Chief Steward at
Draper Correctonal Facility for the Alabama Department of Corrections, et al.,
Defendants-Appellees.
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Appeal from the United States District Court
for the Middle District of Alabama
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(July 18, 2019)
Before MARTIN, NEWSOM, and GRANT, Circuit Judges.
PER CURIAM:
Thomas Brennan, an Alabama prisoner proceeding pro se, brought 42
U.S.C. § 1983 and Americans with Disabilities Act claims against various state
prison officials and medical providers. 1 The magistrate judge2 granted summary
judgment to the defendants, and Brennan appeals.
I.
Brennan slipped and fell on a wax concrete floor at St. Clair prison in
Alabama, rupturing several discs in his neck and lower spine. He was referred to a
1
Brennan also briefly raised a retaliatory transfer claim after he was transferred to Bullock
Correctional Center. He abandoned the claim, however, by not including it when the magistrate
judge asked him to clarify the claims on which he wished to proceed. We decline to consider the
claim in the first instance on appeal. See Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324,
1331 (11th Cir. 2004).
2
The parties consented to magistrate judge authority over all proceedings below, including the
entry of final judgment, under 28 U.S.C. § 636(c) and Federal Rule of Civil Procedure 73.
2
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neurosurgeon, who performed surgery on Brennan’s neck in September 2011 and
prescribed Vicodin for postsurgical pain. The prison physician at St. Clair
continued to prescribe narcotic pain medications for chronic pain related to
Brennan’s back injuries and a preexisting leg-length discrepancy and scoliosis. By
the time Brennan was transferred to Draper Correctional Facility in June 2012, he
had been taking strong narcotic pain medications for several months.
As soon as he arrived at Draper, Brennan submitted requests for medical
treatment to have his pain medication renewed. At that time, Alabama contracted
with a private company, Corizon, LLC, to provide medical services for inmates
housed at Draper prison. Dyjerlynn Lampley-Copeland, a physician employed by
Corizon, evaluated Brennan three days after his prescriptions from St. Clair had
run out. Brennan told Dr. Lampley-Copeland that he was having pain and
withdrawal symptoms, including hot and cold flashes, nausea, diarrhea,
constipation, and sleeplessness, and asked her to prescribe narcotics. According to
Brennan, Dr. Lampley-Copeland reviewed his chart and told him that there was
“nothing wrong with him but chronic pain syndrome,” which Brennan understood
to mean that his pain was imaginary. She told him that the previous physician
should not have “caved in” and prescribed narcotics, and that she would have to
think about what to prescribe for him.
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Nine days later, Dr. Lampley-Copeland prescribed a 30-day course of
Ultram, an opioid narcotic medication that is less potent than the one that had been
prescribed for Brennan at St. Clair. When the prescription for Ultram ran out, Dr.
Lampley-Copeland refused to prescribe anything more than Tylenol and a muscle
relaxant for Brennan’s chronic pain, despite his complaints that only strong
narcotics provided adequate pain relief.
Brennan was also given several medical “special needs profiles,” which
allowed him the use of assistive equipment (including a walking cane and
orthopedic shoes), a bottom-bunk assignment, and activity restrictions prohibiting
heavy lifting or prolonged standing. With those profiles, prison officials assigned
him to work in the kitchen. For his first several months at Draper, however, the
kitchen stewards allowed Brennan to sleep in instead of working. In the meantime,
Brennan asked for a “no work” profile so that he could be medically excused from
doing work of any kind. Prison officials and medical providers refused to give him
one.
According to Brennan, on two occasions, corrections officers insisted that he
show up for kitchen duty and wipe tables in the dining room. After he complained
that wiping tables caused him pain, prison medical providers gave him a “no
stooping, no bending” profile, and he was excused from kitchen duty from then on.
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In late 2012, at Brennan’s request, his job assignment was changed from
kitchen duty to dorm cleaner. The work of a dorm cleaner included sweeping and
mopping, which aggravated Brennan’s back pain. When Brennan told one of the
prison physicians that sweeping and mopping was painful, the physician gave him
a “no sweeping, no mopping” profile. By all accounts, prison officials honored
that restriction and Brennan was allowed to skip that part of the job once he
received the profile.
Brennan filed a complaint seeking money damages pursuant to 42 U.S.C.
§ 1983, claiming that the defendants had violated his Eighth and Fourteenth
Amendment rights by cutting off his narcotic pain medication “cold turkey” and
refusing to give him narcotics thereafter. He also claimed that the defendants
forced him to work beyond his physical capabilities, in violation of the Eighth and
Fourteenth Amendments and Title II of the Americans with Disabilities Act
(“ADA”). The magistrate judge granted the defendants’ motions for summary
judgment on all of Brennan’s claims, and this appeal followed.
Although Brennan named 12 individual defendants in his complaint, his
arguments on appeal relate to only five of them: Corizon, LLC; Rich Hallworth,
the former Chief Executive Officer of Corizon; Stuart Campbell, Corizon’s former
President; Dr. Lampley-Copeland; and Michele Sagers-Copeland, the Corizon
Health Services Administrator at the facility where Brennan was treated. He has
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therefore abandoned his claims against the remaining defendants. 3 See Singh v.
U.S. Att’y Gen., 561 F.3d 1275, 1278–79 (11th Cir. 2009); Timson v. Sampson, 518
F.3d 870, 874 (11th Cir. 2008).
II.
Along with his appeal of the final judgment, Brennan challenges the
magistrate judge’s interlocutory orders denying three of his motions: (1) a motion
for default judgment on his ADA claims against the medical defendants, (2) a Rule
35(a) discovery motion asking the magistrate judge to order physical examinations
of him by outside providers, and (3) a motion to supplement his complaint to add
allegations that prison physicians had once again refused to prescribe strong
narcotics for him. We review all three orders for an abuse of discretion. See
Surtain v. Hamlin Terrace Found., 789 F.3d 1239, 1244 (11th Cir. 2015) (motion
for default judgment); Harrison v. Culliver, 746 F.3d 1288, 1297 (11th Cir. 2014)
(discovery motion); Schwarz v. City of Treasure Island, 544 F.3d 1201, 1229 (11th
Cir. 2008) (motion to supplement pleadings).
3
Brennan purports to incorporate his claims against most of the remaining defendants (the
Commissioner and Deputy Commissioner of the Alabama Department of Corrections, the
Warden and Deputy Warden of Draper prison, two correctional officers, and a nurse practitioner)
from his complaint and an unspecified responsive pleading filed in the district court, but he does
not make any argument or cite any authority challenging the magistrate judge’s analysis or
conclusions on those claims. Simply naming the defendants and referencing his claims against
them is insufficient to raise any issue on appeal. “[A]n appellant’s simply stating that an issue
exists, without further argument or discussion, constitutes abandonment of that issue and
precludes our considering the issue on appeal.” Singh v. U.S. Att’y Gen., 561 F.3d 1275, 1278–
79 (11th Cir. 2009).
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A.
When a defendant fails to plead or otherwise defend a case, the court may
enter a judgment of default. Fed. R. Civ. P. 55(a); see Surtain, 789 F.3d at 1244–
45. The entry of a default judgment should be reserved for “extreme
circumstances,” however, and courts “must respect the usual preference that cases
be heard on the merits.” Mitchell v. Brown & Williamson Tobacco Corp., 294 F.3d
1309, 1317 (11th Cir. 2002) (citation and punctuation omitted).
Here, the magistrate judge did not abuse its discretion in denying Brennan’s
motion for default judgment. The defendants responded to Brennan’s complaint
by removing the lawsuit to federal court and filing answers and/or responsive
reports as directed by the magistrate judge. Although the defendants initially failed
to address Brennan’s ADA claims in their responsive pleadings, such partial
omission is not the complete failure to respond to a complaint that is contemplated
in Rule 55, and the short delay in responding to some of Brennan’s claims did not
cause any prejudice to him. See id.B.
Rule 35(a)(1) provides that the district court “may order a party whose
mental or physical condition—including blood group—is in controversy to submit
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to a physical or mental examination by a suitably licensed or certified examiner.”
In ruling on a Rule 35 motion, the district court must first determine whether the
movant has made an adequate showing on the “in controversy” and “good cause”
requirements. Schlagenhauf v. Holder, 379 U.S. 104, 118–19 (1964). These
requirements “are not met by mere conclusory allegations of the pleadings—nor by
mere relevance to the case—but require an affirmative showing by the movant.”
Id. at 118.
Brennan asked the magistrate judge to order him sent to the local Social
Security field office for a disability determination and to an independent pain
management specialist for a “definitive” determination of the appropriate treatment
for his chronic pain. The magistrate judge did not abuse its discretion in denying
his Rule 35 motion because he failed to show good cause for the examinations that
he requested. He had already been examined by multiple physicians, including the
two outside specialists who evaluated him after his back injury. His medical
records, including recent CT and MRI imaging, were available to him upon service
of a discovery request. He was given the opportunity to conduct depositions by
written questions of any of his current or former treating physicians—at least three
of whom had prescribed what Brennan contended was the appropriate treatment for
his chronic pain—and could have elicited testimony from them about his medical
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condition (including whether he was disabled within the meaning of the ADA) 4
and the appropriate treatment for it. In short, Brennan made no showing that a
Social Security disability evaluation or an evaluation by a pain management
specialist would add anything to the information already available to him. See
Schlagenhauf, 379 U.S. at 118 (“The ability of the movant to obtain the desired
information by other means is also relevant” to the decision whether to grant a
motion for physical examination under Rule 35.).
C.
Federal Rule of Civil Procedure 15(d) provides that a district court “may, on
just terms, permit a party to serve a supplemental pleading setting out any
transaction, occurrence, or event that happened after the date of the pleading to be
supplemented.” Brennan sought to supplement his complaint to add allegations
that prison physicians had once again decided to wean him off his preferred pain
medication—this time Tylenol 3, which contains codeine. The documents filed
with Brennan’s motion to supplement showed that the treatment decision he
complained about was very recent, and Brennan had just filed grievances with the
prison about the medication change. Given that the facts underlying Brennan’s
4
A Social Security disability determination would not have been dispositive on the question of
whether Brennan was disabled within the meaning of the ADA. See Weiler v. Household Fin.
Corp., 101 F.3d 519, 524 (7th Cir. 1996); Robinson v. Neodata Serv., Inc., 94 F.3d 499, 502 n.2
(8th Cir. 1996).
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new allegations were still evolving, we cannot say that the magistrate judge “made
a clear error of judgment” or “applied the wrong legal standard” in denying
Brennan’s motion to supplement. Guideone Elite Ins. Co. v. Old Cutler
Presbyterian Church, Inc., 420 F.3d 1317, 1325 (11th Cir. 2005).
III.
This Court reviews a ruling on a summary judgment motion de novo,
viewing all evidence and factual inferences in the light most favorable to the
nonmoving party. Melton v. Abston, 841 F.3d 1207, 1219 (11th Cir. 2016).
Summary judgment is appropriate if the pleadings and evidence show “that there is
no genuine dispute as to any material fact and the movant is entitled to judgment as
a matter of law.” Fed. R. Civ. P. 56(a); see Celotex Corp. v. Catrett, 477 U.S. 317,
322–23 (1986). To survive a summary judgment motion, the nonmoving party
“must do more than simply show that there is some metaphysical doubt as to the
material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
586 (1986). He must make a sufficient showing on each essential element of his
claims. Celotex, 477 U.S. at 322–23.
A.
The essential elements of a 42 U.S.C. § 1983 claim are: (1) the violation of a
constitutional right or federal statute; and (2) that the violation was committed by a
person acting under color of state law. 42 U.S.C. § 1983; Melton, 841 F.3d at
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1220. “[T]he medical treatment of prison inmates by prison physicians is state
action” within the meaning of § 1983, regardless of whether the provider is
employed by the state directly or by contract. West v. Atkins, 487 U.S. 42, 54–56
(1988). The defendants here do not dispute that they qualified as state actors
within the meaning of § 1983, and so we proceed to evaluate Brennan’s claim that
Corizon and its employees violated his constitutional rights.
The Eighth Amendment’s prohibition of “cruel and unusual punishments”
governs “the treatment a prisoner receives in prison and the conditions under
which he is confined.” Helling v. McKinney, 509 U.S. 25, 31 (1993). The
Amendment imposes an affirmative obligation to provide prison inmates with
medical treatment. Estelle v. Gamble, 429 U.S 97, 103–04 (1976). A prison
official’s “deliberate indifference to serious medical needs of prisoners constitutes
the ‘unnecessary and wanton infliction of pain’ proscribed by the Eighth
Amendment.” Id. at 104 (internal citation omitted).
To prevail on a § 1983 claim for such a violation, a prisoner “must show:
(1) a serious medical need; (2) a defendant’s deliberate indifference to that need;
and (3) causation between that indifference and the plaintiff’s injury.” Melton, 841
F.3d at 1220. These elements encompass both objective and subjective
components—there must be “an objectively serious need, an objectively
insufficient response to that need, subjective awareness of facts signaling the need,
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and an actual inference of required action from those facts.” Taylor v. Adams, 221
F.3d 1254, 1258 (11th Cir. 2000). Here, Brennan failed to present evidence
supporting the first two elements of his § 1983 claim.
“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.’” Mann v. Taser Int’l, Inc., 588
F.3d 1291, 1307 (11th Cir. 2009) (citation omitted). A medical need may also be
considered serious if a delay in treatment worsens the patient’s condition. Id. “In
either case, ‘the medical need must be one that, if left unattended, poses a
substantial risk of serious harm.’” Id.“Severe pain that is not promptly or adequately treated can also constitute a
serious medical need depending on the circumstances.” Melton, 841 F.3d at 1222.
But a plaintiff’s statement that he experienced some pain or discomfort is not
enough; the prisoner’s pain must be objectively so severe that the failure to treat it
deprives him “of the minimal civilized measure of life’s necessities.” Farmer v.
Brennan, 511 U.S. 825, 834 (1994). For example, this Court has held that the
deliberate failure to obtain medical treatment for broken bones or equally painful
or progressive conditions can violate the constitution. See Melton, 841 F.3d at
1222 (obviously broken arm); McElligott v. Foley, 182 F.3d 1248, 1257 (11th Cir.
1999) (terminal cancer evidenced by severe abdominal pain and significant weight
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loss); Brown v. Hughes, 894 F.2d 1533, 1538 (11th Cir. 1990) (broken and
swelling foot).
To show “deliberate indifference,” a prisoner must show that the defendant
actually knew that the inmate was at risk of serious harm if he did not receive
medical treatment, but unreasonably—and at least recklessly—delayed, failed to
provide, or refused to provide medical treatment. McElligott, 182 F.3d at 1255. A
showing of negligence or medical malpractice in the diagnosis or treatment of a
prisoner’s medical condition is not enough to meet this standard. Estelle, 429 U.S.
at 105–06. Instead, when the alleged constitutional violation is the withholding of
medical care, “there must be a subjective intent by the public officials involved to
use the sufficiently serious deprivation in order to punish.” Taylor, 221 F.3d at
1257.
“Whether a prison official had the requisite knowledge of a substantial risk
is a question of fact subject to demonstration in the usual ways, including inference
from circumstantial evidence, and a factfinder may conclude that a prison official
knew of a substantial risk from the very fact that the risk was obvious.” Farmer v.
Brennan, 511 U.S. 825, 842 (1994) (internal citation omitted). But “an official’s
failure to alleviate a significant risk that he should have perceived but did not,
while no cause for commendation, cannot under our cases be condemned as the
infliction of punishment.” Id. at 838.
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Even viewed in the light most favorable to Brennan, the evidence here does
not support Brennan’s claim that the medical defendants intentionally disregarded
a serious medical need. First, he failed to show that Dr. Lampley-Copeland knew
that he was at risk of serious harm if she did not immediately prescribe narcotics
for his chronic pain. There was no evidence of an objectively serious medical
need—according to the available records, Brennan was able to stand, sit, and walk
without obvious difficulty even when he was given no pain medication at all.
Furthermore, Brennan’s own affidavit testimony states that, after reviewing his
medical chart and imaging, Dr. Lampley-Copeland did not believe that his medical
condition was serious. The medical records and Dr. Lampley-Copeland’s affidavit
testimony further establish that it was her medical opinion that treatment with
narcotic pain medication was not appropriate for Brennan, at least not on a long-
term basis.
And although Brennan complained of withdrawal symptoms, there is no
evidence that anyone else observed any sign of discomfort related to withdrawal.
Nor is there any evidence that cutting off Brennan’s narcotic medication “cold
turkey,” waiting for nine days, and then prescribing a less potent narcotic
temporarily (as Dr. Lampley-Copeland did) was an intentional deprivation
intended to punish Brennan. As we have said before, “‘a simple difference in
medical opinion between the prison’s medical staff and the inmate as to the latter’s
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diagnosis or course of treatment’ does not support a claim of deliberate
indifference.” Melton, 841 F.3d at 1224 (citation omitted).
Brennan’s § 1983 claims against the other Corizon defendants (Corizon,
LLC; two former officers of the company; and the Corizon health services
administrator for the prison clinic) are derivative of his claims against Dr.
Lampley-Copeland. Even if the named defendants have supervisory authority over
Dr. Lampley-Copeland’s medical decisions, they cannot be held vicariously liable
under § 1983 for her actions. See Goebert v. Lee County, 510 F3d. 1312, 1331
(11th Cir. 2007). Instead, Brennan must show that they (1) were directly involved
in unlawful conduct, (2) implemented a custom or policy that resulted in a
constitutional violation, (3) instructed Dr. Lampley-Copeland to commit a
constitutional violation, or (4) knew that Dr. Lampley-Copeland would violate his
constitutional rights and failed to prevent it. Harrison v. Culliver, 746 F.3d 1288,
1298 (11th Cir. 2014). Similarly, because Corizon, LLC was performing a
“function traditionally within the exclusive prerogative of the state” in providing
prison medical services, Brennan must show that Corizon had a custom or policy
that caused a constitutional deprivation in order to satisfy the element of causation
for his § 1983 claim. See Buckner v. Toro, 116 F.3d 450, 453 (11th Cir. 1997).
But the evidence showed only that one or more of the Corizon defendants was
aware that Dr. Lampley-Copeland refused to prescribe strong narcotics for his
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chronic pain. Again, a dispute over the adequacy of medication prescribed by a
treating physician generally does not amount to a constitutional claim. See Melton,
841 F.3d at 1224; Hamm v. DeKalb Cty., 774 F.2d 1567, 1575 (11th Cir. 1985).
Because the evidence does not support Brennan’s claim that his
constitutional rights were violated, the magistrate judge did not err in granting the
defendants’ motion for summary judgment on his § 1983 claim. 5
B.
Title II of the ADA, 42 U.S.C. § 12131 et seq., provides that “no qualified
individual with a disability shall, by reason of such disability, be excluded from
participation in or be denied the benefits of the services, programs, or activities of
a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C.
§ 12132. The ADA creates a private cause of action for money damages against a
public entity that violates its provisions. See 42 U.S.C. § 12133; United States v.
Georgia, 546 U.S. 151, 154 (2006). State prisons qualify as public entities under
the ADA. Pa. Dep’t of Corr. v. Yeskey, 524 U.S. 206, 210 (1998). Individuals and
private entities, however, are not subject to liability under Title II of the ADA. See
Edison v. Douberly, 604 F.3d 1307, 1308 (11th Cir. 2010).
5
The magistrate judge also found that several of the individual defendants, including three
medical providers employed by Corizon, were entitled to qualified immunity. Because we hold
that summary judgment was appropriate on other grounds, we need not consider whether the
privately employed medical providers were entitled to qualified immunity. See Rowe v.
Schreiber, 139 F.3d 1381, 1382 n.2 (11th Cir. 1998) (“We may affirm a decision on any
adequate grounds.”).
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On appeal, Brennan makes only one ADA argument: that Dr. Lampley-
Copeland and Sagers-Copeland refused to issue him a “no work” profile even
though they knew that he was being required to do work beyond his capabilities.
Construing this argument broadly, we interpret it to mean that Dr. Lampley-
Copeland and Sagers-Copeland discriminated against him by failing to make
reasonable accommodation for his disability. Pretermitting the questions whether
Brennan was disabled within the meaning of the ADA and whether the “no work”
profile he sought was a reasonable accommodation, the magistrate judge correctly
granted summary judgment to Dr. Lampley-Copeland and Sagers-Copeland
because they are not “public entities,” and therefore are not subject to liability
under Title II of the ADA. Edison, 604 F.3d at 1308.
Because the evidence did not support Brennan’s claim that the defendants
were deliberately indifferent to a serious medical need, the magistrate judge
correctly granted summary judgment on his 42 U.S.C. § 1983 claim. The
magistrate judge also appropriately granted the individual defendants’ motion for
summary judgment on Brennan’s ADA claim, because as individuals they are not
subject to suit under Title II. And for the reasons stated above, the magistrate
judge did not abuse its discretion in denying Brennan’s motions for default
judgment, for an independent medical examination, and to supplement his
complaint. Accordingly, we affirm.
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AFFIRMED.
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