Mark Mann v. Secretary, Department of Corrections

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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-11445
Non-Argument Calendar
____________________
MARK MANN,
Plaintiff-Appellant,
versus
SECRETARY, DEPARTMENT OF CORRECTIONS,
E. PEREZ PEREZ,
M. REMIREZ,
PA Doctor,
C. CALDERON,
Dr.,
CENTURION OF FLORIDA, LLC,
A Florida limited liability company, et al.,
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2 Opinion of the Court 21-11445
Defendants-Appellees.
____________________
Appeal from the United States District Court
for the Northern District of Florida
D.C. Docket No. 1:17-cv-00241-AW-GRJ
____________________
Before JORDAN, ROSENBAUM, and GRANT, Circuit Judges.
PER CURIAM:
Mark Mann, a Florida prisoner, appeals the district court’s
grant of summary judgment to Cesar Calderon, M.D., on his claim
that Calderon was deliberately indifferent to his serious medical
needs. Because Mann has not established that Calderon’s conduct,
even if professionally negligent, rose to the level of deliberate indif-
ference, we affirm the grant of summary judgment.
I.
We review the grant of summary judgment de novo, view-
ing the facts in the light most favorable to Mann, the non-moving
party. Mann v. Taser Int’l, Inc., 588 F.3d 1291, 1303 (11th Cir. 2009.
Mann was incarcerated at Holmes Correctional Institution
in May 2014, when he first complained of diarrhea and blood in his
stool. Mann was 36 years old at that time, and there’s no record he
reported a family history of colon cancer. An abdominal x-ray was
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21-11445 Opinion of the Court 3
essentially normal, and the symptoms appear to have resolved
within a week. Approximately one week after he was seen, Mann
reported he “had no more blood,” and fecal occult blood tests came
back negative. He was diagnosed with internal hemorrhoids. He
was transferred to Tomoka Correctional Institution in July 2014.
In January 2015, Mann submitted a sick-call request com-
plaining of stomach pains, diarrhea, and blood in his stool. He
wrote that the symptoms were similar to ones he first experienced
ten or eleven months earlier. A nurse saw him and recommended
a physician evaluation. He was seen by Dr. Calderon on January
29, 2015. Mann complained of having abdominal discomfort for
two months and diarrhea, blood in his stool, and pain in his upper
stomach that was worse when he ate. Calderon diagnosed Gas-
troesophageal reflux disease (“GERD”) and ordered labs, an x-ray,
and fecal occult blood tests. Calderon also prescribed Imodium
and Protonix. The x-ray was essentially normal. The lab reports
noted a hemoglobin level of 9.6 g/dl and a hematocrit of 33.6,
which were below the normal range, indicating anemia. Calderon
reviewed and initialed the lab reports on February 16, 2015.
On March 9, 2015, Mann submitted an inmate request ask-
ing about further tests on his stomach because he still had the
“same problems” of stomach pain and “periodically passing blood.”
The next day, a medical clerk wrote back that his “lab work was
reviewed by the MD who made no note that he needed to see you.”
The clerk advised that if Mann was still having issues he could
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4 Opinion of the Court 21-11445
“return to sick call to be evaluated” and the nursing staff could go
over the test results with him and answer his questions.
There’s no record of another sick-call request until May 22,
2016, when Mann complained of extreme pain in his lower stom-
ach for the past two weeks. Further evaluation and testing in the
following weeks, including a CT scan, showed a mass in his colon
and culminated in a diagnosis of Stage IV colon cancer. He had
colorectal surgery and began chemotherapy.
In October 2017, Mann sued Dr. Calderon and others alleg-
ing that they were deliberately indifferent to his serious medical
needs, in violation of Eighth Amendment rights. After counsel ap-
peared on Mann’s behalf in January 2019, and a period of discovery
in which both parties proffered expert witnesses, the district court
dismissed by stipulation of the parties any claims arising on or after
May 15, 2016. Then, a magistrate judge recommended granting
summary judgment as to all remaining defendants except Calde-
ron. Calderon objected; Mann didn’t. The district court overruled
the magistrate judge’s recommendation as to Calderon, and it
granted summary judgment to the defendants on all remaining
claims. Mann now appeals.
The sole claim before us on appeal is Mann’s deliberate-in-
difference claim against Dr. Calderon. Calderon, in Mann’s view,
exercised deliberate indifference when he failed to refer Mann for
further evaluation and treatment by a specialist, including a colon-
oscopy, and this significantly altered Mann’s prognosis in the treat-
ment of his colon cancer. He asserts that Calderon’s decision to
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21-11445 Opinion of the Court 5
treat him for GERD amounted to no treatment at all for his most
severe symptom, colorectal bleeding, and that “any person with
medical training should have ordered an immediate colonoscopy.”
II.
Prison officials violate the Eighth Amendment’s bar on cruel
and unusual punishments when they display deliberate indiffer-
ence to serious medical needs of prisoners. Melton v. Abston, 841
F.3d 1207, 1220 (11th Cir. 2016). But not “every claim by a prisoner
that he has not received adequate medical treatment states a viola-
tion of the Eighth Amendment.” Estelle v. Gamble, 429 U.S. 97,
105 (1976).
A deliberate-indifference claim has both an objective com-
ponent and a subjective component. Goebert v. Lee Cnty., 510
F.3d 1312, 1326 (11th Cir. 2007). The claim requires an objectively
“serious medical need”—that 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 doc-
tor’s attention.” Id. (quotation marks omitted).
The plaintiff also must “show the prison official’s (1) subjec-
tive knowledge of a risk of serious harm; (2) disregard of that risk;
and (3) by conduct that is more than mere negligence.” Bingham
v. Thomas, 654 F.3d 1171, 1176 (11th Cir. 2011) (quotation marks
omitted); see Farmer v. Brennan, 511 U.S. 825, 837 (1994) (explain-
ing that the standard of deliberate indifference is consistent with
recklessness in the criminal law). “Conduct that is more than mere
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negligence includes: (1) grossly inadequate care; (2) a decision to
take an easier but less efficacious course of treatment; and (3) med-
ical care that is so cursory as to amount to no treatment at all.”
Bingham, 654 F.3d at 1176.
But “[m]ere incidents of negligence or malpractice do not
rise to the level of constitutional violations.” Harris v. Thigpen,
941 F.2d 1495, 1505 (11th Cir. 1991); see Swain v. Junior, 961 F.3d
1276, 1288 (11th Cir. 2020) (“Deliberate indifference is not a consti-
tutionalized version of common-law negligence.”). Deliberate in-
difference is about “obduracy and wantonness, not inadvertence or
error in good faith.” Whitley v. Albers, 475 U.S. 312, 319 (1986).
“It is the equivalent of recklessly disregarding a substantial risk of
serious harm to the inmate.” Cottrell v. Caldwell, 85 F.3d 1480,
1491 (11th Cir. 1996) (quotation marks omitted). This is a difficult
standard to meet: “Medical treatment violates the Eighth Amend-
ment only when it is so grossly incompetent, inadequate, or exces-
sive as to shock the conscience or to be intolerable to fundamental
fairness.” Hoffer v. Sec’y, Fla. Dep’t of Corr., 973 F.3d 1263, 1271
(11th Cir. 2020) (cleaned up).
III.
The district court properly granted summary judgment to
Dr. Calderon. Although it is surely no comfort to Mann, no rea-
sonable jury could conclude that Calderon was deliberately
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21-11445 Opinion of the Court 7
indifferent to Mann’s serious medical needs at Tomoka before May
15, 2016, the stipulated cut-off date.1
As relevant to Mann’s claim, the record shows that Dr. Cal-
deron performed a single examination of Mann on January 29,
2015, during which Mann complained of having abdominal dis-
comfort for two months and diarrhea, blood in his stool, and pain
in his upper stomach that was worse when he ate. Calderon diag-
nosed GERD, prescribed Imodium and Protonix, and ordered labs,
an x-ray, and fecal occult blood tests. Calderon then reviewed and
initialed lab reports reflecting that Mann had anemia on February
16, 2015. He did not order any further evaluation or testing.
Mann’s expert, Heath Beckham, M.D., opines that it was
“grossly negligent” for Dr. Calderon not to refer Mann’s colorectal
bleeding and other symptoms “for further evaluating by a specialist
for consideration of colonoscopy or CT scan.” 2 Dr. Beckham notes
that the American Society of Gastroenterology recommends that
patients under 50 with colorectal bleeding be “aggressively
1We assume without deciding that Mann had an objectively serious medical
need at all relevant times.
2 We aren’t required to accept Mann’s expert’s bare legal conclusion that Cal-
deron’s conduct was “grossly negligent,” which he says is equivalent to reck-
lessness as the term “gross negligence” is defined in Florida law. See, e.g.,
Montgomery v. Aetna Cas. & Sur. Co., 898 F.2d 1537, 1541 (11th Cir. 1990)
(“A witness also may not testify to the legal implications of conduct; the court
must be the jury’s only source of law.”). We otherwise accept the expert’s
testimony as true for purposes of summary judgment.
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8 Opinion of the Court 21-11445
evaluated” through a colonoscopy or other measures to determine
the cause of the bleeding. He also asserts that fecal occult blood
tests are “not a very good test to rule out colon cancer,” and that
“benign anorectal conditions such as hemorrhoids or fissures do
not cause abdominal pain or a change in bowels habits and rarely
cause anemia unless the bleeding is substantial and are not symp-
tomatic of GERD.”
We assume that Dr. Calderon’s failure to refer Mann to a
specialist or order a colonoscopy violated the applicable standard
of care and could support a negligence claim. But as unfortunate
as the results here are, “[m]ere incidents of negligence or malprac-
tice do not rise to the level of constitutional violations.” Harris,
941 F.2d at 1505. And Mann’s expert testimony doesn’t establish
conduct beyond negligence because it “at best allows an inference
by the jury that a doctor should have perceived the risk of serious
harm but not an inference that the doctor actually did perceive the
risk and persisted in his course of treatment anyway.” Campbell v.
Sikes, 169 F.3d 1353, 1371–72 (11th Cir. 1999).
The record contains no evidence from which a jury could
infer that Dr. Calderon knew of and “recklessly disregard[ed] a sub-
stantial risk of serious harm” to Mann. Cottrell, 85 F.3d at 1491.
Rather, the evidence shows that Mann saw Calderon only once
during the relevant period and that Calderon diagnosed GERD, or-
dered lab work and x-rays, and prescribed medication for Mann’s
irritable bowel. See Waldrop v. Evans, 871 F.2d 1030, 1035 (11th
Cir. 1989) (“[W]hen a prison inmate has received medical care,
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21-11445 Opinion of the Court 9
courts hesitate to find an Eighth Amendment violation.”). While
the lab results indicated that Mann had anemia, the other tests were
apparently normal, and Mann was relatively young with no re-
ported family history of colon cancer. Even Mann’s expert doesn’t
dispute that GERD may cause at least some of the reported symp-
toms, and he acknowledges that benign conditions like hemor-
rhoids or fissures may cause bleeding and anemia, even if they do
so only “rarely.” In fact, Mann’s prison records show that he had
been diagnosed with internal hemorrhoids arising out of a bout of
diarrhea and colorectal bleeding in May 2014. Those symptoms
appear to have resolved largely on their own within a week.
The record contains no evidence that Dr. Calderon knew
Mann continued to experience colorectal bleeding and other symp-
toms, or that such symptoms were indicative of cancer, between
February 16, 2015, when he reviewed the lab results, and May 15,
2016. Although Mann notified prison officials that he continued to
experience symptoms of abdominal pain and colorectal bleeding in
March 2015, nothing in the record shows that Calderon was made
aware of Mann’s complaint or that Mann submitted a sick-call re-
quest again until after May 15, 2016, the stipulated cut-off date for
Mann’s claim against Calderon. As a result, the evidence fails to
show that Calderon knew Mann’s symptoms hadn’t resolved, as
they had back in May 2014, or that more aggressive evaluation and
treatment was necessary.
In sum, Mann hasn’t shown that Dr. Calderon, based on
what he knew at the time, failed to respond to Mann’s medical
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10 Opinion of the Court 21-11445
needs “by conduct that is more than mere negligence.” Bingham,
654 F.3d at 1176. Mann’s claim is essentially one of missed diagno-
sis or the failure to do additional testing, which isn’t grist for a con-
stitutional claim. See Adams v. Poag, 61 F.3d 1537, 1545 (11th Cir.
1995) (“[W]hether governmental actors should have employed ad-
ditional diagnostic techniques or forms of treatment is a classic ex-
ample of a matter for medical judgment and therefore not an ap-
propriate basis for grounding liability under the Eighth Amend-
ment.” (quotation marks omitted)). That Calderon may have
“fail[ed] to alleviate a significant risk that he should have perceived
but did not, while no cause for commendation, cannot . . . be con-
demned as the infliction of punishment” barred by the Eighth
Amendment. Farmer, 511 U.S. at 838.
For these reasons, we affirm the district court’s grant of sum-
mary judgment to Dr. Calderon on Mann’s claim of deliberate in-
difference.
AFFIRMED.