Pablo Bauer v. Dr. Kramer

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-10581 ELEVENTH CIRCUIT
Non-Argument Calendar APRIL 25, 2011
________________________ JOHN LEY
CLERK
D.C. Docket No. 2:08-cv-00446-JES-DNF
PABLO BAUER,
llllllllllllllll Plaintiff-Appellant,
versus
DR. KRAMER,
NURSE BOCCIO,
NURSE T. GILSON,
llllllllllllDefendants-Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(April 25, 2011)
Before CARNES, ANDERSON, and BLACK, Circuit Judges.
PER CURIAM:
Pablo Bauer, a Florida prisoner proceeding pro se, appeals the district
court’s dismissal of his 42 U.S.C. § 1983 claims against Dr. Kramer, Nurse Teri
Gilson, and Nurse Michael Boccio, who provided medical care to Bauer while he
was incarcerated at the Charlotte Correctional Institution. Bauer contends that the
district court erred by dismissing his claims against Gilson for failure to state a
claim under Fed. R. Civ. P. 12(b)(6).1 He asserts that Gilson violated his rights
under the Eighth and Fourteenth Amendments when she forcibly and punitively
gave him the anti-psychotic medication Haldol without “side effect” medication.
We review de novo a district court’s decision to dismiss a complaint for
failure to state a claim under Fed. R. Civ. P. 12(b)(6). Hill v. White, 321 F.3d
1334, 1335 (11th Cir. 2003). “A prison official’s deliberate indifference to a
known, substantial risk of serious harm to an inmate violates the Eighth
Amendment.” Marsh v. Butler County, 268 F.3d 1014, 1028 (11th Cir. 2001) (en
1
Bauer’s claims against Kramer and Boccio were dismissed for failure to effect service of
process under Fed. R. Civ. P. 4(m). The district court first directed Bauer to complete service of
process forms for all the defendants on June 11, 2008. In an April 14, 2009 opinion and order,
the court warned Bauer that Kramer and Boccio still had not been served and that it was his
responsibility to find new addresses for the United States Marshal to re-attempt service of
process. Bauer failed to do so. On January 13, 2010, the court dismissed Bauer’s claims against
those two defendants under Rule 4(m) and denied Bauer’s motion for leave to file a third
amended complaint. Bauer did not challenge those rulings in his initial brief to this Court, so
those issues have been abandoned. See Timson v. Sampson, 518 F.3d 870, 874 (11th Cir. 2008)
(holding that an appellant, even when proceeding pro se, abandons an issue if he fails to raise it
in his initial brief).
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banc). Under the Due Process Clause of the Fourteenth Amendment prisoners
have “a significant liberty interest in avoiding the unwanted administration of
antipsychotic drugs.” Washington v. Harper, 494 U.S. 210, 221–22, 110 S.Ct.
1028, 1036 (1990); see also United States v. Diaz, 630 F.3d 1314, 1319 n.3 (11th
Cir. 2011). The Supreme Court has held, however, “that, given the requirements
of the prison environment, the Due Process Clause permits the State to treat a
prison inmate who has a serious mental illness with antipsychotic drugs against his
will, if the inmate is dangerous to himself or others and the treatment is in the
inmate’s medical interest.” Washington, 494 U.S. at 227, 110 S.Ct. at 1039–40.
The Court also observed that, in applying that rule, “an inmate’s interests are
adequately protected, and perhaps better served, by allowing the decision to
medicate to be made by medical professionals rather than a judge.” Id. at 231, 110
S.Ct. at 1042.
The decision to medicate with Haldol and which, if any, additional
medication to administer for side effects, was made by Dr. Kramer, not Nurse
Gilson. It is undisputed that on two occasions, January 8, 2008 and January 17,
2008, Dr. Kramer prescribed a shot Haldol for Bauer, and Nurse Gilson
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administered one of those shots under the doctor’s orders.2 Bauer’s second
amended complaint asserts that Dr. Kramer “order[ed] the unnecessary and
unjustified shots on both occasions.” The only allegation made against Gilson is
that she “influenced” Dr. Kramer to prescribe the medication. Bauer asserts that
his injuries were caused by “the infliction of the antipsychotic medication (Haldol)
without side effect medication,” which caused him to suffer side effects, pain and
suffering, and permanent damage.
A doctor’s decision about the type of medicine that should be prescribed is
generally “a medical judgment” that is “an inappropriate basis for imposing
liability under section 1983.” Adams v. Poag, 61 F.3d 1537, 1547 (11th Cir.
1995); see also Waldrop v. Evans, 871 F.2d 1030, 1033 (11th Cir. 1989) (“Mere
medical malpractice, however, does not constitute deliberate indifference. Nor
does a simple difference in medical opinion.”). As we have already mentioned, it
is undisputed that Dr. Kramer prescribed the medication in the present case.
Nurse Gilson was not deliberately indifferent when she carried out Dr.
Kramer’s medical orders by administering the prescribed medication. In fact, the
opposite is true—if she had ignored the doctor’s orders and had not administered
2
The other shot was administered by Nurse Boccio, who was dismissed from the case
based on Bauer’s failure to effect service under Rule 4(m). See supra n.1.
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the medication, she might have been deliberately indifferent to Bauer’s medical
needs. See Young v. City of Augusta, Ga. Through DeVaney, 59 F.3d 1160,
1170–71 (11th Cir. 1995) (explaining that if “[the inmate] did not receive
medication as prescribed,” that could “lead to a finding that her rights were
violated.”); see also Aldridge v. Montgomery, 753 F.2d 970, 972 (11th Cir. 1985)
(explaining that a plaintiff may establish that prison officials are deliberately
indifferent by showing that they have “intentionally interfer[ed] with the treatment
once prescribed”) (quoting Estelle v. Gamble, 429 U.S. 97, 105, 97 S.Ct. 285, 291
(1976)). A nurse is not deliberately indifferent when she reasonably follows a
doctor’s orders by administering prescribed medication to an inmate. Bauer makes
only a vague allegation that Gilson “influenced” Kramer to prescribe the
medication, and he has not alleged facts showing that it was objectively
unreasonable for Gilson to follow Kramer’s medical orders. Thus, Bauer has
failed to state a claim for § 1983 liability against Gilson.
AFFIRMED.
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