Robert Ralph DiPietro v. Nina Cooper

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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-12874
Non-Argument Calendar
____________________
ROBERT RALPH DIPIETRO,
Plaintiff-Appellant,
versus
NINA COOPER,
Nurse,
MARY TERRY,
Nurse,
SHANEQUA MUSSA,
Chief Counselor,
PARNELL,
Lieutenant,
Defendants-Appellees.
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2 Opinion of the Court 21-12874
____________________
Appeal from the United States District Court
for the Middle District of Georgia
D.C. Docket No. 4:19-cv-00113-CDL-MSH
____________________
Before JORDAN, BRANCH, and ABUDU, Circuit Judges.
PER CURIAM:
Robert DiPietro, a Georgia prisoner proceeding pro se, ap-
peals the district court’s grant of summary judgment in favor of
four prison officials on his Eighth Amendment claim, filed pursuant
to 42 U.S.C. § 1983. He also appeals the district court’s denial of his
motions to appoint counsel, to appoint an expert witness, and for
copies of the papers he submitted in opposition to the prison offi-
cials’ motion for summary judgment. After careful consideration,
we affirm on all issues.
I
Because we write for the parties, we assume their familiarity
with the underlying record and recite only what is necessary to re-
solve this appeal. In reviewing the district court’s order, we take
the facts in the light most favorable to Mr. DiPietro. See Johnson v.
Bd. of Regents, 263 F.3d 1234, 1242-43 (11th Cir. 2001).
On Thursday, July 13, 2017, Mr. DiPietro went to the medi-
cal center at his correctional facility with what he believed to be a
spider bite. A few days earlier, he had noticed a bump about the
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size of a pimple on his left leg. By the time he went to the medical
center on July 13, the bump was roughly the size of a quarter with
a large pus head. At the medical center, he saw Nurses Mary Terry
and Nina Cooper. Mr. DiPietro showed Nurses Cooper and Terry
his leg and told them he thought he had been bitten by a spider,
and that he required immediate medical attention. Nurse Cooper
told Mr. DiPietro his injury was not caused by a spider bite. She
also told him to submit a sick call request to have an appointment
scheduled to see a doctor. In the meantime, Nurse Cooper advised
Mr. DiPietro to keep the affected area of his leg clean and avoid
touching it. Mr. DiPietro submitted a sick call request, and an ap-
pointment was scheduled for Monday, July 17, 2017.
Mr. DiPietro returned to the medical center on two subse-
quent days–on Friday, July 14, 2017, and on Saturday, July 15,
2017–where he again saw Nurses Cooper and Terry. On both days,
one of them told him that he had an appointment scheduled for
Monday, July 17, when he was to return. Mr. DiPietro testified at
his deposition that he did not recall showing Nurses Cooper and
Terry his leg on Friday or Saturday. Later, in a sworn declaration,
he averred that he showed them his leg on Friday, and pointed out
that the injury was worse and more painful.
Mr. DiPietro returned to the medical center on Sunday, July
16, 2017 because the bump on his leg was larger, more painful, and
now black and blue. He encountered Lieutenant Douglas Parnell,
the prison official on duty at the medical center, on Sunday. Mr.
DiPietro showed Lt. Parnell his leg and told him that he had been
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to the medical center three days in a row and had not received care.
Lt. Parnell told Mr. DiPietro that there were no medical profession-
als available that day, and that he was to return to his dorm. Absent
emergencies, the medical center does not provide medical services
on weekends.
When Mr. DiPietro refused to leave, Lt. Parnell handcuffed
him and placed him in a segregation cell or shower stall. Approxi-
mately an hour later, Shanequa Mussa, a chief counselor at the
prison, stopped by to speak with Mr. DiPietro where he was being
held. Mr. DiPietro showed Ms. Mussa his leg and told her he
needed immediate medical attention. According to Mr. DiPietro,
Ms. Mussa told him he would receive care only when they said so,
and “not a minute before.” He was eventually permitted to return
to his dorm.
The following day, on Monday, July 17, 2017, Mr. DiPietro
went to the medical center at his scheduled appointment time,
where he was seen by Nurse Denesha Harvey. According to Mr.
DiPietro, Nurse Harvey immediately asked him why he had waited
so long to seek medical attention. Mr. DiPietro again explained
that he believed he had been bitten by a spider. Nurse Harvey told
him that only testing could confirm what was wrong. In her notes,
however, Nurse Harvey indicated that Mr. DiPietro’s injury was
due either to a bug bite or cellulitis. She also noted that the wound
was “partially intact”, filled with clear fluid, and had “purulent
drainage.” Nurse Harvey prescribed Mr. DiPietro some antibiotics
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and took a sample from the wound for testing. She also noted that
the visit was “routine” rather than “urgent” or “emergent.”
Results of initial testing showed that Mr. DiPietro had a
staph infection. Further testing confirmed that he was suffering
from Methicillin Resistant Staphylococcus Aureus. As a result, he
was prescribed stronger antibiotics. Mr. DiPietro returned to the
medical center for periodic cleanings and wound care over the
course of approximately two months. The infection was treated,
and the wound eventually healed, but left a scar.
Based on these events, Mr. DiPietro filed a § 1983 action
against Nurse Cooper, Nurse Terry, Ms. Mussa, and Lt. Parnell,
alleging that all four individuals were deliberately indifferent to his
serious medical need. After discovery, the prison officials moved
for summary judgment in their favor. Mr. DiPietro opposed the
motion and submitted additional prison medical records in support
of his claim. He also submitted a sworn declaration averring to his
version of events. Separately, but on the same day, Mr. DiPietro
filed a motion asking the district court to send him copies of the
papers he submitted in response to the motion for summary judg-
ment. Both motions were referred to a magistrate judge, who de-
nied the motion for copies and recommended that the motion for
summary judgment be granted. Mr. DiPietro timely objected to
the magistrate judge’s recommendation. In addition to his objec-
tions, Mr. DiPietro submitted a supplemental sworn declaration
clarifying some of his earlier assertions. Of note, Mr. DiPietro
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6 Opinion of the Court 21-12874
stated that Nurses Cooper and Terry never examined his leg. In-
stead, he averred, they looked at his leg from approximately 15-20
feet away and for a few seconds at most.
The district court reviewed the magistrate judge’s recom-
mendation, Mr. DiPietro’s objections, as well as the record, and de-
termined that summary judgment was appropriate. Mr. DiPietro
timely appealed.
Over the course of the proceedings at the district court, Mr.
DiPietro asked the district court to appoint counsel and an expert
witness, which the district court declined to do. Mr. DiPietro now
appeals the district court’s denial of these requests and the denial
of his motion for copies.
II
We review de novo a district court’s grant of summary judg-
ment, applying the same legal standard used by the district court
and viewing the facts and drawing all inferences in the light most
favorable to the nonmoving party. See Johnson, 263 F.3d at 1242–
43. Rule 56(c) of the Federal Rules of Civil Procedure “mandates
the entry of summary judgment . . . against a party who fails to
make a showing sufficient to establish the existence of an element
essential to that party’s case.” Celotex Corp. v. Catrett, 477 U.S. 317,
322 (1986).
A
The Eighth Amendment forbids “deliberate indifference to
a prisoner’s serious illness or injury.” Estelle v. Gamble, 429 U.S. 97,
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105 (1976). To state a cognizable claim under § 1983, “a prisoner
must allege acts or omissions sufficiently harmful to evidence de-
liberate indifference to serious medical needs.” Id. at 106. Specifi-
cally, a plaintiff must establish “(1) a serious medical need; (2) the
defendants’ deliberate indifference to that need; and (3) causation
between that indifference and the plaintiff’s injury.” Mann v. Taser
Int’l, Inc., 588 F.3d 1291, 1306–07 (11th Cir. 2009).
Once a serious medical illness or injury has been established,
a plaintiff must show that a defendant acted with deliberate indif-
ference to that need. To establish deliberate indifference, a plaintiff
must demonstrate “(1) subjective knowledge of a risk of serious
harm; (2) disregard of that risk; (3) by conduct that is more than
mere negligence.” McElligott v. Foley, 182 F.3d 1248, 1255 (11th Cir.
1999). A delay in necessary treatment for non-medical reasons may
establish deliberate indifference if the plaintiff provides evidence
that “a delay in treating the need worsen[ed] the condition.” See
Mann, 588 F.3d at 1307. But mere evidence of negligence “in diag-
nosing or treating a medical condition” or a showing of medical
malpractice does not establish deliberate indifference. See Estelle,
429 U.S. at 106. In sum, “[m]edical treatment violates the [E]ighth
[A]mendment only when it is ‘so grossly incompetent, inadequate,
or excessive as to shock the conscience or to be intolerable to fun-
damental fairness.’” Harris v. Thigpen, 941 F.2d 1495, 1505 (11th
Cir. 1991) (citation omitted).
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The parties agree that Mr. DiPietro has established a serious
medical need. They disagree only on whether Mr. DiPietro pro-
vided sufficient evidence to create a genuine issue of material fact
regarding the prison officials’ deliberate indifference. For the rea-
sons explained below, we conclude that he did not.
B
The district court properly granted summary judgment with
respect to Mr. DiPietro’s claims against Nurses Cooper and Terry.
The summary judgment record here shows that Cooper examined
Mr. DiPietro’s injury on Thursday, July 13, 2017, the first time he
presented himself at the medical center. On the same day, she told
him she did not think his bump was caused by a spider bite. She
advised him to keep the affected area clean and avoid touching it.
Nurses Cooper and Terry also instructed Mr. DiPietro to submit a
sick call request so an appointment could be scheduled for him.
He did as he was told and an appointment was scheduled for the
following Monday–July 17, 2017–which was communicated to him
on the two subsequent days when he returned to the medical cen-
ter.
Mr. DiPietro insists that Nurses Cooper and Terry were de-
liberately indifferent because Nurse Cooper’s examination was no
examination at all, because the advice to keep the injury clean and
avoid touching it was incorrect medical advice, and because Nurses
Cooper and Terry were mean and hostile. According to Mr.
DiPietro, Cooper looked at his leg only for a moment and from
approximately 15-20 feet away. But on this record, Mr. DiPietro’s
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quarrel with the quality of Nurse Cooper’s examination and the
medical advice she provided amounts only to a disagreement over
a matter of medical judgment, which does not constitute cruel and
unusual punishment. See Estelle, 429 U.S. at 107.
With respect to the claim of delayed medical treatment, Mr.
DiPietro has adduced no evidence whatsoever that Nurses Cooper
or Terry intended to delay his treatment, or that they were aware
that his condition would be exacerbated by waiting three days for
an appointment. See Mann, 588 F.3d at 1307. Mr. DiPietro has also
adduced no evidence that the three-day wait, in fact, exacerbated
his condition.
Mr. DiPietro argues that he introduced evidence, in the
form of Nurse Harvey’s statements to him, that shows that his con-
dition was worsened by waiting until his scheduled appointment
to be further treated, and that the district court was wrong to dis-
count these statements as hearsay. As an initial matter, the district
court still considered Nurse Harvey’s statements, even though it
expressed concern that they were inadmissible hearsay. In any
event, Nurse Harvey’s statements to Mr. DiPietro, hearsay or not,
do not constitute evidence that the three-day wait worsened his
condition. According to Mr. DiPietro, Nurse Harvey told him that
the wound should have been drained immediately, and that failing
to do so worsened his condition. But these statements simply re-
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flect differences in medical opinion and judgment, which are insuf-
ficient to establish deliberate indifference under the Eighth Amend-
ment. See Estelle, 429 U.S. at 106. 1
In sum, even if Nurses Cooper and Terry could have done
more for Mr. DiPietro, he has not established that scheduling him
an appointment in three days and instructing him to keep his
wound clean and avoid touching it was “so grossly incompetent,
inadequate, or excessive as to shock the conscience or to be intol-
erable to fundamental fairness.” Harris, 941 F.2d at 1505 (citation
omitted). At most, Nurses Cooper and Terry acted negligently or
committed medical malpractice. Their conduct did not amount to
deliberate indifference. See Estelle, 429 U.S. at 106. 2
C
Mr. DiPietro has likewise failed to establish a genuine issue
of material fact as to whether Lt. Parnell and Ms. Mussa acted with
1 There is some conflicting evidence on whether Nurse Harvey drained Mr.
DiPietro’s wound on July 17, 2017, or a few days later. Mr. DiPietro insists
that Nurse Harvey drained the wound during his first meeting with her on
July 17, 2017. Mr. DiPietro’s medical records, on the other hand, show that
Harvey did not drain his wound until July 20, 2017, when tests results showed
that Mr. DiPietro had M.R.S.A. We review the evidence on point in Mr.
DiPietro’s favor.
2 Mr. DiPietro’s reliance on Lindley v. Birmingham, 652 Fed. Appx. 801 (11th
Cir. 2016), is misplaced because the record in that case differed markedly from
the one here. Importantly, the evidence there showed that certain prison of-
ficials immediately recognized the severity of Mr. Lindley’s infection, which
was completely ignored by some other prison officials. See id at 806.
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deliberate indifference. The record, viewed in the light most favor-
able to Mr. DiPietro, shows that Lt. Parnell and Ms. Mussa were
aware that Mr. DiPietro had visited the medical unit three times
before Sunday, July 16, and that a medical professional had deter-
mined that he did not present an emergency. There is no evidence
that Lt. Parnell and Ms. Mussa, who are not medical professionals,
had reason to believe, or knew, that Nurses Cooper and Terry had
grossly misjudged Mr. DiPietro’s medical condition each of the
times they saw him. They were therefore entitled to rely on their
assessments. See Townsend v. Jefferson Cnty., 601 F.3d 1152, 1159
(11th Cir. 2010).
The record, viewed in Mr. DiPietro’s favor, indicates that Lt.
Parnell and Ms. Mussa may have behaved very poorly towards Mr.
DiPietro and treated him with little, if any, respect. Rude and hos-
tile behavior towards prisoners, although improper, does not rise
to the level of deliberate indifference.
III
Mr. DiPietro also seeks review of the district court’s denial
of his motions for appointment of counsel. Mr. DiPietro filed two
motions asking the district court to appoint counsel to assist him
with deposing the prison officials, and with legal research. Mr.
DiPietro expressed concern about retaliation if he deposed the
prison officials himself. The district court denied both motions,
citing Mr. DiPietro’s demonstrated ability to litigate his case and
the absence of complex or novel issues.
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On appeal, Mr. DiPietro argues that the district court abused
its discretion in denying his motions to appoint counsel because he
(i) had trouble presenting his case below; (ii) suffers from severe
depression and anxiety; (iii) lacked access to the prison law library;
and (iv) was unable to edit his documents throughout litigation.
We review the denial of a motion for appointment of coun-
sel for abuse of discretion. See Bass v. Perrin, 170 F.3d 1312, 1319
(11th Cir. 1999). Plaintiffs in civil cases have no constitutional right
to counsel. See id. Nevertheless, a district court may, in its discre-
tion, appoint counsel for civil litigants. Appointment of counsel in
a civil case is a privilege that is “justified only by exceptional cir-
cumstances, such as the presence of facts and legal issues [which]
are so novel or complex as to require the assistance of a trained
practitioner.” Kilgo v. Ricks, 983 F.2d 189, 193 (11th Cir. 1993) (alter-
ation in original) (internal quotation marks and citation omitted).
In determining whether exceptional circumstances exist, a court
considers: (1) the type and complexity of the case; (2) whether the
indigent is capable of adequately presenting his case; (3) whether
the indigent is in a position to adequately investigate the case; and
(4) whether the evidence will consist in large part of incidents the
indigent witnessed himself. Fowler v. Jones, 899 F.2d 1088, 1096
(11th Cir. 1990) (citing Ulmer v. Chancellor, 691 F.2d 209, 213 (5th Cir.
1982)).
The district court did not abuse its discretion in denying Mr.
DiPietro’s motions because he failed to show that exceptional cir-
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21-12874 Opinion of the Court 13
cumstances warranted appointment of counsel. The facts and is-
sues presented were straightforward, and the record reflects Mr.
DiPietro’s ability to present his claims adequately, make argu-
ments, and cite relevant legal authorities despite his pro se status.
Furthermore, despite Mr. DiPietro’s claims that he lacked access to
the prison’s law library and was unable to edit his filings, he made
references to the district court’s rulings numerous times and had
no trouble supplementing his filings as he deemed necessary.
Given Mr. DiPietro’s demonstrated ability to adequately present
his case, the district court was within its discretion in denying his
motions for counsel.
IV
Months after the close of discovery, and approximately one
month after the magistrate judge recommended granting the de-
fendants’ motion for summary judgment, Mr. DiPietro filed a mo-
tion requesting that the district court appoint an expert. Mr.
DiPietro argued that an expert witness was necessary to opine on
whether a delay worsened his condition, and whether the conduct
of Nurses Cooper and Terry fell below acceptable standards of
care. The magistrate judge denied the motion in a well-reasoned
order, which Mr. DiPietro objected to. The district court affirmed
the magistrate judge’s order after reviewing Mr. DiPietro’s objec-
tions.
We review a district court’s denial of a motion to appoint an
expert witness for abuse of discretion. See Steele v. Shah, 87 F.3d
1266, 1271 (11th Cir. 1996). District courts have broad discretion
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under Federal Rule of Evidence 706 to appoint, either on a party’s
motion or its own, an independent expert to aid the court. See
Quiet Tech. DC-8, Inc. v. Hurel-Dubois UK Ltd., 326 F.3d 1333, 1348
(11th Cir. 2003). “Where a party requests the appointment of an
expert to aid in evaluating evidence that is relevant to a central is-
sue in the case, the court is obligated to fairly consider the request
and to provide a reasoned explanation for its ultimate decision on
the matter.” Id. The court is, however, not required to grant the
request to appoint an expert. “Quite the contrary, as long as the
district court thoroughly considers a request for the appointment
of such an expert and reasonably explains its ultimate decision
thereon, that decision is vested in the sound discretion of the trial
court.” Id. at 1348-49.
Here, the district court considered Mr. DiPietro’s request,
denied it, and provided a reasoned explanation. In denying the mo-
tion, the district court explained that the nature of the alleged in-
jury and the medical records were not so complex as to require ex-
pert testimony. It also determined that the motion was untimely
because it was filed approximately seven months after the close of
discovery, after the defendants filed their motion for summary
judgment, and after a report and recommendation on the same
motion had been submitted. Under these circumstances, it was not
an abuse of discretion to deny the motion to appoint an expert.
V
Mr. DiPietro also appeals the district court’s denial of his
motion for copies. At the same time he submitted his papers in
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opposition to the motion for summary judgment, Mr. DiPietro
submitted a motion asking the district court to send him copies of
the same papers he filed in opposition to the motion for summary
judgment. The magistrate judge, to whom the motion was re-
ferred, denied Mr. DiPietro’s motion, noting that, although he was
proceeding in forma pauperis, he was not entitled to have the cost of
his discovery borne by the court. The order denying the motion
for copies was set forth in the same document as the report and
recommendation on the motion for summary judgment. Alt-
hough Mr. DiPietro objected to the magistrate judge’s recommen-
dations on the motion for summary judgment, he made no refer-
ence to the magistrate judge’s order of denial, or to the motion for
copies. Consequently, the issue was not preserved for appellate re-
view. See United States v. Schultz, 565 F.3d 1353, 1359-62 (11th Cir.
2009) (“The law is settled that appellate courts are without jurisdic-
tion to hear appeals directly from federal magistrates.”) (quoting
United States v. Renfro, 620 F.2d 497, 500 (5th Cir. 1980)). See also
Fed. R. Civ. P. 72(a).
Nevertheless, even if the issue was properly before us, Mr.
DiPietro has failed to explain why the denial of his motion for cop-
ies was incorrect or prejudicial. According to Mr. DiPietro, he suf-
fered some harm because he was unable to make references to
some of his prior submissions. But the district court had and con-
sidered all of Mr. DiPietro’s papers at all relevant times. Therefore,
even if the issue was properly preserved for review, Mr. DiPietro
has identified no error or harm in the district court’s denial of the
motion for copies. See 28 U.S.C. § 2111; Fed. R. Civ. P. 61.
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VI
For the reasons set forth above, we affirm.
AFFIRMED.