[DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________          FILED
                                                 U.S. COURT OF APPEALS
                              No. 10-11911         ELEVENTH CIRCUIT
                                                   NOVEMBER 17, 2010
                          Non-Argument Calendar
                                                        JOHN LEY
                        ________________________
                                                         CLERK

                    D. C. Docket No. 5:08-cv-00193-CAR

DONALD W. WHITEHEAD,


                                                            Plaintiff-Appellant,

                                   versus

EDWARD H. BURNSIDE,

                                                           Defendant-Appellee.


                        ________________________

                 Appeal from the United States District Court
                     for the Middle District of Georgia
                      _________________________

                            (November 17, 2010)

Before DUBINA, Chief Judge, HULL and ANDERSON, Circuit Judges.

PER CURIAM:

     Appellant Donald W. Whitehead, an inmate at the Men’s State Prison
(“MSP) in Hardwick, Georgia, appeals the district court’s entry of summary

judgment as to Hale Edward Burnside, Medical Director for the prison, on his

claim of deliberate indifference to a serious medical need in violation of the

Constitution of the United States, brought pursuant to 42 U.S.C. § 1983, and a state

cause of action for medical malpractice.1 On appeal, Whitehead argues that the

district court erred by adopting the recommendation of the magistrate judge that

summary judgment should be granted in favor of Burnside because Whitehead

failed to create an issue of fact for trial. The magistrate judge reasoned that

Whitehead failed to provide medical evidence to support his claim of deliberate

indifference on the part of Burnside. Whitehead contends that his declaration and

Dr. William S. Thompson’s declaration support his theory that the two and one

half week delay between his kneecap injury and surgery amounts to cruel and

unusual punishment. After reviewing the record, we conclude that Whitehead has

failed to present a genuine issue of material fact to be resolved by a fact-finder.

Thus, we affirm the grant of summary judgment.

       We review a district court order granting summary judgment de novo,

viewing all of the facts in the record in the light most favorable to the non-moving



       1
        Initially, Whitehead also appealed the magistrate judge’s imposition of sanctions in the
underlying matter. On August 20, 2010, a panel of this Court dismissed the appeal as to the
sanctions order.

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party. Brooks v. County Comm’n of Jefferson County, Ala., 

, 1161-

62 (11th Cir. 2006). Summary judgment is appropriate where the moving party

demonstrates, through pleadings, interrogatories, and admissions on file, together

with the affidavits, if any, “that there is no genuine issue as to any material fact and

that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P 56(c).

“A party moving for summary judgment has the burden of showing that there is no

genuine issue of fact.” Eberhardt v. Waters, 

, 1580 (11th Cir. 1990)

(internal quotation marks omitted). “A party opposing a properly submitted

motion for summary judgment may not rest upon mere allegation or denials of his

pleadings, but must set forth specific facts showing that there is a genuine issue for

trial.” 

marks omitted). The court must view the evidence

and make all reasonable factual inferences against the non-moving party. 

conjecture from a party cannot create a genuine issue of material

fact. Cordoba v. Dillard’s, Inc., 

, 1181 (11th Cir. 2005). “A mere

scintilla of evidence in support of the nonmoving party will not suffice to

overcome a motion for summary judgment.” Young v. City of Palm Bay, Fla., 

, 860 (11th Cir. 2004).

      In order to state a cognizable claim for inadequate medical treatment under

the Eighth Amendment, “a prisoner must allege acts or omissions sufficiently



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harmful to evidence deliberate indifference to serious medical needs.” Estelle v.

Gamble, 

, 106, 

, 291 (1976). These acts or omissions

must be “so grossly incompetent, inadequate, or excessive as to shock the

conscience or to be intolerable to fundamental fairness.” Harris v. Thigpen, 

, 1505 (11th Cir. 1991) (quoting Rogers v. Evans, 

, 1058

(11th Cir. 1986)).

      Deliberate indifference requires a plaintiff to prove three elements: “(1)

subjective knowledge of a risk of serious harm; (2) disregard of that risk; and (3)

by conduct that is more than mere negligence.” Brown v. Johnson, 

,

1351 (11th Cir. 2004). The plaintiff shoulders a heavy burden; even conduct that

could be characterized as medical malpractice does not necessarily constitute

deliberate indifference. See McElligott v. Foley, 

, 1255 (11th Cir.

1999). A difference in medical opinion does not constitute deliberate indifference

so long as the treatment provided is minimally adequate. 

-

05. When a plaintiff alleges that delay in medical treatment shows deliberate

indifference, he “must place verifying medical evidence in the record to establish

the detrimental effect of delay in medical treatment to succeed.” Hill v. Dekalb

Reg'l Youth Det. Ctr., 

, 1187-88 (11th Cir. 1994), overruled in part on

other grounds by Hope v. Pelzer, 

, 739 n.9, 

, 2515 n.9



                                          4
(2002). “[D]elay in medical treatment must be interpreted in the context of the

seriousness of the medical need, deciding whether the delay worsened the medical

condition, and considering the reason for delay.” 

Self-serving

statements by a plaintiff do not create a question of fact in the face of

contradictory, contemporaneously created medical records. See, e.g., Bennett v.

Parker, 

(11th Cir. 1990).

      We conclude from the record that the district court correctly applied the

summary judgment standard, finding that Whitehead failed to demonstrate that

there was a genuine issue of material fact as to whether Burnside was deliberately

indifferent to Whitehead’s broken kneecap. Although Whitehead attempts to

overcome summary judgment by offering his own sworn statement and that of Dr.

Thompson to support his allegations, the contemporaneous medical records and

opinions of the examining medical doctors show that this purported evidence is

baseless.

      Whitehead’s broken kneecap resulted from a prison altercation on October

20, 2006. Whitehead claims in his statement that, after his arrival at the Oconee

Regional Hospital, Dr. Salvatore Dellacona requested immediate surgery for his

injured knee but was denied permission by Burnside to perform the operation. On

the contrary, Dr. Dellacona provided an affidavit stating that immediate surgery



                                            5
was not required for Whitehead’s broken kneecap, and he did not speak with

Burnside as Whitehead contends. Prison records indicate that at the time of the

incident, Burnside was not present at the prison.

      Dr. Dellacona, pursuant to hospital protocal, requested a second opinion

from Dr. Steven Niergarth. Niergarth concurred with Dr. Dellacona that

immediate surgery was not required. On November 1, 2006, Whitehead was

examined by an orthopedic specialists, Dr. Clarence Fossier. Fossier found that the

injury did not require immediate surgery and scheduled the operation for a week

later. In his sworn statement, Fossier testified that he would have operated

immediately if it had been necessary and that any delay in surgery did not result in

any long-term detriment to Whitehead.

      Whitehead attempts to counter these medical opinions from his treating

physicians by producing an affidavit from Dr. Thompson, wherein he states that

after reviewing the evidence, he found Burnside deliberately indifferent in delaying

treatment for Whitehead. At best, however, Dr. Thompson’s affidavit represents a

difference of medical opinion between himself and the physicians who treated

Whitehead. Furthermore, as Dr. Thompson acknowledges, his affidavit is based in

part on Whitehead’s statement that Dellacona would have performed surgery

immediately had Burnside not intervened. Dellacona’s contemporaneous medical



                                          6
records and his affidavit show this contention to be incorrect.

      Whitehead’s statement is erroneous in other ways as well. Whitehead claims

that Burnside refused to look at his knee and told him it would take two to three

months to schedule an MRI. Burnside’s records, recorded at the time he first saw

Whitehead, show otherwise. Burnside clearly notes that Whitehead had fractured

his patella, could not extend his leg, and had swelling in his left knee. Burnside

requested an urgent consultation by an orthopedist to evaluate the injury, and

Whitehead was scheduled for the consultation with Dr. Fossier that lead to his

eventual surgery.

      The evidence from the record is clear. Whitehead has established, at best, a

difference of medical opinion as to the appropriate treatment for his injured knee.

His personal belief regarding the severity of his injury is not sufficient to overcome

the medical opinions of Drs. Fossier and Dellacona, and he has failed to produce

evidence to refute the contemporaneous medical records supporting Burnside’s

actions. Therefore, we conclude that the district court properly adopted the

magistrate’s recommendation and we affirm the district court’s grant of summary

judgment in favor of Burnside.

      AFFIRMED.




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