Filed: Aug. 19, 2011
Latest Update: Feb. 22, 2020
Summary: [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ FILED U.S. COURT OF APPEALS No. 10-11955 ELEVENTH CIRCUIT Non-Argument Calendar August 19, 2011 _ JOHN LEY CLERK D.C. Docket No. 5:07-cv-00432-WTH-GRJ JESSIE MILTON, lllllllllllllllllllll Plaintiff-Appellant, versus KATHRYN TURNER, Individual Capacities, BLANCA CAMPOS, Individual Capacities, R. MOORE, Sergeant, Individual Capacities, T. NEAL, Individual Capacities, lllllllllllllllllllll Defendants-Appellees. _ Appe
Summary: [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ FILED U.S. COURT OF APPEALS No. 10-11955 ELEVENTH CIRCUIT Non-Argument Calendar August 19, 2011 _ JOHN LEY CLERK D.C. Docket No. 5:07-cv-00432-WTH-GRJ JESSIE MILTON, lllllllllllllllllllll Plaintiff-Appellant, versus KATHRYN TURNER, Individual Capacities, BLANCA CAMPOS, Individual Capacities, R. MOORE, Sergeant, Individual Capacities, T. NEAL, Individual Capacities, lllllllllllllllllllll Defendants-Appellees. _ Appea..
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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-11955 ELEVENTH CIRCUIT
Non-Argument Calendar August 19, 2011
________________________ JOHN LEY
CLERK
D.C. Docket No. 5:07-cv-00432-WTH-GRJ
JESSIE MILTON,
lllllllllllllllllllll Plaintiff-Appellant,
versus
KATHRYN TURNER,
Individual Capacities,
BLANCA CAMPOS,
Individual Capacities,
R. MOORE,
Sergeant, Individual Capacities,
T. NEAL,
Individual Capacities,
lllllllllllllllllllll Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(August 19, 2011)
Before WILSON, MARTIN and ANDERSON, Circuit Judges.
PER CURIAM:
Jessie Milton, proceeding pro se, appeals the district court’s dismissal of his
42 U.S.C. § 1983 suit, which alleged that Kathryn Turner, Blanca Campos, R.
Moore, and T. Neal, all employees of the Florida Department of Corrections, acted
with deliberate indifference to his serious medical needs in violation of the Eighth
Amendment. On appeal, he argues that the district court failed to properly
construe his claims and consider all allegations in the complaint.
We review de novo a dismissal for failure to state a claim under Federal
Rule of Civil Procedure 12(b)(6), accepting the allegations in the complaint as true
and construing them in the light most favorable to the plaintiff. Redland Co. v.
Bank of Am. Corp., 568 F.3d 1232, 1234 (11th Cir. 2009) (per curiam). The
complaint must “state a claim to relief that is plausible on its face.” Bell Atl. Corp.
v. Twombly,
127 S. Ct. 1955, 1974 (2007). “A claim has facial plausibility when
the plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Ashcroft v.
Iqbal,
129 S. Ct. 1937, 1949 (2009). The complaint need not include detailed
factual allegations, but it must set forth “more than labels and conclusions, and a
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formulaic recitation of the elements of a cause of action will not do.” Twombly,
127 S. Ct. at 1964–65. We no longer apply a heightened pleading standard to
claims brought pursuant to § 1983. Randall v. Scott,
610 F.3d 701, 709–10 (11th
Cir. 2010). Further, “pro se pleadings are held to a less strict standard than
pleadings filed by lawyers and thus are construed liberally.” Alba v. Montford,
517 F.3d 1249, 1252 (11th Cir. 2008).
To state a claim under § 1983, a plaintiff must allege: (1) a violation of a
specific constitutional right or federal statutory provision; (2) was committed by a
person acting under color of state law. Doe v. Sch. Bd. of Broward Cnty., 604
F.3d 1248, 1265 (11th Cir. 2010). Prison officials violate the Eighth Amendment
when they act with deliberate indifference to an inmate’s serious medical needs.
Estelle v. Gamble,
97 S. Ct. 285, 291 (1976). To state a claim of deliberate
indifference, a plaintiff must allege: (1) a serious medical need; (2) deliberate
indifference to that need by the defendants; and (3) causation between the
defendants’ indifference and the plaintiff’s injury. Youmans v. Gagnon,
626 F.3d
557, 563 (11th Cir. 2010) (per curiam).
The seriousness of a medical need is an objective inquiry. Kelley v. Hicks,
400 F.3d 1282, 1284 (11th Cir. 2005) (per curiam).
A serious medical need is one that has been diagnosed by
3
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. In the alternative, a
serious medical need is determined by whether a delay in
treating the need worsens the condition. In either case, the
medical need must be one that, if left unattended, poses a
substantial risk of serious harm.
Mann v. Taser Int’l, Inc., 588 F.3d 1291, 1307 (11th Cir. 2009) (citations omitted)
(internal quotation marks omitted).
Whether the defendants acted with deliberate indifference is a subjective
inquiry. Kelley, 400 F.3d at 1284. Each defendant is “judged separately and on
the basis of what that person knows.” Burnette v. Taylor,
533 F.3d 1325, 1331
(11th Cir. 2008). To establish deliberate indifference, a plaintiff must allege: “(1)
subjective knowledge of a risk of serious harm; (2) disregard of that risk; (3) by
conduct that is more than [gross] negligence.”
Youmans, 626 F.3d at 564
(alteration in original) (internal quotation marks omitted). In determining whether
an individual exercised gross negligence, we have considered: (1) indifference by
prison doctors in their response to the prisoner’s needs; (2) prison guards
intentionally denying or delaying access to medical care; and (3) interference with
treatment once proscribed. See Brown v. Johnson,
387 F.3d 1344, 1351 (11th Cir.
2004). Relevant factors include: “(1) the seriousness of the medical need; (2)
whether the delay worsened the medical condition; and (3) the reason for the
4
delay.” Goebert v. Lee Cnty., 510 F.3d 1312, 1327 (11th Cir. 2007).
In order for a denial of medical care to rise to the level of deliberate
indifference, the treatment must be more than “medical malpractice actionable
under state law.” Taylor v. Adams, 221 F.3d 1254, 1258 (11th Cir. 2000)
(alteration omitted) (internal quotation marks omitted). Accordingly, a “simple
difference in medical opinion” does not constitute deliberate indifference.
Waldrop v. Evans,
871 F.2d 1030, 1033 (11th Cir. 1989).
Discussion
Milton alleged three distinct medical problems: (1) low blood sugar,
resulting from his diabetes; (2) an infected hallux1; and (3) skin removal on his
inner thighs, groin, and penis. Assuming, arguendo, that low blood sugar in a
diabetic is a serious medical need, Milton did not allege that any delay in treating
this need worsened his condition, nor contend that any defendant interfered with
his treatment. Likewise, Milton failed to allege that the defendants’ alleged
indifference to his low blood sugar caused any injury. At most, Milton alleged
that he was afraid something would happen to him. Accordingly, Milton fails to
state a plausible claim against any defendant based on deliberate indifference to
1
A hallux is “the innermost digit (as the big toe) of a hind or lower limb.” Merriam-
Webster Dictionary, available at http://www.merriam-webster.com/dictionary/hallux.
5
his low blood sugar.
With respect to his two remaining medical conditions, Milton correctly
argues that his claims against Turner, Moore, and Neal are delayed-treatment
claims, not inadequate-treatment claims, which the district court did not
acknowledge in its order dismissing the complaint. As explained below, the pro
se complaint could also be liberally construed to allege interference-with-
treatment claims against Moore and Neal. We next address these claims in turn.
Moore and Neal
A. Interference with treatment
Milton’s allegations state a plausible claim against Moore and Neal for
interference with the treatment of his infected hallux. Milton alleged that he first
had his hallux examined on February 12, 2007, when he complained of “foot
sores,” as well as chafing on his inner thighs.2 The nurse diagnosed an infected
hallux, provided foot powder and ibuprofen, and told Milton to tell Moore and
Neal to give him work boots for use when he was on mower squad. Milton
alleged that he told Moore and Neal “what the nurse had just told [him] at sick
2
Our analysis of the interference-with-treatment claims does not address Milton’s skin
problems because Milton did not allege that Moore and Neal interfered with the treatment of
these conditions. Rather, he claimed that they delayed his treatment, as discussed in the next
section.
6
call,” but that they refused to issue him work boots. By February 20, Milton
alleged that his hallux was swollen with pus and that he could barely walk on it.
Milton claims that his infected hallux presented a serious medical need. We
agree. In Mann, we explained that a medical need is sufficiently serious if a delay
in treatment worsens the condition, an argument we find applicable here. Mann,
588 F.3d at 1307. Milton’s allegations support the inference that his condition
worsened between February 12 and February 20. And Milton has also plausibly
demonstrated that the condition posed a substantial risk of serious harm if left
unattended. Here, one could reasonably infer that an infected hallux, if left
untreated, would pose a substantial risk of harm, especially in a diabetic. In
addition, Milton’s hallux ultimately did need to be drained and required antibiotics
and ten days of bed rest,3 which supports the inference that it posed a substantial
risk of harm.
Since the complaint reflects the existence of an objectively serious medical
need, the issue then turns to the subjective inquiry of whether the defendants were
deliberately indifferent to that serious medical need. Milton plausibly alleged that
Moore and Neal had the requisite subjective knowledge of a risk of serious harm.
3
It is not clear whether the doctor ordered ten days’ bed rest for Milton’s hallux, or for
his other skin conditions. Construing the allegations in the light most favorable to Milton, we
assume that the bed rest was for his hallux. Redland, 568 F.3d at 1234.
7
Milton told Moore and Neal “just what the nurse told him”—that he had an
infected hallux and needed work boots. He also told them that his hallux may
have to be amputated because of his diabetes. Under the facts as alleged, it is
plausible that Moore and Neal had subjective knowledge of an obvious serious
risk of harm, due to Milton’s infected hallux, if Milton did not receive his work
boots.
Milton also sufficiently alleged that Moore and Neal “interfered” with his
treatment by refusing to provide work boots. And finally, Milton alleged a
plausible “causal connection” between Moore’s and Neal’s refusal to provide
work boots and his injury, as he alleged that the condition of his hallux worsened
by February 20. Based on the foregoing, we vacate in part and remand as to the
interference-with-treatment claims against Moore and Neal.
B. Delayed treatment
The complaint may also be read as attempting to state claims against Moore
and Neal for delayed treatment. Reading the allegations in the complaint in the
light most favorable to Milton, on February 20, Milton’s hallux had swollen with
pus and he could barely walk on it, and the skin on his inner thighs had scraped off
and he was in much pain. Milton “explained his problem” to Neal, but Neal
forced him to start working on the mower squad. Milton could not keep up with
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the squad, Neal screamed at him to speed up, and Milton stopped mowing and
grabbed his groin. When Neal asked him what he was doing, Milton responded
that he was “hurting.” Neal threatened Milton with lock-up if he did not keep
mowing, Milton declared a medical emergency, Neal refused, and Milton worked
for 20-30 more minutes. When Milton told Moore that Neal refused medical
attention, Moore said, “So what! What do you want me to do? Go to sick call.”
Milton told Moore he would file an informal grievance, and Moore told him to file
it and ordered him to the recreation yard. Milton went to the medical department
at the conclusion of recreation.
Putting aside Milton’s chafing and pain in his groin, he stated a plausible
delayed-treatment claim against Neal based on his infected hallux.4 As explained
above, Milton alleged that his infected hallux was a serious medical need and that
Neal had subjective knowledge of a substantial risk of serious harm. Milton also
alleged that Neal disregarded the risk by requiring him to mow the grounds on
February 20. Although the delay lasted only through the end of Milton’s shift, if
the allegations are accepted as true Neal not only delayed treatment—he
deliberately inflicted pain. As this Court previously stated, with respect to a claim
4
Milton’s chafing is arguably not a plausible serious medical need, standing alone. We
need not address this question, however, as Milton has alleged at least one serious medical need.
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involving a prisoner’s broken foot:
[I]t may be that deliberately indifferent delay, no matter
how brief, would render defendants liable as if they had
inflicted the pain themselves. Deliberately inflicted pain, as
with an electric cattle prod, does not become unimportant
and unactionable under the eighth amendment simply
because the pain produced is only momentary. Even if we
were to recognize as de minimus delays of a few seconds
or minutes, a deliberate delay on the order of hours in
providing care for a serious and painful broken foot is
sufficient to state a constitutional claim.
Brown v. Hughes, 894 F.2d 1533, 1538 (11th Cir. 1990) (per curiam). Based on
the foregoing, Milton stated a plausible delayed-treatment claim against Neal.
By contrast, Milton’s allegations with respect to Moore failed to state a
plausible delayed-treatment claim. Specifically, Milton failed to allege facts
demonstrating that Moore was subjectively aware of a serious risk of harm.
Milton alleged only that he told Moore that Neal had refused him medical care,
which does not put Moore on notice of any of Milton’s complaints, let alone of the
possibility of a substantial risk of serious harm. Further, Moore caused only a
short delay by ordering Milton to the recreation yard, and the allegations suggest
that any additional delay was brought about by the nurse who allegedly failed to
examine his groin that day—who is not named as a defendant—and Milton,
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himself, as there is no allegation that he reported his condition to the nurse on
February 21, when he received his daily insulin shot. Rather, Milton first went to
sick call on February 22, apparently because that was the first morning that he had
to work again.
Based on the minimal delay that Moore was alleged to have caused, and
based on the limited facts Moore possessed, Milton failed to allege a plausible
delay-in-treatment claim against Moore. Accordingly, we affirm the dismissal
with prejudice of the delayed-treatment claim against Moore. But we vacate in
part and remand with respect to the delayed-treatment claim against Neal.
Turner
We next find that Milton failed to state a claim against Turner, his
classification officer. Apart from Milton’s allegations with respect to his low
blood sugar, Milton alleged only that on February 16, he told Turner, in passing,
that he had been injured, and that she told him to go to sick call. Based on this
conclusory allegation, Milton failed to allege that Turner was subjectively aware
of a risk of serious harm. Moreover, Turner told Milton to go to sick call, and thus
Milton did not allege that she was deliberately indifferent through conduct
amounting to more than gross negligence. We therefore affirm the dismissal of all
claims against Turner.
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Campos
Milton also failed to state a claim against Campos, the senior physician.
Exhibit G to the complaint indicates that Milton filed an inmate request addressed
to Campos on February 20, complaining that his chafing and hallux had gotten
worse. There is no allegation that Campos received this request because non-party
Janice Warnock responded to it. Apart from allegations concerning his low blood
sugar, Milton’s only additional allegation against Campos is that she refused to
write him a pass in May 2007 because his injuries were “in the past.” Although
Milton alleged that her opinion differed with that of another doctor, a difference in
medical opinion does not constitute deliberate indifference. See Waldrop, 871
F.2d at 1033. Further, Milton alleged no causal connection between Campos’s
failure to write a work pass and any injury. We thus affirm the dismissal of all
claims against Campos.
Conclusion
Milton failed to state any claims against Turner and Campos, and we
therefore affirm the dismissal with prejudice of the claims against these two
defendants. Additionally, we affirm the dismissal of counts five through eight,
which pled separate counts for damages and addressed potential affirmative
defenses. See La Grasta v. First Union Sec., Inc., 358 F.3d 840, 845 (11th Cir.
12
2004) (noting that a plaintiff is not required to negate an affirmative defense in the
complaint).
However, Milton did allege plausible claims for interference with medical
treatment against Moore and Neal, as well as a plausible claim for delayed
treatment against Neal. Thus, we vacate and remand as to the claims against
Moore and Neal.5
AFFIRMED IN PART, VACATED IN PART, AND REMANDED.
5
Milton has abandoned any argument that Moore was subject to supervisory liability for
Neal’s actions because he did not argue it in his brief. Sepulveda v. U.S. Att’y Gen., 401 F.3d
1226, 1228 n.2 (11th Cir. 2005).
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