REPORT AND RECOMMENDATION

STEPHEN HYLES, Magistrate Judge.

Presently pending before the Court are the parties' cross motions for summary judgment (ECF Nos. 71, 72). For the reasons explained below, Defendants' motion for summary judgment is granted in part and denied in part. Plaintiff's motion is denied at this time.

BACKGROUND

This action arises of out an alleged denial of medical care at Macon State Prison (MSP). Plaintiff alleges that in early to mid-2012 he fell while working in the prison kitchen and cut his left ankle.1 Over the next several months, Plaintiff received treatment from MSP for the lesion. In September 2012, Plaintiff was transferred to the Atlanta Medical Center. After weeks of treatment he underwent a below knee then above knee amputation. He claims that Dr. Fye and Warden McLaughlin were deliberately indifferent to his medical needs in violation of the Eighth Amendment which resulted in the amputation of the lower half of his left leg.

The undisputed facts are as follows: At all times relevant to Plaintiff's claim, Defendant Dr. Fye was the medical director at Macon State Prison. Fye Decl. ¶ 3, ECF No. 71-3. Defendant McLaughlin was the warden at MSP. McLaughlin Dep. 4:10-18. Plaintiff has a history of various medical conditions which were noted by MSP on a treatment plan form in 2005. Pl.'s Reply Br. Ex. 2 at 4-5, ECF No. 76-2. These conditions include diabetes and peripheral vascular disease. Id; see also Id. at 1 (noting "circulation problems legs"); Pl.'s Ex. 68, ECF No. 72-25.

Plaintiff was treated in the MSP medical department on May 27, 2012 by Nurse Geneva Turner. Wood Decl. ¶ 6a.2 At that time, Plaintiff's leg showed signs of infection. Id. Nurse Turner gave Plaintiff antibiotics, cultured his wound, and provided Plaintiff instructions for dressing his would. Id. Plaintiff had a referral for an upper level provider visit on May 30, 2012. Id. On May 28, 2012, Plaintiff was seen by Nurse Kathy Cazenave. She provided Plaintiff with ibuprofen and told Plaintiff to follow up on May 29 as scheduled. Id. She described Plaintiff's wound at that time as an "oozing open ulcer." Pl.'s Med. R. 2, ECF No. 71-5.3 The medical records do not show that Plaintiff was seen by an upper level provider on May 29 or May 30. See, e.g., Pl.'s Med. R. 1-3; Pl.'s Ex. 2, ECF No. 72-5.

Plaintiff was seen on June 12, 2012 by Nurse Sharon Willis.4 At that appointment, Nurse Willis noted that Plaintiff's leg wound was 0.5 cm with no drainage and no edema. Pl.'s Med. R. 4. The tissue was yellow and tender to the touch. Id. Nurse Willis gave Plaintiff ibuprofen and prescribed wet to dry treatments. Id. The wound care flow sheets indicate that Plaintiff was seen by various providers daily for wound care between June 13 and July 3. Pl.'s Med. R. 5a-b. On July 5, 2012, Dr. Fye saw Plaintiff. She noted that he had a 1 inch ulcer on his left leg with no drainage. Id. at 7. She directed that the wet to dry treatments be stopped. Id.

On July 19, 2012, Plaintiff was seen by Nurse Cazenave. She noted that he had a 1.5 inch "scabbed over ulcer" on his ankle. Id. at 8. Nurse Willis saw Plaintiff that same day, but described his leg ulcer as "0.5 cm" with no drainage, but tender to the touch. Id. at 9. She told Plaintiff to return if he has pain, drainage, or edema. Id. At some point, Plaintiff was referred out for a consult with a podiatrist. On June 24, 2012, Plaintiff had a follow-up visit with Nurse Willis and expressed no pain. Pl.'s Med. R. 10.

Plaintiff was again seen by Nurse Cazenave on August 7, 2012. Id. at 11. She describes Plaintiff's wound as a "scabbed over, dark lesion about 3" diameter[.]" That same day, Plaintiff saw Nurse Willis who described his would as only 0.5 cm in size. Id. at 12. On August 13, 2012, Plaintiff saw Dr. Fye who observed that he had an "infected ulcer left foot with cellulitis." Pl.'s Med. R. 13. His lesion was described as a "1 inch x 3 inch ulcer." Id. He was admitted to the infirmary that day for treatment for the infected ulcer. Id. at 13-14; Fye Decl. ¶ 9.

While in the infirmary, Plaintiff received the intravenous antibiotic Vancomycin. Pl.'s Med. R. 13. He was seen daily by nursing staff and several times by Dr. Fye. He was released from the infirmary on August 30, 2012. Id. at 14. Plaintiff's lesion presented as being open, red and black, with an odor, with drainage, and 7 cm x 5 cm in size by September 3, 2012.5 Id. at 15. His wound consistently presented in this condition for four days, except that its size increased to 7 cm x 5.4 cm. Id. On September 6, 2012, Plaintiff was sent to the emergency room because he was acting "confused to place, time, situation." Pl.'s Med. R. 16. He was returned to MSP that same day. Id. at 18.

Plaintiff was seen on September 7 and September 10 with essentially the same wound indications as previously reported. Id. at 15. However, on September 11, 2012, Plaintiff's lesion is described as open and containing drainage, black and red in color, with an odor, and 14 cm x 7 cm in size. Id. That day, Dr. Fye restarted Vancomycin and took a culture of Plaintiff's wound. Wood Decl. ¶ 6aa. Dr. Fye started Plaintiff on an additional antibiotic—Gentamicin—on September 12. Id. ¶ 6 cc; Tarver Sept. Infirmary R. 1-2, ECF No. 71-7. On September 13, the order for Vancomycin was discontinued. Wood Decl. ¶ 6cc; Tarver Sept. Infirmary R. 1. Dr. Fye did not see Plaintiff between September 12 and September 17. Tarver Sept. Infirmary R. 2. By September 17, 2012, Plaintiff's wound contained additional open areas. Pl.'s Med. R. 15. On September 19, Dr. Fye referred Plaintiff out to the Atlanta Medical Center for treatment. Wood Decl. ¶ 6dd; Tarver Sept. Infirmary R. 33.

Plaintiff was treated at the Atlanta Medical Center for several weeks. Tarver Dep. 69:17-22, ECF No. 71-9. He initially underwent a below the knee amputation. Id. at 70:5-10. When it was discovered that the infection reached above Plaintiff's knee, his leg was amputated above the knee. Id. Plaintiff filed this action for deliberate indifference to his serious medical needs on June 2, 2014.

DISCUSSION

I. Standard of Review

Summary judgment may be granted only "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). In determining whether a genuine dispute of material fact exists to defeat a motion for summary judgment, the evidence is viewed in the light most favorable to the party opposing summary judgment, drawing all justifiable inferences in the opposing party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). A fact is material if it is relevant or necessary to the outcome of the suit. Id. at 248. A factual dispute is genuine if the evidence would allow a reasonable jury to return a verdict for the nonmoving party. Id.

II. Defendants' Motions for Summary Judgment

Defendants move for summary judgment stating that there are no genuine issues of material fact and that they are entitled to judgment as a matter of law. The Court agrees that Defendant McLaughlin is entitled to summary judgment as to the deliberate indifference claims against him. However, the Court finds that there are issues of fact as to whether Dr. Fye was deliberately indifferent to Plaintiff's serious medical needs and recommends denying her motion for summary judgment.

A. Deliberate Indifference Standard

"The Eighth Amendment's prohibition against cruel and unusual punishments protects a prisoner from deliberate indifference to serious medical needs." Kuhne v. Fla. Dep't of Corr., 745 F.3d 1091, 1094 (11th Cir. 2014) (internal quotation marks and citations omitted). "[T]o prevail on a deliberate indifference to serious medical need claim, [a plaintiff] must show: (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, 588 F.3d 1291, 1306-07 (11th Cir. 2009). "A serious medical need 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 doctor's attention." Bingham v. Thomas, 654 F.3d 1171, 1176 (11th Cir. 2011) (internal quotation marks and citation omitted). Deliberate indifference requires a showing of a "subjective knowledge of a risk of serious harm" and "disregard of that risk . . . by conduct that is more than mere negligence." Brown v. Johnson, 387 F.3d 1344, 1351 (11th Cir. 2004) (citation omitted).

Disagreement over the mode of treatment does not constitute deliberate indifference for the purposes of the Eighth Amendment. See Hamm v. Dekalb Cty., 774 F.2d 1527, 1575 (11th Cir. 1985) ("an inmate's desire for a different mode of treatment does not rise to the level of deliberate indifference."). Negligence in treatment, even rising to the level of medical malpractice, is not deliberate indifference. Estelle v. Gamble, 429 U.S. 97, 106 (1976). Instead, the treatment must be "so grossly incompetent, inadequate, or excessive as to shock the conscience or to be intolerable to fundamental fairness." Harris v. Thigpen, 941 F.2d 1495, 1505 (11th Cir. 1991) (internal quotation marks and citations omitted). "[C]onduct deliberately indifferent to serious medical needs has included: (1) grossly inadequate care; (2) a decision to take an easier but less efficacious course of treatment; and (3) medical care that is so cursory as to amount to no treatment at all." Melton v. Abston, 841 F.3d 1207, 1223 (11th Cir. 2016); Rogers v. Evans, 792 F.2d 1052, 1058 (11th Cir. 1986) ("Medical care so inappropriate as to evidence intentional maltreatment or refusal to provide essential care violates the eighth amendment.").

B. Dr. Fye

Plaintiff's claims against Dr. Fye concern the first type of conduct directly above—inadequate or incompetent medical care. Defendant states that because she provided treatment over the course of several months, she cannot be found to be deliberately indifferent to Plaintiff's medical needs. "Although courts hesitate to find an Eighth Amendment violation when an inmate has received medical care, [the Eleventh Circuit] has cautioned that such hesitation does not mean . . . that the course of . . . treatment of a prison inmate's medical . . . problems can never manifest deliberate indifference." Kruse v. Williams, 592 F. App'x 848, 858 (11th Cir. 2014) (internal quotation marks omitted) (ellipses in original). "Indeed, deliberate indifference may be established by showing that the medical care received was so grossly inadequate to constitute—or at least create a material issue regarding—deliberate indifference." Id. "And the deliberate indifference inquiry is particularly fact-intensive." Id. Furthermore, whether a plaintiff's care was so grossly inadequate as to constitute "deliberate indifference or negligence is a factual question requiring exploration by expert witnesses." Rogers, 792 F.2d at 1058.

The parties agree on the basic course of treatment that Plaintiff received. They agree that between May and September 2012, Plaintiff regularly received treatment from multiple nurses in the MSP medical clinic and less often received treatment from Dr. Fye. Further, they agree that the wound improved initially and then worsened. The parties also agree that in September, Plaintiff's wound was so severe that it required outside treatment and the eventual amputation of the lower half of Plaintiff's left leg.

The parties disagree, however, on the condition of Plaintiff's wound and his response to treatment. For example, the nurses who treated Plaintiff testified and noted in the medical records that Plaintiff's wound contained black eschar while he was in the infirmary in August under Dr. Fye's treatment. Russell Dep. Ex. 14, ECF No. 89-4. Nurse Russell explained that black eschar is "a dark staph like material that's inside of a wound and a wound will not heal while that is in there[.]" Russell Dep. 22:22-24, ECF No. 89. Nurse Russell further stated that eschar must be removed by a doctor and that she brought the eschar in Plaintiff's wound to Dr. Fye's attention. Id. at 23:1-5. Nurse Russell specifically remembers Dr. Fye seeing the eschar once, but Dr. Fye did not remove it from Plaintiff's wound. Id. at 24:3-20. Dr. Fye, however, denies that Plaintiff's wound developed black eschar while in her care. Fye Dep. 127:20-128:1, ECF No. 94.

There is a similar factual question regarding whether Plaintiff's wound smelled. The nurses testified that Plaintiff's wound and its discharge exhibited an odor. Russell Dep. 30:20-31:4; Turner Dep. Vol. I 17:15-21, Jun. 24, 2016, ECF No. 84; Nash Dep. 32:25-33:7, ECF No. 93. Nurse Turner testified that the presence of an odor is significant because it "is a sign of infection." Turner Dep. Vol. I 18:9-13; see also Willis Dep. 25:15-19, ECF No. 87 (discussing signs of infection she looks for in a wound). The wound flow sheets from September similarly note that there was consistently an odor in Plaintiff's wound. Pl.'s Med. R. 15. Dr. Fye, however, testified that to her recollection the wound did not have an odor. Fye Dep. 88:24-89:1; 185:15.

Dr. Fye also disagrees with the condition of the wound as described by the nurses directly after taking Plaintiff off antibiotic in late August. See Fye Dep. 103:1-106:10. The nurses describe Plaintiff's wound as swollen, blackened, tender, and with drainage. Id. & Ex. 14, ECF No. 94-14 at 4. Dr. Fye remembers that the swelling in the leg was "vastly improved," Fye Dep. 104:22-24, that there was no presence of black eschar, Fye Dep. 105:4-6, and that there was no drainage in the ulcer, Fye Dep. 106:2-3.

A question of fact also exists regarding whether referral requests were made for Plaintiff to receive a higher level of care. Plaintiff's treating nurses state that they requested that Plaintiff be sent for further care by a specialist, but Dr. Fye refused. Nurse Willis stated that when Plaintiff's leg had signs of infection she "brought Ms. Nash into the room and she looked at [Plaintiff's leg] and I brought Dr. Fye into the room and she looked at it and told both of them that I felt that he needed to go out to see a specialist . . . and Dr. Fye refused." Willis Dep. 49:11:16. Nurse Nash similarly spoke to Dr. Fye in early September and asked that he be given a wound consult. Nash Dep. 49:2-7, 49:20-25, 63:20-64:9. Dr. Fye does not recall talking to Nurse Nash regarding a referral that day and states that Nurse Nash would have been able to refer Plaintiff to a wound clinic. Fye Dep. 113:4-8.

Finally, two experts reviewed Plaintiff's care and formed opinions that Dr. Fye's treatment was not only below the standard of care, but "at times grossly improper." MacDonald Dep. 128:12-15, ECF No. 95 ("But the overall medical care, which is enormously evident in the outcome, was avoidable 90 percent, and substandard, and at times grossly improper."); see also Descoteaux Decl. ¶ 10, Dec. 22, 2016, ECF No. 75-2 ("[T]he failure to refer Mr. Tarver, who was a known diabetic, by at least August 30 was still an intentional disregard for the basic principles of medicine practiced by any physician acting upon the same information.").

Dr. MacDonald identified multiple mistakes in Dr. Fye's treatment of Plaintiff. He testified:

MacDonald Dep. at 132:7-13. Dr. MacDonald further averred that Dr. Fye's understanding of wound care for diabetics and people with vascular disease "miss[es] the whole point." Id. at 48:15. Also, Dr. MacDonald testified that the pain scale doesn't work for a diabetic, so "anything [the patient] says about pain is going to be unreliable," MacDonald Dep. 65:23-66:6, and that it was inappropriate for Plaintiff to elevate his leg while healing because of his vascular disease. MacDonald Dep. 66:15-67:14. Dr. MacDonald opines that by August 7, 2012, given the wound condition on that day and the history of Plaintiff's wound, there is an "[a]bsolute indication for wound or infectious disease consult." MacDonald Dep. 88:7-22. He stated: "what I saw here was such egregious disregard of pattern recognition as a patient is obviously getting worse. And then when your own nurses say, Doctor, this patient needs a wound care consult and the doctor says no, I can't go past that." MacDonald Dep. 34:13-17. Dr. MacDonald formed the opinion that Plaintiff's care was "so far below the standards of proper medical care and treatment as to evidence a conscious disregard." MacDonald Report ¶ 1a, ECF No. 63.

The facts and evidence outlined above, taken in the light most favorable to Plaintiff, establish that there is a genuine material issue of fact regarding whether Dr. Fye was deliberately indifferent to Plaintiff's serious medical needs.6 The Court cannot weigh evidence and make judgment calls regarding the contested facts above. Consequently it is recommended that Defendant Fye's motion for summary judgment be denied.

C. Warden McLaughlin

Plaintiff has failed to present any evidence to show that Defendant McLaughlin was deliberately indifferent to his medical needs. To the contrary, Plaintiff agrees that Warden McLaughlin saw Plaintiff on August 13 and prompted the medical department to see Plaintiff. Pl.'s Br. in Opp'n 15, ECF No. 75. Plaintiff, however, argues that because Warden McLaughlin admitted in his deposition that he walked through the infirmary on a daily basis, including while Plaintiff was in the infirmary, he should have known that Plaintiff was not receiving appropriate care. Plaintiff contends that by not taking further action to ensure better medical care, Defendant McLaughlin was deliberately indifferent.

Warden McLaughlin stated that his responsibility regarding medical issues at the prison is "[j]ust to ensure that the individual gets to medical." McLaughlin Dep. 8:5-9. He has no medical training and makes no medical decisions for inmates. Id. at 32:9-13. Defendant McLaughlin further testified that he did not know Plaintiff is diabetic and that he did not know Plaintiff had PVD. Id. at 18:11-23. He further testified that he does not recall seeing Plaintiff when Plaintiff was in the infirmary, but that it is "possible that he was there." Id. at 20:13-24.

These facts, even taken in a light most favorable to Plaintiff, fail to show that Defendant McLaughlin had a subjective awareness Plaintiff's serious medical need and that he disregarded that need. Instead, the uncontested evidence shows that when Defendant McLaughlin identified that Plaintiff had a serious medical need, he ensured that Plaintiff received treatment. The fact that Warden McLaughlin walked through the infirmary does not change this analysis. Plaintiff was receiving care while in the infirmary. Under the facts of this case, Plaintiff would have to provide evidence that Defendant McLaughlin was subjectively aware that Plaintiff was receiving "grossly inadequate care" while in the infirmary for liability to attach. Melton, 841 F.3d at 1223. No such evidence exists. It is thus recommended that Defendant McLaughlin's motion for summary judgment be granted.

II. Plaintiff's Motion for Summary Judgment

Plaintiff also moves for summary judgment based on spoliation. As explained below, the Court finds that there are gaps in the medical records and specific testimony indicating that undisclosed or missing medical records may exist. Plaintiff has created a question of fact regarding spoliation, but is not entitled to summary judgment at this time.

Plaintiff contends that an incident report and a variety of medical records are missing from Plaintiff's Georgia Department of Corrections (GDOC) records and that Defendants should be sanctioned due to this spoliation. "Spoliation is the destruction or significant alteration of evidence, or the failure to preserve property for another's use as evidence in pending or reasonably foreseeable litigation." Graff v. Baja Marine Corp., 310 F. App'x 298, 301 (11th Cir. 2009). If spoliation occurs, sanctions against that party may be appropriate. United States v. McCray, 345 F. App'x 498, 501 (11th Cir. 2009). "[S]poliation sanctions constitute an evidentiary matter, and are intended to prevent unfair prejudice to litigants and to insure the integrity of the discovery process." Id. (alteration and emphasis in original). "A party is prejudiced by the absence of evidence only if the evidence is material, such that there is a reasonable probability that, had the evidence been introduced, the result of the proceeding would have been different." Id.

"As sanctions for spoliation, courts may impose the following: (1) dismissal of the case; (2) exclusion of expert testimony; or (3) a jury instruction on spoliation of evidence which raises a presumption against the spoliator." Flury v. Daimler Chrysler Corp., 427 F.3d 939, 945 (11th Cir. 2005). "In the Eleventh Circuit, an adverse inference is drawn from a party's failure to preserve evidence only when the absence of that evidence is predicated on bad faith." Mann, 588 F.3d at 1310. Bad faith in this context does not require a showing of malice, but "mere negligence in losing or destroying records is not sufficient to draw an adverse inference." Id.

Plaintiff presents various GDOC Standard Operating Procedures (SOPs) to show that Dr. Fye and Warden McLaughlin were responsible for maintaining incident reports and medical records at MSP. See Pl.'s Mot. for Summ. J. Exs. 33, 35-37, ECF Nos. 72-15 to -18. Plaintiff then points to the absence of: (1) an incident report regarding Plaintiff's accident with the tray machine; (2) a "problems list" in Plaintiff's medical records; (3) a doctor's order to put Plaintiff back on wet-to-dry treatments in August; (4) wound care flow sheets for July and August; (5) a September 4, 2012 consultation request prepared by Nurse Nash; and (6) nurse progress notes for late August and some dates in September. Pl.'s Br. in Supp. of Mot. for Summ. J. 8-10, 12-14, ECF No. 72-1. He also argues that the medications administration records are "so inconsistent with other medication records that they do not appear to be authentic." Id. at 10. Because these documents are missing or allegedly altered, Plaintiff asserts that spoliation sanctions should be imposed against Defendants.

Plaintiff fails to present any evidence—with the exception of the consultation request from Nurse Nash—that these documents existed.7 The Court agrees that the absence of these documents is troubling and could help support Defendants' arguments. Without additional evidence to show that the documents existed, however, the Court cannot make a finding that Defendants destroyed, altered, or failed to preserve any evidence. It is recommended that Plaintiff's motion for summary judgment be denied at this time with leave to renew this argument prior to or during trial.

CONCLUSION

For the reasons explained above, it is recommended that Defendants' motion for summary judgment (ECF No. 71) be granted in part and denied in part. Plaintiff's motion for summary judgment (ECF No. 72) should be denied at this time. Pursuant to 28 U.S.C. § 636(b)(1), the parties may serve and file written objections to this Recommendation, or seek an extension of time to file objections, within fourteen (14) days after being served with a copy hereof. The district judge shall make a de novo determination of those portions of the Recommendation to which objection is made. All other portions of the Recommendation may be reviewed for clear error.

The parties are hereby notified that, pursuant to Eleventh Circuit Rule 3-1, "[a] party failing to object to a magistrate judge's findings or recommendations contained in a report and recommendation in accordance with the provisions of 28 U.S.C. § 636(b)(1) waives the right to challenge on appeal the district court's order based on unobjected-to factual and legal conclusions if the party was informed of the time period for objecting and the consequences on appeal for failing to object. In the absence of a proper objection, however, the court may review on appeal for plain error if necessary in the interests of justice."

SO RECOMMENDED.