ORDER AND REPORT & RECOMMENDATION

STEPHEN HYLES, Magistrate Judge.

Presently pending before the Court are Defendants' motions for summary judgment (ECF Nos. 68, 70) and Plaintiff's requests for a pretrial conference (ECF Nos. 74, 75, 77). For the reasons explained below, it is recommended that Defendants' motions be granted. Plaintiff's motions are denied.

BACKGROUND

The present action arises from Plaintiff's confinement at the Baldwin County Jail (BCJ). Plaintiff alleges that since he arrived at the jail, the physician and nurse have refused to provide him adequate medical treatment and medication. Plaintiff was seen by Defendants Dr. Buczynsky and Nurse Bell1 on a number of occasions, and each time they, in one way or another, refused to provide him with medication and/or outside treatment for his shoulder injury, gastrointestinal conditions, prior concussions, and dental problems. Plaintiff claims that Buczynsky and Bell's conduct has caused him to suffer extreme pain.

After a preliminary review, Plaintiff's claims for deliberate indifference to his medical needs were allowed to proceed against Defendants Buczynsky and Bell. Order & R. 2-3, May 20, 2016, ECF No. 10. Defendants move for summary judgment on Plaintiff's claims. Plaintiff moves to schedule a pre-trial conference. These motions are addressed below.

DISCUSSION

I. Motions for Summary Judgment

Defendants move for summary judgment claiming that they are entitled to qualified immunity. Plaintiff failed to respond to either Defendant's motion although he received notice of the motions and was warned that failure to respond may result in the Court accepting the facts asserted in each motion as being true. Notice of Summ. J. Mot. 1, ECF No. 71. Plaintiff was also warned that failing to respond could result in final judgment being entered without a trial and against him. Id. As explained below, it is recommended that Defendants' motions be granted.

A. 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, the evidence is viewed in the light most favorable to the party opposing summary judgment. All justifiable inferences are drawn 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.

B. Qualified Immunity

"[Q]ualified immunity completely protects government officials performing discretionary functions from suit in their individual capacities unless their conduct violates clearly established statutory or constitutional rights of which a reasonable person would have known." Gonzalez v. Reno, 325 F.3d 1228, 1233 (11th Cir. 2003) (internal quotation marks and citation omitted). "The purpose of qualified immunity is to allow officials to carry out discretionary duties without the chilling fear of personal liability or harrassive litigation, protecting from suit all but the plainly incompetent or one who is knowingly violating federal law." McCullough v. Antolini, 559 F.3d 1201, 1205 (11th Cir. 2009) (internal quotation marks and citation omitted).

"In order to receive qualified immunity, an official must first establish that he was acting within the scope of his discretionary authority when the alleged wrongful acts occurred." Id. Once the defendant shows that he was acting within his discretionary authority, the burden then shifts to the plaintiff to establish that qualified immunity does not apply. Cottone v. Jenne, 326 F.3d 1352, 1358 (11th Cir. 2004). It is undisputed in this case that Defendants were acting within their discretionary authorities in treating Plaintiff. Because that determination is made, the burden shifts to Plaintiff to show that Defendants are not entitled to qualified immunity.

To overcome a claim of qualified immunity, a plaintiff must "show[] (1) that the official violated a statutory or constitutional right, and (2) that the right was clearly established at the time of the challenged conduct." Wood v. Moss, ___ U.S. ___, 134 S.Ct. 2056, 2066-67 (2014) (internal quotation marks and citation omitted).2 The Court therefore must determine whether the Plaintiff has shown that the Defendants' conduct violated a constitutional right (or rights) and whether that right was clearly established. Plaintiff has failed to meet that burden here.

C. Plaintiff's Allegations

Plaintiff filed the complaint on January 17, 2016. Compl. 6, ECF No. 1. Therein, he complains of events that occurred on December 30, 2015, January 7, 2016, and January 12, 2016. Plaintiff states that he was given "orders" from Athens Regional Medical Center to take tramadol four times a day, to take Prilosec OTC twice a day, and to see a gastro-intestinal (GI) specialist. Compl. 5. Plaintiff complains that the doctor at BCJ—Dr. Buczynsky—denied him pain medication, reduced the Prilosec prescription to once a day, refused to send him to a GI specialist, and refused to pull the teeth that Plaintiff requested be pulled. Id. He further contends that, in early January 2016, Nurse Bell refused to give him Tylenol to treat his "extreme shoulder and stomach pain" and headache resulting from the news that his brother died. Id.

During his deposition, Plaintiff explicitly withdrew his claim against Dr. Buczynsky concerning his teeth. Pl.'s Dep. 45:16-23, May 18, 2017, ECF No. 70-4. Plaintiff explained that his tooth was pulled after the filing of the Complaint so he no longer maintains that claim against Dr. Buczynsky. Id. Plaintiff consequently has four remaining claims for deliberate indifference to his medical needs against Defendants: (1) against Defendant Buczynsky for failing to provide him with pain medication; (2) against Defendant Buczynsky for reducing his Prilosec prescription from twice a day to once a day; (3) against Defendant Buczynsky for failing to send him to a GI specialist; and (4) against Defendant Bell for failing to provide him with Tylenol at a pill call.

D. Material Facts

The facts in this case are primarily uncontested. Much of the medical history related below occurs after the filing of the Complaint. For completeness, the Court provides a summary of Plaintiff's medical treatment that occurred after the filing of the Complaint but prior to his discharge from BCJ in May 2016.

On December 28, 2015, Plaintiff was arrested by Athens Clarke County Sheriff's Department on a probation violation. Pl.'s Dep. 29:11-15, 28:19-20. When Plaintiff was arrested, he informed the sheriff's deputies that he was in extensive pain. Id. at 29:9-18. The deputies took Plaintiff to Athens Regional Medical Center (ARMC) for evaluation. Id. at 29:19-22.

Plaintiff arrived at the ARMC emergency room on December 28, 2015. Def. Buczynsky's Ex. A at 16, ECF No. 73-2.3 He was treated for his complaints of shoulder pain, abdominal pain, and blood in his stool. Id. at 34-36. ARMC performed blood tests, a shoulder x-ray, and a hemoccult test (to determine whether blood was present in Plaintiff's stool). Id. at 35-36. The hemoccult found "no blood" in Plaintiff's stool and his "[l]aboratory examinations were otherwise relatively unremarkable." Id. at 35. These test results in combination with the reported length of time Plaintiff had experienced blood in his stool caused the doctor to conclude that emergent imaging was not required and that there was a "low likelihood for emergent surgical process." Id. The x-ray showed "[n]o evidence of acute fracture or dislocation[,]" and that Plaintiff's "[j]oint spaces [were] well-maintained." Id. at 36.

Plaintiff was given two prescriptions at ARMC—Prilosec OTC twice a day and Ultram/tramadol up to four times a day as needed for pain. Def. Buczynsky's Ex. A at 20; see also Def. Buczynsky's Ex. G, ECF No. 73-6. The emergency room doctor also told Plaintiff to have a "GI follow-up." Def. Buczynsky's Ex. A at 35. Plaintiff states that he was given a separate sheet of paper which referred him to a "GI specialist like immediately." Pl.'s Dep. 33:11-12. Plaintiff was discharged from ARMC on December 29, 2015, and taken to Baldwin County Jail. Def. Buczynsky's Ex. A at 16; Def. Buczynsky's Ex. B, ECF No. 73-2.

Plaintiff was first seen in medical at BCJ on December 30, 2015. Def. Buczynsky's Ex. C at 1, ECF No. 73-3. The medical records from that evaluation note that Plaintiff was seen the day before at ARMC for his complaints of blood in his stool. Id. Plaintiff was again evaluated for the reported blood in his stool and continued on Prilosec, but only once a day. Id; see also Buczynsky Aff. ¶ 8, ECF No. 70-3.

Plaintiff filed a medical request form on January 7, 2016 seeking the tramadol prescribed by ARMC, "mental health meds[,]" Prilosec twice a day as prescribed by ARMC, and to have several teeth pulled. Def. Buczynsky's Ex. D at 13, ECF No. 73-4. Plaintiff's request was reviewed and he was referred to the doctor for a visit. Id. Plaintiff filed a second medical request form on January 11, 2016, complaining that he needs a broken tooth pulled, that he is still experiencing blood in his stool, that he suffers from hallucinations, and that he is not receiving an alternative pain medication to the tramadol prescribed by ARMC. Def. Buczynsky's Ex. D at 1. He was seen by Dr. Buczynsky on January 13, 2016. Id. at 1-2. At that visit, Dr. Buczynsky evaluated Plaintiff for each of his medical complaints and prescribed the following medications: Naproxen for chronic shoulder pain; Risperdal for possible hallucinations; a suppository for external hemorrhoid; and amoxicillin for his dental issues. Id. at 2; Def. Buczynsky's Ex. E at 2, ECF No. 73-5.

Sometime in early January, Plaintiff went to pill call and asked Defendant Bell for Tylenol for a headache. Pl.'s Dep. 74:13-15. The only interaction Plaintiff had with Defendant Bell was during pill call—she was responsible for administering his medication. Id. at 73:19-25. Plaintiff explained the interaction as follows: "I explained to her that I found out my brother just died. I'm dealing with physical pain. And I'm coping with my mental health. I need some Tylenol for this awful headache. And she just flat out told me no, you see a doctor." Id. at 74:22-75:1. Although Plaintiff received his other medications during this interaction, Defendant Bell refused to give him Tylenol. Id. at 82:15-19.

Plaintiff submitted medical requests forms on January 16, January 19, and January 25. Def. Buczynsky's Ex. D at 3-5. In the January 16 request, Plaintiff seeks printouts of all possible side effects of his medication and states that he continues to be in pain and have blood in his stool. Id. at 3. Dr. Buczynsky responded on January 19 that the staff should inquire as to specifically what side effect Plaintiff believes he is experiencing. Id. On January 19, Plaintiff states that he wants his prescriptions from the ARMC emergency room doctor returned to him and that he still needs the treatment previously requested. Id. at 4. The notes on Plaintiff's January 19 medical request form state that Plaintiff refused to be seen on January 22. Id. In the January 25 request, Plaintiff states that he needs medication for depression, needs his Risperdal increased, still wants his prescriptions from ARMC returned, still has abdominal pain and blood in his stool, and still has chronic chest and shoulder pain. Id. at 5. Plaintiff was seen by Dr. Buczynsky on January 26, was evaluated for his complaints, and was given an additional prescription—Paxil—for his depression. Id.

Plaintiff filed six medical requests between February and March 2016, and another in May 2016. Def. Buczynsky's Ex. D at 6-12. In those requests, Plaintiff complains at various times that he is passing blood, that he is in serious pain from his shoulder, that he still needs to see a GI specialist, that his medications for depression should be adjusted, and that his teeth are bothering him. Id. Plaintiff was seen by medical personnel on February 12, March 8, April 1, and May 13, 2016. Id. Plaintiff was evaluated throughout this period by different medical staff, and his medications were adjusted. Id; see also Def. Buczynsky's Ex. E at 4-7. Plaintiff was also given two rectal exams while at BCJ to evaluate and treat his rectal bleeding. Buczynsky Aff. ¶ 10; Pl.'s Dep. 66:20-21. When discharged from BCJ, Plaintiff had prescriptions for Prilosec OTC, Risperdal, Tylenol, and Paxil. Def. Buczynsky's Ex. E at 7.

E. Defendant Bell

Plaintiff claims that Defendant Bell was deliberately indifferent to his serious medical needs in violation of the eighth amendment by denying him Tylenol at a pill call. Defendant Bell moves for summary judgment stating that she is entitled to qualified immunity because Plaintiff has not shown an objectively serious medical need and thus cannot establish a constitutional violation. Def. Bell's Br. in Supp. 5, ECF No. 68-3. The Court agrees.

"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

In order to establish a claim for deliberate indifference to a serious medical need, a Plaintiff must first show a "serious medical need[.]" Mann, 588 F.3d at 1306. A serious medical need must be either "diagnosed by a physician as mandating treatment" or "so obvious that even a lay person would easily recognize the necessity for a doctor's attention." Bingham, 654 F.3d at 1176. Alternatively, "a serious medical need [may be] determined by whether a delay in treating the need worsens the condition." Mann, 588 F.3d at 1307. Regardless, "the medical need must be one that, if left unattended, poses a substantial risk of serious harm." Id.

Plaintiff's headache does not fit within the definition of a serious medical need. Plaintiff had a headache that lasted for a few days. Defendant Bell denied him Tylenol at one pill call. Plaintiff does not state that his headache was debilitating or show that it caused him serious harm. Pl.'s Dep. 87:8-12. He also does not state that a delay in giving him the Tylenol worsened his condition. Id. at 91:3-8. To the contrary he states that (1) he had been told that taking Tylenol could worsen his bleeding condition, Id. at 84:15-24, and (2) when he did get Tylenol a "day or two" later, it relieved symptoms but did not make his headache go away. Id. at 93:16-19, 93:25-94:1. Plaintiff thus fails to show that Defendant Bell was deliberately indifferent to a serious medical need. Defendant Bell is entitled to qualified immunity and her motion for summary judgment should be granted.

F. Defendant Buczynsky

Plaintiff asserts that Defendant Buczynsky was deliberately indifferent to his serious medical needs in three ways: (1) that he failed to give Plaintiff pain medications; (2) that he reduced Plaintiff's Prilosec prescription from twice to once a day; and (3) that he failed to send Plaintiff to a GI specialist. Defendant Buczynsky responds that he treated all of Plaintiff's medical needs and thus is entitled to qualified immunity and summary judgment. The Court agrees.

Plaintiff contends that he should have been given specific treatment and that the failure to provide this treatment—namely tramadol, Prilosec twice a day, and referral to a specialist—constitutes a violation of the Eighth Amendment. However, 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) ("[A]n inmate's desire for a different mode of treatment does not rise to the level of deliberate indifference."). 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). 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.").

The uncontested facts discussed above show that Plaintiff was treated twice by Dr. Buczynsky between his arrival at BCJ on December 29, 2015 and the filing of the complaint on January 17, 2016—a mere nineteen days. At the first appointment, Dr. Buczynsky reviewed Plaintiff's medical records from ARMC and continued his prescription for Prilosec OTC for once a day. When Plaintiff complained that his rectal bleeding had continued, his pain had worsened, and he had begun experiencing mental issues, Dr. Buczynsky saw Plaintiff a second time. At that appointment, Dr. Buczynsky gave Plaintiff four additional prescriptions—one each for pain, hallucinations, rectal bleeding/hemorrhoid, and his reported dental issues.

Plaintiff filed his complaint after this second appointment, not because he had not received treatment, but because he did not like the treatment he received from Dr. Buczynsky.4 This simply does not rise to the level of deliberate indifference. Plaintiff has not and cannot show that Defendant Buczynsky had subjective knowledge of a serious risk of harm and then ignored that risk of harm. Because Plaintiff has failed to establish a constitutional violation, Defendant Buczynsky is entitled to qualified immunity. It is therefore recommended that Defendant Buczynsky's motion for summary judgment be granted.

II. Plaintiff's Miscellaneous Motions

Plaintiff filed three motions for a pretrial conference (ECF Nos. 74, 75, 77). Because it is recommended that Defendants' motions for summary judgment be granted, these motions are denied.

CONCLUSION

For the reasons explained above, it is recommended that Defendants' motions for summary judgment (ECF Nos. 68, 70) be granted. Plaintiff's motions are denied. (ECF Nos. 74, 75, 77.) 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 ORDERED and RECOMMENDED.