Eugene A. Fischer v. Federal Bureau of Prisons , 349 F. App'x 372 ( 2009 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 08-16134 ELEVENTH CIRCUIT
SEPTEMBER 23, 2009
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
D. C. Docket No. 06-00407-CV-OC-10GRJ
EUGENE A. FISCHER,
Plaintiff-Appellant,
versus
FEDERAL BUREAU OF PRISONS,
as an Agency of the United States
Department of Justice, et al.,
Defendants,
MARK WINSTON TIDWELL, MD,
individually and as an employee of the
Federal Bureau of Prisons,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(September 23, 2009)
Before BLACK, MARCUS and ANDERSON, Circuit Judges.
PER CURIAM:
Eugene A. Fischer, a federal prisoner proceeding pro se, appeals the district
court’s dispositive order granting summary judgment to Dr. Mark Winston
Tidwell, in his civil rights action, brought under Bivens v. Six Unknown Named
Agents of Fed. Bureau of Narcotics, 91 S. Ct. 1999 (1971).1 Specifically, Fischer
alleged Dr. Tidwell acted with deliberate indifference in treating his enlarged
prostate condition while he was imprisoned at the United States Penitentiary in
Coleman, Florida (USP Coleman), where Dr. Tidwell worked as the medical
director. On appeal, Fischer argues the district court erred in granting summary
judgment to Dr. Tidwell because he demonstrated the existence of genuine issues
of fact with regard to the deliberate indifference claim.
In Bivens, the Supreme Court held a plaintiff may bring certain causes of
action for damages against a federal officer based on a violation of constitutional
rights. Bivens, 91 S. Ct. at 2005. The Supreme Court has extended Bivens and
inferred a cause of action against prison officials for violating a prisoner’s Eighth
Amendment right to adequate medical care. Carlson v. Green, 100 S. Ct. 1468,
1474 (1980). The Eighth Amendment is violated when there is deliberate
1
Fischer does not appeal, and thus has abandoned, any challenge to the district court’s
dismissal of additional parties, including the Federal Bureau of Prisons and Warden Tracy Johns,
and claims, under the Federal Tort Claims Act, 28 U.S.C. § 1346, and 42 U.S.C. § 1983, that he
originally included in this civil rights suit. See Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226,
1228 n.2 (11th Cir. 2005).
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indifference to a prisoner’s serious medical needs. Estelle v. Gamble, 97 S. Ct.
285, 291 (1976).
In order to prove a claim of deliberate indifference, the plaintiff must show:
(1) he had a serious medical need (the objective component); (2) the prison official
acted with deliberate indifference to that serious medical need (the subjective
component); and (3) the official’s wrongful conduct caused the injury. Goebert v.
Lee County, 510 F.3d 1312, 1326 (11th Cir. 2007). To satisfy the subjective
component, the plaintiff must prove the prison official subjectively knew of a risk
of serious harm, the official disregarded that risk, and the official’s conduct was
more than gross negligence. Id. at 1326-27. Courts are competent to decide as a
matter of law whether a plaintiff has met this “difficult burden.” West v. Tillman,
496 F.3d 1321, 1327 (11th Cir. 2007) (internal quotation marks and emphasis
omitted).
Deliberate indifference may be shown where there is “[g]rossly incompetent
or inadequate care,” see Waldrop v. Evans, 871 F.2d 1030, 1033 (11th Cir. 1989),
the official refuses to provide medical care he knows is necessary, see Ancata v.
Prison Health Servs., Inc., 769 F.2d 700, 704 (11th Cir. 1985), or the official
delays in providing necessary diagnostic care or medical treatment for non-medical
reasons, see H.C. by Hewett v. Jarrard, 786 F.2d 1080, 1086 (11th Cir. 1986). But
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see Harris v. Coweta County, 21 F.3d 388, 393-94 (11th Cir. 1994) (noting a delay
in providing treatment may be constitutionally tolerable, depending on the “nature
of the medical need and the reason for the delay”). Mere inadvertence, negligence,
or medical malpractice does not rise to the level of deliberate indifference, Estelle,
97 S. Ct. at 292, “[n]or does a simple difference in medical opinion,” Waldrop, 871
F.2d at 1033.
In this case, evidence showed Fischer suffered from an enlarged prostate and
chronic blood clotting in his right leg. Dr. Tidwell began treating Fischer at USP
Coleman in 2003 by prescribing medication to prevent blood clotting and
monitoring the effect of that medication on him. In June 2004, Dr. Tidwell sent
Fischer to a consultation with a urologist, who inserted a catheter and
recommended prostate reduction surgery following a prostate biopsy to rule out
prostate cancer. Upon Fischer’s return to USP Coleman, Dr. Tidwell removed the
catheter to reduce the risk of an infection and ordered a prostate biopsy, which had
to be scheduled after Fischer had been taken off of the medication used to treat his
blood clotting condition. The urologist completed the prostate biopsy in October
2004 and prison personnel received the results, which showed no indication of
cancer, in November 2004.
4
Ten days later, Fischer came to the prison medical clinic twice complaining
of weakness, blood in his urine, and tenderness of his abdomen, and Dr. Tidwell
ordered, over the telephone, that he be taken to the hospital emergency room.
There, Fischer was diagnosed with renal failure, sepsis, and retroperitoneal
bleeding due to thin blood, and he was hospitalized for about four weeks. Upon
his return to prison, Dr. Tidwell continued treating Fischer, and about a month
later, in January 2005, a urologist performed prostate reduction surgery on Fischer.
Fischer submitted a brief opinion letter from an outside urologist, Dr. Jay
Copeland, who opined that Dr. Tidwell was negligent in treating Fischer and
delaying routine prostate reduction surgery.
After de novo review, viewing all evidence and reasonable factual inferences
in the light most favorable to Fischer, see Turnes v. AmSouth Bank, N.A., 36 F.3d
1057, 1060 (11th Cir. 1994), we conclude the district court did not err in granting
summary judgment to Dr. Tidwell on Fischer’s deliberate indifference claim.2 The
evidence in the record indicates Dr. Tidwell exercised his medical judgment in
treating and monitoring Fischer’s prostate condition. Evidence of potential error in
2
We note that Fischer has waived any claim related to the blood clotting in his leg
because he did not address that issue in response to Dr. Tidwell’s motion for summary judgment.
See Transamerica Leasing, Inc. v. Inst. of London Underwriters, 267 F.3d 1303, 1308 n.1 (11th
Cir. 2001). We also decline to address the exhibits Fischer attached to his brief because they are
not part of the record. See Clark v. Coats & Clark, Inc., 929 F.2d 604, 609-610 (11th Cir. 1991).
5
Dr. Tidwell’s medical judgment, or a difference in medical opinion from another
doctor, did not create a genuine issue of material fact because it did not
demonstrate action beyond gross negligence. See Goebert, 510 F.3d at 1327; see
also Waldrop, 871 F.2d at 1033. Accordingly, we affirm the district court’s grant
of summary judgment to Dr. Tidwell.
AFFIRMED.
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