Olin Grimsley v. Dr. William Hammack , 256 F. App'x 271 ( 2007 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
NOVEMBER 27, 2007
No. 06-12143 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 02-01524-CV-KOB-JEO
OLIN GRIMSLEY,
Plaintiff-Appellant,
versus
DR. WILLIAM HAMMACK,
DR. ANDY MADDUX, et al.,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
_________________________
(November 27, 2007)
Before CARNES, BARKETT and FAY, Circuit Judges.
PER CURIAM:
Olin Grimsley, a prisoner proceeding pro se, appeals the grant of the
defendants’ motions for summary judgment in his 42 U.S.C. § 1983 civil rights
action. Grimsley named Dr. William Hammack, Medical Director at St. Clair
Correctional Facility (“St. Clair”); NaphCare, Inc., contract provider of medical
services; Dr. Andy Maddux, nephrologist; Jim Henson, a nurse; Ralph Hooks,
Warden at St. Clair; and Donal Campbell, Alabama Department of Corrections
Commissioner, as defendants. Grimsley argues that he established a prima
facie case of deliberate indifference to his medical needs and presented a genuine
issue of material fact regarding the placement of an arteriovenous (“AV”) graft in
his arm and the defendants’ failure to remove it. Grimsley also argues that the
district court erred in denying his motions to appoint counsel because counsel was
needed to assist him in the prosecution of his case. Second, Grimsley argues that
the district court abused its discretion by denying his motion to amend his
complaint. Last, Grimsley argues that the district court abused its discretion by
denying his motion to obtain his medical records because those documents were
relevant and necessary to develop significant aspects of his case.
For the reasons set forth more fully below, we affirm.
I.
We review the district court’s ruling on a motion for summary judgment de
novo. Rojas v. Florida, 285 F.3d 1339, 1341 (11th Cir. 2002). The moving party
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is entitled to summary judgment “if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). “When deciding
whether summary judgment is appropriate, all evidence and reasonable factual
inferences drawn therefrom are reviewed in a light most favorable to the
non-moving party.” Rojas, 285 F.3d at 1341-42 (citation and quotation omitted).
Deliberate indifference to a prisoner’s serious medical needs violates the
Eighth Amendment. Farrow v. West, 320 F.3d 1235, 1243 (11th Cir. 2003).
Deliberate indifference contains both an objective and subjective component. Id.A plaintiff first must demonstrate an “objectively serious medical need.” Id. 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.” Id. (citation and quotation omitted).
Further, the medical need must be one that poses a substantial risk of serious harm
if left unattended. Id.Once a serious medical need is shown, a plaintiff must satisfy the subjective
inquiry, establishing that “the prison official acted with deliberate indifference to
that need.” Bozeman v. Orum, 422 F.3d 1265, 1272 (11th Cir. 2005) (citation and
quotation omitted). However, a “simple difference in medical opinion” does not
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constitute deliberate indifference. Waldrop v. Evans, 871 F.2d 1030, 1033 (11th
Cir. 1989). “[T]he question of whether governmental actors should have employed
additional diagnostic techniques or forms of treatment ‘is a classic example of a
matter for medical judgment’ and therefore not an appropriate basis for grounding
liability under the Eighth Amendment.” Adams v. Poag, 61 F.3d 1537, 1545 (11th
Cir. 1995) (citation omitted).
As an initial matter, the district court properly granted summary judgment as
to Dr. Hammack because Grimsley did not present any evidence to show that Dr.
Hammack either was aware of his serious medical need, or directly participated in
his care and treatment. Accordingly, Grimsley failed to establish a genuine issue
of material fact as to whether Dr. Hammack acted with deliberate indifference. As
to the remaining defendants, the following analysis considers separately: (1) the
placement of the AV graft on March 20, 2002; and (2) the failure to remove the
AV graft. Grimsley does not raise any arguments with respect to his initial dialysis
on appeal and, thus, has abandoned the issue. See Sepulveda v. United States, 401
F.3d 1226, 1228 n.2 (11th Cir. 2005).
A. Placement of the AV Graft on March 20, 2002
With respect to the placement of the AV graft, it is undisputed that Grimsley
had an objectively serious medical need, acute kidney failure, at the time the graft
was implanted. Dr. Simon, a staff physician, diagnosed the acute kidney failure
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while Grimsley was in custody at Limestone Correctional Facility (“Limestone”)
on February 11, 2002. Grimsley was transferred to St. Clair and was subsequently
sent to a non-prison hospital for examination and testing. Grimsley received
dialysis treatment at St. Clair after blood tests, x-rays, and other examinations
confirmed Dr. Simon’s diagnosis. On March 20, 2002, Dr. Maddux, a
nephrologist at St. Clair, decided to implant an AV graft in Grimsley’s arm,
presumably to provide a more stable access point for future dialysis. However, the
graft was never used because dialysis treatments were discontinued on March 25,
2002, after blood and urine tests, and an MRI revealed that Grimsley’s kidney
function had returned to normal. The defendants asserted that Grimsley’s course
of treatment was far more expensive than merely monitoring his condition, which
ultimately would have been easier and less expensive.
Although Grimsley disputes the necessity of implanting the AV graft to
address his serious medical need, he provides no evidence that refutes Dr.
Maddux’s medical judgment that the AV graft was necessary at the time it was
implanted. To the contrary, the evidence shows that the defendants provided the
necessary care and treatment to correct Grimsley’s kidney failure, but not the
treatment Grimsley believes he should have received. Matters of medical
judgment extend to whether the defendants should have provided additional forms
of treatment. See Adams, 61 F.3d at 1545; see also Harris v. Thigpen, 941 F.2d
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1495, 1505 (11th Cir. 1991) (stating, “[n]or does a simple difference in medical
opinion between the prison’s medical staff and the inmate as to the
latter’s . . . course of treatment support a claim of cruel and unusual punishment”).
Because Grimsley only has shown a difference of medical opinion in the manner in
which the defendants treated his condition, he has not raised a genuine issue of
material fact regarding deliberate indifference. See Adams, 61 F.3d at 1545;
Harris, 941 F.2d at 1505.
B. Failure to Remove the AV Graft
Here, the evidence, viewed in the light most favorable to Grimsley, did not
demonstrate that the defendants were deliberately indifferent to a serious medical
need of Grimsley’s. The evidence showed that Grimsley experienced pain,
numbness, and swelling in his left arm, near the site of the AV graft, and
repeatedly complained to the prison medical staff. However, Grimsley provided
only his own unsupported allegations that the AV graft was the cause of this pain
and that removal of the graft constituted a serious medical need. No physician
mandated that the AV graft be removed, and Grimsley failed to show that the
failure to remove the graft caused such obvious effects that even a lay person
would have recognized the necessity for its removal. See Farrow, 320 F.3d at
1243. To the contrary, the medical evidence in the record demonstrated that
Grimsley was examined on several occasions, by both the prison medical staff and
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independent doctors, who each determined that there was no sign of infection or
problem with the graft, and who explained that removal of the graft was not
medically necessary and, in fact, could cause an increase in pain and numbness
near the graft site post-surgery. Grimsley, therefore, did not provide any evidence
that the removal of the AV graft rose to the level of a serious medical need, as
required to grant relief under the Eighth Amendment. See Adams, 61 F.3d at 1543.
Therefore, because Grimsley has neither provided evidence that the
defendants’ placement of the AV graft in response to his serious medical need was
deliberately indifferent, nor shown that the failure to remove the graft was itself a
serious medical need, he has not shown that his Eighth Amendment rights were
violated. See Adams, 61 F.3d at 1543. Because Grimsley, in opposing the
defendants’ motions for summary judgment, did not set forth specific facts
showing that there was a genuine issue for trial, the district court did not err in
granting the defendants’ summary judgment motions as to his deliberate
indifference claim.
Finally, to the extent that Grimsley argues that the district court erred in
denying his motions to appoint counsel, the orders at issue were entered by a
magistrate. A district court may refer most non-dispositive motions, with certain
exceptions, to a magistrate for disposition. See 28 U.S.C. § 636(b). “[W]here a
party fails to timely challenge a magistrate’s non-dispositive order before the
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district court, the party waived his right to appeal those orders in this Court.”
Smith v. Sch. Bd. of Orange County, 487 F.3d 1361, 1365 (11th Cir. 2007)
(citation omitted); see Fed.R.Civ.P. 72(a) (stating that a party must file objections
to a magistrate’s order within 10 days after being served with a copy of the order).
Here, Grimsley did not file any objections to the magistrate’s orders. Thus,
because he failed to challenge the magistrate’s orders before the district court, he
waived his right to appeal them here. See Smith, 487 F.3d at 1365; Fed.R.Civ.P.
72(a). For all of these reasons, we affirm as to this issue.
II.
We review the denial of a motion to amend a complaint under an abuse of
discretion standard. Green Leaf Nursery v. E.I. DuPont De Nemours & Co., 341
F.3d 1292, 1300 (11th Cir. 2003). Under Fed.R.Civ.P. 15(a), leave to amend “shall
be freely given when justice so requires.” Here, the district court withdrew, in part,
the magistrate’s order denying Grimsley’s motion to amend his original complaint
to include an additional claim against the defendants alleging that they failed to
remove the AV graft because he refused to sign a consent form that included an
absolute waiver of liability. Accordingly, to the extent the district court granted
this portion of Grimsley’s motion to amend, his argument on appeal is moot. As to
the denial of Grimsley’s motion to amend his original complaint to include
additional defendants, the district court did not abuse its discretion in denying this
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portion of his motion, which would have caused undue delay, and would have
resulted in unfair prejudice to the additional defendants. See Campbell v. Emory
Clinic, 166 F.3d 1157, 1162 (11th Cir. 1999) (holding district court did not abuse
its discretion in denying motion to amend when amendment would have resulted in
undue delay and expense, and resulted in unfair prejudice to the defendants).
III.
We review a district court’s decision to grant summary judgment prior to
conducting discovery for an abuse of discretion. See Wallace v. Brownell
Pontiac-GMC Co., 703 F.2d 525, 527-28 (11th Cir. 1983). Rule 56(b) states, “A
party against whom a claim . . . is asserted . . . may, at any time, move . . . for a
summary judgment.” Fed.R.Civ.P. 56(b). Rule 56(f) states, “Should it appear
from the affidavits of a party opposing the [motion for summary judgment] that the
party cannot for reasons stated present by affidavit facts essential to justify the
party’s opposition, the court may refuse the application for judgment or may order
a continuance to permit . . . discovery to be had.” Fed.R.Civ.P. 56(f). “[T]he
nonmovant may not simply rely on vague assertions that additional discovery will
produce needed, but unspecified, facts, but rather he must specifically demonstrate
how postponement of a ruling on the motion will enable him, by discovery or other
means, to rebut the movant’s showing of the absence of a genuine issue of fact.”
Wallace, 703 F.2d at 527 (citations and quotations omitted).
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Here, Grimsley failed to file a motion pursuant to Rule 56(f) and, instead,
filed a “notice” advising the district court that he was unable to obtain a copy of his
medical records. The district court construed this notice as a motion to conduct
additional discovery. Even if Grimsley had filed a proper motion under Rule 56(f),
he would still not prevail because he did not, and does not, demonstrate how
additional discovery “will enable him . . . to rebut the movant’s showing of the
absence of a genuine issue of fact.” Wallace, 703 F.2d at 527. Moreover, to the
extent Grimsley asserts that the defendants had an unfair advantage because they
had access to his medical records, the record demonstrates that Grimsley was
properly served with copies of the defendants’ responses containing the requested
documents, and Grimsley did not challenge service below. Accordingly, the
district court did not abuse its discretion by denying his motion.
In light of the foregoing, the granting of defendants’ motions for summary
judgments is
AFFIRMED.
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