Johnny Carroll v. Correctional Medical Services , 160 F. App'x 848 ( 2005 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 05-10016 ELEVENTH CIRCUIT
DECEMBER 21, 2005
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
D. C. Docket No. 00-03106-CV-TMP
JOHNNY CARROLL,
Plaintiff-Appellant,
versus
CORRECTIONAL MEDICAL SERVICES,
RALPH HOOKS,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
_________________________
(December 21, 2005)
Before BLACK, BARKETT and WILSON, Circuit Judges.
PER CURIAM:
Johnny Carroll, an Alabama prisoner proceeding pro se, appeals the
dismissal of his 42 U.S.C. § 1983 civil complaint and raises four separate issues
concerning the district court’s grant of summary judgment for Correctional
Medical Services (“CMS”) and the magistrate judge’s denial of Carroll’s motions
for default judgment, for appointment of counsel, and for a jury trial.1 First,
Carroll argues that, because CMS did not answer or plead in response to his claim
for almost one year, he was entitled to judgment by default. Carroll contends that
CMS’s inaction was deliberate and CMS’s excuse for failure to plead was
insufficient. Second, Carroll argues that he should have been appointed counsel
because of his physical condition, the complexity of his case, and the nature of the
rights involved. Carroll also contends that he was further hindered because he was
housed in the medical unit or recuperating from surgery when the pleadings were
filed. Third, Carroll asserts that CMS violated his constitutional rights by wrongly
diagnosing him with Crohn’s disease, failing to review his medical records that
noted a change in his diagnosis, and delaying the reversal of his ileostomy, in
violation of his Eight Amendment protection against cruel and unusual
punishment. Fourth, Carroll argues that his demand for a jury trial was not
1
Carroll does not raise any argument involving defendant Ralph Hooks. Therefore, such
claims are abandoned. See Marek v. Singletary, 62 F.3d 1295, 1298 n.2 (11th Cir. 1995)
(“Issues not clearly raised in the briefs are considered abandoned”).
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untimely because the last pleading filed in his case was not the special report by
CMS.
I.
We review a decision to grant or deny a motion for default judgment for
abuse of discretion. Wahl v. McIver, 773 F.2d 1169, 1174 (11th Cir. 1985) (per
curiam). Grant of default judgment “is a drastic remedy which should be used only
in extreme situations.” Id.Here, Carroll moved for a default judgment against CMS after it failed to
submit a special report within 60 days of the magistrate judge’s order. In an order
entered on September 30, 2003, the magistrate judge denied Carroll’s motion
because “[c]ounsel for [CMS] contacted the court [] and informed the court that
counsel had not received a copy of the Order requesting that [CMS] file a special
report in response to [Carroll’s] allegations against it.” In light of these
circumstances and “the usual preference that cases be heard on the merits,” id., the
magistrate judge’s denial of Carroll’s motion was not an abuse of discretion.
II.
“We review a . . . decision not to appoint counsel for an abuse of discretion.”
United States v. Berger, 375 F.3d 1223, 1226 (11th Cir. 2004) (per curiam).
“Appointment of counsel in a civil case is not a constitutional right.” Fowler v.
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Jones, 899 F.2d 1088, 1096 (11th Cir. 1990). Rather, “[i]t is a privilege that is
justified only by exceptional circumstances, such as where the facts and legal
issues are so novel or complex as to require the assistance of a trained
practitioner.” Id.In this case, there were no exceptional circumstances that would require
appointment of counsel, as the facts and legal issues were neither particularly novel
nor complex. Therefore, the magistrate judge did not abuse his discretion when he
denied Carroll’s motions for appointment of counsel.
III.
We review a district court’s grant of summary judgment de novo, viewing
the evidence in the light most favorable to the party opposing the motion.
McCorvey v. Baxter Healthcare Corp., 298 F.3d 1253, 1257 (11th Cir. 2002).
Federal Rule of Civil Procedure 56(c) states that summary judgment is appropriate
“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.” “A mere ‘scintilla’ of evidence supporting the opposing party’s position will
not suffice; there must be enough of a showing that the jury could reasonably find
for that party.” Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir. 1990).
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“[D]eliberate indifference to serious medical needs of prisoners constitutes
the unnecessary and wanton infliction of pain proscribed by the Eight Amendment.
Estelle v. Gamble, 429 U.S. 97, 104, 97 S. Ct. 285, 291, 50 L. Ed. 2d 251 (1976)
(internal quotation omitted). However, “[m]edical treatment violates the [E]ighth
[A]mendment only when it is so grossly incompetent, inadequate, or excessive as
to shock the conscience or to be intolerable to fundamental fairness. Mere
incidents of negligence or malpractice do not rise to the level of constitutional
violations.” Harris v. Thigpen, 941 F.2d 1495, 1505 (11th Cir. 1991) (internal
quotation omitted). “An inmate who complains that [a] delay in medical treatment
rose to a constitutional violation must place verifying medical evidence in the
record to establish the detrimental effect of [the] delay in medical treatment to
succeed.” Hill v. DeKalb Reg’l Youth Det. Ctr., 40 F.3d 1176, 1188 (11th Cir.
1994), abrogated on other grounds by Hope v. Pelzer, 536 U.S. 730, 122 S. Ct.
2508, 153 L. Ed. 2d 666 (2002). “Whether this delay in treatment was tolerable
depends on the nature of the medical need and the reason for the delay.” Farrow v.
West, 320 F.3d 1235, 1247 (11th Cir. 2003) (internal quotation omitted).
“To show that a prison official acted with deliberate indifference to serious
medical needs, a plaintiff must satisfy both an objective and a subjective inquiry.”
Id. at 1243. A plaintiff must first show “an objectively serious medical need.” Id.5
He must then “prove that the prison official acted with an attitude of deliberate
indifference to that serious medical need.” Id. (quotation omitted).
Here, Carroll’s condition was objectively serious as it was diagnosed by a
physician who mandated treatment. However, Carroll has failed to show that CMS
acted with deliberate indifference, as Carroll was examined, monitored, evaluated,
and cared for regularly by physicians and nurses at the prison and local outside
facilities. Accordingly, Carroll has not shown a violation of his Eighth
Amendment rights, and the district court properly granted summary judgment for
CMS.2
IV.
In addressing the issue of mootness, we have held that a claim “is moot
when the issues presented are no longer live or the parties lack a legally cognizable
interest in the outcome.” Dupree v. Palmer, 284 F.3d 1234, 1237 (11th Cir. 2002)
(per curiam). Jurisdiction may abate due to mootness when “(1) it can be said with
assurance that there is no reasonable expectation . . . that the alleged violation will
recur, and (2) interim relief or events have completely and irrevocably eradicated
2
We note that the magistrate judge, the district court, and Carroll in his initial brief, treat
CMS as an individual, while CMS argues that it is a corporate entity and therefore is “not
capable of ‘personally’ violating the constitutional rights of an individual.” However, it is
unnecessary to address this distinction, as Carroll has failed to establish a constitutional
violation.
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the effects of the alleged violation.” Id. Because we have affirmed the district
court’s grant of summary judgment, Carroll’s appeal of the denial of his motions
for a jury trial is moot.
Conclusion
Upon review of the record and consideration of the parties’ briefs, we
discern no reversible error in: (1) the magistrate judge’s denial of Carroll’s motion
for default judgment; (2) the magistrate judge’s denial of Carroll’s motion for
appointment of counsel; (3) the district court’s grant of summary judgment in favor
of CMS; or (4) the magistrate judge’s denial of Carroll’s motions for a jury trial.
Accordingly, we affirm.
AFFIRMED.
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