John Fitzgerald Freeman v. Doctor Lebedovych , 186 F. App'x 943 ( 2006 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 05-15255 JUNE 30, 2006
Non-Argument Calendar THOMAS K. KAHN
CLERK
________________________
D. C. Docket No. 04-00032-CV-HL-7
JOHN FITZGERALD FREEMAN,
Plaintiff-Appellant,
versus
DOCTOR LEBEDOVYCH,
Psychiatrist from M.H.M. a.k.a. Mental
Health Management Services under contract
to G.D.O.C.,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Georgia
_________________________
(June 30, 2006)
Before ANDERSON, BIRCH and DUBINA, Circuit Judges.
PER CURIAM:
Appellant John Fitzgerald Freeman, a pro se state prisoner, appeals the
district court’s grant of summary judgment against him in his civil rights suit
brought under 42 U.S.C. § 1983. Freeman agrees that there is no genuine issue of
material fact, but contends that the facts show that Dr. Lebedovych, who was his
treating psychiatrist at Valdosta State Prison, was deliberately indifferent to his
serious medical needs when he reduced Freeman’s psychotropic medication.
Freeman argues that Dr. Lebedovych should have known of a substantial
risk of serious harm because Freeman had been prescribed a course of treatment
that included 3 mg Risperdal and 80 mg Geodon by two other psychiatrists.
According to Freeman, because he had been treated in that manner in the past,
Lebedovych should have inferred that a different course of treatment would lead to
a substantial risk of serious harm. Moreover, Freeman argues, the fact that he told
Dr. Lebedovych that he feared he would hurt himself shows that it was
unprofessional of Dr. Lebedovych not to take further steps to preserve his safety.
Freeman further contends that Dr. Lebedovych never prescribed the Geodon, and
decreased the Risperdal, thus displaying deliberate indifference to his contentions
that the voices in his head might lead him to hurt himself.
We review a district court’s order on summary judgment de novo and apply
the same standard as the district court. Steele v. Shah, 87 F.3d 1266, 1269 (11th
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Cir. 1996). To determine whether the district court’s decision was proper, we
review the record in the light most favorable to the non-moving party and grant the
motion only if the record demonstrates no genuine issue of material fact and that
the moving party is entitled to judgment as a matter of law. Id. Section 1983
requires proof of an affirmative causal connection between the official’s acts or
omission and the alleged constitutional deprivation. Zatler v. Wainwright, 802
F.2d 397, 401 (11th Cir. 1986). A causal connection may be proven by showing
that the official: (1) was personally involved in the acts which resulted in the
constitutional deprivation, (2) established a policy or custom that resulted in the
alleged constitutional deprivation, or (3) breached a duty imposed by state or
federal law. Id.To establish liability under § 1983 for inadequate medical treatment, a
defendant must show that the failure to provide him medical care amounted to
cruel and unusual punishment under the Eighth Amendment of the United States
Constitution. To rise to this level, a defendant must show that his inadequate care
arose from a “deliberate indifference to [his] serious medical needs.” Estelle v.
Gamble, 429 U.S. 97, 104-05, 97 S. Ct. 285, 291, 50 L. Ed. 2d 251 (1976). Two
subsidiary showings must be made to obtain relief: (1) that the prisoner had an
objectively serious medical condition that, if left unattended, could cause serious
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harm, and (2) that the defendants’ response was so poor that it constituted an
unnecessary and wanton infliction of pain. See Estelle, 429 U.S. at 105-06, 97 S.
Ct. at 291-92. To establish deliberate indifference, “the prisoner must prove three
facts: (1) subjective knowledge of a risk of serious harm; (2) disregard of that risk;
and (3) by conduct that is more than mere negligence.” Brown v. Johnson, 387
F.3d 1344, 1351 (11th Cir. 2004). A difference in opinion between a medical
professional and the inmate as to the inmate’s course of treatment does not support
a claim of cruel and unusual punishment. Harris v. Thigpen, 941 F.2d 1495, 1505
(11th Cir. 1991).
Deliberate indifference is medical treatment that is “so grossly incompetent,
inadequate, or excessive as to shock the conscience or to be intolerable to
fundamental fairness.” Rogers v. Evans, 792 F.2d 1052, 1058 (11th Cir. 1986).
Inadequate psychiatric care constitutes deliberate indifference if the quality of
psychiatric care received is a substantial deviation from accepted professional
standards. Greason v. Kemp, 891 F.2d 829, 835 (11th Cir. 1990). Similarly,
failure to take measures to protect an inmate from committing suicide can only
constitute deliberate indifference so long as it is a failure that goes beyond
negligence or medical malpractice. Harris, 941 F.2d at 1505. When a mentally ill
prisoner receives medical treatment that is arguably aimed at stabilizing his
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condition, we will generally refuse to engage in subsequent review of medical
decisions. See Hamm v. DeKalb County, 774 F.2d 1567, 1575 (11th Cir. 1985).
After reviewing the record, we conclude that Freeman does not state a case
for deliberate indifference. Taking the facts in the light most favorable to him,
Freeman has shown that: (1) after a number of visits, Lebedovych decreased his
Risperdal by 1 mg; (2) Freeman never received an 80 mg prescription for Geodon
to replace the Risperdal; (3) Freeman indicated to Lebedovych that he feared he
might harm himself; and (4) three days after his prescription was reduced, he cut
his arm with a razor. Freeman does not refute that: (1) Lebedovych believed he
was drug-seeking; (2) Lebedovych believed that he could control his actions; (3)
Lebedovych decreased the Risperdal because he believed that it was causing
Freeman negative side effects, such as “tight jaw” and tremors; and (4) Freeman
complained of the voices before his prescription was reduced, and after it was
raised. Accordingly, Freeman has not shown that Lebedovych subjectively knew
he stood a risk of serious harm as a result of attempting a different type of
treatment than had been used in the past. He thus fails the first prong of the test to
establish deliberate indifference. Brown, 387 F.3d at 1351. Freeman fails the
second prong because he cannot show that Lebedovych disregarded a known risk
of serious harm. Id. Thus, at best, Freeman can only make a claim for negligence
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or medical malpractice. Neither rises to the level of indifference necessary to show
a constitutional violation. Harris, 941 F.2d at 1505. For the above-stated reasons,
we affirm the district court’s grant of summary judgment.
AFFIRMED.
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