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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 19-11230
Non-Argument Calendar
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D.C. Docket No. 3:17-cv-00025-DHB-BKE
ARTHUR LAWTON CLARK,
Plaintiff-Appellant,
versus
LYNN SHEFFIELD, Sheriff, LT. TOMMY
BARRENTINE, DR. PETER WROBEL,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
________________________
(March 17, 2020)
Before WILSON, TJOFLAT, and ANDERSON, Circuit Judges.
PER CURIAM:
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Arthur Clark, 1 who was formerly a prisoner at Dodge County Jail, appeals
the District Court’s order granting summary judgment to Sheriff Lynn Sheffield,
Lt. Tommy Barrentine, and Dr. Peter Wrobel on his
42 U.S.C. § 1983 action.
Clark brought this action alleging deliberate indifference to serious medical needs,
in violation of the Eight Amendment. Clark argues that the District Court erred in
holding that the delayed treatment of his knee injury did not amount to deliberate
indifference and that Sheffield and Barrentine could not be held liable under a
theory of respondeat superior. Clark also argues that the District Court erred by
failing to consider evidence submitted after the magistrate’s report and
recommendation. We affirm.
I.
On May 12, 2015, Clark fell and injured his right knee in an altercation.
Dodge County deputies then arrested him for his suspected involvement in a
shooting. After complaining of a knee injury at the scene, Clark was immediately
taken to the Dodge County Hospital. The emergency physician at the hospital
1
Clark proceeded pro se before the District Court and during the submission of initial
briefs before this Court. His appeal was dismissed for want of prosecution after he failed to
timely file his appellant’s brief. He then retained counsel, who submitted a second appellant
brief on Clark’s behalf. That appeal was also dismissed for want of prosecution as the appendix
was filed out of time and without leave of the court. We granted a second motion to reinstate the
appeal. Clark’s attorney asks that, due to the short timeframe of his representation and his
inability to access certain electronically filed documents, we review the contents of the counseled
brief as well as Clark’s pro se brief. In accordance with this Court’s local rules, we decline to
consider Clark’s pro se appellant brief as he is represented by counsel. See 11th Cir. R. 28-4
(“When a party is represented by counsel, the clerk may not accept a brief from the party.”).
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ordered x-rays of Clark’s right knee, which revealed no significant fracture, but
questionable irregularity at medial tibial plateau. Clark’s knee was wrapped in an
ACE bandage and he was given a knee immobilizer. Clark was discharged later
that day to the custody of Dodge County deputies.
There are two versions of the hospital’s discharge form in Clark’s chart.
Both copies indicated that he should apply ice, wrap his knee, and take
Tylenol/Advil three times per day as needed for pain. Both advised Clark to
follow up with the doctor at the Dodge County Jail if he had persistent symptoms.
One copy, which indicated signatures made on May 13, included a follow-up care
section that listed various providers as well as a “No Follow-Up Care needed”
box—nothing in the section was marked. The other copy, signed by the
emergency physician and Deputy K. Whito, included a check mark next to one
provider’s name, Dr. Rosenbaum. That copy also instructed Clark to “use knee
immobilizer until follow cleared by orthopedic.”
Clark alleges that during this hospital visit, the emergency physician
informed him that he “needed to see Dr. Rosenbaum, a local orthopedist, a.s.a.p.”
He also alleges that two deputies, C. Screws and Donald, were present and heard
this comment.
Upon his arrival at the Dodge County Jail, Clark signed a consent form for
treatment by Southern Correctional Medicine (“SCM”). He was seen the next day,
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May 13, by SCM nurse practitioner Deborah Stewart for complaints of a possible
tibia fracture. Stewart recommended that Clark avoid putting pressure on his right
leg and scheduled him for a visit with Dr. Wrobel, an SCM doctor. She also
ordered that his knee immobilizer stay in place and prescribed pain medication.
Three days later, on May 16, Clark submitted a grievance directed to
Sheffield, Barrentine, and two deputies; he stated that he had serious injuries. He
explained that he was in serious pain, his knee felt “crushed” and his ribs felt
broken, he also said that there was swelling and discoloration in his right knee and
leg. He requested “emergency medical treatment a.s.a.p.”
Two days later, Stewart re-examined Clark. Her notes indicate that Clark’s
right leg was swollen and bruised; she ordered an x-ray. His current medications
included aspirin and ibuprofen. The x-ray took place on May 20. According to the
radiological consultation doctor, it showed a fractured medial aspect medial tibial
plateau. Stewart reviewed the results on May 22 and scheduled Clark to see Dr.
Wrobel on his next visit.
Dr. Wrobel is a licensed physician in the State of Georgia and is the owner
and Director of SCM. He examined Clark on May 26. He concluded that Clark
had a possible tibial fracture and referred Clark for an orthopedic consult with
orthopedist Dr. Donald Rosenbaum.
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Dr. Rosenbaum examined Clark and reviewed his x-ray results two days
later. He recommended surgery “as soon as possible . . . to reconstruct [the] lateral
tibial plateau fracture.” He also ordered a preoperative CT scan. SCM scheduled
the CT scan for the next day, May 29.
SCM cancelled that CT after being informed that Clark was to be transferred
to a different facility. On June 3, SCM was informed that Clark was no longer
going to be transferred to another facility and should reschedule the CT “ASAP.”
The CT was scheduled and took place on June 4.
Clark submitted another grievance on June 4, 2015. He stated that his knee
was crushed and broken, swollen and discolored and that he was in serious pain.
He requested emergency surgery as soon as possible.
Dr. Rosenbaum operated on Clark on June 9, 2015. Clark remained
hospitalized until June 12, 2015. Clark alleges that, after the surgery, Dr.
Rosenbaum told him that “the length of time between [the] injury and surgery had
added to the deteriorated condition of [his] knee.” Dr. Rosenbaum also allegedly
said that Clark had “a 50% chance of eventually needing an artificial knee.”
In his complaint, Clark alleges that he suffered from a severe headache on
June 30. He was given only ibuprofen and Tylenol. He complained to Deputy
Screws, who advised him to drink water. He alleges that he became disoriented
and lost his ability to speak and that the deputies looked at him strangely. He
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stated that when his attorney came to visit on July 9, the attorney recognized the
symptoms as being those of a stroke. Clark alleges that he was transferred to
Jackson Diagnostic and Classification Prison after his attorney notified Sheffield of
Clark’s condition.
Clark alleges that upon his admission to Jackson, Dr. Fowlkes examined
him, and he was subsequently seen by other medical professionals. Dr. Fowlkes
informed Clark that he had likely suffered a stroke prior to his transfer to Jackson.
Dr. Fowlkes, as well as a different orthopedist, informed Clark that his knee had
healed.
II.
Summary judgment is appropriate where “there is no genuine dispute as to
any material fact” and the moving party is entitled to judgment as a matter of law.
Fed. R. Civ. P. 56(a). We review a district court’s grant of summary judgment de
novo, viewing all evidence and drawing all reasonable inferences in the light most
favorable to the non-moving party. Caldwell v. Warden, FCI Talladega,
748 F.3d
1090, 1098 (11th Cir. 2014). We liberally construe Clark’s pro se pleadings and
credit “specific facts” pled in his sworn complaint when considering his opposition
to summary judgment.
Id.
Clark’s complaint asserted two claims. First, he argued that the emergency
physician at the hospital instructed him to see Dr. Rosenbaum, a local orthopedist,
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as soon as possible and that Dr. Wrobel’s and the prison officials’ failure to
provide him timely medical treatment led to prolonged pain and suffering,
humiliation, and negatively affected his chances of fully recovering mobility in his
knee. Second, he claimed that he was not provided adequate medical treatment
after his surgery and suffered a stroke. The District Court granted summary
judgment for the defendants on both claims.
While Clark references his stroke in his opening brief and explains why it
constituted a serious medical need, he provides no further argument or discussion
on why Dr. Wrobel, Sheffield, or Barrentine were deliberately indifferent to that
condition. Thus, Clark has abandoned that claim and we are precluded from
considering the issue on appeal. Singh v. U.S. Att’y Gen.,
561 F.3d 1275, 1278–79
(11th Cir. 2009) (“[A]n appellant's brief must include an argument containing
‘appellant’s contentions and the reasons for them, with citations to the authorities
and parts of the record on which the appellant relies.’ Thus, an appellant’s simply
stating that an issue exists, without further argument or discussion, constitutes
abandonment of that issue and precludes our considering the issue on appeal.”
(citations omitted)). We consider only Clark’s claim regarding his knee injury.
III.
A prisoner’s Eighth Amendment right to be free from the unnecessary and
wanton infliction of pain is violated when a prison official is deliberately
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indifferent to the prisoner’s serious medical need. See McElligott v. Foley,
182
F.3d 1248, 1254 (11th Cir. 1999). To prevail on such a claim, the plaintiff must
first demonstrate an objectively serious medical need. Farrow v. West,
320 F.3d
1235, 1243 (11th Cir. 2003). Then, the plaintiff must show that prison officials
acted with deliberate indifference towards that need.
Id. This requires proving (1)
that the prison official had subjective knowledge of a risk of serious harm, (2) that
the official disregarded that risk, and (3) that the official’s conduct amounted to
more than gross negligence. Goebert v. Lee Cty.,
510 F.3d 1312, 1326–27 (11th
Cir. 2007). Violations of the Eight Amendment occur only when the course of
treatment, or lack thereof, is “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) (quoting Rogers v. Evans,
792 F.2d
1052, 1058 (11th Cir. 1986)).
A.
As did the District Court, we conclude that Clark demonstrated a serious
medical need for his knee injury. 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.”
Farrow,
320 F.3d at 1243. “[T]he medical need must be one that, if left
unattended, poses a substantial risk of serious harm.”
Id.
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None of the Appellees contest the seriousness of Clark’s medical need.
Clark’s knee was admittedly fractured. The fracture was in fact diagnosed by
multiple physicians and required surgery to repair. Furthermore, we have
previously found that the pain caused by a similar injury, a broken foot, is a serious
medical need. See Brown v. Hughes,
894 F.2d 1533, 1538 (11th Cir. 1990).
B.
To demonstrate deliberate indifference, the plaintiff must show that each
official had subjective knowledge of the risk of harm. Goebert,
510 F.3d at 1327.
“Each individual Defendant must be judged separately and on the basis of what
that person knows.” Burnette v. Taylor,
533 F.3d 1325, 1331 (11th Cir. 2008).
Because the plaintiff must demonstrate that each official knew of the facts that
would indicate a serious medical need, “imputed or collective knowledge cannot
serve as the basis for a claim of deliberate indifference.”
Id. Even if a plaintiff can
show subjective knowledge, the plaintiff must then show that the official
disregarded his medical needs by following a course of action which was more
than merely negligent. Goebert,
510 F.3d at 1327. Clark fails to do so for any
defendant.
1. Dr. Wrobel
We are hesitant to conclude that a doctor was deliberately indifferent when a
prisoner receives medical care. Waldrop v. Evans,
871 F.2d 1030, 1035 (11th Cir.
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1989). But for some emergency injuries, such as broken bones, even a few hours
delay in receiving treatment can constitute deliberate indifference. Harris v.
Coweta Cty.,
21 F.3d 388, 393–94 (11th Cir. 1994). “The tolerable length of delay
in providing medical attention depends on the nature of the medical need and the
reason for the delay.”
Id.
Clark argues that Dr. Wrobel’s course of treatment was beyond grossly
negligent because the emergency physician allegedly said Clark should see the
specialist “a.s.a.p” and Dr. Wrobel’s recommendation did not come until two
weeks later. But Clark sued only Dr. Wrobel, not Stewart, not SCM, and not Dr.
Rosenbaum. We look to what Dr. Wrobel knew, when he knew it, and how he
responded. See Burnette,
533 F.3d at 1331.
The record reflects that Dr. Wrobel first gained subjective knowledge of
Clark’s knee injury when he examined Clark on May 26, 2015. Dr. Wrobel
examined Clark and the x-rays, he confirmed the hospital diagnosis, and he
immediately referred Clark to an orthopedic specialist. The specialist, Dr.
Rosenbaum, examined Clark two days later.
Clark contends that the emergency physician said he needed to see a
specialist immediately, but his medical records and discharge paperwork do not
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indicate that there was an immediate need to see a specialist.2 We have previously
held that a difference of opinion between a medical professional and a prisoner
concerning the proper diagnosis or course of treatment is usually insufficient to
support a claim of deliberate indifference. Harris v. Thigpen,
941 F.2d 1495, 1505
(11th Cir. 1991). In any event, Dr. Wrobel acted in the manner that Clark contends
was the appropriate course of action—he referred Clark to an orthopedic specialist
at the time of his examination, and instructed Clark to stop taking his blood
pressure medications and ibuprofen to prepare for the consultation. Clark fails to
demonstrate how the two-day “delay” between Dr. Wrobel’s examination and Dr.
Rosenbaum’s examination was “so grossly incompetent, inadequate, or excessive
as to shock the conscience or to be intolerable to fundamental fairness.”
Id.
Clark also argues that Dr. Wrobel’s staff provided constitutionally deficit
medical care. Supervisory officials, however, are not liable for the
unconstitutional acts of their subordinates “on the basis of respondeat superior or
vicarious liability.” Hartley v. Parnell,
193 F.3d 1263, 1269 (11th Cir. 1999)
(quoting Belcher v. City of Foley,
30 F.3d 1390, 1396 (11th Cir.1994)). To be
liable under a supervisory theory, the supervisor must personally participate in the
2
The only other evidence regarding the applicable standard of care or appropriate course
of treatment comes from Dr. Wrobel’s affidavit, which stated that “Mr. Clark received standard
of care at all times.”
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alleged constitutional violation or there must be a causal connection between the
supervisory official’s actions and the alleged deprivation.
Id.
As explained above, Dr. Wrobel immediately referred Clark to Dr.
Rosenbaum when he became aware that Clark had a possible knee fracture. Even
if Dr. Wrobel had been subjectively aware of Clark’s injury based on Clark’s pre-
booking hospital visit, Clark has failed to provide evidence that the course of
treatment during that two-week period amounted to “more than gross negligence.”
Goebert, 510 at 1327. Stewart examined Clark’s knee on May 13 and May 18,
ordered and reviewed his x-rays, maintained his pain medications, and scheduled
Clark to meet with Dr. Wrobel on the doctor’s next visit to the Jail. This course of
action is consistent with Clark’s discharge instructions from the hospital. We have
previously held that medical care need not be “perfect, the best obtainable, or even
very good.” Thigpen,
941 F.2d at 1510. Even though Clark maintains that more
should have been done or more should have been done faster, he fails to
demonstrate how that is anything other than a difference of opinion. See
id.
We find that Clark’s complaints regarding the speed at which he was
referred to a specialist are insufficient to support his claim of deliberate
indifference for his knee injury.
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2. Sherriff Sheffield and Lt. Barrentine
Sheriff Lynn Sheffield has served as the elected sheriff of Dodge County
since 2013. He delegates administration of the Dodge County Jail to the Jail
Administrator and staff. Lt. Tommy Barrentine was serving as the interim Jail
Administrator during Clark’s incarceration. His primary responsibilities as Jail
Administrator were to supervise detention officers and handle administrative
matters.
Clark argues that Sheffield and Barrentine had a statutory duty to supply
medical treatment and that both officials had specific notice of Clark’s injuries.
Clark alleges that officers under Sheffield and Barrentine’s line of command heard
the emergency physician recommend that he should see a specialist as soon as
possible. He also says that his grievances are evidence of Sheffield’s and
Barrentine’s knowledge regarding his serious medical need.
Taking as true Clark’s allegations that deputies within Sheffield and
Barrentine’s line of command knew Clark needed to see a specialist as soon as
possible, that knowledge cannot be imputed to Sheffield or Barrentine. Both
officials are only responsible for the facts they observed or heard, not for
information allegedly provided to their subordinates. Burnette,
533 F.3d at 1331.
Sheffield and Barrentine are not liable for the unconstitutional acts of other
deputies “on the basis of respondeat superior or vicarious liability.” Hartley, 193
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F.3d at 1269. Supervisory liability occurs only when the supervisor personally
participates in the alleged violation or when there is a causal connection between
the supervisory official’s actions and the alleged deprivation. Id.
The only evidence that Sheffield and Barrentine had any specific knowledge,
and thus personal participation, of the delay in treating Clark’s knee injury are his
two grievances. But neither Sheffield nor Barrentine are trained medical
professionals, nor did they have any role in Clark’s examinations or course of
treatment. It is uncontested that Clark received care from the medical
professionals that Sheffield and Barrentine oversaw—he was examined by both
Stewart and Dr. Wrobel before being referred to see Dr. Rosenbaum for surgery. It
was reasonable for Sheffield and Barrentine to rely on the medical judgments made
by medical professionals responsible for prisoner care.
Clark also received timely treatment in response to his grievances. He was
seen again by Stewart and given more pain medication two days after he filed his
first grievance and received a pre-operative CT scan on the day he filed his second
grievance. Moreover, as explained above, at most Clark’s grievances evidence a
difference of opinion regarding the speed at which he should receive surgery,
which is insufficient to support a deliberate indifference claim. Thigpen,
941 F.2d
at 1505.
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A causal connection between the supervisor and the deprivation may be
established (1) “when a history of widespread abuse puts the responsible
supervisor on notice of the need to correct the alleged deprivation, and he fails to
do so”, (2) “when a supervisor’s custom or policy results in deliberate indifference
to constitutional rights”, or (3) “when facts support an inference that the supervisor
directed the subordinates to act unlawfully or knew that the subordinates would act
unlawfully and failed to stop them from doing so.” Cottone v. Jenne,
326 F.3d
1352, 1360 (11th Cir. 2003) (internal quotations and alterations omitted). The
standard for demonstrating “widespread abuse” is high—the deprivations must be
“obvious, flagrant, rampant and of continued duration, rather than isolated
occurrences.” Brown v. Crawford,
906 F.2d 667, 671 (11th Cir. 1990). Clark has
not presented evidence of continual deprivation of care, implementation of a policy
of delay, or a direction by either Sheffield or Barrentine to the SCM or other
subordinates to delay treatment of his knee.
We conclude that the undisputed evidence, viewed in the light most
favorable to Clark, does not show that the defendants refused to treat Clark or were
deliberately indifferent to his medical needs. We affirm summary judgment in
favor of Sheffield and Barrentine.
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IV.
Finally, Clark argues that the District Court erred by not considering the
materials he submitted after the magistrate report. Even in pro se cases, a district
court has wide discretion in considering arguments and evidence not presented to a
magistrate judge. Williams v. McNeil,
557 F.3d 1287, 1292 (11th Cir. 2009). The
District Court did not abuse its discretion in refusing to consider the evidence
Clark submitted nearly two weeks after the magistrate’s report. The District Court
concluded the Clark had enough time to develop the record before the magistrate.
Furthermore, Clark does not explain how consideration of this information would
have altered the District Court’s conclusions.
AFFIRMED.
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