Dennis Ross v. Corizon, LLC

• Court: Court of Appeals for the Eleventh Circuit
• Decided: June 30, 2017
• Docket: 16-16179
• Status: Unpublished

Opinion

Case: 16-16179 Date Filed: 06/30/2017 Page: 1 of 10

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 16-16179 Non-Argument Calendar ________________________

D.C. Docket No. 3:14-cv-01311-BJD-PDB

DENNIS ROSS,

Plaintiff - Appellant,

versus

CORIZON MEDICAL SERVICES, et al.,

Defendants,

CORIZON, LLC, RUDOLPHE LAFONTANT, Dr., Individual and Official Capacity, LINDA MELENDEZ-TORRES, M.D.,

Defendants - Appellees

________________________

Appeal from the United States District Court for the Middle District of Florida ________________________

(June 30, 2017) Case: 16-16179 Date Filed: 06/30/2017 Page: 2 of 10

Before JORDAN, JULIE CARNES, and JILL PRYOR, Circuit Judges.

PER CURIAM:

Dennis Ross, proceeding pro se, appeals the district court’s grant of

summary judgment in favor of Corizon, LLC, Dr. Rudolphe Lafontant, and

Dr. Linda Melendez-Torres in his 42 U.S.C. § 1983 action for violation of

his Eighth Amendment rights. The district court concluded that although Mr.

Ross requested or desired different modes of treatment and different

medication, the treatment and medication he did receive—including

extensive and frequent medical treatment for a variety of ailments—did not

amount to deliberate indifference. Upon review of the record and the parties’

briefs, we affirm.

I

Because we write for the parties, we assume their familiarity with the

underlying record and recite only what is necessary to resolve this appeal.

Mr. Ross, a prison inmate at Union Correctional Institution, alleges

that he suffers from osteoarthritis, bursitis, tendonitis, fibromyalgia

posterior, a dislocated shoulder, ruptured discs in his back, neuropathy, sinus

seizures, bone spurs in both feet, asthma, migraine headaches, hernia,

herniated discus ulcers, spots on his lungs, cancer, coughing up blood,

kidney problems, rashes, gout, hemorrhoids, and bipolar disorder. He asserts

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that the pain medications that have worked the best to treat his ailments are

Neurontin and Tramadol.

Mr. Ross alleges that Dr. Lafontant and Dr. Melendez stopped

prescribing him Neurontin and Tramadol pursuant to a policy to save

Corizon money. He asserts that the doctors substituted his medications with

“in stock medications,” which contained aspirin, to which he is allergic. He

also alleged that he did not receive any specialized care. In his amended

complaint, Mr. Ross requests medical treatment, suitable pain medication,

and compensatory and punitive damages.

II

We review the grant of summary judgment de novo, applying the

same legal standard used by the district court and drawing all factual

inferences in the light most favorable to the nonmoving party. See Johnson

v. Bd. of Regents, 263 F.3d 1234, 1242–43 (11th Cir. 2001). Summary

judgment is appropriate when “the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits . . . show

that there is no genuine issue as to any material fact and that the nonmoving

party is entitled to judgment as a matter of law.” Celotex Corp. v. Catrett,

477 U.S. 317, 322 (1986). In order to overcome a motion for summary

judgment, the nonmoving party must present more than a mere scintilla of

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evidence supporting his position, and must make a sufficient showing that a

jury could reasonably find in his favor. See Brooks v. Cty. Comm’n of

Jefferson Cty., Ala., 446 F.3d 1160, 1162 (11th Cir. 2006).

Because Mr. Ross is a pro se litigant, his pleadings are liberally

construed and “held to a less stringent standard than pleadings drafted by

attorneys.” Fernandez v. United States, 941 F.2d 1488, 1491 (11th Cir.

1991) (internal citation omitted).

III

Mr. Ross raised two counts in his amended complaint, alleging

(1) that Corizon, acting through its agents—Dr. Lafontant and

Dr. Melendez—acted with deliberate indifference via its policy and custom

to save money, causing him substantial pain and suffering and irrevocable

damage; and (2) that Dr. Lafontant and Dr. Melendez acted with deliberate

indifference to his pain and suffering, causing him substantial pain and

suffering and irrevocable damage.

A

We first address Mr. Ross’ claims against Dr. Lafontant and

Dr. Melendez.

The Eighth Amendment prohibits “deliberate indifference to a

prisoner’s serious illness or injury.” Estelle v. Gamble, 429 U.S. 97, 105

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(1976). To state a cognizable claim under § 1983, “a prisoner must allege

acts or omissions sufficiently harmful to evidence deliberate indifference to

serious medical needs.” Id. at 106. Specifically, a plaintiff must establish

“(1) a serious medical need; (2) the defendants’ deliberate indifference to

that need; and (3) causation between that indifference and the plaintiff’s

injury.” Mann v. Taser Int’l, Inc., 588 F.3d 1291, 1306–07 (11th Cir. 2009).

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. at 1307 (citations

omitted).

Once a serious medical illness or injury has been established, a

plaintiff must show that a defendant acted with deliberate indifference to that

need. To establish deliberate indifference, a plaintiff must demonstrate

“(1) subjective knowledge of a risk of serious harm; (2) disregard of that

risk; (3) by conduct that is more than mere negligence.” McElligott v. Foley,

182 F.3d 1248, 1255 (11th Cir. 1999). Some examples of deliberate

indifference include providing “grossly inadequate care[,] . . . [deciding] to

take an easier but less efficacious course of treatment, [or providing

treatment] . . . so cursory as to amount to no treatment at all.” Id. But mere

evidence of negligence in diagnosing or treating a medical condition or a

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showing of medical malpractice does not establish deliberate indifference.

See Estelle, 429 U.S. at 106. Indeed, “[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.’” Harris v. Thigpen, 941 F.2d 1495, 1505 (11th Cir. 1991) (citation

Because the appellees do not contest that Mr. Ross had a serious

medical need, we address only whether the appellees acted with deliberate

indifference to that need and whether the deliberate indifference caused

Mr. Ross’ injury.

Mr. Ross has not shown that the doctors had a subjective knowledge

of a risk of serious harm by not prescribing certain medications or denying

consultations. The record does not reflect that there were any objective signs

or symptoms of pain that would substantiate his requests for Neurontin or

Tramadol. “[A] simple difference in medical opinion between the prison’s

medical staff and the inmate as to the latter’s diagnosis or course of

treatment” does not support a claim of deliberate indifference. Harris, 941

F.2d at 1505.

Nor has Mr. Ross shown that the doctors disregarded any risk with

regard to his ailments. The record reflects that Mr. Ross was repeatedly

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taken to medical providers for treatment for his various ailments, and he has

pointed to no evidence that demonstrates that he was not given treatment

when he was in pain or that he was denied treatment. The failure to

administer stronger medication is generally a medical judgment that is not an

appropriate basis for imposing liability. See Adams v. Poag, 61 F.3d 1537,

1547 (11th Cir. 1995). And because Mr. Ross was repeatedly taken to

medical providers for treatment, we should be cautious to find an Eighth

Amendment violation. See Waldrop v. Evans, 871 F.2d 1030, 1033 (11th

Cir. 1999) (“[W]hen a prison inmate has received medical care, courts

hesitate to find an Eighth Amendment violation.”).

Moreover, the record indicates that Mr. Ross showed signs of

drug-seeking behavior and hoarding of the specific medications that he

requested. Though Mr. Ross disputes the district court’s reliance on one of

his medical records that indicated such behavior as impermissible hearsay,

other evidence in the record shows that he exhibited signs of potential

drug-seeking behavior. The district court’s consideration of that cumulative

evidence was therefore not reversible error.

To the extent Mr. Ross relies on evidence that he was later diagnosed

with, and received treatment for, cancer, that evidence is not properly before

us because it occurred after the district court granted summary judgment.

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Moreover, what one medical profession determines at a later point in time

does not support a claim of deliberate indifference. See Harris, 941 F.2d at

1505. Accordingly, the record does not reflect that Dr. Lafontant and

Dr. Melendez acted with deliberate indifference in violation of Mr. Ross’

Eighth Amendment rights.

Mr. Ross filed a motion to submit supplemental authority. He seeks to

submit the Sixth Circuit’s unpublished decision in Brooks v. Shank, 600 F.

App’x 465 (6th Cir. 2016), which reversed the district court’s grant of

summary judgment in favor of a prison physician on a deliberate

indifference claim. Although Brooks is an out of circuit unpublished case, it

is relevant to the issues raised and was issued after the filing of his briefs.

Mr. Ross’ motion is therefore granted. This opinion, however, does not alter

our analysis because it is factually distinguishable. In Brooks, Gregory

Stamper, an inmate who suffered from peripheral neuropathy, hanged

himself the day after his treating physician, Dr. Myron Shank, cancelled an

appointment that Mr. Stamper sought for his pain. The Sixth Circuit held

that a genuine issue of fact remained as to whether Dr. Shank subjectively

perceived facts from which to infer substantial risk to Mr. Stamper and

disregarded that risk by cancelling the appointment. It cited evidence that

Dr. Shank commented that “pain ‘hurts,’ but will not ‘hurt’ him” in response

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to Mr. Stamper’s complaints of severe pain and that Dr. Shank knew that

Mr. Stamper “was not on effective medications for his pain, yet concluded

that ‘no other option was available.’” Id. at 468 (internal alterations

omitted). In contrast, here, there is no record evidence that Mr. Ross was

denied treatment or medication, just that he did not agree with the medical

treatment provided.

B

As for Mr. Ross’ claim that Corizon, through the actions of

Dr. Lafontant and Dr. Melendez, acted with deliberate indifference

according to its policy and custom to save money, generally, “supervisory

officials are not liable under § 1983 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) (citation omitted).

We have extended that rule to private corporations like Corizon. See, e.g.,

Craig v. Floyd Cty., 643 F.3d 1306, 1310 (11th Cir. 2011). To hold a

defendant liable as a supervisory official, a plaintiff must show that “the

supervisor personally participate[d] in the alleged constitutional violation or

[that] there is a causal connection between actions of the supervising official

and the alleged constitutional deprivation.” Hartley, 193 F.3d at 1269.

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Mr. Ross has not provided evidence of a custom or policy

implemented by Corizon to withhold medically necessary medications in

order to save money. See Craig, 643 F.3d at 1310 (to impose liability under

§ 1983, a plaintiff must prove that a municipality had a “policy or custom”

of deliberate indifference that led to the violation of his constitutional right).

And because Mr. Ross has not demonstrated that there was a constitutional

violation in this case, by extension, he cannot establish that Corizon

participated in or caused such a violation. See Hartley, 193 F.3d at 1269.

IV

Although we express sympathy for Mr. Ross and the ailments that he

suffers, the record does not reflect that Dr. Lafontant, Dr. Melendez, or

Corizon acted with deliberate indifference to his medical condition.

Accordingly, we affirm the district court’s grant of summary judgment.

AFFIRMED.