Mr. And Mrs. J.L. Rogers, Etc. v. David C. Evans, Leland Q. Linahan, Mr. And Mrs. J.L. Rogers, Etc. v. Vendya Lewis

HATCHETT, Before RONEY and Circuit *, Judges, and NICHOLS Senior Circuit Judge.

CORRECTED HATCHETT, Judge. Circuit case, appellees In this prison are officials, prison personnel, prison guards and matrons sued on several following theories appel- the death of the daughter Georgia lants’ prison. district court dismissed from the action sev- appellees granted summary judg- eral part, ment for the others. We affirm in part, reverse in and remand for further proceedings.

BACKGROUND was an inmate of the Geor-

gia (GWCI) Women’s Correctional Institute Hardwick, Georgia. segre- She died in a gation days cell nine her scheduled before release. The coroner County, of Baldwin Georgia, ruled that she died suicide.1 alleged The manner of death is to be incon- Rogers’s neck sistent with suicide because ligature had marks could been have person trying caused who was either to restrain her or to harm her.

* Jr., Nichols, Philip jury Honorable Senior U.S. Cir- "from that she died coroner’s held 1. The Circuit, Judge sitting by following ligature cuit for the Federal and the arrest reflex cardiac designation. self-inflicted—suicide." death was mouth, tongue into twitching was transferred GWCI from her of mus- County mouth, Jail after

the DeKalb the State cles around the and swallowing of County pro- revoked Court of DeKalb tongue. September GWCI on bation. She entered days Two after received Prolixin time of her admission to 1978. From the Decoanate, her mother wrote her that it GWCI, Rogers having identified as dangerous was a drug and that she should First,

psychological problems. the misde- addition, not take it. a lawyer retained originally adju- she was meanors for which by Rogers’s parents wrote the language, abusive warden of using dicated were call- alarms, ing protesting subjection and sending false fire ambu- of Linda Second, people’s “injections lances to homes. she was of Thorazine pos- diagnosed in her admission session sibly drugs.” as ex- other toxic The letter in- thoughts pressing suicidal and was classi- voked right not to subjected be fied as a suicide risk. cruel punishment, and unusual “regardless disguised whether it is in the form of a emotional turmoil mani- As result of ” ‘medical treatment.’ response and in fested soon after admission judge request by the who revoked After Dr. letters, Smith learned of the probation, her institute offi- a correctional Rogers drugs except received no Vistaril Rogers cial for a inter- referred Cogentin. Cogentin and The pre- was view. scribed to continuing deal with symptoms that could be interpreted extrapyramidal psychologi- took one She machine-scored side effects. Dr. viewed symp- the tendency cal test. The indicated a test toms as deepening psychosis. evidence of a generated pro- toward suicide and a Among the symptoms reports were by grammed recommendation for referral to a Rogers that she hands, could use her program. counseling pro- suicide No such dizziness, lying in with leg bed her in the gram existed at GWCI.

air, aching twitching mouth, and of her and confinement, protrusion tongue After about month of of her from a her mouth. Rogers began receiving prescriptions from primary for symptoms treatment these drugs pre- GWCI for medication. first placebos, consisting became injections tranquilizers, scribed were such as Vistaril. occasion, sterile water. On one Dr. Smith began She nausea and reporting was treat- told the placebos warden that prefer- were ed until one Percogesic with of the doctors Cogentin Cogentin able might because (Dr. Perez) a prescribed small dose of Tho- Rogers cause “a psy- have more florid forty-eight razine for hours for nausea and chosis.” anxiety. prescription given This was dur- days learning After letters ing Rogers Rog- a after of the from consultation three lawyer, in with was found a bathroom a blade she ers’s mother and the Dr. Smith disposable had from razor. began taking removed a This with her on witness visits episode gesture. as a suicide was classified Rogers. day On she the learned of letters, Rogers the Dr. Smith examined consultation, another doctor On a later discontinuing wrote orders medication and (Dr. Smith) Prolixin prescribed Decoanate. therapy. She in the medical noted records prescription Dr. on the Smith based this being that medical was discontin- treatment prescribed Perez had Dr. assumption that that the against ued medical advice and Dr. and on Smith’s psychosis Thorazine prognosis guarded. would be psychotic. The was opinion Rogers that During drug, Rogers began the weeks last two day receiving after life, Rogers spent days pris- in the dizziness, of her several protrusion report possibility placing Rogers on clinic. The mouth, inability get her tongue her from Hospital Plummer, in was discussed except Central State ant Lois who did not opposed her medical staff. summary judgment, move for the district hospital transfer to the on some occasions rulings court rendered individual on several During receptive on others. 2, 1982, of the defendants. On March days, of a disturbance she last five because granted summary judgments court district created, segrega- confined to a had she was Alcocer-Cetina, Regalado, for Dr. Mr. tion Prison matrons and staff nurses cell. 13, 1981, Spradlin, July and Dr. Perez. On once observed her and she was seen objection appellants, without from the dis- physician. transferred to Cen- She was not Georgia Depart- trict court dismissed the Hospital. tral State ment of Offender Rehabilitation from the jurisdiction. action on the basis of lack of Prolixin, Following injection Rog- during periods appeared ers some normal 16, 1981, July On the district court observing to observers. One matron while pendent oral order all dismissed claims of segregation reported was in order, malpractice. In a later written how- lifeless, appeared standing she at her door ever, judge the district rescinded the action moving only Many motion. slow because statute of limitations had run help and cried times screamed on these claims. The district court de- segregation. while ruling pendent ferred on the claims until ruling summary on judgment. motions for A.M., February 8:25 A.M. and 9 On at that she could not told matron by appellants The offered affidavits a get up from the floor. The matron be- psychiatrist against the support the case A.M., faking. At lieved she was 9:20 when of the medical In various members staff. cell, Rogers into the the matron looked 2, 1982, an order on March the district still on the floor. When the matron granted Perez’s motion to strike court Dr. again checked at 9:35 A.M. to take the affidavit as to him for failure to meet shower, Rogers to her was dead. 56(e). requirements the of rule The affida- specifically identify vit did not the records COURSE OF PROCEEDINGS any copies. nor The order examined attach parents The of Linda filed suit dismissing against the counts the four against Georgia a number of officials and 17, persons January medical followed. On hospital employees alleging constitutional 1983, responded the district court to a mo- malpractice. and medical In torts a com- appellants requesting the tion that 3, 1980, plaint April filed on Mr. and Mrs. court indicate it considered the whether Rogers named nine defendants.2 On Janu- psychiatrist’s dismissing affidavit 20, 1981, ary Mr. and Mrs. filed a against Dr. counts Alcocer-Cetina. complaint adding an additional second acknowledged court that district defendants.3 twelve affidavit, Perez had moved to strike the but 21,1985, judgment a filed on March Until commented the order that the affidavit’s against every insufficiency dismissing regardless all counts defend- existed of which 3, 1980, April complaint, Rogers’s par- 20, 2. In the 1981, January 3. The defendants in the com- Georgia plaint Department Regalado ents named the (psychiatrist), of were Dr. Offender Jacinto (assistant Vendya doing superintendent), Lewis Georgia Rehabilitation business as Shir- Wom- (staff nurse), ley (staff Institution, Agnes Butts Evans, en’s Correctional David C. nurse), Margaret (lieutenant), Raylene Hooks Georgia Department commissioner of the of Of- (matron), Bryan (correc- Williams Mack Daniels Rehabilitation, Linahan, fender Leland O. ward- officer), (correctional Gary tional cer), Lewis offi- GWCI, Smith, en of Dr. Anita Rae Dr. Relando (first unknown) (lieu- “Jane" Purvis name Alcocer-Cetina, Perez, Dr. Juan A. Lois Plummer tenant), Spradlin (employee), Michael Ella West (a matron), (a nurse), Joan Barksdale and El- (matron), (matron). Harper Shirley and Lillie (a nurse). oise Warren Raylene Butts and Williams were never served and did not file answers. appellee made the motion. The for Corrections and the American named Public Association, keep failing Health medical the motion to strike the affida- denied court using and in records non-board certified even untimely, vit as but also stated that poor procedures physicians, audit affidavit, that of considering the the award guards failed to discover that administered in favor Alcocer- summary judgment of Dr. night, at medicine and failure establish a proper. The district court re- Cetina was prisoners procedure that ensured that against per- jected the the medical claims give would informed consent treatment. sons, argument at finding that best negligence not a stated a claim complaint The amended also named indifference. claim of deliberate Vendya liability against Lewis and claimed supervisory theory. a her on Lewis was 1985, conference, pretrial In a March establishing responsible system for a on its con- the district court own motion mentally care ill psychiatric for inmates. into verted all motions directed verdict complaint alleged acquiesced she summary judgment; it then motions for system require daily to a that did not summa- granted appellees’ motions for by a psychiatrist pro- rounds did not ry judgment. patients seg- examination of vide for answers, appellees all raised a their regation/isolation psychiatrist area qualification procedural objection they even when had been identified as hav- Rogers as Mr. and Mrs. administrators ing problems. The psychiatric complaint appel- estate. Because the alleged plan systems also that she failed appeal, is not lees did not cross this issue maintaining proper records and for ob- Campbell Wainwright, v. before us. See prior taining giving informed consent Cir.1984) (11th (non-appealing 726 F.2d 702 Finally, medication. inmates rights opposing party may not diminish Spradlin theory named Michael on that as judgment). party under the auditor, knowledge personal he had systemic deficiencies of the system, vague relied on but APPELLANTS’ LEGAL THEORIES prison from administration assurances the officials, Rogerses prison The sued medi- receiving complaints from after staff, guards cal staff such and and line parents. variety They of auditors on a theories. Corrections, sued the of Commissioner against physi- The theories the individual Evans, theory on the that he David C. primarily gross cians were acts incom- care, supervision, failed in his duties and petence, prescription medication without complaint treatment inmates. The of all adequate investigation, failure and to take alleged adequate did not have GWCI to assist actions when condition competent properly facilities or staff to began to deteriorate. adequate treat and did not maintain complaint alleged The medical records. appellees matrons, The other are correc- duty a to under that Evans owed officers, nurses, registered tional and staff Georgia knew or should have law and allegedly Rog- nurses who were aware of acts and omissions that known of the ers’s situation but did assist her. During proceedings caused her death. the court, appellants in the district the briefed Rogerses The alleged five causes of ac- and specific omissions administrators They tion. alleged that taken individually overseeing care. supervisors patient and in totality, their appellees’ the acts and pro- Among allegations were failure the omissions constituted violations of the a psychiatric except vide care on week- Eighth and Fourteenth Amendments to the basis, ly consulting violation of the stan- They alleged Constitution. also a violation duty Georgia the under dards of the the Commission on Code to Accreditation 1058

protect Rogers against prohibit and the dence maltreatment or intentional a refusal or abuse cruel They treatment of her. eighth also provide essential care violates the alleged Carlson, that the of Dr. F.2d acts and omissions amendment. Green v. 581 Smith, Alcocer-Cetina, Cir.1978), 14, 669, (7th Dr. Perez affd, and 446 675 U.S. nurses 146, Barksdale Warren consti- 100 S.Ct. 64 (1980). L.Ed.2d 15 malpractice acts of medical under tuted Whether an instance misdiagno- of medical Georgia Rogerses juris- pleaded law. The sis from resulted deliberate or indifference theory Georgia on wrong- diction that the negligence is a question factual requiring pursu- applied death statute ful actions exploration by expert witnesses. Merritt 1981, seq. 42 U.S.C. et the ant Faulkner, § 761, v. (7th 697 F.2d 765 Cir. briefs, Rogerses appellate the do not raise 1983). Georgia wrongful either death statute

theory alleged or the violations duties provide Failure to basic Rogers by admin- owed health mental care states a claim of Georgia under the Code. istrators We deliberate indifference to the serious medi deem these theories to be abandoned. prisoners. cal needs of Hoptowit Ray, v. 1237, (9th 682 Cir.1982). F.2d 1253 deprivation under the of life claim

The alleged against amendment was fourteenth Supervisory Claims. Even viewed appellees theory proximate cau- on a all in their favorable light, allega most sation. against tions the supervisory personnel do eighth

not allege an amendment violation. Section does not DISCUSSION 1983 create lia vicarious bility. Thompson Bass, 1259, v. 616 F.2d Deliberate indifference serious (5th Cir.1980); Parker, 1268 Baskin v. 602 prisoners medical needs of violates the (5th 1205, Cir.1979). F.2d 1208 eighth prohibition of amendment cruel and punishment. Gamble, v. unusual Estelle pris- Rogerses allege The do not that the 97, 285, U.S. 429 97 S.Ct. 50 L.Ed.2d 251 totally ignored daughter’s plight. on their (1976). The indifference can manifested be jail do not facts thus resemble those by prison taking doctors in the easier and complete cases where lack of medical treating efficacious route in less inmate. rampant an inference of defi- care raised (2d Vincent, v. 541 Williams F.2d Cir. to callous indifference to ciencies due 1974). prison guards deny If delay or ac e.g., prisoner’s need medical care. See intentionally to medical care cess inter (5th Bosshard, 590 F.2d Fielder v. prescribed, fere treatment once Cir.1979). allege that eighth Estelle, amendment is violated. 429 prison have met should standards derived 104-05, atU.S. 97 at 291-92. S.Ct. Medical good standards ad- prison from model for incompetent, that is grossly treatment so Rogerses argue The do not ministration.4 inadequate, or excessive as shock the to standards are the that these identical to or to to conscience be intolerable funda eighth constitutional standard. amendment eighth mental fairness violates the amend Prasse, 1, ment. Gittlemacker 428 F.2d v. In challenges institutional level (3rd Cir.1970). 6 care, prison systemic health deficiencies malpractice negligence Mere provide can the basis for finding of delib eighth the amendment. does violate erate indifference. A series of incidents 106, at 292. closely pat 429 U.S. at 97 S.Ct. in time may Estelle related disclose a inappropriate so evi- amounting care tern of conduct Medical to deliberate E.g., provide record-keeping, poor procedures 4. failure to care that audit basis, except weekly consulting night guards on a use of at did not discover that adminis- physicians, inadequate non-Board-certified tered medicine.

1059 ports Bishop Stoneman, v. factual dispute indifference. 508 about the motives of Cir.1974). these (2d Repeated staff, low F.2d 1224 exam- level upon who acted their understanding medical ples delayed may or denied care directions from the medi- cal staff. specific No by prison allegation indifference indicate a deliberate has been pleaded against any personnel these suffering that authorities to the results. support an 48, Ward, (2d inference of callous 565 F.2d 52 Todaro v. Cir. indifference Rogers’s 1977). welfare. Ordinarily, judgment summary should The do not offer evi granted motive, not be where cases in- dence that the administrators failed to tent, subjective feelings, and reactions are attempts provide

make medical care to to be searched. Alabama Great pat inmates in situation or that a Southern RR v. RR, Louisville and tern of deliberate indif Nashville conduct indicates (5th addition, Cir.1955). F.2d ference. no evidence of callous The Rogerses complain presented. that summary judgment conduct toward was the was appellees filed supervisory they None of the was al before filed additional pleadings leged discovery to have blocked access to medical or opposition. materials in In the auditor, Spradlin, simply care. The is too order granting summary the judgment, remote from the medical situation however, the district court stated that all to fall under the deliberate indiffer Estelle parties indicated that consideration of the pleaded ence standard. Warden Linahan at motion for summary judgment based on point one to move to what was in the file satisfactory. Hospital Central because of the diffi State Rogerses did not an file affidavit under culty pris her situation in handling the 56(f), Rule Federal Rules of Civil Proce- most light, on. Viewed in the favorable dure, showing facts essential to justify op- allegations supervisory against person the position to the After motion. “a full oppor- only support nel inference tunity to muster all the they evidence” provide GWCI did not a desirable standard could, they place did not a material dis- of medical care. puted fact before the district court. See Co., Jones v. (5th Borden 430 F.2d 568 We hold that the district court correctly Cir.1970). Thus, the state of mind of these against complaints dismissed the Warden personnel was not at issue. We hold that Linahan, Spradlin, Auditor and Assistant properly granted district court summa- Superintendent Lewis. ry judgment as to non-supervisory non- appellees. Non-Supervisory Non-Medical Medical Personnel. allegations about Defendants. gen non-medical were made in staff Dr. Smith. Dr. Anita Rae Smith eral terms support and with few facts to provided services patients under a con during Rogers’s them. The is that theory psychiatrist tract as a consulting period segregation, appellees these ob prison. During women’s time deteriorating served her condition and unit, was at the per women’s Dr. Smith steps failed to adequate take treat it. formed consulting services on three But memoranda of facts submitted Monday nights per month for four hours parties compliance in with the direction of each Thursday and on one afternoon each pretrial the court at the conference reflect hours, month for four of personnel two which were a record of untrained efforts generally report symptoms pa devoted to Rogers’s to to medical consultation with tients. keep symptoms occasionally staff of her She substituted and to records for Dr. Nothing sup- consulting psychiatrist and in the record Juan Perez behavior5. as a at parties agreed pretrial 5. The at the proof conference to submit written of offers of facts. generally for four prison, cruel and it the women’s unusual because involves delib- mornings. indifference, Thursday something on erate hours or more than call, judgment accident, a medical or an permit to Dr. has an institutional Smith Bennett, inadvertent failure.” Murrell v. She is not a provide psychiatric services. (5th Cir.1980). 615 F.2d 310 n. she took the physician; certified fed- board in 1970 and licensing eral examination did Whether Dr. Smith’s treatment was score. passing grossly incompetent placed not attain a She cannot is at issue in recall it another time. According whether she took affidavit.6 affidavit, diagnosis this Rogers of as Dr. greatest Smith had the amount of schizophrenic, type schizo-effective was so contact Rogers any Linda of of the wide of the mark as be far below the physician appellees. have care, minimum medical standards of and no pointed to a number of acts or omission by psychiatric or medical basis exists for the Dr. Smith as evidence deliberate indif- prescription Rogers’s placebo of a Rogers’s ference to Linda needs. Dr. symptoms. alleges The affidavit also that replies disputed Smith there is no that is- Prolixin extremely potent Decoanate anis sue of material on which an fact Estelle tranquilizer that should be used on a She offers violation could rest. a number patient testing patient’s without first arguments specific to refute each claim dose, acting reaction to lower shorter tran- that indifference and contends all of her quilizers. actions can for as be accounted no more In every in-person contact negligence, than between legal limitations on her Dr. Rogers Smith objections and authority to treatment if after administer Linda medication, Rogers objected, the lack of Dr. obtained the an affirm- presence party of a to act obligation ative third as witness.7 under contract to moni- Rogers Dr. Smith's tor Linda contact with ended af- condition. Dr. Smith February 8, ter Dr. also 1979. Smith offers the proximate denies that her acts are the system referral explana- cause of at the as an Rogers’s death. tion; any requests she did not receive put arguments Dr. Smith’s do not to rest Rogers treat except request for Linahan’s the medical disputes factual about basis for Rogers. transfer Dr. Smith describes treatment of some Dr. Smith’s Linda request having the warden’s as been based Rogers, the which she extent to withdrew upon his discipline view of as a objection after the treatment from problem. says Dr. Smith that she assumed Decoanate, general, to the Prolixin being closely was observed and subjective Dr. Smith’s reasons for the level that help requested be would from provided Rogers. of care she Dr. Alcocer-Cetina, attending was the who arguments place her physician, Perez, Smith’s actions or Dr. who had a contract such, and, appropri- services, factual context are provide emergency or herself. trier of acknowledges ate matters for the fact. “The She that she knew that she questioned issue is whether the conduct is psy- Dr. Perez were sources of the district court’s use of 10 for a discussion of Although struck the affidavit 6. the district court as to Dr. Alcocer-Cetina. the Goldstein affidavit as to one defendant Dr. Leonard Goldstein Smith, expressly disapproved of it as to Dr. felt, strike the affidavit as did not of those notes [from the district court "I in view 7. Dr. Smith: lawyer], perhaps the record. We Rogers's assume I to Dr. Smith. It is in mother and account the affida- as to that the district court took me as a witness should have someone with disposition go as to Dr. vit and we do also. Our Smith, however, me and Linda what did on between disputes litigation my pending on factual rests about since there deposition, p. affidavit. See footnote 69. addition to those in treatment her.” Smith segre- inmates in the tal.8 A to jury chiatrie assistance reasonable could find that impatience with gation vacillating unit. a by attitude patient mental cannot serve as a conclusion jury reasonably A could find that Dr. that patient has refused all treatment. Rogers began Smith’s contact with to de- Dr. Smith’s own testimony allows the infer- expression opposition by crease after the of ence that she Rogers’s treated inconsisten- Rogers parents drug and her to the treat- cy aas flat and jury final “no.” A would ment, concurrently but with the deteriora- judge be entitled to Rogers whether re- Rogers’s A jury tion of condition. could go fused to hospital to the or Dr. Smith reasonably also find that Dr. Smith has not preferred to withdraw from involvement presented demonstrating evidence that the because Rogers’s parents’ and her oppo- prison system referral expla- is a sufficient aspects sition to of the treatment she had protect nation for the lack of efforts to administered. Rogers’s placed welfare after she was The record reflects impressions confused segregation. whether Smith told officials and matrons that faked her symptoms. plea Dr. Smith’s that prevented she was Dr. Smith denies that she normally would prescribing appropriate medication, from if patient describe a faking, as but she does prescribe medicine she wished to was not recall what she Rogers. said about egregiously inappropriate, cannot, pur- Smith exaggeration describes of side ef- poses summary judgment, rebut alle- fects to part medication patient’s as of a gation that she failed to tender medical psychosis particular and in part Rog- being prevented care. If she reacted to psychosis. ers’s providing inappropriate from care dis- continuing provide medically efforts to de- The record also disputed reflects facts of care, Dr. may fensible Smith well have why Dr. Smith did not see Linda “deliberately been indifferent” within the after February 8. Dr. Smith contends that meaning of Estelle v. Gamble. consulting psychiatrist as a rather than an attending physician, she needed to re- explana- inconsistent reflects The record spond requests. But she wavers in her placed Rogers was not why Linda tions of deposition in describing why she did not main- Hospital. Dr. Smith State Central see her on February 12. were tied” because “her hands tains that The record thus disputes contains go, also not want to but Rogers did Linda differing inferences both about the extent interest expressions reports of Dr. departure, Smith’s any, pro- if from not recall and Dr. Smith does going. fessional standards and about whether she Linahan told deny that Warden does provide failed to during treatment hospi- period go to the wanted her that in which she had an obligation describ- to render when also wavers tal. Dr. Smith care. If reasonable might minds Rogers opposed; Dr. differ on ing treatment what arising inferences opposition undisputed from concedes facts, then a medication, deny court should summary not to all forms anti-psychotic judgment. impa- expresses Mercantile Bank and She also Trust v. of treatment. on-again-off- Fidelity Deposit Co., 750 F.2d Linda tience with (11th Cir.1985). hospi- entering the again attitude toward that, of a if, indeed, that was sort "Now, because well aware Warden Linahan Smith: 8. Dr. say mo- pattern She’d one asking go, repeated both of hers. he and I that she was told me you’d go Rogers frequently go. asked to You’d ment she wanted knew that hospital.' go When I go say to the I think the want no. her and she’d offer it to —1 'No, her, I don’t I’d offer it to throughout.” see her and would reflects this record hospital.’ were both go He and I want to 1062

Grossly incompetent inadequate ty highlight disputed medi- factual issues.” Murrell, cal eighth care can violate the 615 F.2d amendment. at 310. Whether the Prasse, 1, Prolixin (3rd gross Gittlemacker v. 428 F.2d was a matter 6 of incom- petence, Cir.1970). negligence, or provided judgment Even if Dr. Smith is disputed attentive, proper and a period subject expert of competent of Rog- care to testimony. ers, credibility of Dr. Smith’s episode gross one of conduct would be account of her motives is relevant. Wheth- jury sufficient for a to make finding placebos er use of as a Rog- treatment for deliberate indifference. “Gamble does not symptoms any ers’s has basis in medical necessarily episode gross excuse one knowledge is at issue. All these are triable merely pat- misconduct because the overall issues, Rogerses which the are entitled to general tern reflects attentiveness.” Mur- put jury which, before a and about in the Bennett, 306, (5th rell v. 615 F.2d 310 n. 4 instances, expert relevant testimony can be Cir.1980). presented. We hold that summary judgment was not appropriate eighth as to the amendment Dr. Perez. Dr. Perez submitted an

allegations against Dr. Smith. The district affidavit connection with his motion for court should now rule whether the four- summary judgment. The affidavit estab teenth amendment claim deprivation lishes that Rogers his contact with any viability. life has Whether the acts limited. He during saw her twice regu his and/or omissions of Estelle defendants are Thursday lar times, sessions. Most other proximate cause of an inmate’s death Dr. Anita Rae Smith substituted for him. placed have been jury before a eighth 21, on an September 1978, On Dr. pre Perez amendment claim even where a medical mg. scribed Vistaril 25 per day two times expert stated that the entirely death was as needed for January nervousness. On Bosshard, 11, 1979, unforeseeable. Fielder v. he continued her mg. on Elavil 75 per day prescribed one 105,110 Thorazine 25 (5th Cir.1979). F.2d n. 6 But what- mg. one tablet three daily forty- times disposition deprivation ever the of the eight hours for claim, vomiting. nausea and life Dr. theories about how met Perez had no contact with Linda upon separate her death do not bear claim that suffered cruel and un- person either in byor receiving communica punishment during portion usual some tions about 11, her after January 1979. He light her confinement at GWCI. In of the was on 26, vacation from January 1979, to pendent district court’s decision to treat the 12, February 1979, and out of the country motion, summary claims in the we assume most of the time. We nothing see in the pendent the district court has record that was offered Rogerses claims before it. place dispute any material fact about Dr. Perez’s conduct Rogers.9 toward Linda summarize, permit To the evidence could The record does not any reflect testimony inference, independent that would indicate a deliberate indiffer death, pain that she suffered and extreme ence to serious medical needs of Linda distress at least from the time the Prolixin Rogers by Dr. Perez. allegations Dr. was administered. Smith’s Regalado. Regalado Dr. prove conclusively

do that the saw “in covering do not have a cause of action but reali- once when he was granted a motion to strike an affida- that Dr. Perez knew or should have known of 9. The court concerning diagnosis Dr. Perez's deficiencies in the care and of Linda vit of Leonard Goldstein Rogers. Rogers. opinion only provisional- treatment of Linda This action was is stated conclusory proper. phrased ly. The affidavit is The affidavit is defective to create a factual citing dispute. terms without facts. Dr. Goldstein states February Perez on for Dr. 1979. He Nurse Barksdale is mentioned four approximately twenty-five spent thirty October she wrote a note in times. On gross minutes and did a with neuro- Linda medical record that Barks- logical and evaluation. He ob- Vendya of Dr. notified Lewis dale had cooperative, quiet, served her to be and in Rogers out of the to take Smith’s order good reality. contact with She was not put and her under observation. population staggering and her facial muscles were 4, 1979, February Rogers told Barks- On request, gave normal. At her he her a clinic, dale, that her muscles in the while prescription days for Vistaril for two and tongue drool- twitching and her were suggested by she be evaluated Dr. Nurse allegation is made that ing. No day. Regalado appropriately. The the next Dr. did not ob- failed to act Barksdale Nurse Barksdale de- side effects of Prolixin and mentions of serve last two Rog- upon being called to any her actions complain did not at the time he saw scribe discovered dead. cell after she was ers’s her. only that Nurse These facts establish facts, On the basis of these there is no Rogers. They had contact with Barksdale genuine dispute material fact in Dr. about inferences that disputed no facts or raise Regalado’s treatment or state of mind to- support an Estelle violation. could Rogers. ward An affidavit Dr. Gold- concerning Regalado’s Dr. stein contact Nurse Warren is mentioned five times. Rogers was not struck from the Barksdale, As with Nurse these references however, allegations, record. The describe establish that Nurse Warren was negligence. The affidavit states that Dr. present at GWCI and had contact with Regalado should have examined for Rogers. contacts, In these she observed cogwheel rigidity and should have had a Rogers’s symptoms. some of In prof- high suspicion drug index of of a reaction. facts, however, Rogerses fer of do not Regalado’s The conclusions—that acts allege that Warren failed to take action in “may and omissions have contributed response symptoms she observed. development extrapy- of an untreated Indeed, plaintiffs’ memorandum does reaction to Prolixin and to the de- ramidal any not describe in fashion Nurse how velopment panic, helplessness, and de- responded. place Warren This failure to speculative. Rogerses pression” —are disputed material fact before the district put placing have not forward facts at issue discovery court after full efforts made Regalado whether Dr. acted in a deliberate- summary judgment appropriate. See ly indifferent manner toward Rog- Jones, 430 F.2d 568. ers. grant We affirm the of summary judg- Barksdale, R.N., Eloise Joan appellees except ment as to all Dr. Anita Warren, R.N.. our review of the record disputed We hold that there are Rae Smith. development we find no factual of the alle of material fact under the standards issues gations against these two nurses. We to Dr. Smith and of Estelle v. Gamble as plaintiffs’ have examined the memorandum this proceedings consistent with remand of facts to determine whether the opinion. put disputed forth facts about the conduct registered Although of these nurses. part, AFFIRMED in REVERSED in plaintiffs’ attempt memorandum did not part, REMANDED. evidence, set forth all the it did undertake “to set forth that evidence is which suffi RONEY, Judge, concurring: Circuit questions cient to create of fact to be presented jury.” to a Judge I Hatchett’s decision. concur summary

I concur in the reversal of judg- sympathize One Smith, must with Dr. recognition ment as to Dr. Smith with the threatened with no doubt astronomical money proof required damages that the standard of if to estab- she meted out to Linda liability against very high. lish her thought right, is treatment she and with likewise money evidence and affidavits astronomical offered must be dam- ages yielded if she objections, favorably plaintiff viewed Linda’s most on a sum- those made family motion, however, on her mary judgment behalf. any may, course, There arrangements be possible liability from a favorable veiw of place state, for the or an compa- insurance requires the evidence development a fuller ny, pay assessed, to whatever is but we permitted of the case than on summary must assume otherwise if not told. The judgment. Whether a reasonable view of manifest tendency of the law as ap- here the evidence and the testimony live of the plied would seem to employ- be to make required affiants will meet the standard ment in the service, state’s medical in its must await trial. This is a close case but institutions, attractive to those who such against cases should be decided the judgment are proof. litigation foreclosure of further by sum- mary judgment. To making avoid the dilemma worse than already is, it I would exclude from the

NICHOLS, Judge, Senior Circuit concur- any remand issue as to medical treatment ring part dissenting part: withheld objections because of by Linda herself, her family, or her attorneys, join I in the decision of the court and in drugs whether physical transfer to the Judge carefully weighed opinion Hatchett’s hospital. mental When competing alleged respect to all except defendants rights issue, constitutional are at state I Respectfully, Smith. would affirm with personnel medical should not required be to respect to them also. select right respect ones to at their plaintiffs cannot recover under the peril. Nor should a doctor required be ordinary Federal Constitution for negli- defend in federal courts his or her refrain- gence. They must show cruel and unusual ing from imposition of medical care punishment predicated showing on a of de- rejected by patient. not, That is I liberate indifference to an inmate’s serious submit, Estelle-type case. needs, Gamble, Estelle v. 429 U.S. apparently There is no evidence that Lin- 285, (1976). 97 S.Ct. 50 L.Ed.2d 251 da was suffering viewed as a mental im- majority properly does not find the pairment so severe dangerous she was facts, but it discovers a triable issue of fact herself or right others. Her object in the evidence submitted on the motions certain treatments therefore had to be re- summary judgment. Specifically, the spected, as it was. complication This is a court locates evidence that Dr. Smith delib- majority opinion nowhere addresses. erately distanced problem herself from the any Should there be sufficient evidence Rogers presented, inmate Linda which was that Dr. deliberately any withheld cognizance within consulting Smith’s other needed medical care that Linda would psychiatrist prison. for the women’s It accepted, have and her family not have sued surmises that the withdrawal was a result on, I object would not to a remand confined litigation threats of fami- that. i.e., ly, present plaintiffs, and resistance Rogers encouraged by family— Finally, plaintiffs revealed to the — thought medication Dr. Smith best. court their suspicion that Linda was mur- allowed, late, Linda was also until too suspect dered. The did not move for sum- prevail in her intermittent resistance to be- mary judgment and the case will continue ing taken to hospital the state mental Obviously as to her. if Linda was mur- problems dered, where her would have received against the case the two is doctors continuous skilled diminished, attention. much if viable at all. If there liability, is to be a trial as to the doctors’ it suspended

should until the be murder issue disposed is somehow of. SEWELL, Plaintiff-Appellant, Vera D.

v. BOWEN, Secretary Otis R. of Health Services,

and Human Defendant-Appellee.

No. 85-8546. Appeals, United States Court of L. Cooper, Stalnaker, Valdi Edward B. Eleventh Circuit. Augusta, Ga., for plaintiff-appellant. June 1986. Whisenhunt, Henry Jr., L. Asst. U.S. Ga.,

Atty., Augusta, for defendant-appel- lee. GODBOLD,

Before Judge, Chief VANCE, Judge, *, Circuit and THOMAS Judge. Senior District GODBOLD, Judge: Chief appeals Sewell from the district court’s judgment affirming the determination of Secretary that she is not entitled to security disability social benefits because past she is able to do her relevant work. Secretary Because the failed to consider subjective testimony pain claimant’s law, required by applicable we reverse. year-old Sewell is a 60 woman who lost age her left arm at the of four. She at- public through tended school the ninth grade and later obtained a G.E.D. certifi- cate. employer Her has been Home- Draperies. During years stead her 15 at * Thomas, bama, sitting designation. Honorable Daniel H. Senior U.S. Dis- Judge trict from the Southern District of Ala-

Case Details

Case Name: Mr. And Mrs. J.L. Rogers, Etc. v. David C. Evans, Leland Q. Linahan, Mr. And Mrs. J.L. Rogers, Etc. v. Vendya Lewis

Court Name: Court of Appeals for the Eleventh Circuit

Date Published: Sep 15, 1986

Citation: 792 F.2d 1052

Docket Number: 85-8279

Court Abbreviation: 11th Cir.