Herrick v. Carroll County, Georgia et al, No. 1:2009cv00161 - Document 72 (N.D. Ga. 2009)
Court Description: ORDER and OPINION denying as moot 29 CorrectHealth's First Motion for Summary Jugment; granting 42 Plaintiff's Motion to Amend the Complaint; granting 44 defendant CorrectHealth's Motion for Extension of Time to Respond; granting 47 Defendant CorrectHealth's Second Motion for Summary Judgment; granting 48 Carroll County's Motion for Summary Judgment; granting 52 Plaintiff's Motion for Extension of Time to Respond. Here, the Court has dismissed all of pla intiff's federal claims, and the remaining claims involve relatively complex decisions of state law. Accordingly, the Court DISMISSES WITHOUT PREJUDICE plaintiff's remaining state law claims. The CLERK IS DIRECTED TO CLOSE this action. Signed by Judge Julie E. Carnes on 09/28/09. (fap)
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FILED /IV CHAMBERS IN THE UNITED STATES DISTRICT COURT FOR THE . NORTHERN DISTRICT OF GEORGIA ~ ATLANTA DIVISION SAP 2 8 zoos JEAN HERRICK , MOTHER ADMINISTRATOR OF THE ESTATE OF ANGELA AND THOMPSON, 8Y~ ~ ~s N' NA~~ + Cler DECEASED, A Plaintiff, :CIVIL ACTION V. NO . ;1 :09-CV-0161-JEC CARROLL COUNTY, GEORGIA ; TERRY E . LANGLEY, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS SHERIFF OF CARROLL COUN T Y ; MAJOR DAVID JORDAN, INDIVIDUALLY AND IN HIS OFFICIAL CAPAGI T X .AS JAIL SUPERVISOR ; CORRECTHEALTH CARROLL, LLC ; NURSE JANE DOE, INDIVIDUALLY AND IN HER OFFICIAL CAPACITY AS AN EMPLOYEE OF CORRECTHEALTH CARROLL, LLC AND THE CARROLL COUNTY SHERIFF'S OFFICE ; and DR . JOHN DOE, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS AN AGENT AND EMPLOYEE OF CORRECTHEALTH CARROLL, LLC AND THE CARROLL COUNTY SHERIFF'S DEPARTMENT, ' Defendants . ORDER AND OPINION This case is presently before the Court on defendant CorrectHealth Carroll LLC's ("CorrectHealth's") First Motion for Summary Judgment [29], plaintiff's Motion to Amend the Complaint AO 72A (Rev. 8182) i [42], defendant CorrectHealth's Motion for an Extension of Time to Respond to Plaintiff's Response [44], CorrectHealth's,5econd Motion for Summary Judgment [47], defendant Carroll County's Motion for Summary Judgment [48], and plaintiff's Motion for an Extension of Time to Respond to CorrectHealth's Second Motion for Summary Judgment [52] . .The Court has reviewed the record and the arguments of the parties and, for the reasons set outt below, concludes that defendant CorrectHealth's Motion for an Extension of Time to Respond . [44] should be GRANTED , plaintiff's Motion for an Extension of Time to Respond [52] should be GRANTED , plaintiff's Motion to Amend the Complaint [42] should- be GRANTED , defendant CorrectHealth's Second Motion for Summary Judgment [47] should be GRANTED , CorrectHealth's First Motion for Summary Judgment [29] should be DENIED as moot , and Carroll County's Motion for Summary Judgment [48] should be GRANTED . BACKGROUND Plaintiff in this action is Jean Herrick, the mother of Angela Thompson and the administratrix of Ms . Thompson's estate . (Compl . [1] at 9[ 1 .) Ms . Thompson was diagnosed with renal cell carcinoma while in Carroll County Jail and was released on signature bond . (Herrick Aft ."[54] at 9[ 5 .) She passed away two months later from 2 A O 7 7A . (3~ev. 8182) complications arising from her condition . ( Id . at T 7 .) Plaintiff subsequently filed this action asserting federal and state claims against defendants for their alleged failure to provide adequate medical care to Ms . Thompson . (Compl . [1] .) I . Med i cal Procedures in Carroll Coun ty Jail When inmates desire medical attention in Carroll County Jail, they fill out a "sick call slip" and place the completed slip in a secure box during meals . (Jordan Dep . [64] at 13-14 .) One of the sheriff'ss officers collects the box daily and takes- it to "medical ." (Id .) A staff member of CorrectHealth, the company contracted to provide medical services to inmates, reviews the call slips and makes an individual determination as to each one . (Smith Dep . [53] at 17 - 18 and Jordan Dep . [64] at 14 . . ) If the inmate's medical needs require attention, the inmate is examined by a CorrectHealth doctor or nurse and treated accordingly . (Smith Dep . [53] at 21-22 and Jordan Dep . [64] at 13 .) If treatment outside the jail is warranted, CorrectHealth personnel submit a medical transport request, which the Carroll County Jail grants as a matter of course . (Jordan Dep . [64] at 46-47 .) If there is an emergency, the jail officers are directed to call --CorrectHealth staff immediately . TI . Ms . (Id . at 23 .) Thomgson ' s Incarcera ti on and Medical Care Ms . Thompson was incarcerated in the Carroll County Jail for 3 AO 7za, ( Rev_a/sz) forgery on April 11, 2005 . (Inmate File, Mat :- for Summ . J . [48] a t 21 .) Ex . B to Carroll County's When sh e arrived at the jail, . CorrectHeal t h staff filled out an "Intake Screening Demographics Carroll Form" and placed i t in her f i le . . and (Med . R ., Ex . C to County's Mot . for Summ . J . [48] at 4-6 .) The form ind i cates that Ms . Thompson had an ulcer, a history of diabetes ; and a fractured bone in her right hypoglycemic . (Id .) f o o t . (Id .) She was also The form does not note any other health concerns . (Id .) After a brief release, Ms . Thompson was returned to Carroll County Ja i l on August 8, 2005 . (Inmate File [48] at 1-3 .) Upon her reentry, screening . - . CorrectHealth staff performed another medical intake i ( r d .) The second screening problems that existed ind i cated the same medical i n April . (Med . R . [48] a t 9-10 .) No new problems were noted . ( 1 d .) Between August 8, 2005 and September 30, 2005, requested medical treatment at least twelve times ailments that d i d not relate to renal cell carcinoma, s i nus Ms . .. Thompson for various including a i nfection, skin rash, const i pat i on, and an abscess . (Id . at 14-25, 27 .) She received med i cal treatm e n t~- for each compla i nt, including creams, laxat i ves, and prescribed medications . 48-50 and Second Oladele Dep . [63] a t .(Id . at 86-87 .) On August 29, 2005, Ms . Thompson reported that she was passing AO 72A (Rev 8182) . blood in her ur i ne, but she did not indicate that experiencing any pain . (Med . R . [48] at performed on the next day, and the 42 .) she was A urinalysis " was resultswere cons i stent with a urinary tract infection ("UTI") . (Smith Dep . [53] at 73 .) CorrectHealth personnel prescribed double strength bactrim, the regular medication for a UTI, for five days . (Med . R . [48] at 48 ; and Oladele Dep . [62] at 93 .) Ms . Thompson's symptoms resolved . (Id . ) Ms . Thompson again complained of blood in her urine on September 26, 2005 . (Med . . R . [48] at 49 and Smith Dep . [53] at 74 .) A urinalysis was performed on the same day . (Id :) The results suggested that Ms . Thompson was suffering from another UTI or kidney stones . (Med . R . [48] at 49 .) CorrectHealth employee P .A . Rose prescribed antibiotics and a pain reliever, and referred Ms . Thompson to Dr . Walter Smith . (Id .) Dr . Smith ordered a renal ultrasound, which was performed three days later . (Id . at 51 and Smith Dep . [53] at 29-30 .) In the interim, Ms . Thompson was admitted into the jail infirmary, where she remained until the results of her ultrasound were received and interpreted on October 5, 2005 . (Med . R .-[48] at 51 .) She was given . Darvocet, a pain medication, every six hours as needed . (Second Oladele-Dep . [63) at 93 .) The ultrasound revealed an unidentifiable mass and small 5 AO 72A (R ey.8182) densities representative of kidney stones . . (Med . R . [48] at 62 and Smith Dep . [53] at 34 .) Accordingly, Dr . Smith ordered a CT scan of Ms . Thompson's abdomen and pelvis . (Med . R . [48] at Smith Dep . [53 ] 52 and at 37-38 .) The CT scan was performed at Tanner Medical Center on the next available appointment date of October 20, 2005 . (Med . R . .[48] at 45-46, 52-54 .) CorrectHealth medical staff examined Ms . Thompson many times between the date the scan was ordered and the date it was performed . {Id .) During these examinations, the staff prescribed medications forpain and nausea . ( T d . and Smith Dep . [53.] at 86-87 .) 111 . Ultimate Diagnosis The CT scan revealed a 13 .3cm x 14 .7cm mass on. Ms . Thompson's left kidney, which the doctors presumed was renal cell carcinoma . (Certified Copy of Thompson's Med . R . from Tanner Med . Center, Ex . D attached to Carroll County's Mot . for Summ . J . ("Tanner Records") [48] at 18 .) The CT scan also revealed metastasis to thee right lung in the form of a 1 .5cm x .9cm nodule, a separate 7mm soft tissue nodule, and metastasis in the form of a 4 .9cm x 4 .8cm mass in Ms . Thompson's chest . (Id .) With a diagnosis of inoperable kidney cancer, Ms . Thompson was released from Carroll County Jail on October 20, 2005 on a signature bon(~ . (Inmate File [48] at 6, 20 .) Ms . Thompson returned home and was cared for by plaintiff . (Herrick Aff . 6 AO 72A (Rer+,8182) [54] at TT 7-9 .) Plaintiff states that, during this time, Ms . Thompson told her that the Carroll County Sheriff's Office had refused to believe that she was . seriously ill and that they had failed .to give her painn medication . (Id . at 9[9[ 14--15 . ) Ms . Thompson died of complications arising from metastatic renal cell carcinoma . on December 1 8, 2005 . (Certified Copy of Death Certificate, Ex . E to Carroll County's Mot . for Summ . J . [48] .) Plaintiff subsequently initiated this lawsuit, asserting federal constitutional claims under 42 U .S .C . § 1983, as well as various stake . law claims . (Comp . [1] at 1111 11-45 .) Defendants have filed motions for summary judgment on all of plaintiff's claims . (CarrectHealth Second Mot . for Summ . J . [47] and Carroll County Mot . for Summ . J . [48] .) Those motions, and several related motions, are presently before the Court . DISCUSSION 1. Summary Judgment Standard Summary judgment is not properly viewed as a device that the trial court may, in its discretion, implement in lieu of a trial on the merits . Instead, Rule 56 of the Federal Rules of Civil Procedure mandates the entry of summary judgment against a party , who fails to make a showing sufficient to establish the existence of every element essential to that party's case on which thatt party will bear the burden of proof at trial . 7 A O 72A (A ev.Sl82) Celotex Corp . v . Catrett, 477 U .S . 317, 322 (1986) In such a situation, there can be no genuine issue as to any material fact, as a complete failure of proof concerning an essential element of the nonmoving party's caste necessarily renders all other facts immaterial . I d, at 322-23 . The movant bears the initial responsibility of asserting the basis for his motion . Id . at 323 ; Apcoa, Inc . v . Fidelity Nat'd Bank, 906 . F .2d 610, 611 (11th Cir . 1990) . The movant is not required to negate his opponent's claim, however . The movant mayy discharge his burden by merely "'showing' --that is, pointing out to the district court--that there is an absence of evidence to support the nonmoving party's case ." Celotex, 477 U .S . at 325 . Afterthe movant has carried his burden, the nonmoving party is then required to AN go beyond the pleadings" and present competent, evidence' designating "'specific facts showing that there is a genuine issue for trial . '" Id . at 324 (quoting FED . R . Czv . P . 56 (e)) . While the court is to .view all evidence and factual inferences in a light most favorable to the nonmoving party, Samples v . City of Atlanta, 846 F .2d 1328, 1330 (11th Cir . 1988), "the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment ; the 1 The nonmoving party may meet its burden through affidavit and deposition testimony, answers to interrogatories, and the like . Celotex, 477 U .S . at 324 . 8 AO 72A (Rev-8/82) . requirement is that there be no genuine issue of material fact ." Anderson v . Liberty Lobby, Inc ., 477 U .S . 242, 247-48 (1986) . A fact is material when it is identified as such by the controlling substantive law . Id . at 248 . An issue is genuine when the evidence is such that a reasonable jury could return a verdict for the nonmovant . Id . at 249-50 . The nonmovant "must do more than simply show that there is some metaphysical doubt as to the material facts Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no `genuine issue for trial .'" Co . v . Zenith Radio Corp ., 475 U .S . 574, Matsushita Elec . Indus . 586-87 (1986) (citations omitted) . An issue is not genuine if it is unsupported by evidence, or if it is created by evidence that is "merely I colorable" or is "not significantly probative ." Anderson, 477 U .S . at 249-50 . Thus, to survive a motion for summary judgment, the nonmoving party must come forward with specific evidence of every element material to that party's case so as to create a genuine issue for trial . II . Plaintiff's Federal Claims In order to prevail on her federal § 1983 claims, plaintiff mush show that defendants : (1) deprived her daughter of a constitutional- right, (2) under color of state law . Wallace Community College, 49 F .3d 1517, 1522 (11th Cir . 1995) 9 AO 72A (Rev.8/82) Edwards v . (citing Gomez v . Toledo, 446 U .S . 635 ( 1980)) . Plaintiff must also demonstrate an adequate basis for holding the County or the . individual defendants liable for the constitutional violation . See Griffin v . City of Opa-Locka, 261 F .3d 1295, 1307 (citing Monell v . Dept . of Social Servs ., (11th Cir . 2001) 436 ' U .S . 658, 663 (1 978)) . There is no respondent superior liability under § 1983 . Plaintiff has not produced sufficient evidence to meet either of these requirements . A. There Is No Ev i dence of a Constitu tional Deprivation . 1. Plaintiff ' s Fourth Amendment Claims Plaintiff vaguely suggests that defendants violated her i daughter's, rights under the Fourth Amendment by subjecting Ms . Thompson to "unwarranted intrusion and illegal seizure ." (Pl .'s Resp . Br . [56] at 7 .) The Fourth Amendment protects . against unreasonable searches and seizures . Baltazar, See United Stakes v . Segura- 448 F .3d 1281, 1285 (11th Cir . 2006) ("To prevail on a Fourth Amendment claim there must be an invasion of the claimant's reasonable expectation of privacy") . However, plaintiff does not explain how any of defendants' actions regarding her daughter's medical care amounted to or resulted in an unreasonable searchh and seizure . Nor does she provide any additional allegations, much less evidence, to support her Fourth Amendment claim . Accordingly, plaintiff cannot establish any constitutional 10 AO 72A (Rev.8182} ~ deprivation of Ms . Thompson's Fourth Amendment rights . 2 . Plaintiff's Eighth and -Fourteenth Amendment Claims Plaintiff's Eighth and Fourteenth Amendment claims are based on defendants' failure to provide adequate medical care to Ms . Thompson while she was incarcerated . In order to show a violation of either constitutional provision, plaintiff must demonstrate that defendants were "deliberately indifferen[t]" to Ms . Thompson's "serious medical needs ." Estelle v . Gamble, (1976) (quoting Gregg v . Georgia, 429 U .S . 97, 104 428 U .S . 153, 173 (1.976)) . See . also Bozeman V. Orum, 422 F .3d 1265,- 1272, (11th Cir . 2005) (explaining that deliberate indifference to an inmate's E serious medical need can constitute deprivation of due process) and Goebert v . Lee County, 510 F .3d 1312, 1326 (11th Cir . 2007) ( ."the standards under the Fourteenth Amendment are identical to those under the Eighth") . Defendants concede that Ms . Thompson had a serious medical need, but they contend that there is no evidence of "deliberate indifference ." The Court agrees . Allegations of misdiagnosis, accidents, and poor exercise of judgment are insufficient to show deliberate indifference . Estelle, 429 U .S . at 106 . ("Medical malpractice does not become a constitutional violation merely because the victim is a prisoner .") See also Adams v . Poag, 61 F .3d 1537, 1545 (11th Cir . 1995) (explaining that, under Estelle, medicall negligence is an 11 AO 7 2A {R ev. 8/82) I inappropriate basis on which to attach § 1983 liability) . Medical treatment only violates the Constitution 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)(quoting Ropers v . Evans, 792 F .2d 1052, 1058 (11th Cir . 1986)) . For example, courts have found deliberate indifference where corrections officials refused to treat a patient or deliberately delayed access to treatment . See Waldrop v . Evan s, 871 F .2d 1030, 1034-35 (11th Cir . 1989)(doctor's failure to take any action after inmate slashed his forearm after be i ng - taken off of h i s psychiatr i c medicine could deliberate indifference) and Lancaster v . Monroe constitute County, 116 F .3d 1419, 1426 - 27 (11th Cir . 1997)(jaiier could be found deliberately indifferent for delaying treatment when he knew that inmate would have a seizure i f no treatment was provided for h i s severe alcoholism) . . There is no evidence to suggest that Ms . Thompson received "grossly inadequate" medical care orthat defendants were otherwise "deliberately indifferent" to her medical condition . On the contrary, the record shows that every time Ms : Thompson complained , of a'health problem, she received prompt attention and treatment . During her second incarceration, beginning in August 2005, Ms . Thompson's records indicate that she requested treatment 12 AO 7zA (Rev.&s2) ~. approximately twenty-three times z (Med . R . [48] at 15-74 .) In response to these requests, more than twenty doctors' orders . were issued on her behalf, includingg numerous prescriptions andd admissions to the infirmary . (Id .) She was prescribed antibiotics, Benadryl, antacids, laxatives, and pain medications . (Id . ) Ms . Thompson also received treatment for her more severe symptoms . When Ms . Thompson complained of blood in her urine on August 29, 2005, CorrectHealth staff ordered a ur i nalys i s . (Oladele UTI .3 Dep . [63] at 82 .) The , results were cons i stent w i th a (Id . at 88 .) As a result of their findings, CorrectHealth personnel prescribed double strength' bactrim, the regular medication for a UTI, for five days . (Id . at 93 .) The medication appeared to treat Ms . Thompson's symptoms successfully . Although Ms . Thompson made several other medical complaints in the interim, she did not complain of hematuria again until September 24 and 25, 2 Defendants canna have been deliberately indifferent to .a medical condition of which they and Ms . Thompsonn were unaware . The analysis therefore focuses on the facts from August 29th, the first date that Ms . Thompson presented with any signs of renal cell cercinoma . (See Med . R . [48] at 3-4, 9-10 arid Smith Dep . [53] at V3 .) 3 The urinalysis revealed the existence o f leukocytes (white blood cells), which are cons i stent w i th an infect i on . (Oladele Dep . - [63] a t 8 .9 .) The CorrectHealth personnel also checked to see whether Ms . Thompson was anemic, which could be a sign of someth i ng more serious . (Id . at 90 .) She was not . (Id .) 13 AO 7 2A (Rev.8/82) 2005 . (See Med . R . [48] at 19-29 .) When the hematuria returned, and Ms . Thompson also complained of flank pain, CorrectHealth's P .A . Rose started to believe that a kidney stone might be the culprit . (Rose Dep . [53] at 19-20 .) He examined Ms . Thompson's abdomen, but noted that there was no mass and no nausea . (Id .) He prescribed an antibiotic and a pain medication, ordered another urinalysis, and gave Ms . Thompson a urine strainer in case she passed any stones . (Id . at 19-20 .) He also referred Ms . Thompson to Dr . Smith, who ordered a renal ultrasound . (Rose Dep . [53] at 23 and Oladele Dep . [63] at 94 .) . (Oladele Dep . [63] at 95 .) The ultrasound revealed stones and a possible mass, which was ill-defined . (Oladele Dep . [62] at 97-9 8 and Second Oladele Dep . [63] at 47 .) As a result, Dr . Smith ordered a CT scan . (Oladele Dep . [62j at 98 .) CorrectHealth personnel made the next available appointment for the scan, which was approximately two weeks after the renal ultrasound results were returned . (Id . at 98-100 .) Based on the results of the CT scan, defendants reached the proper diagnosis of renal cell carcinoma . Plaintiff's expert, Dr . Oladele, suggests-t hat Co r rec t Health's . diagnostic process was inadequate . (Oladele Dep . . [62] at 80-81 .) Assuming that . Dr . Oladele would have pursued a more aggressive diagnostic plan, his testimony does not demonstrate deliberate 14 A0 7z A (Rev.8/82) i indifference . See Blanchard v . White County Det . Ctr . Staff, 262 Fed . Appx . 959, 964 (11th Cir . 2008)("When the claim turns on the quality of the treatment provided, there is no constitutional violation as long as the medical care provided to the inmate is `minimally adequate ."')(quoting . Harris, 941 F .2d at 1504) . In any case, the medical records show that the CorrectHealth staff did almost all of the diagnostics that Dr . 0ladele would have advised . For example, Dr . Oladele states that "the diagnostic process" should have begun on August 30th, when Ms . Thompson presented with hematuria and the urinalysis was performed . (Oladele Dep . [63] at 96 .) Dr . Oladele states that the response to Ms . Thompson'ss first claim of hematuria should have included a physical exam, lab tests, and other diagnostic tests in sequence .. (Id . at 82 .) In fact, CorrectHealth staff saw Ms . Thompson on August 30th, did a physical exam, palpated her abdomen on several occasions, performed a urinalysis, and followed up with additional diagnostics, including a renal ultrasound and a CT scan . 82 , (Id . at 87 ..) Dr . Oladele also claims that defendants failed to properly address Ms . Thompson's pain in October, 2005 .-- (Oladele Dep . at 8081 .) ' However, Ms . Thompson's medical records demonstrate a prompt response to every complaint of pain that she made . On October 1st, when Ms . Thompson was still in the infirmary, she complained of 15 AO 72A . I .. ! lower abdomen pain rating "ten out of ten" on . the pain . scale . (Med . R . [48] at 45-46 .) She was seen that day and given more pain medication . (Id .) On October 7th, Ms . Thompson complained that . . CorrectHealth staff had stopped giving her pain medication on that day and that she was in pain . (Id . at 33-34 .) She was given more medication onn the next day, October 8th . (Id . at 52 .) On October 10th, she complained of "bad pain" in her side on a-sick call slip . (Td, at 53 .) She was seen on the same day and given more medication . (Id .) The only time Ms . Thompson complained that she ran out of pain medication and went for more than one day without i receiving more medication or seeing a doctor occurred on October '! 15th . (Med . . R . [48] at 36-39 and Second Oladele Dep . [63] at 94 .) However, she was given more pain medication and readmitted into the infirmary for better management of . pain an October 17th . (Med . R . [48] at 36-39 .) Based on this record, no reasonable jury could conclude that Ms . Thompson's care was so inadequate as to manifest the kind of "conscious or callous indifference" necessary to show a constitutional violation . Waldrop, Harris, 941 F .2d at 1506 . See. also 871 F .2d at 1035 (observing that "when a prison inmate has received medical care, courts hesitate to find an Eighth Amendment violation") . There is no indication in the record that Ms . Thompson's care was obstructed, unreasonably delayed, or that 16 AO 72A (Rev.8182) medical and jail staff ignored any of Ms . Thompson's complaints . (Second Oladele Dep . [63] at 79,) When "[m]easured against constitutional minima," Ms . Thompson's treatment was adequate as a matter of law . Harris, 941 F .2d at 1507 . See Blanchard, 262 Fed . Appx . at 964 ("Deliberate indifference is not established where an inmate received care but desired different modes of treatment .") . . Accordingly, the Court GRANTS defendants' motions for summary judgment . B. There Is No Official or Individual Liabi l ity . In addition, plaintiff cannot establish a basis for holding Carroll County, or any of the individual defendants, liable for Ms . Thompsan' .s allegedly inadequate treatment . Thus, defendants would be entitled to summary. judgment even if plaintiff were able to show a constitutional violation . 1. Carroll County There is no respondeat superior liability under ~ 1983 . Griffin v . City of Opa-Locka, 261 F .3d 1295, (citing Monell v . Dept . of Social Servs ., 1307 (11th Cir . 2001) 436 U .S . 658, 663 (1978)) . Thus, a municipality is only liable under ~ 1983 .for . constitutional deprivations that are caused by a governmental policy or custom . Id . Moreover, " [i] t is not sufficient for a [municipality's] policy to be tangentially related to a constitutional deprivation ." Cuesta v . 17 AO 72A Re 81 2 c V_ a 3 School Bd . of Miami-Dade County, 285 F .3d 962, 967 (11th Cir . 2002) . Instead, "[t]he `official policy or custom must be the moving force of thee constitutional violation in order to establish liability under § 1983 .'" Id . . (citing Gilmere v . City of Atlanta, 737 F .2d 894, 901 (11th Cir . 1984)) . Accordingly, in order to prevail on her claim against Carroll County, plaintiff must show that a County policy or custom was the "moving force" behind Ms . Thompson's inadequate medical care . Plaintiff vaguely refers in her Complaint to a "custom, policy, [or] pattern" of failing to train and supervise jail personnel with regard to providing medical treatment . (Comp l . [1] at 9[9[ 24-28 .) However, she does not describe the offending "custom or policy" in any detail . Neither does she present any evidence to sustain herclaim that any such custom or policy exists . On the contrary, the evidence suggests that the policies in place at the Carroll County Jail facilitated the inmates' access to medicall care and ensured their safety . The Sheriff required the deputies to (1) deliverr the sick call slips to medical, (2) transport inmates to the hospital when CorrectHealth asked as a matter of course, and (3) contact medical staff immediately in the event of an emergency . (Jordan Dep . [64] at 14, 15, 23, 46-47 .) In addition, the record shows that CorrectHealth staff (1) was available twenty-four hours a day and seven days a week, (2) treated inmates' non-emergency 18 AO 72A (flev.8l82) i requests within twenty-four to forty-eight hours, and (3) responded immediately to emergency requests . (Rose Dep . [53] at 9 and . Oladele Dep . [63] at 100-01 .) In short, there is no evidence that Carroll County, or any of its employees, invoked a policy to interfere with or delay the medical care provided to inmates . For this additional reason, the County's motion for summary judgment is GRANTED .4 2 . Sheriff Langley Like the County, Sheriff Langley cannot be held personally liable under § 1983 on a theory of respondeat superior .' See Adams, 61 F .3d at 1544 ("Supervisory personnel cannot be held liable under section 1983 for the actions of their subordinates . under a theory of respondeat superior .") (citzng Monell, 436 U .S . at 691) . Any claims against Sheriff Langley in his individual capacity must arise from his own acts, such as (1) his personal participation inn the constitutional violation, or (2) his implementation of a policy that contributed to the violation . Id . Applying this standard, the record evidence does not support any claims against Sheriff Langley in his individual capacity . 9 This ruling is equally applicable to plaintiff's- claims against the individual defendants in their official capacity . See Busby, 931 F .2d .at 776 ("when an officer is sued in his or her .official capacity, the suit is simply 'another way of pleading an action against' the city that the officer represents .") 19 AO 72A. (R ev.8182) As an initial matter, Sheriff Langley was not personally involved in Ms . Thompson's care . In fact, there is no evidence that Sheriff Langley knew of or had any reason to know of Ms . Thompson while she was incarcerated at Carroll County Jail . The only involvement Sheriff Langley had with Ms . Thompson's medical care was in his oversight of the County's medical services contract with CorrectHealth . However, there is no evidence that Sheriff Langley interfered in any way with CorrectHealth's performance of that contract, or that he failed to ensure its proper implementation . Neither is there any evidence that Sheriff Langley implemented a policy that contributed to Ms . Thompson's allegedly inadequate care . Plaintiff suggests that Langley failed to properly supervise or train his deputies, or CorrectHealth personnel, in their provision of medical services . (Pl .'s Br . [56] at 12 .) A failure to supervise claim may arise where there is "a history of widespread abuse" that "puts the responsible supervisor on notice of the need to correct the alleged [conduct] ." Hartley v . Parnell, 193 F .3d 1263, 1269 (11th Cir . 1999) . However, there is no evidence that Sheriff Langley was aware of any previous violations regarding medical treatment, or that he was otherwise aware of a need for additional training or supervision of jail staff or CorrectHealth personnel . 20 AO 72A (F ev.8182) ~ Finally, Sheriff Langley is entitled to qualified immunity . Qualified immunity confers complete protection upon government officials sued in their individual capacities unless their conduct "`violate[s] clearly established statutory or constitutional rights of which a reasonable person would have known ."' Wilson, Vinyard v . . .311 F .3d 1340, 1346 (11th Cir . 2002) (quoting . Harlow v . Fitzgerald, 457 U .S . 800, 818 (1982)) . . An official is entitled to qualified immunity if an objectively reasonable official in the same situation could have believed that his actions were lawful . Id . (citing Anderson v . Creighton, 483 U .S . 635, 638-41 (1987 ) ) . Qualified immunity allows government officials to carry out their discretionary duties without fear of personal liabilityy or harassing litigation and protects from suit, "all but the plainly incompetent or one who is knowingly violating the federal law ." Vinya rd, 31 1 F .3d at 1346 (quoting Lee - v . Ferraro, 284 F .3d 1188, 1194 (11 t h Cir . 20Q2)) . To rece i ve qualif i ed immunity, a public official must first demonstrate that he was acting within the scope o f his d i scretionary authority when the allegedly wrongful acts occurred . Id . Once the defendant meets this requirement, the burden shifts , to the plaintiff to show that qualified immunity is not appropriate . .Id . There is no question that Sheriff Langley was acting within 21 AO 72A (~iev.s~s2) I his discretionary authority inn training and supervising his subordinates at the Carroll County Jail, and in ensuring that the CorrectHea].th contract for medical services- was properly . implemented . See Andrews v . Monroe County 3d . of Ed ., Appx . 937, 940 (11th Cir . 299 Fed . 2008) (actions taken "pursuant to the performance of [an official's] duties" and "within the scope of his authority" are . within the scope of an official's discretionary authority) . Plaintiff thus has the burden of showing that qualified immunity is not appropriate, which she does not even attempt to meet . . Vinyard, 311 F .3d at 1346 . For these additional reasons, Sheriff Langley's motion for summary judgment is GRANTED . 3. Dr . Smith s Dr . Smith's personal involvement with Ms . Thompson's care was also fa i rly limited . Dr . Smith's first dec i s i on was to order a renal ultrasound on September 29, -. 2005 based on Ms . Thompson's recurrent UTZ and hematuria . (Smith Dep . [53] at 29-31 .) Because the ultrasound results were inconclusive and showed a potential mass, Dr . Smith ordered a CT scan of Ms . Thompson's abdomen and 5 Plaintiff filed a motion to amend P .A .,Rose and Dr . Smith as the real parties Am . [42] .) Plaintiff claims that the defendants became clear through discovery . her complaint to name in interest . (Mot . to identities of these (Id . at 1-2 .) Pursuant to Federal Rule of Civil Procedure 15(a), the Court GRANTS plaintiff's motion . See FED . R . Civ . P . 15(a) (leave to amend shall be "freely give[n] when justice so requires") . 22 Ad 72A (Rev.8182) . pelvis : (Id . at 35-38 .) Dr . Smith scheduled Ms . Thompson for the. First' available appointment with the off-s i te CT scan and the testwas actually performed on October 20th . 42 .) When Dr . Smith rece i ved the CT scan results,, facility, (Id . at 41he accurately diagnosed Ms . Thompson with renal cell carcinoma, and recommended that she be referred to a hematologist/oncologist . (Id . at 48-49 .) However, Ms . Thompson was then released from jail . ( I d . at 48-49 .) As with Sheriff Langley, there is no evidence that any of Dr . Smith's personal actions negatively affected Ms . Thompson's treatment or care . Indeed, plaintiff's expert Dr . Oladele does not challenge the efficacy of Dr . . Smith's decisions . (Oladele Dep . [53] at 25-28 .) Although Dr . Oladele indicatedthat the CT scan should have been performed sooner, the short delay here does not amount to deliberate indifference . See Harris, 941 F .2d at 1505 (noting that a mere difference in medical opinion or even evidencee of malpractice will not support constitutional liability) . With regard to supervisory liability, there is no evidence that Dr . Smith failed to supervise his CorrectHealth subordinates or that such failure caused a constitutional violation . There is no suggestion that Dr . Smith was aware of any problems with the provision of medical services by CorrectHealth personnel at,Carroll County Jail . Compare Anderson v : City of Atlanta, 778 F .2d 678, 686 (11th Cir . 1985) (finding supervisor liability appropriate where 23 AO 72A the supervisor had received numerous complaints about inadequate staffing and failed to take action) . Neither is there any evidence of any policy or procedure, implemented by . Dr . Smith, that could have negatively affected Ms . Thompson's care . In addition, like Sheriff Langley, Dr . Smith is entitled to qualified immunity . Although Dr . Smith is not a traditional state actor, while providing care to Ms . Thompson he was performing "a function that traditionally falls within the exclusive purview of a state entity ." Adams, 61 F .3d at 1543 n .2 (citing An cata v . Prison Health Servs ., Inc ., 769 F .2d 700 (11th Cir . 1985)} . . A qualzfied immunity analysis is therefore appropriate . Id . (applying qualified immunity analysis to jail doctors and nurses employed by private health services company) . Dr . Smith was acting within his discretionary authority in scheduling and interpreting a series of medical tests to diagnose . Ms . Thompson's condition . Id . at 1545 . Plaintiff has not presented any evidence that Dr . Smith's decisions were "plainly incompetent" or that he "knowingly violated" plaintiff's constitutional rights . Vinyard, 311 F .3d at 1346 . As Dr . Smith is entitled to qualified immunity, and none of his actions rise to the , level of a constitutional violation, his motion forr summary judgment should be GRANTED . 24 AO 72A {ReuBl82} 4 . Mr . P .A . Rose Rose is a registered nurse with a phys i c i an's assistant certificate . (Rose Dep . [53] at 5 u 6 .) He worked for CorrectHealth at the Carroll County Jail three days a week during the relevant t i me period . (Id . at 8 .) Although Rose was more personally involved in Ms . Thompson' s care, he i s ent i tled to summary j udgme nt for the same reasons as discussed above : none of actions v i olated Ms . Thompson's his i ndiv i dual l constitutional rights and he is entitled to qualified immun i ty . P .A . Rose saw Ms . Thompson initially on August 10th, when he performed a complete physical . Noth i ng in the physical suggested kidney problems . (Rose Dep . . Rose examined compla i n t [53] at 20-21 .) The next time P . . A . Ms . Thompson was . on September 26th, follow i ng her of blood in her ur i ne and flank pain .. Based on her symptoms, Rose suspected that Ms . (Id, at 18 .) Thompson had a UPI or kidney stones . ( Id . at 19-20 .) He p r escr i bed Ms . Thompson an antibiotic and a strainer painkiller . (Id . at 20 .) He also gave her a t o catch any stones that she might pass . i, (Id .) Rose exam i ned Ms . Thompson again on September 30th, when she compla i ned of blood and blood clots in her urine . (Id, at 22-23 .) He noted that a renal ultrasound had been performed the day before, ad m itted her into pain medication . the , inf i rmary for observation, and prescr i bed (Id . at 23-24, 31 .) He did an i nfirmary follow- 25 AO 72A ~~~v.a~sz~ , up .October. 3rd, during which he performed another physical exam, noted her pain level and condition, prescribed nausea medication, and planned to continue observing Ms . ultrasound results . (Id . Thompson pend i ng - the at 27-28 .) When the ultrasound results were returned, Rose examined Ms . Thompson, took notes with regard to her condition, and referred her to Dr . Smith for further testing . (Id . at 28-31 .) infirmary on October 5th . Rose discharged Ms . Thompson from the (Id . at 30, 32 .) Rose saw Ms . Thompson again on October 10th . During that visit, he noted her right and left flank pain and continued blood in the urine . (Id . at 34-36 .) He also noted that she was waiting for a CT scan and that an ultrasound had been performed . (Id .) Upon physical examination, he noted that there was no mass in her abdomen, that she appeared alert, and that she was not in any acute distress . (Rose Dep . [53 ] at 37 .) Rose wrote her another pain prescription and gave her medication for nausea . (Id .) On October 17th, when Ms . Thompson returned to the infirmary with pain, Rose readmitted her for better pain management . (Id . at 39 .) He saw Ms . Thompson again on October 19th and noted that she was resting with no complaints and that the CT scan was scheduled for the next , day . (Id .) Dr . Oladele does not single out any of P .A . Rose's actions as improper, but he argues that more should have been done for Ms . 26 AO 7zA (A eu Bl82) Thompson's pain and that the diagnostic process should have occurred faster . (Oladele Dep . [63] at 25-28 .) Similar to plaintiff's claims against Dr . Smith, these are only challenges to Rose's decisions involving medical d i scret i on and expertise, which, cannot form the basis of a constitutional claim . See Harris, 941 F .2d at 1507 (explaining that a difference in medical opinion or mere negligence in treatment or diagnosis does not support a constitutional violation) . Moreover, none of the acts listed above was such that Rose should have recognized that he was vioiating Ms . Thompson's rights or being deliberately indifferent to her needs . See Adams, 61 F .3d at 1543 . . As a result, P .A . Rose i s entitled to qualified immunity . For these additional reasons, Rose's motion for summary judgment should be GRANTED . 5. . CorrectHealth Plaintiff's constitutional claims against CorrectHealth also fail because there is no evidence whatsoever to connect any act of CorrectHealth to the alleged constitutional violation . . The policies implemented by CorrectHealth required a staff member to be at the medical center twenty-four hours a - day, seven days a week . (Rose Dep . [53] at 9 and Oladele Dep . [63] at -T00 - Ol .) There is no evidence that any lower level provider had problems contacting or receiving a response from CorrectHealth supervisor Dr . Smith, and the record demonstrates significant notation and care with regard 27 AO 72A (Rev 8182) ~ to inmates' medical files and requests . Neither has plaintiff produced any evidence that could subject CorrectHealth to supervisory liability . There is no evidence that CorrectHealth knew of a problem that it failed to remedy, especially a problem rising to . the level of deliberate indifference . As the Court has explained, the main allegations and evidence merely suggest a minor difference in medical opinion, which does not suffice to establish liability . Given the complete lack of any ev i dence t o support liability against CorrectHea l th, plaintiff essentially contends that there t must have been a harmful policy, or some other failing, because Ms . Thompson d i d not receive proper care . However, one cannot assume . the existence of a harmful policy simply b e caus e harm See Brown v . City of Clewiston, occurred . 848 F .2d 1534, 1540-41 (11th Cir . 1988) (holding that an unconstitutional policy could not be inferred from the "scintilla" of evidence presented by plaintiff) . Accordingly, and for this additional reason, CorrectHealth's motion for summary judgment should be GRANTED . III . Plaintiff ' s State Law Claims When a federal-court has dismissed all b-f the federal claims over which it has original jurisdiction, it may decline to exercise supplemental jurisdiction over any remaining state law claims . See McCulloch v . PNC Bank, Inc ., 298 F .3d 1217, 1227 (11th Cir . 2002) 28 AO 72A (Rev 8182) r..rn.rr (citing 28 U .S .C . § 1367 (c) (3) ) . Indeed, the Supreme Court has directed lower federal courts to avoid , "needless decisions of state law," especially when federal claims are dismissed before trial . United Mine Workers v . Gibbs, 383 . U .S . 715, 726 (196 .6) Here, the Court has dismissed all of plaintiff's federal claims, and the remaining claims involve relatively complex decisions of state law . Accordingly, the Court DISMISSES without prejudice GRANTS defendant plaintiff's remaining state law claims . CONCLUSION For thee foregoing reasons, the Court CorrectHealth's Motion for an Extension of Time to Respond [44], GRANTS plaintiff's Motion for an Extension of Time to Respond [52], GRANTS plaintiff's Motion to Amend the Complaint [42], GRANTS defendant CorrectHealth's Second Motion for Summary Judgment [47], DENIES as moot GorxectHealth's First Motion for Summary : Judgment [29], and GRANTS Carroll County's Motion for Summary Judgment [48] . The Clerk is directed to close this action . SO ORDERED, this ~ay of September, 2009 . ULC EE . CARNES CH F UNITED STATES DISTRICT JUDGE 29 AO 72A (Fiev.8182)
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