DIXON v. STARLING, et al

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
COLUMBUS DIVISION
FREDERICK DOUGLAS DIXON, 	:
:
Plaintiff, 	:
:
v. 	: 	Case No. 4:23-cv-24-CDL-AGH
:
RETINA MARIE JONES, et al., 	:
:
Defendant. 	:
_________________________________ 	:
REPORT AND RECOMMENDATION
Pending before the Court are Defendants Retina Marie Jones, Darryl Starling,
and Letitia Burks’ motions for summary judgment (ECF No. 100, 103). 	For the
reasons stated below, it is recommended that Defendants’ motions be granted.
PROCEDURAL BACKGROUND
Plaintiff’s claims arise from his confinement at Rutledge State Prison (“RSP”).
Am. Compl. 2-3, ECF No. 44. 	Plaintiff alleges that as a result of a slow-draining
shower, his feet became infected. 	Id. at 5. 	He contends that Starling—who was a
maintenance engineer at RSP—was deliberately indifferent to his safety by not fixing
the drainage issue and that Burks—who was RSP’s deputy warden for care and
treatment at RSP—was deliberately indifferent to his safety by not adequately
supervising her subordinates to ensure the drainage problem was fixed. 	Id. at 2, 5;
Pl.’s Objs. 10-11, ECF No. 51. 	Plaintiff also alleges that Jones—a Nurse Practitioner
at RSP—was deliberately indifferent to his serious medical needs by providing
inadequate medical care for his infection. 	Am. Compl. 6-7.
Plaintiff originally filed his complaint in the United States District Court for
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the Northern District of Georgia on January 19, 2023. 	Compl. 1, ECF No. 1. 	The
Northern District transferred the case to this court on February 10, 2023. 	Order 2,
ECF No. 3. 	The Court received Plaintiff’s first recast complaint (ECF No. 7) on April
6, 2023, and his second recast complaint (ECF No. 9) on April 14, 2023. 	The second
recast complaint identified Starling, Jones, and Burks as defendants. 	2d Recast
Compl. 1, ECF No. 7. 	It asserted a deliberate indifference to safety claim against
Starling, a deliberate indifference to a serious medical need claim against Jones, a
medical malpractice claim against Jones, deliberate indifference and equal protection
claims against Burks, and retaliation claims against unspecified prison officials. 	See
generally, 2d Recast Compl. 	Upon preliminary screening, Plaintiff’s deliberate
indifference to safety claim against Starling and his deliberate indifference to a
serious medical need claim against Jones were allowed to proceed for further factual
development. 	Order & R. 9, May 30, 2023, ECF No. 13. 	His remaining claims—
including his retaliation claims and claims against Burks—were dismissed. 	Id.;
Order, July 14, 2023, ECF No. 21 (adopting recommendation).
On September 1, 2023, Plaintiff filed a motion to amend his complaint (ECF
No. 34) and submitted the proposed amended complaint (ECF No. 41). 	Because
Plaintiff was entitled to amend his complaint as a matter of course, the Court granted
Plaintiff’s 	motion 	to amend, 	adopted the 	proposed amended 	complaint 	as 	the
operative pleading in the case, and then conducted a preliminary screening of
Plaintiff’s amended complaint. 	Order & R. 8-15, Nov. 6, 2023, ECF No. 42. 	In his
amended 	complaint, 	Plaintiff 	identified 	Starling, 	Jones, 	Burks, 	the 	WellPath
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Company (“WellPath”), and the Georgia Department of Corrections (“GDC”) as
defendants. 	Am. Compl. 1, ECF No. 44. 	Plaintiff re-asserted his deliberate
indifference to safety claim against Starling. 	Id. at 4-5. 	As to Jones, Plaintiff re-
asserted his deliberate indifference to a serious medical need claim. 	Id. at 6-7. 	He
also re-asserted a previously dismissed medical malpractice claim against Jones and
added an equal protection claim. 	Id. at 4 ,8. 	Plaintiff identified WellPath as Jones’s
employer and alleged that it violated his constitutional rights by failing to adequately
train its staff. 	Id. at 3. 	He also stated that WellPath violated his equal protection
rights. 	Id. at 8. 	He alleged that the GDC is liable for failing to “oversee the people
who caused the constitutional violation, by hiring unqualified people.” 	Am. Compl.
3. 	He also contended that the GDC was deliberately indifferent to his health and
safety because it failed to correct the plumbing problems at RSP despite its actual
knowledge the conditions. 	Id. at 7. 	Finally, although Plaintiff identified Burks as
a defendant, his only specific mention of her in the body of the amended complaint
was a statement that she was the Deputy Warden of Care and Treatment at RSP.
Id. at 2. 	He made no specific allegations that she violated his constitutional rights.
On November 6, 2023, the Court recommended that Plaintiff’s newly asserted
claims—including those against Burks—be dismissed. 	Order & R. 11-12, 16. 	The
Court received Plaintiff’s objections (ECF No. 51) to the recommendation on January
16, 2024. 	In his recommendation, he provided specific allegations against Burks,
including an assertion that she was deliberately indifferent by not adequately
supervising her subordinates to ensure the drainage problem was fixed. 	Pl.’s Objs.
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10-11. 	On January 19, 2024, the recommendation was adopted in part and rejected
in part (ECF No. 52). 	Plaintiff’s newly asserted claims were dismissed, except that
Plaintiff’s deliberate indifference to safety claim against Burks was allowed to
proceed. 	Order 2, Jan. 19, 2024, ECF No. 52.
Jones answered the amended complaint on January 22, 2024 (ECF No. 55),
and Burks and Starling answered on March 22, 2024 (ECF No. 59). 	On August 20,
2025, Jones moved for summary judgment and judgment on the pleadings (ECF No.
100), and Burks and Starling moved for summary judgment (ECF No. 103) on
September 2, 2025.1 	Plaintiff timely responded (ECF Nos. 107, 112) and Jones filed
a reply (ECF No. 111). 	Defendants’ motions are ripe for review.
DISCUSSION
Defendant Jones filed a combined motion for judgment on the pleadings and
motion for summary judgment (ECF No. 100) and Defendants Burks and Starling
filed a motion for summary judgment (ECF No. 103). 	All three Defendants base
their summary judgment motions, in part, on Plaintiff’s failure to exhaust his
administrative remedies. 	Because exhaustion is a “threshold matter” that must be
decided prior to considering the merits of the case, the Court first addresses
exhaustion. 	Chandler v. Crosby, 379 F.3d 1278, 1286 (11th Cir. 2004).
1 The case was stayed from January 10, 2025, until June 16, 2025, due to WellPath’s bankruptcy (ECF
Nos. 80, 86).
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I. 	Exhaustion
A. 	Exhaustion Standard
The Prison Litigation Reform Act (“PLRA”) provides that “[n]o action shall be
brought with respect to prison conditions under section 1983 of this title . . . by a
prisoner 	confined 	in 	any 	jail, 	prison, 	or 	other 	correctional 	facility 	until 	such
administrative remedies as are available are exhausted.” 	42 U.S.C. § 1997e(a).
When a grievance procedure is provided for prisoners, “an inmate alleging harm
suffered from prison conditions must file a grievance and exhaust the remedies
available under that procedure before pursuing a § 1983 lawsuit.” 	Brown v. Sikes,
212 F.3d 1205, 1207 (11th Cir. 2000) (emphasis added). 	“To exhaust administrative
remedies in accordance with the PLRA, prisoners must properly take each step within
the administrative process. 	If their initial grievance is denied, prisoners must then
file a timely appeal.” 	Bryant v. Rich, 530 F.3d 1368, 1378 (11th Cir. 2008) (internal
citation and quotation marks omitted). 	“Proper exhaustion demands compliance
with an agency’s deadlines and other critical procedural rules because no adjudicative
system can function effectively without imposing some orderly structure on the course
of its proceedings.” 	Woodford v. Ngo, 548 U.S. 81, 90-91 (2006).
“The level of detail necessary in a grievance to comply with the grievance
procedures will vary from system to system and claim to claim, but it is the prison’s
requirements, and not the PLRA, that define the boundaries of proper exhaustion.”
Jones v. Bock, 549 U.S. 199, 218 (2007). 	“The critical function of the grievance
process is that it provides the institution with notice of a problem such that they have
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an opportunity to address the problem internally.” 	Toenniges v. Ga. Dep’t of Corr.,
600 F. App’x 645, 649 (11th Cir. 2015).
“Because exhaustion of administrative remedies is a matter in abatement and
not generally an adjudication on the merits, an exhaustion defense . . . is not
ordinarily the proper subject for a summary judgment; instead, it should be raised in
a motion to dismiss, or be treated as such if raised in a motion for summary
judgment.” 2 	Bryant, 530 F.3d at 1374-75 (internal quotation marks omitted).
Further, since dismissal for failure to exhaust is not an adjudication on the merits,
the Court can resolve factual disputes using evidence from outside the pleadings. 	Id.
at 1376.
“[D]eciding a motion to dismiss for failure to exhaust administrative remedies
is a two-step process.” 	Turner v. Burnside, 541 F.3d 1077, 1082 (11th Cir. 2008).
“First, the court looks to the factual allegations in the defendant’s motion to dismiss
and those in the plaintiff’s response, and if they conflict, takes the plaintiff’s version
of the facts as true.” 	Id. 	If, taking plaintiff’s facts as being true, the defendant is
entitled to dismissal for failure to exhaust, then the complaint should be dismissed.
Id. 	“If the complaint is not subject to dismissal at the first step . . . the court then
proceeds to make specific findings in order to resolve the disputed factual issues
2 Such is the case here. 	Therefore, although Defendants argue exhaustion in summary judgment
motions, it will be treated as if raised in a motion to dismiss. 	Burks and Starling specifically raised
exhaustion as a defense in their answer, so it is not waived. 	Burks & Starling Answer 2, ECF No. 59;
see Black v. Camon, No. 7:06-cv-75-HL, 2008 WL 2119914, at *2 (M.D. Ga. May 19, 2008) (finding
exhaustion was not waived and could be asserted in a motion for summary judgment because
defendants raised it as a defense in their answer); see also Gomez v. Jackson, No. 1:18-cv-963, 2020
WL 4048061, at *9 n.9 (N.D. Ga. July 20, 2020) (citing cases to illustrate that “the Eleventh Circuit
routinely affirms orders granting post-answer motions to dismiss (styled as motions for summary
judgment) for lack of exhaustion”).
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related to exhaustion.” 	Id. 	The defendant bears the burden of proof during this
second step. 	Id. 	In resolving the factual dispute, a Court is authorized to make
credibility determinations. 	See Bryant, 530 F.3d at 1377-78 (finding that district
court did not clearly err in determining that plaintiff’s allegation that he was denied
access to grievance forms was not credible); see also Whatley v. Smith, 898 F.3d 1072,
1082-83 (11th Cir. 2018) (upholding district court finding that one of inmate’s
grievances was not filed).
A prisoner need only exhaust administrative remedies that are available.
Ross v. Blake, 578 U.S. 632, 642 (2016). 	In Ross, the Supreme Court held that an
administrative procedure is unavailable under the PLRA when either (1) “it operates
as a simple dead end—with officers unable or consistently unwilling to provide any
relief to aggrieved inmates,” (2) it is “so opaque that it becomes, practically speaking,
incapable 	of 	use,” 	or 	(3) 	“prison 	administrators 	thwart 	inmates 	from 	taking
advantage 	of 	a 	grievance 	process 	through 	machination, 	misrepresentation, 	or
intimidation.” 	Id. at 643-44. 	For a remedy to be available, it “must be capable of
use for the accomplishment of its purpose.” 	Turner, 541 F.3d at 1084 (quotation
marks omitted). 	The burden is on the defendant to show that an administrative
remedy is available, but “once that burden has been met, the burden of going forward
shifts to the plaintiff, who . . . must demonstrate that the grievance procedure was
subjectively and objectively unavailable to him.” 	Geter v. Baldwin State Prison, 974
F.3d 1348, 1356 (11th Cir. 2020) (internal quotation marks omitted) (citing Turner,
541 F.3d at 1085). 	District courts must use the two-step Turner analysis when
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addressing the availability of the grievance process. 	See Jenkins v. Sloan, 826 F.
App’x 833, 839 (11th Cir. 2020) (directing district courts to apply “the two-step Turner
test when addressing the question of exhaustion and the availability of the grievance
process”).
B. 	RSP Administrative Procedures
Defendants 	submitted 	the 	declaration 	of 	Taylor 	Turnage—whose
responsibilities include overseeing the grievance process at RSP—to establish that
administrative remedies were available to Plaintiff at RSP. 	Turnage Decl. ¶¶ 2-3,
ECF No. 103-3. 	According to Turnage, RSP follows the Georgia Department of
Corrections (“GDC”) Standard Operating Procedure 227.02 (the “SOP”) regarding
grievances. 	Id. ¶ 3.
The SOP mandates that an inmate must follow a two-step process in order to
exhaust his remedies: (1) file an original grievance no later than ten days from the
date the inmate knew or should have known of the facts giving rise to the grievance;
and (2) file an appeal to the Central Office. 	Turnage Attach. 1, at 8, ECF No. 103-4.
After a grievance is filed, the grievance coordinator will screen the grievance and
accept it for processing or recommend rejection of the grievance for one of the reasons
enumerated in the SOP, including raising a non-grievable issue, untimeliness, or
raising more than one issue. 	Id. at 9. 	If a grievance is accepted, the Warden has
forty calendar days from the date the offender submitted the grievance to respond,
though a one-time ten-day extension may be granted. 	Id. at 11. 	An inmate may file
an appeal within seven days after the Warden issues a decision or after the time
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allowed for the warden to decide expires. 	Id. at 14. 	The Commissioner has one
hundred and twenty days within which to respond to a grievance appeal. 	Id. at 15.
Pursuant to the SOP, an inmate “may file a grievance about any condition,
policy, procedure, or action or lack thereof that personally affects the Offender.” 	Id.
at 4. 	This includes grievances alleging retaliation. 	Turnage Attach. 1, at 5.
However, an inmate is limited to two active grievances. 	Id. at 6. 	If a new grievance
would exceed this limit, the grievance coordinator will alert the inmate and give him
the option of dropping one grievance. 	Id.
C. 	Plaintiff’s Grievances
According to Turnage, Plaintiff submitted Grievance Number 339745 on
June 8, 2022. 	Turnage Decl. ¶ 13; Turnage Attach. 6, at 8, ECF No. 103-9. 	In this
grievance, Plaintiff stated that the downstairs shower in his unit was not draining
correctly and that “waste materials from the sewage water has attack my feet to cause
injury from the parasitic in the form of mold organisms and/or mildews.” 	Turner
Attach. 6, at 8. 	In response to the grievance, Starling provided a statement
indicating that he had inspected the shower on June 13, 2022, and let it run for
twenty-five minutes with Plaintiff watching. 	Id. at 6. 	According to Starling, the
shower had no problem draining and the shower was “working fine.” 	Id. 	On July
8, 2022, Burks responded to the grievance by summarizing Starling’s statement and
denying the grievance. 	Id. at 4. 	Plaintiff appealed the grievance denial, but it was
again denied by the Central Office. 	Id. at 1, 5.
Plaintiff filed Grievance Number 341150 on July 11, 2022. 	Turnage Decl. ¶
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13; Turnage Attach. 7, at 4, ECF No. 103-10. 	In this grievance, Plaintiff alleged that
on July 6, 2022, the downstairs toilets and shower in his building overflowed, causing
waste and sewage to flood the downstairs cells. 	Turnage Attach. 7, at 4. 	He
requested reimbursement for shoes that were ruined while he helped clean up the
sewage. 	Id. 	On August 22, 2022, Burks denied the claim, noting that an officer had
provided a statement indicating that he had examined Plaintiff’s shoes and they were
not damaged. 	Id. at 3. 	Plaintiff appealed the grievance denial, but it was denied
by the Central Office. 	Id. at 1-2.
Plaintiff filed another conditions of confinement grievance on August 24, 2022.
Turnage Decl. ¶ 13; Turnage Attach. 5, at 4, ECF No. 103-8; Turnage Attach. 2, at 2,
ECF No. 103-5. 	In Grievance Number 342820, Plaintiff complained that he had been
attacked by another inmate and subsequently requested protective custody, but it
was denied by Lieutenant James. 	Turnage Attach. 5, at 4. 	Deputy Warden of
Security Moses provided a statement in connection with the grievance investigation,
stating under oath that Plaintiff had assaulted the other inmate and that protective
custody was not justified due to his aggressive behavior. 	Id. at 8. 	On September 8,
2022, Burks denied the grievance, citing Moses’s statement. 	Id. at 3. 	Plaintiff
appealed the denial, but it was denied by the Central Office. 	Id. at 1-2.
Burks 	also 	addressed 	other 	grievances 	filed 	by 	Plaintiff, 	including 	two
grievances filed on December 15, 2021—Grievance Numbers 33341 and 33342—
wherein Plaintiff complained about needing a combination lock and not being
provided soft shoes. 	Turnage Attach. 3, at 1, ECF No. 103-6; Turnage Attach. 4, at
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1, ECF No. 103-7. 	According to Plaintiff’s grievance history, he filed no grievances
alleging retaliation at RSP from June 8, 2022, until he filed his complaint in this case.
Turnage Attach. 2, at 1-3.
D. 	Defendant Jones
As noted, Jones asserts that Plaintiff’s claims against her should be dismissed
because he failed to exhaust his administrative remedies by filing a grievance about
the medical treatment for his feet. 	Jones Br. in Supp. of Mot. for Summ. J. 17-19,
ECF No. 100-1. 	However, Jones waived an exhaustion defense by not raising it in
her first responsive pleading. 	See Brooks v. Warden, 706 F. App’x 965, 969-70 (11th
Cir. 2017) (finding exhaustion defense waived because not raised in defendant’s first
motion to dismiss); Wymbs v. Smith, No: 5:22-cv-220-MTT-CHW, 2024 WL 647804,
at *3 (M.D. Ga. Jan. 19, 2024) (finding that defendants waived exhaustion defense by
not raising it in their answer); recommendation adopted by 2024 WL 643542 (M.D.
Ga. Feb. 15, 2024). 	Jones’s first responsive pleading was her answer filed on
January 22, 2024 (ECF No. 55). 	While she raised numerous defenses, none of them
asserted a failure to exhaust administrative remedies. 	Jones Answer 1-3, ECF No.
55. 	Therefore, she is not entitled to dismissal based on Plaintiff’s failure to exhaust.
E. 	Defendants Burks and Starling
In their joint brief, Burks and Starling argue that Plaintiff “has failed to
exhaust administrative remedies for all claims against Defendants Starling and
Burks[.]” 	Burks & Starling Br. in Supp. of Mot. for Summ. J. 8, ECF No. 103-2.
However, they only provide reasons for why claims against Burks are unexhausted
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without any substantive discussion about the deliberate indifference to safety claim
against 	Starling. 	Id. 	at 	7-10. 	In 	any 	event, 	the 	Court 	finds 	that 	Plaintiff
adequately 	exhausted his 	administrative remedies 	as 	it 	pertains 	to 	Plaintiff’s
deliberate indifference to safety claims against Burks and Starling arising from the
drainage issues. 	Grievance Numbers 339745 and 341150 raised this issue, and
Plaintiff appealed both grievance denials. 	Turnage Attachs. 6-7. 	Therefore, Burks
and Starling are not entitled to dismissal for failure to exhaust on Plaintiff’s
deliberate indifference to safety claims arising from the drainage issue.
However, Burks and Starling interpret Plaintiff’s amended complaint—as
supplemented by his objections to the Court’s November 6, 2023 recommendation—
as asserting a retaliation claim against Burks. 	Burks & Starling Br. in Supp. of Mot.
for Summ. J. 1. 	Although Plaintiff’s objections asserted that Burks retaliated
against him by denying numerous grievances, including those unrelated to the claims
in the case such as denial of protective custody and not providing soft shoes, the Court
only allowed Plaintiff’s claim against Burks for deliberate indifference to safety
arising from the drainage issues—which was the sole subject of the allegations
against Burks and Starling in his amended complaint—to proceed for further factual
development. 	Pl.’s Objs. 10; Order 2, Jan. 19, 2024. 	Nevertheless, because
Defendants raise retaliation in their motion for summary judgment, and Plaintiff
indicated in his deposition that his suit against her was “mostly retaliation” based on
her denial of grievances, the Court will address it. 	Pl.’s Dep. 68:8, 80:21-25, ECF No.
103-13.
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Burks asserts that Plaintiff failed to exhaust his administrative remedies
regarding his retaliation claim because he never filed a grievance alleging retaliation
by Burks or filing grievances about her denial of his multiple grievances. 	Burks &
Starling Br. in Supp. of Mot. for Summ. J. 3, 6, 9. 	In his response to Defendants’
motion, Plaintiff does not assert that he filed a grievance alleging retaliation by
Burks. 	Pl.’s Resp. to Burks & Starling Mot. for Summ. J. 9-18, ECF No. 112.
Instead, as discussed below, Plaintiff contends that administrative remedies were
unavailable. 	Id. 	Therefore, the Court can resolve the exhaustion issue at the first
step 	of 	the 	Turner 	analysis 	and 	conclude 	that 	Plaintiff 	did 	not 	exhaust 	his
administrative remedies on a retaliation claim. 	Further, even if the Court proceeded
to the second Turner step, the evidence shows that Plaintiff filed no grievance against
Burks for retaliation.
However, Plaintiff does assert that administrative remedies were unavailable
at RSP, which is sufficient to satisfy the first step of the Turner test. 	Therefore, the
Court will proceed to the second step of the Turner analysis and make specific
findings to resolve disputed factual issues related to unavailability. 	See Jenkins, 826
F. App’x at 839.
Regarding the initial burden under Turner, a defendant only needs to show
that a remedy was “generally available (i.e. a grievance procedure exists).” 	Wright
v. Ga. Dep’t of Corr., 820 F. App’x 841, 845 (11th Cir. 2020)). 	A defendant is not
required to show that “a remedy was available to [a plaintiff] practically speaking.”
Id. 	Once the defendant satisfies this initial burden, “the burden of going forward
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shifts to the plaintiff, who . . . must demonstrate that the grievance procedure was
subjectively and objectively unavailable to him.” 	Geter, 974 F.3d at 1356 (internal
quotation marks and citation omitted). 	Here, the Court concludes that Defendants
have shown that an administrative remedy was generally available to inmates at
RSP—including 	Plaintiff—through 	Turnage’s 	declaration, 	Plaintiff’s 	multiple
grievances, and Plaintiff’s own grievance history. 	See Wright, 820 F. App’x at 845.
Second, the Court finds that Plaintiff fails to meet his burden of showing the
remedy was subjectively or objectively unavailable to him. 	Plaintiff asserts various
reasons as to why administrative remedies were unavailable to him. 	He cites the
GDC two-active grievance rule, which requires an inmate with two active grievances
to drop one if he wishes to file another. 	Pl.’s Resp. to Burks & Starling Mot. for
Summ. J. 10; Turnage Attach. 1, at 6. 	However, the fact that Plaintiff had to
“prioritize his grievances” under the two-active grievance requirement did not render
his administrative remedies unavailable. 	Pearson v. Taylor, 665 F. App’x 858, 867-
68 (11th Cir. 2016) (rejecting inmate’s argument that GDC’s policy of limiting
inmates to two active grievances rendered the administrative remedy unavailable);
Phillips v. Deal, No: 5:15-cv-00249-MTT-CHW, 2016 WL 5539772, at *5 (M.D. Ga.
July 25, 2016) (“The fact that the grievance procedure did not allow for more than
two grievances to be pending at a time did not render his administrative remedies
unavailable.”), recommendation adopted by 2016 WL 5660450 (M.D. Ga. Sept. 28,
2016).
Plaintiff also contends that the grievance procedures were “a simple dead end
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because Defendant Burks was unable or consistently unwilling to provide any relief
to aggrieved inmates.” 	Pl.’s Resp. to Burks & Starling Mot. for Summ. J. 10.
However—even assuming Burks would have decided a retaliation grievance against
herself—Plaintiff submits no evidence other than the fact that his grievances were
denied to support his assertion that the grievance procedures acted as a dead end.
Further, the evidence shows that each grievance was investigated and not summarily
denied. 	Turnage Attach. 3, at 3-4; Turnage Attach. 4, at 6-15; Turnage Attach. 5, at
5-11; Turnage Attach. 6, at 2-3, 6-7; Turnage Attach. 7, at 5-6. 	Therefore, Plaintiff’s
argument is insufficient to show that administrative remedies were subjectively or
objectively unavailable to him. 	See Hill v. Berry, No. 5:21-cv-00379-TES-CHW, 2023
WL 2985146, at *4 (M.D. Ga. Jan. 27, 2023) (rejecting plaintiff’s argument that
administrative remedies were unavailable “simply” because they were denied, noting
that each was investigated stating that “[e]ven when a process is futile, exhaustion
is still required under the PLRA” (citing Garcia v. Obasi, No. 21-12919, 2022 WL
669611, at *4 (11th Cir. March 7, 2022)), recommendation adopted by 2023 WL
2347436 (M.D. Ga. Mar. 3, 2023).
Plaintiff further contends that administrative remedies were unavailable
because Defendants created “an institution-wide hostile environment of retaliation
and of routinely denying grievances, with frustration and fear arising from the
grievance 	process.” 	Pl.’s 	Resp. 	to 	Burks 	& 	Starling 	Mot. 	for 	Summ. 	J. 	16.
Presumably, Plaintiff is raising the third Ross category of unavailability based on
intimidation. 	However, Plaintiff alleges no facts to establish that he was unable to
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file a grievance against Burks based on intimidation. 	He does not cite any attempt
to file a grievance which was thwarted by intimidation or identify any officers whose
intimidation deterred him from filing a grievance for retaliation. 	Plaintiff’s vague,
conclusory allegations are insufficient to create a factual dispute as to availability.3
In summary, the Court concludes that Jones waived any exhaustion defense
and that Burks and Starling are not entitled to dismissal for failure to exhaust on
Plaintiff’s 	deliberate 	indifference 	to 	safety 	claims. 	However, 	to 	the 	extent 	a
retaliation claim against Burks is asserted in this case, the Court finds that Plaintiff
had 	available 	administrative 	remedies 	that 	he 	failed 	to 	exhaust. 	Plaintiff’s
retaliation claims against Burks should consequently be dismissed.
II. 	Summary Judgment
Starling and Burks move for summary judgment, contending that (1) Plaintiff
cannot show deliberate indifference to his safety or retaliation, (2) Plaintiff cannot
establish supervisory liability against Burks, (3) they are entitled to qualified
immunity, and (4) Plaintiff’s claims for injunctive relief are moot. 	Burks & Starling
Br. in Supp. of Mot. for Summ. J. 11-18. 	Defendant Jones argues that she is entitled
to summary judgment because (1) there is no evidence that she was deliberately
indifferent to Plaintiff’s serious medical needs, and (2) there is no evidence that she
3 Plaintiff also cites the “imminent danger exception,” seemingly to argue that the exhaustion
requirement was excused. 	Pl.’s Resp. to Burks & Starling Mot. for Summ. J. 12. 	However, the
imminent danger exception analysis applies to a determination of whether an inmate’s claims are
barred by the three-strikes provision of 28 U.S.C. § 1915(g), not whether he exhausted his
administrative remedies. 	See, e.g., Medberry v. Butler, 185 F.3d 1189 (11th Cir. 1999); see also Hope
v. Woods, No. 2:18cv239-MHT-SRW, 2021 WL 11247680, at *5 n. 5 (M.D. Ala. Feb. 3, 2021) (“The
imminent danger exception . . . does not excuse the exhaustion requirement under the PLRA.” (internal
quotation marks omitted)), recommendation adopted by 2021 WL 11247681 (M.D. Ala. Feb. 25, 2021).
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caused Plaintiff’s injuries. 	Jones Br. in Supp. of Mot. for Summ. J. 12-17. 	The
Court agrees that Defendants are entitled to summary judgment.
A. 	Legal Standards
1. 	Summary Judgment Standard
Summary judgment may be granted only “if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” 	Fed. R. Civ. P. 56(a). 	In determining whether a genuine dispute of
material fact exists to defeat a motion for summary judgment, the evidence is viewed
in the light most favorable to the party opposing summary judgment, drawing all
justifiable inferences in the opposing party’s favor. 	Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986). 	A fact is material if it is relevant or necessary to the
outcome of the suit. 	Id. at 248. 	A factual dispute is genuine if the evidence would
allow a reasonable jury to return a verdict for the nonmoving party. 	Id.
The party seeking summary judgment “always bears the initial responsibility
of informing the district court of the basis for its motion, and identifying those
portions of the pleadings, depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, which it believes demonstrate the absence of
a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)
(internal quotation marks omitted). 	If the movant meets this burden, “[t]he burden
then shifts to the nonmoving party, who is required to ‘go beyond the pleadings’ to
establish that there is a ‘genuine issue for trial.’” 	Whitehead v. BBVA Compass
Bank, 979 F.3d 1327, 1328 (11th Cir. 2020) (quoting Celotex Corp., 477 U.S. at 324).
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This evidence must consist of more than conclusory allegations. 	See Avirgan v. Hull,
932 F.2d 1572, 1577 (11th Cir. 1991). 	In sum, summary judgment must be entered
“against a party who fails to make a showing sufficient to establish the existence of
an element essential to that party’s case, and on which that party will bear the burden
of proof at trial.” 	Celotex, 477 U.S. at 322.
2. 	Deliberate Indifference Standard
As noted previously, the Court allowed two of Plaintiff’s claims against
Defendants to proceed past preliminary review: a deliberate indifference to safety
claim against Starling and Burks and a deliberate indifference to a serious medical
need claim against Jones.
“To 	prevail 	on 	a 	deliberate 	indifference 	to 	serious 	medical 	need 	claim,
[p]laintiffs must show: (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 Inter., Inc., 588 F.3d 1291, 1306-07 (2009).
Whether a plaintiff has a serious medical need is an objective inquiry. 	Farrow v.
West, 320 F.3d 1235, 1243 (11th Cir. 2003). 	“[A] serious medical need is considered
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. (quotation marks omitted). 	Further, “the medical need must be one
that, if left unattended, poses a substantial risk of serious harm.” 	Id. (internal
quotation marks omitted). 	“[M]edical treatment violates the Constitution only when
it is so grossly incompetent, inadequate, or excessive as to shock the conscience or to
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be intolerable to fundamental fairness.” 	Dang ex rel. Dang v. Sheriff, 871 F.3d 1272,
1280 (11th Cir. 2017) (internal quotation marks omitted).
“To establish a § 1983 claim for deliberate indifference [to safety], a plaintiff
must show (1) a substantial risk of serious harm; (2) the defendants’ deliberate
indifference to that risk; and (3) causation.” 	Marbury v. Warden, 936 F.3d 1227,
1233 (2019). 	As with a serious medical need, whether a plaintiff faces a substantial
risk of serious harm is an objective inquiry, requiring a “plaintiff to show conditions
that were extreme and posed an unreasonable risk of serious injury to his future
health or safety.” 	Id. (quotation marks omitted).
To satisfy the deliberate indifference element under either claim, a “plaintiff
must demonstrate that the defendant acted with subjective recklessness as used in
the criminal law.” 	Wade v. McDade, 106 F.4th 1251, 1262 (2024) (quotation marks
omitted). 	“[T]o do so, [the plaintiff] must show that the defendant was actually,
subjectively aware that his own conduct caused a substantial risk of serious harm to
the plaintiff—with the caveat . . . that even if the defendant actually knew of a
substantial risk to inmate health or safety, he cannot be found liable . . . if he
responded reasonably to the risk.” 	Id. (quotation marks omitted).
3. 	Supervisory Liability
“It is well established in this Circuit that supervisory officials are not liable
under § 1983 for the unconstitutional acts of their subordinates on the basis of
respondeat superior or vicarious liability.” 	Christmas v. Harris Cnty., Ga., 51 F.4th
1348, 1355 (11th Cir. 2022). 	“Instead, supervisory liability under § 1983 occurs
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either when the supervisor personally participates in the alleged unconstitutional
conduct or when there is a causal connection between the actions of a supervising
official and the alleged constitutional deprivation.” 	Id. 	A causal connection can be
established if:
(1) “a history of widespread abuse puts the responsible supervisor on
notice of the need to correct the alleged deprivation and he failed to do
so”; (2) “the supervisor’s improper custom or policy led to deliberate
indifference to constitutional rights”; or (3) “facts support an inference
that the supervisor directed the subordinates to act unlawfully or knew
that the subordinates would act unlawfully and failed to stop them from
doing so.”
Hendrix v. Tucker, 535 F. App’x 803, 805 (11th Cir. 2013) (quoting Douglas v. Yates,
535 F.3d 1316, 1322 (11th Cir. 2008)).
4. 	Qualified immunity standard
“[Q]ualified immunity offers complete protection for government officials sued
in their individual capacities as long as their conduct violates no clearly established
statutory or constitutional rights of which a reasonable person would have known.”
Oliver v. Fiorino, 586 F.3d 898, 904 (11th Cir. 2009) (quotation marks omitted). 	A
defendant seeking qualified immunity must show that, at the time of the alleged
wrongful acts, “he was acting within the scope of his discretionary authority.” 	Id.
at 905. 	Once this is established, “the burden then shifts to the plaintiff to show that
the grant of qualified immunity is inappropriate.” 	Id. 	To do so, a plaintiff must
“demonstrate: first, that the facts when viewed in a light most favorable to the
plaintiff establish a constitutional violation; and, second, that the illegality of the
officer’s actions was clearly established at the time of the incident.” 	Id. 	(quotation
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marks omitted). 	Here, there is no dispute that Defendants were acting in the scope
of their discretionary authority.
B. 	Undisputed Material Facts
On June 8, 2022, Plaintiff was in the downstairs shower of his building. 	Pl.’s
Dep. 107:18-19; Pl.’s Resp. to Jones Mot. for Summ. J. 1, ECF No. 107; Pl.’s Resp. to
Burks & Starling Mot. for Summ. J. 2.4 	The shower was a single-person shower with
a drain in the middle, a curtain, and three-inch barrier around it. 	Pl.’s Dep. 103:13-
104:18. 	As Plaintiff was showering, he noticed water going over his feet and then
spilling over the three-inch barrier. 	Id. at 103:20-24, 106:14-19.
On June 8, 2022, Plaintiff filed a grievance about the shower. 	His grievance
stated that the shower “is not draining correctly during shower-call for me and the
waste materials from the sewage water has attack my feet to cause injury from the
parasitic in the form of organisms and/or mildews.” 	Turnage Attach. 6, at 8. 	He
requested that the “incident” be reported to staff so the “drainage problem” could be
fixed and also asked for a waiver of any medical payments, placement on the “chronic
care list” for his feet, and to “reinstate” his store detail. 	Id.
In response to the grievance, Starling inspected the shower in Plaintiff’s
presence on June 13, 2022. 	Id. at 6; Pl.’s Dep. 31:1-8. 	According to Plaintiff,
Starling turned the water on and let it run, and the shower “began to back up slightly.
It was backing up a little bit[.]” 	Pl.’s Dep. 31:3-5. 	Plaintiff tried to point this out,
4 Plaintiff’s responses to the summary judgment are signed “under penalty of perjury,” so the Court
may consider his factual statements therein at the summary judgment stage. 	Pl.’s Resp. to Jones
Mot. for Summ. J. 22; Pl.’s Resp. to Burks & Starling Mot. for Summ. J. 20. 	See 28 U.S.C. § 1746;
Roy v. Ivy, 53 F.4th 1338, 1344, 1347-48 (11th Cir. 2022).
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but Starling said there was nothing wrong with the shower. 	Id. at 31:6-7. 	Plaintiff
testified at his deposition that the shower drainage “was fine after about, you know,
a few minutes that he ran it.” 	Id. at 31:7-8. 	Starling then left. 	Id. at 31:10-11.
He later prepared a statement in response to Plaintiff’s grievance stating that he had
let the shower “run for about 25 minutes” and that it “didn’t have any problems
draining.” 	Turnage Attach. 6, at 6. 	He concluded by stating that the shower was
“working fine.” 	Id. 	On June 17, 2022, RSP Grievance Coordinator Jeremy Dowdell
submitted 	a 	grievance 	investigative 	report, 	citing 	Starling’s 	statement 	and
recommending 	that 	Plaintiff’s 	grievance 	be 	denied. 	Id. 	at 3. 	Burks 	denied
Plaintiff’s grievance on July 8, 2022, also citing Starling’s report. 	Id. at 4.
On July 6, 2022, the downstairs toilets and shower in Plaintiff’s building
overflowed and sewage flooded into the downstairs cells.5 	Turnage Attach. 7, at 4;
Pl.’s Dep. 33:23-34:4. 	The inmates were responsible for cleaning up the sewage, and
Plaintiff’s sneakers were damaged from walking through the waste. 	Pl.’s Dep. 31:14-
18, 32:10-14, 105:13-25. 	Plaintiff testified that drainage issues were a constant
problem in the building and that maintenance workers would try to fix the issues but
that the problems would return. 	Id. at 33:1-13. 	He stated that contractors had also
been out constantly over a year or two. 	Id. at 33:7-9, 37:13-16.
According to Plaintiff, it was the June incident that injured his feet. 	Id. at
106:23-107:7. 	He testified that “the parasites and the organism from the waste in
5 In his deposition, the Plaintiff stated the second flooding incident occurred on July 7, 2022, but in
his grievance and amended complaint, he stated it occurred on July 6, 2022. 	Am. Compl. 6; Turnage
Attach. 7, at 4.
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the sewage attached itself to [his] feet, both of [his] feet, and it began to eat [] away
the flesh of [his] feet between [his] toes, especially in [his] right foot.” 	Id. at 35:19-
23. 	He stated the waste material “must have punctured” the bottom portion of his
small toe and created a wound like a “small bite” or “hole” that over the course of two
to three weeks got bigger and bigger. 	Id. at 111:17-18, 111:24-112:7, 112:21-113:1,
113:18-20. 	Plaintiff felt “extreme pain” around his toes and the area around his
small toe “started looking greenish,” making it “irritating” for him to walk. 	Pl.’s Dep.
107:10-14. 	The infection affected both of Plaintiff’s feet, but the primary injury was
to his right foot. 	Id. at 113:14-114:1.
Plaintiff went to RSP’s medical unit in early June, “probably” the week of
June 8. 	Id. at 107:16-21. 	He filled out a medical request form and was seen by
Jones within twenty-four to forty-eight hours. 	Id. at 110:11-15. 	She gave him some
cream and a short-distance profile 	Id. at 110:16-111:9. 	Jones also scheduled a
follow-up visit. 	Id. at 115:2-4.
Plaintiff saw Jones on June 27, 2022.6 	Medical Record (“MR”) 33, ECF No.
6 The record is unclear as to when Plaintiff first submitted a medical or “sick call” request and when
Jones first saw him. 	Plaintiff testified that he was “probably” seen the week of June 8, 2022, but he
also testified that he was seen within twenty-four to forty-eight hours of submitting his sick call
request. 	Pl.’s Dep. 107:16-21, 109:16-110:15. 	However, the only sick call request in the record
related to feet in that time period is a June 24, 2022, request involving various unrelated medical
issues and the need for “foot cream.” 	MR 138. 	If this is the sick call request referenced by Plaintiff
in his deposition, and he was seen within twenty-four to forty-eight hours, then Jones first saw
Plaintiff at some point after June 24—as opposed to the week of June 8. 	There is no treatment record
or any other documentation showing when this first visit occurred. 	The earliest treatment record
concerning Plaintiff’s feet is from June 27, 2022, and during that visit, Jones noted that Plaintiff
reported “right small toe pain, and swelling with open wound” for two weeks, which he had been
treating with tolnaftate cream with no relief. 	MR 33. 	Jones’s attorney referred to this visit as the
“second time” Jones saw Plaintiff and Jones’s declaration also states it was the second time she saw
him. 	Pl.’s Dep. 116:17-19; Jones Decl. ¶ 8, ECF No. 100-4.
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100-5; Pl.’s Resp. to Jones Mot. for Summ. J. 11. 	Jones noted a “moist, white
emaceration” between the fourth and fifth toe on his right foot and an open wound on
his fifth toe with swelling, normal sensation, and no drainage noted. 	MR 33. 	Jones
diagnosed Plaintiff with tinea pedis with a secondary infection and prescribed him
Keflex 	(an 	antibiotic), 	fluconazole 	(an 	antifungal 	medication), 	and 	Lamisil
(antifungal) cream. 	MR 33; Jones Decl. ¶ 8, ECF No. 100-4. 	She also instructed
Plaintiff to keep his feet clean and dry and to follow up in three weeks. 	MR 33.
Plaintiff admitted in his deposition that he missed a “few” of his antibiotic doses.
Pl.’s Dep. 116:25-117:10.
Jones next saw Plaintiff on July 18, 2022. 	MR 28. 	Plaintiff reported that he
“noticed some improvement” but then had “increased itching, moisture, and burning
between his toes.” 	Id. 	He stated he had completed the antibiotics and fluconazole
and continued to take the Lamisil cream with no improvement. 	Id. 	Plaintiff
testified that during the time between the June 27 and July 18 visit, there was some
improvement on his other toes and left foot but that the small toe on his right foot
was getting worse. 	Pl.’s Dep. 118:19-119:4. 	Jones ordered Plaintiff to continue the
Lamisil cream and added miconazole 2% cream, an antifungal. 	MR 28; Jones Decl.
¶ 8. 	She instructed Plaintiff to avoid hot showers, dry thoroughly between his toes,
and wear clean, cotton socks. 	MR 28.
Jones saw Plaintiff again on August 2, 2022. 	MR 25. 	She observed him to be
ambulatory with a limp and antalgic gait, and noted that he had an open wound of
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his right fifth toe.7 	Id. 	Her notes described the wound as having a pink wound bed,
“emaciated” 	surrounding 	tissue, 	and 	serosanguinous 	drainage. 	Id. 	Jones
diagnosed Plaintiff with cellulitis of the right lower extremity and severe tinea pedis
with an open wound to the right fifth toe. 	Id. 	Based on Plaintiff’s continued pain
and swelling, Jones prescribed Bactrim DS (an antibiotic) and Vitamin C. 	Id.; Jones
Decl. ¶ 8. 	She also ordered that he receive daily wound care to his right foot with a
wound cleanser, Medihoney, and a dry dressing. 	Id. 	Further, she ordered a wound
culture and x-ray of Plaintiff’s right foot to rule out osteomyelitis. 	Id. 	She
prescribed plaintiff a cane and podiatry shoe, and instructed Plaintiff to return in one
week. 	MR 25. 	An August 5, 2022, x-ray of Plaintiff’s right foot showed no
osteomyelitis. 	MR 22, 101; Jones Decl. ¶ 8.
According to Plaintiff, after the x-ray and prescription of Medihoney, his
condition began to improve such that by the end of the thirty-day Medihoney
treatment, his wound was healing and he reached the point where he could walk
without a cane. 	Pl.’s Dep. 129:11-23. 	When Plaintiff returned to see Jones on
August 11, 2022, Plaintiff reported that the wound was looking and feeling much
better. 	MR 	22. 	At 	that 	point, 	the 	wound culture 	had 	come 	back 	to 	show
pseudomonas and group C beta-hemolytic streptococcus, for which Jones prescribed
Levaquin. 	Id. at 21-22; Jones Decl. ¶ 8. 	Her assessment was the Plaintiff’s
cellulitis and severe tinea pedis were resolving. 	MR 22. 	On August 25, 2025,
7 	Jones’s progress notes from August 2 and August 11, 2022, state the wound was on the left lower
extremity, but Jones’s declaration clarifies that it should state that the wound was on the right foot
and toe, which is consistent with Plaintiff’s testimony. 	Jones Decl. ¶ 2.
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Plaintiff stated he had only taken three doses of Levaquin but that his foot was almost
healed with the Medihoney. 	Id. at 19. 	Jones saw Plaintiff again on September 1,
2025, and his toe was healing with no signs of infection. 	Id. at 17; Jones Decl. ¶ 12.
Plaintiff was cleared to wear shoes and instructed to take the Lamisil until it was
gone. 	Id.
At his deposition, Plaintiff was asked if he still suffered any pain or injury, and
he reported that he had flare-ups “every once in a while” but not serious enough for
him to go to the medical unit. Pl.’s Dep. 128:15-129:10.
C. 	Starling and Burks are Entitled to Summary Judgment
Applying the above legal standards, both Starling and Burks are entitled to
summary 	judgment. 	Plaintiff 	cannot 	establish 	that 	either 	Defendant 	was
deliberately indifferent to his safety. 	Initially, the Court notes that if the shower
incident occurred on June 8, 2022—as Plaintiff stated during his deposition and in
his response to the summary judgment motions—then Starling’s actions in this case
could not possibly have caused Plaintiff’s injuries. 	Pl.’s Dep. 107:18-19; Pl.’s Resp.
to Jones Mot. for Summ. J. 1; Pl.’s Resp. to Burks & Starling Mot. for Summ. J. 2.
Starling was only notified of the complaint and inspected the shower after that date,
specifically June 13, 2022. 	Turnage Attach. 6, at 6. 	Thus, by the time Starling got
involved, Plaintiff’s injury had already occurred.
Further, even assuming the first shower flooding incident occurred sometime
prior to June 8, 2022, Plaintiff cannot show deliberate indifference to safety. 	By
Plaintiff’s own admission, the drain was only backing up “slightly.” 	Pl.’s Dep. 31:3-
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5. 	Moreover, while Plaintiff complains that it was not fixed, it was apparently fixed
well enough because it was not until July that there was another problem, even with
the generous assumption that the plumbing issue in July was caused by the same
problem in June. 	Id. at 31:12-18. 	And Plaintiff admits that he has no evidence that
Starling was in anyway involved in responding to the July incident. 	Id. at 34:5-17.
In addition, Plaintiff testified that plumbing issues were a systemic problem at RSP
over a one or two year period, resulting in contractors constantly coming out and
“digging up holes” in the compound in an effort to identify the issue, and maintenance
workers trying to fix the problem. 	Id. at 33:1-13; 37:13-16. 	Thus, the undisputed
evidence establishes that Defendants and other RSP officials did not act with
“subjective recklessness as used in the criminal law,” Wade, 106 F.4th at 1262, but
instead went to great effort to try to fix—and ensure the resolution of—the plumbing
issues at RSP.
Moreover, even if Plaintiff could show deliberate indifference to safety, which
he cannot, he still cannot meet the second prong of the qualified immunity analysis
by showing “that the illegality of the officer’s actions was clearly established at the
time of the incident.” 	Oliver, 586 F.3d at 904. 	“[F]or a right to be clearly
established[,] ‘existing precedent must have placed the statutory or constitutional
question beyond debate. This inquiry must be undertaken in light of the specific
context of the case, not as a broad general proposition.”” 	Benning v. Comm’r, Ga.
Dep’t of Corr., 71 F.4th 1324, 1338 (11th Cir. 2023) (quoting Rivas-Villegas v.
Cortesluna, 595 U.S. 1, 5 (2021)). 	Here, Plaintiff points to no materially similar case
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where a prison official has been held liable for deliberate indifference for failing to fix
a “slightly” slow-draining shower or for only overseeing two years’ worth of constant
efforts to fix various plumbing issues.8
Finally, to the extent retaliation is even an issue in this case and is not
otherwise dismissed for failure to exhaust, Burks is entitled to summary judgment
on the claim. 	Plaintiff asserts that Burks’ retaliation was in the form of denying
various grievances. 	Pl.’s Objs. 10; Pl.’s Dep. 80:21-25; Pl.’s Resp. to Burks & Starling
Mot. for Summ. J. 5-6, 8. 	But even if true, an inmate has no right to a grievance
procedure, so the denial of a grievance does not constitute a constitutional violation.
See Chambers v. Nelson, No. 1:07–CV–26-WLS, 2009 WL 902191, at *2 (M.D. Ga.
Mar. 31, 2009) (“Since there is no constitutional right to a grievance procedure,
denying a grievance at the institutional level does not implicate the constitution.”).
Further, Plaintiff’s theory that Burks’ denial of grievances was retaliatory is based
on allegations that the grievances were not investigated. 	Pl.’s Dep. 63:24-64:9, 66:8-
22, 79:21-80:25; Pl.’s Resp. to Burks & Starling Mot. for Summ. J. 5-6, 8. 	But the
undisputed evidence in the record shows that Plaintiff’s grievances were investigated,
and Plaintiff offers nothing contradictory but rank speculation. 	Turnage Attach. 3,
at 3-4; Turnage Attach. 4, at 6-15; Turnage Attach. 5, at 5-11; Turnage Attach. 6, at
2-3, 6-7; Turnage Attach. 7, at 5-6; Pl.’s Dep. 64:5-12. 	Therefore, to the extent a
retaliation claim is even a live issue in this case, Burks is entitled to summary
8 Because the Court finds that Plaintiff has otherwise failed to establish the elements of deliberate
indifference to safety, the Court will not address Starling and Burks’s argument that there is no
competent expert testimony as to causation. 	Burks & Starling Br. in Supp. of Mot. for Summ. J. 12-
13.
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judgment.9
D. 	Jones is Entitled to Summary Judgment
The Court also concludes that Jones is entitled to summary judgment. 10
According to the undisputed evidence, Jones was not deliberately indifferent to
Plaintiff’s medical condition but initiated treatment and continued treating Plaintiff
until his wound healed. 	Throughout the course of treatment, Jones adjusted and
added antibiotics and antifungal medication, ordered daily wound care, and ordered
appropriate lab work and an x-ray to rule out osteomyelitis. 	By September 1, 2025,
Plaintiff’s toe was healing with no signs of infection. 	MR 17; Jones Decl. ¶ 12.
Plaintiff argues that Jones was deliberately indifferent by not referring him to
a doctor and by not ordering x-rays and a wound culture sooner. 	Pl.’s Resp. to Jones
Mot. for Summ. J. 2, 11-15. 	However, Plaintiff provides no evidence that a nurse
practitioner is not qualified to diagnose and treat foot infections, and Jones presents
undisputed evidence that she was qualified to provide such treatment. 	Jones Decl.
¶¶ 3-4. 	Further, Jones’s decision regarding the timing of additional diagnostic
testing was “‘a classic example of a matter for medical judgment’ and therefore not
an appropriate basis for grounding liability under the Eighth Amendment.” 	Adams
v. Poag, 61 F.3d 1537, 1545 (11th Cir. 1995) (quoting Estelle v. Gamble, 429 U.S. 97,
107 (1976). 	Plaintiff admitted in his deposition that his wound “started out small”
9 The Court also agrees with Defendants that any claim for injunctive relief in this case was rendered
moot by his transfer out of RSP. 	See McKinnon v. Talladega Cnty., Ala., 745 F.2d 1360, 1363 (11th
Cir. 1984) (“The general rule is that a prisoner’s transfer or release from a jail moots his individual
claim for declaratory and injunctive relief.”).
10 Because the Court recommends that Jones be granted summary judgment, it declines to address
her motion for judgment on the pleadings.
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and only got bigger over the course of time. 	Pl.’s Dep. 112:4-7. 	Correspondingly,
the record shows that when Plaintiff’s condition did not improve with the initial
course of treatment, Jones adjusted Plaintiff’s medication and ordered testing as
clinically indicated. 	Jones Decl. ¶ 11. 	Further, the evidence shows that the foot x-
ray only demonstrated that Plaintiff did not have a bone infection and had no effect
on the course of treatment. 	Id. ¶ 19; MR 22, 101-02. 	And even before Jones received
the results of the wound culture, she had adjusted Plaintiff’s medication and
treatment such that by the time of his next visit, his wound had greatly improved.11
MR 22-23, 25-26, 99. 	In summary, the evidence fails to establish that Jones “acted
with subjective recklessness as used in the criminal law.” 	Wade, 106 F.4th at 1262.
Defendant Jones is consequently entitled to summary judgment on Plaintiff’s claim
of deliberate indifference to his medical needs.
CONCLUSION
For the reasons explained above, it is recommended that Defendants’ motions
for summary judgment (ECF Nos. 100, 103) be GRANTED. 	Pursuant to 28 U.S.C.
§ 636(b)(1), the parties may serve and file written objections to this Recommendation,
or seek an extension of time to file objections, within FOURTEEN (14) DAYS after
being served with a copy hereof. 	Any objection should be no longer than TWENTY
(20) PAGES in length. 	The district judge shall make a de novo determination of
those portions of the Recommendation to which objection is made. 	All other portions
11 Plaintiff also argues that Jones was deliberately indifferent by prescribing him cream that was for
“external use only,” but that she instructed him to apply to his open wounds, which he asserts
constitutes “internal” use. 	Pl.’s Resp. to Jones Mot. for Summ. J. 6. 	However, Plaintiff presents no
evidence that “for external use only” means anything other than it was not to be ingested.
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of the Recommendation may be reviewed for clear error.
The parties are hereby notified that, pursuant to Eleventh Circuit Rule 3-1,
“[a] party failing to object to a magistrate judge’s findings or recommendations
contained in a report and recommendation in accordance with the provisions of 28
U.S.C. § 636(b)(1) waives the right to challenge on appeal the district court’s order
based on unobjected-to factual and legal conclusions if the party was informed of the
time period for objecting and the consequences on appeal for failing to object. 	In the
absence of a proper objection, however, the court may review on appeal for plain error
if necessary in the interests of justice.”
SO RECOMMENDED, this 15th day of December, 2025.
s/ Amelia G. Helmick
UNITED STATES MAGISTRATE JUDGE
Case 4:23-cv-00024-CDL-AGH Document 116 Filed 12/15/25 Page 31 of 31