Phillip Dennis Leigh v. Armor Medical Services, et al

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 14-13027
Non-Argument Calendar
________________________
D.C. Docket No. 0:12-cv-61439-KAM
PHILLIP DENNIS LEIGH,
Plaintiff-Appellant,
versus
ARMOR MEDICAL SERVICES,
Frank Papillon, Medical Director,
BROWARD SHERIFF'S OFFICE,
Scott Israel, Sheriff,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(December 9, 2015)
Before ED CARNES, Chief Judge, JORDAN, and JILL PRYOR, Circuit Judges.
PER CURIAM:
Case: 14-13027 Date Filed: 12/09/2015 Page: 1 of 6

-- 1 of 6 --

2
Phillip Leigh, a Florida prisoner proceeding pro se, is unhappy with the
medical care he received while at Broward County Jail. He filed an action under
42 U.S.C. § 1983 against Dr. Franck Papillon, the jail’s medical director, and Al
Lamberti, Broward County’s former sheriff, alleging that they had violated his
Eighth Amendment rights by acting with deliberate indifference to his medical
needs. A district court granted summary judgment to Papillon and Lamberti
(collectively “defendants”). Because Leigh has shown only a disagreement over
the appropriate means of treating his ailments, rather than actual indifference to his
condition, we affirm.
Leigh was sent to a Florida state prison in 2005 for drug trafficking and
conspiracy. In 2006, Dr. Gonzalo Aguilar, an outside medical consultant,
diagnosed him with spasmodic dysphonia. In a January 29, 2010 report, Aguilar
noted that Leigh’s condition had not responded to Botox injections. In the same
report, Aguilar recommended that Leigh have selective laryngeal adductor
denervation reinnervation (SLADR) surgery and wrote “urgent” just below the
recommendation. Leigh did not have the surgery. Instead, he received two more
Botox injections in February 2010, neither of which improved his condition.
According to a grievance Leigh filed, he visited another specialist on March 23,
2010 and was told that SLADR surgery wouldn’t improve his condition.
Case: 14-13027 Date Filed: 12/09/2015 Page: 2 of 6

-- 2 of 6 --

3
Leigh eventually filed a state habeas motion. To enable him to attend an
evidentiary hearing in that proceeding, he transferred to Broward County Jail on
October 4, 2011. Comments on an intake form reflect that Leigh had no visible
injuries, was unable to speak loudly due to a medical condition, and reported a
history of spasmodic dysphonia. Leigh remained at Broward County Jail until
December 25, 2012, when he returned to state prison.
Papillon was the medical director at Broward County Jail during Leigh’s
time there. According to Papillon, he never met Leigh and was involved with
Leigh’s healthcare on just two occasions. First, on May 4, 2012, Papillon reviewed
Leigh’s medical chart as part of a random inmate chart review. Second, on May
16, 2012, after Leigh wrote a grievance requesting SLADR surgery for his
spasmodic dysphonia, Papillon reviewed the grievance and Leigh’s medical
records. Papillon was aware that SLADR surgery was not recognized as the
appropriate treatment for spasmodic dysphonia. It was his professional medical
opinion that there was no risk of serious harm if Leigh did not get the surgery and
that the surgery might actually make Leigh’s condition worse. Papillon thus
declined to approve Leigh’s request for surgery.
Leigh filed this suit in July of 2012, alleging that defendants had knowingly
kept him from getting the SLADR surgery that Aguilar had recommended. At his
deposition, Leigh admitted that his suit boiled down to a disagreement over the
Case: 14-13027 Date Filed: 12/09/2015 Page: 3 of 6

-- 3 of 6 --

4
proper course of medical care in his case — he wanted the SLADR surgery even
though medical personnel at Broward County Jail believed it was the wrong way to
treat his spasmodic dysphonia. He acknowledged that, since filing the suit, he had
concluded that Aguilar had committed malpractice by misdiagnosing him and
unnecessarily taking a biopsy of his vocal cord tissue. Despite his new belief that
he did not have spasmodic dysphonia, Leigh maintained that he needed the
SLADR surgery to alleviate troubles with his voice.
The defendants got an affidavit from Dr. Neil Chheda, a specialist in
medical conditions affecting the voice. He reviewed Leigh’s medical records and
concluded that Papillon had been right to advise against Leigh’s request for
surgery. According to Chheda, SLADR surgery is not the primary means of
intervention against spasmodic dysphonia, in part because it can result in
permanent, negative changes to the patient’s voice.
Based principally on testimony from Leigh, Papillon, and Chheda, the
defendants moved for summary judgment, arguing that Leigh had failed to
establish: (1) that they had been deliberately indifferent to his needs; and (2) that
they had actually harmed him. Leigh filed a sparse cross-motion for summary
judgment. The district court referred the motions to a magistrate judge, who
recommended denying Leigh’s motion and granting Papillon and Lamberti’s. In
particular, the magistrate judge found that Leigh had not presented sufficient
Case: 14-13027 Date Filed: 12/09/2015 Page: 4 of 6

-- 4 of 6 --

5
evidence to establish conscious or callous indifference to his serious medical
needs, which is required for a deliberate indifference claim.
The magistrate judge’s report, issued on January 27, 2014, expressly advised
the parties that objections to it were due within two weeks. Leigh did not respond
until March 12, 2014. In his response, he requested a 30-day extension of the
filing period because he had not received the report until February 26, 2014. He
also sought leave to file a “proper amendment.” The district court granted Leigh’s
request for an extension, giving him until April 21, 2014 to file objections to the
report. The court concluded, however, that he was not entitled to further amend his
complaint. Nevertheless, on April 23, 2014, Leigh filed a “Motion Affidavit in
Support of Summary Judgment,” reframing his complaint and attaching documents
purporting to show that genuine issues of material fact remained in the case. He
followed that up with a “Third Motion to Amend” — a 106-page document, filed
on May 7, 2014, requesting leave to amend his complaint and including
documentary evidence he had not previously submitted.
The defendants opposed both of Leigh’s motions, arguing that they were
meritless and untimely. The district court agreed. It construed Leigh’s “Motion
Affidavit” as an objection to the magistrate judge’s report and summarily denied it.
The district court also denied Leigh’s “Third Motion to amend” because it sought
to advance a new claim against Aguilar, was untimely, and failed to allege facts
Case: 14-13027 Date Filed: 12/09/2015 Page: 5 of 6

-- 5 of 6 --

6
sufficient to support a claim of deliberate indifference. The district court adopted
the magistrate judge’s report in full and ordered summary judgment in the
defendants’ favor.
Leigh makes essentially the same argument on appeal as he did at the district
court and it is no more compelling here than it was there. To prevail on a claim of
deliberate indifference, a plaintiff must show that the defendant intentionally or
recklessly disregarded his serious medical needs in a way that injured him. See
Hinson v. Edmond, 192 F.3d 1342, 1345 (11th Cir. 1999). Leigh hasn’t shown
that. The record makes clear that staff at Broward County Jail did not deny
Leigh’s request for SLADR surgery because they were indifferent to his condition
and needs, but instead because medical personnel at the jail determined that the
surgery was not a good way to treat his spasmodic dysphonia. Leigh disagrees
with the views of those medical personnel, but a difference in medical opinion is
not a sufficient basis for a deliberate indifference claim. See Goebert v. Lee Cnty.,
510 F.3d 1312, 1326 (11th Cir. 2007). Because Leigh hasn’t shown that the
defendants were deliberately indifferent to his medical needs, his claims fail.
AFFIRMED.
Case: 14-13027 Date Filed: 12/09/2015 Page: 6 of 6

-- 6 of 6 --