John Kister v. Quality Correctional Health, et al

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-11537
____________________
JOHN ANDREW KISTER,
Plaintiff-Appellant,
versus
QUALITY CORRECTIONAL HEALTH CARE,
QCHC,
M.D. RAYNON ANDREWS,
CHARLOTTE TURNER,
JOHNNY BATES,
NADINE CLOPTON,
ANA FRANKLIN, et al.,
Defendants-Appellees,
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2 Opinion of the Court 20-11537
NICK BARTON, et al.,
Defendants.
____________________
Appeal from the United States District Court
for the Northern District of Alabama
D.C. Docket No. 5:16-cv-01406-KOB-HNJ
____________________
Before R OSENBAUM , TJOFLAT, Circuit Judges, and S TEELE ,* Dis-
trict Judge.
PER CURIAM:
John Andrew Kister (“Kister”) was a pretrial detainee in the
Morgan County Jail (“the Jail”) located in Decatur, Alabama, from
May 2015 until November 2018. During his confinement Kister
repeatedly requested a specific type of narcotic medication to
treat a long-standing medical condition. These requests were
consistently refused, but Kister was provided or offered alterna-
tive medications and medical treatment. Kister sued defendants
Quality Correctional Health Care, certain individual medical
* The Honorable John E. Steele, United States District Judge for the Middle
District of Florida, sitting by designation.
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20-11537 Opinion of the Court 3
staff,1 and certain individual jail staff2 in federal district court alleg-
ing, among other things,3 deliberate indifference to a serious med-
ical need in violation of the United States Constitution. The dis-
trict court granted summary judgment in favor of all defendants,
finding that the case involved a non-actionable disagreement over
medical judgment, not deliberate indifference to a serious medical
need. On appeal Kister contends that, when the record is proper-
ly viewed under well-established summary judgment principles,
there are at least material disputed facts as to whether his medical
treatment was based on independent medical judgment or solely
on the Jail’s “no narcotics” policy. We agree, and therefore re-
verse the district court’s grant of summary judgment.
I.
“We review
de novo a grant of summary judgment and re-
view findings of fact for clear error.”
Buending v. Town of Red-
ington Beach, 10 F.4th 1125, 1130 (11th Cir. 2021). Summary
judgment is proper if the evidence shows “that there is no genu-
ine dispute as to any material fact and the movant is entitled to
1 Quality Correctional Health Care (“QCHC”) is the entity which provides
health care to the inmates in the Jail. Appellees Dr. Raynon Andrews, Nurse
Charlotte Turner, Dr. Johnny Bates, and Nurse Naideen Clopton are collec-
tively referred to as the medical staff.
2 Sheriff Ana Franklin, Warden Aaron Dawson, Michael Corley (Chief Depu-
ty of Morgan County), and Larry Berzett (Jail Administrator of the Morgan
County Jail) are collectively referred to as the jail staff.
3 The resolution of other claims in the Complaint is not before the Court.
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4 Opinion of the Court 20-11537
judgment as a matter of law.” Fed. R. Civ. P. 56(a). As we recent-
ly explained:
A court assessing motions for summary judgment
must “resolve all ambiguities and draw reasonable
factual inferences from the evidence in the non-
movant’s favor.” A court “may not weigh conflicting
evidence or make credibility determinations of [its]
own. If the record presents disputed issues of fact,
the court may not decide them; rather, [it] must de-
ny the motion and proceed to trial.”
Buending, 10 F.4th at 1130 (citations omitted). For this reason,
the actual facts may or may not be as described in this opinion.
See Powell v. Snook, 25 F.4th 912, 916 (11th Cir. 2022).
II.
In October 2005, Kister was diagnosed with priapism4
while incarcerated in Michigan, and Dr. Jason Y. Kim prescribed
Ultram/Tramadol5 to Kister for pain. In 2006, Kister was diag-
4 Priapism is a “[p]ersistent erection of the penis, accompanied by pain and
tenderness, resulting from a pathologic condition rather than sexual desire.”
Priapism, Stedman’s Medical Dictionary 720430 (2014).
5 Ultram is a brand name for Tramadol, which is an opiate medication used
to relieve moderate to moderately severe pain. Medline Plus,
Tramadol,
U.S. N ATIONAL LIBRARY OF MEDICINE, available at
https://medlineplus.gov/druginfo/meds/a695011.html (last visited May 6,
2022).
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20-11537 Opinion of the Court 5
nosed with neuropathy6 by Dr. Glenn Bedsole due to a damaged
nerve that runs from his bladder to his penis which occurred after
an earlier episode of priapism. This neuropathy causes constant
pain in Kister’s penis and lower right abdomen, and sexual dys-
function.
Between 2006 and 2015, Kister sought medical treatment
for continued groin and penile pain. Different doctors prescribed
different medications to relieve the side effects of his neuropathy,
including Tramadol. For example, in 2008, Kister was prescribed
Tramadol by physicians at Baptist Hospital. From October 2013
to October 2014, Kister was prescribed Tramadol by Dr. Jerry
Robbins and Dr. Hiteshi Bhavsar, with Dr. Bhavsar noting that
Tramadol was the only medication which helped Kister. In late
2014 and early 2015, Kister was prescribed Tramadol by Dr.
Charles Hagan.
On March 19, 2015, Kister saw Dr. Lindsay Smith, com-
plaining of chronic pain and neuropathy and requesting two tab-
lets of 50 mg Tramadol three times per day. Dr. Smith prescribed
half the dosage requested, with no refills. Kister last filled a Tra-
madol 50 mg prescription from Dr. Smith on April 7, 2015. Ac-
cording to Kister, medications other than Tramadol always
proved unsuccessful.
6 Neuropathy is a term for any disorder affecting any segment of the nervous
system.
Neuropathy, Stedman’s Medical Dictionary 601870 (2014).
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6 Opinion of the Court 20-11537
Kister was booked into the Jail on May 17, 2015. During
the booking and evaluation process, Kister was told the Jail was a
“no narcotics” facility and that he could not receive narcotic pain
medication. Kister’s Tramadol prescription was noted and Kister
verbally requested Tramadol, which was refused. The Jail’s “no
narcotics” policy prohibited the distribution of narcotic medica-
tion to inmates within the general jail housing areas. Under the
policy, an inmate could only receive narcotic medication pursuant
to the orders of a physician or medical staff and while in the med-
ical observation unit of the Jail. The medical observation unit
consists of two jail cells.
In September 2015, Kister requested and received an ap-
pointment with Dr. Raynon Andrews, who told Kister about the
“no narcotics” policy and that Kister could try non-narcotics.
Kister responded that non-narcotics were ineffective. Dr. An-
drews stated that he could not order Tramadol due to the “no
narcotics” policy and would have to get back with Kister because
of the situation created by the policy and Kister’s personal medi-
cal history. On November 18, 2015, Dr. Andrews again saw
Kister regarding his complaints of neuropathy in his penis. Dr.
Andrews noted that Kister had not taken anything for this com-
plaint since May 2015, when he was booked into the jail, and Dr.
Andrews formulated a plan to obtain outside medical records re-
lated to Kister’s penile neuropathy and to follow up.
Dr. Andrews received and reviewed medical records from
Dr. Lindsay Smith and then met with Kister on December 2,
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20-11537 Opinion of the Court 7
2015. Kister reported pain and neuropathy periodically in his pe-
nis, and that nonsteroidal and anti-inflammatory drugs did not
help. Kister refused to try options other than Tramadol/Ultram,
but Dr. Andrews determined that it was inappropriate to pre-
scribe narcotic mediation.
On December 4, 2015, Kister wrote a grievance based on
the “no-narcotics” policy. Kister continued to ask for Tramadol.
In January 2016, Dr. Andrews stated that Kister seemed to have a
problem with every substitute medication, but Kister explained
that he had tried most of them and they were ineffective or made
the pain worse. Dr. Andrews told Kister that he spoke to a “cou-
ple of” neurologists who had never heard of penile neuropathy.
On April 22, 2016, in response to Kister’s grievance appeal, Nurse
Charlotte Turner stated that Dr. Johnny Bates, the President of
QCHC, had never heard of penile neuropathy and that “[p]ain is
not considered a chronic non-chargeable condition. Tramadol is
now considered a narcotic so we don’t use it in the facility.”
On May 13, 2016, Nurse Naideen Clopton saw Kister, who
complained of penile pain but refused Ibuprofen and Tylenol as
“neither help him.” On May 17, 2016, Dr. Andrews saw Kister for
complaints of his penile neuropathy. Kister reported that Elavil,
Neurontin, Cymbalta, and NSAIDS were ineffective, and that on-
ly Tramadol helped. Dr. Andrews noted that Kister did not dis-
play any signs or symptoms of objective pain, and Dr. Andrews
did not prescribe narcotic pain medication. On June 14, 2016,
Kister saw Dr. Andrews, who noted that Kister wanted the policy
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8 Opinion of the Court 20-11537
changed so he could have Tramadol, but Dr. Andrews again de-
clined to prescribe Tramadol.
On June 29, 2016, Dr. Bates provided a verbal order to
place Kister in medical observation for penile pain and/or difficul-
ty urinating. No Tramadol was prescribed during Kister’s time in
medical observation.
On July 8 and July 12, 2016, Nurse Clopton assessed Kister
based on reported pain in his penis during erections. Kister re-
quested Tramadol and refused any alternatives. On July 26, 2016,
Kister requested Tramadol from Dr. Bates, stating he would take
nothing else. Dr. Bates documented that the request was for
“questionable penile pain.” Dr. Bates determined that the type of
penile pain reported “was the type of episodic and transient pain
that resolves on its own without the need for further medical in-
tervention.” Dr. Bates was concerned that Kister was exhibiting
drug-seeking behavior, and that it was “reasonable and appropri-
ate to offer non-narcotic mediation to Kister to treat his reported
pain.”
By November 9, 2016, Dr. Andrews considered Kister’s re-
fusal to explore non-narcotic options as an indicator of drug-
seeking behavior because there was a “preoccupation with receiv-
ing one narcotic medication in particular.” Dr. Andrews last saw
Kister on December 7, 2017, and advised Kister that Tramadol
was “NOT on formulary here.”
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20-11537 Opinion of the Court 9
On December 4, 2016, August 23, 2017, September 26,
2017, October 25, 2017, November 6, 2017, and December 21,
2017, Kister was seen by Morgan County Mental Health Center,
an off-site provider for counseling. Each visit was accompanied
by the instruction: “Please note we have a NO NARCOTIC poli-
cy.”
On February 4, 2018, Kister filed a grievance stating that
Dr. Andrews told him “that there was no MEDICAL reason not
to treat me, just a policy prohibiting it, which is beyond his au-
thority.” The response from Nurse Turner was that the same pol-
icy that prohibits Dr. Andrews, “also prohibits me.”
Kister was placed in medical observation on three occa-
sions: From May 12, 2016, through May 17, 2016; from June 29,
2016, through July 1, 2016; and from July 8, 2016, through July 26,
2016. Kister was not prescribed Tramadol on any of the three oc-
casions. The Sheriff told Kister that he would have to live in med-
ical observation to receive narcotics. Kister stated that he was
willing to do anything, but was not allowed to live in one of the
two observation cells.
The district court overruled Kister’s objections, adopted
the Report and Recommendations of the Magistrate Judge, and
granted summary judgment in favor of the appellees. The district
court found that there were no genuine issues of material fact and
that the appellees were entitled to judgment as a matter of law
because Kister’s complaint was based on a simple difference in
medical opinion, which cannot support a constitutional claim of
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10 Opinion of the Court 20-11537
deliberate indifference. Kister appeals the district court’s judg-
ment.
III.
Deliberate indifference to the serious medical needs of a
pretrial detainee violates the Fourteenth Amendment.
Goebert v.
Lee Cnty., 510 F.3d 1312, 1326 (11th Cir. 2007);
Hamm v. DeKalb
Cnty., 774 F.2d 1567, 1574 (11th Cir. 1985). “The Due Process
Clause of the Fourteenth Amendment guarantees pretrial detain-
ees the right to basic necessities that the Eighth Amendment
guarantees convicted persons.”
Gish v. Thomas, 516 F.3d 952, 954
(11th Cir. 2008). To establish a claim for deliberate indifference to
a medical need, Kister must make three showings: (1) he had an
objectively serious medical need; (2) each defendant acted with
deliberate indifference to that need; and (3) his injury was caused
by the wrongful conduct.
Wade v. United States, 13 F.4th 1217,
1225 (11th Cir. 2021);
Taylor v. Hughes, 920 F.3d 729, 733 (11th
Cir. 2019). Only the first and second element are at issue in this
appeal.
A. Serious Medical Need
The district court assumed that Kister’s complaints of pain
due to penile neuropathy could qualify as an objectively serious
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20-11537 Opinion of the Court 11
medical need. On appeal, the medical staff appellees argue that
Kister failed to demonstrate an objectively serious medical need.7
“A serious medical need is one that has been diagnosed by
a physician as mandating treatment or one that is so obvious that
even a lay person would easily recognize the necessity for a doc-
tor’s attention.”
Mann v. Taser Int’l, Inc., 588 F.3d 1291, 1307
(11th Cir. 2009) (internal quotation marks and citation omitted).
“In the alternative, a serious medical need is determined by
whether a delay in treating the need worsens the condition.”
Id.
“In either case, ‘the medical need must be one that, if left unat-
tended, poses a substantial risk of serious harm.’”
Id. (quoting
Farrow v. West, 320 F.3d 1235, 1243 (11th Cir. 2003)).
When viewed in light most favorable to Kister, there is suf-
ficient evidence which would allow a jury to find that Kister suf-
fered an objectively serious medical need. Kister was diagnosed
by medical doctors in 2005 and 2006 and had a long history of re-
ceiving professional medical treatment for penile neuropathy and
pain, including prescriptions for narcotic medication. A factfind-
er could reasonably find that Kister’s penile neuropathy and its
resulting pain were objectively serious medical needs. The dis-
trict court did not err in assuming the existence of a serious medi-
cal need.
7 Like the district court, the jail staff assume, for the purposes of appeal, that
Kister’s penile neuropathy and pain could be considered a serious medical
need.
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12 Opinion of the Court 20-11537
B. Deliberate Indifference
To establish deliberate indifference, a plaintiff must prove
three elements: “(1) subjective knowledge of a risk of serious
harm; (2) disregard of that risk; (3) by conduct that is more than
gross negligence.”
Goebert, 510 F.3d at 1326–27 (quotation and
alteration omitted). When the record evidence is viewed in the
light most favorable to Kister, the evidence is sufficient to create a
jury issue as to deliberate indifference.
It is clear that appellees knew of Kister’s medical condition
and his insistence that only Tramadol was effective at controlling
the resulting pain. The issue is whether the consistent refusal to
prescribe Tramadol was an independent medical judgment or
simply acquiescence to the Jail’s “no narcotics” policy. The ques-
tion of whether additional forms of treatment or medication
should have been employed, “‘is 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. Gam-
ble, 429 U.S. 97, 107 (1976));
see also Hamm, 774 F.2d at 1575 (ex-
plaining that, where an inmate’s health complaints received signif-
icant medical care, a mere desire for a different method of treat-
ment does not usually amount to deliberate indifference). On the
other hand, “responding to an inmate’s acknowledged medical
need with what amounts to a shoulder-shrugging refusal even to
consider whether a particular course of treatment is appropriate is
the very definition of ‘deliberate indifference’—anti-medicine, if
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20-11537 Opinion of the Court 13
you will.”
Keohane v. Fla. Dep’t of Corr. Sec’y, 952 F.3d 1257,
1266–67 (11th Cir. 2020). Similarly, failing to treat a serious medi-
cal need for non-medical reasons constitutes deliberate indiffer-
ence.
See Ancata v. Prison Health Servs., Inc., 769 F.2d 700, 704
(11th Cir. 1985) (“[I]f necessary medical treatment has been de-
layed for non-medical reasons, a case of deliberate indifference
has been made out.”).8
Kister argues that the record contains sufficient evidence to
defeat summary judgment because a reasonable factfinder could
conclude the denial of Tramadol was based on the Jail’s no-
narcotics policy, not on the independent judgment of the medical
8 Other circuits have reached similar conclusions concerning a course of
treatment based on non-medical reasons.
E.g.,
Brawner v. Scott Cnty., 14
F.4th 585, 600 (6th Cir. 2021) (“[A] reasonable jury could find that Nurse[]’s
failure to treat [pretrial detainee] appropriately was due to the County’s ap-
plication of the no-narcotics policy, which caused [detainee]’s injuries.”);
Colwell v. Bannister, 763 F.3d 1060, 1063 (9th Cir. 2014) (“[T]he blanket, cat-
egorical denial of medically indicated surgery solely on the basis of an admin-
istrative policy that ‘one eye is good enough for prison inmates’ is the para-
digm of deliberate indifference.”);
Delaughter v. Woodall, 909 F.3d 130, 138
n.7 (5th Cir. 2018) (“We have previously suggested that a non-medical reason
for delay in treatment constitutes deliberate indifference, and several of our
sister circuits have held so explicitly.” (collecting cases));
Blackmore v. Kala-
mazoo Cty., 390 F.3d 890, 899 (6th Cir. 2004) (“When prison officials are
aware of a prisoner’s obvious and serious need for medical treatment and
delay medical treatment of that condition for non-medical reasons, their
conduct in causing the delay creates the constitutional infirmity.”);
De’Lonta
v. Angelone, 330 F.3d 630, 635 (4th Cir. 2003) (disputed facts could support
the inference that decision to deny inmate hormone treatment “based solely
on the Policy rather than on a medical judgment”).
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14 Opinion of the Court 20-11537
professionals. We agree. While a factfinder would certainly not
be compelled to make such a finding, the record is sufficient to
create material issues of disputed facts which may not be resolved
by the court.
Kister had a long history of penile neuropathy for which he
had been prescribed Tramadol by several physicians. At least one
of Kister’s previous physicians, Dr. Bhavsar, noted that Tramadol
was the only medication that helped Kister’s pain. When Kister
entered the Jail, Kister notified the Jail of his condition and re-
quested Tramadol, which was refused but noted by the Jail.
There is evidence that the medical staff were not familiar with
Kister’s particular condition, so they would not know how to
properly treat it. While Dr. Andrews did try to familiarize himself
with Kister’s condition and prior treatment, the record suggests
that he only reviewed medical records from Dr. Smith, who
treated Kister shortly before his entry into the Jail in 2015, and
failed to review records from Kister’s previous care from 2005 to
2015. Kister was placed in medical observation on three occa-
sions, yet was never given Tramadol to verify or refute his asser-
tion that it relieved the pain.
There is also evidence that the medical staff believed that
they could not give Kister Tramadol because of the “no narcotics”
policy. The “no narcotics” policy was included on the instruc-
tions each time Kister was seen by an outside health agency. Dr.
Andrews told Kister that he could not prescribe Tramadol be-
cause of the policy, and he would need to follow-up with Kister
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20-11537 Opinion of the Court 15
regarding treatment due to the situation created by the policy and
Kister’s previous medical history. Nurse Turner responded to
one of Kister’s grievances requesting Tramadol and complaining
about the policy, telling Kister that, much like Dr. Andrews, the
“no narcotics” policy prohibited her.
Thus, despite the declarations of the physicians to the con-
trary, there is evidence from which a reasonable jury could find
that the failure to prescribe Tramadol was the result of the “no
narcotics” policy and not the result of independent medical judg-
ment. “[T]aking the easier and less efficacious route in treating an
inmate” can be indifference.
Rogers v. Evans, 792 F.2d 1052, 1058
(11th Cir. 1986).
IV.
The summary judgment of the district court is reversed as
to the claim of deliberate indifference to a serious medical condi-
tion. The case is remanded for further proceedings consistent
with this opinion.
REVERSED AND REMANDED.
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