Marco McIlwain v. Edward Burnside, et al

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-14022
Non-Argument Calendar
____________________
MARCO MCILWAIN,
Plaintiff-Appellant,
versus
DR EDWARD BURNSIDE,
GDCP,
L. ADAIR,
Nurse, GDCP,
Defendants-Appellees,
LIEUTENANT A UGLEE,
USCA11 Case: 22-14022 Document: 23-1 Date Filed: 04/05/2024 Page: 1 of 6

-- 1 of 6 --

2 Opinion of the Court 22-14022
Defendant.
____________________
Appeal from the United States District Court
for the Middle District of Georgia
D.C. Docket No. 5:17-cv-00363-MTT-MSH
____________________
Before J ORDAN, G RANT, and L AGOA , Circuit Judges.
PER CURIAM:
Marco McIlwain, an inmate at Macon State Prison, received
medical care after being stabbed nine times by another inmate.
Dissatisfied with the adequacy of that treatment, McIlwain brought
a deliberate-indifference claim against the medical officials who
treated him. The district court granted summary judgment in
favor of the officials, finding that McIlwain failed to establish that
they were subjectively aware of and disregarded a serious risk of
harm. We agree and affirm.
I.
Marco McIlwain is a felon convicted of murder who was
imprisoned at Macon State Prison when he got into a fight with
two other inmates. He killed one of them, but was also stabbed
nine times in the back and head. McIlwain was immediately taken
to a hospital, where his wounds were cleaned. He also received an
MRI and pain medication before being sent back to prison. There,
USCA11 Case: 22-14022 Document: 23-1 Date Filed: 04/05/2024 Page: 2 of 6

-- 2 of 6 --

22-14022 Opinion of the Court 3
McIlwain went to the infirmary and was examined again by prison
medical officials, who did their own scans and concluded that he
was healing well. For the next three days, they gave him pain
medication and changed the dressings for his wounds once a day.
McIlwain was then transferred to the Special Management
Unit, a higher security prison. There, he was prescribed pain
medication by Dr. Edward Burnside, though he claims he did not
receive that medication for two weeks. He also told Dr. Burnside
and Nurse Lynda Adair that he was having trouble breathing, but
Dr. Burnside reviewed McIlwain’s scans and concluded that his
lungs looked fine and were healing well. McIlwain further
complained to Nurse Adair that the dressings for his wounds had
not been changed, and he requested a better mattress because the
one he had was too thin and hurting his back. These complaints,
he says, went unaddressed.
McIlwain brought a § 1983 suit for deliberate indifference
against Dr. Burnside and Nurse Adair based on these complaints.
Following discovery, the defendants filed a motion for summary
judgment. The magistrate judge recommended granting that
motion, and the district court accordingly granted summary
judgment. McIlwain appeals.
II.
“We review the district court’s decision to grant summary
judgment de novo.” Waddell v. Valley Forge Dental Assocs., 276 F.3d
1275, 1279 (11th Cir. 2001) (emphasis omitted). Summary
judgment is proper “if the movant shows that there is no genuine
USCA11 Case: 22-14022 Document: 23-1 Date Filed: 04/05/2024 Page: 3 of 6

-- 3 of 6 --

4 Opinion of the Court 22-14022
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a). A genuine
issue of material fact exists “if the nonmoving party has produced
evidence such that a reasonable factfinder could return a verdict in
its favor.” Waddell, 276 F.3d at 1279.1
III.
The Eighth Amendment bars prison officials from displaying
“deliberate indifference to serious medical needs of prisoners.”
Keohane v. Florida Dep’t of Corrs. Sec’y, 952 F.3d 1257, 1265 (11th Cir.
2020) (quotation omitted). Deliberate-indifference claims have
“both an objective and a subjective component.” Id. at 1266. There
must be “an objectively serious medical need” that, “if left
unattended,” would pose “a substantial risk of serious harm.” Id.
(quotation omitted). And the officials must have had “subjective
knowledge of a risk of serious harm” and “disregarded that risk.”
Id. (alteration adopted) (quotation omitted). Situations showing
1 McIlwain did not object to the magistrate judge’s report recommending
summary judgment in favor of the defendants, so the district court reviewed
it for clear error. It also stated in the alternative that the report and
recommendation satisfied de novo review. Our Rule 3-1 provides that we may
review a district court’s factual and legal conclusions only for plain error if a
plaintiff failed to object to a magistrate judge’s report and recommendation in
accordance with 28 U.S.C. § 636(b)(1). 11th Cir. R. 3-1. McIlwain argues that
we should apply de novo review, however, because the district court itself
applied de novo review. We have not recognized such an exception to Rule
3-1, but McIlwain cites other circuits that have. We need not address this
issue, however, because McIlwain’s objection fails under either standard of
review.
USCA11 Case: 22-14022 Document: 23-1 Date Filed: 04/05/2024 Page: 4 of 6

-- 4 of 6 --

22-14022 Opinion of the Court 5
mere negligence or a difference in medical opinion do not amount
to deliberate indifference; rather, “medical treatment violates the
Eighth Amendment only when it is so grossly incompetent,
inadequate, or excessive as to shock the conscience or to be
intolerable to fundamental fairness.” Id. at 1266, 1274 (alteration
adopted) (quotation omitted).
In reviewing McIlwain’s claims, the district court concluded
that there was an objectively serious medical need that posed a
substantial risk of serious harm. But it held that McIlwain had not
shown that the defendants disregarded any risk of serious harm of
which they were subjectively aware because they treated and
monitored his injuries.
We agree with the district court’s conclusion. The record
reflects, and McIlwain acknowledges, that the defendants did treat
and address his pain concerns. McIlwain’s wound dressings were
examined and found to be dry, and his wounds were healing
normally.2 Dr. Burnside prescribed him pain medication, and
McIlwain does not provide evidence to suggest that any delay was
because officials disregarded a substantial risk of harm. And in
response to McIlwain’s concerns about having difficulty breathing
and needing a thicker mattress, Dr. Burnside noted that McIlwain’s
lungs looked well in scans and concluded that further treatment
and a new mattress were not necessary for his healing. McIlwain
does not provide any evidence, other than his own claims of
2 As McIlwain himself acknowledges, his wounds have healed.
USCA11 Case: 22-14022 Document: 23-1 Date Filed: 04/05/2024 Page: 5 of 6

-- 5 of 6 --

6 Opinion of the Court 22-14022
discomfort, to suggest otherwise. Though he may disagree with
the course of treatment provided, that is not enough to support his
deliberate-indifference claim. Id. at 1274.3
* * *
The record shows that the defendants examined McIlwain
and treated his injuries in accordance with their medical judgment.
Because McIlwain has not provided enough evidence to suggest
that this judgment amounted to deliberate indifference, we
AFFIRM the district court’s summary judgment order.
3 We lack jurisdiction to review McIlwain’s claims that the magistrate judge
improperly denied his motion for appointed counsel and motion to compel,
both of which McIlwain acknowledges he did not raise before the district
court. See United States v. Schultz, 565 F.3d 1353, 1359 (11th Cir. 2009).
USCA11 Case: 22-14022 Document: 23-1 Date Filed: 04/05/2024 Page: 6 of 6

-- 6 of 6 --