Curtis A. Long v. S. Hosseini, et al.

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-11033
Non-Argument Calendar
____________________
CURTIS A. LONG,
Plaintiff-Appellant,
versus
S. HOSSEINI,
Doctor,
JONES,
Nurse,
Defendants-Appellees.
USCA11 Case: 21-11033 Date Filed: 09/06/2022 Page: 1 of 14

-- 1 of 14 --

2 Opinion of the Court 21-11033
____________________
Appeal from the United States District Court
for the Northern District of Florida
D.C. Docket No. 5:18-cv-00072-TKW-HTC
____________________
Before JORDAN, JILL PRYOR, and BRANCH, Circuit Judges.
PER CURIAM:
Curtis A. Long appeals from the district court’s grant of sum-
mary judgment in favor of Dr. S. Hosseini and Nurse B. Jones on
his claim of deliberate indifference to a serious medical need in vi-
olation of the Eighth Amendment. He also appeals the denial of
his motion to compel discovery and stay summary judgment as un-
timely. After review of the parties’ briefs and the record, we af-
firm.1
I
A
In March of 2018, Mr. Long—a former Florida inmate at
Apalachee Correctional Institution East—filed suit against Dr. Hos-
seini and Nurse Jones, who had treated him throughout 2017. Mr.
Long alleged that Dr. Hosseini and Nurse Jones were deliberately
indifferent to his serious medical need because they failed to
1 Because we write for the parties, and assume their familiarity with the rec-
ord, we set out only what is necessary to explain our decision.
USCA11 Case: 21-11033 Date Filed: 09/06/2022 Page: 2 of 14

-- 2 of 14 --

21-11033 Opinion of the Court 3
adequately respond when he repeatedly came to them with con-
cerns that his hip implants were faulty.
Mr. Long had hip replacement surgery on October 1, 2015,
at Orlando Regional Medical Center. By March of 2016, he had
begun experiencing chronic hip pain. On February 5, 2017, Mr.
Long put in an inmate sick-call request stating that he had recently
seen a recall on hip replacement equipment and was unsure
whether his hip equipment had been recalled. On February 14,
2017, Mr. Long saw Dr. Hosseini for the first time and advised him
that he had severe pain in his back, hip, leg, knee, and foot, and
which he suspected could be the result of defective equipment. Dr.
Hosseini confirmed that Mr. Long had no visible signs of infection
and prescribed naproxen. He also obtained a release to request the
medical records pertaining to the hip replacement surgery, so that
he could determine whether the hip equipment had been recalled.
On March 15, 2017, Dr. Hosseini examined Mr. Long again.
He issued Mr. Long several accommodations, including a low bunk
pass; a pass excusing him from pushing, lifting, or prolonged stand-
ing; and a pass for shoe insoles. He also prescribed Ibuprofen.
On April 6, 2017, Dr. Hosseini reviewed the records from
Mr. Long’s hip surgery. The records revealed that Mr. Long’s im-
plant involved numerous pieces of hardware from a company
called Exactech. Dr. Hosseini then confirmed, using the Food and
Drug Administration’s online database, that none of the hardware
in Mr. Long’s hip had been recalled.
USCA11 Case: 21-11033 Date Filed: 09/06/2022 Page: 3 of 14

-- 3 of 14 --

4 Opinion of the Court 21-11033
On August 4, 2017, Nurse Jones saw Mr. Long after he re-
ported hot flashes, dizzy spells, blurred vision, stomach pains, and
chest pains the week before. Nurse Jones prescribed him Ibu-
profen, recommended that he be administered nitroglycerin, and
referred him to a clinician. She also confirmed that he had no swell-
ing, warmness, tenderness, or discoloration around the surgical
site. Dr. Hosseini administered an electrocardiogram, which indi-
cated that no further testing was required.
On August 15, 2017, Dr. Hosseini ordered x-rays for Mr.
Long. The x-rays indicated mild osteoarthritic changes but no evi-
dence of a fracture or misalignment. At their September 1, 2021
appointment, Dr. Hosseini observed that Mr. Long “look[ed] well”
and was in “no acute distress.” He also issued Long a pass for a
donut cushion. That was the last time that Dr. Hosseini examined
Mr. Long.
B
Nearly two weeks after the close of discovery, Mr. Long filed
a motion to compel alleging that Dr. Hosseini and Nurse Jones
failed to adequately respond to his interrogatories and request for
admissions. Mr. Long also asked the court to stay a ruling on sum-
mary judgment until Dr. Hosseini and Nurse Jones properly re-
sponded to his discovery requests.
The magistrate judge denied Mr. Long’s motion to compel
and stay. The court reasoned that the motion to compel was pro-
cedurally deficient because he filed the motion after the close of
USCA11 Case: 21-11033 Date Filed: 09/06/2022 Page: 4 of 14

-- 4 of 14 --

21-11033 Opinion of the Court 5
discovery and had failed to comply with Rule 37(a)(1)’s good faith
certification requirement. The magistrate judge further stated that
regardless of the procedural deficiencies, the motion failed on the
merits because Dr. Hosseini and Nurse Jones had adequately re-
sponded to Mr. Long’s discovery requests. Mr. Long appealed the
magistrate judge’s order, but the district court found that his objec-
tions were untimely.
C
In December of 2020, Dr. Hosseini and Nurse Jones filed
motions for summary judgment, as well as a declaration from Dr.
Hosseini and several hundred pages of Mr. Long’s medical records.
The motions stated that Mr. Long could not show that he had suf-
fered an objectively serious medical need of which Dr. Hosseini
and Nurse Jones were aware and towards which they had acted
with deliberate indifference.
The magistrate judge issued a report recommending that
the motions for summary judgment should be granted. The mag-
istrate judge assumed that the Mr. Long had demonstrated a seri-
ous medical need—chronic hip pain—and concluded that Mr. Long
had not shown a genuine dispute of material fact as to whether Dr.
Hosseini and Nurse Jones were deliberately indifferent to that need
or whether this indifference caused him injury. The magistrate
judge noted that Dr. Hosseini and Nurse Jones had prescribed var-
ious treatments for Mr. Long and that their decision not to refer
him to an outside specialist was, at most, a disagreement over treat-
ment rather than a constitutional violation. Lastly, the magistrate
USCA11 Case: 21-11033 Date Filed: 09/06/2022 Page: 5 of 14

-- 5 of 14 --

6 Opinion of the Court 21-11033
judge concluded that Mr. Long had not shown that Dr. Hosseini’s
and Nurse Jones’ actions had caused him injury.
Over Mr. Long’s objections, the district court adopted the
report and recommendation and granted summary judgment in fa-
vor of Dr. Hosseini and Nurse Jones. This appeal followed.
II
A
We first address Mr. Long’s motion to supplement the rec-
ord on appeal. Mr. Long seeks to supplement the record with sev-
eral documents, some of which relate to the merits of his deliberate
indifference claim and others which relate to the discovery issue.
As to deliberate indifference, the relevant documents are (1) a Feb-
ruary 10, 2021, radiology report indicating degenerative changes to
the lumbar sacral spine and pelvis; and (2) a January 28, 2021, blood
test indicating various abnormalities. He states that these medical
records are relevant because they reveal blood poisoning and de-
generative damage that Dr. Hosseini and Nurse Jones would have
detected if they had ordered the additional tests he requested.
With respect to discovery, the documents consist of a response
from the prison’s facility classification office to an inquiry by Mr.
Long stating that it had “no knowledge of [a] C.D.”; a June 30, 2021,
grievance sent to the assistant warden, which was denied on July
16, 2021; five inspector general complaints about the discovery CD;
and the prison’s mail log from August 3, 2021, which Mr. Long
claims shows that Dr. Hosseini and Nurse Jones sent the discovery
USCA11 Case: 21-11033 Date Filed: 09/06/2022 Page: 6 of 14

-- 6 of 14 --

21-11033 Opinion of the Court 7
nine months past the deadline and nearly six months after sum-
mary judgment was granted.
Dr. Hosseini and Nurse Jones oppose Mr. Long’s motion be-
cause the documents were not part of the record at the time the
district court granted summary judgment. They also argue that
the documents have no bearing on the merits of Mr. Long’s claims.
More particularly, they note that the medical records concern is-
sues he experienced 31 months after receiving treatment from ei-
ther of them and that the prisoner grievances, complaints, and logs
were prepared eight months after the discovery deadline.2
Although we typically do not supplement the record on ap-
peal to include evidence that was not before the district court, we
may do so if supplementing the record is “in the interests of justice”
or would “aid [the Court in] making an informed decision,” even
where “the added material will not conclusively resolve an issue on
appeal.”
Schwartz v. Millon Air, Inc., 341 F.3d 1220, 1225 n.4 (11th
Cir. 2003). We grant Mr. Long’s motion in part and deny it in part.
We deny the motion as to discovery-related documents because
Mr. Long has not articulated any specific argument as to how his
lack of access to the documents produced on a CD interfered with
his ability to respond to summary judgment. We grant the motion
as to the medical records because they arguably support Mr. Long’s
2 Dr. Hosseini and Nurse Jones also incorporated a motion for sanctions under
Rule 38, contending that both the motion to supplement and the appeal itself
are frivolous.
See Fed. R. App. P. 38. That motion is DENIED.
USCA11 Case: 21-11033 Date Filed: 09/06/2022 Page: 7 of 14

-- 7 of 14 --

8 Opinion of the Court 21-11033
claims that Dr. Hosseini and Nurse Jones acted in a way that may
have caused or exacerbated an injury.
B
Next, we address the denial of Mr. Long’s motion to compel
discovery. We review the denial of a motion to compel for an
abuse of discretion.
See Sanderlin v. Seminole Tribe, 243 F.3d
1282, 1285 (11th Cir. 2001). The magistrate judge denied the mo-
tion to compel, finding that it had been untimely filed and that Mr.
Long had failed to confer with Dr. Hosseini and Nurse Long. The
district court affirmed the magistrate judge’s order denying the mo-
tion and disregarded Mr. Long’s objections, concluding that they
were untimely.
Pursuant to Rule 72(a), when a magistrate judge rules on a
non-dispositive matter, “[a] party may serve and file objections to
the order within 14 days
after being served with a copy.”
See Fed.
R. Civ. P. 72(a) (emphasis added). The district court is required to
“consider timely objections and modify or set aside any part of the
order that is clearly erroneous or is contrary to law.”
Id.
Despite the district court’s conclusion to the contrary, Mr.
Long did, in fact, timely object to the magistrate judge’s ruling
denying his motion to compel. Mr. Long was served with a copy
of the order on February 16, 2021, and he mailed his objection on
March 2, 2021—exactly 14 days after having been served. So Mr.
Long did not waive his right to appeal the magistrate judge’s order
on his motion to compel.
USCA11 Case: 21-11033 Date Filed: 09/06/2022 Page: 8 of 14

-- 8 of 14 --

21-11033 Opinion of the Court 9
We affirm the district court’s order, however, because Mr.
Long failed to challenge all the grounds the magistrate judge gave
for denying the motion to compel. The magistrate judge con-
cluded that the motion was untimely because it was filed after the
close of discovery, that the motion failed to certify that Mr. Long
had conferred in good faith with the defendants, and that Mr. Long
failed to state why each of the defendants’ responses were inade-
quate.
Without addressing the merits of each of these conclusions,
we note that the motion could have properly been denied on un-
timeliness grounds alone. Mr. Long filed his discovery motion af-
ter the discovery cutoff. So the district court did not abuse its dis-
cretion in denying it.
See Josendis v. Wall to Wall Residence Re-
pairs, Inc., 662 F.3d 1292, 1307 (11th Cir. 2011). (“[W]e have often
held that a district court’s decision to hold litigants to the clear
terms of its scheduling orders is not an abuse of discretion.”) (cita-
tion omitted).
C
Finally, we turn to the district court’s grant of summary
judgment in favor of Dr. Hosseini and Nurse Jones. We review a
district court’s grant of summary judgment
de novo.
See Hollo-
man v. Mail-Well Corp., 443 F.3d 832, 836 (11th Cir. 2006).
Summary judgment should be granted only after the party
opposing the motion “has had an adequate opportunity to conduct
discovery.”
Reflectone, Inc. v. Farrand Optical Co., 862 F.2d 841,
USCA11 Case: 21-11033 Date Filed: 09/06/2022 Page: 9 of 14

-- 9 of 14 --

10 Opinion of the Court 21-11033
843 (11th Cir. 1989). If the party opposing summary judgment
shows by affidavit or declaration that, for specific reasons, it cannot
present facts essential to justify its opposition to summary judg-
ment, the court may defer consideration of or deny a motion for
summary judgment.
See Fed. R. Civ. P. 56(d). The decision to
deny a Rule 56(d) motion is reviewed for an abuse of discretion.
See Burns v. Town of Palm Beach, 999 F.3d 1317, 1330 (11th Cir.
2021).
A Rule 56(d) movant “must specifically demonstrate how
postponement of a ruling on the motion will enable him, by dis-
covery or other means, to rebut the movant’s showing of the ab-
sence of a genuine issue of fact.”
Id. at 1334 (quoting
City of Miami
Gardens v. Wells Fargo & Co., 931 F.3d 1274, 1287 (11th Cir.
2019)). For example, in
Burns we upheld the denial of a Rule 56(d)
motion where the plaintiff referenced broad categories of discov-
ery rather than specific facts that discovery would uncover, failed
to explain why that discovery was necessary, and had five addi-
tional months after the declaration to obtain discovery, during
which time he did not renew his objection.
See id.
If the non-movant does not file a Rule 56(d) declaration, “the
interests of justice” may nonetheless “require a district court to
postpone its ruling on a motion for summary judgment.”
Snook v.
Trust Co. of Georgia Bank, N.A., 859 F.2d 865, 871 (11th Cir. 1988).
This occurs only in “limited circumstances” and where the party
opposing summary judgment has informed the court of outstand-
ing discovery using an equivalent form of notice.
See City of
USCA11 Case: 21-11033 Date Filed: 09/06/2022 Page: 10 of 14

-- 10 of 14 --

21-11033 Opinion of the Court 11
Miami Gardens, 931 F.3d at 1287–88. The party opposing sum-
mary judgment bears the burden of identifying any outstanding
discovery.
See id. at 1288.
Here, the district court did not abuse its discretion in declin-
ing to postpone a ruling on summary judgment because Mr. Long
did not specifically demonstrate how postponing judgment would
enable him to show genuine disputes of material fact. Mr. Long
did not file a Rule 56(d) motion advising the court that he could not
access the CD containing the exhibits for Dr. Hosseini’s and Nurse
Jones’ motions for summary judgment. Nor did he use an equiva-
lent form of notice to inform the court why postponement was in
the “interests of justice.”
See Snook, 859 F.2d at 871. Although he
did argue, in his opposition motion, that his inability to access the
CD hindered his ability to respond to the motions, he did not spe-
cifically identify which exhibits he would have needed or how they
would have enabled him to respond to particular parts of Dr. Hos-
seini’s and Nurse Jones’ motions. He did not, for example, dispute
any of the contentions about his symptoms or what treatment he
received.
See Burns, 999 F.3d at 1334.
Turning to the merits of the summary judgment entered by
the district court, Mr. Long has abandoned his challenge to the
court’s order. Where a judgment is based on multiple independent
grounds, an appellant must challenge every stated ground for the
decision.
See Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 679,
680 (11th Cir. 2014). If he fails to challenge one ground, he is
deemed to have abandoned that challenge, which will result
USCA11 Case: 21-11033 Date Filed: 09/06/2022 Page: 11 of 14

-- 11 of 14 --

12 Opinion of the Court 21-11033
affirmance of the judgment.
See id. An appellant also abandons a
claim when: (a) he makes only passing references to it; (b) he raises
it in a perfunctory manner without supporting arguments and au-
thority; (c) he refers to it only in the “statement of the case” or
“summary of the argument”; or (d) he discusses the issue as mere
background to his main arguments or buries the issue within those
arguments.
See id. at 681.
Mr. Long failed to challenge each of the independent
grounds for the district court’s decision. The district court granted
summary judgment on two bases: (1) Mr. Long did not show that
Dr. Hosseini and Nurse Jones were deliberately indifferent; and (2)
Mr. Long did not show that Dr. Hosseini and Nurse Jones caused
him injury.
In his initial brief, Mr. Long asserted that Dr. Hosseini and
Nurse Jones showed deliberate indifference mostly in passing, and
without adequate support and authority. For example, in his state-
ment of the case, Mr. Long writes that some of his grievances were
“fraudulently whited-out to mislead the Court to believe he hadn’t
shown injury causes and deliberate indifference.” Appellant’s Ini-
tial Br. at 6. He does not, however, indicate which documents
were whited out or how, in their unaltered form, they would have
shown deliberate indifference. Also in his statement of the case, he
cites to a report and recommendation in a separate case as evidence
that Dr. Hosseini knew the medical risks associated with a defec-
tive hip replacement.
See id. at 7. But, again, he fails to explain
how this report demonstrates Dr. Hosseini’s knowledge of the risks
USCA11 Case: 21-11033 Date Filed: 09/06/2022 Page: 12 of 14

-- 12 of 14 --

21-11033 Opinion of the Court 13
of a faulty metal hip replacement or how it shows that Mr. Long,
specifically, was at risk.
In the body of his brief, Mr. Long argues that the court
“failed to consider” his motions, memoranda, original complaints,
and “medical records and documentations”—all of which, accord-
ing to him, show sufficient factual issues to survive a motion to
dismiss.
See id. at 16–17. Assuming this were true, Mr. Long is not
appealing the grant of a motion to dismiss; the order on appeal is a
grant of summary judgment. And opposing a summary judgment
motion requires evidence, in contrast to a case at the dismissal
stage. Additionally, the conclusory statement that his “medical rec-
ords” show deliberate indifference, without any supporting argu-
ment or authority, is insufficient to properly preserve his argu-
ment.
Even if Mr. Long’s passing references to deliberate indiffer-
ence were sufficient to preserve his argument on appeal, we would
nonetheless affirm because Mr. Long has not shown that Dr. Hos-
seini or Nurse Jones were deliberately indifferent to his medical
needs. Dr. Hosseini prescribed Mr. Long medication, ordered x-
rays, and afforded him numerous accommodations. When Mr.
Long expressed concern that his hip implant had been recalled, Dr.
Hosseini ordered the medical records from Mr. Long’s prior hospi-
tal. Dr. Hosseini compared those records to the FDA online data-
base and confirmed that none of Mr. Long’s hardware had been
recalled. Of the four times Dr. Hosseini saw Mr. Long, he exam-
ined him for visible signs of infection three times and sent him for
USCA11 Case: 21-11033 Date Filed: 09/06/2022 Page: 13 of 14

-- 13 of 14 --

14 Opinion of the Court 21-11033
testing twice. Mr. Long has shown no dispute of material fact as to
whether Dr. Hosseini indeed checked the FDA records or adminis-
tered proper treatment. Thus, even assuming that Mr. Long had a
serious medical condition and suffered an injury, Dr. Hosseini’s
conduct does not constitute deliberate indifference.
When Nurse Jones examined Mr. Long, she prescribed him
Ibuprofen, ordered an EKG, and referred him to a clinician. Mr.
Long then saw Dr. Hosseini the same day. Nurse Jones’ decision
to promptly refer Mr. Long to a physician does not exhibit a disre-
gard of risk of serious health problems. Although Mr. Long alleges
that he saw Nurse Jones multiple times related to his hip pain, the
records demonstrate otherwise. The records show that he met
with Nurse Jones only once concerning his hip pain, after which he
promptly received medical care.
On this record, Mr. Long has failed to show a genuine dis-
pute of material fact as to whether Dr. Hosseini and Nurse Jones
were deliberately indifferent. Mr. Long’s new medical records do
not change our conclusion. As the defendants correctly point out,
the records concern issues that Mr. Long experienced 31 months
after receiving treatment from Dr. Hosseini and Nurse Jones.
III
We affirm the district court’s entry of summary judgment in
favor of Dr. Hosseini and Nurse Jones.
AFFIRMED.
USCA11 Case: 21-11033 Date Filed: 09/06/2022 Page: 14 of 14

-- 14 of 14 --