Mark Andrew Hilderbrand v. Mrs. Sharon Lewis, et al

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-13446
Non-Argument Calendar
____________________
MARK ANDREW HILDERBRAND,
Plaintiff-Appellant,
versus
GEORGIA DEPARTMENT OF CORRECTIONS, et al.,
Plaintiffs,
MRS. SHARON LEWIS,
(GDC) Medical Director, in their
individual capacities,
MRS. SHARON BROWN,
(GDC/GSP) Infectious Disease Specialist,
in their individual capacites,
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2 Opinion of the Court 22-13446
MRS. EDWARDS,
(GDC/GSP) Deputy Warden of Care and
Treatment, in their individual capacities,
MRS. RILEY,
(GDC/GSP) PA, in their individual capacities,
MRS. JONES,
WARDEN, GEORGIA STATE PRISON, et al.,
Defendants-Appellees.
____________________
Appeal from the United States District Court
for the Southern District of Georgia
D.C. Docket No. 6:19-cv-00072-JRH-BWC
____________________
Before WILLIAM PRYOR , Chief Judge, and B RASHER and ABUDU, Cir-
cuit Judges.
PER CURIAM:
Mark Hilderbrand, a Georgia prisoner, appeals pro se the par-
tial dismissal and partial summary judgment against his second
amended complaint alleging that prison officials and medical pro-
viders and Dr. Marcus Ochippinti were deliberately indifferent to
his medical condition of latent tuberculosis. 42 U.S.C. § 1983.
Hilderbrand alleged that after he was diagnosed in 2010, he was
prescribed medication to treat the latent tuberculosis but received
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22-13446 Opinion of the Court 3
only part of the regimen and was denied the remainder without
explanation, and his later attempts to receive the full regimen were
unsuccessful. After the parties filed cross-motions for summary
judgment, the district court granted summary judgment in favor of
the prison officials and providers. The district court ruled that the
evidence established that Hilderbrand’s treatment plan, consisting
of 76 bi-weekly doses of Isoniazid, an antibiotic, was stopped after
about 19 doses because he self-reported taking the medication ir-
regularly, his liver function was impacted, he had been evaluated
annually by a nurse for signs of active tuberculosis since 2010, and
he had a low risk of developing active tuberculosis and lacked any
symptoms of active tuberculosis. The district court also dismissed
his claim against the Estate of Dr. Ochippinti without prejudice for
lack of service. Fed. R. Civ. P. 4(m). We affirm.
We review de novo a summary judgment. Mosley v. Zachery,
966 F.3d 1265, 1270 (11th Cir. 2020). Summary judgment is appro-
priate when “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). We also review the dismissal without prejudice of a com-
plaint for failure to timely serve a defendant, Fed. R. Civ. P. 4(m),
for abuse of discretion. Lepone-Dempsey v. Carroll Cnty. Comm’rs, 476
F.3d 1277, 1280 (11th Cir. 2007).
Hilderbrand argues that the district court erred in ruling that
he did not challenge the prison officials’ alleged actions of exposing
him to tuberculosis over a decade ago. But Hilderbrand does not
challenge the alternative ruling that any claim regarding his initial
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4 Opinion of the Court 22-13446
exposure is untimely. See Sapuppo v. Allstate Floridian Ins. Co., 739
F.3d 678, 680 (11th Cir. 2014) (“To obtain reversal of a district court
judgment that is based on multiple, independent grounds, an ap-
pellant must convince us that every stated ground for the judgment
against him is incorrect.”). He has forfeited any challenge to that
alternative ruling.
Hilderbrand argues that the prison officials and medical pro-
viders were deliberately indifferent by failing to provide him with
a “full series of antituberculosis medication to preserve his life.”
We disagree.
The Eighth Amendment forbids cruel and unusual punish-
ment, including deliberate indifference to a prisoner’s serious med-
ical needs. Estelle v. Gamble, 429 U.S. 97, 104 (1976). Hilderbrand
had to prove that the prison officials and providers knew he faced
a substantial risk of serious harm and disregarded that risk by failing
to take reasonable measures. Farmer v. Brennan, 511 U.S. 825, 847
(1994). “[D]eliberate indifference describes a state of mind more
blameworthy than negligence” and requires “more than ordinary
lack of due care for the prisoner’s interests or safety.” Id. at 835.
The record does not support the conclusion that the prison
officials and providers were deliberately indifferent. Hilderbrand
alleged that the prison officials and medical providers refused to
treat his latent tuberculosis properly, but the evidence established
that he received adequate medical attention for his condition. After
he was diagnosed with latent tuberculosis in 2010, he was pre-
scribed a nine-month regimen of Isoniazid consisting of 76
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22-13446 Opinion of the Court 5
bi-weekly doses, but a few months later, the infection control nurse
monitoring his condition noted that he reported taking only 13
doses. Based on his noncompliance and having a clear chest x-ray
with no symptoms of active tuberculosis, a physician stopped the
regimen. A month later, a physician restarted the Isoniazid treat-
ment at Hilderbrand’s request, but after the infection control nurse
again “stressed med compliance” because he reported taking only
19 doses, the medication was stopped due to noncompliance.
Hilderbrand continued to meet with the nurse for screenings and
chest x-rays, all of which were normal. In 2011, after he was pre-
scribed Isoniazid a third time, a physician stopped the regimen after
the nurse discovered that his liver enzymes, which measured his
liver function and can become dangerously high due to Isoniazid,
were elevated. Hilderbrand then was referred to the Infectious Dis-
ease Clinic at Augusta State Medical Prison, where Millie Reeves,
the statewide tuberculosis coordinator, evaluated him and rec-
orded that he had missed 15 doses of Isoniazid but “could offer no
explanation for his non-compliance.” After another chest x-ray re-
vealed no active tuberculosis, Reeves recommended discontinuing
Isoniazid due to his “history of non-compliance, his elevated liver
function tests, the fact that [he] did not have the symptoms indicat-
ing active TB, and the small chance that [he] would actually de-
velop TB without [Isoniazid] or Rifampin,” another antibiotic used
to treat tuberculosis that could cause liver damage.
In December 2011, after a nurse reported that Hilderbrand
was exposed to Isoniazid-resistant tuberculosis, a physician pre-
scribed him a four-month regimen of Rifampin, which was later
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6 Opinion of the Court 22-13446
discontinued. Although the record is not clear why Hilderbrand did
not complete the Rifampin regimen, the infection control nurse
continued to evaluate him annually over the next seven years, and
none of his health screenings revealed symptoms of active tuber-
culosis. In February 2020, after Hilderbrand told medical staff that
he had been exposed to Isoniazid-resistant tuberculosis and pre-
sented with symptoms, he returned to the medical prison, and
Reeves closely monitored and tested him for active tuberculosis for
over a week. Based on his normal chest x-rays, no symptoms of
active tuberculosis, and three sputum smears that all tested nega-
tive for tuberculosis, Reeves concluded that he did not have active
tuberculosis. Reeves later attested that she could “state to an ex-
tremely high degree of medical certainty that (1) Hilderbrand has
never developed active [tuberculosis] and (2) Hilderbrand has not
developed any medical problems as a result of him being exposed
to [tuberculosis] and not completing a full round of either [Isonia-
zid] or Rifampin therapy.” Reeves attested that based on Hilder-
brand’s history of noncompliance, history of elevated liver en-
zymes and the risk that tuberculosis treatment poses to his liver,
and the small chance that he will develop active tuberculosis, she
“would not recommend that [he] undergo any additional [Isonia-
zid] or Rifampin therapy for his Latent [tuberculosis].”
In the light of this undisputed medical evidence, Hilder-
brand cannot establish that his medical condition was treated with
deliberate indifference. Hilderbrand received almost two dozen
medical evaluations and five chest x-rays since his diagnosis, includ-
ing annual evaluations by the infection control nurse, and he does
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22-13446 Opinion of the Court 7
not dispute that he never developed active tuberculosis. Hilder-
brand instead argues that the decision to withhold treatment until
he develops active tuberculosis amounts to deliberate indifference,
but we cannot agree. The medical record reveals that Reeves made
a medical judgment that attempting a fifth round of treatment us-
ing either Isoniazid or Rifampin was not worth the risk of Hilder-
brand being noncompliant again or his liver function suffering
from the antibiotics, especially when the chance of him developing
active tuberculosis was small. Although Hilderbrand denies being
noncompliant, he fails to offer any explanation for why he self-re-
ported missing so many doses after being advised of the im-
portance of complying with the antibiotic regimen, and he does not
dispute that his liver function was one reason for not continuing
treatment. And allegedly failing to follow guidelines issued by the
Center for Disease Control and the prison, without more, does not
establish deliberate indifference. See Taylor v. Adams, 221 F.3d 1254,
1259 (11th Cir. 2000) (“[F]ailure to follow procedures does not, by
itself, rise to the level of deliberate indifference because doing so is
at most a form of negligence.”). Hilderbrand also fails to explain
the significance of two alleged factual errors in the report and rec-
ommendation regarding whether his August 2010 chest x-ray was
“clear” and whether he was exposed to tuberculosis twice, as the
magistrate judge stated, or only once, as Hilderbrand asserts.
The district court also did not err in dismissing Hilder-
brand’s claim against the Estate of Dr. Ochippinti for insufficient
service of process. Fed. R. Civ. P. 4(m). Although the United States
Marshal timely served an individual named “Connie Ochippinti,”
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8 Opinion of the Court 22-13446
the prison officials’ counsel explained to the district court during a
conference call that Dr. Ochippinti and Connie divorced over 20
years ago, and there was no evidence that she could receive service
for the estate. Moreover, Hilderbrand waived the right to challenge
this ruling by failing to object to the magistrate judge’s recommen-
dation of dismissal after being warned of the consequence of failing
to do so. See 11th Cir. R. 3-1; Harrigan v. Metro Dade Police Dep’t Sta-
tion #4, 977 F.3d 1185, 1192 (11th Cir. 2020).
We AFFIRM the partial dismissal and partial summary judg-
ment against Hilderbrand’s complaint.
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