4:23-cv-00024•DIXON v. STARLING, et al
Testo completo
IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF GEORGIA COLUMBUS DIVISION FREDERICK DOUGLAS DIXON, : : Plaintiff, : : v. : Case No. 4:23-cv-24-CDL-AGH : RETINA MARIE JONES, et al., : : Defendant. : _________________________________ : REPORT AND RECOMMENDATION Pending before the Court are Defendants Retina Marie Jones, Darryl Starling, and Letitia Burks’ motions for summary judgment (ECF No. 100, 103). For the reasons stated below, it is recommended that Defendants’ motions be granted. PROCEDURAL BACKGROUND Plaintiff’s claims arise from his confinement at Rutledge State Prison (“RSP”). Am. Compl. 2-3, ECF No. 44. Plaintiff alleges that as a result of a slow-draining shower, his feet became infected. Id. at 5. He contends that Starling—who was a maintenance engineer at RSP—was deliberately indifferent to his safety by not fixing the drainage issue and that Burks—who was RSP’s deputy warden for care and treatment at RSP—was deliberately indifferent to his safety by not adequately supervising her subordinates to ensure the drainage problem was fixed. Id. at 2, 5; Pl.’s Objs. 10-11, ECF No. 51. Plaintiff also alleges that Jones—a Nurse Practitioner at RSP—was deliberately indifferent to his serious medical needs by providing inadequate medical care for his infection. Am. Compl. 6-7. Plaintiff originally filed his complaint in the United States District Court for Case 4:23-cv-00024-CDL-AGH Document 116 Filed 12/15/25 Page 1 of 31
2 the Northern District of Georgia on January 19, 2023. Compl. 1, ECF No. 1. The Northern District transferred the case to this court on February 10, 2023. Order 2, ECF No. 3. The Court received Plaintiff’s first recast complaint (ECF No. 7) on April 6, 2023, and his second recast complaint (ECF No. 9) on April 14, 2023. The second recast complaint identified Starling, Jones, and Burks as defendants. 2d Recast Compl. 1, ECF No. 7. It asserted a deliberate indifference to safety claim against Starling, a deliberate indifference to a serious medical need claim against Jones, a medical malpractice claim against Jones, deliberate indifference and equal protection claims against Burks, and retaliation claims against unspecified prison officials. See generally, 2d Recast Compl. Upon preliminary screening, Plaintiff’s deliberate indifference to safety claim against Starling and his deliberate indifference to a serious medical need claim against Jones were allowed to proceed for further factual development. Order & R. 9, May 30, 2023, ECF No. 13. His remaining claims— including his retaliation claims and claims against Burks—were dismissed. Id.; Order, July 14, 2023, ECF No. 21 (adopting recommendation). On September 1, 2023, Plaintiff filed a motion to amend his complaint (ECF No. 34) and submitted the proposed amended complaint (ECF No. 41). Because Plaintiff was entitled to amend his complaint as a matter of course, the Court granted Plaintiff’s motion to amend, adopted the proposed amended complaint as the operative pleading in the case, and then conducted a preliminary screening of Plaintiff’s amended complaint. Order & R. 8-15, Nov. 6, 2023, ECF No. 42. In his amended complaint, Plaintiff identified Starling, Jones, Burks, the WellPath Case 4:23-cv-00024-CDL-AGH Document 116 Filed 12/15/25 Page 2 of 31
3 Company (“WellPath”), and the Georgia Department of Corrections (“GDC”) as defendants. Am. Compl. 1, ECF No. 44. Plaintiff re-asserted his deliberate indifference to safety claim against Starling. Id. at 4-5. As to Jones, Plaintiff re- asserted his deliberate indifference to a serious medical need claim. Id. at 6-7. He also re-asserted a previously dismissed medical malpractice claim against Jones and added an equal protection claim. Id. at 4 ,8. Plaintiff identified WellPath as Jones’s employer and alleged that it violated his constitutional rights by failing to adequately train its staff. Id. at 3. He also stated that WellPath violated his equal protection rights. Id. at 8. He alleged that the GDC is liable for failing to “oversee the people who caused the constitutional violation, by hiring unqualified people.” Am. Compl. 3. He also contended that the GDC was deliberately indifferent to his health and safety because it failed to correct the plumbing problems at RSP despite its actual knowledge the conditions. Id. at 7. Finally, although Plaintiff identified Burks as a defendant, his only specific mention of her in the body of the amended complaint was a statement that she was the Deputy Warden of Care and Treatment at RSP. Id. at 2. He made no specific allegations that she violated his constitutional rights. On November 6, 2023, the Court recommended that Plaintiff’s newly asserted claims—including those against Burks—be dismissed. Order & R. 11-12, 16. The Court received Plaintiff’s objections (ECF No. 51) to the recommendation on January 16, 2024. In his recommendation, he provided specific allegations against Burks, including an assertion that she was deliberately indifferent by not adequately supervising her subordinates to ensure the drainage problem was fixed. Pl.’s Objs. Case 4:23-cv-00024-CDL-AGH Document 116 Filed 12/15/25 Page 3 of 31
4 10-11. On January 19, 2024, the recommendation was adopted in part and rejected in part (ECF No. 52). Plaintiff’s newly asserted claims were dismissed, except that Plaintiff’s deliberate indifference to safety claim against Burks was allowed to proceed. Order 2, Jan. 19, 2024, ECF No. 52. Jones answered the amended complaint on January 22, 2024 (ECF No. 55), and Burks and Starling answered on March 22, 2024 (ECF No. 59). On August 20, 2025, Jones moved for summary judgment and judgment on the pleadings (ECF No. 100), and Burks and Starling moved for summary judgment (ECF No. 103) on September 2, 2025.1 Plaintiff timely responded (ECF Nos. 107, 112) and Jones filed a reply (ECF No. 111). Defendants’ motions are ripe for review. DISCUSSION Defendant Jones filed a combined motion for judgment on the pleadings and motion for summary judgment (ECF No. 100) and Defendants Burks and Starling filed a motion for summary judgment (ECF No. 103). All three Defendants base their summary judgment motions, in part, on Plaintiff’s failure to exhaust his administrative remedies. Because exhaustion is a “threshold matter” that must be decided prior to considering the merits of the case, the Court first addresses exhaustion. Chandler v. Crosby, 379 F.3d 1278, 1286 (11th Cir. 2004). 1 The case was stayed from January 10, 2025, until June 16, 2025, due to WellPath’s bankruptcy (ECF Nos. 80, 86). Case 4:23-cv-00024-CDL-AGH Document 116 Filed 12/15/25 Page 4 of 31
5 I. Exhaustion A. Exhaustion Standard The Prison Litigation Reform Act (“PLRA”) provides that “[n]o action shall be brought with respect to prison conditions under section 1983 of this title . . . by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). When a grievance procedure is provided for prisoners, “an inmate alleging harm suffered from prison conditions must file a grievance and exhaust the remedies available under that procedure before pursuing a § 1983 lawsuit.” Brown v. Sikes, 212 F.3d 1205, 1207 (11th Cir. 2000) (emphasis added). “To exhaust administrative remedies in accordance with the PLRA, prisoners must properly take each step within the administrative process. If their initial grievance is denied, prisoners must then file a timely appeal.” Bryant v. Rich, 530 F.3d 1368, 1378 (11th Cir. 2008) (internal citation and quotation marks omitted). “Proper exhaustion demands compliance with an agency’s deadlines and other critical procedural rules because no adjudicative system can function effectively without imposing some orderly structure on the course of its proceedings.” Woodford v. Ngo, 548 U.S. 81, 90-91 (2006). “The level of detail necessary in a grievance to comply with the grievance procedures will vary from system to system and claim to claim, but it is the prison’s requirements, and not the PLRA, that define the boundaries of proper exhaustion.” Jones v. Bock, 549 U.S. 199, 218 (2007). “The critical function of the grievance process is that it provides the institution with notice of a problem such that they have Case 4:23-cv-00024-CDL-AGH Document 116 Filed 12/15/25 Page 5 of 31
6 an opportunity to address the problem internally.” Toenniges v. Ga. Dep’t of Corr., 600 F. App’x 645, 649 (11th Cir. 2015). “Because exhaustion of administrative remedies is a matter in abatement and not generally an adjudication on the merits, an exhaustion defense . . . is not ordinarily the proper subject for a summary judgment; instead, it should be raised in a motion to dismiss, or be treated as such if raised in a motion for summary judgment.” 2 Bryant, 530 F.3d at 1374-75 (internal quotation marks omitted). Further, since dismissal for failure to exhaust is not an adjudication on the merits, the Court can resolve factual disputes using evidence from outside the pleadings. Id. at 1376. “[D]eciding a motion to dismiss for failure to exhaust administrative remedies is a two-step process.” Turner v. Burnside, 541 F.3d 1077, 1082 (11th Cir. 2008). “First, the court looks to the factual allegations in the defendant’s motion to dismiss and those in the plaintiff’s response, and if they conflict, takes the plaintiff’s version of the facts as true.” Id. If, taking plaintiff’s facts as being true, the defendant is entitled to dismissal for failure to exhaust, then the complaint should be dismissed. Id. “If the complaint is not subject to dismissal at the first step . . . the court then proceeds to make specific findings in order to resolve the disputed factual issues 2 Such is the case here. Therefore, although Defendants argue exhaustion in summary judgment motions, it will be treated as if raised in a motion to dismiss. Burks and Starling specifically raised exhaustion as a defense in their answer, so it is not waived. Burks & Starling Answer 2, ECF No. 59; see Black v. Camon, No. 7:06-cv-75-HL, 2008 WL 2119914, at *2 (M.D. Ga. May 19, 2008) (finding exhaustion was not waived and could be asserted in a motion for summary judgment because defendants raised it as a defense in their answer); see also Gomez v. Jackson, No. 1:18-cv-963, 2020 WL 4048061, at *9 n.9 (N.D. Ga. July 20, 2020) (citing cases to illustrate that “the Eleventh Circuit routinely affirms orders granting post-answer motions to dismiss (styled as motions for summary judgment) for lack of exhaustion”). Case 4:23-cv-00024-CDL-AGH Document 116 Filed 12/15/25 Page 6 of 31
7 related to exhaustion.” Id. The defendant bears the burden of proof during this second step. Id. In resolving the factual dispute, a Court is authorized to make credibility determinations. See Bryant, 530 F.3d at 1377-78 (finding that district court did not clearly err in determining that plaintiff’s allegation that he was denied access to grievance forms was not credible); see also Whatley v. Smith, 898 F.3d 1072, 1082-83 (11th Cir. 2018) (upholding district court finding that one of inmate’s grievances was not filed). A prisoner need only exhaust administrative remedies that are available. Ross v. Blake, 578 U.S. 632, 642 (2016). In Ross, the Supreme Court held that an administrative procedure is unavailable under the PLRA when either (1) “it operates as a simple dead end—with officers unable or consistently unwilling to provide any relief to aggrieved inmates,” (2) it is “so opaque that it becomes, practically speaking, incapable of use,” or (3) “prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation.” Id. at 643-44. For a remedy to be available, it “must be capable of use for the accomplishment of its purpose.” Turner, 541 F.3d at 1084 (quotation marks omitted). The burden is on the defendant to show that an administrative remedy is available, but “once that burden has been met, the burden of going forward shifts to the plaintiff, who . . . must demonstrate that the grievance procedure was subjectively and objectively unavailable to him.” Geter v. Baldwin State Prison, 974 F.3d 1348, 1356 (11th Cir. 2020) (internal quotation marks omitted) (citing Turner, 541 F.3d at 1085). District courts must use the two-step Turner analysis when Case 4:23-cv-00024-CDL-AGH Document 116 Filed 12/15/25 Page 7 of 31
8 addressing the availability of the grievance process. See Jenkins v. Sloan, 826 F. App’x 833, 839 (11th Cir. 2020) (directing district courts to apply “the two-step Turner test when addressing the question of exhaustion and the availability of the grievance process”). B. RSP Administrative Procedures Defendants submitted the declaration of Taylor Turnage—whose responsibilities include overseeing the grievance process at RSP—to establish that administrative remedies were available to Plaintiff at RSP. Turnage Decl. ¶¶ 2-3, ECF No. 103-3. According to Turnage, RSP follows the Georgia Department of Corrections (“GDC”) Standard Operating Procedure 227.02 (the “SOP”) regarding grievances. Id. ¶ 3. The SOP mandates that an inmate must follow a two-step process in order to exhaust his remedies: (1) file an original grievance no later than ten days from the date the inmate knew or should have known of the facts giving rise to the grievance; and (2) file an appeal to the Central Office. Turnage Attach. 1, at 8, ECF No. 103-4. After a grievance is filed, the grievance coordinator will screen the grievance and accept it for processing or recommend rejection of the grievance for one of the reasons enumerated in the SOP, including raising a non-grievable issue, untimeliness, or raising more than one issue. Id. at 9. If a grievance is accepted, the Warden has forty calendar days from the date the offender submitted the grievance to respond, though a one-time ten-day extension may be granted. Id. at 11. An inmate may file an appeal within seven days after the Warden issues a decision or after the time Case 4:23-cv-00024-CDL-AGH Document 116 Filed 12/15/25 Page 8 of 31
9 allowed for the warden to decide expires. Id. at 14. The Commissioner has one hundred and twenty days within which to respond to a grievance appeal. Id. at 15. Pursuant to the SOP, an inmate “may file a grievance about any condition, policy, procedure, or action or lack thereof that personally affects the Offender.” Id. at 4. This includes grievances alleging retaliation. Turnage Attach. 1, at 5. However, an inmate is limited to two active grievances. Id. at 6. If a new grievance would exceed this limit, the grievance coordinator will alert the inmate and give him the option of dropping one grievance. Id. C. Plaintiff’s Grievances According to Turnage, Plaintiff submitted Grievance Number 339745 on June 8, 2022. Turnage Decl. ¶ 13; Turnage Attach. 6, at 8, ECF No. 103-9. In this grievance, Plaintiff stated that the downstairs shower in his unit was not draining correctly and that “waste materials from the sewage water has attack my feet to cause injury from the parasitic in the form of mold organisms and/or mildews.” Turner Attach. 6, at 8. In response to the grievance, Starling provided a statement indicating that he had inspected the shower on June 13, 2022, and let it run for twenty-five minutes with Plaintiff watching. Id. at 6. According to Starling, the shower had no problem draining and the shower was “working fine.” Id. On July 8, 2022, Burks responded to the grievance by summarizing Starling’s statement and denying the grievance. Id. at 4. Plaintiff appealed the grievance denial, but it was again denied by the Central Office. Id. at 1, 5. Plaintiff filed Grievance Number 341150 on July 11, 2022. Turnage Decl. ¶ Case 4:23-cv-00024-CDL-AGH Document 116 Filed 12/15/25 Page 9 of 31
10 13; Turnage Attach. 7, at 4, ECF No. 103-10. In this grievance, Plaintiff alleged that on July 6, 2022, the downstairs toilets and shower in his building overflowed, causing waste and sewage to flood the downstairs cells. Turnage Attach. 7, at 4. He requested reimbursement for shoes that were ruined while he helped clean up the sewage. Id. On August 22, 2022, Burks denied the claim, noting that an officer had provided a statement indicating that he had examined Plaintiff’s shoes and they were not damaged. Id. at 3. Plaintiff appealed the grievance denial, but it was denied by the Central Office. Id. at 1-2. Plaintiff filed another conditions of confinement grievance on August 24, 2022. Turnage Decl. ¶ 13; Turnage Attach. 5, at 4, ECF No. 103-8; Turnage Attach. 2, at 2, ECF No. 103-5. In Grievance Number 342820, Plaintiff complained that he had been attacked by another inmate and subsequently requested protective custody, but it was denied by Lieutenant James. Turnage Attach. 5, at 4. Deputy Warden of Security Moses provided a statement in connection with the grievance investigation, stating under oath that Plaintiff had assaulted the other inmate and that protective custody was not justified due to his aggressive behavior. Id. at 8. On September 8, 2022, Burks denied the grievance, citing Moses’s statement. Id. at 3. Plaintiff appealed the denial, but it was denied by the Central Office. Id. at 1-2. Burks also addressed other grievances filed by Plaintiff, including two grievances filed on December 15, 2021—Grievance Numbers 33341 and 33342— wherein Plaintiff complained about needing a combination lock and not being provided soft shoes. Turnage Attach. 3, at 1, ECF No. 103-6; Turnage Attach. 4, at Case 4:23-cv-00024-CDL-AGH Document 116 Filed 12/15/25 Page 10 of 31
11 1, ECF No. 103-7. According to Plaintiff’s grievance history, he filed no grievances alleging retaliation at RSP from June 8, 2022, until he filed his complaint in this case. Turnage Attach. 2, at 1-3. D. Defendant Jones As noted, Jones asserts that Plaintiff’s claims against her should be dismissed because he failed to exhaust his administrative remedies by filing a grievance about the medical treatment for his feet. Jones Br. in Supp. of Mot. for Summ. J. 17-19, ECF No. 100-1. However, Jones waived an exhaustion defense by not raising it in her first responsive pleading. See Brooks v. Warden, 706 F. App’x 965, 969-70 (11th Cir. 2017) (finding exhaustion defense waived because not raised in defendant’s first motion to dismiss); Wymbs v. Smith, No: 5:22-cv-220-MTT-CHW, 2024 WL 647804, at *3 (M.D. Ga. Jan. 19, 2024) (finding that defendants waived exhaustion defense by not raising it in their answer); recommendation adopted by 2024 WL 643542 (M.D. Ga. Feb. 15, 2024). Jones’s first responsive pleading was her answer filed on January 22, 2024 (ECF No. 55). While she raised numerous defenses, none of them asserted a failure to exhaust administrative remedies. Jones Answer 1-3, ECF No. 55. Therefore, she is not entitled to dismissal based on Plaintiff’s failure to exhaust. E. Defendants Burks and Starling In their joint brief, Burks and Starling argue that Plaintiff “has failed to exhaust administrative remedies for all claims against Defendants Starling and Burks[.]” Burks & Starling Br. in Supp. of Mot. for Summ. J. 8, ECF No. 103-2. However, they only provide reasons for why claims against Burks are unexhausted Case 4:23-cv-00024-CDL-AGH Document 116 Filed 12/15/25 Page 11 of 31
12 without any substantive discussion about the deliberate indifference to safety claim against Starling. Id. at 7-10. In any event, the Court finds that Plaintiff adequately exhausted his administrative remedies as it pertains to Plaintiff’s deliberate indifference to safety claims against Burks and Starling arising from the drainage issues. Grievance Numbers 339745 and 341150 raised this issue, and Plaintiff appealed both grievance denials. Turnage Attachs. 6-7. Therefore, Burks and Starling are not entitled to dismissal for failure to exhaust on Plaintiff’s deliberate indifference to safety claims arising from the drainage issue. However, Burks and Starling interpret Plaintiff’s amended complaint—as supplemented by his objections to the Court’s November 6, 2023 recommendation— as asserting a retaliation claim against Burks. Burks & Starling Br. in Supp. of Mot. for Summ. J. 1. Although Plaintiff’s objections asserted that Burks retaliated against him by denying numerous grievances, including those unrelated to the claims in the case such as denial of protective custody and not providing soft shoes, the Court only allowed Plaintiff’s claim against Burks for deliberate indifference to safety arising from the drainage issues—which was the sole subject of the allegations against Burks and Starling in his amended complaint—to proceed for further factual development. Pl.’s Objs. 10; Order 2, Jan. 19, 2024. Nevertheless, because Defendants raise retaliation in their motion for summary judgment, and Plaintiff indicated in his deposition that his suit against her was “mostly retaliation” based on her denial of grievances, the Court will address it. Pl.’s Dep. 68:8, 80:21-25, ECF No. 103-13. Case 4:23-cv-00024-CDL-AGH Document 116 Filed 12/15/25 Page 12 of 31
13 Burks asserts that Plaintiff failed to exhaust his administrative remedies regarding his retaliation claim because he never filed a grievance alleging retaliation by Burks or filing grievances about her denial of his multiple grievances. Burks & Starling Br. in Supp. of Mot. for Summ. J. 3, 6, 9. In his response to Defendants’ motion, Plaintiff does not assert that he filed a grievance alleging retaliation by Burks. Pl.’s Resp. to Burks & Starling Mot. for Summ. J. 9-18, ECF No. 112. Instead, as discussed below, Plaintiff contends that administrative remedies were unavailable. Id. Therefore, the Court can resolve the exhaustion issue at the first step of the Turner analysis and conclude that Plaintiff did not exhaust his administrative remedies on a retaliation claim. Further, even if the Court proceeded to the second Turner step, the evidence shows that Plaintiff filed no grievance against Burks for retaliation. However, Plaintiff does assert that administrative remedies were unavailable at RSP, which is sufficient to satisfy the first step of the Turner test. Therefore, the Court will proceed to the second step of the Turner analysis and make specific findings to resolve disputed factual issues related to unavailability. See Jenkins, 826 F. App’x at 839. Regarding the initial burden under Turner, a defendant only needs to show that a remedy was “generally available (i.e. a grievance procedure exists).” Wright v. Ga. Dep’t of Corr., 820 F. App’x 841, 845 (11th Cir. 2020)). A defendant is not required to show that “a remedy was available to [a plaintiff] practically speaking.” Id. Once the defendant satisfies this initial burden, “the burden of going forward Case 4:23-cv-00024-CDL-AGH Document 116 Filed 12/15/25 Page 13 of 31
14 shifts to the plaintiff, who . . . must demonstrate that the grievance procedure was subjectively and objectively unavailable to him.” Geter, 974 F.3d at 1356 (internal quotation marks and citation omitted). Here, the Court concludes that Defendants have shown that an administrative remedy was generally available to inmates at RSP—including Plaintiff—through Turnage’s declaration, Plaintiff’s multiple grievances, and Plaintiff’s own grievance history. See Wright, 820 F. App’x at 845. Second, the Court finds that Plaintiff fails to meet his burden of showing the remedy was subjectively or objectively unavailable to him. Plaintiff asserts various reasons as to why administrative remedies were unavailable to him. He cites the GDC two-active grievance rule, which requires an inmate with two active grievances to drop one if he wishes to file another. Pl.’s Resp. to Burks & Starling Mot. for Summ. J. 10; Turnage Attach. 1, at 6. However, the fact that Plaintiff had to “prioritize his grievances” under the two-active grievance requirement did not render his administrative remedies unavailable. Pearson v. Taylor, 665 F. App’x 858, 867- 68 (11th Cir. 2016) (rejecting inmate’s argument that GDC’s policy of limiting inmates to two active grievances rendered the administrative remedy unavailable); Phillips v. Deal, No: 5:15-cv-00249-MTT-CHW, 2016 WL 5539772, at *5 (M.D. Ga. July 25, 2016) (“The fact that the grievance procedure did not allow for more than two grievances to be pending at a time did not render his administrative remedies unavailable.”), recommendation adopted by 2016 WL 5660450 (M.D. Ga. Sept. 28, 2016). Plaintiff also contends that the grievance procedures were “a simple dead end Case 4:23-cv-00024-CDL-AGH Document 116 Filed 12/15/25 Page 14 of 31
15 because Defendant Burks was unable or consistently unwilling to provide any relief to aggrieved inmates.” Pl.’s Resp. to Burks & Starling Mot. for Summ. J. 10. However—even assuming Burks would have decided a retaliation grievance against herself—Plaintiff submits no evidence other than the fact that his grievances were denied to support his assertion that the grievance procedures acted as a dead end. Further, the evidence shows that each grievance was investigated and not summarily denied. Turnage Attach. 3, at 3-4; Turnage Attach. 4, at 6-15; Turnage Attach. 5, at 5-11; Turnage Attach. 6, at 2-3, 6-7; Turnage Attach. 7, at 5-6. Therefore, Plaintiff’s argument is insufficient to show that administrative remedies were subjectively or objectively unavailable to him. See Hill v. Berry, No. 5:21-cv-00379-TES-CHW, 2023 WL 2985146, at *4 (M.D. Ga. Jan. 27, 2023) (rejecting plaintiff’s argument that administrative remedies were unavailable “simply” because they were denied, noting that each was investigated stating that “[e]ven when a process is futile, exhaustion is still required under the PLRA” (citing Garcia v. Obasi, No. 21-12919, 2022 WL 669611, at *4 (11th Cir. March 7, 2022)), recommendation adopted by 2023 WL 2347436 (M.D. Ga. Mar. 3, 2023). Plaintiff further contends that administrative remedies were unavailable because Defendants created “an institution-wide hostile environment of retaliation and of routinely denying grievances, with frustration and fear arising from the grievance process.” Pl.’s Resp. to Burks & Starling Mot. for Summ. J. 16. Presumably, Plaintiff is raising the third Ross category of unavailability based on intimidation. However, Plaintiff alleges no facts to establish that he was unable to Case 4:23-cv-00024-CDL-AGH Document 116 Filed 12/15/25 Page 15 of 31
16 file a grievance against Burks based on intimidation. He does not cite any attempt to file a grievance which was thwarted by intimidation or identify any officers whose intimidation deterred him from filing a grievance for retaliation. Plaintiff’s vague, conclusory allegations are insufficient to create a factual dispute as to availability.3 In summary, the Court concludes that Jones waived any exhaustion defense and that Burks and Starling are not entitled to dismissal for failure to exhaust on Plaintiff’s deliberate indifference to safety claims. However, to the extent a retaliation claim against Burks is asserted in this case, the Court finds that Plaintiff had available administrative remedies that he failed to exhaust. Plaintiff’s retaliation claims against Burks should consequently be dismissed. II. Summary Judgment Starling and Burks move for summary judgment, contending that (1) Plaintiff cannot show deliberate indifference to his safety or retaliation, (2) Plaintiff cannot establish supervisory liability against Burks, (3) they are entitled to qualified immunity, and (4) Plaintiff’s claims for injunctive relief are moot. Burks & Starling Br. in Supp. of Mot. for Summ. J. 11-18. Defendant Jones argues that she is entitled to summary judgment because (1) there is no evidence that she was deliberately indifferent to Plaintiff’s serious medical needs, and (2) there is no evidence that she 3 Plaintiff also cites the “imminent danger exception,” seemingly to argue that the exhaustion requirement was excused. Pl.’s Resp. to Burks & Starling Mot. for Summ. J. 12. However, the imminent danger exception analysis applies to a determination of whether an inmate’s claims are barred by the three-strikes provision of 28 U.S.C. § 1915(g), not whether he exhausted his administrative remedies. See, e.g., Medberry v. Butler, 185 F.3d 1189 (11th Cir. 1999); see also Hope v. Woods, No. 2:18cv239-MHT-SRW, 2021 WL 11247680, at *5 n. 5 (M.D. Ala. Feb. 3, 2021) (“The imminent danger exception . . . does not excuse the exhaustion requirement under the PLRA.” (internal quotation marks omitted)), recommendation adopted by 2021 WL 11247681 (M.D. Ala. Feb. 25, 2021). Case 4:23-cv-00024-CDL-AGH Document 116 Filed 12/15/25 Page 16 of 31
17 caused Plaintiff’s injuries. Jones Br. in Supp. of Mot. for Summ. J. 12-17. The Court agrees that Defendants are entitled to summary judgment. A. Legal Standards 1. Summary Judgment Standard Summary judgment may be granted only “if the movant shows that 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). In determining whether a genuine dispute of material fact exists to defeat a motion for summary judgment, the evidence is viewed in the light most favorable to the party opposing summary judgment, drawing all justifiable inferences in the opposing party’s favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). A fact is material if it is relevant or necessary to the outcome of the suit. Id. at 248. A factual dispute is genuine if the evidence would allow a reasonable jury to return a verdict for the nonmoving party. Id. The party seeking summary judgment “always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (internal quotation marks omitted). If the movant meets this burden, “[t]he burden then shifts to the nonmoving party, who is required to ‘go beyond the pleadings’ to establish that there is a ‘genuine issue for trial.’” Whitehead v. BBVA Compass Bank, 979 F.3d 1327, 1328 (11th Cir. 2020) (quoting Celotex Corp., 477 U.S. at 324). Case 4:23-cv-00024-CDL-AGH Document 116 Filed 12/15/25 Page 17 of 31
18 This evidence must consist of more than conclusory allegations. See Avirgan v. Hull, 932 F.2d 1572, 1577 (11th Cir. 1991). In sum, summary judgment must be entered “against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322. 2. Deliberate Indifference Standard As noted previously, the Court allowed two of Plaintiff’s claims against Defendants to proceed past preliminary review: a deliberate indifference to safety claim against Starling and Burks and a deliberate indifference to a serious medical need claim against Jones. “To prevail on a deliberate indifference to serious medical need claim, [p]laintiffs must show: (1) a serious medical need; (2) the defendants’ deliberate indifference to that need; and (3) causation between that indifference and the plaintiff's injury.” Mann v. Taser Inter., Inc., 588 F.3d 1291, 1306-07 (2009). Whether a plaintiff has a serious medical need is an objective inquiry. Farrow v. West, 320 F.3d 1235, 1243 (11th Cir. 2003). “[A] serious medical need is considered 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 doctor’s attention.” Id. (quotation marks omitted). Further, “the medical need must be one that, if left unattended, poses a substantial risk of serious harm.” Id. (internal quotation marks omitted). “[M]edical treatment violates the Constitution only when it is so grossly incompetent, inadequate, or excessive as to shock the conscience or to Case 4:23-cv-00024-CDL-AGH Document 116 Filed 12/15/25 Page 18 of 31
19 be intolerable to fundamental fairness.” Dang ex rel. Dang v. Sheriff, 871 F.3d 1272, 1280 (11th Cir. 2017) (internal quotation marks omitted). “To establish a § 1983 claim for deliberate indifference [to safety], a plaintiff must show (1) a substantial risk of serious harm; (2) the defendants’ deliberate indifference to that risk; and (3) causation.” Marbury v. Warden, 936 F.3d 1227, 1233 (2019). As with a serious medical need, whether a plaintiff faces a substantial risk of serious harm is an objective inquiry, requiring a “plaintiff to show conditions that were extreme and posed an unreasonable risk of serious injury to his future health or safety.” Id. (quotation marks omitted). To satisfy the deliberate indifference element under either claim, a “plaintiff must demonstrate that the defendant acted with subjective recklessness as used in the criminal law.” Wade v. McDade, 106 F.4th 1251, 1262 (2024) (quotation marks omitted). “[T]o do so, [the plaintiff] must show that the defendant was actually, subjectively aware that his own conduct caused a substantial risk of serious harm to the plaintiff—with the caveat . . . that even if the defendant actually knew of a substantial risk to inmate health or safety, he cannot be found liable . . . if he responded reasonably to the risk.” Id. (quotation marks omitted). 3. Supervisory Liability “It is well established in this Circuit that supervisory officials are not liable under § 1983 for the unconstitutional acts of their subordinates on the basis of respondeat superior or vicarious liability.” Christmas v. Harris Cnty., Ga., 51 F.4th 1348, 1355 (11th Cir. 2022). “Instead, supervisory liability under § 1983 occurs Case 4:23-cv-00024-CDL-AGH Document 116 Filed 12/15/25 Page 19 of 31
20 either when the supervisor personally participates in the alleged unconstitutional conduct or when there is a causal connection between the actions of a supervising official and the alleged constitutional deprivation.” Id. A causal connection can be established if: (1) “a history of widespread abuse puts the responsible supervisor on notice of the need to correct the alleged deprivation and he failed to do so”; (2) “the supervisor’s improper custom or policy led to deliberate indifference to constitutional rights”; or (3) “facts support an inference that the supervisor directed the subordinates to act unlawfully or knew that the subordinates would act unlawfully and failed to stop them from doing so.” Hendrix v. Tucker, 535 F. App’x 803, 805 (11th Cir. 2013) (quoting Douglas v. Yates, 535 F.3d 1316, 1322 (11th Cir. 2008)). 4. Qualified immunity standard “[Q]ualified immunity offers complete protection for government officials sued in their individual capacities as long as their conduct violates no clearly established statutory or constitutional rights of which a reasonable person would have known.” Oliver v. Fiorino, 586 F.3d 898, 904 (11th Cir. 2009) (quotation marks omitted). A defendant seeking qualified immunity must show that, at the time of the alleged wrongful acts, “he was acting within the scope of his discretionary authority.” Id. at 905. Once this is established, “the burden then shifts to the plaintiff to show that the grant of qualified immunity is inappropriate.” Id. To do so, a plaintiff must “demonstrate: first, that the facts when viewed in a light most favorable to the plaintiff establish a constitutional violation; and, second, that the illegality of the officer’s actions was clearly established at the time of the incident.” Id. (quotation Case 4:23-cv-00024-CDL-AGH Document 116 Filed 12/15/25 Page 20 of 31
21 marks omitted). Here, there is no dispute that Defendants were acting in the scope of their discretionary authority. B. Undisputed Material Facts On June 8, 2022, Plaintiff was in the downstairs shower of his building. Pl.’s Dep. 107:18-19; Pl.’s Resp. to Jones Mot. for Summ. J. 1, ECF No. 107; Pl.’s Resp. to Burks & Starling Mot. for Summ. J. 2.4 The shower was a single-person shower with a drain in the middle, a curtain, and three-inch barrier around it. Pl.’s Dep. 103:13- 104:18. As Plaintiff was showering, he noticed water going over his feet and then spilling over the three-inch barrier. Id. at 103:20-24, 106:14-19. On June 8, 2022, Plaintiff filed a grievance about the shower. His grievance stated that the shower “is not draining correctly during shower-call for me and the waste materials from the sewage water has attack my feet to cause injury from the parasitic in the form of organisms and/or mildews.” Turnage Attach. 6, at 8. He requested that the “incident” be reported to staff so the “drainage problem” could be fixed and also asked for a waiver of any medical payments, placement on the “chronic care list” for his feet, and to “reinstate” his store detail. Id. In response to the grievance, Starling inspected the shower in Plaintiff’s presence on June 13, 2022. Id. at 6; Pl.’s Dep. 31:1-8. According to Plaintiff, Starling turned the water on and let it run, and the shower “began to back up slightly. It was backing up a little bit[.]” Pl.’s Dep. 31:3-5. Plaintiff tried to point this out, 4 Plaintiff’s responses to the summary judgment are signed “under penalty of perjury,” so the Court may consider his factual statements therein at the summary judgment stage. Pl.’s Resp. to Jones Mot. for Summ. J. 22; Pl.’s Resp. to Burks & Starling Mot. for Summ. J. 20. See 28 U.S.C. § 1746; Roy v. Ivy, 53 F.4th 1338, 1344, 1347-48 (11th Cir. 2022). Case 4:23-cv-00024-CDL-AGH Document 116 Filed 12/15/25 Page 21 of 31
22 but Starling said there was nothing wrong with the shower. Id. at 31:6-7. Plaintiff testified at his deposition that the shower drainage “was fine after about, you know, a few minutes that he ran it.” Id. at 31:7-8. Starling then left. Id. at 31:10-11. He later prepared a statement in response to Plaintiff’s grievance stating that he had let the shower “run for about 25 minutes” and that it “didn’t have any problems draining.” Turnage Attach. 6, at 6. He concluded by stating that the shower was “working fine.” Id. On June 17, 2022, RSP Grievance Coordinator Jeremy Dowdell submitted a grievance investigative report, citing Starling’s statement and recommending that Plaintiff’s grievance be denied. Id. at 3. Burks denied Plaintiff’s grievance on July 8, 2022, also citing Starling’s report. Id. at 4. On July 6, 2022, the downstairs toilets and shower in Plaintiff’s building overflowed and sewage flooded into the downstairs cells.5 Turnage Attach. 7, at 4; Pl.’s Dep. 33:23-34:4. The inmates were responsible for cleaning up the sewage, and Plaintiff’s sneakers were damaged from walking through the waste. Pl.’s Dep. 31:14- 18, 32:10-14, 105:13-25. Plaintiff testified that drainage issues were a constant problem in the building and that maintenance workers would try to fix the issues but that the problems would return. Id. at 33:1-13. He stated that contractors had also been out constantly over a year or two. Id. at 33:7-9, 37:13-16. According to Plaintiff, it was the June incident that injured his feet. Id. at 106:23-107:7. He testified that “the parasites and the organism from the waste in 5 In his deposition, the Plaintiff stated the second flooding incident occurred on July 7, 2022, but in his grievance and amended complaint, he stated it occurred on July 6, 2022. Am. Compl. 6; Turnage Attach. 7, at 4. Case 4:23-cv-00024-CDL-AGH Document 116 Filed 12/15/25 Page 22 of 31
23 the sewage attached itself to [his] feet, both of [his] feet, and it began to eat [] away the flesh of [his] feet between [his] toes, especially in [his] right foot.” Id. at 35:19- 23. He stated the waste material “must have punctured” the bottom portion of his small toe and created a wound like a “small bite” or “hole” that over the course of two to three weeks got bigger and bigger. Id. at 111:17-18, 111:24-112:7, 112:21-113:1, 113:18-20. Plaintiff felt “extreme pain” around his toes and the area around his small toe “started looking greenish,” making it “irritating” for him to walk. Pl.’s Dep. 107:10-14. The infection affected both of Plaintiff’s feet, but the primary injury was to his right foot. Id. at 113:14-114:1. Plaintiff went to RSP’s medical unit in early June, “probably” the week of June 8. Id. at 107:16-21. He filled out a medical request form and was seen by Jones within twenty-four to forty-eight hours. Id. at 110:11-15. She gave him some cream and a short-distance profile Id. at 110:16-111:9. Jones also scheduled a follow-up visit. Id. at 115:2-4. Plaintiff saw Jones on June 27, 2022.6 Medical Record (“MR”) 33, ECF No. 6 The record is unclear as to when Plaintiff first submitted a medical or “sick call” request and when Jones first saw him. Plaintiff testified that he was “probably” seen the week of June 8, 2022, but he also testified that he was seen within twenty-four to forty-eight hours of submitting his sick call request. Pl.’s Dep. 107:16-21, 109:16-110:15. However, the only sick call request in the record related to feet in that time period is a June 24, 2022, request involving various unrelated medical issues and the need for “foot cream.” MR 138. If this is the sick call request referenced by Plaintiff in his deposition, and he was seen within twenty-four to forty-eight hours, then Jones first saw Plaintiff at some point after June 24—as opposed to the week of June 8. There is no treatment record or any other documentation showing when this first visit occurred. The earliest treatment record concerning Plaintiff’s feet is from June 27, 2022, and during that visit, Jones noted that Plaintiff reported “right small toe pain, and swelling with open wound” for two weeks, which he had been treating with tolnaftate cream with no relief. MR 33. Jones’s attorney referred to this visit as the “second time” Jones saw Plaintiff and Jones’s declaration also states it was the second time she saw him. Pl.’s Dep. 116:17-19; Jones Decl. ¶ 8, ECF No. 100-4. Case 4:23-cv-00024-CDL-AGH Document 116 Filed 12/15/25 Page 23 of 31
24 100-5; Pl.’s Resp. to Jones Mot. for Summ. J. 11. Jones noted a “moist, white emaceration” between the fourth and fifth toe on his right foot and an open wound on his fifth toe with swelling, normal sensation, and no drainage noted. MR 33. Jones diagnosed Plaintiff with tinea pedis with a secondary infection and prescribed him Keflex (an antibiotic), fluconazole (an antifungal medication), and Lamisil (antifungal) cream. MR 33; Jones Decl. ¶ 8, ECF No. 100-4. She also instructed Plaintiff to keep his feet clean and dry and to follow up in three weeks. MR 33. Plaintiff admitted in his deposition that he missed a “few” of his antibiotic doses. Pl.’s Dep. 116:25-117:10. Jones next saw Plaintiff on July 18, 2022. MR 28. Plaintiff reported that he “noticed some improvement” but then had “increased itching, moisture, and burning between his toes.” Id. He stated he had completed the antibiotics and fluconazole and continued to take the Lamisil cream with no improvement. Id. Plaintiff testified that during the time between the June 27 and July 18 visit, there was some improvement on his other toes and left foot but that the small toe on his right foot was getting worse. Pl.’s Dep. 118:19-119:4. Jones ordered Plaintiff to continue the Lamisil cream and added miconazole 2% cream, an antifungal. MR 28; Jones Decl. ¶ 8. She instructed Plaintiff to avoid hot showers, dry thoroughly between his toes, and wear clean, cotton socks. MR 28. Jones saw Plaintiff again on August 2, 2022. MR 25. She observed him to be ambulatory with a limp and antalgic gait, and noted that he had an open wound of Case 4:23-cv-00024-CDL-AGH Document 116 Filed 12/15/25 Page 24 of 31
25 his right fifth toe.7 Id. Her notes described the wound as having a pink wound bed, “emaciated” surrounding tissue, and serosanguinous drainage. Id. Jones diagnosed Plaintiff with cellulitis of the right lower extremity and severe tinea pedis with an open wound to the right fifth toe. Id. Based on Plaintiff’s continued pain and swelling, Jones prescribed Bactrim DS (an antibiotic) and Vitamin C. Id.; Jones Decl. ¶ 8. She also ordered that he receive daily wound care to his right foot with a wound cleanser, Medihoney, and a dry dressing. Id. Further, she ordered a wound culture and x-ray of Plaintiff’s right foot to rule out osteomyelitis. Id. She prescribed plaintiff a cane and podiatry shoe, and instructed Plaintiff to return in one week. MR 25. An August 5, 2022, x-ray of Plaintiff’s right foot showed no osteomyelitis. MR 22, 101; Jones Decl. ¶ 8. According to Plaintiff, after the x-ray and prescription of Medihoney, his condition began to improve such that by the end of the thirty-day Medihoney treatment, his wound was healing and he reached the point where he could walk without a cane. Pl.’s Dep. 129:11-23. When Plaintiff returned to see Jones on August 11, 2022, Plaintiff reported that the wound was looking and feeling much better. MR 22. At that point, the wound culture had come back to show pseudomonas and group C beta-hemolytic streptococcus, for which Jones prescribed Levaquin. Id. at 21-22; Jones Decl. ¶ 8. Her assessment was the Plaintiff’s cellulitis and severe tinea pedis were resolving. MR 22. On August 25, 2025, 7 Jones’s progress notes from August 2 and August 11, 2022, state the wound was on the left lower extremity, but Jones’s declaration clarifies that it should state that the wound was on the right foot and toe, which is consistent with Plaintiff’s testimony. Jones Decl. ¶ 2. Case 4:23-cv-00024-CDL-AGH Document 116 Filed 12/15/25 Page 25 of 31
26 Plaintiff stated he had only taken three doses of Levaquin but that his foot was almost healed with the Medihoney. Id. at 19. Jones saw Plaintiff again on September 1, 2025, and his toe was healing with no signs of infection. Id. at 17; Jones Decl. ¶ 12. Plaintiff was cleared to wear shoes and instructed to take the Lamisil until it was gone. Id. At his deposition, Plaintiff was asked if he still suffered any pain or injury, and he reported that he had flare-ups “every once in a while” but not serious enough for him to go to the medical unit. Pl.’s Dep. 128:15-129:10. C. Starling and Burks are Entitled to Summary Judgment Applying the above legal standards, both Starling and Burks are entitled to summary judgment. Plaintiff cannot establish that either Defendant was deliberately indifferent to his safety. Initially, the Court notes that if the shower incident occurred on June 8, 2022—as Plaintiff stated during his deposition and in his response to the summary judgment motions—then Starling’s actions in this case could not possibly have caused Plaintiff’s injuries. Pl.’s Dep. 107:18-19; Pl.’s Resp. to Jones Mot. for Summ. J. 1; Pl.’s Resp. to Burks & Starling Mot. for Summ. J. 2. Starling was only notified of the complaint and inspected the shower after that date, specifically June 13, 2022. Turnage Attach. 6, at 6. Thus, by the time Starling got involved, Plaintiff’s injury had already occurred. Further, even assuming the first shower flooding incident occurred sometime prior to June 8, 2022, Plaintiff cannot show deliberate indifference to safety. By Plaintiff’s own admission, the drain was only backing up “slightly.” Pl.’s Dep. 31:3- Case 4:23-cv-00024-CDL-AGH Document 116 Filed 12/15/25 Page 26 of 31
27 5. Moreover, while Plaintiff complains that it was not fixed, it was apparently fixed well enough because it was not until July that there was another problem, even with the generous assumption that the plumbing issue in July was caused by the same problem in June. Id. at 31:12-18. And Plaintiff admits that he has no evidence that Starling was in anyway involved in responding to the July incident. Id. at 34:5-17. In addition, Plaintiff testified that plumbing issues were a systemic problem at RSP over a one or two year period, resulting in contractors constantly coming out and “digging up holes” in the compound in an effort to identify the issue, and maintenance workers trying to fix the problem. Id. at 33:1-13; 37:13-16. Thus, the undisputed evidence establishes that Defendants and other RSP officials did not act with “subjective recklessness as used in the criminal law,” Wade, 106 F.4th at 1262, but instead went to great effort to try to fix—and ensure the resolution of—the plumbing issues at RSP. Moreover, even if Plaintiff could show deliberate indifference to safety, which he cannot, he still cannot meet the second prong of the qualified immunity analysis by showing “that the illegality of the officer’s actions was clearly established at the time of the incident.” Oliver, 586 F.3d at 904. “[F]or a right to be clearly established[,] ‘existing precedent must have placed the statutory or constitutional question beyond debate. This inquiry must be undertaken in light of the specific context of the case, not as a broad general proposition.”” Benning v. Comm’r, Ga. Dep’t of Corr., 71 F.4th 1324, 1338 (11th Cir. 2023) (quoting Rivas-Villegas v. Cortesluna, 595 U.S. 1, 5 (2021)). Here, Plaintiff points to no materially similar case Case 4:23-cv-00024-CDL-AGH Document 116 Filed 12/15/25 Page 27 of 31
28 where a prison official has been held liable for deliberate indifference for failing to fix a “slightly” slow-draining shower or for only overseeing two years’ worth of constant efforts to fix various plumbing issues.8 Finally, to the extent retaliation is even an issue in this case and is not otherwise dismissed for failure to exhaust, Burks is entitled to summary judgment on the claim. Plaintiff asserts that Burks’ retaliation was in the form of denying various grievances. Pl.’s Objs. 10; Pl.’s Dep. 80:21-25; Pl.’s Resp. to Burks & Starling Mot. for Summ. J. 5-6, 8. But even if true, an inmate has no right to a grievance procedure, so the denial of a grievance does not constitute a constitutional violation. See Chambers v. Nelson, No. 1:07–CV–26-WLS, 2009 WL 902191, at *2 (M.D. Ga. Mar. 31, 2009) (“Since there is no constitutional right to a grievance procedure, denying a grievance at the institutional level does not implicate the constitution.”). Further, Plaintiff’s theory that Burks’ denial of grievances was retaliatory is based on allegations that the grievances were not investigated. Pl.’s Dep. 63:24-64:9, 66:8- 22, 79:21-80:25; Pl.’s Resp. to Burks & Starling Mot. for Summ. J. 5-6, 8. But the undisputed evidence in the record shows that Plaintiff’s grievances were investigated, and Plaintiff offers nothing contradictory but rank speculation. Turnage Attach. 3, at 3-4; Turnage Attach. 4, at 6-15; Turnage Attach. 5, at 5-11; Turnage Attach. 6, at 2-3, 6-7; Turnage Attach. 7, at 5-6; Pl.’s Dep. 64:5-12. Therefore, to the extent a retaliation claim is even a live issue in this case, Burks is entitled to summary 8 Because the Court finds that Plaintiff has otherwise failed to establish the elements of deliberate indifference to safety, the Court will not address Starling and Burks’s argument that there is no competent expert testimony as to causation. Burks & Starling Br. in Supp. of Mot. for Summ. J. 12- 13. Case 4:23-cv-00024-CDL-AGH Document 116 Filed 12/15/25 Page 28 of 31
29 judgment.9 D. Jones is Entitled to Summary Judgment The Court also concludes that Jones is entitled to summary judgment. 10 According to the undisputed evidence, Jones was not deliberately indifferent to Plaintiff’s medical condition but initiated treatment and continued treating Plaintiff until his wound healed. Throughout the course of treatment, Jones adjusted and added antibiotics and antifungal medication, ordered daily wound care, and ordered appropriate lab work and an x-ray to rule out osteomyelitis. By September 1, 2025, Plaintiff’s toe was healing with no signs of infection. MR 17; Jones Decl. ¶ 12. Plaintiff argues that Jones was deliberately indifferent by not referring him to a doctor and by not ordering x-rays and a wound culture sooner. Pl.’s Resp. to Jones Mot. for Summ. J. 2, 11-15. However, Plaintiff provides no evidence that a nurse practitioner is not qualified to diagnose and treat foot infections, and Jones presents undisputed evidence that she was qualified to provide such treatment. Jones Decl. ¶¶ 3-4. Further, Jones’s decision regarding the timing of additional diagnostic testing was “‘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. Gamble, 429 U.S. 97, 107 (1976). Plaintiff admitted in his deposition that his wound “started out small” 9 The Court also agrees with Defendants that any claim for injunctive relief in this case was rendered moot by his transfer out of RSP. See McKinnon v. Talladega Cnty., Ala., 745 F.2d 1360, 1363 (11th Cir. 1984) (“The general rule is that a prisoner’s transfer or release from a jail moots his individual claim for declaratory and injunctive relief.”). 10 Because the Court recommends that Jones be granted summary judgment, it declines to address her motion for judgment on the pleadings. Case 4:23-cv-00024-CDL-AGH Document 116 Filed 12/15/25 Page 29 of 31
30 and only got bigger over the course of time. Pl.’s Dep. 112:4-7. Correspondingly, the record shows that when Plaintiff’s condition did not improve with the initial course of treatment, Jones adjusted Plaintiff’s medication and ordered testing as clinically indicated. Jones Decl. ¶ 11. Further, the evidence shows that the foot x- ray only demonstrated that Plaintiff did not have a bone infection and had no effect on the course of treatment. Id. ¶ 19; MR 22, 101-02. And even before Jones received the results of the wound culture, she had adjusted Plaintiff’s medication and treatment such that by the time of his next visit, his wound had greatly improved.11 MR 22-23, 25-26, 99. In summary, the evidence fails to establish that Jones “acted with subjective recklessness as used in the criminal law.” Wade, 106 F.4th at 1262. Defendant Jones is consequently entitled to summary judgment on Plaintiff’s claim of deliberate indifference to his medical needs. CONCLUSION For the reasons explained above, it is recommended that Defendants’ motions for summary judgment (ECF Nos. 100, 103) be GRANTED. Pursuant to 28 U.S.C. § 636(b)(1), the parties may serve and file written objections to this Recommendation, or seek an extension of time to file objections, within FOURTEEN (14) DAYS after being served with a copy hereof. Any objection should be no longer than TWENTY (20) PAGES in length. The district judge shall make a de novo determination of those portions of the Recommendation to which objection is made. All other portions 11 Plaintiff also argues that Jones was deliberately indifferent by prescribing him cream that was for “external use only,” but that she instructed him to apply to his open wounds, which he asserts constitutes “internal” use. Pl.’s Resp. to Jones Mot. for Summ. J. 6. However, Plaintiff presents no evidence that “for external use only” means anything other than it was not to be ingested. Case 4:23-cv-00024-CDL-AGH Document 116 Filed 12/15/25 Page 30 of 31
31 of the Recommendation may be reviewed for clear error. The parties are hereby notified that, pursuant to Eleventh Circuit Rule 3-1, “[a] party failing to object to a magistrate judge’s findings or recommendations contained in a report and recommendation in accordance with the provisions of 28 U.S.C. § 636(b)(1) waives the right to challenge on appeal the district court’s order based on unobjected-to factual and legal conclusions if the party was informed of the time period for objecting and the consequences on appeal for failing to object. In the absence of a proper objection, however, the court may review on appeal for plain error if necessary in the interests of justice.” SO RECOMMENDED, this 15th day of December, 2025. s/ Amelia G. Helmick UNITED STATES MAGISTRATE JUDGE Case 4:23-cv-00024-CDL-AGH Document 116 Filed 12/15/25 Page 31 of 31
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