           Case: 12-14221   Date Filed: 06/20/2013   Page: 1 of 10


                                                          [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 12-14221
                         Non-Argument Calendar
                       ________________________

                  D.C. Docket No. 1:11-cv-00694-WS-M



LARRY ROY,

                                                           Plaintiff - Appellant,

                                  versus

CORRECTIONAL MEDICAL SERVICES, INC.,
DR. TESSEMMA, et al.,

                                                        Defendants - Appellees.
                       ________________________

                Appeal from the United States District Court
                   for the Southern District of Alabama
                       ________________________

                              (June 20, 2013)

Before WILSON, MARTIN and ANDERSON, Circuit Judges.

PER CURIAM:
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      Larry Roy, an Alabama prisoner proceeding pro se, sued Correctional

Medical Services and various named defendants (collectively, CMS) alleging cruel

and unusual punishment in violation of the Eighth Amendment. Roy’s complaints

stem from CMS’s alleged failure to properly treat various serious medical

conditions, including an enlarged prostate, a distended bladder, urethral strictures

and other urinary issues. In addition to compensatory and punitive damages, Roy

requested temporary injunctive relief to prevent CMS from retaliating against him

while his lawsuit was pending. Over Roy’s objections, the district court granted

summary judgment to CMS on Roy’s Eighth Amendment claims, and denied his

request for injunctive relief as moot. This appeal followed.

              I.   BACKGROUND AND PROCEDURAL HISTORY

      In October 2009, while incarcerated at Holman Correctional Facility

(Holman), Roy was seen by Dr. Negash Tesemma, Holman’s Medical Director and

a named defendant, for a routine semi-annual physical exam. Laboratory tests

ordered as a result of this exam indicated an elevated PSA, suggesting the

possibility of prostate cancer. Dr. Tesemma referred Roy to an off-campus

urologist, Dr. Alfred Newman, who examined Roy on November 4, 2009. Dr.

Newman determined that Roy suffered from an enlarged prostate, but not prostate

cancer, and prescribed two medications as treatment.




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      A little less than five weeks later, on December 8, Roy requested follow-up

medical treatment from CMS, complaining of “severe stomach problems, fever and

[frequent] trips to bathroom to defecate[, e]xtreme nausea, dizziness, severe

headaches, difficulty breathing, shortness of breath, [and] lightheadedness.” Roy

further indicated that he suspected that his condition was the result of an allergy to

the medications prescribed by Dr. Newman.

      The record indicates that Roy’s December 8 appointment was the first time

that CMS learned of his worsening medical condition. The record is clear,

however, that it was by no means the last. In the four and a half years since, Roy’s

deteriorating condition has resulted in diagnoses of various serious and painful

medical conditions, including an enlarged prostate, a distended bladder, frequent

urethral strictures and bladder outlet obstructions, Giardiasis, and urinary tract

infections. These conditions required surgical intervention to insert a catheter into

Roy’s penis so that he could void urine. Indeed, CMS acknowledges that “[m]ost

of [Roy’s] complaints arose from urinary issues during his incarceration which

resulted in his continual reliance upon a catheter.” CMS also concedes that Dr.

Newman instructed CMS staff in February 2011 to “change [Roy’s] catheter every

four weeks in the prison clinic.”

      In December 2011, Roy sued CMS under 42 U.S.C. § 1983 alleging

“deliberate indifference to his serious medical needs” in violation of the Eighth


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Amendment’s prohibition of cruel and unusual punishment. Specifically, Roy’s

pro se complaint made out two claims: first, that CMS exhibited “deliberate

indifference to his serious medical needs . . . by ignoring and not treating for 47

days the severely allergic reaction and adverse side-effects” caused by the

medications prescribed on November 4, 2009; and, second, that CMS further

exhibited “deliberate indifference to his serious medical needs . . . by additional

acts of negligence, and gross and malicious incompetence” related to his catheter

treatments. Roy also requested a temporary injunction to prevent CMS “from

taking any action, and/or declining to take proper medical treatment in retaliation

for the filing of [his] suit.”

       In response to Roy’s complaint, CMS filed an answer and a special report

denying Roy’s allegations and asserting various defenses. The district court

treated these filings as a motion for summary judgment. Roy responded in

objection to CMS’s construed motion for summary judgment, supplementing the

record with additional evidence that on at least one occasion—from January to

May 2012—he was forced to go nearly fifteen weeks without having his catheter

changed, despite CMS’s knowledge of his serious medical condition and Dr.

Newman’s express instructions to the contrary. Without discussing this evidence,

the district court granted summary judgment to CMS on each of Roy’s claims, and




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dismissed his complaint with prejudice. The district court further denied Roy’s

request for a preliminary injunction as moot.




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                                 II.   DISCUSSION

      “We review the district court’s grant of summary judgment de novo,

applying the same legal standards as the district court.” McCormick v. City of Fort

Lauderdale, 333 F.3d 1234, 1242–43 (11th Cir. 2003). Summary judgment is

appropriate if the evidence establishes “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).

“The evidence, and all reasonable inferences, must be viewed in the light most

favorable to the nonmovant . . . .” McCormick, 333 F.3d at 1243. However, “[t]he

mere existence of a scintilla of evidence in support of the plaintiff’s position will

be insufficient; there must be evidence on which the jury could reasonably find for

the plaintiff.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S. Ct.

2505, 2512 (1986).

      “[A] prison official’s deliberate indifference to the serious medical needs of

a prisoner constitutes the unnecessary and wanton infliction of pain proscribed by

the Eighth Amendment.” Farrow v. West, 320 F.3d 1235, 1243 (11th Cir. 2003)

(quotation marks and alterations omitted). “However, not every claim by a

prisoner that he has not received adequate medical treatment states a violation of

the Eighth Amendment.” McElligott v. Foley, 182 F.3d 1248, 1254 (11th Cir.

1999) (quotation marks omitted). Rather,

      [t]o show that a prison official acted with deliberate indifference to
      serious medical needs, a plaintiff must satisfy both an objective and a
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      subjective inquiry. First, a plaintiff must set forth evidence of an
      objectively serious medical need. Second, a plaintiff must prove that
      the prison official acted with an attitude of “deliberate indifference” to
      that serious medical need.

Farrow, 320 F.3d at 1243 (citations omitted).

      Our de novo review satisfies us that the district court properly granted

summary judgment on Roy’s claim that CMS exhibited deliberate indifference by

failing to treat his alleged allergic reaction for forty-seven days following his

appointment with Dr. Newman in November 2009. Although Roy claims that he

frequently complained to Holman medical staff regarding his deteriorating

condition during this time, the record before us reflects that he only made his first

complaint on December 8, thirty-four days after his visit to Dr. Newman. Roy was

evaluated by CMS staff that same day, and received medication for his symptoms.

After that, CMS staff evaluated Roy three times in the next nine days. On this

record, we are not persuaded that CMS’s initial response to Roy’s deteriorating

medical condition exhibited deliberate indifference to a serious medical need. See

Scott v. Harris, 550 U.S. 372, 380, 127 S. Ct. 1769, 1776 (2007) (“When opposing

parties tell two different stories, one of which is blatantly contradicted by the

record, so that no reasonable jury could believe it, a court should not adopt that

version of the facts for purposes of ruling on a motion for summary judgment.”).

      We do not agree, however, that the district court properly granted summary

judgment on Roy’s claim that CMS exhibited deliberate indifference to his medical
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needs in failing to provide proper medical treatment in the years since 2009. The

district court assumed that Roy had satisfied the first prong of the test for

deliberate indifference; that is, that he “has endured an objectively serious medical

need.” CMS does not contest this assumption on appeal, nor could it given the

various diagnoses discussed above. The medical evidence in the record is more

than sufficient to establish that Roy suffers from an “an objectively serious medical

need.” Farrow, 320 F.3d at 1243.

       Further, Roy has produced sufficient evidence to create a genuine dispute

regarding whether “[a] prison official acted with an attitude of ‘deliberate

indifference’ to that serious medical need.” Id. On this point, we are particularly

alarmed by Roy’s unrebutted evidence that despite his dependence on a catheter

and Dr. Newman’s directive that his catheter be changed every four weeks to

prevent complications to his medical condition, Roy has gone up to fifteen weeks

without having his catheter changed, most recently in early 2012. Indeed, CMS’s

own evidence—submitted in support of its motion for summary judgment—

reflects that Roy has frequently suffered such delays. 1 Even more problematic,

CMS staff dismissed Roy’s complaints regarding these delays with statements such


1
  Although our review is, of course, limited to the record before the district court at the time it
issued its order granting summary judgment, see Reeves v. Sanderson Plumbing Prods., Inc., 530
U.S. 133, 150, 120 S. Ct. 2097, 2110 (2000) (“[I]n entertaining a motion for judgment as a
matter of law, the court should review all of the evidence in the record.”), we note with
consternation Roy’s complaints that he has suffered even longer delays between catheter changes
since filing his appeal.
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as: (1) “[t]he urologist we use only sees patients one day a month and we have a

long list of people needing to see him”; and (2) “[i]t was not CMS’s fault that your

urethra closed. As you have been told—the urologist sees inmates one day a

month and there is [sic] a lot of people seeing him.”

      By its own admission, CMS was on notice as early as February 2011 that

Roy required frequent catheter changes. In granting CMS’s motion for summary

judgment on Roy’s complaint regarding his ongoing medical care, the district court

did not address the delays between Roy’s catheter treatments, much less whether

they worsened his medical condition, or were justified by medically sound reasons.

See Hill v. Dekalb Reg’l Youth Det. Ctr., 40 F.3d 1176, 1189 (11th Cir. 1994)

(“[D]elay in medical treatment must be interpreted in the context of the seriousness

of the medical need, deciding whether the delay worsened the medical condition,

and considering the reason for delay.”), overruled in part on other grounds by Hope

v. Pelzer, 536 U.S. 730, 739 n.9, 122 S. Ct. 2508, 2515 n.9 (2002). During these

delays, Roy was permitted to suffer from pain, bleeding, and bloating. CMS has

offered no reasonable medical explanation for these delays. Thus, we conclude

that an issue of fact is presented as to whether CMS’s failure to regularly provide

Roy with catheter treatment pursuant to Dr. Newman’s orders displayed deliberate

indifference to Roy’s serious medical need. See Farrow, 320 F.3d at 1248.




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                                III.   CONCLUSION

      For these reasons, we affirm the district court’s grant of summary judgment

to CMS and the named defendants on Roy’s claim that they displayed deliberate

indifference in failing to provide him medical treatment in the forty-seven days

following his initial visit to Dr. Newman. However, we reverse and vacate the

entry of summary judgment on Roy’s claim that CMS and the named defendants

have displayed deliberate indifference in failing to provide proper ongoing medical

care since his initial deterioration. Likewise, we reverse and vacate the district

court’s denial of Roy’s request for temporary injunctive relief on mootness

grounds. Roy’s case is remanded to the district court for further proceedings

consistent with this opinion.

      AFFIRMED in part, REVERSED and VACATED in part.




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