                                                          [DO NOT PUBLISH]



              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT           FILED
                        ________________________ U.S. COURT OF APPEALS
                                                          ELEVENTH CIRCUIT
                                                             JUNE 2, 2008
                              No. 07-15634
                                                           THOMAS K. KAHN
                          Non-Argument Calendar
                                                               CLERK
                        ________________________

                    D.C. Docket No. 05-00011-CV-RLV-4

PHILLIP WEATHERS, as Administrator of the
Estate of Waymon Raynell Weathers, deceased,
                                                      Plaintiff-Appellant,

                                   versus

JAMES LANIER,
DALE HERNDON,
PAUL BALLINGER,
SUE SALADANJA,
KATHY SMITH, et al.,

                                                      Defendants-Appellees.
                        ________________________

                 Appeal from the United States District Court
                    for the Northern District of Georgia
                       ________________________

                                (June 2, 2008)

Before CARNES, PRYOR, and COX, Circuit Judges.

PER CURIAM:
      The Plaintiff, Phillip Weathers, challenges the district court’s order granting

summary judgment in favor of all Defendants. Weathers, as administrator of his

brother’s estate, filed a 42 U.S.C. § 1983 complaint alleging that the Defendants acted

with deliberate indifference to his brother’s diabetic-related medical needs in

violation of the Eighth Amendment. The complaint also alleges that this indifference

proximately caused the death of his brother, Raynell, who died from a sudden stroke.

      We review the grant of summary judgment de novo, viewing the evidence in

the light most favorable to the non-moving party. Gish v. Thomas, 516 F.3d 952, 954

(11th Cir. 2008). Summary judgment is appropriate where “there is no genuine issue

as to any material fact and . . . the movant is entitled to judgment as a matter of law.”

Fed. R. Civ. P. 56(c). Furthermore, the party opposing summary judgment “must . .

. set out specific facts showing a genuine issue for trial. If the opposing party does

not so respond, summary judgment should, if appropriate, be entered against that

party.” Fed. R. Civ. P. 56(e)(2).

      The district court granted summary judgment to the Defendants primarily on

the ground that Weathers failed to demonstrate that they acted with deliberate

indifference to Raynell’s serious medical needs. The court also held that Weathers

failed to present any evidence that the Defendants’ treatment regimen of Raynell’s

diabetes caused his death. We agree that Weathers has not come forward with

                                           2
evidence sufficient to withstand summary judgment showing that the Defendants’

alleged indifference proximately caused Raynell’s death.

      The first argument raised by Weathers on appeal is that the Defendants’

indifference to Raynell’s diabetes caused his stroke and death. The record does not

support this argument. Weathers’s own expert, Dr. John Clark, testified that he could

not state with a reasonable degree of medical certainty that Raynell’s diabetes led to

his stoke. (R.3-136 at 210.) Other experts expressed similar sentiment regarding the

relationship between Raynell’s diabetes and his stroke. The medical examiner, for

example, testified that while she listed diabetes as a contributing factor of Raynell’s

stroke, had she known Raynell suffered from hyperlipidemia and hypertension, she

would have listed those as contributing factors as well. (R.2-130, Ex. 2 ¶ 8.) Also,

Dr. Owen Samuels testified that Raynell was not in a diabetic crisis (“diabetic

ketoacidosis”) when he had a stroke, nor did diabetes contribute to or cause the

stroke. (R.2-132, Ex. 5 ¶¶ 7-8.)

      The second argument raised by Weathers on appeal is that Raynell would have

survived the stroke had the Defendants properly diagnosed and treated his diabetes-

related symptoms in the days preceding his fatal stroke. For support, Weathers points

to the following evidence: (1) Dr. Clark’s deposition testimony that Raynell could

have survived had the signs and symptoms of an oncoming metabolic crisis and

                                          3
stroke been properly developed; (2) Dr. Crocker’s deposition testimony that he would

have immediately evaluated a patient experiencing blurred vision and disorientation;

(3) Dr. Clark’s affidavit stating that a proper medical response to Raynell’s clinical

history and bizarre behavior would have significantly increased his chance of

survival; (4) Dr. Dunn’s deposition testimony that a known diabetic’s bizarre

behavior and confusion might indicate a metabolic disturbance; (5) Nurse Saldana’s

deposition testimony that segregating a diabetic undergoing a metabolic crisis without

a doctor’s examination jeopardizes his life; and (6) Dr. Tanner’s deposition testimony

that if presented with a patient with Raynell’s symptoms he would have examined the

patient. (Pl.’s Br. at 39-40.)

      The most compelling evidence offered by Weathers is found in the opinions of

Dr. Clark. In his expert report, he stated that Raynell “could have survived had his

signs and symptoms been appropriately addressed at the time he initially presented

in December 2002.” (R.2-105, Ex. 1 at 8.) He offered a similar opinion in his

affidavit, stating that Raynell’s chances “for survival would have been significantly

higher” had the Defendants properly treated his diabetes-related symptoms. (R.3-161,

Ex. N at 5.)

      Dr. Clark never testified, however, that appropriate action by the Defendants

in the days before Raynell’s stroke would have ensured Raynell survived the

                                          4
devastating stroke. Indeed, none of the evidence offered by Weathers suggests that

Raynell would have survived the stroke absent the alleged indifference. Rather, it

shows only that diabetes may have been a contributing cause of Raynell’s stroke and

that Raynell could have survived the stroke with proper treatment of his diabetes. In

a civil case such as this one, the plaintiff must prove every essential part of his claim

by a preponderance of the evidence. Proving something by a “preponderance of the

evidence” means “an amount of evidence that is enough to persuade [the jury] that the

Plaintiff’s claim is more likely true than not true.” Eleventh Circuit Pattern Jury

Instructions (Civil Cases), Basic Instruction 6.1 (2005); Blossom v. CSX Transp., Inc.,

13 F.3d 1477 (11th Cir. 1994). Testimony that Raynell could have survived the stroke

or that his diabetes was a contributing cause of his death does not meet this standard.

Only testimony showing that Raynell would have survived absent the alleged

indifference satisfies Weathers’s burden of proof in this case.

      Because Weathers has not demonstrated proximate cause by a preponderance

of the evidence, we need not consider whether Defendants acted with deliberate

indifference to Raynell’s serious medical needs.

      AFFIRMED.




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