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                 IN THE UNITED STATES COURT OF APPEALS
                                                                  FILED
                          FOR THE ELEVENTH CIRCUIT       U.S. COURT OF APPEALS
                           ________________________        ELEVENTH CIRCUIT
                                                               JUNE 24, 2009
                                                            THOMAS K. KAHN
                                  No. 07-14995                   CLERK
                            ________________________

                        D. C. Docket No. 05-00127-CV-JTC-3

RANDAL J. CHATHAM,


                                                              Plaintiff-Appellant,

                                       versus

COLONEL BLAKE ADCOCK,
Administrator of the Coweta County
Jail, is sued in his official and
individual capacity,
SGT. ELIZABETH HOMER,
on duty officer in charge at Coweta County
Jail, is sued in her official and
individual capacity,
JENNIE ADCOCK,
head nurse at the Coweta County Jail, is
sued in her official and individual capacity,


                                                        Defendants-Appellees,

SGT. JOHN LEWIS,
detective, is sued in his official
and individual capacity,
                                                                                 Defendant.


                              ________________________

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

                                      (June 24, 2009)

Before TJOFLAT and CARNES, Circuit Judges, and HOOD,* District Judge.

PER CURIAM:

       Randal Chatham, a pro se prisoner, filed a complaint against three prison

officials of the Coweta County Jail complaining that the officials showed

deliberate indifference to a serious medical condition by denying him access to

medication and failing to protect him from prisoner violence, in violation of the

Eighth and Fourteenth Amendments. See U.S. Const. , amend. VIII, XIV. The

prison officials denied Chatham’s allegations and, as an affirmative defense,

alleged that they were immune from suit under the doctrine of qualified immunity.

Following an initial round of discovery, the officials moved the district court for

summary judgment, asserting their defense of qualified immunity. Addressing the

question of whether the evidence of record showed that the officials had infringed


       *
       Honorable Joseph M. Hood, United States District Judge for the Eastern District of
Kentucky, sitting by designation.

                                              2
Chatham’s constitutional rights as alleged, the district court held that it did not;

the evidence was insufficient to make out a case for the jury. The court therefore

granted summary judgment.

       Chatham now appeals the court’s ruling.1 The thrust of his appeal is that the

district court erred in concluding that the evidence was insufficient to establish

triable issues of fact on his claims that the officials were deliberately indifferent to

his serious medical needs and in failing to protect him from inmate violence. We

agree that the evidence was insufficient to establish these claims for the reasons

stated in the portion of the district court’s order granting summary judgment

attached to this opinion as an Appendix. See Chatham v. Adcock, No. 3:05-CV-

0127, Order and Opinion (2007).

       AFFIRMED.




       1
          In his appeal, Chatham also challenges the district court’s denial of (1) his request for
the appointment of counsel, (2) his motion for a continuance, (3) his motion to compel discovery,
(4) his motion for reconsideration of the court’s order denying his motion to amend his complaint
and to dismiss the officials’ summary judgment motion, and (5) his motion for leave to amend
his complaint. We find no merit in any of these challenges. Rulings (1), (2), (3), and (5) were
proper exercises of the district court’s sound discretion and we find no error in ruling (4).

                                                3
                                               APPENDIX




              B. Lack of physical injury due to denial of Xanax

                    1. The legal framework

                    As discussed in greater detail in Section IV.D. 1., infra, the Eighth Amendment

             prohibits cruel and unusual punishment, including deliberate indifference to a serious

             medical need amounting to the unnecessary and wanton infliction ofpain. Steele

             v. Shah, 87 F.3d 1266, 1269 (11th Cir. 1996) (stating that "{i]n this circuit, it is

             established that psychiatric needs can constitute serious medical needs and that the

             quality of psychiatric care one receives can be so substantial a deviation from

             accepted standards as to evidence deliberate indifference to those serious psychiatric

             needs."). Nevertheless, "[njo Federal civil action may be brought by a prisoner

             confined in ajail, prison, or other correctional facility, for mental or emotional injury

             suffered while in custody without a prior showing of physical injury." 42 U.S.C.

             § 1997e(e). "In order to avoid dismissal under § 1997e(e), a prisoner's claims for

             emotional or mental injury must be accompanied by allegations of physical injuries

             that are greater than de minimis." Mitchell v. Brown & Williamson Tobacco Corp.,

             294 F.3d 1309, 1312-13 (11th Cir. 2002).

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                   The meaning of the phrase "greater than de minimis," however, is far from

            clear. At least one district court in this Circuit has held that "diarrhea, vomiting,

            cramps, nausea, and head aches from eating spoiled food" are de minimis injuries,

            precluding the recovery of compensatory damages. Watkins v. Trinity Serv. Group

            Inc., Case No. 8:05-cv-1 142, 2006 U.S. Dist. LEXIS 85592, at 1 (M.D. Fla.

            Nov. 27, 2006). See also Daniels v. Beasley, Case No. 07-200 15, 2007 U.S. App.

            LEXIS 18137, at *1*2 (5th Cir. July 30, 2007) (unpublished opinion) (concluding

            that claim failed based on prisoner's receipt of "wrong medication, which resulted in

            excessive sleep, a loss of appetite, and a temporary loss of vision," because, inter a/ia,

            prisoner failed to show that "his injuries were more than de minimis" under

            § 1 997e(e)); Sneed v. Hunt County Med. Dep't, Case No. 3-05-CV-2032, 2006 U.S.

            Dist. LEXIS 3479, at *7 (N.D. Tex. Jan. 31, 2006) (holding that prisoner's

            allegations, "that he suffered 'discomfort to mental health, lack of sleep, [and] anxiety

            attack[s]' as a result of not receiving his medication," were "insufficient to establish

            'physical injury' under the PLRA"). But see, e.g., Munn v. Toney, 433 F.3d 1087,

            1089 (8th Cir. 2006) (holding that plaintiff's allegations of "headaches, cramps,

            nosebleeds, and dizziness," as a result of being denied his prescribed blood-pressure

            treatment, survived § 1 997e(e) review).


                                                       39



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                    It appears that § 1 997e(e), when applicable, bars the recovery of compensatoly

             damages, but the availability of punitive and/or nominal damages in certain cases is

             still an open question in this Circuit. Hughes v. Lott, 350 F.3d 1157, 1162 (11th

             Cir. 2003) (concluding that "[n]ominal damages are appropriate if a plaintiff

             establishes a violation of a fundamental constitutional right, even if he cannot prove

             actual injury sufficient to entitle him to compensatory damages," but remanding to

             district court to determine whether prisoner complaint "could be liberally construed

             to request nominal damages"). See also Boxer X v. Donald, 169 Fed. Appx. 555,

             558-59 & n.1 (11th Cir. 2006) (unpublished opinion) (noting that Eleventh Circuit

             has yet to decide whether, absent a showing of physical injury as required by

             § 1997e(e), nominal or punitive damages are unavailable).

                   2. The parties' dispute

                   Defendants argue that Plaintiffs claims that "he was anxious, experienced

             nausea and vivid nightmares and had fluctuating blood pressure and hallucinations"

             are insufficient to satisfy the § 1997e(e) physical injury requirement. [Defs.' Reply

             Br. at 10. See also Defs.' Supp. Br. at 10-11.1 Plaintiff responds that "he was on a

             mental 'roller coaster ride' due to Coweta County's repeatedly 'crashing him, cold




                                                      40



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(Rev.8/82)
             turkey' from extended periods of heavy prescription use of Xanax,"9 which

             "unnecessary mental abuse was the main contributor to his suicide attempt on or

             about January 23, 2005." [Pl.'s Resp. at 16.] Plaintiff states that "this near death

             experience was in fact a physical injury." After a three-day recovery period at a

             hospital psychiatric unit, Plaintiff returned to the Jail, where he was once again

             "crashed" off his prescribed medication, "endangering him of seizure and coma," and

             causing him "mental torment." Plaintiff contends that his mental suffering was so

             severe that it amounted to "serious physical harm." He also claims that, even without

             physical injury, he is entitled to punitive damages for this serious harm. [ at 16-

             18.]

                    3. Analysis

                    In his amended complaint, Plaintiff claims that "he suffered from illusions in

             a reduced mental state" and was "near a nervous breakdown" as the result of the

             denial of Xanax in January 2005. [Doe. 8, ¶ IV & Part IV attached page 1.] In his

             affidavit, Plaintiff asserts that he experienced "5 days in mental agony," from January

             26, 2005, until on or about January 31, 2005, consisting of "agonizing anxiety,



                    Once again, Plaintiff refers to his prior incarcerations at the Jail, in August
             and November 2004, which are not at issue herein.

                                                       41



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             nausea, vivid nightmares, fluctuating blood pressure, and audio and visual

             hallucinations." [Pf.'s Aff. ¶ 22-24; see Pf.'s Exs. E22-E24.] However, one of

             Plaintiff's own exhibits refutes his claim that his "fluctuating blood pressure"

             constituted a physical injury. [ Pf.'s Ex. E22 (indicating that from January 28,

             2005, through January 30, 2005, Plaintiffs six systolic blood pressure readings (two

             per day) ranged from a low of 116 to a high of 130, with an average reading of 123,

             and his diastolic readings ranged from a low of 80 to a high of 90, with an average

             reading of 85).]

                    Plaintiffs remaining symptoms anxiety, nightmares, and hallucinations
                                                     -                                          -   do

             not rise to the level of a physical injury that is "greater than de minimis." Moreover,

             although Plaintiff did seek treatment for his "cold symptoms" during the five-day

             period at issue, he apparently did not complain of nausea or any other physical

             symptom as a result of Xanax withdrawal, stating only that he felt "agitated." [

             Nurse Adcock Aff. ¶ 4 & Attach. A.] Accordingly, pursuant to 42 U.S.C. § 1 997e(e),

             Plaintiff may not obtain compensatory damages based on his denial-of-Xanax claim. 10



                  '° However, Plaintiff might have been able to obtain punitive or nominal
             damages on his denial-of-Xanax claim if this claim otherwise were to survive
             summary judgment review, which, as discussed in Section IV.D. 1 .b.( 1), infra, it does
             not.

                                                         42



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              C. Cot. Blake's supervisory liability

                     1. The legal framework

                     Noting the well-established rule "that supervisory officials are not liable under

             § 1983 for the unconstitutional acts of their subordinates on the basis of respondeat

             superior or vicarious liability," the Eleventh Circuit has stated that, instead, a

             supervisor is individually liable only when he "personally participates in the alleged

             unconstitutional conduct or when there is a causal connection between [his] actions

                   and the alleged constitutional deprivation." Cottone v. Jenne, 326 F.3d 1352,

             1360(11th Cir. 2003). This causal connection can be established by showing that the

             supervisor knew about and failed to correct a widespread history of abuse or had a

             custom or policy that resulted in a constitutional violation, or that the "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."

             icL (Internal quotations omitted). "The standard by which a supervisor is held liable

             in [his] individual capacity for the actions of a subordinate is extremely rigorous."

             Id.




                                                       43



AO 72A
(Rev.8/82)
                    2. The parties' dispute

                    Col. Adcock asserts that he carmot be held liable for the violations alleged by

             Plaintiff because he played no role in setting the Jail's policy regarding medications,

             and he did not deny Plaintiff medications or a transfer out of maximum security

             detention. {Defs.' Supp. Br. at 11-12.]

                    Plaintiff responds that Col. Adcock, the administrator of a small jail, who,

             according to Sheriff Yeager, "does indeed run the jail," cannot deny all responsibility

             for Plaintiff's mis-classification as a maximum security prisoner and for the

             enforcement of the Jail's "no controlled substances" policy. [Pf.'s Resp. at 18.]

             Plaintiff asserts that Col. Adcock refused Cpl. Morgan's and Sgt. Homer's separate

             inquiries as to whether Plaintiff might be removed from dormitory A-6; ignored the

             three letters Plaintiff sent to him regarding Plaintiff's treatment at the Jail; and acted

             as the final decisionmaker with respect to Plaintiff's housing, as evidenced by

             Sgt. Homer's comments that "she was not moving anybody" and that "she wasn't

             calling Col. Adcock at home on a weekend." [jj at 19-20.]

                   3. Analysis

                   Although Col. Adcock may not be held liable in his individual capacity simply

             because he "runs the jail," as Plaintiff suggests, he may be held liable if he knew

                                                        44



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            about or was personally involved in any decision that violated Plaintiffs

            constitutional rights, or if he enforced a custom or policy that resulted in a violation.

                 Cottone, 326 F.3d at 1360. Based on these standards, Plaintiff has presented

            sufficient evidence to create a genuine issue of material fact as to whether Col.

            Adcock may be held liable in his individual capacity. [See. e.g., Pl.'s Ex. E25 at 1

            (Plaintiffs February 7, 2005, letter to CoT. Adcock, wherein Plaintiff states he "was

            told by all [medical personnel at the Jail] that Zanex [sic] is not allowed in this jail by

            orders of Nurse Jennie Adcock and yourself").]11 At a minimum, there is a genuine

            issue as to whether CoT. Adcock enforced a "controlled substances" policy that, by

            longstanding practice, resulted in deliberate indifference to one or more of Plaintiff's

            serious medical needs.

                  Moreover, a county official may be held liable in his official capacity if a

            constitutional violation resulted from (1) "an action taken or policy made" by a final

            policymaker for the county in the "area of [its] business" at issue, or (2) "a practice

            or custom that is so pervasive, as to be the functional equivalent of a policy adopted

            by the final policymaker." Hale v. Tallapoosa County, 50 F.3d 1579, 1582 (11th Cir.


                     Although Defendants characterize such statements as hearsay [ç Defs.'
            Reply at 4], these statements, and others like them, may be admissible under Fed. R.
            Evid. 801 (d)(2)(D) as admissions of a party-opponent. $. Sect. II, supra.

                                                       45



AO 72A
(Rev8/82)
              1995).       Monell v. Dep't of Soc. Servs., 436 U.S. 658, 690 n.55, 694 (1978)

             (noting that "official-capacity suits generally represent only another way of pleading

             an action against an entity of which an officer is an agent," and stating that a local

             government may be held liable under § 1983 "when execution of [its] policy or

             custom, whether made by its lawmakers or by those whose edicts or acts may fairly

             be said to represent official policy, inflicts the injury"); Grech v. Clayton County, 335

             F.3d 1326, 1329-30 & nn.5-6 (11th Cir. 2003) (en banc) (discussing official-capacity

             liability of county officials). See also Purcell v. Toombs County, 400 F.3d 1313,

             1325 & n.27 (11th 2005) (concluding that "Georgia.. . sheriff's authority and duty

             to administer [his] jail.   . .   flows from the State, not [the] County"   -   entitling him to

             Eleventh Amendment immunity from suit for damages in his official capacity, but

             failing to reach same issue with respect tojail administrator because district court did

             not address it and appellant did not raise it); Sanders v. Langley, Case No.

             1:03-cv-1631-WSD, 2006 U.S. Dist. LEXIS 21180, at *29*32 (N.D. Ga. Mar. 29,

             2006) (Duffey, J.) (denying Eleventh Amendment immunity to Georgia sheriff on

             prisoner's claims of deliberate indifference to his serious medical needs).

             Accordingly, Col. Adcock is not insulated from liability herein, either in his

             individual or official capacity, based on his position as a supervisor at the Jail.


                                                            46



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(Rev.8/82)
            However, punitive damages are unavailable in a suit against a county and, hence, in

            a suit against a county employee in his or her official capacity. See, e.g., Alexander

            v. Fulton County, 207 F.3d 1303, 1322 n.14 (11th Cir. 2000), overruled on other

            grounds, Manders v. Lee, 338 F.3d 1304 (11th Cir. 2003) (en banc). See also

            Newport v. Fact Concerts, 453 U.S. 247, 271 (1981) (stating that "a municipality is

            immune from punitive damages under 42 U.S.C. § 1983")

            D. The elements of a constitutional violation

                   To prevail on a claim for relief under 42 U.S.C. § 1983, a plaintiff must

            establish that an act or omission committed by a person acting under color of state

            law deprived him of a right, privilege, or immunity secured by the Constitution or

            laws of the United States. Hale, 50 F.3d at 1582.

                   1. Deliberate indifference to a serious medical need

                         a. The legal framework

                  The Eighth Amendment prohibits indifference to a serious medical need so

            deliberate that it "constitutes the unnecessary and wanton infliction of pain." Estelle

            v. Gamble, 429 U.S. 97, 104 (1976) (internal quotations omitted). To demonstrate

            deliberate indifference, a plaintiff must show both "an objectively serious medical

            need" and the defendant's subjective knowledge of, and more than negligent

                                                      47



AO 72A
(Rev8182)
            disregard of, that need. Farrow v. West, 320 F.3d 1235, 1245 (11th Cir. 2003).

            also Hill v. Dekaib Re'1 Youth Det. Ctr., 40 F.3d 1176, 1187 (11th Cir. 1994)

            (noting that "a 'serious' medical need is 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"). "A core principle of Eighth

            Amendment jurisprudence in the area of medical care is that prison officials with

            knowledge of the need for care may not, by failing to provide care, delaying care, or

            providing grossly inadequate care, cause a prisoner to needlessly suffer the pain

            resulting from his or her illness." McElligott v. Foley, 182 F.3d 1248, 1257 (11th

            Cir. 1999) (noting that "prison officials may violate the Eighth Amendment's

            commands by failing to treat an inmate's pain")

                  Negligence, however, even rising to the level of medical malpractice, does not

            constitute deliberate indifference. McElligott, 182 F.3d at 1254. See also Hinson v.

            Edmond, 192 F.3d 1342, 1345 (11th Cir. 1999) (noting that it is well-settled that

            "medical malpractice-negligence by a physician-is insufficient to form the basis of

            a claim for deliberate indifference"), amended by 205 F.3d 1264 (2000); Adams v.

            Poag, 61 F.3d 1537, 1543 (11th Cir. 1995) (noting that "[m}ere negligence in

            diagnosing or treating a medical condition is an insufficient basis" for a deliberate


                                                     48



AO 72A
(Rev8/82)
            indifference claim). Nor does a simple disagreement over a diagnosis or course of

            treatment constitute deliberate indifference. As long as the medical treatment

            provided is "minimally adequate," a prisoner's preference for a different treatment

            does not give rise to a constitutional claim. Harris v. Thigpen, 941 F.2d 1495,

            1504-05 (11th Cir. 1991); see also Adams, 61 F.3d at 1547 (concluding that the

            medical provider's "failure to administer stronger medication" to a prisoner who

            subsequently died was "a medical judgment and, therefore, an inappropriate basis for

            imposing liability under section 1983").

                         b.     The parties' dispute

                   Defendants argue that there is no causal connection between their actions and

            Plaintiff's alleged injuries because staff doctors, not Col. Adcock or Nurse Adcock,

            made the decisions regarding Plaintiff's medications. [Defs.' Supp. Br. at 13-14.]

            They also argue that Plaintiff's claims amount to no more than a disagreement over

            the course of treatment he received, and that "Plaintiff's need for Xanax for anxiety

            and more attention to his cyst were not sufficiently serious medical needs to make the

            refusal a constitutional violation." [ at 14-15.] Defendants argue further that their

            actions did not constitute deliberate indifference because, on each occasion when

            Plaintiff did not receive his prescribed medications, "he was given other


                                                       49



AO 72A
(Rev8/82)
             medications." Finally, they contend that substituting Motrin for Vicodin does not

             give rise to an Eighth Amendment violation. [ at 17.]

                    Noting that no staff doctor has submitted an affidavit in support of Defendants'

             motion for summary judgment, Plaintiff argues that Nurse Adcock's "very cursory

             substitution" of Motrin for Vicodin - without having Plaintiff examined by a doctor

             - is constitutionally infirm, as demonstrated by the prescription of stronger pain

             medication by GDOC doctors just two weeks later. [Pl.'s Resp. at 21-22.] Plaintiff

             also claims that the emotional distress he suffered as a result of repeated denials of

             Xanax and the injuries he suffered in inmate Hardy's assault are sufficient to show

             a causal connection between his injuries and Defendants' actions and omissions. [i

             at 22-23.] Finally, Plaintiff asserts that the "twice denial of [his] Xanax and the

             resulting mental 'roller coaster ride' that subsequently resulted in a suicide attempt

             and unnecessary mental torture"; the substitution of the ineffective Motrin for the

             prescribed Vicodin when he was in severe pain after Hardy's assault; and the total

             lack of treatment for his cysts before July 12, 2005, demonstrate deliberate

             indifference to his serious medical needs. [Id. at 23-27.]




                                                      50



AO 72A
(Rev.8/82)
                           c. Analysis

                                  (1) Denial of Xanax

                    When Plaintiff arrived at the Jail on or about January 26, 2005, he had a

             prescription for three medications to address his mental condition - Lexapro (10 mg

             daily), Trazodone (50 mg daily), and Xanax (1.5 mg daily). [Pf.'s Ex. E18.] Jail

             officials discontinued the Xanax, without substituting "other medications," as they

             claim, and without attempting to wean Plaintiff from the Xanax by gradually reducing

             his dosage. Burdette v. Butte County, 121 Fed. Appx. 701, 702 (9th Cir. 2005)

             (unpublished opinion) (concluding that prisoner, who had suffered seizure and fall

             while awaiting pill call, had failed to show that decision "to taper him off of Xanax

             and prescribe Imipramine" constituted deliberate indifference to a serious medical

             need because "[i]t is undisputed that the risk of serious side effects from tapering a

             patient off of Xanax is statistically slight").

                    Even so, the gravamen of Plaintiff's claim that he had a serious medical need

             for Xanax is based on his alleged suffering during the approximately five days when

             he was on suicide watch at the Jail, from January 26 until January 31, 2005. [S.

             Pf. 's Aff. ¶J 22-24.] However, Plaintiff does not assert that he informed Defendants

             of the alleged seriousness of his mental condition during that critical five-day period,

                                                        51



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              and the medical records reflect that he did not, instead complaining only of "cold

              symptoms." [ Nurse Adcock Aff. ¶ 4 & Attach. A.]

                    Given that Plaintiff was receiving other "psychotropic medication" during that

             time period, this Court cannot conclude that the record before it sets forth a genuine

             issue of material fact as to whether Defendants were deliberate/v indifferent to a

             serious medical need resulting from the denial of Xanax to Plaintiff. It appears to the

             Court that, at most, Plaintiff's denial-of-Xanax claim amounts to a claim of medical

             negligence, which cannot form the basis for an Eighth Amendment claim of cruel and

             unusual punishment. Although, in Steele, the Eleventh Circuit reversed the district

             court's grant of summary judgment to a doctor who had denied a patient his

             prescribed psychotropic medication, it did so in light of evidence that the prescribing

             medical team had informed the defendant-doctor that his patient was a "potential

             suicide risk" without the medication. Steele, 87 F.3d at 1268-7 1.

                    Here, by contrast, there is no indication in the record that any outside

             physician, or that Plaintiff himself, for that matter, informed the Jail medical staff that

             Plaintiff was a potential suicide risk or otherwise had a serious medical need for

             Xanax during the time period at issue. In fact, Plaintiff states that the physician at the

             psychiatric unit who treated him prior to his transfer to the Jail determined that he


                                                         52



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             was "non-suicidal" upon his release from the unit on January 26, 2005. [Pf.'s Aff.

             ¶ 23.] Moreover, the Jail's Medical Notes for the weeks following Plaintiff's release

             from suicide watch - made by, among others, Dr. Scott, apparently the staff

             psychiatrist - indicate that, on February 1, 2005, Plaintiff was "no longer suicidal";

             on February 2 and February 16, 2005, he was "not depressed"; and on February 14,

             2005, although he claimed that he was "hearing voices" and "not sleeping," he slept

             "during the day" and did not appear "psychotic." [P11's Exs. E20, E23, E24.]

             Nowhere in the above Medical Notes, or in any other record evidence, does it appear

             that Plaintiff complained of "extreme" or "agonizing" anxiety, "horribly torturous

             nightmares," or any other profound mental disturbance as a result of being denied

             Xanax, as he has asserted in various pleadings herein. [ Doc. 8; Pf.'s Aff. ¶ 23.]

             Accordingly, without record evidence that Defendants were aware that Plaintiff had

             a serious medical need for Xanax, there is no genuine issue of material fact as to

             whether Defendants' denial of Xanax constituted deliberate indifference. Defendants

             are entitled to summary judgment on Plaintiff's denial-of-Xanax claim.

                                (2) Treatment of Plaintiff's cysts

                   It is unclear from the record when, if ever, Plaintiff's cysts became a serious

             medical need to which Defendants might have been deliberately indifferent.


                                                     53



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              Clark v. Argutto, 221 Fed. Appx. 819, 823, 824 (11th Cir. 2007) (unpublished

              opinion) ("assuming arguendo that the cyst [on prisoner's wrist] was an objectively

             serious medical need," but affirming summary judgment to defendants because

             prisoner "received an MRI and has not shown deliberate indifference to a serious

             medical need"). However, this Court need not address the merits of Plaintiffs claim

             in this regard because there is not a genuine issue of material fact as to whether

             Plaintiff attempted to exhaust his administrative remedies with respect to this claim.

                  Section IV.A.3., supra. Accordingly, the instant claim will be denied without

             prejudice.

                                 (3) Denial of Vicodin

                   It is undisputed that Plaintiff returned from the hospital in July 2005 with a

             prescription for Vicodin, for which Nurse Adcock substituted Motrin. Although

             Nurse Adcock states that Dr. Burnett approved the substitution, her notes of July 13,

             2005, do not make this clear. [See Nurse Adcock Aff. ¶ 8 & Attach. H.] Moreover,

             Defendants do not attempt to show that Motrin provides pain relief equivalent to that

             provided by Vicodin. In that regard, their citation of a Tenth Circuit case - holding

             that the substitution of Tylenol for dentist-prescribed Motrin passed constitutional

             muster - is unpersuasive. [$. Defs.' Supp. Br. at 17.] Furthermore, in reversing a

                                                      54



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             district court's grant of summary judgment to a doctor and nurse who had prescribed

             ineffective medications for a prisoner's severe pain (who "basically did nothing to

            alleviate that pain"), the Eleventh Circuit held that it was a jury question whether the

            defendants had been deliberately indifferent to the prisoner's serious medical needs.

            McElligott, 182 F.3d at 1257-58 (citing with approval Third Circuit opinion "finding

            that inmate stated a claim for deliberate indifference based on denial of post-operative

            pain medication," and noting that, "although plaintiff was provided with aspirin, this

            may not constitute adequate medical care") (internal quotations omitted). As noted

            supra, "deliberate indifference may be established by a showing of grossly inadequate

            care as well as by a decision to take an easier but less efficacious course of

            treatment." Seals v. Shah, 145 F. Supp. 2d 1378, 1384 (N.D. Ga. 2001) (Thrash, J.).

                   Nevertheless, it is undisputed that neither of the two community physicians

            who examined Plaintiff in July 2005, shortly after his return to the Jail from the

            hospital emergency room, prescribed anything stronger than Motrin. [Nurse Adcock

            Aff. ¶ 9 & Attachs. I, J.] Plaintiff's assertion that these doctors adapted their medical

            recommendations to the Jail's policy on controlled substances is entirely speculative

            and unsupported by actual evidence. Moreover, the Emergency Room Note for

            Plaintiff's July 12, 2005, hospital visit immediately after his altercation with Hardy


                                                       55



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              indicates that Plaintiff was "in mild distress" and only "complain[ed] of some pain

             to the left wrist and back of the hand where he was struck with a broom handle."

              [Pf.'s Ex. E38 at 1 (emphasis added).] Accordingly, the Court finds that, at most,

             Plaintiff's denial-of-Vicodin claim amounts to a disagreement over a course of

             treatment recommended by different medical doctors, none of whom is a defendant

             herein. The Court concludes that there is no genuine issue of material fact as to

             whether this claim sets forth an Eighth Amendment violation, which it does not.

                  Harris, 941 F.2d at 1504-05. Therefore, Defendants are entitled to summaly

             judgment on Plaintiff's denial-of-Vicodin claim.

                    2. Failure to protect Plaintiff from assault by inmate Hardy

                          a. The legal framework

                   "[P]rison officials have a duty   . . .   to protect prisoners from violence at the

             hands of other prisoners." Farmer v. Brennan, 511 U.S. 825, 833 (1994). However,

             not every instance of inmate on inmate violence "translates into a constitutional

             liability for prison officials responsible for the victim's safety." Ici at 834. A

             violation occurs "when a substantial risk of serious harm, of which the official is

             subjectively aware, exists and the official does not respond reasonably to the risk."

             Marsh v. Butler County, 268 F.3d 1014, 1028 (11th Cir. 2001) (en bane) (internal

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            quotations omitted). To survive summary judgment, a Plaintiff must "produce

            sufficient evidence of (1) a substantial risk of serious harm; (2) the defendants'

            deliberate indifference to that risk; and (3) causation." Hale, 50 F.3d at 1582.

            "Merely negligent failure to protect an inmate from attack does not justify liability

            under section 1983   . . . .   The known risk of injury must be a strong likelihood, rather

            than a mere possibility before a guard's failure to act can constitute deliberate

            indifference." Brown v. Hughes, 894 F.2d 1533, 1537 (11th Cir. 1990) (citations and

            internal quotations omitted). Moreover, to be deliberately indifferent, a prison

            official "must both be aware of facts from which the inference could be drawn that

            a substantial risk of serious harm exists, and he must also draw the inference."

            Farmer, 511 U.S. at 837 (emphasis added).

                         b. The parties' dispute

                  Defendants argue that Sgt. Homer was unaware of a substantial risk to Plaintiff

            from inmate Hardy prior to their fight, and she was not on duty at the time of the

            fight, so that she cannot be held liable for the injuries that Hardy inflicted upon

            Plaintiff. [Defs.' Supp. Br. at 13.] Defendants contend that "general hostilities" in

            a prison dormitory do not constitute a substantial risk of harm. {Defs.' Reply at 14.]

            They assert that by removing inmate Roberts from dormitory A-6, Sgt. Homer took

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             the action she felt necessary to prevent violence between Roberts and Plaintiff,

            without realizing that Hardy's friendship with Roberts gave cause to be concerned

            about Plaintiff's welfare. Defendants argue that although, in hindsight, Sgt. Homer

            "could have taken a different course of action, the Constitution does not provide a

            forum for second-guessing." [Defs.' Supp. Br. at 18-20.]

                   Plaintiff responds by asserting that he suffered escalating abuse from Roberts

            and Hardy from the time Roberts was assigned to dormitory A-6; that Sgt. Homer was

            aware of the "strong connection" between these two "gangstas"; and that, given the

            repeated warnings from Plaintiff and others, neither Sgt. Homer nor Col. Adcock

            could have been unaware of the danger that Hardy posed to Plaintiff. [Pf. 's Resp. at

            28-30; see Pf.'s Ex. E31 (Sgt. Homer's 7-2-05 incident report, noting, "Problems w/

            inmates 'dividing up.' Black vs. White."); Pf.'s Ex. E33 (Sgt. Homer's 7/03/05

            incident report, referring to Roberts and Hardy as "close," and noting that "these two

            have the potential to cause more problems").]

                  Plaintiff states that a Jail officer informed him that Hardy had been transferred

            into dormitory A-6 after being involved in a fight with two other inmates, who "were

            able to get the best of him (Hardy) with a broom handle." {Pf.'s Aff. ¶ 33.] Shortly

            thereafter, Hardy assaulted two Mexicans inmates in A-6, slamming a cell door on the


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             hand of one of them and severing the last joint on one of his fingers, which Plaintiff

             knew because he and two other inmates had helped clean up the blood and had found

             the severed joint. [J ¶ 37.]

                    According to Plaintiff, the Jail officers knew about Hardy's propensity to

             verbal abuse, which Hardy displayed on a regular basis, and advised Plaintiff to "steer

             clear" of Hardy because "he is a bad one." [j ¶ 34-35, 38.] Plaintiff states that

             Hardy's co-defendants on aggravated assault and battery charges were removed from

             A-6 prior to Hardy's arrival there "to protect them from Hardy." [Jh ¶ 32.] When

             Roberts was placed in A-6 in May 2005, he and Hardy "became abusive toward

             [Plaintiff], threatening violence and calling [him] 'cracker." [j ¶ 36.] By July 2,

             2005, there were "near riot conditions" in A-6, with "nearly all blacks       . . .   now

             abusive" to him, and continuing threats of violence. [Ith ¶ 40, 42-43.]

                          c. Analysis

                   Hardy's allegedly belligerent attitude towards whites and, in particular,

             Plaintiff, and his allegedly repeated acts of violence at the Jail; his friendship with

             Roberts, who apparently shared Hardy's feelings and who nearly came to blows with

             Plaintiff; Nurse Webb's alleged, though disputed, statement that guards at the Jail

             anticipated a fight between Hardy and Plaintiff at some time not long before the

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             assault; the allegedly repeated warnings to Jail officials, from Plaintiff and others, that

            Hardy posed a danger to Plaintiff- all these facts, alleged by Plaintiff or admitted by

            Defendants, suggest that Hardy's close proximity to Plaintiff constituted a risk of

            harm to Plaintiff. Moreover, a reasonable response to this risk would have been to

            separate Plaintiff from Hardy. Hale, 50 F.3d at 1583-85 (reversing grant of

            summary judgment to County Sheriff because, inter a/ia, there was evidence "of

            several reasonable measures to reduce the risk of violence"). Nevertheless, as

            discussed infra, Plaintiff's allegations, serious though they may be, do not establish

            a genuine issue of material fact as to whether Sgt. Homer and/or Col. Adcock not

            only knew of facts suggesting that Plaintiff faced a substantial risk of serious harm

            from Hardy, but also subjectively drew the inference that he did. Farmer, 5 11

            U.S. at 837.

                   Carter v. Galloway, 352 F.3d 1346 (11th Cir. 2003), is instructive in this

            regard. In Carter, the plaintiff, who had suffered a knife attack at the hands of his

            ceilmate, appealed the district court's grant of summary judgment, in favor of two

            prison officials, on the plaintiff's claim that the officials had been deliberately

            indifferent to a substantial risk of serious harm posed by his ceilmate. at 1347.

            The Eleventh Circuit affirmed the grant of summary judgment because there was


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             insufficient record evidence of the defendants' "subjective awareness" of such a risk.

             Id. at 1349.

                   During Plaintiff's time [with his] celimate. . ., Defendants clearly knew
                   that [the celimate] was a "problem inmate" with a well-documented
                   history of prison disobedience and had been prone to violence.
                   Defendants also had specific notice from Plaintiff that [the ceilmate]
                   acted crazy, roaming his cell like a "caged animal." But before
                   Defendants' awareness arises to a sufficient level of culpability, there
                   must be much more than mere awareness of [the celirnate's] generally
                   problematic nature.

                . Despite the plaintiff's many complaints to the defendants, he never directly told

             them that his cellmate had threatened him, although he did inform them of his

             cellmate's remark that the plaintiff would help with the celimate's plan to fake his

             own hanging "one way or another," which, apparently, the plaintiff took as a threat.

             Id. at 1349-50.

                   To assume that Defendants actually made the inference that [the
                   cellmate's] statement constituted a serious threat would assume too
                   much. Defendants would have had to read imaginatively all derogatory
                   and argumentative statements made between prisoners to determine
                   whether substantial risks of serious harm exist. We do not view the
                   summary judgment record as supporting a contention that Defendants
                   drew the inference or should have drawn the inference from [the
                   cellmate's] "one way or another" comment as a serious threat, leaving
                   Plaintiff exposed to any substantial risk of serious harm.

                         Defendants arguably should have placed Plaintiff elsewhere but
                   merely negligent failure to protect an inmate from attack does not justify


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                    liability under section 1983. Defendants only possessed an awareness of
                    [the celimate's] propensity for being a problematic inmate; to find
                    Defendants sufficiently culpable would unduly reduce awareness to a
                    more objective standard, rather than the required subjective standard set
                    by the Supreme Court. Such a generalized awareness of risk in these
                    circumstances does not satisfy the subjective awareness requirement.

             Ih at 1350 (footnote, citation, and internal quotations omitted). See also Lavender

             v. Kearney, 206 Fed. Appx. 860, 863-64 (11th Cir. 2006) (unpublished opinion)

             (affirming summary judgment for defendant because, although he knew of assailant's

             "violent nature and knew of his racial animus against white residents," "there was no

             evidence he was aware that [assailant] posed a specific risk" to plaintiff; and noting

             that "[g]eneral knowledge about an inmate's violent tendencies, without more specific

             information about the risk, does not constitute deliberate indifference"). McBride v.

             Rivers, 170 Fed. Appx. 648, 655 (11th Cir. 2006) (unpublished opinion) (affirming

             grant of summary judgment to defendants because, although plaintiff, a victim of

             inmate violence, had informed defendants "that he feared for his life" if placed in

             same cell with his eventual assailant, plaintiff "did not identify a specific prior

             incident, from which the defendant could infer that a substantial risk existed").

                   Likewise here, although Plaintiff asserts that Hardy threatened him repeatedly

             in the days before the assault, Plaintiff has not identified any specific "serious threat"



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             from Hardy, which he then reported to     Sgt. Homer, Col. Adcock, or any other Jail
             officer prior to July 12, 2005. S.. Carter, 352 F.3d at 1350 (discussing "serious

             threat" requirement and noting that "derogatory and argumentative statements" are

             not equivalent to threats). The only specific threat that Plaintiff sets forth in the

             record is Hardy's alleged threat on the morning of July 12, 2005, shortly before the

             assault occurred, that he would "swing on" Plaintiff, by which time it was too late for

             Sgt. Homer, who was not on duty at the time, or Col. Adcock, who did not personally

             witness the threat, to do anything to help Plaintiff. [ Pf.'s Aff. ¶ 50; see also Doc.

             8-2, Part IV attach. ¶J 19-20 (alleging that on or about July 5, 2005, after Roberts had

             been transferred, Plaintiff "began receiving renewed threats" from Hardy, and that on

             July 12, 2005, approximately thirty minutes before the assault, Hardy threatened

             Plaintiff in the breakfast line, "attempted a sneak attack from behind on Plaintiff,"

             and spit on Plaintiff "in plain view" of three officers).]

                   The fact that Hardy was a "problem inmate" with "violent tendencies" simply

             "does not satisfy the subjective awareness requirement." Carter, 352 F.3d at

             1350; Lavender, 206 Fed. Appx. at 863. At most, Plaintiff has demonstrated that

             Defendants were negligent in not separating him from Hardy, but negligence is not

             the constitutional standard by which Defendants' actions or omissions are to be


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             judged. Carter, 352 F.3d at 1350. Sgt. Homer asserts that she felt that the

             transfer of Roberts away from A-6 dormitory on July 3, 2005, "alleviated the[]

             problems" there. [Homer Aff. ¶ 5.] There simply is insufficient evidence in the

             record to allow the Court, or a jury, to second guess   Sgt. Homer's assertion that she
             was not aware of a substantial risk of serious harm to Plaintiff during the nine days

             that intervened between the transfer of Roberts and the assault by Hardy.

             Accordingly, although the Court is sympathetic with the misfortune that befell

             Plaintiff as a result of that assault, Sgt. Homer and Col. Adcock are entitled to

             summary judgment on Plaintiff's claim that they were deliberately indifferent to the

             risk of harm posed by Hardy.




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