                                                            [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________                 FILED
                                                          U.S. COURT OF APPEALS
                                No. 08-16194                ELEVENTH CIRCUIT
                                                               MARCH 9, 2009
                            Non-Argument Calendar
                                                             THOMAS K. KAHN
                          ________________________
                                                                  CLERK

                     D. C. Docket No. 06-00115-CV-WLS-1

PATRICIA WINGSTER,
individually and as Administratrix
of the Estate of Jonathan Sheldon
Haynes, Deceased,

                                                              Plaintiff-Appellant,

                                     versus

FREDERICK HEAD,
Warden,
STACEY WEBB,
Deputy Warden,
SERGEANT BELL,
OFFICER WELDELL,
OFFICER STRICKLAND, et al.,


                                                           Defendants-Appellees.

                          ________________________

                   Appeal from the United States District Court
                       for the Middle District of Georgia
                        _________________________
                                (March 9, 2009)
Before HULL, WILSON and PRYOR, Circuit Judges.

PER CURIAM:

      Plaintiff-Appellant Patricia Wingster appeals the district court’s order

denying her request for leave to designate a medical expert and granting summary

judgment on her 42 U.S.C. § 1983 complaint in favor of Defendants-Appellees

Warden Frederick Head, Deputy Warden Stacey Webb, and Officers Strickland,

Jenkins, Wade, and McGee. After review, we affirm.

                               I. BACKGROUND

A. Lawsuit Filed in 2006

      Plaintiff Wingster is the mother of Jonathon Sheldon Haynes, who was a

prisoner at Autry State Prison. Wingster, as Haynes’s mother, filed this § 1983

action, alleging that excessive force by Autry State Prison guards caused Haynes’s

aneurysm and death. Wingster claims that on October 14, 2004, Haynes was

beaten by prison guards and admitted to Mitchell County Hospital. After a CT

scan of Haynes’s brain showed no “midline shift, acute hemorrhage, or herniation,”

he was discharged from Mitchell County Hospital and returned to Autry State

Prison on October 15. On October 16, Haynes died at Phoebe Putney Medical

Center (“Phoebe Putney Hospital”) as a result of a brain aneurysm that led to a

massive stroke. Wingster claims the October 14 beating caused the aneurysm.



                                          2
B. Discovery in 2007

      On May 2, 2007, the district court issued its discovery order, which stated

that fact discovery was to be completed by October 20, 2007, and dispositive

motions filed by November 30, 2007, unless the court granted an extension. The

discovery order directed each party to serve disclosures relating to expert witnesses

by August 20, 2007, for the case-in-chief and by September 10, 2007, for rebuttal.

      On May 14, 2007, Plaintiff Wingster served her initial disclosures.

Attachment A to Wingster’s disclosures, entitled “Witness List to Initial

Disclosures,” listed as possible witnesses: “Medical Personnel at the Autry State

Prison and medical personnel at Mitchell County Hospital and Phoebe Putman

[sic] Hospital . . . who treated Jonathon S, [sic] Haynes.” It is undisputed that Dr.

Jack Copeland was Haynes’s treating physician at Phoebe Putney Hospital and

signed the death certificate. Wingster’s disclosures indicated that she had not

engaged any experts.

      On July 20, 2007, Plaintiff Wingster filed her response to Defendant Head’s

first interrogatories. Wingster’s response listed Dr. Copeland’s name on at least

three different occasions as a “person with information and/or knowledge of those

facts” asserted in her complaint, including the assertion that the “excessive use of

force . . . proximately caused his (Haynes’s) death.” Fact discovery closed on

October 20, 2007.



                                           3
C. December 14, 2007, Motion for Summary Judgment

       On December 14, 2007, Defendants filed their motion for summary

judgment and numerous exhibits, including Dr. Copeland’s affidavit.1 In his

affidavit, Dr. Copeland stated that “Haynes did not have any lacerations or

bruising, nor did he present any other indicia that he had been the victim of a

physical attack or that he had suffered any traumatic injury.” Dr. Copeland

recognized that Haynes’s medical history at Mitchell County Hospital indicated

that Haynes had a “hematoma” on the right side of his skull on October 14, 2004.

Dr. Copeland stated that “neither Nurse Hutchinson nor myself observed or

recorded any evidence of a hematoma on Mr. Haynes’ admission to Pheobe [sic]

Putnam [sic] Medical Center” on October 16, 2004.

       In addition, Dr. Copeland averred that “[t]here was no medical evidence to

suggest that Mr. Haynes was the victim of any assault or suffered any major

trauma that caused cerebral hemorrhage.” Dr. Copeland stated that “[i]t was and is

[his] opinion that Mr. Haynes’ aneurysm developed from natural causes and was

not the result of assault or trauma.”

D. Plaintiff Wingster’s Response in 2008

       On January 2, 2008, Plaintiff Wingster filed a motion for extension of time

to respond to Defendants’ summary judgment motion. On January 3, the court


       1
       The motion also included as attachments the medical records relied upon by Dr.
Copeland in his affidavit.

                                              4
granted Wingster’s motion. On January 14, Wingster again filed a motion for

extension of time, which the court granted on January 17. On January 31,

Wingster, for the third time, filed a motion for extension of time to respond to

Defendants’ summary judgment motion. On February 5, the court granted

Wingster’s motion.

      On February 15, 2008, roughly two months after being served with Dr.

Copeland’s affidavit, Wingster filed both a response to Defendants’ summary

judgment motion and a motion for leave to designate a medical expert witness.

Wingster’s response to the summary judgment motion argued that “[t]he close

proximity of [Haynes’s] death from a closed head injury and his head being

cracked twice by the . . . Defendants’ excessive use of force is an obvious

proximate cause of his death which can be inferred by the jury without medical

evidence.” Wingster’s response stressed that two inmates, Joseph Archer and

Thomas White, had testified that the Defendant Officers beat Haynes in his cell the

day or days before his death.

      Wingster’s response also noted certain Mitchell County Hospital records.

Haynes’s “Emergency Physician Record” from Mitchell County Hospital states

that Haynes was “found unresponsive by guards” and twice indicates that Haynes

“ha[d] hematoma ® side of head.” Haynes’s Discharge Summary from Mitchell

County Hospital, filled out by Dr. Barbara Kupka, states, “The patient was



                                          5
transferred from Autry Correctional Institute, status post being found unresponsive,

reported a questionable seizure but no witnessed seizure. They said that he had hit

his head but there was no significant trauma.”

       Plaintiff Wingster’s motion for leave to designate a medical expert witness

stated that Wingster needed thirty additional days to depose Dr. Copeland and to

locate an expert of her own. Wingster claimed that she “had no prior notice that

[Dr. Copeland’s] expert testimony would be submitted.” Further, Wingster

asserted that she “had no notice that the Defendants’ [sic] would contest with

medical testimony the proximate cause of the death of Plaintiff’s deceased son”

and for this reason did not designate a medical expert.

E. District Court’s September 30, 2008, Order

       On September 30, 2008, the district court denied Wingster’s motion for

leave to designate a medical expert and granted Defendants’ motion for summary

judgment. The district court first discussed the medical-expert issue.

       The district court found that Wingster “was aware of Dr. Copeland from the

beginning of the case,” as Dr. Copeland treated Haynes at Phoebe Putney Hospital,

completed Haynes’s death certificate,2 and was explicitly identified by Wingster as

a witness to the case in her response to Defendant Head’s interrogatories.3 In her

       2
        Haynes’s death certificate listed “Left Middle Cerebral Artery CVA” as his immediate
cause of death.
       3
       The district court noted that, in response to Defendant Head’s interrogatories, Wingster
produced copies of Haynes’s death certificate and treatment records from Phoebe Putney

                                               6
initial disclosures, Wingster had indicated that possible witnesses included

“medical personnel at . . . Phoebe Putnam [sic].” Later, in response to Defendant

Head’s interrogatories, Wingster herself identified the medical personnel at Phoebe

Putney Hospital as possible expert witnesses.

       After detailing the case’s procedural history, the district court determined

that “[a] reasonable reading of the treatment records and the death certificate would

have shown a reasonable person that causation could be an issue” and that

Wingster “ha[d] not been diligent in discovering this or any aspect of the case.”

The court noted that Defendants filed Dr. Copeland’s affidavit on December 14,

2007. Wingster obtained three extensions of time and eventually filed her response

to the summary judgment motion on February 15, 2008. The district court pointed

out that, as of the date of its September 30, 2008, order, Wingster’s motion had

been pending for over six months, but Wingster had shown no signs of progress in

identifying an expert, as follows:

              In Plaintiff’s motion for leave to designate an expert, Plaintiff
       does not state that she has even attempted to find an expert even
       though she has had a copy of Dr. Copeland’s affidavit since at least
       December 14, 2007, much less what facts the expert would testify to.
       Plaintiff has not filed any document or notice since the filing of the
       motion for leave to designate an expert that she has made any progress
       in her search. Plaintiff’s motion has been pending for at least 6
       months without any update or statements on the progress of her
       efforts. There has been no statement as to why Plaintiff failed to
       locate an expert in the first place or why she has not at least identified


Hospital, all of which listed Dr. Copeland’s name.

                                               7
       an expert since the date of filing of the affidavit.

(Internal citations omitted.)

       As to Defendants’ summary judgment motion, the district court observed

that inmates Archer and White had testified that Defendants beat Haynes shortly

before his death. Although Archer testified that he watched the alleged beating in

Haynes’s cell, Defendants produced photographic evidence that Archer could not

see inside Haynes’s cell from his own cell. And White testified only that, on the

day of Haynes’s alleged beating, he heard screams and assumed they were coming

from Haynes’s cell. The district court stated that White’s testimony “[was] not

properly before the Court” because White had not been timely identified as a

witness and that “[e]ven so, White’s testimony is not that helpful to Plaintiff.”4

       The court also concluded that, even if Archer’s and White’s testimony

created fact issues as to whether Defendants beat Haynes, Wingster still had not

shown an issue of material fact as to other elements of her excessive force claim,

including causation. The court found that “[a]ll of the admissible evidence, which

was presented by Defendants, shows that the aneurysm and stroke are the result of

natural causes” and that Wingster had not shown an issue of material fact as to

causation. The district court determined that Wingster “produced no admissible


       4
         On Defendants’ objection to its admissibility, the district court noted that White’s
identity was not revealed until Wingster filed her response to Defendants’ motion for summary
judgment approximately four months after the close of discovery. In this appeal, Wingster has
not challenged the district court’s ruling regarding White’s testimony.

                                               8
evidence, other than conjecture and speculation, that the alleged assault caused

[Haynes’s] death.” The district court noted, “In fact, the overwhelming evidence

in the record, [sic] shows that Haynes [sic] death was not caused by Defendants.”

Wingster timely appealed.

                                      II. DISCUSSION

A. Denial of Leave to Designate Medical Expert

       Plaintiff Wingster argues that the district court erred in denying her motion

for leave to designate a medical expert.5 Wingster claims she was surprised by Dr.

Copeland’s affidavit, noting that Dr. Copeland was not listed as an expert in the

Defendants’ initial disclosures.6 Wingster asserts that she had no notice that

causation was an issue and that she would have designated her own medical expert

had Defendants given her notice they would rely on Dr. Copeland.

       When a summary judgment motion is filed, Federal Rule of Civil Procedure

56(f) allows a district court, before deciding that pending motion, to grant a

continuance for additional discovery when the party opposing the motion “shows

by affidavit that, for specified reasons, it cannot present facts essential to justify its




       5
        We review discovery orders for abuse of discretion. Brooks v. United States, 837 F.2d
958, 961 (11th Cir. 1988).
       6
          Wingster does not appear to have objected to any part of Dr. Copeland’s affidavit in the
district court.

                                                 9
opposition.”7 In construing Rule 56(f), this Court has stated that “[b]ecause the

burden on a party resisting summary judgment is not a heavy one, one must

conclusively justify his entitlement to the shelter of rule 56(f) by presenting

specific facts explaining the inability to make a substantive response as required by

rule 56(e) and by specifically demonstrating how postponement of a ruling on the

motion will enable him, by discovery or other means, to rebut the movant’s

showing of the absence of a genuine issue of fact.” Sec. & Exch. Comm’n v.

Spence & Green Chem. Co., 612 F.2d 896, 901 (5th Cir. 1980) (quotation marks

and internal citations omitted).8 The party opposing the motion, here Wingster,

may not simply rely on vague assertions that additional discovery will produce

needed facts, “particularly where . . . ample time and opportunities for discovery

have already lapsed.” Id. The decision whether to grant a continuance rests in the

sound discretion of the trial court. Id.

       Here, we cannot say that the district court abused its discretion in denying

Wingster’s request for more time to designate a medical expert and to depose Dr.


       7
        Fed. R. Civ. P. 56(f) provides:
       If a party opposing [a summary judgment] motion shows by affidavit that, for
       specified reasons, it cannot present facts essential to justify its opposition, the
       court may:
                (1) deny the motion;
                (2) order a continuance to enable affidavits to be obtained, depositions to
                be taken, or other discovery to be undertaken; or
                (3) issue any other just order.
       8
       This Court adopted as binding precedent all Fifth Circuit decisions prior to October 1,
1981. Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc).

                                                10
Copeland. Wingster did not meet her burden to “conclusively justify [her]

entitlement to the shelter of Rule 56(f).” Id. At least by the time discovery began

in December 2006, Wingster was fully aware that Dr. Copeland was her son’s

treating physician at Phoebe Putney Hospital. Wingster’s own initial disclosures

indicated that medical personnel at Phoebe Putney Hospital may be called as

witnesses. Similarly, Wingster’s own responses to Defendant Head’s

interrogatories identified the medical personnel at Phoebe Putney Hospital as

possible expert witnesses and repeatedly named Dr. Copeland as an individual

likely to have information as to certain issues in the case, including Wingster’s

assertion that excessive force proximately caused Haynes’s death.

      From the start, it was also clear that the cause of Haynes’s aneurysm was a

medical causation issue beyond the scope of a layperson’s knowledge that required

competent medical testimony. Yet, Wingster did not depose Dr. Copeland and

never identified any other medical expert to establish causation. Indeed, as

Haynes’s treating physician, Dr. Copeland was a fact witness to the cause of

Haynes’s death, as opposed to strictly Defendants’ own, outside expert. And, even

if Defendants failed to timely disclose Dr. Copeland as Defendants’ own expert,

Wingster has not demonstrated adequately her inability, by the time Defendants’

summary judgment motion was filed, to rebut Defendants’ contention that

causation did not exist.



                                          11
      Alternatively, even assuming Wingster was somehow wholly unaware that

she needed medical testimony in this case, Dr. Copeland’s affidavit, served on

Wingster on December 14, 2007, well after fact discovery closed on October 20,

2007, indisputably put her on notice that she needed medical testimony as to

causation. After being granted three extensions of time to respond, only on

February 14, 2008, did Wingster ask for leave to designate a medical expert

witness. And, in her motion for leave, Wingster failed to (1) explain why she still

had not identified a medical expert between December 14, 2007, and February 14,

2008, (2) describe how she intended to rebut Dr. Copeland’s affidavit, or (3)

explain her inability to make a substantive response in her motion for leave.

Instead, on February 14, Wingster requested 30 additional days to designate an

expert. In actuality, Wingster had until September 30, 2008, when the district

court denied her motion for leave to designate a medical expert, to give the district

court some reason to believe she could rebut Dr. Copeland’s medical testimony.

However, just like the time from December 2007 to February 2008, the time from

February to September 2008 passed and the district court heard nothing from

Wingster.

      For the foregoing reasons, we cannot say that the district court abused its

discretion in denying her motion for leave to designate a medical expert.

B. Grant of Summary Judgment



                                          12
       Wingster also asserts that the district court erred in granting summary

judgment for the Defendants because there were genuine issues of material fact as

to whether Haynes was beaten and whether that excessive force caused his

aneurysm and death.9

       To establish a claim for excessive force, the plaintiff must show that (1) the

defendants acted with a malicious and sadistic purpose to inflict harm and (2) that a

more than de minimis injury resulted. Johnson v. Breeden, 280 F.3d 1308, 1321

(11th Cir. 2002). Additionally, “[a] § 1983 claim requires proof of an affirmative

causal connection between the defendant’s acts or omissions and the alleged

constitutional deprivation.” Troupe v. Sarasota County, Fla., 419 F.3d 1160, 1165

(11th Cir. 2005).

       We need not determine whether the evidence creates fact issues as to the

alleged beatings. Even assuming Haynes was beaten, Defendants produced

unequivocal and uncontradicted evidence from Dr. Copeland, the treating

physician, that Haynes’s aneurysm was the result of natural causes and was not the




       9
        We review de novo a district court’s order granting summary judgment, viewing the
record and drawing all reasonable inference in the light most favorable to the non-moving party.
Earley v. Champion Int’l Corp., 907 F.2d 1077, 1080 (11th Cir. 1990). Under Federal Rule of
Civil Procedure 56(c), summary judgment is proper “if the pleadings, the discovery and
disclosure materials on file, and any affidavits show that there is no genuine issue as to any
material fact and that the movant is entitled to judgment as a matter of law.” See Celotex Corp.
v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 2552 (1986).

                                               13
result of any assault or trauma.10

       And Wingster produced nothing to refute Dr. Copeland’s sworn testimony.11

We recognize that Wingster relies on the temporal proximity of the alleged

beatings on October 14 and the aneurysm on October 16. However, this medical

causation issue presents a technical and scientific issue that requires the specialized

knowledge of an expert medical witness. See Fed. R. Evid. 701, 702; see also

Webster v. Offshore Food Serv., 434 F.2d 1191, 1193 (5th Cir. 1970) (stating that

summary judgment is appropriate when “the trier of fact would not be at liberty to

disregard arbitrarily the unequivocal, uncontradicted and unimpeached testimony

of an expert witness [whose] testimony bears on technical questions of medical

causation beyond the competence of lay determination.”).12 Simply put, mere


       10
          Wingster asserts only a claim for the wrongful death of Haynes. Wingster does not
assert a claim for any injuries allegedly suffered by Haynes prior to his death.
       11
          It is well settled that “the moving party (here, Defendants) may support its motion for
summary judgment with affirmative evidence demonstrating that the non-moving party will be
unable to prove its case at trial.” Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1116 (11th Cir.
1993) (quotation marks and internal citations omitted). Further, Wingster may not respond to
the motion for summary judgment by summarily denying these allegations but “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).
       12
          In Webster, the plaintiff sued his employer, claiming that he contracted tuberculosis
from his roommate on a submersible drilling rig. 434 F.2d at 1192. The defendant employer
moved for summary judgment and submitted the affidavit of Dr. Ziskind, who opined that the
plaintiff could not have contracted tuberculosis from his roommate. Id. Dr. Ziskind had
examined the roommate and determined that the roommate did not have active tuberculosis. Id.
The district court delayed ruling on the summary judgment motion so that the plaintiff could take
Dr. Ziskind’s deposition; however, the plaintiff never deposed Dr. Ziskind and never offered
counter affidavits of medical experts that showed a person without active tuberculosis might
transfer the disease to another person or that an active case might spontaneously cure itself. Id.
The district court granted summary judgment in favor of the defendant employer. Id. at 1193.

                                                14
temporal proximity alone does not refute Defendants’ specific, medical expert

affidavit explicitly averring that Haynes’s aneurysm resulted from natural causes

and not assault or trauma. As such, we conclude that Wingster has not shown that

a genuine issue of material fact exists as to the cause of Haynes’s death or that the

district court erred in granting summary judgment in favor of Defendants.

       AFFIRMED.




        This Court affirmed, stating that summary judgment was appropriate because the
testimony was uncontradicted and because “[w]e [were] not confronted with expert testimony
which is equivocal or internally inconsistent, or which bears on issues as to which, by their
nature, the trier of fact would be entitled to substitute its own practical judgment for the opinion
of experts.” Id. at 1194.


                                                 15
