           Case: 19-11230   Date Filed: 03/17/2020   Page: 1 of 16



                                                         [DO NOT PUBLISH]

            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 19-11230
                        Non-Argument Calendar
                      ________________________

                D.C. Docket No. 3:17-cv-00025-DHB-BKE


ARTHUR LAWTON CLARK,

                                                            Plaintiff-Appellant,

                                  versus


LYNN SHEFFIELD, Sheriff, LT. TOMMY
BARRENTINE, DR. PETER WROBEL,

                                                        Defendants-Appellees.
                      ________________________

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

                            (March 17, 2020)



Before WILSON, TJOFLAT, and ANDERSON, Circuit Judges.

PER CURIAM:
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       Arthur Clark, 1 who was formerly a prisoner at Dodge County Jail, appeals

the District Court’s order granting summary judgment to Sheriff Lynn Sheffield,

Lt. Tommy Barrentine, and Dr. Peter Wrobel on his 42 U.S.C. § 1983 action.

Clark brought this action alleging deliberate indifference to serious medical needs,

in violation of the Eight Amendment. Clark argues that the District Court erred in

holding that the delayed treatment of his knee injury did not amount to deliberate

indifference and that Sheffield and Barrentine could not be held liable under a

theory of respondeat superior. Clark also argues that the District Court erred by

failing to consider evidence submitted after the magistrate’s report and

recommendation. We affirm.

                                               I.

       On May 12, 2015, Clark fell and injured his right knee in an altercation.

Dodge County deputies then arrested him for his suspected involvement in a

shooting. After complaining of a knee injury at the scene, Clark was immediately

taken to the Dodge County Hospital. The emergency physician at the hospital


       1
          Clark proceeded pro se before the District Court and during the submission of initial
briefs before this Court. His appeal was dismissed for want of prosecution after he failed to
timely file his appellant’s brief. He then retained counsel, who submitted a second appellant
brief on Clark’s behalf. That appeal was also dismissed for want of prosecution as the appendix
was filed out of time and without leave of the court. We granted a second motion to reinstate the
appeal. Clark’s attorney asks that, due to the short timeframe of his representation and his
inability to access certain electronically filed documents, we review the contents of the counseled
brief as well as Clark’s pro se brief. In accordance with this Court’s local rules, we decline to
consider Clark’s pro se appellant brief as he is represented by counsel. See 11th Cir. R. 28-4
(“When a party is represented by counsel, the clerk may not accept a brief from the party.”).
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ordered x-rays of Clark’s right knee, which revealed no significant fracture, but

questionable irregularity at medial tibial plateau. Clark’s knee was wrapped in an

ACE bandage and he was given a knee immobilizer. Clark was discharged later

that day to the custody of Dodge County deputies.

      There are two versions of the hospital’s discharge form in Clark’s chart.

Both copies indicated that he should apply ice, wrap his knee, and take

Tylenol/Advil three times per day as needed for pain. Both advised Clark to

follow up with the doctor at the Dodge County Jail if he had persistent symptoms.

One copy, which indicated signatures made on May 13, included a follow-up care

section that listed various providers as well as a “No Follow-Up Care needed”

box—nothing in the section was marked. The other copy, signed by the

emergency physician and Deputy K. Whito, included a check mark next to one

provider’s name, Dr. Rosenbaum. That copy also instructed Clark to “use knee

immobilizer until follow cleared by orthopedic.”

      Clark alleges that during this hospital visit, the emergency physician

informed him that he “needed to see Dr. Rosenbaum, a local orthopedist, a.s.a.p.”

He also alleges that two deputies, C. Screws and Donald, were present and heard

this comment.

      Upon his arrival at the Dodge County Jail, Clark signed a consent form for

treatment by Southern Correctional Medicine (“SCM”). He was seen the next day,

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May 13, by SCM nurse practitioner Deborah Stewart for complaints of a possible

tibia fracture. Stewart recommended that Clark avoid putting pressure on his right

leg and scheduled him for a visit with Dr. Wrobel, an SCM doctor. She also

ordered that his knee immobilizer stay in place and prescribed pain medication.

      Three days later, on May 16, Clark submitted a grievance directed to

Sheffield, Barrentine, and two deputies; he stated that he had serious injuries. He

explained that he was in serious pain, his knee felt “crushed” and his ribs felt

broken, he also said that there was swelling and discoloration in his right knee and

leg. He requested “emergency medical treatment a.s.a.p.”

      Two days later, Stewart re-examined Clark. Her notes indicate that Clark’s

right leg was swollen and bruised; she ordered an x-ray. His current medications

included aspirin and ibuprofen. The x-ray took place on May 20. According to the

radiological consultation doctor, it showed a fractured medial aspect medial tibial

plateau. Stewart reviewed the results on May 22 and scheduled Clark to see Dr.

Wrobel on his next visit.

      Dr. Wrobel is a licensed physician in the State of Georgia and is the owner

and Director of SCM. He examined Clark on May 26. He concluded that Clark

had a possible tibial fracture and referred Clark for an orthopedic consult with

orthopedist Dr. Donald Rosenbaum.




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      Dr. Rosenbaum examined Clark and reviewed his x-ray results two days

later. He recommended surgery “as soon as possible . . . to reconstruct [the] lateral

tibial plateau fracture.” He also ordered a preoperative CT scan. SCM scheduled

the CT scan for the next day, May 29.

      SCM cancelled that CT after being informed that Clark was to be transferred

to a different facility. On June 3, SCM was informed that Clark was no longer

going to be transferred to another facility and should reschedule the CT “ASAP.”

The CT was scheduled and took place on June 4.

      Clark submitted another grievance on June 4, 2015. He stated that his knee

was crushed and broken, swollen and discolored and that he was in serious pain.

He requested emergency surgery as soon as possible.

      Dr. Rosenbaum operated on Clark on June 9, 2015. Clark remained

hospitalized until June 12, 2015. Clark alleges that, after the surgery, Dr.

Rosenbaum told him that “the length of time between [the] injury and surgery had

added to the deteriorated condition of [his] knee.” Dr. Rosenbaum also allegedly

said that Clark had “a 50% chance of eventually needing an artificial knee.”

      In his complaint, Clark alleges that he suffered from a severe headache on

June 30. He was given only ibuprofen and Tylenol. He complained to Deputy

Screws, who advised him to drink water. He alleges that he became disoriented

and lost his ability to speak and that the deputies looked at him strangely. He

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stated that when his attorney came to visit on July 9, the attorney recognized the

symptoms as being those of a stroke. Clark alleges that he was transferred to

Jackson Diagnostic and Classification Prison after his attorney notified Sheffield of

Clark’s condition.

      Clark alleges that upon his admission to Jackson, Dr. Fowlkes examined

him, and he was subsequently seen by other medical professionals. Dr. Fowlkes

informed Clark that he had likely suffered a stroke prior to his transfer to Jackson.

Dr. Fowlkes, as well as a different orthopedist, informed Clark that his knee had

healed.

                                          II.

      Summary judgment is appropriate where “there is no genuine dispute as to

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

Fed. R. Civ. P. 56(a). We review a district court’s grant of summary judgment de

novo, viewing all evidence and drawing all reasonable inferences in the light most

favorable to the non-moving party. Caldwell v. Warden, FCI Talladega, 748 F.3d

1090, 1098 (11th Cir. 2014). We liberally construe Clark’s pro se pleadings and

credit “specific facts” pled in his sworn complaint when considering his opposition

to summary judgment. Id.

      Clark’s complaint asserted two claims. First, he argued that the emergency

physician at the hospital instructed him to see Dr. Rosenbaum, a local orthopedist,

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as soon as possible and that Dr. Wrobel’s and the prison officials’ failure to

provide him timely medical treatment led to prolonged pain and suffering,

humiliation, and negatively affected his chances of fully recovering mobility in his

knee. Second, he claimed that he was not provided adequate medical treatment

after his surgery and suffered a stroke. The District Court granted summary

judgment for the defendants on both claims.

      While Clark references his stroke in his opening brief and explains why it

constituted a serious medical need, he provides no further argument or discussion

on why Dr. Wrobel, Sheffield, or Barrentine were deliberately indifferent to that

condition. Thus, Clark has abandoned that claim and we are precluded from

considering the issue on appeal. Singh v. U.S. Att’y Gen., 561 F.3d 1275, 1278–79

(11th Cir. 2009) (“[A]n appellant's brief must include an argument containing

‘appellant’s contentions and the reasons for them, with citations to the authorities

and parts of the record on which the appellant relies.’ Thus, an appellant’s simply

stating that an issue exists, without further argument or discussion, constitutes

abandonment of that issue and precludes our considering the issue on appeal.”

(citations omitted)). We consider only Clark’s claim regarding his knee injury.

                                         III.

      A prisoner’s Eighth Amendment right to be free from the unnecessary and

wanton infliction of pain is violated when a prison official is deliberately

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indifferent to the prisoner’s serious medical need. See McElligott v. Foley, 182

F.3d 1248, 1254 (11th Cir. 1999). To prevail on such a claim, the plaintiff must

first demonstrate an objectively serious medical need. Farrow v. West, 320 F.3d

1235, 1243 (11th Cir. 2003). Then, the plaintiff must show that prison officials

acted with deliberate indifference towards that need. Id. This requires proving (1)

that the prison official had subjective knowledge of a risk of serious harm, (2) that

the official disregarded that risk, and (3) that the official’s conduct amounted to

more than gross negligence. Goebert v. Lee Cty., 510 F.3d 1312, 1326–27 (11th

Cir. 2007). Violations of the Eight Amendment occur only when the course of

treatment, or lack thereof, is “so grossly incompetent, inadequate, or excessive as

to shock the conscience or to be intolerable to fundamental fairness.” Harris v.

Thigpen, 941 F.2d 1495, 1505 (11th Cir. 1991) (quoting Rogers v. Evans, 792 F.2d

1052, 1058 (11th Cir. 1986)).

                                          A.

      As did the District Court, we conclude that Clark demonstrated a serious

medical need for his knee injury. 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.”

Farrow, 320 F.3d at 1243. “[T]he medical need must be one that, if left

unattended, poses a substantial risk of serious harm.” Id.

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      None of the Appellees contest the seriousness of Clark’s medical need.

Clark’s knee was admittedly fractured. The fracture was in fact diagnosed by

multiple physicians and required surgery to repair. Furthermore, we have

previously found that the pain caused by a similar injury, a broken foot, is a serious

medical need. See Brown v. Hughes, 894 F.2d 1533, 1538 (11th Cir. 1990).

                                          B.

      To demonstrate deliberate indifference, the plaintiff must show that each

official had subjective knowledge of the risk of harm. Goebert, 510 F.3d at 1327.

“Each individual Defendant must be judged separately and on the basis of what

that person knows.” Burnette v. Taylor, 533 F.3d 1325, 1331 (11th Cir. 2008).

Because the plaintiff must demonstrate that each official knew of the facts that

would indicate a serious medical need, “imputed or collective knowledge cannot

serve as the basis for a claim of deliberate indifference.” Id. Even if a plaintiff can

show subjective knowledge, the plaintiff must then show that the official

disregarded his medical needs by following a course of action which was more

than merely negligent. Goebert, 510 F.3d at 1327. Clark fails to do so for any

defendant.

      1. Dr. Wrobel

      We are hesitant to conclude that a doctor was deliberately indifferent when a

prisoner receives medical care. Waldrop v. Evans, 871 F.2d 1030, 1035 (11th Cir.

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1989). But for some emergency injuries, such as broken bones, even a few hours

delay in receiving treatment can constitute deliberate indifference. Harris v.

Coweta Cty., 21 F.3d 388, 393–94 (11th Cir. 1994). “The tolerable length of delay

in providing medical attention depends on the nature of the medical need and the

reason for the delay.” Id.

      Clark argues that Dr. Wrobel’s course of treatment was beyond grossly

negligent because the emergency physician allegedly said Clark should see the

specialist “a.s.a.p” and Dr. Wrobel’s recommendation did not come until two

weeks later. But Clark sued only Dr. Wrobel, not Stewart, not SCM, and not Dr.

Rosenbaum. We look to what Dr. Wrobel knew, when he knew it, and how he

responded. See Burnette, 533 F.3d at 1331.

      The record reflects that Dr. Wrobel first gained subjective knowledge of

Clark’s knee injury when he examined Clark on May 26, 2015. Dr. Wrobel

examined Clark and the x-rays, he confirmed the hospital diagnosis, and he

immediately referred Clark to an orthopedic specialist. The specialist, Dr.

Rosenbaum, examined Clark two days later.

      Clark contends that the emergency physician said he needed to see a

specialist immediately, but his medical records and discharge paperwork do not




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indicate that there was an immediate need to see a specialist.2 We have previously

held that a difference of opinion between a medical professional and a prisoner

concerning the proper diagnosis or course of treatment is usually insufficient to

support a claim of deliberate indifference. Harris v. Thigpen, 941 F.2d 1495, 1505

(11th Cir. 1991). In any event, Dr. Wrobel acted in the manner that Clark contends

was the appropriate course of action—he referred Clark to an orthopedic specialist

at the time of his examination, and instructed Clark to stop taking his blood

pressure medications and ibuprofen to prepare for the consultation. Clark fails to

demonstrate how the two-day “delay” between Dr. Wrobel’s examination and Dr.

Rosenbaum’s examination was “so grossly incompetent, inadequate, or excessive

as to shock the conscience or to be intolerable to fundamental fairness.” Id.

       Clark also argues that Dr. Wrobel’s staff provided constitutionally deficit

medical care. Supervisory officials, however, are not liable for the

unconstitutional acts of their subordinates “on the basis of respondeat superior or

vicarious liability.” Hartley v. Parnell, 193 F.3d 1263, 1269 (11th Cir. 1999)

(quoting Belcher v. City of Foley, 30 F.3d 1390, 1396 (11th Cir.1994)). To be

liable under a supervisory theory, the supervisor must personally participate in the




       2
          The only other evidence regarding the applicable standard of care or appropriate course
of treatment comes from Dr. Wrobel’s affidavit, which stated that “Mr. Clark received standard
of care at all times.”
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alleged constitutional violation or there must be a causal connection between the

supervisory official’s actions and the alleged deprivation. Id.

      As explained above, Dr. Wrobel immediately referred Clark to Dr.

Rosenbaum when he became aware that Clark had a possible knee fracture. Even

if Dr. Wrobel had been subjectively aware of Clark’s injury based on Clark’s pre-

booking hospital visit, Clark has failed to provide evidence that the course of

treatment during that two-week period amounted to “more than gross negligence.”

Goebert, 510 at 1327. Stewart examined Clark’s knee on May 13 and May 18,

ordered and reviewed his x-rays, maintained his pain medications, and scheduled

Clark to meet with Dr. Wrobel on the doctor’s next visit to the Jail. This course of

action is consistent with Clark’s discharge instructions from the hospital. We have

previously held that medical care need not be “perfect, the best obtainable, or even

very good.” Thigpen, 941 F.2d at 1510. Even though Clark maintains that more

should have been done or more should have been done faster, he fails to

demonstrate how that is anything other than a difference of opinion. See id.

      We find that Clark’s complaints regarding the speed at which he was

referred to a specialist are insufficient to support his claim of deliberate

indifference for his knee injury.




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      2. Sherriff Sheffield and Lt. Barrentine

      Sheriff Lynn Sheffield has served as the elected sheriff of Dodge County

since 2013. He delegates administration of the Dodge County Jail to the Jail

Administrator and staff. Lt. Tommy Barrentine was serving as the interim Jail

Administrator during Clark’s incarceration. His primary responsibilities as Jail

Administrator were to supervise detention officers and handle administrative

matters.

      Clark argues that Sheffield and Barrentine had a statutory duty to supply

medical treatment and that both officials had specific notice of Clark’s injuries.

Clark alleges that officers under Sheffield and Barrentine’s line of command heard

the emergency physician recommend that he should see a specialist as soon as

possible. He also says that his grievances are evidence of Sheffield’s and

Barrentine’s knowledge regarding his serious medical need.

      Taking as true Clark’s allegations that deputies within Sheffield and

Barrentine’s line of command knew Clark needed to see a specialist as soon as

possible, that knowledge cannot be imputed to Sheffield or Barrentine. Both

officials are only responsible for the facts they observed or heard, not for

information allegedly provided to their subordinates. Burnette, 533 F.3d at 1331.

Sheffield and Barrentine are not liable for the unconstitutional acts of other

deputies “on the basis of respondeat superior or vicarious liability.” Hartley, 193

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F.3d at 1269. Supervisory liability occurs only when the supervisor personally

participates in the alleged violation or when there is a causal connection between

the supervisory official’s actions and the alleged deprivation. Id.

      The only evidence that Sheffield and Barrentine had any specific knowledge,

and thus personal participation, of the delay in treating Clark’s knee injury are his

two grievances. But neither Sheffield nor Barrentine are trained medical

professionals, nor did they have any role in Clark’s examinations or course of

treatment. It is uncontested that Clark received care from the medical

professionals that Sheffield and Barrentine oversaw—he was examined by both

Stewart and Dr. Wrobel before being referred to see Dr. Rosenbaum for surgery. It

was reasonable for Sheffield and Barrentine to rely on the medical judgments made

by medical professionals responsible for prisoner care.

      Clark also received timely treatment in response to his grievances. He was

seen again by Stewart and given more pain medication two days after he filed his

first grievance and received a pre-operative CT scan on the day he filed his second

grievance. Moreover, as explained above, at most Clark’s grievances evidence a

difference of opinion regarding the speed at which he should receive surgery,

which is insufficient to support a deliberate indifference claim. Thigpen, 941 F.2d

at 1505.




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      A causal connection between the supervisor and the deprivation may be

established (1) “when a history of widespread abuse puts the responsible

supervisor on notice of the need to correct the alleged deprivation, and he fails to

do so”, (2) “when a supervisor’s custom or policy results in deliberate indifference

to constitutional rights”, or (3) “when 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.” Cottone v. Jenne, 326 F.3d

1352, 1360 (11th Cir. 2003) (internal quotations and alterations omitted). The

standard for demonstrating “widespread abuse” is high—the deprivations must be

“obvious, flagrant, rampant and of continued duration, rather than isolated

occurrences.” Brown v. Crawford, 906 F.2d 667, 671 (11th Cir. 1990). Clark has

not presented evidence of continual deprivation of care, implementation of a policy

of delay, or a direction by either Sheffield or Barrentine to the SCM or other

subordinates to delay treatment of his knee.

      We conclude that the undisputed evidence, viewed in the light most

favorable to Clark, does not show that the defendants refused to treat Clark or were

deliberately indifferent to his medical needs. We affirm summary judgment in

favor of Sheffield and Barrentine.




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                                         IV.

      Finally, Clark argues that the District Court erred by not considering the

materials he submitted after the magistrate report. Even in pro se cases, a district

court has wide discretion in considering arguments and evidence not presented to a

magistrate judge. Williams v. McNeil, 557 F.3d 1287, 1292 (11th Cir. 2009). The

District Court did not abuse its discretion in refusing to consider the evidence

Clark submitted nearly two weeks after the magistrate’s report. The District Court

concluded the Clark had enough time to develop the record before the magistrate.

Furthermore, Clark does not explain how consideration of this information would

have altered the District Court’s conclusions.

      AFFIRMED.




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