                                                                             [PUBLISH]

                        IN THE UNITED STATES COURT OF APPEALS

                               FOR THE ELEVENTH CIRCUIT           FILED
                                ________________________ U.S. COURT OF APPEALS
                                                                   ELEVENTH CIRCUIT
                                       No. 10-13225                   JUNE 20, 2011
                                 ________________________              JOHN LEY
                                                                        CLERK
                             D.C. Docket No. 4:08-cv-00100-HLM

HENRY CRAIG,

lllllllllllllllllllll                                             Plaintiff - Appellant,

                                         versus

FLOYD COUNTY, GEORGIA, et al.,

lllllllllllllllllllll                                             Defendants,

GEORGIA CORRECTIONAL HEALTH, LLC,

lllllllllllllllllllll                                             Defendant - Appellee.

                                ________________________

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

                                        (June 20, 2011)

Before CARNES, PRYOR and COX, Circuit Judges.

PRYOR, Circuit Judge:
        This appeal presents the question whether Henry Craig, a former detainee at

the Floyd County Jail in Rome, Georgia, failed to present sufficient evidence that

Georgia Correctional Health, LLC, had a policy or custom of deliberate

indifference to the serious medical needs of pretrial detainees in violation of the

Fourteenth Amendment. 42 U.S.C. § 1983. While detained for nine days in jail,

Craig received sixteen evaluations from nine different employees of Georgia

Correctional before he received a computed tomography scan, which revealed that

Craig had air, bleeding, and fractures in his head that required neurological

surgery. The district court ruled that Craig could not prove a policy or custom of

deliberate indifference based on this single incident. Because Craig failed to

present evidence that Georgia Correctional had a policy or custom of

constitutional violations, we affirm.

                                I. BACKGROUND

        In the early hours of July 4, 2006, a police officer approached Henry Craig

as he walked down a road in Rome, Georgia. Craig had consumed

methamphetamine hours earlier, and he behaved erratically and commanded the

officer to shoot him. Two other officers arrived, and one of them used a taser to

disable Craig. Craig fell, and a puddle of blood formed on the ground beside his

head.

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      An ambulance transported Craig to Floyd Medical Center. The paramedics

recorded that Craig’s right ear was bleeding and they took a blood sample from

Craig. Nurses at Floyd Medical Center took a urine sample from Craig and

performed an electrocardiogram test, and a physician cleared Craig for

incarceration at the Floyd County Jail.

      Officers transported Craig to the jail that same morning. The arresting

officer informed Jason Watts, the intake paramedic, that Craig had stated multiple

times that he wished to die. Watts observed that Craig had blood around his nose,

elevated blood pressure, and an unsteady gait. Watts determined that Craig should

be placed in a padded cell for observation and suicide watch. Craig was also

scheduled to see a mental health medical provider, which was standard procedure

for detainees in padded cells.

      Georgia Correctional Health, LLC, is a private contractor that provided

health care to the detainees of the Floyd County Jail. A nurse practitioner

employed by Georgia Correctional, Susan Hatfield, assessed Craig on July 5,

2006, the morning after his arrest. Hatfield recorded that Craig had dried blood on

the outside of his right ear, which she determined was a symptom of a ruptured ear

drum. Hatfield also found Craig to be alert and oriented as to time and place and

saw that Floyd Medical Center had cleared Craig for incarceration. Craig

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expressed no complaints about his health to Hatfield during the examination.

Hatfield did not obtain Craig’s medical records from Floyd Medical Center before

she evaluated Craig, nor did she refer Craig to a physician. Based on her

assessment, Hatfield determined that Craig’s medical condition should be

monitored while on suicide watch.

       Over nine days, Craig received sixteen evaluations of his health by nine

different medical professionals employed by Georgia Correctional. Craig was

evaluated by nurses, nurse practitioners, a psychologist, and a physician. During

some of these evaluations, Craig failed to voice any complaints about his health.

At other times, Craig stated that he had not eaten in five days, that he had only

urinated once since arriving at the jail, and that he had severe headaches, neck

pain, and a lack of hearing in his right ear. When Craig complained of headaches

and other pain, employees of Georgia Correctional gave him acetaminophen,

ibuprofen, other pain killers, and muscle relaxants. Craig’s symptoms persisted,

and a physician, Dr. Walter Smith, examined him. Hatfield and Dr. Smith

requested Craig’s medical records from the night of his arrest.

      On July 13, 2006, Hatfield ordered a computed tomography scan of Craig’s

head while she awaited receipt of his medical records. The scan revealed that

Craig had air and bleeding in his head, along with several fractures. Medical

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personnel transported Craig to Floyd Medical Center for treatment and then to

Grady Memorial Hospital, where he underwent neurological surgery.

      On June 12, 2008, Craig filed a complaint that Georgia Correctional had

been deliberately indifferent to his serious medical needs. The district court

granted a summary judgment against Craig’s complaint. The district court

concluded, “[a]t most, . . . [Craig’s] evidence only points to one incident—the

instant case—involving an allegedly unconstitutional deprivation. Evidence of

this single incident, however, simply is not sufficient to establish a custom, policy,

or practice” of deliberate indifference. The district court explained that Craig’s

expert witness, Dr. Jimmy Graham, had no personal knowledge of Georgia

Correctional and instead “testified that his opinion was based on his experience

providing medical care at other jails.” The district court ruled that Craig had

failed to establish a genuine issue of material fact about an essential element of his

complaint: whether a policy, practice, or custom of Georgia Correctional had

violated Craig’s constitutional right. See Monell v. Dep’t of Soc. Servs. of

N.Y.C., 436 U.S. 658, 694, 98 S. Ct. 2018, 2037–38 (1978).

                          II. STANDARD OF REVIEW

      “This Court reviews de novo summary judgment rulings and draws all

inferences and reviews all evidence in the light most favorable to the non-moving

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party.” Moton v. Cowart, 631 F.3d 1337, 1341 (11th Cir. 2011). Summary

judgment is appropriate “if the movant shows that there is no genuine dispute as to

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

R. Civ. P. 56(a). If the nonmoving party fails to “make a showing sufficient to

establish the existence of an element essential to that party’s case, . . . there can be

‘no genuine issue as to any material fact,’ since a complete failure of proof

concerning an essential element of the nonmoving party’s case necessarily renders

all other facts immaterial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322–23, 106 S.

Ct. 2548, 2552 (1986) (quoting Fed. R. Civ. P. 56(c) (1963) (current version at

Fed. R. Civ. P. 56(a) (2010)).

                                  III. DISCUSSION

      Craig contends that Georgia Correctional violated his right to due process

under the Fourteenth Amendment when it failed to provide him care for a serious

medical need. 42 U.S.C. § 1983. “As a pre-trial detainee, [Craig]’s rights

exist[ed] under the due process clause of the Fourteenth Amendment rather than

the Eighth Amendment. . . . Nonetheless, [Craig’s] claims are subject to the same

scrutiny as if they had been brought as deliberate indifference claims under the

Eighth Amendment.” Mann v. Taser Int’l, Inc., 588 F.3d 1291, 1306 (11th Cir.

2009) (internal citation omitted). “To prevail on a deliberate indifference to

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serious medical need claim, Plaintiffs must show: (1) a serious medical need; (2)

the defendants’ deliberate indifference to that need; and (3) causation between that

indifference and the plaintiff’s injury.” Id. at 1306–07.

      Georgia Correctional is a private entity, but “[w]hen a private entity . . .

contracts with a county to provide medical services to inmates, it performs a

function traditionally within the exclusive prerogative of the state” and “becomes

the functional equivalent of the municipality” under section 1983. Buckner v.

Toro, 116 F.3d 450, 452 (11th Cir. 1997). “[L]iability under § 1983 may not be

based on the doctrine of respondeat superior.” Grech v. Clayton Cnty., Ga., 335

F.3d 1326, 1329 (11th Cir. 2003) (en banc). Craig must prove that Georgia

Correctional had a “policy or custom” of deliberate indifference that led to the

violation of his constitutional right. Monell, 436 U.S. at 694, 98 S. Ct. at

2037–38. Because municipalities rarely have an official policy that endorses a

constitutional violation, Craig “must show that [Georgia Correctional] ha[d] a

custom or practice of permitting it and that [Georgia Correctional’s] custom or

practice [was] ‘the moving force [behind] the constitutional violation.’” Grech,

335 F.3d at 1330 (last alteration in original) (quoting City of Canton, Ohio v.

Harris, 489 U.S. 378, 389, 109 S. Ct. 1197, 1205 (1989)).

      “Proof of a single incident of unconstitutional activity is not sufficient to

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impose liability” against a municipality. City of Okla. City v. Tuttle, 471 U.S.

808, 823–24, 105 S. Ct. 2427, 2436 (1985) (plurality opinion). “A pattern of

similar constitutional violations . . . is ‘ordinarily necessary.’” Connick v.

Thompson, 563 U.S. –, –, 131 S. Ct. 1350, 1360 (2011) (quoting Bd. of Cnty.

Comm’rs of Bryan Cnty., Okla. v. Brown, 520 U.S. 397, 409, 117 S. Ct. 1382,

1391 (1997)). “A single incident would not be so pervasive as to be a custom,”

Grech, 335 F.3d at 1330 n.6, because a custom must be such “a longstanding and

widespread practice [that it] is deemed authorized by the policymaking officials

because they must have known about it but failed to stop it,” Brown v. City of Fort

Lauderdale, 923 F.2d 1474, 1481 (11th Cir. 1991). This requirement of proof

“prevents the imposition of liability based upon an isolated incident,” McDowell

v. Brown, 392 F.3d 1283, 1290 (11th Cir. 2004), and “‘ensures that a municipality

is held liable only for those deprivations resulting from the decisions of its duly

constituted legislative body or of those officials whose acts may fairly be said to

be those of the municipality,’” id. (quoting Bd. of Cnty. Comm’rs, 520 U.S. at

403–04, 117 S. Ct. at 1388). “[A]n act performed pursuant to a ‘custom’ that has

not been formally approved by an appropriate decisionmaker may fairly subject a

municipality to liability on the theory that the relevant practice is so widespread as

to have the force of law.” Bd. of Cnty. Comm’rs, 520 U.S. at 404, 117 S. Ct. at

                                           8
1388. “In the absence of a series of constitutional violations from which

deliberate indifference can be inferred, the plaintiff[] must show that the policy

itself is unconstitutional.” Estate of Novack ex rel. Turbin v. Cnty. of Wood, 226

F.3d 525, 531 (7th Cir. 2000).

      A single incident of a constitutional violation is insufficient to prove a

policy or custom even when the incident involves several employees of the

municipality. For example, a former detainee alleged in McDowell that a policy or

custom of understaffing at a jail had led to a violation of his civil rights when

employees of the jail had failed to transport him to a hospital in a timely manner,

392 F.3d at 1286–89. The record established that the delay involved several

employees of the jail, including nurses, officers of the sheriff’s office,

communications personnel, intake area personnel, a morning watch commander, a

day watch deputy, a shift supervisor, a field division deputy, a field division

sergeant, and a physician. Id. at 1286–87. The former detainee underwent

emergency surgery on his spinal cord more than twenty-four hours after he had

reported that he could not urinate and had trouble walking. Id. Although the

complaint of the former detainee involved several employees of a municipality and

an extended period of time, we concluded that he had failed to prove a policy or

custom based only on his “isolated incident.” Id. at 1290–91. We determined

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that, “[w]hile McDowell’s case is tragic, he cannot point to another occasion when

the Jail’s understaffing, and resulting inability to transport, contributed to or

exacerbated an inmate’s medical condition. Simply put, this isolated incident,

however unfortunate, does not demonstrate evidence of the County’s ‘persistent’

or ‘widespread’ policy.” Id.

      Craig’s proof of a policy or custom rests entirely on a single incident of

alleged unconstitutional activity. Craig presented evidence that several employees

of Georgia Correctional evaluated his single injury. Craig complained that the

actions and omissions of the employees of Georgia Correctional, taken together,

not individually, amounted to deliberate indifference to his serious medical need.

Like the former detainee in McDowell, Craig “cannot point to another occasion”

when an alleged policy or custom “contributed to or exacerbated an inmate’s

medical condition.” Id. at 1290. Craig instead relies on “[p]roof of a single

incident of unconstitutional activity,” Tuttle, 471 U.S. at 823–24, 105 S. Ct. at

2436, which is “not sufficient to impose liability” against Georgia Correctional, id.

at 824, 105 S. Ct. at 2436.

      Craig contends that Georgia Correctional had three “persistent and

widespread practices” that led to his complaint of deliberate indifference. First,

Craig contends that Georgia Correctional had a practice of not referring detainees

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to physicians. Second, Craig contends that Georgia Correctional erroneously

relied on hospital clearance forms instead of independently clearing detainees for

admission into Floyd County Jail and performing their own diagnostic tests.

Third, Craig contends that Georgia Correctional had a practice of using the least

costly means to treat detainees.

      Even if we assume that these practices amount to constitutional violations,

Craig did not even present evidence that these practices had been employed by

Georgia Correctional for any other detainees regardless of whether the detainees

had been injured. The only other evidence that Craig presented was testimony

from an expert witness, Dr. Jimmy Graham, who testified that he did not have any

personal knowledge of the Floyd County Jail or Georgia Correctional. Dr.

Graham instead based his expert opinion on his experience providing medical care

at other jails, but that evidence tells us nothing about whether an alleged policy or

custom of Georgia Correctional has led to more than one alleged constitutional

violation.

      Craig alleges that Georgia Correctional had a policy or custom of not

referring detainees to physicians and that this policy or custom “was widespread

throughout [Georgia Correctional’s] organization,” but Craig’s only proof of this

alleged policy or custom is that nine medical providers evaluated him sixteen

                                         11
times over nine days before referring him to a physician for a computed

tomography scan. Craig concedes that a physician also evaluated him on the

seventh day of his incarceration, but “only because the doctor was visiting the

center that day.” Even if we were to assume that employees of Georgia

Correctional should have referred Craig to a physician sooner, Craig offered no

proof of a policy or custom that was persistent or widespread. Craig has failed to

present any evidence of “a series of constitutional violations from which deliberate

indifference can be inferred.” Cnty. of Wood, 266 F.3d at 531. Instead, Craig

relies on his own experience, which is, at most, “[p]roof of a single incident of

unconstitutional activity.” Tuttle, 471 U.S. at 823–24, 105 S. Ct. at 2436. That

proof is “not sufficient to impose liability” under section 1983. Id. at 824, 105 S.

Ct. at 2436.

      Craig also alleges that Georgia Correctional had a policy or custom of

relying on hospital clearance forms, which led to a violation of his constitutional

right, but Craig’s only proof of this alleged custom is that, on at least three

occasions, Hatfield treated Craig based on the medical clearance form of the Floyd

County Medical Center. Craig presented no evidence that Georgia Correctional

relied on medical clearances for other detainees. Even if we were to accept the

dubious proposition that reliance on hospital clearance forms can amount to

                                          12
deliberate indifference, Craig’s evidence falls short of proving a policy or custom

of constitutional violations so persistent and widespread as to be “deemed

authorized by the policymaking officials because they must have known about it

but failed to stop it.” City of Fort Lauderdale, 923 F.2d at 1481. At most, Craig’s

evidence, which involves the evaluation of a single detainee by a single nurse,

would tend to prove “a single incident of unconstitutional activity.” Tuttle, 471

U.S. at 823–24, 105 S. Ct. at 2436.

      Craig also alleges that Georgia Correctional had a policy or custom of using

the least costly means of treating patients and that this custom deprived him of his

constitutional right, but even on the highly questionable assumption that the

alleged policy or custom would amount to a constitutional violation, Craig again

relies on his experience alone to prove a policy or custom. Craig alleges that the

medical providers repeatedly gave him pain killers instead of treating him with

more costly means. Although several employees of Georgia Correctional treated

Craig over the course of nine days, those treatments of him are insufficient to

prove that Georgia Correctional had a policy or custom of constitutional violations

against detainees that was “persistent,” Connick, 563 U.S. at –, 131 S. Ct. at 1359,

or “so widespread as to have the force of law,” Bd. of Cnty. Comm’rs, 520 U.S. at

404, 117 S. Ct. at 1388.

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                      IV. CONCLUSION

We AFFIRM the summary judgment in favor of Georgia Correctional.




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COX, Circuit Judge, specially concurring:

      I do not join the majority opinion because I am not satisfied that this case

involves a “single incident.” I do not have to count “incidents,” however, to

conclude that Craig has failed to offer proof that can support a finding that there

was a custom, policy or practice of deliberate indifference to serious medical

needs. I therefore concur in the result and the judgment.




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