             Case: 19-10774    Date Filed: 11/15/2019   Page: 1 of 13


                                                            [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                                No. 19-10774
                            Non-Argument Calendar
                          ________________________

                   D.C. Docket No. 6:15-cv-02346-KOB-SGC


ROY M. CANNON,

                                                               Plaintiff-Appellant,

                                     versus

CORIZON MEDICAL SERVICES, et al.,

                                                            Defendants-Appellees.

                          ________________________

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

                              (November 15, 2019)

Before MARCUS, MARTIN, and ROSENBAUM, Circuit Judges.

PER CURIAM:

      Roy Cannon, a prisoner proceeding pro se, appeals the dismissal of three

claims, and the grant of summary judgment on the remaining claims, in his 42
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U.S.C. § 1983 action. He brought this action alleging deliberate indifference to his

serious medical needs, in violation of the Eighth Amendment to the United States

Constitution. Cannon argues that the district court erred in holding that the

delayed treatment of his broken leg did not amount to deliberate indifference.

After careful review, we affirm.

                                         I.

      In July 2016, Cannon filed an amended complaint asserting claims against

the Alabama Department of Corrections; the Commissioner of the Alabama

Department of Corrections; two officers of the Alabama Department of

Corrections, Lewis Johnson and Officer Duncan; Corizon Medical Services, LLC

(“Corizon”); and nine Corizon employees, namely Dr. Hugh Hood, Karen

Amborski, Christiane Clay, Karen Alexander, Tammy Bryant, Nurse Coleburn,

LaFaye Thurmon Benford, Meloni McDougle, and Debbie Bunn. Cannon, who

uses a wheelchair, alleged that on the morning of April 5, 2014, a nurse was aiding

him in leaving the shower area when “the front wheels of the shower chair fe[ll]

into a broken tile,” causing Cannon to be “thrown to the floor.” Cannon yelled in

pain. A correctional officer entered the shower area and attempted to lift Cannon

from the floor. Cannon demanded the officer stop because his “pain level [was]

nearing the point of losing consciousness” and he believed his leg was broken.



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       The nurse reported the fall to her supervisor, who contacted the health

services administrator. But “no one offered any help other than Tylenol and to

wrap his legs with bandages.” All the while, his “legs began to swell [and] turn

[b]lack and [b]lue.” For two days 1 he “begged and pleaded with [the] . . . [n]urses

as well as anyone who came around” to help him.

       Two days later, Cannon was taken for an X-ray. The X-ray showed Cannon

had “major breaks in his [t]ibia and in his fibula in his right leg.” At that point,

Cannon was given pain medication. That same afternoon, Cannon was taken by

ambulance to a hospital. Cannon alleged that doctors confirmed he suffered

“[m]ajor [b]reaks in his leg” and “made it clear” he needed surgery. But the

hospital was “not allowed to operate.” Instead, “there was an attempt to manually

straighten [Cannon’s] right leg and a cast was placed on it.”

       On April 27, 2014, Cannon returned to the hospital, where doctors planned

to remove his cast. After reviewing new X-rays, though, doctors discovered

Cannon’s bone had not healed. He returned to the hospital again on May 23, 2014,

but his leg still was not healed. On June 20, 2014, Cannon visited the hospital

once again. Cannon’s doctors told him that, because they were not permitted to




       1
         Cannon’s amended complaint asserted he was denied adequate medical treatment for
three days. But the magistrate judge noted Cannon’s own allegations showed two days elapsed
between his fall and his visit to the hospital for treatment. In his appellate brief, Cannon now
maintains he asked for medical treatment for two days before he was taken to a hospital.
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operate, the state of his leg on that day was “the best it could ever be.” Cannon

alleged he still suffers persistent “deformities in his right leg due to Corizon

denying him proper medical care.” He also alleged he endured “extreme pain and

suffering” for two days before he was taken to a hospital. Cannon asserted the

defendants were deliberately indifferent to his serious medical needs and violated

his constitutional rights.

      Cannon’s complaint was referred to a magistrate judge, who construed it as

asserting the following claims: 42 U.S.C. § 1983 claims for violations of the

Eighth Amendment against the Alabama Department of Corrections; a claim for

supervisory liability against the Commissioner of the Alabama Department of

Corrections for failing to repair the broken shower tile that caused his fall; and

§ 1983 claims against the remaining defendants for deliberate indifference to his

serious medical needs in violation of the Eighth Amendment.

      The magistrate judge recommended dismissal of all claims except Cannon’s

Eighth Amendment claims against Corizon and its employees. See 28 U.S.C.

§ 1915A (providing that a district court shall screen prisoner civil complaints and

dismiss any claims that are “frivolous, malicious, . . . fail[] to state a claim upon

which relief may be granted,” or “seek[] monetary relief from a defendant who is

immune from such relief”); see also 28 U.S.C. § 1915(e)(2)(B). Specifically, the

magistrate judge recommended dismissing claims against the Alabama Department

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of Corrections because it is a state agency that is immune from suit in a § 1983

action under the Eleventh Amendment. The magistrate judge recommended

dismissing the vicarious liability claim against the Commissioner of the Alabama

Department of Corrections because Cannon did not allege either that the

Commissioner personally participated in the failure to repair the broken tile or that

there existed “widespread abuse” linking the Commissioner’s actions with the

broken tile. The magistrate judge further recommended dismissing Cannon’s

§ 1983 claims against the correctional officers because the amended complaint did

not set out facts showing the officers were deliberately indifferent to Cannon’s

medical needs. Finally, the magistrate judge recommended finding that Cannon

alleged sufficient facts in support of his claims against the Corizon defendants for

deliberate indifference to his medical needs.

      The district court dismissed the Alabama Department of Corrections, the

Commissioner of the Alabama Department of Corrections, and the two correctional

officers as defendants. The district court referred claims against the remaining

defendants to the magistrate judge for further proceedings. The magistrate judge

then directed the remaining defendants to file a special report addressing Cannon’s

factual allegations.

      The defendants filed their special reports and supporting documentation,

which the magistrate judge construed as motions for summary judgment. In their

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reports, the remaining defendants disputed Cannon’s description of how he

suffered his injuries and his allegations that they were deliberately indifferent to

his medical needs. Defendants insisted that, after Cannon’s fall, his abrasions were

cleaned and dressed; he was offered Tylenol, but refused it; the health

administrator was notified; and he was placed in a healthcare unit and given

pillows for his legs. Nurses then “continuously monitored” Cannon’s injuries.

The day after his injury, he was prescribed Motrin 400. Two days after the injury,

on Monday morning, Cannon was taken for an X-ray, which revealed a fracture to

his distal tibia and a possible fracture near his ankle joint.

      Cannon was then transported to SportsMed Orthopedic Surgery and Spine

Center (“SportsMed”). At SportsMed, he saw an orthopedist who wrote a plan for

closed treatment, which included “plac[ing] him in a short-leg cast,” “giv[ing]

Norco 7.5 mg for [his] pain,” and “repeat[ing] X-rays of his right tibia” in two

weeks. Defendants claim Cannon was then returned to the correctional facility,

where he was continuously monitored by the nursing and medical staff.

      On April 25, 2014, Cannon was again transported to SportsMed, where he

saw the same orthopedist who treated him on April 7. In his visit notes, the

orthopedist observed that X-rays of Cannon’s right tibia and fibula showed “no

displacement of his fracture” and that Cannon reported “mild pain.” The



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orthopedist planned to “continue non-operative management” and to perform

additional X-rays in four weeks.

      Cannon had follow-up orthopedist and a radiologist appointments in May

and June 2014. Notes from a May 1, 2014 visit to the radiologist show the

radiologist observed no fracture or dislocation and both Cannon’s left ankle and

knee appeared “normal.” During Cannon’s May 23 appointment, the orthopedist

observed “minimal[] tender[ness] at the fracture site” and a “right tibia shaft

fracture,” but no additional malalignment. The orthopedist planned to “continue

non-operative management” and “recommend[ed] an additional four weeks of

casting.” Notes from Cannon’s June 20 visit to the orthopedist state that Cannon

“report[ed] no pains or problems with his cast” and that the doctor observed “no

instability with stressing of the fracture site area and clinically [] good alignment.”

The orthopedist again planned to “continue non-operative treatment” and repeat X-

rays in four weeks.

      The defendants’ special reports asserted that they never denied or delayed

Cannon’s medical care. They argued Cannon’s Eighth Amendment claims failed

because he did not show the defendants possessed actual knowledge of an

excessive risk to his health or safety and intentional indifference to that risk. They

also argued that Cannon had failed to assert claims for medical malpractices under



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the Alabama Medical Liability Act. Cannon timely responded to one of

defendants’ special reports and did not file a response to the other.

      The magistrate judge issued a report and recommendation advising that the

district court (1) dismiss, without prejudice, all claims against Alexander,

Coleburn, and McDougle and (2) grant the motion for summary judgment filed by

Corizon, Hood, Amborski, Clay, Bryant, Bunn, and Benford and dismiss Cannon’s

claims against them with prejudice. The magistrate judge found that Coleburn had

never worked at the facility where Cannon was detained and that neither Alexander

nor McDougle were served with the amended complaint and therefore

recommended dismissal, without prejudice, of all claims against those defendants.

The magistrate judge also found that, because Corizon was a corporation providing

prison medical services, it could only be found liable if the alleged constitutional

violation was the result of its policy or custom. Because Cannon failed to allege

such a policy or custom, the magistrate judge recommended dismissal of Cannon’s

claims against Corizon with prejudice. Finally, the magistrate judge found that

Hood, Amborski, Bryant, Bunn, Clay and Benford were not deliberately indifferent

to Cannon’s serious medical needs and recommended dismissal of all claims

against them with prejudice.

      Cannon objected to the magistrate judge’s report and recommendation. Over

his objection, the district court adopted the magistrate judge’s recommendations,

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dismissed all claims against Alexander, Coleburn, and McDougle without

prejudice, and dismissed all claims against Corizon, Hood, Amborski, Clay,

Bryant, Bunn, and Benford with prejudice. Cannon timely appealed.

                                          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. Owen v. I.C. Sys., Inc., 629 F.3d 1263, 1270

(11th Cir. 2011).

      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

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 County, 510 F.3d 1312, 1326–27

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(11th Cir. 2007). “Even when medical care is ultimately provided, a prison official

may nonetheless act with deliberate indifference by delaying the treatment of

serious medical needs.” Nam Dang ex rel. Vina Dang v. Sheriff, Seminole Cty.

Fla., 871 F.3d 1272, 1280 (11th Cir. 2017).

                                                III.

         The sole issue on appeal is whether the delay in providing an X-ray for Mr.

Cannon’s leg amounted to deliberate indifference to his serious medical need.2

Cannon contends that the two-day delay amounted to the infliction of unnecessary

suffering and more should have been done to diagnose and treat his leg. He argues

that an X-ray of his injured leg could, and should, have been taken on the day of

his accident and that the treatment he received during the period between his

accident and his X-ray was insufficient. We conclude that the undisputed

evidence, viewed in the light most favorable to Cannon, does not show that the

defendants refused to treat Cannon or were deliberately indifferent to his medical

needs.

         Cannon argues that there is a dispute of fact as to whether Corizon staff had

subjective knowledge of the seriousness of his injury. Shortly after his fall, a nurse



         2
          Cannon did not object to the magistrate judge’s recommendation that his claims against
Corizon be dismissed with prejudice, thereby waiving his right to challenge on appeal the district
court’s dismissal of claims against that defendant. See 11th Cir. R. 3-1. On appeal, Cannon also
abandoned his claims against Coleburn, Alexander, and McDougle by failing to challenge the
district court’s dismissal, without prejudice, of his claims against them for lack of proper service.
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noted that Cannon reported pain in his knee and ankle, an abrasion on his right toe,

and a “goose egg” on his right ankle. Another nurse examined Cannon’s leg the

afternoon of his fall and noted that his right ankle was mildly swollen and “slightly

bluish in color.” In his amended complaint, Cannon alleged that, shortly after the

accident, his “legs began to swell, turn [b]lack and [b]lue” and it was “obvious

even to the untrained eye that major damage had occurred.” He also alleged that

“[e]ach nurse that s[aw] the condition of [his] legs expressed their major concerns

and agreement[] that it was a very bad situation.”

      We credit specific allegations in a pro se plaintiff’s sworn complaint in

considering his opposition to summary judgment. Caldwell v. Warden, FCI

Talladega, 748 F.3d 1090, 1098 (11th Cir. 2014). However, these allegations do

not demonstrate that Corizon staff were subjectively aware either that Cannon’s leg

was broken or that there was a risk that serious harm would result from delaying

the X-ray of his right leg until the following Monday morning, when a radiologist

was available. See Taylor v. Hughes, 920 F.3d 729, 733 (11th Cir. 2019) (“The

medical need must be one that, if left unattended, poses a substantial risk of serious

harm.” (alteration adopted and quotation marks omitted)). Cannon claims that his

leg was swollen and miscolored and that nursing staff recognized it to be a serious

injury. This is not sufficient to establish that these symptoms made it obvious that

his leg was broken or in need of greater care than that which was provided to him.

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As such, we do not find a dispute of fact as to whether medical staff had a

“sufficiently culpable state of mind” to support a claim of deliberate indifference.

See Cottrell v. Caldwell, 85 F.3d 1480, 1491 (11th Cir. 1996) (quotation marks

omitted).

      Even if the Corizon employees had the requisite state of mind, the

undisputed evidence shows that they neither disregarded a risk to Cannon’s health

nor acted in a manner rising above gross negligence. We are hesitant to conclude

that a doctor was deliberately indifferent when the prisoner received medical care.

Waldrop v. Evans, 871 F.2d 1030, 1035 (11th Cir. 1989). It is undisputed that, on

the day of Cannon’s fall, a nurse examined his leg, cleaned and dressed his

abrasions, and transferred him to the prison healthcare unit. The same day, a nurse

on duty reported Cannon’s injury to Dr. Hood, who prescribed Cannon pain

medication, and gave orders to medical staff regarding the care of his leg. In the

time between the Saturday-morning accident and the Monday-morning X-ray,

medical staff regularly examined Cannon, placed ice on his leg, offered him pain

medication, advised him to keep his leg elevated, and monitored him to ensure he

was comfortable until X-rays could be performed.

      Cannon contends that “more should have been done” to diagnose and treat

his injury, such as conducting an X-ray of his leg on the day of his injury,

conducting “other tests,” and providing treatment for the pain he experienced. But

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a difference of opinion between the prison’s medical staff 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). Because Cannon received timely medical treatment, his opinion

that he should have been provided with an X-ray or other testing immediately, as

opposed to on Monday, does not rise to the level of deliberate indifference.

      Nor has Cannon shown that the delay in providing him with an X-ray was

unreasonable. For claims based on delayed treatment, we have required the

plaintiff to “place verifying medical evidence in the record to establish the

detrimental effect of delay in medical treatment to succeed.” Owen v. Corizon

Health Inc., 703 F. App’x 844, 847 (11th Cir. 2017) (per curiam) (unpublished)

(citing Hill v. Dekalb Reg’l Youth Det. Ctr., 40 F.3d 1176, 1188 (11th Cir. 1994),

overruled in part on other grounds by Hope v. Pelzer, 536 U.S. 730, 122 S. Ct.

2508 (2002)). While Cannon alleged that his treatment resulted in permanent

deformities to his right leg, he attributed this to Corizon’s denial of surgery, rather

than the delay in the treatment he received. As such, we find no evidence of a

detrimental effect of the two-day delay between his injury and the X-ray of his leg.

      AFFIRMED.




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