              Case: 15-11412      Date Filed: 11/18/2016    Page: 1 of 52


                                                                              [PUBLISH]

                IN THE UNITED STATES COURT OF APPEALS

                          FOR THE ELEVENTH CIRCUIT
                             ____________________

                                   No. 15-11412
                               ____________________

                     D.C. Docket No. 7:11-cv-01115-LSC-SGC

WALTER MELTON,

                                                       Plaintiff-Appellant,

                                         versus

DAVID ABSTON,
GREG CARR, et al.,

                                                       Defendants-Appellees.

                            ________________________

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

                                 (November 18, 2016)

Before ROSENBAUM and JILL PRYOR, Circuit Judges, and UNGARO,*
District Judge.


PER CURIAM:

____________________


      * Honorable Ursula Ungaro, United States District Judge for the Southern District of
Florida, sitting by designation.
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       Plaintiff, Walter Melton (“Melton”), appeals the district court’s grant of

summary judgment in favor of Defendants, Sheriff David Abston (“Sheriff

Abston”), Deputy Debra Abston (“Deputy Abston”), Chief Deputy Greg Carr

(“Chief Deputy Carr”), Deputy Tyler Booth (“Deputy Booth”), Deputy David Ellis

(“Deputy Ellis”), Dr. Manly Sullivan (“Dr. Sullivan”), Nurse Tanya Ray (“Nurse

Ray”) and Dr. H. Leslie Fowler (“Dr. Fowler”), in Melton’s action brought under

42 U.S.C. § 1983. Melton, formerly a pretrial detainee, asserts that the district

judge erred in concluding that the facts, viewed in the light most favorable to

Melton, failed to demonstrate that Defendants were deliberately indifferent to his

serious medical needs in violation of the Eighth and Fourteenth Amendments while

he was incarcerated at Pickens County Jail. Melton also argues that there is a

triable issue of fact as to whether Dr. Fowler conspired with Pickens County Jail

officials in violation of 42 U.S.C. § 1983.

       After review and oral argument, we affirm entry of summary judgment in

favor of Dr. Fowler and Deputy Booth and reverse entry of summary judgment in

favor of Nurse Ray, Dr. Sullivan, Sheriff Abston, Deputy Abston, Chief Deputy

Carr, and Deputy Ellis. But, we also hold that Sheriff Abston and the deputy

defendants are immune from suit in their official capacities as Alabama state

officials.



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I.    FACTUAL BACKGROUND

      Assessing the summary judgment record in the light most favorable to

Melton, as non-movant, the facts are as follows:

       Melton was a pretrial detainee at Pickens County Jail from approximately

January 6, 2010 until July 14, 2011, a period of approximately sixteen months.

      In August 2003, Melton was in an automobile accident in which he suffered

multiple fractures, including a fracture of the left humeral shaft that required

surgery. Dr. H. Chester Boston, the orthopedic surgeon who then operated on

Melton, performed open reduction surgery on and transfixed Melton’s left humeral

shaft with a plate and several screws. (ECF No. 93-1 at 106-09.) On June 19, 2006,

Dr. Boston re-examined Melton’s left arm and found “the humeral fracture to be

well healed.” (Id. at 118.)

      On February 11, 2010, over three years later, Melton fell from a wooden

crate and hit his left arm on the top of a bench seat while boarding a transit van that

was to take him from Pickens County Jail to court. (ECF No. 108 at 36-37.)

Melton immediately experienced pain and the sensation of something “pop[ping]”

in his left arm and so informed Deputy Ellis, but Deputy Ellis did not render first

aid or pursue medical treatment for Melton. (Id.) Later that day, Melton’s arm

became discolored and began to swell. The middle part of Melton’s upper arm

“moved as if in two pieces.” (ECF No. 34 at 38.)

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      Thereafter and continuing until transferred to the Alabama Department of

Corrections, Melton repeatedly complained orally and in writing to jail employees

that he believed his arm was broken and that the hardware in his upper arm was

dislocated. Melton also claimed that he was experiencing severe pain, that the pain

was intensifying, and that he was losing sensation in his left hand. (Id. at 37-43;

ECF No. 93-1 at 4-30, 33-36, 38-39, 60-61.) He also began requesting a sling

beginning on March 26, 2010 or possibly earlier. (ECF No. 93-1 at 4-5.)

      Melton’s written medical requests were reviewed initially by Nurse Ray. (Id.

at 4-5, 7-12, 16, 18-21, 29-31, 33-36, 60-61.) Nurse Ray discussed Melton’s

complaints with Dr. Sullivan, a physician contracted to treat inmates at Pickens

County Jail, from time to time. (ECF No. 93-1 at 191-202; ECF No. 93-2 ¶ 2.)

      Nurse Ray first responded to Melton’s complaints on April 19, 2010, after

Melton complained the pain in his left arm was “bringing tears to my eyes.” (ECF

No. 93-1 at 10, 191.) On that date, she advised Dr. Sullivan that Melton felt that

the rod and plate in his arm were dislocated and requested a prescription for pain

medication. (Id. at 191.) On April 22, 2010, Dr. Sullivan prescribed Ibuprofen

800mg for pain and approved x-rays of Melton’s left arm provided Melton prepaid

for them. (Id. at 191; ECF No. 108 at 37.) That same day, Melton’s mother, Mary

Melton, visited the jail and paid $160 for the x-rays. (ECF No. 34 at 34.) During




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her visit, Mrs. Melton observed her son’s arm was “obvious[ly] . . . broken.” (ECF

No. 34 at 35.)

      On April 26, 2010, Melton spoke with Chief Deputy Carr and demonstrated

to him how his arm moved at the break in his bone, but Chief Deputy Carr did not

pursue medical attention for Melton. (ECF No. 108 at 38.)

      On April 28, 2010, Melton complained that his left arm and hand were

frequently going numb, that he was in severe pain and that the Ibuprofen was not

relieving the pain. (ECF No. 93-1 at 12.) Nurse Ray responded that Melton did not

“have to take” the medicine if it was not giving him relief. (Id.)

      On May 5, 2010, Melton’s brothers, Daniel Melton Jr. and Wesley Melton,

visited Pickens County Jail and spoke with Nurse Ray via telephone. (ECF No. 34

at 49-56.) Nurse Ray informed them that the jail was still “waiting on [Melton’s]

medical records to know what kind of x-rays to order.” (ECF No. 34 at 54.) While

at the jail, Melton’s brothers also met with Sheriff Abston, the individual

ultimately responsible for the care and custody of inmates at Pickens County Jail,

and complained to him that Melton’s broken left arm had gone untreated since

February 2010. (Id. at 55-56; ECF No. 94-5.)

      On May 7, 2010, Deputies McDaniel and Ellis took Melton to Pickens

County Medical Center where his left arm was x-rayed. (ECF No. 93-1 at 120.)

The technician showed Deputy McDaniel the x-rays and told him that Melton’s

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arm “had a bad break and some of the screws barely had anything to hold on to.”

(ECF No. 108 at 40-41.) When Deputy Ellis asked about Melton’s arm, the

technician told him Melton had a bad break. (Id.) Following the x-rays, Dr. Charles

E. King, Jr. issued a radiology report with the following findings: “Plate and six

screws transfix mid humeral fracture. There is a lateral angulation at the apex by

approximately 40 degrees. Persistent lucency through the fracture site is noted

though there is moderate callous formation. Some lucency around the screws in the

more proximal aspect of the humerus and this grossly may represent some changes

from motion at these sites. No other abnormality demonstrated.” (ECF No. 93-1 at

120.) Despite these findings, Melton was returned to the jail and did not receive

medical treatment.

      On or about May 11, 2010, Melton requested immediate medical attention

for “unbearable” pain. (Id. at 15.) Nurse Ray informed Melton that Dr. Sullivan’s

position was that Melton’s arm was not broken, but that “the plate in [Melton’s]

arm had shifted.” (ECF No. 108 at 41.) She also advised Melton that Dr. Sullivan

would refer him to an orthopedist if Melton was willing to pay in advance for the

visit and advised him to continue taking the Ibuprofen. (Id.)

      On May 24, 2010, Nurse Ray scheduled an appointment for Melton with a

local orthopedist, Dr. Fowler, for June 8, 2010 at 11:00 a.m. (ECF No. 93-1 at 195-

96; ECF No. 108 at 41-42.) Nurse Ray advised Melton of the appointment and told

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him that he would have to pay in advance for the visit and additional x-rays. (ECF

No. 93-1 at 195-96; ECF No. 108 at 42.) Over the next month, Nurse Ray, Deputy

Abston, Melton’s family members and Melton’s attorney had several conversations

regarding payment, with the family and attorney insisting that the Pickens County

Jail was required to provide Melton with medical treatment because he had been

injured in its custody, and Nurse Ray and Deputy Abston insisting that Melton was

financially responsible for his own medical treatment because the jail had no report

that Melton had been injured while in custody. (ECF No. 93-1 at 195-98.)

      On June 15, 2010, Melton was taken to Dr. Fowler’s office for an orthopedic

consultation and additional x-rays. (ECF No. 93-1 at 121.) In his report of the visit,

Dr. Fowler noted that Melton “did reasonably well until February of this year when

he re-injured his arm.” (Id.) He then stated, in relevant part, that “X-rays [were]

reviewed and show[ed] an obvious nonunion involving the mid shaft humerus with

displaced hardware . . . Really the only option I have at this point in time would be

to proceed with operative intervention with repair of the nonunion.” (Id.)

      Following the consultation, Nurse Ray contacted Dr. Fowler’s office more

than once to request that Dr. Fowler clarify his June 15, 2010 report by indicating

whether Melton’s injury preexisted his incarceration at the jail and whether

Melton’s need for surgery was urgent. (Id. at 197-98.) Dr. Fowler issued an

addendum to his report on June 28, 2010, stating: “After further review of the x-

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rays it is obvious that he has a longstanding nonunion present in his arm as well as

a longstanding radial nerve palsy. Obviously at some point in time in the future this

will need to be operatively addressed however there is no emergent nature to that

problem.” (Id. at 122.)

        In the meantime, Melton continued to receive Ibuprofen for his pain. On

June 21, 2010, Melton complained that the Ibuprofen was not relieving his pain,

that he could “barely sleep, because of the pain” and that he could not move or feel

his left hand. (Id. at 20.) On June 23, 2010, Nurse Ray informed Melton that Dr.

Sullivan would prescribe Darvocet N-100 to treat his pain. (Id. at 21.) A few days

later, Melton informed Nurse Ray that he could not take Darvocet because it made

him nauseous to the point of vomiting, and he requested different medication. (Id.

at 23, 25-26.)

        On or about July 1, 2010, Nurse Ray spoke with Melton and stated that she

“knew [Melton] was in pain” but felt as if she were “caught in the middle of this.”

(ECF No. 108 at 42.) Melton again complained that he could not tolerate Darvocet

and was in “extreme pain.” (ECF No. 93-1 at 27.) In response, on or about July 13,

2010, Dr. Sullivan prescribed Tramadol to treat Melton’s pain. (Id. at 162, 199.)

But on July 20, 2010, Melton complained that the Tramadol made him sick. (Id. at

29.) At this point, Melton’s medication was switched back to Ibuprofen 800mg.

(Id.)

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      On September 10, 2010, Melton was taken to the Pickens County Medical

Center due to complaints of chest pain. (ECF No. 34 at 44.) Melton attempted to

inform the emergency room physician that his arm was broken, but Deputy Booth,

who transported Melton to the hospital, interrupted and stated that he had been

instructed by Deputy Abston to advise the emergency room doctor not to “worry

about [Melton’s] arm.” (Id.)

      On September 27, 2010, Deputy Booth and Deputy Ellis accompanied

Melton to visit a cardiologist, Dr. Holey. (ECF No. 122-1 at 5-6.) While at Dr.

Holey’s office, Melton spoke with a treating nurse who wished to perform a stress

test on Melton, but could not because Melton’s left arm was wrapped in a towel

that he was using as a sling. (See ECF No. 93-1 at 33; ECF No. 122-1 at 5-6.)

      On September 28, 2010, Melton again requested a sling for his arm. (ECF

No. 93-1 at 33.) On October 4, 2010, Nurse Ray finally provided Melton with a

sling at a charge of $10 against his commissary account. (Id. at 33, 202.)

      On or about October 29, 2010, more than eight months after injuring his

arm, Melton met with Dr. Sullivan for the first time. (ECF No. 109 at 73.) At that

time, Dr. Sullivan admitted that he knew Melton’s arm was broken but declined to

examine Melton. (Id.) Dr. Sullivan also asserted that because the fracture predated

his incarceration at Pickens County Jail, the jail was not financially responsible for




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the injury. Dr. Sullivan told Melton if he wanted his arm surgically repaired, he

would have to pay in advance for the surgery. (Id.)

      Thereafter, and until Melton was transferred to the Alabama Department of

Corrections in July 2011, Melton received no treatment other than Ibuprofen

and/or Tramadol for pain and use of the sling, even though Melton repeatedly

complained that these medications did not effectively relieve his pain, that the pain

was intolerable, and that he was losing the use of and feeling in his left hand. (ECF

No. 93-1 at 33-36, 38-39, 54, 60-61, 69, 77-85, 88-90, 166-72, 176-88.)

      On or about July 14, 2011, Melton was transferred into the custody of the

Alabama Department of Corrections. (ECF No. 109 at 74.) Between July 14, 2011

and August 9, 2011, Melton was examined by medical personnel at the Kilby

Correctional Facility and Bullock Correctional Facility and received additional x-

rays. (Id. at 74-77.)

      On August 23, 2011, Melton was examined by an orthopedic specialist, Dr.

Jeffrey T. Leary. (Id. at 26, 77-78.) Dr. Leary reviewed Melton’s x-rays and

concluded that Melton suffered from a “frank non-union of the humerus with

hardware failure and obvious varus deformity.” (Id. at 26.) Dr. Leary advised

Melton that the repair of his arm would require two surgeries. The first surgery

would be to remove the old hardware and locate the radial nerve in an attempt to




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reverse the loss of feeling and movement. (Id. at 26-27, 78.) The second stage

would involve resetting and grafting the bone and attaching new hardware. (Id.)

      On September 8, 2011 and September 23, 2011, Melton underwent the two

surgeries. (Id. at 34-38, 46-48.) By October 25, 2011, Melton was experiencing no

pain, had full range of motion of his left shoulder, elbow, wrist and hand and was

observed to have had a “complete return of his radial nerve as well.” (Id. at 50, 79-

80.) Accordingly, Melton has recovered from his injury at Pickens County Jail,

except for complaints that his left arm and hand are smaller than the right and he

has “not gained back the strength in his left arm that [he] had before injuring it on

February 11, 2010.” (Id. at 79-80.)

II.   PROCEDURAL HISTORY

      Melton’s operative pro se complaint, which was filed on April 20, 2012,

alleges that Pickens County Commissioners, Pickens County Jail officials, Dr.

Sullivan and Dr. Fowler were deliberately indifferent to Melton’s serious medical

needs by failing to adequately treat his broken left arm and related severe pain.

(ECF No 66.) The complaint also alleges that Dr. Fowler conspired with “Pickens

County officials” to deny Melton medical treatment in violation of 42 U.S.C. §

1983. (Id. ¶ 62.)




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       On October 22, 2012, Magistrate Judge Haikala 1 issued a report and

recommendation recommending dismissal of Melton’s claims against various

defendants who are not appellants in this case and that the remaining defendants

file special reports in response to Melton’s pro se complaint. (ECF No. 70.) The

District Judge adopted the report and recommendation and, later, Magistrate Judge

Greene ordered Sheriff Abston, Deputy Abston, Chief Deputy Carr, Deputy Booth,

Deputy Ellis, Dr. Sullivan, Nurse Ray and Dr. Fowler to file special reports

addressing Melton’s factual allegations, including sworn statements of all persons

with knowledge of the facts alleged in Melton’s complaint. (ECF No. 79; ECF No.

86.) Magistrate Judge Greene stated that the reports might be later construed as

motions for summary judgment pursuant to Fed. R. Civ. P. 56. (ECF No. 86.)

       Defendants filed three special reports as follows: Dr. Sullivan and Dr.

Fowler jointly filed one report; Sheriff Abston, Deputy Abston, Chief Deputy Carr,

Deputy Ellis and Nurse Ray jointly filed their report; and Deputy Booth filed his

report. In these reports, Defendants asserted affirmative defenses, including

statutory immunity under Alabama law, sovereign immunity and qualified

immunity, and argued that they were entitled to summary judgment because the

record lacked evidence that Defendants were deliberately indifferent to Melton’s

       1
         The record reflects that the case initially was assigned to Magistrate Judge Paul W.
Greene until October 5, 2012. The case was then briefly assigned to Magistrate Judge Madeline
H. Haikala, before being transferred back to Magistrate Judge Greene and thereafter assigned to
Magistrate Judge Staci G. Cornelius. (ECF No. 3; ECF No. 70; ECF No. 86; ECF No. 112.)
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serious medical needs. (ECF No. 93; ECF. No. 94; ECF No. 118.) On March 27,

2014, Melton filed responses to the special reports of Drs. Fowler and Sullivan and

Sheriff Abston, Deputy Abston, Chief Deputy Carr, Deputy Ellis and Nurse Ray

supported by medical records and Melton’s affidavit. (ECF No. 108; ECF No.

109.)

        On September 8, 2014, Magistrate Judge Cornelius informed the parties that

she would construe the special reports as motions for summary judgment and

ordered Melton to respond to the special reports within twenty days. (ECF No.

121.) On September 15, 2014, Melton responded to Deputy Booth’s special report.

(ECF No. 122.)

        On December 12, 2014, Magistrate Judge Cornelius issued her report and

recommendation recommending denial of summary judgment for the Defendants.

She based her recommendation on four findings. First, Melton’s “displaced

humeral bone, with loose hardware and radial nerve palsy” constituted a serious

medical need that required surgical intervention. (ECF No. 125 at 14.) Second, a

reasonable jury “easily could conclude” that the “jail administration’s failure to

schedule the surgery, and decision to instead treat the plaintiff with largely

ineffective medications” was “so cursory as to amount to no care at all.” (Id. at 15.)

Third, the record evidence “create[d] a genuine issue of fact with respect to

whether the defendants’ failure to act on the plaintiff’s need for surgery was

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motivated by financial considerations,” particularly the policy of Pickens County

Jail that inmates pay in advance for non-emergent treatment. (Id. at 16.) Lastly, a

reasonable jury could conclude that Dr. Fowler conspired with Nurse Ray to deny

Melton treatment. (Id. at 18-20.)

       Defendants filed objections to the report and recommendation. (ECF No.

128; ECF No. 129.) On January 16, 2015, the District Judge sustained the

objections, declined to adopt the report and recommendation, and entered summary

judgment in favor of Defendants because, in his view: (1) Melton’s claims were

based merely on a “disagreement with the course of diagnosis and treatment by his

physicians,” which is insufficient to prove an “Eighth Amendment deliberate

indifference claim;” and (2) there was no record evidence supporting the inference

that Dr. Fowler conspired with any prison official to deny Melton treatment. (ECF

No. 130 at 6-7.)

       Melton timely appealed the district court’s ruling.

III.   STANDARD OF REVIEW

       We review a district court’s grant of summary judgment de novo,

considering the facts and drawing all reasonable inferences in the light most

favorable to the non-moving party. Mann v. Taser Int’l, Inc., 588 F.3d 1291, 1303

(11th Cir. 2009). 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

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as a matter of law.” Fed. R. Civ. P. 56(a). Genuine disputes of fact exist when the

evidence is such that a reasonable jury could render a verdict for the non-movant.

Mann, 588 F.3d at 1303. Factual issues are considered genuine when they have a

real basis in the record. Id.

       Summary judgment should be entered against a party who fails to make a

showing sufficient to establish the existence of an essential element of his case,

and on which he bears the burden of proof at trial. Acevedo v. First Union Nat’l

Bank, 357 F.3d 1244, 1247 (11th Cir. 2004). Inferences based on speculation and a

“mere scintilla of evidence in support of the nonmoving party will not suffice to

overcome a motion for summary judgment.” Young v. City of Palm Bay, Fla., 358

F.3d 859, 860 (11th Cir. 2004).

IV. DISCUSSION

       The district court entered summary judgment because it concluded that no

reasonable jury could find that Defendants were deliberately indifferent to

Melton’s serious medical needs in violation of Melton’s constitutional rights. We

review this conclusion de novo.

       The district court did not reach the issue of Defendants’ immunity from suit.

However, because Defendants raised both qualified immunity and sovereign

immunity in the district court and because application of these immunities are

questions of law that we consider de novo, we need not remand to the district court

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for a determination of whether Defendants are immune from suit. Stroud v.

McIntosh, 722 F.3d 1294, 1297 (11th Cir. 2013); West v. Tillman, 496 F.3d 1321,

1326 (11th Cir. 2007) (per curiam); see also generally Macklin v. Singletary, 24

F.3d 1307, 1312-13 (11th Cir. 1994) (determining legal issue in the first instance

where it was subject to de novo review and the record was developed).

      We will address, in turn, whether a reasonable jury could find that each

Defendant violated Melton’s constitutional rights and, if so, whether each

Defendant’s conduct violated clearly established law, and then, to the extent

necessary, whether Defendants are entitled to sovereign immunity under the

Alabama Constitution and Eleventh Amendment of the United States Constitution.

      A. 42 U.S.C. § 1983

      To establish a claim under 42 U.S.C. § 1983, a plaintiff must prove: (1) a

violation of a constitutional right; and (2) that the alleged violation was committed

by a person acting under the color of state law or a private individual who

conspired with state actors. Holmes v. Crosby, 418 F.3d 1256, 1258 (11th Cir.

2005) (per curiam); Rowe v. City of Fort Lauderdale, 279 F.3d 1271, 1283-84

(11th Cir. 2002).

      The Eighth Amendment to the Constitution provides, “Excessive bail shall

not be required, nor excessive fines imposed, nor cruel and unusual punishments

inflicted.” U.S. Const. amend. VIII. The Eighth Amendment governs the

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conditions under which convicted prisoners are confined and the treatment that

they receive while in prison. Farmer v. Brennan, 511 U.S. 825, 832, 114 S. Ct.

1970, 1976 (1994). The Supreme Court has interpreted the Eighth Amendment to

prohibit “deliberate indifference to serious medical needs of prisoners.” Estelle v.

Gamble, 429 U.S. 97, 102, 97 S. Ct. 285, 290 (1976). As a pretrial detainee at

Pickens County Jail, Melton’s rights arose under the due process clause of the

Fourteenth Amendment rather than the Eighth Amendment. Mann, 588 F.3d at

1306. Nonetheless, Melton’s claims are “subject to the same scrutiny as if they had

been brought as deliberate indifference claims under the Eighth Amendment.” Id.

To prevail on a claim of deliberate indifference, a plaintiff must show: (1) a serious

medical need; (2) a defendant’s deliberate indifference to that need; and (3)

causation between that indifference and the plaintiff’s injury. Id. at 1306-07.

      B. Qualified Immunity

      Qualified immunity protects “government officials ‘from liability for civil

damages insofar as their conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would have known.’” Pearson v.

Callahan, 555 U.S. 223, 231, 129 S. Ct. 808, 815 (2009) (quoting Harlow v.

Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 2738 (1982)). This immunity

balances the need for official accountability with the need to permit officials to

engage in their discretionary duties without fear of personal liability or harassing

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litigation. Pearson, 555 U.S. at 231. But qualified immunity “does not offer

protection ‘if an official knew or reasonably should have known that the action he

took within his sphere of official responsibility would violate the constitutional

rights of the [plaintiff].’” Holmes v. Kucynda, 321 F.3d 1069, 1077 (11th Cir.

2003) (quoting Harlow, 457 U.S. at 815 (internal quotation marks & alteration

omitted)).

      In order for government officials to enjoy qualified immunity, they must

first establish that they were acting within the scope of their discretionary authority

when the alleged wrongful acts occurred. Lee v. Ferraro, 284 F.3d 1188, 1194

(11th Cir. 2002). Here, no one disputes that the Defendants were acting in the

scope of their discretionary authority during the period in which they interacted

with Melton.

      Once it has been determined that an official was acting with the scope of his

discretionary authority, the burden shifts to the plaintiff to establish that qualified

immunity is inappropriate. Id. First, the plaintiff must show that the official’s

alleged conduct violated a constitutionally protected right. Second, the plaintiff

must demonstrate that the right was clearly established at the time of the

misconduct. Pearson, 555 U.S. at 232; Grider v. City of Auburn, 618 F.3d 1240,

1254 (11th Cir. 2010). A plaintiff must satisfy both prongs of the analysis to

overcome a defense of qualified immunity. Grider, 618 F.3d at 1254. The

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determination of these elements may be conducted in any order. Pearson, 555 U.S.

236.

       A right is clearly established if a reasonable official would understand that

his conduct violates that right. See Coffin v. Brandau, 642 F.3d 999, 1013 (11th

Cir. 2011) (en banc). The touchstone of the “clearly established” inquiry is whether

the official had “fair warning” and notice that his conduct violated the

constitutional right in question. Id. at 1013, 1015; McClish v. Nugent, 483 F.3d

1231, 1248 (11th Cir. 2007).

       In order for the law to be clearly established, “case law must ordinarily have

been earlier developed in such a concrete and factually defined context to make it

obvious to all reasonable government actors, in the defendant’s place, that what he

is doing violates a federal law.” Priester v. City of Riviera Beach, 208 F.3d 919

(11th Cir. 2000) (citations omitted). The Court looks to the binding precedent set

forth in the decisions of the Supreme Court, the Eleventh Circuit, or the highest

court of the state (Georgia, here) to decide whether a right is clearly established.

Amnesty Int’l, USA v. Battle, 559 F.3d 1170, 1184 (11th Cir. 2009). Typically,

“[e]xact factual identity with a previously decided case is not required, but the

unlawfulness of the conduct must be apparent from the pre-existing law.” Coffin,

642 F.3d at 1013 (citations omitted).




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      A narrow exception to the rule requiring particularized case law exists. This

exception applies in situations where the official’s conduct “so obviously violates

the constitution that prior case law is unnecessary.” Gilmore v. Hodges, 738 F.3d

266, 279 (11th Cir. 2013) (quoting Mercado v. City of Orlando, 407 F.3d 1152,

1159 (11th Cir. 2005). A broad statement of legal principle announced in case law

may be sufficient if it establishes the law “‘with obvious clarity’ to the point that

every objectively reasonable government official facing the circumstances would

know that the official's conduct did violate federal law when the official acted.”

Vinyard v. Wilson, 311 F.3d 1340, 1351 (11th Cir. 2002). We likewise recognize

the obvious-clarity exception where conduct is “so bad that case law is not needed

to establish that the conduct cannot be lawful.” Id. at 1350.

      C. Analysis

             i. Serious Medical Need

      In this circuit, a serious medical need is considered “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.”

Hill v. Dekalb Reg’l Youth Det. Ctr., 40 F.3d 1176, 1187 (11th Cir. 1994) (internal

citation and quotation marks omitted), overruled in part on other grounds by Hope

v. Pelzer, 536 U.S. 730 (2002). To constitute a serious medical need, “the medical

need must be one that, if left unattended, poses a substantial risk of serious harm.”

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Mann, 588 F.3d at 1307 (internal citation and quotation marks omitted). We have

recognized a variety of medical needs as serious medical needs. For instance, we

have found that broken bones and bleeding cuts are serious medical needs that

require attention within hours. See Harris v. Coweta County, 21 F.3d 388, 394

(11th Cir. 1994). Severe pain that is not promptly or adequately treated can also

constitute a serious medical need depending on the circumstances. McElligott v.

Foley, 182 F.3d 1248, 1255-59 (11th Cir. 1999); Brown v. Hughes, 894 F.2d 1533,

1538 (11th Cir. 1990) (per curiam) (delay in treating inmate’s broken foot, no

matter how brief, could render defendants liable for deliberate infliction of pain).

      Viewing the record in the light most favorable to Melton, there is evidence

that Melton had a serious medical need for treatment after he fell, broke his left

humerus, dislocated the hardware in his arm, and began to experience severe pain.

(ECF No. 93-1 at 33-36, 38-39, 54, 59-61, 69-70, 77-83, 85, 88-90, 166-72, 176-

85, 187-88.) First, Dr. Fowler, an orthopedist, examined Melton and determined

that he required treatment for a “nonunion humerus with displaced hardware” and

“radial nerve palsy.” (ECF No. 93-1 at 121-22.) Significantly, Dr. Fowler’s report

stated that surgical intervention was the only treatment option. (Id.)

      Second, Melton submitted sufficient evidence to support the conclusion that

Melton’s injury was “so obvious that even a lay person would easily recognize the

necessity for a doctor’s attention.” See Farrow v. West, 320 F.3d 1235, 1243 (11th

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Cir. 2003). More than one witness stated that it was obvious that Melton suffered

from a badly broken arm. Multiple sources testified that after his fall “it appeared

as if [Melton’s] bone was sticking up under the skin,” and two radiology reports

reflected that the plate in Melton’s arm had shifted and the screws had loosened.

(ECF No. 108 at 21, 24, 27, 40-41; ECF No. 93-1 at 120.) When Melton’s sisters

visited him at the jail, they noted that his “arm moved as if it was separated and

[Melton] could not move his hand” and they could see “a bone or rod sticking out

at an angle at the midpoint of [Melton’s] upper arm.” (ECF No. 108 at 24, 27.)

Melton’s mother and brother noted a similar abnormality. (ECF No. 34 at 35; ECF

No. 108 at 21.) And when Melton was transferred to Alabama Department of

Corrections, Dr. Leary recognized an “obvious deformity of Melton’s arm.” (ECF

No. 109 at 26.)

      Third, the record contains Melton’s testimony evidencing that he

experienced severe pain upon falling, that the pain persisted and intensified, and

that he continued to lose sensation in and use of his left hand until his surgery after

being transferred to the custody of the Alabama Department of Corrections. (ECF

No. 93-1 at 4-30, 33-36, 38-39, 54, 60-61, 69-70, 77-83, 85, 88-90; ECF No. 109 at

67-80.) Under our case law, a reasonable jury could find that Melton’s severe pain

and suffering constituted a serious medical need. See e.g., Brown, 894 F.3d at

1538-39 (broken foot and attendant pain presented serious medical need);

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McElligott, 182 F.3d at 1258 (“[A] jury in this case could find that, although Dr.

Foley and Wagner provided some medication to Elmore, as Elmore continued to

feel severe pain and as his condition deteriorated, Dr. Foley and Wagner, with

knowledge of Elmore’s condition, failed to provide care in response to his

needs.”).

      We conclude that, viewed in the light most favorable to Melton, the evidence

shows that after Melton fell and injured his left arm, he suffered from a serious

medical need.

               ii. Deliberate Indifference

       A plaintiff claiming deliberate indifference to a serious medical need must

prove: (1) subjective knowledge of a risk of serious harm; (2) disregard of that

risk; (3) by conduct that is more than mere negligence.2 See, e.g., McElligott, 182

F.3d at 1255; accord Bingham v. Thomas, 654 F.3d 1171, 1176 (11th Cir. 2011)



       2
          In Townsend v. Jefferson Cty., 601 F.3d 1152, 1158 (11th Cir. 2010), a panel of this
Court stated that under Cottrell v. Caldwell, 85 F.3d 1480, 1490 (11th Cir. 1996) and Farmer v.
Brennan, 511 U.S. 825, 847 (1994), “a claim of deliberate indifference requires proof of more
than gross negligence.” We disagree with that conclusion for three main reasons. First, the “more
than mere negligence” standard in McElligott is more consistent with Farmer than the “more
than gross negligence” standard in Townsend. Farmer, 511 U.S. at 847 (holding that deliberate
indifference requires subjective risk of serious harm and disregard of that risk by “failing to take
reasonable measures to abate it”). Second, the phrase “more than gross negligence” is not found
in either Cottrell or Farmer. Third, the panel in Cottrell found no deliberate indifference where
the plaintiff failed to prove the “subjective intent element prescribed in Farmer” and, therefore,
did not reach whether Farmer requires “more than mere negligence” or “more than gross
negligence.” Cottrell, 85 F.3d at 1491-92. Because McElligott is the earliest Eleventh Circuit
case after Farmer to directly address the degree of culpability required under Farmer, we must
follow it. Morrison v. Amway Corp., 323 F.3d 920, 929 (11th Cir. 2003).
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(per curiam). Summary judgment will be granted in favor of a defendant unless the

plaintiff presents evidence of each of these elements. Id.

      In our decisions, conduct deliberately indifferent to serious medical needs

has included: (1) grossly inadequate care; (2) a decision to take an easier but less

efficacious course of treatment; and (3) medical care that is so cursory as to

amount to no treatment at all. Bingham, 654 F.3d at 1176. A defendant who

unreasonably fails to respond or refuses to treat an inmate’s need for medical care

or one who delays necessary treatment without explanation or for non-medical

reasons may also exhibit deliberate indifference. See, e.g., Waldrop v. Evans, 871

F.2d 1030, 1036 (11th Cir. 1989) (affirming denial of summary judgment where

prison official “took no action” and failed to “inform competent authorities . . . of a

prisoner’s need for . . . psychiatric care”); Farrow, 320 F.3d at 1247 (whether a

delay in treatment is tolerable depends on the nature of the medical need and the

reason for the delay); Brown, 894 F.2d at 1538 (“delay of less than a day in

responding to plaintiff’s broken foot would not by itself preclude a finding of

deliberate indifference” and “an unexplained delay of hours in treating a serious

injury states a prima facie case of deliberate indifference”).

       A defendant also cannot deny or delay necessary medical treatment to

coerce pre-payment by a person in custody without running afoul of the Eighth




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Amendment. 3 Ancata, 769 F.2d at 704 (“Delay in medical treatment cannot be

justified as a means to coerce payment.”); see also Harris v. Thigpen, 941 F.2d

1495, 1509 (11th Cir. 1991) (lack of funds does not “excuse the failure of

correctional systems to maintain a certain minimum level of medical service

necessary to avoid the imposition of cruel and unusual punishment”); see also

Hamm v. DeKalb Cty., 774 F.2d 1567, 1573-74 (11th Cir. 1985) (state cannot

completely deny medical care or provide care “below some minimally adequate

level” to “limit[] the cost of detention”). On the other hand, “a simple difference in

medical opinion between the prison’s medical staff and the inmate as to the latter’s

diagnosis or course of treatment” does not support a claim of deliberate

indifference. Thigpen, 941 F.2d at 1505.

       In considering a deliberate indifference claim, “[e]ach 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). Since a finding of deliberate

indifference requires a finding of the defendant’s subjective knowledge of the

relevant risk, a genuine issue of material fact exists “only if the record contains




       3
          We do not decide whether and precisely under what circumstances an inmate can be
held financially responsible for medical services. What is clear is that prison officials may not
condition medical treatment for a serious medical need on prepayment.
Ancata v. Prison Health Servs. Inc., 769 F.2d 700, 704-05 (11th Cir. 1985); Reynolds v. Wagner,
128 F.3d 166, 177 (3d Cir. 1997) (fee for medical services permissible where inmates “know that
they will never be denied medical care because of an inability to pay”).
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evidence, albeit circumstantial, of such subjective awareness.” McElligott, 182

F.3d at 1255 (citation and internal quotation marks omitted).



                   (a)   Dr. Fowler

      Dr. Fowler is entitled to summary judgment. The record shows that on June

15, 2010, Dr. Fowler, a private orthopedic doctor not under contract with Pickens

County Jail, ordered and reviewed x-rays of Melton’s left arm and examined

Melton. (ECF No. 93-1 at 121.) As a result of this examination, Dr. Fowler

correctly diagnosed and reported Melton’s injury as an “obvious nonunion

involving the mid shaft humerus with displaced hardware” that required non-

emergent surgery. (Id. at 121-22.)

      The record contains no evidence that Dr. Fowler had any further contact

with Melton or any responsibility for Melton’s care after relaying his diagnosis to

Pickens County Jail officials. Additionally, the record contains no evidence that

Melton informed Dr. Fowler of his ongoing pain and lack of adequate treatment.

Under these circumstances, Dr. Fowler was legally entitled to leave decisions

concerning the timing and availability of Melton’s surgery and treatment for

Melton’s pain to Pickens County Jail officials. See Galluccio v. Holmes, 724 F.2d

301, 305 (2d Cir. 1983) (affirming summary judgment in favor of physician on

Section 1983 claim where the physician did not give “orders and directives for

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inpatient care” and was therefore “not responsible for any of the possible violations

of [the plaintiff’s] rights” (emphasis in original)); Reed-Bey v. Pramstaller, 607 F.

App’x 445, 449 (6th Cir. 2015), cert. denied, 136 S. Ct. 692 (2015) (affirming

district court’s decision to refuse to submit to jury issue of whether inmate was

denied adequate follow-up treatment by physician because the inmate “did not

allege any facts in his complaint to indicate that [the physician] was responsible for

delaying or denying him treatment following his surgery”).

      There is also no evidence to support an inference that Dr. Fowler conspired

with Nurse Ray or any other Pickens County Jail official to deny or delay

treatment. To establish a prima facie case of a conspiracy under 42 U.S.C. § 1983,

Melton must show evidence of an understanding or “willful participation” between

Dr. Fowler and jail officials or Nurse Ray to violate Melton’s civil rights and there

must be more than a “mere scintilla of evidence” of a conspiracy to survive

summary judgment. Rowe, 279 F.3d at 1283-84 (internal citations and quotation

marks omitted). The “linchpin for conspiracy is agreement, which presupposes

communication.” Bailey v. Bd. of Cty. Comm’rs of Alachua Cty., Fla., 956 F.2d

1112, 1122 (11th Cir. 1992).

      The only possible basis for Melton’s contention that Dr. Fowler conspired

with any Pickens County Jail official is the June 28, 2010 addendum that

apparently resulted from the June 2010 conversations between Nurse Ray and Dr.

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Fowler’s office. (ECF No. 93-1 at 122, 197-98.) However, the addendum

essentially contains objectively accurate conclusions that the nonunion of the left

humerus was “longstanding” and that surgery was needed but not an emergency.

(Id. at 122.) Nor does any evidence exist to show that Dr. Fowler’s medical

opinion changed regarding the longstanding nature of the injury or the non-

emergent need for surgical intervention.4

       Additionally, there is no evidence that Dr. Fowler knew the Defendants

would use his statements to deny or delay treatment under circumstances where the

need for treatment was or became evident. See Lowe v. Alridge, 958 F.2d 1565,

1572-73 (11th Cir. 1992) (reversing and entering summary judgment in favor of

private defendant who had no knowledge of conspiracy and “thus could not have

conspired to deprive [the plaintiffs] of their rights”). Put simply, nothing in the

conversations between the jail officials and Dr. Fowler’s office suggests that Dr.

Fowler was persuaded to change his medical opinion knowing that the jail could

use his statements to deprive Melton of necessary treatment.

       Because Dr. Fowler did not violate Melton’s constitutional rights, we need

not reach the second prong of the qualified immunity inquiry. Hudson v. Hall, 231

F.3d 1289, 1294 (11th Cir. 2000). Dr. Fowler is entitled to summary judgment.


       4
          While Dr. Fowler’s original report stated that Melton “re-injured” his arm in February
2010, Dr. Fowler later explained that he simply documented what Melton told him. (ECF No.
93-3 at ¶ 4.)
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                   (b)   Dr. Sullivan

                         (1)    Melton’s constitutional right

      After consideration of the facts, we reverse the district court’s grant of

summary judgment in favor of Dr. Sullivan because a reasonable jury could find

that he was deliberately indifferent to Melton’s serious medical needs.

      As an initial matter, a reasonable jury could find that Dr. Sullivan knew

Melton’s arm was broken, the hardware in Melton’s arm was dislocated, and that

these circumstances caused Melton severe pain. The evidence reflecting Dr.

Sullivan’s subjective knowledge includes Melton’s testimony that he repeatedly

sought medical attention for his severe pain, Melton’s numerous medical requests,

Nurse Ray’s notes documenting her communications with Dr. Sullivan regarding

Melton’s condition, and Dr. Sullivan’s review of the May 7, 2010 radiology report.

(ECF No. 93-1 at 4-30, 33-36, 38-39, 60-61, 120, 191-203; ECF No. 109 at 73-74.)

No real dispute exists as to Dr. Sullivan’s knowledge of Melton’s condition.

      Next, a reasonable jury could also find that Dr. Sullivan acted with

deliberate indifference to Melton’s injury and resulting pain. Most notably, Dr.

Sullivan did not even meet with Melton in person until approximately eight months

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after his injury. Even then, Dr. Sullivan never examined Melton’s arm despite

knowing it was fractured and painful. Additionally, Dr. Sullivan failed to offer a

sling or other device that might have relieved Melton’s suffering, despite Melton’s

requests for a sling to support his arm. Instead, for months, Melton used a towel as

a make-shift sling. It was not until October 2010 that Melton was finally provided

a sling. (ECF No. 93-1 at 33, 202.)

      Nor did Dr. Sullivan do much to address Melton’s pain, even though Melton

described his pain as “severe,” “unbearable,” “intolerable,” and “bringing tears.”

(ECF No. 93-1 at 5-88.) Dr. Sullivan prescribed only Ibuprofen (which was

ineffective), Tramadol (that made Melton sick) and Darvocet (that Melton could

not tolerate). (ECF No. 93-1 at 4-30, 33-36, 38-39, 54, 60-61, 69, 77-83, 85, 88-90,

166-72, 176-85, 187-88, 191-203; ECF No. 109 at 73-74.) Even after Dr. Fowler

opined that surgery was the only option for Melton, Dr. Sullivan refused to arrange

for surgery unless Melton “pa[id] the necessary expenses” in advance or through a

payment plan. (ECF No. 93-2 ¶ 16.) These decisions were made by Dr. Sullivan

despite Melton’s pleas of desperation. The extent of Melton’s desperation is

encompassed in one of his medical requests in which he stated, “I have been

brought to the point of hopelessness, and fear for my life due to nonmedical

treatment. I am being neglected to the point, where I may lose my arm.” (ECF No.

93-1 at 26.)

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      A jury presented with this evidence could reasonably conclude that Dr.

Sullivan’s treatment of Melton was “grossly inadequate,” “so cursory as to amount

to no treatment at all” or an unconstitutional denial of “[m]inimally adequate care”

based on impermissible financial considerations. See Bingham, 654 F.3d at 1176;

see also Thigpen, 941 F.2d at 1509; see also Ancata, 769 F.2d at 705. And the

initial three-month delay in providing Melton any treatment at all further supports

a finding of deliberate indifference. See Farrow, 320 F.3d at 1246 (“substantial and

inordinate delay in treatment” raised a jury question as to deliberate indifference

towards prisoner’s medical need); Thigpen, 21 F.3d at 289 (several weeks was too

long to respond to inmate’s serious medical need).

      Finally, based on this evidence, a reasonable jury could find that Dr.

Sullivan’s deliberate indifference was the cause of Melton’s constitutional injury.

See Goebert v. Lee Cty., 510 F.3d 1312, 1327 (11th Cir. 2007) (causation can be

shown by personal participation in the constitutional violation).

                          (2)   Was Melton’s right clearly established?

      Melton’s constitutional right to adequate medical care in these circumstances

was sufficiently “clearly established . . . that a reasonable official would

understand that what he [was] doing violate[d] [Melton’s] rights.” See Gilmore,

738 F.3d at 277 (citing Coffin v. Brandau, 642 F.3d 999, 1013 (11th Cir. 2011) (en

banc)); McElligott, 182 F.3d at 1260 (noting that “qualified immunity seeks to

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ensure that defendants ‘reasonably can anticipate when their conduct may give rise

to liability,’ by attaching liability only if ‘[t]he contours of the right [violated are]

sufficiently clear that a reasonable official would understand that what he is doing

violates that right.’” (quoting United States v. Lanier, 520 U.S. 259, 270 (1997)).

      Principles of law set forth in other cases clearly establish that Dr. Sullivan’s

conduct amounted to deliberate indifference. The Supreme Court’s decision in

Estelle established that “deliberate indifference to serious medical needs of

prisoners constitutes the ‘unnecessary and wanton infliction of pain,’ proscribed by

the Eighth Amendment.” Estelle, 429 U.S. at 104, 97 S. Ct. at 290 (internal citation

omitted) (quoting Gregg v. Georgia, 428 U.S. 153, 173, 96 S. Ct. 2909, 2925

(1976)). And this Court has made it clear in similar circumstances that officials

violate an inmate’s Eighth Amendment rights by failing to provide, unreasonably

delaying or providing grossly inadequate medical care that causes an inmate to

“needlessly suffer” severe pain. See, e.g., Brown, 894 F.2d at 1538 (unexplained

delay of hours in treating broken foot states prima facie case of deliberate

indifference); Farrow, 320 F.3d at 1248 (reversing summary judgment entered in

favor of physician where inmate “was permitted to suffer from pain, bleeding and

swollen gums and periodic weight loss, and the defendants . . . offered no

reasonable medical reason for the fifteen-month delay” in providing treatment).




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       Two specific cases are sufficiently similar to have put Dr. Sullivan on notice

that his actions or inaction violated Melton’s constitutional right to timely

treatment for serious medical needs. First, in Harris v. Coweta County, 21 F.3d

388 (11th Cir. 1994), an inmate brought a Section 1983 action alleging that he was

denied proper medical treatment for a hand injury. Harris, 21 F.3d at 289. Three

fingers on the prisoner’s left hand had become curled up and his fingernails grew

toward and into the palm of his hand, resulting in the inability to open them. Id.

After various delays, the prisoner was referred to a specialist for a nerve

conduction study, which revealed that the prisoner required surgery “as soon as

possible . . . .” Id. at 392. Based on this recommendation, the prisoner saw another

doctor—a surgeon—who agreed that the prisoner needed surgery, but this time, the

doctor recommended that it be done at the state medical facility. Id. Based on this

information, the prison doctor opined that although surgery was needed, it was not

necessary immediately and that a few weeks would not make a difference. Id. The

doctor informed the Sheriff that the prisoner’s surgery should be done as soon as

practical but that it need not be done on an emergency basis. Id. The prisoner was

later transferred to the state prison system and his surgery took place six weeks

later. During the delay in treatment, the inmate was given only pain medication. Id.

at 391, n. 2.




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      In denying the Sheriff qualified immunity, we noted that the Sheriff knew of

the prisoner’s serious medical condition by the end of November, though it was not

an emergency situation. We discussed the fact that the tolerable length of delay in

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

reason for the delay. Id. at 394. For serious injuries like the inmate’s, we found that

the “law was clearly established several weeks was too long to fail to properly

respond” to the inmate’s serious medical need. Id. And the inmate’s transfer to the

state system was not an adequate explanation for the delay. We concluded:

“Inaction in the face of a known serious medical need, a prescribed course of care,

and the failure of an alternative course of action (the transfer to the state system), is

not conduct that a sheriff could reasonably consider lawful.” Id.

      Here, it took several months for Melton to receive any treatment. And, when

he finally saw an orthopedist, Dr. Fowler acknowledged that the only way to treat

the nonunion of Melton’s humerus, displacement of hardware, and radial nerve

palsy was for Melton to “proceed with operative intervention.” (ECF No. 93-1 at

121.) Despite Dr. Fowler’s opinion that Melton’s arm would “need to be

operatively addressed,” (Id. at 122), Dr. Sullivan did not pursue surgical

intervention. Rather, Dr. Sullivan continued to treat Melton’s arm with only pain

medication.




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      Our decision in McElligott also clearly established Melton’s right to timely

treatment. In McElligott, we reversed a district court’s grant of summary judgment

in favor of a doctor and nurse. McElligott, 182 F.3d at 1257-59. In that case, a

prisoner complained for months about abdominal pain and vomiting. Id. at 1252.

After the prisoner was examined, he was placed on a liquid diet, prescribed

Tylenol for pain, and given Pepto-Bismol. Id. Medical staff continued this

treatment over the course of months, even though the prisoner continuously

complained of severe pain that was unbearable. Id. Like Melton here, the inmate

completed multiple inmate request forms begging for medication to relieve the

pain. Id. Despite these complaints, medical staff did not perform any tests,

choosing instead to wait for the inmate’s records from a VA hospital. Id. Months

later, the inmate was diagnosed with terminal cancer. Id. at 1254.

      The district court granted summary judgment in favor of the prison medical

staff, but we reversed on appeal. We noted that deliberate indifference to serious

medical needs includes the “unnecessary and wanton infliction of pain.” Id. at

1254 (citing Estelle, 429 U.S. at 104, 97 S. Ct. at 291). And, we found that a jury

question existed as to whether the jail’s medical staff was deliberately indifferent

to the inmate’s medical need for further diagnosis and treatment of the severe pain

that he experienced. Id. at 1256-57. We emphasized that “prison officials with

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

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

resulting from his or her illness.” Id. at 1257.

      While these cases do not address facts identical to those in this case, our

Circuit precedent makes clear that Dr. Sullivan is not entitled to qualified

immunity. See Mercado v. City of Orlando, 407 F.3d 1152, 1159 (11th Cir. 2005)

(constitutional right may be clearly established based on a “materially similar

case,” the existence of a “broader, clearly established principle [that] should

control the novel facts in this situation,” or conduct which “so obviously violates

the constitution that prior case law is unnecessary”); McElligott, 182 F.3d at 1260

(citing Anderson v. Creighton, 483 U.S. 635, 640 (1987)) (official not entitled to

qualified immunity where it is “apparent” that acts were unlawful under

preexisting law).

      Because we conclude that a reasonable jury could find that Dr. Sullivan

violated Melton’s clearly established constitutional rights, we reverse the district

court’s grant of summary judgment and remand for further proceedings.

                    (c)    Nurse Ray

                           (1)    Melton’s constitutional right

      We also reverse the district court’s entry of summary judgment in favor of

Nurse Ray. The record includes substantial evidence, consisting mainly of

Melton’s medical requests and Nurse Ray’s own notes, that Nurse Ray had

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subjective knowledge of Melton’s injury and related pain, and the loss of the use

and feeling in Melton’s left hand. (ECF No. 93-1 at 4-30, 33-36, 38-39, 54, 60-61,

69-70, 77-83, 85, 88-90, 191-203.) Nurse Ray was the person with whom Melton

spoke with most concerning his injury and resulting pain. And Nurse Ray

conveyed Melton’s concerns to Dr. Sullivan. Again, the fact that Nurse Ray had

subjective knowledge of Melton’s serious medical needs is not disputed, nor could

it be. Nurse Ray herself told Melton that she “knew [Melton] was in pain” but felt

as if she were “caught in the middle of this.” (ECF No. 108 at 42.)

      Substantial evidence in the record also exists that Nurse Ray was

deliberately indifferent to Melton’s suffering. See, e.g., McElligott, 182 F.3d at

1258-59; Brown, 894 F.2d at 1538. Melton’s medical requests, viewed in the light

most favorable to Melton, suggest that Nurse Ray knew by March 26, 2010, at the

latest, that Melton had displaced hardware in his left arm and that in the months

afterwards Melton suffered continuous and severe pain and began losing sensation

in his left arm. (ECF No. 93-1 at 4-5, 33-36, 38-39, 54, 60-61, 69-70, 77-83, 85,

88-90, 191-203.)

      Despite her knowledge of Melton’s condition and his complaints, Nurse Ray

failed to: (1) take any action to address Melton’s injury until April 19, 2010; and

(2) provide Melton with a sling until October 2010, nearly eight months after

Melton’s injury. (ECF No. 93-1 at 33, 191, 202.) Nurse Ray denied Melton a sling

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even though he began requesting it in March 2010 and despite the fact that she

advised Dr. Sullivan that Melton felt that the rod and plate in his arm were

dislocated. (Id.) Even with respect to the provision of x-rays, Nurse Ray advised

Melton that he would be required to the cover the expense associated with the

procedure. (Id.) Then she dickered with Melton’s family over payment for several

weeks before making the appointment with Dr. Fowler. (ECF No. 93-1 at 191-95.)

A reasonable jury could conclude based on these facts that Nurse Ray knowingly

and deliberately inflicted pain on Melton by failing to render any treatment for

more than two months after his injury and deliberately delayed rendering treatment

thereafter for non-medical reasons. A reasonable jury could also find that Nurse

Ray’s deliberate indifference was the cause of Melton’s constitutional injury.

See Goebert, 510 F.3d at 1327 (causation can be shown by personal participation

in the constitutional violation).

                           (2)      Was Melton’s right clearly established?

      As we have noted, this Court has repeatedly held that an unreasonable delay

in treating a serious medical need, such as Melton’s nonunion, dislocated hardware

and ongoing severe pain, constitutes deliberate indifference. See e.g., Farrow, 320

F.3d at 1248. In Harris we affirmed the denial of qualified immunity based on a

several week delay in treating swollen and malodorous hand. Harris, 21 F.3d at

394. And, in Brown, we concluded that “a deliberate delay on the order of hours in

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providing care for a serious and painful broken foot is sufficient to state a

constitutional claim.” Brown, 894 F.2d at 1538. These cases clearly established

that a three-month delay in providing any treatment at all and an eight-month delay

in providing a sling for a bone disunion constitutes deliberate indifference.

      Any argument by Defendants that the delay in treatment was caused by

Melton’s failure to pay for his own medical treatment is meritless. Our circuit has

clearly established that a deliberate delay in rendering necessary medical treatment

for non-medical reasons is enough to state a deliberate indifference claim. Farrow,

320 F.3d at 1246 (internal citations omitted); Thomas v. Town of Davie, 847 F.2d

771, 772-73 (11th Cir. 1988); Ancata, 769 F.2d at 704 (“Furthermore, if necessary

medical treatment has been delayed for non-medical reasons, a case of deliberate

indifference has been made out.”).

      Because the “contours of unreasonable delay in providing treatment for

serious medical needs were defined with enough particularity to allow [Nurse Ray]

. . . to understand whether [her] actions were lawful,” Nurse Ray is not entitled to

qualified immunity. Harris, 21 F.3d at 394. We therefore reverse the district

court’s grant of summary judgment and remand the case for further proceedings

with respect to Nurse Ray.

                   (d)    Sheriff Abston

                          (1)    Melton’s constitutional right


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      Likewise, we reverse the grant of summary judgment in favor of Sheriff

Abston. First, ample evidence exists that Sheriff Abston had subjective knowledge

that Melton injured his left arm and thereafter suffered severe pain. The evidence

reflecting Sheriff Abston’s subjective knowledge includes affidavits from Melton

and his brothers, Daniel Melton Jr. and Wesley Melton. While visiting the jail in

May 2010, Melton’s brothers met with Sheriff Abston and complained to him that

Melton’s arm had gone untreated since February 2010. (ECF No. 34 at 55-56; ECF

No. 94-5.) During the conversation, Melton’s brothers advised Sheriff Abston that

their brother had been complaining since February 2010 about his injury and the

lack of medical attention that he received. (ECF No. 34 at 55, ECF No. 108 at 31-

34.) The various inmate request forms submitted by Melton to the Sheriff’s office

also support a finding that Sheriff Abston knew about Melton’s injury and

resulting pain. Finally, Sheriff Abston’s own affidavit stating that he “instructed

[his] staff to provide all necessary medical care to Mr. Melton” evidences his

knowledge of Melton’s serious medical need. (ECF No. 34 at 37-45, 49-56, 77-78;

ECF No. 94-5 at 2.)

      There is also evidence to permit a reasonable jury to find that Sheriff Abston

knowingly and intentionally disregarded Melton’s serious medical needs. Despite

knowing of Melton’s injured left arm, severe pain and loss of feeling in his left

hand and being ultimately “responsible for the care and custody of inmates in the

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Pickens County Jail,” Sheriff Abston failed to authorize x-rays of Melton’s arm

unless Melton paid the costs associated with the x-rays. Likewise, Sheriff Abston

did not permit Melton to consult with an orthopedic physician or even allow the

jail to provide a sling for Melton unless he or his family paid in advance for this

treatment. (ECF No. 34 at 55-56; see ECF No. 93-1 at 33, 191-92, 195-96; ECF

No. 94-5 at 2; ECF No. 108 at 37-38.) A reasonable jury could conclude on these

facts that Sheriff Abston knowingly and deliberately inflicted pain on Melton by

not only denying necessary medical treatment to coerce payment from Melton but

also deliberately delaying needed treatment for non-medical reasons.

      Finally, a reasonable jury could find that Sheriff Abston’s deliberate

indifference caused Melton’s injury. See Goebert, 510 F.3d at 1327.

                         (2)   Was Melton’s right clearly established?

      As is clear by now, an official cannot: (1) unreasonably delay necessary

medical treatment as a means to coerce payment from an inmate; or (2) fail to

provide a “certain minimum level of medical service necessary to avoid the

imposition of cruel and unusual punishment” under the Eighth and Fourteenth

Amendments. Ancata, 769 F.2d at 704; Thigpen, 941 F.2d at 1509. “Deliberate

indifference to serious medical needs may be shown by failure to provide prompt

attention to those needs by delaying necessary medical treatment for nonmedical

reasons or by ‘proving a policy of deficiencies in staffing or procedures such that

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the [pretrial detainee] is effectively denied access to adequate medical care.’” Town

of Davie, 847 F.2d at 772-73 (internal citations omitted)); see also Hamm, 774

F.2d at 1573-74.

      Here, Sheriff Abston’s failure to provide Melton with prompt medical

treatment unless and until he paid for his own treatment constitutes a violation of a

clearly established constitutional right. “The law was also clearly established that

the right to medical care may include diagnostic tests known to be necessary, not

just medicinal and surgical care.” Harris, 941 F.2d at 394. Because there is

substantial evidence that Sheriff Abston, at the very least, refused to authorize a

radiology report of Melton’s injured left arm and a sling to relieve Melton’s pain

unless he paid for such services in advance, Sheriff Abston is not entitled to

qualified immunity.

      Since a reasonable jury could find that Sheriff Abston violated Melton’s

clearly established constitutional rights, we reverse the district court’s grant of

summary judgment and remand for further proceedings.

                   (e)    Deputy Ellis

                          (1)   Melton’s constitutional right

      As with Dr. Sullivan, Nurse Ray, and Sheriff Abston, we reverse the grant of

summary judgment in favor of Deputy Ellis. A reasonable jury could conclude that

Deputy Ellis had subjective knowledge that Melton fell and injured his left arm,

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thereby needing medical treatment, based on Melton’s unrefuted affidavit

testimony that: (1) on February 11, 2010, Deputy Ellis observed Melton fall and

“hit[] [his] upper arm on the van’s bench seat;” and (2) Melton immediately

informed Deputy Ellis of a “pop[ping]” sensation and pain in his left arm. (ECF

No. 34 at 38; ECF No. 108 at 36-37.) At the time of his injury, Melton told Deputy

Ellis that he was “in a great deal of pain.” (ECF No. 66 at 3; ECF No. 34 at 38.)

The record further establishes that Deputy Ellis transported Melton to the hospital

for x-rays on May 5, 2010. According to Melton, the x-ray technician told Deputy

Ellis that Melton was suffering from a “bad break” and that the hardware in his

arm was “barely holding on.” (ECF No. 109 at 70; ECF No. 34 at 41-42.)

      There is also unrefuted record evidence that after Melton informed Deputy

Ellis of his painful injury, Deputy Ellis ignored Melton’s complaints of pain.

Despite knowing of Melton’s injury, Deputy Ellis failed to render first aid, report

Melton’s injury to medical staff, Sheriff Abston or Deputy Ellis’ supervisors or co-

workers, or transport Melton to a medical facility. (ECF No. 34 at 38; ECF No. 108

at 36-37.) And when the x-ray technician later informed Deputy Ellis that Melton

had a bad break, Deputy Ellis took no further action to obtain treatment for

Melton’s arm. Under these facts, a reasonable jury could conclude that Deputy

Ellis was deliberately indifferent to Melton’s serious medical needs because he

failed to treat Melton’s injury or report the injury to medical staff or his superiors.

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See, e.g., Brown, 894 F.2d at 1538 (denying or delaying medical treatment is

tantamount to “unnecessary and wanton infliction of pain”).



                          (2)   Was Melton’s right clearly established?

      As already discussed, Melton’s constitutional right to adequate medical care

was “clearly established such that a reasonable official would understand” the need

to either render first aid to treat Melton’s injured left arm or pursue treatment for

Melton by reporting his injury to medical staff or supervisors at Pickens County

Jail. See, e.g., Brown, 894 F.2d at 1538; Waldrop, 871 F.2d at 1036 (“The law was

clear in 1984 that prison officials have an obligation to take action or to inform

competent authorities once the officials have knowledge of a prisoner’s need for

medical or psychiatric care.” (citing Estelle v. Gamble, 429 U.S. 97, 104-05

(1976)).

      Because a reasonable jury could find that Deputy Ellis took no action

whatsoever in response to Melton’s complaint of a “pop[ping]” sensation and pain

in his left arm, Deputy Ellis is not entitled to qualified immunity. Deputy Ellis’s

lack of action following his conversation with the x-ray technician also supports

the denial of qualified immunity. For these reasons, we reverse the District Court’s

grant of summary judgment in favor of Deputy Ellis and remand for further

proceedings.

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                   (f)    Deputy Abston

      Melton’s claim of deliberate indifference against Deputy Abston presents a

closer question, but, ultimately we find that a reasonable jury could find from the

evidence that she was deliberately indifferent to Melton’s serious medical needs.

We further find that she is not entitled to qualified immunity at this stage, either.

We therefore reverse entry of summary judgment in favor of Deputy Abston.

      First, it is undisputed that Deputy Abston knew about Melton’s injury. The

record reveals that one of the officers who transported Melton for x-rays of his arm

told Deputy Abston upon their return to the jail that Melton had a bad break in his

arm. Second, the record reflects that Deputy Abston informed Melton’s family

members and Melton’s attorney in June 2010 that Melton would be financially

responsible for his own medical treatment. Third, when Melton attempted to

inform an emergency room physician at Pickens County Medical Center in

September 2010 that his arm was broken and needed treatment, Deputy Booth

interrupted the examination and told the doctor that Deputy Abston had instructed

him to advise the doctor not to “worry about [Melton’s] arm.” (ECF No. 34 at 44;

ECF No. 93-1 at 197; ECF No. 108 at 42-43.)

      While Deputy Abston was certainly aware of Melton’s serious medical

needs, whether any deliberate indifference on her part caused Melton to suffer a

constitutional injury is a closer call. We recognize that, by the time Deputy Abston


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became aware of Melton’s condition, Sheriff Abston, Nurse Ray and Dr. Sullivan

each knew that Melton needed treatment for his injured left arm. But, we find

Deputy Abston’s insistence that Melton would have to pay in advance to be treated

for the injury and her September 2010 instruction to Deputy Booth that medical

personnel should ignore Melton’s arm to be sufficient for the claim of deliberate

indifference to proceed. These actions arguably resulted in further delay in

treatment of Melton’s arm, causing him additional pain and suffering. And it is

clearly established that a delay in treatment which results in additional pain and

suffering constitutes deliberate indifference.

      For these reasons, we reverse the District Court’s grant of summary

judgment in favor of Deputy Abston.

                    (g)   Chief Deputy Carr

      We also reverse the entry of summary judgment in favor of Chief Deputy

Carr. As with the other Defendants, Chief Deputy Carr’s knowledge of Melton’s

serious medical condition appears to be undisputed. The record reflects that Melton

submitted inmate complaints to Chief Deputy Carr contemporaneously with

complaints submitted to Nurse Ray and Sheriff Abston. (ECF No. 108 at 37.) In

the medical complaints, Melton complained of severe pain in his arm. (ECF No.

93-1 at 5-88.) Melton also spoke with Chief Deputy Carr in person on April 26,




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2010, and demonstrated to him how his arm moved at the break in his bone. (ECF

No. 34 at 40; ECF No. 108 at 37-39.)

       Despite this knowledge, Chief Deputy Carr did not pursue medical treatment

for Melton. (ECF No. 108 at 38-39.) While at the time of Melton’s complaints and

the April 26, 2010 demonstration Sheriff Abston, Nurse Ray, and Dr. Sullivan

were already aware of Melton’s need for medical treatment, a reasonable jury

could find that Chief Deputy Carr, as a high-level prison official, could have

followed up with them about Melton’s ongoing condition. Chief Deputy Carr’s

complete lack of action arguably caused Melton’s delay in treatment and additional

pain and suffering, in which case he would not be protected by qualified immunity.

We therefore reverse the grant of summary judgment and leave it to a jury to

decide if Chief Deputy Carr’s actions contributed to Melton’s constitutional injury

Mann, 588 F.3d at 1306-07; Goebert, 510 F.3d at 1327.

                     (h)      Deputy Booth
       Finally, we affirm the District Court’s grant of summary judgment in favor

of Deputy Booth. While the facts establish that Deputy Booth had subjective

knowledge of Melton’s injury, Deputy Booth did not become aware of the injury

until September 10, 2010. By this time, Melton had already been denied treatment

and left to suffer in pain.




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      The record establishes Deputy Booth’s knowledge based on Deputy Booth’s

accompaniment of Melton when he saw physicians on two occasions. First, Deputy

Booth transported Melton to the hospital on September 10, 2010, when Melton

complained of chest pains. (ECF No. 93-1 at 124.) Deputy Booth allegedly

interrupted Melton when he attempted to inform an emergency room physician that

his arm was broken. But, as we already mentioned, Deputy Abston instructed him

to tell the physician “don’t worry about the arm.” (ECF No. 66 at 10; ECF No. 34

at 8.) Second, Deputy Booth accompanied Melton when he visited a cardiologist

on September 27, 2010. At that time, the treating nurse informed Melton that she

could not perform a necessary treadmill stress test because Melton’s arm was

wrapped in a towel that he used as a sling. (ECF No. 34 at 44; ECF No. 108 at 43;

ECF No. 122-1 at 5-6.) These events gave Deputy Booth subjective knowledge of

Melton’s serious medical need.

      Nevertheless, insufficient evidence against Deputy Booth exists to satisfy

the causation prong needed to prove a claim of deliberate indifference. For this

reason, Deputy Carr is entitled to summary judgment with respect to Melton’s

claim of deliberate indifference. (ECF No. 34 at 38-40, 44; ECF No. 108 at 36-39,

41-43); Mann, 588 F.3d at 1306-08; Goebert, 510 F.3d at 1327.

            iii.   Sovereign Immunity




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       We now address whether sovereign immunity bars Melton’s claims against

Sheriff Abston, the Defendant deputies, and Nurse Ray. 5 Although these

Defendants did not raise the issue of sovereign immunity on appeal, they did raise

the issue at the district-court level. We determine this legal issue de novo in the

first instance because the record is fully developed. See Macklin, 24 F.3d at 1312-

13.    The Eleventh Amendment provides sovereign immunity to the states to

protect them from suit in federal court without their consent. Manders v. Lee, 338

F.3d 1304, 1308 (11th Cir. 2003). Sovereign immunity has also been extended to

state officials, acting in their official capacity, where an agency or individual may

“be treated as an arm of the State partaking of the Eleventh Amendment

Immunity.” Mt. Healthy City Sch. Dist. Bd. Of Educ. v. Doyle, 429 U.S. 274, 280

(1977).

       A state official may not be sued in his official capacity unless the state has

waived its Eleventh Amendment immunity or Congress has abrogated the state’s

immunity. See Lancaster v. Monroe Cty., 116 F.3d 1419, 1429 (1997) abrogated

on other grounds by Lake v. Skelton, __ F.3d __, 2016 WL 6518522 (11th Cir.

November 3, 2016). Congress has not abrogated Alabama’s immunity and

Alabama has not waived its Eleventh Amendment immunity. See Carr v. City of


       5
         Drs. Fowler and Sullivan did not raise the defense of sovereign immunity in the district
court and have, therefore, waived their right to assert this immunity. (ECF No. 93); Walker v.
Jones, 10 F.3d 1569, 1572 (11th Cir. 1994).
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Florence, 916 F.2d 1521, 1525 (11th Cir. 1990) (citations omitted). Consequently,

Alabama state officials are immune from claims brought against them in their

official capacities. Lancaster, 116 F.3d at 1429.

      To determine whether a state official is protected by Eleventh Amendment

immunity, we consider the laws of the state in question. Id. (citing Carr, 916 F.2d

at 1525). The Alabama Constitution provides that a sheriff is a member of the

executive branch. Art. V, § 112, Ala. Const. 1901. Thus, as an executive officer, “a

sheriff is immune from being sued in the execution of the duties of his office under

Art. I, § 14, Alabama Const. 1901.” Ex Parte Haralson, 853 So. 2d 928, 932 (Ala.

2003).

      It is well established in this Circuit that Alabama sheriffs and their deputies

are state officials and are absolutely immune from suit as an officer of the state

under the Eleventh Amendment. See Turquitt v. Jefferson Cty., 137 F.3d 1285,

1288-89 (11th Cir. 1998); Lancaster, 116 F.3d at 1429; see also LaFrere v.

Quezada, 582 F.3d 1260, 1263 (11th Cir. 2009) (noting that Eleventh Amendment

protection extends to deputies because they are the alter ego of the sheriff).

Consequently, we conclude that Sheriff Abston and the deputy defendants are

immune from suit under the Eleventh Amendment for Melton’s claims brought

against them in their official capacity as state officials.




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       We decline, however, to extend sovereign immunity to Nurse Ray with

respect to the claims brought against her in her official capacity. Unlike the other

defendants, Nurse Ray is not a sheriff or a deputy. Rather, Nurse Ray is a nurse at

Pickens County Jail and was responsible for carrying out “limited objectives and

defined duties,” including “verifying the various medications prescribed for

inmates . . . checking does, reviewing inmate medical complaints, responding to

minor medical calls, and referring more serious medical calls to a physician.” (ECF

No. 94-7.) Unlike Sheriff Abston and the defendant deputies, Nurse Ray’s actions

taken in the scope of her employment do not inherently constitute actions against

the state.

       The Alabama Supreme Court has previously declined to extend sovereign

immunity to a jailor, noting that a jailor is not a proper extension of the Sheriff’s

position because a jailor cannot undertake every act that the sheriff could perform.

See Ex Parte Shelley, 53 So. 3d 887, 895 (Ala. 2009). The Alabama Supreme

Court has likewise noted that none of its decisions have extended the state

immunity afforded a sheriff to any sheriff’s employees other than a deputy sheriff.

Id. at 897. We therefore find that Nurse Ray, as an employee of a county jail, does

not qualify as an extension of the sheriff for purposes of sovereign immunity.

       Finally, we note that Alabama officials who have sovereign immunity when

sued in their official capacities are not entitled to sovereign immunity when they

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are sued in their individual capacities under Section 1983. Howlett By & Through

Howlett v. Rose, 496 U.S. 356, 376, 110 S. Ct. 2430, 2443 (1990). As the Supreme

Court has held, “state officials, sued in their individual capacities, are ‘persons’

within the meaning of § 1983. The Eleventh Amendment does not bar such suits,

nor are state officers absolutely immune from personal liability under § 1983

solely by virtue of the ‘official’ nature of their acts.” Hafer v. Melo, 502 U.S. 21,

31, 112 S. Ct. 358, 365 (1991). Based on this clear precedent, we conclude that

Sheriff Abston, the deputy defendants, and Nurse Ray are not entitled to sovereign

immunity with respect to the claims brought against them in their individual

capacities.

V.    CONCLUSION

      We affirm entry of summary judgment in favor of Dr. Fowler and Deputy

Booth and reverse entry of summary judgment in favor of Nurse Ray, Dr. Sullivan,

Sheriff Abston, Deputy Abston, Chief Deputy Carr, and Deputy Ellis. But, we

conclude that Sheriff Abston and the deputy defendants are immune from suit in

their official capacities as Alabama state officials.

      AFFIRMED IN PART, REVERSED IN PART, VACATED IN PART

AND REMANDED.




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