                                                         [DO NOT PUBLISH]

             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                      ________________________           FILED
                                                U.S. COURT OF APPEALS
                             No. 12-11124         ELEVENTH CIRCUIT
                                                      JULY 9, 2012
                         Non-Argument Calendar
                                                       JOHN LEY
                       ________________________
                                                        CLERK

                   D.C. Docket No. 4:09-cv-00143-RLV

BARRY BENSON,

                                                     Plaintiff-Appellee,

                                  versus

GORDON COUNTY, GEORGIA, et al.,

                                                     Defendants,

FELICIA RUTLEDGE, in her official and
individual capacity,

                                                     Defendant-Appellant.
                       ________________________

                Appeal from the United States District Court
                   for the Northern District of Georgia
                      ________________________
                              (July 9, 2012)


Before BARKETT, PRYOR, and COX, Circuit Judges.

PER CURIAM:
       Barry Benson alleges that he received inadequate medical treatment while a

pretrial detainee at the Gordon County, Georgia jail. He filed suit asserting a claim

under 42 U.S.C. § 1983 for deliberate indifference to his medical needs and a Georgia

state law claim.1 Benson named Gordon County, the County’s current and former

Sheriff, and the nurse and physician who were responsible for his care as defendants.

The former Sheriff was sued in his individual capacity, while the nurse and doctor

both were sued in their official and individual capacities. Only the jail nurse, Felicia

Rutledge, is a party to this appeal.

       After answering Benson’s complaint, Rutledge filed a motion for summary

judgment, which maintained she had qualified immunity on the § 1983 claim and

official immunity under Georgia law on the state law claim. The district court denied

the motion for summary judgment on the § 1983 and state law claims. Rutledge

appeals this order. She raises two issues: (1) whether the court erred by denying

Rutledge qualified immunity on the § 1983 claim; and (2) whether the court erred by

denying official immunity as to the state law claim.

       We first consider whether the district court erred by denying Rutledge’s claim

of qualified immunity on the § 1983 claim. We review de novo the district court’s



       1
          The complaint also asserted claims under the Rehabilitation Act and the Americans with
Disabilities Act, but these claims are not relevant to this appeal.

                                               2
resolution of a summary judgment motion based on qualified immunity. McCullough

v. Antolini, 559 F.3d 1201, 1202 (11th Cir. 2009) (citing Lee v. Ferraro, 284 F.3d

1188, 1190 (11th Cir. 2002)). “[W]e resolve all issues of material fact in favor of the

plaintiff.” Id.

      To claim qualified immunity, Rutledge must demonstrate that she was engaged

in a discretionary function. Mercado v. City of Orlando, 407 F.3d 1152, 1156 (11th

Cir. 2005) (citing Holloman v. Harland, 370 F.3d 1252, 1264 (11th Cir. 2004)).

Then, Benson must establish qualified immunity is not appropriate because the facts

when viewed in the light most favorable to him show that Rutledge violated a

constitutional right. Id. (citing Saucier v. Katz, 533 U.S. 194, 200, 121 S. Ct. 2151,

2155 (2001)). “[S]econd, the plaintiff[] must also show that the right involved was

‘clearly established’ at the time of the putative misconduct.” Terrell v. Smith, 668

F.3d 1244, 1250 (11th Cir. 2012) (citing Pearson v. Callahan, 555 U.S. 223, 232, 129

S. Ct. 808, 816 (2009)). Here, Benson does not dispute Rutledge was acting within

her discretionary authority. Therefore, the case turns on whether Rutledge violated

a constitutional right and whether that right was clearly established.

      The Fourteenth Amendment secures the rights of pretrial detainees. See Mann

v. Taser Int’l, Inc., 588 F.3d 1291, 1306 (11th Cir. 2009) (citing City of Revere v.

Mass. Gen. Hosp., 463 U.S. 239, 244, 103 S. Ct. 2979, 2983 (1983)). Under our

                                          3
precedent, we evaluate a pretrial detainee’s claim of deliberate indifference to his

medical needs as if it were brought under the Eighth Amendment. Id. (citing Hamm

v. DeKalb Cnty., 774 F.2d 1567, 1574 (11th Cir. 1985)). “To prevail on a deliberate

indifference to serious medical need claim, Plaintiffs must show: (1) a serious

medical need; (2) the defendants’ deliberate indifference to that need; and (3)

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

Goebert v. Lee Cnty., 510 F.3d 1312, 1326 (11th Cir. 2007)).

      Whether the plaintiff had a serious medical need is an objective inquiry.

Taylor v. Adams, 221 F.3d 1254, 1258 (11th Cir. 2000). “In our 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.’” Farrow v. West, 320 F.3d 1235, 1243 (11th Cir.

2003) (quoting Hill v. Dekalb Reg’l Youth Det. Ctr., 40 F.3d 1176, 1187 (11th Cir.

1994)).

      Benson alleges he suffered from a variety of medical needs while he was

incarcerated. He says that Rutledge was deliberately indifferent to his urinary and

fecal incontinence, his immobility, his development of a decubitus ulcer, his weight

loss, a painful dental condition, and his back pain. We agree with Benson that when




                                          4
the facts are viewed in the light most favorable to him he suffered from an objectively

serious medical condition.

      There is no dispute that when Benson was booked into the jail on July 23,

2008, he complained of back pain. Then, on July 25th when he saw a physician at the

jail clinic, the physician recognized that Benson was suffering from a preexisting T-

11 vertebral compression fracture. Rutledge’s brief acknowledges that “[v]ertebral

compression fractures are a common and very painful injury.” (Appellant’s Br. at 4.)

Rutledge also agrees that the doctor prescribed Ibuprofen and Lortab for Benson’s

back pain. Thus, even setting aside the other medical conditions Benson asserts were

serious, his vertebral compression fracture and the resulting back pain demonstrate

that he was suffering from an objectively serious medical condition.

      Whether Rutledge was deliberately indifferent to Benson’s medical needs is a

subjective inquiry. To establish deliberate indifference the “[p]laintiff must prove

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

risk; (3) by conduct that is more than [gross] negligence.” Goebert, 510 F.3d at 1327

(alteration in original) (quoting Bozeman v. Orum, 422 F.3d 1265, 1272 (11th Cir.

2005)).

      Rutledge’s brief admits that patients suffering from vertebral compression

fractures often have difficulty walking, sitting, or lying down. (Appellant’s Br. at 4.)

                                           5
Furthermore, viewing the facts in the light most favorable to the plaintiff, it is evident

that Benson had trouble moving around during his time at the jail. Rutledge was

aware that Benson could not stand up straight and that he struggled to get out of his

bed. At one point, she witnessed that Benson smelled of urine and had dried fecal

matter on his clothing. And, Rutledge admitted in her deposition that immobility and

incontinence could lead to bed sores. Thus, a jury could find that Benson suffered

from severe back pain and that the resulting immobility put Benson at risk of greater

harm. A jury could also conclude that Rutledge was subjectively aware of Benson’s

pain and the attendant risks.

      The harder question is whether Rutledge disregarded Benson’s risk of serious

harm. Benson argues that Rutledge withheld his pain medications on several

occasions because Benson was unable to leave his bunk and retrieve the medication

at the cell door. He also maintains that he did not receive his first prescribed dose of

the pain medication Lortab until seven days after it was ordered. He believes that

providing only Ibuprofen to control his back pain amounts to providing no treatment

at all. In sum, he contends that he received pain medication only twelve days during

his thirty-three day incarceration. Rutledge disputes all of this. She says that Benson

received his Lortab as prescribed. She also counters by arguing that she provided

Benson another inmate’s left over prescription pain medication. But at this stage of

                                            6
the proceedings, we must evaluate the facts in the light most favorable to Benson.

Viewed in this manner, Rutledge either deliberately withheld Benson’s pain

medication, or provided grossly inadequate care by failing to give Benson pain

medication for days at a time or by merely coming to his cell and offering medication

that Benson could not retrieve. Thus, when viewing the facts in the light most

favorable to Benson, Rutledge violated Benson’s constitutional rights by being

deliberately indifferent to his serious medical needs.

      There is little question that clearly established law provided Rutledge fair

warning that this conduct violated the Constitution. A case with materially identical

facts is not necessary for the law to be clearly established, “but the preexisting law

must make it obvious that the defendant’s acts violated the plaintiff’s rights in the

specific set of circumstances at issue.” Youmans v. Gagnon, 626 F.3d 557, 563 (11th

Cir. 2010) (citation omitted). “Our cases have consistently held that knowledge of

the need for medical care and an intentional refusal to provide that care constitutes

deliberate indifference.” Adams v. Poag, 61 F.3d 1537, 1543-44 (11th Cir. 1995)

(citing Carswell v. Bay Cnty., 854 F.2d 454, 457 (11th Cir. 1988); Ancata v. Prison

Health Servs., Inc., 769 F.2d 700, 704 (11th Cir. 1985)). “A core principle of Eighth

Amendment jurisprudence in the area of medical care is that prison officials with

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

                                          7
providing grossly inadequate care, cause a prisoner to needlessly suffer the pain

resulting from his or her illness.” McElligott v. Foley, 182 F.3d 1248, 1257 (11th Cir.

1999). The facts, when viewed in the light most favorable to Benson, demonstrate

that Rutledge’s conduct was deliberately indifferent to his serious medical needs in

a manner proscribed by our precedent. This is not a case where the plaintiff has

challenged a delay in treatment of only a few hours. See Youmans, 626 F.3d at 564-

65 (discussing case law distinguishing between short delays and lengthy delays in

medical treatment). Instead, he has put forth evidence that he went without pain

medication for days. Rutledge knew Benson was in pain and that a physician had

prescribed medication for that pain. Yet by failing to provide his medication, she

allowed Benson to “needlessly suffer” from his back pain. Therefore, Rutledge is not

entitled to summary judgment on the § 1983 claim on the ground of qualified

immunity.2

       Rutledge also challenges the district court’s denial of summary judgment on

the ground of official immunity from Benson’s state law claim. Like our review of

the denial of qualified immunity, “[w]e review de novo a district court’s summary


       2
           Given that “the evidence at the summary judgment stage, viewed in the light most
favorable to the plaintiff, shows there are facts that are inconsistent with qualified immunity being
granted, the case and the qualified immunity issue along with it [should] proceed to trial.” Johnson
v. Breeden, 280 F.3d 1308, 1317 (11th Cir. 2002).


                                                 8
judgment denial of official immunity.” Hoyt v. Cooks, 672 F.3d 972, 981 (11th Cir.

2012) (citations omitted). Under Georgia law, a public officer or employee may be

personally liable only for ministerial acts negligently performed or ministerial or

discretionary acts performed with malice or intent to injure. Mann, 588 F.3d at 1309

(quoting Gilbert v. Richardson, 452 S.E.2d 476, 483 (Ga. 1994)).

       Benson’s argument focuses solely on Rutledge’s failure to perform her

ministerial duties. We agree with the district court that “numerous questions of fact

remain regarding defendant Rutledge’s alleged violations of her ministerial duties.”

(Dkt. 214 at 40.) But, viewed in the light most favorable to Benson, there is no

question that Rutledge did not perform some of her ministerial responsibilities as the

jail nurse. Rutledge’s only argument to support her demand for official immunity is

that Benson cannot establish a casual connection between Rutledge’s failure to

perform her ministerial duties and Benson’s alleged injuries. But, this argument goes

to the merits of Benson’s state law tort claim, not to the question of whether Rutledge

is due official immunity. Thus, the district court did not err by denying Rutledge’s

motion for summary judgment on the state law claim based on official immunity.3

       AFFIRMED.


       3
         Like the qualified immunity issue, the official immunity question should proceed to trial
because the evidence at the summary judgment stage, when viewed in the light most favorable to
Benson, is inconsistent with official immunity being granted.

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