          Case: 15-11025   Date Filed: 03/24/2016   Page: 1 of 9


                                                       [DO NOT PUBLISH]



           IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT
                     ________________________

                           No. 15-11025
                       Non-Argument Calendar
                     ________________________

              D.C. Docket No. 2:12-cv-00101-WHA-TFM



CALVIN LEON MASSEY,

                                                           Plaintiff-Appellant,

                                 versus

MONTGOMERY COUNTY DETENTION FACILITY,

                                                                   Defendant,

QUALITY CORRECTIONAL HEALTH CARE,
NURSE BARFIELD,
DR. GURLEY,

                                                       Defendants-Appellees.

    ________________________________________________________

              D.C Docket No. 2:12-cv-00526-WHA-TMH

CALVIN LEON MASSEY,

                                                           Plaintiff-Appellant,

                                 versus
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TATUM MCARTHUR,
Doctor, in his individual and official capacities,
SHARON THOMPSON,
Nurse, in her individual and official capacities,

                                                                Defendants-Appellees.

                            ________________________

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

                                  (March 24, 2016)

Before ED CARNES, Chief Judge, MARTIN and ANDERSON, Circuit Judges.

PER CURIAM:

      Calvin Massey, an Alabama prisoner proceeding pro se, charges that

Qualified Correctional Health Care (QCHC) and some of its employees were

deliberately indifferent to his medical needs in violation of his civil rights. To

succeed on such a claim, he must do more than show that the defendants ought to

have given him better medical care. He must show that the defendants knew of an

excessive risk to his safety and knowingly disregarded it. Because Massey has, at

most, raised the possibility that the defendants should have given him better

medical care, he has failed to establish that any of the defendants in this case were

deliberately indifferent to his medical needs in violation of his constitutional rights.

      Massey has been incarcerated at the Montgomery County Detention Center

(the Center) since 2010. Alabama pays QCHC to provide medical care to the

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inmates at the Center. On October 2, 2011, Massey signed up for a sick call

because he was not feeling well and had a cough, congestion, and headaches.

Nurse Kimberly Barefield examined him on October 4 and prescribed him four

days’ worth of Tylenol and cough medicine, consistent with nursing protocol for

those symptoms. On October 7, Massey registered for another sick call because he

did not feel the medications were working. The next day, he saw nurse Sharon

Thompson and told her he still had all the symptoms he had complained of to

Barefield. She told him that she could not prescribe anything more than what

Barefield had and explained that he would have to be seen by a doctor. Thompson

made a note on Massey’s sick call slip that he wanted to see a doctor and Massey

signed the slip, affirming that it reflected his wishes.

      He saw Dr. Jerry Gurley on October 10. Gurley prescribed antibiotics for

Massey and ordered a chest x-ray to be taken the next day. On October 12, Dr.

Tatum McArthur interpreted the x-ray and passed the results along to Gurley, who

concluded that Massey had pneumonia and a partially collapsed lung. On October

13, as Massey’s condition worsened, he was admitted to the Center’s infirmary.

When things got still worse that day, he was transported to Jackson Hospital,

where staff put him on an IV after assessing him as having pneumonia with a high

risk of respiratory failure. After Massey’s condition stabilized, he was returned to

the Center on October 25. Two days later, Gurley administered a tuberculosis test,


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which came back positive on October 30. After seeing the results, he moved

Massey to a negative pressure cell in the infirmary and immediately began

administering medication for the tuberculosis. QCHC notified the Alabama

Department of Public Health, which initiated a tuberculosis protocol and

distributed medication to staff members. According to Gurley’s undisputed

testimony, there had been no known cases of tuberculosis at the Center in three

years.

         In 2012, Massey filed two lawsuits in federal district court alleging

deprivations of his civil rights in violation of 42 U.S.C. § 1983. The complaint in

the first lawsuit alleged that Gurley’s and Barefield’s failures to timely and

effectively diagnose and treat Massey’s ailments constituted deliberate indifference

to his serious medical needs in violation of his rights under the Eighth and

Fourteenth Amendments. QCHC was liable for the same thing, according to the

complaint, because it employed Barefield and Gurley. The complaint also alleged

that QCHC, Gurley, and Barefield were all responsible for failing to remedy the

poor health conditions at the Center that had led to Massey’s contracting

tuberculosis. By permitting those conditions to persist, Massey charged, QCHC,

Gurley, and Barefield had violated his Eighth and Fourteenth Amendment rights.

         QCHC, Gurley, and Barefield filed an answer and a special report supported

by sworn statements and other evidence. The district court construed the special


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report as a motion for summary judgment and allowed Massey to respond with

affidavits and other evidence of his own. While that was going on, Massey sought

permission to join McArthur and Thompson as parties to his complaint. The

district court denied that request, so Massey filed a second complaint alleging that

McArthur and Thompson had also failed to respond appropriately to Massey’s

ailments, and that their failure to do so also amounted to deliberate indifference.

The district court ordered McArthur and Thompson to file a written report in

response to Massey’s complaint. Before they did so, however, the district court

consolidated Massey’s two cases and referred them to a magistrate judge, who

issued a report recommending that the district court dismiss the complaint against

McArthur and Thompson, grant summary judgment to Barefield, Gurley, and

QCHC, and dismiss Massey’s case with prejudice. Massey objected to the report,

but the district court ultimately adopted it in full. Massey appeals the judgment

resulting from that decision.

      Massey’s claim that QCHC is responsible for the allegedly substandard

medical treatment he received after he got sick fails because he has not alleged that

QCHC had a policy or custom that contributed to the alleged deficiencies in the

treatment. In Monell v. Department of Social Services, 436 U.S. 658, 691, 98 S.

Ct. 2018, 2036 (1978), the Supreme Court held that a state actor “cannot be liable

under § 1983 on a respondeat superior theory.” Instead, a state actor may be held


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liable under § 1983 only “when execution of a government’s policy or custom” is

responsible for the alleged deprivation of civil rights. Id. at 694, 98 S. Ct. at 2037–

38. Monell’s “policy or custom” requirement covers QCHC because, as we have

held, the requirement “applies in suits against private entities performing functions

traditionally within the exclusive prerogative of the state, such as the provision of

medical care to inmates.” Buckner v. Toro, 116 F.3d 450, 453 (11th Cir. 1997).

Thus, to prevail on his claim against QCHC, Massey must show that QCHC had a

policy or custom that caused the deliberate indifference of which he complains.

But he has not alleged that such a policy or custom existed. At most, he argues

that QCHC is liable because it employed Barefield, Thompson, McArthur, and

Gurley. That is the type of respondeat superior theory of liability precluded by

Monell.

      There is also no basis for Massey’s claim that Gurley’s and Barefield’s

diagnosis and treatment of his ailments rose to the level of deliberate indifference.

There is a difference between “mere incidents of negligence or malpractice” and

deliberate indifference. Harris v. Thigpen, 941 F.2d 1495, 1505 (11th Cir. 1991).

The former, “while no cause for commendation, cannot . . . be condemned as the

infliction of punishment” in violation of the Eighth Amendment. Farmer v.

Brennan, 511 U.S. 825, 838, 114 S. Ct. 1970, 1979 (1994). The latter, by contrast,

is a violation of the Eighth Amendment, but requires the plaintiff to prove that the


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defendant knew of a serious risk to the plaintiff and affirmatively disregarded it.

See McElligott v. Foley, 182 F.3d 1248, 1255 (11th Cir. 1999). There is no

genuine dispute that Gurley and Barefield actively attempted to diagnose and treat

Massey. The treatment they offered may not have been as effective or

instantaneous as Massey would have liked, but the bare fact that treatment was

ineffectual or not immediately administered does not mean that those responsible

for it were deliberately indifferent. Because the record does not establish a

genuine dispute that Gurley and Barefield made a good-faith effort to treat

Massey’s ailments, summary judgment was appropriate.

      Summary judgment was also proper on Massey’s claim that QCHC, Gurley,

and Barefield were responsible for the allegedly unconstitutional conditions of

confinement at the Center. To support a claim that a person or company is

responsible for unconstitutional conditions of confinement, a plaintiff must show,

among other things, that the person or company not only knew — actually or

constructively — of the dangerous conditions, but knowingly refused to do what

was required to ameliorate them. Campbell v. Sikes, 169 F.3d 1353, 1364 (11th

Cir. 1999). That means Massey must show that QCHC, Gurley, and Barefield:

(1) knew or should have known that conditions at the Center were such that

inmates were likely to get tuberculosis; and (2) knowingly refrained from making a

good faith effort to solve the problem. There is no evidence in the record that


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could support either of those required showings, and what evidence there is on the

subject undermines Massey’s claim. For example, Gurley submitted an affidavit

giving several reasons why no one at the Center knew or had reason to know of the

risk of a tuberculosis outbreak in the inmate population. In the same affidavit, he

described the swift and thorough response brought about by Massey’s positive test

result. The district court properly granted summary judgment to QCHC, Gurley,

and Barefield on Massey’s conditions of confinement claim.

      That leaves Massey’s claims that McArthur and Thompson violated his civil

rights by failing to treat his condition with appropriate urgency, claims which the

district court dismissed sua sponte. Those claims, too, amount to nothing more

than a difference in opinion over the appropriate course of treatment. Massey

alleges not that McArthur and Thompson failed to treat him, but that they failed to

give him treatment that corresponded to the severity of his ailments. Disputes

about the proper course of treatment or the timing of treatment do not give rise to

viable § 1983 claims. See Estelle v. Gamble, 429 U.S. 97, 107, 97 S. Ct. 285, 293

(1976). “It is obduracy and wantonness, not inadvertence or error in good faith,

that characterizes the conduct prohibited by the Cruel and Unusual Punishments

Clause.” Whitley v. Albers, 475 U.S. 312, 319, 106 S. Ct. 1078, 1084 (1986).

Massey’s claims against McArthur and Thompson are all about inadvertence and




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error, not obduracy, wantonness, or bad faith. They were therefore properly

dismissed for failing to state a valid claim under § 1983.

       AFFIRMED.




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