                                                          [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                        FILED
                      FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                       ________________________  ELEVENTH CIRCUIT
                                                     JAN 23, 2007
                                                  THOMAS K. KAHN
                             No. 06-15029
                                                       CLERK
                          Non-Argument Calendar
                        ________________________

                    D.C. Docket No. 03-00216-CV-CAR-5

JAMES SPENCER WHITEHEAD, JR.,

                                                      Plaintiff-Appellee,

                                   versus

DR. ODERINDE, in his individual capacity,
KALU KALU, Doctor, in his individual capacity,

                                                      Defendants-Appellants.

                        ________________________

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

                             (January 23, 2007)

Before WILSON, PRYOR and COX, Circuit Judges.

PER CURIAM:
      Prisoner James Spencer Whitehead, Jr., sued Tydus Meadows, warden of the

Men’s State Prison in Hardwick, Georgia (MSP); Clayton Tatum, a guard at MSP; Dr.

Bade Oderinde; and Dr. Kalu Kalu pursuant to 42 U.S.C. § 1983 for violation of his

Fourteenth and Eighth Amendment rights. (R.1-16.) The district court granted

summary judgment to Tatum and Meadows but denied Oderinde and Kalu

(collectively, “the Doctors”) summary judgment as to the Eighth Amendment claims

against them. The Doctors bring this interlocutory appeal arguing that the district

court erred in denying them qualified immunity at the summary judgment stage.

      After a thorough review of the parties’ responses to this court’s jurisdictional

question and the record on appeal, we find that we have jurisdiction to hear this

interlocutory appeal. Considering the merits of the appeal, “[w]e accept as true all

facts the district court assumed when it denied summary judgment on qualified

immunity grounds.” See Badia v. City of Miami, 133 F.3d 1443, 1445 (11th Cir.

1998) (citations omitted). The district court adopted the recommendation of the

magistrate judge, saying, “[T]he Court agrees with the United States Magistrate Judge

that a jury could find that the Defendant doctors failed to even try to diagnose

Plaintiff’s condition over a period of more than two years, relying instead on

diagnoses that the treating doctors should have realized to be obviously incorrect. A

jury then could find that taking such an avenue represents ‘easier but less efficacious

                                          2
treatment’ in violation of the Eighth Amendment.” (R.2-73 at1-2.) As stated by the

magistrate judge, “[i]t is clearly established that a delay in treating an inmate’s pain

can render defendants liable as if they had inflicted the pain themselves, thereby

becoming an Eighth Amendment violation.” (R.2-71 at 5.) (citing Brown v. Hughes,

894 F.2d 1533, 1538 (11th Cir. 1990)); see also McElligott v. Foley, 182 F.3d 1248

(11th Cir. 1999). Therefore, qualified immunity does not entitle the Doctors to

judgment at this stage of the proceedings.

      AFFIRMED.




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