           Case: 15-14842   Date Filed: 09/25/2017   Page: 1 of 19


                                                                       [PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                             No. 15-14842
                       ________________________

                D.C. Docket No. 6:14-cv-00037-GAP-TBS


NAM DANG, by and through his Power of Attorney, VINA DANG

                                              Plaintiff - Appellant,

versus

SHERIFF, SEMINOLE COUNTY FLORIDA,
OLUGBENGA OGUNSANWO, M.D.,
SANDRA WILT, RN,
BRENDA PRESTON-MAYLE, RN,
ALECIA SCOTT, LPN,
in their individual capacities, et al.,


                                              Defendants - Appellees.


                       ________________________

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

                            (September 25, 2017)
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Before ROSENBAUM, BLACK and SENTELLE, * Circuit Judges.1

SENTELLE, Circuit Judge:

      Nam Dang’s health deteriorated while he was a pretrial detainee in the John E.

Polk Correctional Facility (the “Jail”). Ultimately, Dang was diagnosed with

meningitis, which caused him to suffer multiple strokes resulting in permanent

injuries. Dang alleges § 1983 liability against several health care providers for

providing inadequate medical care while Dang was in Jail and Seminole County

Sheriff Donald Eslinger in his official capacity as Sheriff. The district court

granted summary judgment for all the defendants. Dang brought the present

appeal. We affirm the judgment.

                                      I.     BACKGROUND

      A. Facts

      On December 22, 2011, officers of the City County Investigative Bureau

(“CCIB”) stopped Dang’s car. Dang alleges the officers pulled him from his

vehicle, slammed him to the ground, and put a knee on his neck before ultimately

releasing him. After this incident, Dang started experiencing headaches and neck

pain, and started taking large doses of Aleve for relief. When the pain continued,




         *
       Honorable David Bryan Sentelle, United States Circuit Judge for the District of
Columbia, sitting by designation.
1
    We withdraw our opinion issued on May 9, 2017, and replace it with this one.
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Dang went to an emergency room on January 12, 2012. He declined the

recommended testing to rule out meningitis.

   On January 26, law enforcement officers arrested Dang. Dang’s mother

advised the arresting officers that he was experiencing neck pain and headaches.

The officers did not allow Dang’s mother to give him any medication, but

permitted her to place a medicated patch on his neck before he was taken to Jail.

After booking, Dang was asked several questions about his health during his intake

screening. Dang’s vitals were normal, and he did not inform the intake officer that

he was experiencing neck pain or headaches.

   On January 29, Dang was seen by Nurse Sandra Wilt, LPN, pursuant to a

“nurse sick call.” Dang advised Wilt that he was experiencing “[m]oderate to

severe head and neck pains,” possibly a “pinched nerve,” and a “[s]tiff neck.”

After checking Dang’s eyes and the range of motion of his neck, Wilt observed

that he had minimal pain. Wilt ordered Motrin and a muscle rub and put in an

order for Dang to be seen by a doctor to get a prescription for Robaxin, a muscle

relaxant.

   Pursuant to Wilt’s order, Dang saw Dr. Ogunsanwo, MD, on February 1. Dang

stated he was experiencing headaches, neck pain, and neck stiffness. Dang told

Ogunsanwo about the incident with the CCIB when he was allegedly “yanked out”

of the car and “slammed on the ground.” After performing a physical exam on


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Dang, Ogunsanwo noted that Dang had full range of motion in his cervical spine

with mild pain elicited, normal gait, and no neurological deficit. His temperature

was 98.9. Ogunsanwo continued Dang on the Motrin and muscle rub ordered by

Wilt and prescribed Robaxin.

   On February 7, Brenda Preston-Mayle, RN, evaluated Dang and completed a

History and Physical Health Evaluation. Dang informed Preston-Mayle about the

incident with the CCIB and that he had been experiencing head and neck pain. He

also described vision and hearing problems. Preston-Mayle took Dang’s vitals and

noted a temperature of 98.9. His weight was recorded as 132, eight pounds less

than his intake weight. Preston-Mayle offered to have Dang see a dental, mental,

or medical health doctor, but Dang declined.

   On February 9, Alecia Scott, LPN, saw Dang. Dang stated he had a headache

and that “no one was doing anything for him.” Scott assessed Dang and checked

his vitals. She recorded that he had full range of motion to his neck with no

swelling or redness. Dang was ambulatory and did not appear to be in distress.

However, Dang had a fever of 101.5. Scott provided Dang with his Motrin and

Robaxin, advised him to drink plenty of fluids, and observed him for 15 to 20

minutes before releasing him to his pod.

   Shortly after Dang left the medical unit, Scott went to the hallway and saw

Dang on the floor against the wall. An officer told Scott that Dang had “snatched


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away and slid down on the wall and sat on the floor.” Dang did not respond

verbally to the officer’s request that he “get up.” Scott found Dang’s behavior

“bizarre” and told him that if he continued to behave that way, he would end up on

suicide prevention. Dang got up and walked away. Scott later directed Dang to

mental health segregation for observation and directed that his blood pressure be

monitored for five days. Later that night, Scott checked on Dang and noted his

temperature was down to 97.9. His behavior and appearance were normal and she

noticed no problems.

   On February 20, Sharyle Roberts, LPN, was notified of a “Code Orange”

medical emergency regarding Dang. Roberts documented that Dang’s pupils were

equal and reactive to light, his blood pressure was 136/85, and he had a

temperature of 99. Roberts noted that Dang appeared to be passed out, was

drooling, and exhibited fluttering eye syndrome. Roberts believed the behavior

was voluntary because Dang wiped the drool from his mouth and when the room

was quiet, he “would open his eyes, look around, and then close his eyes again.”

Roberts heard from Scott that he had engaged in similar behavior two weeks prior.

Roberts admitted Dang to the infirmary and referred him to both medical and

mental health doctors.

   On February 21, Dr. Valerie Westhead, MD, a psychiatrist, conducted a mental

status examination of Dang. Dang had a headache, a drop in blood pressure, and


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felt odd, but denied hallucinations, delusions, or mood complaints. Westhead

concluded that Dang had an idiosyncratic reaction to the muscle relaxants but no

psychiatric issues. Westhead cleared Dang psychiatrically.

   On February 22, Martha Densmore, RN, saw Dang during her morning rounds.

Dang was rocking back and forth in his hard plastic “boat” bed, but Densmore was

able to check his vitals and determined they were normal. Densmore testified that

he was alert, oriented, and voiced no complaints.

   The next morning, Dang informed Densmore of his two-week headache. After

observing that Dang had white patches on his tongue, a 99-degree temperature, and

was unsteady when he attempted to stand, Densmore requested that Ogunsanwo

see Dang. A few hours later, Densmore observed Dang with his head in the toilet

trying to spit. He was incontinent and very weak. Densmore asked Ogunsanwo to

see him right away. Ogunsanwo examined Dang and suspected he could have

meningitis. Ogunsanwo directed that Dang be transported to the ER via a sheriff’s

patrol car, where he was diagnosed with meningitis several days later.

   B. Procedure

   Dang filed suit alleging § 1983 liability against the Jail’s health care providers

(excluding Westhead) for providing inadequate medical care and against Seminole

County Sheriff Donald Eslinger in his official capacity as Sheriff for employing

the customs that resulted in the alleged inadequate care. The district court granted


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summary judgment for the defendants. The court held, inter alia, that Dang’s

constitutional right to medical care was not violated because—even assuming a

serious medical need—the health care providers were not deliberately indifferent

to Dang’s needs. In light of the determination that Dang suffered no constitutional

deprivation, the court found no basis for supervisor liability against the Sheriff.

The court denied Dang’s subsequent motion to amend its judgment pursuant to

Rule 59(e). Dang appealed.

                                  II. DISCUSSION

   A. Standard of Review

    We review a grant of summary judgment de novo. Kingsland v. City of Miami,

382 F.3d 1220, 1225 (11th Cir. 2004). Summary judgment is appropriate where

“there is no genuine dispute as to any material fact and the movant is entitled to a

judgment as a matter of law.” Fed. R. Civ. P. 56(a). We “view the evidence and

all factual inferences therefrom in the light most favorable to the party opposing

the motion. All reasonable doubts about the facts should be resolved in favor of

the non-movant.” Clemons v. Dougherty Cty., 684 F.2d 1365, 1368–69 (11th Cir.

1982) (citations omitted).

   B. Qualified Immunity

    Qualified immunity protects government officials if “their conduct does not

violate clearly established statutory or constitutional rights of which a reasonable


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person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).

“The purpose of this immunity is to allow government officials to carry out their

discretionary duties without the fear of personal liability or harassing litigation, . . .

protecting from suit all but the plainly incompetent or one who is knowingly

violating the federal law.” Lee v. Ferraro, 284 F.3d 1188, 1194 (11th Cir. 2002)

(internal quotation marks and citations omitted).

   1. Discretionary Authority

    To be entitled to qualified immunity, a public official “must first prove that he

was acting within the scope of his discretionary authority when the allegedly

wrongful acts occurred.” Id. (internal quotation marks and citations omitted). An

official acts within his discretionary authority if his actions (1) were undertaken

“pursuant to the performance of his duties,” and (2) were “within the scope of his

authority.” Rich v. Dollar, 841 F.2d 1558, 1564 (11th Cir. 1988); see also

Holloman v. Harland, 370 F.3d 1252, 1265 (11th Cir. 2004) (noting that an official

acts within his discretionary authority if he “perform[s] a legitimate job-related

function . . . through means that [are] within his power to utilize”).

    All of the health care providers acted within the course and scope of their

discretionary authority in providing care to Dang. While Dang concedes that three

of the health care providers acted within their discretionary authority in caring for

him, he argues that the LPNs—Wilt, Scott, and Roberts—did not. However, the


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Seminole County Sheriff’s Office required the LPNs to, inter alia, complete

“physical assessments on inmates in accordance with medical protocol” and

conduct “daily nurse’s sick call.” This is consistent with the Florida Nurse

Practice Act, which provides that LPNs perform “selected acts, including the

administration of treatments and medications, in the care of the ill, injured, or

infirm” and “the promotion of wellness, maintenance of health, and prevention of

illness of others under the direction of a registered nurse [or] a licensed

physician . . . .” Fla. Stat. § 464.003(19). Indeed, Dang alleges in his complaint

that “[a]t all times material hereto” each LPN “was acting under the color of state

law within the course and scope of her employment . . . and was empowered by the

state of Florida to provide nursing services . . . .” Each LPN acted within the scope

of her delegated authority, so each exercised discretionary authority in caring for

Dang.

   2. Constitutional Violation

    “Once the defendant establishes that he was acting within his discretionary

authority, the burden shifts to the plaintiff to show that qualified immunity is not

appropriate.” Lee, 284 F.3d at 1194. A court evaluating a claim of qualified

immunity must “determine whether the plaintiff has alleged the deprivation of an

actual constitutional right at all, and if so, proceed to determine whether that right




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was clearly established at the time of the alleged violation.” Conn v. Gabbert, 526

U.S. 286, 290 (1999).

    As a pretrial detainee, Dang alleges inadequate medical care under the

Fourteenth Amendment rather than the Eighth Amendment. See Mann v. Taser

Int’l, Inc., 588 F.3d 1291, 1306 (11th Cir. 2009); Goebert v. Lee Cty., 510 F.3d

1312, 1326 (11th Cir. 2007). Nevertheless, Dang’s claims are evaluated under the

same standard as a prisoner’s claim of inadequate care under the Eighth

Amendment. Goebert, 510 F.3d at 1326. To prevail on his § 1983 claim for

inadequate medical treatment, Dang must show (1) a serious medical need; (2) the

health care providers’ deliberate indifference to that need; and (3) causation

between the health care providers’ indifference and Dang’s injury. Id. 2

    a. Serious Medical Need



2
 Dang argues that following Kingsley v. Hendrickson, 135 S. Ct. 2466, 2475 (2015), a pretrial
detainee alleging constitutionally deficient medical care need not show deliberate indifference.
We cannot and need not reach this question. First, Kingsley involved an excessive-force claim,
not a claim of inadequate medical treatment due to deliberate indifference. Therefore, it is not
“squarely on point” with and does not “actually abrogate or directly conflict with,” United States
v. Kaley, 579 F.3d 1246, 1255 (11th Cir. 2009) (citations and quotation marks omitted), our prior
precedent identifying the standard we apply in this opinion to Dang’s claim. Second, even if we
were free to consider what, if any, implications Kingsley might have for the claims of pretrial
detainees involving inadequate medical treatment due to deliberate indifference, Kingsley could
not help Dang. Kingsley itself notes that even when it comes to pretrial detainees, “liability for
negligently inflicted harm is categorically beneath the threshold of constitutional due process.”
Kingsley, 135 S. Ct. at 2472 (emphasis in original; citations and quotation marks omitted). In
Dang’s case, as tragic as the facts are, all we have is, at most, negligence. So regardless of
whether Kingsley could be construed to have affected the standard for pretrial detainees’ claims
involving inadequate medical treatment due to deliberate indifference, whatever any resulting
standard might be, it could not affect Dang’s case.
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    A serious medical need is “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)). In either case, “the medical need must be one that, if left

unattended, poses a substantial risk of serious harm.” Id. (citations, internal

quotations marks, and alteration omitted). As did the district court, we assume for

purposes of summary judgment that Dang demonstrated a serious medical need.

   b. Deliberate Indifference

    To establish deliberate indifference, Dang must prove (1) subjective knowledge

of a risk of serious harm; and (2) disregard of that risk (3) by conduct that is more

than mere negligence. McElligott v. Foley, 182 F.3d 1248, 1255 (11th Cir. 1999).

Subjective knowledge of the risk requires that the defendant be “aware of facts

from which the inference could be drawn that a substantial risk of serious harm

exists, and he must also draw the inference.” Caldwell v. Warden, FCI Talladega,

748 F.3d 1090, 1099–1100 (11th Cir. 2014). “[I]mputed or collective knowledge

cannot serve as the basis for a claim of deliberate indifference. Each individual

defendant must be judged separately and on the basis of what that person kn[ew].”

Burnette v. Taylor, 533 F.3d 1325, 1331 (11th Cir. 2008) (citations omitted).




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    An official disregards a serious risk by more than mere negligence “when he

[or she] knows that an inmate is in serious need of medical care, but he [or she]

fails or refuses to obtain medical treatment for the inmate.” Lancaster v. Monroe

Cty., Ala., 116 F.3d 1419, 1425 (11th Cir. 1997), overruled on other grounds by

LeFrere v. Quezada, 588 F.3d 1317, 1318 (11th Cir. 2009). Even when medical

care is ultimately provided, a prison official may nonetheless act with deliberate

indifference by delaying the treatment of serious medical needs. See Harris v.

Coweta Cty., 21 F.3d 388, 393–94 (11th Cir. 1994) (citing Brown v. Hughes, 894

F.2d 1533, 1537–39 (11th Cir. 1990)). Further, “medical care which is so cursory

as to amount to no treatment at all may amount to deliberate indifference.” Mandel

v. Doe, 888 F.2d 783, 789 (11th Cir. 1989) (citations omitted). However, medical

treatment violates the Constitution only when it is “so grossly incompetent,

inadequate, or excessive as to shock the conscience or to be intolerable to

fundamental fairness.” Rogers v. Evans, 792 F.2d 1052, 1058 (11th Cir. 1986)

(citation omitted).

    Dang alleges that each health care provider was aware of Dang’s “symptoms

consistent with meningitis” and “knew that meningitis was a serious and life-

threatening condition that warrants immediate medical treatment.” Nonetheless,

Dang claims, each provider “ignored clear signs and symptoms of Nam Dang’s

serious medical needs and life-threatening condition which prevented Nam Dang


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from timely getting the critical medical care he required . . . .” We consider those

claims as to each defendant.

   i. Nurse Wilt

   Wilt encountered Dang on one occasion, January 29, 2012, when he informed

Wilt of his “moderate to severe head and neck pains,” “strain[ed] neck muscle,”

“possible pinched nerve,” and “stiff neck.” Wilt did not ignore Dang’s symptoms,

but performed an assessment by checking his eyes and the rotation of his neck.

After the assessment, Wilt ordered that Dang take Motrin and a muscle rub before

referring him to Dr. Ogunsanwo. Dang argues that Wilt should have taken his vital

signs, but does not suggest why that was necessary or would have been helpful.

Indeed, Dang’s vitals were taken 36 hours later with normal results. The failure to

take Dang’s vitals under these circumstances cannot be said to be so grossly

incompetent or inadequate as to “shock the conscience.” Rogers, 792 F.2d at 1058.

Wilt was responsive to Dang’s complaints and provided treatment she deemed

appropriate at that time. Wilt did not violate Dang’s constitutional rights and is

therefore entitled to qualified immunity.

   ii.   Nurse Preston-Mayle

   Dang alleges that Preston-Mayle was deliberately indifferent to his medical

needs during their encounter on February 7, 2012, when Dang informed her of his

head and neck pain as well as vision and hearing problems. Dang alleges that


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Preston-Mayle failed to recognize Dang’s symptoms and returned him to general

population without attempting “to further evaluate his deteriorating condition.”

But Preston-Mayle took Dang’s vitals, which were within normal range. She noted

that Dang was coherent, alert, oriented, and even joked with her. In short, Dang

presented no signs that were “so obvious that even a lay person would easily

recognize the necessity for a doctor’s attention.” Goebert, 510 F.3d at 1326.

Nevertheless, Preston-Mayle offered to send Dang to a medical doctor, which he

declined. The undisputed evidence shows that Preston-Mayle was not deliberately

indifferent to Dang’s medical needs and is therefore entitled to qualified immunity.

   iii.   Nurse Scott

   Dang alleges that Scott was deliberately indifferent to his medical needs during

their encounter on February 9, 2012, when Dang told her of his headaches and

neck pain. Scott assessed Dang and took his vitals. When she saw that Dang had a

fever of 101.5, she administered his prescribed medication. After administering

the medication, she held Dang in the infirmary for observation for at least fifteen

minutes, advised him to drink fluids, and put in orders for his blood pressure to be

monitored for five days. When Dang slid to the floor after leaving the infirmary,

Scott became concerned about potential medical health issues and referred him to

“DPod” for mental health observation, where nurses would see him twice daily.

Scott followed up with Dang later that evening to check his temperature, which


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was back within the normal range. At that time, Dang stated that he was okay and

his behavior and appearance were normal. Scott’s care does not “shock the

conscience”; indeed, Dang’s symptoms improved under her care.

    Dang takes issue with the fact that Scott “mov[ed] him to segregation without

instituting the segregation assessment protocol.” But it is not clear how this

assessment would have shed light on Dang’s condition or prompted additional

care, and the evidence suggests that such assessments are not used to identify and

assess the health of detainees. A violation of Jail policy does not in itself rise to

the level of deliberate indifference. See Andujar v. Rodriguez, 486 F.3d 1199,

1204 n.5 (11th Cir. 2007). Dang also alleges that Scott was present for the Code

Orange on February 20, 2012, a fact that is in dispute. But even if Scott was

present for that encounter, she was not deliberately indifferent for the reasons

explained below. Scott is therefore entitled to qualified immunity.

   iv.    Nurse Roberts

    During the Code Orange on February 20, 2012, Roberts observed Dang

appearing unconscious, drooling, non-verbal, and unable to sit up. Roberts

assessed Dang, noting that his vitals were normal and his pupils were equal and

reactive to light. Although Roberts may have incorrectly believed Dang’s behavior

was voluntary, “mere negligent” misdiagnosis is not a constitutional violation.

Howell v. Evans, 922 F.2d 712, 719 (11th Cir. 1991). And despite her belief, she


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admitted Dang to the infirmary where he would be seen by both medical and

mental health doctors. Based on this undisputed evidence, Roberts was not

deliberately indifferent to Dang’s medical need.

   Dang asserts that Roberts failed to check him that night, leaving him to

“languish[]” in his cell and suffer additional harm. Although Dang was observable

in the infirmary, there is no evidence that he made any complaints or that his

condition deteriorated. Dang points to the testimony of his former cell-mate,

Anthony Laird, and his girlfriend, Sarah Agurkis, in support of his claim that his

condition deteriorated in his infirmary cell that night. However, Laird’s affidavit is

not clear on dates, and Dang references it in regard to events on February 20, 21,

and 23. And Agurkis testified that she “believe[s]” she visited him on February

19, so any direct observations she made cannot support his claims regarding

February 21.

   Because Roberts was not deliberately indifferent to Dang’s medical need, she

is entitled to qualified immunity.

   v.    Nurse Densmore

   Densmore examined Dang on February 22, 2012. Although he exhibited

weakness, Dang was sitting up and Densmore noted that his vitals were normal and

he was alert and oriented. Dang did not voice complaints about his pain. The next

day, after observing that Dang had white patches on his tongue, a 99-degree


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temperature, and was unsteady on his feet, Densmore requested that Ogunsanwo

see Dang. When, a few hours later, Densmore observed Dang with his head in the

toilet, incontinent and weak, she requested that Ogunsanwo see Dang immediately.

Far from ignoring Dang’s medical need, Densmore referred Dang to a medical

doctor, and then ensured that the doctor came immediately when Dang’s condition

worsened. Densmore’s decision not to take further action under these

circumstances, even in the light most favorable to Dang, was not a constitutional

violation. Densmore is therefore entitled to qualified immunity.

   vi.   Doctor Ogunsanwo

   Ogunsanwo first interacted with Dang on February 1, 2012, when Dang

complained of headaches and neck pain. When the results of Dang’s physical

exam were normal, Ogunsanwo continued Dang on Motrin and a muscle rub and

prescribed a muscle relaxant for his pain. Dang seems to have abandoned any

challenge relating to Ogunsanwo’s actions on February 1, but regardless, his

undisputed actions were reasonable and do not support a finding of deliberate

indifference.

   Ogunsanwo next interacted with Dang on February 23, 2012. After examining

Dang, Ogunsanwo immediately directed him transported to the ER in a patrol car.

The only issue that Dang raises before us is that he remained in the infirmary for

over 40 minutes before being transported to the hospital, but he cites no relevant


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evidence in support of his conclusion. Evidence suggests that there was about a

15-minute delay in Dang’s transport. In this context, a 15-minute delay is not a

constitutional violation. See Harris, 21 F.3d at 393-94.

    Dang also suggests that Ogunsanwo indirectly learned of Dang’s deteriorating

condition on February 13, 2012, when he approved an order for blood pressure

checks due to Dang’s fever. Fever, Dang claims, is inconsistent with Ogunsanwo’s

initial diagnosis of muscular skeletal pain and indicates a more serious condition.

But even assuming Ogunsanwo knew Dang had a one-time fever, his actions were

not deliberately indifferent. See Farmer, 511 U.S. at 838 (finding no liability for

“an official’s failure to alleviate a significant risk that he should have perceived but

did not”).

    Because Ogunsanwo was not deliberately indifferent to Dang’s medical needs,

he is entitled to qualified immunity.

   C. Supervisor Liability

    Dang argues that the policies and practices of Donald Eslinger, Sheriff for

Seminole County, caused the violation of his constitutional right to adequate

medical care. In light of the Court’s determination that there was no constitutional

deprivation, there is no basis for supervisor liability. See Gish v. Thomas, 516 F.3d

952, 955 (11th Cir. 2008); Beshers v. Harrison, 495 F.3d 1260, 1264 n.7 (11th Cir.




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2007). Accordingly, the district court’s grant of the Sheriff’s motion for summary

judgment is affirmed.

                                III. CONCLUSION

   For the reasons set forth above, the district court’s decision granting the

defendants’ motions for summary judgment is affirmed.




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