             Case: 14-11772    Date Filed: 03/13/2015   Page: 1 of 4


                                                            [DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT

                         ________________________

                               No. 14-11772
                           Non-Argument Calendar
                         ________________________

                      D. C. Docket No. 1:12-cv-24169-UU

GEORGE PINO,

                                                               Plaintiff-Appellant,

                                     versus

WILLIAM NIELDS, et al.,

                                                           Defendants-Appellees.

                         ________________________

                  Appeal from the United States District Court
                      for the Southern District of Florida
                        _________________________

                               (March 13, 2015)

Before TJOFLAT, JORDAN, and ANDERSON, Circuit Judges.

PER CURIAM:

      George Pino, a former inmate of the Florida Department of Corrections

(“DOC”), appeals summary judgment in favor of William Nields, a physician and
              Case: 14-11772     Date Filed: 03/13/2015   Page: 2 of 4


administrator with the DOC Utilization Management Department (“UMD”). Pino

alleges that Nields was deliberately indifferent to a serious medical condition, thus

violating his Eighth and Fourteenth Amendment rights. The district court

concluded that Nields was entitled to qualified immunity. We affirm.

      Pino was an inmate with the DOC from December 24, 2008, to March 24,

2012. While incarcerated, he suffered from degenerative joint disease in his hips.

In June 2009, he received a right hip replacement. Following discharge from

impatient care, Pino sought replacement for his other hip. The DOC denied the

request in favor of non-surgical treatment. In 2010, the DOC transferred Pino to a

different prison where he filed a formal grievance regarding the denial of surgery.

His grievance was approved and he was called to the clinic on October 19, 2010.

Over approximately the next year, the DOC considered various non-surgical

procedures for Pino, denying some and approving others.

      On December 1, 2011, Everglades Correctional Institution physician Dr.

Oscar Ortega submitted a request to the UMD on behalf of Pino for an orthopedic

consultation. Nields denied the orthopedic consultation for Pino on December 29,

2011, citing Pino’s upcoming release date, and an insufficient period to recover

from surgery. Pino was released from custody on March 25, 2012.

      We review a district court's grant of summary judgment de novo, “viewing

the record and drawing all reasonable inferences in the light most favorable to the


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non-moving party.” Patton v. Triad Guar. Ins. Corp., 277 F.3d 1294, 1296 (11th

Cir. 2002). Courts shall grant summary judgment only when “there is no genuine

issue as to any material fact.” Fed. R. Civ. P. 56(c).

      Qualified immunity protects government officials sued in their individual

capacities if “their conduct does not violate clearly established statutory or

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

Fitzgerald, 457 U.S. 800, 818 (1982). The Supreme Court has adopted a two-part

test for evaluating a claim of qualified immunity. The plaintiff must show that 1)

there was a violation of the Constitution and 2) that the illegality of the defendant’s

actions was clearly established at the time of the incident. Hoyt v. Cooks, 672 F.3d

972, 977 (11th Cir. 2012). This Court need not decide whether there was a

constitutional violation if the illegality of the conduct was not clearly established at

the time. Id.

      Pino has cited no case with materially similar facts from the Supreme Court,

the Eleventh Circuit, or the Supreme Court of Florida which might have given

Nields fair warning that denying a surgery with an extended recovery close to an

inmate’s release is unconstitutional, nor has our research revealed such a case.

Pino’s citation to Sealy v. Pastrana, 399 F. App’x 548, 552 (11th Cir. 2010), fails

for two reasons. First, an unpublished opinion is not binding precedent on this

court, and therefore could not provide fair warning to a lay person of


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unconstitutional conduct. Second, Sealy’s rationale stems directly from Farrow v.

West, 320 F.3d 1235, 1247 (11th Cir. 2003), which requires that for a delay in

treatment to be potentially unconstitutional, the delay must be without “any

reasonable explanation.” Here, Nields had an explanation for the denial and

subsequent delay.

      AFFIRMED.




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