McElligott v. Foley, 98-3451

• Decision Date: 03 August 1999
• Docket Number: No. 98-3451,98-3451
• Citation: 182 F.3d 1248
• Parties: (11th Cir. 1999) LAUREN ELMORE MCELLIGOTT, AS EXECUTRIX OF THE ESTATE OF THOMAS ELMORE, Plaintiff-Appellant, v. MICHAEL G. FOLEY, SHARON WAGNER, et al., Defendants-Appellees
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1248

182 F.3d 1248 (11th Cir. 1999)

LAUREN ELMORE MCELLIGOTT, AS EXECUTRIX OF THE ESTATE OF THOMAS ELMORE, Plaintiff-Appellant, v. MICHAEL G. FOLEY, SHARON WAGNER, et al., Defendants-Appellees.

No. 98-3451

IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

August 3, 1999

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

Appeal from the United States District Court for the Northern District of Florida, D. C. Docket No. 3:97-CV-281-LAC

Before BARKETT, Circuit Judge, KRAVITCH and MAGILL^*, Senior Circuit Judges.

BARKETT, Circuit Judge:

Appellant Lauren Elmore McElligott, the administrator of the estate of Thomas Elmore, appeals from the district court's grant of summary judgment to Okaloosa County, Dr. Michael Foley, and head nurse Sharon Wagner on Elmore's claim that the medical care he received in jail violated the Eighth Amendment.¹ McElligott argues that the district court erred in concluding that defendants were not deliberately indifferent to Elmore's serious medical needs and awarding them qualified immunity. We reverse and remand for further proceedings on Elmore's claim against Dr. Foley and nurse Wagner in their individual capacity, but affirm the grant of summary judgment to Okaloosa County.

BACKGROUND

We review the district court's grant of summary judgment de novo, viewing the facts in the light most favorable to the non-moving party. Those facts indicate that, on August 4, 1996, Elmore was incarcerated at the Okaloosa County Jail. On his entry into the prison system, Elmore had experienced burning abdominal pains for approximately five months. Nurse Lynda Barrow pointed out this history on her assessment of Elmore, and nurse Sharon Wagner, the head and only registered nurse at the jail, approved Barrow's evaluation and noted that Elmore should be brought to medical on an "as needed" basis due to his history of stomach problems. Dr. Foley, the sole jail physician, signed off on the nursing staff's initial assessment of Elmore's stomach problems but did not examine him at the time he entered the jail. Dr. Foley spends only three to four hours per week at the jail. Consequently, Dr. Foley only sees patients with particularly urgent problems. Because Foley spends so little time at the jail, he depends on the jail's nurses to determine which inmates need his time most and to respond to inmate requests directed to him.

After his incarceration on August 4, Elmore began experiencing severe abdominal pain, vomiting, and nausea, telling jail medical staff that his abdomen was cramping and "on fire." On August 10, he was examined by nurse Roberta Eastman and placed on a liquid diet and given pepto-bismol. Both Dr. Foley and nurse Wagner were notified of Elmore's symptoms. Although Dr. Foley visited the jail several days later, he again did not see Elmore, explaining that his symptoms had improved and that "it did not appear he was ill enough for me to see him."

On September 1, 1996, nurse Wagner received a telephone call at 3:00 A.M. from one of the jail nurses, who reported that Elmore had severe intestinal pain and had vomited several times. The medical records indicate that Elmore was still vomiting one-half hour later. Elmore's pain persisted throughout the morning and, after making morning rounds, nurse Barrow telephoned Dr. Foley. Despite not having examined Elmore, Dr. Foley prescribed a liquid diet, tylenol for pain, and pepto-bismol for nausea, vomiting, and diarrhea. Later that day, Elmore told the jail nurses that he still felt severe pain in his stomach, describing the pain as a knot in his stomach which someone is turning, and that his vomit had a foul odor of stool.

On September 3, 1996, Dr. Foley examined Elmore for the first time. Dr. Foley was aware that Elmore was in severe pain, observing that "when I touched his abdomen just with the tip of my finger, he became rigid, clenched his fist as if I was causing him some really severe acute pain." Dr. Foley also noted that Elmore's feces had a foul smell. Dr. Foley ordered blood work and a urinalysis and prescribed Bentyl, an anti-gas medication. Dr. Foley also requested records from Elmore's prior treatment at a Veterans Administration hospital in Atlanta. Elmore took this medication for approximately one month, at which time Dr. Foley ordered that the prescription not be refilled. The Bentyl relaxed his stomach, and, at least for a small period of time, eased his pain. However, after a short period without pain, the pain began to recur and worsened once the medication ran out. Elmore filed a number of inmate request forms, but these forms never made it into Elmore's medical file and were apparently lost or not acted upon.

On October 22, 1996, Elmore wrote an inmate request form to nurse Wagner, explaining that the stomach pain had increased and was getting stronger, harder, and more frequent and that he needed to get back on medication before the pain became unbearable. On October 23, 1996, Dr. Foley examined Elmore for a second time. He described Elmore's abdominal pain "as an ache that goes all the way through." Dr. Foley once again placed Elmore on Bentyl, the anti-gas medication, ordered another urinalysis, and follow up for a week later if Elmore did not improve. Although Elmore continued to report pain to the staff nurses, Dr. Foley did not see Elmore until more than a month later, on December 3, 1996.

During this period, on November 27 and December 1, Elmore wrote inmate request forms to Dr. Foley begging him for medication to relieve the pain. On November 27, Elmore filled out an inmate request form, indicating that his stomach pains and nausea "are getting severe." In block letters, he pleaded, "NEED MEDICATION AGAIN!!" When Dr. Foley did not respond Elmore sent another request form to Dr. Foley on December 1, writing in large capital letters, "NEED HELP IN SEVERE PAIN!" During this time, Elmore was having severe stomach cramps, muscle spasms, and was having trouble digesting food as well as vomiting. Dr. Foley examined Elmore for the third time on December 3, 1996. Dr. Foley, having been told of the pain that Elmore was experiencing, decided to continue prescribing only the medication for gas, Bentyl. He did not perform any further diagnostic tests at the time, choosing to wait to see the records from Elmore's admission to the VA Hospital in Atlanta, and simply asked the nurses to request the VA records again.

After being examined by Dr. Foley on December 3, Elmore continued to be in pain and experience other symptoms, yet had a difficult time even in obtaining the only medication that had been prescribed, his Bentyl medication. He filed several inmate request forms, pleading with nurse Wagner, Dr. Foley, and the other staff nurses to deliver the medication more than twice a day. Elmore continued to complain that he was experiencing pain, was unable to eat, and that the medication was not effective, noting on an inmate request form filed on December 29 that he was still having muscle spasms and gas and that the Bentyl was not as effective as it had been in the past in relaxing his stomach.

Dr. Foley did not examine Elmore again until January 9, 1997. Dr. Foley recognized that Elmore continued to suffer from pain, muscle spasms, continual vomiting, and was beginning to lose weight and that the Bentyl medication was not helping Elmore. Nevertheless, Dr. Foley continued Elmore's Bentyl medication and also prescribed Reglan, a medication used to promote the increased motion of food through the gastrointestinal tract. However, Dr. Foley still did not prescribe anything to address the pain Elmore was experiencing.

On January 21, 1997, Elmore submitted an inmate request form addressed to Dr. Foley, asking to see him and stating that "[m]edicine is not helping condition. Seems to be getting worse. Can't eat. In pain almost all the time! Already lost 15 lb. Weak from no nourishment." Elmore also stated, "I feel like I'm dying." Dr. Foley did not see or prescribe any other medication for pain or otherwise. One week later, on January 28, Elmore filed another request to see Dr. Foley, stating that his condition was getting yet worse. At this time, Elmore spoke to his daughter, McElligott, telling her that he thought he was dying and would not make it out of the jail alive. She attempted to contact the director and deputy director of the jail. She spoke with Larry Caskey, the deputy director of the jail, who told her that he "would stay on top of the situation." Larry Caskey also called nurse Wagner, telling her to look into Elmore's care. However, it does not appear that nurse Wagner ever did so.

On that same day, January 28, Dr. Foley once again examined Elmore. Although Elmore had not been eating solid foods for some time, causing him to lose a significant amount of weight, Dr. Foley did not order any further examinations, choosing again to continue to wait until the VA hospital records arrived. Dr. Foley discontinued Elmore's use of Bentyl and Reglan, recognizing that they were not working, and prescribed Prilosec, a medication for ulcers, believing that Elmore might be having trouble with ulcers. Dr. Foley, however, did not confirm this belief through further diagnostic testing. Nor did he prescribe anything for pain.

On February 2, a correctional officer brought Elmore into the medical department, where he was examined by nurse Parsons. She noted in the records that he was vomiting and that he was pale and thin. His weight was down to 128 pounds and Dr. Foley testified that, at this point, it was apparent that Elmore's condition had deteriorated considerably. On the next day, nurse Barrow noted that Elmore could not even tolerate liquids. On February 4, McElligott spoke with Okaloosa County Commissioner Bill Harrison. Shortly after they spoke, the Director of the jail, Bill Curry, informed her that Dr. Foley had been paged and directed to see Elmore. The jail staff beeped Dr. Foley,...