738 F.3d 266 (11th Cir. 2013), 11-12674, Gilmore v. Hodges

Docket Nº:11-12674.
Citation:738 F.3d 266
Opinion Judge:MARCUS, Circuit Judge:
Party Name:Tonya Weinberg GILMORE, Juanita Weinberg Prince, Plaintiffs-Appellants, v. Pam HODGES, Lieutenant Medical Supervisor, Donald Newsome, Sergeant Security, Defendants-Appellees.
Attorney:Raechel Keay Anglin, Bingham McCutchen, LLP, Washington, DC, Wakulla CI Warden, Wakulla CI-Inmate Trust Fund, Crawfordville, FL, Kenneth Lee Weinberg, Jackson CI-Inmate Legal Mail Malone, FL, for Plaintiffs-Appellants. Barbara C. Fromm, Jolly & Peterson, PA, Tallahassee, FL, for Defendants-Appell...
Judge Panel:Before MARCUS, BLACK and RIPPLE,[*] Circuit Judges.
Case Date:December 20, 2013
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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Page 266

738 F.3d 266 (11th Cir. 2013)

Tonya Weinberg GILMORE, Juanita Weinberg Prince, Plaintiffs-Appellants,

v.

Pam HODGES, Lieutenant Medical Supervisor, Donald Newsome, Sergeant Security, Defendants-Appellees.

No. 11-12674.

United States Court of Appeals, Eleventh Circuit.

December 20, 2013

Page 267

[Copyrighted Material Omitted]

Page 268

Raechel Keay Anglin, Bingham McCutchen, LLP, Washington, DC, Wakulla CI Warden, Wakulla CI-Inmate Trust Fund, Crawfordville, FL, Kenneth Lee Weinberg, Jackson CI-Inmate Legal Mail Malone, FL, for Plaintiffs-Appellants.

Barbara C. Fromm, Jolly & Peterson, PA, Tallahassee, FL, for Defendants-Appellees.

Appeal from the United States District Court for the Northern District of Florida. D.C. Docket No. 4:09-cv-00202-RH-WCS.

Before MARCUS, BLACK and RIPPLE,[*] Circuit Judges.

MARCUS, Circuit Judge:

Tonya Weinberg Gilmore and Juanita Weinberg Prince, daughters of the late Kenneth Weinberg, appeal the district court's grant of summary judgment to Lieutenant Pam Hodges and Sergeant Donald Newsome, officers at the Wakulla County Jail in Florida. Kenneth Weinberg, whose death is unrelated to this appeal, was a pretrial detainee at the jail for approximately twenty months. Weinberg commenced this civil rights suit under the Due Process Clause of the Fourteenth Amendment, claiming deliberate indifference to his basic medical needs because the officers refused to provide him with batteries for his hearing aids, rendering

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the aids worthless and leaving him unable to hear. He also brought a claim under the Americans with Disabilities Act (" ADA" ) and a First Amendment retaliation claim against the officers for the same conduct. The district court granted summary judgment to the officers, resolving the deliberate indifference claim on the basis of qualified immunity.

After thorough review and oral argument, we affirm. Because the significant hearing loss alleged by Weinberg both is a serious medical need and could have been effectively treated with the use of hearing aids, we now hold that Weinberg stated a viable constitutional claim. An uncorrected, substantial inability to hear, much like an inability to see effectively without the aid of a corrective medical device, may place an inmate at risk of serious harm and substantially interfere with the inmate's ability to function in a penal environment. This holding, however, was not clearly established at the time of the alleged constitutional violations— not by this Court, not by the Florida Supreme Court, nor finally by the United States Supreme Court. Thus, because the state of the law did not provide the officers with " fair warning" that their alleged conduct was unlawful, the officers are entitled to qualified immunity. Hope v. Pelzer, 536 U.S. 730, 741, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002); Coffin v. Brandau, 642 F.3d 999, 1013 (11th Cir.2011) (en banc). Moreover, we can discern no error in the entry of final summary judgment for the officers on Weinberg's other claims. Accordingly, we affirm the judgment of the district court in all respects.

I.

A.

Because this is an appeal from an entry of summary judgment, we view the evidence in the light most favorable to the nonmoving party, here the Plaintiffs. See Moton v. Cowart, 631 F.3d 1337, 1341 (11th Cir.2011). Viewing the record in this light, the essential facts are these.

Kenneth Weinberg was a pretrial detainee at the Wakulla County Jail during parts of 2003, 2004, and 2005. More precisely, he was incarcerated from April 27, 2003, until October 29, 2004, and then again from May 12, 2005, until July 8, 2005. In all, he spent some twenty months in the jail. Lieutenant Pam Hodges was the medical supervisor of the jail at the time, and Sergeant Donald Newsome was a corrections officer. The jail had a policy of not providing inmates with hearing aid batteries. Rather, inmates were allowed to bring them into the jail or have them sent in by family or friends.

Weinberg's medical history indicates that he suffered from hearing loss and that he wore hearing aids to correct the problem. On August 27, 2002, before Weinberg's time in the Wakulla County Jail, an audiologist, Dr. Gordon Stanfield, evaluated his hearing. The examination results found " [t]his patient has a mild to moderately severe bilateral sensorineural involvement. Discrimination is fair to good at higher levels. This loss would interfere in all communication except face to face in quiet." The doctor noted that " binaural amplification is strongly recommended." (emphasis added). According to Weinberg's declaration, " [u]pon his arrest he supplied the medical department a copy of the test results, so the medical department would see that [he] had a hearing loss and hoped that the medical supervisor Pam Hodges would supply the hearing aid batteries [he] had requested." While in jail, Weinberg received a medical history and physical assessment on April 29, 2003, which listed his hearing as " poor." On June 3, 2003, Weinberg listed his " hearing

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difficulties" on a medical screening questionnaire. He received another medical history assessment on June 16, 2003, which described his hearing as " HOH" [hard of hearing]. The second page of this form noted that he " wears hearing aid[s]."

During some two years in the jail, Weinberg repeatedly asked jail officials both orally and in writing for hearing aid batteries. Each request was denied. According to his declaration, " [f]rom August through October of 2004, [Weinberg] filed numerous request and grievances in an effort to receive the batteries for his hearing aids." " [Weinberg] explained to defendants, Hodges [and] Newsom[e] ... that it was extremely important to get the batteries for his hearing aids since he had filed motions in the court to represent himself pro se on very serious felony charges." On September 9, 2004, Weinberg submitted an " Inmate Sick Call Request," stating that " I need 4 batterys [sic] for my hearing aids. I need them soon I have to go to court." Jail personnel responded that " [w]e do not supply batteries." Weinberg submitted still another request on September 13, 2004: " This is my 3rd request in 2 wks, for batteries for my hearing aid. I have to go to court on the 15th and will need to be able to hear the judge. I will ask the judge to order you to do this if I have to." Defendant Hodges offered the same response: " [w]e do not supply hearing aid batteries." On October 11, 2004, Weinberg filed a " Detainee Grievance," which stated:

On 10/11 filled out request for batteries for hearing aids I need this for Court on 10-13-04 I have filled out 4 medical slips and request forms in the last 2 mo. I am representing myself in court and can't hear the judge. I have tried to get them sent in but have been told by Sgt. Newsom that I have to get them through medical, and medical will not get them.

Again, Hodges responded that " [w]e do not supply hearing aid batteries to inmates."

Defendant Newsome denied Weinberg's verbal and written requests for batteries numerous times, telling Weinberg that he would " have to get them through medical." Weinberg also asked Newsome to look through his property to see if there were any hearing aid batteries included, but Newsome would not do so without the medical department's direction. Weinberg claimed that Newsome advised him that hearing aid batteries were a security risk and, therefore, that his friends and family would not be allowed to send or bring them into the jail.

Thus, Plaintiffs allege that the conduct of Hodges and Newsome completely deprived Weinberg of hearing aid batteries, and Weinberg went without functioning hearing aids for the approximately twenty months he was housed at the jail. According to Weinberg's declaration, without functioning hearing aids he " was not able to adequately participate in church services held in the county jail...." He " was unable to hear the TV for over two years-, he understood less tha[n] 100 words during that time period." He " was unable to adequately communicate with his attorney in private because if counsel spoke in a quiet tone plaintiff could not hear him." At " court hearings ... he only heard approximately 50% of the words said by the Judge, the State, and the witnesses." Weinberg claimed he " could not adequately communicate with the court, the other prisoners or correctional officers. ALL communication had to be face to face in quiet." " [I]n pretrial hearings, depositions and exhibit exchanges ... [Weinberg] could not hear much of the conversation, testimony and [argument] by the state. Many times [Weinberg] left the courtroom

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not knowing what the court[']s ruling was." " [D]uring an important suppression hearing ... [Weinberg] could only hear a small portion of the State [']s proffer of expected testimony of numerous witnesses ... [and he] was not able to adequately assist his attorney by advising him during the hearing...." In proceeding pro se, Weinberg claimed that his " case hinged on taped phone calls and recorded statements of alleged witnesses," but he " could not hear or understand well enough to prepare and the defendants continued to deny plaintiff[']s request for hearing aid batteries."

B.

Weinberg filed, pro se, an amended complaint under 42 U.S.C. § 1983 in the United States District Court for the Northern District of Florida. Weinberg's amended complaint asserted a violation of the Fourteenth Amendment Due Process Clause, claiming that Hodges and Newsome were deliberately indifferent to his serious medical needs. When brought by convicted prisoners, these claims proceed under the Cruel and Unusual Punishment Clause of the Eighth Amendment. Pretrial detainees, however, must proceed under the Due...

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