860 F.2d 1018 (11th Cir. 1988), 87-3342, Washington v. Dugger

Docket Nº:87-3342.
Citation:860 F.2d 1018
Party Name:John A. WASHINGTON, Plaintiff-Appellant, v. Richard L. DUGGER, G.S. Fortner, et al., Defendants-Appellees.
Case Date:November 28, 1988
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit

Page 1018

860 F.2d 1018 (11th Cir. 1988)

John A. WASHINGTON, Plaintiff-Appellant,

v.

Richard L. DUGGER, G.S. Fortner, et al., Defendants-Appellees.

No. 87-3342.

United States Court of Appeals, Eleventh Circuit

November 28, 1988

Rehearing and Rehearing En Banc Denied Jan. 5, 1989.

Gardner F. Davis, Jacksonville, Fla., for plaintiff-appellant.

Robert A. Butterworth, Atty. Gen., Dept. of Legal Affairs, Carl J. Zahner, Cecilia Bradley, Asst. Attys. Gen., Tallahassee, Fla., for defendants-appellees.

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

Before ANDERSON and COX, Circuit Judges, and TUTTLE, Senior Circuit Judge.

TUTTLE, Senior Circuit Judge:

John A. Washington, an inmate in the Florida prison system, appeals from an order

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of the district court granting summary judgment for all defendants in this Civil Rights action brought pursuant to 42 U.S.C. Sec. 1983. In his complaint, Washington alleged that he had suffered pain and permanent injury from the defendants' "deliberate indifference to Washington's serious medical needs" while at the Lawtey Correctional Institute in the State of Florida.

I. COURSE OF PROCEEDINGS BELOW

Plaintiff filed his complaint, acting pro se, alleging that he was suffering from Agent Orange disease. He alleged inadequate medical care by the prison officials, the appellees herein. He filed concurrently a motion for a temporary restraining order and preliminary injunction.

On November 28, 1986, the district court denied plaintiff's motion for a temporary restraining order and referred the motion for preliminary injunction to the United States magistrate for an evidentiary hearing. At the conclusion of the hearing, the magistrate offered the plaintiff an opportunity to supplement the record with any additional evidence he might have concerning the correction officials' wrongful refusal to allow him to remain at the Veterans Administration Hospital for treatment of Agent Orange disease.

On January 6, 1987, the defendant filed a motion for summary judgment. On February 27, 1987, the magistrate filed his report to the district court recommending that the plaintiff's motion for preliminary injunction be denied and that defendants' motion for summary judgment be granted. On May 8, the district court overruled the plaintiff's objections to the magistrate's report and recommendation. It adopted the magistrate's recommendation denying the plaintiff's motion for preliminary injunction and granted defendants' motion for summary judgment.

This appeal followed.

II. STATEMENT OF FACTS

The record before the trial court that was appropriate for it to consider deciding the motion for summary judgment, i.e., the affidavits, the testimony at the hearing for preliminary injunction, and the sworn complaint of the plaintiff, showed the following:

Washington is a veteran of the Viet Nam conflict who was found by the Veterans Administration to be suffering from disabilities which the Administration found were service connected. He was treated as a veteran who had been exposed to "herbicides." He had been treated in Veterans Administration hospitals in several cities around the country, beginning as early as 1976. The medical records from these visits, which included both inpatient and outpatient treatment, disclosed that during the entire period of time up until the filing of this action, his disabilities included the following: pydoerma with cellulitis and lymphaginitis, in his lower extremities. From time to time the records disclose that Washington had lesions and open pustules on his legs. The treatment administered and recommended to be followed upon discharge, as reflected by the Veterans Administration's medical records from Gainesville, Florida, Houston, Texas, New Orleans, Louisiana and Tuskegee, Alabama, as well as by a private doctor in Pensacola, Florida, remained fairly constant.

These medical records were submitted to the appropriate Florida officials when Washington was placed in the custody of the Department of Corrections on September 26. While at the Reception and Medical Center (RMC), the doctors there told Washington that due to the complexity of his disease they were unable to treat him but would arrange appointments for him to see a dermatologist and an internist. His first appointment with the dermatologist took place approximately six weeks after his arrival at RMC.

Treatment by the dermatologist caused serious and potentially dangerous side effects and was discontinued. The internist, whom he saw next, stated that he had no understanding as to why Washington should have been sent to him, and he was sent back to the dermatologist. Thereafter, the plaintiff repeatedly asked the

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medical personnel at RMC to arrange for his transfer for diagnosis and treatment to the Veterans Administration Hospital in Gainesville, Florida. Finally, after having communicated with non-medical prison officials, an appointment was arranged for him to visit the VA Hospital on December 26, exactly three months after he had first arrived at RMC. Following a stay of approximately a week in the VA Hospital, he was returned to the correctional institution at...

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