Dang v. Sheriff

• Decision Date: 25 September 2017
• Docket Number: No. 15-14842.,15-14842.
• Citation: 871 F.3d 1272
• Parties: NAM DANG, BY AND THROUGH his Power of Attorney, VINA DANG Plaintiff–Appellant, v. 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.
• Court: U.S. Court of Appeals — Eleventh Circuit

871 F.3d 1272

NAM DANG, BY AND THROUGH his Power of Attorney, VINA DANG Plaintiff–Appellant,

v.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.

No. 15-14842.

United States Court of Appeals, Eleventh Circuit.

September 25, 2017

Matthew P. Farmer, Farmer & Fitzgerald, PA, Tampa, FL, Daniel William Cotter, Daniel William Cotter Law Office, Decatur, GA, Steven R. Maher, Melissa H. Powers, The Maher Law Firm, PA, Winter Park, FL, for Plaintiff-Appellant.

Donald Andrew DeBevoise, Thomas W. Poulton, Jeffrey Kenneth Grant, DeBevoise & Poulton, PA, Winter Park, FL, Scott A. Shelton, Joy Grace Zubkin, Cole Scott & Kissane, PA, Bruce Robert Bogan, Melissa Jean Sydow, Hilyard Bogan & Palmer, PA, Orlando, FL, John M. Green, Jr., Linda LeVines Winchenbach, John M. Green, Jr., PA, Ocala, FL, for Defendants-Appellees.

David Michael Shapiro, Roderick & Solange MacArthur Justice Center, Northwestern University School of Law, Chicago, IL, for Amicus Curiae.

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, 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 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 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 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 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 person would have known." Harlow v. Fitzgerald , 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (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...