Merritt v. Athens Clarke County

• Decision Date: 01 July 1998
• Docket Number: No. A98A1424.,A98A1424.
• Citation: 504 S.E.2d 41,233 Ga. App. 203
• Parties: MERRITT v. ATHENS CLARKE COUNTY, Georgia.
• Court: Georgia Court of Appeals

504 S.E.2d 41

233 Ga. App. 203

MERRITT v. ATHENS CLARKE COUNTY, Georgia.

No. A98A1424.

Court of Appeals of Georgia.

July 1, 1998.

Thomas M. Strickland, Athens, Benjamin C. Free, for appellant.

McLeod, Benton, Begnaud & Marshall, Andrew H. Marshall, Athens, Michael C. Pruett, Winder, for appellee. ELDRIDGE, Judge.

This is an appeal from the grant of summary judgment in an action under 42 USCS § 1983 brought by Farris L. Merritt, plaintiff-appellant. Merritt, a former county prisoner, brought his action for cruel and unusual punishment as an Eighth Amendment violation of his rights under the United States Constitution through "acts [and] omissions sufficiently harmful to evidence deliberate indifference to serious medical needs," while a prisoner under state sentence in the Athens Clarke County jail. Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 50 L.Ed.2d 251. (1976) Athens Clarke County is the defendant-appellee.

While serving a sentence for drunk driving, plaintiff injured his right, ring finger on June 8, 1991. On June 21, 1991, plaintiff made the first written request to employees of the sheriff for medical attention for his finger. However, between June 2, 1991 and June 16, 1991, plaintiff made ten requests for medical attention without reference to his finger; between June 2 and June 7 plaintiff made six medical requests for "pain pills" and the seventh requesting aspirin.

On June 21 and June 22, 1991, plaintiff saw the Athens Clarke County-furnished physician, Dr. Clark, for his finger; the physician made an appointment for plaintiff to see an orthopedist at the defendant's expense. On July 2, 1991, plaintiff was taken by the sheriff's office to the Athens Orthopedic Clinic where he was examined by Dr. Moye. According to the plaintiff's hearsay testimony, Dr. Moye diagnosed plaintiff's finger as having a torn tendon. According to plaintiff's hearsay testimony, Dr. Moye told the escorting deputy, in whose custody plaintiff was, that the finger required surgery very soon before permanent damage occurred and requested that plaintiff be returned within two to three days so that Dr. Moye could perform surgery. There was no evidence that Dr. Moye communicated such information in writing or by telephone to either the sheriff, head jailor, Dr. Clark, or any official for Athens Clarke County. Dr. Moye was never deposed nor did he provide an affidavit stating that plaintiff's permanent loss of the use of his finger was caused by the failure to operate upon the tendon within the time that plaintiff remained in the custody of Athens Clarke County. Plaintiff's witness Dr. Safyer, who had previously performed a medical inspection for another similar suit, gave an affidavit and report, which went only to the medical policy, practices, and conditions at the Athens Clarke County jail at the time the report was made on November 12, 1990, prior to plaintiff's sentence.

On July 8, 1991, plaintiff was transported to the Georgia Diagnostic & Classification Center in Jackson, Georgia, where, as a state prisoner, he could have adequate medical treatment for his injured finger. After arriving at Georgia Diagnostic on July 8, plaintiff did not see or request to see a physician. Plaintiff saw the head physician, Dr. Cowl, approximately one week later and was told that they were not going to operate on his finger. While at the Georgia Diagnostic Center, plaintiff was not seen again by any physician.

On August 7, 1991, plaintiff was released from Georgia Diagnostic. On August 9, 1991, after returning to Athens, plaintiff testified that he went to see Dr. Moye. Plaintiff gave hearsay testimony that Dr. Moye told him that it was too late to correct the damage to the tendon and that he could operate on the nerve only to relieve pain, which operation was performed in October 1992. Thus, the record is silent as to competent and admissible evidence for purposes of summary judgment from Dr. Moye as to causation of plaintiff's permanent injury and Dr. Moye's proposed treatment on July 2.

All of plaintiff's enumerations of error raise in different ways the same issue, i.e., that the trial court erred in granting summary judgment on the 42 USCS § 1983 action for an Eighth Amendment violation through deliberate indifference in providing medical care to the plaintiff as a prisoner. We do not agree.

(1) "To state an Eighth Amendment violation for inadequate medical care under Estelle v. Gamble, supra, it must be shown that [Merritt's] treatment was `so grossly incompetent, inadequate or excessive as to shock the conscience or to be intolerable to fundamental fairness or where the medical care is so inappropriate as to evidence intentional maltreatment or a refusal to provide essential care.' Rogers v. Evans, 792 F.2d 1052, 1058 (11th Cir.1986)." Alford v. Osei-Kwasi, 203 Ga.App. 716, 722-723, 418 S.E.2d 79 (1992); accord Webb v. Carroll County, 229 Ga.App. 584, 494 S.E.2d 196 (1997); Cantrell v. Thurman, 231 Ga.App. 510, 499 S.E.2d 416 (1998).

"Not every governmental action affecting the interests or well-being of a prisoner is subject to Eighth Amendment scrutiny. After incarceration, only the unnecessary and wanton infliction of pain constitutes cruel and unusual punishment forbidden by the Eighth Amendment. To be cruel and unusual punishment, conduct that does not purport to be punishment at all must involve more than ordinary lack of due care for the prisoner's interests or safety. It is obduracy and wantonness, not inadvertence or error in good faith, that characterize the conduct prohibited by the Cruel and Unusual Punishments Clause, whether that conduct occurs in connection with establishing conditions of confinement, supplying medical needs, or restoring official control over a tumultuous cellblock." (Punctuation omitted.) Alford v. Osei-Kwasi, supra at 718-719, 418 S.E.2d 79 citing Whitley v. Albers, 475 U.S. 312, 319, 106 S.Ct. 1078, 89 L.Ed.2d 251 (1986); accord Webb v. Carroll County, supra at 584-585, 494 S.E.2d 196; see also Cantrell v. Thurman, supra at 519, 499 S.E.2d 416. "Also, delay in access to medical care that is tantamount to unnecessary and wanton infliction of pain may constitute deliberate indifference to a prisoner's serious medical needs." (Citations and punctuation omitted.) Adams v. Poag, 61 F.3d 1537, 1544 (11th Cir.1995); see also Brown v. Hughes, 894 F.2d 1533, 1537 (11th Cir.1990). All of these cases require knowledge of the medical needs of the plaintiff and the intentional refusal to provide such necessary care in order for such conduct to constitute "deliberate indifference" as an Eighth Amendment violation within Estelle. Our cases have consistently held that "knowledge of the need for medical care" and "an intentional refusal to provide that care" constitutes "deliberate indifference." (Emphasis supplied.) Carswell v. Bay County, 854 F.2d 454, 457 (11th Cir.1988)Ancata v. Prison Health Svcs., 769 F.2d 700, 704 (11th Cir.1985). "But the question whether [certain treatment]—or additional diagnostic techniques or forms of treatment—is indicated is a classic example of a matter for medical judgment. A medical decision not to order [certain treatment or diagnostic tests], or like measures, does not represent cruel and unusual punishment. At most it is medical malpractice, and as such the proper forum is the state court." Estelle, supra at 107, 97 S.Ct. 285.

(2) For plaintiff to recover under 42 USCS § 1983 for a violation of the Eighth Amendment that caused him injury, there must be evidence in the record showing that, in this case, the constitution was actually violated; that the violation was a knowing and intentional act under the color of state action, i.e., the existence of a governmental policy of deliberate indifference; and that such violation proximately caused his injury. Collins v. City of Harker Heights, 503 U.S. 115, 120-124, 112 S.Ct. 1061, 117 L.Ed.2d 261 (1992). A governmental entity, Athens Clarke County, can be held liable for a governmental policy only when there is a constitutional violation and such violation is shown to causally produce the injury; the policy must cause the constitutional violation as the "moving force." Monell v. Dept. of Social Svcs., 436 U.S. 658, 690-694, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). If the government itself is to be held liable, as opposed to holding its employees liable individually, then such liability must arise from a governmental policy of action or inaction that caused the constitutional violation, as well as the injury. Liability cannot be imposed under 42 USCS § 1983 based upon the doctrine of respondeat superior, alone, in any event. "The plaintiff must also demonstrate that, through its deliberate conduct, the municipality was the `moving force' behind the injury alleged. That is, a plaintiff must show that the municipal action was taken with the requisite degree of culpability and must demonstrate a direct causal link between the municipal action and the deprivation of federal rights." (Emphasis in original.) Bryan County v. Brown, 520 U.S. 397, ____, 117 S.Ct. 1382, 1385, 137 L.Ed.2d 626, 639 (1997); Monell, supra at 691-695, 98 S.Ct. 2018. Some employee or agent must intend to act or refuse to act based upon such governmental policy.

The evidence of the mere existence of a policy, alone, that could violate the constitutional rights of the plaintiff if carried into effect is insufficient to establish that a constitutional violation of plaintiff's rights occurred. A causal connection between such policy and plaintiff's injury must be shown by competent evidence. Government does not act or fail to act in a vacuum; its policies are implemented by employees or agents. The evidence in the record must show that such government policy was, in fact, implemented by an employee or agent and that such implementation of the unconstitutional policy did, in fact, cause his injury. Thus, the evidence must...