FOSTER v. WARD et al

143IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
JOHN M. FOSTER, 	:
:
Plaintiff, 	:
:
v. 	: 	Case No. 5:23-cv-143-TES-CHW
:
COMMISSIONER TIMOTHY C 	: 	Proceedings Under 42 U.S.C. § 1983
WARD, et al., 	: 	Before the U.S. Magistrate Judge
:
Defendants. 	:
________________________________ 	:
REPORT AND RECOMMENDATION
Before the Court is a motion for summary judgment filed by Defendant Cliett. (Doc. 122).
Plaintiff has responded and contests the motion. (Doc. 130). As discussed below, the undisputed
facts show that Defendant Cliett was not deliberately indifferent to Plaintiff’s serious medical need.
It is therefore RECOMMENDED that the motion for summary judgment (Doc. 122) be
GRANTED.
BACKGROUND
In this Section 1983 lawsuit, John Foster, a pro se inmate, sued several prison staff
members and medical providers at Washington State Prison. (Doc. 1). He later amended and recast
his complaint. (Docs. 8, 10). Following screening of Plaintiff’s operative recast complaint (Doc.
10), claims against Defendants Taylor, Ward, and Jackson were permitted to move forward for
deliberate indifference in failing to provide Plaintiff with a bottom bunk profile and then, later,
failing to adhere to the bottom bunk profile. (Docs. 15, 21). Plaintiff was also allowed to proceed
on a retaliation claim against Defendants Ward and Jackson for threatening Plaintiff because he
filed grievances about his bottom bunk profile. (Id.). Additional claims against Defendants Taylor
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and Connect Care/Wellpath were also allowed to proceed. (Id.) All other claims were dismissed.
(Id.) Following the initial screening of Plaintiff’s claims, Plaintiff attempted to amend and
supplement his complaint many times. (Docs. 50, 55, 62, 66, 69, 76, 81, 105). Plaintiff was
permitted to add a deliberate indifference claim against Defendants Cliett and Wellpath, but his
other attempts to amend have been denied. See (Docs. 61, 68, 76, 88, 110).
Defendants Ward and Jackson previously moved for and were granted summary judgment.
(Docs. 71, 115, 121). Pursuant to an automatic stay order from the Bankruptcy Court for the
Southern District of Texas (Doc. 107-2), the case was stayed as to Defendants Taylor and
Wellpath. (Doc. 110). The automatic stay has since been lifted by the bankruptcy court. Following
a recent hearing in this Court, the stay here was lifted as to Defendant Taylor but remains in place
as to Wellpath. See (Doc. 166).
RELEVANT FACTS
Plaintiff’s claims in this case arise from his treatment at Washington State Prison (“WSP”),
where he was housed from November 2021 until November 2023, before being transferred to
Dooly State Prison. (Docs. 10; 50). The claim specifically related to Defendant Cliett stems from
a short time frame in September 2023, during which Cliett served as the manager of the WSP
medical unit, when Plaintiff alleged that Cliett prevented him from receiving medical care for
shingles. (Doc. 50; Doc. 122-2, ¶ 4; Doc. 122-4, ¶¶ 1-2). As unit manager, Cliett was in charge of
security of the medical unit and an employee of the Georgia Department of Corrections. (Doc.
122-2, ¶¶ 2, 5). She is not a medical professional, has no medical training, and did not supervise
the medical staff. (Doc. 122-1, p. 45; Doc. 122-2 ¶ 5).
On September 9, 2023,1 Plaintiff woke up with spots on his face and blisters on his eye lid.
1 In his response to Cliett’s motion, Plaintiff argues that Cliett had notice as early as September 8, 2023,
because other staff members called her about Plaintiff’s condition and because Plaintiff saw Cliett and
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(Doc. 50-2, ¶ 1). He showed the blisters to a nurse, but she made no comment about them. (Id.)
The next day, the blisters were worse and covered more of Plaintiff’s face. (Id., ¶ 2). When Plaintiff
showed the nurse his face at pill call, she told him to put in a sick call request, which he did on
September 11, 2023,2 a Monday. (Doc. 122-4, ¶¶ 7-8). During the afternoon pill call on September
11, Plaintiff again showed the blisters on his face to the nurses, but the nurses did not offer
treatment. (Id., ¶ 9). The parties dispute what happened next. Plaintiff alleges that Cliett threatened
him before making him leave the medical unit. (Id., ¶ 13). In his deposition, Plaintiff stated that
Cliett told him to stop talking to the nurses and said, “just get your pill and leave.” (Doc. 122-1, p.
38). Cliett recalled that Plaintiff was made to leave the medical unit because he was belligerent
after being told how to properly seek medical treatment. (Doc. 122-4, ¶ 14). Plaintiff denies that
he was “hollering and screaming,” and insists that the nurses were “cussing” him. (Id., ¶ 15). While
Cliett does not recall seeing blisters on Plaintiff’s face, she explained that the nursing staff did not
tell her that Plaintiff needed immediate medical treatment. (Id., ¶¶ 11-12).
Upon leaving the medical unit, Plaintiff filed a grievance about not receiving medical
treatment. (Id., ¶¶ 16-17). He did not mention Cliett in the grievance. (Id., ¶ 18). Plaintiff explained
that he did not specifically name Cliett so as not to violate the grievance policy, which only allows
for one issue per grievance and two active grievances at one time. (Doc. 130, p. 2-3). Prior records
nurses at pill call later that day. See (Doc. 130, p. 2, 5). This date is supported nowhere else in the record.
Instead, Plaintiff’s amended complaint (Doc. 50-2, ¶ 3) and declaration in support of his response to the
motion of summary judgment (Doc. 130-2, ¶ 4) state that Plaintiff’s first interaction with Cliett was on
September 11, 2023. Plaintiff’s deposition testimony was less specific as to dates, but he described the
events relating to his claims as taking place over a 72-hour period and stated that he saw Cliett two times –
September 11 pill call and next morning – before finally receiving treatment later on September 12, 2023.
(Doc. 122-1, p. 26-27, 35-36).
2 Plaintiff describes Monday, September 11, 2023, as a holiday (Doc. 50-2, ¶ 3), but no official holiday for
September 11 has been declared on the state or federal levels. 5 U.S.C. § 6103; O.C.G.A. § 1-4-1.
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in this case confirm that explanation.3 Plaintiff explained that while he was completing the
grievance form, former defendant Deputy Warden Jackson saw Plaintiff’s face, opined that he had
shingles, and asked him if he had visited medical. (Doc. 122-1, p. 45-47).
When Plaintiff reported to work on September 12, 2023, his detail officers sent him to the
medical unit. (Doc. 50-2, ¶ 5). Plaintiff asserts that Cliett met him at the door, yelled at him for
getting other officers involved, and turned him away. (Id.). Plaintiff encountered a captain on his
way back to his detail, and the captain facilitated Plaintiff being seen by providers that day. (Id.;
Doc. 122-1, p. 29).
When Plaintiff was seen by the medical unit on September 12, 2023, Plaintiff stated that
the provider expressed dismay that he had not been seen sooner. (Doc. 50-2, ¶ 5; Doc. 130-1, ¶ 7).
He was diagnosed with shingles, prescribed acyclovir, and recommended to see an eye doctor.
(Doc. 50-2, ¶ 5; Doc. 122-1, p. 26-28). Plaintiff testified that he believes that Cliett kept him from
receiving treatment and that she should have used her discretion in her role as unit manager to
address an emergency and have him treated sooner. (Doc. 122-1, p. 21-22, 36-41, 44-45). If Cliett
had gotten Plaintiff treatment sooner, Plaintiff believes that his shingles would not have progressed
as quickly or as badly as it did. (Id.; (Doc. 122-4, ¶ 25). Plaintiff describes the condition as painful
and attributes his change of vision to the shingles infection. (Doc. 50-2, ¶ 5; Doc. 122-1, p. 31,
33-35). Plaintiff believes his medical records support these health changes, but he admitted at his
deposition that he does not have a medical expert to support these claims. (Doc. 122-4, ¶ 26; Doc.
130-1, ¶¶ 13-14).
3 When Plaintiff filed the grievance on September 11, 2023, he had an open grievance that was filed on
August 28, 2023, and not resolved until October 12, 2023. See (Doc. 89-1, p. 1); see also (Doc. 130-2, p.
1).
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SUMMARY JUDGMENT STANDARD
Pursuant to Rule 56 of the Federal Rules of Civil Procedure, summary judgment is proper
“if the movant shows that there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The party moving for summary
judgment bears the burden of informing the Court of the basis for its motion, and of citing “the
pleadings, depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any,” that support summary judgment. Celotex Corp. v. Catrett, 477 U.S. 317, 322–
24 (1986). In resolving motions for summary judgment, the Court must view the evidence in the
light most favorable to the non-moving party. Tolan v. Cotton, 572 U.S. 650, 656-657 (2014).
Plaintiff responded to the motion for summary judgment but failed to rebut the Defendant’s
statement of undisputed material facts, triggering consequences under both the Federal Rules of
Civil Procedure and this Court’s Local Rules. Federal Rule of Civil Procedure 56(e)(2) provides
that if a party “fails to properly address another party’s assertion of fact as required by Rule 56(c),”
then the Court may “consider the fact undisputed for purposes of the motion.” Rule 56(e)(2). This
Court’s Local Rule 56 similarly provides: “All material facts contained in the movant’s statement
which are not specifically controverted by specific citation to particular parts of materials in the
record shall be deemed to have been admitted, unless otherwise inappropriate.” MDGA Local Rule
56. Finally, Federal Rule of Civil Procedure 56(e)(3) provides that the Court may “grant summary
judgment if the motion and supporting materials—including the facts considered undisputed—
show that the movant is entitled to” summary judgment. Rule 56(e)(3). See also Urdaneta v. Wells
Fargo Bank, N.A., 734 F. App’x 701, 704 (11th Cir. 2018). Because Defendant properly supported
her factual assertions with specific citations to the record, and because Plaintiff did not specifically
respond to them, the Defendant’s facts may be accepted by the Court as undisputed.
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ANALYSIS
1. 	Qualified Immunity
Defendant asserts that she is protected from suit under qualified immunity because Plaintiff
cannot establish his medical deliberate indifference claim. When considering if summary judgment
is appropriate based on qualified immunity, the Court “[draws] all inferences and [views] all of the
evidence in the light most favorable to the nonmoving party.” Jones v. Michael, 656 F. App'x 923,
925 (11th Cir. 2016) (internal quotations omitted). Qualified immunity “protects government
officials from liability for civil damages insofar as their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable person would have known.” Pearson v.
Callahan, 555 U.S. 223, 231 (2009) (internal quotations omitted). Defendant “cannot obtain
qualified immunity unless [she] establishes [she] was acting within [her] discretionary authority.”
Underwood v. City of Bessemer, 11 F.4th 1317, 1328 (11th Cir. 2021). It is undisputed that the
decisions regarding prison administration, including security of the medical care unit, fall within
Defendant’s discretionary authority. See, e.g., Goebert v. Lee Cty., 510 F.3d 1312, 1329 (11th Cir.
2007); see also, e.g., (Doc. 122-1, p. 36-37) (Plaintiff explaining that one of his chief complaints
is that Defendant did not use her discretion to allow him into the medical unit).
Once action under discretionary authority has been established, “the burden shifts to the
plaintiff, who must show the [defendant is] not entitled to qualified immunity.” Underwood, 11
F.4th at 1328. “At this stage, [the Court asks] two questions: (1) ‘whether the facts that a plaintiff
has alleged or shown make out a violation of a constitutional right,” and (2) if so, ‘whether the
right at issue was ‘clearly established’ at the time of the defendant’s alleged misconduct.’” Id. at
1328 (quoting Pearson, 555 U.S. at 231, 232). Both must be present to for a plaintiff to prevail.
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Id. Defendant is entitled to qualified immunity in this case, where the record shows that Plaintiff
cannot establish that Defendant violated his constitutional rights.
A. Plaintiff’s medical deliberate indifference claim against Defendant Cliett
Deliberate 	indifference 	to 	an 	inmate’s 	serious 	medical 	needs 	violates 	the 	Eighth
Amendment as it constitutes the unnecessary and wanton infliction of pain. Estelle v. Gamble, 429
U.S. 97, 105 (1976). “The knowledge of the need for medical care and intentional refusal to
provide that care has consistently been held to surpass negligence and constitute deliberate
indifference.” Ancata v. Prison Health Servs., Inc., 769 F.2d 700, 704 (11th Cir. 1985). To establish
a claim of deliberate indifference to a serious medical need, a prisoner must show: (1) that he had
a serious medical need, (2) that a defendant acted with deliberate indifference to that need, and (3)
that his injury was caused by the defendant’s wrongful conduct. Goebert v. Lee Cnty., 510 F.3d
1312, 1326 (11th Cir. 2007).
“To show that a prison official acted with deliberate indifference to serious medical needs,
a plaintiff must satisfy both an objective and subjective inquiry.” Farrow v. West, 320 F.3d 1235,
1243 (11th Cir. 2003) (citation omitted). Specifically, the prisoner must show he suffered an
objectively, sufficiently serious deprivation. Wade v. McDade, 106 F.4th 1251, 1262 (11th Cir.
2024) (citing Farmer v. Brennan, 511 U.S. 825, 834 (1994)). To satisfy the objective component
of deliberate indifference, a prisoner must demonstrate that his medical need “has been diagnosed
by a physician as mandating treatment . . . or is so obvious that even a lay person would easily
recognize the necessity for a doctor’s attention.” Goebert, 510 F.3d at 1326. “A serious medical
need can also be determined by ‘whether a delay in treatment exacerbated the medical need or
caused additional complications.’” Taylor v. Hughes, 920 F.3d 729, 733 (11th Cir. 2019).
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To satisfy the subjective inquiry, “a deliberate-indifference plaintiff must prove that the
defendant acted with subjective recklessness as used in the criminal law, . . . [and] in order to do
so, the plaintiff must show that the defendant was subjectively aware that [her] own conduct put
the plaintiff at substantial risk of serious harm.” Wade, 106 F.4th at 1255 (internal quotations and
citation omitted).4 The “plaintiff must show that the defendant official was subjectively aware that
[her] own conduct—again, [her] own actions or inactions—put the plaintiff at substantial risk of
serious harm.” Id. at 1258. Even if the risk was known, a defendant may still not be found liable,
so long as [she] acted reasonably. Id. at 1255 (citing Farmer, 511 U.S. at 844, 837).
Plaintiff claims Defendant Cliett was deliberately indifferent by failing to facilitate and
ensure that he received immediate treatment for an active and obviously progressing shingles
infection on his face. See (Doc. 61). In his deposition, Plaintiff explained that Defendant saw his
face at pill call on September 11, 2023, but made him leave the medical unit and then refused to
use her discretion to let him into the medical unit for treatment on September 12, 2023, until a
captain finally ensured Plaintiff received treatment that same day. See generally (Doc. 122-1). The
record, even when construed in Plaintiff’s favor as the non-movant, shows that Defendant was not
deliberately indifferent to a serious medical need through any delay of treatment. Even if record
showed that Defendant acted with deliberate indifference, there is nothing in the record to establish
that Cliett caused an injury to Plaintiff.
For purposes of the motion, Plaintiff’s shingles infection constitutes a serious medical need
and the infection was as noticeably serious as Plaintiff described.5 Even in accepting that Plaintiff’s
4 Wade settled an intra-circuit split between whether a defendant must act with “more than mere negligence”
or “more than gross negligence,” but clarified that the appropriate standard was “subjective recklessness as
used in criminal law.” Wade, 106 F.4th 1251.
5 Plaintiff has previously requested to wait to decide Defendant Cliett’s motion for summary judgment until
he receives copies of his medical records from Defendants Taylor and Wellpath. See, e.g., (Docs. 133, 141,
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shingles amounted to an objectively serious medical need, the record before the Court fails to
create a genuine issue of material facts as to whether Defendant Cliett acted with the necessary
subjective recklessness to show deliberate indifference, because there is no evidence that Cliett
was subjectively aware that her own conduct put Plaintiff at substantial risk of serious harm. Wade,
106 F.4th at 1255. Plaintiff argues that there is no way that Defendant Cliett failed to see and
appreciate how serious his need for medical treatment was when she threatened him and made him
leave the medical unit at pill call on September 11, 2023, and again when she refused to allow him
into the unit on September 12, 2023. Defendant Cliett does not recall seeing blisters on Plaintiff’s
face but admits that she directed him to leave the medical unit on September 11, 2023, after he
became irate about directives regarding how to obtain medical care. (Doc. 122-2, ¶ 9-10, 13). It is
undisputed that no medical staff told Cliett that Plaintiff needed immediate medical care during
the pill call. (Id., ¶ 12). She likewise does not recall preventing Plaintiff from seeing a medical
professional on September 12, 2023. (Id., ¶ 11). Because there is a factual dispute about the nature
of these interactions, the Court accepts Plaintiff’s version as true for purposes of the summary
judgment motion. Nevertheless, Plaintiff’s version does not demonstrate the necessary subjective
awareness that the deliberate indifference standard requires.
Instead, Plaintiff’s version of the facts demonstrates that Defendant Cliett’s response was
reasonable under the circumstances and falls far from the necessary criminal recklessness standard
contemplated by Wade. Plaintiff stated that he was told to submit a sick call request prior to
148). He argues that the records will support or prove his claim. The Court has denied Plaintiff’s request to
stay the consideration of the motion, and there is no reason to wait to consider Defendant Cliett’s motion
for summary judgment. In the absence of medical records or other competent evidence otherwise, any
disputed facts about his condition have been construed in Plaintiff’s favor. Therefore, this recommendation
accepts that Plaintiff had an active, obvious, progressing shingles infection on his face and that following
the infection his vision changes required a new eyeglasses prescription.
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Defendant Cliett’s seeing him on September 11. Plaintiff testified that he submitted a sick call
request. When Plaintiff appeared at the September 11 afternoon pill call, staff members again told
Plaintiff to submit a sick call request instead of treating him. Plaintiff, frustrated by the lack of
treatment, submitted a grievance after pill call. This order of events supports Cliett’s explanation
that on September 11, 2023, no medical staff at pill call told Cliett that Plaintiff needed immediate
care or that he should bypass the normal sick call process. Otherwise, Plaintiff would not have
needed to file the grievance. Under this scenario, Defendant Cliett who had no medical training or
supervision over medical staff, cannot be said to have had the requisite subjective awareness to act
with criminal recklessness by not overriding the medical staff’s assessment of Plaintiff’s need for
treatment.6 Instead, it was reasonable for someone in Cliett’s position to rely on medical staff about
the need for and timing of treatment. Cliett’s actions, even when construed in Plaintiff’s favor, are
insufficient to show that she consciously disregarded a substantial risk that her conduct would
cause Plaintiff harm. See Wade, 106 F.4th at 1261.
Plaintiff also argues that his condition had worsened by September 12, 2023, when he
reported to work duty and was immediately sent to medical. Although Plaintiff had been sent to
medical by other staff members and Cliett was allegedly notified that Plaintiff needed treatment,
Cliett refused to allow him into medical. Plaintiff testified that only when a captain escorted him
to the medical unit was he able to be seen on September 12, 2023. He again argues that Cliett could
6 This factor alone could possibly be dispositive of Plaintiff’s claim. Since the parties briefed the motion
for summary judgment, the Eleventh Circuit has held “that a nonmedical jail officer cannot be found liable
for deliberate indifference when he or she reasonable relies on the advice or opinion of a medical
professional.” Wingo v. WellStar Health System, Inc., 160 F.4th 1184, 1187 (11th Cir. 2025) (finding that
it was reasonable for the nonmedical officers to rely on a nurse’s misdiagnosis of the inmate’s perforated
ulcer). To the extent this case does not involve the same level of medical and nonmedical staff interaction
about Plaintiff’s condition and because the parties have not had the opportunity to brief Wingo, this
recommendation fully considers the deliberate indifference standard without considering Wingo to be
dispositive.
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have used her discretion as Medical Unit Manager to let him into medical, even if the waiting area
was at capacity, because of his serious medical condition. Defendant Cliett does not recall
preventing Plaintiff from entering the medical unit or receiving treatment on September 12. The
Court must accept Plaintiff’s version of this interaction as true for purposes of the motion.
However, for the reasons discussed above, this interaction also fails to show that Cliett acted with
requisite criminal recklessness that the deliberate indifference standard requires.
Even if the Court found that Defendant Cliett acted with deliberate indifference to
Plaintiff’s shingles, Plaintiff’s claim would still fail because the record is devoid of any evidence
to establish a causal connection between Defendant Cliett’s conduct and any alleged injury. At
most, Defendant Cliett delayed the commencement of treatment by one day. Plaintiff would need
to show that this relatively short initial delay in treatment exacerbated his symptoms and caused
additional complications. Plaintiff admits that he has no expert tying any injury to delayed
treatment of his shingles, which is necessary at this stage in the proceedings. See, e.g., (Doc. 122-
1, p. 41); see also King v. Lawson, 2024 WL 3355179 (11th Cir. 2024) (“…[I]n order to defeat
summary judgment on his deliberate indifference claim, [Plaintiff] needed to ‘place verifying
medical evidence in the record to establish the detrimental effect of [the] delay in medical
treatment.’”); Wingo, 160 F.4th at 1192 (“When the issue of causation presents a medical question
outside a layperson’s ordinary experience, expert testimony is necessary for [a 1983 claim].”) Even
accepting Plaintiff’s testimony that he experienced additional pain and that his vision worsened,
there is nothing in the record to connect Cliett’s conduct to these complications or injuries.
CONCLUSION
Because Plaintiff cannot establish that Defendant Cliett acted with deliberate indifference
to a serious medical need or that any delay in treatment caused by Cliett’s alleged deliberate
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indifference resulted in damages, Defendant is entitled to qualified immunity and judgment as a
matter of law. It is therefore RECOMMENDED that Defendant’s motion for summary judgment
(Doc. 122) be GRANTED.
OBJECTIONS
Pursuant to 28 U.S.C. § 636(b)(1), the parties may serve and file written objections to this
Recommendation, or seek an extension of time to file objections, WITHIN FOURTEEN (14)
DAYS after being served with a copy thereof. Any objection is limited in length to TWENTY
(20) PAGES. See M.D. Ga. L.R. 7.4. The District Judge shall make a de novo determination of
those portions of the Recommendation to which objection is made. All other portions of the
Recommendation may be reviewed for clear error.
The parties are further notified that, pursuant to Eleventh Circuit Rule 3-1, “[a] party failing
to object to a magistrate judge’s findings or recommendations contained in a report and
recommendation in accordance with the provisions of 28 U.S.C. § 636(b)(1) waives the right to
challenge on appeal the district court’s order based on unobjected-to factual and legal conclusions
if the party was informed of the time period for objecting and the consequences on appeal for
failing to object. In the absence of a proper objection, however, the court may review on appeal
for plain error if necessary in the interests of justice.”
SO RECOMMENDED, this 14th day of January, 2026.
s/ Charles H. Weigle
Charles H. Weigle
United States Magistrate Judge
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