Billy Packer v. Jacques Lamour

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-10022
Non-Argument Calendar
____________________
BILLY PACKER,
Plaintiff-Appellant,
versus
JACQUES LAMOUR,
Medical Director,
Defendant- Appellee.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 2:18-cv-00473-SPC-MRM
____________________
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2 Opinion of the Court 21-10022
Before WILSON, ROSENBAUM , and L AGOA , Circuit Judges.
PER CURIAM:
Billy Packer, a detainee at the Florida Civil Commitment
Center (“FCCC”) who is proceeding
pro se, appeals the district
court’s resolution of cross-motions for summary judgment in his
action alleging deliberate indifference to his serious medical needs
and medical malpractice. He argues that the district court erred in
granting summary judgment in favor of medical director Dr.
Jacques Lamour on his deliberate indifference claim. For the rea-
sons stated below, we affirm.
I.
We review a district court’s disposition of cross-motions for
summary judgment
de novo, viewing all evidence, as to each mo-
tion, in the light most favorable to the non-moving party.
Am.
Bankers Ins. Group. v. United States, 408 F.3d 1328, 1331 (11th Cir.
2005). Summary judgment is appropriate if the movant can estab-
lish that there is no genuine issue of material fact and that he is
entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). A
district court cannot base entry of summary judgment on the mere
fact that the motion was unopposed but, rather, must consider the
merits of the motion, including whether the motion is supported
by evidence.
See United States v. One Piece of Real Prop. Located
at 5800 SW 74th Ave., Mia., Fla., 363 F.3d 1099, 1101 (11th Cir.
2004).
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21-10022 Opinion of the Court 3
Although
pro se pleadings are liberally construed, “a pro se
litigant does not escape the essential burden under summary judg-
ment standards of establishing that there is a genuine issue as to a
fact material to his case in order to avert summary judgment.”
Brown v. Crawford, 906 F.2d 667, 670 (11th Cir. 1990). The non-
moving party may not rely solely on the pleadings to defeat a mo-
tion for summary judgment, but rather must rely on affidavits, dep-
ositions, answers to interrogatories, and admissions to show that
there are specific facts demonstrating that there is a genuine issue
for trial.
Id. “Conclusory allegations and speculation are insuffi-
cient to create a genuine issue of material fact.”
Valderrama v.
Rousseau, 780 F.3d 1108, 1112 (11th Cir. 2015).
II.
When a convicted prisoner alleges that officials acted with
deliberate indifference to his serious medical need, he proceeds un-
der the Cruel and Unusual Punishment Clause of the Eighth
Amendment.
Gilmore v. Hodges, 738 F.3d 266, 271 (11th Cir.
2013). However, a civilly committed detainee brings such a claim
under the Due Process Clause of the Fourteenth Amendment,
which promises that no State shall “deprive any person of life, lib-
erty, or property, without due process of law.”
See U.S. Const.
amend. XIV, § 1;
Bilal v. Geo Care, LLC, 981 F.3d 903, 911 (11th
Cir. 2020). Detainees who have been involuntarily civilly commit-
ted are due a higher standard of care than prisoners because the
conditions of confinement for the criminally committed are de-
signed to punish, while those of the civilly committed are not.
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4 Opinion of the Court 21-10022
Bilal, 981 F.3d
. at 912. Accordingly, Fourteenth Amendment sub-
stantive-due-process rights are at least equivalent to the compara-
ble Eighth Amendment rights of those incarcerated, and thus, “rel-
evant case law in the Eighth Amendment context also serves to set
forth the contours of the due process rights of the civilly commit-
ted.”
Id. at 915 (quoting
Dolihite v. Maughon, 74 F.3d 1027, 1041
(11th Cir. 1996))).
To prevail on a claim of deliberate indifference to a serious
medical need in violation of the Fourteenth Amendment, the plain-
tiff must show: “(1) a serious medical need; (2) the defendant’s de-
liberate indifference to that need; and (3) causation between that
indifference and the plaintiff’s injury.”
Youmans v. Gagnon, 626
F.3d 557, 563 (11th Cir. 2010) (alteration accepted) (quoting
Mann
v. Taser Int’l, Inc., 588 F.3d 1291, 1306–07 (11th Cir. 2009)). “This
analysis contains both an objective and a subjective component.”
Gilmore, 738 F.3d at 274. The “plaintiff must first show an objec-
tively serious medical need that, if unattended, posed a substantial
risk of serious harm, and that the official's response to that need
was objectively insufficient.”
Id. A serious medical need is “one
that has been diagnosed by a physician as mandating treatment or
one that is so obvious that even a lay person would easily recognize
the necessity for a doctor’s attention.”
Id. (quoting
Youmans, 626
F.3d at 564). Then, “the plaintiff must establish that the official
acted with deliberate indifference.”
Id. To prove that an official
acted with deliberate indifference, the plaintiff must show that the
official (1) had subjective knowledge of a risk of serious harm,
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21-10022 Opinion of the Court 5
(2) disregarded the risk, and (3) displayed conduct beyond mere
negligence.
Id.
Deliberate indifference to serious medical needs can include
“(1) grossly inadequate care; (2) a decision to take an easier but less
efficacious course of treatment; and (3) medical care that is so cur-
sory as to amount to no treatment at all.”
Melton v. Abston, 841
F.3d 1207, 1223 (11th Cir. 2016). Courts are hesitant to conclude
that a doctor was deliberately indifferent when the plaintiff re-
ceived medical care.
Waldrop v. Evans, 871 F.2d 1030, 1035 (11th
Cir. 1989). A mere difference in medical opinion does not consti-
tute deliberate indifference.
Id. at 1033. We have also held that
although a prisoner may have desired different modes of treat-
ment, the care provided, which consisted of multiple infirmary vis-
its and prescribed treatments, did not amount to deliberate indif-
ference.
Hamm v. DeKalb County, 774 F.2d 1567, 1575 (11th Cir.
1985).
While a delay in medical care that is “tantamount to ‘unnec-
essary and wanton infliction of pain’” can constitute deliberate in-
difference,
Adam v. Poag, 61 F.3d 1537, 1543 (11th Cir. 1995) (quot-
ing
Brown v. Hughes, 894 F.2d 1533, 1537 (11th Cir. 1990))), a mat-
ter of medical judgment does not represent deliberate indifference,
Estelle v. Gamble, 429 U.S. 97, 107 (1976). Deliberate indifference
in the form of an unreasonable delay is cognizable when officials
delay treatment for life-threatening emergencies, but also in “situ-
ations where it is apparent that delay would detrimentally exacer-
bate the medical problem.”
Hill v. Dekalb Reg’l Youth Det. Ctr.,
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6 Opinion of the Court 21-10022
40 F.3d 1176, 1187 (11th Cir. 1994),
abrogated on other grounds by
Hope v. Pelzer, 536 U.S. 730 (2002). Ultimately, however, a plain-
tiff “who complains that delay in medical treatment rose to a con-
stitutional violation must place verifying medical evidence in the
record to establish the detrimental effect of delay in medical treat-
ment to succeed.”
Id.
For example, in
Gilmore, we held that substantial hearing
loss that can be remedied by a hearing aid can present an objec-
tively serious medical need.
Id. at 276. Nevertheless, we cautioned
that not all hearing loss amounts to a serious medical condition and
noted that if a detainee could carry on a normal conversation and
hear and follow directions without the use of a hearing aid, his im-
pairment likely would not constitute a serious medical need.
Id. at
276–77. We also noted that, even if a detainee has substantial hear-
ing loss that could be remedied with a hearing aid, if an official were
unaware of the detainee’s condition or its extent, he could not be
found to have acted with deliberate indifference.
Id. at 277.
In
Youngberg v. Romeo, the Supreme Court recognized
that people “who have been involuntarily committed are entitled
to more considerate treatment and conditions of confinement than
criminals whose conditions of confinement are designed to pun-
ish,” while emphasizing that “courts must show deference to the
judgment exercised by a qualified professional.” 457 U.S. 307, 321–
22 (1982). The Court limited judicial review of challenges to con-
ditions in state institutions, noting that there was no reason to think
that courts were more qualified than the appropriate professionals
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21-10022 Opinion of the Court 7
in making decisions about the internal operations of such institu-
tions and, thus, held that decisions made by professionals were pre-
sumptively valid.
Id. at 322–23.
Here, the district court did not err in granting summary
judgment in favor of Lamour as to Packer’s Fourteenth Amend-
ment claim because Packer failed to show that there was a genuine
issue of material fact. First, Packer failed to respond to Lamour’s
motion for summary judgment, despite a court order advising him
that failure to do so would signify that he did not oppose the mo-
tion and cause him to admit any properly supported facts submit-
ted by Lamour and that he could not rely solely on allegations in
his complaint to oppose that motion.
Second, Packer failed to establish a genuine issue as to
whether the hearing loss in his right ear was a serious medical need.
While the record shows that an audiologist diagnosed Packer with
profound hearing loss in the left ear and moderate hearing loss in
the right and recommended hearing aids for both ears, not all hear-
ing loss amounts to a serious medical condition.
See Gilmore, 738
F.3d at 274. Even though Packer alleged that his hearing loss af-
fected his communications with residents and staff and led to alter-
cations with both, he did not file any evidence supporting those
allegations, beyond a resident communication form he filed in
April 2018 requesting a second hearing aid be ordered, and his
“[c]onclusory allegations and speculation [we]re insufficient to cre-
ate a genuine issue of material fact.”
See Valderrama, 780 F.3d at
1112.
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8 Opinion of the Court 21-10022
Even assuming there was a genuine issue as to whether
Packer’s need for a second hearing aid was a serious medical need,
there was not a genuine issue as to whether Lamour was deliber-
ately indifferent to that need. First, the undisputed facts show that
Packer received medical care in the form of numerous visits with
medical professionals at FCCC and with an audiologist for over
three years, as well as the left hearing aid and a pocket talker.
See
Waldrop, 871 F.2d at 1035 . While Foster recommended both hear-
ing aids and Lamour thought Packer needed only one, a difference
in medical opinion does not constitute deliberate indifference.
See
id. at 1033. And while Packer disagreed with Lamour’s medical
decisions, the care that Lamour provided by ordering one hearing
aid and a pocket talker, as well as the numerous visits regarding the
functioning of Packer’s hearing aid, did not amount to more than
negligent conduct.
See Hamm, 774 F.2d at 1575. Furthermore, as
a professional making decisions at the FCCC, Lamour’s opinion
was presumptively valid and entitled to judicial deference.
See
Youngberg, 457 U.S. at 321–23.
Finally, Packer failed to argue on appeal that the district
court erred in dismissing his state-law medical malpractice claim
and has thus abandoned the issue.
See Timson v. Sampson, 518
F.3d 870, 874 (11th Cir. 2008) (holding that, while
pro se pleadings
must be liberally construed, “issues not briefed on appeal by a
pro
se litigant are deemed abandoned”).
In sum, the district court did not err in granting summary
judgment for Lamour, dismissing Packer’s deliberate indifference
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21-10022 Opinion of the Court 9
claim with prejudice, and dismissing Packer’s state-law medical
malpractice claim without prejudice. We therefore affirm.
AFFIRMED.
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21-10022 R OSENBAUM , J., Concurring 1
R OSENBAUM , Circuit Judge, Concurring:
I concur in the judgment but write separately because I
would not conclude that Packer failed to establish a genuine issue
about whether his hearing loss in his right ear was a serious medical
need. As the Majority Opinion notes, the audiologist to whom the
prison sent Packer diagnosed Packer with moderate hearing loss in
his right ear and concluded that Packer “NEED[ed]” a hearing aid
for that ear. In my view, at the very least, that creates a material
issue of fact about whether Packer’s right-ear hearing loss was a
serious medical condition.
Not only that, but Packer explained that, without the right-
ear hearing aid, he can’t engage in “proper communication,” so his
“communication with the staff, and residents proceed[s] to turn
into altercations.” This only adds to why a material issue of fact
exists concerning whether Packer’s right-ear hearing loss was a se-
rious medical condition.
That said, though, I agree with the Majority Opinion that,
even assuming a genuine issue of fact about whether Packer’s right-
ear hearing loss was a serious medical condition, under our prece-
dent, there is no genuine issue of fact about whether Lamour was
deliberately indifferent to that need. That is so because Packer re-
ceived medical care in the form of several visits to medical profes-
sionals at FCCC and with an audiologist for over three years, as
well as the left hearing aid and a pocket talker. A pocket talker uses
headphones to amplify sound closest to the listener while reducing
background noise. So the record reflects that Lamour was and
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2 R OSENBAUM , J., Concurring 21-10022
continued to be responsive to Packer’s needs. And as the Majority
Opinion notes, Lamour’s difference in opinion with the audiologist
over the best way to address Packer’s less severe right-ear hearing
loss, without more, does not satisfy the standard of deliberate in-
difference.
For these reasons, I concur.
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