John Moore, III v. G. Ramos

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 20-13435
Non-Argument Calendar
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D.C. Docket No. 3:17-cv-00503-TJC-PDB
JOHN MOORE, III,
Plaintiff-Appellant,
versus
G. RAMOS,
Medical Doctor,
Defendant-Appellee.
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Appeal from the United States District Court
for the Middle District of Florida
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(July 14, 2021)
Before JORDAN, GRANT, and BLACK, Circuit Judges.
PER CURIAM:
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John Moore, proceeding pro se, appeals the district court’s grant of summary
judgment against him on his 42 U.S.C. § 1983 action for violations of the Eighth
Amendment. Moore contends the district court and magistrate judge erred in
denying his motions for assistance from a law student and his motions for
appointment of counsel, respectively. He further asserts the district court abused
its discretion when it denied his requests for a temporary restraining order (TRO)
against certain prison officials and a preliminary injunction that the Florida
Department of Corrections (FLDOC) allow him to see a specialist at its regional
medical center. He also contends the district court erred in granting Dr. Ramos’s
summary judgment motion because there are genuine issues of material fact as to
the care that Moore received, namely whether Dr. Ramos personally examined
him. After review, we affirm in part and dismiss in part.
I. DISCUSSION
A. Appointment of Counsel
1. Proceedings Before Magistrate Judge
A district judge may designate a magistrate judge to hear certain
non-dispositive pretrial matters pending before the district judge, which includes
motions to appoint counsel. See 28 U.S.C. § 636(b)(1)(A) (providing a list of
exceptions to the general rule that “a judge may designate a magistrate judge to
hear and determine any pretrial matter”). When a non-dispositive pretrial matter is
referred to a magistrate judge, a party “may serve and file objections to the order
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within 14 days after being served with a copy. A party may not assign as error a
defect in the order not timely objected to.” Fed. R. Civ. P. 72(a). When a
magistrate judge rules on a pretrial matter pursuant to § 636(b)(1)(A), “[a]ppeals
from the magistrate’s ruling must be to the district court,” and we lack jurisdiction
to hear appeals “directly from federal magistrates.” United States v. Renfro, 620
F.2d 497, 500 (5th Cir. 1980).1 More recently, we have applied Renfro in cases
where a magistrate judge issues a non-dispositive order, a party fails to object to
the order, and the same party subsequently appeals from the final judgment.
United States v. Schultz, 565 F.3d 1353, 1359-62 (11th Cir. 2009).
We are without jurisdiction to consider Moore’s challenges to the magistrate
judge’s orders denying him counsel. Moore did not appeal either of the magistrate
judge’s orders denying counsel to the district court. Moore’s motion to “Hear and
Rule on Motion of Counsel” dated July 10, 2017, before the issuance of the
magistrate judge’s order denying counsel dated July 18, 2017, could not be a
challenge to the magistrate judge’s order. It is uncontested that the magistrate
judge’s orders denying Moore counsel were non-dispositive of Moore’s case and
because he failed to object to the orders in the district court, we lack jurisdiction to
review them. See Schulz, 565 F.3d at 1359-62; Renfro, 620 F.2d at 500.
1 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), this
Court adopted as binding precedent all decisions of the former Fifth Circuit handed down prior
to close of business on September 30, 1981.
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Accordingly, we dismiss Moore’s appeal to the extent that he challenges the
magistrate judge’s orders denying him counsel.
2. Proceedings Before District Judge
At the time Moore moved for assistance from a law student for the limited
purposes of discovery depositions, the Local Rules for the Middle District of
Florida provided that “[a]n eligible law student . . . may appear and be heard in this
Court on behalf of any person found by the Court to be indigent and who consents
in writing to such appearance.” M.D. Fla. Local R. 2.05(b) (2019). The Local
Rules further provided that
[i]n addition to appearance in Court, . . . [a]n eligible law student may
also engage in the conduct of any informal discovery or investigation
authorized by the supervising attorney; may participate in reviewing
and inspecting discovery materials; and may participate in oral
depositions (provided that the supervising attorney shall be present at
all depositions).
M.D. Fla. Local R. 2.05(c) (2019).
The district court did not abuse its discretion in denying Moore’s request for
a law student’s assistance. See Bass v. Perrin, 170 F.3d 1312, 1319 (11th Cir.
1999) (reviewing the denial of a motion for the appointment of counsel for an
abuse of discretion). Moore’s motions for assistance from a law student do not
identify any eligible law student or a supervising attorney that would have allowed
the law student to conduct depositions. To the extent that Moore challenges the
district court’s denial of his request for law student assistance, we affirm.
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B. TRO/Preliminary Injunction
Dr. Ramos is the lone appellee in the instant case, as the rest of the
defendants were either dismissed or settled with Moore. Moore sought a TRO
against nonparties to the instant appeal, seeking injunctions to receive (1) dental
care from a nerve specialist at the FLDOC’s regional medical center and
(2) physical therapy to restore nerve damage. Because his TRO sought relief from
nonparties to the instant appeal, there is no longer a live controversy to which we
can provide meaningful relief. See Christian Coal. of Fla., Inc. v. United States,
662 F.3d 1182, 1189 (11th Cir. 2011) (explaining our jurisdiction is limited to
cases and controversies and that “[a]n issue is moot when it no longer presents a
live controversy with respect to which the court can give meaningful relief”
(quotations omitted)).
Regarding Moore’s requests for a preliminary injunction, Moore did not
specifically seek relief from Dr. Ramos,2 and as Moore explained to the district
court, he subsequently went to the FLDOC’s regional medical center and received
an outside consult with a doctor who evaluated the condition of his nerve damage.
Thus, he has received the relief that his injunction sought, and superseding events
2 In his requests for injunctions, the only express mentions of Dr. Ramos were references
to Dr. Ramos’s alleged decision not to treat Moore and Moore’s disagreement with Dr. Ramos’s
assessment of the risk of Moore’s injury. Moore does not contend on appeal, nor did he argue in
the district court, that Dr. Ramos had the authority to allow him to see a specialist outside the
FLDOC.
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have rendered his requests regarding this issue moot. See Dow Jones & Co. v.
Kaye, 256 F.3d 1251, 1254 (11th Cir. 2001) (“A claim for injunctive relief may
become moot if,” among other things, “interim relief or events have completely
and irrevocably eradicated the effects of the alleged violations.” (quotations
omitted)). We are, accordingly, without jurisdiction to consider this issue and
dismiss it as moot.
C. Summary Judgment
“The Constitution does not mandate comfortable prisons, but neither
does it permit inhumane ones, and it is now settled that the treatment a
prisoner receives in prison and the conditions under which he is confined are
subject to scrutiny under the Eighth Amendment.” Farmer v. Brennan, 511 U.S.
825, 832 (1994) (citations and quotations omitted). As the Supreme Court stated in
Whitley v. Albers, “[n]ot 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 Eight Amendment.” 475 U.S. 312,
319 (1986) (quotations omitted).
“To show that a prison official acted with deliberate indifference to serious
medical needs, a plaintiff must satisfy both an objective and a subjective inquiry.”
Hoffer v. Sec’y, Fla. Dep’t of Corr., 973 F.3d 1263, 1270 (11th Cir. 2020)
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(quotations omitted). “To meet the first prong, the plaintiff must demonstrate an
objectively serious medical need,” which is a medical need “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,”
and that, “if left unattended, poses a substantial risk of serious harm.” Id.
(quotations omitted). “To satisfy the second, subjective prong, the plaintiff must
prove that the prison officials acted with deliberate indifference to his serious
medical need.” Id. (quotations and alteration omitted). “To establish deliberate
indifference, a plaintiff must demonstrate that the prison officials (1) had
subjective knowledge of a risk of serious harm; (2) disregarded that risk; and
(3) acted with more than gross negligence.” Id. (quotations omitted).
In general, courts are hesitant to conclude that a doctor was deliberately
indifferent when the inmate received medical care. Waldrop v. Evans,
871 F.2d 1030, 1035 (11th Cir. 1989). For example, a difference of opinion
between the prison’s medical staff and a prisoner concerning the proper diagnosis
or course of treatment, even if it amounts to medical malpractice, is insufficient to
support a claim of deliberate indifference. Harris v. Thigpen, 941 F.2d 1495, 1505
(11th Cir. 1991); Waldrop, 871 F.2d at 1033. Nevertheless, an inmate’s medical
treatment may constitute deliberate indifference if it involves “grossly incompetent
medical care or choice of an easier but less efficacious course of treatment.”
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Waldrop, 871 F.2d at 1034-35. A delay in access to medical care that is
“tantamount to unnecessary and wanton infliction of pain” can also constitute
deliberate indifference. Adams v. Poag, 61 F.3d 1537, 1544 (11th Cir. 1995)
(quotations omitted).
The district court did not err in granting summary judgment in favor of Dr.
Ramos. See Am. Bankers Ins. Grp. v. United States, 408 F.3d 1328, 1331 (11th
Cir. 2005) (reviewing the resolution of cross-motions for summary judgment de
novo). The undisputed evidence establishes Dr. Ramos provided medical care to
Moore on the same day Moore presented to the emergency room, and thus, any
argument that Dr. Ramos delayed providing treatment is meritless. Whether Dr.
Ramos personally examined Moore does not create a genuine issue of material fact
because the evidence that both parties presented shows Dr. Ramos reviewed
Moore’s emergency room record and stick figure diagram documenting his injuries
when rendering Moore’s treatment. Further, Moore does not dispute that Dr.
Ramos ordered an x-ray and prescribed pain medication for Moore on the date that
Moore presented to the emergency room. Whether other prison officials besides
Dr. Ramos withheld Dr. Ramos’s prescribed medication does not speak to whether
Dr. Ramos was deliberately indifferent to his medical needs when treating him.
Whether Dr. Ramos provided follow-up care to Moore does not implicate
the Eighth Amendment because the results of Moore’s x-ray do not indicate that
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Moore suffered from any fractures and further establishes that Moore’s results
were “clear” and “unremarkable.” The results of his x-ray do not provide any sort
of diagnosis from a physician that mandates further treatment. For this same
reason, Moore’s argument that the x-ray stated that if a fracture was suspected, CT
was recommended is meritless, as the doctor who reviewed Moore’s x-ray stated
there was no fracture. Thus, Moore fails to establish either an objectively serious
medical need that poses a substantial risk of serious harm or Dr. Ramos’s
subjective knowledge of such a risk. See Hoffer, 973 F.3d at 1270.
The undisputed facts demonstrate that Dr. Ramos provided a course of
treatment to Moore, and even if Dr. Ramos were mistaken about the extent of
Moore’s injury—in light of the course of treatment provided—Dr. Ramos did not
disregard any potential risk of serious harm, let alone was he more than grossly
negligent in doing so. See id. Moore’s claims, essentially, constitute a difference
in medical opinion as to his diagnosis. See Harris, 941 F.2d at 1505; Waldrop, 871
F.2d at 1033. Accordingly, we affirm the district court’s grant of summary
judgment in favor of Dr. Ramos.
II. CONCLUSION
We lack jurisdiction over the magistrate judge’s orders denying Moore
appointment of counsel. We affirm the district court’s denial of Moore’s motions
for appearance by a law student. We lack jurisdiction over Moore’s requests for a
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TRO and preliminary injunctions. We affirm the district court’s grant of summary
judgment in favor of Dr. Ramos.
AFFIRMED IN PART, DISMISSED IN PART.
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