[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-11911 ELEVENTH CIRCUIT
NOVEMBER 17, 2010
Non-Argument Calendar
JOHN LEY
________________________
CLERK
D. C. Docket No. 5:08-cv-00193-CAR
DONALD W. WHITEHEAD,
Plaintiff-Appellant,
versus
EDWARD H. BURNSIDE,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Georgia
_________________________
(November 17, 2010)
Before DUBINA, Chief Judge, HULL and ANDERSON, Circuit Judges.
PER CURIAM:
Appellant Donald W. Whitehead, an inmate at the Men’s State Prison
(“MSP) in Hardwick, Georgia, appeals the district court’s entry of summary
judgment as to Hale Edward Burnside, Medical Director for the prison, on his
claim of deliberate indifference to a serious medical need in violation of the
Constitution of the United States, brought pursuant to 42 U.S.C. § 1983, and a state
cause of action for medical malpractice.1 On appeal, Whitehead argues that the
district court erred by adopting the recommendation of the magistrate judge that
summary judgment should be granted in favor of Burnside because Whitehead
failed to create an issue of fact for trial. The magistrate judge reasoned that
Whitehead failed to provide medical evidence to support his claim of deliberate
indifference on the part of Burnside. Whitehead contends that his declaration and
Dr. William S. Thompson’s declaration support his theory that the two and one
half week delay between his kneecap injury and surgery amounts to cruel and
unusual punishment. After reviewing the record, we conclude that Whitehead has
failed to present a genuine issue of material fact to be resolved by a fact-finder.
Thus, we affirm the grant of summary judgment.
We review a district court order granting summary judgment de novo,
viewing all of the facts in the record in the light most favorable to the non-moving
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Initially, Whitehead also appealed the magistrate judge’s imposition of sanctions in the
underlying matter. On August 20, 2010, a panel of this Court dismissed the appeal as to the
sanctions order.
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party. Brooks v. County Comm’n of Jefferson County, Ala., 446 F.3d 1160, 1161-
62 (11th Cir. 2006). Summary judgment is appropriate where the moving party
demonstrates, through pleadings, interrogatories, and admissions on file, together
with the affidavits, if any, “that there is no genuine issue as to any material fact and
that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P 56(c).
“A party moving for summary judgment has the burden of showing that there is no
genuine issue of fact.” Eberhardt v. Waters, 901 F.2d 1578, 1580 (11th Cir. 1990)
(internal quotation marks omitted). “A party opposing a properly submitted
motion for summary judgment may not rest upon mere allegation or denials of his
pleadings, but must set forth specific facts showing that there is a genuine issue for
trial.” Id. (internal quotation marks omitted). The court must view the evidence
and make all reasonable factual inferences against the non-moving party. Id.
Speculation or conjecture from a party cannot create a genuine issue of material
fact. Cordoba v. Dillard’s, Inc., 419 F.3d 1169, 1181 (11th Cir. 2005). “A mere
scintilla of evidence in support of the nonmoving party will not suffice to
overcome a motion for summary judgment.” Young v. City of Palm Bay, Fla., 358
F.3d 859, 860 (11th Cir. 2004).
In order to state a cognizable claim for inadequate medical treatment under
the Eighth Amendment, “a prisoner must allege acts or omissions sufficiently
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harmful to evidence deliberate indifference to serious medical needs.” Estelle v.
Gamble, 429 U.S. 97, 106, 97 S. Ct. 285, 291 (1976). These acts or omissions
must be “so grossly incompetent, inadequate, or excessive as to shock the
conscience or to be intolerable to fundamental fairness.” Harris v. Thigpen, 941
F.2d 1495, 1505 (11th Cir. 1991) (quoting Rogers v. Evans, 792 F.2d 1052, 1058
(11th Cir. 1986)).
Deliberate indifference requires a plaintiff to prove three elements: “(1)
subjective knowledge of a risk of serious harm; (2) disregard of that risk; and (3)
by conduct that is more than mere negligence.” Brown v. Johnson, 387 F.3d 1344,
1351 (11th Cir. 2004). The plaintiff shoulders a heavy burden; even conduct that
could be characterized as medical malpractice does not necessarily constitute
deliberate indifference. See McElligott v. Foley, 182 F.3d 1248, 1255 (11th Cir.
1999). A difference in medical opinion does not constitute deliberate indifference
so long as the treatment provided is minimally adequate. Harris, 941 F.2d at 1504-
05. When a plaintiff alleges that delay in medical treatment shows deliberate
indifference, he “must place verifying medical evidence in the record to establish
the detrimental effect of delay in medical treatment to succeed.” Hill v. Dekalb
Reg'l Youth Det. Ctr., 40 F.3d 1176, 1187-88 (11th Cir. 1994), overruled in part on
other grounds by Hope v. Pelzer, 536 U.S. 730, 739 n.9, 122 S. Ct. 2508, 2515 n.9
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(2002). “[D]elay in medical treatment must be interpreted in the context of the
seriousness of the medical need, deciding whether the delay worsened the medical
condition, and considering the reason for delay.” Id. at 1189. Self-serving
statements by a plaintiff do not create a question of fact in the face of
contradictory, contemporaneously created medical records. See, e.g., Bennett v.
Parker, 898 F.2d 1530 (11th Cir. 1990).
We conclude from the record that the district court correctly applied the
summary judgment standard, finding that Whitehead failed to demonstrate that
there was a genuine issue of material fact as to whether Burnside was deliberately
indifferent to Whitehead’s broken kneecap. Although Whitehead attempts to
overcome summary judgment by offering his own sworn statement and that of Dr.
Thompson to support his allegations, the contemporaneous medical records and
opinions of the examining medical doctors show that this purported evidence is
baseless.
Whitehead’s broken kneecap resulted from a prison altercation on October
20, 2006. Whitehead claims in his statement that, after his arrival at the Oconee
Regional Hospital, Dr. Salvatore Dellacona requested immediate surgery for his
injured knee but was denied permission by Burnside to perform the operation. On
the contrary, Dr. Dellacona provided an affidavit stating that immediate surgery
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was not required for Whitehead’s broken kneecap, and he did not speak with
Burnside as Whitehead contends. Prison records indicate that at the time of the
incident, Burnside was not present at the prison.
Dr. Dellacona, pursuant to hospital protocal, requested a second opinion
from Dr. Steven Niergarth. Niergarth concurred with Dr. Dellacona that
immediate surgery was not required. On November 1, 2006, Whitehead was
examined by an orthopedic specialists, Dr. Clarence Fossier. Fossier found that the
injury did not require immediate surgery and scheduled the operation for a week
later. In his sworn statement, Fossier testified that he would have operated
immediately if it had been necessary and that any delay in surgery did not result in
any long-term detriment to Whitehead.
Whitehead attempts to counter these medical opinions from his treating
physicians by producing an affidavit from Dr. Thompson, wherein he states that
after reviewing the evidence, he found Burnside deliberately indifferent in delaying
treatment for Whitehead. At best, however, Dr. Thompson’s affidavit represents a
difference of medical opinion between himself and the physicians who treated
Whitehead. Furthermore, as Dr. Thompson acknowledges, his affidavit is based in
part on Whitehead’s statement that Dellacona would have performed surgery
immediately had Burnside not intervened. Dellacona’s contemporaneous medical
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records and his affidavit show this contention to be incorrect.
Whitehead’s statement is erroneous in other ways as well. Whitehead claims
that Burnside refused to look at his knee and told him it would take two to three
months to schedule an MRI. Burnside’s records, recorded at the time he first saw
Whitehead, show otherwise. Burnside clearly notes that Whitehead had fractured
his patella, could not extend his leg, and had swelling in his left knee. Burnside
requested an urgent consultation by an orthopedist to evaluate the injury, and
Whitehead was scheduled for the consultation with Dr. Fossier that lead to his
eventual surgery.
The evidence from the record is clear. Whitehead has established, at best, a
difference of medical opinion as to the appropriate treatment for his injured knee.
His personal belief regarding the severity of his injury is not sufficient to overcome
the medical opinions of Drs. Fossier and Dellacona, and he has failed to produce
evidence to refute the contemporaneous medical records supporting Burnside’s
actions. Therefore, we conclude that the district court properly adopted the
magistrate’s recommendation and we affirm the district court’s grant of summary
judgment in favor of Burnside.
AFFIRMED.
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