Palazon v. Secretary for the Department of Corrections

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 07-14451 ELEVENTH CIRCUIT
JANUARY 15, 2010
Non-Argument Calendar
JOHN LEY
________________________
ACTING CLERK

D. C. Docket No. 05-14224-CV-KMM

OSVALDO C. PALAZON,
RONNIE E. CONNOLLY,
COLLINS MURRAY,
RICARDO PEREZ,
WILLIAM BISHOP,
WILLIE JONES,
AARON KOSBERG,
DANIEL MAGLIO,
AUSTIN SPEAS,

Plaintiffs,

KENNETH MCKENNA,

Plaintiff-Appellant,

versus
SECRETARY FOR THE DEPARTMENT OF CORRECTIONS,
WEXFORD HEALTH SOURCES INC.,
DR. HARIDAS NARSI BHADJA,
DENISE KELCHNER,

Defendants-Appellees,

FLORIDA CORRECTIONAL MEDICAL
AUTHORITY,

Defendant.

________________________

Appeal from the United States District Court
for the Southern District of Florida
_________________________

(January 15, 2010)

Before EDMONDSON, PRYOR and ANDERSON, Circuit Judges.

PER CURIAM:

Kenneth McKenna, a Florida prisoner proceeding pro se, appeals the grant

of summary judgment to Defendants in his civil rights action, 42 U.S.C. § 1983.

No reversible error has been shown; we affirm.1

1
McKenna filed suit along with nine other plaintiffs. Plaintiffs sought, but were denied,
class action certification. All 10 plaintiffs appealed the grant of summary judgment, but only

2
 McKenna alleged that he received inadequate medical care for his inguinal

hernia in violation of the Eighth Amendment. He claimed that healthcare

providers delayed in performing necessary surgery on the hernia and that this delay

caused him greater than necessary pain. McKenna filed suit against the secretary

for the Florida Department of Corrections (FDOC) and others involved in

administering healthcare services for the FDOC. The district court, adopting the

magistrate’s report and recommendation, granted summary judgment to

Defendants because the treatment McKenna received did not rise to the level of

deliberate indifference.

On appeal, McKenna argues that his hernia should have been corrected

surgically earlier than it was. We review a district court’s grant of summary

judgment de novo; and we view the evidence and all reasonable factual inferences

in the light most favorable to the nonmoving party. Maniccia v. Brown, 171 F.3d

1364, 1367 (11th Cir. 1999).2

For medical treatment to rise to the level of a constitutional violation, the

care must be “so grossly incompetent, inadequate, or excessive as to shock the

McKenna’s appeal is pending presently. The other plaintiffs’ appeals were dismissed on
various procedural grounds.
2
In addition, we liberally construe pro se pleadings. See Tannenbaum v. United States,
148 F.3d 1262, 1263 (11th Cir. 1998).

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conscience or to be intolerable to fundamental fairness.” Harris v. Thigpen, 941

F.2d 1495, 1505 (11th Cir. 1991) (citations omitted). A medical need may be

considered serious if a delay in treating it makes it worse. Danley v. Allen, 540

F.3d 1298, 1310 (11th Cir. 2008). To show deliberate indifference to a serious

medical need, a plaintiff must demonstrate that defendants’ response to the need

was more than “merely accidental inadequacy, negligence in diagnosis or

treatment, or even medical malpractice actionable under state law.” Taylor v.

Adams, 221 F.3d 1254, 1258 (11th Cir. 2000) (citation and internal quotations

omitted).

After review, we conclude that the district court properly granted summary

judgment to Defendants. Evidence showed that McKenna received treatment for

his hernia symptoms on many occasions. Among other things, he received a hernia

truss, pain medication, and a wheelchair to help him move around. Medical

records showed that McKenna saw doctors regularly and that his hernia remained

reducible; and doctors did not want to operate on the hernia as long as it remained

reducible. McKenna eventually did have surgery for his hernia.

The care McKenna received was adequate and certainly not “so grossly

incompetent, inadequate, or excessive as to shock the conscience or to be

intolerable to fundamental fairness.” See Harris, 941 F.2d at 1505. Any delay in

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receiving surgery was because the hernia remained treatable without surgery. That

McKenna felt he should have had surgery earlier than he did is insufficient to

support a deliberate indifference claim. See Adams v. Poag, 61 F.3d 1537, 1545

(11th Cir. 1995) (whether defendants “should have employed additional diagnostic

techniques or forms of treatment ‘is a classic example of a matter for medical

judgment’ and therefore not an appropriate basis for grounding” constitutional

liability); Harris, 941 F.2d at 1505 (a difference in medical opinion between the

prison’s medical staff and the inmate about the latter’s course of treatment will not

support a claim of cruel and unusual punishment).

Accordingly, construing the facts in the light most favorable to McKenna,

the record does not demonstrate that Defendants’ conduct amounted to a

constitutional violation. The district court correctly granted summary judgment to

Defendants.

AFFIRMED.3

3
McKenna abandoned his claim that the FDOC handled improperly his legal mail in
violation of the attorney-client privilege by failing to raise this claim on appeal. See North Am.
Med. Corp. v. Axiom Worldwide, Inc., 522 F.3d 1211, 1217 n.4 (11th Cir. 2008).

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