Eleventh Circuit Court of Appeals
Wade v. McDade
11th Circuit Court of Appeals
5/22/23, Judge Newsom
Topics: 1983 (Eighth Amendment)
Over a four-day stretch during his incarceration at Walker State Prison in Georgia, David Henegar failed to receive his prescribed seizure medication. On the fourth night, Henegar had two seizures that permanent brain damage. Proceeding under 42 U.S.C. § 1983, Henegar sued five prison employees—Lieutenant John Stroh and Sergeant Jerome Scott Keith, as well as nurses Sherri Lee, Julie Harrell, and Cindy McDade—alleging that they were deliberately indifferent to his medical needs in violation of the Eighth Amendment.
The district court granted summary judgment to all five defendants on the ground that they were entitled to qualified immunity. Shortly thereafter, Henegar died from causes unrelated to the seizures that he suffered while in prison. His sister, Betty Wade, now pursues his claims on appeal as the personal representative of his estate.
The Eleventh Circuit, for the first time, held that a plaintiff must demonstrate “more than grossnegligence” in making out an Eighth Amendment medical neglect case. Under that standard, the Eleventh Circuit affirmed the qualified immunity findings. The Court wrote 29 whole pages on how the simple facts of failing to give the decedent his required medication—which undoubtedly caused his brain injury—wasn’t “more than gross negligence.”
The Court explained that 1983 deliberate indifference medical claims have “evolved in the years” (i.e. courts have added more and more preconditions to plaintiffs just proving a violation) to require both an objective (objectively serious medical need) and a subjective component. The subjective component entails three subparts: The plaintiff must prove that the defendant (1) actually knew about a risk of serious harm; (2) disregarded that risk; and (3) acted with more than negligence. The court stated that the blank line was intentional because for more than 25 years now, our case law regarding a deliberate-indifference claim’s mens rea element has been hopelessly confused, resulting in what we’ll charitably call a “mess.” We’ve tried to clean up that mess at least twice, but seemingly to no avail, as panels continue to flip-flop between two competing formulations: “more than mere negligence” and “more than gross negligence.”
The panel opted to take the more defendant-friendly of the two standards, noting that the harsher standard was “dispositive with respect to two of our defendants” who neglected the plaintiff’s need for his anti-seizure meds with “more than mere negligence,” something the panel decided was worthy of legal protection sufficient that the case should never go to a jury.
Defendant #1 was excused because he didn’t know it was that serious. His son was epileptic and could safely miss doses of his meds. (NOTE: This interpretation of the subjective requirement is devastating. So now anyone who doesn’t understand why a drug was prescribed can deny a prisoner a prescribed medication and claim they are not a doctor and don’t understand why it’s serious).
Defendant #2 was excused because while he notated the lack of the Rx and may have failed to pass along this information to the nurses, the fact that he made the notations and kind of hoped someone would read them and see that the inmate never received his meds meant he wasn’t more than grossly negligent.
Defendants #3 and #4 were a “closer call.” They were nurses who knew that Plaintiff was not getting his meds and that it could be serious. They staffed the “pill call”—the process of handing out the meds. They disregarded the risk of serious harm. They knew about a backup of a supply of the required drug, had access to it, and could have ordered it. Their statements that more of the drug was “on order” was more than merely negligent because they checked to see that more pills would be arriving soon. The fact that there was a serious risk of missing any of the pills and that missing three or four days caused brain damage and death did not, in the court’s view, push the negligence into the more-than-grossly-negligent realm because, hey, pills were on order and would arrive someday. This was more than “mere” negligence, but not more than “gross” negligence.
Defendant #5 was, admittedly, a justified summary judgment. She was alleged to be have been a supervisor who did not directly participate. Section 1983 does not, under court-made case law, permit vicarious liability, and while plaintiff argued that she directly was to blame because of improper training of the staff (failing to train the officers to contact a nurse if they encountered a medication issue) rather than just making a mark on a form, the policy was not deliberately indifferent on its face.
JUDGE NEWSOM CONCURREED SPECIALLY to opine that medical neglect should not even be considered a valid cause of action under 1983 because medical neglect shouldn’t be considered “punishment” under the text of the Eighth Amendment. He does not think prison officials can “punish” inmates by failing to provide care. He opines, “Maybe it makes sense to hold prison officials liable for negligently or recklessly denying inmates appropriate medical care. Maybe not. But any such liability, should we choose to recognize it, must find a home somewhere other than the Eighth Amendment…. [Punishment] occurs only when a government official acts intentionally and with a specific purpose to discipline or deter.”