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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

WALTER DAY,

Plaintiff,

vs. CASE NO. 4:03CV144-SPM/AK

PARKER ALLIS,

Defendant.

 /

O R D E R

Plaintiff has filed a civil rights complaint under 42 U.S.C. §1983 alleging

that Defendant Dr. Parker Allis, a dentist, was deliberately indifferent to his

serious medical needs when he was incarcerated at Taylor Correctional

Institution. (Doc. 1). Defendant Allis has filed a special report (doc. 38), which

has been construed as a motion for summary judgment. (Doc. 40, 59). Plaintiff

was advised of the need to respond to the motion with evidentiary materials (doc.

40), but he has not filed a response.

I. Allegations of the Complaint (Doc. 1)

Plaintiff alleges that he suffered injury to his jaw during a fight with another

inmate on August 7, 2002. (Doc. 1, p. 7). He claims that he was isolated and

denied medical care for several days, but does not name anyone whom he asked

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1

 Plaintiff moved to dismiss Defendant Huynh after realizing that he had named

the wrong man, which the Court granted. (Doc. 58). The Court also disposed of

Huynh’s motion for summary judgment (doc. 44), which was based on the fact that

Huynh was not employed at Taylor Correctional Institution at the time of the events

alleged and could not have been the examining physician referred to in the complaint. 

The Court did not grant Plaintiff leave to amend his complaint to name other physicians,

whom he now believed to be the correct Defendants because he had not exhausted his

claims against them and the amendment would have been futile. (Doc. 58).

Case No.: 4:03cv144-SPM/AK

for medical care nor does he name anyone who actually refused him medical

care. He claims that Defendant Dr. Huyhn finally examined him and read his xray, but Dr. Huyhn allegedly did not see that the jaw was broken and returned

Plaintiff to his cell without treatment.1

Plaintiff’s claims against Defendant Allis are that Dr. Allis delayed

treatment, including surgery, of his jaw when Plaintiff was transferred to his care

from North Florida Reception Center, and then performed surgery on him without

pain medication and failed to prescribe pain medication after the surgery. (Doc.

1, p. 7).

Attached to the complaint are grievances, but none of them mention Dr.

Allis by name nor do they specifically complain about his delay in treating Plaintiff

or the failure to administer pain medication either during or after surgery.

II. Standard of Review

A district court should grant summary judgment when, “after an adequate

time for discovery, a party fails to make a showing sufficient to establish the

existence of an essential element of that party’s case.” Nolen v. Boca Raton

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Case No.: 4:03cv144-SPM/AK

Community Hospital, Inc., 373 F.3d 1151, 1154 (11th Cir. 2004), citing Celotex

Corporation v. Catrett, 477 U.S. 317, 322 (1986). All issues of material fact

should be resolved in favor of the Plaintiff or non-moving party before the Court

determines the legal question of whether the defendant is entitled to judgment as

a matter of law under that version of the facts. Durruthy v. Pastor, 351 F.3d

1080, 1084 (11th Cir. 2003); Skrtich v. Thornton, 280 F.3d 1295, 1299 (11th Cir.

2002). The Plaintiff has the burden to come forward with evidentiary material

demonstrating a genuine issue of fact for trial. Celotex, 477 U.S. at 322-23. 

Plaintiff must show more than the existence of a "metaphysical doubt" regarding

the material facts, Matsushita Electric Industrial Co., LTD. v. Zenith Radio

Corporation, 475 U.S. 574, 586, 106 S. Ct. 1348, 1356, 89 L. Ed. 2d 538 (1986),

and a "scintilla" of evidence is insufficient. There must be such evidence that a

jury could reasonably return a verdict for the party bearing the burden of proof. 

Anderson v. Liberty Lobby, 477 U.S. 242, 251, 106 S. Ct. 2505, 2512, 91 L. Ed.

2d 202 (1986). “For factual issues to be considered genuine, they must have a

real basis in the record.” Mize v. Jefferson City Board of Education, 93 F.3d 739,

742 (11th Cir. 1996).

"Rule 56(e) . . . requires the nonmoving party to go beyond the pleadings

and by his own affidavits, or by the 'depositions, answers to interrogatories, and

admissions on file,' designate 'specific facts showing that there is a genuine issue

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Case No.: 4:03cv144-SPM/AK

for trial.' " Owen v. Wille, 117 F.3d 1235, 1236 (11th Cir. 1997), cert. denied 522

U.S. 1126 (1998), quoting Celotex, 477 U.S. at 324, 106 S. Ct. at 2553 (quoting

Fed. R. Civ. P. 56(c), (e)). The nonmoving party need not produce evidence in a

form that would be admissible as Rule 56(e) permits opposition to a summary

judgment motion by any of the kinds of evidentiary materials listed in Rule 56(c). 

Owen v. Wille, 117 F.3d at 1236; Celotex, 477 U.S. at 324, 106 S. Ct. at 2553.

While a moving party is not required to support his motion for summary

judgment with affidavits, Celotex, supra at 323, the facts stated in uncontradicted

affidavits or other evidentiary materials must be accepted as true for purposes of

summary judgment. Gauck v. Meleski, 346 F.2d 433, 436 (5th Cir. 1965).

III. Defendant’s Rule 56(e) evidence

a) Medical Records

Medical treatment notes establish that a consultation with Dr. Allis was

sought on August 28, 2002, stating: “Received a blow to face about 2 wks ago. 

Have been in pain since.” (Doc. 38, Exhibit A). X-rays were taken showing a

fracture and surgery was performed the next day by Dr. Allis. (Exhibit A). The

procedures were explained to Plaintiff and he signed a consent form. (Exhibit B). 

Antibiotics and Motrin for pain were administered. (Exhibit C). Numerous follow

up examinations were conducted on September 6, 2002, September 10, 2002,

September 17, 2002, and October 8, 2002. (Exhibit D). 

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b) Affidavit of Parker Allis 

Dr. Allis attests that he received a consultation request on Plaintiff on

August 28, 2002, regarding his jaw, and Dr. Allis examined him on August 28,

2002, after he was transported to NFRC from Taylor Correctional Institution. 

(Doc. 36). Upon examination, he found the jaw to be fractured and obtained a

consent from Plaintiff for surgery which was performed later that day under local

anesthetic. (Doc. 36). A bridle wire was placed in the area for stabilization and

Motrin 800 mg, and an antibiotic was prescribed, with passes for low bunk, no

exercise, no work, and liquid diet were given. Plaintiff was told to report to the

dental clinic or to emergency if he was in pain or had difficulty breathing or

swallowing. A follow up appointment was scheduled with Dr. Scott Wenk. No

reports of pain or difficulty was made by Plaintiff to Dr. Allis or his staff, and it was

assumed that follow up with Dr. Wenk proceeded as scheduled. 

IV. Analysis

a) Deliberate Indifference to Medical Needs

Medical claims under the Eighth Amendment have an objective and

subjective component, each of which additionally is considered to encompass

two subsidiary requirements. Taylor v. Adams, 221 F.3d 1254, 1258 (11th Cir.

2000), cert. denied, 531 U.S. 1077, 121 S.Ct. 774, 147 L.Ed.2d 673 (2001). The

"objective component" of the Eighth Amendment standard requires a

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determination whether the alleged wrongdoing was objectively harmful enough to

establish a constitutional violation. See Wilson v. Seiter, 501 U.S. 294, 303, 111

S.Ct. 2321, 2326, 115 L.Ed.2d 271 (1991). This objective component varies with

the situation and the conduct in question and is responsive to "contemporary

standards of decency." Estelle v. Gamble, 429 U.S. 97, 103, 97 S.Ct. 285, 291,

50 L.Ed.2d 251 (1976); see also Rhodes v. Chapman, 452 U.S. 337, 346, 101

S.Ct. 2392, 2399, 69 L.Ed.2d 59 (1981). An objectively serious deprivation

requires (1) showing an objectively "serious medical need." Estelle, 429 U.S. at

104. A serious medical need is one that, if left unattended, "pos[es] a substantial

risk of serious harm." Farmer v. Brennan, 511 U.S. 825, 834, 114 S.Ct. 1970,

1977, 128 L.Ed.2d 811 (1994). In addition, an objectively serious deprivation

requires (2) showing the response made by the defendant to that need was so

deficient as to constitute "an unnecessary and wanton infliction of pain" and not

simply "negligen[ce] in diagnosi[s] or treat[ment]," or even "[m]edical malpractice"

actionable under state law. Estelle, 429 U.S. at 105-06 (internal quotation marks

omitted). See Taylor, 221 F.3d at 1257; see also Farrow v. West, 320 F.3d 1235,

1243 (11th Cir. 2003). 

A serious medical need is considered “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.” Farrow, at

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1243, quoting Hill v. Dekalb Regional Youth Detention Center, 40 F.3d 1176,

1187 (11th Cir. 1994). 

To show the required subjective intent to punish the plaintiff must

demonstrate that the defendant acted with an attitude of "deliberate indifference."

Estelle, 429 U.S. at 105. This is defined as requiring (1) an "aware[ness] of facts

from which the inference could be drawn that a substantial risk of serious harm

exists" and (2) the actual "draw[ing of] the inference." Farmer, 511 U.S. at 837. 

In sum, in a claim of denial of medical attention under the Eighth Amendment

"[u]ltimately, there are [] four requirements: an objectively serious need, an

objectively insufficient response to that need, subjective awareness of facts

signaling the need, and an actual inference of required action from those facts." 

Taylor, 221 F.3d at 1258.

Plaintiff has failed to come forward with any evidentiary materials to show

that Dr. Allis was deliberately indifferent to his medical needs. The evidentiary

material submitted by Dr. Allis shows that he was first consulted on Plaintiff’s

dental problems on August 28, 2002, that he examined him upon his arrival at

NFRC the next day, and that he performed surgery later that same day. Local

anesthesia was given to him during the surgery, and a pain reliever administered

afterwards. Dr. Allis attests that he did not do any follow up with Plaintiff, and the

medical records support that Dr. Scott Wenk examined him several times after

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the surgery with no noted complaints of pain or discomfort nor did Plaintiff make

requests for additional pain medication which were ignored. Thus, there is no

factual support for the claims asserted against Dr. Allis, and the claims are

hereby dismissed.

b) Exhaustion

None of the grievances submitted with the complaint assert any claims

related specifically to Dr. Allis. He is not mentioned by name nor are there

sufficient facts regarding the general claims of “delay” and denial of care to

adequately identify Allis as the person alleged to have denied or delayed care. 

Section 1997e(a) provides that: "No action shall be brought with respect to prison

conditions under section 1983 of this title, or any other Federal law, by a prisoner

confined in any jail, prison, or other correctional facility until such administrative

remedies as are available are exhausted." 42 U.S.C. § 1997e(a). This

requirement is mandatory, and may not be waived. Alexander v. Hawk, 159 F.3d

1321, 1326 (11th Cir. 1998). Thus, the claims against Allis are hereby dismissed

for failure to exhaust.

Accordingly, it is

ORDERED:

1. Defendant Parker Allis’ motion for summary judgment (doc. 38, 59) is 

GRANTED.

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Case No.: 4:03cv144-SPM/AK

2. This cause is hereby DISMISSED WITH PREJUDICE for failure to

state a claim and for failure to exhaust administrative remedies. 

DONE AND ORDERED this 25th day of September, 2006.

 s/ Stephan P. Mickle 

Stephan P. Mickle

United States District Judge

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