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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PANAMA CITY DIVISION

MURRAY HILTON,

Plaintiff,

vs. Case No. 5:03cv166-MCR/WCS

FRANK McHUGH, 

and SEYMOUR GOSS, M.D.,

Defendants.

 /

REPORT AND RECOMMENDATION

An evidentiary hearing was held in this case on September 8, 2005. The parties

have filed written closing argument. Docs. 157 and 158. The transcript of the hearing is

document 156.

Findings of Fact

Plaintiff arrived as a prisoner in the Florida Department of Corrections in April,

2002. Doc. 156 (transcript), p. 20. At that time, Plaintiff said that he had two cysts, one

on his scrotum and one on the right side of his penis. Id. He also has had a history of

genital herpes simplex outbreaks for over 20 years. Id., p. 24.

Between April, 2002, and September, 2003, Plaintiff reported to sick call over 90

times. Id., p. 29. He reported a number of ailments in addition to the ones at issue in

this case. Defendant's Exhibit A (medical records).

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1

 The facts of this claim were alleged in the amended complaint, doc. 8, but

Plaintiff made no specific claim for relief as to treatment for herpes in December, 2002. 

It will be assumed that the complaint has been implicitly amended since the parties

joined issue as to this at trial.

2

 The amended complaint did not allege anything at all about the treatment of

herpes on April 4, 2003. Again, however, since the parties have joined issue, it will be

assumed that this claim is before the court.

Case No. 5:03cv166-MCR/WCS

Plaintiff testified that he has two claims. First, he asserts that "the remaining cyst

is the one that keep[s] giving me problems, and the cyst is not responding to

antibiotics." Id., p. 21. He wants all of his cysts removed. Id. and p. 23. The cysts itch,

and they burn when infected. Id., p. 36. Plaintiff's Eighth Amendment claim, therefore,

concerns delays in treatment of these cysts and the need now to have all cysts

removed.

Plaintiff's second claim is that the treatment he received for the herpes outbreak

in December, 2002, was inadequate because it took 10 days to receive Valtrex.1 Id.,

pp. 21-22. He asserts that Defendant Dr. Goss saw him again on April 4, 2003, when

he had a herpes outbreak, and delayed this medication another 10 days.2

 Id., p. 22. 

These delays in treatment are the focus of the second Eighth Amendment claim.

The evidence of health care begins on May 20, 2002, shortly after Plaintiff arrived

at Calhoun Correctional Institution (Calhoun CI). Defendant Frank McHugh, Advanced

Registered Nurse Practitioner (ARNP), saw Plaintiff at sickcall. Id., p. 20. Plaintiff told

McHugh that he had had a cyst on his scrotum for about seven months. Id., p. 87. 

McHugh's diagnosis was a small sebaceous cyst without redness or exudate. Id. 

Despite the lack of evidence of infection (redness or exudate), McHugh prescribed an

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3

 The question posed to McHugh used the date June 11th, but the medical

records are dated June 10th. The proper date is found to be that in the written record.

Case No. 5:03cv166-MCR/WCS

antibiotic, Tetracycline, Ibuprofen for pain relief, and Tinactin powder, to dry up the area

and to treat fungus. Id., pp. 10, 88; Def. Ex. A, p. 130 (hereafter Ex. A).

McHugh saw Plaintiff again on June 10, 2002,3 and again found that he had cysts

on his scrotum. Id., p. 88. The cysts were not infected. Id., p. 89. He prescribed

Ibuprofen, instructed Plaintiff to use warm soaps on the area, and told him not to

squeeze or mash the cysts. Id.

On June 20, 2002, Plaintiff was seen by McHugh with a vesicular rash on his

penis consistent with herpes. Id., pp. 89-90. McHugh diagnosed herpes and prescribed

Valtrex. Id., p. 90; Ex. A, p. 125.

On July 24, 2002, McHugh saw Plaintiff. Id., p. 90; Ex. A, p. 124. McHugh

observed two small cysts on his scrotum with slight drainage. Id. Though the cysts did

not look inflamed, McHugh prescribed Tetracycline. Id., p. 91.

On September 4, 2002, Plaintiff had a recurrence of herpes and McHugh

prescribed Valtrex and Ibuprofen. Id., p. 91; Ex. A, p. 115. The prescription for Valtrex

was extended for five days on September 9, 2002, because the lesions had not yet

healed. Id., p. 92; Ex. A, p. 114.

On October 21, 2002, McHugh examined Plaintiff, finding a small cyst on the

right side of his penis. Id., p. 93; Ex. A, p. 108. Tetracycline was prescribed. Id. 

On October 31, 2002, McHugh saw Plaintiff, finding a small sebaceous cyst on

the right side of his penis, with no signs of infection (no redness, pus, or dead skin). Id.,

pp. 93-94. No antibiotic was prescribed. Id.

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4

 Prescriptions are filled in the prison system more like a hospital than in private

practice. Id., p. 64. In the case of Calhoun CI, an order is written and then faxed to

Washington Correctional Institution and filled, and it comes back to Calhoun CI to be

given to the prisoner the evening that it returns. Id. A prescription written one afternoon

is delivered to the prisoner the next evening, or on Monday evening if written on a

Friday. Id., pp. 64-65.

Case No. 5:03cv166-MCR/WCS

Plaintiff said that the first herpes outbreak at issue in this case began on the

evening of Friday, December 20, 2002. Id., p. 32. He did not declare a medical

emergency, but went to sick call on the following Monday, December 23, 2002. Id. He

saw Nurse Womble, and understood that she was going to call in a prescription for the

herpes outbreak at that time. Id., p. 33. He then saw Dr. Goss on Friday, December

27, 2002, but it was beyond the time for calling in a prescription for a medication.4

 Id. 

He got the medication the following Monday, December 30th. Id. Plaintiff testified that

the herpes outbreaks were "real painful." Id., p. 35. He said that he got "a lot of relief"

in a couple of days from the prescribed herpes medication. Id., p. 36. At issue is the

delay in receiving Valtrex for this outbreak.

McHugh was on vacation during the period December 20-29, 2002. Id., pp. 80-

81. Dr. Goss is primarily assigned to Liberty Correctional Institution, but he visits

Calhoun CI once a week. Id., p. 62.

Dr. Goss was not at Calhoun CI in the period from December 20 to 26, 2002. Id.,

pp. 66-67. On Monday, December 23, 2002, Plaintiff's medical records show that he

was seen in sick call by Nurse D. Womble. Ex. A, p. 94. He said he had a herpes

recurrence (among other complaints). Id. A lesion on his penis was noted. Id. He was

given hydrocortisone cream. Id. Nurse Womble noted a conference with Dr. Goss

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about the "possible herpes outbreak," and Dr. Goss planned to evaluate the problem on

Friday, December 27th. Id.

Dr. Goss said that he usually examines a patient before prescribing a medication,

but in rare cases of chronic conditions, he will prescribe without seeing the patient. Id.,

p. 65. Dr. Goss said that he did not prescribe Valtrex on December 23rd because it was

already the third day of the outbreak and past the ideal time for treatment. Id., pp. 70-

71. He thought that Plaintiff by then should have shown signs of regression and

scabbing over, and Valtrex was not effective to decrease the severity at that point or to

speed the healing process. Id., p. 71. Dr. Goss said that he also wanted to wait until he

had examined Plaintiff. Id., p. 72. He said that Valtrex has been known to cause

aplastic anemia and malignant hypertension in susceptible people; he did not want to

give a medication that had potential side effects that were worse than the condition to

be treated, if treatment was not indicated. Id., pp. 76-78.

Dr. Goss saw Plaintiff on the afternoon of Friday, December 27, 2002. Id., p. 67;

Ex. A, p. 93. He observed what he believed to be a "secondary infection on his penis." 

Id., p. 69. He did not see any active herpes. Id. Dr. Goss ordered Doxycycline for the

infection, and ordered Valtrex to prevent an outbreak of herpes, reasoning that a

second infection can trigger a herpes outbreak. Id. Dr. Goss's testimony is somewhat

contradicted by his notes on that day, however. His assessment that day was "genital

herpes with a secondary infection," and he noted "penile lesions on shaft." Ex. A, p. 93. 

This would seem to be an assessment (diagnosis) of active herpes, though perhaps

progressing toward resolution. Plaintiff received the medications on Monday, December

30th. Id.

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Case No. 5:03cv166-MCR/WCS

On January 13, 2003, McHugh incised and drained a sebaceous cyst in Plaintiff's

left groin area. Id., pp. 14, 95-96; Ex. A, p. 90. He prescribed Keflex, a strong

antibiotic. Id., p. 96.

On March 27, 2003, Plaintiff went to sick call with blisters on his penis, and he

asked for Valtrex. Ex. A, p. 84. McHugh saw him that day, but did not see any blisters. 

Doc. 156, p. 98; Ex. A, p. 81. He prescribed Mycolog cream. Id.

Plaintiff said that on April 3, 2003, another herpes outbreak began and he was

seen by Dr. Goss on April 4, 2003. Id., p. 34. He said that small blisters were visible on

his penis. Id. Plaintiff testified that Dr. Goss referred him to McHugh, who saw him on

April 13, 2003, and prescribed medication, Valtrex. Id. The delay in receipt of the

medication is the focus of a second claim.

The medical records show that on April 4, 2003, Plaintiff came to sick call

complaining of blisters on his penis, an outbreak of herpes. Ex. A, p. 80. Dr. Goss saw

Plaintiff and his assessment was that there was no herpes as there was no evidence of

herpetic lesions. Id.; doc. 156, p. 73. Dr. Goss referred Plaintiff to Nurse McHugh for

follow-up at the next available opportunity to be sure something else was not going on. 

Id. Despite Plaintiff's testimony that he received Valtrex on April 13, 2003, there is no

notation of this in his medical record. Ex. A, pp.78-80 (showing entries on April 4, 2003,

and April 18, 2003).

The foregoing is the only dispute of fact in this record. It is concluded that Dr.

Goss saw Plaintiff on April 4, 2003, found no active herpes, and referred Plaintiff to

McHugh for followup. Plaintiff did not see McHugh on April 13, 2003, and he did not

receive Valtrex then because he did not have a herpes outbreak. He was seen by

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Case No. 5:03cv166-MCR/WCS

McHugh on April 18, 2003, for a cold, with no mention of herpes or Valtrex. Ex. A, pp.

78-79. 

On June 4, 2003, McHugh saw Plaintiff and found that he had "a chronically

infected cyst on the dorsum of his penile shaft," the same one that had been incised in

January. Id., p. 98; Ex. A, p. 67. McHugh removed the cyst on June 5, 2003. Id. He

prescribed Septra DS and Bacitracin ointment. Id., p. 99. This occurred after

conservative treatment had been unsuccessful. Id., p. 15. There was some postoperative infection noted on June 6, 2003, but in the next few weeks that had cleared

up. Id., pp. 100-105. 

McHugh testified generally that Plaintiff had multiple recurring cysts on his

scrotum, that would come and go. Id., p. 16. He said that in his medical opinion, "if a

sebaceous cyst is not infected and not causing serious problems, the best thing to do is

leave it alone." Id.

Dr. Goss testified that his normal treatment for sebaceous cysts is hot

compresses and Ibuprofen, and if that does not work, then a course of antibiotics. Id.,

p. 74. He said that he has never had to excise one. Id. In Dr. Goss's opinion, there

was no need for a specialty medical consultation for Plaintiff's herpes or for his

sebaceous cysts. Id., p. 75.

Scott Sellinger, M.D., testified as an expert witness for Defendants. He is a

medical doctor specializing in urology. Doc. 156, p. 39. He has treated over 100

patients for sebaceous cysts and 50 to 100 patients for herpes. Id., p. 42.

Dr. Sellinger testified that a:

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Case No. 5:03cv166-MCR/WCS

[s]ebaceous cyst is a skin condition that can actually occur anywhere on

the skin. It’s not necessarily limited to the scrotal area. . . . [T]heir skin

structure is limited to the skin itself, not any deeper to the skin. They don’t

penetrate into the muscle layer or into the internal structures, and they can

be of any size, anywhere from one or two millimeters to as big as four or

five centimeters, which is about two inches in size.

* * *

[The cysts] have a cheesy like material . . . that is contained within the wall

of [the] cyst. And it’s not pus, not infection, it’s just byproducts of the

breakdown of the cyst wall.

Id., p. 45.

Dr. Sellinger said that the "medically acceptable course of treatment" for noninfected sebaceous cysts is "typically observation" because in most cases such cysts

are simply a "cosmetic issue." Id., p. 47. Removal of a cyst that is not infected is not

medically necessary. Id. He said that if a person has multiple cysts, it would be hard or

impossible to remove them all. Id., p. 48. The proper course of treatment is soap and

water, and an oral antibiotic. Id., p. 49. Dr. Sellinger said that draining a sebaceous

cyst can make it worse, and it is sometimes better to remove it. Id., p. 49. Dr. Sellinger

reviewed Plaintiff's medical records, and he was of the opinion that the medical

treatment he received for sebaceous cysts was appropriate. Id., p. 50.

Dr. Sellinger said that genital herpes simplex is a virus that resides permanently

in the nerve roots. Id., p. 50. An outbreak, which involves blisters, typically last 7 to 10

days. Id. There is no known cure, and there is no required treatment. Id., p. 51. There

is no substantial risk of harm to a person if herpes is left untreated. Id., p. 54. He said

that a herpes outbreak does not require prompt medical attention. Id., p. 51. If there is

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Case No. 5:03cv166-MCR/WCS

no medical attention, the outbreak runs its natural course, and the blisters heal. Id. 

Within 7 to 10 days, there is no longer any visible evidence of the outbreak. Id.

Dr. Sellinger said that Valtrex is an anti-viral medication that decreases the

intensity and duration of the symptoms of a herpes outbreak. Id., p. 52. It does not

cure the condition. Id. To be most effective, Valtrex must be taken at the very

beginning of the outbreak. Id. Dr. Sellinger also said that Valtrex given once a day can

be used to decrease the number of outbreaks over a period. Id., p. 58. Reduction of

stress levels can also help reduce the number of outbreaks. Id.

Dr. Sellinger said that the first herpes outbreak is always the worst, and the

outbreaks diminish in severity with time. Id., p. 53. He said he thought that a person

who had had herpes for 20 years would only have one outbreak per year. Id. The

outbreak should not be very severe. Id. Dr. Sellinger reviewed Plaintiff's medical

records, and he was of the opinion that the medical treatment he received for herpes

outbreaks was appropriate. Id., p. 54.

Conclusions of Law

The Eighth Amendment is not violated unless a Defendant has been deliberately

indifferent to the Plaintiff's serious medical needs. Estelle v. Gamble, 429 U.S. 97, 97

S. Ct. 285, 50 L. Ed. 2d 251 (1976). A " 'serious' medical need is 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." Hill v. Dekalb

Regional Youth Detention Center, 40 F.3d 1176, 1187 (11th Cir. 1994), quoting Laaman

v. Helgemoe, 437 F. Supp. 269, 311 (D. N.H. 1977).

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Medical malpractice does not constitute deliberate indifference. Estelle, 429 U.S.

at 106, 97 S. Ct. at 292. "Nor does a simple difference in medical opinion between the

prison's medical staff and the inmate as to the latter's diagnosis or course of treatment

support a claim of cruel and unusual punishment." Harris v. Thigpen, 941 F.2d 1495,

1505 (11th Cir. 1991), citing Waldrop v. Evans, 871 F.2d 1030, 1033 (11th Cir. 1989). 

In Estelle, the prisoner received treatment for his back injury (bed rest, muscle relaxants

and pain relievers), but complained that more diagnosis should have been done, such

as an X-ray or other tests. The Court rejected this as a basis for liability: 

But the question whether an X-ray--or additional diagnostic techniques or

forms of treatment--is indicated is a classic example of a matter for

medical judgment. A medical decision not to order an X-ray, or like

measures, does not represent cruel and unusual punishment.

429 U.S. at 107, 97 S. Ct. at 293.

Assuming without deciding that Plaintiff's experience of outbreaks of herpes may

give rise to temporary serious medical needs, a proposition not at all free from doubt,

the delay in receiving Valtrex in December, 2002, was not deliberate indifference to a

serious medical need. While Valtrex would have lessened the symptoms, under the

circumstances, no Defendant was deliberately indifferent to Plaintiff's discomfort. 

Nor was the delay in the removal of the cyst in June, 2003, a violation of the

Eighth Amendment. Plaintiff has not shown deliberate indifference to a serious medical

need.

Recommendation

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Accordingly, it is RECOMMENDED that the court adopt these findings of fact and

conclusions of law and direct the Clerk to enter judgment in favor of Defendants.

IN CHAMBERS at Tallahassee, Florida, on September 28, 2005.

s/ William C. Sherrill, Jr. 

WILLIAM C. SHERRILL, JR.

UNITED STATES MAGISTRATE JUDGE

 

NOTICE TO THE PARTIES

A party may file specific, written objections to the proposed findings and

recommendations within 15 days after being served with a copy of this report and

recommendation. A party may respond to another party's objections within 10

days after being served with a copy thereof. Failure to file specific objections

limits the scope of review of proposed factual findings and recommendations.

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